FEDERAL COURT OF AUSTRALIA

ABP16 v Minister for Immigration and Border Protection [2017] FCA 1419

ORDERS

THE COURT ORDERS THAT:

1.    The appellant’s notice of appeal filed 5 April 2017 is dismissed.

2.    The appellant pay the first respondent’s costs of this appeal to be taxed failing agreement.

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

REASONS FOR JUDGMENT

REEVES J:

Introduction

1    This is an appeal from a judgment of the Federal Circuit Court delivered on 16 March 2017: see ABP16 v Minister for Immigration & Anor [2017] FCCA 420. The primary judge dismissed an appeal from a decision of the Refugee Review Tribunal, now the Administrative Appeals Tribunal (the Tribunal), to affirm a decision of a delegate of the first respondent not to grant the appellant a Protection (Class XA) visa.

Grounds of appeal

2    The appellant’s notice of appeal filed in this Court on 5 April 2017 raises the following five grounds of appeal:

1    The most important position of our village chief had been held by Zhang family for more than 17 years. The controlled the economical power, so most village income was all used on lavish entertainment in the pockets of the corrupt village cars.

2    It was the universal wish of our villagers that we could be rid of the Zhang family in their roles an village Chief and other cadres.

3    On 5th Aug. 2015, our village chief passed away. Every villager hoped that a new village chief would be elected other than a member of Zhang family. The representatives visit my family and said to me:" You're honest, upright , fair and committed person. Our villagers wished you would courageously stand up to run for the village chief. At first, I feared to be retaliated, at last I couldn't refuse their persuasion again and again. I made my decision to run for the position for which I suffered badly persecuted. I was forced to escape to Australia for protection.

4    Unfortunately, my experience couldn't obtain the Tribunal member sympathy, refused my protection application.

5    The Tribunal member failed to take all my claim into account according to S91 R of Migration Act 1958 because of his bias against me. I think the Tribunal member's conclusion was unfair and he made Jurisdictional error.

(Errors in original)

3    I will return later in these reasons to the significance of the marked similarity between these grounds of appeal and the grounds of review the appellant raised before the Federal Circuit Court (see at [10] below).

BACKGROUND

4    The appellant is a citizen of the People’s Republic of China. He arrived in Australia on a Tourist (Subclass 600) visa on 2 December 2013. He lodged an application for a Protection (Class XA) visa on 6 January 2014. That application was accompanied by a statutory declaration which set out the appellant’s claims that, due to his nomination as a candidate for the position of Village Chief of his home village, he feared harm if he were to return to the People’s Republic of China.

5    In his statutory declaration, the appellant claimed that he had been encouraged by members of his home village to run for the position of Village Chief, a position which had been held by the Zhang family for over 70 years. He claimed that, after deciding to run for that position, he was threatened and beaten by members of the Zhang family. He claimed that, one week before the election, he was abducted by a group of men and taken to an unknown location where he was physically assaulted. He claimed that the attackers told him to discontinue his bid to run in the election and to leave the village, otherwise his life would be in danger. After this incident, he claimed that he went into hiding with his brother. He also claimed that his wife was warned that, should he return, there would be no peace for their family.

6    After a delegate of the Minister, the first respondent, refused to grant him a protection visa, the appellant applied to the Tribunal for a review of that decision.

The proceeding before the Tribunal

7    The appellant appeared before the Tribunal on 3 December 2014. On 18 December 2015 the Tribunal affirmed the delegate’s decision.

8    The Tribunal did not believe the appellant’s claim and provided a number of reasons for that conclusion. First, it found that his credibility was undermined by his failure to provide any supporting documentation. Secondly, it found that his oral evidence about local elections process was inconsistent with the available country information supplied by the Department of Foreign Affairs and Trade. Thirdly, it found that there was a number of inconsistencies throughout the appellant’s evidence, including conflicting information regarding his employment, inconsistencies in the number of people who he claimed had encouraged him to become a candidate in the election, the details of the assault incident which he said had occurred one week before the election, and the injuries which he claimed to have sustained as a result of that incident. The Tribunal also considered the appellant’s evidence about his suitability as a candidate to be implausible. It also had regard to the appellant’s 15 month delay in leaving the People’s Republic of China after he was allegedly attacked. Finally, it was not persuaded that the appellant would be at risk of suffering any harm should he return to the People’s Republic of China given that he was no longer running as a candidate for election.

9    The Tribunal was therefore not satisfied that the appellant was a person to whom Australia owed protection obligations under either ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

DECISION OF THE FEDERAL CIRCUIT COURT

10    By an application filed on 11 January 2016, the appellant sought judicial review of the Tribunal’s decision in the Federal Circuit Court. In that application, he relied upon the following four grounds of review:

a)    The most important position of our village chief had been held by the Zhang family for more than 70 years. The controlled the economical power, so most village income was all used on lavish entertainment or remains in the pockets of the corrupt village cadres.

b)    It was the universal wish of our villagers that we could be rid of the Zhang family in their roles as village Chief and other village cadres.

c)    On 5th Aug. 2012, our village chief passed away. Every villager hoped that a new chief would be elected other than a member of the Zhang family. The representatives of our village visited my home and said to me: "You are honest, upright, fair and committed person. Our villagers wish you would courageously stand up to run for the village chief. At first, I feared to be retaliated, at last I couldn't refuse their persuasion again and again. I made my decision to run for the position for which I was suffered badly persecuted. I was forced to escape to Australia for protection. Unfortunately, my unhappy experience couldn't obtain the Tribunal member's sympathy, refusing my application for protection visa.

d)    The Tribunal member failed to take my claims into account according to S91R of the Migration Act 1958 because of the Tribunal member's bias against me.

11    The primary judge accepted the Minister’s submissions that the first three grounds above sought a merits review of the Tribunal’s decision and therefore did not raise any jurisdictional error on the part of the Tribunal.

12    With respect to the fourth ground above, the primary judge found no legal error in the Tribunal’s application of s 91R of the Act. On that issue, his Honour stated that (at [32]):

First, s.91R of the Act was relevant to the issues before the Tribunal. That section was repealed as and from 18 April 2015, but the repeal did not affect the Applicant’s application for a protection visa, because it was lodged on 6 January 2014, namely before 18 April 2015: SZTKE v Minister for Immigration and Border Protection [2015] FCA 1002 at [21] per Bromberg J. Section 91R was expressly cited in [10] of the Decision Record of the Tribunal as being relevant to its consideration of the Applicant’s application for review of the Delegate’s decision. I can discern no legal error in the Tribunal’s statement of the relevance of s.91R for the purposes of the application for review under decision.

13    As to the appellant’s claim in that ground that the Tribunal member was biased against him, the primary judge examined the principles relating to actual and apprehended bias and concluded that there was no basis for that claim.

CONTENTIONS

14    The Minister relied on SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [9]–[10] and submitted that the first four grounds of appeal merely repeated the appellant’s claims for protection and did not identify any appealable error on behalf of the primary judge. With respect to the fifth ground, the Minister submitted that there was no error in the Tribunal’s application of s 91R of the Act for the reasons given by the primary judge and there was no error in his Honour’s rejection of the appellant’s claim of bias.

15    The appellant did not file any written submissions. At the hearing of this appeal, with the assistance of an interpreter, the appellant claimed he had given a consistent and truthful account to the Tribunal and, beyond that, he had nothing to add in support of his appeal.

Consideration

16    The Minister’s submissions should be accepted. The grounds of appeal relied on by the appellant are essentially identical to the grounds of review raised before the primary judge. They either seek to canvass the merits of the Tribunal’s decision, make unsustainable claims with respect to its treatment of s 91R of the Act, or raise spurious allegations of bias against it. Most importantly, none of them identifies any appealable error on the part of the primary judge. I will therefore order that:

1.    The appellant’s notice of appeal filed 5 April 2017 be dismissed.

2.    The appellant pay the first respondent’s costs of this appeal to be taxed failing agreement.

Associate:    

Dated:    30 November 2017