SZVDP v Minister for Immigration

[2015] FCCA 3155

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVDP & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3155

Catchwords:

MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether the Tribunal failed to consider the applicant’s claims – allegation of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 424AA, 476

Cases cited:
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
NABE  v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425

First Applicant: SZVDP

Second Applicant SZVDQ

Third Applicant SZVDR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2647 of 2014

Judgment of: Judge Nicholls

Hearing date: 20 November 2015

Date of Last Submission: 20 November 2015

Delivered at: Sydney

Delivered on: 20 November 2015

REPRESENTATION

First Applicant: In person, as litigation guardian for the third applicant and on behalf of the second applicant.

Solicitors for the Respondents: Mr M Glavac of Clayton Utz

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 24 September 2014 is dismissed.

3. The first and second applicants pay the first respondent’s costs set in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2647 of 2014

SZVDP

First Applicant

SZVDQ

Second Applicant

SZVDR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 24 September 2014, seeking review of the decision of the then Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 30 August 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following relevant background can be ascertained from those documents.

2. The applicants are citizens of the People’ Republic of China (“China”). The first and second named applicants have been in a “de facto” relationship since May 2012 (“the applicant” and “the second applicant”). The third named applicant is their child (“the third applicant”) who is described in documents provided by the applicants as having been born out of wedlock on 7 June 2013.

3. The applicant arrived in Australia on 9 September 2007 on a Student (Subclass TU - 571) visa. She applied unsuccessfully for a protection visa in March 2010. Relevantly, in that application, she claimed to have “no religion” and to fear harm on return to China on the basis of her Falun Gong practice.  In any event, at some point, the first applicant left Australia and then returned.  Importantly, that meant that she was able to make a second application for a protection visa onshore and she did so on 22 March 2013 (CB 1).

4. The applicant attached a written statement to her application titled “Our Protection Statement” (CB 34 to CB 47). In this application she claimed to fear harm on return to China because of what she said was her long-standing Christian practice through the local church.  The second and third applicants applied as members of her family unit (CB 16 to CB 33 and [3] at CB 125). Although, as the matter ultimately came before the Tribunal, the second applicant also expressed some claims to fear harm.

5. The delegate refused the applicants protection visas on 20 September 2013 (CB 61 to CB 99). Essentially, the delegate found that the first and second applicants were not witnesses of truth (CB 71 and CB 76).

The Tribunal

1. The applicants applied to the Tribunal for review of the delegate’s decision on 2 October 2013 (CB 100 to CB 105). The applicants attended a hearing before the Tribunal on 22 July 2014 (CB 112 to CB 114). The applicants attended a further hearing before the Tribunal on 25 August 2014 (CB 120 to CB 122).

2. The Tribunal affirmed the decision of the Minister’s delegate on 30 August 2014 (CB 124 to CB 150).

3. The Tribunal had a number of concerns about the applicant’s evidence, arising from what the Tribunal found to be inconsistencies in her claims to protection in her respective applications. For example, as I said earlier, in her first protection visa application, the applicant claimed to have “no religion” and to fear harm as a Falun Gong practitioner. Yet in her second application she claimed to have been an adherent of a local church in China, including during the time that she had previously claimed to have been a Falun Gong practitioner, and to have had “no religion”.

4. The Tribunal found the applicant’s explanation for this, or attempted explanation for this, as being unpersuasive ([18] at CB 129 to [20] at CB 130). The Tribunal also found the applicant’s evidence concerning her knowledge about her claimed Christian religion to be vague and lacking detail. That is, lacking detail that would have been expected from someone who claimed to have practised the religion for the long time that she claimed to have done so ([30] – [33] at CB 133).

5. The Tribunal also had concerns about the applicant’s delay in joining a local church in Australia after her initial arrival.  The applicant arrived in Australia in 2007, but did not attend a local church until March 2013.  The Tribunal noted that this was, in fact, in the same month that she had lodged her second protection visa application ([34] at CB 133 to [35] at CB 134).

6. The Tribunal also had concerns that the applicant had delayed in applying for a protection visa. That is, that the current application was made some six years after her arrival.  The Tribunal was of the view that this conduct was inconsistent with someone who claimed to have feared harm for such a long period ([36] at CB 134).

7. As I said, the Tribunal found that the applicant was not a witness of truth.  In reaching this conclusion, the Tribunal did not accept that her claimed “nervousness” could account for what it found to be the significant difficulties in her evidence ([38] at CB 134). The Tribunal rejected the entire factual basis relating to the applicant’s claim to fear harm on the basis of religion ([41] to [45] at CB 135).

8. The Tribunal also found that the second applicant was not a witness of truth.  It found his evidence to be vague, evasive and not credible ([46] at CB 135). That finding arose, in large part, from the second applicant’s evidence concerning his claimed knowledge of his religion ([47] to [49] at CB 135 to CB 136) and what was found to be his vague and non-credible evidence about remaining in Australia, despite being unlawfully in Australia for some four years.  The Tribunal rejected the second applicant’s explanation for this, and in doing so, also noted the second applicant’s initial evidence that he did not fear returning to China because of his religion ([50] at CB 136 to [55] at CB 137).

9. The applicants also claimed that both sets of their parents disapproved of the relationship and this led them to fear harm on return. They also made various claims to fear harm said to arise from the birth of their child out of “wedlock”. The Tribunal was not satisfied that their various claims relating to, and arising from, their personal relationship would lead to them facing serious or significant harm for any of these reasons ([58] – [60] at CB 138).

10. The Tribunal also considered their claims as it included their child, in relation to the registration of the child in China, and the payment of a social compensation fee, and this included consideration of their capacity in China to survive, and their claims of “social stigmatisation”.  The Tribunal found that these claims also would not lead to serious or significant harm ([61] at CB 138 to [74] at CB 142).

11. The Tribunal also quite separately considered the claims made on behalf of the third applicant, and, for reasons that the Tribunal gave and based on findings which were reasonably open to it, the Tribunal found that the child would not face serious or significant harm if the child were to go to China ([75] at CB 142 to [80] at CB 143). Given the Tribunal’s findings that the applicant’s circumstances did not satisfy either of the criteria for the grant of a protection visa set out in s.36(2) of the Act, it affirmed the delegate’s decision on that basis.

Application before the Court

1. The orders sought by the applicants are in the following terms:

   “1. I could not agree with DIBP and RRT's decision as they have failed to consider my claim thoroughly with fair decision. My fear of return to origin owing to my commitment of religion with Local Church has not been given weight, and the fact of my religion and practice outlawed and forced to be undergrounded in China as well as preaching of gospels are forbidden in China are not properly taken into account.

   2. RRT made reckless review to my hard experience in origin associated with Local Church, and reluctant to consider the fear and harm for my future religious practice if return.    .

   3. RTT did not well consider my partner's comments on his fear with underground church if return to origin and his explanation given in hearing were not fairly understood and compromised.

   4. RRT paid no more consideration to our concern on my child's fate in origin due to the reason of our unregistered marriage. RRT's decision to ignore the penalty imposed by family planning authority as well as the potential discrimination, hash treatment,  risk and harm on ‘Black Child Family’ is unacceptable.

   5. RRT failed to take my and my partner's families's background into good consideration which leads to our shortness of necessary assistance and support in our vulnerable situation especially the custom in our residential rural country is utmost unfair and improper, in particular the higher social compensation for at least of 50,000RMB, which is beyond our ability to pay.

   6. RRT failed to give me chance to make a commitment on faith and concern in relation to the harm, risk and danger we will suffer from in origin tends to be unfair.”

   [Errors in the original.]

2. The grounds of the application are in the following terms:

   “1. I am a Chinese student with committed faith of Local Church which is forced to be undergrounded and outlawed in China. My religious background and involvement in church practice made me feared to return to origin.

   2. With strong church background, I believe I will be experienced hardship and persecution in China if return to origin.

   3. With firm vision and mission driven for preaching gospel I have committed in pursuing my faith as a missionary in China.

   4. As an unmarried mother I have a child out of wed log and I have great concern about child's residency registration in China under the harsh family planning policy and social discrimination against us. Secondly, we are overburdened and financially struggled but we are unable to get any financial support from our both families due to their denial to our relation. We end up will fall into a vulnerable and helpless situation if return to origin.”

   [Errors in the original.]

Before the Court

1. The applicants appeared in person at a first Court date on 15 October 2014. At this time the applicant was appointed the litigation guardian of the third applicant, who is a child. At this time, the applicants were given the opportunity to file any further evidence by way of affidavit and any amended application. The matter was set down for final hearing today.

2. The first applicant appeared in person.  She was, again, assisted by an interpreter in the Mandarin language.  The second and third applicants did not appear.  The first applicant explained that they were outside the Courtroom. The first applicant confirmed that she appeared as the litigation guardian for the third applicant, and that with his agreement she would speak on the second applicant’s behalf. Mr M Glavac appeared for the Minister in this matter.

3. I should just note that during the course of the hearing today, following the Minister’s submissions, the applicant was given the opportunity to speak to the second applicant and ascertain whether he wanted to come in and address the Court.  She subsequently reported that he did not wish to do so. 

Consideration

1. The orders that the applicants seek are not recognisable in any way as being referrable to any orders that could possibly be made by this Court.

2. What is stated under the heading of “orders sought” in the application is no more than a restatement of some of the claims to protection made before the Tribunal. The applicants are seeking to take issue with some of the findings of fact made by the Tribunal.  I note, in this light, that the Tribunal’s various conclusions, and the many antecedent findings that informed those conclusions, in light of the evidence presented, were reasonably open to the Tribunal to make on what was before it. 

3. In my view, the Tribunal gave comprehensive reasons for its decision and its various findings were probative of the material that had been put before it.  In these circumstances, the orders sought by the applicants can only be properly understood as the applicants seeking for this Court to engage in impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

4. The grounds of the application make no assertion of legal error on the part of the Tribunal, let alone jurisdictional error.  Various references to the Tribunal not giving weight to the applicant’s claimed commitment to her religion are, in the circumstances, and on the evidence before the Court, no more than a disagreement, again, with the Tribunal’s findings of fact. 

5. When the applicant was given the opportunity to address the Court today she said that she did not know anything about the law, a position which she recounted as being the same as the second applicant’s situation, and, therefore, was not able to say anything to the Court.  The grounds of the application remained unexplained. There was, therefore, nothing said by the applicant that would have caused the Court to have sought to explore today any particular parts of the Tribunal’s decision record, with a view to seeing whether the grounds of the application, or the stated grounds, could be understood as seeking to assert some legal error on the part of the Tribunal.

6. In the application to the Court, there is an assertion that the applicant’s claims were not considered by the Tribunal. In the alternative, that they were said to be not “well considered” by the Tribunal. Further, that the claims were not taken into “good” consideration by the Tribunal. 

7. None of these revealed jurisdictional error on the part of the Tribunal.  It is the case that the Tribunal is obliged to consider all claims made by an applicant. The Tribunal is required to consider all claims expressly made, or clearly arising, in the circumstances presented (Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244, Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 and NABE  v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263; 144 FCR 1).

8. However, there is nothing before the Court to say that the Tribunal failed to consider, in the sense that that term is explained in relevant authorities, the applicants’ claims.  In the circumstances presented, the assertions made by the applicants in their application to the Court, are no more than a disagreement with the Tribunal’s findings.  I note in the Minister’s submissions reference to relevant High Court authority in that regard.

9. The Minister also raises the possibility, in his written submissions, that there may be that some assertion by the applicants that the Tribunal exhibited actual bias or, indeed, an allegation of an apprehension of bias. I note the relevant tests.  Actual bias being that the decision maker did not bring an open mind to the proceedings, and the apprehension of bias being that the well-informed lay observer would have some reasonable apprehension that the decision-maker did not bring an open mind to the proceedings (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (“Jia Legeng”), SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). It is the case that in claims of bias, given the particular nature of such a claim, which goes to the very integrity of the decision-maker, the law requires that such assertions be distinctly made and clearly proven (Jia Legeng at [69] and [127]).

10. In the circumstances presented, I agree with the Minister that whatever may be derived from the applicants’ application, the allegations of bias have not been clearly alleged, let alone proven, as required by the relevant authorities set out above. 

11. During the course of the hearing, the Minister made submissions concerning some of the information relied on by the Tribunal. This related to information from other visa applications that had been made by the applicants. The Minister pointed out that such information was caught by the obligations set out in s.424A(1) of the Act, and was not information that fell into any of the exemptions set out in s.424A(3) of the Act. I am satisfied that the applicants have not provided evidence, despite opportunity to do so, such that it could be said that the Tribunal’s stated use of the facility available to it in s.424AA of the Act, to discharge the obligation arising from s.424A of the Act, miscarried.

12. On what is before the Court, the matters were that the relevant information was put to the applicants at the Tribunal hearing, in circumstances where it can be said that they understood the relevance of the information to the Tribunal if they were to rely on it and were given the opportunity to comment, or respond to, that information. 

Conclusion

1. In all, the applicants’ grounds, or complaints before the Court, do not reveal jurisdictional error on the part of the Tribunal. The application to the Court should be dismissed. I will make an order accordingly.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date: 28 June 2016