Apj17 v Minister for Immigration

[2019] FCCA 1657

FEDERAL CIRCUIT COURT OF AUSTRALIA

APJ17 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 1657

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether Administrative Appeals Tribunal’s findings open – whether Administrative Appeals Tribunal considered all claims by the applicant – whether the Administrative Appeals Tribunal had regard to all relevant information – whether the Administrative Appeals Tribunal was biased against the applicant – whether Administrative Appeals Tribunal’s decision affected by a certificate issued pursuant to s.438 of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 438, 474.

Cases cited:

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347

ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996)

185 CLR 259

Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51

NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

FCAFC 10

VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006]

FCAFC 29

MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3

First Applicant: APJ17

Second Applicant: APK17

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 429 of 2017

Judgment of: Judge Emmett

Hearing date: 4 June 2019

Date of Last Submission: 4 June 2019

Delivered at: Sydney

Delivered on: 4 June 2019

REPRESENTATION

Applicant: Appeared in person with the assistance of an interpreter

Counsel for the Respondents: Mr Tim Reilly

Solicitors for the Respondents: Mills Oakley Lawyers

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 429 of 2017

APJ17

First Applicant

APK17

Second Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By application filed on 14 February 2017, the applicant seeks judicial review of a decision of the Administrative Appeals Tribunal dated 2 February 2017 (“the Tribunal”) affirming a decision of a delegate of the first respondent (“the Delegate”) made on 27 February 2015 refusing the applicants a Protection (Class XA) visa.

2. The applicants are citizens of China faith and Chinese ethnicity. The first named applicant (“the Applicant”) made claims for protection on the basis that she would be unable to pay fines to Chinese authorities in China in respect of a breach of China’s family planning regulations as well as issues resulting from the deregistration of the family’s hukou. The second named applicant is the applicant’s de facto partner.

Procedural history

1. The background of this matter, including the Applicant’s first protection visa application, and the Applicant’s second protection visa application, the Applicant’s father’s protection visa application and the Tribunal decision record are accurately summarised in the submissions of counsel for the first respondent as follows:

   “Background

   First applicant's first Protection visa application

   2. The applicants are citizens of China and de facto partners. The first applicant (the applicant) arrived in Australia on a Student visa on 12 May 2007 (CB 59) and lodged her first Protection visa application (PVA1) on 7 March 2011 (CB 1-33).

   3. On 27 April 2011, a delegate found the applicant's fear of persecution was not well founded and refused to grant PVA1 (CB 55-76).

   4. On 25 May 2011, the applicant applied to the Refugee Review Tribunal (RRT) for review and on 24 August 2011, the RRT affirmed the decision not to grant the applicant a Protection visa (CB 93-96).

   Second applicant's first Protection visa application

   5. On 16 January 2013, the second applicant lodged his first Protection visa application and included the applicants' two children as members of the family unit. On 30 July 2013, a delegate refused the Protection visa after considering the second applicant's claims for protection under the refugee criteria and complementary protection provisions (CB 199-216).

   6. On 10 March 2014, the RRT affirmed the decision not to grant the second applicant a Protection visa (CB 228-252).

   Applicant’s father's Protection visa application

   7. On 17 October 2013, the applicant's father lodged a Protection visa application. On 25 March 2014, the applicants and their two children attempted to be included in the applicant's Protection visa application (CB 255-300).

   8. On 3 April 2014, the applicant's father was notified that the applications made by the second applicant and the applicants' children were invalid because reg 2.08A of the Migration Regulations 1994 (the Regulations) was not satisfied (CB 301-305).

   9. On 7 April 2014, the applicant and the applicants' children again purported to include themselves in the applicant's father's Protection visa application (CB 306-340).

   10. On 8 April 2014, the Department wrote to the applicant's father regarding the applicants' requests to be included in his Protection visa application lodged on 17 October 2013. The letter confirmed that the applicant's application was taken to have been combined with her father's, but indicated that the applications for the second applicant and the applicants' children were invalid (CB 344-347).

   Applicant's second Protection visa application

   11. The applicant subsequently withdrew her application as part of her father's application and lodged a second Protection visa application on 8 April 2014 (PVA2) (CB 354-383).  The second applicant and the applicants' children were included in that application.

   12. The applicant claimed to fear returning to China as she would be unable to pay a substantial fine for breaching China's family planning regulations and would be unable to register her children if she could not pay the fine (the family planning claims) (CB 376). She also claimed that: her father had been in Australia for more than 15 years; and his hukou had been deregistered; the family's farm had been divided and shared amongst villagers; the applicant would assert her rights to her father's property if she returned to China; the villagers would try to prevent her and use the family planning regulations breach against her; and the authorities would not protect her (family's farmland claims) (CB 377-378).

   13. On 10 April 2014, the application made by the applicants' children was found to be invalid: s 48A of the Act (CB 390-394). The applicants' children are not parties to the present judicial review proceedings.

   14. On 29 January 2015, the applicant was interviewed by a delegate. At the interview, the applicant confirmed she continued to fear harm for reasons of her religion, as claimed in PVA1. The applicant indicated she was unaware of the claims made in PVA2 and did not know what might happen if she returned to China (CB 442).

   15. In a decision dated 27 February 2015, the delegate refused to grant the applicants a Protection visa (CB 424-448). The applicant's protection claims were only considered under the complementary protection provisions.

   The Tribunal

   16. On 15 March 2015, the applicants lodged an online application with the Tribunal to review the delegate's decision (CB 449-451). A copy of the delegate's decision was provided with the application.

   17. By a letter dated 1 November 2016, the Tribunal invited the applicants to appear before it at a hearing scheduled for 11 January 2017 (CB 471-475). The applicants responded to the hearing invitation (CB 480-482) and attended the scheduled hearing (CB 483-485).

   The Tribunal decision

   18. In a decision dated 2 February 2017, the Tribunal affirmed the delegate's decision to refuse the applicants a Protection visa (CB 518-533).

   19. The Tribunal was not satisfied that the applicant's religious claims were credible. On the basis of her evidence that she seldom attended Church in Australia and that she and her husband had not attended church for a long time, the Tribunal "had considerable difficulty" accepting the applicant would attend an underground Christian gathering if she returned to China (CB 527, [58]-[59]). The Tribunal also found the second applicant's evidence about his religious practice and expectations lacked credibility. It found he contradicted himself about his religious practice and that his evidence about his manner of private study was "vague and unconvincing" (CB 528-529, [60]). The Tribunal found further that the applicant's claim that she would attend Christian church gatherings as her mother and parents in law were Christian and attended such gatherings was "unpersuasive" given she was an adult and her lack of recent church attendance in Australia (CB 528, [61]).

   20. The Tribunal doubted the applicant was, or had ever been, a Christian and found her credibility was "severely undermined" by the discrepancy between her evidence in relation to PVA1 that she and her siblings had been arrested with her parents and grandparents whilst attending a Christian gathering in October 2004 and her evidence at the Tribunal hearing where she denied having ever been arrested (CB 528, [62]).

   21. The Tribunal also found the applicants' failure to get married despite having two children appeared on its face to contradict their claimed religious beliefs. It did not accept they had any genuine obstacles to marrying in Australia if they had so wished (CB 528, [63]).

   22. The Tribunal was not satisfied on the basis of the totality of the evidence that the applicants were Christians or that the applicant had suffered any past harm because of her or her family's attendance at Christian gatherings. It also did not accept the applicant sent Christian materials to China and was not satisfied there was a real risk that the applicant would attend Christian gatherings in China, would be perceived as a Christian or suffer any form of harm as a consequence of such perception (CB 528, [64]).

   23. The Tribunal accepted the applicant had resiled from the written claims in PVA2 about her family's farmland and noted she indicated at the hearing that she was not aware that these claims had been made and that she had no knowledge of her father's property. The Tribunal was therefore not satisfied she faced a real risk of harm for this reason (CB 528, [65]).

   24. On the basis of its assessment of country information, the Tribunal did not accept the applicant faced a real risk of harm on the basis of her family planning claims. The Tribunal (at CB 528, [66]) noted the country information indicated that the applicants would be subject to new family planning regulations implemented in Fujian province in February 2016, which permitted them to have two children (although the prohibition on giving birth out of wedlock continued to apply). The Tribunal accepted the applicants' children were born out of wedlock but noted they had expressed an interest in getting married if they returned to China. The Tribunal also noted the country information indicated that a social compensation fee would be imposed for such a breach. Whilst it found the actual amount of the fee was "difficult to discern", it considered the applicant's position if a fee of RMB90,000 per child was imposed (CB 528-529, [67]).

   25. The Tribunal noted the country information also indicated that: the fee could be paid in instalments; children were not denied household registration whilst any fee remained unpaid; the methods used to secure payment included personal pressure through calls and visits and legal proceedings; and the remedial measures used under the previous regulations (such as forced sterilisation) no longer applied and were unlikely to be used in Fujian province. According, the Tribunal was not satisfied there was a real risk of such measures being used against the applicant (CB 529, [68]).

   26. The Tribunal was not satisfied the applicants faced a real risk of significant harm from the imposition of a social compensation fee or from attempts by the authorities to enforce payment of the fee because the applicants were both young, educated and had Australian work experience, and the applicant had the support of her mother and parents-in-law in China. In addition, the Tribunal found there was no evidence to indicate they would not be able to work, earn an income and be able to repay the fee in instalments. It found the imposition of a social compensation fee and enforcing its payment were lawful sanctions that were not inconsistent with the Articles of the ICCPR (CB 529, [69]-[70]). Nor did the Tribunal accept there was real risk that the applicant would face harm or discrimination in China for being an unwed mother given the applicants' evidence that they would marry if forced to return to China (CB 529, [71]).

   27. For these reasons, the Tribunal was not satisfied the applicant met the complementary protection criterion under s 36(2)(aa) of the Act (CB 529, [73]), noting it was unable to consider her claims against the criterion in s 36(2)(a) of the Act. Nor was it was satisfied that the second applicant met the criterion in s 36(2)(c) of the Act. (CB 529, [74]).”

2. The Applicant was unrepresented before this Court, although had the assistance of an interpreter. I explained to the Applicant that the role of this Court is very different to that of the Tribunal and that it was limited to whether or not the Tribunal’s decision had been made according to law or was affected by some mistake that went to the Tribunal’s jurisdiction. I explained that disagreement with the findings and conclusions of the Tribunal rarely by itself establish such a mistake. 

3. The Applicant attended a directions hearing on 1 June 2017 before a registrar of this Court. On that occasion the Applicant was given leave to file an amended application, any further evidence and submissions in support of her judicial review application. The Applicant was also provided at the directions hearing with the contact details of legal services providers and translating and interpreting services in documents headed in her own language. 

4. The Applicant confirmed that she had not filed any documents either in accordance with those directions or otherwise and had none to provide to the Court this morning.

Grounds

1. The Applicant confirmed that she continued to rely on the grounds of her initiating application, filed on 14 February 2017, which are as follows:

   “1. The Tribunal fell in jurisdictional error by failing to consider the applicants’ claims.

   2. The Tribunal fell in jurisdictional error by failing to provide evidence to support its findings.

   3. The Tribunal fell in jurisdictional error by failing to comply with s424A.

   4. The Tribunal failed to consider relevant matters.

   5. The Tribunal failed to give opportunity to comment or additional time to make submission in writing.”

2. Each of those grounds was interpreted for the Applicant and she was invited to say whatever she wished in support of those grounds. 

Ground 1

1. I asked the Applicant what was the claim or what were the claims that the Tribunal had failed to consider and she said that it was the claims of her children.

2. I note that the Tribunal referred in its decision record to the visa application history which had initially included the children, but that their visa applications were found to be invalid by the department.  The Tribunal set out the history as follows:

   “13. According to information provided in the visa application forms, the first and second applicants are de facto partners born in Fujian, China. The visa application initially included the applicants' two children, born in Australia in 2011 and 2012 respectively. The children's visa applications were, however, found to be invalid by the Department on the basis that they were included as members of the family unit in the protection visa application made by the second applicant on 3 January 2013. As such, their applications were prevented by s.48A of the Migration Act.

   14. Only the first named applicant, hereafter referred to as "the applicant", submitted a Part B application form making claims for protection.

   Immigration history

   15. The delegate's decision sets out the applicant's immigration history. The applicant arrived in Australia as the holder of a student visa in May 2007. The applicant was permitted to remain in Australia until 15 March 2009. On 11 May 2009, the applicant voluntarily approached the Department as an unlawful non-citizen and was granted a Bridging visa E to enable her to depart. On 15 May 2009, the applicant lodged a further application for a student visa which was refused. The applicant's bridging visa ceased on 25 May 2009 and she became an unlawful non-citizen once again. The applicant remained in the community until lodging her first protection visa application on 7 March 2011. The applicant has held a series of bridging visas since that time.”

3. In the circumstances, there was no jurisdictional error on the part of the Tribunal for failing to consider the Applicant’s children’s claims. 

Ground 2

1. I asked the Applicant if there was anything further she wished to say in support of ground 2, which asserts that the Tribunal fell into jurisdictional error by failing to provide evidence to support its findings. The Applicant said that she did not know how to put it.

2. It is well established that the Tribunal is not obliged to accept uncritically any and all allegations made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

3. The Applicant attended a hearing before the Tribunal. The Tribunal set out in its decision record the claims made by the Applicant, the Departmental interview, the Delegate’s decision and summarised various exchanges that it had with the Applicant at the Tribunal hearing on 11 January 2017. The Tribunal also put to the Applicant matters of concern that it had about her evidence and noted the Applicant’s responses. 

4. The Tribunal also identified with specificity the country information to which it had regard. Ultimately, the Tribunal rejected the Applicant’s claim to be a Christian and to be at risk of persecution in China for that reason. 

5. The Tribunal accepted that the Applicant may be required to pay a social compensation fee because of the two children that she had in Australia. However, the Tribunal found that such conduct by the authorities did not amount to significant harm. Ultimately, the Tribunal concluded that the Applicant was unable to satisfy the complementary criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”). 

6. In rejecting the Applicant’s claim to be a Christian, the Tribunal referred to the Applicant’s own evidence that she seldom attends church in Australia, that neither she nor the second applicant have attended church in Australia for a long time. The Tribunal noted that it had considered the second applicant’s evidence regarding his religious practice and expectations, but found the second applicant’s evidence to be lacking in credibility. 

1. The Tribunal found the Applicant’s evidence to be contradictory, vague and unconvincing. The Tribunal found the applicant’s credibility to be severely undermined by the discrepancy between her evidence in relation to her first protection visa application and that presented in relation to the current application.

2. The Tribunal’s findings were open to it on the evidence and material before it, and for the reasons it gave, including its adverse credibility findings. The Tribunal’s credibility findings were based on rational grounds and arrived at after considering those factors that were logically probative of the issue of credibility. The Tribunal’s findings were not tainted by any failure to afford procedural fairness; reaching a finding without a logical or probative basis; or unreasonableness; and, were not without an intelligible foundation (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ).

3. To the extent that ground 2 appears to assert that the Tribunal failed to provide evidence to support its findings. Without more, that complaint appears to be no more than a disagreement with the findings and conclusion of the Tribunal.

4. In the circumstances, ground 2 does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The applicant's complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

   "It was not for the Federal Magistrate's Court, nor for this Court, to review the merits of the RRT's decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356."

Ground 3

1. Ground 3 asserts that the Tribunal fell into error by failing to comply with s.424A of the Act. I asked the Applicant if she knew what s.424A of the Act said and she answered that she did not. I explained to the Applicant the consequence of s.424A in that the Tribunal must give her information for comment that may be the reason or part of its reason for affirming a decision under review. I then asked the Applicant what was the information that the Tribunal was obliged to give her and the Applicant said she did not know.

2. There is no information on the face of the Tribunal’s decision record that enlivens any obligation under s.424A of the Act. The country information referred to by the Tribunal is excluded by s.424A(3) of the Act.

3. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

4. There is no other information that was either identified by the Applicant or is apparent from the Tribunal’s decision record that would have enlivened any obligation under s.424A of the Act.

Ground 4

1. Ground 4 asserts that the Tribunal failed to consider other relevant matters. I asked the Applicant what were the relevant matters that the Tribunal had failed to consider and the Applicant said she did not know. In the absence of any further elaboration of that complaint, ground 4 is no more than a bare assertion that does not identify any error capable of review by this Court. 

Ground 5

1. Ground 5 asserts that the Tribunal failed to give the Applicant an opportunity to comment or additional time to make submissions in writing. I asked the applicant if she had asked the Tribunal for an opportunity to make further submissions in writing or additional time and the Applicant said that she had not made any such request. 

2. As stated above, the Tribunal explored the Applicant’s claims with her at the hearing and put to her during the hearing various aspects of her claims which concerned the Tribunal.

3. In the circumstances, ground 5 is not capable of identifying any jurisdictional error.

Non-disclosure Certificate

1. Counsel for the first respondent, Mr Reilly, also took the Court to two non-disclosure certificates, dated 28 April 2011 and 18 March 2015, in respect of folios purportedly not disclosed pursuant to s.438(1) of the Act. All the folios identified were reproduced in the Amended Court Book, filed on 24 May 2019 and marked exhibit 1R.

2. The first respondent accepts that the non-disclosure certificates on their face are invalid in accordance with the reasons given by Beach J in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. However, the first respondent contends that the documents, subject of the certificate, could not have been of any material relevance to the Tribunal’s review. The Tribunal’s decision record makes no mention of the existence of either of the certificates.

3. Any breach by the Tribunal in failing to give the documents, the subject of the certificate, to the applicant must be material and have the effect of denying the applicant the possibility of a successful outcome (see Minister for Immigration and Border Protection v SZMTA [2019] HCA 3) (“SZMTA”).

4. The documents, the subject of the certificates, have been identified by counsel for the first respondent. None is material. In the circumstances, the failure to disclose the s.438 certificate and documents could not realistically have made any difference to the Tribunal’s decision in affirming the decision under review.

5. As stated by Mr Reilly in his submissions, materiality, whether a breach of procedural fairness in a case of an undisclosed notification or of a breach of an inviolable limitation governing the conduct of the review in the case of an invalid notification is essential to the existence of jurisdictional error. A breach is material to a decision only if compliance can realistically have resulted in a different decision (see SZMTA). 

6. Accordingly, in the circumstances, the failure to disclose the non-disclosure certificates did not deprive the applicants of an opportunity to give evidence or make arguments as to why they satisfied the complementary criterion for the grant of a protection visa, and nor did it deprive them of a possibility of a successful outcome (see SZMTA at [2]).

7. There was a further non-disclosure certificate, dated 25 September 2014, issued in respect of documents relating to the Applicant’s father.  I accept the submission of counsel for the first respondent that such documents are irrelevant to the proceeding before this Court today.

Conclusion

1. In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants, explored those claims with both applicants at the hearing, and identified country information to which it had regard and which it explored with the applicants. The Tribunal then made findings based on the evidence and material before it which were open to it for the reasons it gave. 

2. 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.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. 

4. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere and the proceeding before this Court should be dismissed with costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date:  18 June 2019