WZAVW v Minister for Immigration

[2015] FCCA 2571

FEDERAL CIRCUIT COURT OF AUSTRALIA

WZAVW v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2571

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – bias – whether clearly alleged and properly proven – procedural fairness – whether Tribunal identified the applicant’s claims and evidence – whether the Tribunal failed to consider an integer of the applicant’s claims – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Applicant: WZAVW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 45 of 2015

Judgment of: Judge Street

Hearing date: 14 September 2015

Date of Last Submission: 14 September 2015

Delivered at: Sydney

Delivered on: 14 September 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Ms E Tattersall

ORDERS

1. The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.

2. The application is dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the amount of $5800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PEG 45 of 2015

WZAVW

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 20 January 2015. The applicant was found to be a citizen of China, and his claims were assessed against that country. The application identifies the following grounds of alleged jurisdictional error:

   1. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have bias against me as I was deprived of the benefits of doubts.

   2. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have denied me procedural fairness by failing to provide adequate reasons for finding of facts.

   3. Both Minister for Immigration and Border Protection and Refugee Review Tribunal have made an offensive finding based on no evidence.

   4. Both minister for Immigration and Border Protection and Refugee Review Tribunal have ignored the evidences and facts.

2. In relation to the first ground, I accept the first respondent’s submission that bias must be clearly alleged and properly proven.

3. There has been no conduct identified in respect of which it is alleged there is a basis for finding bias other than, by implication, the adverse decision of the Tribunal.  The adverse findings by the Tribunal are not a 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.  The ground of the allegation of bias in ground 1 is not made out.

4. In relation to ground 2, it is clear from the court book that the applicant was invited to attend a hearing in accordance with the statutory regime and that the applicant did attend that hearing on 15 January 2015 to give evidence and to present arguments, and was assisted by an interpreter.  I accept the first respondent’s submission that the Tribunal properly identified the applicant’s claims, and it was open to the Tribunal to make adverse findings on the material before the Tribunal.

5. Nothing has been identified by the applicant to support the allegation of a denial of procedural fairness, and to the extent the Tribunal has made adverse findings those adverse findings cannot be said to lack an evident and intelligible justification. Further, those adverse findings were open on the material before the Tribunal. The applicant had a genuine hearing and the Tribunal set out reasons for the adverse findings.  Ground 2 fails to make out any jurisdictional error.  In relation to ground 3, no specific finding has been identified by the applicant that is said to be the subject of the absence of evidence or logical basis to support that finding.

6. The Tribunal’s reasons identify a rational foundation on the material before the Tribunal for the adverse findings in paras.24, 25, and 26, in the conclusions that the applicant is not a person in respect to whom Australia has a protection obligation and that the applicant has not satisfied the criteria under ss.36(2)(a) or 36(2)(aa). Ground 3 is not made out. In relation to ground 4, again the applicant has not identified any evidence or fact which it is alleged the Tribunal was required to have regard or failed to have regard, and is in substance an impermissible challenge to the merits of the decision. Ground 4 is not made out.

7. The applicant also served on the first respondent a further application, which was marked exhibit B, in which the following ground was raised:   

   1. The Second Respondent owns me nature justices in reaching the decision.

   Particulars

   On paragraph 13 o[the decision record the Second Respondent state: “Whilst the Tribunal accepts that the applicant was employed as a Police officer during the period claimed. and that he may have been involved in the investigation of the former mayor, it does not accept his claims to have been targeted as a result.”

   The Second Respondent clearly demonstrated it does not believe I have been targeted by the former mayor's family and supporters.

   I have provided the details of my dangerous situation in that particular, however, the Second Respondent with out if finding of fact concluded my claims as to my involvement in mv police careers.

   The Court has treated that further ground as a further ground raised by the applicant in addition to the earlier application.  I accept the first respondent’s submission that the further ground is, in substance, a repetition of the earlier grounds insofar as being a challenge to the adverse findings by the Tribunal, which adverse findings were open on the material before the Tribunal. The particulars fail to make out any denial of procedural fairness or to identify the adverse findings with which the applicant disagrees.

8. It was a matter for the Tribunal to determine what weight it gave to the applicant’s claims, and the further ground fails to make out any jurisdictional error.  From the bar table, the applicant raised a proposition that there was an issue of error in relation to the reasons of the Tribunal first in respect of the proposition that in fact he arrived in Australia on a business visa rather than a tourist visa.  I accept the first respondent’s submission that that is not an error apparent on the material before the Tribunal, and indeed the application for protection supports the applicant having arrived on a tourist visa.

9. The migration history of the applicant is identified by the delegate as having arrived in Australia at the end of 2006, following which his tourist visa expired just before the end of 2006, after which the applicant remained unlawfully in Australia until detained on 6 February 2014.  The applicant also raised an alleged error in relation to whether he raised a claim concerning his wife being involved in a traffic accident that he suggested that had not been put to the Tribunal.

10. I accept the first respondent’s submission that it is apparent that the wife’s traffic accident was one of the claims raised before the delegate and it was open to, and proper, for the Tribunal to deal with that claim.  The applicant also raised from the bar table a concern that his details may have been released whilst in detention and that his son had been injured in circumstances that caused him to doubt whether his details may have been released.  It is clear from the Tribunal’s decision in paras.21 and 22 that is the subject of adverse findings by the Tribunal:

    21. In the Tribunal's view the applicant's delay in applying for protection following his arrival in Australia on a tourist visa in 2006 (and only after he was detained), and his claims that he departed the PRC for employment reasons and that he planned to return to the PRC, undermine the veracity of his claims for protection. The Tribunal discussed these matters with the applicant at hearing and he responded reiterating the response he had given the Department, that he was afraid of being located by the PRC authorities. Further he indicated that after he was detained by the Department on 6 February 2014 his personal details were released on the internet as a result of a data breach. He claims the PRC government used this information to identify and locate his son who was attacked by an unknown person with a knife, resulting in his hospitalisation on 28 February 2014. He claimed that he only felt the need to apply for protection once his information was released as a result of the data breach.

    22. The Tribunal discussed with the applicant the delegate's decision, a copy of which he provided to the Tribunal in the course of the review, in which it is noted that as the applicant was not in detention until after 31 January 2014 he was not part .of the data breach. The Tribunal finds that given that the applicant was not detained until 6 February 2014 he was not part of the data breach that released the names and details of persons in immigration detention on 31 January 2014. Whilst it accepts that his son may have been attacked by unknown persons in February 2014 the Tribunal considers this to be an unrelated criminal matter.

11. Nothing said by the applicant from the bar table identified any jurisdictional error.  The application is dismissed.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 25 September 2015