ADC16 v Minister for Immigration

[2017] FCCA 1208

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADC16 & ORS v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1208

Catchwords:
MIGRATION – Application for review of a decision of the Administrative Appeals Tribunal – where the Applicants seek essentially merits review – no jurisdictional error – application dismissed.

First Applicant: ADC16

Second Applicant: ADD16

Third Applicant: ADE16

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 93 of 2016

Judgment of: Judge Hartnett

Hearing date: 2 May 2017

Delivered at: Melbourne

Delivered on: 2 May 2017

REPRESENTATION

The Applicants: In Person

Solicitor for the First Respondent: Mr Brown

Solicitors for the First Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The Applicants pay the costs of the First Respondent fixed in the sum of $5,000.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 93 of 2016

ADC16

First Applicant

ADD16

Second Applicant

ADE16

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

1. Before the Court is an application for judicial review filed 18 January 2016 of a decision made by the Administrative Appeals Tribunal (‘the Tribunal’) on 24 December 2015 which affirmed a decision of a delegate of the Minister to not grant to the Applicant a protection (Class XA) visa (‘the visa’).

2. The grounds of application are as follows:-

   “Ground 1: The Tribunal was too rigid in applying its policies and did not have regard to the individual merits and circumstances of the Applicant’s case.  The Tribunal should have exercised its discretion to allow the Applicant an extension of time for the purposes of obtaining further evidence.”

3. The First Respondent filed a response on 28 January 2016 seeking dismissal of the application and that the Applicant pay the First Respondent’s costs of the proceeding.  The dismissal of the proceeding was sought on the basis that the decision under review is not affected by jurisdictional error.

4. The matter proceeded before Registrar Buljan, and on 22 June 2016 orders were made by consent which included that the Applicant file and serve any amended application with proper particulars of the grounds of application and written submissions on or before 4 April 2017.  The First Applicant did not amend the application and nor did she file any written submissions.

5. The First Applicant filed an affidavit sworn by her on 8 January 2015 at the time of filing of the application which essentially annexed the decision of the Tribunal to affirm the decision not to grant the Applicants protection visas.  In that affidavit the First Applicant noted that she and the Second Applicant were married on 25 April 2013 and that the Third Applicant is their daughter, who was born on 18 December 2012, in Australia.  In respect of the grounds of review, the First Applicant said in that affidavit:-

   “I think the Tribunal was too rigid in applying its decision.”

6. The First Applicant was given an opportunity this day to make oral submissions.  The First Applicant was assisted before the Court by an interpreter in the Mandarin and English languages. The First Respondent’s contentions of fact and law relied upon by the First Respondent and dated 18 April 2017 were translated to the First Applicant by the interpreter this day, the First Applicant indicating that she had not read such contentions.  They had been served upon her, however, in sufficient time for her to have read same.  The Court also had before it this day the Court Book, filed on 6 July 2016, and the contents therein which are evidence in the proceedings.

7. In respect of the oral submissions made by the First Applicant this day  when asked to further explain or particularise her grounds of application, the First Applicant said that her claim that the Tribunal was too rigid in applying its policies and did not have regard to the individual merits and circumstances of the Applicant’s case was a matter that she was not familiar with.  She claimed to not know what that ground meant.  The further statement that the Tribunal should have exercised its discretion to allow the Applicant an extension of time for the purposes of obtaining further evidence related to her Certificate of Baptism, which she wished to submit to the Tribunal, and to the Court.

8. As can be seen, the grounds of application set out or contain no particularisation that goes to jurisdictional error, and neither ground the Court finds, can be established.

History

1. The First Applicant is a Chinese national who arrived in Australia on 28 June 2007 as the holder of a student visa.  She returned to China on two occasions prior to her final student visa expiring on 19 October 2011. The First Applicant remained thereafter in Australia as an unlawful citizen until 26 April 2013, when the Applicants applied for protection (Class XA) visas. 

2. The Second Applicant is a Chinese national who first arrived in Australia on 23 March 2008 as the holder of a student visa.  He ceased study after a month and worked as a plasterer, remaining in Australia as an unlawful non-citizen after his student visa ceased.  He met the First Applicant in 2010 and they married on 25 April 2013.  Their first child, the Third Applicant, was born in Australia on 18 December 2012. A second child was born on 31 December 2014.

3. A delegate of the Minister refused to grant the visas on 4 December 2013, and the Applicants lodged an application for review of the delegate’s decision with the Refugee Review Tribunal (as it was then known) on 15 December 2013.

4. The Applicants originally appeared before the Tribunal on 6 May 2014 and again on 8 May 2014 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The Applicants were represented by their migration agent, who attended the hearing.

5. The matter was reconstituted to a new member on 2 July 2015, as the review had not been finalised. 

6. The Applicants appeared before the Tribunal on 15 October 2015 to give evidence and present arguments.  The Tribunal hearing was again conducted with the assistance of an interpreter in the Mandarin and English languages.  The Applicants further appeared on 24 December 2015, assisted by an interpreter and represented by a migration agent.

7. The Applicants’ visa application was accompanied by a statement of the First Applicant that she and her family members were Catholics, and that she went to church in Australia with her husband and child to practice Christianity in Australia.  The statement further claimed that the local police in Fujian, China, where the First and Second-named Applicants had lived in China, were against Christians and would detain them and force them to pay fines.

8. At the hearings before the Tribunal and in subsequent submissions, the Applicants made two further claims:-

   “ (1) that they would be penalised because they were married before the legal age of marriage in China and they would not have their marriage recognised in China, which would cause issues for their child, who could not be on the household registration record and could not be enrolled in school; and

   (2) that the First Applicant faced a real risk of a forced termination of her second pregnancy in China, and if the child was born, they would be forced to pay a fine.”

9. Further claims made by the Applicants were as set out in the First Respondent’s contentions of fact and law as follows:-

   “On 25 March 2014, the Applicants’ migration agent faxed a written statement of the First Applicant to the Tribunal, which stated, in summary:-

   Her family in China were all Catholics, and they had suffered significantly due to the oppression of religious groups by the Chinese Government;

   Her child would suffer in China as a member of a Catholic family;

   She and her husband planned to have a second and third child, and China’s one-child policy, which once featured the imposition of fines, forced sterilisations and late-term abortions and now involved a huge fine and difficulties in registering the child which was required for attendance at school.”

10. At the hearing on 6 May 2014 the Applicants handed up an outline of written submissions concerning the current situations for Catholics in China, and the one child policy, attaching an article downloaded from the internet on forced abortions.  Those submissions attached:-

    “A letter from the Catholic Chinese community of Melbourne, Australia, dated 23 March 2014, stating that the First Applicant had joined the Catechism class for one year and wished to learn about the Catholic faith.

    A certificate of baptism relating to the First Applicant’s mother which indicated that the First Applicant was preparing to be baptised, and

    A medical certificate advising of the First Applicant’s second pregnancy.”

11. On 15 June 2014 the Applicant’s migration agent provided evidence of the First Applicant’s second pregnancy and a letter from the local authorities, dated 18 April 2014, stating that the Applicants would have to pay a fine because their first child was born out of wedlock, and made submissions to the following effect:-

    “1. In Fujian Province it is forbidden to give birth before marriage and if a couple has a child before wedlock, they will have to pay a fee.

    2. If the couple does not pay the fee, the child cannot enrol in school;  and 

    3. Children born out of wedlock may experience discrimination and cultural disapproval.” 

12. At the final hearing on 24 December 2015, the Tribunal member put country information to the Applicants that the Chinese government had recently announced a new policy regarding family planning which indicated that their children could be registered on household registration and would be able to attend school and have access to other services. 

13. The Tribunal put to the Applicants that country information indicated that the legal age for marriage in China is 20 years for a woman and 22 for a man.  The evidence provided to the Tribunal indicated that the First-named Applicant was 24 years old, and the second-named Applicant was 23 years old when they were married on 25 April 2013.  The Tribunal also indicated there was country information which outlined the process by which their marriage in Australia could be registered with the Chinese authorities. This indicated that there should be no impediment to having the marriage recognised in China. 

Findings

1. The findings of the Tribunal are as accurately set out in the First Respondent’s submissions which I adopt herein:-

   “Religious beliefs

   15. The Tribunal accepted that the First Applicant had been born into a Catholic family and had been attending catechism classes and a Catholic church in Australia but did not accept that the children could not be baptised until the First and Second Applicants were baptised. 

   16. Country information indicated that in Fujian Province there were a large number of underground churches, and the government appeared to be fairly tolerant of unregistered believers. 

   17. The First and Second Applicants were no more than ordinary parishioners in Australia and had made no claim that they would proselytise, evangelise or engage in missionary activities so as to attract the adverse attention of the Chinese authorities upon return to Fujian Province. The Tribunal found that the Applicants’ religious practice would not expose them to a real chance of harm upon return to China. 

   18. The Tribunal relied on the First Applicant’s oral evidence that neither her family nor she personally had experienced any adverse attention from the Chinese authorities by reason of their religious practice and noted country information about the relatively tolerant approach of local authorities to unregistered churches in Fujian Province and found that there was not a real chance that the First Applicant would suffer serious harm by reason of her religious beliefs or activities, or those of her parents, or her attendance at an underground church, should she return to China. Those findings also extended to the Second and Third Applicants. 

   19. The Tribunal was not satisfied that the Applicants had a well-founded fear of persecution or faced a real risk of suffering significant harm by reason of their religious beliefs and practices. 

   Family Planning Laws

   20. The Tribunal was satisfied, based on country information, that the Applicants were of legal age to marry in China and that the Applicant’s marriage would be recognised in China. Accordingly, the Tribunal found that no issue would arise from their marriage.

   21. The Tribunal accepted that the First and Second Applicants may have to pay some social compensation fee for the birth of their first child (the equivalent of Australian $10,720) but found that the fee could be paid by instalments, and such an impost would not amount to serious harm or persecution.

   22. The Tribunal found that the recent changes in China’s one-child policy meant that the Applicant’s children would not be denied registration by reason of being born before their parents were married or being a second-born child.  Given improving societal attitudes in Fujian toward children born out of wedlock, the Tribunal was not satisfied that the two children faced a real risk of suffering discrimination amounting to serious or significant harm by reason of being born before their parents were married or being a second-born child.

   23. Further, the Tribunal noted country information to the effect that forced abortions and sterilisations were increasingly rare and that family planning policies in Fujian were becoming more relaxed.  The Tribunal was not satisfied that there was a real risk of the Applicant being forced to undergo an abortion or sterilisation if she decided to have more children.

   24. The Tribunal was not satisfied that the Applicants had a well-founded fear of persecution or faced a real risk of suffering significant harm by reason of the family planning laws.”

Consideration

1. The Tribunal’s findings were open to it on the materials before it. The Tribunal’s conclusions were neither irrational nor unreasonable.  Indeed, the Tribunal’s decision was an extensive one, wherein the Tribunal comprehensively considered each and every of the claims made by the Applicants and referred to a considerable body of relevant country information.  The weight given to that country information by the Tribunal was a matter for it. 

2. The Tribunal applied the relevant legislative provisions to the facts found to be established by the Tribunal and the Applicants come before the Court seeking nothing other than merits review.

3. The Applicants’ hearing was conducted over a very lengthy period, commencing on 6 May 2014 and concluding on 24 December 2015.  The Applicants were on notice as to the relevant issues throughout the entire course of those hearings, and had considerable opportunity to put before the Tribunal any materials that the Applicant wished. The Applicants were represented by a migration agent and they took the opportunity to lodge submissions and related material with the Tribunal. 

4. There is nothing in the Tribunal’s statement of Decision and Reasons (‘the Decision Record’) that indicates the Applicants requested a further opportunity to provide further evidence in support of their application at the fourth hearing on 24 December 2015. The First Applicant’s submission this day, that she needed to put before the Tribunal her baptismal certificate was a matter dealt with by the Tribunal in paragraph 108 of the Decision Record which is as follows:-

   “The Applicant said she was supposed to have been baptised on 25 December 2014, but she was very sick as a result of her pregnancy, and this had to be postponed.  She had been attending preparation classes for her baptism, but, as she was sick when the time came for her baptism, she has to wait until next Christmas, and continued to attend preparation classes in the meantime.  They have continued to attend the same church, but now attend classes on a Sunday instead of a Saturday evening.” 

5. The Applicants’ claim that the Tribunal should have exercised its discretion to allow the Applicants an extension of time for the purposes of obtaining further evidence has absolutely no basis.  The Applicants were afforded a period of some 18 months in which to put their material before the Tribunal. 

6. The application for judicial review is without merit and must be dismissed.  Costs shall follow the event.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 6 June 2017