CVV20 v Minister for Immigration

[2020] FCCA 2815

FEDERAL CIRCUIT COURT OF AUSTRALIA

CVV20 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2815

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal made an error on the ground of apprehended bias – no jurisdictional error made out – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5H, 36, 476

Applicant: CVV20

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1499 of 2020

Judgment of: Judge Street

Hearing date: 14 October 2020

Date of Last Submission: 14 October 2020

Delivered at: Sydney

Delivered on: 14 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Oliver Richard Jones

Solicitors for the Applicant: Firmstone & Associates

Counsel for the Respondents: Mr N Swan

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Leave is granted to the applicant to rely upon the amended application filed on 4 September 2020.

2. The amended application is dismissed.

3. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

DATE OF ORDER: 14 October 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1499 of 2020

CVV20

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act1958 (Cth), in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 May 2020, affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the applicant a Protection visa.

2. The decision of the Tribunal has an erroneous date, in terms of the year, on the face of the Tribunal’s decision, where it refers to 2015. Beneath that erroneous date is a correct identification of the date, being 15 May 2020. The erroneous date is an obvious typographical error and has not been suggested to give rise to any relevant error, in respect of the decision-making process by the Tribunal.

3. The applicant is a citizen of Lebanon and claims to fear harm by reason of what he characterises as an ‘honour crime’ because of the crimes he has committed in Australia. 

4. The applicant arrived in Australia on 28 June 2011, and lodged an application for a Protection visa on 12 September 2019. On 14 October 2019, the Delegate refused to grant the applicant the Protection visa. On 14 October 2019, the applicant sought review before the Tribunal. The applicant was invited to and attended a hearing before the Tribunal on 6 February 2020, 21 February 2020 and on 26 February 2020, to give evidence and present arguments.

5. The Tribunal identified the background to the review application and also identified the relevant law, including in an attachment, incorporated by pagination, of the relevant law.

6. The Tribunal’s reasons identified in detail the background to the application and referred to the applicant as having been convicted of offences which included 19 counts of indecent assault against nine women who were customers of his hairdressing salon. The Tribunal’s reasons also identified that the applicant believes that he will be killed because his family in Lebanon have received threats from unidentified people to kill him, and that includes the daughter of one of his alleged victims, as well as Hezbollah, Syrian National Party (“SNP”), and ISIS. 

7. The applicant was found to be a Maronite Christian, born in a particular area in northern Lebanon.

8. The Tribunal identified a detailed summary of the applicant’s migration history and relevant events in relation to the applicant in respect to convictions in November 2016 and in December 2016, and the cancellation of his visa as a result of the convictions, and in September 2017, being convicted of 10 further accounts of indecent assault and two other offences connected to the commissions of those crimes,  and referred to applicant’s sentencing in November 2017 and identified that the hearing took place over three days. 

9. The Tribunal identified the source of the details of the convictions and sentence, being based on the sentencing judgments of Girdham J and Flannery J, and that they were summarised in the 2019 Tribunal bridging visa decision, which the applicant provided to the current Tribunal. The current Tribunal identified having found it to be an accurate summary of the applicant’s convictions and sentence and recorded that the Tribunal raised his convictions and sentence in the summary with the applicant at the hearing.

10. It is apparent from the transcript of the first day of hearing, that the Tribunal explained to the applicant that the Tribunal was making a completely fresh assessment of the applicant’s claims to meet the refugee criteria and/or in relation to complementary protection. At the time of that hearing, the Tribunal recorded:

    Ok so moving on to your criminal convictions because your claims stem from your criminal convictions here in Australia, so on the information that I have which includes a decision that was made by another Member of this Tribunal, Member Highland, she summarised the charges and convictions and your sentence, the sentence that was imposed, so I want to confirm that this is accurate. So in May 2013, you were charged with various offences including indecent assault, is that correct?

    The applicant responded, “Yes, sexual intercourse and common assault.” The Member then asked him:

    And some other charges that is including indecent assault so there were some others ok. And then I have the dates of 18 and 19 November 2016, 13 December 2016 and 8 September 2017 you were convicted of several counts of the offence of indecent assault, one count of an offence relating to taking and detaining a person and one count of offence relating to stalking or intimidating, is that correct?

    And the applicant responded, “Yes.”

11. The Tribunal then identified the sentence and non-parole period, with which the applicant agreed, and noted that bail had been refused when the applicant was charged, so that the applicant was in prison from November 2014 until November 2017.

12. The Tribunal, in para 46, identified that the applicant agreed that the summary accurately reflected his convictions and sentence. The Tribunal then stated as follows:

    The summary includes details of the acts of indecent assault committed by the applicant which fall within the umbrella term of sexual violence which encompasses rape, sexual assault, indecent assault and sexual harassment. The acts committed by the applicant, without the consent of the victims, included touching and squeezing the breasts of victims, rubbing his groin against victims, kissing victims, rubbing a victim’s hand against his erect penis, and touching the genital area of victims.

13. The ground of the amended application alleges apprehended bias by reason of the content of what is in para 46 of the Tribunal’s reasons that comprise of 251 paragraphs. The Tribunal’s reasons reflect a detailed consideration of the applicant’s claims and evidence and ultimately, the making of adverse findings, in respect of the credibility of the applicant, his brother and another witness. These were logical and rational reasons summarised by the Tribunal as supported by six grounds for those adverse credibility findings. None of those adverse credibility grounds related in any way to the Tribunal taking into account the applicant’s criminal conduct in Australia.

14. The Tribunal found that the applicant does not have a well-founded fear of persecution and is not a refugee as defined in s 5H(1) of the Act and did not meet the criteria in s 36 (2)(a) of the Act.  The Tribunal also found there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant would suffer significant harm.  

15. The Tribunal found that the applicant did not meet the criteria in s 36(2)(aa) of the Act, and affirmed the decision under review. 

Before the Court

1. The ground in the amended application is as follows:

   Ground 1

   The Tribunal made a jurisdictional error on the ground of apprehended bias.

   Particulars:

   a.The Tribunal referred at paragraph 46 of its decision to the Applicant's convictions for crimes against women and the detail of those crimes;

   b.The Tribunal referred at paragraph 46 of its decision to the fact that it had put to the Applicant the particulars of his convictions at the hearing before the Tribunal;

   c.The Tribunal found against the credibility of the Applicant, including at paragraph 52 of its decision;

   d.The Tribunal did not disavow having allowed the Applicant's convictions and the particulars of those convictions to play a part In its assessment of the Applicant's credibility;

   e.The Applicant's convictions were prejudicial to the Applicant's case for a protection visa and their use by the Tribunal grounds a reasonable apprehension of bias on the part of the Tribunal toward the Applicant's case and his credibility for the purposes of his case: AZC20 v Minister for Immigration [2020] FCCA 2317;

   f.The Tribunal's failure to disavow and, inferentially, the Tribunal's use of the Applicant's convictions in assessing his credibility contaminated the foundation of the Tribunal's credibility finding against the Applicant and were, therefore, material to the result: DTN16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1525 at [45]-[51];

2. Mr Jones, counsel on behalf of the applicant, contended that this is a case where applying the double ‘might’ test, and taking into account the possibility of subconscious effect, the Court should find that the Tribunal engaged in conduct that gives rise to  a reasonable apprehension of bias.  The kernel of the conduct upon which Mr Jones relies is para 46, to which the Court has referred above.

3. Applying the double ‘might’ test involves taking into account that the fair-minded lay observer would be aware of the nature of the applicant’s claim that the Tribunal was reviewing in the present case, and that the Tribunal was required to determine on the material before it whether the applicant met particular criteria for the grant of a protection visa or in relation to complementary protection. In that regard, the fair-minded lay observer would also take into account that the applicant himself had identified that he had been a subject of convictions, which he had disclosed in answer to question 73 of the Protection visa application, relevantly as follows:

   Assault with act of indecency (x 10)

   take/detain with intent to obtain advantage, stalk/intimidate, intend fear physical etcetera harm (personal assault with act of indecency) (x 9).

4. The fair-minded lay observer, in relation to the apprehended bias test, would also, in the present case, be aware that the applicant’s claimed fear of harm in terms of an honour killing was directly linked by the applicant to the convictions in respect of the criminal conduct he engaged in within Australia.

5. The criminal conduct the applicant had engaged in in Australia cannot, in those circumstances, be said to be irrelevant, and the fair-minded lay observer would appreciate that what the Tribunal has done, in para 46, is to engage in an abridged summary of the characterisation of that criminal conduct. A fair-minded lay observer would, in these circumstances, understand that it was necessary for the Tribunal to take into account, in considering whether the applicant met the relevant criteria for a protection visa, given the claims in this review, to consider the characterisation of that criminal conduct.

6. There is one term used by the Tribunal, which reflects a lay description of the offence of sexual intercourse and that is the term “rape”.  The applicant himself admitted in the course of the Tribunal hearing that he had been convicted of an offence in relation to sexual intercourse. Use of the lay-term “rape”, is not of itself conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of the matter on its merits.

7. Nor is the summary by the Tribunal, found in para 46, conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. 

8. The Court has had the benefit of the tender of the transcript, which the Court has read, which is entirely consistent with the applicant having a real and meaningful hearing before the Tribunal. Further, the Tribunal’s very detailed reasons reflect an active intellectual engagement with the whole of the applicant’s claims and evidence.   

9. The reasonably informed fair-minded lay observer would also take into account that, in order to evaluate the applicant’s claims in terms of his fear of persecution, in determining whether the applicant met the real chance or real risk of serious harm or significant harm, the Tribunal would be required to understand the nature of the criminal conduct the subject of which the applicant is advancing his claim.

10. In those circumstances, the reasonably informed fair-minded lay observer would be aware that the Tribunal would need to identify and summarise that criminal conduct. Paragraph 46 reflects a fair summary of that criminal conduct. There is no inaccuracy or inconsistency or overstatement of the nature of that criminal conduct in para 46, of a kind that might give rise to the Court finding that the double ‘might’ test, in respect to apprehended bias, might be made out.  

11. Notwithstanding Mr Jones’ skilful submissions, that this is a case where the subconscious effect of the reference to the conduct is what gives rise to the meeting of the requirements of the test, this fails to take into account that it was the applicant’s claim to fear harm because of that criminal conduct that the Tribunal had to engage with. Moreover, it is apparent that the Tribunal did not engage with the detail of the criminal conduct in a way that reflects an over-focus on the nature of that criminality to support the assertion of a subconscious effect, so as to meet the double ‘might’ test.

12. Indeed, the summary by the Tribunal is not one that a fair-minded lay observer would regard as more grave and serious than what the applicant had himself identified in answer to question 73 in his application for the protection visa. 

13. The Court does not accept Mr Jones’ argument that the Tribunal’s summary reflects a graver characterisation of the criminal conduct than that found by the applicant, in the number of offences that he identified in answer to question 73 in his visa application.

14. According to the circumstances of the present case, a reasonably informed fair-minded lay observer would be aware that it was relevant for the Tribunal to take into account, the nature of the criminal conduct and that the summary by the Tribunal reflects part of the necessary reasoning process for the Tribunal to evaluate the applicant’s claims.

15. In these circumstances, the Court finds that the conduct relied upon by the applicant, being the content and summary of para 46, is not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

16. No jurisdictional error, as mentioned in the amended application, is made out. Accordingly, the amended application as discussed.  

I certify that the preceding thirty-one (31) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 14 October 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 13 November 2020