Eqp18 v Minister for Home Affairs

[2019] FCCA 326

FEDERAL CIRCUIT COURT OF AUSTRALIA

EQP18 v MINISTER FOR HOME AFFAIRS & ANOR [2019] FCCA 326

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether there was apprehended bias by the Tribunal – no jurisdictional error identified – amended application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 425, 426, 476.

Applicant: EQP18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2516 of 2018

Judgment of: Judge Street

Hearing date: 13 February 2019

Date of Last Submission: 13 February 2019

Delivered at: Sydney

Delivered on: 13 February 2019

REPRESENTATION

Solicitors for the Applicant: Mr M Zhao
Sunfield Chambers Solicitors & Associates

Solicitors for the Respondents: Mr L Leerdam
DLA Piper

ORDERS

1. The amended application is dismissed.

2. The applicant pay the first respondent’s costs fixed in the amount of $7,467.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2516 of 2018

EQP18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 9 August 2018 affirming a decision of the delegate not to grant the applicant a protection visa.

2. The applicant was found to be a citizen of China and his claims were assessed against that country. The applicant was granted a class TU subclass 571 Student visa on 13 May 2009 and it was not until 10 July 2009 that he arrived in Australia using a People’s Republic of China passport in his own name. On 13 March 2012, the applicant applied for a class TU subclass 572 Student visa and the applicant was found to be eligible for the grant of an associated Bridging visa. The applicant was granted a subclass 572 Student visa on 22 May 2012 allowing him to stay until 15 March 2013 following which the applicant remained in Australia as an unlawful non-citizen. It was not until 6 February 2015 that the applicant lodged his application for a protection visa.

3. The applicant claimed to fear harm from the Chinese authorities, by reason of his parents claimed lifestyle, his alleged mistreatment at the college, and as a result of an alleged incident in 2008 and involvement of a Public Security Officer who was prosecuted, as well as the alleged lawful departure from China and remaining in Australia.

4. On 4 January 2016 the delegate found the applicant failed to meet the criteria for the grant of a protection visa. The applicant applied for review on 25 January 2016 and by letter dated 4 June 2018, the applicant was invited to attend a hearing on 3 August 2018 at which the applicant attended together with his representative to give evidence and present arguments.

5. The Tribunal, in its reasons, identified the background to the application and set out the relevant law. The Tribunal turned first to the issue concerning the delay in the applicant lodging a protection visa. In the context of considering the delay in the application for the visa, the Tribunal noted that during the hearing it had put to the applicant that he had a capacity to obtain a Student visa and that Chinese citizens may constitute the largest cohort of protection visa applicants in Australia and that he could have accessed the knowledge within the ex-patriate Chinese community or elsewhere in Australia. The observation made by the Tribunal was not a finding of fact but recording what had occurred during the course of the hearing and was raising with the applicant, consistent with s 425 of the Act, the issues concerning the applicant’s claims. After considering the applicant’s claims and evidence the Tribunal was not satisfied it was plausible that the applicant would not know about seeking protection in Australia sooner than he claimed. That was a finding that was clearly open to the Tribunal and cannot be said to be legally unreasonable.

6. The Tribunal turned to the applicant’s claimed fears and was not satisfied the applicant has a real chance of suffering serious harm in China for any reason involving the Chinese authorities if returned to China. 

7. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in China for any reason in respect of his parents’ claimed lifestyle.

8. The Tribunal was not satisfied that the applicant has a real chance of suffering harm in China or any reason arising from the alleged mistreatment at the College. 

9. The Tribunal referred to the alleged incident in 2008 where the applicant responded in an angry manner to an incident involving a person abusing the applicant’s mother. The applicant was told by his mother about the man from the Public Security Office and that this man had assisted the applicant’s father sell many of his calligraphy and painting works and that the applicant, thereafter, became angry and went to the police station and that the PSB officer told the mother to inform the applicant not to cause further trouble or he would be arrested. It was also suggested that the PSB officer was concerned the applicant would continue to cause trouble and that it was decided he should leave China. 

10. The Tribunal noted that the applicant was given the assistance of a migration agent and an interpreter when preparing his protection visa claims, and it did not appear plausible that the applicant’s complaint about the PSB officer’s conduct, which was made in 2008/2009, would cause the PSB officer to be prosecuted in 2016/2017, particularly as the alleged principal complainant, being the applicant had not been in China since 2009. The Tribunal referred to, the PSB officer being prosecuted in China in 2016/2017, which the Tribunal accepted took place.  The Tribunal found it had no material relevance to the applicant or his family and would not cause the applicant to have a real chance of suffering any harm on return to China.

11. The Tribunal rejected the applicant’s claim that in 2008/2009 he reported the PSB officer’s corrupt activities to an anti-corruption bureau in China and found the same to be false. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in China for any reason in relation to the PSB officer or the prosecution of the PSB officer. 

12. The Tribunal referred to the applicant’s lawful departure from China and was not satisfied the applicant has a real chance of suffering serious harm in China for any reason associated with his departure from China.

13. The Tribunal referred to the applicant’s studies and having lost his parents’ money and the Tribunal found irrespective of why the applicant ceased studying in Australia, the Tribunal was not satisfied the applicant has a real chance of suffering serious harm in China for any reason.

14. The Tribunal’s findings were on their face dispositive of the applicant’s claims and as an independent consideration, the Tribunal then proceeded to determine whether in any event, the applicant could reasonably relocate. The Tribunal found that it was not satisfied there is any reason why the applicant would have a real chance of suffering serious harm should be relocate within China. The Tribunal was satisfied the applicant can safely relocate within China. The Tribunal found the applicant did not satisfy the criteria under s 5J(1)(c) of the Act because the real chance of persecution does not relate to all areas of China. 

15. The Tribunal was not satisfied the applicant has a real chance of suffering serious harm in China by reason of being a failed asylum seeker.

16. The Tribunal referred to having considered the applicant’s claims cumulatively and was satisfied that the applicant does not have a real chance of suffering persecution for a prescribed ground in China.

17. The Tribunal was not satisfied the applicant is a person in respect of whom Australia has protection obligations and found the applicant did not meet the criteria under s 36(2)(a) of the Act. 

18. The Tribunal turned to the issue of complementary protection and also took into account the provision concerning relocation applicable in respect of significant harm.  The Tribunal was not satisfied the applicant has a real chance of suffering serious harm for reason of any claim should he relocate within China. The Tribunal was not satisfied the applicant has a real risk of suffering significant harm for reason of any claim that the Tribunal had accepted. 

19. The Tribunal turned to the question of whether it was reasonable for the applicant to relocate. The Tribunal referred to the applicant’s individual circumstances and taking into account country information, was not satisfied that it would be unreasonable for the applicant to relocate within China.

20. The Tribunal referred to the applicant’s work skills, education and the availability of health services. The Tribunal referred to raising with the applicant whether it was reasonable for him to relocate within China.  The Tribunal was satisfied that it is safe and reasonable for the applicant to relocate within China. 

21. The Tribunal found considering the applicant’s claims cumulatively, that the applicant does not face a real risk of suffering significant harm in China. The Tribunal was not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant’s removal from Australia to China there is a real risk the applicant will suffer significant harm. The Tribunal found the applicant did not meet the criteria under s 36(2)(aa) of the Act and affirmed the decision under review.

The grounds

1. The grounds in the amended application are as follows:

   1. The decision of the second respondent (the Tribunal) was vitiated by a reasonable apprehension of bias.

   Particulars

   (a) During the Tribunal hearing the Tribunal repeatedly put to the applicant that he might be disbelieved or his veracity was generally in issue.

   (i) In relation to the questions on the applicant's failure to claim in his PV application that he complained to the Chinese anti-corruption agency of the PSB officer, the Tribunal commented that "The fact that your statement was prepared by a migration agent and is signed off as being read to you by an interpreter may cause me to consider whether this new claim is false. Do you understand what I have said?" at 20 of page 8 of the AAT hearing transcript (the Transcript).

   (ii) The Tribunal put to the applicant" Well I do understand what you have said but I'll need to consider what you have said when draft my decision." at 30 of page 9 of the Transcript.

   (iii) The Tribunal put to the applicant that “and also it doesn’t appear plausible for him to be prosecuted for something in 2016 or 2017 when allegedly the only witness was yourself and you hadn’t been in China since 2009.” at 30 of page 10 of the Transcript.

   (iv) The Tribunal again after the line of questioning mentioned in (i) put to the applicant that “Now I may reject that claim as false however that is something that I will need to consider when I draft my findings." at 20 of page 11 of the Transcript.

   (v) The Tribunal put to the applicant that "I understand what you have said and I will consider what you have said when I draft my findings." at 30 of page 11 of the Transcript.

   (vi) The Tribunal put to the applicant that "I do understand what you have said but I will need to consider what you have said when I draft my findings." at 20 of page 13 of the Transcript.

   (vii) The Tribunal put to the applicant that "I do understand that you say that you were mistreated at school but I will have to make, draw my own conclusions about that." at 20 of page 17 of the Transcript.

   (viii) The Tribunal put to the applicant that "I understand what you have said and I will consider what you have said when I draft my findings." at 20 of page 19 of the Transcript.

   (b) The Tribunal, at [49] of the decision, did not make any finding one way or another, in terms of the applicant's credibility, with respect to the applicant's claim that he ceased to study in December 2012 because his distant relative lost his tuition in gambling.

   (c) The Tribunal, at [49] of the decision, without any evidence speculated that the applicant had somehow gambled and lost his parents' money (which had been sent for his education in Australia), at 30 of page 21 of the Transcript.

   (d) The Tribunal, at [42] of the decision, without any evidence speculated that the PSB officer was not prosecuted because of the applicant’s complaint in 2008, instead more likely to do with things happened close to 2016.

   (e) The Tribunal, at [39] of the decision, stated that "given the Tribunal was not satisfied the applicant was generally credible, ... I am not satisfied there is a real chance the applicant would (again) be 'labelled and targeted by the police' on return to China. I am not satisfied there is a real chance there would be any ongoing adverse interest in the applicant upon his return to China.” This is a circular argument.

   (f) The Tribunal put to the applicant that “Well look it does not appear that you want to talk about what it was, why you can't safely relocate ... 11 at10 of page 29 of the Transcript. However, the applicant did answer that specific question at 20 of page 27 of the Transcript.

   2. The Tribunal made a finding that was not supported by the evidence.

   Particulars

   (a) The Tribunal found , at [14], that Chinese citizens still may constitute the largest cohort of PV applicant’s in Australia.

   (b) There was no evidence to support this finding; rather, the applicant was not aware of this fact and was not reasonably expected to have accessed the knowledge within the ex-patriate Chinese community (or elsewhere) in Australia as suggested by the Tribunal at [14].

Ground 1(a)

1. The Court has had tendered the transcript of the hearing before the Tribunal. The Court has considered the transcript carefully and read the same in relation to the allegations raised by ground 1. The transcript does not support the proposition that the Tribunal did other than approach the review with an open mind reasonably capably of persuasion as to the merits. There is no use of intemperate language by the Tribunal and on the face of the Tribunal’s transcript, the Tribunal sought to raise with the applicant the real issues consistent with the Tribunal’s obligations under s 425 of the Act.

2. Mr Zhao on behalf of the applicant, submitted that it was unnecessary for the Tribunal to frame questions in a manner that identified that the Tribunal may think, for example, the new claim is false. The Tribunal’s language clearly identified that the Tribunal was giving the applicant an opportunity to respond to concerns that the Tribunal had. The language does not support the contention that the Tribunal approached the review with a predetermined mind or a closed mind, nor is there any intemperate language of the kind that might support the allegation of apprehended bias.

3. Neither the transcript, nor the findings of the Tribunal identify any proper basis upon which a reasonable informed lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

4. The Court has carefully considered the transcript and, in particular, the allegations in ground 1(a) and the extracts identified in (i) to (viii) allegedly advanced in support of ground 1. None of the passages referred to properly support any basis upon which a reasonably informed lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. Nor does a cumulative consideration of those matters support any such finding.

5. The Tribunal, at the commencement of the hearing, identified the task being undertaken by the Tribunal under the Convention and explained the process to the applicant.  It is apparent that the Tribunal member was endeavouring to give the applicant a real and meaningful opportunity to give evidence and submissions and, indeed, the Tribunal said as much at page 4 of the Transcript. The transcript is consistent with the applicant having a real and meaningful hearing.

6. In relation to particular (i), the assistance by the applicant of a migration agent in preparing the protection visa application, was relevant and a logical and rational matter for the Tribunal member to raise. The question put to the applicant by the Tribunal was open and does not reveal any basis upon which a ground of apprehended bias could properly be advanced.

7. In relation to particular (ii), the foreshadowing of having understood what the applicant has said and needing to consider what the applicant has said when the Tribunal comes to make its decision, does not identify any basis upon which an allegation of bias could properly be advanced.

8. In relation to particular (iii), exploring the issue with the applicant as to the plausibility of the prosecution of the particular PSB officer in circumstances where the applicant was alleged to be a witness and had not been in China since 2009, was logical and rational and does not identify any basis upon which an allegation of apprehended bias could be established. 

9. In relation to particular (iv), the foreshadowing that the Tribunal may find the claim is false and having to consider that matter when drafting reasons, was giving the applicant an opportunity to respond to the Tribunal’s concerns and does not identify any proper basis upon which it could be said that the Tribunal could be the subject of concern on the grounds of apprehended bias.

10. In relation to particular (v), the foreshadowing by the Tribunal of considering what has been understood is not a basis to identify any allegation of bias. The Tribunal on the material before the Court understood the applicant’s claim and evidence and made dispositive findings that were open.

11. In relation to particular (vi), the understanding of what has been said and having to consider the same is not identified by any proper basis upon which bias could be alleged.

12. In relation to particular (vii), the identification of an understanding in relation to the applicant’s evidence about being mistreated and having to draw the Tribunal’s own conclusions does not identify any predetermination or any proper basis for alleging that the Tribunal was the subject of apprehended bias.

13. The reference in particular (viii) to having understood what the applicant has said, having to consider the same and drafting the reasons does not identify any proper basis upon which an allegation of apprehended bias could be made. 

14. None of the matters in ground 1(a)(i) to (viii) established any basis for an allegation of apprehended bias. No apprehended bias is established by grounds 1(a)(i) to (viii).

Ground 1(b)

1. In paragraph 49 of the Tribunal’s reasons, the Tribunal referred to raising with the applicant that it did not appear plausible his parents would not send him money for his education and the Tribunal identified that it became apparent that an education agent paid the school having allegedly received money from a distant relative.

2. The Tribunal has referred in paragraph 49 to raising with the applicant whether he had somehow lost his parents’ money. The raising of the issues, as identified in paragraph 49 by the Tribunal, are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of the matter on its merits.

3. The criticism appears to be in relation to paragraph 49 that the Tribunal did not make a finding as to whether the applicant had lost the funds by gambling.  It was not necessary for the Tribunal to make such a finding. Nothing in ground 1(b) identifies a proper basis upon which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.  No apprehended bias is made out by ground 1(b).

Ground 1(c)

1. In relation to ground 1(c) the Tribunal’s reasoning does not reflect speculation but rather records what occurred during the course of the hearing and accurately identifies the applicant’s response. The hearing transcript at page 21 identifies the Tribunal raising with the applicant the information from the applicant’s records in relation to what had been advanced as to what happened with the money.

2. Nothing on page 21 or 22 of the hearing transcript, taken together with paragraph 49 of the Tribunal’s reasons, or on its own, or with the other references in the transcript supports any ground upon which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of that on its merits. Neither the transcript nor the Tribunal’s reason support any conclusion other than that the Tribunal conducted the review with an open mind reasonably capable of persuasion as to the review. No allegation of bias can properly be supported by ground 1(c). No apprehended bias is made out by ground 1(c).  

Ground 1(d)

1. In relation to ground 1(d), this does not accurately record the findings made by the Tribunal as the Tribunal was prepared to accept that the PSB officer was prosecuted. The finding by the Tribunal that the reason the PSB officer was prosecuted in China in 2016/2017 has no material relevance to the applicant or his family was open in circumstances where the applicant had not been in China since 2009. The adverse findings by the Tribunal in that regard, together with the Tribunal’s reasoning, does not support any basis upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No proper basis for the allegation of apprehended bias is made out by ground 1(d). No apprehended bias is established by ground 1(d).

Ground 1(e)

1. In relation to ground 1(e), the credibility of the applicant was an obvious and relevant matter for the Tribunal to take into account, particularly given the applicant’s continued unlawful presence in Australia after having arrived on a student visa and the applicant’s delay in applying for protection. It was relevant to the Tribunal to determine whether the applicant was generally credible, and the finding that he was not so credible cannot be said to be illogical or irrational or unreasonable in the circumstances of the delay in the application for protection. The adverse findings were open for the reasons given by the Tribunal as summarised above.

2. Further, the Tribunal’s reasons in paragraph 39 do not identify any proper basis upon which it could be said that a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. No apprehended bias is established by ground 1(e).

Ground 1(f)

1. In relation to ground 1(f), the Tribunal starting on page 26 of the transcript, explored with the applicant his ability to relocate, and the Tribunal identified that it may think there is not a real chance that any person would be prepared to trace the applicant if he moved to another city in China or another location in China. It is apparent that the Tribunal sought to explore this issue with the applicant and the applicant referred to having married an Australian citizen. The Tribunal also referred to the applicant raising the Hukou again.

2. The Tribunal squarely put to the applicant:

   “I may not think that there’s a real chance that anyone would even attempt to try and locate you should you move to China. Do you want to comment on that?”

   And the applicant responded:

   “So you can tell me what to do.” 

3. The Tribunal further explored internal relocation and identified the applicant’s ethnicity. The Tribunal again identified it was seeking to explore whether the applicant can safely move within China. The applicant responded:

   “Yes.  First of all even if I relocate to another place you are not allowed to buy a property, a car or enjoy Medicare or the study of children if you, because you don’t have the Hukou.” 

4. The Tribunal referred to the issue of education of any children that the applicant may have in the future or any health issues, and referred to a particular city where the applicant’s school was located. The Tribunal raised with the applicant that he would be able to obtain services that he needed within China.

5. The Tribunal asked whether other than the Hukou, there was any other reason the applicant wanted to tell him why he could not safely relocate. The applicant responded:

   “I’m already married here first and I do the business here a long time.  I live here a long time and, and what could I say?” 

6. Because in that context, the applicant responded that he had been married, working and working unlawfully for two years, the Tribunal referred to understanding what the applicant had said and stated that it did not appear the applicant wanted to talk about what it was, and why he cannot safely relocate. When the applicant talks about why it was not reasonable for him to relocate, he said that he is married and his wife is an Australian citizen, and that he lives in Australia and worked.

7. The Tribunal had identified that those skills could be used in China and that his wife may or may not choose to travel back to China. The Tribunal also referred to the low unemployment rate in China and the size of the economy, and sought again to explore with the applicant why he did not think it was reasonable to relocate within China. The applicant again repeated the reference to the Hukou system, and that if you do not have the Hukou you cannot enjoy Medicare and free Medicare. 

8. The Tribunal identified that the applicant did not have children, but that he was worried about children in the future and that the applicant thought he would be better off in Australia, and that the Tribunal may think it is not unreasonable for the applicant to relocate, and invited the applicant to comment about that. The applicant responded “no.”  The Tribunal identified that it would consider what was said.

9. The Tribunal’s reasons, when read in the context as a whole and taking into account the transcript including page 29 do not reveal the Tribunal having a closed mind. Neither the reasons nor the transcript identify upon which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits.

10. The proposition that the applicant did succinctly answer the question at line 20 of page 27 of the transcript does not reflect the full content of what occurred in the exchanges considering relocation. The observation that the applicant did not appear to want to talk about that issue does not reflect any closed mind by the Tribunal, nor was that observation on the face of the transcript as a whole, as referred to above an inaccurate or unfair summary in relation to what the applicant had said, other than referring to the Hukou. No apprehended bias is established by ground 1(f). No proper basis for the allegation of apprehended bias made out by ground 1.

11. No jurisdictional error as alleged in ground 1 is made out. 

Ground 2

1. In relation to ground 2, Mr Zhao submitted that the Tribunal’s reference to the number of Chinese citizens making protection visa applications was a finding of fact. That proposition is not correct. It is apparent that what was occurring by the Tribunal in paragraph 14 was summarising what had occurred during the hearing. The proposition that there was no evidence to support the finding is flawed as there was no finding by the Tribunal in that regard. The Tribunal was identifying what had occurred during the hearing. The raising by the Tribunal of what may be the largest number applying for protection visas is not of itself conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. There is no substance in the proposition that the Tribunal was making a finding and the proposition that it was not supported by evidence is irrelevant. The Tribunal was summarising what had occurred. Further, the Tribunal is not required to disregard its general knowledge in conducting a review.  It was and relevant for the Tribunal to take into account its general knowledge in raising issues with the applicant. No proper basis for any jurisdictional error is disclosed by ground 2. No jurisdictional error is established by ground 2.

Conclusion

1. Whilst the Court has found that each of the grounds have failed, the Court has not made a finding engaging any need for consideration under s 486E of the Act. The argument was succinctly and properly presented by Mr Zhao, the solicitor for the applicant, and Mr Zhao took the Court to a number of authorities in support of the grounds identified. Whilst the grounds have failed, no issue arises under s 486E of the Act.

2. As the amended application fails to make out jurisdictional error, the amended application is dismissed.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 15 March 2019