ADT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affair
[2020] FCA 1685
•23 November 2020
FEDERAL COURT OF AUSTRALIA
ADT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1685
Appeal from: ADT17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCCA 3242 File number: WAD 592 of 2019 Judgment of: COLVIN J Date of judgment: 23 November 2020 Catchwords: MIGRATION - appeal from decision of Federal Circuit Court dismissing application for judicial review of a decision of the Administrative Appeals Tribunal - where Tribunal affirmed decision to refuse appellants' applications for protection visas - where matter remitted to Tribunal after previous appeal allowed by Federal Court - whether citizenship of first appellant's child a basis upon which appeal could be allowed - whether failure by Tribunal to consider claims - appeal dismissed Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 19 November 2020 Counsel for the First and Second Appellants: The First and Second Appellants appeared in person with the assistance of an Interpreter Counsel for the Respondent: Ms EL Tattersall Solicitor for the Respondent: Sparke Helmore Lawyers ORDERS
WAD 592 of 2019 BETWEEN: ADT17
First Appellant
ADU17
Second Appellant
ADW17 BY HIS APPOINTED LITIGATION REPRESENTATIVE ADT17
Third Appellant
ADV17 BY HER APPOINTED LITIGATION REPRESENTATIVE ADT17
Fourth Appellant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
COLVIN J
DATE OF ORDER:
23 NOVEMBER 2020
THE COURT ORDERS THAT:
1.Appeal dismissed.
2.The first and second appellants pay the first respondent's costs fixed in the sum of $3,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
COLVIN J:
The first and second appellants are wife and husband. They are citizens of China. They arrived in Australia without a visa in 2004 using fake Korean passports. Since then they have lived and worked in Australia. They have two children, a daughter and son both born in Australia, being the third and fourth appellants. The children were born in 2008 and 2011 respectively. Their mother, the first appellant, has been appointed as their litigation representative in the appeal.
At the hearing of the appeal, the first appellant made oral submissions on behalf of all appellants. The second appellant was present in Court and confirmed that the first appellant spoke on his behalf.
The family lived in Australia without any visas until 2012 when they began the process of seeking a protection visa. The application as made relied upon claims by the first and second appellants with the children joining in the application on the basis of membership of the family group. The application was refused. An administrative appeal to the Refugee Review Tribunal was unsuccessful as was an application for judicial review in the Federal Circuit Court. However, in March 2016, an appeal to this Court was successful and the matter remitted to the Administrative Appeals Tribunal on the basis that a particular claim advanced in support of the application was not considered.
In December 2016 following a further hearing in the Tribunal (differently constituted) the decision to refuse the application was affirmed. An application for judicial review was brought in the Federal Circuit Court. It relied upon two grounds of alleged jurisdictional error. First, that there was a failure to consider all claims. Second, that a chance to comment was not given on one aspect of the claims. It appears that before the primary judge submissions were made as to a number of the claims that had been raised before the Tribunal. As to all of those matters the primary judge found that they had been considered by the Tribunal. One of the matters raised concerned a claim that the third appellant was an Australian citizen. As to that claim the primary judge said (at [32]):
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.
Both review grounds were addressed by the primary judge and the application was dismissed on the basis that there had been a failure to make out any jurisdictional error.
The appellants now appeal against the decision of the primary judge. They raise two grounds being expressed in the following terms (which reflect the fact that the appeal is brought without legal representation):
1.Third applicant … gained Australian Citizenship on 9th Oct 2018, this was not in the initial application.
2.The Assessor failed to properly consider all of my claims.
With the assistance of an interpreter, the first appellant presented a concise, eloquent, sincere and emotional summary of the history of the circumstances of the appellants. She explained their arrival using fake Korean passports. She expressed remorse for their conduct and apologised for not being able to provide material in writing before the hearing. It appeared from her statements to the Court that the first and second appellants have been gainfully employed and her children have been progressing through school and that she has a very genuine concern for the emotional consequences for her children if they were required to return to China.
After presenting the history, the first appellant was asked to explain the complaints that were raised by the two grounds.
As to the ground concerning the third appellant, she said that her daughter had been issued with a certificate to the effect that she was an Australian citizen and that had occurred on 9 October 2018. She said that the certificate could be provided. It was explained to the first appellant that a person who was an Australian citizen would not need a protection visa. Also, that being an Australian citizen was not a reason why such a visa should be issued. No further explanation was provided as to why the claim of citizenship said to have arisen after the matter was considered by the Tribunal might provide a basis upon which the appeal might be allowed. I cannot see any such basis. If the claim of citizenship of the daughter is to be relied upon as a basis upon which the family should be allowed to stay in Australia then that is a matter that the family will need to raise by some other application. It is not a matter that supports the appeal in respect of the decision of the primary judge concerning the decision of the Tribunal to affirm the refusal of the protection visa.
As to the ground to the effect that there was a failure to consider any claims, the first appellant was asked to explain the matters that were said to have been not considered by the Tribunal. The first appellant candidly accepted that the matters raised were referred to in the reasons given by the Tribunal. Her feeling was that the claims were not given proper evaluation because the entry into Australia on false passports affected the credibility of the appellants. It is not the case that the reasoning of the Tribunal rested on a concern about credibility that was confined to the fact that false passports were used. The Tribunal's reasoning addressed many matters as a basis for not accepting the claims made.
The claim that led to the first decision of the Tribunal being set aside was addressed by the Tribunal in the further decision that was the subject of the review application heard and determined by the primary judge. It is not evident from a consideration of the reasons that the matters addressed were not the subject of the required degree of active intellectual engagement.
In the course of oral submissions on the present appeal, some emphasis was placed upon the fact that it would not be good for the mental health of the children if they were now to be returned to China. It was said that they were now familiar with culture in Australia and did not speak Mandarin and this would affect their schooling in China and their ability to fit into the community in China. Also the first appellant was concerned that her daughter was now of an age where those effects would be considerable and it would be inhumane and cruel to separate the family. These matters reflect the current circumstances that have arisen through the passage of time since the matter was before the Tribunal, as indeed was accepted in the submissions advanced by the first appellant.
As was submitted for the Minister there was no claim of that kind advanced before the Tribunal. An issue as to the effect on the health of the children of the high level of pollution in China was raised. However, the Tribunal observed that the claim was not expanded upon and the Tribunal was not provided with any medical reports or evidence about the health of the children (para 44). It is to be noted that claims of jurisdictional error based upon such matters were not raised before the primary judge.
In those circumstances, the submissions made did not rise to articulating a basis upon which jurisdictional error in the decision of the Tribunal may be demonstrated.
The first appellant was invited to state any other matter of concern in support of the appeal. No other matter was raised.
It follows that no error has been demonstrated in the decision or reasoning of the primary judge. The decision was correct for the reasons that were given by the primary judge. The appeal must be dismissed.
As to costs, the Minister sought an order fixing costs in the amount of $4,500. I am satisfied that it is appropriate to fix costs, but having regard to the short form amount provided for, the lack of complexity and the manner in which the case was presented for the appellants I would fix costs in the amount of $3,000.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Colvin. Associate:
Dated: 23 November 2020
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