WZATK v Minister for Immigration
[2014] FCCA 1344
•27 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZATK v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1344 |
| Catchwords: MIGRATION – Judicial review – Refugee Review Tribunal – protection visa application – whether bias – whether relevant considerations ignored – whether incorrect country information considered – whether jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2), 422B, 424A, 425, 476, 499 |
| AZAAA v Minister for Immigration & Citizenship & Anor (2009) 177 FCR 363; [2009] FCA 554 Craig v South Australia (1995) 184 CLR 163 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 |
| Applicant: | WZATK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | PEG 280 of 2013 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 27 May 2014 |
| Date of Last Submission: | 27 May 2014 |
| Delivered at: | Perth |
| Delivered on: | 27 June 2014 |
REPRESENTATION
| For the Applicant: | In person |
| Counsel for the First Respondent: | Mr P Macliver |
| For the Second Respondent: | Submitting appearance, save as to costs |
Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
That the application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 280 of 2013
| WZATK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant seeks judicial review under s.476 of the Migration Act 1958 (Cth)[1] of a decision of the second respondent, the Refugee Review Tribunal.[2] The Tribunal affirmed a decision of a delegate[3] of the first respondent, the Minister for Immigration & Border Protection,[4] to refuse to grant a Protection (Class XA) visa[5] to the applicant.
[1] “Migration Act”.
[2] “Tribunal” and “Tribunal Decision”. The Tribunal Decision is at Court Book (“CB”) 179-208.
[3] “Delegate” and “Delegate’s Decision”. The Delegate’s Decision is at CB 108-121.
[4] “Minister”, then the Minister for Immigration, Multicultural Affairs & Citizenship.
[5] “Protection Visa”.
Factual and procedural background prior to application for judicial review
The applicant is a citizen of the People’s Republic of China, born on 26 March 1978.[6]
[6] CB 1 and 108.
The applicant applied for a Class TR 676 Visitor Visa on 19 July 2011, and that visa was granted for a stay of three months on 25 July 2011.[7]
[7] “Visitor Visa”; CB 109.
On 13 August 2011 the applicant entered Australia on his Visitor Visa.[8]
[8] CB 109.
On 11 November 2011 the applicant applied for a Protection Visa.[9]
[9] CB 1-25 and 109.
On 10 February 2012 the applicant provided a further written statement in support of his Protection Visa application, with an English translation being prepared by his registered migration agent.[10]
[10] CB 75-84.
On 2 April 2012 the applicant was interviewed by an officer of the then Department of Immigration and Citizenship, now the Department of Immigration & Border Protection,[11] with the interview being conducted with the assistance of a Mandarin interpreter.[12]
[11] “Department”.
[12] CB 86-95.
The Delegate subsequently made the Delegate’s Decision to refuse to grant the applicant a Protection Visa, and advised the applicant accordingly by letter on 6 December 2012.[13]
[13] CB 122-136.
On 10 January 2013 the applicant applied to the Tribunal for review of the Delegate’s Decision refusing to grant the applicant a Protection Visa.[14]
[14] CB 138-143.
On 11 July 2013 the applicant was invited to appear before the Tribunal at a hearing to give evidence and present arguments relating to the issues arising in relation to the Delegate’s Decision under review by the Tribunal.[15] On 30 August 2013 the applicant attended the Tribunal hearing in person, with the assistance of an interpreter.[16]
[15] CB 165-167.
[16] CB 176-178.
The Tribunal Decision was made on 19 September 2013 and affirmed the Delegate’s Decision not to grant the applicant a Protection Visa.[17]
[17] CB 179-208.
Applicant’s claims
In his Protection Visa application the applicant claimed that:
a)while a soldier in the Chinese People’s Liberation Army[18] protecting a gold mine he refused to kill civilians in order to protect the gold mine and was penalised for not performing that task and was “under military control for more than half [a] year”;[19]
b)other Chinese Army officers tried to kill him in a series of accidents, from which he was saved by a local farmer, after he refused money to maintain his silence when he had found out that his superior officer was illegally making money by selling military ammunition to fireworks factories and across the border between China and Russia;[20]
c)his parents were threatened by the Army after the applicant’s disappearance and passed away soon thereafter;[21]
d)his wife went to a hospital for a pregnancy check and an abortion was performed unknowingly, and his wife “was committed to suicide after the forcible abortion”;[22]
e)his wife and he had a dog farm but the dog farm was banned and more than 50 of their dogs were put down;[23]
f)because of the above matters he felt his life was “under serious danger in China” and he therefore left China;[24] and
g)he fears that if he returns to China he may be killed or put in prison by Army officers who are afraid that he will tell about:
i)their illegal weapons trade; or
ii)the secrets of the military action that caused the death of more than 200 civilians at the gold mine.[25]
[18] “Army”.
[19] CB 17, question 42, para.1.
[20] CB 17, question 42, para.2.
[21] CB 17, question 42, para.3.
[22] CB 17, question 42, para.4.
[23] CB 17, question 42, para.5.
[24] CB 17, question 42.
[25] CB 18, question 43.
The above claims were repeated in an interview with the Department.[26] Additional claims were made, including that:
[26] CB 90-95.
a)the applicant was paid money for each person killed by the Army at the gold mine;[27]
[27] CB 90.
b)the payment per person killed and subsequent sending of the applicant to study at a military academy, following which the applicant was promoted from second lieutenant to lieutenant, were part of a scheme to “hush him up” with respect to the killing of civilians at the gold mine;[28]
[28] CB 90.
c)the applicant was subsequently promoted to lieutenant commander, and was working in a north-east border region of China where arms were being traded by high ranking officers in the Army, about which he independently obtained information, but which information was suppressed when he took it to Army area command;[29]
[29] CB 91.
d)the Army transferred the applicant to logistics to look after a cafeteria, without demotion in rank, but the lowly position in which he was put was an act of humiliation;[30]
[30] CB 91.
e)the applicant was subsequently driving in the mountains on narrow winding roads and his car was pushed off the road by people he knew to be from the Army, but he was rescued by a person scavenging the mountains for Chinese herbs;[31]
[31] CB 91.
f)the applicant’s car was pushed off a cliff of 500 or 600 metres in height and he sustained injuries including knee lacerations, broken ribs and ankles and a broken lower leg;[32]
[32] CB 91.
g)the person who rescued the applicant took him to “a rest area” for a long time;[33]
[33] CB 91.
h)the applicant was in military uniform at the time of the accident;[34]
[34] CB 92.
i)the Army detained the applicant’s parents on an Army base because they were still looking for him;[35]
[35] CB 92.
j)the applicant did a deal to obtain his parents’ freedom, under which he was expelled from “the party”[36] and locked up under supervision for about 40 days and subsequently discharged from the Army;[37]
[36] Presumably the Communist Party of China.
[37] CB 92.
k)the applicant’s parents died within six months of subsequently being sent home;[38]
l)the applicant subsequently borrowed money from a friend and started a business importing German police dogs;[39]
m)the applicant’s wife became pregnant, and when she went to a hospital for a check-up “they got back at me and got rid of my child …”;[40]
n)the local government subsequently closed the applicant’s business because they said that his dogs were aggressive, and the local council killed the dogs in front of him. The applicant resisted and was charged with “[p]reventing officers doing law and public nuisance” and jailed for three months;[41]
o)the applicant’s friends told him to get out of China;[42]
p)the applicant paid $80 000 for his passport, which contained entry and exit visas for Thailand, Malaysia, Singapore, Italy and France in 2010;[43]
q)the authorities subsequently removed the applicant’s wife’s daughter (by a former partner) from her school and put her in a mental hospital where she committed suicide aged 19;[44]
r)the applicant’s wife’s mother also died at that time in hospital from what was said to be a medical accident;[45]
s)the applicant’s wife subsequently requested a divorce from him (after his wife returned to China from Australia);[46] and
t)the applicant paid a significant amount of money for his passport and for travel to be arranged to enable him to leave China.[47]
[38] CB 92.
[39] CB 93.
[40] CB 93.
[41] CB 93.
[42] CB 93.
[43] CB 94.
[44] CB 94.
[45] CB 94.
[46] CB 94.
[47] CB 94.
In the Tribunal Decision the Tribunal summarised the applicant’s claims as follows:
The applicant provided a copy of his passport pages showing entry and exit stamps for the following countries in 2010: Malaysia, Thailand, Italy, Singapore and France.
The applicant is the holder of a current valid Chinese passport. He claims he speaks, reads and writes [M]andarin only. The applicant was born on 26 March 1978 in Tianjin, China and is currently aged 35 years. He claims he was married to his wife on 1 November 2010. He arrived in Australia on 13 August 2011 on a visitor’s visa. He states he is married to Kun Li and has one daughter aged 21 years both of whom reside in China.
The applicant states he attended 15 years of schooling, 12 years in Tianjin and 4 years (September 1998 to June 2001) in Shijiazhuang at the Shijiazhuang Army Institute for the People’s Liberation Army. The applicant states his occupation as a small business owner.
From June 2001 to February 2007 he lived in Shenyang, from February 2007 to June 2007, he lived in Tianjin and from June 2007 to October 2009, he lived in Tianjin City. He was in prison from October 2009 to January 2010 before returning to Tianjin City to live.
He states he was a soldier with the People’s Liberation Army from April 1996 to September 1998, Chief of Staff with Combat Intelligence Service from June 2001 to August 2005, In charge of the canteen, Logistics Department from August 2005 to February 2007, all in the Shenyang Military Region.
He states he was unemployed from February 2007 to June 2007 before gaining employment with the No 1 Cotton Cloth Factory, Tianjin from June to December 2007. He then ran his own small business from January 2008 to October 2009 before being jailed from October 2009 to January 2010 and was again unemployed from January 2010 til[l] he departed for Australia in August 2011.
The applicant claims both parents are deceased, passing away a few months apart in 2007 (Father in March and Mother in August).
The applicant stated he fears returning to China because he was in the Army and reported other officers to those in higher command and they are seeking revenge on him because he knows too much. He was also involved in the killing of innocent civilians, which was covered up by the authorities.
The applicant stated he joined the army in 1996 in Hedong District, Tianjin and was assigned to the second Battalion of the Sixth Investigation Group for recruits training. Later he was assigned to the Jiamusi partition Camp. His main duty was border inspections and one day during routine inspections, near a gold mine, they found bandits and there was gunfire. The bandits retreated into a village and he ordered firing to cease, as he was concerned for the villagers safety. His superior ordered him to continue to wipe out the bandits and many villagers were killed or hurt. When he returned, his commander put him under compulsory military control for 6 months for carrying out an order without considering the consequences. He had to take the blame for his commander. He was then awarded a second class merit citation for his efforts and was promoted from sub-lieutenant to Captain Company Commander. The military covered up the truth. The military covered up the truth. He was later sent to the Academy to learn operational command and logistical foster care specialist and was promoted to General Staff Officer of the Military Region. Many of his classmates became military instructors. One of his classmates came from a rich family and he was promoted as their leader despite not having the academic achievements of the others. He could not bear the corruption in the military, as it was so corrupt you could buy rank and leadership positions. He worked in the military region for a while and found that the military was smuggling military supplies and ammunition. He was pushed aside. He wrote down their crimes and handed it to the military leaders but was dismissed because of his lack of experience and assigned to manage kitchen work. As time passed, those who he reported were afraid he would tell others and arranged for him to be killed. It was arranged for him to go shopping and he was pushed off a cliff by someone on his way. He was saved by local villagers and fled during his recovery period and became a deserter which is a great sin in the Chinese Army. However, the army took his parents and tortured them so he gave himself up as well as all the documentation he had on the corruption. He was discharged from the Army.
His wife got him a job at her factory but after 6 months he was called into the office and told he was had killed innocent village[r]s and was expelled because of smuggling and was fired.
In January 2008, he opened his own business through borrowings from close friends. He raised working dogs. This business was closed in October 2009 by the local authorities and they killed his dogs. He was jailed for assaulting the authorities trying to prevent them from killing his dogs.
In August 2009, his wife was forced to have an abortion as she already had a child and they were not married.
His friends arranged for him to travel to Australia. The authorities had his wife return for her daughter because of the Government taking action against her because of him.[48]
[48] CB 200-201.
Tribunal Decision
The Tribunal Decision:
a)sets out the relevant law and policy, as to:
i)the refugee criterion;
ii)the complementary protection criterion;
iii)the Ministerial Direction in relation to policy guidelines under s.499 of the Migration Act; and
iv)findings in relation to credibility;[49]
[49] CB 188-193 at paras.51-82.
b)sets out independent country information[50] referred to in the Tribunal Decision, including information on:
i)document fraud in China, including reference to a Department of Foreign Affairs and Trade report concerning fraudulent documents widely available and frequently used in China, the proper authorisation and authentication of documents in China, bribery and corruption in relation to obtaining passports in China, and the cost and obtaining of false passports in China;
ii)the detention of persons in China, including reference to Chinese criminal procedure laws;
iii)ordinary arrangements for the obtaining of passports and entry and exit procedures in China, but with particular reference to persons considered by the government to be threats; and
iv)the law in China in relation to the freedom of the press, and its implementation;[51]
c)includes a lengthy summary of the application and evidence given at the Tribunal hearing;[52] and
d)sets out the Tribunal’s consideration of the applicant’s claims, the evidence and the Tribunal’s conclusions.[53]
[50] “ICI”.
[51] CB 194-199.
[52] CB 200-208, including paragraphs 83-120.
[53] CB 180-187 at paras.6-49.
The Tribunal:
a)made comprehensive findings in emphatic terms that the applicant was not credible and not a witness of truth, and did so as a consequence of cumulative concerns in relation to inconsistencies, changes or contradictions in the applicant’s written and oral evidence, his inability to provide convincing or credible explanations for aspects of his claims, and gaps in his claims. The Tribunal found the applicant’s “overall testimony thoroughly unconvincing … in the main … rehearsed, vague and brief or convoluted and evasive … not believable”,[54] and went on to observe that “the applicant is able to tailor his responses to suit the particular circumstances of the time. After considering all of his evidence individually, cumulatively and in its entirety, the Tribunal did not find the applicant credible or a witness of truth”;[55]
[54] CB 181 at para.14.
[55] CB 182 at para.15.
b)was satisfied that the applicant was a ranking officer in the Army and attended military college, but did not accept the applicant’s claims as to how and why he was promoted or demoted or offered a place and attended military college;[56]
[56] CB 182 at para.16.
c)as to the applicant’s claims that he was rewarded with a promotion and an opportunity to attend military college following his threatening to speak out about the killing of innocent villagers in the gold mine incident the Tribunal did not accept that evidence as plausible, namely that the applicant would be punished by being imprisoned when he threatened to make the information public, and then rewarded with a promotion and attendance at a military academy subsequently, particularly in circumstances where there was no freedom of media in China and the applicant would therefore find it very difficult to speak out, and where ICI indicated that persons were often held in prison if they had threatened to expose various practices;[57]
[57] CB 182-183 at paras.18-20.
d)noted that the applicant claimed to have found out about corruption through the smuggling of goods and ammunition which he reported to his supervisors, and which he claimed resulted in his demotion before an attempt to kill him. The Tribunal was prepared to accept that the applicant may have been demoted, but did not accept that there was an attempt to kill him because of his reporting of corrupt activities. In particular, the Tribunal found unbelievable the applicant’s story in relation to the events following the claimed attempt to kill the applicant, and did not accept that a person in military uniform who was as badly injured as he claimed would not be returned to the military for treatment by the person who found him, and did not believe that a person with serious injuries, including his slipping into an alleged coma, would be treated in a remote area by local people in circumstances where his injuries were so serious;[58]
[58] CB 183 at paras.21-26.
e)found that the applicant had over-exaggerated his claim of harm to his parents, and did so for the purposes of advancing his Protection Visa claim, and did not accept that the applicant’s parents died as a result of any treatment by the Chinese authorities;[59]
[59] CB 184 at para.27.
f)found that the applicant was not credible as to his claims that:
i)he subsequently lost employment, his dog farm and dogs;
ii)his wife was forced to have an abortion because he was considered to be a person with access to secrets; and
iii)the military colluded with other authorities to destroy his dogs and close his dog farm, and force his wife to have an abortion,
and the Tribunal did not accept that the applicant was of adverse interest or had access to secrets or was of any threat to the military or the Chinese authorities;[60]
[60] CB 184 at paras.29-30.
g)did not accept a claim that the applicant was able to leave China bypassing immigration controls, particularly in circumstances where his passport had a number of stamps and visas for various countries indicating that he was able to leave China on a properly obtained passport, and that he would not be able to obtain such a passport or leave the country if he was considered by the government to be a high risk to them, and found that he had framed the “bypassing” response in order to avoid answering questions as to why he was not stopped whilst going through immigration control. The Tribunal found that the applicant had not been truthful about how he obtained his passport and how he departed the country, with the passport being in his name, and the available ICI indicating that if he was of adverse interest to the authorities he would not have been able to depart China, and the Tribunal therefore did not accept that the applicant was considered a risk by the Chinese authorities;[61]
[61] CB 184-185 at paras.31-38.
h)did not accept the applicant’s claims that he wanted to publish secrets about the military, because:
i)the Tribunal did not accept that he had any secrets; and
ii)that if he did have such secrets, he had made no effort to publish them despite having had the opportunity to do so;[62]
[62] CB 186 at para.39.
i)found that the applicant:
i)was not involved in the killing of innocent villagers;
ii)did not inform his superiors about corruption or any illegal activities in the military;
iii)never threatened or told anyone that he was going to go public or to the press with his claims and as a result was never imprisoned because he threatened to go public; and
iv)has never been the subject of an attempt on his life, nor beaten, harassed or harmed by members of the military or authorities, and nor had his family or friends;[63]
j)found that his parents had not died as a result of their harassment by the authorities;[64]
k)found that neither the military nor other Chinese authorities were involved in the loss of the applicant’s job or dog farm, and did not force his wife to have an abortion, or cause his wife to lose employment, or harass his wife’s daughter causing his wife to return to China;[65]
l)found that there was not a real chance that the applicant would be harmed on any Convention ground by the military or other authorities in the reasonably foreseeable future if he returned to China, and that he did not have a well-founded fear of persecution for a Convention reason if returned to China in the reasonably foreseeable future;[66]
m)found that as a consequence of the factual findings made in relation to the applicant’s claims, and as a result of specifically having rejected all of those claims, the Tribunal was satisfied that there were not 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 upon his return to China;[67] and
n)concluded that the applicant was not a person who met the refugee criterion in s.36(2)(a) of the Migration Act, nor the alternative complementary protection criterion in s.36(2)(aa) of the Migration Act, and consequently the Tribunal decided to affirm the Delegate’s Decision not to grant the applicant a Protection Visa.[68]
[63] CB 186 at para.40.
[64] CB 186 at para.40.
[65] CB 186 at para.40.
[66] CB 186 at paras.41-42.
[67] CB 186 at paras.43-44.
[68] CB 187 at paras.46-49.
Grounds of application for judicial review
The original application for judicial review filed with this Court on 22 October 2013 contained three grounds of application for judicial review as follows:
1.The Refugee Review Tribunal was or appeared to be biased against me in making the decision.
2.The Tribunal has ignored relevant considerations in making the decision.
3.The Tribunal acted in breach of section 424A of the Migration Act 1958 and in breach of the rules of procedural fairness and natural justice by failing to put to the Applicant for comment country information on which it actually relied in making its determination and which was potentially adverse to the Applicant.
On 18 February 2014 the applicant filed an amended grounds of application for judicial review containing the following grounds:
1.The Refugee Review Tribunal was or appeared to be biased against me in making the decision.
A)In paragraph 15 of the decision, the Tribunal found the applicant to be clearly an intelligent, quick-witted man who was able to explain away inconsistencies put to him. To be honest, I do not think that I am the person as the Tribunal describe. I just tell the truth about what happened to me when I was in China.
B)In paragraph 15 & 20 of the decision, the Tribunal found the applicant is not a credible witness. I do not think the Tribunal understand the real situation in China.
2.The Refugee Review Tribunal has ignored relevant considerations in making the decision.
A)In paragraph 23 & 26 of the decision, the Tribunal does not accept the applicant’s claim that they tried to kill me because I reported their corruption activities. I do believe the Tribunal short of knowledge about the corruption in China.
B)In paragraph 27 of the decision, the Tribunal found the applicant over exaggerated the claim about the harm to my parents. I just tell the truth about what had happened to my parents.
C)In paragraph 31 & 32 of the decision, I believe the Tribunal made her judgement depending on incorrect country information.
At hearing, the applicant reasserted some of the arguments contained in the amended grounds of the application for judicial review by asserting, shortly, that the Tribunal Decision was not accurate and that the Tribunal did not fully understand the situation in China or the influence of the Army, and that all that he had said to the Tribunal was true.
In determining the application for judicial review the Court has considered the two grounds (grounds 1 and 2 below) of the amended application as particularised, which correspond with the two grounds of the original application which were not particularised, and has also considered the third ground (ground 3 below) in the original application which does not appear in the amended application. Each of the grounds is considered below.
Ground 1
Ground 1 raises the following issues:
a)actual and apprehended bias;
b)the Tribunal’s assessment of the applicant as a credible witness; and
c)the Tribunal’s assessment of the situation in China.
The allegation of bias incorporates elements of both actual bias and apprehended bias. To prove actual bias on the part of the Tribunal requires evidence of a state of mind on the part of the Tribunal which demonstrates that it is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.[69] A party asserting actual bias bears a heavy onus and the allegation must be clearly made and proved.[70] Similarly, a reasonable apprehension of bias requires that there be a reasonable apprehension of such pre-judgment by a fair minded observer.[71] Regardless of whether it be alleged to be apprehended or actual, it is a rare and serious finding that a decision was biased.[72] The applicant needs to show some conduct on the part of the Tribunal, apart from the Tribunal’s expression of its reasons in the Tribunal Decision, which would indicate that the Tribunal has been guilty of pre-judgment or was in some way biased.[73]
[69] Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 532 per Gleeson CJ and Gummow J; [2001] HCA 17 at para.72 per Gleeson CJ and Gummow J (“Jia Legeng”).
[70] Jia Legeng CLR at 507 per Gleeson CJ and Gummow J and 546-547 per Kirby J; HCA at para.69 per Gleeson CJ and Gummow J and para.127 per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at para.36 per von Doussa J (“SCAA”).
[71] Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 at 434-435 per Gleeson CJ, Gaudron and Gummow JJ; [2001] HCA 28 at paras.27-28 per Gleeson CJ, Gaudron and Gummow JJ.
[72] SCAA at paras.36-38 per von Doussa J.
[73] SBBS v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 194 ALR 749 at 756 per Tamberlin, Mansfield and Jacobson JJ; [2002] FCAFC 361 at para.44 per Tamberlin, Mansfield and Jacobson JJ; Minister for Immigration & Citizenship v SZNPG & Anor (2010) 115 ALD 303 at 307 per North and Lander JJ; [2010] FCAFC 51 at para.18 per North and Lander JJ.
The two particulars of alleged bias given in the amended application do not assist the applicant. Whether the applicant was “an intelligent, quick-witted man who was able to explain away inconsistencies put to him” as found by the Tribunal,[74] or not, as appeared to be asserted by the applicant: “I do not think that I am the person … the Tribunal describe[d]”, does not indicate any bias of any kind against the applicant by the Tribunal. Likewise, even if the Tribunal did “not … understand the real situation in China” that does not establish bias of any kind either. Without more, mere ignorance about, or a misunderstanding of, the true facts does not establish bias.[75]
[74] CB 182 at para.15.
[75] Li v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 125 at 136 per Drummond J; [2000] FCA 19 at para.51 per Drummond J. See also Hot Holdings Pty Limited v Creasy & Ors (2002) 210 CLR 438 at 444, 445 and 446 per Gleeson CJ, 452 per Gaudron, Gummow and Hayne JJ and 462 per McHugh J; [2002] HCA 51 at paras.7, 10, 12 and 16 per Gleeson CJ, 40 per Gaudron, Gummow and Hayne JJ and 76 per McHugh J.
In this case, there is no demonstrated pre-judgment, nor any reasonable apprehension of pre-judgment, on the part of the Tribunal. The Tribunal questioned the applicant, and gave the applicant every opportunity to persuade the Tribunal, to the requisite degree of satisfaction, that the applicant had a well-founded fear of persecution for a Convention reason or that he might suffer significant harm for complementary protection purposes. Likewise, the Tribunal carefully set out the relevant law, ICI, and, in particular, the applicant’s claims and relevant facts; which together with its careful and thorough fact-finding, the Tribunal’s decision-making conduct, and in the absence of any evidence of other relevant conduct, precludes any assertion of bias, actual or apprehended. The applicant’s allegation of bias has not been made out, and there is no jurisdictional error in the Tribunal Decision on the basis of bias.
In relation to issues of:
a)credibility; and
b)whether or not the Tribunal understood the real situation in China,
these are matters which are not judicially reviewable by the Court.
The Tribunal’s findings on credibility are a function of the Tribunal par excellence.[76] The Tribunal is not required to hold a positive state of disbelief before making credibility findings.[77] Fact finding, including findings as to credibility, is within the jurisdiction of the Tribunal, and as such, not reviewable by the Court.[78]
[76] Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 per McHugh J; [2000] HCA 1 at para.67 per McHugh J.
[77] Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 559 per O’Connor, Branson and Marshall JJ.
[78] NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at para.9 per Heerey, RD Nicholson and Selway JJ.
The assessment of “the real situation in China” was a matter of fact for the Tribunal. Insofar as the situation in China was assessed by having regard to ICI, the Tribunal’s choice and assessment of ICI which it relied upon was a factual matter for it to determine.[79]
[79] NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at para.11-13 per Gray, Tamberlin and Lander JJ (“NAHI”).
The Tribunal was under no obligation to uncritically accept any allegations made by the applicant.[80] Consideration of the factual material, including various inconsistencies arising from the applicant’s evidence and a consideration of the ICI, meant that there was probative material from which the Tribunal could logically or rationally arrive at the conclusions in the Tribunal Decision, and in particular, the ultimate conclusion that the applicant was not a person who met the criteria for the Protection Visa as set out in s.36(2) of the Migration Act on either a Convention or complementary protection basis. It is not for the Court to interfere when all of the evidence has been sifted and weighed by the Tribunal. Findings of fact are not to be interfered with by the Court upon judicial review if the findings of fact were open to the Tribunal, and otherwise made in accordance with the law,[81] and the weight to be given to the applicant’s claims and evidence was a matter for the Tribunal to assess as part of its fact-finding function.[82] Were the Court to interfere in the circumstances of this case it would cross the line between merits and judicial review.[83] The Tribunal’s findings of fact, including its assessment of the applicant’s credibility and the credibility of his claims, and its expression of its inability to be satisfied of the applicant’s claims, were open to it on the evidence before it and for the reasons that it gave.[84]
[80] Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 124 ALR 265 at 278 per Beaumont J (“Randhawa”).
[81] Minister for Immigration & Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[82] Wu Shan Liang at 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[83] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; Zentai v Honourable Brendan O’Connor & Ors (No. 3) (2010) 187 FCR 495 at 589 per McKerracher J; [2010] FCA 691 at para.367 per McKerracher J.
[84] Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
For all of the above reasons, ground 1 is not made out, and does not disclose jurisdictional error on the part of the Tribunal.
Ground 2
In this ground the applicant asserts that the Tribunal ignored relevant considerations in making its decision. There is no doubt that ignoring a relevant consideration is a jurisdictional error.[85] The second ground however does not, in its particulars, complain of the Tribunal ignoring relevant considerations, but rather complains of the Tribunal:
a)not accepting the applicant’s claim;
b)being short of knowledge about corruption in China;
c)finding that the applicant exaggerated his claim; and
d)depending upon incorrect ICI.
[85] Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 (“Yusuf”).
The Tribunal was not obliged to accept all or any of the applicant’s claims, and the process of fact-finding, was, for reasons explained above, one for the Tribunal.[86]
[86] Randhawa at 278 per Beaumont J; Wu Shan Liang at 272 and 281-282 per Brennan CJ, Toohey, McHugh and Gummow JJ.
A decision-maker falls into jurisdictional error if they take into account an irrelevant consideration or fail to consider a relevant consideration.[87] A relevant consideration is one the Tribunal was bound to consider, and an irrelevant consideration is one the Tribunal was not empowered to consider. Relevant or irrelevant considerations are, for present purposes determined by any express provisions in the Migration Act, and can be implied by the subject matter, scope and purpose of the Migration Act.[88] If a factor is so insignificant that it could not have materially affected the decision, then taking it into account, or failing to take it into account, will not justify setting aside an impugned decision, and ordering that the decision be quashed and remade according to law.[89]
[87] Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Yusuf CLR at 351 per McHugh, Gummow and Hayne JJ; HCA at para.82 per McHugh, Gummow and Hayne JJ.
[88] Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 19-41 per Mason J (“Peko-Wallsend”).
[89] Peko-Wallsend at 40 per Mason J.
To the extent that the applicant claims that the Tribunal was short of knowledge about corruption in China and made a decision depending upon incorrect ICI, it is apparent that the Tribunal had regard to ICI in arriving at its decision, and it is not for this Court to interfere with or question the choice of ICI.[90] As was said in NAHI:
It is clear from its reasons for decision that the Tribunal did rely on ‘country information’ in making its assessment of the future, and that the conclusion that it reached was open to the Tribunal on the basis of the material it used. Both the choice and the assessment of the weight of such material were matters for the Tribunal. The Court cannot substitute its own view of the material, even if it had a different view from that reached by the Tribunal.[91]
That is of course arguably subject to the proviso that the Tribunal must consider the most current information available to the Tribunal at the time of the Tribunal Decision.[92]
[90] NAHI at para.10 per Gray, Tamberlin and Lander JJ.
[91] NAHI at para.13 per Gray, Tamberlin and Lander JJ.
[92] Peko-Wallsend at 44-45 per Mason J; VAO v Minister for Immigration & Multicultural Affairs [2002] FCA 161 at paras.11 and 25 per Sundberg, Marshall and Weinberg JJ; SZJTQ & Ors v Minister for Immigration & Citizenship & Anor (2008) 172 FCR 563 at 571, 573 and 575 per Rares J; [2008] FCA 1938 at paras.28-29, 40 and 50 per Rares J; Minister for Immigration & Citizenship v SZRMA [2013] FCAFC 161 at paras.60-61 per Mansfield, Gilmour and Foster JJ.
The applicant complains that he was telling the truth, but the Tribunal found that he over-exaggerated the claim about harm to his parents. Again, that is purely a matter of fact-finding, and therefore a matter for the Tribunal for reasons set out above.[93] In any event, having regard to the Tribunal’s findings as to the applicant’s credibility, it was open to the Tribunal not to accept the applicant’s claims that his parents died as a result of any treatment by the Chinese authorities. Even if the Tribunal did misconceive the evidence, which in the Court’s view it did not, that would not give rise to jurisdictional error.[94]
[93] Wu Shan Liang at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
[94] WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at paras.46-47 and 58-63 per Marshall, Mansfield and Siopis JJ; WAHP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 87 at para.7 per Lee J; AZAAA v Minister for Immigration & Citizenship & Anor (2009) 177 FCR 363 at 378 per Mansfield J; [2009] FCA 554 at para.53 per Mansfield J.
The Tribunal obviously considered the applicant’s claim that there were persons who tried to kill him because he had reported corruption. The Tribunal considered the claim, but did not accept it.[95] Likewise, the claim that the applicant’s parents were harmed by the authorities resulting in their deaths was considered by the Tribunal, but it found that the applicant had over-exaggerated the claim of harm to his parents for the purposes of his Protection Visa claim, and did not accept that his parents died as a result of any treatment by the Chinese authorities.[96] Thus, both of the matters which the applicant claims the Tribunal ignored were considered by the Tribunal, and findings adverse to the applicant were made by the Tribunal on the basis of the applicant’s lack of credibility. For reasons set out above, credibility findings, and subsequent fact findings arising from disbelief of an applicant are not to be interfered with by the Court on judicial review.
[95] CB 183 at paras.21-23.
[96] CB 184 at para.27.
As to the claim that the Tribunal relied upon incorrect ICI, this is not in itself a claim of a failure to take into account a relevant consideration, and must therefore fail on that basis. It also fails because, for reasons set out above, the choice of ICI to be relied upon is a choice for the Tribunal, and does not give rise to jurisdictional error. Furthermore, there was nothing in either the amended application or the applicant’s submissions which identified how it was said that the relevant ICI[97] was “incorrect”. Moreover, the applicant did not refer the Tribunal to any other ICI, and did not file submissions in these proceedings identifying any “correct” ICI or how the ICI relied on by the Tribunal was said to be “incorrect”. This was not a case conducted on the basis, and nor has it been suggested, that the Tribunal did not consider the most current ICI available to it.[98]
[97] CB 184-185 at paras.31 and 32.
[98] As to which, see para.33 and footnote 92 above.
For all of the above reasons, ground 2 is not made out, and does not disclose any jurisdictional error.
Ground 3
Ground 3 is a complaint by the applicant that the Tribunal acted in breach of s.424A of the Migration Act and in breach of the rules of procedural fairness by failing to put to the applicant for comment ICI relied upon which was adverse to the applicant.
Section 424A of the Migration Act provides for certain information and invitations to be given in writing by the Tribunal to an applicant. Section 424A(3) of the Migration Act provides as follows:
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member
….
This ground cannot succeed because it is now trite law that ICI falls within the exception set out in s.424A(3)(a) of the Migration Act. The ICI was, therefore, not information which the Tribunal was obliged to provide to the applicant.[99] It follows, therefore, that the allegation of a breach of s.424A of the Migration Act cannot be sustained.
[99] MZYER v Minister for Immigration & Citizenship & Anor [2010] FCA 522 at para.51(c) per Dodds-Streeton J; MZZPL v Minister for Immigration & Border Protection & Anor [2014] FCA 110 at para.36 per Ross J; MZYYQ v Minister for Immigration & Anor [2013] FCCA 1260 at para.25 per Judge Hartnett, a paragraph specifically found not to be in error on appeal in MZYYQ v Minister for Immigration & Border Protection [2014] FCA 166 at paras.12-13 per Bromberg J.
In relation to the generalised allegations of a lack of procedural fairness or natural justice these cannot succeed in any event. The Tribunal had limited procedural fairness obligations arising from the application of s.422B of the Migration Act. The Tribunal complied with its obligations under s.425 of the Migration Act by validly inviting the applicant to a hearing, which he attended on 30 August 2013, and in which he gave evidence in support of his claims.[100] The Tribunal raised with the applicant during the hearing the concerns that it had with his claims and evidence.[101] Accordingly, no breach of s.425(1) of the Migration Act is apparent.[102] The Tribunal was under no obligation to do any more than it did to accord procedural fairness to the applicant.[103]
[100] CB 165-167 and CB 202-208 at paras.83-120.
[101] See generally CB 180-186 at paras.9-40.
[102] SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2006) 228 CLR 152; [2006] HCA 63.
[103] Migration Act, s.422B(1).
For all of the above reasons, ground 3 is not made out, and does not disclose any jurisdictional error.
Conclusions and order
The Court has concluded that the applicant has failed to make out any of the three grounds that he relies upon in this application for judicial review, and that those grounds disclose no jurisdictional error. It follows that the application must be dismissed, and there will be an order accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 27 June 2014