FEDERAL COURT OF AUSTRALIA

BWP15 v Minister for Immigration and Border Protection [2016] FCA 1083

ORDERS

THE COURT ORDERS THAT:

1.    The proceedings brought by the appellant in this Court be dismissed as incompetent in accordance with the first respondent’s notice of objection to competency dated and filed 26 May 2016.

2.    The appellant pay the first respondent’s costs as taxed or agreed.

3.    In lieu of proceeding to taxation or reaching agreement as to the first respondent’s costs, the first respondent may, within 7 days, elect to file and serve an application by way of an affidavit for a fixed costs order pursuant to s 43(3)(d) of the Federal Court of Australia Act 1976 (Cth). If the first respondent does make such an application, the appellant be given a further 7 days in which to file any affidavit or submission in opposition to a fixed costs order being made. If any such application is made, whether or not it is opposed, the determination of the application will be made on the papers in Chambers.

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

REASONS FOR JUDGMENT

BROMWICH J:

Introduction

1    These proceedings comprise a purported appeal from orders made by a judge of the Federal Circuit Court of Australia on 10 May 2016, by which his Honour dismissed an application to review a decision of the Administrative Appeals Tribunal under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) and ordered the appellant to pay the first respondent’s (the Minister’s) costs and disbursements fixed in the sum of $3,416. The Tribunal had, on 2 September 2015, affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.

2    The appellant requires leave to appeal to this Court because the orders made on 10 May 2016 by the primary judge constituted an interlocutory decision by reason of rr 44.12(1)(a) and 44.12(2) of the Federal Circuit Court Rules. Rule 35.13 of the Federal Court Rules 2011 (Cth) provides that a written application for leave to appeal must be filed within 14 days after the date on which the judgment is pronounced or order made, or on or before such other date as is fixed for that purpose by the Court from which leave to appeal is sought. No other date was fixed.

3    On 18 May 2016, the appellant filed a document entitled “notice of appeal”, rather than the required application for leave to appeal supported by an affidavit and draft notice of appeal. The “notice of appeal” incorrectly refers to leave to appeal having been granted on 10 May 2016 (being the date of the primary judge’s decision). Also on 18 May 2016, and apparently in support of her “notice of appeal”, the appellant filed an affidavit affirmed by her on 16 May 2016 in which she stated (as per original):

2.    I apply for leave to appeal from the Judgment of the Federal Magistrate Court on 2210 May 2016.

3    Leave to appeal is required by S24 (10) and (1A) of the Federal Court of Australia Act in 1976.

4    The next day, 19 May 2016, the Registry of this Court wrote to the appellant (copy to the Minister’s solicitors) pointing out:

(1)    the judgment of the primary judge was interlocutory;

(2)    the consequent need for her to apply for leave to appeal within 14 days of the date of the decision; and

(3)    if the application for leave to appeal were to be filed after 14 days, an application for an extension of time would also be required.

5    The letter enclosed copies of the following:

(1)    the appellant’s filed “notice of appeal” of 18 May 2016;

(2)    a blank application for leave to appeal (Form 117); and

(3)    a blank application for an extension of time and leave to appeal (Form 118).

6    I note that the copy of the above 19 May 2016 letter from the Registry provided at the hearing by the Minister’s solicitor was marked as received by the firm of solicitors acting for the Minister on 23 May 2016.

7    On 26 May 2016, being immediately after the expiry of the 14 days for filing an application for leave to appeal, the Minister filed a notice of objection to the competency of the appeal.

8    On 30 May 2016, the Registry again wrote to the appellant (again copy to the Minister’s solicitors), referred to the Minister’s notice of objection to competency and advised that a Registrar had determined that it was appropriate to dispense with the directions made on 19 May 2016 relating to the filing of an appeal book, and enclosed the directions that had been made.

9    In submissions dated and filed 11 August 2016, the Minister pressed the notice of objection to competency, but also quite properly drew attention to the appellant’s affidavit referring to her saying she was seeking leave to appeal. At no time did the appellant remedy the deficiency in the process by which she sought to challenge the decision of the primary judge to dismiss her show cause application for judicial review, including at the time of the hearing before this Court. This was so despite both of the letters referred to above being read to her by the interpreter sworn to assist the Court, and despite the Minister’s submissions being read to her by the interpreter immediately prior to the hearing.

History of the appellant’s case from visa application to the Federal Circuit Court

10    On 3 April 2014, the appellant, a citizen of the People’s Republic of China, arrived in Australia.

Before the Delegate

11    On 6 May 2014, the appellant applied for a protection visa, supported by a three-page statement of claims. She claimed that, having previously given birth to a son, she was then forced to have an abortion during a second pregnancy pursuant to China’s one-child policy.

12    On 11 February 2015, the appellant attended an interview with a delegate of the Minister. On 13 February 2015, the delegate refused the grant of a protection visa.

13    The delegate’s reasons for refusing the grant of a protection visa analysed the appellant’s written application and supporting documents and her responses to questions at her interview. This included what the appellant said had happened to her in China, her stated fears and concerns, her reasons for wishing to remain in Australia, and her response to records of the Minister’s Department, which indicated that the appellant had provided bogus identification details for her husband and son in her application for a visitor visa and also furnished a fake bank statement in connection with that visitor visa application.

14    In summary, the delegate’s reasons disclose that the delegate:

(1)    was convinced that the appellant was not a witness of truth;

(2)    was of the opinion that the appellant had fabricated her story for the purpose of creating a Refugees Convention-based claim of persecution;

(3)    found that the appellant had either embellished or entirely fabricated her material claims and had no genuine fear of persecution, nor any fear of returning to China as she was not of adverse interest to authorities there;

(4)    was not satisfied that the appellant had established any ground for any well-founded fear of persecution for any Refugees Convention reason; and

(5)    was not satisfied that the harm claimed by the appellant was significant harm for the purposes of attracting complementary protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth).

Before the Tribunal

15    On 4 March 2015, the appellant applied to the Tribunal for review of the delegate's decision.

16    On 21 August 2015 she appeared at a Tribunal hearing, assisted by an interpreter and represented by a registered migration agent. As well as further probing the appellant’s account of what had happened to her in China, the Tribunal repeated a number of the questions that the delegate had asked.

17    On 2 September 2015, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.

18    The Tribunal reached very similar conclusions to those of the delegate, finding that the appellant was not a person of credit and was not a reliable witness. Her account in relation to the claimed abortion was at odds with her evidence to the delegate and her personal statement, including as to when this event was supposed to have taken place. The Tribunal positively found that there was no forced abortion, and that the false information provided to the Department cast doubt on the very existence of her marriage and a first child.

19    In common with the delegate, the Tribunal found that the purpose of the appellant entering Australia was not that of escaping China’s one-child policy, but rather related to finding a better life. The Tribunal was therefore not satisfied that the appellant was a person to whom Australia had either protection obligations under the Refugees Convention, or a person entitled to complementary protection.

Before the Federal Circuit Court

20    On 14 September 2015, the appellant applied for judicial review of the Tribunal’s decision by way of a show cause application filed in the Federal Circuit Court of Australia. That application asserted that the Tribunal had failed to take all of her claims into account under s 91R of the Migration Act because of bias. The appellant proceeded to the hearing in that court by way of the same show cause application, not taking advantage of procedural orders allowing her to file any amended application or additional evidence (especially, I note, to make good the serious allegation of bias).

21    In dismissing the judicial review application, the primary judge pointed out that the first three paragraphs of the appellant’s grounds before his Honour simply repeated the claims for protection and the Tribunal’s finding that it was not satisfied that the appellant would face persecution as a result of China’s one-child policy.

22    In relation to the allegation of bias, the primary judge correctly pointed out that such a serious allegation must be firmly and distinctly made and clearly proven, referring to Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at 531 [69]. His Honour also observed that it would be a rare case in which an allegation of bias could be made out by reference to nothing more than the decision-maker’s reasons, and pointed to authority of this Court which had made it clear that no inference of bias or prejudgment should be drawn merely from adverse findings in a Tribunal’s reasons.

23    The authorities cited by the primary judge, which in turn refer to a number of other authorities, indicate that adverse reasons would need to be supported by material from the conduct of the hearing before the Tribunal, such as the transcript, evidencing prejudgment from such things as hostility, the nature of exchanges between the Tribunal and the appellant or his/her representative and even unwillingness to consider or explore readily available information supporting the appellant’s position on a critical issue: see VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 at 107-8 [21]-[22]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36]-[38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3], [9]-[10]. The conclusion to be drawn from those and many other cases is that actual bias is generally very hard to establish, and virtually impossible upon the basis of nothing more than an adverse decision, even if it contains adverse credit findings.

24    The primary judge concluded (correctly in my view) that as the adverse credit findings made were open to the Tribunal on the evidence before it, and as his Honour could not review the merits of the Tribunal’s decision, the complaint of bias could not succeed. The primary judge found that the appellant was unable to demonstrate an arguable case of jurisdictional error. The application for review by way of an application to show cause was therefore dismissed with costs.

25    The only complaint made about the primary judge in the appellant’s “notice of appeal” in this Court is (original formatting removed):

… The Tribunal member concluded that my coming to Australia is not for the purpose of escaping persecution. [Please refer to No. 33 of Decision of RRT] [sic]

Given above reasons, I think the Tribunal member’s conclusion was unfair and he made Jurisdictional error.

Unfortunately, the Federal Circuit Court failed to pay attention to it.

Before this Court

26    At the hearing in this Court, the appellant was invited to make any submissions she wished in relation to the decision or conduct of the primary judge or of the Tribunal. Her comments in response were to the effect that everything she had said about what had happened to her in China was true, but no-one in Australia would believe her. She said that she therefore did not know what to say or do. Importantly, in substance nothing that was said rose above an objection to the adverse factual findings of the Tribunal, and a complaint that the primary judge had not engaged in impermissible merits review to overturn those adverse conclusions.

27    The Minister did not seek to add anything to the written submissions provided.

28    Nothing was said by the appellant either in writing or orally to indicate any error on the part of the primary judge, or for that matter, the Tribunal, beyond finding against her. As the above narrative indicates, I have reviewed not just the Tribunal’s reasons and the primary judge’s reasons, but also the delegate’s reasons.

Consideration

29    The appellant failed at the delegate and Tribunal stages because the claims she was making in support of the grant of a protection visa were not accepted as being truthful. Beyond that adverse outcome, there was never any suggestion that the process was carried out in any way that was improper or unfair. There was no apparent foundation for judicial review, let alone success on such a review. There is no apparent error on the part of the Tribunal, let alone jurisdictional error as required.

30    There is similarly no basis for finding error on the part of the primary judge.

31    Had the appellant been able to advance even a slight case for a viable appeal, I may have been willing to treat the combination of the “notice of appeal” and appellant’s affidavit as constituting, in substance, an application for leave to appeal made within time. However, for the reasons above, the appellant does not have even the shadow of a viable case.

32    In all the circumstances, there is no justification for doing anything other than requiring the appellant to adhere to the requirements of seeking leave to appeal, and if sought out of time, the requirements of applying for an extension of time in which to bring such an application. As there has never been any application for leave to appeal, it follows that the Minister’s objection to competency must be upheld and the proceedings dismissed with costs.

Costs

33    Because the entirety of the proceedings in this Court have not been properly brought, nor any proper ground of appeal advanced, this is an appropriate case in which to curtail any unnecessary delay in finalising the proceedings, including as to costs. I am therefore of the view that the Minister should be given the opportunity to seek a fixed costs order if he is so minded to adopt that course. Leave will be given for that process to be availed of, although of course that may not be an approach that commends itself to the Minister. Any such application will, after the appellant has been given an opportunity to respond, be determined on the papers in Chambers.

Associate:

Dated:    8 September 2016