ABV16 v Minister for Immigration - [2016] FCCA 1078

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABV16 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 1078

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Division) – Protection (Class XA) visa – bias – whether adverse findings can constitute bias – whether the Tribunal failed to consider relevant country information – whether the Tribunal failed to fulfil its statutory obligations – whether the applicant had a genuine hearing – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.424A, 425, 476

Applicant:

ANE16 AS LITIGATION GUARDIAN FOR ABV16

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

SYG 42 of 2016

Judgment of:

Judge Street

Hearing date:

6 May 2016

Date of Last Submission:

6 May 2016

Delivered at:

Sydney

Delivered on:

6 May 2016

REPRESENTATION

The applicant's litigation guardian appeared in person

Counsel for the First Respondent:

Mr B D Kaplan

Solicitors for the First Respondent:

Mills Oakley Lawyers

ORDERS

The application is dismissed.
The applicant’s litigation guardian, ANE16, is to pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 42 of 2016

ANE16 AS LITIGATION GUARDIAN FOR ABV16

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect of a decision of the Tribunal made on 17 December 2015 affirming a decision of a delegate not to grant the applicant a protection visa. The applicant is a child and the applicant’s mother was joined as the litigation guardian.
The applicant’s parents were both found to be citizens of China, and the applicant was found to be a citizen and national of China, notwithstanding that the applicant was born in Australia. Both the applicant’s parents travelled to Australia using their Chinese passport with valid Australian visas.
The claims advanced on the applicant in support of a well-founded fear of persecution are that the applicant would be required to live as an unregistered, or “black”, child, because it is alleged his parents could not afford to pay the social compensation for him to be registered on the household register. It was also identified that the applicant was a child born out of wedlock.
It was further alleged that the applicant’s parents were devout Catholics and had an active involvement in the underground church, by reason of which the applicant was alleged to face a real chance of persecution on the basis of his mother’s religious beliefs if he were to return to China.
The Tribunal referred to two newspaper articles published on 10 and 11 December 2015 which indicated that China had altered its policy on so-called “black” children such that they would now be able to be registered to ensure that they had access to social welfare programs. The Tribunal said that the change in the Chinese Government’s policy negated the applicant’s unregistered child claim.
The Tribunal proceeded on the assumption that the government’s previous policy applied and found it had serious doubts that the applicant’s parents would have encountered any difficulty in paying the social compensation fee. It was in those circumstances the Tribunal found that the applicant’s parents would be able to register the applicant.
The Tribunal found while there would be some social stigma associated with the illegitimacy of the applicant’s parents deciding not to marry if it became known that he was born out of wedlock, the Tribunal doubted that anybody would find out or be particularly interested. Further, the applicant’s parents, the Tribunal found, had held themselves out as a married couple in Australia and had been referred to by others as husband and wife. The Tribunal referred to the evidence that the parents proposed to marry as soon as possible.
The Tribunal rejected the complaint in relation to religious belief, and did not believe the evidence adduced by the applicant’s mother in that regard to be credible or true. The Tribunal found the applicant’s mother was not a credible witness and that she fabricated this claim on her son’s behalf so as to give a reason for not wanting to return to China. The Tribunal found that the applicant and his parents would not face any harm or concern in China on account of their being Roman Catholic.
By letter dated 28 July 2015, the applicant was invited to attend a hearing on 8 October 2015. The applicant attended that hearing to give evidence and present arguments, together with the applicant’s father, and the hearing was conducted with the assistance of an interpreter, as well as the applicant having his registered migration agent. Following the hearing on 8 October, further material was provided on behalf of the applicant to the Tribunal under covering email dated 12 November 2015, including information about religious persecution in China.
On 10 March 2016, a Registrar of the Court fixed the matter for hearing and made directions providing an opportunity to the applicant to file an amended application, affidavit evidence and submissions. The applicant did not amend the application or put on further affidavit evidence, but did file a submission.
The grounds of the application are as follows:
1. The current Tribunal member actually just simply repeated the words copied from previous Tribunal member who was in charge of my mother’s case; and the current Tribunal member was never willing to look at my evidence carefully at all; and the current Tribunal member in fact made his decision to refuse my application from the very beginning.
2. The current Tribunal member failed to consider independent country. Such as US human right report throughly and carefully. but just picked up the country information according to his taste.
3. The current Tribunal member misunderstood or intentionally ignored important independent country information. Such as pope XVI’s letter.
At the commencement of the hearing, the Court explained to the applicant that the hearing was to determine whether the Tribunal’s decision was affected by a relevant legal error. The Court explained to the applicant that relevant legal error involved either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant. The Court explained that, if satisfied that the Tribunal’s decision was affected by relevant legal error, the decision would be set aside and sent back to the Tribunal.
The Court explained that, if not satisfied the Tribunal’s decision was affected by a relevant legal error, the applicant would be dismissed. The Court explained that it would identify the evidence and then hear submissions from the applicant and then submissions from counsel for the first respondent and then submissions from the applicant in reply. The applicant confirmed that she understood the nature of the hearing as explained by the Court.
In relation to ground 1, the applicant is in substance advancing an allegation of bias by the Tribunal. The grounds upon which the applicant has advanced that allegation of bias appear to be the adverse findings by the Tribunal. Adverse findings are 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.
The structure and content of the Tribunal’s reasons reflect an orthodox approach to the determination of the applicant’s claims and evidence. There is nothing on the face of the Tribunal’s reasons to support any allegation of bias. Bias is a ground that must be clearly alleged and properly proved. No allegation of bias is proved. Ground 1 fails to make out any jurisdictional error.
In relation to ground 2, the applicant asserted that the Tribunal failed to take into account or failed to consider independent country information. It is clear that the Tribunal did identify the country information that it was taking into account in relation to the applicant’s claims. It was a matter for the Tribunal to determine what country information to accept. No country information was identified by the applicant that the Tribunal failed to take into account. Ground 2 fails to make out any jurisdictional error.
In relation to ground 3, again, no independent country information was identified in support of the assertion of the Tribunal intentionally ignoring information. I do not accept that there is any basis for the assertion that the Tribunal intentionally ignored any matter advanced on behalf of the applicant. It is clear that the Tribunal had regard to the reports published by the US State Department in 2011. It is also clear that the Tribunal had regard to the Pope’s alleged letter at paras.63 and 64, as well as the indirect reference to the material in para.4 of the Tribunal’s reasons. There is nothing in the Tribunal’s reasons to suggest the Tribunal misunderstood the applicant’s claims, and ground 3 fails to make out any jurisdictional error.
Mr Kaplan of counsel on behalf of the applicant properly raised with the Court the question of whether the post-hearing country information to which the Tribunal referred in respect of the change in the Chinese policy in respect to black children on the date of 10 December 2015 and 11 December 2015 might be argued to give rise to a potential breach of s.425 of the Act.
Mr Kaplan properly drew the Court’s attention to the fact that the change in policy could be said to be adverse to the applicant insofar as it negated the applicant’s claim in relation to the alleged fear in respect of the applicant being a black child. Mr Kaplan submitted that the issue of the applicant’s fear in respect of being a black child was one of the issues addressed by the Tribunal in that the change in government policy was not itself an issue falling within s.425 of the Act. I accept that submission.
Mr Kaplan of counsel also drew attention to the adverse finding by the Tribunal insofar as the policy continued to apply that the parents would be able to pay the necessary fee for their child to be registered, and on that further basis, they could not be said to be in breach of s.425.
Mr Kaplan of counsel properly drew attention to the potential to try and argue that there was an issue created by the change in the government policy that might be said to fall within s.425. For the reasons I have given, I do not regard the change in government policy by China as giving rise to an obligation by the Tribunal under s.425 to bring the applicant’s attention to that change prior to making its determination, nor was the Tribunal required to do so as a matter of procedural fairness.
Mr Kaplan of counsel also sought to argue that the country information to which the Tribunal referred fell within s.424A(3)(a) and that s.425 should be read harmoniously with the work contended to be done by s.424A. Whilst I accept that s.424A is part of the content of Division 4 of Part 7 and that s.425 must be read in the context of the provisions within Part 7 of the Act, it is not necessary in this case to determine whether s.424A(3)(a) would give rise to the information identified by the Tribunal in this case being excluded from enlivening any obligation of the s.425.
It is the evidence and arguments developed by the applicant that identifies the issues to which s.425 is concerned, and I accept that the country information post the hearing on 8 October 2015 did not give rise to an issue enlivening any obligation under s.425.
From the bar table, the applicant maintained the assertion that the Tribunal had made up its mind before hearing the applicant. There is nothing on the face of the material before the Court to support that allegation and the structure and content of the Tribunal’s reasons are inconsistent with that allegation. Insofar as the applicant alleges that she had an unfair hearing, there is nothing on the material before the Court to support any such allegation and the structure and content of the Tribunal’s reasons are inconsistent with that proposition. Further, the Tribunal having complied with the statutory obligations in respect of the hearing, and on the material before the Court, I am satisfied the applicant had a genuine hearing. Nothing said by the applicant from the bar table identified any jurisdictional error.
The application is dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:

Date: 16 May 2016