WZATD v Minister for Immigration and Border Protection

the federal circuit court 11 The appellants filed an application for judicial review in the Federal Circuit Court on 30 August 2013. The appellants relied upon the following five grounds of review: 1. Australia is a party to the Refugees Convention and has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. In my case, I am in fear of being persecuted by the Chinese government, outside my home country and unwilling to return to it, which makes me qualified as a refugee by Article 1A(2). Both the Tribunal and the Department ignored my refugee status (Decision Record, para 43). 2. The Tribunal must first make findings of fact on the claims the applicant has made, when determining whether the applicant is entitled to protection under s 36(2)(a) or (aa) of the Migration Act. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. Because of the complex situation that my family was persecuted and controlled by the Chinese authority, I have difficulties of proof for refugee status, ie The process of my passport application. Accordingly, The benefit of the doubt should be given to me but the Tribunal failed to do it (Decision Record, para 22a, 22b). 3. The Tribunal made unfair decision in my case. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (see MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220). Although the Chinese government did not stop me from the airport, it does not mean the government has no interest on me (Decision Records, para 22d). Neither did the Tribunal nor I have any clue about the detailed mode of operation to persecute people by the Chinese government. 4. The Tribunal ignored the persecution I fear, which involves serious harm to me. The serious harm is reflected from the persecution suffered by my family, because of the protesting activities. This serious harm matches the criteria in Subsection 91i(2) that "a threat to the person's life or liberty". Thus, the Tribunal failed to make proper decision in the testing of real risk of significant harm. 5. I am mental weak, the judge continuely interrupted my mind and asked me questions again and again, which made me to be under much pressure. Under such pressure, I said things I did not mean. Moreover, I need to look after my child, though my husband could help, the crying of the child always interrupted my thoughts. 12 On 28 May 2014, after having thoroughly examined each of the grounds of review, the primary judge dismissed the appellants' application for judicial review.

the appeal 13 On 17 June 2014, the appellants filed a notice of appeal which contained the following three grounds of appeal: 1. RRT has bias against me as I was deprived of the benefits of doubts. 2. RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact. 3. RRT has made an offensive finding based on no evidence. 14 In support of the notice of appeal, each appellant filed an affidavit dated 17 June 2014, in which each stated that their evidence before the Tribunal had been true. 15 I denied the appellants leave to rely on their affidavits, because the contents of the affidavits were irrelevant to this hearing. 16 None of the grounds of appeal, as formulated, identifies any error by the primary judge. During the hearing, I invited the first appellant to identify the error or errors made by the primary judge, upon which she relied. The first appellant said that the second appellant would make those submissions. The second appellant then addressed the Court. 17 The second appellant commenced by arguing the merits of their claim to be refugees. However, I advised the second appellant that the jurisdiction of this Court was founded upon the Court identifying error by the primary judge. In response, the second appellant contended that the errors of the primary judge were that: (a) the primary judge had failed to consider and deal with the merits of their claim to be refugees which had been made before the Tribunal; and (b) the primary judge had not listened to and thoroughly dealt with their submissions. 18 Neither of these complaints was raised in the notice of appeal. Whether the appellants should have leave to raise these grounds depends, at least, on them demonstrating that they have sufficient merit. 19 The contention that the primary judge erred because he had not considered and dealt with the merits of their application before the Tribunal is devoid of any merit. The primary judge had no jurisdiction to consider and deal with the merits of the appellants' claims for protection visas. The role of the Federal Circuit Court was to conduct a judicial review of the Tribunal's decision by reference to the grounds of review, to determine whether the Tribunal had fallen into jurisdictional error. This the primary judge did. His Honour gave a generous interpretation of the grounds of review as formulated by the appellants; and engaged in a detailed and thorough examination of each of the grounds of review. The primary judge did not err in finding that there was no jurisdictional error by the Tribunal. 20 The allegation that the primary judge did not listen to the submissions of the appellants and deal with them in a thorough manner, is also devoid of merit. It is plain from the reasons of the primary judge that he conducted a very thorough review of the Tribunal's decision. As I have already mentioned, it is also apparent that the primary judge construed the grounds of review in a manner which was particularly generous to the appellants by identifying and considering contentions that were not clearly articulated in the grounds of review as they were expressed in the application for review. The consequence was that the primary judge went out of his way to be fair to the appellants. 21 There was also some suggestion by the second appellant during his oral submissions before this Court, that he had been denied any opportunity to make submissions before the primary judge. First, no evidence was tendered in support of this argument. Secondly, it is apparent from the primary judge's reasons for decision that each of the appellants had the opportunity to make, and did make, oral submissions before the primary judge. It is also clear from the primary judge's reasons that the primary judge also had regard to the oral submissions which were made before him by each appellant. 22 It follows that, in my view, the grounds of appeal in the notice of appeal are not to be amended to include these two proposed grounds of appeal. 23 I deal now with the existing grounds of appeal. I will construe each of the grounds of appeal as a contention that the primary judge erred by not making the finding asserted in each ground of appeal.

The first ground of appeal 24 To the extent that the appellants contended that the Tribunal was actually biased, or that there was an apprehension of bias, the appellants did not make any attempt before the primary judge to comply with the requirement that this serious allegation be distinctly and clearly proven. No attempt was made to identify any conduct on the part of the decision-maker which would indicate that the decision-maker was biased; nor any other circumstance upon which to found an allegation of apprehended bias. The appellants' claim of bias, in essence, reflects their disagreement with the merits of the Tribunal's decision. The primary judge did not err in rejecting the appellants' claim of bias by the Tribunal. 25 To the extent that the appellants allege that they were "deprived of the benefits of doubt" by the Tribunal in the assessment of the first appellant's claim to have a well-founded fear of persecution, this issue was dealt with by the primary judge at [39]-[43] of the reasons for decision. The primary judge observed that by reason of the strong adverse credibility findings made by the Tribunal, the Tribunal rejected the first appellant's evidence, and did not entertain any doubt from which the appellants could benefit. In my view, the primary judge did not err in making this finding. 26 This ground of appeal is rejected.

The second ground of appeal 27 This ground of appeal complains of the absence of adequate reasons for the findings made by the Tribunal. The primary judge found that the Tribunal had closely assessed the oral evidence given by the first appellant, and made adverse credibility findings which were open to the Tribunal to make. In my view, the primary judge did not err. Nor can it be said that the Tribunal did not give adequate reasons. To the contrary, the Tribunal closely analysed and assessed the first appellant's oral evidence and gave detailed reasons for the adverse credibility findings it made. These reasons are set out at [18]-[23] of the Tribunal's decision record which occupy seven pages of that record. It was on the basis of these adverse credibility findings, open to the Tribunal to make findings rejecting the first appellant's version of events; and the further findings that she did not have a well-founded fear of persecution, nor that there was a real risk of the first appellant suffering significant harm, were she to return to China. 28 This ground of appeal is dismissed.

The third ground of appeal 29 This ground of appeal also appears to complain of the adverse view which the Tribunal took of the first appellant's credibility and the consequential rejection of the first appellant's claim. This ground should be dismissed for the same reasons as identified in relation to the second ground of appeal. 30 It follows that the appeal is dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.