BJI16 v Minister for Immigration
[2017] FCCA 2492
•16 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BJI16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2492 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – applicants claiming a fear of harm in China for religious reasons – principal applicant not believed – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 424A, 424AA Federal Circuit Court Rules 2001 (Cth) |
| Cases cited: AMA15 v Minister for Immigration [2015] FCA 1424 SZGIZ v Minister for Immigration (2013) 212 FCR 235 VAS v Minister for Immigration [2002] FCAFC 350 |
| First Applicant: | BJI16 |
| Second Applicant: | BJJ16 |
| Third Applicant: | BJK16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1426 of 2016 |
| Judgment of: | Judge Driver |
| Hearing date: | 16 October 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 October 2017 |
REPRESENTATION
| The First Applicant appeared in person |
| Solicitors for the Respondents: | Ms M Donald of Sparke Helmore |
ORDERS
The application filed on 3 June 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 $5,800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1426 of 2016
| BJI16 |
First Applicant
| BJJ16 |
Second Applicant
| BJK16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 5 May 2016. The cover sheet of the Tribunal decision incorrectly states the date of the decision as 5 March 2016. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas. There are three applicants who are a father (applicant) and his two daughters. The applicant’s wife and a third child were not included in the visa application. Background facts relating to their claims for protection and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 9 October 2017.
Background
The applicant entered Australia on 21 April 2005 as the holder of a student (subclass 571) visa[1]. The student visa was cancelled on 26 June 2007, and the applicant remained in Australia unlawfully until 21 February 2009, when the applicant and the second applicant applied for protection visas[2]. That application was refused and the applicants sought review of that decision by the Tribunal, which affirmed the decision not to grant the first and second applicants a protection visa on 16 September 2009[3].
[1] Court Book (CB) 147, 152, 155
[2] CB 186-187
[3] CB 46
On 27 March 2014, following the birth of the third applicant, the applicant lodged a second application for a protection visa[4]. The application was valid based on the Full Federal Court’s decision in SZGIZ v Minister for Immigration[5]. The second and third applicants were included in that application.
[4] CB 86
[5] (2013) 212 FCR 235
In an email accompanying the visa application, the applicants’ representative confirmed that in addition to the claims advanced before the delegate and Tribunal in the present application, the applicants also relied on all previous statements and submissions made in the first protection visa application. The applicants’ claims are summarised as follows[6]:
a)the applicant travelled to Australia in order to study and because his parents were “underground” Christians who were, and continued to be, persecuted in China;
b)his mother was targeted by local police because she was a member of an underground Christian church. Her finger was cut off by police during an interrogation;
c)his father was an intellectual and a Christian rights defender and had participated in the “08 Charter” and written an article published on the website of the Chinese Social Democratic Party. His father had had his leg fractured because he had appealed to a higher authority, and had also been arrested on 30 January 2009 and detained at a secret location. News of his arrest on that occasion was reported in overseas Chinese media;
d)the applicant was a practising Christian and would not be able to practise his religion if returned to China. The Chinese authorities did not tolerate “underground” Christian churches and the applicant would be forced to attend a registered church. It was also illegal in China for children to practise religion; and
e)it was illegal in China to have children out of wedlock or outside of the “one child policy”. If returned, the applicant and his family would face large fines due to having three children out of wedlock, and the children would be considered “black” or illegal children and would have difficulties enrolling in school, accessing social services, and registering their births.
[6] CB 33-34, 103-106
The delegate refused the visa application on 3 October 2014[7], and on 16 October 2014, the applicants sought review of the delegate’s decision by the Tribunal[8].
[7] CB 183
[8] CB 206
The applicants attended a hearing before the Tribunal to give evidence and present arguments on 18 February 2016[9]. On 29 March 2016, the Tribunal invited the applicants to attend a further hearing to respond to specific country information[10]. The applicants were represented throughout the visa application and review processes by a legal representative. On 5 May 2016, the Tribunal affirmed the delegate’s decision to refuse the grant of the protection visas[11].
[9] CB 225
[10] CB 256
[11] CB 285
Tribunal’s decision
The Tribunal noted that as the first and second applicants had previously had their claims for protection assessed against the Refugees Convention criterion, the matter before the Tribunal related only to the complementary protection criterion[12]. However, as the third applicant had not been included in the first protection visa application, her claims would be assessed against both the Refugees Convention and complementary protection criteria[13].
[12] CB 287, [16]
[13] CB 287, [17]
The Tribunal conducted a detailed examination of country information on the treatment of Christians, the “one child policy”, and family planning laws, both in China generally and in the applicant’s home region of Fujian Province[14].
[14] CB 289-301, [32]-[54]
During the first hearing on 18 February 2016, the Tribunal explored the applicant’s claims about the mistreatment of his parents due to their religious beliefs[15]. The Tribunal noted that the applicant’s wife (who had made a separate visa application) had given oral evidence at the hearing admitting that she had fabricated her protection claims, that the Tribunal had asked the applicant if his claims were made up, and that he had conceded that they were[16]. The Tribunal also noted the applicant’s evidence that his sister, who lived in the same village and attended the same church as the applicant, had experienced no difficulties with the Chinese authorities[17].
[15] CB 301, [57]
[16] CB 301, [58]-[59]
[17] CB 302, [61]
The Tribunal accepted that the applicant had attended church in China and Australia, but was not overly devout[18]. It accepted that he would seek to attend the same church as his family in China if returned there, but found that there had been no difficulty faced by his family arising from their practice at that church[19]. On the basis of country information and its finding that the applicant’s family had not suffered past harm, the Tribunal was satisfied that the applicants would not suffer harm due to their practice of religion in China[20]. The Tribunal also found that the applicant had minimal knowledge of and commitment to his religion and did not have the knowledge, commitment or desire to practice his religion in China with a specific church or organisation that would be subjected to adverse treatment by the Chinese authorities[21].
[18] CB 302, [64]
[19] CB 302, [66]
[20] CB 302, [66]
[21] CB 302, [66]
With respect to the second and third applicants’ risk of harm arising from their religion, on the basis of its anterior findings and country information, the Tribunal was not satisfied that there was a real chance that the second or third applicants would face serious or significant harm as a result of their religious practice, or be restricted in their ability to attend church with their parents[22]. Based on the applicants’ own admissions, the Tribunal was not satisfied that there had been any past harm suffered by the applicant’s father that would lead to a real chance of any of the applicants facing serious or significant harm on return to China[23].
[22] CB 302, [67]
[23] CB 302, [68]
The Tribunal noted that it put to the applicant that, based on the most recent information provided by the DFAT Post in China, a second child was permitted in Fujian Province, where a couple’s first child was female[24]. As the applicant’s first child was a girl, the Tribunal proceeded on the basis that the applicant would be fined for having a third child and for all three children being born out of wedlock[25].
[24] CB 303, [71]
[25] CB 303, [71]
The Tribunal noted that it had provided to the applicants’ representative country information indicating that the applicant’s second and third children could be registered before the fine was paid and would therefore be able to attend a state-funded school and access health care[26]. The Tribunal was not satisfied that there was a real risk of the second or third applicants facing serious or significant harm as a result of an inability to be registered and to access state health and education services[27].
[26] CB 303, [75]-[76]
[27] CB 304, [76]
On the basis of country information that had been provided to the applicants’ representative, the Tribunal calculated the combined fine for both parents would be a minimum of RMB 66,404 and a maximum of RMB 104,048, which was equivalent to approximately $13,200 to $20,600 AUD[28]. The Tribunal considered the applicant’s evidence as to his family’s financial circumstances and those of his parents and his wife’s parents, as well as country information which indicated that fines could be paid in instalments[29]. The Tribunal was satisfied that, with the support of his parents and parents-in-law, the applicant would be able to make appropriate arrangements to pay the fine in instalments[30].
[28] CB 303, [73]
[29] CB 304, [80]-[84]
[30] CB 305, [91]
The Tribunal found that the fee was directed towards the social policy objective of preventing children being born “out-of-plan” and was therefore not discriminatory in nature[31]. The Tribunal was not satisfied that the imposition of the fee constituted significant harm for the purpose of the complementary protection criteria[32]. The Tribunal also rejected the claim that in the applicant’s local village, failure to pay the social compensation fee would result in imprisonment on the basis that country information did not support that claim[33].
[31] CB 306, [92]
[32] CB 306, [92]
[33] CB 306, [94]-[96]
With regard to a further claim raised by the applicant’s wife at the hearing that the children would be discriminated against as “black children”, the Tribunal referred to country information, which indicated that the children may be stigmatised[34]. However, the Tribunal found that the country information indicated that any stigma would not rise to the level of constituting serious or significant harm for the purposes of the Migration Act 1958 (Cth) (Migration Act)[35].
[34] CB 306, [97]-[99]
[35] CB 307, [100]-[102]
On the basis of these findings, the Tribunal was not satisfied that the applicants were people to whom Australia owed protection obligations under s.36(2)(aa) of the Migration Act[36]. The Tribunal further found that the third applicant did not satisfy the protection criteria in s.36(2)(a) of the Migration Act[37]. Accordingly, the Tribunal affirmed the decision under review[38].
[36] CB 308 at [104]
[37] CB 308 at [103]
[38] CB 308, [105]
The present proceedings
These proceedings began with a show cause application filed on 3 June 2016. The applicant continues to rely upon that application. There are three grounds in it:
1.The Tribunal erred in finding with no supportive evidence or disclosure of its supporting documents.
2.The Tribunal failed to afford a fair hearing.
3.The Tribunal failed to consider the applicants’ claims in accordance with the Refugee Convention aspect.
I have before me as evidence the court book filed on 25 August 2016.
Only the Minister prepared written submissions in advance of today’s hearing in accordance with procedural orders made by a Registrar.
I invited oral submissions from the applicant this morning. He told me that he had nothing to say. After hearing from the Minister’s solicitor I invited submissions in reply from the applicant. Those submissions were limited to the issue of costs. The Minister’s submissions deal adequately with the grounds of review raised by the applicant. I agree with those submissions.
Ground 1
By Ground 1, the applicants contend that the Tribunal erred in two ways: (a) by making its decision without supporting evidence; and (b) not disclosing the supporting documents on which it relied.
The applicants do not specify which findings were made without supporting evidence. In order to succeed on a “no evidence” argument, the applicants are required to demonstrate that there was no evidence at all before the Tribunal upon which its findings were based[39]. Even in circumstances in which the evidence in support of a finding is “slight”, that will be sufficient to defeat an argument that there was no evidence before the Tribunal to support its finding[40]. In the present case, the Tribunal clearly set out the applicant’s claims and evidence, as well as the country information to which it referred. As such, there is no basis to any contention that there was no evidence to support the Tribunal’s findings.
[39] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ
[40] see VAS v Minister for Immigration [2002] FCAFC 350 at [18]-[19] per Gray, Moore and Weinberg JJ
To the extent that the applicants’ contention may be intended as a complaint about the Tribunal’s reliance on country information, it is well established that the choice and assessment of country information is a factual matter for the Tribunal.[41] Moreover, the Tribunal referred to relevant country information in assessing the applicants’ claims for protection, including DFAT country information as required by Ministerial Direction No. 56.
[41] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
As for the second contention, the Tribunal was under no obligation to put the country information to the applicants pursuant to s.424A of the Migration Act, as it was information not specifically about the applicants and was just about a class of persons of which the applicants were members[42], and did not trigger any obligation under s.424A(1) of the Migration Act[43]. While the Tribunal sent the applicants’ representative a copy of country information on calculating the social compensation fee[44], no error is revealed in the Tribunal’s cautious approach[45]. In any event, the Tribunal’s calculations were not the reason or part of the reason for affirming the decision under review as they did not contain in their terms a rejection, denial or undermining of the applicants’ claims[46]. Nor was there any error in the Tribunal putting to the applicant pursuant to s.424AA of the Migration Act, the applicant’s claims of past harm arising from his parents’ religious activities and the contradictory information about his father’s occupation[47]. That information was, in any event, exempted by s.424A(3)(b) of the Migration Act as it was included in the delegate’s decision record which the applicant had provided to the Tribunal with his application for review[48].
[42] Section 424A(3)(a)
[43] Minister for Immigration v NAMW (2004) 140 FCR 572 at [66]-[71] per Beaumont J, at [138] per Merkel and Hely JJ; WAJW v Minister for Immigration [2004] FCAFC 330 at [44]-[46] per RD Nicholson, Jacobson and Bennett JJ; QAAC of 2004 v Refugee Review Tribunal [2005] FCAFC 92 at [7]-[30] per Lander J (Dowsett and Hely JJ agreeing); VJAF v Minister for Immigration [2005] FCAFC 178 at [11]-[16] per Black CJ, Sundberg and Bennett JJ
[44] CB 237
[45] SZGIY v Minister for Immigration [2008] FCAFC 68 at [30]
[46] SZBYR v Minister for Immigration (2007) 235 ALR 609 at 616 at [17]
[47] CB 301, 304, [57], [81]
[48] CB 206
The Tribunal also put to the applicant pursuant to s.424AA, information from his wife’s protection visa application relating to the tuition costs for her education in Australia, which the Tribunal considered might imply that her parents had the financial resources to assist in paying the social compensation fee[49]. In the absence of any evidence to the contrary (such as a transcript), the Court is entitled to accept the Tribunal’s decision record as accurately reflecting its compliance with any s.424AA obligations that may have arisen[50].
[49] CB 305, [85]
[50] Applicant NAFF of 2002 v Minister for Immigration (2004) 221 CLR 1
Accordingly, Ground 1 fails to establish any jurisdictional error.
Ground 2
By Ground 2, the applicants assert that they were denied a fair hearing. Insofar as this is meant as a contention in respect of s.425 of the Migration Act, this ground is without merit. The applicants were invited to appear before the Tribunal to give evidence and present arguments on two occasions, and they did so on 18 February 2016 and 22 April 2016 with the assistance of a Mandarin interpreter and their migration agent[51]. There is no evidence before the Court to suggest that the applicants were not afforded a “real and meaningful” opportunity to participate in the Tribunal hearing[52]. Further, as set out above, the Tribunal’s decision record indicates that adverse information was put to the applicant for comment at the hearing. In the absence of any meaningful particulars or evidence to support the claimed denial of procedural fairness, it cannot be made out.
[51] CB 225, 267
[52] Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [16]
Ground 3
Ground 3 contends that the Tribunal failed to consider the applicants’ claims in accordance with the Refugees Convention criterion. As noted above, the Tribunal limited its consideration of the first and second applicants’ claims to the complementary protection criterion, but assessed the third applicant’s claims against both the Refugees Convention and complementary protection criteria as she had not been included in the first protection visa application. The Tribunal was correct in doing so. The application for protection which gave rise to the present proceeding was brought following the Full Federal Court’s decision in SZGIZ and, accordingly, the delegate and the Tribunal were permitted to consider the first and second applicants’ claims only in respect of the complementary protection criterion in s.36(2)(aa) of the Migration Act[53]. Even in circumstances where the delegate considered the first and second applicants’ claims against both the Convention and complementary protection criteria, the correct approach, as adopted by the Tribunal, was to assess the first and second applicants’ claims only against the complementary protection criterion. No error arises.
[53] Minister for Immigration v SZVCH [2016] FCAFC 127; AMA15 v Minister for Immigration [2015] FCA 1424
Conclusion
The applicant has been unable to establish that the decision of the Tribunal is affected by any jurisdictional error.
The decision is therefore a privative clause decision and the application must be dismissed. I will so order.
In consequence, the Minister seeks an order for costs fixed in the sum of $5,800 which is significantly below the scale amount prescribed under the Federal Circuit Court Rules 2001 (Cth). The applicant indicated that he may require time to pay. That is a matter he can discuss with the Minister’s Department. I will not order that costs be paid by any particular time.
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 $5,800.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 17 October 2017
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