DCB19 v Minister for Immigration
[2020] FCCA 513
•9 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DCB19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 513 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 422B, 424A, 424AA, 425, 438 |
| Cases cited: AHD17 v Minister for Immigration & Anor [2019] FCCA 2545 Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 Sun v Minister for Immigration (1997) 81 FCR 71 SZNJQ v Minister for Immigration [2010] FCA 138 |
| Applicant: | DCB19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2069 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 March 2020 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2020 |
REPRESENTATION
| Applicant appearing in person |
| Solicitors for the Respondent | Mr J. Dadgar of HWL Ebsworth |
ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 3 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2069 of 2019
| DCB19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
(revised from the transcript)
Background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal). The decision was made on 25 July 2019. The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa. The background facts relating to the applicant’s claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 24 February 2020.
The applicant is a male citizen of China who first arrived in Australia on 20 April 2007 as the holder of a Student (Class TU) (subclass 571) Student visa. The applicant's visa expired on 15 March 2010, following which he continued to remain in Australia as an unlawful non-citizen.
On 22 May 2015, the applicant applied for a Protection (Class XA) (subclass 866) visa (Protection visa).[1] In a statement accompanying his visa application, the applicant stated, among other things, the following:
i)his father made arrangements for him to study in Australia through a person named Mr L[2] who was an employee of the Justice Bureau;
ii)the applicant's father paid Mr L a sum of money and Mr L organised the visa application and relevant documents;
iii)the applicant arrived in Australia on 20 April 2007 and his father arrived on 24 July 2007. After arriving, the applicant and his father learnt they had been deceived by Mr L;
iv)the applicant suffered financial hardship and had to cease his studies in Australia;
v)the applicant's father reported Mr L when he returned to China;
vi)Mr L was subjected to an internal disciplinary process. As a result of the investigation, Mr L's son became a drug addict and was killed in a car accident whilst drug affected; and
vii)Mr L has since been cleared of any wrongdoing and has resumed his position with the Justice Bureau. Mr L blames the applicant's father for his son's death and has vowed to take the life of the applicant as retribution. The police have tried to arrest the applicant's parents and they now live in hiding. The applicant's uncle was also detained and tortured for seven days.[3]
[1] CB 7
[2] The name has been anonymised
[3] CB 150-151 at [4]
On 7 July 2016, a delegate of the Minister refused to grant the applicant's Protection visa as he was not satisfied the applicant was a refugee as defined by section 5H(1) of the Migration Act 1958 (Cth) (Migration Act). Accordingly, the delegate was not satisfied the applicant met the criteria pursuant to ss.36(2)(a) or 36(2)(aa) of the Migration Act.
Tribunal decision
On 18 July 2016, the applicant applied to the Tribunal seeking review of the delegate's decision.[4]
[4] CB 118
On 25 March 2019, the Tribunal invited the applicant to a hearing on 26 April 2019.[5] The hearing was subsequently rescheduled to 1 May 2019.[6]
[5] CB 130
[6] CB 135
On 1 May 2019, the applicant appeared before the Tribunal to give evidence and present arguments. The applicant was assisted by a Mandarin interpreter and his authorised representative.[7]
[7] CB 141
On 25 July 2019, the Tribunal affirmed the decision not to grant the applicant a Protection visa. In coming to its decision, the Tribunal did not find the claims of the applicant to be credible or plausible. The Tribunal considered the applicant's claims of fearing harm in China to be unpersuasive, and his evidence unforthcoming and at times inconsistent. For example, at [31] of the Tribunal's reasons, the applicant was unable to adequately explain why it took him eight years to apply for a Protection visa.
These proceedings began with a show cause application filed on 13 August 2019. The applicant continues to rely on that application. The grounds, without the particulars relating to them, are:
1. I felt the Administrative Appeals Tribunal (hereinafter called “Tribunal”) wrongly represented my claims and evidences, and unfairly refuted my claims and evidences based on these misrepresentations.
2. I felt the Tribunal was biased over the court of my Protection Visa case and their bias led them to come to unfair conclusions about my claims and evidences. The Tribunal was not open to my claims and evidences, and I believe the Tribunal always intended to against my protection visa case.
3. I do not believe I was given a fair opportunity at seeking protection.
The particulars are somewhat discursive and amount substantially to argument. The application is supported by a short affidavit filed with it, which I received.
I also have before me as evidence the court book filed on 30 October 2019 and a supplementary court book filed on 24 February 2020. The supplementary court book relates to a purported certificate issued under s.438 of the Migration Act. This was dealt with by the Tribunal at [7] of its decision.[8] The issue of the certificate was not raised by the applicant. Having examined the certificate and the documents purportedly covered by it, it is clear that the Tribunal was correct in treating the certificate as invalid and the documents purportedly covered by it as irrelevant to the review.
[8] CB 151-152
I invited oral submissions from the applicant this afternoon in relation to his application before the court. The applicant contends that the Tribunal lacked evidence to reject his protection claims and made its decision based on its own judgement. The applicant complains that documents he submitted in support of his own case were not considered or not considered carefully. He considers that he has been treated unfairly on the basis of an anti-Chinese bias.
I disagree. As I put to the applicant, the Tribunal gave detailed and in my view, logical consideration to his somewhat elaborately constructed claims for protection. I can discern from the decision record nothing that would support a claim of apprehended, let alone actual bias. In my view, the adverse credibility conclusions reached by the Tribunal were open to it on the material before it. I otherwise agree with the Minister’s submissions concerning the applicant’s grounds of review.
Ground 1
This ground asserts that the Tribunal 'wrongly represented' the applicant's claims and evidence, and thereby 'unfairly refuted' them.
It appears the applicant is dissatisfied with the Tribunal's findings. In substance, he now seeks impermissible merits review. Further, the applicant does not provide any (meaningful) particulars in support of this ground.
The Tribunal considered the applicant's evidence and submissions, however was unpersuaded as to their veracity. The Tribunal found the applicant's evidence to be at times unforthcoming, 'made up on the go'.[9]
[9] See CB157 at [27] and inconsistent see CB 159 at [30].
The questions put to the applicant by the Tribunal derived from the documents and evidence he submitted. The inconsistencies in the applicant's evidence was of concern to the Tribunal which is reflected in its reasoning. At no time did the applicant claim the Tribunal wrongly represented his claims.
Ground 2
This ground asserts that the Tribunal was biased.
The particulars advanced by the applicant allege the Tribunal "had a very biased view of the entire situation" and "did not review my case with an open and unbiased mind".
A finding of bias is a serious matter.[10] Actual bias exists where the mind of the decision-maker is one that is "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented".[11] Establishing actual bias involves a heavy onus on the applicant whose claims of bias must be "distinctly made and clearly proved".[12]
[10] Sun v Minister for Immigration (1997) 81 FCR 71 at 127 per Burchett J
[11] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 (Jia) at [72]
[12] Jia at [69]
With respect to apprehended bias, the threshold is not as high. Apprehended bias will exist when a fair-minded lay observer might reasonably infer that the decision-maker might not bring an impartial mind to the question to be decided.[13]
[13] Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982 at [27]
Having considered the evidence before it, the Tribunal was of the opinion the applicant fabricated his claims. It was open to the Tribunal to make such a finding. Disbelief of every aspect of an applicant's claim is insufficient to establish actual or apprehended bias.[14]
[14] Sun at [134]
At [19], the Tribunal considered the applicant's submission that he planned on studying English. The Tribunal also considered the applicant's submission that he planned on studying mechanical repair. However the Tribunal did not understand how the two were related. The Tribunal stated that this suggested the applicant had travelled to Australia for reasons other than genuine study. Though it can be argued in favour of the applicant that a command of the English language is relevant for vocational studies, this finding is not material in light of the cumulative credibility concerns held by the Tribunal.
Ground 3
By this ground, the applicant contends that he was not "given a fair opportunity at receiving protection even though I have genuine fears of returning to China". The applicant does not provide any further particulars. In relation to a review conducted under Pt 7 of the Act, the common law rules of procedural fairness are excluded by s.422B of the Migration Act. The provisions of Div 4 of Pt 7 apply as an exhaustive statement of the natural justice hearing rule.[15]
[15] s.422B(1) Migration Act.
The applicant was invited to appear before the Tribunal under s.425 of the Migration Act. The applicant attended and was represented at the Tribunal hearing which lasted for approximately 2 hours and 30 minutes. At the hearing, the Tribunal discussed the issues that were dispositive to the review.[16]
[16] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [33]
The Tribunal complied with s.425 of the Migration Act by giving the applicant a 'real and meaningful' opportunity to participate in the hearing and give evidence in support of his application.[17]
[17] cf. Minister for Immigration v SCAR (2003) 128 FCR 553
The Tribunal stated that pursuant to s.424AA of the Migration Act it discussed inconsistencies with the applicant regarding the money the applicant's father had borrowed.[18] However, inconsistencies in an applicant's accounts are not, of themselves, 'information' for the purposes of ss.424A or 424AA of the Migration Act.[19] Accordingly, the Tribunal was not obliged to utilise s.424AA to discharge any obligation pursuant to s.424A(1) of the Migration Act. In any event, even if the Tribunal utilised s.424AA unnecessarily, it does not amount to legal error.[20]
[18] CB 155 at [22]
[19] see SZBYR v Minister for Immigration [2007] HCA 26 at [18]
[20] see AHD17 v Minister for Immigration & Anor [2019] FCCA 2545
After considering all the evidence, the Tribunal was not satisfied that the applicant's claims were credible. There were no breaches of the Tribunal's obligations under Div 4 of Pt 7. Accordingly, it follows that this ground would fail.
Further, and in the absence of a transcript establishing otherwise, it is open to infer that the Tribunal complied with its obligations, if any, in respect of s 424AA.[21]
[21] SZNJQ v Minister for Immigration [2010] FCA 138 at [38] per Rares J
I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will accordingly order that the application be dismissed under rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant did not make any submissions as to costs, but reiterated his assertion that the tribunal decision is vitiated by bias.
I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3737 in accordance with the Federal Circuit Court Rules.
I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 13 March 2020
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