BVF15 v Minister for Immigration & Border Protection

1. The application be dismissed.
2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

(Revised from transcript) 1 The applicant is a national of the People's Republic of China who arrived in Australia on a student visa in August 2013. This proceeding is concerned with his later application for a protection visa. In that application he claimed to fear persecution in China after petitioning the local complaints bureau when an agreement to pay him compensation after his land had been compulsorily acquired was not honoured. He also stated that he had lodged an appeal. The gist of his claim was that in March 2013 he was visited by a number of youths who smashed up everything in his house and threatened to break his leg if he petitioned the government again. When he called the police, he was arrested on suspicion of domestic violence, taken to the local police station, detained for a day without food or sleep, and only released when he agreed to withdraw his appeal. He alleged that he was informed by the police that if he did not stop petitioning he would face "more serious harassment". He then fled to Australia, leaving his family behind. 2 Like any visa, a protection visa may only be granted to an applicant if the Minister (or his delegate) is satisfied that he meets the relevant criteria; otherwise the application must be refused: Migration Act 1958 (Cth), s 65 (the power of delegation is contained in s 496). The primary criteria for the grant of a protection visa are set out in s 36 of the Act. They relevantly included in subs (2) that the applicant is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia (other than non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm. … 3 The reference to the Refugees Convention in para (a) is a reference to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The Refugees Protocol is the Protocol relating to the Status of Refugees done at New York on 31 January 1967. For convenience I shall refer to both as "the Convention". 4 Australia has protection obligations under the Convention in respect of a person who is a "refugee". Article 1A(2) of the Convention relevantly defines a refugee as a person who "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or owing to such fear, is unwilling to avail himself of the protection of that country …". 5 Subsections 36(2A) and (2B) define the circumstances in which a non-citizen will suffer "significant harm" for the purposes of subs (2)(b). 6 The applicant's application was considered in the first instance by a delegate of the Minister. After interviewing the applicant, the delegate refused to grant the visa. The applicant applied to the Administrative Appeals Tribunal for merits review but the Tribunal affirmed the delegate's decision. While it accepted that the applicant was a Chinese national, that he leased farming land that was compulsorily acquired, that there was an agreement that he be paid compensation, and that there was independent evidence of land disputes in which local governments acted (as the primary judge put it) "in a harmful and persecutory way against complainants", the Tribunal had numerous concerns about the applicant's credibility (set out in some detail in its decision record) such that it was not satisfied of much else. In the result, it was not satisfied that the applicant met either of the criteria prescribed by s 36(2) of the Act. 7 The applicant then applied to the Federal Circuit Court for judicial review. 8 At the Minister's request, the application was listed for a show cause hearing under r 44.12(1) of the Federal Circuit Court Rules 2001 (Cth) (FCCR), which relevantly permits the court at such a hearing to dismiss the application if it is not satisfied that it raises an arguable case for the relief claimed: see para (a). The primary judge was not so satisfied. Accordingly, she dismissed the application. 9 A dismissal made under para (a) is interlocutory: FCCR r 44.12(2). Consequently, the applicant requires leave to appeal: Federal Court of Australia Act 1976 (Cth), s 24(1A). Generally speaking, in an application for leave to appeal it is necessary to show that the decision in question is attended by sufficient doubt to warrant its reconsideration on appeal and that substantial injustice would result if leave were refused, supposing the decision to be wrong: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399; Bienstein v Bienstein (2003) 195 ALR 225; [2003] HCA 7 at [29]. The Federal Court Rules 2011 (Cth) (Rules) require that the application be accompanied by the judgment or order from which leave to appeal is brought, the reasons, if published, for the judgment or order, an affidavit stating the facts that support the application, and a draft notice of appeal that complies with rr 36.01(1) and (2): r 35.12(2). 10 The applicant filed an application for leave and the Minister filed an application book which contained the Tribunal's decision and the orders and reasons for judgment of the court below. Despite what he told me at the hearing, the applicant had filed an affidavit in support of his application and a draft notice of appeal. This circumstance was only drawn to my attention after the hearing. The solicitor for the Minister stood mute during my exchange with the applicant. Because of what I was told, the affidavit was not read. As it happens, however, the affidavit was uninformative and did not comply with the Rules. It read only: 1. I am the applicant of this application. 2. I lodge notice of appeal to federal court. 11 The grounds in the draft notice of appeal are almost identical with the grounds of this application, save for the addition of the words underlined below: 1. I think the stuff [?staff] in federal circuit court did not pay attention to my case and their work was carefulness. The federal circuit court did not take my case into prudent consideration. 2. The AAT did not consider my situation in China and the risk if I go back to China. 3. AAT did not consider our statements and comments given to the questions asked in the hearing and judge my statements only by knowledge, instead of real fact. 4. The process at present is out of my expectation, which had ran out of my financial ability. I hope the Federal Court can judge fairly. 12 In summary, as the Minister put it in his written submissions, the applicant's contentions are that the primary judge failed properly to consider his case (ground 1) and that the Tribunal did not consider his claims or his evidence (grounds 2 and 3). Ground 4 is incapable of giving rise to any ground of appeal. 13 The application raises no question of general principle and for the following reasons there is insufficient doubt to warrant its reconsideration on appeal. It follows that no substantial injustice would result if leave were refused, and leave should be refused. 14 To succeed in his application before the Federal Circuit Court the applicant had to show that the Tribunal's decision was affected by jurisdictional error: see Migration Act 1958 (Cth), s 476; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476. 15 The grounds of the application below were similar to the grounds of the application in this Court. They read (without alteration): 1. AAT failed to consider my actual living condition in China. 2. AAT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence. 3. The tribunal's decision could give rise to an apprehension of bias in the mind of a reasonable observe. 4. AAT failed to prudently consider my risk if I return to origin. 5. I hope the Federal Circuit Court of Australia could consider my situation back to China and do justice for me. 16 The primary judge described each of these grounds as "a bare statement which does not identify or particularise an error capable of review by [the court]". Her Honour noted that the applicant had provided "no further relevant particulars" and that, without more, none of the grounds was capable of establishing jurisdictional error by the Tribunal. 17 But her Honour did not stop there. She then proceeded to engage with each of the five grounds. 18 In relation to ground 1, her Honour said that the Tribunal had summarised the applicant's claims in detail, identifying "with particularity" the inconsistencies in the applicant's evidence. She noted that as a result of those inconsistencies the Tribunal was not satisfied that the applicant met either of the relevant criteria. She explained that that was because it did not find the applicant's claim to have suffered harm as a result of the compulsory land acquisition to be credible. Her Honour said that the Tribunal's findings appeared to have been open on the evidence and material before it and for the reasons which it gave. 19 Her Honour noted that the applicant declined to make any further submissions in support of ground 2, although it appears from her Honour's reasons that he had made no submissions in support of that ground. 20 Her Honour dealt first with the applicant's evidence. She noted that the Tribunal had referred to the lease and the compensation agreement with the village committee provided by the applicant and had accepted those documents as accurate, but found that they did not corroborate the applicant's claims and therefore gave them little weight. 21 Her Honour reiterated that the Tribunal had concerns about the applicant's evidence, which it specified in its reasons, and that it had found his evidence to be "inconsistent in several identified respects". She also mentioned that the Tribunal had given the applicant information that it considered may be the reason, or part of the reason, for affirming the decision under review, in accordance with s 424AA of the Act, and had noted the applicant's responses but was not satisfied with his explanations. 22 Her Honour observed that the Tribunal had recognised that it was required to take a liberal approach to the evidence, and accepted that human memory is fallible and that inconsistencies can occur. She also noted that the Tribunal had acknowledged that some of the difficulties identified with the applicant's evidence related to relatively minor details but the Tribunal had concerns about aspects of the applicant's behaviour which it considered to be illogical in the context of his claims and that new evidence provided for the first time at the hearing was inconsistent with his earlier claims. 23 Her Honour also observed that the Tribunal had had regard to the independent evidence to which I referred above. Nevertheless, her Honour noted that, having regard to its opinion of the applicant's credibility, the Tribunal was not satisfied that he was a victim of such conduct. 24 Once again, her Honour concluded that the Tribunal's findings "would appear to have been open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings". 25 In relation to ground 3, her Honour reviewed the authorities relating to review for both actual and apprehended bias and concluded, in effect, that there was no foundation for such a claim. 26 As for ground 4, her Honour noted that the applicant stated that the program of land acquisition in his village was still under way and that, if he were to return to China, he would be persecuted for his alleged conduct there. Her Honour hearkened back to the Tribunal's adverse credit findings, observing that the Tribunal had comprehensively rejected the applicant's claim to have suffered harm in China for any reason related to the compulsory acquisition of his land and repeated the conclusion that she had reached earlier in relation to grounds 1 and 2 to the effect that the Tribunal's findings and conclusions were open on the evidence and material before it, for the reasons which it gave. 27 Finally, her Honour observed that ground 5 did not identify an error capable of review by the court. 28 The applicant did not lodge any written submissions in support of his application for leave to appeal and, when invited to speak he declined to say anything other than to express hope that the Tribunal might review his case again. 29 On the face of things, the applicant's complaints all relate to the failure of the primary judge to consider the merits of his claims to fear persecution in China. Having regard to the limits of the Federal Circuit Court's jurisdiction, however, her Honour had no power to reconsider his application on its merits. 30 There is no substance to the allegation made in ground 1 of the application and the draft notice of appeal that the primary judge did not pay attention to the applicant's case. Her Honour said in her reasons for judgment that she had explained to the applicant the limited role of the Circuit Court and that it was not open to the court to reconsider the applicant's claims or to make different factual findings or reach different conclusions. In this respect her Honour was quite correct, but it would seem that the applicant did not understand, did not wish to understand, or did not listen to, what she said. 31 Nor is there any justification for the allegation that her Honour was careless. Her reasons show that she carefully considered both the Tribunal's reasons and the applicant's attack upon them, despite the lack of assistance she received from the applicant. 32 As for ground 2, there can be no doubt that the Tribunal did consider the applicant's situation in China. The difficulty for the applicant is that the Tribunal did not believe a good deal of his account of his situation. It was for this reason that the Tribunal was not satisfied that he was at risk of persecution or significant harm if he were to return to China. As the primary judge observed, credibility findings are quintessentially a matter for the Tribunal. Unless those findings were derived by some irrational or illogical process or as a result of a denial of procedural fairness or were attended by some other jurisdictional error, there was no lawful basis upon which the Federal Circuit Court could set them aside. Except in ground 3 of the show cause application, the applicant made no such allegation and on the material before the court I am unable to see any basis for it. The Tribunal was under no obligation to accept the applicant's account merely on his say-so. 33 If, as it seems, the purport of ground 3 is to re-agitate the apprehended bias allegation made in the court below, then this ground would be doomed to fail. As the primary judge explained, referring, in particular, to Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425; [2001] HCA 28 at [27]-[32] (Gleeson CJ, Gaudron and Gummow), to make out an allegation of apprehended bias for reasons of prejudgment it is necessary to demonstrate that a fair-minded lay person, properly informed as to the nature of the proceeding, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal might not have brought an impartial mind to the determination of the review application. It appears from the reasons of the court below that the applicant did not demonstrate that this was so. In the absence of any submission calling this conclusion into question, let alone any evidence to indicate that it was wrong, there is no basis for this Court to come to a different conclusion. 34 In sum, I can discern no error in the primary judge's conclusions or her approach. 35 The application should be dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.