AHG15 v Minister for Immigration

[2015] FCCA 1077

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHG15 v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1077

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – no jurisdictional error.

PRACTICE AND PROCEDURE – summary dismissal – proceedings summarily dismissed.

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10

Migration Act 1958, ss.36(2)(a), 36(2)(aa), 476, 476A

Spencer v the Commonwealth of Australia (2010) 241 CLR 118

Applicant: AHG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 825 of 2015

Judgment of: Judge Street

Hearing date: 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Sydney

Delivered on: 23 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitor for the Respondent: Ms N. Senanayake
DLA Piper Australia

ORDERS

1. The proceedings be summarily dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $1367.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 825 of 2015

AHG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within this Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 2 March 2015, affirming a decision of the delegate not to grant the applicant a Protection (class XA visa).  The applicant is the mother of a young child and the applicant was found to be a citizen of China and her claims were assessed against that country.

2. The applicant arrived in Australia on a student visa on 14 March 2008, which expired on 15 March 2010.  The applicant applied for a protection visa on 31 July 2013 and attended an interview with the delegate on 3 February 2014 and the delegate refused the application on 21 May 2014.  In the application for review, the applicant identified on 13 October 2014, the applicant’s authorised recipient nominated email as the preferred method to receive correspondence.

3. On 14 October 2014, the applicant’s authorised recipient confirmed the authority to receive correspondence by email.  On 28 January 2015, the Tribunal sent by email to the authorised recipient a letter inviting the applicant to attend a hearing on 26 February 2015.  The applicant was informed in that letter that if the applicant did not attend, the Tribunal would make a decision without further notice.  The Tribunal noted that no response was received and that the applicant did not appear at the time of the date of the hearing. The notification of hearing complied with the statutory requirements.

4. It was open to the Tribunal in the circumstances to proceed to make a decision in accordance with s.426A of the Act to make its decision on the review without taking any further action.  The application identifies the following grounds:

   1. Authorised recipient did not receive any letter from RRT to invite me to attend RRT interview. If give me the opportunity to attend the interview, then I would explain the concerns rose in the RRT decision record. For all I know, before interview RRT would send a letter “invitation to appear before the tribunal” to applicant and request applicant to response to hearing invitation. If the applicant did not make a response, RRT officer would call authorised recipient and applicant to make confirm. Firstly, authorised recipient did not receive invitation letter. Moreover, neither authorised recipient nor I received any call. After received refusal letter, authorised recipient has sent email to RRT officer explaining the situation and wish RRT would give me second opportunity. However, RRT did not accept this request. Losing the second interview opportunity is very unfair for me. Appealing to Federal Circuit Count is my only choice.

   2. RRT did not meet immigration law requirements during the hearing. RRT claim that I did not provide sufficient evidence for the Tribunal to be satisfied that my family was involved in protests against the Fuqing Nuclear Power Plant or I did not have money to pay compensation.

   Firstly, according to the law, I was not required to know the operation process. I was not able to know how to provide evidence. According to the law, my own evidences should be adopted based on these. Additionally, as mentioned before, if I would attend the second interview, I could explain and provide evidences. For example, in Para 15 in RRT decision, “where she was able to get the money from for birth of her daughter in a NSW hospital (she suggested at the Departmental….the complied with any such request. I have attached the letter from Australian Red Cross and NSW Refugee Health Service to support my claim that I got fee waived for the birth of my daughter. The evidences that my family was involved in protests against the Fuqing Nuclear Power Plant were sensitive, so it is not possible for me to get these evidences.

   3. In Para 11, RRT officer thought that the plant being built in Qianxue Village instead of Hanyao Village. However, Hanyao Village and Qianxue village belong to Sanshan Town. They are nearby villages. It only takes less than 20 minutes walking from Hanyao Village to Qianxue Village. For locals, there is no difference between Hanyao Village and Qianxue Village.

   4.Regard to the issue delay in seeking protection, it was not necessary to do so since I have legal visa to stay when I first cam Australia. Then I was afraid if I applied protection visa, the Chinese authorities would make trouble for me. I made decision to apply protection visa until my father was arrested in 2013.

5. The first respondent moved to have the proceeding summarily dismissed.  I agree with the first respondent’s submission that the application failed to disclose any arguable jurisdictional error and I accept the first respondent’s submission that the applicant was clearly invited to attend a hearing in compliance with the procedures under the Act and that the Tribunal was entitled, in the circumstances, to proceed to make a decision.  I accept the first respondent’s submission that the other matters identified by the applicant in the alleged grounds are an impermissible challenge to the findings of fact made by the Tribunal.  This Court does not have authority to engage in a merits review.

6. I accept the first respondent’s submission that the application fails to disclose any arguable case and is clearly doomed to failure. I take into consideration in respect to the Court’s summary dismissal powers under s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001) the principles and caution identified in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60].

7. The applicant identified that the Tribunal failed to listen to her submissions, though it is clear that the applicant failed to attend the hearing and nothing said by the applicant identifies any arguable jurisdictional error.  The Tribunal carefully identified the applicant’s claims in evidence and relevantly found:

   12. The applicants have not provided sufficient evidence for the Tribunal to be satisfied that the mother applicant and her family were involved in protests against the Fuqing Nuclear Power Plant or that they have been assaulted, detained, monitored, forced to flee or threatened as a result. The Tribunal is not satisfied that there is a real chance of either or both the applicants suffering serious harm because of any protests associated with the Fuqing Nuclear Power Plant.

   13. On the basis of the birth certificate provided and the medical evidence which appears on the Departmental file in relation to the applicant’s bridging visa application, the Tribunal accepts that the child applicant is the daughter of the mother applicant. The mother applicant has consistently claimed that she is not married and the birth certificate does not contain any father’s name. Therefore the Tribunal is willing to accept that the child applicant was born out of wedlock.

   15. As the Tribunal has accepted that the child applicant was born out of wedlock, it follows that the Tribunal accepts that a social compensation fee will be payable in order for her to be registered in China. However, without further evidence the Tribunal is not satisfied that the mother applicant would be unable to pay such a fee. Had she attended the hearing the Tribunal would have discussed with her what financial resources she has (such as bank accounts or assets), where she was able to get the money from for the birth of her daughter in a NSW hospital (she suggested at the Departmental interview that she would ask the Red Cross for this but there is no evidence to suggest that they complied with any such request), whether she is in contact with the child applicant’s father or his family who might be able to provide financial assistance, whether her brother in Indonesia could provide financial assistance or whether her parents in China could provide financial assistance. The Tribunal would have tested the credibility of her evidence to the delegate that she has not been in contact with the child applicant’s father since he asked her to have an abortion and moved out on 4 June 2013 (which is more than a month before she had a six week ultrasound raising concerns for the Tribunal about whether she knew of the pregnancy at such an early stage) and that her own father is unable to support her financially because he is detained in an unknown location.

8. The Tribunal identified the matters that would have been raised with the applicant, had she attended the hearing, in para.16 and proceeded to make findings as follows:

   17. The applicants have not provided sufficient evidence to satisfy the Tribunal that the social compensation fee could not paid and that the child applicant could not be registered. If the child applicant was registered the Tribunal would have discussed with the mother applicant whether there were any impediments to her attending school, as it appears to the Tribunal that there is no evidence to suggest that she would be denied an education once registered.

   18. The mother applicant referred to fears that she and the child applicant would be subjected to discrimination because the child applicant was born out of wedlock and the father is no longer present. Had the applicants attended the hearing the Tribunal would have discussed with them country information about the treatment of unwed mothers and their children. DFAT provided advice in 2004 on the treatment of children born out of wedlock (in Guangdong), noting that ‘being a child out of wedlock still attracts some degree of social stigma’. However, the DFAT report also advised that the children ‘might be subject to bullying or teasing at school, but are unlikely to suffer serious social disadvantage’. In 2010 Dr. Alice de Jonge provided additional advice to the RRT on the treatment of children born out of wedlock in China. Dr. de Jonge advised:

   Such children are still regarded with pity and disdain. They are teased at school. Single mothers are subject to discrimination when it comes to accessing housing, education and medical services.

   19. Regarding the treatment of such children in Fujian specifically, Dr. de Jonge advised:

   Fujian is a relatively prosperous province in SE China. It is not the worst place to be a child born out of wedlock. Nor the best. The private sector is active in Fujian so that access to employment is at a reasonable level, even for single mothers, depending upon qualifications.

   20. The country information set out above raises concerns for the Tribunal about whether the applicants will face societal discrimination, stigma or ostracism that is sufficiently serious to constitute ‘serious harm’ (having regard to the examples provided in s.91R(2) of the Act). Had the applicants attended the hearing the Tribunal would have discussed with the mother applicant what the attitude of her family would be to herself and the child applicant, whether she knew of any other single mothers in her area and whether there were any support systems for single mothers and their children. The applicants have not provided sufficient evidence for the Tribunal to be satisfied that there is a real chance of either or both the applicants suffering serious harm because of the birth of the child applicant out of the wedlock and return to China without a father.

   20. As the Tribunal finds the applicants have not provided sufficient evidence to support their claims it is not satisfied the applicants have a well-founded fear of persecution for a Convention reason should they return to China.

   21. As the Tribunal finds the applicants have not provided sufficient evidence to support their claims it is not satisfied the applicants have a well-founded fear of persecution for a Convention reason should they return to China.

9. It was in those circumstances that the Tribunal made adverse findings in relation to complementary protection:

   23. As discussed above the applicants have not provided sufficient information for the Tribunal to be satisfied that the mother applicant and her family were involved in any protests against the Fuqing Nuclear Power Plant or that they have been assaulted, detained, monitored, forced to flee or threatened as a result. In addition, as discussed above, the applicants have not provided sufficient information for the Tribunal to be satisfied that the mother applicant would be unwilling and/or unable to pay the social compensation fee to have the child applicant registered in China, that if she was registered she would be denied education or that the harm suffered as a single mother or child born out of wedlock would constitute significant harm.

   24. As the Tribunal finds the applicants have not provided sufficient evidence to support their claims it cannot be satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to China, there is a real risk that either or both of them will suffer significant harm.

10. The Tribunal found that the applicant was not a person in respect of whom Australia had protection obligations and was not satisfied that the applicant met the criteria under s.36(2)(a) or 36(2)(aa) for a Protection (Class XA) visa. The findings of the Tribunal are clearly open. The findings cannot be said to lack an evident and intelligent justification. There is no jurisdictional error by the Tribunal in proceeding to determine the matter. The application is doomed to failure. I am clearly satisfied the proceedings have no reasonable prospect of success. The proceedings are summarily dismissed.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  29 April 2015