Bew16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2022] FedCFamC2G 100
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BEW16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 100
File number(s): MLG 1042 of 2016 Judgment of: JUDGE LUCEV Date of judgment: 24 February 2022 Catchwords: MIGRATION – Decision of the Administrative Appeals Tribunal – mother and two children citizens of China – refusal of class XA subclass 866 Protection visa – whether denial of procedural fairness generally – whether denial of procedural fairness where minor children did not attend review hearing – whether findings supported by evidence – whether failure to consider refugee criteria – whether jurisdictional error. Legislation: Migration Act 1958 (Cth), Pt.7, Div.4, ss.36(2), 48A, 422B, 424A, 425, 425A, 474, 476
Migration Amendment Act 2014 (Cth)Cases cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784
FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202
Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224
Minister for Immigration and Border Protection v CTW17 and Ors [2019] FCAFC 156; (2019) 271 FCR 173
Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289
MZAHU v Minister for Immigration and Border Protection [2016] FCA 537
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2020) 390 ALR 590
MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2006) 235 ALR 609; (2006) 96 ALD 1
SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD
SZHZF v Minister for Immigration & Citizenship [2007] FCA 1173
VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117
VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350
WZAOT v Minister for Immigration and Citizenship [2013] FCA 126; (2013) 211 FCR 543; (2013) 141 ALD 86
WZATN v Minister for Immigration & Anor [2014] FCCA 861
WZAUY v Minister for Immigration and Border Protection [2016] FCCA 2024
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760Division: Division 2 General Federal Law Number of paragraphs: 44 Date of hearing: 27 January 2022 Place: Perth Counsel for the Applicants: Third applicant in person (with the assistance of an interpreter) and by leave as litigation guardian for the first and second applicants Counsel for the First Respondent: Mr A Roe Solicitor for the First Respondent: Clayton Utz Second Respondent: Submitting appearance, save as to costs ORDERS
MLG 1042 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BEW16
First Applicant
BEX16
Second Applicant
BEY16
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
24 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The originating application filed on 19 May 2016 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
On 19 May 2016 the applicants, BEW16, BEX16 and BEY16, filed an application for judicial review (“Judicial Review Application”) under s 476 of the Migration Act 1958 (Cth) (“Migration Act”) seeking review of a decision of the Administrative Appeals Tribunal (“Tribunal” and “Tribunal Decision” respectively) of 29 April 2016 which affirmed a decision of 24 July 2014 by a Delegate (“Delegate” and “Delegate’s Decision” respectively) of the Minister for Immigration and Border Protection, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister”) to refuse the applicants a Class XA subclass 866 Protection visa (“Protection Visa”).
The applicants are two minors – BEW16 and BEX16 - and their mother - BEY16. By order of a Registrar of the Court dated 26 October 2016 BEY16 was appointed litigation guardian for BEW16 and BEX16.
BACKGROUND AND DELEGATE’S DECISION
The background to the Judicial Review Application is a follows:
(a)the applicants are citizens of China: BEW16 and BEX16 were both born in Australia in 2013 and 2008 respectively: CB 12, 34 and 179 at [3];
(b)BEY16, her former partner, and BEX16 had applied for review of a delegate’s decision to refuse to grant them a Protection Visa following an earlier Protection Visa application (“First Protection Visa Application”), a refusal affirmed by the then Refugee Review Tribunal on 16 February 2012: CB 179 at [4];
(c)on 1 August 2013 the applicants applied for a Protection Visa: CB 1-70, 77;
(d)on 24 July 2014 the Delegate’s Decision was to refuse to grant the applicants a Protection Visa: CB 90;
(e)in the Delegate’s Decision the Delegate had regard to assorted material, including a previous interview with BEY16 concerning the First Protection Visa Application.
TRIBUNAL DECISION
In the Tribunal Decision the Tribunal:
(a)stated it would consider only BEW16’s claims for protection against the relevant law for refugee and complementary protection: CB 179 at [5]; and
(b)confirmed that although BEX16 and BEY16 had previously been refused a Protection Visa in relation to the First Protection Visa Application this did not prevent them, by reason of the operation of the statutory bar in s 48A of the Migration Act, from making a Protection Visa application on the basis of the complementary protection or family membership criterion in s 36(2)(aa) or (c) respectively of the Migration Act: CB 179 at [5], citing SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235; (2013) 299 ALR 246; (2013) 138 ALD 1 (“SZGIZ”).
The Tribunal considered the overall claims made by BEY16: CB 182 at [25]-[30], being that:
(a)she is separated from BEW16 and BEX16’s father and is not in contact with him;
(b)she and BEW16 and BEX16’s father did not marry;
(c)BEW16 and BEX16’s father is not working and does not support the applicants;
(d)she does not work and has no savings and the applicants subsist on Asylum Seeker Assistance payments;
(e)though she has family, she is not in touch with her parents as they did not want her to be with BEW16 and BEX16’s father, they blame her because she has two children and he has left her, and she was last in touch with her parents two months ago;
(f)her parents do not wish to see BEW16 and BEX16, and that if the Australian government does not accept her and she returns to China, that BEW16 and BEX16 cannot stay with her parents, and that they will have to stay somewhere else such as with her maternal grandparents;
(g)BEW16 and BEX16’s father’s parents, who live 200 kilometres away from her family, also do not want to see BEW16 and BEX16; and
(h)BEW16 and BEX16’s father had a car accident in Australia in connection with the birth of their child, BEX16, and his parents, who are superstitious, see BEX16 as bad luck.
The Tribunal also considered each of the specific claims made by BEY16 pertaining to each of BEW16 and BEX16, as set out below.
Claims pertaining to BEW16 and BEX16
Hukou
In China there is a system of obtaining household registration, known as hukou, and in relation to hukou, it was claimed that:
(a)it will be difficult for BEW16 and BEX16, on return to China, to obtain hukou because they are “out of wedlock” children born overseas;
(b)if BEW16 and BEX16 are not registered they will not be able to access basic services such as education or health care; and
(c)BEY16 will not be able to obtain these services privately, and only in Australia can BEW16 and BEX16 enjoy free education and medical treatment: CB 182 at [32] and 183 at [37].
In relation to hukou the Tribunal:
(a)accepted that, according to Article 14 of the Population and Family Planning Regulation of Fujian Province 2002 (“Family Planning regulations”), BEW16 and BEX16 will be considered to have been born in contravention of regulations: CB 185 at [53] ;
(b)accepted China has a comprehensive system of child registration which requires parents to register children: CB 185 at [54];
(c)put to BEY16, and noted that, Article 25 of the Marriage Law of the People’s Republic of China states children born out of wedlock shall enjoy the same right as children born in wedlock, and that an article in the Marriage Law of the People’s Republic of China states that no one may harm or discriminate against out of wedlock children: CB 186 at [55];
(d)put to BEY16, and noted that, the latest Department of Foreign Affairs and Trade (“DFAT”) information on China reported that in 2013 and 2014 children born in breach of family planning regulations in Fujian province have been able to obtain household registration before social compensation fees have been paid: CB 186 at [56];
(e)put to BEY16, and noted that, Chinese state media reported in December 2015 that President Xi Jinping announced that, from 1 January 2015, all children would be allowed hukou, regardless of a payment of a social compensation fee if born outside the government’s family planning policy, as registration was a basic legal right and a premise for Chinese citizens to participate in social affairs, enjoy rights and fulfil duties: CB 186 at [57];
(f)put to BEY16 that independent country information shows that in Fujian, BEW16 will not be prevented from obtaining hukou or be restricted from being able to access public services such as health and education: CB 187 at [58];
(g)heard from BEY16 that the Chinese government has relaxed the “one child policy”, but that in her village the local authorities bully local people and are corrupt and that she will still need to pay the fine before BEW16 and BEX16 can get the hukou: CB 187 at [59] and 194 at [95];
(h)did not accept that BEW16 and BEX16 will be unable to obtain household registration in Fujian, regardless of whether BEY16 has paid the social compensation fee, and did not accept that BEW16 and BEX16 would therefore be unable to receive basic services such as education or health care in China: CB 187 at [59]; and
(i)did not accept, on the evidence before it, that BEW16 or BEX16 had a real chance of serious harm now or in the reasonably foreseeable future, or a real risk of significant harm on return to China, because they cannot access basic services such as education or health: CB 187 at [60] and 194 at [95].
Financial issues
In relation to financial issues it was claimed that BEW16 and BEX16 will experience financial difficulties because BEY16:
(a)will have to pay the social compensation fees associated with having two out of wedlock children;
(b)has no savings and will not be able to work because she has BEW16 and BEX16; and
(c)will therefore be unable to support BEW16 and BEX16 and herself so BEW16 and BEX16 will have to be adopted: CB 183 at [33] and 184 at [39].
BEY16 also claimed that she:
(a)will be subject to a payment of a social compensation fee of RMB 180,000 (approximately AUD $35,000) because she has not complied with the Family Planning regulations by having BEW16 and BEX16 out of wedlock: and
(b)will not have the means to make this payment and will not be able to support herself or BEW16 and BEX16: CB 184 at [43].
In relation to financial issues the Tribunal:
(a)accepted that parents are often charged a social maintenance fee for violating family planning policies, meaning BEY16 would have to pay a social compensation fee because BEW16 and BEX16 were born out of wedlock in contravention of family planning policies: CB 187 at [62]-[63];
(b)accepted that the social compensation fee will have to be paid for BEW16 and BEX16: CB 187 at [65];
(c)advised BEY16 that DFAT note that each prefecture or district calculates their own local average income rates and issues fines based on these rates: CB 187 at [66], with the Tribunal assessing that BEY16 will be fined between 60 to 100 percent of current annual disposable income levels in her local area, but did not accept that BEY16 will be charged RMB 180,000 as claimed, as social compensation: CB 187-188 at [66]-[67];
(d)accepted that if BEY16 returns to China she would be required to pay a fine which may amount to up to twice the local average annual disposable income, and further accepted that the payment of the social compensation fee would place pressure on BEY16’s family, but did not consider that this would be enough to present significant economic hardship that threatens the applicants’ capacity to subsist: CB 189 at [68];
(e)considered that arrangements could be made to facilitate the payment of the social compensation fee in instalments over three years: CB 189 at [69];
(f)found that BEY16 will be able to work in an unskilled capacity: CB 189-190 at [71], and that, as discussed with her, she would be able to access publicly funded services such as childcare will be available to her;
(g)found that BEY16’s parents could and would support the applicants if required: CB 190 at [72];
(h)found that there was not a real chance that BEY16 would be unable to support BEW16 or that he would have to be adopted: CB 191 at [77];
(i)reiterated its finding that BEY16 could pay the social compensation fee and did not consider the imposition of the social compensation fee amounted to significant harm as defined in s 36(2A) of the Migration Act: CB 191 at [79];
(j)found no substantial grounds that BEW16 will suffer significant harm if he was removed to China from Australia: CB 182 at [81]-[82]; and
(k)found that BEY16 does not face a real risk of significant harm because she will not be able to subsist and found that there are not substantial grounds for believing that as a necessary and foreseeable consequence of BEY16 being removed from Australia to China that there is real risk that she will suffer significant harm: CB 192 at [82].
Discrimination and hardship
In relation to discrimination and hardship the claims were that:
(a)BEW16 and BEX16 will be discriminated against by the community because they are out of wedlock children and the children of a single parent;
(b)in China people do not think of the reason the father left but blame the girl, and people in her town will laugh at, and talk about, BEW16 and BEX16 because their mother is not married;
(c)the neighbours may ask their children not to be with BEW16 and BEX16 because they will say BEY16 is not a good person;
(d)as a five year old BEX16 is used to life in Australia and it will be difficult for him to get used to China; and
(e)neither the maternal nor paternal grandparents will have BEW16 and BEX16 in their house because they do not like them because they are born out of wedlock: CB 183 at [34] and 184 at [40].
Specifically regarding BEY16 she claimed that the neighbours will talk about her because she has two children and is not married: CB 184 at [44].
In relation to discrimination the Tribunal:
(a)accepted that as BEY16 was from a small maritime town in China where traditional views about marriage and children may continue, that BEW16 and BEX16 may experience teasing at school, that this would be an uncomfortable experience and accepted that this amounted to minor level discrimination from the community: CB 192 at [85];
(b)accepted that the maternal and paternal grandparents did not approve of the circumstances of the birth of BEW16 and BEX16 and that this will be an emotionally uncomfortable and hurtful situation, but noted its earlier finding that the maternal grandparents would help to support them and noted that though they are disapproving, that they remain in touch with BEY16 and have not abandoned her or BEW16 and BEX16: CB 192 at [86];
(c)did not accept that any of the described treatment BEW16 may face will amount to significant harm, and found that low level discriminatory treatment, such as being talked about and teased, does not give rise to significant harm as described in s 36(2A) of the Migration Act: CB 192-193 at [87];
(d)did not accept there to be a real chance that BEW16 will face persecution for the reasons of being a child born out of wedlock now or in the reasonably foreseeable future: CB 193 at [88];
(e)found that BEW16 and BEX16 do not have a real chance of serious harm in China for any reason, and did not accept there to be a real chance that the children will face persecution for any reason now or in the reasonably foreseeable future, and found there are not substantial grounds for believing that there is a real risk to BEW16 and BEX16 suffering significant harm upon being removed from Australia to China: CB 193 at [89]; and
(f)considered the claim that BEX16 was used to life in Australia as a five year old and that it will be difficult for him to get used to China, and:
(i)accepted that BEX16 will be settled into his life in Australia, that living in China will mean some disruption for him;
(ii)noted that he will have the support of his mother and that any disruption will be short-term; and
(iii)found that at five years old he will be in a position to readily develop his Chinese language skills and adjust to changes in life-style,
and therefore did not accept that BEX16’s adjustment to life in China will amount to significant harm as defined in s 36(2A) of the Migration Act: CB 195 at [103];
(g)accepted that BEY16 may be the subject of hurtful and uncomfortable social interactions because she is an unmarried mother and accepted she may find herself in difficult economic circumstances because she may not have access to well-paid work, but noted that it had found that BEY16 will not be excluded from basic support from her family, and that this was a minor level of discrimination from the community, and having regard to the definition in s 36(2A) of the Migration Act, did not accept this will amount to significant harm: CB 196-197 at [113]; and
(h)found there are not substantial grounds for believing that as a necessary and foreseeable consequence of BEY16 being removed from Australia to China that there is real risk that she will suffer significant harm on this basis: CB 197 at [114].
Harm from money lender
In relation to the money lender the claims were that:
(a)BEY16 has been told by her mother that BEY16’s father took out a loan with a money lender because he needed the money to cover costs when the ship he owned, and which was not insured, sank;
(b)BEY16’s father is now a ship’s captain for a company and makes periodic payments on the loan;
(c)if BEY16’s father does not make repayments the money lender comes to BEY16’s parent’s house and destroys their furniture;
(d)BEY16 fears that the money lender may kidnap BEW16 and BEX16 and sell them to a family, and BEY16 does not want BEW16 and BEX16 to be at risk of being abducted, trafficked and sold by the money lender; and
(e)the money lender has links to corrupt officials and the authorities will not protect the applicants: CB 183 at [36] and [38].
The Tribunal found that BEY16’s father did not owe money to a money lender, and it followed that the Tribunal did not accept that the money lender may seek to kidnap BEW16 or BEX16 to make good the debt. The Tribunal did not accept that the applicants faced serious or significant harm from a money lender in China now or in the foreseeable future: CB 195 at [105]-[106].
Sterilisation
In relation to sterilisation, BEY16 claimed that she would be involuntarily sterilised and that this would occur because her boyfriend left her and people will talk about her because she has BEW16 and BEX16. If she is sterilised, she will not be able to remarry because a new partner will want children: CB 184 at [45].
In relation to forced sterilisation the Tribunal:
(a)at CB 197 at [115] took into account information contained in s 3.49 of a DFAT report of March 2015, and put to BEY16 that part of the DFAT report, which is as follows:
3.49 Local authorities occasionally launch campaigns to crack down on or prevent non-compliance with local family planning policies. DFAT is aware of media reports indicating that coercive practices (such as forced abortions, sterilisations or invasive medical procedures) can be employed by authorities in order to force compliance. There is no reliable data on the frequency of coerced or forced abortions or sterilisations. Recent years have seen some high-profile media reports of late-term forced abortions, but observers believe such instances are becoming less frequent, DFAT is aware of reports that couples in violation of the policy, or their family members, have been beaten or detained, or have had their belongings, or those of their family, confiscated [footnote removed]
(b)took into account reports concerning coercive practices, but noted that observers believe such instances are becoming less frequent: CB 197 at [115];
(c)found that while BEY16 had contravened government regulations, and while community attitudes did not condone having children out of wedlock, the Tribunal was not satisfied that BEY16’s circumstances were such that there is any more than a remote risk that she will be forcibly sterilised: CB 197 at [115];
(d)found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China there is a real risk that BEY16 would suffer significant harm on this basis: CB 197 at [116]; and
(e)found that, having regard to all the circumstances and findings above, both individually and cumulatively, there were not substantial grounds for believing that there was a real risk that BEY16 will suffer significant harm upon being removed from Australia to China: CB 197 at [117].
JUDICIAL REVIEW APPLICATION
Jurisdictional Error Required
This Court may set aside the Tribunal Decision upon judicial review if it is affected by jurisdictional error: Migration Act, ss 474 and 476; Plaintiff S157/2002 v Commonwealth [2003] HCA 2; (2003) 211 CLR 476; (2003) 77 ALJR 454; (2003) 195 ALR 24; (2003) 72 ALD 1. The jurisdictional error must be material in the requisite sense explained in MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; (2021) 95 ALJR 441; (2020) 390 ALR 590 (“MZAPC”) at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ.
The onus is upon the applicants to establish jurisdictional error in the Tribunal Decision: VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [45] per Hill, Sundberg and Stone JJ; Maroun v Minister for Immigration and Citizenship [2009] FCA 1284; (2009) 112 ALD 424, and it is not within the jurisdiction of this Court to review the merits of the Tribunal Decision, or determine the applicants’ claims for protection: Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259; (1996) 70 ALJR 568; (1996) 136 ALR 481; (1996) 41 ALD 1; CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.
Grounds
The Judicial Review Application contains the following grounds alleging jurisdictional error in the Tribunal Decision:
1. The Tribunal failed to afford procedural fairness.
2. The Tribunal made a finding without enough evidence.
3.The Tribunal failed to consider the refugee criteria rather than complementary protection criteria to the applicant's claims.
Submissions
The applicants did not file written submissions in accordance with orders made by the Court on 27 July 2021. Nevertheless, the Court, having first explained the nature of, and requirement for, the establishment of jurisdictional error in the Tribunal Decision, and that the Court’s role was not that of a merits reviewer, gave BEY16 (who appeared for all the applicants) an opportunity at hearing to make oral submissions, but she said that it was “the lawyer who explained this” and that she did not know how to: Transcript, p 3. As requested by the Court: Transcript, p 3, the Minister’s submissions were put in sufficient detail to enable them to be understood by BEY16 (who had the assistance of an interpreter): Transcript, pp 3-6. In reply, BEY16 made no submissions going to jurisdictional error in the Tribunal Decision: Transcript, pp 6-7.
Minister’s Submissions
The Minister’s written and oral submissions can be summarised as follows:
(a)the grounds are wholly unparticularised, and each ground should fail on that basis alone;
(b)as to ground one, the Tribunal complied with its procedural fairness obligations, and there was no further information the Tribunal was required to put to the applicants;
(c)as to ground two, that there was more than sufficient evidence to justify the Tribunal Decision;
(d)as to ground three, that the Tribunal’s non-consideration of the refugee criteria in respect of BEX16 and BEY 16 was legally correct; and
(e)the Tribunal Decision was not affected by jurisdictional error.
Failure to particularise
The applicants’ three grounds in the Judicial Review Application are unparticularised, and because no written, and effectively no oral, submissions were made on behalf of the applicants, the three grounds remain unparticularised.
The failure to particularise a ground of review can be a sufficient basis for a ground of review to be dismissed: NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176 at [37] per Perram, Derrington and Stewart JJ; WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35] per Gilmour J (and cases there cited); DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1158 at [60] per Perry J citing WZAVW.
Even where there is an unparticularised ground of review it is necessary for self-represented applicants to be afforded an opportunity by the Court to explain orally the matters that are said to give rise to a review ground: DQQ17 v Minister for Immigration and Border Protection [2018] FCA 784 at [9] per Colvin J, and then to have regard to any oral submissions so made: DKN20 at [60] per Perry J; FHX20 vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 202 at [17] and [20] per Judge Ladhams. The Court heard oral submissions from BEY16 on behalf of the applicants, but those submissions did not address, identify or particularise any jurisdictional error in the Tribunal Decision.
The failure to particularise the written grounds provides no basis for a finding of jurisdictional error in relation to any of the three grounds, and that of itself, in this case, provides a sufficient basis for dismissing the Judicial Review Application.
Ground one
Procedural fairness obligations are imposed on the Tribunal by Pt 7, Div 4 of the Migration Act, and those obligations are taken to be an exhaustive statement of the natural justice hearing rule: Migration Act, s 422B; Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332; (2013) 87 ALJR 618; (2013) 297 ALR 225; (2013) 138 ALD 181 at [56]-[58] per Hayne, Kiefel and Bell JJ; WZATN v Minister for Immigration & Anor [2014] FCCA 861.
On the materials before it, the Court observes as follows:
(a)the Tribunal complied with its statutory obligations under ss 425 and 425A of the Migration Act by validly inviting the applicants to a hearing before the Tribunal scheduled for 17 December 2015, and doing so by letter dated 16 October 2015: CB 151-152;
(b)BEY16 attended the Tribunal hearing to give evidence and put the case in support of the applicants’ claims: CB 164 and 179 at [6]-[7], and there is no evidence of any failure by the Tribunal to put relevant matters to, or discuss relevant matters with, BEY16;
(c)the Tribunal Decision includes numerous instances where the Tribunal specifically raised or discussed with BEY16 concerns that the Tribunal had with the claims and evidence: see, for example, CB 186-187 at [55]-[58], 188 at [63]-[64], 188-189 at [66]-[67]; and
(d)in making its findings the Tribunal relied upon BEY16’s written evidence provided to the Department, her oral evidence provided to the Tribunal, and independent country information, all of which fell within the exceptions to information in ss 424A(3)(a), (b) and (ba) of the Migration Act respectively, and there was, therefore, no breach of s 424A of the Migration Act. There was otherwise no failure to comply with s 424A(1) of the Migration Act, which requires that certain information be put to applicants: SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190; (2006) 235 ALR 609; (2006) 96 ALD 1 at [18] and [25] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
The Court notes that there is the potential for a denial of procedural fairness to arise in connection with a parent bringing an application on behalf of a child and the children not attending the Tribunal hearing, as was the case here. Whilst that may be theoretically the case, there is nothing in the circumstances of this case which would suggest that BEW16 or BEX16 were denied procedural fairness by not attending the Tribunal hearing and being represented thereat by their mother, BEY16, and in particular:
(a)it is ordinarily to be expected that a parent of infant children would prepare and make the necessary representations on their behalf: WZAOT v Minister for Immigration and Citizenship [2013] FCA 126; (2013) 211 FCR 543; (2013) 141 ALD 86 (“WZAOT”) at [97] per Barker J;
(b)in MZAHU v Minister for Immigration and Border Protection [2016] FCA 537 at [51] per Buchanan J the Federal Court observed that:
There was no conflict of interest between the first and second appellants (a mother and her child), either procedural or substantive. The notion that the first appellant should not speak for her child should not be encouraged. The point is one which has been developed particularly for the appeal in this Court, but it is an unattractive one.
(c)at no time, including at or about the time of the Tribunal hearing, is there any evident conflict of interest between BEY16, and BEW16 and BEX16 (then aged two and seven respectively), and, if anything, there was a confluence rather than a conflict of interest between them, so that BEY16 was properly placed to represent BEW16 and BEX16 before the Tribunal: WZAOT at [102]-[103] and [110] per Barker J;
(d)there was no statutory, or otherwise automatic, requirement for the Tribunal to appoint an independent representative or representatives for BEW16 and BEX16: WZAOT at [101] per Barker J; and
(e)it cannot be said that the Tribunal did not receive, and pay regard to, the claims that were made on behalf of BEW 16 and BEX 16, and as the Court has found in relation to ground two of the Judicial Review Application: see [34] below, the Tribunal Decision considers in a detailed way a considerable body of evidence in relation to the numerous claims made by BEY16 on behalf of BEW16 and BEX 16.
In the above circumstances, the Tribunal complied with its procedural fairness obligations under Pt 7, Div 4 of the Migration Act, and no denial of procedural fairness by the Tribunal in respect of this matter has been established. It follows that ground one alleging a denial of procedural fairness by the Tribunal is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground two
For ground two to succeed it must establish something which it does not allege, namely that there was "no evidence at all upon which the finding could have been based": SZHZF v Minister for Immigration & Citizenship [2007] FCA 1173 at [33] per Gilmour J.
The no evidence ground recognises that a decision-maker’s satisfaction can be vitiated if it is based on “findings or inferences of fact which were not supported by some probative material or could not be supported on logical grounds”: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611; (1999) 73 ALJR 746; (1999) 162 ALR 577; (1999) 54 ALD 289 at [147] per Gummow J; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 84 ALJR 369; (2010) 266 ALR 367; (2010) 115 ALD 248 at [124] per Crennan and Bell JJ. To establish the ground, an applicant must show that there was no evidence at all to support a finding: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990) 64 ALJR 462; (1990) 94 ALR 11; (1990) 21 ALD 1 (“Australian Broadcasting Tribunal”), CLR at 355-356 per Mason CJ. It has been stated that a “no evidence” challenge will fail if “even a skerrick of evidence appears” to substantiate the relevant finding: MZZUG v Minister for Immigration and Border Protection [2015] FCA 1151 at [59] per Murphy J, and that if the Court holds that the evidence in support of a relevant finding was “slight”, that will be sufficient to defeat a “no evidence” challenge to the finding: VAS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ. Evidence to support a finding or inference need not be direct, and a decision-maker may draw reasonable inferences from the information available to it in a particular matter: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992; (2004) 207 ALR 12; (2004) 78 ALD 224 at [39]-[41] per Gummow and Hayne JJ; Australian Broadcasting Tribunal, CLR at 367 per Deane J.
In this case, and as the detailed reasons in the Tribunal Decision indicate: see [4]-[18] above, there was a significant body of evidence considered by the Tribunal, and which supported the findings made by the Tribunal in the Tribunal Decision, and the Tribunal had regard to that evidence and the matters put to it by BEY16, and also to independent country information in relation to China and as it related to the applicants and the claims made by them, and did so comprehensively over the 121 paragraphs of the Tribunal Decision. In the circumstances, to submit, as the applicants do in ground two, that the Tribunal “made a finding without enough evidence” is a submission that has not been, and cannot be, made out by the applicants.
It follows that ground two is not made out, and does not establish jurisdictional error in the Tribunal Decision.
Ground three
Ground three appears to be a complaint that the Tribunal only considered whether BEX16 and BEY16 satisfied the complementary protection criteria under s 36(2)(aa) of the Migration Act, and failed to consider the refugee protection criteria under s 36(2)(a) of the Migration Act in relation to them.
In the Tribunal Decision at CB 179 at [5] the Tribunal observed as follows:
Although the second named and third named applicant [sic] have previously been refused a protection visa, the Federal Court judgment handed down on 3 July 2013 in SZGIZ v Minister for Immigration and Citizenship held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of visas as in the earlier unsuccessful application. That is, as per this matter, it does not prevent the second and third named applicants (who previously made a valid application on the basis of the refugee criteria in s.36(2)(a) and (b)) from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) and the family membership criteria in s.36(2)(c). as such, the application of the second named and third named applicants, complies with the validity requirements of the Migration Act and Migration Regulations. The Tribunal will consider the claims of the second and third named applicants against the complementary protection provisions.
When on 1 August 2013 the applicants applied for a Protection Visa, s 48A of the Migration Act provided as follows:
48A(1)Subject to section 48B, a non-citizen who, while in the migration zone, has made:
(a)an application for a protection visa, where the grant of the visa has been refused (whether or not the application has been finally determined); or
...
may not make a further application for a protection visa while in the migration zone.
...
48A(2) In this section:
application for a protection visa includes:
(aa)an application for a visa, a criterion for which is mentioned in paragraph 36(2)(a), (aa), (b) or (c); and
(a) an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(b)an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and
(c)an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.
In SZGIZ the Full Court of the Federal Court had before it an application concerning the validity of a second application for a Protection Visa. The relevant provisions of s 48A of the Migration Act under consideration in SZGIZ were the same as those which were applicable to the applicants’ application for review before the Tribunal. The Full Court of the Federal Court held that the second application for a Protection Visa was not invalid: SZGIZ at [74] per Allsop CJ, Buchanan and Griffiths JJ, and that when s 48A(2) of the Migration Act is taken into account, the proper effect to be given to s 48A(1) of the Migration Act, as it then was, was that it did not prevent a person from making an application based on a criterion which did not form the basis of a previous unsuccessful application for a Protection Visa: SZGIZ at [32]-[33] and [47] per Allsop CJ, Buchanan and Griffiths JJ. For the sake of completeness the Court notes that s 48A of the Migration Act was later amended by the Migration Amendment Act 2014 (Cth), with the amendments thereby made having the effect of displacing the reasoning and conclusion in SZGIZ: Minister for Immigration and Border Protection v CTW17 and Ors [2019] FCAFC 156; (2019) 271 FCR 173, but owing to the commencement date of those amendments, they do not affect this matter.
The effect of the relevant provisions of s 48A of the Migration Act as considered in SZGIZ is that it does not prevent a non-citizen applicant who has made a valid application for a Protection Visa on the basis of the refugee criterion from making a further application on the basis of the complementary protection criterion, but it does not permit reconsideration or further consideration of the refugee criterion for the non-citizen applicant: SZGIZ at [36]-[38] per Allsop CJ, Buchanan and Griffiths JJ; WZAUY v Minister for Immigration and Border Protection [2016] FCCA 2024 at [24] per Barker J.
In the circumstances the Tribunal, at CB 179 at [5], correctly applied SZGIZ in deciding not to reconsider the refugee criterion for BEX16 and BEY16 in the application for review. Ground three is therefore not made out, and does not establish jurisdictional error in the Tribunal Decision.
CONCLUSION AND ORDERS
The Court has concluded that:
(a)the Judicial Review Application can be dismissed for failure to particularise any of the three grounds; and
(b)in any event, none of the three grounds of the Judicial Review Application establish jurisdictional error in the Tribunal Decision.
It follows that the Judicial Review Application must be dismissed, and an order will be made accordingly.
The Court will hear the parties as to costs.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 24 February 2022
0
40
0