ASJ19 v Minister for Home Affairs
[2019] FCCA 3170
•6 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASJ19 & ANOR v MINISTER FOR HOME AFFAIRS & ANOR | [2019] FCCA 3170 |
| Catchwords: MIGRATION – Protection (Class XA) visa – decision of the Administrative Appeals Tribunal – whether the Tribunal denied procedural fairness – whether the Tribunal properly considered claims – whether the Tribunal erred in the use of country information – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.424A, 425, 476 |
| Cases cited: AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 |
| First Applicant: | ASJ19 |
| Second Applicant: | ASK19 |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 75 of 2019 |
| Judgment of: | Judge Kendall |
| Hearing date: | 23 October 2019 |
| Date of Last Submission: | 23 October 2019 |
| Delivered at: | Perth |
| Delivered on: | 6 November 2019 |
REPRESENTATION
| Applicants: | The first applicant appeared in person and on behalf of the second applicant |
| Counsel for the First Respondent: | Ms G Ellis |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 75 of 2019
| ASJ19 |
First Applicant
| ASK19 |
Second Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision of the Administrative Appeals Tribunal (the “Tribunal”) dated 12 February 2019. The Tribunal’s decision affirmed a decision of the first respondent (the “Minister”) not to grant the applicants a Protection (Class XA) visa (the “visa”).
The applicants are in a de-facto relationship. The second applicant made no claims of his own. He was included as a member of the first applicant’s family unit in the visa application. The applicants have two children. The children were not included in the visa application and are not parties to this proceeding.
The applicants filed an application for judicial review in this Court pursuant to s.476 of the Migration Act 1958 (Cth) (the “Act”). To obtain assistance from this Court, the applicants must show that the Tribunal fell into jurisdictional error.
The Court had before it the application for judicial review, a 170 page Court Book (which the Court has marked as Exhibit 1) and a written outline of submissions from the Minister dated 23 September 2019.
The hearing of this matter took place on 23 October 2019. The first applicant appeared in person and spoke on behalf of herself and the second applicant, her partner. The applicants did not have legal representation. They were, however, assisted by a Mandarin interpreter.
At the commencement of the hearing on 23 October 2019, the Court confirmed with the first applicant that she had received a copy of the Court Book and the Minister’s outline of submissions. The first applicant explained that she did not have a hard copy of the Court Book but did have an electronic copy which she could access. The Court is satisfied that the applicants had access to the materials and documents necessary to prepare for, and participate in, the hearing of this matter. To assist the interpreter, a copy of the Tribunal’s decision and the applicants’ judicial review application were printed at the hearing to ensure that any references to those materials could be appropriately translated.
Background
The Court has reviewed the Court Book (“CB”) in preparing these reasons for judgment. The Minister’s submissions at [3]-[7] accurately summarise the background to this matter. The Court adopts that background as its own. With some minor additions, that summary provides as follows.
The first applicant, a citizen of China, arrived in Australia in August 2007 on a student visa (CB 44 and 46). In March 2010, she became an unlawful non-citizen when she failed to depart Australia at the cessation of her student visa (CB 87). She remained in Australia as an unlawful non-citizen until she applied for the visa on 9 July 2015 (CB 1-35). The first applicant’s de-facto partner (the second applicant) was included in the visa application as a member of the first applicant’s family unit (CB 36-60). He did not make any protection claims of his own. The applicant’s two children, born in Australia, were not applicants in the application.
The first applicant claimed to fear harm because of her and her family’s Christianity and the illegal bookstore she inherited from her brother when he left China. She claimed that she was arrested and detained by the authorities in May 2007 (CB 64-65).
On 29 July 2016, the first applicant attended an interview with the delegate. On 23 November 2016, the delegate refused to grant the applicants the visa they were seeking (CB 86-103).
On 29 November 2016, the applicants sought review of the delegate’s decision in the Tribunal (CB 104-106). The applicants were represented by a lawyer. On 8 August 2018, the first applicant attended a hearing before the Tribunal (CB 120-122). On 21 December 2018, the Tribunal wrote to the applicants and invited them to comment on country information regarding “hukou” registration (CB 127-134) (discussed in detail below). The applicants responded on 14 January 2019 (CB 135-136).
On 12 February 2019, the Tribunal affirmed the decision under review (CB 140-166).
Tribunal’s Decision
The Tribunal’s decision is 27 pages long and spans 132 paragraphs. Three pages consist of the relevant legislative provisions applicable to the visa the applicants seek. The Tribunal summarised those provisions and the relevant legal principles at [6]-[11] (in relation to the refugee criterion) and [120]-[121] (in relation to the complementary protection regime).
The Minister’s submissions (at [8]-[18]) accurately summarise relevant parts of the Tribunal’s decision. The Court adopts that summary as its own, with some additions and amendments, as follows.
At [1]-[5], the Tribunal outlined the procedural history of the matter. It was noted that the applicants were represented before the Tribunal and that an interpreter assisted the first applicant at the hearing. It was also noted that the second applicant did not attend at the hearing.
The Tribunal confirmed that the issue before it was whether the first applicant had a well-founded fear of persecution or met the complementary protection provisions:
12. The issue in this case is whether the applicant has a well-founded fear of persecution in the People’s Republic of China (China) from the authorities because she ran an illegal bookshop which she inherited from her brother when he left China, on religious grounds (as a Christian), or because the applicant has two children from her de facto relationship in Australia (with the second applicant) or whether complementary protection provisions otherwise apply.
The Tribunal was satisfied that the applicants’ receiving country would be the People’s Republic of China (at [14]).
At [15]-[19], the Tribunal summarised the materials it had before it, including documents that had been provided at the hearing and following the hearing.
The Tribunal confirmed that the second applicant did not have any of his own claims and that he relied on the first applicant’s claims for protection, which were contained in a statement accompanying the visa application (at [20]-[21]).
At [22], the Tribunal extracted the first applicant’s statement in summary form. It reads:
In the statement accompanying her application she claimed to fear persecution in China for the following reasons:
• She was born in a Christian family and her parents participated in a local church when she was young.
• She followed her parents to the church including church activities such as the ‘circuit gathering’, Bible studies, the Psalmody and choir performance and individual speeches.
• Church gatherings took place at a church sister’s home and many people came to take part. She later found out that the gathering place was changed each time.
• Her parents told her that the church was not supported by the Government who accused them of ‘evil religion’ and fought to suppress them. However, they persisted in their beliefs.
• In 2000 her family moved to a big city and she later discovered that because of their church activities they were ‘cursed by the focal villagers’ who ‘accused and fought’ her parents and blamed them for introducing her to the church so that she became ‘a bad child. As a result they were forced to move and start a new life.
• In April 2004 her brother and a friend opened and ran a bookstore. The Government later investigated the bookstore and accused her brother and others of illegally selling books about Falun Gong and other religions, spreading religious beliefs and disturbing and sabotaging the social order and safety.
• The Government pressured her family to cooperate with them in their investigations and report to the Government on her brother’s whereabouts warning them that if they refused they would be detained or even sentenced. The applicant refused to betray her brother.
• Later the applicant’s parents sent her older brother to the USA for fear he would be in trouble. Before departing for the USA the applicant’s brother left the bookstore to her.
• On 17 May 2007 police in uniform came to the applicant’s home and took her away. Her parents were unable to resist.
• The police detained the applicant in a dark room after taking her to the police station. They asked her to change her clothes and put on clothes they provided. She was isolated and every few hours there were police patrolling.
• The police woke her in the middle of the night for interrogations where she was intimidated and threatened. The police starved her and she almost mentally collapsed. She prayed for her release.
• One morning the police took her out of the room. They asked her to change her clothes and write a letter of pledge. They then released her.
• Once home the applicant’s parents told her that she had been shut in the dark cell for months and that her family had paid ‘dozens of thousands of yuan’ as the penalty money in order to have her released. The parents had lost weight and she could see that they had been broken hearted and living in great fear.
• Her elder brother’s bookstore had been sealed and closed and his friend had been arrested and his whereabouts were unknown.
• Later on her mother got worried so she contacted a friend and asked connections to arrange for her to go abroad. She then came to Australia
The Tribunal then confirmed that no further claims were raised during the interview with the delegate (at [24]).
The Tribunal noted that, during the interview with the delegate, the first applicant indicated that her brother had been granted asylum in the United States, her parents had obtained a green card and now live with the brother in the United States and an application for the first applicant to go to the United States with them was still being processed (at [25]-[28]). The Tribunal then outlined the basis upon which the delegate refused the application (at [29]).
The first applicant’s evidence at hearing was that she did not have any trouble obtaining a passport to leave China, departed on a passport in her own name and had renewed her passport after her arrival in Australia with no issues of concern (CB 145 at [32]).
When asked about her student visa, the first applicant indicated that her parents sent her to Australia because they wanted her to study and to get a permanent visa here (CB 145 at [33]).
The Tribunal then summarised the first applicant’s evidence in relation to where her family, and her in-laws, are located (CB 145-146 at [34]-[36]).
The first applicant told the Tribunal that her daughter, who was born in Australia in February 2014, was living in China with her in-laws. She explained that she had sent her daughter to live in China in August 2015, one month after the applicants filed their application for protection. The daughter travelled on a Chinese passport issued by Chinese authorities in her own name (CB 146 at [37]).
At [39]-[46], the Tribunal carefully detailed the first applicant’s evidence in relation to her Christian faith and religious practices. This evidence included evidence about how she practised her Christianity in China and how she practised her religion in Australia. It was noted that the first applicant provided a text message exchange to support her claim to practise the Christian faith; however, the person who sent the text messages was not called as a witness and the Tribunal was unable to question her regarding the context of the messages. The Tribunal also referred to the first applicant’s response when asked if she planned to practise as a Christian if she returned to China, to which she replied that if she was invited she would go and she would like to “hear the good news every week” – although, as she explained, in Australia she does not attend every week but only when she gets invited (at [46]).
The Tribunal was concerned about inconsistent statements made by the first applicant. At [47], the Tribunal explains:
As discussed at hearing, the Tribunal has a number of concerns about the applicant’s claims regarding her religious practice in China and in Australia. For example:
• The applicant told the Department she participated in meetings at a ‘Church sister’s’ home and in activities including circuit gathering, individual speeches, Bible studies, singing in the choir, praying and promoting the Gospel. At the Tribunal hearing she indicated she had been taken to meetings by her parents but could remember very little else about the meetings. She said that at the meetings they would be singing, reading poetry, praying and sometimes ‘just sitting there eating’.
• The applicant’s oral evidence to the Tribunal about her alleged involvement with Christian activities in China was vague and inconsistent with prior statements. For example, she had not read the Bible or been baptised and could only recall celebrating Christmas Day and Christmas Eve. However, she claimed in her application to have participated in Bible studies, Psalmody and promoting the Gospel. While the practices or beliefs of Christian groups may differ, the Tribunal is concerned the applicant’s inconsistent statements about her familiarity with the Bible and her inability to recall any details of their practices was not consistent with an active participation as a practising member of a local Christian church in China. While the Tribunal accepts a lack of recollection of detail may be understandable for meetings she attended as a child she did not leave China until high school when she could be expected to recall the details of her religious practice, particularly one which she claimed in her application to have practised with the knowledge it was not supported by the authorities.
• The applicant’s evidence of her family’s religious activities was inconsistent. She told the Tribunal she attended religious meetings during childhood with her parents yet the delegate’s decision records that she told the delegate her mother was a Christian but she· didn’t know what religion her father was because he was away a lot. However, the delegate’s decision notes that her father previously applied for protection in Australia claiming to be the leader of a secret Catholic group in China. This application was refused and he was removed in 2002. She told the Tribunal she did not know whether her aunties and uncles practised Christianity because they all lived in different places, yet the delegate’s decision records that she told the delegate she had 11 aunties and uncles and 20-22 cousins living in the same village as her.
• Her account of having been forced to move due to religious activity was implausible. She indicated her parents had moved towns because of their religious activities but she could not indicate any event or occasion when the group had come to the attention of authorities or any event or occasion which involved negative attention from local villagers which may have precipitated the need for her family to move due to their religious activities. Further her application claimed her family were forced to move due to the actions of villagers opposed to her family’s religious practice. However, the applicant told the Tribunal the family moved due to attention from the authorities who did not approve of their religious practice. The Tribunal notes that the applicant was young when this event occurred however the Tribunal does not accept that her vague account of the events supports a claim that her family moved due to religious persecution by local villagers or authorities.
• The applicant’s evidence regarding her religious practice in Australia was also vague and lacking in appropriate detail or sufficient corroboration. \/\/hen asked whether she attended church in Australia she said she had been busy with children and that friends had come to her house every few weeks. She said she attended meetings at a gathering group in Midland but not every week. She later said she went when she was invited. She told the delegate she had been to church 5-6 times between her arrival in 2007 and 2016. She was unable to tell the Tribunal how many times she had been to church in Midland or how many meetings she had attended. This, together with other deficiencies in the applicant’s evidence suggests that the claims are not genuinely held by the applicant.
• When asked whether the applicant would practise her Christian faith or attend religious meetings or gatherings in China she replied that if someone invited her she would go. When asked whether she had concerns about practising she said she was worried but she wanted to hear the good news every week. The Tribunal found the applicant’s account of her plans to practise her religion in China vague. They are also not consistent with her practice in Australia where she acknowledged she faces no persecution and is free to practise as she wishes yet she has only rarely attended church or religious meetings and only when invited. There is no evidence that she has sought to hear the good news every week while in Australia yet she claims this would be her practice on return to China. Further there is no evidence of any practice of religious observance of a type prohibited by Chinese authorities.
The Tribunal accepted that Christians in China may come to the adverse attention of the authorities (CB 148 at [48]). However, on the basis of the concerns outlined in [47] of its decision, the Tribunal found that neither the first applicant nor her family were actually Christians or would have been perceived to be Christians. At [49], the Tribunal writes:
However, on the basis of the Tribunal’s credibility findings above, the Tribunal finds that neither the applicant nor the applicant’s family were Christians or would have been perceived as Christians. The Tribunal finds that neither the applicant nor the applicant’s family practised as Christians nor participated in a local church in China. The Tribunal does not accept that the applicant came to the attention of authorities in China due to Christian religious practice or membership of a local church. The Tribunal also finds that the applicant or her parents were not of interest to the authorities due to religious practice or local church membership in China. The Tribunal notes that her parents have now left China and are living permanently in the USA. The Tribunal notes that they did so lawfully and without any administrative issue with Chinese exit processes and while travelling on their own passports issued by the Chinese authorities. As noted in the delegate’s decision, this suggests they were not of particular interest to Chinese authorities.
The Tribunal then determined that the text messages the first applicant offered in support of her claims to be a Christian held little weight as, at their highest, they indicated an invitation to attend, and not actual attendance (CB 148 at [50]):
The Tribunal has considered the text messages provided by the applicant. The nature and context of the document are very unclear. At its highest the document may establish that the applicant was invited to a Bible study class in February 2018. It does not provide any evidence that she attended the meeting, or any others like it. Also, given the lack of corroborating evidence, the Tribunal places little weight on these messages or the possibility that the applicant attended any meetings referred to in them.
Ultimately, in respect of the first applicant’s claims regarding her Christianity the Tribunal found that the applicant is not and would not be perceived to be Christian. Nor would she (even if she was Christian) pursue any Christian activities on return which would be of a kind prohibited by the Chinese authorities (CB 148 at [51]-[52]).
Overall, the Tribunal found that the first applicant’s claims on the basis of her Christian faith were not genuinely held.
At [53]-[69], the Tribunal analytically described the first applicant’s evidence in relation to the claim that she feared harm on the basis of her association with her brother’s bookstore which she said had caused her to be detained and arrested by the authorities in the past. The Tribunal forensically outlined the evidence before it in relation to this issue. The Tribunal noted that it had asked various questions and put various matters to the applicant and then outlined her responses.
Paragraph [70] of the Tribunal’s decision provides as follows:
The Tribunal has a number of concerns about the applicant’s core claims that she was arrested and detained by the authorities due to her involvement with a bookstore selling illegal books and that she remains at risk of persecution from the authorities for these activities if she was returned to China. For example:
• There are aspects of the applicant’s claims which are implausible. The applicant claims that neither her parents nor her brother were ever detained by authorities despite her claim that her brother was the registered owner of the bookstore and her parents financed the store. While she maintains this was because her brother went into hiding and then left China, she told the Tribunal her parents funded or owned the bookstore yet they were never themselves detained or arrested over the years it operated. This was despite her original claim that she was arrested in her home with her parents present. This raises questions about the credibility of the applicant’s claims.
• Further, the applicant sent her daughter to live in China as an infant one month after she applied for protection and has no concerns for her safety living there. The applicant claims this is because people don’t know who the child’s mother is. However, the Tribunal does not regard this claim as credible. The Tribunal regards that if the applicant was genuinely concerned about the persecution of her extended family from Chinese authorities because of their activities in China she would not have sent her infant daughter to live in China without parental protection.
• Several significant inconsistencies exist between the applicant’s oral evidence to the Tribunal and written claims to the Department which casts doubt on her claims. In particular, she originally said she was arrested from her home, alone and held for several months by police. However, she told the Tribunal that she was arrested in the bookstore along with everyone else there and was detained for 6 or 7 days. The applicant originally claimed to have become responsible for running the bookstore several years before she left China. At that time she would have been around 14 years old. She told the Tribunal she was still attending Middle School and then High School. She later told the Tribunal that her brother’s friend took over the bookstore and she helped out. These inconsistencies are significant and raise further questions about the credibility of the applicant’s claims.
• At times the applicant’s oral evidence about important events was vague and lacking detail. For instance, she said she wasn’t sure when the events took place, she wasn’t sure why or when her brother had left China, she couldn’t say where or for how long she had been held or the circumstances that led to her release though she thought her parents had used their influence, money or gifts to secure her release. She was only able to provide vague details of her time in claimed detention or describe in little detail what happened to her while she was detained. She did not know what had happened to the other people arrested along with her or what had happened to her brother’s friend who she claimed was a co-owner of the bookstore. The Tribunal finds the applicant’s lack of recollection of these key events as inconsistent with a genuine claim to have been detained and questioned by authorities.
• The applicant claimed that after her release from detention her mother was concerned and contacted a friend to make arrangements for her to travel to Australia. However, the delegate’s decision indicates that the application for her student visa was commenced in April 2007 prior to her claimed arrest and detention. She left China on 30 August 2007. The applicant also told the Tribunal that her parents sent her to Australia because they wanted her to study and they wanted her to get a permanent visa here. This is not consistent with the applicant’s claim to have sought the visa and left China as a result of her arrest and detention in May 2007 and due to fear of reprisals from authorities.
• The applicant was able to exit China with no problems on a passport issued on 16 December 2003 in her own name and has had that passport renewed on 30 September 2008 while in Australia without issue indicating she has no concerns about approaching the Chinese authorities in Australia. As outlined in the delegate’s decision this suggests that the authorities did not have any adverse security interest in her because of her involvement with her brother’s bookstore or any other claimed activities. At the hearing the applicant was asked whether she expected, having been arrested by the authorities and having been involved in an illegal bookshop, to have trouble leaving China. She said it was her parents who organised the visa. They took her to the airport and the customs officers didn’t ask her anything, they just let her go.
The Tribunal took into account the fact that the events the subject of the first applicant’s claims would have occurred when she was relatively young. However, the Tribunal was not satisfied that the first applicant was of an age whereby she would not be able to recall what occurred, particularly given the significance of the alleged incidents (CB 152-153 at [71]). The Tribunal also took into account the passage of time since the events and the applicant recalling them to the Tribunal, however the Tribunal was not satisfied this accounted for the discrepancies in the evidence. The Tribunal found that these claims were, therefore, not credible and not true (CB 153 at [73]-[74]).
In relation to the status of the first applicant’s brother at [76] the Tribunal stated as follows:
The Tribunal notes it is for the applicant to make their case. In relation to this issue the applicant has not provided any detail or evidence to establish the relevant facts regarding her brother's claimed asylum status in the USA. Putting aside the inconsistency suggested by an asylum seeker returning to a country in which they fear persecution, the Tribunal has considered the submission of the applicant that her brother would somehow be afforded immunity from prosecution or official harassment on return to China. The Tribunal does not accept, as was claimed by the applicant, that the applicant's brother could not have been arrested when he returned to China while travelling on a US passport if he were of ongoing concern to the Chinese authorities. The Tribunal finds that the evidence in relation to the applicant's brother's claimed visa status does not assist in supporting the applicant's claims for protection. Rather the Tribunal finds that the applicant's evidence that her brother has returned to China without adverse attention from the Chinese authorities raises concerns regarding the credibility of her claims.
The Tribunal also raised matters (not raised by the applicants) it considered may have been relevant for the applicants to comment on (for example, that she would be returning to China as an unwed mother) (CB 153 at [78]).
The applicant indicated that her daughter did not have a “hukou” registration yet and that she would “think about registering her daughter”: (CB 153-154 at [79]).
Following the hearing, the Tribunal put information to the first applicant concerning “hukou” registration and social compensation fees and invited her to respond pursuant to s.424A of the Act (CB 154 at [81]-[84]). The Tribunal explained:
81. Following the hearing, pursuant to s.424A of the Act the Tribunal put to the applicant detailed particulars of information regarding hukou registration in China and social compensation fees. In summary, this information suggested that
• the process of registering for hukou had been delinked from the payment of social compensation fees allowing children born ‘out of plan’ to be registered, including in Fujian Province;
• for the vast majority of residents in Fujiah, social compensation fees operate akin to a form of unwelcome taxation, rather than as a punitive arbitrary measure; and
• local officials have considerable flexibility in how they apply these fees. They have the power to exempt fees or allow fees to be paid by instalments, depending on the circumstances of the parents.
82. Further detail of the information put to the applicant is outlined in the decision below.
83. The invitation indicated that the information was relevant to the review because the applicant claimed that she was concerned she may not be able to register her children for hukou on return to China because she was not married and this would limit their access to services such as education. She further indicated she may be concerned about paying social compensation fees on return to China depending on the amount of the fees. The Tribunal indicated that if it relied on this information outlined in the invitation in making its decision, it may find that the applicant would be able to register her children for hukou and access services linked to such registration. Further the Tribunal may find that registration would not be dependent on the payment of social compensation fees. In addition, if the Tribunal relies on the information it may find that the applicant would be able to pay social compensation fees which may be liable.
84. The invitation indicated that if the Tribunal relies on the information the Tribunal may find that the applicant would not face a real chance of persecution arising from an inability to register her children for hukou in China or from the denial of services linked to hukou registration. The Tribunal may also find that the applicant would not face a real chance of persecution arising from the imposition of social compensation fees on her return to China and in the reasonably foreseeable future.
The first applicant responded to the invitation by providing a “certification of no household registration record” (CB 154-155 at [85]).
The Tribunal accepted that the applicants were not married and had two children. The Tribunal determined that the children were born outside of China’s current family planning regulations and payment of a social compensation fee may be applicable, although it was noted that all children have a right to obtain a household registration or “hukou” (CB 155 at [88]-[91]). The Tribunal summarised the country information and the applicants’ responses to information that had been put to her at [92]-[102] as follows:
92. The Tribunal indicated its understanding that it was now permitted to have two children in China in some circumstances. The applicant indicated that she was concerned that they needed a marriage certificate to apply for hukou registration.
93. The Tribunal put to the applicant that country information indicates that you can now register for hukou in Fujian without paying a fine and the two processes (registration and payment of social compensation fees) have been disengaged. She was asked whether she would plan to register her children in those circumstances. She indicated that she would think about that before her daughter was 7 which was the time her daughter would be eligible for school.
94. The Tribunal has considered country information from a number of sources which indicate that all children of Chinese nationality will be entitled to be granted household registration. Household registration provides access to medical and educational services and other government benefits.
95. On the issues of the changes in the family planning laws and the changes to the household registration system, the DFAT 2016 report on Fujian notes:
3.26 On 27 December 2015, the National People’s Congress amended the Population and Family Planning Law with effect from 1 January 2016. Changes to the Population and Family Planning Law included the full implementation and encouragement of a two-child policy (provided couples continue to meet other health, age and timing requirements), the cancellation of forced contraception and changes to certain leave entitlements for parents (including maternity and paternity leave). The Fujian People’s Congress passed implementing provincial-level regulations on 19 February 2016.
…
3.37 The hukou (or household registration) system ties access to services including health and. education to an individual’s pf ace of birth or, in some circumstances, their parent’s place of birth (see 5.4). In August 2015, the Fujian Public Security Department implemented a new ‘Household Registration Management System’ which directed local authorities to not treat the payment of Social Compensation Fees as a prerequisite for accepting an application for a hukou {residence permit). Children whose unauthorised birth might previously have gone unregistered are now able to apply for a hukou irrespective of whether relevant Social Compensation Fees have been paid.
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5.3 Hukou reform has been proceeding throughout China as part of wider economic reforms for some time in an effort to control urbanisation. In Fujian, authorities no longer distinguish between urban and rural hukou - all households are now registered as ‘residents’ and are entitled to access available social services.
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5.4 Under the new system, children may be registered under the hukou of either parent, who must normally supply supporting documentation including the child’s birth certificate, household registration books of the parents, identification cards of the parents and the marriage certificate of the parents. If the child is born out of wedlock, the registering parent must supply a ‘declaration’ of the child’s situation and/or a paternity test certificate.
96. In January 2016 the State Council of China re-leased a statement which provides, in part:
Due to certain policy barriers, the civil rights of citizens without “hukou”, such as those born outside the former family planning policy or without medical birth certificates, have not been well protected. The unregistered population has also been considered obstacles to the reform of the household registration system.
The State Council has thus decided to forbid related government departments from setting any preconditions for “hukou” registration.
97. In March 2016 DFAT responded to a country information request regarding household registration for children born out of plan in Fujian Province. The post noted that:
Household registration (hukou) reform has been proceeding in China as part of wider economic reforms for some time. On 25 August 2014, the Fujian Public Security Department (PSB) implemented a new provincial Household Registration Management system. Under the new system provincial PSB officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration. This means all Fujian babies, including abandoned babies or those born “out of plan” or out of wedlock, should now have access to household registration, whether or not they pay the fee.
98. The 2017 DFAT country report on China notes:
The hukou (or household registration) system ties access to services including health and education to an individual’s place of birth or, in some circumstances, their parent’s place of birth (see Human Rights Defenders (including Lawyers)). According to national law, children born before 1 January 2016 have a right to household registration and access to health and education services. Some provinces, including Fujian, Shandong and Zhejiang, prohibit local authorities from requiring payment of social compensation fees as a prerequisite for accepting an application for a hukou. Children whose unauthorised birth might previously have gone unregistered are now by law able to apply for a hukou irrespective of whether their parents have paid the relevant fees.
99. A recent Research Response prepared by DFAT in May 2018 noted:
A. Are the current main laws and regulations in Fujian province applicable to children born out of wedlock to single or unmarried parents remain those as outlined in both the Fujian thematic and the China CIR?
2. Chinese laws and regulations in relation to both family planning and household registration (hukou) are continuing to develop. On 14 January 2016, the State Council issued a national-level Opinion on Solving the Household Registration Issue for Non-Registered Personnel, which made clear that payment of a social compensation fee was not/not a pre-requisite for accepting an application for household registration. Provinces subsequently sought to implement this Opinion by issuing updated regulations. Concurrent amendments to national family planning policies have complicated this process.
3. The Fujian provincial government issued a document reflecting the Opinion in October 2016, entitled Fujian Provincial Residential Household Registration Methods. The Methods came into force on 1 January 2017. On 4 December 2017, the Fujian Public Security Department issued new regulations (Regulations on Implementation of Household Registration Management for Fujian Citizens), which set out in more detail processes described in the Opinion and the Methods. These replaced its own earlier regulations set out in the 2014 Fujian Provincial Public Security Regulations on Household Registration. Significantly, the earlier ‘right to apply for a hukou’ (former article 21) does not appear in the new regulations, reflecting economic pressures on cities to employ tighter criteria for granting hukou and thereby restrict access to public benefits.
4. Article 24 of the December 2017 regulations provides that a parent seeking household registration of a child born out of wedlock must provide copies of the child’s birth certificate, the household registration book of the registering parent, and a declaration of the child’s status (ie. confirming the child was born out of wedlock) in order to register their child. A father seeking household registration for his child must provide a paternity test certificate in addition to the above materials.
…
E. Can a child born out of policy in Australia or elsewhere use the birth certificate relating to the birth to obtain a hukou for the child upon return to China?
10. Verbal advice from the Fujian Public Security Department confirms that a foreign birth certificate, translated and duly notarised by a Chinese mission abroad, may be used to support an application for a Fujian hukou. Articles 40 and 41 of the 2017 regulations deal specifically with children born overseas to Fujian hukou holders. Requirements differ, depending on whether the child is recognised as Overseas Chinese (i.e. a person of Chinese birth or descent who lives outside the People’s Republic of China (including Hong Kong and Macau) and Taiwan) or not. Children of Chinese nationals studying or working abroad remain specifically exempted from recognition as overseas Chinese.
100. The Canadian Immigration and Refugee Board of Canada noted in a Research Response prepared in October 2016:
There are approximately 13 million non-registered people in China (Xinhua 9 June 2016; US 13 Apr. 2016, 58; Global Times 27 Jan. 2016) ... An article by Xinhua News Agency states that, “[u]nregistered citizens include those who do not have a birth certificate, those born out of a wedlock, orphans adopted outside the official system, and those who lost their hukou due to marriage traditions, being pronounced missing ordeal, or previously held invalid registration papers.” (14 Jan. 2016)
... Sources indicate that government authorities also announced in 2015 that they would take steps to regularize the status of unregistered citizens (Xinhua News Agency 9 June 2016; Al 2016, 120; Germany 14 Dec. 2015). In a briefing note, the Federal Office for Migration and Refugees of Germany stated that with this change in policy, unregistered people would “[f]or the first time, [ ... ] receive ‘Hukou’ documents allowing them school attendance and unrestricted access to social services including medical care” (Germany 14 Dec. 2015, 5).
101. The response also noted that:
Chinese who give birth to or return from abroad with an unauthorized child, answer to the local regulations in the place of their household registration. (Land info Norway 3 Aug. 2015, 3.)
... After the State Council’s notice [in January 2016], Guangdong and Liaoning provinces responded by officially delinking fines and hukou registration. Several provinces including East China’s Shandong and Fujian implemented such policies as early as 2014 to tackle the [black children] problem. In these places those that are born outside the rules can register for a hukou without having to first pay fines ~ although the fines must be paid eventually. (Global Times 27 Jan. 2016)
102. While the Tribunal only had before it the birth certificate of the older of the applicant’s two children, the Tribunal accepts that the applicant’s two children were born in Australia and have Australian birth certificates. The applicant’s older child has a Chinese passport and has returned to China. She lives in Fujian Province. The first and second named applicants both hold Chinese passports. The Tribunal notes that the applicant’s email of 14 January 2019 submits that her family in China has tried to register her daughter’s hukou unsuccessfully. The applicant is relying on the “certification of no household registration record” to support this submission. The Tribunal notes that at the hearing the applicant told the Tribunal that her daughter has not been registered for hukou. Having considered the document supplied to the Tribunal, the Tribunal finds that it does not evidence an attempt to register the applicant’s daughter for hukou but rather confirms that she has not been registered for hukou. This is consistent with the applicant’s earlier evidence to the Tribunal but the Tribunal finds that it does not support a claim that an attempt has been made to register for hukou which has been unsuccessful.
The Tribunal found that the “certification of no household registration record” provided in response to the invitation under s.424A did not evidence an attempt to register the applicant’s daughter for hukou. Rather, it confirmed that the daughter had not been registered (CB158 at [102]). The Tribunal found that on the evidence and country information before it, upon return to China the applicants would be able to apply for household registration for their children irrespective of them both being born in Australia (CB 158 at [103]).
The Tribunal then turned to consider whether the imposition of a social compensation fee gave rise to any protection obligations. It was noted that the first applicant indicated that she was not concerned about paying the fines, although it would depend on how much those fines were (CB 159 at [104]).
The Tribunal found that the applicants may be liable to pay social compensation fees upon return (CB 159 at [106]). However, this would not amount to financial hardship such as to enliven Australia’s protection obligations (CB 160-161 at [109]). The Tribunal referred to country information in respect of the amount and the method of payment, including exemptions in some circumstances when making this finding (CB 160-161 at [107]-[108]).
The Tribunal found that any claims or fears of harms arising from an inability to register the birth of her children or because of the imposition of a fine or fee was not genuinely held and that the applicant did not have a well-founded fear of persecution on this basis (CB 162 at [110]-[111]).
Finally, the Tribunal considered the delay in applying for the visa (CB 161 at [112]-[113]) and found that the applicant’s failure to apply for protection for 8 years after her arrival in Australia was a strong indication that she was not fearful of serious harm (CB 161 at [114]).
The Tribunal was not satisfied that the applicants had a well-founded fear of persecution for any of the reasons set out in the Act (CB 162 at [118]).
Relying on its anterior findings, the Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the applicant would suffer significant harm (CB 163 at [128]).
Proceedings on this Court
The application for judicial review contains five grounds as follows:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal made a finding without supporting evidence.
3. The Tribunal failed to consider our case on its own merit.
4. The Tribunal failed to apply the country information flexibly and individually.
5. The Tribunal erred in applying the country information indiscriminatorily.
On 20 March 2019, a Registrar of this Court made orders allowing the applicants to file any amended application, affidavit evidence and an outline of submissions. No materials were filed by the applicants.
Noting the remarks of the Federal Court (in particular in DQQ17 v Minister for Immigration & Border Protection [2018] FCA 784 at [8]) that it is usually appropriate for a party to be afforded an opportunity to explain orally the matters that are said to give rise to an appeal (or review), the Court provided the first applicant an opportunity to outline orally what she thought the Tribunal “did wrong”.
To assist the first applicant, the Court explained to her that the Court could only look at whether the Tribunal had engaged in jurisdictional error. It was explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap but that for migration decisions of this sort they most commonly include, but are not limited to, the following categories:
a)where the Tribunal identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at [198];
b)where the Tribunal ignores relevant material: Craig at [198];
c)where the Tribunal relies on irrelevant material: Craig at [198];
d)where the Tribunal fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294 at [207]-[208];
e)where the Tribunal fails to consider a “claim” or a relevant “integer” of a claim: Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 at [42];
f)where the Tribunal shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2] (“SZRUI”); AZAEY v Minister for Immigration & Border Protection [2015] FCAFC 193 at [16]‑[17]; and
g)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li [2013] HCA 18 at [26]–[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
The Court also explained that the Court cannot undertake a merits review of the Tribunal’s decision: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. Importantly, the Court cannot grant the visa the applicants now seek. Rather, the Court can only undertake an analysis of whether the Tribunal engaged in jurisdictional error of the sort outlined above.
The first applicant made oral submissions to the Court. Unfortunately, those submissions were of limited assistance. They were, in large part, directed to the merits of the Tribunal’s decision. The first applicant referred to medical issues her young child had at 18 months old and explained that because they could not access Medicare, they had to pay $8,000 for care. While sympathetic, these are not matter relevant to the Court’s task.
To the extent that the first applicant’s oral submissions were relevant to the issue of jurisdictional error, the Court will address these submissions below in responding to the articulated grounds of review.
Consideration
Ground 1
1. The Tribunal failed to afford procedural fairness.
Unfortunately, when asked to explain this ground in more detail the first applicant was unable to identify how the Tribunal failed to afford her and her partner procedural fairness. She simply indicated that she disagreed with the Tribunal’s findings.
Given the complexity of judicial review, the first applicant’s failure to articulate clearly how she was not afforded procedural fairness is perhaps to be expected. In this regard, the Court is mindful of the comments of Mortimer J in MZAIB v Minister for Immigration & Border Protection [2015] FCA 1392 at [100] and [112] that in circumstances akin to those here (where an applicant is unrepresented and does not speak English), the Court should be astute to the possibility of legal error in the Tribunal’s decision and raise any such matters with the Minister for comment.
The procedural fairness obligations of the Tribunal are found in Pt.7 Div.4 of the Act (save for the provisions relating certificates, which are not relevant here).
Here, the Court is satisfied that the Tribunal afforded the applicants procedural fairness. Relevantly:
a)the applicants were invited to attend a hearing before the Tribunal in accordance with s.425 of the Act. The first applicant attended that hearing and provided evidence and arguments in support of her claims. The hearing lasted for more than two hours (CB 120-124);
b)the applicant was assisted by an interpreter. No issue has been raised with the standard of interpretation and the Court is satisfied, based on the comprehensive statement of evidence provided by the Tribunal, that no issues arose in this regard (CB 120-124);
c)the Tribunal complied with its obligations under s.424A of the Act and gave the applicants clear particulars of information that formed part of the reasons for its decision (see CB 126-134);
d)the Tribunal put inconsistencies to the applicant for comment (see [64]) and the first applicant was on notice that the credibility of her claims was in issue given the delegate did not accept her claims regarding her Christianity and her brother’s bookstore. The determinative issue in relation to those claims was the same as the delegate’s decision and there is no error of the kind identified in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152;
e)the applicants were invited to provide information and evidence prior to the Tribunal hearing and, despite being represented, did not do so. The first applicant provided documents at the hearing which the Tribunal considered (CB 124-125). Further, the applicants were provided an opportunity to provide further information after the hearing (CB 122). Again, the applicants did not avail themselves of this opportunity and only provided information in response to the s.424A request; and
f)there is nothing to suggest that the Tribunal held any actual or apprehensive bias. Rather, the Tribunal appears to have gone to great lengths to assist the applicants in addressing claims and matters that the applicants themselves did not raise but which might be relevant to them.
The Court does note that the second applicant did not partake in the hearing and the obligation to afford procedural fairness extends to all applicants. However, no concerns arise in this regard. Relevantly, the Court notes:
a)the second applicant did not raise any protection claims in his own right in the application for the visa;
b)the invitation to attend the Tribunal hearing was addressed to the attention of both of the applicants (CB 115-116). There was information in the invitation on how the applicants could request an adjournment if they were unable to attend. In the response to hearing invitation, the first and second applicant both indicated that they would be in attendance (CB 117);
c)at the hearing, the second applicant did not attend and the Tribunal was advised by the first applicant that he was working. No request for an adjournment appears to have been made (CB 141 at [3]);
d)the Tribunal appears to have questioned the first applicant about whether the second applicant had any claims he would wish to make and the first applicant confirmed that the second applicant was relying on her claims only and none of his own (CB 141 at [3]); and
e)the invitation to comment on information that was sent after the Tribunal hearing was also addressed to both applicants (CB 128-134).
The Court is satisfied that the second applicant was afforded procedural fairness. The second applicant chose not to participate. That was ultimately a decision for him alone.
On the basis of the above, ground 1 is dismissed.
Ground 2
2. The Tribunal made a finding without supporting evidence.
Regrettably, the applicants have again failed to identify what finding was made without supporting evidence.
At hearing when asked to explain this ground, the first applicant raised issue with the Tribunal’s findings about her children. She explained that her children have no hukou and that they cannot go to school without this even though the Tribunal says that they can.
The first applicant misunderstands the Tribunal’s finding. The Tribunal found that the applicants could apply to have their children registered and obtain a hukou and that access to services, including education, would follow once registered (at [103]). The Tribunal based this finding on the country information it had previously set out. Hence, the finding was supported by evidence and the applicants were given an opportunity to respond to that evidence. The first applicant’s oral submission is, in effect, a disagreement with the country information. The Court cannot assist her in that regard.
The first applicant also submitted that she provided supporting evidence about her brother’s residency status and that he had been granted asylum in the United States. The Court acknowledges that the first applicant provided evidence to the Tribunal that she said proved her brother’s residency status in the United States. The Tribunal noted that this evidence did not support her claim that her brother was afforded asylum in the United States (at [17]). The Tribunal further found at [76] that there were other inconsistencies in the first applicant’s claims based on her brother’s asylum in the United States. The Tribunal considered the supporting evidence. There was no error in the Tribunal’s reasoning in this regard.
To the extent that the first applicant’s oral submissions introduced new evidence or explained matters, the Court cannot consider what was presented. They plainly invite impermissible merits review and are matters that ought to have been put to the Tribunal.
Otherwise, the Court has reviewed the Tribunal’s decision and is satisfied that the Tribunal’s findings were well supported. The Tribunal’s decision is comprehensive. It refers to numerous sources of country information and analytically and forensically details the evidence provided at the hearing.
The basis for many of the Tribunal’s findings was that the evidence provided by the first applicant was not credible. The Tribunal gave cogent reasons for coming to these conclusions and referenced extensive country information to re-inforce its findings. There is a sound basis for each finding that the Tribunal has come to in relation to each of the applicants’ claims for protection.
Without further particulars, the Court is not satisfied ground 2 establishes any error.
Ground 3
3. The Tribunal failed to consider our case on its own merit.
Arguably, this ground can be interpreted in one of two ways:
a)the Tribunal failed to give proper, genuine and realistic consideration to the first applicant’s claims and evidence; or
b)the Tribunal was close-minded.
In relation to any claimed failure to give proper, genuine and realistic consideration, this is not the case here. The Tribunal engaged with the applicant’s claims and evidence intimately. The Tribunal forensically analysed the first applicant’s evidence in relation to each claim and considered these in extraordinary detail. Much of that evidence was provided at the Tribunal hearing. The Tribunal also referred to relevant country information where necessary.
At hearing, the first applicant said that the application was about her, not about her children, and the Tribunal focussed upon her children. This is not accurate. The Tribunal addressed the first applicant’s claims concerning her religious practises and her association with her brother (at [39]-[76]). Contrary to the first applicant’s assertion, the focus upon her children was a matter that was addressed in the context of the first applicant suffering persecution as a result of her being an unwed mother of two children who would have to register her children and may be required to pay a “fee”. The Tribunal clearly and comprehensively addressed the mother’s claims and did not focus solely on her children.
The Court is satisfied that the Tribunal gave proper, genuine and realistic consideration to all of the applicants’ claims.
In relation to any concerns about bias, it is well settled that an allegation of bias is one that must be distinctly made and clearly proven. To prove bias, it is for an applicant to establish that:
a)the Tribunal, in the case of actual bias, was so committed to a conclusion that regardless of the evidence or arguments presented that conclusion was not open to persuasion and incapable of alteration: Minister for Immigration v Jia Legeng (2001) 178 ALR 421 at [71]-[72]; or
b)the Tribunal, in the case of apprehended bias, conducted itself in a way that a fair-minded person would reasonably believe that the Tribunal had not brought an impartial mind to deciding the applicant’s case: SZRUI at [2].
Here, the first applicant did not point to anything that might evidence bias.
On the evidence before the Court it cannot be said that the Tribunal acted subjectively or with an impartial mind. Rather, a close reading of the decision as a whole indicates that the Tribunal undertook a careful analysis of the materials before it. There is nothing to indicate any pre-judgment on the part of the Tribunal.
There is nothing to suggest the Tribunal did anything other than assess the merits of the applicants’ case.
Ground 3, accordingly, fails.
Grounds 4 and 5
4. The Tribunal failed to apply the country information flexibly and individually.
5. The Tribunal erred in applying the country information indiscriminatorily.
On one view, this is simply a plea for impermissible merits review. It is well established that the choice, selection and application of country information is a matter for the Tribunal as a part of its fact finding function: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11] (“NAHI”).
That aside, the ground must also fail on a factual level.
First, the Tribunal clearly applied the country information “flexibly and individually” in circumstances where the country information was specific to the particular circumstances the applicants raised or which were in issue (i.e., hukou registration). To the extent that the Tribunal was required to, it gave the benefit to the applicants in determining if the applicants would be the subject of any adversity (i.e., social compensations fees).
Second, the Tribunal put the country information it was relying upon in relation to the “hukou registration” to the applicants for comment. If it was the case that this country information was not applicable to the applicants individually, or the applicants wanted the Tribunal to use the information in a particular way, then they should have made those submissions and arguments in their response.
Third, the other reference to country information was in relation to the first applicant’s departure from China without incident. The delegate relied on the same information to make a similar finding. Hence, the applicants, if they disagreed, ought to have put to the Tribunal why it should not rely on that information.
There is nothing to suggest the Tribunal used the country information in a “discriminatory” manner toward the applicants or failed to address the changing circumstances in China. Further, the basis on which the Tribunal rejected the substantive claims of the applicant (i.e., those claims the applicants actually raised themselves) was in relation to the credibility of those claims, not the country information.
Ultimately, the Tribunal’s use of country information is a matter for the Tribunal: NAHI. In any event, the Court is satisfied that the Tribunal’s reference to country information was reasonable and logical and the use of that country information to inform its findings on the applicants’ claims was soundly based.
At hearing, the first applicant’s submissions were that that the Tribunal reasoned that because one of her children returned to China and was safe she would be too. She says the Tribunal got this wrong.
These oral submissions are not relevant to grounds 4 and 5 per se, but the Court simply notes that the Tribunal did not reason this way. The Tribunal comprehensively and analytically evaluated whether the applicants would suffer persecution or significant harm on return for the reasons they claimed and for reasons which the Tribunal itself felt necessary to address. The fact that one of the children had returned was of no significance to the Tribunal’s decision.
Ground 4 and Ground 5, accordingly, are dismissed.
Conclusion
The grounds of the judicial review application do not identify any jurisdictional error by the Tribunal. The Court has otherwise assessed the Tribunal’s decision and cannot identify any jurisdictional error in the face of the decision as a whole.
The application must be dismissed.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 6 November 2019
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Procedural Fairness
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Judicial Review
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Jurisdiction
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Natural Justice
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