Cup15 v Minister for Immigration

[2017] FCCA 281

FEDERAL CIRCUIT COURT OF AUSTRALIA

CUP15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 281

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – Protection visa applications – judicial review of adverse decision of Administrative Appeals Tribunal refusing Protection visas – no jurisdictional error – Application to this Court dismissed with costs.

Legislation:

Migration Act 1958 (Cth), s.36.

Migration Regulations 1994 (Cth)

Cases cited:

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Immigration & Border Protection v WZARH (2015) 326 ALR 1

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
WZAVL v Minister for Immigration & Border Protection [2016] FCA 334

First Applicant: CUP15

Second Applicant: CUQ15

Third Applicant: CUR15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3515 of 2015

Judgment of: Judge Dowdy

Hearing date: 17 May 2016

Date of Last Submission: 31 May 2016

Delivered at: Sydney

Delivered on: 23 February 2017

REPRESENTATION

The First Applicant appeared in person

Counsel for the Respondents: Ms S Sangha (Solicitor)

Solicitors for the Respondents: Mills Oakley

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 24 December 2015 is dismissed with costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3515 of 2015

CUP15

First Applicant

CUQ15

Second Applicant

CUR15

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant is a male citizen of the People’s Republic of China, aged 27 years, having been born on 21 May 1989.

2. He successfully applied in China for a Student (Schools Sector) (Subclass 571) visa (Student visa) which was granted on 21 February 2008 and he entered Australia on 4 May 2008.

3. That Student visa expired on 11 June 2008 and the First Applicant was granted another Student visa on 11 June 2008, which expired on 15 March 2010. The First Applicant then remained in Australia as an unlawful non-citizen until he was granted a bridging visa on 28 November 2013 when he lodged his claim on or about 27 November 2013 for a Protection (Class XA) visa (Protection visa) under the Migration Act 1958 (Cth) (Act), in which he was the primary applicant. 

4. The Second Applicant is the de facto partner of the First Applicant   and is a female citizen of China aged 27 years, having been born on 21 October 1989. She applied successfully for a Student visa which was granted on 15 March 2007 and arrived in Australia on 19 April 2007. Her Student visa expired on 8 June 2007 and on that same date she was granted a further Student visa which subsequently expired on 28 June 2010. She then remained in Australia unlawfully until she applied for a further Student visa, which was refused on 10 October 2011 by a Delegate of the First Respondent (Minister), and that refusal was affirmed by the Migration Review Tribunal on 12 June 2012. Her associated bridging visa ceased on 10 July 2012 and thereafter she remained in Australia as an unlawful non-citizen again until she lodged her claim for a Protection visa on or about 27 November 2013, based on her membership of the family unit of the First Applicant. She did not make any personal protection claims independent from those of the First Applicant.

5. The Third Applicant is the daughter of the First and Second Applicants and is aged 2 years, having been born in Australia on 29 March 2014. She was deemed by operation of law under reg.2.08 of the Migration Regulations 1994 (Cth) (Regulations) to be included in the Protection visa applications of her parents.

6. In this proceeding, by Application filed on 24 December 2015 the First, Second and Third Applicants (collectively the Applicants) seek constitutional writs to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal) dated 4 December 2015, affirming a decision of a Delegate (Delegate) of the Minister dated 20 May 2014, not to grant a Protection visa to any of the Applicants.

General Background

1. The claims by the First Applicant as set out in his Protection visa application were in substance to the effect that in about October 2007 he and his school classmate friend Yun Zheng had become unwittingly involved in a drug smuggling operation run out of an Internet Café near Sanhua School where he studied in China. These claims were reported to the police by Yun Zheng’s father, and the First Applicant and Yun Zheng were then detained by the police. Subsequently a high ranking police officer, one Bin Zhong, threatened that the First Applicant and Yun Zheng would only be released from police custody if they blamed Yun Zheng’s neighbour and the owner of the Internet Café, namely one Tong Chen.

2. The First Applicant claimed that in the result, he and Yun Zheng were released from custody and Tong Chen was arrested by the police and his Internet Café was shut down. Bin Zhong told the First Applicant that he knew the First Applicant intended to go to Australia to study and that he, Bin Zhong, would ensure that the First Applicant could safely leave China, and he then arranged everything for the First Applicant to that end. The First Applicant suspected Bin Zhong to be involved with the drug smuggling operation.

3. In August 2008 Tong Chen was killed in prison, and shortly after that Yun Zheng was suddenly murdered by an unknown person. Further, after the death of Yun Zheng an unknown person threatened to kill the First Applicant’s father and the rest of his family and his father had no choice but to close down his medical clinic, and the whole family went into hiding. The First Applicant claimed that if he went back to China he would be killed too. He also claimed that if he returned to China he would be unable to pay the social compensation fee for his daughter, the Third Applicant, payable because she was born out of wedlock, and the Third Applicant claimed to fear harm, discrimination and mistreatment on that basis.

4. By his Decision Record of 20 May 2013 the Delegate found that he was not satisfied that the Applicants were persons to whom Australia had Refugee Convention protection obligations under s.36(2)(a) or complementary protection obligations under s.36(2)(aa) of the Act and he refused to grant a Protection visa to any of the Applicants.

Decision of Delegate

1. In assessing the First Applicant’s claims under s.36(2)(a) of the Act, the Delegate found that there was no nexus between those claims and the Refugee Convention because he did not claim to have any fear based on his race, religion, nationality, membership of a particular social group, or political opinion. Rather, the Delegate found that the Applicant’s claims that he would be arrested and/or murdered were related to criminal activities. Further, the Delegate was not satisfied that the First Applicant had a friend named Yun Zheng who died in 2008 or that his claims concerning Bin Zhong were true.

2. In assessing the First Applicant’s claims for complementary protection under s.36(2)(aa), the Delegate was not satisfied that his claims were true, and overall was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there was a real risk that he would suffer significant harm.

3. The Delegate also found that the First and Second Applicants would be able to pay the social compensation fee owing to the Chinese authorities for their daughter’s birth and register her in their own household to prevent her from becoming one of what in China are referred to as “black children”, who as such face at times social discrimination, harassment and ostracism.

Tribunal Decision

1. The Applicants applied to the Tribunal on 6 June 2014 for merits review of the Delegate’s decision.

2. There had been two hearings before the Tribunal, on 14 May 2015 and 21 October 2015. On both occasions the three Applicants appeared, together with their registered migration agent, but before different Tribunal members. At the hearing in this Court, when this became apparent, I raised with Ms Sangha who appeared for the Minister the potential relevance of the recent High Court decision in Minister for Immigration & Border Protection v WZARH (2015) 326 ALR 1 (WZARH).

3. Ms Sangha responded by correctly pointing out that by letter dated 20 August 2015 the Tribunal had advised the Applicants that there would have to be a change in the Tribunal member, and that Member Ms Belinda Mericourt would finish the review and that Member Mericourt would consider all the material previously available to the Department.

4. Then by letter dated 8 September 2015, the Tribunal advised again that due to the Member who had previously dealt with the application for review being no longer available it had been reassigned to Ms Mericourt who had considered all the material but was unable to make a favourable decision and it invited the Applicants to appear before the Tribunal again on 21 October 2015 at which, as I have recited at [15] above, they did so appear with their registered migration agent. In these circumstances, WZARH is clearly distinguishable because in that case the second interviewer did not interview the First Applicant, whereas in this case the re-assigned Tribunal member did conduct a full hearing at which the Applicants attended, and they had the opportunity to advance their cases to the Tribunal member who in fact made the decision. There was no practical injustice or procedural unfairness in these circumstances.

5. Accordingly, WZARH does not assist the Applicants in this case.

6. By its Decision Record of 4 December 2015 the Tribunal affirmed the Delegate’s decision not to grant Protection visas to any of the Applicants.

7. The Decision Record is very detailed and extends to some 23 pages and 156 paragraphs. In essence the Tribunal did not find that the First Applicant was a credible or reliable witness and gave reasons for this finding, which included the following:

   a)The First Applicant’s delay in taking any step for over five years in applying for a Protection visa reflected poorly on his claims that he feared he would be killed on his return to China. I note that it is permissible for the Tribunal to take into account as a rational consideration a delay in making a Protection visa application in determining whether there was a genuine fear of serious or significant harm in the Applicants’ country of origin or whether the delay is inconsistent with the existence of such a fear: WZAVL v Minister for Immigration & Border Protection [2016] FCA 334 at ([44(6)]) per Farrell J.

   b)It did not find credible the First Applicant’s evidence that the person whom he now claims will kill him if he returns to China, namely Bin Zhong, also previously assisted him to avoid any criminal charges in China and to depart that country.

   c)It did not find credible the First Applicant’s evidence that the First Applicant was good friends with Yun Zheng for over two years but was unable to obtain any supporting evidence of his death, documentary or otherwise.

   d)It did not find credible the First Applicant’s evidence that his father, who was a doctor and had owned a medical practice which yielded a comfortable income, now had no medical practice or savings as a result of threats from Bin Zhong, given that Bin Zhong assisted the First Applicant to depart China, and found that it was not credible that Bin Zhong would continue in these circumstances to threaten the First Applicant’s parents over the past seven years or would do so into the foreseeable future.

   e)It did not find plausible the First Applicant’s assertions that he did not work in Australia for six years and survived solely with the assistance of friends during that time and that it was more likely that when he recorded his occupation as a cleaner on the Third Applicant’s Australian birth certificate dated 1 May 2014, this statement was truthful.

8. On the basis that the First Applicant’s evidence lacked credibility the Tribunal was not satisfied that he was detained for a week by police, or forced to implicate an innocent person in a charge of drug smuggling and then released and assisted to depart from China by the person who had subsequently made death threats against him if he returned to China

9. The Tribunal also found that the First Applicant had not claimed to fear harm on the basis of his race, religion, nationality, membership of a particular social group or political opinion, but rather as a result of an allegedly corrupt police officer suspected of being involved in drug smuggling. Further, the First Applicant did not claim to have a political opinion in opposition to Chinese authorities, including law enforcement authorities, or to have protested publically about police corruption, and therefore the Tribunal considered that the Applicant’s claims did not have a nexus to Refugees Convention grounds.

10. The Tribunal also was not satisfied that the First Applicant had been threatened by a corrupt police officer involved in drug smuggling, and therefore was not satisfied he faced a real risk of significant harm if he returned to China.

11. The Tribunal was not satisfied that the First Applicant and the Second Applicant would suffer serious or significant harm if required to pay to the Chinese authorities a social compensation fee by reason of the Third Applicant being born out of wedlock. It was not satisfied that the Third Applicant would be an unregistered child or that she would face discrimination, stigma or ostracism due to illegitimacy such as to constitute serious harm for a Refugees Convention reason or significant harm for a complementary protection reason.

12. In the result, for the reasons set out in its Decision Record, the Tribunal was not satisfied that any of the Applicants met the criteria for a Protection visa under either s.36(2)(a) or s.36(2)(aa) of the Act.

Grounds of Attack on Tribunal Decision in this Court

1. The sole Ground for review in the Application to this Court is in the following terms:

   The Tribunal made its decision significantly for the reason that I was unable to provide any documentary evidence of the deaths of either Tong Chen or Yun Zheng. However, if the Tribunal really intended to look at my cases independently and impartially, the Tribunal should understand that it would be very hard for a refugee applicant like me to get documentary evidence in support of my claims. Also, these were sensitive cases. In addition, neither I was their families nor relatives. (sic) How could I get documentary evidence of their death? Obviously, the Tribunal committed a jurisdictional error.

Hearing

1. At the hearing in this Court, the First Applicant’s oral submissions appeared to make the following two complaints:

   a)The Tribunal refused his visa application because he failed to provide acceptable documentary evidence of Tong Chen’s death; and

   b)The Tribunal was “strongly biased” against the First Applicant’s case and was not impartial and objective in assessing his case but rather had a favour towards the Department of Immigration and only treated his review application as a formality and had probably decided to refuse his application before speaking to him.

Consideration

1. The first thing to be said is that the Tribunal did not make any actual finding at all in respect of any lack of documentary evidence tending to prove the death of Tong Chen and thus there is no substance to this particular complaint of the Applicants. At the highest in [97] of its Decision Record the Tribunal expressed concern that the First Applicant had no supporting evidence of any kind for the deaths of Tong Chen or Yun Zheng.

2. On the other hand, the Tribunal did make an actual finding about a lack of documentary corroboration of the death of Yun Zheng. The Tribunal recorded at [95] and [96] of its Decision Record that it had put to the First Applicant that he had not provided any evidence of the deaths of either Tong Chen or Yun Zheng and it enquired if the First Applicant thought he would be able to obtain any evidence such as death notices, funeral notices or evidence from the families of the men to support his claim that they had been killed.

3. To this enquiry, the First Applicant responded that the Chinese authorities do not give any paperwork relating to deaths and that he had no evidence of their funerals from their families.

4. The Tribunal then enquired of the First Applicant if he thought that his own father could get any evidence of the deaths of Tong Chen or Yun Zheng, and the First Applicant responded that he could not because his father had only been told of their deaths by a friend.

5. Then in connection with the death of Yun Zheng the Tribunal at [107] of its Decision Record made a finding as follows:

   The Tribunal finds the applicant’s evidence not credible that he was good friends with Yun ZHENG for over two years but would not be able to obtain any supporting evidence of his death. The Tribunal considers that it would be reasonable to expect that there would have been a funeral notice or other supporting material that could be obtained from Yun ZHENG’s family, or that the applicant’s parents or his father’s friend in the judiciary could obtain some supporting evidence of Yun ZHENG’s death, even if there is no evidence that he was murdered. Given the applicant gave evidence to the Tribunal that his father’s friend in the judiciary saw Yun ZHENG on a CCTV camera on the day he was allegedly killed, the Tribunal considers it would be reasonable for the applicant to be able to provide some supporting material relating to Yun ZHENG’s death. The delegate raised these concerns at the interview in April 2014 and the Tribunal raised the same concerns at the hearing in April 2015 and again at the hearing in October 2015.

6. In my view this finding about lack of documentary corroboration of the death of Yun Zheng was reasonably open to the Tribunal, and its finding in this regard could not be regarded as capricious, irrational, unreasonable or lacking an intelligible justification.

7. There is no substance to this attack on the Tribunal’s decision.

Actual Bias

1. The second complaint is that of bias. I infer that the only form of bias alleged by the First Applicant is actual bias in the form of prejudgment. This form of actual bias was described by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 as follows:

   The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

2. A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127 per Burchett J. As the New South Wales Court of Appeal stated in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [97]:

   The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

1. The test of actual bias in the form of prejudgement requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 (Michael Wilson & Partners) at 437-438 [33].

Apprehended Bias

1. For completeness, I note that the test for apprehension of bias is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial mind to the decision making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345. It is an objective test not requiring an assessment of the state of mind of the judge: Michael Wilson & Partners at 437-438 [32]-[33].

Consideration of Claims of Bias

1. In my opinion there is no basis for any claim by the Applicants that they have suffered from actual bias or that there could be any reasonable apprehension of bias in connection with the decision of the Tribunal.

2. First, the Tribunal’s Decision Record on its written face does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38].

3. Second, the First Applicant has not tendered a transcript of either of the Tribunal hearings in support of his complaint that the Tribunal was not independent or impartial or had prejudged the Protection visa applications of the Applicants.

4. In my view, there is no substance to the complaint that the Tribunal was biased and thus no substance to this attack on the Tribunal decision. No jurisdictional error or breach of procedural fairness has been established.

5. Accordingly, the Application must be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     23 February 2017