DIM16 v Minister for Immigration
[2018] FCCA 3980
•6 November 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIM16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3980 |
| Catchwords: MIGRATION – Application for review of Administrative Appeals Tribunal decision – whether the applicant was denied procedural fairness – whether the Tribunal failed to take into account a relevant consideration – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.36,65, 424A, 425,476 |
| Cases cited: SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834 WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 Applicant WAEE vMinister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593; (2003) 75 ALR 630 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 233 FCR 136; (2001) 194 ALR 244 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088; (2003) 197 ALR 389; (2003) 73 ALD 321 MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR1; (2004) 219 ALR 27 Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 “VAS” v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480; (2012) 205 FCR 227; (2012) 127 ALD 320; (2012) 219 IR 382 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; (2016) 253 FCR 496; (2016) 70 AAR 413; (2016) 253 FLR 496 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 231 ALR 592; (2006) 93 ALD 300 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 111 ALD 15; (2009) 83 ALJR 1123; (2009) 259 ALR 429 |
| Applicant: | DIM16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3068 of 2016 |
| Judgment of: | Judge Nicholls |
| Hearing date: | 6 November 2018 |
| Date of Last Submission: | 6 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 November 2018 |
REPRESENTATION
| Applicant: | In person |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
| Appearing for the Respondents: | Ms M Butler |
ORDERS
The application made on 8 November 2016 is dismissed.
The applicant pay the first respondent’s costs set in the amount of $5000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3068 of 2016
| DIM16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Ex-Tempore; Revised From Judgment)
(As Corrected)
This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 8 November 2016 seeking review of the decision of the Administrative Appeals Tribunal (“the Tribunal”) which, on 14 October 2016, affirmed the decision of the Minister’s delegate (“the delegate”) to refuse a protection visa to the applicant.
The evidence before the Court is contained in a bundle of relevant documents filed and tendered by the Minister (“the Court Book” – “CB”, “RE1”).
Background
The applicant is a citizen of the People’s Republic of China (“PRC”) (CB 14). The applicant first arrived in Australia on 25 April 2004 on a student visa (CB 14 and CB 15). He applied for the protection visa which was received by the Minister’s department on 21 July 2014 (CB 1 to CB 35). The applicant’s claims to fear harm were contained in a written statement attached to his protection visa application (CB 28 to CB 30).
The applicant claimed that he feared harm on return to China on the basis of his Falun Gong religion. The applicant claimed that his father began practising Falun Gong in 2005, and in 2006, the applicant brought his father “Falun Gong materials” to China from Australia (CB 28). The applicant claimed that his father could not obtain any of the Falun Gong materials in China as it was characterised as an “anti-government cult” (CB 28).
The applicant then claimed that in 2008 his father was “forcibly” taken from his home and sent to a “labor camp” for a year, as the police found his father to be a Falun Gong “leader” (CB 28 to CB 29). The police also seized the material that the applicant had sent his father and “knew” it was the applicant who had sent it, and asked that he return to China and “surrender” himself “as soon as possible” (CB 28 to CB 29).
The applicant claimed to have personally become interested in Falun Gong after he finished studying in Australia (CB 29). He then became a believer in Falun Gong, and sent his father Falun Gong materials from Australia (CB 29).
The applicant claimed that in 2013 his father was caught practising Falun Gong and was “tortured and brainwashed” (CB 29). The police also found the material that the applicant had been sending to his father in relation to Falun Gong. His father was released after three months when his mother paid a fine. However, he was required to report to the police regularly. The police “often” came to the family home and then started to enquire about the applicant’s “information” (CB 29).
The applicant feared harm from the Chinese authorities on return to China for these reasons (CB 28 to CB 30).
The applicant attended an interview with the delegate on 10 April 2015 (CB 62.4). The delegate refused the application on 8 May 2015 (CB 55 to CB 76). The applicant applied for review to the Tribunal on 5 June 2015 (CB 77 to CB 78). The applicant was invited to, and attended, a hearing before the Tribunal on 12 October 2016 (CB 84 to CB 90). The Tribunal affirmed the delegate’s decision on 14 October 2016 (CB 94 to CB 106).
The Tribunal discussed both the applicant’s father’s practice of Falun Gong and the applicant’s practice of Falun Gong with the applicant at the hearing. With regard to his own practice of Falun Gong, the Tribunal put to the applicant that his practice “seemed to be very minimal and his understanding of Falun Gong teachings very basic”, and based on his own evidence, it appeared that “there was no real risk that he would be persecuted as a Falun Gong practitioner, and that his main concern was about the materials he sent to his father” ([40] at CB 100) The Tribunal stated that the applicant “acknowledged this was the case” ([40] at CB 100).
The Tribunal noted with the applicant at the hearing his delay of over 6 years in applying for a protection visa after his father’s first arrest ([41] at CB 101). The applicant first responded that he did not know “that was an option”, but upon further questioning by the Tribunal, the applicant said that “he could not explain and apologised to the Tribunal” ([41] at CB 101). The Tribunal put “significant weight” on the applicant’s delay in making his application for the protection visa and considered that it reflected “poorly” on the credibility of his claims to fear harm in China ([49] at CB 102).
The Tribunal found that on the applicant’s own evidence, his practice of Falun Gong was “minimal”, he only practiced one exercise for “5-6 minutes”, he only practiced in his own home and “had never practised in public and did not intend to do so” ([50] to [51] at CB 103). The Tribunal found that even if the applicant were to continue his practice on return to China, there was no real risk that the applicant would come to attention of the Chinese authorities for this reason.
Regarding the applicant’s father’s claimed arrests and detentions, the Tribunal found the applicant’s evidence to be “vague and unpersuasive”. The Tribunal also found it “implausible” that the applicant would have continued to send Falun Gong materials to his father in China, after his father’s arrest and detention.
As set out earlier, the Tribunal also put significant weight on the applicant’s delay in applying for a protection visa, and did not find the applicant’s evidence to be credible regarding his father’s arrests and detentions, or that the applicant took prohibited material to China in 2007, or at any other time ([58] – [61] at CB 104).
The Tribunal found that there was no real risk or chance that the applicant would suffer harm on return to China as a result of being a family member of someone identified as a Falun Gong practitioner ([62] at CB 105). Further, the Tribunal found that there was no real risk to the applicant on the basis of him being a returned asylum seeker ([66] to [73] at CB 105 to CB 106). In this regard, the Tribunal considered country information, and that the applicant had renewed his passport in December 2008, the same year he claimed his father had been arrested. This demonstrated to the Tribunal that he was not of adverse interest to the Chinese authorities ([66] to [73] at CB 105 to CB 106).
The Tribunal found that the applicant did not meet either criteria for the grant of the visa (s.36(2)(a) or s.36(2)(aa) of the Act) ([74] to [77] at CB 106).
Before the Court
The applicant made his application to the Court on 8 November 2016. The parties first appeared before a Registrar of the Court on 16 March 2017, and various orders were made by consent, including that the applicant be given the opportunity to file any amended application and further evidence by way of affidavit. The applicant filed no further documents in this regard.
The parties next appeared before a Registrar of the Court on 4 May 2017, and various orders were made including that the matter be set down for final hearing, and that the parties file written submissions before the hearing. The applicant filed no written submissions. The Minister filed written submissions on 30 October 2018.
At the final hearing, the applicant appeared in person with the assistance of an interpreter in the Mandarin language. The Minister was represented by a solicitor.
The Application to the Court
The grounds of the application to the Court are in the following terms:
“1. The decision involved a jurisdictional error of law to the fact of the case was found by the Administrative Appeals Tribunal.
The applicant was curious about Falun Gong through his father’s experience and began to practice five exercises. He obtained new materials and sometimes transfers these to his father by mail or the Internet. In November 2013 his father was caught practising Falun Gong in an abandoned factory with eight practitioners. The police searched his home and found books, newspapers and other materials. His father was tortured and brainwashed and forced to write a statement of penitence. After his release his father has been required to report to the police every week and the police often check his home. His parents have told the applicant not to return to China because they know he will be persecuted like his father.
2. The Tribunal member refused to accept that the applicant has a well-founded fear of persecution on convention reasons. The Tribunal failed to take a relevant consideration into account in exercising its power. The Tribunal’s finding was based without any basis which deprived the applicant to receive natural justice.
In July 2006, the applicant returned to China to visit his parents and took some Falun Gong materials from Australia to China for his father. In September 2008 when the applicant’s father and other practitioners were practising Falun Gong at home they were reported and police came to his father’s home and confiscated all the Falun Gong materials including CDs and books. They took his father forcibly to the police station. As his father had been arrested in his own home they accused him of being the leader.
3. The Applicant was denied procedural fairness in connection with the making of the decision. The Applicant was not provided with an opportunity to make explanation in the hearing. The Tribunal have not made any queries in regards to the documents submitted by the applicant.
The police knew it was the applicant who had brought Falun Gong materials to China and asked him to return to China to surrender himself as soon as possible. His father was sent to a labour camp for one year. The police knew that the applicant had brought the Falun Gong materials to China and he would be arrested.
4. The Tribunal decision was unjust and was made without taking into account the full gravity of the Applicant’ circumstances and the consequences of the claim. The Tribunal finding was based on irrelevant issues which led to jurisdictional error.
The applicant intended to return to China to care for his parents when the situation in China became better and he applied for a new passport. The applicant did not apply for a protection visa earlier as he intended to return to China when the situation became good.”
[Errors in the original.]
The Oral Complaints Before the Court
The grounds of the application to the Court are essentially four paragraphs in what can be described as a narrative form. I will address each of the grounds below.
It is clear that the applicant before the Court, is not a lawyer. He demonstrated little understanding of the purpose of the hearing before the Court.
The applicant submitted that the grounds of his application were written with the assistance of others, and that they contained his “own ideas”.
Notwithstanding that the applicant asserted in the very first sentence of the grounds that the Tribunal’s decision involved a jurisdictional error of law, it was quite clear that the applicant had little understanding of what that really meant. For that reason I sought to explain to the applicant the purpose of the hearing today, and that, in effect, the focus of the Court had to be on whether the Tribunal made any “legal mistake”.
Having heard that, the applicant made a number of complaints, about the Tribunal’s decision. The complaints did not necessarily appear to relate to the grounds of the application that he had said he had caused to be drafted based on his ideas.
In any event, I did consider whether any of the complaints made by the applicant orally before the Court provided any basis or, indeed, any indication that the Tribunal fell into jurisdictional error. However, I could not find that the applicant’s oral complaints provided any basis to argue jurisdictional error on the part of the Tribunal.
First, the applicant complained that the Tribunal appeared to have some “doubts against” him. He claimed that these were “not conveyed” to him at the hearing.
As I have already mentioned, the applicant has had the opportunity, for some time to file evidence in these proceedings. He has not done so. He has not filed any transcript of the Tribunal’s hearing. There is, therefore, only one evidentiary source before the Court, for what occurred at the hearing. That is the Tribunal’s references as to what occurred as set out in its decision record.
Those references make clear that at the hearing, the Tribunal did explore all of the applicant’s claims, and aspects of his claims, to fear harm if he were to return to China. Contrary to the applicant’s assertion the Tribunal did put its concerns to him at the hearing. The Tribunal’s obligation in relation to a fair hearing is not only to invite the applicant to a hearing, but to provide an applicant with a meaningful opportunity to address the issues in the review. That is, issues that were not live issues as a result of the delegate’s decision (SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834). On the evidence before the Court, the Tribunal complied with that obligation.
In any event, and further, as the Minister correctly submitted, the Tribunal is not obliged to give the applicant a “running commentary” of what it thinks about his evidence, as he gives his evidence. The Tribunal does not have to challenge each, and every, point that an applicant makes, so long as the applicant is given the opportunity to explain the matters relevant to the issues in the review. As I said, there is nothing in the evidence before the Court to indicate that the Tribunal failed in this regard.
I also note, although not relevant to the Tribunal hearing, the Minister’s submission that s.424A of the Act was not enlivened in relation to the Tribunal’s view of the applicant’s own evidence to it.
Second, the applicant complained before the Court, or appeared to complain, that he was “not prepared” for the Tribunal “interview”, that is, the Tribunal hearing. As the Minister again correctly submitted, there is no evidence that he raised any such difficulty with the Tribunal at the hearing or, indeed, subsequently.
On the evidence, the applicant was given the opportunity to give his evidence and make his explanations. Simply because the Tribunal found his explanations to be unsatisfactory, does not lead to any conclusion that he was “unprepared”, or that the Tribunal failed in its procedural fairness obligations to the applicant. In any event, as I said, absent any complaint to the Tribunal, and absent any failure by the Tribunal to provide a meaningful opportunity to the applicant, the applicant’s complaint that he was “not prepared”, in the circumstances, does not reveal jurisdictional error on the part of the Tribunal.
Third, the applicant also subsequently stated that he was “not prepared” for the hearing. It was not clear whether he meant the hearing before the Court as distinct to the Tribunal hearing.
If the former, the applicant did not otherwise seek any adjournment of the hearing today. In any event, I note as previously mentioned, given the occasions when the applicant appeared before a Registrar of the Court, he has had ample opportunity to seek, and obtain, any legal advice, or representation. The applicant appeared before a Registrar on 16 March 2017 and again on 4 May 2017. I also note that there is, of course, no right to legal representation in matters of this type. If he did not wish or was unable to obtain legal advice or assistance, he has had ample time to otherwise prepare himself for the hearing today.
Fourth, the applicant also complained orally before the Court that the Tribunal did not “thoroughly” assess his claims. On the evidence that is before the Court, the Tribunal did consider all of the applicant’s claims. For example, the applicant’s claims to protection were contained in the written statement that he provided with his protection visa application, in the delegate’s report of the interview that was conducted with the applicant, and in what the applicant told the Tribunal at the hearing.
Based on the material that is in evidence before the Court, the Tribunal did consider all of the applicant’s claims. What is left, therefore, by the applicant’s assertion that the Tribunal did not “thoroughly” assess his claims, is simply an expression of grievance by the applicant that the Tribunal did not find positively for him.
Fifth, the applicant complained about what he said was the Tribunal’s reliance on the matter of his passport. It appeared to be that the applicant disagreed with the way the Tribunal approached the matter of his renewing his passport with the Chinese authorities.
I have particular regard here to [67]-[69] of the Tribunal’s decision record (CB 105), where the Tribunal did address the matter of the applicant’s passport. It is clear that the Tribunal’s reasoning was that the applicant, who claimed to fear harm from the Chinese authorities, successfully renewed his passport with those same authorities in December 2008, and that the passport issued to him was not due to expire until December 2018.
That is, he was given a valid passport by those very authorities against whom he claimed to fear harm, that was valid for 10 years from December 2008. The Tribunal found that the applicant renewed his passport after his father was allegedly arrested and detained in 2008. The Tribunal found that as his passport was renewed he was clearly not of adverse interest to the authorities, despite his claims that they were aware that he had previously sent prohibited materials to China, and wished to question him about his Falun Gong practice.
The applicant also appeared to complain before the Court that the Tribunal had made some error in the dates relating to the passport and the dates of his father’s claimed arrest. However he also confirmed, as is clear from the evidence otherwise before the Court, that his father was arrested and detained in September of 2008.
The question is whether it was reasonably open to the Tribunal to make the various findings of fact that led to that conclusion. The evidence before the Court reveals that it was reasonably open to the Tribunal to make the findings of fact that it did in relation to the applicant’s passport renewal and the events relating to his father.
In his protection visa application the applicant clearly stated that the date of issue of the passport, which was a Chinese document, was issued on 12 December 2008 and was due to expire on 11 December 2018.The applicant confirmed to the Court, and indeed on the evidence before the Court there is no basis to question it, that he prepared his application for the protection visa. At CB 14 a part of that application is reproduced. At item 30 (CB 14) the applicant has provided details of what was at the time his current travel document.
In light of that evidence, it was reasonably open to the Tribunal to make the findings of fact that it did.
In any event, I note that with his application for the protection visa, the applicant also provided photocopies of his passport. At (CB 44) the relevant page from his passport with his photograph, clearly shows that the date of issue is 12 December 2008, and the date of expiry is 11 December 2018.
It was also reasonably open to the Tribunal to find, given the applicant’s own statement and his own evidence, that the date of the renewal of the passport was after the date when the applicant first claimed that his father had been detained by the Chinese police and, importantly, as he said in his own statement, was the date from which the Chinese authorities knew of his involvement in the sending of Falun Gong materials to China.
In all, therefore, none of the applicant’s oral complaints before the Court reveal jurisdictional error on the part of the Tribunal.
The Grounds of the Application to the Court
I now turn to the grounds of the application before the Court. What must be said is that the applicant’s grounds are a mixture of a repetition of his claims to fear harm, as they were put before the Tribunal, and complaints that on the evidence before the Court can only properly be described as formulaic expressions of grievance with the Tribunal’s findings, and its affirmation of the delegate’s decision.
Despite the Court’s attempt to focus the applicant’s mind, and his attention, on the grounds of the application, the applicant has put nothing to the Court such as to say that he has been able to provide any basis on which to say that the grounds have any merit (WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35]).
Ground one simply asserts that the Tribunal’s decision involved jurisdictional error. No particulars, or explanation, have been provided by the applicant. As it stands, and as the Minister correctly submits, a bare assertion of jurisdictional error means that the ground cannot, nor is it capable of, establishing jurisdictional error. It is, in fact, without merit.
The remainder of ground one, as previously mentioned, is a restatement of the applicant’s claims before the Tribunal. Claims which the Tribunal, on the evidence before the Court, considered, gave reasons, and made findings that were reasonably open to it and which were probative of the evidence that was before it. To the extent that the Tribunal made findings of fact adverse to the applicant’s credibility, the Tribunal provided cogent and intelligible reasons for those findings.
Ground two is a restatement of some of the applicant’s claims for protection. Of themselves, these also do not reveal jurisdictional error in the Tribunal’s decision. However, the ground also contains a number of assertions being in the nature of complaints about the Tribunal’s decision.
One, that the Tribunal failed to take into account a relevant consideration. It is the case that a Tribunal may, indeed, fall into jurisdictional error if it fails to take into account a relevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (“Peko-Wallsend”)).
However, in the current case, the applicant does not identify and has not identified, what that relevant, or those relevant considerations may have been. At best, drawing upon what the applicant otherwise told the Court, it would appear that the “relevant consideration” is that the Tribunal should have found positively for him. If that is the case, then there is no merit in this complaint. What the applicant’s ground fails to address, or indeed simply ignores, is that the Tribunal does not have to uncritically accept his claims or evidence Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The obligation on the Tribunal is to consider all the claims and the evidence in which claims are presented and, indeed, for that matter any submissions made to it that may contain claims to fear harm (see: Applicant WAEE vMinister of Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184, Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; MZWPD v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1095 at [69] per Weinberg J and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263). On the evidence the Tribunal did consider all of the applicant’s claims (see [20] at CB 97 to [41] at CB 101). There is nothing to show that anything was overlooked.
In the circumstances, it would appear that the applicant’s real complaint is that the Tribunal should not have found adversely to his credit. However, the Tribunal’s comprehensive and clear findings, including its findings on credibility, were all reasonably open to it to make on what was before it. The Tribunal gave cogent reasons in explaining its findings and reasons that were probative of the material before it.
Two, the applicant also asserts in the ground that the Tribunal’s finding was made without any “basis”. If this is an assertion that the Tribunal made its decision without any evidentiary foundation, that is, as the Minister submits, that the complaint is a “no evidence” complaint, then on the evidence that is before the Court, such a complaint cannot be made out.
As the Minister submits, for any such argument to succeed, the applicant must show that there was “no evidence” before the Tribunal on which its finding was based (Australian Broadcasting Tribunal v Bond and Ors (1990) 170 CLR 321 at 355, per Mason CJ). Even slight, or, as is sometimes said, a “skerrick” of evidence, is sufficient to defeat this complaint “VAS” v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [18]-[19] and Shop, Distributive and Allied Employees Association v National Retail Association (No 2) [2012] FCA 480 at [31].
In any event, on the evidence, there was ample evidence before the Tribunal on which to base its conclusion, and the findings that inform that conclusion. This was country information to which it had regard, and the applicant’s own evidence and statements. Simply because the Tribunal found adversely to the applicant does not mean that there was no evidence before it on which to base its conclusion.
In the current case, the Tribunal’s credibility findings were all reasonably open to it, and arose from the evidence before it, to a large part that was the applicant’s own evidence.
Finally, as the Minister submits, the Tribunal was not obliged to “disprove” the applicant’s claims (CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146 at [65]). It was for the applicant to provide sufficient material and evidence such that the Tribunal could be satisfied that the protection visa must be granted (s.65 of the Act).
Three, the ground also asserts that the applicant was denied natural justice. As with the remainder of the ground, if not all the grounds of the application, this complaint is also without merit.
In context, this complaint appears to be no more than a complaint that the applicant was denied natural justice because he would suffer harm for the reasons that are set out in the remainder of ground two. This misunderstands the character of the concepts at law of “natural justice” or “procedural fairness”.
Procedural fairness, in the current context, is concerned with the conduct, and the process, adopted by a decision-maker, not the outcome SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [25]. So if the applicant is complaining that the denial of natural justice or procedural fairness was because of the conclusion reached by the Tribunal, that is not an appropriate complaint in relation to a charge of a breach of natural justice or procedural fairness.
In the current case, as I said earlier, the applicant was invited to a hearing pursuant to s.425 of the Act. He gave evidence to the Tribunal. He was assisted by an interpreter in the relevant language. On the only evidence that is available to the Court, he was given the opportunity to address the issues in the review. The applicant has not taken up the opportunity given to him by a Registrar of the Court, to provide a transcript of the Tribunal hearing. On the only evidence before the Court, he was given a meaningful opportunity to give his evidence and make his arguments.
In all, ground two is not made out.
Ground three, again, is a collection of complaints which, in effect, seek to press the “truth”, or what the applicant says is the “truth”, of his claims before the Tribunal. A number of elements need to be made clear.
One, the ground asserts that the applicant was not provided with an opportunity to make his “explanation[s]” at the hearing. As I have already found, the evidence does not support such a complaint. The evidence before the Court reveals that he was given such an opportunity. Simply because the Tribunal was not persuaded by the applicant’s evidence, or his explanations, does not reveal a failure of procedural fairness.
Two, ground three also asserts that, in effect, the Tribunal failed to make further inquiries about the documents that the applicant said he had submitted to the Tribunal. The applicant, again, repeats in the ground the claim that he made before the Tribunal, that the police in China knew that he had brought Falun Gong materials to China.
As the Minister correctly, in light of the evidence, submits, the applicant did not provide any documents to the Tribunal for its consideration. However, the applicant had provided documents to the Minister’s delegate. But, in any event, there is no general obligation at law on the Tribunal to make inquiries about documents that the applicant gave to the Tribunal or, indeed, anything else, other than in certain rare circumstances, as explained by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; [2009] HCA 39 at [25]. On the evidence, this is simply not such a case.
There is nothing in the evidence before the Court to say that there was an easily ascertainable fact, that was critical to the review, and that the Tribunal failed to pursue it. In any event, it cannot be said that the Tribunal found adversely to the applicant’s credit, simply because of the documents, themselves.
The Tribunal found adversely to the applicant’s credit largely because of his own evidence about those documents and, indeed, about claimed events in China. In that sense, the Tribunal did make inquiries at the hearing. It made inquiries of the only person who could give evidence about his conduct, and the documents, and his motives for his claimed conduct. That is, the Tribunal gave the applicant the opportunity to explain his actions. It considered the evidence. There was nothing in the circumstances to oblige it to make further inquiries.
If the applicant in his ground seeks to complain that the Tribunal should have made inquiries in China about the Falun Gong documents that he said he sent, and took, to China, with great respect to the applicant, that cannot be taken as a serious contention. It cannot be that he complains that the Tribunal should have made inquiries about the Falun Gong documents with the police in China. That is, with the very agents of the authorities in respect of whom the applicant otherwise claims to fear harm if he were to return to China.
In all ground three is not made out.
Ground five again makes a series of complaints unsupported by the evidence before the Court.
One, the ground asserts that the Tribunal’s decision was unjust and made without taking into account the full gravity of the applicant’s circumstances and the consequences of his claims.
Again, in the circumstances, the applicant’s complaint really is that the Tribunal should have found favourably for him. There is no such obligation on the Tribunal to do so (Attorney-General (NSW) v Quin [1990] HCA 21). The Tribunal made findings which were reasonably open to it, in full understanding of his evidence as to the claimed consequences that he said would ensue.
Two, ground four also asserts that the Tribunal’s “finding” was based on irrelevant issues which led to jurisdictional error. The applicant’s complaint fails to understand that an irrelevant consideration at law is not simply the Tribunal making a finding that the applicant does not like.
As the Minister correctly submits, for a matter to constitute an irrelevant consideration it must be a matter that the Tribunal is statutorily prohibited from taking into account (SZTBJ v Minister for Immigration [2015] FCCA 580 at [95]).
In the current case there was no express, or even implied, prohibition on the Tribunal taking into account the great delay in the applicant applying for a protection visa. Further, the Tribunal was entitled to weigh the evidence before it, and either accept it, reject it or assign such weight as it considered to be appropriate. On the evidence before the Court, the Tribunal conducted this exercise reasonably, and gave cogent reasons for its findings arising from its analysis and consideration of the claims that were made, and the evidence before it.
Three, if this is some attempt by the applicant to allege bias on the part of the Tribunal, then such an allegation, given its very serious nature, must be, as the authorities emphasise, be “distinctly made and clearly” proven Minister for Immigration and Multicultural Affairs v Jia (2001) [2001] HCA 17 at [69].
On the evidence before the Court, and given the nature of the applicant’s complaint, the first part of this requirement is not met, the second is not made out. There is nothing in the evidence before the Court to indicate that the Tribunal might not have brought an open mind to the review. The applicant’s complaint really is that given its adverse findings, the Tribunal must have been biased. This is not an appropriate basis on which to found an allegation of bias. As the Minister again correctly submits, this ground is no more than a request for the Court to engage in impermissible merits review. Ground four is not made out.
Conclusion
None of the grounds of the application reveal jurisdictional error in the Tribunal’s decision. Nor is such error otherwise evident, including by reason of anything said by the applicant to the Court today. It is appropriate that the application to the Court be dismissed. I will make that order.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of Judge Nicholls
Date: 28 February 2019
CORRECTION (11 March 2019)
The end certification date was changed from 6 November 2018 to 28 February 2019.
17
2