Ewh19 v Minister for Immigration
[2020] FCCA 2021
•23 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EWH19 v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 2021 |
| 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: Migration Act 1958 (Cth), ss.36, 424A |
| Cases cited: Applicant WAEE v Minister for Immigration (2006) 236 FCR 593 |
| Applicant: | EWH19 |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3221 of 2019 |
| Judgment of: | Judge Driver |
| Hearing date: | 23 July 2020 |
| Delivered at: | Sydney |
| Delivered on: | 23 July 2020 |
REPRESENTATION
| The applicant appeared in person |
| Solicitors for the Respondents: | Ms G. Allen of MinterEllison |
INTERLOCUTORY ORDERS
Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3221 of 2019
| EWH19 |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction
The applicant seeks judicial review of a decision of the Administrative Appeal Tribunal (Tribunal). The decision was made on 15 November 2019. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa. Background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions.
Factual background
The applicant is a citizen of China, who arrived in Australia on 9 April 2008 as the holder of a student (subclass 571) visa (student visa). The applicant's student visa ceased in March 2010.[1]
[1] CB 254 at [109]; CB 203
On 22 October 2015, the applicant lodged an application for a protection visa.[2] The applicant attended a protection visa interview before the Minister’s Department on 15 August 2016.[3] The application was refused by the delegate on 20 September 2016.[4]
[2] CB 1–40
[3] CB 59–63; CB 153
[4] CB 148–165
On 5 October 2016, the applicant sought review of the delegate's decision before the Tribunal.[5]
[5] CB 166–167
On 7 August 2019, the Tribunal sent the applicant a letter, by email, inviting him to attend a hearing before the Tribunal on 9 October 2019 at 9.30am.[6]
[6] CB 179–181
On 4 September 2019, the applicant's representative advised the Tribunal that he had been appointed by the applicant, and accordingly, sent the Tribunal a completed Appointment of Representative—MR division form and a completed Form 956.[7]
[7] CB 192–196
On 11 September 2019, the applicant's representative sent the Tribunal a statutory declaration made by the applicant on 11 September 2019.[8]
[8] CB 197–202
On 9 October 2019, the applicant appeared before the Tribunal to give evidence and present arguments in relation to the issues arising in his case, assisted by his representative and a Mandarin interpreter.[9]
[9] CB 209–211
On 17 October 2019, the Tribunal wrote to the applicant, by his representative, pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act), inviting him to comment on or to respond to information which it considered would, subject to comment or response, be the reason, or a part of the reason, for affirming the decision under review by 31 October 2019 (the s.424A letter).[10]
[10] CB 212–218
On 28 October 2019, the applicant's representative sent the Tribunal a further statutory declaration made by the applicant on 28 October 2019.[11]
[11] CB 219–222
On 15 November 2019, the Tribunal affirmed the decision under review.[12]
[12] CB 229–260
Applicant’s claims
The applicant made claims in his protection visa application,[13] at his protection visa interview,[14] and in his 11 September 2019 and 28 October 2019 statutory declarations.[15]
[13] CB 37–40
[14] CB 236
[15] CB 198–202; CB 220–222
The applicant claimed to fear harm from the Chinese government if returned to China. In his protection visa application, the applicant recounted the following events:[16]
a)the applicant arrived in Australia in April 2008 and a month later, his family's seaweed and abalone farm was compulsorily appropriated by the Chinese government. His father was offered inadequate compensation and organised protests with other affected villagers. In May 2008, his father was arrested by the Chinese police, was sentenced to and served a two year reform through labour detention and was released in May 2010;
b)the applicant was negatively impacted by his family's treatment which caused him to cease his studies. He considered applying for a protection visa in 2008, but was told by several migration agencies that he would have no chance of success;
c)the applicant's father was continually harassed after his release from custody, was unable to earn a living and moved to Fuzhou City in 2013 to work as a labourer;
d)in July 2015, a former girlfriend of the applicant, “L”, was elected leader of a protest movement against the Chinese government's plans to sell land to a real estate developer. L petitioned the Provincial Government in Fuzhou City and was accused of organising anti-government activities. L sought assistance from the applicant's father to hide her and connect her with a “snake head” to depart China illegally to avoid arrest; and
e)in September 2015, the applicant transferred money into a Chinese bank account to help L pay the snake head; however, L was arrested in October 2015 while attempting to escape. The applicant and his father are now wanted by the Chinese police for assisting L and the applicant would be arrested immediately if he returned to China.
[16] CB 37–40
At his protection visa interview, the applicant made the following additional claims:[17]
a)the applicant did not have evidence of his father's arrest in 2008 or of his subsequent two year detention, but he did have a “wanted certificate” for his father in relation to a later incident “at home”;
b)the applicant sent L $30,000 to pay the snake head in August 2015. However, he discarded any record of the remittance transaction; and
c)the applicant did not seek a protection visa prior to October 2015 because he only saw a need to do so after the authorities became aware that he had assisted L in her attempt to depart China.
[17] CB 236
Tribunal decision
The Tribunal recorded the applicant's key claims for protection,[18] and outlined the issues traversed with the applicant at hearing[19] and the adverse information put to the applicant for comment after the hearing in the s.424A letter.[20]
[18] CB 233–237 at [15]–[20]
[19] CB 237–241 at [21]–[48]
[20] CB 241–243 at [49]–[50]
The Tribunal made the following relevant findings:
a)the Tribunal did not accept that the applicant had contemplated applying for a protection visa in 2008;[21]
b)the Tribunal did not accept a family seaweed and abalone farm was confiscated by the Chinese authorities in May 2008, that the applicant's father was subsequently arrested, detained for two years and subjected to ongoing harassment from Chinese authorities due to his protest activities against the compulsory acquisition, nor that the applicant had contemplated applying for a protection visa at that time;[22]
c)the Tribunal did not accept that L organised protests and or petitions against the sale of land in their village, that she sought assistance from the applicant's father to hide her and connect her with a snake head, that the applicant transferred funds to L for the purpose of helping her pay the snake head, nor that L was arrested in October 2015;[23] and
d)the Tribunal did not accept that any arrest warrants were issued by the Chinese police for either the applicant or his father, that the applicant was of any adverse interest from the Chinese authorities, nor that his mother had burned any arrest warrants due to her religious beliefs.[24]
[21] CB 254 at [110]
[22] CB 254 at [110]–[111]
[23] CB 254 at [112]–[113]
[24] CB 249 at [75]; CB 255 at [114]
Having considered all the applicant's claims and evidence before it, the Tribunal found that aspects of the applicant's evidence were “inconsistent, contradictory, unpersuasive and unconvincing”, and accordingly, that the applicant was not a witness of truth or credible in his claims.[25] Having rejected the factual basis upon which his claims to fear harm were based, the Tribunal was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under ss.36(2)(a) and 36(2)(aa) of the Migration Act.[26]
[25] CB 253 at [106]
[26] CB 255–256 at [117], [122]–[124]
The current proceedings
These proceedings began with a show cause application filed on 9 December 2019. The grounds in it are expressed in narrative form as follows:
1. I believe that the Administrative Appeals Tribunal ("the Tribunal") did not judge with an impartial and logical mind. The Tribunal made unreasonable arguments that were not open to the evidences before them. I believe the Tribunal always had the intention to reject my application.
2. The Tribunal made the following unreasonable arguments and assertions
3. Firstly, with regard to my parents' employment up until September 2017. I had claimed the fact that my parents were not employed excluding their involvement in their family seaweed and abalone business. The Tribunal did not accept this claim due to the discrepancy it had with a piece of information. the Tribunal found from my student visa application from 2007. however, I argued there should not be any weight placed on the information in my student visa application from 2007 because I was not the submitter of that application and I Did not prepare that application. as I had claimed many times already, my student visa application from 2007 was arranged entirely organised and prepared by my father's friend. Particularly neither have I nor my parents signed in person any documenes in relation to my student visa. I am actually entirely unfamiliar with the information there. The Tribunal adamantly refused to accept this claim without fear or reasonable consideration aside from their own belief that the documents in my student visa application were real.
4. Secondly, with regards to my mother's burning of the arrest warrants. I had explained that she is a very superstitious person and this is something that she felt she had to do in order to rid our family of the bad luck. The Tribunal refused to accept this, claiming it was "improbable" which is unreasonable because they have no grounds to believe my mother should have kept these arrese warrants. For what reason would the Tribunal have for my mother to keep the arrest documents after they no long had my use. There is no sound and reasonable argument the Tribunal can make for their assertion that my mother would not burn such a document besides the obvious fact that the Tribunal is married to their own subjective idea that this document is very important. And that the Tribunal themselves had it been them in the situation would most likely not burn the documents. The Tribunal's rejection of the possibility that my mother is actual superstitious and that she actually did want to get rid of the bad omens that she thought the arrest warrant carried is just a demonstration that the Tribunal is unwilling to open their mind and consider the facts and evidences with an impartial mind.
5. Thirdly, with regards to the remittance of my life savings to an old school friend, the Tribunal is adamant that I should have kept some form of evidence of this without much reasonable sense. I let my close friend borrow money from me because my close friend needed it more than me at the time and I trusted I would get it back eventually. when lending money between friends it is not expected to have some of written agreement or arrangement to record this transaction because my friend and I had the mutual trust that I would get paid back eventually. It is unreasonable for the Tribunal to be so expectant of evidence in this situation.
6. Fourthly, with regards to my work and studies in Australia, the Tribunal stated it found inconsistencies in my recount of some of the facts. The Tribunal states this is evidence of my general credibility concerns. I find this to be an incredibly unfair and unreasonable assertion to make given the fact that my discussions with the Tribunal covered all the way back to 2009. we talked about over a decade of my life to a lot of details. it is impossible for me to recount all of them exactly and there is bound to be some causes for confusion in my recounts. the Tribunal should have asked me to clarify and make clear some situations And also try to understand the situation I am in when I have to talk about my life in so much detail. It is extremely difficult for me and it is unfair for the Tribunal to consider some of the lacking areas as some sort of representation of my incredible character. It. Once again. speaks to me that the Tribunal preconceived the idea that I am not a credible witness.
7. The Tribunal made me feel like the whole Process was just to satisfy And comply with the necessary procedures and there was no legitimate chance for me to actually change the Tribunal's mind.
8. I do not believe I was given a fair chance at seeking protection.
The Minister discerns from the grounds, essentially, three legal propositions. The first is that the Tribunal did not approach its task with an impartial mind. The second is that the Tribunal’s decision was unreasonable, and the third is that the conclusions and reasoning employed by the Tribunal were unfair. The applicant confirmed that those were his essential concerns with the Tribunal decision when he made his oral submissions.
I have before me as evidence the applicant’s affidavit filed with his application and the court book filed on 27 February 2020. Only the Minister prepared written submissions in advance of today’s hearing. I invited oral submissions from the applicant. He made extensive submissions which addressed the adverse credibility findings made by the Tribunal. The applicant is convinced that the Tribunal’s adverse credibility findings reflect bias, unreasonableness and unfairness.
He presented a detailed critique of the Tribunal’s adverse credibility findings. In that regard, as I said to him, he was an effective advocate in his own cause. Further, as I also put to him, the Tribunal decision establishes that he also presented effective arguments to the Tribunal at the Tribunal hearing. His arguments were, however, not accepted by the Tribunal.
If this case was to be determined on the basis of the merits of the Tribunal decision, the applicant would have established an arguable case. However, as I explained to him, the focus of the Court is much narrower. The Tribunal’s process was, in my view, fair and consistent with the Tribunal’s obligations under the Migration Act. There is no evidence of bias or prejudgement by the Tribunal. On the contrary, the Tribunal’s decision discloses a detailed analysis of the applicant's claims and the credibility issues.
The Tribunal’s reasoning is not illogical nor unreasonable. I otherwise agree with the Minister’s submissions concerning the grounds of review advanced.
Bias and adverse credibility findings
The applicant has provided four examples of alleged deficiencies in the Tribunal's adverse credibility findings which he says, in particular 7, cumulatively indicate that “there was no legitimate chance for me to actually change the Tribunal's mind”.[27]
[27] particulars 3, 4, 5 and 6
Actual bias is a statement of mind by which one is so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument that may be presented.[28] An allegation that a decision is affected by a reasonable apprehension of bias requires the Court to be satisfied that a fair minded lay person might think that the decision maker might not bring a fair and impartial mind to the making of the decision.[29] Any such allegation must be distinctly made and clearly proved.
[28] Minister for Immigration v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [72] per Gleeson CJ and Gummow J
[29] Minister for Immigration and Citizenship v SZQHH (2012) 200 FCR 223; [2012] FCAFC 45 at [37] per Rares and Jagot JJ
I accept that the Tribunal gave substantial and clear reasons for rejecting the applicant's claims and those reasons disclose a proper evaluation of the documentary and oral evidence before it, were made in a procedurally fair manner and had a logical and probative basis.[30] The extensive credibility concerns raised by the Tribunal were not objectively minor matters, as they went to the changeability and implausible nature of the applicant's claims.[31]
[30] cf. DAO16 v Minister for Immigration (2018) 258 FCR 175; [2018] FCAFC 2 (DAO16) at [30] per Kenny, Kerr and Perry JJ
[31] see, for example: CB 241–245 at [49]–[50], [53]; CB 248 at [68]; CB 249 at [74]–[75]; CB 250 at [82]; CB 251 at [88]; CB 252 at [98]–[105]
There is nothing in particulars 3, 4, 5 or 6 which, considered individually or cumulatively, demonstrate that a fair‑minded lay person might think that the Tribunal did not bring a fair and impartial mind to the making of its decision.[32] No inference of bias or prejudgement should be drawn from the mere fact of adverse credibility findings.[33] Moreover, it would be a rare case where bias could be made out on the basis of the Tribunal's reasons alone and that the applicant has not filed a transcript of the Tribunal hearing.[34]
[32] SZQHH at [37] per Rares and Jagot JJ
[33] SCAA v Minister for Immigration [2002] FCA 668 at [38] per Von Doussa J
[34] Minister for Immigration v SZNPG [2010] FCAFC 51 at [18] per North and Lander JJ
As to particular 4, the Tribunal did not require “grounds” to support its finding at [74] that it was improbable that the applicant's mother would have burned the claimed arrest warrants. It had rejected the factual premise upon which that claim was advanced when it found that the arrest warrants did not exist.[35]
[35] CB 249 at [75]: Applicant WAEE v Minister for Immigration (2006) 236 FCR 593; [2003] FCAFC 184 at [47] per French, Sackville and Hely JJ
Illogical or irrational findings
The applicant has provided three examples of findings by the Tribunal which, taken at their highest, are complaints that the relevant findings of the Tribunal were illogical and did not have a probative basis.[36]
[36] particulars 3, 5 and 6
The Tribunal's findings as outlined in particulars 3, 5 and 6 were plainly based on its assessment of the documents annexed to the applicant's student visa application, his oral and documentary evidence given in support of his protection visa application and the applicant's 28 October 2019 statutory declaration submitted in response to the s.424A letter.[37] The Tribunal's reasons for those findings do not fail to disclose a rational basis, nor can they reasonably be classified as illogical, irrational or without foundation.[38] This ground goes no higher than to seek impermissible merits review.
[37] see, for example: CB 246–247 at [57]–[62]; CB 249 at [77]–[79]; CB 250–251 at
[84]–[86], [90]–[93][38] Minister for Immigration v SZMDS (2010) 240 CLR 611; [2010] HCA 16 at [135] per Crennan and Bell JJ; DAO16 at [30] per Kenny, Kerr and Perry JJ
Unfair decision
The applicant alleges in particular 8 that he was not given “a fair chance at seeking protection”. For the above reasons the matters raised in support of this allegation have not been made out, such that it fails to disclose an arguable case for the relief sought.
I conclude that the applicant has failed to demonstrate an arguable case of jurisdictional error by the Tribunal.
I will therefore order that pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant did not wish to be heard on costs
I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, in the sum of $3,737 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 of Schedule 1 to the Federal Circuit Court Rules.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 28 July 2020
Key Legal Topics
Areas of Law
-
Administrative Law
-
Immigration
Legal Concepts
-
Judicial Review
-
Jurisdiction
-
Procedural Fairness
-
Standing
0
11
2