Federal Court of Australia

AJX17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 16

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the costs of the first respondent as agreed or assessed.

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

REASONS FOR JUDGMENT

PERRY J:

1.    INTRODUCTION

1    This is an appeal from a decision of the then Federal Circuit Court given on 24 February 2020. By that decision, the primary judge dismissed the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal in which the Tribunal had affirmed a decision by a delegate of the first respondent (the Minister) refusing to grant the appellant a Protection (Class XA) (subclass 866) visa (protection visa).

2    The appellant, who is a citizen of China and is not fluent in the English language, understandably did not file written submissions in advance of the hearing. The Minister however filed submissions in advance in accordance with orders made by the Registrar. The appellant appeared at the hearing of the appeal by telephone at his request in circumstances where he had attempted unsuccessfully to attend by video. He made brief oral submissions on the appeal assisted by a certified interpreter in Mandarin who confirmed at the commencement of the hearing that she and the appellant could understand each other.

3    I have carefully considered the decisions of the primary judge and the Tribunal and the submissions by the parties but am unable to identify any appealable error in the primary judge’s decision. It follows that the appeal must be dismissed.

2.    BACKGROUND

2.1    The decision of the Tribunal

4    The appellant is a citizen of China who arrived in Australia on 14 February 2014 on a Visitor (Temporary) (subclass 600) visa. He applied for a protection visa on 9 May 2014. The appellant’s claims in support of his visa application were accurately summarised by the Minister in his written submissions and adopted by the primary judge in his reasons at [5] as follows:

The applicant claimed that he and a relative were assaulted in China on 18 December 2013 by a local criminal and his associates because they either refused to lend money or they refused to pay protection money to the criminals. His relative was badly and permanently injured as a result, and the applicant paid money to the relative for his medical expenses and compensation in two instalments, on 19 December 2013 and 16 April 2014.

The applicant claimed that the police did not take action against the attackers because the principal attacker [redacted] was related to the deputy president of the PSB [Public Security Bureau] in [redacted]. The applicant sought to confront the deputy president directly during an official visit to police stations in the applicant's home region to complain about the lack of action in relation to the assault. He was detained for disturbing the peace, imprisoned and tortured to elicit a confession. He was released on bail after his brother paid a bribe. He departed China [a short time later], after his brother paid another bribe enabling him to leave China.

The applicant occupied some positions in his brother's company on paper only, and was not really involved in these companies.

(References omitted.)

5    The appellant was invited to attend an interview with the delegate on 20 February 2015. Shortly thereafter, on 26 February 2015, the delegate refused to grant the appellant the protection visa.

6    The appellant attended a hearing before the Tribunal on 15 November 2016 accompanied by his registered migration agent and was assisted by an interpreter in the Mandarin language. The Tribunal’s reasons (TR) for refusing to grant the appellant a protection visa were accurately summarised in the primary judge’s decision at [9]:

While the Tribunal was prepared to accept that the applicant and his relative were involved in 'an altercation' and that the applicant occupied positions in his brother's company on paper only, it rejected the remainder of the applicant's claims on the basis that he was not a credible witness. The Tribunal [at [50]-[58] of its reasons] made the following relevant findings:

(a)    the applicant's evidence about the assault and [the principal attacker] was vague and inconsistent, and the Tribunal was not prepared to accept that the altercation related to an attempt to extort money;

(b)    it did not accept that the applicant paid money to the relative in relation to the claimed assault because it did not consider it was plausible or credible that the applicant would make the payment on [redacted], the day after the assault and before any police investigation would have concluded, and because of country information which indicated the prevalence of document fraud in relation to visa applications;

(c)    the applicant's evidence regarding the Deputy Minister and the claimed detention was vague and implausible such that the Tribunal did not consider it credible, and did not accept, that he was detained and imprisoned and tortured as claimed;

(d)    it did not accept that the applicant's brother paid a bribe to enable the applicant to leave China;

(e)    the applicant's explanation for the delay in applying for protection in Australia was inadequate and the delay inconsistent with his claim to fear harm;

(f)    the applicant was not a credible witness and many of his claims were not credible; and

(g)    it did not accept the applicant's claims about the circumstances of the 'altercation' or that it involved an attempt to extort money from the applicant.

For these reasons, the Tribunal was not satisfied that the applicant met the refugee criterion in paragraph 36(2)(aa) [at [58] and [62]]. For the same reasons, the Tribunal was not satisfied that the applicant met the complementary protection criterion [at [59]-[61] and [63]].

(References to the Court Book omitted.)

2.2    The decision of the Federal Circuit Court

7    The application for judicial review in the Federal Circuit Court identified three grounds of review, namely:

1.     I do not believe that the Tribunal member is genuinely willing to assess my application impartially and correctly, I believe that the arranged hearing was procedural formalities and I was not given a genuine opportunity to present my arguments. At the hearing, I was requested to present evidence to support my claims and I did so in a reasonable amount of time. However, my evidence were dismissed under the Tribunal member’s suspicion that it could have been fake due to country information reporting fraud to be very common in China. I was dissatisfied with the Tribunal’s dismissal of my evidence before any confirmation they were indeed fraudulent. This can only lead me to believe that the Tribunal member had a predetermined judgement regarding the details to my case.

2.     According to the Tribunal’s decision after the hearing, I was notified in writing that many details of my claims were not communicated with clarity and when asked about [sic] by the Tribunal member, my responses were vague. Personally I do not agree with this statement as I believe I had addressed all the questions appropriately and sufficiently. I accept the Tribunal member may have been unclear with my responses or may have interpreted my responses differently than what I intended but, I believe, the [T]ribunal member should have pressed on with further questions or requested further detailing if I had not provided a sufficient explanation from their perspective. Instead, I was asked questions regarding different matters and my responses were not addressed further. I understood this as the Tribunal member being satisfied with my response and thus proceeded into [sic] other matters. I was not informed I had not provided enough information at the time and I believe it is unfair to deem my responses as too vague after the hearing.

3.     I am a real refugee. If I return to China. I must suffer from significant harm.

8    The appellant was afforded the opportunity in the Federal Circuit Court to file an amended application and any affidavit containing additional evidence on which he relied, including any transcript from the Tribunal hearing. However, the appellant did not do so.

9    The appellant appeared in person before the primary judge assisted by an interpreter in the Mandarin language.

10    On 24 February 2020, the primary judge dismissed the application with costs and delivered his reasons. I discuss the primary judge’s reasons in the context of considering the grounds of appeal.

3.    CONSIDERATION

3.1    The grounds of appeal

11    The appellant’s notice of appeal pleads the same three grounds as those contained in his application for judicial review which I have quoted at [7] above. However, as the appeal before me is an appeal from a decision of the Federal Circuit Court, it is necessary for the appellant to establish error in the primary judge’s decision in order to succeed on his appeal. In those circumstances, I have treated the grounds of appeal as alleging that the primary judge erred in failing to hold that the Tribunal’s decision was invalid on the grounds pleaded in the appellant’s application for judicial review. The Minister agreed at the hearing of the appeal with this approach.

3.2    Ground three of the Notice of Appeal

12    It is convenient to deal first with ground three of the notice of appeal. Ground three comprises a statement of disagreement with the merits of the Tribunal’s decision. As such, it reflects a common misunderstanding about the capacity of a federal court to interfere with a decision by the Tribunal on judicial review.

13    Specifically, the jurisdiction of the Federal Circuit Court was limited to deciding whether the Tribunal’s decision was made lawfully under the Migration Act 1958 (Cth), that is, whether the Tribunal’s decision was invalid by reason of a jurisdictional error. This Court on appeal must decide whether the Federal Circuit Court wrongly held 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 protection visa application was required to be assessed under the Migration Act, or if it failed to hear and determine his application for review in accordance with the requirements of procedural fairness: 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] HCA 58; (1995) 184 CLR 163 at 179 (the Court).

14    However, the Federal Circuit Court did not have jurisdiction to grant the appellant a visa, to decide whether he satisfied the criteria for the grant of a protection visa, or to make findings on the credibility of the appellant’s claims: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [65] (Sackville J) and [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). The question of whether or not the Federal Circuit Court (or this Court on appeal) agreed with the Tribunal’s decision is not, therefore, a basis for finding that the Tribunal’s decision was invalid. Nor is it relevant that the appellant strongly disagrees with critical findings by the Tribunal.

15    It follows that the primary judge rightly held at [58] that ground three seeks impermissible merits review, that is, that it asked the Federal Circuit Court to exercise a jurisdiction to reconsider his visa application which the Court lacked jurisdiction to do.

3.3    Ground one of the Notice of Appeal

16    As the primary judge accepted (at [24]), ground one raises a number of issues.

17    First, insofar as the ground alleged that the Tribunal member was actually biased by reason of having prejudged the appellant’s claims, it is necessary for the appellant to establish that the Tribunal member was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). Furthermore, in line with the seriousness of the allegation, a claim of actual bias must be “distinctly made and clearly proved” by the person alleging bias, as the primary judge correctly held at [26]: Jia at [69] (Gleeson CJ and Gummow J) and [127] (Kirby J). The application for judicial review, however, did not clearly articulate any basis for an allegation of actual bias. Nor is anything in the evidence capable of discharging the heavy onus required to establish actual bias. To the contrary, the detailed questioning undertaken by the Tribunal at the hearing, including the concerns which it raised with the appellant’s claims in order to afford him an opportunity to respond, and the careful consideration of the appellant’s claims and evidence in the Tribunal’s reasons, are compelling evidence of the Tribunal having approached the matter with a mind open to persuasion. Ultimately, the appellant’s allegations below and on appeal focused on his strong disagreement with adverse findings made by the Tribunal which do not, without more, establish prejudgment: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] (von Doussa J). No error has therefore been established in the primary judge’s finding at that the appellant had not established any claim of actual bias.

18    Secondly, the primary judge correctly explained at [29] that the test for apprehended bias is well-established, namely, whether a hypothetical, relevantly informed, and fair-minded layperson might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question to be decided: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 at [27]-[28] (Gleeson CJ, Gaudron and Gummow JJ).

19    Again, the allegation of apprehended bias was not properly particularised by the appellant and lacked any support in the evidence. The complaint appears to focus on the allegation that the appellant was not afforded a fair opportunity to present his submissions and evidence. However, while the appellant was afforded the opportunity in the Federal Circuit Court to provide a transcript of the Tribunal hearing, he did not do so. As a result, the only evidence of what had occurred before the Tribunal was the extensive description contained in the Tribunal’s reasons. As earlier explained, that record makes it clear that the appellant was advised of the concerns which the Tribunal had with his evidence. It also explains that the appellant was afforded, and took advantage of, an opportunity to provide further documents and submissions after the hearing and that these materials were in fact considered by the Tribunal including the submission that the appellant has difficulty expressing himself and processing information under stressful conditions. It follows that the primary judge was correct in holding at [30] that the appellant:

… was given a fair and meaningful opportunity to provide his evidence and arguments to explain his claims both during the hearing, and after. At the hearing the Tribunal make clear to the [appellant] the concerns that it had with his evidence. The Tribunal’s findings were explained by reasoning which was probative of the evidence before it.

20    In short, I agree with the primary judge’s finding at [31] that, in all of the circumstances, ultimately the appellant’s complaint was “no more than an expression of grievance and disagreement with the Tribunal’s decision” which does not suffice to establish either actual or apprehended bias.

21    Thirdly, ground one of the application for judicial review (and the notice of appeal) complains that the appellant was not given a genuine opportunity to present his evidence at the hearing before the Tribunal. Again there is no merit in this allegation. In addition to the matters to which I have already referred, in dismissing this aspect of ground one, the primary judge correctly referred to the fact that the Tribunal invited the appellant to a hearing in compliance with s 425 of the Migration Act which he attended with his representative and the assistance of an interpreter. Furthermore, as the primary judge also found, the appellant would have been on notice as a result of the delegate’s decision that the credibility of his claims was in issue (at [36]). It follows that the primary judge correctly found at [38] that the appellant was given a real and meaningful opportunity to present his evidence and make submissions in order to attempt to persuade the Tribunal to grant him the visa.

22    Fourthly, no error is apparent in the primary judge’s rejection of the appellant’s submission that the Tribunal should have sought to verify his evidence before finding that some of the supporting documents were not genuine. As the primary judge correctly held, there was no general duty imposed on the Tribunal to make further inquiries (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 at [43] (Gummow and Hayne JJ)); nor, as the primary judge also held, were any circumstances apparent which might have required the Tribunal to make an “obvious enquiry about a critical fact, the existence of which is easily ascertained” (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)). In this regard, in rejecting documents and receipts provided by the appellant after the hearing in support of his claim to have paid monies to his relative for medical expenses and compensation, the Tribunal had regard to the appellant’s own evidence about the payments, which it found was vague and not credible. Furthermore, the Tribunal took into account country information indicating that fraudulent documents, including banking statements, were easily obtained and commonly used in support of visa applications. Importantly, as the primary judge found at [45], the Tribunal noted this information with the appellant at the hearing (TR at [36]). While the appellant may disagree with the choice of, and weight given to, the country information, that is a matter for the Tribunal, acting reasonably, to determine. It follows that no error is apparent in the primary judge’s finding that the appellant had not established jurisdictional error in this respect.

3.4    Ground two of the Notice of Appeal

23    By ground two, the appellant expressed his disagreement with the Tribunal’s assessment of his evidence as vague and complains that if the Tribunal member was unclear about the nature of his responses, the Tribunal should have asked further questions or requested further detail. This ground was also correctly rejected by the primary judge.

24    First, as the primary judge held, the appellant was given a meaningful opportunity to explain himself at the Tribunal hearing. Secondly, as the primary judge also held, the onus lies on the appellant to provide evidence in as much detail as necessary to satisfy the Tribunal that the relevant criteria are satisfied (Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [187] (Gummow and Hayne JJ). Thirdly, the primary judge correctly held that the allegation that the Tribunal did not put him on notice of its concerns about his evidence was “baseless” (at [52]). To the contrary, the appellant was expressly put on notice about the Tribunal’s concerns, including that his evidence was, among other difficulties, “vague” (TR at [31] and [37]). Finally, insofar as ground one appeared to take issue with the Tribunal’s findings as to the credibility of his claims, the primary judge correctly held at [55] that the Tribunal gave cogent and intelligible reasons for concluding that the appellant was not a credible witness in relation to key aspects of his claims and these findings were open to the Tribunal on the evidence before it.

4.    CONCLUSION

25    As the appellant has not established any of the grounds of appeal, his appeal must be dismissed and an order should be made for the appellant to pay the Minister’s costs as agreed or assessed.

Associate:

Dated:    18 January 2023