Adt17 v Minister for Immigration

[2019] FCCA 3242

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADT17 & ORS v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3242

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the Tribunal properly considered the applicant’s claims – whether the applicants had a real and meaningful hearing before the Tribunal – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 476

First Applicant: ADT17

Second Applicant: ADU17

Third Applicant: ADV17

Fourth Applicant: ADW17

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: PEG 17 of 2017

Judgment of: Judge Street

Hearing date: 11 November 2019

Date of Last Submission: 11 November 2019

Delivered at: Perth

Delivered on: 11 November 2019

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Mr S Cummings
Sparke Helmore

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The first applicant, ADT17 and the mother of the third and fourth applicants, is appointed as the litigation guardian of the third and fourth applicants and the Court dispenses with the need for the filing of any further document in that regard.

3. The application is dismissed.

4. The first and second applicants pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 11 November 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 17 of 2017

ADT17

First Applicant

ADU17

Second Applicant

ADV17

Third Applicant

ADW17

Fourth Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 15 December 2016 affirming the decision of a delegate not to grant the applicants Protection (Class XA) visas.

2. The first and second applicants are husband and wife. The third and fourth applicants are their children. The first and second applicants arrived in Australia in 2004 using fake Korean passports. The third and fourth applicants were born in Australia.

3. The Court made an order for the first applicant to act as the litigation guardian for the third and fourth applicants.

4. The applicants applied for Protection visas on 16 January 2013. The applicants claimed to fear harm in Australia by reason of alleged issues concerning family planning, an inability to obtain hukous for the third and fourth applicants, a fear of forced sterilisation of the first applicant and/or insertion of an IUD, the practice of Falun Gong by the first and second applicant, creditors seeking to pursue the second applicant, the first and second applicant’s illegal departure from China and the first and second applicants being failed asylum-seekers.

5. On 17 December 2013, a delegate found that the applicants failed to meet the criteria for the grant of Protection visas. On 2 January 2014, the applicants applied for review of the delegate’s decision. On 18 December 2014, a differently constituted Tribunal affirmed the delegate’s decision not to grant the applicants Protection visas.

6. On 14 September 2015, this Court made orders dismissing an application for review of the differently constituted Tribunal’s decision. On 3 March 2016, those orders were set aside by the Federal Court of Australia and the matter was remitted to the Tribunal for reconsideration.

7. By letter dated 22 June 2016, the Tribunal invited the applicants to attend a hearing on 4 August 2016 to give evidence and present arguments, which the applicants attended.

8. The Tribunal in its reasons identified the background to the application for review and set out the relevant law. The Tribunal summarised the applicants’ claims.

9. The Tribunal found that the first applicant’s claim that she was unaware that she could apply for protection in Australia lacked credibility. The Tribunal found that the first and second applicants delayed applying for Protection visas because they wanted to continue working and earning an income using their false identities in Australia.

10. The Tribunal referred to the applicants’ claimed fear or concern in respect of the pollution in China. The Tribunal found that that does not amount to serious harm within the meaning of the complementary protection provisions.

11. The Tribunal referred to the second applicant’s claims in respect of his employer and creditors. The Tribunal was not satisfied that there is a real chance the first and second applicants will be persecuted by customers or creditors due to debts incurred by the second applicant’s former employer if they return to China in the reasonably foreseeable future.

12. The Tribunal referred to the first and second applicant’s claims in respect of the practice of Falun Gong. The Tribunal was not satisfied that the first or second applicant are, or have been, Falun Gong practitioners and intend to practice Falun Gong in China in the foreseeable future.

13. The Tribunal found that the applicants did not have a well-founded fear of persecution by reason of religious or imputed political opinion.

14. The Tribunal referred to the Christian beliefs of the first and second applicants. The Tribunal was satisfied that the first applicant is an ordinary Christian practitioner and will be able to continue to attend a registered Christian church and practice her religion if she returns to China in the foreseeable future. The Tribunal was not satisfied that there is a real chance the first applicant will face persecution in China because she has been baptised and will attend Christian church services. The Tribunal found that the first applicant’s fear of persecution because of her religious beliefs is not well-founded.

15. The Tribunal was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk they would suffer significant harm.

16. The Tribunal referred to the applicants’ family planning claims and took into account country information. The Tribunal found that the third and fourth applicants were not born in contravention of China’s family planning laws. The Tribunal, applying a forward-looking test, was not satisfied that there is a real chance the first and second applicants will have to pay social compensation fees or fines because they have two children when they return to China. The Tribunal found that there is no breach of the family planning laws by the first and second applicants. The Tribunal found that the third and fourth applicants are legally entitled to hukou, which will enable them to access basic education and health care as well as official recognition and registration as citizens upon return to China in the reasonably foreseeable future.

17. The Tribunal referred to the first applicant’s claims concerning forced sterilisation and contraception. The Tribunal found that the first applicant does not face a real chance that she will be forced to undergo sterilisation or insertion of an IUD into her uterus upon return to China in the reasonably foreseeable future. The Tribunal also found that the first applicant does not face a real risk of significant harm in that regard.

18. The Tribunal referred to the first applicant’s claimed fear of forced sterilisation or IUD contraception. The Tribunal did not accept that there is a real chance the first applicant will be pressured or coerced by the local authorities to have to choose between sterilisation or insertion of an IUD and deny her children the access to the rights associated with hukou if she returns to her home province.

19. The Tribunal was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first applicant being removed from Australia to China, there is a real risk she will be subjected to cruel or inhumane treatment or punishment or be subjected to degrading treatment or punishment by being pressured into undergoing sterilisation or IUD contraception.

20. The Tribunal found that the third and fourth applicants’ fears of persecution as members of the social group of children of mothers in China who objected to or resist undergoing an IUD insertion or tubal ligation surgery is not well-founded. The Tribunal found that the third and fourth applicants would not face a real chance of being denied household registration if returned to China in the reasonably foreseeable future.

21. The Tribunal accepted that the first and second applicants departed China illegally on false Korean passports. Taking into account country information, the Tribunal was not satisfied that there is a real chance the applicants will face persecution. The Tribunal accepted that the first and second applicants may be charged and fined by the Chinese authorities because they departed China in breach of the exit and entry laws. The Tribunal found that those laws were of general application and are not applied in a discriminatory fashion. The Tribunal also found that the first and second applicants had access to funds to meet the fine that may be imposed.

22. The Tribunal was not satisfied that the first and second applicants are of interest to the authorities. The Tribunal was satisfied that any risks the first and second applicants are likely to face are ones that will be faced by the population generally.

23. In these circumstances, the Tribunal found that there are not substantial grounds for concluding that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk they would suffer significant harm in terms of s 36(2)(aa) of the Act.

24. The Tribunal referred to the applicants being failed asylum-seekers. The Tribunal was not satisfied that there is a real chance the applicants will face persecution if they return to China as failed asylum-seekers. The tribunal found that the applicants failed to meet the criteria in ss 36(2)(a) and 36(2)(aa) of the Act.

25. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 11 January 2017. On 29 March 2017, a Registrar of the Court made orders providing the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the first and second applicants the nature of the hearing and the first and second applicants confirmed they understood the nature of the hearing as explained by the Court.

3. From the bar table, the first applicant referred to her concerns in respect of being a Falun Gong practitioner. This was a claim which was expressly considered by the Tribunal. The Tribunal found that the applicants do not face a real risk or real chance of significant or serious harm by reason of the alleged claim of the first applicant being a Falun Gong practitioner.

4. From the bar table, the first applicant raised the issue of the second applicant’s creditors. This is a claim also addressed by the Tribunal. The Tribunal made adverse findings in respect of that claim.

5. From the bar table, the first applicant raised the issue of child hukou. The Tribunal also addressed that claim. The Tribunal made findings that the third and fourth applicants were not the subject of breaches of the family planning laws and would be able to obtain hukou.

6. From the bar table, the first applicant raised the issue of the insertion of an IUD. This is a clam also addressed by the Tribunal. The Tribunal made adverse findings in respect of the applicants’ claims in that regard.

7. From the bar table, the first applicant also raised that her daughter was allegedly now an Australian citizen and cannot speak Mandarin. Neither of these propositions were claims raised before the Tribunal. A claim not raised before the Tribunal is not capable of giving rise to any relevant error.

8. Nothing said by the first applicant from the bar table did other than invite the Court to engage in merits review. This Court does not have power to review the merits, nor can the Court decide the matter on compassionate or discretionary grounds. No jurisdictional error arises by reason of anything said by the first applicant from the bar table.

9. From the bar table, the second applicant identified that this case has been going for a substantial period of time, which it was suggested was eight years and that they had been in Australia for seventeen years.

10. The Court can understand the reference to eight years being a reference to the delegate’s decision, which was on 17 December 2013. The proceedings in this Court, however, were only commenced in January 2017. Further, it was the applicants who arrived in Australia unlawfully using false passports and who did not apply for protection in Australia until 30 October 2012. The delay in the determination of the proceedings is not something which gives rise to any relevant error by the Tribunal.

11. Nothing said by the second applicant identifies any jurisdictional error.

12. No jurisdictional error arises by reason of anything said by the applicants from the bar table.

The grounds

1. The grounds in the application are as follows:

   1. The Assessor failed to properly consider all of my claims;

   2. The Assessor didn’t give me a chance to comment on one aspect of my claims.

Ground 1

1. In relation to the ground 1, there is no claim which has been identified that the Tribunal failed to consider. On the face of the material before the Court, the applicants had a real and meaningful hearing before the Tribunal and the Tribunal’s reasons reflect an active intellectual engagement with the applicants’ claims. The adverse findings were open for the reasons given by the Tribunal, as summarised above. The adverse findings cannot be said to be illogical, irrational or unreasonable. No jurisdictional error arises by reason of ground 1.

Ground 2

1. In relation to ground 2, there is no aspect of the applicants’ claims that has been identified upon which the applicants failed to have an opportunity to comment. Without particulars, this ground is incapable of identifying any jurisdictional error. On the face of the material before the Court, it is apparent that the Tribunal raised with the applicants at the hearing the issues of concern in respect of the applicants’ claims. On the face of the material before the Court, as identified above, the Court is satisfied that the applicants had a real and meaningful hearing. No jurisdictional error arises by reason of ground 2.

2. As the application fails to make out any jurisdictional error, the application is dismissed.

I certify that the preceding forty-one (41) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 11 November 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  16 January 2020