Agw16 as litigation guardian of Cpa15 v Minister for Immigration and Border Protection
[2017] FCA 1383
•23 November 2017
FEDERAL COURT OF AUSTRALIA
AGW16 as litigation guardian of CPA15 v Minister for Immigration and Border Protection [2017] FCA 1383
Appeal from: CPA15 by his litigation guardian AGW16 v Minister for Immigration and Border Protection [2017] FCCA 1018 File number(s): NSD 890 of 2017 Judge(s): JAGOT J Date of judgment: 23 November 2017 Catchwords: MIGRATION – appeal against Federal Circuit Court’s decision to affirm the decision of the Administrative Appeal Tribunal affirming the Minister’s delegate’s decision to refuse the appellant a Protection visa – no appealable error – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 422B, 424A Date of hearing: 23 November 2017 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 13 Counsel for the Appellant: AGW16 appeared as litigation guardian for CPA15 Solicitor for the First Respondent: S He, Mills Oakley ORDERS
NSD 890 of 2017 BETWEEN: AGW16 AS LITIGATION GUARDIAN OF CPA15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
JAGOT J
DATE OF ORDER:
23 NOVEMBER 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant’s litigation guardian pay the first respondent’s costs of the appeal as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JAGOT J:
This is an appeal against orders of the Federal Circuit Court of 17 May 2017 dismissing the appellant’s application for review of a decision of the Administrative Appeals Tribunal, in which the Tribunal affirmed the decision of a delegate of the Minister not to grant the appellant a Protection (Class XA) visa. The appellant is a male citizen of the People’s Republic of China and was born in 2013. His mother, father and older sister have all previously made unsuccessful applications for a protection visa. The appellant’s mother is his litigation guardian.
The appellant’s mother lodged an application for a protection visa on the appellant’s behalf in November 2013. It was claimed that he would face harm in China for various reasons, including that he was conceived before marriage, was a second child born in contravention of China’s Family Planning Regulations, that his parents would be unable to pay a social compensation fee as a result of this contravention, and that he was born into a Christian family who had previously suffered harm in China due to the family’s Christian beliefs.
The appellant was represented by a migration agent in dealings with the Department and before the Tribunal. The Tribunal was not satisfied as to the credibility of the appellant’s mother, who gave evidence on his behalf. In particular, the Tribunal found the mother to have given evasive evidence concerning her own financial situation, the financial situation of her parents, and the finances available to her and her husband for payment of fees to register their children in China.
The Tribunal said that, in all of the circumstances, it was not satisfied that the appellant’s parents and grandparents “cannot and will not pay the relevant fees to register the applicant upon return to China” nor was it satisfied that this payment would affect the family’s capacity to subsist such that the appellant would face a real chance of serious harm or a real risk of significant harm (see [132] of the Tribunal’s reasons). The Tribunal was also not satisfied as to the other claims made on behalf of the appellant and reiterated its view that the appellant’s mother had not been truthful about her situation or past events in China (see, for example, [157] of the Tribunal’s reasons).
In the application to the Federal Circuit Court, the appellant relied upon two grounds of appeal. The first was that the Tribunal had denied the appellant procedural fairness in breach of s 422B of the Migration Act 1958 (Cth) in various ways. The second was that the Tribunal had failed to offer the appellant’s mother an opportunity to respond to concerns it had about the evidence relating to financial capacity and thus failed to comply with s 424A of the Act.
In comprehensive reasons, the primary judge rejected both claims. In addition, it is apparent from the primary judge’s reasons that the primary judge gave detailed consideration to the Tribunal’s decision record and concluded in these terms:
47. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant’s mother at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant’s mother matters of concern it had about her evidence and noted her responses. The Tribunal identified with specificity the country information to which it had regard and which it discussed with the applicant’s mother at a hearing.
48. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the appeal to this Court, three grounds are identified as follows:
(1)The decision of the Federal Circuit Court of Australia delivered on 17 May 2017 did not elaborate any reason as to why the grounds on which my judicial review application relied were not made out. Apparently, my grounds for the appeal were not carefully examined, if not being assessed at all.
(2)I am convinced the second respondent erred in applying the subsection s 424AA of the Migration Act, 1958 and subsection s 422B(3) of the Act.
(3)I have enclosed the evidence in support of my appeal. The evidence is as follows;
(a)my recent bank statements (Annexure 1), showing I have been receiving financial assistance from SRSS (Status Resolution Support Services) to raise my two children; with that being so, I do not have other source of income and subsequently, not able to meet the social compensation fee imposed on me once I returned to China.
(b)A copy of my Rental Certificate from Centrelink (Annexure 2), showing my children and I are sharing the unit with two tenants and their shares of the rent are 200 and 150 respectively.
(c)Therefore, my share of the rent is only 220 per week, not 570 dollars per week. I misunderstood the second respondent’s question in regarding to my weekly rent. I thought I was being asked the total weekly rent for the unit. My statutory declaration statement (annexure 3) is annexed in this appeal application.
It is apparent that ground 1 cannot be sustained. The Federal Circuit Court gave detailed consideration to the appellant’s claims. In so doing, the Federal Circuit Court concluded that no legal error was apparent. I am unable to reach any different conclusion.
Ground 2 must also be rejected. It seems that this ground repeats the two grounds which were considered by the Federal Circuit Court. As I have said, I agree with the conclusions of the Federal Circuit Court.
Ground 3 refers to evidence in support of the appeal. I explained to the appellant’s mother that the bank statements and statutory declaration are not annexed to the notice of appeal. She indicated that the only document on which she wished to rely was the rental certificate from Centrelink, which she handed up and which I marked as Exhibit 1 in the appeal.
As the first respondent noted, this rental certificate was not in evidence before the Tribunal. Accordingly, it cannot be relevant to any alleged error of law by the Tribunal. It is apparent that the appellant’s mother wishes to contend that the Tribunal was wrong to conclude that she had sufficient financial resources to pay the social compensation fee. As the first respondent also noted, the difficulty is that the Tribunal reached its conclusions based on the whole of the material before the Tribunal, including all of the evidence which the appellant’s mother had given.
To the extent that the lease was relevant, it was referred to in [123] of the Tribunal’s reasons as a matter identified in the decision of the Minister’s delegate. In circumstances where the appellant was represented by a migration agent, there was opportunity for all relevant material to be made available to the Tribunal. Further, the point that the delegate was making was that the total rent payable was $550 per week, and the delegate did not consider it plausible that a lessor would have entered into the rental agreement without proof that the lessee – that is, the mother – was able to pay the rent in her own right. Nothing in the rental certificate, which is Exhibit 1, could undermine that conclusion.
The appellant’s mother has not identified any matter which would suggest any error of law by the Federal Circuit Court or the Tribunal. The written submissions for the first respondent comprehensively address the history of the matter including the Tribunal’s decision, the reasons for judgment of the Federal Circuit Court, and the three grounds in the notice of appeal and correctly conclude that no appealable error is identified.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot. Associate:
Dated: 23 November 2017
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