Cve15 v Minister for Immigration

[2016] FCCA 1486

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVE15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1486

Catchwords:
MIGRATION – Administrative Appeals Tribunal.

PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 424A, 424AA
Federal Circuit Court Rules 2001 (Cth), rr.44.12, 44.13

Cases Cited:
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
NAFF v Minister for Immigration and Multicultural and Indigenous Affairs
SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 (2004) 221 CLR 1
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

Applicant: CVE15

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3530 of 2015

Judgment of: Judge Emmett

Hearing date: 17 June 2016

Date of Last Submission: 17 June 2016

Delivered at: Sydney

Delivered on: 17 June 2016

REPRESENTATION

The applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the Respondents: Mr Liam Dennis
(Minter Ellison)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3530 of 2015

CVE15

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Procedural Background

1. On 29 December 2015, the applicant filed an application seeking judicial review of a decision of the Administrative Appeals Tribunal dated 11 December 2015 and handed down on 14 December 2015 (“the Tribunal”).

2. On 3 March 2016, the applicant attended a directions hearing before a Registrar of this Court. On that occasion, the applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, as well as submissions in support. On that occasion, the applicant was also provided with the contact details of legal services providers and translating and interpreting services in documents headed in his own language, together with a copy of r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

3. At the request of the first respondent, the matter was listed today for a hearing pursuant to r.44.12 of the Rules on the basis that the applicant’s application did not raise an arguable case for the relief sought.

4. Rule 44.12 of the Rules provides as follows:

   “(1)  At a hearing of an application for an order to show cause, the Court may:

   (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or

   (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

   (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

   (2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”

5. Relevantly, r.44.13 of the Rules provides:

   “(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”

Proceeding before this Court

1. The applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.

2. At the outset of the hearing, I explained to the applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant that the only issue before this Court is whether or not the decision of the Tribunal is made according to law. I explained to the applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such an error. 

3. The applicant confirmed to the Court this morning that he had not filed any further documents, either in accordance with the directions of the Court or otherwise, and that he had no documents to provide to the Court in support of his application. 

4. The applicant confirmed that he relied on the grounds of his initiating application, filed on 29 December 2015, as follows:

   “My wife desperately wanted a daughter. On 10 June 2013, she was pregnant. Three months later, my wife was forcibly taken away by officers of my local town Family Planning OFICE. She was forcibly aborted, our daughter, who we had expected for several years, was killed. What was more brutal, the officers then wanted to perform a sterilisation procedure on me.

   We decided to let me go overseas for several years until there was a change in the situation in China.

   In the Tribunal member's decision, he concluded: “The Tribunal finds that here is no real chance that he will be persecuted for any Convention reason, or reasons, if he was forced to return to China now or in the reasonable foreseeable future, he does not satisfy the criterion set out in s.36(2)(a) of the ACT.” (No. 52 of Decision)

   The fact is that my wife was forcibly aborted and the officers intended to forcibly perform a sterilisation procedure on me, which all certified that the officers had persecuted my wife and I will surely be persecuted if I returned to China.

   The Tribunal member ignored the true fact and made a refusal of my application.

   The Tribunal member had bias against me and failed to take my claims into account according to S91R of the Migration Act 1958, making jurisdictional error.

   The Tribunal member failed to fully consider my claims and refused my claims, making jurisdictional error.”

   (Errors in original).

5. The grounds of the application were interpreted for the applicant and the applicant was invited to say whatever he wished in support of those grounds. However, the applicant declined to say anything further in support of those grounds.

6. To the extent that those grounds assert that the Tribunal was biased, I asked the applicant in what way the Tribunal was biased. The applicant responded that, although the Tribunal found that he would not be persecuted if he returned to China, he was sure that he would be.

7. I also asked the applicant which claims he asserts were not taken into account by the Tribunal. In response, the applicant repeated that he would be persecuted in China.  I asked the applicant if he had anything further to say in support of his application generally. However, the applicant declined to make any further comment.

8. In support of his protection visa application, the applicant provided a statement in which he claimed to have a wife and two sons in China. The applicant claimed that his wife desperately wanted a daughter and that, on 10 June 2013, his wife told him that she was pregnant. The applicant claimed that on 11 September 2013, his wife was forcibly taken away by officers from the local family planning office and that she was forcibly aborted. The applicant claimed that the foetus was a daughter. The applicant further claimed that the local family planning officers wished to perform a sterilisation procedure on him. The applicant claimed that after a discussion with his wife, they agreed that the applicant would go overseas for several years, until there was a change in the situations in China.

9. The Tribunal’s decision record makes clear that it discussed the applicant’s claims with him in some detail at a hearing.  Ultimately, the Tribunal comprehensively rejected the entirety of the applicant’s claims on credibility grounds.

10. The Tribunal noted that it did not find the applicant’s evidence to be plausible, consistent or convincing. The Tribunal further found that the applicant had fabricated his claim of having two sons and that he had fabricated his claim of threatened sterilisation. The Tribunal’s decision record contained various exchanges that it had with the applicant, which make clear that the Tribunal put the concerns it had about the applicant’s evidence to him at the hearing and noted in detail the applicant’s responses. 

11. The Tribunal had regard to country information in relation to forced sterilisation of both men and women in China and found the applicant’s evidence to be inconsistent with that country information. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

12. The Tribunal also noted the two-month delay by the applicant in applying for a protection visa. The Tribunal did not accept the applicant’s explanation for that delay. The Tribunal further noted that it raised with the applicant the lack of corroborative evidence beyond the applicant’s oral evidence. 

13. Having rejected the applicant’s claims in their entirety based on the Tribunal’s adverse credibility findings, the Tribunal found that the applicant did not satisfy the refugee criterion in s.36(2)(a) of the Migration Act 1958 (Cth) (“the Act”), or the complementary protection criterion in s.36(2)(aa) of the Act.

14. The Tribunal’s decision is accurately summarised in the first respondent’s submissions, as follows:

    “5. The Tribunal had ‘serious concerns’ with the applicant's credibility and concluded that he was not a ‘credible witness’ (CB 149: [26]). The Tribunal set out numerous concerns with the applicant's evidence including the following:

    (a) the applicant provided inconsistent information about his family composition on a previous visa application (CB 149-150: [28]-[30]);

    (b) in the applicant's circumstances, it was ‘implausible’ that he would go overseas alone, with the intention of staying for several years, if his wife wanted another child (CB 150-151: [31]-[35]);

    (c) in light of country information, the Tribunal ‘ha[d] concerns’ that the applicant's wife managed to escape detection by the Chinese authorities (CB 151: [36]-[37]);

    (d) the fact that the applicant's wife was not sterilised at the time of the abortion was ‘inconsistent with country information’ (CB 152: [38]);

    (e) the Tribunal pointed out other inconsistencies in the applicant's evidence relating to the term of his wife's pregnancy at the time of the abortion, his explanation about why she was not sterilised, and the authorities' attempts to find him (CB 152-153: [40]-[43]);

    (f) the applicant and his family lived in the same village despite fearing the authorities (CB 153: [44]);

    (g) inconsistent evidence about the applicant's employment on a previous visa application demonstrated he was ‘actively involved’ in providing false information to the first respondent's department (CB 153: [45]-[46]); and

    (h) the applicant's two month delay in making a protection visa application undermined his credibility (CB 153: [47]-[48]).

15. Those findings would appear to be open to the Tribunal on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

16. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

17. The grounds contained in the applicant’s initiating application appear to make three complaints: first, that the Tribunal ignored a true fact; secondly, that the Tribunal was biased against him; and thirdly, that the Tribunal failed to take into account his claims. 

18. As stated above, to the extent that those complaints assert that the Tribunal was biased, I asked the applicant in what way the Tribunal was biased. The applicant responded simply that he was told by the Tribunal that he would not be persecuted in China, when in fact he would be.

19. A claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J).

20. A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented” (see Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127] per Gleeson CJ and Gummow J).

21. A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (see Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32] per Gleeson CJ, Gaudron and Gummow JJ; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115] per Allsop J, with whom Moore and Tamberlin JJ agreed).

22. To the extent that the grounds of the application suggest that the Tribunal failed to consider the applicant’s claims, the Tribunal’s decision record makes clear that it explored the applicant’s claims with him in significant detail at the Tribunal hearing, put to him concerns it had about his evidence, and noted his responses.

23. As stated above, I asked the applicant what claims he said were not taken into account and the applicant again simply responded that he would be persecuted if he returned to China. 

24. It would appear from the Tribunal decision’s record that all claims made by the applicant were taken into account and explored with the applicant. Accordingly, the applicant’s complaint that the Tribunal failed to fully consider his claims, or that the Tribunal ignored a true fact, would not appear to be made out on the face of the Tribunal’s decision record.

25. In the circumstances, the applicant’s complaints appear more to be in the nature of a disagreement with the findings and conclusions of the Tribunal. Such complaints invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”

26. As stated above, the applicant was directed on 3 March 2016 to file and serve any further evidence upon which he relied. However, no document was filed by the applicant either in accordance with those directions or otherwise.

27. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the applicant and the exchanges it had with the applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (see NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).

28. The Tribunal’s decision record makes clear that the Tribunal purported to give information to the applicant in accordance with s.424AA of the Act. It is not apparent on the face of the Tribunal’s decision record that there was any failure on the part of the Tribunal to comply with its obligation under s.424AA in giving that information to the applicant for comment. The applicant did not suggest otherwise. In any event, in the absence of a transcript of the Tribunal hearing there is no reason to doubt that the Tribunal complied with s.424AA of the Act, as the Tribunal stated in its reasons that it had done (see SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 per Mckerracher J at [19]).

29. I note that not all the information given by the Tribunal to the applicant for comment in accordance with s.424AA of the Act was information that enlivened the Tribunal’s obligation under s.424A of the Act. However, it is now well established that a Tribunal may, out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A has no application (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ).

1. Accordingly, it would appear that the Tribunal complied with its procedural fairness obligations under the Act in conducting its review.

Conclusion

1. While I make no final decision as to whether or not the Tribunal’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the Tribunal that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The Tribunal referred to the relevant law in affirming the decision under review.

2. In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application filed on 29 December 2015, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 21 June 2016