FEDERAL COURT OF AUSTRALIA

AQU16 v Minister for Immigration and Border Protection [2017] FCA 1374

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

ALLSOP CJ:

1    This is an appeal from orders made by the Federal Circuit Court dismissing an appeal by the applicant for review of a decision of the Administrative Appeals Tribunal (the Tribunal) which, in turn, affirmed the decision of a delegate of the Minister not to grant the current appellant as applicant a protection visa. The appellant is a citizen of the People’s Republic of China. He arrived in Australia in January 2014 on a tourist visa. He shortly thereafter applied for a protection visa in March. The delegate refused that application in September 2014. The appellant sought review of that by the Tribunal. That hearing was heard in August 2015 and November 2015.

2    The Tribunal considered the evidence and material before it and affirmed the delegate’s decision in March 2016. The essence of the claims are fear of persecution by local authorities in China due to the appellant’s petitioning against the compulsory acquisition and redevelopment of his and his family’s land. The appellant claimed that he was offered inadequate compensation and unjust terms for the land acquisition by local government.

3    Aspects not comprehensive but sufficient to give an indication of the nature of the claims are the following matters. The appellant indicated that he refused to sign what was a relocation agreement which involved moving from land on which he and his family have lived and a payment in relation to that. These requirements were said by him to be unfair and requirements that threatened his family’s livelihood. The appellant’s claims were that the local government officials reacted badly to this opposition by cutting off electricity and water and causing his parents to be threatened and assaulted, and his claims were that he was also threatened, attacked and detained in local government offices where he was mistreated. His claims also include that he was detained and mistreated by police as he attempted to appeal the relocation of him and his family, and that his family was required to pay large sums of money to secure his release. The appellant claimed that he was only able to leave China using a false passport. He claims that he will be arrested if he returns to China.

4    The Tribunal was unpersuaded by the evidence of the appellant. It summarised that evidence by saying that he was not a generally credible witness and found much of his evidence to be unreliable.

5    I have carefully perused the reasons of the Tribunal and was initially concerned with the degree of generality of some of the statements about the evidence of the appellant. Notwithstanding that initial concern, I do not think that the reasons disclose a failure to attend properly to the task of assessing individual claims in the manner that might lead to a conclusion of jurisdictional error. Fact-finding is generally viewed as a province of the Tribunal, but, as should now be plain, findings of credit and factual conclusions are not immune from a conclusion of jurisdictional error: see Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99.

6    Examples of the Tribunal’s views about the evidence of the appellant were as follows. The appellant said that he had persistently complained about the proposed terms of the land acquisition to local government, and that he was arrested in October 2013 and detained until his family paid for his release. The Tribunal said that it found the evidence in this regard vague and generalised, and formed the view that the appellant was not able to give a more detailed account because he had not experienced the claimed mistreatment. Another aspect of the evidence dealt with was that the appellant had applied for and was issued with a new passport in 2011, which was seized, and the Tribunal then did not accept the appellant’s explanation that he thought he had lost his 2008 passport and that everyone in the village was applying for new passports. The Tribunal, at this point, considered that the appellant had contrived his evidence.

7    Other matters of this kind are set out in paragraph 7 of the submissions of the first respondent. The long and short of the matter is that the Tribunal, entrusted with the assessment and engagement with the appellant for a visa, was not persuaded by the evidence of the truthfulness and accuracy of the claims.

8    In the Federal Circuit Court proceedings, the appellant complained as to a lack of procedural fairness or natural justice. The claim was supported by an affidavit. Two particular aspects of this affidavit can be identified, and that is that, first, the assertion was that the Tribunal did not properly consider the totality of the material and the individual circumstances and, secondly, that it paid too much attention to matters of Chinese law.

9    That was the characterisation of the complaints by the appellant about the Tribunal’s decision, and I agree with the primary judge that that is a fair characterisation. The primary judge did not accept that the grounds of review established any jurisdictional error. First of all, he considered that a fair reading of the Tribunal’s reasons made clear that it not only set out all the claims and evidence, but also explored these with the appellant at the hearing and drew attention to evidence it had difficulties with, giving clear reasons for the rejection and acceptance of each. Secondly, the primary judge said that the Tribunal did consider the appellant’s claims and expressed the view that it was reasonably open on the material not to accept them for the reasons it gave. Thirdly, his Honour was of the view that it was reasonably open to consider the country information that it did consider and to rely upon it, according the weight to it which it thought appropriate and, fourthly, that there was nothing in the material to indicate that any legal error had taken place.

10    A Notice of Appeal was filed in June of this year. The Notice of Appeal has one ground that:

The judgement did not consider the degree to which the Administrative Appeals Tribunal had improperly used country information on Chinese Law in denying me procedural fairness.

11    On 10 October 2017, there was filed in the Registry submissions mistitled AQU17, but they are written submissions on behalf of the appellant, AQU16, the interpreter having confirmed such with the appellant in my presence. Those written submissions appear to have two further grounds of appeal: a second ground of appeal that the primary judge’s decision was tainted by bias; and a third ground that the interpreter used at the hearing may have incorrectly interpreted the appellant’s words. I agree with the submissions of the first respondent that the assertions of bias appear to flow from the original ground of appeal in the Notice of Appeal, as it relates to the weight to be given to country information by the Tribunal.

12    I will deal with those three grounds as two, that is, the first ground concerned with country information and bias, and the second ground concerned with mistranslation. Looking at the Tribunal’s reasons as a whole, I am not able to identify any departure from a legitimate and reasonable choice by the Tribunal as to what material that it would rely upon. The primary judge was similarly unable to identify any aspect of the weight given to country information in the reasons of the Tribunal to indicate error. Such does not indicate any partiality in, or any reasonable apprehension of partiality in, the primary judge. The selection of country information and the assessment of weight to be placed on it are matters for the Tribunal.

13    They are matters which can, of course, be reviewed if they reveal such an unreasonable or misdirected engagement with material as to lead to a conclusion of legal unreasonableness. However, no criticism of any cogency has been identified. The criticism of the primary judge of a lack of apparent impartiality should be rejected. There is no basis to consider that there is any such reasonable apprehension. The highest it seems to be is that it flows from a rejection of the appellant’s case.

14    As to the second ground and assertion that there may have been a mistranslation, it goes without saying that should there be demonstrated material and important departures from a standard of interpreting that can be identified as adequate or fair, a conclusion can be drawn, or might be drawn, that there has been no hearing. The material before the Court does not come close to that. The highest that the appellant puts the matter is that there may have been incorrect interpretation of his words. There is no evidence to that effect. If there had been clear basis on submissions to consider that there had in fact been material and serious interpreting errors, I would not have hesitated to adjourn the appeal for the production of transcripts and tapes of the hearing. However, there is no material that warrants that, certainly none on the face of the assertion in the last paragraph of the submissions filed that there may have been incorrect interpretation when there has been no suggestion of that hitherto. I do not see any basis in the submissions or the Notice of Appeal.

15    In my view, there are no grounds for concluding that the Federal Circuit Court judge erred in any relevant respect, and I would dismiss the appeal with costs.

16    The orders of the Court are the appeal be dismissed with costs.

Associate:

Dated:    24 November 2017