BPK15 v Minister for Immigration and Border Protection

the delegate's decision 7 The delegate refused to grant the appellants the Visas. The delegate found that the appellant was a citizen of the People's Republic of China and set out her claims for protection referring to her older son's medical condition, her and her husband's desire to have a second child, that she had become pregnant twice and on those occasions had been forced to undergo an abortion, which she found traumatic, and that her new found Christian faith had helped her through these times and she now believes that abortion is murder. 8 The delegate found that there were a number of inconsistencies between the appellant's evidence and that of her husband. Those inconsistencies related to their level of commitment to Christianity, claims concerning the husband's work on Sunday and basic details about what occurred on the day of the second termination and the time when the medical certificate from the Yi He Hospital came into the possession of the couple. The delegate concluded that the protection claims had been concocted and that the medical certificate provided to support the claim of the appellant's termination of her pregnancy had been fabricated. The delegate also concluded that the appellant and her husband had joined a Christian church in Sydney for the purpose of enhancing their protection claims and disregarded that conduct under s 91R(3) of the Migration Act 1958 (Cth) (the Act).

the proceedings before the Tribunal 9 The Tribunal had the following documents before it which were provided by the appellant or her agent: various media articles, apparently downloaded from the internet; two notarial certificates in Chinese, with translations, in relation to the appellant and her husband setting out personal details including date of birth, residential address, names and status of parents and that they have no criminal record; a marriage certificate; a certificate dated 6 July 2013 from the head teacher of a kindergarten stating that the third appellant was a student there and that he suffered a spontaneous nose bleed about once a week; a "doctor certificate" dated 12 August 2012 for the appellant from a doctor at Yi He Hospital, Tianhe district, Guangzhou which included "Treatment and suggestion: Terminate pregnancy and rest for 7 days"; baptism certificates for the appellant and her husband issued by the Bread of Life Christian Church, Sydney and a document from that church dated 26-27 October 2013 setting out times and places of church activities and services; several medical documents relating to the appellant's pregnancy with an estimated due date of 7 June 2014; a document from the senior pastor of the Bread of Life Christian Church, Sydney dated 5 October 2014 certifying that the appellant had attended the church for more than a year and had been baptised there; a document in Chinese with the English words: "This Certificate is awarded to (name in Chinese) in recognition of valuable contributed to" which appeared to be dated 20.4.2014; and two supporting statements: one from Ruan Wenying dated 3 July 2013 from Zhaoqing City, Guangdong province and who has known the appellant for eleven years; and one from Mo Ling dated 5 July 2013 from Zhongshan City, Guangdong province and who has known the appellant for fifteen years. 10 The Tribunal made the following findings: (1) it did not accept that the appellant was forced to have two abortions. The Tribunal found that if the appellant was anxious to have a child and not be arrested and forced to have an abortion, she would not have taken steps to hide her pregnancy once she began to look pregnant. In the Tribunal's opinion that she failed to do that when she fell pregnant a second time in 2012 defied logic. The evidence, that she was going to start hiding her pregnancy when her tummy got bigger at six months, suggested that her pregnancies were not readily apparent at the time she had the abortions; (2) the appellant's evidence about the importance of her jobs in 2010 and 2012 was consistent with her having abortions because it was inconvenient to have a child at those times. The Tribunal did not accept that she wanted to have a child on either occasion; (3) it found that the statements provided by Ruan Wenying and Mo Ling were prepared to support the appellant's claims for protection and that the witnesses were not independent or objective; (4) it did not accept the appellant's denial of having a second child to get protection. The Tribunal found, on the appellant's evidence, that her motive for staying in Australia was to try to stop her son's nose bleeds. The Tribunal was not satisfied that the appellant became pregnant otherwise than for the purpose of strengthening her claim to be a refugee, she was pregnant within about two months of making her application. The Tribunal noted that the appellant's claim for protection was that she had been forced to have two abortions which the Tribunal did not accept. The Tribunal disregarded the appellant having a second child in determining whether she has a well-founded fear of being persecuted for a convention reason pursuant to s 91R(3) of the Act; (5) it did not accept the claim made by the appellant's representative that, as a Christian, the appellant believes abortion is murder, persecution and a human rights violation or that those beliefs prevented her from deciding to have two abortions; (6) it noted that, although the appellant provided documents supporting her claim that she is a Christian, she did not claim in her application that she would be persecuted for that reason if she returns to China. The Tribunal found that, at its highest, the appellant's claim was that she opposes abortion for that reason, by implication that she would not have an abortion if she became pregnant when she returned to China and would therefore be forced to have an abortion; (7) it did not accept that the appellant is a believing and practising Christian or will be if she returns to China. While the Tribunal accepted that the appellant had been baptised in Australia and may attend the Bread of Life Christian Church and take part in some activities, it considered that activity had been for the purpose of seeking protection; (8) it did not accept that the appellant would practice Christianity in China or that there is a real risk that she will suffer significant harm in China because of her claimed Christianity. It was not satisfied that the appellant's participation in Christian activities in Australia was otherwise than for the purpose of strengthening her claim to be a refugee and therefore disregarded her claimed Christianity pursuant to s 91R(3) of the Act; (9) it did not accept that the appellant and her family could not pay a fine, if one was levied, for their second son. She and her family were able to travel to Australia and found support here. They have family support in China according to one of the statements provided and spent a lot of money seeking treatment for their older son according to the second statement. The Tribunal did not accept that the appellant would be arrested because she has a second child; and (10) it did not accept that the appellant will get pregnant again if she returns to China and be forced to have another abortion or be arrested. It found that she chose to have two abortions and that she decided to have a child in Australia to support her protection claim which is motivated by trying to help her older son. 11 The Tribunal did not accept that there was a real chance that the appellant would suffer serious harm or a real risk that she would suffer significant harm because of a further pregnancy if she returns to China and it did not accept that she would be arrested because she left China because of the one child policy. The Tribunal found that the appellant did not leave China for that reason and that there was no evidence that there is a policy of arresting people if they leave for that reason. 12 Although not specifically raised the Tribunal considered whether the appellant's older son, the third appellant, had a claim for protection based on his nose bleed condition. The Tribunal found that the condition was not as serious as claimed by the appellant and did not accept that the third appellant would suffer serious harm or that there was a real risk that he would suffer significant harm if he returns to China because of that condition.

proceedings before the Federal Circuit Court 13 The appellants sought judicial review of the Tribunal's decision by originating application filed on 3 August 2015. On 15 August 2015 they filed an amended application which set out the following grounds: That a breach of the rules of natural justice occurred in connection with the making of the Decision. That the Applicants were denied procedural fairness in connection with the making of the Decision. That an error of law occurred in connection with the making of the Decision. That the Decision involved the making of a jurisdictional error in that the Tribunal: (i) Identified the wrong issue/applied to the wrong test; (ii) Failed to take into account a relevant consideration; and/or (iii) Took into account an irrelevant consideration. That the Tribunal failed to comply with s 425 (1) of the Act. That the Decision was affected by apprehended bias. That the Decision was otherwise contrary to law. 14 The amended application also annexed a document titled "particulars of ground and submissions" comprising eleven paragraphs. 15 In relation to the grounds asserting a breach of the rules of natural justice and a denial of procedural fairness, the primary judge noted that the appellants were invited to give evidence and present arguments at a hearing and that the appellant appeared on that date and was assisted by an interpreter and represented by a registered migration agent. His Honour found that the transcript of the hearing disclosed that the appellants' credit was in issue, that the Tribunal identified the appellants' claims and that it gave reasons for its adverse findings of credit, that were open on the material before it. His Honour held that there was no substance to the grounds which alleged a breach of natural justice by the Tribunal: BPK15 at [4] to [6]. 16 In relation to the ground alleging bias on the part of the Tribunal, his Honour held that the appellant had failed to prove a case of bias and that the adverse credit findings by the Tribunal were not "conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits": BPK15 at [7]. The primary judge also found that the transcript of the hearing did not reveal a closed mind by the Tribunal and that the proposition that the hearing was conducted in a manner that gives rise to any reasonable apprehended bias was without substance: BPK15 at [8]. 17 Insofar as the appellants asserted error of law by the Tribunal, his Honour noted that no particulars were provided and that no error of law was made out. His Honour also noted that the generalised assertions of "taking into account the wrong issue or failing to take into account the relevant consideration or taking into account irrelevant considerations" were unparticularised and failed to make out any jurisdictional error: BPK15 at [9]. 18 His Honour found that the appellants had a genuine hearing and were given an opportunity to meet the issues that were before the Tribunal and that there was no substance to the assertion of a failure to comply with s 425 of Act: BPK15 at [10].

the notice of appeal 19 In their notice of appeal the appellants raise two grounds of appeal (as written): 1. The Federal Circuit Court's decision is affected by the apprehension of bias as the judge handle my case cursorily as mere formality and readily and uncritically accept all the "broad brush" submission and unconvincing rejection of my detailed grounds. In this sense, it also denied me of natural justice and procedural fairness. 2. The Federal Circuit Court erred in that it failed to find that RRT legally erred as its decision failed the principle outlined by J. Gleeson in SZBEL. 20 The appellants did not file any written submissions in support of their notice of appeal. The appellant appeared at the hearing on behalf of all of the appellants. She made oral submissions which are considered below.

consideration 21 By their first ground of appeal the appellants allege that the decision of the primary judge is affected by apprehended bias. The basis of the allegation of apprehended bias is that the primary judge rejected the appellants' grounds in what is described as a cursory fashion or as a mere formality. 22 In ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 a Full Court of this Court (Allsop CJ, Kenny and Griffiths JJ) noted at [35] that the test for apprehended bias is relatively well settled: whether a fair minded and appropriately informed lay observer might reasonably apprehend that the Court might not bring a fair, impartial and independent mind to the determination of the matter on its merits. At [36] the Full Court set out other relevant principles to determining whether a decision is affected by apprehended bias as follows: 36 Other relevant principles are: (a) at least the following two steps are involved in a case involving an allegation of apprehended bias: (i) there must be an identification of what it has said might lead a judge to decide a case other than on its legal and factual merits; and (ii) there must be an articulation of the logical connection between the matter and the feared deviation from a course of deciding a case on its merits (Ebner at [8] per Gleeson CJ, McHugh, Gummow and Hayne JJ); (b) an allegation of bias against a judge on the basis of prejudgment is a serious matter not the least because it carries with it the suggestion that the judge has failed to honour his or her judicial oath as such might be questioned by the fair-minded observer. As is also the case where such an allegation is made against an administrative officer, the allegation must be "distinctly made and clearly proved" (Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 (Jia Legeng) at [69] per Gleeson CJ and Gummow J); and (c) as noted above, the test assumes that the hypothetical fair-minded lay observer is to be attributed with appropriate knowledge of relevant matters so as to be in a position to make a reasonably informed assessment of the likelihood of apprehended bias (see, for example, Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [13] per Gleeson CJ, Gaudron, McHugh and Gummow and Hayne JJ and at [53] per Kirby J; British American Tobacco at [47]-[48] per French CJ and at [144] per Heydon, Kiefel and Bell JJ and Isbester v Knox City Council [2015] HCA 20 at [23] per Kiefel, Bell, Keane and Nettle JJ and at [57] per Gageler J). 23 A claim of bias must be distinctly made and clearly proved. That has not occurred here. There is no evidence of bias on the part of the primary judge. The appellants have not identified what it is they say would lead the primary judge to decide the case other than on its legal and factual merits and, if identified, the connection between that matter and the feared deviation from a course of deciding the case on its merits. The primary judge considered each of the grounds raised by the appellants in their amended application and made findings having done so. The allegation of bias on the part of the primary judge is not made out. 24 As part of ground one the appellants also allege that they were denied "natural justice and procedure fairness". The appellants were given an opportunity to file an amended application, which they did, and written submissions, which they did not. While the matter was originally listed for a show cause hearing on 20 November 2015, because the Minister considered that the matter should proceed to a final hearing, the primary judge did not proceed with the show cause hearing at that time but adjourned the matter, part heard, for a final hearing on 4 December 2015. In doing so he granted leave to the appellants to file further material. The appellants' material is detailed. However, the primary judge considered each of the grounds raised. There is no basis upon which the Court would conclude that the appellants were denied natural justice or procedural fairness. Ground one cannot be made out. 25 The second ground of appeal alleges that the primary judge erred in failing to find that the Tribunal fell into error of the type considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL). That matter concerned an Iranian seaman who jumped ship and applied for a protection visa. In support of his application the appellant in that matter relied on a statutory declaration. He said he feared for his safety because the ship's captain knew he was a Christian. The Tribunal wrote to the appellant pursuant to s 425(1) of the Act telling him it was unable to make a decision in his favour and inviting him to appear before it to give evidence and present arguments relating to the issues arising in the decision under review. The appellant responded to the invitation and appeared before the Tribunal in February 2003. In its decision, the Tribunal identified three elements of the appellant's account which it found were implausible. At no stage during the course of the hearing did the Tribunal invite the appellant to amplify what he said in relation to the three particular aspects of his evidence that the Tribunal later found to be implausible or challenge or express any reaction to what he said. 26 The Court upheld the appeal and held that the Tribunal did not afford the appellant procedural fairness because it did not give the appellant the opportunity to give evidence or make submissions about two of the determinative issues arising in relation to the decision under review. At [34]-[35] the Court said: 34. … The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. 35. The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. (emphasis omitted) 27 In their amended application filed in the Federal Circuit Court the appellants raised as a ground that the Tribunal failed to comply with s 425(1) of the Act. At page 4 of the "particulars of grounds and submissions" annexed to the amended application the appellants included the following: 9. In addition to this, the applicant only provided a short typed statement to a migration agent which was lodged with her protection visa application and it was always her intention to substantially expand upon this by way of oral evidence at the RRT hearing and also to produce further documentary evidence in support of her claims. The tribunal's failure to afford the applicant such an opportunity to draw the applicant's attention and expand on quotes "THE ISSUES arising in relation to the decision under review" give rise to the breach of its obligation under S 425(1) of the Act. 28 The appellants seem to conflate their allegations of denial of natural justice and failure to comply with s 425(1) of the Act. The appellants were invited, pursuant to s 425(1) of the Act, to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The appellant appeared at the Tribunal hearing assisted by a registered migration agent. 29 The delegate had found that there were a number of inconsistencies between the evidence given by the appellant and her husband. Those inconsistencies related to the level of commitment to Christianity of the couple and different claims regarding the husband's work on Sunday, basic details about what occurred on the day of the second termination and the time when the medical certificate from the Yi He Hospital came into possession of the couple. The delegate considered that the protection claims had been "concocted" and the medical certificate provided to support the claim of the wife's termination of pregnancy had been fabricated. The delegate also considered that the appellant and her husband had joined a Christian church in Sydney for the purpose of enhancing their protection claims and disregarded the conduct under s 91R(3) of the Act. 30 At [9] of the Tribunal's decision record the Tribunal identified the issues in the case before it as "whether the Tribunal accepts the primary applicant's evidence is credible and, if so, whether the country information supports her claims". The alleged breach by the Tribunal of s 425(1) of the Act is not particularised in any meaningful way. However, based on a review of the Tribunal's decision and a transcript of the hearing before the Tribunal, which is included in the appeal book, it is clear that the Tribunal raised with the appellant, who appeared before it, the issues that arose in relation to the decision. The primary issue was the credibility of the appellant's claims, as identified by the delegate and the Tribunal in its decision record. It is clear from the transcript that the Tribunal raised with the appellant each aspect of her claims and the issues that arose in relation to each aspect. There was no error of the type identified by the High Court in SZBEL and it follows that the primary judge did not err in failing to find that the Tribunal made an error because it failed to comply with s 425(1) of the Act. Ground two of the appellants' notice of appeal cannot be made out. 31 At the hearing, the appellant submitted that she was unhappy with the primary judge's decision and that there are "some problems with it…there are some legal issues". However, the appellants have not identified any appealable error in the judgment of the primary judge and this submission does no more than express dissatisfaction with the judgement in BPK15.

conclusion 32 The appellants have not established any appealable error in the judgment of the primary judge. Accordingly I will order that the appeal be dismissed and that the appellants pay the Minister's costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Markovic.