BEE16 v Minister for Immigration
[2017] FCCA 1935
•15 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEE16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1935 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming fear of harm in China – first applicant not believed – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.91R, 424A |
| Cases cited: BAX15 v Minister of Immigration [2016] FCA 491 SBBF v Minister for Immigration [2002] FCAFC 358 SCAA v Minister for Immigration [2002] FCA 668 Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 SZHVL v Minister for Immigration (2008) FCA 356 |
| First Applicant: | BEE16 |
| Second Applicant: | BEF16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1228 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 August 2017 |
| Delivered at: | Sydney |
| Delivered on: | 15 August 2017 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms L Buchanan of Australian Government Solicitor |
ORDERS
The application filed on 17 May 2016 is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1228 of 2016
| BEE16 |
First Applicant
| BEF16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 29 April 2016. There are two applicants who are a mother (applicant) and her elder child. A second child was born during the course of the visa application process. The Tribunal found that it had no jurisdiction in relation to the second child because there had been no decision in respect of that child by the delegate. I have no reason to doubt the correctness of that decision. It follows that the second child is free to make whatever claims for protection she may choose in the future. I was told by the applicant that she has not yet done so.
Background facts are otherwise set out in the Minister’s outline of submissions filed on 8 August 2017.
The applicants are both citizens of the People’s Republic of China (China). The applicant arrived on 16 September 2007 as the holder of a student visa. The applicant was granted further student visas, the last of which ceased on 29 October 2014. The second applicant was born in Australia on 31 May 2013.[1]
[1] Court Book (CB) 47
On 25 November 2013, the applicant lodged an application for a protection visa with her child named as a member of her family unit.[2] On 6 February 2015, the applicant and her child attended an interview with a delegate of the Minister. On 10 February 2015, the delegate refused the application.[3]
[2] CB 1-39
[3] CB 44-74
On 16 March 2015, the applicants applied for review of that decision with the former Refugee Review Tribunal (RRT).[4]
[4] CB 75-85
The applicant attended two hearings before the Tribunal on 1 March 2016 and 16 March 2016.[5]
[5] CB 112-3, 124-5
The Tribunal made its decision on 29 April 2016, affirming the decision of the delegate.[6]
[6] CB 135-158
In a statement provided with her protection visa application,[7] the applicant claimed to fear harm in China as follows:
a)the applicant was a member of a Local Church and was baptised when she was 10 years old. She attended church with her siblings. While the applicant was at school, she and her brother were twice arrested and investigated by local authorities due to their church attendance. After the applicant was warned that if she was caught again she would be sent to re-education camp and would be expelled from school, she stopped attending the Local Church. Since coming to Australia, the applicant had been attending a small bible study class with other Chinese nationals. She claimed that after her cousin came to Australia in 2011, he was arrested on return having taken back to China a book about the Local Church and her parents were intimidated by the police;
b)she has violated China’s birth control policy having become a single mother while in Australia. The father of the child was also a Chinese national and his family had a Falun Gong background. The applicant feared being penalised at least 50,000 yuan which she cannot pay and her family will not help her.
[7] CB 36-7
The applicant sought a postponement of her first listed hearing before the Tribunal on the basis that she was due to give birth to a second child.[8] Before the Tribunal, evidence was also given that the applicant had reconciled with the father of her first child, that they now had a second child, and were living together.[9]
[8] CB 109
[9] CB 137, 139-144
To the Tribunal, the applicant claimed she would also be targeted by the Chinese authorities because her boyfriend’s family are Falun Gong practitioners. She also claimed that she would have to pay social compensation fees for both children and her child would be discriminated against due to being born in breach of China’s policies.[10]
[10] CB 143-4
On 29 March 2016, the Tribunal wrote to the applicant seeking her comment on information, being that the Tribunal had separately made a decision not to grant the applicant’s partner a protection visa and found he was not a Falun Gong practitioner and was not of adverse interest to the Chinese authorities. The applicant responded to that invitation by letter dated 21 April 2016.[11]
[11] CB 131-3
Tribunal’s reasons
The Tribunal found that the applicant was not a witness of truth and was not satisfied that she told the truth in relation to critical aspects of her claims.[12]
[12] CB 145
The Tribunal placed significant weight on the delay in the applicant lodging her protection visa application, being more than six years after her arrival in Australia and 18 months after her studies ceased. The Tribunal found that if the applicant genuinely feared returning to China she would have sought protection sooner than she did and the Tribunal did not accept the applicant’s explanations for why she did not do so.[13]
[13] CB 145-6
The Tribunal found the applicant’s evidence about her involvement in the Local Church to lack credibility. The Tribunal did not accept that the applicant was ever a member of the Local Church in China or that she ever came to the attention of the local authorities because of her attendance at or involvement with the Local Church and accepted the applicant’s evidence that she was not a member of the Local Church in Australia.[14]
[14] CB 146-7
The Tribunal did not accept that the applicant met with other people in Australia and sent religious material back to China given her vague evidence about the meetings and material. The Tribunal noted that the applicant only started attending the Grace Evangelical Church in Sydney six months after she lodged her protection visa application and seven years after she arrived in Australia.[15] While the Tribunal accepted that the applicant had attended that church from April 2014, was baptised in June 2015 and had not been able to attend church regularly since the birth of her second child, in light of the applicant only attending the church after her protection visa interview with the Department and her vague evidence in relation to her understanding of Christianity, the Tribunal found that the applicant only started attending church in Australia for the purpose of strengthening her claims for protection and disregarded this conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act).[16]
[15] CB 146-7
[16] CB 147-8
The Tribunal found that the applicant did not have an understanding of Christian beliefs commensurate with someone who claimed to be a committed Christian who would continue her religious practice upon return to China, including as part of the Local Church. The Tribunal was not satisfied that the applicant is a genuine Christian or that she would attend Christian meetings or proselytise if she returned China. It did not accept that the applicant would face harm due to any Christian beliefs.[17]
[17] CB 148
The Tribunal was not satisfied that the applicant had not married for any reason other than strengthening her claims to fear harm. It found that she and her partner would marry and they would be able to obtain household registration for their children. The Tribunal did accept that the applicant would likely be required to pay a social compensation fee for her children born outside of marriage and therefore in breach of China’s family planning policy. The Tribunal found that the applicant had limited employment experience and would undertake unskilled work on return. However, having considered country information, the Tribunal found that the applicant would be able to obtain registration for her children before paying any social compensation fees and that she may be able to pay fees by instalments. While the Tribunal accepted that it may be financially difficult to pay the fees and the applicant may face discrimination and stigma for having children out of wedlock, it found that she would not face either serious or significant harm arising from these matters.[18]
[18] CB 148-153
The Tribunal was not satisfied that there was a real chance or a real risk that the applicants were of adverse interest to the authorities in China as a result of being a member of a Falun Gong family or that they would suffer serious or significant harm as a result.[19]
[19] CB 153
The Tribunal considered the applicant’s claim that her child would suffer discrimination and harassment as a result of being a child born outside the family planning policy. In light of the Tribunal’s earlier findings, it found that the second applicant would be able to obtain the benefits of household registration. The Tribunal also considered whether the second applicant would face discrimination, stigma or ostracism due to her illegitimacy but was not satisfied that any such matters would give rise to a real risk or chance of serious or significant harm.[20]
[20] CB 153-4
The present proceedings
These proceedings began with a show cause application filed on 17 May 2016. The applicants continue to rely upon that application. There are five grounds in it:
1.The First and Second Respondent took irrelevant facts into account of considerations in making the determination. the delayed of lodgement time of protection visa should not be considered as the key fact of the genuineness.
2.The Second Respondent denied the applicants natural justice or fairness in making the determination without thoroughly examining the full claim in particular to their claim of harm and the potential harm will be suffered when return of their country.
3.The First and in particular to the Second Respondents both failed to consider that it does not matter the length of being Christian, it does matters of the quality and genuineness of being Christian. The First and Second Respondents did not take these point.
4.The Tribunal has referenced regulations in CHINA to prove the applicant will not face harm when they return to CHINA even the child is “out of plan”, however, it does not realize the execution of law in CHINA is very weak, it mainly depends on the local government authority, and it exists the corruption in small area, the mother will be punished if she does not pay the certain amount of fine, and the amount will not be according to the regulation, which she can not afford.
5.The determination of the Second Respondent did show bias against the applicants.
(errors in original)
I have before me as evidence the book of relevant documents filed on 25 July 2016.
Only the Minister prepared written submissions in accordance with procedural orders made by a registrar.
I invited oral submissions from the first applicant this afternoon. She raised a number of issues. First, she pointed out that the same Tribunal member had earlier dealt with her partner’s claim for protection, and she asserts that this gives rise to an apprehension of pre-judgement. I do not accept that submission. The applicant and her partner might have made a single application if they had chosen to. The two applications which were in fact made might have been heard concurrently by the same member. There is no implication of bias arising from the same Tribunal member dealing with the two separate applications separately.
The applicant’s partner had claimed protection (apparently with his father) on the basis of being Falun Gong practitioners. That claim was rejected by the Tribunal. Because the first applicant had claimed a fear of harm by reason of being part of a Falun Gong family, the Tribunal wrote to the applicants pursuant to s.424A of the Migration Act, raising adverse information concerning the failure of that claim with them. The Tribunal thereby complied with its obligations under that section.
The applicant’s partner has apparently appealed to this Court against the Tribunal’s decision in his case. I am told that that application has not yet been heard.
The applicant also made submissions concerning the Tribunal’s findings on the Chinese one child policy. In my opinion, those submissions go to the merits of the Tribunal decision and not any issue of the validity of it.
In other respects, I agree with the Minister’s submissions on the grounds of review.
The first ground asserts that the Tribunal took irrelevant facts into account by considering the delay in the applicant lodging her protection visa application. No error arises from the Tribunal’s consideration of this matter. It was open to the Tribunal to regard the applicant’s delay in seeking protection as a relevant matter to the credibility of her claims.[21]
[21] See for example, BAX15 v Minister of Immigration [2016] FCA 491 (Perry J), Selvadurai v Minister for Immigration [1994] FCA 1105; (1994) 34 ALD 347 at 349 (Heerey J)
The second ground asserts a denial of procedural fairness by not thoroughly examining the applicants’ full claims to fear harm. No particulars are provided as to the nature of the denial of procedural fairness or what claim was not considered. In the absence of such particulars, the ground must fail. In any event, on the evidence before the Court, the Tribunal considered the claims raised by the applicants.
The third ground asserts error by the Tribunal failing to consider “that it does not matter the length of being a Christian, it does matters of the quality and genuineness of being Christian”. While it is not entirely clear what error the applicants are alleging, it is not the case that the Tribunal only considered the length of time the applicant had been Christian in making its findings and no error arises. The Tribunal considered the applicants’ claims relating to Christianity at length, both in China and in Australia.[22] Ultimately, it was not satisfied that the applicant was a genuine Christian at [85].[23]
[22] at CB 146-148
[23] CB 148
The applicants’ fourth ground asserts error by the Tribunal in relation to findings made relying on country information about the payment of the social compensation fee. It appears that the applicant is asserting that the Tribunal failed to take into account matters relating to the local enforcement of the regulations in China and that the applicant may nonetheless face harm. The applicant has not provided any evidence of raising any such issue before the Tribunal. According to the Tribunal decision record, it raised with the applicant at hearing country information relating to the payment of the social compensation fee and the applicant’s only comment was to insist she had no income in China and would have no support to pay the fee.[24] These matters were considered by the Tribunal.
[24] CB 143-4 [53]-[55]
Finally, the applicants contend that the Tribunal decision shows bias against the applicants. No particulars as to the allegation of bias are raised. As has been noted previously, it is a rare case where bias is established solely on the basis of the Tribunal’s reasons for decision.[25] There is nothing in the Tribunal’s reasons which in any way suggests the Tribunal did not bring an open and impartial mind to its task. I reject this ground.
[25] eg SCAA v Minister for Immigration [2002] FCA 668 at [38] (von Doussa J), SBBF v Minister for Immigration [2002] FCAFC 358 at [16] (Tamberlin, Mansfield and Jacobson JJ), SZHVL v Minister for Immigration (2008) FCA 356 at [17] (McKerracher J)
I conclude that the applicant has not demonstrated that the decision of the Tribunal was affected by any jurisdictional error. It is, therefore, a privative clause decision, and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum for $4,000. This is significantly below the amount prescribed in the Court scale for a final hearing. The applicant inquired whether costs might be further reduced, but in my view, costs of not less than $4,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.
I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 August 2017
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