FEDERAL COURT OF AUSTRALIA

BRQ18 v Minister for Home Affairs [2019] FCA 319

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the First Respondent’s costs as agreed or assessed.

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

REASONS FOR JUDGMENT

(Revised from transcript)

PERRY J:

1.    INTRODUCTION

1    This is an appeal against a decision of the Federal Circuit Court of Australia (FCC) dismissing an application for judicial review of a decision made on 7 March 2018 by the Administrative Appeals Tribunal (the Tribunal). By that decision, the Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Home Affairs (the Minister), to refuse to grant the appellant a Protection (Class XA) visa (the visa).

2    The Minister filed written submissions in advance of the hearing of the appeal in accordance with orders made by the Registrar. The appellant was unrepresented and did not file written submissions in support of his appeal.

3    The first hearing of the appeal was adjourned at the appellant’s request after he did not appear at the first hearing but was able to be contacted by telephone. He said that he had not received any of the documents relating to the listing of the appeal. The appellant appeared at the rescheduled hearing of his appeal and made submissions with the assistance of an interpreter who was an accredited Level 3 (Professional) interpreter in Mandarin and English.

2.    BACKGROUND

1.1    The application for the protection visa and delegate’s decision

4    I have summarised the background to the appeal in general terms in order to minimise the risk of disclosing identifying details about the appellant.

5    The appellant is a citizen of China. He applied for a protection visa in October 2014. The appellant claimed that he had worked for a food processing company. In his application for a protection visa, the appellant claimed that he had discovered that his company was secretly producing “gutter oil” which causes serious damage to people’s health. The appellant claimed that he persuaded other workers not to participate in processing the oil and was immediately fired. He also said that the head of the security department warned him not to make trouble. He said he then collected evidence and reported the illegal activity to the local government, providing them with the evidence. He claimed to have been detained on two occasions the following month. On the first occasion, he said that he was detained by the city security bureau where he was interrogated many times, and forced to write a letter of repentance and to promise not to report the factory again. Not long thereafter he claimed to have been sent to the local detention centre where he was held for a couple of weeks, beaten, and only released upon his wife paying a fine. He believed the police were watching his family in order to catch him and had threatened his son. The appellant also claimed that he had found a friend to help him to apply for a visa to leave China and he went to neighbouring Asian countries. However, he claimed that as the tour guide monitored them strictly, he had no chance of escaping. It was only later in mid-2014 that he came to Australia.

1.2    The Tribunal’s decision on review

6    The appellant applied for review of the delegate’s decision by the Tribunal. He appeared before the Tribunal on 9 February 2018 to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages. The interpreter’s level of accreditation was not disclosed by the Tribunal’s records in the appeal book. By a decision given on 7 March 2018, the Tribunal affirmed the decision by the Minister’s delegate to refuse to grant the appellant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

7    The Tribunal reached that decision on the ground that it did not consider that the appellant was a truthful witness and it was not satisfied that the claimed events had occurred, given inconsistencies in the appellant’s evidence with respect to key aspects of his claim and in the absence of what the Tribunal regarded as any convincing explanation for those inconsistencies (Tribunal reasons at [48]). In particular, the Tribunal took into account the following inconsistencies and omissions in his evidence:

(1)    while in his written statement, the appellant said that he was fired and threatened by the company’s security officer before he went to the authorities, he gave oral evidence before the Tribunal that:

(a)    it was his choice to stop working at the company and he made that decision because it was better for him to leave voluntarily than be fired (Tribunal reasons at [32]); and

(b)    it was only after submitting his evidence to the authorities that the company’s security man approached him and threatened him (Tribunal reasons at [33]);

(2)    the appellant’s explanation for these inconsistencies, namely that he did not memorise his written statement and the events happened a long time ago, which led the Tribunal to consider that this suggested that the events were constructed and it was not persuaded that the passage of time would account for the differing accounts of what occurred (Tribunal reasons at [34]-[35]);

(3)    at the hearing, the appellant gave evidence that he was detained only on one occasion for 2 weeks and in one location only, being a small house which did not belong to the police; however in his written statement he said that he had been detained for a period totalling a month, first in a bungalow behind the public security bureau and subsequently at a detention centre (Tribunal reasons at [36]-[37] and [39]);

(4)    the appellant gave differing accounts in his written statement and oral evidence of the manner in which injuries allegedly suffered by him during detention were treated; and

(5)    the appellant gave evidence for the first time at the Tribunal hearing that, following his return to China from nearby Asian countries, he was approached by some people and told that he should be held responsible for the situation he had caused for his food company (Tribunal reasons at [43]-[44]).

8    The Tribunal also discussed at the hearing its understanding of the country information in respect of the “gutter oil” business in China. (Country information is information about the situation in a country derived from independent sources.) That information indicated, in the Tribunal’s view, that the widespread use of gutter oil was one of the food scandals in 2011 which most alarmed the public in China and led to a “blitz” against the trade in 2011 and 2012, with the authorities going so far as to say that the death penalty will be an option when prosecuting more serious cases (Tribunal reasons at [45]-[46]). The Tribunal put to the appellant that it therefore appeared that the Chinese authorities were highly motivated to stop this illegal practice and that he could avail himself of State protection if he faced any serious harm on return in connection with the claimed events. In response, the appellant said that the government would not take action if it is a small-scale incident and that government officials collude with the perpetrators. He added that if he returned to China he would be blamed for the company’s situation (Tribunal reasons at [47]). However, in addition to the other difficulties with the appellant’s evidence, the Tribunal found that there was no evidence that the situation of the company concerned had changed in the manner alleged by the appellant as a result of the alleged involvement in the “gutter oil” business (Tribunal reasons at [48]).

9    The Tribunal also took into account information which it considered indicated that the appellant had provided false information to the Australian Embassy about his occupation when he applied for a visitor visa (the visitor visa information). That information, together with other information which was rejected by the Tribunal as irrelevant, had been the subject of a non-disclosure certificate under s 438 of the Act. However, no clear reason had been given as to why disclosure would be contrary to the public interest. The Tribunal therefore found that the certificate may be invalid and in any event, the visitor visa information had been discussed in the delegate’s decision (Tribunal reasons at [26]). The Tribunal rejected the appellant’s evidence in response to the visitor visa information that unbeknown to him, the person who completed the visitor visa application had fabricated evidence about his employment (Tribunal reasons at [49]). The Tribunal found that it was more likely that the appellant was prepared to lie about his circumstances in order to be granted a visitor visa and considered that this reinforced its earlier findings that the appellant’s evidence could not be relied upon (ibid).

10    As a result of rejecting his claims, the Tribunal found that there was no real chance that the appellant will suffer serious harm upon returning to China for the reasons claimed and therefore that he was not a person to whom Australia owed protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (the Refugees Convention). The Tribunal therefore found that the appellant did not satisfy the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). Nor did the Tribunal consider that the appellant met the alternative criterion for complementary protection in s 36(2)(aa) of the Act.

1.3    The decision of the FCC

11    The FCC reasons record that the appellant did not make any submissions in writing or orally in support of the application for review. The primary judge therefore considered his application simply by reference to the grounds identified in the application. I note that at the hearing of the appeal today, the appellant said that he had filed submissions in the FCC, but the appellant may well have been confused, as he was in other parts of his submissions, about whether he was referring to the AAT or to the FCC, an error which is completely understandable for a lay person unfamiliar with the Australian legal system. I also note that the appellant did not suggest that any submission by him had been overlooked by the FCC.

12    The appellant alleged in his application for review that:

1. AAT’s officials did not consider my actual situation to make a decision, it is unfair for me.

– AAT’s officials said that my behaviour was not reasonable because I did not apply a protection visa when I visited to [the neighbouring Asian countries]. I think that officials did not consider my actual situation, my passport was distrained by the tour guide actually. During that time, I did not know I can apply a protection visa without passport and my state of mind is always not good. In [the neighbouring Asian countries], I have no any friend and relative, so I did not know who can help me.

2. AAT underestimated my persecution in China and AAT did not treat me case fairly.

– AAT’s officials did not examine the risk of the persecution I will face if I return to China. Due to I submitted these evidence to the Authority, my behaviour had to undermine their interest. Those people have huge power and they also colluded with the Chinese government’s officials. They protect with each other. AAT’s officials did not realise the important point and AAT should investigate my case carefully.

3. AAT’s official’s attitude was mandatory, it cause I was so scared and could not answer the question better.

4. Moreover, AAT’s interpreter has a poor translation and I could not hear interpreter very well. AAT’s officials’ attitude was very terrible.

13    The primary judge rejected these grounds for reasons I later explain.

3.    CONSIDERATION

1.1    The limited function of a court on judicial review and on the appeal

14    At the hearing of the appeal, the appellant submitted that his experiences were true and that if he could stay in Australia, he had the potential to build a better future for Australia.

15    However, while the appellant understandably focused upon these matters, those submissions raise matters which neither the FCC could take into account on his application for judicial review, nor this Court on the appeal. The circumstances in which the FCC may find an error on a judicial review application which would justify the Court setting aside or quashing the Tribunal’s decision are very limited. The jurisdiction of the FCC is confined to deciding whether the Tribunal’s decision was made lawfully under the Act, that is, whether the Tribunal’s decision is invalid by reason of a jurisdictional error.  This Court in turn must decide whether the FCC wrongly decided that there was no jurisdictional error.  The Tribunal would make a jurisdictional error if, for example, it misunderstood the criteria by which the appellant’s visa application must be considered under the Act, the Tribunal’s decision was illogical or irrational, the Tribunal approached the application with a mind closed to persuasion, or the Tribunal did not otherwise give the appellant a meaningful hearing: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] (McHugh, Gummow and Hayne JJ); Craig v South Australia (1995) 184 CLR 163 at 179 (the Court). 

16    However, neither the Federal Court nor the FCC has jurisdiction to grant the appellant a visa, to consider whether he satisfies the criteria for the grant of a protection visa, or to correct mistaken findings of fact by the Tribunal: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J), [146] (Kenny J); Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [114] (Kirby J). As for example, the High Court explained in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50; (2015) 258 CLR 173 at 184-185 (French CJ, Bell, Keane and Gordon JJ):

    23    It is necessary to make some preliminary observations in relation to the constraints within which the plaintiff’s challenge to the validity of the Delegate’s decision falls to be determined. These constraints are aspects of the scope of judicial review of administrative action, which is confined to the legality of the Delegate’s decision. In particular, judicial review is concerned with whether the Delegate’s decision was one which he was authorised to make; it is not:

    “an appellate procedure enabling either a general review of the… decision … or a substitution of the … decision which the … court thinks should have been made.” [quoting Craig v South Australia (1995) 184 CLR 163 at 175.]

17    It follows that the question of whether this Court or the FCC agrees with the Tribunal’s decision is not a ground for quashing the Tribunal’s decision, even if another decision-maker might have found the appellant’s claims to be credible.

1.2    The issues

18    The notice of appeal raises the following grounds:

1.    The Tribunal was not professional, which caused that I could not provide more useful evidence.

2.    [The Tribunal] denied all the evidences and states I provided without any consideration.

3.    The staff’s attitude was not patient, which caused me so nervous and state not to the point.

(errors in the original)

1.3    Grounds 1, 2 and 3

19    As the Minister submits, the first and third grounds appear to re-agitate the third ground of judicial review raised before the FCC.

20    The primary judge rejected this ground for the reason that the Tribunal’s adverse credibility findings were open to the Tribunal for the reasons given by it and could not be said to lack an evident and intelligible justification. As such, the primary judge rejected the allegation that the Tribunal had failed to consider the appellant’s actual situation because his Honour considered that that allegation was lacking in substance (FCC reasons at [15]-[18]).

21    The primary judge also found that the appellant had suffered no practical injustice by reason of the existence of the s 438 non-disclosure certificate. In any event the primary judge found that the information had been raised by the Tribunal with the appellant and had been identified in the delegate’s reasons, which had been provided to the Tribunal by the appellant, therefore falling within s 424A(3)(b) of the Act. (I explain the effect of this provision later in these reasons.)

22    The primary judge also rejected ground 3 of the application for judicial review on the basis that there was no material which would support any allegation of bias or apprehended bias on the part of the Tribunal Member (FCC reasons at [26]-[27]). Nor did the primary judge consider that the material before the Court indicated that the appellant was scared and could not answer questions, given that the Tribunal’s reasons explain that issues were raised with the appellant to which he responded (FCC reasons at [27]).

23    In so finding, I do not consider that the primary judge fell into error.

24    First, the appellant clarified at the hearing of the appeal that he did not allege actual bias. However, to the extent that grounds one and three of the notice of appeal are intended to allege that the FCC should have found that the Tribunal’s decision was affected by the appearance of bias, the primary judge was correct to reject that contention. As the Minister submitted, the test for determining whether the conduct of an administrative decision-maker may give rise to an apprehension of bias will turn upon whether a fair-minded lay person (that is, a person who is not a legal expert) might think that the decision-maker might not bring a fair and impartial mind to the making of the decision: Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45; (2012) 200 FCR 223 (SZQHH) at [37] (Rares and Jagot JJ). In turn, the hypothetical lay person is “an objective observer of the proceedings and will be assumed to be properly informed as to their nature, the matters in issue and the conduct complained of”: SZQHH at [37].

25    As the Minister submitted, an allegation of apprehended bias must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] (Gleeson CJ and Gummow J). Here, the basis of the allegation of apprehended bias was not identified; nor was there any evidence or other material which might have led the fair-minded lay-person to consider that the Tribunal did not have an open mind to persuasion.

26    In this regard, the appellant’s submissions went no higher than to say that, even though he was truthful, he sensed doubt from the Tribunal Member. However, the expression of doubts by the Tribunal at the hearing is not sufficient to give rise to an apprehension of bias but was necessary for the Tribunal to comply with its obligations of procedural fairness and give the appellant the opportunity to respond to those doubts. Thus the detailed description of the questions asked by the Tribunal and the answers given by the appellant at the hearing demonstrate that each of the matters which led the Tribunal to disbelieve the appellant’s claims were put to him and that he was given an opportunity to respond. It must also be kept in mind that proceedings before the Tribunal are inquisitorial in nature. This means that there was nothing necessarily inappropriate in the Tribunal testing the appellant’s evidence in the course of the hearing by putting to him matters of concern in order to give him the opportunity to address those concerns. As the High Court explained in Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 (Ex parte H) at [30] (Gleeson CJ, Gaudron and Gummow JJ): “[w]here, as in the present case, credibility is in issue, the person conducting inquisitorial proceedings will necessarily have to test the evidence presented – often vigorously. Moreover, the need to ensure that the person who will be affected by the decision is accorded procedural fairness will often require that he or she be plainly confronted with matters which bear adversely on his or her credit or which bring his or her account into question.” While, as their Honours in Ex parte H then continued at [31], care must be taken to ensure that the vigorous testing of evidence does not lead to the applicant being overborne or intimidated which might give rise to apprehended bias, there is no evidence of any such conduct in the present case.

27    Equally, the fact that the Tribunal ultimately disbelieved the appellant’s claims to fear harm does not of itself give rise to any perception of bias. To the contrary, the Tribunal set out in detail logical and clear reasons for reaching its decision by reference to the evidence before it. In this regard, as I have said, it is not the task of this Court or the FCC to decide whether it believes the appellant’s claims, even if a different decision-maker might have accepted that those claims were credible.

28    Secondly, by virtue of s 425 of the Act, the Tribunal must invite an applicant to attend a hearing to give evidence and present arguments. This indicates a legislative intention that the invitation not be a “hollow shell” or “empty gesture” where no real or meaningful opportunity to give evidence and present arguments is given: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; (2003) 128 FCR 553 at [33]-[38] (the Court). In this regard, the appellant was given notice of the hearing held on 9 February 2018 by a letter dated 30 November 2017. The appellant attended that hearing which ran for two hours. As earlier explained, the detailed answers given to the Tribunal in response to its questions as recorded in the Tribunal’s reasons demonstrate that the appellant was able to participate meaningfully in the hearing. The reasons also demonstrate that the Tribunal asked questions of the appellant on each of his key claims and put its concerns about those claims to him, giving him the opportunity to answer them. In this regard, the appellant complained in the FCC that the Tribunal’s interpreter “has a poor translation and I could not hear [the] interpreter very well”. However, no examples were given of any instances where the Tribunal allegedly acted on any errors or omissions by the interpreter in reaching its decision and no evidence in support of the ground was led. Nor does the appellant suggest that he raised any concerns about the standard of interpreting with the Tribunal, and there is no record of any such concerns being raised in the Tribunal’s description of the hearing in its reasons.

1.4    The s 438 certificate

29    Finally, the Departmental file contains an alleged certificate under s 438 of the Act. The documents covered by the certificate are a tax invoice, a protection visa validity check, an identification test, and the visitor visa information. As the Minister submits, the primary judge correctly held that no breach of procedural fairness or other jurisdictional error arose as a result of the Tribunal’s treatment of the non-disclosure certificate.

30    First, as earlier explained, it is apparent from the Tribunal’s reasons that it disclosed the existence of the certificate to the applicant: cf Minister for Immigration and Border Protection v Singh [2016] FCAFC 183; (2016) 244 FCR 305 at [52] and [56]-[59] (the Court). Secondly, the Tribunal correctly expressed doubts about the validity of the certificate and proceeded on that basis. Thirdly, leaving aside the visitor visa information, the documents said nothing about the appellant’s claims or whether he should be granted a visa, as the Tribunal noted in finding that the documents were not relevant. As such, there could be no basis on which to contend that the Tribunal acted on the certificate or that any breach of procedural fairness was material. As the High Court held in Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [2], “[t]he breach is material if it operates to deny the applicant an opportunity to give evidence or make arguments to the Tribunal and thereby to deprive the applicant of the possibility of a successful outcome.” In the fourth place, the visitor visa information was contained in the delegate’s decision, a copy of which was provided by the appellant to the Tribunal for the purposes of the review. As such, as the primary judge held, there was no obligation under s 424A(1) of the Act for the Tribunal to give particulars of the information by virtue of s 424A(3)(b). Thus s 424A(1) relevantly requires that, subject to subss (2A) and (3), the Tribunal must give the applicant clear particulars of any information which the Tribunal considers would be part of the reason for affirming the delegate’s decision, explain why it is relevant and invite the applicant to comment. However, by virtue of s 424A(3), that obligation does not apply to information which an applicant gave for the purposes of the application for review, being relevantly here information contained in the delegate’s decision.

4.    CONCLUSION

31    It follows for these reasons that the appeal must be dismissed with costs as agreed or assessed.

Associate:

Dated:    8 March 2019