DVR16 v Minister for Immigration

[2018] FCCA 814

FEDERAL CIRCUIT COURT OF AUSTRALIA

DVR16 v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 814

Catchwords:
MIGRATION – Protection visa application – review of decision of Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims and evidence – whether the Tribunal’s decision was unreasonable and affected by a reasonable apprehension of bias – whether the Tribunal erred in failing to inform the applicant of a certificate issued under s.438 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 438

Cases cited:

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081

Applicant: DVR16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3545 of 2016

Judgment of: Judge Smith

Hearing date: 27 February 2018

Date of Last Submission: 27 February 2018

Delivered at: Sydney

Delivered on: 27 February 2018

REPRESENTATION

The applicant appeared in person.

Solicitors for the Respondents: Ms J Strugnell, Minter Ellison

ORDERS

1. The application be dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $5,600.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3545 of 2016

DVR16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Delivered Extempore and Revised)

1. This is an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) dated 20 November 2016.  The Tribunal affirmed the decision of a delegate of the Minister for Immigration to refuse to grant the applicant a protection visa.  As the Tribunal explained the applicant first entered Australia on 5 September 2003 on a subclass 456 business visa and made an application for a protection visa on 2 October 2003 which was refused by the department on 5 December 2003.

2. That decision was affirmed by the Refugee Review Tribunal (RRT) on 25 March 2004 and an application to this Court[1] for judicial review of the RRT’s decision was dismissed on 6 September 2005.

   [1] Federal Magistrates Court as it was then known.

3. The applicant then departed Australia on 29 April 2009 and returned on 15 September 2009 on a Partner (Provisional) (Class UF) (subclass 309) visa.  His application for a permanent partner visa was refused by the Department of Immigration on 6 March 2012.  The applicant applied to the Migration Review Tribunal (MRT) for review of that decision, but the MRT affirmed the decision on 20 February 2014.  Following that, on 7 July 2014, the applicant lodged a further application for a protection visa.  His claims were based upon his practice of Falun Gong.  He said that when he returned to China from Australia, he continued practising Falun Gong, but due to his active gathering with other members, his activity was eventually noticed by the police.

4. One day, police came to his house for investigation and were planning to take him to the police station, but he bribed them to give him one more chance.  The police accepted his bribe and warned him not to leave home and asked him to report to them on a regular basis.  His friends and his family were worried about his safety and suggested that he go abroad as soon as possible.  He arrived in Australia in 2011 but still fears persecution from the police if he were to return back to China.  He sought protection in Australia so he could practice Falun Gong and keep his religious belief in a peaceful and harmonious environment.

5. On 19 March 2015, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa.  The applicant applied to the RRT for review of that decision.  In July 2015, the functions of the RRT were assumed by the Tribunal and it continued with the review of the delegate’s decision.  The applicant attended a hearing conducted by the Tribunal on 15 November 2016, and on 20 November 2016 the Tribunal made a decision to affirm the delegate’s decision.

Tribunal’s decision

1. The Tribunal had multiple concerns about the applicant’s credibility and did not accept that the applicant was ever a Falun Gong practitioner, that he was persecuted or detained by the Chinese authorities or that he left China to avoid that.  It was not satisfied that the applicant, if he returned to China, would be targeted by the government as a Falun Gong practitioner or that he would face serious or significant harm from the authorities for this or any other reason.  The Tribunal explained the multiple concerns that it had over a number of paragraphs which are summarised in [7] of the respondent’s submissions and which I set out below:

   7.The Tribunal rejected the applicant’s claims on the basis of comprehensive adverse credibility findings. The Tribunal made the following key findings:

   (a)the applicant was not truthful about his experiences in China (CB 150: [9]);

   (b)it found that despite claiming to have practised since 1999, the applicant demonstrated no awareness of the essential elements of Falun Gong practice (CB 150: [10]);

   (c)it was not satisfied the applicant was, or ever had been, a Falun Gong practitioner or that the Chinese authorities targeted him for this reason (CB 150: 10);

   (d)the applicant’s claim not to know the basis on which he applied for protection in 2003 and failure to mention his Falun Gong practice to the MRT in the course of his partner visa application caused further concern about his truthfulness and credibility (CB 150: [11]);

   (e)the applicant previously sought protection on the grounds of his Falun Gong practice, and while he claimed to have paid someone to prepare that application and to not know about the claims, several paragraphs in the statement were identical to the statement in his current application (CB 150: [12]); and

   (f)it did not accept the applicant’s evidence that the 2014 claims were based on his own experience in circumstances where he had admitted submitting false claims in 2003, and found he had again submitted false claims to achieve a migration outcome (CB 150-151: [13]).

2. On the basis of its findings, the Tribunal was not satisfied that the applicant satisfied either the criteria in sub-s.36(2)(a), which I interpolate to say that it was not required to consider, or sub-s.36(2)(aa) of the Migration Act 1958 (Cth). For that reason, it affirmed the decision of the delegate.

Consideration

1. The applicant’s application for judicial review has an attachment in which there are six separate paragraphs, each of which are similar to grounds raised by other applicants before the Courts, although perhaps not identical.  The first of these is:

   1,I don’t think DIAC and AAT’s decision are fair and reasonable as they failed to take a good consideration in my commitment of Falugong, ignoring my background and actual practice of it in China and Australia.

2. The reference to “DIAC” is a reference to the Department of Immigration and Citizenship which is now more relevantly, a reference to the Department of Immigration and Border Protection.  I will leave that to one side because this Court does not have jurisdiction to review the decision of the Department or, perhaps more accurately, a delegate of the Minister.

3. The balance of the paragraph has as its underlying assumption the correctness of the applicant’s claims to be a Falun Gong practitioner which were the basis of his protection visa application.  However, the Court cannot act upon such an assumption because it is not the place of the Court to make findings of fact, at least insofar as they concern the satisfaction of the criteria for the grant of a visa.  That is solely the domain for the delegate in the first instance and then the Tribunal on review.

4. Another way of putting that is that the applicant is simply trespassing into the forbidden field of merits review.  This Court can only grant relief if it is satisfied that the Tribunal’s decision is affected by jurisdictional error.  An assertion that a finding of fact is wrong or that another finding ought to be made does not establish such an error, and for that reason, the first paragraph in the attachment to the grounds of the application does not give any support to the relief sought by the applicant and is rejected.

5. The second paragraph is:

   2,AAT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.

6. Once again, this contains an assumption of the correctness of the applicant’s claims to practise Falun Gong and, for the reasons I have given, that does not give rise to any jurisdictional error.  Insofar as this paragraph asserts that the Tribunal did not take into account certain evidence given by the applicant, the ground must be rejected because it is not established on the material before the Court.

7. There is no transcript of the hearing conducted by the Tribunal in evidence before the Court and the only evidence of what occurred at the hearing is set out in the decision record of the Tribunal: see [9]-[13] of its reasons.  It is clear from any reading of those paragraphs that the Tribunal took into account the matters that occurred at the hearing, including the evidence given by the applicant.  Indeed, it was that evidence that caused it to disbelieve the applicant’s claims.  Amongst other things, his oral evidence was inconsistent with his written claims.  For those reasons, the second paragraph is rejected.

8. The third paragraph is that:

   3,RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.

9. It is not clear what this means.  The applicant did not explain this or any of the other grounds in oral submissions today as he declined the opportunity to do so.  In any event, as far as it can be seen from the Tribunal’s reasons and the other material before the Court, the Tribunal did have regard to the applicant’s evidence and found, in effect, that he had fabricated his entire claim.  This ground is rejected.

10. The fourth paragraph, which is numbered 1, says that the applicant has “been actively involved in Falungong practice in Australia”.  This is an assertion of fact that has no bearing on whether or not there is jurisdictional error in the Tribunal’s reasons and is rejected for that reason. 

11. The fifth ground, also numbered 2, states that the “AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence”.

12. This ground appears to have nothing to do with this case because the Tribunal’s reasons did not have anything to do with the absence of evidence but rather the evidence that the applicant actually gave.  It, too, is rejected.

13. The final paragraph is that the “decision could give rise to an apprehension of bias in the mind of a reasonable observe”.  The reasons of the decision-maker, however, such as those of the Tribunal, are made at the conclusion of the process of review, given the outcome of the review, they necessarily involve evaluative findings and it is difficult to understand how, in those circumstances, there might have been a reasonable apprehension that the Tribunal might not have assessed the matter according to its merits.

14. The danger of relying upon the written reasons of a decision-maker in order to base a claim of apprehension of bias is that there is a confusion between the reasonable apprehension of bias and actual bias: see Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48. Even if the reasons could be used in a way to support a claim of a reasonable apprehension of bias, in my view there is nothing in these reasons that does so. The reasons revealed that the Tribunal had regard to the written statements before it, the other written material and then compared that to the oral evidence and, having had regard to all the evidence, then made its findings of fact.

15. In other words, it made a decision based upon an assessment of the merits of the case, as it was required to do.  For those reasons, the sixth paragraph is also rejected.

16. The Minister has also drawn the Court’s attention to the existence of a certificate purporting to have been given under s.438 of the Act. Although on one view it appears that it could properly have been given under that section, given the reference to it having been given to the Minister or an officer of the Department in confidence, the Minister accepted that it is likely that the certificate was invalid, referring to the decision of Beach J in MZAFZ v Minister for Immigration & Border Protection (2016) 243 FCR 1; [2016] FCA 1081.

17. The Minister also tendered the document to which the certificate related and submitted that regardless of the invalidity of the certificate, this document revealed that that invalidity could have had no bearing upon the Tribunal’s decision because the document was completely unrelated to the claims made by the applicant.  I accept that argument.  The document relates to a visit to a construction site on 4 February 2005.  It says, amongst other things, that the people of interest, including the applicant, were not present on site.

18. This does not have any passing adjectival relevance to the issues to be considered by the Tribunal and in my view could not effect in any slight way the question of credit which might be relevant to any decision of a protection visa claim. For those reasons, I do not consider that the existence of the certificate purportedly given under s.438 of the Act had any impact upon the Tribunal’s authority to make its decision. In other words, there was no jurisdictional error as a result of the fact that it was before the Tribunal.

Conclusion

1. For those reasons I am not satisfied that the Tribunal’s decision is affected by any jurisdictional error and the application must be dismissed. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:       6 April 2018