DWQ18 v Minister for Home Affairs

[2019] FCCA 1050

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWQ18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 1050

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:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 424A

Cases cited:

Abebe v The Commonwealth (1999) 197 CLR 510

DAO16 v Minister for Immigration [2018] FCAFC 2

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

Minister for Immigration v Lat (2006) 151 FCR 214

Prasad v Minister for Immigration (1985) 6 FCR 155

Randhawa v Minister for Immigration (1994) 124 ALR 265

Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425

SCAA v Minister for Immigration [2002] FCA 668

VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102

WABC of 2002 v Minister for Immigration [2002] FCAFC 286

Applicant: DWQ18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2087 of 2018

Judgment of: Judge Driver

Hearing date: 17 April 2019

Delivered at: Sydney

Delivered on: 17 April 2019

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms L Sanderson of Sparke Helmore

INTERLOCUTORY ORDERS

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2087 of 2018

DWQ18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction and background

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 10 July 2018.  The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 10 April 2019. 

3. The applicant, a citizen of China, arrived in Australia on 24 April 2016 as the holder of a tourist (Class FA) (Subclass 600) visa.[1]  On 30 June 2016, the applicant lodged an application for a protection (Class XA) (Subclass 866) visa (visa).[2]  His claims to fear harm were set out in a statutory declaration accompanying the visa application and can be summarised as follows:[3]

   a)his two sons were born out of wedlock and his daughter was born in violation of family planning regulations.  They had to pay social compensation fees and his wife was forced to undergo a sterilisation procedure.  The medical official who performed the procedure was unqualified and she became pregnant in 2005 with their daughter.[4]  They had to pay a fine and experienced financial hardship.  In 2012, they had to pay medical costs for their second son who suffered from encephalitis;

   b)in September 2014, the applicant went to Shanghai because he could not pay his debts.  Creditors took away all their valuable articles and beat up his wife.  Police refused to give them protection;[5]

   c)from December 2014, his wife protested against the Chinese government.  She was accused of planning anti-government protests.  On 15 March 2015, the police went to arrest his wife but she had escaped to Shanghai.  He arranged to hide his wife at a friend’s home.  The police continued to look for her.  His relatives and friends were questioned.  His wife went on a trip overseas.  The police were looking for him to investigate whether he had supported his wife’s anti-government movement;

   d)in December 2015, the applicant moved back to his home village after repaying his debts.  He was harassed, interrogated and questioned by police in relation to his wife’s anti-government activities.  In March 2016, he was detained for 10 days and was subjected to mistreatment.  He finally agreed to give the police money but said he needed further time; and

   e)he was released and forced to sign a statement which admitted that he had supported his wife’s anti-government activities and obstructed police.  He escaped China on 23 April 2016.  He had been blacklisted by the public security bureau and would be arrested and suffer significant harm if he returned to China.

   [1] Court Book (CB) 114

   [2] CB 39

   [3] CB 69-74

   [4] CB 69

   [5] CB 70

4. On 14 November 2016, the delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia had protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act1958 (Cth) (Migration Act).[6]

   [6] CB 110-131

Tribunal proceedings

1. On 1 December 2016, the applicant applied to the Tribunal for review of the delegate’s decision.[7]  On 30 March 2017, the Tribunal invited the applicant to attend a hearing before it scheduled for 24 April 2017.[8]  The hearing was rescheduled on three occasions at the applicant’s request on the basis of his wife’s health.[9]

   [7] CB 132-133

   [8] CB 139-142

   [9] CB 147-198

2. On 16 November 2017, the applicant appeared at the hearing to give evidence and present arguments.[10]  He was represented by his registered migration agent and assisted by an interpreter in the English and Mandarin languages.[11]

   [10] CB 191

   [11] CB 191

3. On 5 February 2018, the Tribunal sent a letter to the applicant in accordance with s.424A of the Migration Act, inviting him to comment on or respond to information that it considered would be the reason or part of the reason for affirming the decision under review.[12]  That information was as follows:

   a)the details on the passport provided to the Tribunal were not consistent with the details on a passport provided to the  Consulate General in Canada;

   b)the information in the applicant’s tourist visa application was not consistent with the evidence given to the Tribunal regarding his personal circumstances.  The information in the tourist visa application and accompanying passport suggested that he had not provided truthful information to the Minister’s Department and Tribunal about his personal circumstances; and

   c)the marriage registration documents provided by the applicant’s wife in her applications for a visitor visa and protection visa were not consistent, which might suggest that the documents were false and that they were not married in January 2005 as claimed.

   [12] CB 197-199

4. On 15 February 2018, the applicant provided a statutory declaration in response to the letter and he declared that the information contained in his tourist visa application and his wife’s business visitor visa was incorrect; that those applications had been submitted by his friend’s wife; and that the real information was contained within his protection visa application.[13]

   [13] CB 201-203

5. On 10 July 2018, the Tribunal affirmed the decision of the delegate not to grant the applicant the visa.

Tribunal decision

1. The Tribunal set out the applicant’s claims as they appeared in his visa application, the evidence given by him at the Departmental interview and at the hearing before the Tribunal.[14]

   [14] CB 212, [27]-[61]

2. The Tribunal did not accept the applicant’s claims that he took no part in providing false materials in his visitor visa application.[15]  The Tribunal considered that claim to be implausible and found that the applicant was aware of, and complicit in, providing false details to obtain the visa.[16]

   [15] CB 220, [76]

   [16] CB 220, [76]

3. The Tribunal accepted that the applicant and his wife worked in a rural area, had to borrow money to pay the social compensation fees and medical expenses, and that the debts caused them some financial hardship.[17]  It accepted that creditors may have sought repayment from the applicant’s wife and engaged in some harassment.[18]  The Tribunal noted that the applicant’s wife had not given evidence at the hearing, nor had she given evidence in the hearing of her own application for review.[19]  It noted that the applicant’s evidence was not based on his own observation or involvement in any anti-government activity as he was working in Shanghai during the time of the claimed protest and therefore, his knowledge of these events had come from information provided by others.[20]

   [17] CB 220, [83]

   [18] CB 221, [85]

   [19] CB 221, [87]

   [20] CB 221, [88]

4. The Tribunal did not accept that the applicant’s wife was involved in anti-government activity before she departed China in May 2015, as there was little evidence to support such a claim.[21]

   [21] CB 221, [89]

5. The Tribunal did not accept that the applicant’s wife was wanted by police and that she hid in Shanghai for two months before she left China in May 2015.[22]  Whilst the Tribunal accepted that the applicant’s wife may have left China due to the family debt situation, and that she was assisted by the wife of a friend in obtaining a visa, it did not accept that she would have been able to leave China if she had been wanted by police.[23]

   [22] CB 221, [90]

   [23] CB 221, [90]

6. The Tribunal further did not accept the applicant’s claim that some nine to ten months after his wife left China he was detained and mistreated by police.  It did not accept that police attempted to extort money from him and that he would face serious harm from police for this reason if he returned to China.[24]  The Tribunal found the applicant’s evidence in this regard to be confused, inconsistent and lacking in plausible detail and therefore concluded that he had fabricated these claims.[25]

   [24] CB 222, [91]

   [25] CB 222, [92]

7. The Tribunal found that the applicant had given inconsistent evidence on how and when he obtained a passport.[26]  The Tribunal did not accept his explanation for the ease of his departure from China or that he was wanted after he left. It did not accept that the applicant was on a “black list”.[27]

   [26] CB 223, [104]

   [27] CB 223, [107]

8. Having regard to the material before it, the Tribunal did not accept any of the applicant’s claims in relation to his wife’s anti-government activity or that the applicant was sought by police after his wife left China.[28]  Rather, the Tribunal considered that the applicant was reluctant to return to China because he wished to improve his economic situation and that of his family[29] and that he did not fear returning to China.[30]  The Tribunal accepted that the applicant’s family had suffered financial stress and that had motivated them to seek work outside China.[31]  However, the Tribunal found that the financial stress faced by the applicant and his wife and his reluctance to return to China did not arise for reasons of the applicant’s race, religion, nationality, membership of a particular social group or political opinion.[32]

   [28] CB 223, [108]

   [29] CB 224, [110]

   [30] CB 224, [111]

   [31] CB 224, [116]

   [32] CB 224, [116]

9. Having considered the applicant’s circumstances singularly, and cumulatively, the Tribunal was not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there was a real risk he would be arbitrarily deprived of his life or would suffer the death penalty, or be subjected to torture, or to cruel or inhuman treatment or punishment or to degrading treatment or punishment.[33] Accordingly, the Tribunal was not satisfied that the applicant met the criterion of either s.36(2)(a) or s.36(2)(aa) of the Migration Act.[34]

   [33] CB 225, [123]

   [34] CB 225, [124]-[125]

The present proceedings

1. These proceedings began with a show cause application filed on 27 July 2018.  The applicant continues to rely upon that application.  The grounds in that application are expressed in narrative form in handwriting over three pages. 

2. The application is supported by a short affidavit filed with it which I received as a submission.  I have before me as evidence the court book filed on 19 September 2018 and a supplementary court book filed on 16 January 2019. 

3. I invited oral submissions from the applicant this morning.  He has concerns about the visa application apparently made on his behalf in Canada.  He acknowledges that the photograph in that visitor visa application is of him, but says that everything in it is false.  He conceded that the application was made by a friend, apparently, on his behalf.  It also appears that the same friend assisted the applicant with his protection visa application in Australia.  It also appears from the court book that that friend purports to be a migration agent. 

4. Conflict between the facts asserted in the protection visa application and the visitor visa application was an issue before the Tribunal. That was raised specifically with the applicant by letter pursuant to s.424A of the Migration Act, and the applicant responded.

5. The applicant is also concerned that his wife’s case was dealt with separately from his and that his case was apparently dealt with before that of his wife.  It is apparent from the protection visa application, in particular, those parts reproduced at pages 29 and 31 of the court book, that the applicant or his friend made a deliberate choice to make a separate application on behalf of the applicant alone.  This is so, even though claims central to the applicant’s claim for protection were those of his wife.  I note, from a document handed up in court by the applicant, that the applicant’s wife is running a separate judicial review application in this Court and has been allocated the pseudonym DPQ18.  It appears that that judicial review application has not yet been heard. 

6. To the extent that the applicant asserts procedural unfairness before the Tribunal, I reject that contention.  The applicant sought and received several adjournments by the Tribunal and was, on several occasions, invited to nominate a witness which could have included his wife.  It was his choice, or the choice of those assisting him, to run his protection visa application in the manner he did. 

7. The conclusions reached by the Tribunal in its decision were open to it on the material before it.  In other respects, I agree with the Minister’s submissions concerning the rather discursive grounds of review. 

8. The first and fourth paragraphs are convoluted assertions of bias and pre-judgment.  Bias is a serious allegation which must be firmly and distinctly made and clearly proven.[35]  The applicant has made no attempt to provide any evidence that the Tribunal had a pre-existing state of mind which disabled it from undertaking, or rendered it unwilling to undertake a proper evaluation of the matter.[36]  There is nothing in the process followed by the Tribunal or its decision to indicate that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to bear on the decision.[37]  It is well established that the method of the Tribunal is inquisitorial, and that the Tribunal was entitled to test the applicant’s claims.[38]  In any event, the Tribunal’s statement of reasons alone cannot ordinarily be relied on to support a finding of an apprehension of bias.[39]  Nor can any inference of bias be drawn from the mere fact of adverse findings in its reasons.[40]  

   [35] Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 53

   [36] Ibid.

   [37] Re Refugee Tribunal; Ex Parte H (2001) 179 ALR 425 at [27]

   [38] VFAB of 2002 v Minister for Immigration (2003) 131 FCR 102 at [78]-[81]

   [39] Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 at [33], [67]

   [40] VFAB of 2002 at [21]; SCAA v Minister for Immigration [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration [2002] FCAFC 286 at [3]

9. The second paragraph takes issue with the fact that the Tribunal did not accept the applicant’s explanation regarding the ease with which he left China.  The Tribunal found that the applicant gave inconsistent evidence about how and when he obtained a passport and that he was not able to plausibly explain why he would be able to depart China without restriction on his own passport if he was wanted by police.  The Tribunal was not obliged to accept the applicant’s claims uncritically.[41]  The Tribunal’s adverse credibility findings, including the Tribunal’s rejection of the applicant’s claims regarding his departure from China, were based on rational grounds and arrived at upon consideration of matters that were logically probative.[42]

   [41] Randhawa v Minister for Immigration (1994) 124 ALR 265 at 278

   [42] DAO16 v Minister for Immigration [2018] FCAFC 2

10. Insofar as the applicant refers to the Tribunal’s “predetermined assumptions”, as noted above, the mere fact that the Tribunal made adverse findings in respect of the applicant does not give rise to an inference of bias.[43]  Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented, often vigorously.[44]  The requirements of procedural fairness will often require that an applicant be plainly confronted with matters which bear adversely on their credit or bring their account into question.  Nothing in this ground identifies any arguable jurisdictional error on the part of the Tribunal.

    [43] SCAA at [38]

    [44] Ex parte H at 434-35 at [30]

11. The third paragraph alleges that the Tribunal ought to have appointed a specialist to examine his wife’s mental illness.  The Tribunal noted that the applicant’s wife did not give evidence at the hearing before it, nor did she give evidence at her own hearing.  It noted that the applicant had not requested she give evidence in his matter at any time.[45]  Accordingly, the Tribunal proceeded to make a decision based only on the applicant’s evidence.[46]  It is well settled that it is for an applicant to provide their evidence and arguments in sufficient detail to enable the decision maker to establish the relevant fact and that the decision maker is not required to make the applicant’s case for him or her.[47]  At no point did the applicant raise any question as to his wife’s mental health nor did he raise the possibility of providing specialist medical evidence in relation to his wife.  No arguable jurisdictional error arises as a result of the applicant failing to take the opportunity to make any claims before the Tribunal.  

    [45] CB 221, [87]

    [46] CB 221, [88]

    [47] Minister for Immigration v Lat (2006) 151 FCR 214; Abebe v The Commonwealth (1999) 197 CLR 510 at [187]; Prasad v Minister for Immigration (1985) 6 FCR 155

Conclusion

1. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application be dismissed.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale as it applied when the application was filed.  The applicant claims impecuniosity, but as has been repeatedly stated, that is not a reason for the Court to refrain from making a costs order.

3. I will order that the applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,667.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:         18 April 2019