AUY15 v Minister for Immigration

[2018] FCCA 1875

FEDERAL CIRCUIT COURT OF AUSTRALIA

AUY15 & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1875

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – no matter of principle.

Legislation:

Tribunals Amalgamation Act 2015, item 15AG of sch.9

Migration Act 1958, ss.36, 425, 474, 477

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235

First Applicant: AUY15

Second Applicant: AUZ15

Third Applicant: AVA15

Fourth Applicant: AVB15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1401 of 2015

Judgment of: Judge Cameron

Hearing date: 5 June 2018

Date of Last Submission: 5 June 2018

Delivered at: Sydney

Delivered on: 5 June 2018

REPRESENTATION

The Second Applicant appeared in person

Solicitors for the Respondents: Ms C. Hillary of DLA Piper

ORDERS

1. The application be dismissed.

2. The second and third applicants pay the first respondent’s costs fixed in the amount of $5,300.00.

3. The Administrative Appeals Tribunal replace the Refugee Review Tribunal as second respondent in this proceeding.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1401 of 2015

AUY15

First Applicant

AUZ15

Second Applicant

AVA15

Third Applicant

AVB15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The second and third applicants are citizens of China and are the parents of the first and fourth applicants, who were born in Australia in 2008 and 2013 respectively.  The second applicant, who is the mother of the first and fourth applicants, arrived in Australia on 3 August 2005 and the third applicant, who is their father, arrived in Australia on 30 January 1997.  On 9 December 2010 a previous protection visa application, lodged with what is now the Department of Home Affairs (“Department”) for the first, second and third applicants, was refused by a delegate of the first respondent (“Minister”).

2. On 22 May 2014 the first applicant lodged a second protection visa application with the Department that included the second, third and fourth applicants as secondary applicants.  The applicants alleged that they feared persecution in China because of their religious beliefs and because they had breached China’s family planning policies.

3. On 6 February 2015 the applicants’ application was refused by a delegate of the Minister. The applicants then applied to the Refugee Review Tribunal (“Tribunal”), a predecessor of the second respondent, for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision: item 15AG of sch.9 to the Tribunals Amalgamation Act 2015.

4. On 18 June 2015 the Court appointed the second applicant litigation guardian of the first and fourth applicants.

5. The applicants sought an extension of time within which to bring the proceeding. As their application had been filed within the limitation period prescribed by s.477 of the Migration Act 1958 (“Act”), that application for an extension of time need not be considered.   

6. In these judicial review proceedings the Court cannot rehear the applicants’ application for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 of the Act; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

7. For the reasons which follow, the application will be dismissed.

BACKGROUND FACTS

1. In its decision the Tribunal summarised the facts alleged in support of the applicants’ claim for protection.  As summarised by the Tribunal, the applicants relevantly made the following claims:

   a)the first applicant feared discrimination in China because she was born in breach of China’s family planning policies.  She also feared harm there because of her Catholic religion;

   b)the second and third applicants were de facto partners and therefore their children had been born out of wedlock, in breach of China’s family planning policies.They would not be able to pay the substantial fines required to register their children and consequently their children would be denied public education, social welfare and social security in China;

   c)the second applicant feared harm in China for reporting fraudulent activity by a supermarket where she had previously been employed; and

   d)the second applicant had a record with the Chinese Public Security Bureau for attending a particular church in China and she would face “unimaginable consequences” if she were found to have been involved in local church activities in China and overseas.

The Tribunal’s decision and reasons

1. As noted by the Tribunal in its decision, the first, second and third applicants had previously been refused protection visas in Australia. Their previous applications had been considered only by reference to the criteria under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”), pursuant to s.36(2)(a) of the Act. Following the decision in SZGIZ v Minister for Immigration & Citizenship (2013) 212 FCR 235, the Tribunal correctly understood that it was limited to considering the first, second and third applicants’ claims by reference to the complementary protection provisions in s.36(2)(aa) of the Act. As the fourth applicant had not previously made an application for a protection visa, the Tribunal considered his claims against both the Convention and complementary protection provisions.

2. After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations.  The Tribunal’s findings and reasons were summarised by the Minister in his written submissions in the following terms which I adopt:  

   12.In relation to claims advanced in respect of the applicants’ religion, the RRT found that the second named applicant was not a Christian.This was based on her failure to raise any claims in relation to her religion until some five years following her arrival in Australia including absence of such a claim in the first protection visa application.  The RRT also concluded that the second named applicant’s recent involvement in the Local Church was for the purposes of procuring evidence to support her family’s Protection visa application.  The RRT did not accept that the second named applicant was a genuine Christian, that she was harmed in China for this reason or that her children had ‘followed’ her religion.

   12.1The RRT considered that the letter from the Local Church in Sydney submitted by the [second] applicant failed to establish that its author had any knowledge of the [second] applicant’s particular circumstances or when she began attending the church.

   12.2The RRT noted that evidence had not been presently advanced by the third named applicant in relation to his religion but that he had previously claimed to be a Catholic.Due to the limited evidence available, the RRT was not satisfied that the third named applicant is Catholic or that he suffered harm for this reason.

   12.3The RRT was not satisfied that the applicants’ minimal involvement in Christian churches in Australia will result in their suffering significant harm on return to China. 

   12.4The RRT also found that in any event, country information established that organised underground Christians, including members of the Local Church and Catholics, would not suffer harm in China.  Accordingly the RRT found that even if the second and third named applicants practise Christianity or raise their children as Christians in China there is not a real risk of significant harm. 

   13.The RRT had regard to claims advanced in respect of breach of China’s family planning laws.  The RRT found that the second and third named applicants were legally married and that a fine was payable only in respect of the fourth named applicant. 

   13.1This finding was based on the birth certificates submitted in respect of the first and fourth named applicants which showed that the second and third named applicants were married on 1 October 2006.  The RRT rejected the second named applicant’s evidence that was contrary to this official documentation.  The RRT concluded that the second named applicant had attempted to provide untruthful evidence and that in light of its findings further inquiries on the issue were not required.

   13.2On the basis of the second and third named applicants being legally married, the RRT did not accept that a fine will be payable for the first named applicant.  Further the RRT concluded that the first named applicant would be able to obtain household registration and enjoy the same benefits as other Chinese national children.

   13.3The RRT accepted that the fourth named applicant was born in breach of the family planning laws in China and that he will be liable for a fine.  The RRT had regard to the evidence given to the delegate and at the hearing in relation to the second and third named applicants’ current income streams.  The RRT did not accept the “IOU” documents as reliable.  The RRT found that the applicants were not truthful about the family’s income, that the applicants will have family support in China and that the third named applicant will be able to find employment in China.  On this basis the RRT was satisfied that the second and third named applicants would be able to pay the fine for the fourth named applicant and that he would not be a “black child”.

   14.The RRT also considered the second named applicant’s claim to have exposed fraudulent activity by a supermarket where she was previously employed.  The RRT did not accept that the second named applicant had reported her employer to authorities, that her underground activities were consequently reported to the authorities, that she was assaulted by goons or that she would suffer significant harm on return to China in connection with this claim.

   15.The RRT considered whether the fourth named applicant would suffer serious harm for a Convention reason on return to China.  In light of the findings above, the RRT found that the fourth named applicant would not suffer serious harm for breach of the family planning laws or for practise of Christianity. 

   16.The RRT found that the first, second and third applicants did not satisfy section 36(2)(aa) of the Act, and the fourth applicant did not satisfy section 36(2)(a) or 36(2)(aa) of the Act. Further, the RRT found that it followed that the applicants were unable to satisfy the criteria set out in sections 36(2)(b) or (c) of the Act. (References omitted)

PROCEEDINGS IN THIS COURT

1. In their application commencing this proceeding the applicants alleged:

   1.The First Respondent did not attempt to make consideration in relation to all the claims relating to religion in particular.

   2.The First Respondent took only the interview outcome with the Applicants into the account and not all relevant consideration in making determination.

   3.The Second Respondent failed to exercise discretion and did not take into account of all relevant considerations in respect of the applicants claim in relation to their religion as stated in paragraphs 21 to 24 in their determination, and paragraph 18 explicitly sets out the bias against the applicant’s ‘belated’ claims relating to religion; ‘the full blanket’ rejection of all these claims denied the applicants natural justice or procedural fairness in making the determination. The Second Respondent failed to take full and due consideration of the evidence provided after the hearing as in paragraph 21 to 24.

   4.In paragraph 25 to 35, in particular to paragraphs 25, 28, 34 and 35, the second Respondent denied the applicants natural justice or procedural fairness in making determination whilst maintaining that the applicant’s claims of the consequences for herself and the children are not accepted. In doing so, the second respondent did not give proper consideration as to the particular financial circumstances and hardship that the applicants have found themselves into, the real threat and harm against them and particularly towards the children on their return to the country of origin (as reflected prominently in paragraph 30 and 32 in the determination).

   5.Paragraphs 25-34 in the determination of the Second Respondent was an improper exercise of power whereby no relevant considerations have been taken into account other than the decision record of the First Respondent, and the Second Respondent allegedly did not fairly conduct the fact finding under the statutory requirement by way of using irrelevant line of questioning in the hearings.

   6.There was no evidence to support finding in paragraphs 24 and 34 in the determination of the second respondent that the due consideration being taken of the factors raised by the applicant in the hearings and in her submission made earlier (to both the First Respondent and the second respondent);

2. The second applicant appeared at the hearing of this application for all applicants.

Grounds 1 and 2

1. The first two grounds of the applicants’ application seek review of the delegate’s decision.  The Court may only review, relevantly, decisions of the Tribunal and so these allegations will not be considered further.

Ground 3

1. In the first element of the third ground of the application, the applicants contended that the Tribunal had not taken all relevant matters and evidence into account when considering their claim to fear harm on religious grounds.  The Tribunal referred to the religion-based claim and noted that claim’s history.  The Tribunal also recorded at paras.9, 15 and 18 to 20 of its decision record what had been said by the second applicant at its hearing in that connection.  The applicants did not suggest that those paragraphs were incorrect or incomplete summaries.  Importantly, the applicants’ religion-based claims were analysed and considered in some detail by the Tribunal at paras.21 to 23 of its decision record.  It has not been demonstrated that any material element of the applicants’ claims was not considered there.

2. The second element of the third ground of the application was an allegation of bias by reference to para.18 of the Tribunal’s reasons, where the disbelief concerning this claim expressed by the earlier Tribunal was recorded.  The applicants sought to make much from a simple historical narrative.  There is no reason, based on the contents of the Tribunal’s decision record, which is the only relevant evidence before the Court, to believe that the Tribunal did not reach its own conclusion on the applicants’ religion-based claims.  I do not perceive the Tribunal’s decision to have been affected by prejudgment based on the earlier Tribunal decision and findings.

Ground 4

1. The fourth ground of the application alleged that a denial of natural justice had occurred without identifying how this was said to have been the case.  As pleaded, this allegation lacked meaningful substance.  However, at the hearing of the application the second applicant contended that the Tribunal’s hearing had been too brief, that it had been difficult to conduct because of the presence of her second child and that the Tribunal had failed to ask sufficient questions. 

2. Dealing with the latter point first, the applicants did not identify a reason why the Tribunal should have asked more questions than it did or should have asked questions which it did not ask.  Absent a proper basis for judicial inquiry, the Tribunal’s conduct of its review was a matter for it.  It was so in this case.

3. Next, I accept, based on the “RRT hearing record” at pp.214 to 215 of the Court Book which was exhibit A, that the hearing took about 1.5 hours.  The applicants did not suggest that they had sought an extension of the hearing or that they had been denied an opportunity to file any post-hearing submissions which they might have wished to make.  In the absence of a transcript of the Tribunal hearing, as is the case in this matter, all the Court has before it today is the second applicant’s submission that she thought the hearing was too short.  Objectively, that seems unlikely given the comparative simplicity of the applicants’ claims.  But, in any event, the applicants’ contention does not rise higher than an impression.  No basis was advanced upon which the Court could conclude that the applicants’ right to a real and meaningful hearing was compromised in this case.

4. As to the infant fourth applicant’s presence at the hearing, again, nothing substantive was advanced, even by way of untested submission, which would give rise to a real concern that s.425 of the Act had not been observed.

Ground 5

1. The issues raised by this ground have already been largely addressed by the reasons given in connection with the grounds of the application already considered. 

2. In addition, at the hearing of this application, the second applicant submitted that the Tribunal had not properly considered issues associated with the family’s ability to pay a social compensation fee arising out of their breach of the family planning laws of China.  However, the submission failed to take account of paras.25 to 32 inclusive of the Tribunal’s decision record, which contained a detailed consideration of the matters advanced by the applicants in support of their claim to fear harm in China by reason of their breach of that country’s family planning laws.

Ground 6

1. In both paras.24 and 34 of its decision record, the Tribunal stated that it was not satisfied of certain of the applicants’ contentions or that their situations engaged Australia’s protection obligations.  The conclusions expressed in those paragraphs were based on paragraphs of the decision record which preceded them.  Those preceding paragraphs provided a solid foundation for the conclusions which the Tribunal reached. 

CONCLUSION

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  12 July 2018