Arz18 on behalf of Asb18 v Minister for Immigration

[2019] FCCA 2507

FEDERAL CIRCUIT COURT OF AUSTRALIA

ARZ18 ON BEHALF OF ASB18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 2507

Catchwords:
MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – child applicant – parents’ applications previously rejected – non disclosure certificates issued – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.48B, 417, 424A, 438

Cases cited:

CQG15 v Minister for Immigration (2016) 253 FCR 496
SZMTA v Minister for Immigration (2019) 93 ALJR 252, 363 ALR 599

Applicant: ARZ18 ON BEHALF OF ASB18

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 411 of 2018

Judgment of: Judge Driver

Hearing date: 5 September 2019

Delivered at: Sydney

Delivered on: 5 September 2019

REPRESENTATION

The Applicant’s litigation guardian appeared in person

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the first respondent is amended to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. The application is dismissed.

3. The applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 411 of 2018

ARZ18 ON BEHALF OF ASB18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 24 January 2018.  The Tribunal affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.  Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 27 August 2019. 

2. The applicant was born on 7 December 2013 in Australia and is a citizen of China.

3. The applicant applied for a protection visa on 5 August 2014.[1]  The applicant claimed that he feared harm on the basis that his parents were devout Christians and members of the Local Church (aka Shouters) and that he would be persecuted on that basis, the applicant also feared harm on the basis of his own status as a "black child", as his parents would not be able to pay the fee for his birth and would not be able to obtain "hukou" (being on the household register).  His parents and older sister had previously been refused protection visas.

   [1] Court Book (CB) 223-261

4. The delegate interviewed the applicant’s father on 10 June 2015. On 17 July 2015 the delegate refused to grant the applicant the visa on the basis of that it found that the applicant would not be an unregistered child in the future and would not be discriminated or persecuted on that basis by the Chinese authorities, that the applicant is not and had never been a member of the Local Church and that the delay in lodging an application for protection indicated that the applicant did not have a genuine fear of persecution if he were to go to China.[2] The applicant applied to the Tribunal for review.

   [2] CB 292-314

5. On 6 June 2017, the applicant's father appeared before the Tribunal to give evidence and present arguments.[3]

   [3] CB 365-367

6. On 7 September 2017, the Tribunal wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (Migration Act).[4]  The applicant’s father, in his capacity as the applicant’s litigation guardian, responded on 20 September 2017.[5]

   [4] CB 379-383

   [5] CB 433-459

7. On 24 January 2018, the Tribunal affirmed the decision under review.

Tribunal decision

Whether the applicant's father was involved in Local Church in China

1. The Tribunal found that the applicant's father's evidence in relation to when he and his mother were detained and in relation to assisting his mother prepare pamphlets was inconsistent.  The Tribunal was of the view at [51] that whether or not it accepted the submission turned on the applicant's father’s overall credibility.

Whether the applicant's father attended the Local Church in Australia

1. The Tribunal found at [53] that the applicant's father had made minimal effort to align his behaviour with his alleged Local Church beliefs.  The Tribunal found that the applicant's father failed to articulate refugee claims at any of the three interviews held in March 2009, the Tribunal noted at [54] that his failure to do so, combined with his delay in lodging his protection visa application was not consistent with his protection visa application dated 6 April 2009 stating that he was a Christian and that he had been detained in China in September 2006.

2. The Tribunal found that the applicant's father's evidence did not suggest that he had, as was claimed in the applicant's application, always actively attended the Local Church in Sydney.  The Tribunal also found at [54] that the applicant's father's evidence did not suggest that he had participated in the Local Church in Australia in a way that was consistent with his claim that he was a genuine member of the Local Church.

3. The Tribunal accepted that the applicant's father met some “Shouters” in the detention centre, but was not satisfied that the applicant had attended the Local Church as claimed.  The Tribunal accepted that the applicant's father may have attended gatherings in Blacktown, but noted that the migration agent wrote to the Minister’s Department on 16 June 2015 stating that the church would not issue a reference.  The Tribunal found at [55] that the applicant's father's statement that he and his wife did not want to trouble their church elders for further references, disingenuous and was not satisfied that if they were regularly attending the Local Church that they would not approach the church elders for a reference.

4. At [56], the Tribunal was not satisfied that the applicant's father was credible.  Neither was the Tribunal satisfied that the applicant's father was telling the truth when he stated that his was a Local Church member in China, or that he and his mother were detained, or helped his mother prepare pamphlets or that he and his family had been harmed in China due to their Christian beliefs.

Whether the applicant's mother was involved with Local Church in China

1. The Tribunal found the applicant's mother's evidence in relation to her alleged involved in the Local Church in China at the 2 June 2009 hearing vague and minimal.  The Tribunal further found at [58] that the applicant's mother's evidence in relation to what happened during a raid and when she was allegedly detained was inconsistent with the applicant's grandmother's evidence.

2. At [59], the Tribunal did not accept that the applicant's mother was a Local Church practitioner in China or that she attended the Local Church in China, neither did it accept that she or her family had been harmed in China due to their Christian beliefs.

Whether the applicant's mother was involved with Local Church in Australia

1. The Tribunal found at [60] that the applicant's mother's evidence was inconsistent with the applicant's grandmother's evidence, and that the delay of the applicant's mother to lodge her protection visa application was not consistent with her claims that she could not return to China due to her and her family's involvement in the Local Church.

2. The Tribunal was not satisfied at [62] that the applicant's mother had attended the Local Church in Australia as claimed.

3. The Tribunal did not find that the applicant's father was credible and did not accept that either of the applicant's parents were Christian or genuine Local Church members. It followed that at [63] the Tribunal did not accept that the applicant's parents delayed their protection visa applications because they were not willing to use their beliefs for their own purposes.

4. The Tribunal accepted that the applicant's mother may have been baptised and that the applicant's parents may have attended the Local Church in Sydney on limited occasions.  However the Tribunal found that they had done so for the purpose of their refugee claims.  At [64], the Tribunal did not consider that their limited attendance at the Local Church would be known to Chinese authorities.

5. The Tribunal did not accept the submission that the applicant must also be, or become a major activist in the Local Church or that he had been imputed with such a religious opinion.  The Tribunal did not accept at [65] that the applicant's parents would be arrested on return and that there would be no one to look after the applicant.

Social compensation fee/Hukou

1. With reference to country information, at [66] the Tribunal did not accept that the applicant could not obtain registration without his parents paying any social compensation fees.

2. The Tribunal accepted that the applicant's parents had not reached marriageable age as defined in China at the time of their marriage in Australia in 2009 and that this may cause them some difficulty in having that marriage registered or recognised in China.  The Tribunal noted that the applicant was born on 7 December 2013 and the Tribunal found at [67] that both parents were above marriageable age as defined in Chinese law.  The only breach of the planning laws was that they may be required to pay a fine for having the applicant out of wedlock.

3. The Tribunal found that the likely scenario that the applicant's parents would have to pay something between 39,868 RMB and 59,802 RMB, the Tribunal did not accept that the applicant's parents would be required to pay more as Christians as it did not accept they were Christians.  The Tribunal also found at [69] the claim that they would have to pay more due to being overseas speculative and not foreseeable.

4. At [71], the Tribunal was not satisfied that the payment of the social compensation fee for the applicant would affect the family's capacity to subsist so that the applicant would face a real chance of harm with reference to evidence showing that the applicant's parents were resourceful.

5. The Tribunal was therefore not satisfied at [73] that the applicant satisfied the criterion in s.36(2)(a).

6. Turning to complementary protection, the Tribunal was not satisfied that the applicant's parents had been telling the truth about their alleged persecution in China or that they are genuine Local Church members or that their exposure to the Local Church in Australia would be known to the Chinese authorities or that the applicant must also be or become a major activist in the Local Church or that he has been imputed with such a religious opinion.  The Tribunal noted that it had also rejected the claim that the applicant would not be registered or that the applicant's parents would not pay the social compensation fee or make arrangements to pay the fee through instalments. The Tribunal also rejected at [74] the claim that payment of this fee would affect the family's capacity to subsist.

7. The Tribunal was not satisfied at [75] that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there were substantial grounds for believing that there was a real risk that the applicant would suffer significant harm.

8. Accordingly the Tribunal affirmed the decision under review.

The present proceedings

1. The matter was originally scheduled for a show cause hearing.  However, on 23 July 2018 by consent I dispensed with the show cause hearing and deferred the final hearing pending the decision by the High Court in three cases which are collectively known as SZMTA v Minister for Immigration.[6]  Following the High Court’s judgment in those cases, this matter was listed for a final hearing this afternoon.

   [6] (2019) 93 ALJR 252, 363 ALR 599

2. In addition to the court book filed on 10 April 2018, I have before me as evidence the affidavit of Jessica Ruth Noakesmith made on 8 June 2018. Annexed to that affidavit are four reported certificates under s.438 of the Migration Act. Exhibited to that affidavit is a substantial bundle of documents purportedly covered by those certificates.

3. The only issue of substance in this case is the question of those non-disclosure certificates. 

4. The applicant, through his father, raises four grounds of review in the application as filed on 16 February 2018:

   1.My husband … attended a hearing before the Administrative Appeals Tribunal (Tribunal) in relation to my [son’s] … application on 6 June 2017.  He was requested to respond or comment on particulars of the information given by the Tribunal on 7 September 2017.  He made his response to and comments on the information on 20 September 2017.  The Tribunal made her decision on 25 January 2018.  During the 4 month period from 20 September 2017 to 25 January 2018, the Department of Foreign Affairs and Trade (DFAT) issued is up to date country report in relation to current situation in China (http:/dfat.gov.au/about-us/publications/documents/country-information-report-china.pdf) on 21 December 2017, and my husband and I are sure that the Tribunal must have received the up-to-date DFAT report.  However, the Tribunal failed to consider such an important report while she made her decision on the review application of my son.  It is apparently unfair.

   2. Regarding to my [husband’s] … church activities in China, there is no evidence that the Tribunal has considered the evidence, particularly the documents, which my husband submitted to it on 7 September 2017.

   3. Regarding to our church activities in Australia, the Tribunal has made her finding arbitrarily and unfairly.  Her significantly relied on her assumption.

   4. Both my husband and I are Christians and active member of the Local Church (a.k.a. “Shouters”).  According to the most recent [DFAT] report, my husband and I will be subjected to persecution if we return to China, and our children, including …, will deeply be implicated by our cases and suffer from significant harm.

   (errors in original)

5. There is no substance to any of those grounds.  In that regard, I agree with the submissions of the Minister concerning the grounds.

6. The first ground claims that the Tribunal failed to consider the 2017 DFAT Country Report for China, but the Tribunal quotes from this Report at [39]. There is no basis to infer that it has not considered it. This ground fails.

7. The second ground claims the Tribunal did not consider the applicant’s father’s statement of 7 September 2017. Assuming this refers to the statement at CB 434-438 dated 20 September 2017 it was quoted at length by the Tribunal at [37]. Again, there is no basis to infer that it has not considered it. This ground fails.

8. The third ground claims that the Tribunal’s findings concerning (presumably) the applicant’s parents’ Local Church practice in Australia (summarised above) was arbitrary and unfair.  In the absence of the applicant identifying some “extreme” illogicality with the Tribunal’s findings within the principles in CQG15 v Minister for Immigration[7] at [59]-[61], this ground must fail.

   [7] (2016) 253 FCR 496

9. The fourth ground claims the applicant’s parents are Local Church practitioners and will be persecuted in China, and the applicant would be deeply implicated and suffer serious harm.  However the Tribunal found otherwise and this ground as stated merely seeks merits review and so must fail.

The non-disclosure certificates

1. The question of the purported non-disclosure certificates was raised by the Minister and required reasonably close consideration.  I took into account that the applicant, represented only by his father as his litigation guardian, was in no position to address the technicalities of the legal issues arising.  As noted in the Minister’s submissions, this case falls to be considered in the light of the decision of the High Court in SZMTA.  The Minister concedes that all four certificates in issue are invalid.  The Minister also concedes that there is no evidence that any of the certificates were raised with the applicant by the Tribunal.

2. For his part, the applicant’s father said from the bar table that he had not seen previously either the certificates or the documents exhibited to Ms Noakesmith’s affidavit.  I agree with the Minister’s submissions on the issue of principle.

3. The High Court has held that the issuing of an invalid s.438 certificate to the Tribunal is a breach of a limitation on the statutory task of the Tribunal, but will not establish a jurisdictional error unless the breach is material.[8]  Similarly the non-disclosure of a certificate is a breach of procedural fairness, but again this must be material to constitute a jurisdictional error.[9]  That requires that the applicant satisfy the Court that there is a realistic possibility of a different outcome if the Tribunal had had taken into account the material covered by the certificates.[10]

   [8] SZMTA at [44]

   [9] SZMTA at [38], [72]

   [10] SZMTA at [45]-[48]

4. Counsel for the Minister and I reviewed the documents exhibited to the affidavit. For the most part, they are internal communications relating to matters of general administration concerning the detention of the applicant’s parents, but they also include documents relating to a request for the Minister to exercise his power under s.48B of the Migration Act and also a request for the Minister to exercise his power under s.417, both in relation to the applicant’s parents.

5. These issues arose following the decision of the former Refugee Review Tribunal concerning the protection claims of the applicant’s parents and prior to the consideration of the applicant’s claims by the Tribunal. The claims by the applicant necessarily depended upon the claims by his parents. Some of those claims appear in the documents purportedly covered by the certificates in the context of the possible exercise by the Minister of his discretionary powers. That provides some passing contextual relevance of the documents to the decision of the Tribunal in issue.

6. None of the documents are identified or referred to by the Tribunal in its decision. I infer from that that the Tribunal did not consider any of the documents in reaching its decision. In the context of this case, I conclude that none of the documents is material to the outcome of the review before the Tribunal. It follows that, while an error of law was made by the Tribunal in failing to disclose the certificates or the documents relating to them, that error does not go to the Tribunal’s jurisdiction.

Conclusion

1. I conclude that the applicant has failed to demonstrate that the decision of the Tribunal in this case is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs against the applicant’s litigation guardian in accordance with the Court scale as it applied when the application was filed. That is an amount of $7,328. The litigation guardian did not wish to be heard on costs.

3. I will order that the applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,328.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  9 September 2019