BAH15 v Minister for Immigration and Border Protection
[2016] FCA 665
•11 May 2016
FEDERAL COURT OF AUSTRALIA
BAH15 v Minister for Immigration and Border Protection
[2016] FCA 665
Appeal from: BAH15 & Anor v Minister for Immigration & Anor [2015] FCCA 3120 File number: NSD 1621 of 2015 Judge: RARES J Date of judgment: 11 May 2016 Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa)
Refugees Convention
Cases cited: ApplicantA v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Date of hearing: 11 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 40 Counsel for the Appellants: The Appellants appeared in person Counsel for the First Respondent: Ms B Rayment Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice ORDERS
NSD 1621 of 2015 BETWEEN: BAH15
First Appellant
BAHI15
Second Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
11 MAY 2016
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal from the decision of the Federal Circuit Court, refusing the appellants constitutional writ relief in respect of the decision of the Refugee Review Tribunal given on 19 May 2015 to affirm the Minister’s delegate’s decision not to grant the appellants protection visas: BAH15 v Minister for Immigration [2015] FCCA 3120.
Background
The appellants are both citizens of the People’s Republic of China and are wife and husband respectively. They have an extensive immigration history. The husband arrived in Australia on 5 May 1998 using a Singaporean passport which, apparently, had been issued genuinely but into which a false photograph of the husband had been inserted. On 15 June 1998 he lodged an application for a protection visa. In that application the husband claimed that in 1989 he had organised an underground political party that had sought to overthrow the Singaporean government and that he had been detained for over six months. He also claimed that he was gay in a State where homosexuality was outlawed. He claimed to have been arrested at a gay party and detained for three months.
Ultimately, on 7 January 1999 the Tribunal, having invited the husband to a hearing that he declined to attend, affirmed the Minister’s delegate’s decision not to grant him a protection visa. The Tribunal found that there was no evidence that any political party of the kind identified by the husband in his protection visa application existed, and it could not find any independent evidence to sustain the husband’s claim that he had been detained following a police raid on a gay party.
The husband, at that stage, had a bridging visa and remained in the community until he was apprehended by the Minister’s Department on 17 September 2013, together with this wife.
The 2010 Tribunal proceedings
In the meantime, the wife had arrived in Australia, on her most recent visit, on 20 June 2010. On 16 July 2010, she applied for a protection visa, together with her husband, who by then was using his real name and nationality. For the purposes of that review by the Tribunal and also its subsequent review, the subject of this appeal, the appellants were represented by a registered migration agent, who assisted them with the forms. At the time of her 2010 application, the wife was 35 years old.
The wife said that after the husband had left China in May 1998, she had remained in their village in Fujian Province until December 2004, when she travelled to Singapore to accompany her son who was studying at school there, and she remained there as a resident until coming to Australia in June 2010.
The wife claimed that she was seeking protection essentially for the following reasons. In China, as a result of the one child policy, she and her husband were unable to have a second child. She claimed that, because they were from a rural area, their tradition required that they needed to have at least two children. She claimed that the then one child policy of China was enforced by requiring her to attend every three months at a family planning clinic for both a pregnancy test and to ensure that she had retained an intrauterine device inserted in her womb so that she would not become pregnant. She claimed that she felt scared and that she wanted to become pregnant, but that she was afraid that if she did fall pregnant she would be forced to have an abortion and would be forcibly sterilised.
The wife noted that her husband had left China in May 1998 and that she had then gone to Singapore in 2004. She claimed that she had left China because she was not allowed to have a second child and had no human rights. She claimed that she and her husband were then, in 2010, living together, that her husband had become a Christian and that they were planning to have a second child after a long period of living apart, but that would not have been allowed were they to be returned to China. The wife had told the delegate, in 2010, that if she were to become pregnant and returned, in that condition, to China, she would be forced to have an abortion, but that, if she returned to China after having given birth to a second child here, she did not expect to have any problems.
She told the delegate that she had no fears about returning to China, apart from her fear of being forced to have an abortion and denied the right to have any further children.
The proceedings in the 2010 Tribunal
The wife made no further claims in her application for review to the 2010 Tribunal. During the course of its 2010 hearing, it took evidence from each of the husband and wife. He told the Tribunal that he had come to Australia and that their plan was that the wife would ultimately join him to have a baby. He was unable, so he said, to remember the basis of his claims for protection made in 1998.
In her evidence to the 2010 Tribunal the wife said that she was aware that her husband previously had submitted fabricated evidence in order to get a visa to come to Australia, and that he had told her at the time that he had fabricated claims about homosexuality because someone had told him that that would help him get a protection visa. She admitted to the 2010 Tribunal that she had told a lie, in her visa application to travel to Australia in 2010 that, at that time, her husband was residing in China.
The 2010 Tribunal found that it had no jurisdiction to consider the husband’s case because his application for protection had been refused in 1999. It refused the wife’s application for review of the delegate’s decision not to grant her a protection visa under s 36(2)(a) of the Migration Act 1958 (Cth). The 2010 Tribunal accepted that the appellants had been married in February 1997 and that they had a son who was born in early 1998. The 2010 Tribunal found that the wife had travelled to Australia on her Chinese passport, issued in Singapore in 2007, and subsequently on a visa issued to her in May 2010. She had also travelled to Thailand, Malaysia and had returned to China at least once.
The 2010 Tribunal found that it was not satisfied that the appellants’ claim, that they wished to have a second child, was anything more than an excuse to prolong their stay in Australia, and it was not satisfied that they wished to have a second child. Nonetheless, it examined the possibility that had the wife fallen pregnant again, one of three scenarios might have applied to her, were she to return to China namely, first, having had the second child, secondly, while pregnant with that child, or thirdly, before any such pregnancy occurred.
The 2010 Tribunal found that, if the wife returned to China with a second child having been born here, it accepted her statement that she did not expect to have any difficulties amounting to persecution in those circumstances. It thus found that she would not be at risk of persecution if she returned with a second child who had been born here. Next, it found that there was no real chance that she would return to China while pregnant, particularly since she had made clear to the 2010 Tribunal that, in the event of the decision under review being affirmed, she intended to pursue all legal options available to her to have that decision overturned. It found that it was a matter of public record that it took many months for such proceedings to run their course in this country. In the circumstances of this case, that has proved to have been a significant understatement. Last, the 2010 Tribunal found that were the wife to return to China without either having fallen pregnant, or had a second child in this country, she would be in the same situation as she had been in before she left China. It found that any social compensation fee payable in respect of any second child, and the use of intrauterine device would not amount to persecution for a Refugees Convention reason.
Importantly, the 2010 Tribunal found at [89] that:
89.It is clear from the situation described by the applicant that both she and her husband have provided false information to the Department in order to secure visas to come to Australia and in the husband’s case in order to remain here. The Tribunal finds that the applicant and her husband are people who are prepared to provide misleading information in order to secure a migration outcome. In these circumstances, the Tribunal is not satisfied that the claim they wish to have a second child is anything more than an excuse to prolong their stay in this country. The Tribunal therefore cannot be satisfied that the couple are wishing to have a second child.
Accordingly, it affirmed the decision under review.
The 2015 Tribunal proceedings
Each of the appellants had been on a bridging visa, for the purposes of the 2015 Tribunal’s review. The husband had become an unlawful non-citizen in August 1999 and the wife, when her bridging visa expired, in late December 2010. They were located by the Minister’s Department on 17 September 2013. At that time they were able to make a subsequent claim for complementary protection under s 36(2)(aa) of the Act, despite their having failed to establish any entitlement to protection under the Refugees Convention.
On 23 May 2014, the delegate refused to grant them visas on the complementary protection ground. On 14 May 2015, both appellants appeared before the 2015 Tribunal and gave evidence and presented arguments, represented again by a registered migration agent. At the conclusion of the hearing, the 2015 Tribunal allowed the appellants a further opportunity to the end of the next business day after that hearing to provide any further evidence of any description. Neither appellant availed himself or herself of that opportunity.
The 2015 Tribunal noted that the wife had informed it that she was, in effect, a Buddhist, but “did a little bit of Christianity”. It accepted the wife’s evidence, at the 2015 hearing, that the claims the appellants had advanced to it would not result in them facing serious or significant harm in China, were they to return to China. It noted that they had thanked the Australian Government for the opportunity of lodging a further protection claim and that the wife requested that they be allowed to remain here, given their lengthy stay in this country. It found that, given their migration history, and their evidence to the 2015 Tribunal that they did not fear serious or significant harm in China, that both appellants did not have a subjective fear of persecution.
The 2015 Tribunal examined whether there was any Refugees Convention reason for the appellants having such a fear, before turning to examine the complementary protection ground. It found that the wife was a Buddhist, and not Christian, by religion, based on her own evidence to that effect, and that neither appellant feared persecution in China for religious reasons. Accordingly, the 2015 Tribunal found that there was no real chance that they would face persecution in China for reasons of religion. It also found that both appellants had entered and exited China without difficulty and, in the wife’s case, had travelled to and from China extensively, based on her own evidence and that in her passport. It found that, based on those facts, neither appellant was of adverse interest to the authorities in China for any Convention or other reason.
The 2015 Tribunal found that there was no real chance that the wife would have a second child, and that even if she returned while pregnant to China there was no real chance that she would be forced to have a termination of that pregnancy, there.
The 2015 Tribunal rejected the wife’s claim that having to pay a social compensation fee and comply with the family planning regulations could amount to serious or significant harm, for the purposes of s 36(2)(a) or (aa) of the Act, because those laws were laws of general application, of a non-discriminatory kind, as held in ApplicantA v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. It concluded that the appellants would not face a real chance of persecution for reasons of any breach of family planning laws in China, and that, in any event, any impact on them of those laws would not amount to persecution for any Convention-related reason. It found that any harm that the appellants might suffer on this basis would not amount to persecution as it would be a result of conduct that was not discriminatory, but rather the implementation of a law of general application that would not amount to persecution.
Next, the 2015 Tribunal then turned to the complementary protection ground and found that there were not substantial grounds for believing that the appellants would face significant harm at the hands of any potential agents of harm in China, and accordingly, that Australia’s complementary protection obligations, within the meaning of s36(2)(aa), were not engaged.
The proceedings before the trial judge
On 15 June 2015, the appellants applied to the Federal Circuit Court to review the 2015 decision by filing an application that contained five grounds. These grounds confused the decision-making role of the delegate and Tribunal. In essence, the appellants complained that:
·the Minister had not attempted to consider their claims relating to religion;
·the Minister had not taken all relevant considerations into account;
·the 2015 Tribunal had exhibited express bias in its findings relating the complementary protection ground;
·the 2015 Tribunal had denied the appellants natural justice; and
·the 2015 Tribunal had no evidence to support its findings in which it applied Applicant A 190 CLR 225.
On the first return date, 23 July 2015, a registrar of the Federal Circuit Court made directions giving the appellants an opportunity to file an amended application, affidavit evidence and written submissions. The appellants did not file any documents pursuant to the directions of 23 July 2015. The matter came to be heard by the trial judge on 23 November 2015.
His Honour rejected the five grounds in the application. He found that to the extent that the appellants sought to challenge the delegate’s decision, he would treat that as a challenge to the 2015 Tribunal’s decision. In those circumstances, first, he found that the 2015 Tribunal had taken into account the wife’s evidence in relation to her religion and made findings that were open to it on the evidence. I agree. Secondly, he found that the 2015 Tribunal had not confined its analysis of the appellants’ claims and evidence to the delegate’s interview with them, and that they had been given an opportunity to give evidence and present arguments, which they did at the hearing before the Tribunal on 14 May 2015, together with the further opportunity to submit material after the hearing to which I have referred. His Honour noted that the appellants had not identified anything on which they relied to support the ground that the 2015 Tribunal had failed to take all relevant considerations into account. I agree. Thirdly, he also rejected the allegation of bias as being unfounded, for the reasons with which I also agree. Fourthly, he found that its adverse findings in relation to the appellants’ claims were open on the evidence and that there was no substance in their assertion that they had been denied procedural fairness. I agree. Last, he found that there was evidence to support the adverse findings and that the 2015 Tribunal had made no jurisdictional error in that regard. I agree. Indeed, those findings were open by reason of Applicant A 190 CLR 225. Of course, there was no jurisdiction to challenge the delegate’s decision before the 2015 Tribunal because of s 476(2)(a) of the Act, and that decision had been subsumed in the 2015 Tribunal’s decision.
This appeal
The notice of appeal in this Court raised five grounds. Those grounds, again, confused the respective decision making roles of the delegate and the 2015 Tribunal, but I will address them as his Honour did, on the basis that the appellants claim that the 2015 Tribunal erred in the exercise of its jurisdiction. The notice of appeal contended, in substance, the 2015 Tribunal erred because:
·it had failed to consider that the appellants were at risk of significant harm, were they to return to China, because they would have an imputed political opinion based on their forbidden practice of their religion and it had failed to give them a fair hearing, in accordance with s 425 of the Act;
·it was biased against them in relation to their claims concerning both religion and family planning because of its “having a ‘full blanket’ rejection of all those claims”;
·it had failed to exercise its discretion and had not taken into account all relevant considerations in making its decision, having had regard only to the interview with the delegate;
·it had denied them procedural fairness, “particularly regarding the dire consequences for the [appellants] and their children on their return to their country of origin”;
·its decision was an improper exercise of power, because no relevant considerations had been taken into account other than the decision record of the delegate, and it had not fairly conducted its fact finding functions because it had used irrelevant lines of questioning in the hearings.
The appellants both appeared in person before me and were unable to articulate any intelligible argument in support of any of those grounds of appeal. They had filed an outline of written submissions which, the wife told me, had been prepared by a friend. Those submissions appear to have been addressing, at least in part, a completely unrelated case. For example, paragraph 1 of those submissions referred to the appellants’ claim not to have been heard fairly in relation to the risk of significant harm, “due to the imputation of status of discrimination to the appellant and his mother by the Chinese authorities”.
Since both the husband and the wife were the appellants, and there was no question in relation to their son, who, by the time of the hearing before the 2015 Tribunal, had returned to China to live with his aunt, this submission had nothing to do with the appeal. The written submissions also asserted that his Honour had denied the appellants a fair and genuine hearing, due to the unavailability of all untranslated documents on which they had planned to rely. That submission was unsupported and nonsensical in the context of this appeal.
Both the 2015 Tribunal, during and at the conclusion of its hearing, and the Federal Circuit Court’s directions of 23 July 2015, offered the appellants a full opportunity to present all of the material on which they wished to rely, that they had not already deployed. Those opportunities were not availed of by the appellants.
However, some of the written submissions clearly do relate to the appellants’ case, although they make some assertions that the appellants did not, and do not appear to have been able to, substantiate, such as that they had attempted to submit further material evidence that had not been properly dealt with by the 2015 Tribunal. There is no evidential foundation for that assertion.
The submissions repeated the allegation of bias, for which there is no basis. They asserted that the 2015 Tribunal had not given the appellants a fair hearing. Again, in my opinion, the decision record of the 2015 Tribunal, does not demonstrate any such position. The 2015 Tribunal gave the appellants every opportunity to give evidence and present arguments, in accordance with its duty under s 425, and they did so assisted by their migration agent.
The submission asserted that the appellants would rely on further oral submissions to support their grounds. However, when I asked the appellants to elaborate upon their grounds of appeal they were unable to do so, saying, understandably, that they were nervous and did not know what to say. The wife asked that they be given a second chance because they had been in this country so long, but that they did not know what the legal issues were that might be relevant to these proceedings.
In my opinion, none of the grounds of appeal has any substance whatsoever. Treating the first ground as a complaint that the 2015 Tribunal had failed to consider the risk of either serious or significant harm to them due to their practising Christian religion, it is plain, beyond argument, that the wife abandoned any such claim in relation to her application, and the husband made no such claim in relation to his, as the 2015 Tribunal found. The wife had given evidence that she was Buddhist, that Christianity was not her religion, and that both appellants did not fear persecution in China for religious reasons.
The second ground, in effect, repeated the third ground before the trial judge. There is no basis on which any argument could possibly be made that the 2015 Tribunal did not provide the appellants a hearing in accordance with s 425 of the Act, or that it exhibited any form of apparent or actual bias in relation to their claims to protection under s 36(2)(a) and (aa) in relation to each of religion and family planning. The 2015 Tribunal did not make a blanket rejection of those claims. Rather, it rejected those claims on the basis of the evidence before it, particularly the appellants’ own evidence that they did not have any substantive basis for the fears on which their claims were founded. I need say no more about the unsupported claim, in relation to the appellants fearing significant harm by reason of the practice of religion, that the 2015 Tribunal was entitled to reject on the facts before it.
Moreover, the 2015 Tribunal made findings that there was no real chance that the wife would have a second child, but that even if she did, its findings as to what might happen to her were reasoned and dealt with as factual matters that do not demonstrate that it fell into any jurisdictional error.
The third ground is an unparticularised assertion that the 2015 Tribunal had failed to exercise its discretion and had not taken into account relevant considerations. The appellants gave no basis for suggesting why that ground had any substance to it. Having read the 2015 Tribunal’s decision, considered the material in the appeal papers, and the appellants’ written and oral submissions, I am unable to discern any basis on which it is possible to find that the third ground has the slightest substance.
The fourth ground is, in essence, a repetition of the second ground, namely, that the 2015 Tribunal had denied the appellants natural justice. Its reference to “their children” raised a factual irrelevancy, since they only have one child and he was in China at the time of the 2015 Tribunal’s decision. The appellants raised no question at all as to any fears that they had in relation to his position.
The last ground is, again, an unparticularised set of assertions that find no support in any of the material before me.
Conclusion
For these reasons, the appeal must be dismissed with costs.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 3 June 2016
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