Efp21 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 639
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
EFP21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 639
File number: PEG 247 of 2021 Judgment of: JUDGE KENDALL Date of judgment: 11 August 2022 Catchwords: MIGRATION – Protection visa – decision of the Administrative Appeals Tribunal – whether the Tribunal failed to adhere to its procedural fairness obligations – whether the Tribunal failed to properly engage with the material and evidence before it – whether the Tribunal’s decision was illogical, irrational or unreasonable – whether the Tribunal showed bias – whether the Tribunal misinterpreted relevant statutory criteria – whether the Tribunal’s decision was “rushed” – no jurisdictional error – application dismissed. Legislation: Migration Act 1958 (Cth), ss 5H-5LA, 36, 425, 476 & 499
Division 4 of Part 7
Cases cited: CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260
Craig v State of South Australia (1995) 184 CLR 163
DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
Minister for Immigration & Border Protection v Singh [2014] FCAFC 1
Minister for Immigration & Citizenship v SZKRT [2013] FCA 317
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration v Jia Legeng (2001) 178 ALR 421
MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24
SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80
Division: Division 2 General Federal Law Number of paragraphs: 67 Date of hearing: 27 July 2022 Place: Perth Applicant: In person Counsel for the First Respondent: Ms G Ellis Second Respondent: Submitting appearance, save as to costs Solicitor for the Respondents: Sparke Helmore ORDERS
PEG 247 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: EFP21
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE KENDALL
DATE OF ORDER:
11 AUGUST 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE KENDALL:
BACKGROUND
The applicant is a citizen of China (Court Book (“CB”) 1). He arrived in Australia in July 2017 as the holder of a visitor visa (CB 85).
On 22 September 2017, the applicant applied for a Protection (Class XA) (Subclass 866) visa (the “visa”) (CB 1-25).
On 27 October 2020, the then Department of Immigration and Border Protection (the “Department”) asked the applicant to attend an interview before a delegate of the first respondent (the “Minister”) to discuss his protection claims (CB 39-40).
The applicant failed to attend the protection visa interview before a delegate of the Minister on 18 November 2020 (CB 46).
On 25 November 2020, a delegate of the Minister refused to grant the applicant the visa (CB 45-49). The delegate was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under s 36 of the Migration Act 1958 (Cth) (the “Act”) (CB 49).
On 18 December 2020, the applicant applied to the Administrative Appeals Tribunal (the “Tribunal”) for review of the delegate’s decision (CB 50-56).
As accurately summarised by the Minister (at [10] in written submissions filed in this Court on 1 July 2022), the Tribunal invited the applicant to attend a hearing before it scheduled for 14 October 2021 (CB 61-64). The Tribunal case notes contain the following entry (CB 93):
Hearing scheduled on 14/10/2021 at 2pm.
The applicant dialled in to MS Teams and with a Mandarin interpreter I asked for his contact details which are as follows.
Mobile number: [omitted]
Email: [omitted]
I advised that a further hearing date will be scheduled and the Tribunal will be in contact. [The applicant] said ok, thanks him and the Interpreter.
Call ended.
On 18 October 2021, the Tribunal invited the applicant to a resumed hearing scheduled for 4 November 2021 (CB 65-69). The invitation recorded that the hearing on 14 October 2021 had been adjourned (CB 66).
On 20 October 2021, the applicant provided a completed response to hearing invitation form confirming that he would attend the resumed hearing (scheduled to take place on 4 November 2021) (CB 70-73).
The applicant attended the hearing before the Tribunal on 4 November 2021 (CB 79-81). He appeared without legal representation but was assisted by an interpreter in the Mandarin language (CB 79).
On 5 November 2021, the Tribunal affirmed the delegate’s decision refusing to grant the applicant the visa (CB 84-92).
On 17 November 2021, the applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
This proceeding is brought pursuant to s 476(1) of the Act. To obtain relief from this Court, the applicant must show that the Tribunal fell into jurisdictional error in affirming the delegate’s decision.
THE TRIBUNAL’S DECISION
In assessing whether the Tribunal has fallen into jurisdictional error it is useful to first summarise the Tribunal’s decision: DBX18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 897 (“DBX18”).
This Court is generally reluctant to “copy and paste” large portions of the Tribunal’s decision (preferring, instead, to summarise the Tribunal’s “core” findings). At times, however, it is useful to provide substantial portions of the Tribunal’s reasons in order to draw attention, in some detail, to the Tribunal’s reasoning process: DBX18 (per McKerracher J) at [29]-[32]. This is particularly the case when (as was the case here) the applicant appeared before the Court without legal representation and had difficulty articulating his concerns. As noted above, in those circumstances the Court will, in its duty to the self-represented litigant, remain astute and alert to the possibility of jurisdictional error in the Tribunal’s decision: MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 (“MZAIB”).
The Tribunal’s decision spans 30 paragraphs and, with legislative attachments, is 9 pages in length.
The Tribunal began with an overview of the evidence before the Department (at [2]) and summarised the applicant’s protection claims as being (at [3]):
a.After discovering that in their fourth batch of goods the suppliers of oil to his new food company had provided him with defective products resulting in customer complaints, he told the friend who had recommended them that he would stop purchasing from the company and report them to the China Food and Drug Administration.
b.His friend warned him that the suppliers had a gang background and that he should be careful and not provoke them. However, he still wanted to collect evidence, hoping that the relevant departments would suspend their business for rectification.
c.He started to notice that since April 2017 he always felt that he was being stalked by a man. Then he received an anonymous letter saying that if he had collected evidence against them, he would be in a very dangerous situation. When he realised that someone had followed him all the way from the company to his home, he was terrified. After settling his wife and son, he fled to Australia.
d.The harm he experienced in China was threats in the form of a letter that he received from ‘the dark force’. After finding he was being tailed he feared what their next step would be.
e.He did not seek help from authorities because he was gathering evidence to sue them in the court and was preparing to file the document when he received a warning from them.
f.He tried to seek safety by living in a motel after he settled his family, but they could still trace him. He knew that he was not safe as long as he was in China.
g.He is afraid that if he returns, they will get to know eventually and he will be in danger again. He cannot go back because it is too dangerous for him as the gangster will chase after him and do everything to silence him.
h.He does not think the authorities will protect him if he returns as the gangsters have already bribed them.
i.He cannot relocate anywhere else as long as in China as they can silence him in any brutal way. They will definitely abuse him after they catch him.
The Tribunal then noted that the applicant had failed to attend an interview before the delegate on 18 November 2020 and that (on 25 November 2020) the delegate had subsequently refused to grant the applicant the visa (at [4] and [5]).
The Tribunal then outlined the legal criteria for a protection visa, summarising the requirements of the refugee criterion in s 36(2)(a) of the Act, the definitional provisions in ss 5H(1)(a)-(b), 5J(1), 5J(2)-(6) and 5K-LA of the Act and the complementary protection criterion in s 36(2)(aa) of the Act (at [8]-[12]).
The Tribunal then explained (at [13]) that, in assessing the applicant’s protection claims, and in accordance with Ministerial Direction No. 84, made under s 499 of the Act, the Tribunal had taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department, and country information assessments prepared by the Department.
The Tribunal then outlined the legal principles applicable to credibility findings, as follows:
14.The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
The Tribunal then outlined its analysis, findings and its reasons for affirming the delegate’s decision, as follows:
17.The Tribunal found the applicant’s evidence about his experiences in China vague, speculative and at times inconsistent and implausible.
18.The applicant told the Tribunal that he was being targeted by four gangsters, ‘his friend's friends’, who had been suppliers of oil for his food company because he had ‘harmed their interests’. This was because he had submitted samples of their product for testing to confirm they were defective and stopped purchasing their products. He claimed that, although he did not report the suppliers to the Chinese authorities, they knew he had evidence against them. Asked how they knew this, the applicant responded variously that, ‘people have ears’, ‘you just know’, that his friend told them about it and that he had received a threatening anonymous letter ‘from them’. The applicant did not respond directly when questioned as to how he knew that his friend told the suppliers and that the anonymous letter came from them. Instead he asked rhetorically, if his friend did not tell them, how was it that they were looking for him all the time; and who else could the letter have come from as there was no one else whose interests he had harmed. To the Tribunal’s query as to how the applicant had harmed the suppliers’ interests, given that he did not reported them to the authorities, the applicant responded with a new claim that, as he was their ‘biggest customer’, he had harmed the suppliers interests by ceasing to buy their product. The Tribunal considers the applicant’s responses to be self-serving and speculative.
19.Significantly, the applicant gave inconsistent evidence as to the timing and sequence of events which led to his fleeing China in July 2017. In his written statement, the applicant stated that since April 2017, he started to notice that he always felt he was being stalked by a man. He then received an anonymous letter saying that if he had collected evidence against ‘them’, he would be in a very dangerous situation and was later terrified when he realised that someone had followed him all the way from the company to his home. He closed his business in May 2017. By contrast, he told the Tribunal that he stopped buying products from the gangster suppliers around 25 December 2016, received the ‘anonymous’ letter from them in January 2017 and closed his business in February 2017.
20.In the course of his application and review, the applicant also embellished his evidence as to the content of the anonymous letter. In his application to the Department he stated that the letter warned that if he had collected evidence against the suppliers, he would be in a very dangerous situation. At his hearing, however, he initially stated that the letter stated that the author actually knew that he had been checking and had evidence that the source of the goods had a problem. Later he added that the letter threatened to have his family ‘shut their mouth forever’, which he said meant that he would be killed.
21.The Tribunal’s concerns about the veracity of the applicant’s evidence is compounded by inconsistencies between his written application to the Department and at hearing as to where he lived and worked before opening his food company in Taian in October 2017. In his application form, he stated that he lived in Taian from birth until he left for Australia in July 2017 and worked there in a factory from 2003 till October 2016, when he opened his own food business there. However, he told the Tribunal that after finishing school he lived and worked in many different cities in China: as a handyman in Jinan (2003-2004 ); as a sales assistant selling water-cleaning machinery in Nanjing (2004-2006) and Shanghai (2006-2014); in car sales in Beijing (2014-2016) and Szechuan (for a few months).
22.Based on his evidence, the applicant did not experience serious or significant harm in China. In his application he referred only to threats in the form of a letter that he received from ‘the dark force’ and being tailed. Asked at hearing whether anything happened to him between the time he closed the business and departed China in July 2017, the applicant said a car was always stopped hear his home, that he was very cautious and felt mental pressure from people at the gate of his factory staring when he was closing his business. He also confirmed that nothing had happened to his family since he left China, although he introduced new evidence that the gangsters told his wife from time to time that they would find him if he returned to China. He claimed that this had first occurred not long after he left China and most recently on 1 October 2021. In the Tribunal’s view if the gangsters, whom the applicant described as having ‘lots of power’, were seriously targeting him and his family, they would have found him before he left China or taken action against his family after he left.
23.Further, the Tribunal is not satisfied that the applicant will face serious or significant harm if he returns to China now. When asked why he feared returning, the applicant claimed that he was worried that ‘those people’, were still looking for him because he had been their biggest customer and that they would definitely harm him if he returned, be it cutting off his arms or legs or having him killed in a traffic accident. He was, however, unable to explain why the suppliers would still be interested in him after four years, in which time they could have replaced him as a customer, especially given that he had only purchased four batches of goods from them, closed his business in 2017 and never reported their sale of defective products to authorities. The Tribunal found implausible the applicant's response that such people had ‘no bottom line to achieve their goal’. Moreover, the applicant confirmed that he would not report the suppliers to police now, making reference to a Chinese TV series about gangsters. He also confirmed that he had never had any problems with the Chinese authorities.
24.On the basis of the evidence before it, the Tribunal does not find it plausible that the applicant ever suffered harm or was threatened by gangster suppliers in China as claimed, nor that he will face serious or significant harm from gangsters or anyone else in China if he were to return there now. Rather, it is the Tribunal’s view that the applicant fabricated his claims to achieve a migration outcome.
On the basis of the above credibility findings, the Tribunal determined that it was not satisfied that, if the applicant were to return to China now or in the reasonably foreseeable future, there was be a real chance that he would be harmed for any of the other reasons set out in s 5J(1)(a) of the Act (at [25]).
Further, having considered whether the applicant was entitled to complementary protection for any of the reasons claimed, the Tribunal determined that it 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, there was a real risk that he would suffer significant harm (at [26]).
Having so determined, the Tribunal affirmed the delegate’s decision under review (at [30]).
APPLICATION IN THIS COURT
The application for judicial review filed by the applicant on 17 November 2021 contains three “grounds of review”, as follows (without alteration):
1.The Tribunal made its decision without giving the applicant further opportunity to provide evidence in supporting his statement. Fairness procedure was not conducted.
2.Refer to the AAT decision record reflects that the Tribunal’s decision is merely based on the refusal by the Department and the AAT decision, the AAT decision record and reason does not reflect a proper analysis and consideration of the applicant’s case.
3.The Tribunal’s decision did not accordance the criteria in s. 36(2) and Criteria s. 36(2)(a) or (aa).
In an affidavit attached to his application for judicial review, the applicant also claims as follows (without alteration):
2. It is in my view that my matter was conducted in a rush manner and I was not given any opportunity to present my arguments and evidences as well as that the Tribunal did not consider my individual merits.
On 16 December 2021, procedural orders were made by Registrar Carney of this Court giving the applicant an opportunity to file an amended application, any affidavit evidence and written submissions. Unfortunately, no further materials were provided by the applicant.
The materials before the Court thus include the application for judicial review and supporting affidavit filed by the applicant on 17 November 2021, a Court Book numbering 93 pages (marked as Exhibit 1) and written submissions filed by the Minister on 1 July 2022.
The applicant appeared before this Court on 27 July 2022. He appeared without legal representation. He was assisted by an interpreter in the Mandarin language. The Court confirmed with him that he had received a copy of the Court Book and the Minister’s written submissions.
Noting that the applicant was not represented (and noting the remarks of the Federal Court in DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [8] that it is usually appropriate for an unrepresented applicant to be given an opportunity to explain orally the matters that are said to give rise to an appeal (or review)), the Court gave the applicant an opportunity to outline orally what he thought the Tribunal “did wrong” in relation to his matter.
The Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
(a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
(b)where the decision-maker ignores relevant material: Craig at 198;
(c)where the decision-maker relies on irrelevant material: Craig at 198;
(d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 24 at [207]-[208];
(e)where the decision-maker fails to consider the entirety of an applicant’s claims (or integers of the claims) made: Minister for Immigration & Citizenship v SZKRT [2013] FCA 317 at [111];
(f)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); and
(g)where the decision is illogical, irrational or unreasonable: Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 (“Djokovic”) at [33]; Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 (“SZMDS”) at [131]; Minister for Immigration & Border Protection v Singh [2014] FCAFC 1 (“Singh”) at [44].
The Court also explained that it cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa that the applicant now seeks. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
Unfortunately, the applicant did not address the issue of jurisdictional error or his grounds of review as articulated – focusing instead on his belief that the Tribunal was wrong not to believe that he would be harmed and emphasising that he was “telling the truth”. In effect, what the applicant was asking for was for the Court to engage in an impermissible merits review of the Tribunal’s decision.
This leaves the Court to focus on the applicant’s grounds of review as articulated in his application for judicial review. Here, the grounds of review are not particularised. While “problematic”, this Court’s preferred approach is to be mindful that, where an applicant is unrepresented and may not have adequate knowledge and an ability to prepare for a hearing, or understand, what is required of them, the Court should read the applicant’s grounds of review as broadly as possible and remain astute to the possibility of legal error in the Tribunal’s decision and raise any concerns in that regard with the Minister. Further, in its duty to the applicant as an unrepresented litigant, this Court has remained astute to error in the Tribunal’s decision and, to the extent that this decision reveals any material error, the Court will address that error accordingly: MZAIB.
CONSIDERATION
Grounds of review
Ground 1
For ease of reference, ground 1 provides (without alteration):
The Tribunal made its decision without giving the applicant further opportunity to provide evidence in supporting his statement, Fairness procedure was not conducted.
In relation to ground 1, the Court notes the contents of the Minister’s written submissions dated 1 July 2022, as follows:
25Ground one fails in circumstances where the applicant was invited to, and attended, a Tribunal hearing in compliance with ss 425 and 425A of the Act, and at which he gave evidence about his protection claims with the assistance of an interpreter. The applicant was also told by the Tribunal in its acknowledgment of application letter dated 21 December 2020 (CB 57-59) that if he wished to provide material or written arguments for it to consider, he should do so as soon as possible. Despite this, and despite providing no supporting materials to the Department beyond a copy of his passport, the applicant did not provide any written evidence to the Tribunal. The contention that the applicant was not given the opportunity to provide evidence to the Tribunal cannot be made out.
26The Tribunal otherwise complied with its procedural fairness obligations under Division 4 of Part 7 of the Act. The applicant was on notice from the Tribunal’s questioning at the hearing that the credibility of his claims would be the determinative issue on review. No breach of s 425 is apparent. There was no information that the Tribunal was required to put to the applicant pursuant to s 424A of the Act. The Tribunal’s decision was based on the applicant’s written evidence to the Department, and his oral evidence to the Tribunal which fell within the exceptions to s 424A in s 424A(3)(a) (ba) and (b) respectively. No error arises.
The Court agrees.
It is arguable that the applicant is arguing that the Tribunal failed to adhere to its procedural fairness obligations in Part 7, Division 4 of the Act (save for the provisions relating certificates, which are not relevant here). Any concerns the applicant might have in this regard are not supported by the evidence before the Court.
Relevantly:
(a)the applicant was invited to attend a hearing before the Tribunal in accordance with s 425 of the Act;
(b)the applicant was advised that if he wanted to provided evidence to the Tribunal he could so (CB 57-59);
(c)the applicant attended the hearings as scheduled but did not provide any further evidence to the Tribunal;
(d)the applicant was questioned at length by the Tribunal about his protection claims (the Court noting that the hearing lasted for more than an hour) (CB 79-81);
(e)there is no evidence that the applicant had any difficulties responding to the questions asked of him. He was assisted by an interpreter. No issue has been raised with the standard of interpretation and the Court is satisfied, based on the comprehensive statement of evidence provided by the Tribunal, that no issues arose in this regard;
(f)there is no evidence that the applicant asked for an adjournment or more time within which to provide further evidence; and
(g)the applicant was on notice from the questions put to him by the Tribunal that the credibility of his oral evidence and claims generally was in issue.
The Court is satisfied that the applicant was afforded procedural fairness. No error arises in relation to ground 1.
Ground 2
For ease of reference, ground 2 provides (without alteration):
Refer to the AAT decision record reflects that the Tribunal’s decision is merely based on the refusal by the Department and the AAT decision, the AAT decision record and reason does not reflect a proper analysis and consideration of the applicant’s case.
In relation to ground 2, the Court notes the contents of the Minister’s written submissions (filed on 1 July 2022), as follows:
27.Contrary to ground two, the Tribunal’s decision was not “merely based” on the delegate’s decision. Indeed, the delegate’s decision focussed on the applicant’s ability to access effective protection from Chinese authorities whereas the Tribunal’s decision focussed on the lack of credibility of the applicant’s protection claims. It is not surprising that the delegate focussed on country information about the availability of state protection in China given the applicant did not attend the scheduled interview such that the delegate could not make an informed assessment of the credibility of his claims.
28.In any event, it cannot be said that the Tribunal’s decision “does not reflect a proper analysis and consideration of the applicant’s case.” The decision record shows that the Tribunal closely engaged with the applicant’s (scant) written claims and evidence given at hearing. It placed weight on inconsistencies between the accounts provided (see in particular [18]-[21]) and arrived at conclusions that were open to it.
The Court agrees. On one level the applicant simply disagrees with the Tribunal’s assessment of his oral evidence and is seeking an impermissible merits review.
To the extent that the applicant is concerned that the Tribunal failed to properly engage with the materials and evidence before it, the Court disagrees.
It is noted in this regard that the applicant provided scant written material to the Tribunal. This then required the Tribunal to test the oral evidence provided by the applicant at the hearing before the Tribunal. The Tribunal did so and found the applicant’s evidence about his experiences in China to be “vague, speculative and at times inconsistent and implausible” (at [17]).
As summarised by the Minister (at [15] to [19] in written submissions filed on 1 July 2022 – a detailed summary which the Court accepts as accurate and adopts as its own) that conclusion was based on the Tribunal’s assessment of the oral evidence before it, which was as follows:
(a)the Tribunal concluded that the applicant did not respond directly when questioned about how he knew that his friend told the suppliers that he had submitted samples of their product for testing to confirm that it was defective, and that the anonymous letter came from the suppliers (at [18]);
(b)the Tribunal determined that the applicant had provided inconsistent evidence in his written application (when compared to the evidence he gave orally) as to the timing and sequence of events which led to his fleeing China in July 2017 (at [19]);
(c)the Tribunal determined that the applicant had embellished his evidence about the content of the “anonymous letter” throughout his application (at [20]);
(d)the Tribunal noted its concerns about the veracity of the applicant’s evidence and stressed that this was compounded by inconsistencies between his written application and his oral evidence at the hearing about where he lived and worked before opening his food company in October 2017 (at [21]);
(e)the Tribunal recorded that the applicant had made a new claim before the Tribunal that gangsters told his wife that they would find him if he returned to China. The Tribunal determined that if the gangsters (whom the applicant described as having ‘lots of power’) were seriously targeting him and his family, they would have found him before he left China or taken action against his family after he left (at [22]);
(f)the Tribunal noted that the applicant was unable to explain why the suppliers would still be interested in him after four years – during which time, the Tribunal concluded, they could have replaced him as a customer (noting that he had only purchased four batches of goods from them, closed his business in 2017 and never reported their sale of defective products to authorities (at [23]); and
(g)ultimately, the Tribunal did not find it plausible that the applicant ever suffered harm or was threatened by gangster suppliers in China as claimed, nor that he would face serious or significant harm from them or anyone else in China if he were to return there. Rather, it found that the applicant fabricated the entirety of his claims to achieve a migration outcome (at [24]).
It cannot be said on the basis of the above that the Tribunal failed to properly engage with the materials and evidence before it.
To the extent that the applicant is suggesting that the Tribunal’s decision and approach is illogical, irrational or unreasonable (as per the decisions in Djokovic at [33]; CKC16 v Minister for Immigration and Border Protection [2018] FCA 1260 (“CKC16”) at [26]-[28]; SZMDS at [131]; Singh at [44]), the Court also disagrees.
The Tribunal’s findings and its approach when assessing the evidence before it was entirely reasonable. It cannot be said here that the Tribunal made a decision (or reached a state of satisfaction) that was so lacking a rational or logical foundation that the decision (or state of satisfaction) was one that no rational or logical decision-maker could reach: Djokovic at [33]. Further, it cannot be said that the Tribunal’s findings are lacking an independent reasoning process or logical connections or are based on subjective grounds or insecure assumptions: CKC16 at [26]-[28]. Disagreement with the Tribunal’s decision, however strong, does not evidence error on the basis of irrationality.
Finally, to the extent that the applicant is alleging bias on the part of the Tribunal, the Court also disagrees.
An allegation of bias is a serious allegation and not to be made lightly. Broadly, such an allegation risks bringing into question the integrity of the person charged with making an objective and impartial decision. It follows then that an allegation of bias is one that must be distinctly made and clearly proven. Relevantly, to prove bias, an applicant must establish that:
(a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
(b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
There is nothing in the materials before the Court to indicate that the Tribunal was not open to persuasion. The Tribunal invited the applicant to attend a hearing. The applicant provided oral evidence at the hearing which the Tribunal regarded comprehensively. Ultimately, the Tribunal determined that the applicant’s version of events lacked credibility. That decision was made after a careful review of the applicant’s oral evidence and the information provided by the applicant in his visa application. The applicant may well disagree with the assessment ultimately made but the mere fact that he disagrees, or the fact that the Tribunal found against him, does not mean that the Tribunal lacked objectivity or had a “closed mind”.
No issue of bias arises here.
Overall, the Tribunal’s decision and reasoning process is entirely sound. No error arises in relation to ground 2.
Ground 3
For ease of reference, ground 3 provides (without alteration):
The Tribunal's decision did not accordance the criteria in s. 36(2) and Criteria s. 36(2)(a) or (aa).
The applicant has not indicated what he believes the Tribunal failed to do when assessing the criterion in s 36(2)(a) and (aa).
Relevantly, those provisions provide:
36 Protection visas—criteria provided for by this Act
…
(2) A criterion for a protection visa is that the applicant for the visa is:
(a)a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
The Tribunal summarised the scope and application of these provisions in its decision, as follows:
8.The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
9.Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
10.A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
11.Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
12.If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
13.In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
This is the legislative umbrella under which the Tribunal determined the evidence before it. Ultimately, as discussed above, the Tribunal found the applicant’s evidence to be contradictory and lacking credibility. That credibility finding was, on the evidence, sound and ultimately allowed the Tribunal to reject the applicant’s protection claims as per the relevant statutory criterion.
No error arises in this regard.
Applicant’s affidavit
As explained above, in an affidavit attached to his application for judicial review, the applicant claims as follows:
2. It is in my view that my matter was conducted in a rush manner and I was not given any opportunity to present my arguments and evidences as well as that the Tribunal did not consider my individual merits.
In this regard, the Court notes (and agrees with) the Minister’s written submissions, as follows:
31.…. The applicant had approximately 11 months from the date he lodged the review application on 18 December 2020 until the Tribunal’s decision was made on 5 November 2021. Additionally, the Tribunal hearing conducted on 4 November 2021 lasted for approximately one hour and fifteen minutes. Whilst the Tribunal decision was made the day after the hearing, this does not imply that the decision was “rush[ed]” and, rather, reflects the paucity of evidence the applicant put before the Tribunal, and the inherent incredibility of his claims…
There is no evidence before the Court to suggest that the Tribunal did not determine the applicant’s claims (and evidence) fairly and without prejudice. The fact that a decision was made “quickly” does not mean that it was rushed and made without care and due diligence. The merits of the applicant’s claims were assessed after careful consideration of the limited written and oral evidence before the Tribunal. That evidence was found to be lacking.
No error arises in this regard.
CONCLUSION
The applicant’s application for judicial review and supporting affidavit have failed to identify any jurisdictional error on the part of the Tribunal. This Court is otherwise unable to identify any error.
The application is, accordingly, dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kendall. Associate:
Dated: 11 August 2022
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