FEDERAL COURT OF AUSTRALIA

BDB18 v Minister for Home Affairs [2019] FCA 373

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant is to pay the first respondent's cost to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant seeks leave to appeal from a decision of the Federal Circuit Court of Australia: BDB18 v Minister for Home Affairs [2018] FCCA 1939.

2    The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal), which in turn affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a protection visa.

Background

3    The applicant is a citizen of China who arrived in Australia on 13 June 2014 on a tourist visa. On 5 September 2014 he lodged an application for a protection visa. The application was refused by a delegate of the Minister.

4    The decision was referred to the Tribunal for review and on 12 February 2018 the Tribunal affirmed the delegate's decision.

5    The applicant sought judicial review of the Tribunal's decision in the Federal Circuit Court. The matter came on for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth). The primary judge dismissed that application.

6    On 17 July 2018 the applicant filed an application in this Court seeking leave to appeal from the decision of the primary judge. Leave is required as the decision of the primary judge to dismiss the application on a show cause hearing is expressly interlocutory in nature.

Principles for leave to appeal

7    Generally, leave to appeal from an interlocutory application will not be granted unless the decision in question is attended with sufficient doubt to warrant the grant of leave and substantial injustice would result from a refusal of leave to appeal: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. Leave will more readily be granted where, as here, the interlocutory decision effectively determines a substantive right: Decor Corporation at 400.

The applicant's protection claim

8    The applicant addressed his protection claim in a written statement dated 4 September 2014. The Tribunal included the contents of the statement in its reasons. The applicant also took part in a protection visa interview, and an account of the interview is set out in the reasons. Those accounts are lengthy and were largely consistent. The applicant also appeared before the Tribunal.

9    The applicant claimed that he was a country doctor working in a village community health service station. He claimed that following poor government response to an outbreak of bird flu in 2013, he and other doctors organised a protest. As a consequence, he was imprisoned for a week and his practicing certificate was cancelled.

10    Almost immediately following his release, he made further complaints online, which resulted in further detention for several days. He was required to report regularly to local police, and authorities came to his home to threaten his family.

11    The applicant claims that he attempted to obtain a passport, but was refused until he later offered bribe money to the relevant officials. Several months later, he obtained a tourist visa, and was able to travel to Australia.

12    He claims his family informed him that police were looking for him and would arrest him if he returned to China.

The Tribunal's findings

13    The Tribunal accepted various aspects of the applicant's claims.

14    It accepted that the applicant was a Chinese citizen, and was a qualified, rural medical practitioner. It accepted that he was detained for a week following a protest in response to the conditions in which the applicant and other colleagues were required to work during the 2013 bird flu epidemic. It accepted that the applicant was released on payment of a fine and that no formal charges were laid against him that would have resulted in any outstanding court action. The Tribunal doubted the applicant's evidence that he was 'orally' deregistered as a medical practitioner, but in the end it gave him the benefit of the doubt in accepting that he was deregistered as claimed.

15    However, there were significant aspects of the claim that the Tribunal did not accept.

16    The Tribunal was not convinced that the applicant had immediately gone online to engage in further public criticism of the authorities, and found it difficult to accept that he would have been released after just two or three days following a second incident in a matter of months. The Tribunal rejected this evidence as follows:

[16]    Notwithstanding the above, the Tribunal has doubts that the applicant was detained a second time for posting critical online comments about the situation. Having been subjected to the abovementioned detention, including being held in a dark room without food and drink for several days and having been advised by his lawyer that any continuation of his actions would only result in further problems, the Tribunal is not convinced the applicant would readily engage in further public criticism of the local authorities as claimed and so soon after his release from detention. The Tribunal also finds it difficult to accept that the applicant would have been released after just two or three days in detention following a second incident in a matter of months for his outspoken criticism of the local authorities. The Tribunal acknowledges the applicants claims that his family had to pay more money to secure his release and that he was required to report regularly thereafter but is not persuaded he would have been let off so lightly in the circumstances. The Tribunal considers it far more likely he would have faced a tougher penalty for his actions, including a lengthy period of detention, on this second occasion. The Tribunal is not satisfied that the applicant was detained a second time for posting online comments about the situation. It follows the Tribunal does not accept the applicant was required to pay money to secure his release a second time or that he was required to report regularly to the authorities after his release.

17    The Tribunal found the applicant's evidence as to difficulties with obtaining a passport and leaving the country was contradictory. The Tribunal considered this aspect carefully (seven paragraphs of its reasons are directed at the evidence and the reasons it was not accepted). It concluded as follows:

[23]    The Tribunal has considered the applicant's responses but finds them contradictory. On the one hand he claims he was refused a passport by the Public Security Bureau because they were informed about the fact he had been detained for his protest actions, and on the other hand he claims that the reason he could exit the airport without difficulty is because there is no official record of the fact he was previously detained. This together with his differing account of the manner in which he obtained his passport causes the Tribunal to doubt that he was required to pay a bribe in order to obtain a passport. The Tribunal does not accept the applicant's evidence in this respect and finds he was able to obtain a passport in his own name and exit the airport without detection because despite the fact he may have been previously detained at the local level on one occasion for his role in protesting about working conditions, when he applied for the passport and left the country he was no longer a person of interest to the Chinese authorities.

18    The Tribunal did not accept that the applicant and his family continued to be harassed following his release from detention, especially as he had paid a fine and signed a guarantee that he would not protest further. The Tribunal did not accept his evidence given during the hearing that local authorities and paid goons continued to visit his elderly parents over a period of four to five years, made threats to have him arrested and made threats to demolish their house. The Tribunal considered that his parents would not have endured such a situation for such a long period of time without at least attempting to seek refuge with relatives.

19    Taking into account that the charges against the applicant were not recorded, and because it had formed the view the applicant had obtained an official passport and left the country on that passport without hindrance, the Tribunal did not accept there was any chance that the local authorities would issue an arrest warrant for the applicant on his return to China. It was supported in this view by country information that indicated that if the applicant were a person of interest, he would not have obtained a passport or left the country so easily.

20    The Tribunal also noted that the applicant's protest activity was in connection with events that took place four to five years ago (at that time), and that the authorities would have no cause to worry that he would be vocal in protesting against the operations of the health system as he was no longer working in the medical profession. He had not continued to raise issues publicly from Australia and there was no indication he would be required to do so on return to China. One involvement would not afford him the profile of a political or social activist. The Tribunal noted that the Department of Foreign Affairs and Trade reports an estimated 180,000 protests of 10 persons or more occurred in 2010. The Tribunal was not satisfied that the applicant's past actions would cause him to be targeted as a person of adverse interest or detained, monitored, harassed or seriously harmed if he returned to China.

21    The Tribunal therefore was not satisfied that the applicant had a well-founded fear of persecution for reason of his protest action against local authorities.

22    As to any serious or significant risk of harm, the Tribunal acknowledged that the applicant could not work in the medical profession, but took into account that he had been working in the construction industry in Australia and considered he could likely continue to perform such work on return to China. The Tribunal was not satisfied that the applicant was at risk of serious or significant harm for reason of the fact that he would live in the countryside and health system reforms mean that pay is low and working hours are long.

23    Therefore, the Tribunal was not satisfied that the applicant satisfied the criteria under either s 36(2)(a) (refugee) or s 36(2)(aa) (complementary protection) of the Migration Act 1958 (Cth) and so affirmed the delegate's decision.

Before the Federal Circuit Court

24    In March 2018 a Registrar of the Federal Circuit Court made orders giving the applicant an opportunity to file an amended application, affidavit evidence and submissions but he did not do so.

25    The applicant raised various grounds of appeal before the Federal Circuit Court. These were in his words) :

1.    AAT have no consider all aspects of my claims, it caused Tribunal decision contains serious jurisdictional error. Tribunal did not provide me an opportunity to explain my claim. Also AAT did not consider my persecution situation in China. Tribunal is obliged to consider all material parts of my claims and should give me an opportunity to comment of the issues, it breach the jurisdictional rights granted to it by law.

2.    AAT's decision has biased and decision was made in bad faith. I could not explain more during the interview, the member never provided me an opportunity explain my case properly. I think that the member had decided the case before I was interviewed, otherwise, the member should give me proper opportunity to explain my case.

3.    I was persecuted by Chinese Government and I was a victim. I had explained my persecution clearly, but AAT did not make a reasonable assessment. Tribunal should interview me to find facts on all aspects of my claims. It failed to do. So it breached the provisions in the law.

26    On the first ground, the primary judge found that the Tribunal's reasons reflected an orthodox approach to the identification of the applicant's claims and evidence and the making of dispositive findings in respect of those claims. The primary judge found that there was no integer of the applicant's claims that the Tribunal failed to address on the matter before the Court. The primary judge therefore concluded that no arguable case of jurisdictional error was made out.

27    On the second ground, the primary judge noted that no particulars to establish bias or bad faith had been provided. The primary judge also noted that the mere making of adverse findings and raising of issues by the Tribunal during a hearing are not conduct by reason of which a fair-minded lay observer might reasonably apprehend bias. The primary judge therefore found that this ground had no substance and dismissed the ground.

28    On the third ground, the primary judge concluded that the applicant's disagreement with the Tribunal's finding did not identify an arguable case, and that this ground was substantially an invitation to engage in impermissible merits review.

29    The primary judge also referred to oral submissions the applicant made in Court. The applicant referred to his claim that he paid a bribe to obtain his passport. That was a claim dealt with by the Tribunal. He also claimed his family continued to be the subject of harassment. The Tribunal considered the question of ongoing harassment in its reasons. The primary judge noted in particular that the Tribunal had rejected the applicant's claim of a second detention and that such finding was a relevant part of the reasoning process that led to it rejecting the claims of ongoing harassment. The primary judge found that the applicant's submissions invited the Court to engage in impermissible merits review.

30    Accordingly, the primary judge ordered the dismissal of the applicant's case under r 44.12 of the Federal Circuit Court Rules.

Appeal to this Court

Grounds in application

31    The grounds set out in the application to this Court are as follows:

1.    AAT underestimated my risk of being persecuted by the Chinese authority.

2.    AAT did not realize the risk of the persecution I will suffer if go back to China.

3.    AAT has bias against me as I was deprived of the benefits of doubts.

32    At the hearing, I gave the applicant the opportunity to expand upon these grounds. Taking into account that the applicant is unrepresented, and although the grounds are not included in the separate proposed grounds of appeal, I considered them as complaints that the primary judge erred in failing to find that the Tribunal failed to find such errors on the part of the Tribunal. However, in my view those grounds would have no prospect of success.

33    The first and second grounds are invitations to engage in impermissible merits review and do not particularise any particular matters. At the hearing, the applicant reiterated his claims that if he were to be returned to China he would be arrested and persecuted by the authorities. He did not identify any jurisdictional error by the Tribunal. The Tribunal addressed the matters relied upon by the applicant in claiming that he feared harm upon any return to China, as is apparent from the summary of its reasons set out above. It considered the material before it and took into account country information. It gave reasons with references to supporting material for forming the view that it was not satisfied that the applicant had a well-founded fear of persecution or any serious or significant risk of harm. I find that these grounds therefore have no prospect of success.

34    As to the third ground of the application, allegations of bias are serious and must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 at [69]. Ground 3 fails to meet this requirement. The primary judge correctly identified the difficulty with such submission. There is nothing on the face of the Tribunal's reasons that suggests it brought a closed mind to the applicant's case. There is no prospect of establishing error in the primary judge's rejection of that ground when it was raised before him. At the hearing before me, the applicant stated that by a complaint of bias he meant that the Tribunal did not believe the evidence he provided to it. Such a complaint is similarly an invitation to engage in impermissible merits review and would have no prospect of success. The Tribunal provided reasons as to why it did not accept some of the claims made by the applicant (as summarised above) and those reasons have a basis in the materials that were before it.

Proposed grounds of appeal

35    The applicant's draft notice of appeal includes three grounds:

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

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

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

36    These grounds do not in substance engage with the decision of the primary judge, but rather focus on the decision of the Tribunal. The first and third grounds insofar as they complain about the conduct of the Tribunal and its staff were not raised before the primary judge. The applicant would require the leave of this Court to rely on such new grounds: SZLPH v Minister for Immigration and Border Protection [2018] FCAFC 145 at [28]. Leave should only be granted if it is expedient in the interests of justice to do so, having regard to the merit of the proposed grounds: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48].

37    The first and third grounds of appeal do not establish any jurisdictional error. There was no evidence before the primary judge or this Court as to the allegation now made about the conduct of the Tribunal or its staff and nothing in those claims that would justify a finding of any denial of procedural fairness. The applicant had an opportunity to provide affidavit evidence and submissions to the Tribunal. He appeared before the Tribunal. The appellant did not refer to any particular evidence that he asserts he was unable to evince. There is in my view no reasonable prospect that leave would be granted on an appeal to raise those new grounds, as they do not disclose any prospect of success.

38    The second proposed ground, even when treated as a complaint that the primary judge erred in failing to find that the Tribunal failed to consider evidence, is unparticularised and does not point to any evidence that the applicant asserts was material and ignored. At the hearing, I asked the applicant whether there was any particular part of his claim that the Tribunal did not give regard to. In response, he referred to his claims that his family had been harassed.

39    Having considered the Tribunal's reasons, there is no suggestion that the Tribunal has overlooked or failed to properly consider the relevant claims and evidence. The claims and evidence are addressed in detail. Whilst the Tribunal did not accept aspects of the applicant's claims, it provided reasons and a foundation for forming the views that it did. It undertook a reasoned consideration of the claims by reference to the material before it. I note in particular the matters addressed at [18] to [20] above, where the Tribunal considered and rejected the applicant's claim that his family had been harassed. Nothing in its reasons suggests that it failed to properly undertake the task required of it.

Determination

40    There is no reasonable prospect of any of the grounds referred to in the application or the proposed grounds of appeal succeeding, and in those circumstances the application for leave to appeal should be dismissed with costs.

Associate:

Dated:    19 March 2019