FEDERAL COURT OF AUSTRALIA

CGD16 v Minister for Immigration and Border Protection [2017] FCA 1236

ORDERS

THE COURT ORDERS THAT:

1.    the appeal be dismissed; and

2.    the appellants pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

DOWSETT ACJ:

INTRODUCTION

1    The first appellant is a citizen of China. She arrived in Australia on 5 November 2012, then holding a student visa. On 19 December 2013, the visa was cancelled under s 116 of the Migration Act 1958 (Cth) ("the Act") due to non-compliance with conditions under that visa. Subsequently, on 18 August 2014, the first appellant applied for a protection (class XA) visa. The second appellant, the first appellant’s husband, applied for a visa as a member of the same family unit. On 23 January 2015 a delegate of the first respondent refused the first appellant’s application. Subsequently, she unsuccessfully sought review by the second respondent (the “AAT”). The first appellant then sought judicial review of the AAT’s decision in the Federal Circuit Court ("the Circuit Court"). The Circuit Court upheld the decision. The current appeal is from the Circuit Court's decision. The AAT has submitted to the jurisdiction of this Court, save as concerns the question of costs.

2    The second appellant’s appeal depends upon the success of the first appellant’s appeal. However, in the Tribunal, the second appellant gave evidence in support of the first appellant’s case. Those circumstances have led to some apparent inconsistency in references in these reasons to either or both of the appellants. However such inconsistency is readily resolved by reference to the context.

PROCEEDINGS IN THE TRIBUNAL

3    On 17 November 2015, the appellants appeared in the Tribunal, with the assistance of an interpreter. The first appellant alleged that in July or August 2013 her parents agreed to sell real property in China to a developer. However the developer did not pay her parents for the property. They petitioned the relevant government bureau for assistance. The first appellant claimed that her parents had subsequently been beaten by “gangsters” and threatened on numerous occasions. Allegedly, these gangsters also threatened to harm the first appellant, if she were to return to China.

4    In the Tribunal, both appellants gave evidence. There were, however, a number of inconsistencies. At [76]-[78] in its decision, the Tribunal observed:

76.    [T]he [first appellant] frequently changed her evidence and provided inconsistent evidence [suggesting] to the Tribunal that her claim that the family property was taken and that her parents were harmed is not true. Some more obvious examples of her contradictory claims were:

•    she initially said that the relevant property belonged to her parents but after [the second appellant] gave contradictory evidence she changed her evidence and claimed that the property belonged to [the appellants];

•    she indicated that she did not have a child only to admit that she did once evidence which contradicted the claim was put to her;

•    she initially claimed that the first time her parents were beaten they were travelling to complain to the Bureau about the developers only to later claim that they were first beaten in their house;

•    she initially claimed that her parents never told her that either parent was beaten only to later say that her parents told her they were beaten;

•    she initially said that she only found out that her parents had been beaten in around September 2015 then said that she had been told by her mother in September 2013 that her parents had been attacked;

•    she then claimed that her parents did not give her any details of the beatings only to later describe details of the beatings; and

•    she claimed that her parents were attacked with sticks but not knives and then said that they were in fact attacked with knives.

77.    The finding that the [appellants] have made false claims is also supported by the inconsistencies between the evidence presented by [each appellant]. Some more obvious examples were that:    ·

•    the [first appellant] said that there were 7 rental shops in the property whereas the [second appellant] said there were 3;

•    the [first appellant] had initially said that the property belonged to her parents whereas the [second appellant] said that [they] owned the property;

•    the [first appellant] said that the property made RMB 40,000 a month in rent whereas the [second appellant] said that it made RMB 30,000 an month;

•    the [first appellant] said that her parents were last beaten a month before the hearing whereas the [second appellant] said that the [first appellant] parents were beaten only a few days prior to the hearing;

•    the [first appellant] initially said that her parents were first beaten on the way to report the developers to the authorities whereas the [second appellant] claimed that the developers went to their home to beat them; and

•    the [first appellant] said that her parents voluntarily vacated the relevant property after a sale agreement was made with the developers whereas the [second appellant] initially claimed that the property had been forcibly occupied.

78.    In addition much of the evidence that was given by [the appellants] was implausible and incredible and this also supports the finding that the [appellants’] claims are untrue. Some examples include:

•    that the [second appellant] would not know when he was given the property by the [first appellant’s] parents;

•    that the [first appellant’s] parents would continue to seek to petition the authorities or sue the developers despite regular beatings at the hands of the developers;

•    that the [first appellant’s] parents would remain in their village despite repeated severe beatings;

•    that the [first appellant’s] parents were not hospitalised after being attacked by 7-8 men with sticks and knives;

•    that the [appellants] continued to make the parents petition and sue despite knowing that the parents were being severely beaten for doing so; and

•    that the [appellants] would both move back to the parents village where the developers are located and file petitions and suits despite doing nothing themselves to advance any complaints while they have been in Australia.

5    As a result of these inconsistencies, the Tribunal found that, "the ... claims have been fabricated to bolster [the appellants’] chances of being granted protection visas”. The Tribunal did not accept that, "developers, thugs, authorities in China or anyone else [would] harm [them] upon their return to China”. Accordingly the Tribunal was not satisfied that the first appellant had a well-founded fear of persecution for a Convention reason now, or in the reasonably foreseeable future, for the purposes of s 36(2)(a) of the Act. Further, the Tribunal was not satisfied that there were substantial grounds for believing that there was a real risk of significant harm if the appellant was returned to China, having regard to s 36(2)(aa) of the Act.

6    The Tribunal affirmed the delegate’s decision to refuse the class XA visa.

THE DECISION OF THE CIRCUIT COURT

7    By application to the Circuit Court dated 12 August 2016, the appellants sought judicial review of the Tribunal's decision on the following grounds:

1.    The [T]ribunal denied the [first appellant] natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.

2.    The [T]ribunal is a neutral body which is in the business of considering any refugee case in light of the authentic information and reliable witnesses and should be unbiased. The [T]ribunal was completely biased on so called independent country information on China and the USCECC Annual Report 2012. It is matter of regret that the [T]ribunal was not free from biasness and prejudice while reviewed by claim. As such the [first appellant] was deprived from the natural justice.

3.    The [T]ribunal has totally ignored the [first appellant’s] situation back in China, it more relies on the delegate's decision. Therefore it is cleared that the [T]ribunal has failed to have a fresh look into the protection visa claim; and to take the relevant legal issues in to consideration during reviewing the appeal application. The Tribunal failed to maintain their procedural fairness.

4.    The [T]ribunal in their decision has admitted that the petitioners were persecuted in China. Which means the [first appellant] may be persecuted by the Chinese Government. Then obviously it is a grave concern for the [appellants] to live anywhere in China without harm or unnoticed by the Chinese Government. Although banned by regulations, retaliation against petitioners by government officials reportedly continued. The [T]ribunal should have full grasp of the information before it raise the issue in the hearing. The [T]ribunal failed to send a copy of the information to the [appellant] to comment on prior to the hearing. The [T]ribunal has wrongly weigh and judged the [first appellant’s] claim and did not have full grasp of the definition of the refugee declared and later amended by the UN convention.

5.    Tribunal did not consider all aspects of my claims. Tribunal failed to consider all aspects of my claims. Most importantly [T]ribunal failed to consider my main problems in China. It has stated in the decision, but did not give me an opportunity to explain it. Tribunal neither ask any questions nor provided me an opportunity to put the case forward.

8    The references in ground 4 to “the petitioners” should be understood as references to the appellant’s parents in connection with their attempts to seek relief in China.

9    On 31 October 2016 the Circuit Court Judge had asked the appellants to file written submissions to explain their allegations. However they failed to do so. On 6 March 2017, the Circuit Court Judge dismissed the application, giving extempore reasons.

10    Grounds 1 and 2 effectively assert denial of natural justice in the form of bias or the apprehension of bias. In respect of that assertion, his Honour said:

The fact that the Tribunal does not believe someone does not mean that the Tribunal was biased. The Tribunal has come to a conclusion based on the evidence before it. It is trite to say that if one is to make a claim that a Tribunal is biased, then there must be some evidence upon which the claim can be based.

11    His Honour concluded that there was no substance in grounds 1 and 2.

12    Ground 3 seems to assert denial of procedural fairness by the Tribunal, in that it had not, itself, examined the first appellant’s situation if returned to China, or to identify unspecified legal issues. The appellants effectively asserted that the Tribunal had considered only the delegate’s decision.

13    Concerning ground 3, the Circuit Court Judge said:

When one looks at that ground, one might be forgiven for believing there was plenty of reference to the original decision of the delegate in the reasons of the Tribunal. However, having read the Tribunal's reasons, there is absolutely no reference at all to the decision of the delegate, other than in introductory remarks.

14    His Honour seems to have meant that an examination of the Tribunal’s reasons reveals no support for the assertion made in ground 3. His Honour found that there was, "no merit in this ground either".

15    As to ground 4, the Circuit Court Judge said at [25]-[28]:

25.    This convoluted ground, again, is without foundation. The ground presupposes that this country information means that anyone who says that they are persecuted by the Chinese government must be telling the truth.

26.    When one looks at the findings of the Tribunal, they accepted that some persecution does occur. What they did not accept was that the Applicants were in that category of people who are being persecuted, simply because they did not accept the evidence of the Applicants at all.

27.    If the Tribunal does not accept the Applicants fit into this category, then it is not surprising that they do not believe the Applicants and do not find that the Applicants would be persecuted by the Chinese government.

28.    This ground, in reality, is an attempt at a merits review which this Court cannot, and will not, do. I find there is no merit in this ground and I now look at ground 5.

16    With respect to ground 5, the Circuit Court Judge said at [30]:

Again, this ground is, really, another attempt to have merits-based review. There is nothing specific that comes out of this ground and one need only look at the thoroughness with which the Tribunal has gone about detailing every aspect of what the [appellants] have claimed to see that there is no substance in this ground.

THIS APPEAL

17    The appellants appeal from the Circuit Court's orders dismissing the application for review. The grounds of appeal are succinctly expressed as follows:

1.    AAT did not consider all aspects of my claims.

2.    AAT has wrongly weigh and judged the [first appellant’s] claim and did not have full grasp of the definition of the refugee declared and later amended by the UN convention.

3.    AAT unfairly reviewed my case. The Tribunal did not examine the risk of the persecution I will face if return to China.

18    The Court file indicates that on 28 April 2017, a registrar ordered that, "the appellants file and serve a written outline of submissions no later than ten (10) business days before the hearing date". The appellants did not do so. At the hearing of the appeal on 18 August 2017, the first appellant appeared and was assisted by an interpreter. When I asked if she wished to say anything in support of her appeal, the first appellant said, "I have nothing to say". When I asked if she had anything to say in response to the first respondent's submissions, she said, "No".

19    As the Full Court noted in Rawsthorne v Minister for Immigration and Citizenship (2013) 140 ALD 524 at [27]:

[A]n appeal by way of rehearing … does not mean it is an opportunity to revisit the decision of the Tribunal. Save for exceptional cases, the task of a court on an appeal by way of rehearing is to correct error on the part of the primary judge.

20    The appellants’ grounds identify no error on the part of the primary Judge. The appeal should therefore be dismissed. However, notwithstanding the appellants’ failure to raise arguably valid grounds of appeal, I shall consider the ways in which the primary Judge dealt with the grounds upon which review was sought in order to demonstrate that there is, as far as I can see, no valid criticism of his Honour’s reasons, save possibly in one respect.

21    The primary Judge correctly dismissed grounds 1 and 2 of the appellants’ application on the basis that no bias or apprehension of bias had been demonstrated. As to ground 3, the primary Judge correctly concluded that reference to the Tribunal’s reasons demonstrated that there was no basis for the appellants’ complaint.

22    His Honour may not have fully understood ground 4. As I read it, the appellant asserted that:

    because the Tribunal accepted that her parents had been persecuted in China, she would also be persecuted by the Chinese government;

    the Tribunal should only have raised an issue if it had “full grasp” of the relevant information;

    the Tribunal failed to provide such information to the appellant for comment prior to the hearing;

    the Tribunal had wrongly assessed the appellant’s claims; and

    the Tribunal did not fully “grasp” the relevant Convention provisions.

23    I do not accept the primary Judge’s assertion that the appellant had submitted that the country information meant that any claim to fear persecution was true. Rather the appellant was saying that her parents, as petitioners in a property-related dispute, had been persecuted, and that the country information demonstrated that such persecution was a feature of life in China. However his Honour correctly concluded that the Tribunal had rejected the appellants’ evidence as to the basis for the alleged fear of persecution or serious harm. Hence any misunderstanding of the submission was of no consequence.

24    As to the balance of ground 4, there was no reason to conclude that the Tribunal had failed to grasp the effect of the information before it, or of the relevant definition of the term “refugee”. There is a suggestion of lack of procedural fairness, in that the Tribunal failed to provide the appellant with information prior to the hearing, or to allow her to comment on it prior to the hearing. The information in question seems to have been country information. However the country information was, in itself, supportive of the appellant’s case. It was the rejection of the claims made by the appellants that led to the affirmation of the delegate’s decision. No basis has been shown for the assertion that the Tribunal ought to have informed the appellants of such information and invited comment in advance of the hearing.

25    It is also fair to say, as the primary Judge did, that much of ground 4 seeks merits review.

26    As to ground 5, the appellant has not identified the “aspects” which, she claims, the Tribunal did not consider. There is no basis for suspecting that the Tribunal did not understand the meaning of the term “refugee”. Nor is there any identified basis for asserting that the Tribunal wrongly weighed or judged the claim. Finally, there is no identified basis for the assertion that the Tribunal failed to examine the risk of persecution in China, or that the decision was unfair in any relevant sense. Again, the Circuit Court Judge correctly identified the fact that this ground largely involved a request for merits review.

27    The rejection of the appellants’ evidence necessarily led to the conclusion that neither appellant met the criteria identified in s 36(2)(a) or s 36(2)(aa) of the Migration Act.

28    The appeal must be dismissed with costs.

Associate:

Dated:    19 October 2017