Bko16 v Minister for Immigration
[2018] FCCA 600
•13 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BKO16 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 600 |
| Catchwords: MIGRATION – Whether the Administrative Appeals Tribunal considered all claims made by applicant – whether the findings of the Administrative Appeals Tribunal were open – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 31, 36, 65, 411, 422B, 424A, 424AA, 425, 474, 476 Migration Regulations 1994 (Cth), reg.2.01 |
| Cases cited: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 Abebe v Commonwealth of Australia (1999) 197 CLR 510 Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 S14/2002v Refugee Review Tribunal [2004] FCAFC 171 Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95 |
| First Applicant: | BKO16 |
| Second Applicant: | BKP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1472 of 2016 |
| Judgment of: | Judge Emmett |
| Hearing date: | 13 March 2018 |
| Date of Last Submission: | 13 March 2018 |
| Delivered at: | Sydney |
| Delivered on: | 13 March 2018 |
REPRESENTATION
| The Applicant appeared in person with the assistance of a Mandarin interpreter. |
| Solicitors for the Respondents: | Mr Justin McGovern Clayton Utz |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1472 of 2016
| BKO16 |
First Applicant
| BKP16 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal (“the Tribunal”) dated 30 June 2016, dismissing an application for review by the Tribunal of a decision of a delegate of the first respondent (“the Delegate”) made on 10 March 2015 refusing the applicants a Protection (Class XA) visa (“Protection visa”).
The first applicant is a citizen of China (“the Applicant”). The second applicant is a minor and is the son of the Applicant.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s claims in support of a protection visa, a summary of the decision of the Delegate, and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 25 September 2007, having departed legally from China on a passport issued in her own name and a TU-580 visa which was cancelled on 8 July 2009. The Applicant was unlawfully in Australia from 9 July 2009 until 19 March 2014.
On 19 March 2014, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Border Protection (“the Department”).
On 10 March 2015, the Delegate refused the Applicant’s application for a protection visa.
On 27 March 2015, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal.
On 30 May 2016, the Tribunal handed down its decision affirming the decision of the Delegate not to grant a protection visa.
On 9 June 2016, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Pursuant to s.65(1)(a) of the Act, if satisfied of a number of matters, the first respondent may grant a visa. Section 65(1)(b) of the Act provides that, if the first respondent is not satisfied about those matters, then the Minister must refuse to grant the visa.
Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (reg.2.01 of the Migration Regulations 1994 (Cth) (“the Regulations”) and Schedule 1 to the Regulations).
Section 36(2)(a) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia in respect of whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”).
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 36(2)(aa) of the Act provides that:
“(2) A criterion for a protection visa is that the Applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.”
Sections 36(2A) and 5 of the Act defines “significant harm.”
Under s.411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
The requirements of the natural justice hearing rule are exhaustively stated in Division 4 of Part 7 of the Act (s.422B(1) of the Act). Division 4 Part 7 includes ss.424A and 425, which provide that:
“424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”
Section 424AA of the Act permits the Tribunal to give orally to an applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review. The Tribunal must ensure that the applicant understands the relevance of the information and the consequences of any information being relied upon. The Tribunal must also invite the applicant to comment on or respond to the information and advise the applicant that the applicant may seek additional time to comment on or respond to the information.
Under s.474(2) of the Act, a decision of the second respondent is a “privative clause decision”. Under s.474(1)(a) of the Act, a privative clause decision is final and conclusive.
However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision (see Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476).
The applicants’ application for a protection visas
The Applicant provided a statement in support of her Protection visa application in which she stated:
a)She was married in China and gave birth to her first child, a daughter, on 25 August 1991;
b)She subsequently gave birth to a second daughter.
c)Her husband and parents-in-law regarded her as inferior to other women because she could not give birth to a son.
d)Her parents-in-law pick on her and her husband humiliates her.
e)She underwent a forced tubal ligation procedure as part of the local village government family planning policy.
f)After the surgery, the Applicant claimed her husband and parents-in-law:
“…did not care about me. They did not even want to look at me. They accused me and tried to kick me out of home. I was struggling, begging my parents in law to let me come home…My husband still kept asking me to give birth to a son.”
g)On 1 February 1994, she gave birth to a third daughter
h)In the countryside, families may not have more than two children. The birth of more than two children is punished by large fines.
i)She could not afford to pay the fine and her mother-in-law told her to abandon her daughter.
j)She wanted to keep the child, but her parents-in-law gave the baby away.
k)On 1 July 2003 she gave birth to a son.
l)Her husband and parents-in-law were happy about the birth of her son, but the child’s household registration became a problem, and they could not afford to pay the fine for having another child.
m)Her son became an illegal resident in China. He could not go to school or receive government benefits.
n)In 2007, she sent her children to have further education.
o)She hopes one day her children can live with her in Australia so that they will not be illegal.
p)In 2011, the Applicant gave birth to a daughter in Australia.
q)She has another family now and cannot go back to China because her children are illegal.
The Delegate’s decision
On 9 December 2014, the Applicant attended an interview with the Delegate.
At interview, the Applicant made new claims in relation to fearing harm from her former husband who resides in China. The Applicant claimed that when she was previously married to her husband in China he physically assaulted her on several occasions. The Applicant claimed that her former husband may assault her if she returns to China as an unmarried mother because it is not culturally acceptable in China and would cause her husband to “lose face.”
The Applicant also referred to mental health problems she had previously suffered in China, but did not specify how this related to her claims for protection.
The Delegate found the information provided by the Applicant at interview to be inconsistent and contradictory. The Delegate found that the Applicant was not a witness of truth.
The Delegate was not satisfied that the Applicant was forced to undergo a tubal ligation procedure or that she had a child forcibly taken from her and adopted out to another family.
The Delegate was not satisfied, based on credibility issues, lack of detail and the fact that the Applicant did not mention it within her written claims, that the Applicant had previously been assaulted by her former husband in China.
The Delegate found that if the Applicant and her child returned to China, she would receive financial and emotional support from her family and would not suffer a degree of economic hardship that would threaten their capacity to subsist.
The Delegate was not satisfied that that if the Applicant’s child remained unregistered he would lose the right to medical care, education and social welfare in China, as country information indicates that medical and social benefits are not provided to registered children. The Delegate further noted country information that indicates unregistered children in Fujian still have access to private schools and clinics which will enrol or treat unregistered children, and that their fees are not excessive by Chinese standards.
The Delegate was not satisfied the Applicant has a real chance of being persecuted for a Convention reason, or that the Applicant’s fear was well-founded.
On 10 March 2015, the Delegate refused the applicants’ applications for protection visas on the basis that the applicants are not persons to whom Australia has protection obligations under the Convention and do not meet the alternative complementary protection criterion.
The Tribunal’s review and decision
On 27 March 2015, the applicants lodged applications for review of the Delegate’s decision by the Tribunal.
On 16 March 2016, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 26 April 2016 to give oral evidence and present arguments.
On 29 April 2016, the Applicant attended the Tribunal hearing and gave evidence.
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources.
The Tribunal explored the applicants’ claims with the Applicant in some detail at the hearing and put her concerns it had about her evidence, noting her responses. The Tribunal put to the Applicant country information for comment. The Tribunal identified with particularity the country information to which it had regard.
The Tribunal found that the evidence the Applicant gave to it at hearing was not consistent with that provided in the written statements that accompanied her application for protection in respect of the registration of her children in China; their ability to access education, health, and other government services; her marriage and subsequent divorce in China; and the number of children she has.
The Tribunal noted that the Applicant had not provided satisfactory evidence to support her claim to have fallen pregnant several times subsequent to claimed forced abortions, tubal ligation and insertion of an IUD.
After considering the available evidence, the Tribunal did not accept that the Applicant’s children in China were not registered or that they were discriminated against or in any way prevented from accessing an education or health or other government services.
With respect to the Applicant’s claim that her husband’s parents treated her badly, the Tribunal found that as the Applicant had been absent from China for nearly 10 years and had divorced her first husband, there was no real chance or real risk she would face any harm from her parents-in-law if she returns to China now or in the reasonably foreseeable future.
The Tribunal referred to country information reporting an announcement by President Xi Jinping that the one child policy would end from 1 January 2016 and that all children would be allowed hukou (household registration), regardless of payment of a social compensation fee, if born outside the government’s family planning policy. The Tribunal additionally noted country information that indicates restrictions for obtaining hukou for children born in contravention of family planning laws in the Applicant’s home province were being relaxed, with a new regulation enabling such children to be granted a hukou. The information indicates that the hukou can be obtained without proof of payment of the social compensation fee but that parents will still receive punishment for breaching the rules.
The Tribunal was satisfied on the basis of this evidence that the second applicant will be able to obtain household registration on his return to China.
The Tribunal was therefore satisfied that the second applicant does not face a real chance of serious harm because he will be unable to receive a household registration as a child born to parents out of wedlock.
With respect to the Applicant’s claims to fear returning to China as an unmarried single mother, the Tribunal found that while country information indicates there is some discrimination towards single mothers in China, country information also indicates that she would be able to obtain some employment and accommodation and be able to subsist. Moreover, the Tribunal was not satisfied on the basis of the Applicant’s evidence, which it found to be inconsistent and vague, that she would not have the support of her family if she returns to China.
The Tribunal accepted, on the basis of available country information, that the Applicant would likely face some level of social compensation fine on her return to Fujian province for having given birth to a child out of wedlock. The Tribunal did not accept, however, that any such fine is Convention-related, being governed by laws that apply generally to the Chinese population. The Tribunal further found that any requirement for the Applicant to pay such a fine under these laws is appropriate and is for the purpose of achieving a legitimate national objective in the context of China’s need to control its population.
The Tribunal was satisfied that the requirement to pay a social compensation fee under the family planning regulations of the Applicant’s home province would not be selectively enforced against the Applicant and that payment of the fee is not persecution.
The Tribunal considered the Applicant’s claims to be unable to pay the social compensation fee to be exaggerated, and was satisfied she would be able to obtain assistance from her family and to obtain some kind of employment in China on her return.
The Tribunal accepted that both applicants would suffer a degree of societal stigma due to the fact that the second applicant was born out of wedlock. The Tribunal did not accept, however, that the social stigma, bullying or teasing would amount to either serious harm or significant harm.
The Tribunal found that neither applicant had a well-founded fear of persecution for any reason related to China’s family planning policies or because of the Applicant’s membership of a particular social group of unwed/single mothers or because of the second applicant’s membership of a particular social group of child born out of wedlock or any combination thereof or for any other Convention reason, now or in the reasonably foreseeable future.
The Tribunal considered that any discrimination either applicant may encounter would not amount to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.
The Tribunal found that the applicants would not be subjected to significant harm for any reason, and that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk that either of them will suffer significant harm for those reasons.
The Tribunal asked the Applicant if she feared harm from her ex-husband if she returns to China. The Applicant responded that she had no idea as they divorced over 10 years ago and he won’t help her. The Tribunal found that there was no credible evidence, and did not accept, that the Applicant faces any harm from her husband on her return to China.
The Tribunal noted that the Applicant had provided various copies of documents indicating that she had received treatment for her mental health issues while in China, and was satisfied that the Applicant has not been denied such treatment while in China for any reason. The Tribunal further noted that country information indicates that the Applicant is able to access health care in the public system in China where she has household registration, as well as in the private system.
The Tribunal did not accept, on the basis of the evidence provided, that there is a real chance the Applicant will be denied medical treatment for any reason if she returns to China now or in the reasonably foreseeable future.
The Tribunal consequently found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to China, there is a real risk that the Applicant will suffer harm on this basis.
Having considered the applicants’ claims both individually and cumulatively, the Tribunal found that the applicants did not satisfy the refugee criterion in s.36(2)(a) of the Act, or the alternative criterion in s.36(2)(aa) of the Act, the Tribunal affirmed the decision under review.
The proceeding before this Court
The applicants were unrepresented before this Court, although the Applicant had the assistance of a Mandarin interpreter.
On 28 July 2016, the Applicant attended a directions hearing before a registrar of this Court. On that occasion, the applicants were given leave to file and serve an amended application and any further evidence and submissions in support of their application. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of today’s hearing, the Applicant confirmed that she has not filed any amended application, evidence or submissions in support of her application and that she has no further documents to present to the Court this morning in support of her application.
The Applicant confirmed that she relied on the grounds contained in the application filed on 9 July 2016, as follows:
“1. The Second Respondent has avoided the facts that the applicant was harmed by the local government, she was forced into many times of abortion, her mentally was managed by the local village committee, her birth right was deprived by the government, it is the serious harm in relation to her human rights.
2. The first Respondent and Second Respondent both indicated the fines (Social compensation fee) will be applied when the breach of family planning law in CHINA happened. However, they did not consider the regulation was executed various in different areas. The applicant's local government will require huge fine which over the applicant's affordability.
3. In the decision record (AAT) item 47, it states " the discrimination they may encounter would not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment as defined in the ACT. The discrimination would not cause severe pain or suffering, whether physical or MENTAL, or pain or suffering, whether physical or mental, that in all the circumstances could reasonably be regarded as cruel or inhuman in nature." the second respondent has jumped into this conclusion without careful consideration, the applicant has suffered the pain , the inhuman treatment in CHINA when she was pregnant. She has mentally destroyed by her husband's family and the village committee, the discrimination is included the oral abuse, physically bully, unfair treatment in certain extent. It may cause the Physiological problem during the long term discrimination, especially to the minors.”
(Errors in original)
Each of the grounds was interpreted for the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
I explained to the Applicant that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider the claims and reach different findings or conclusions. I also explained to the Applicant that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the Applicant that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the Applicant that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.
Ground One
I asked the Applicant if there was anything she wished to say in support of Ground One and she made no relevant response. I asked her what she meant in Ground One by the phrase “avoided the facts” and she said she did not know.
In the circumstances, Ground One appears to be a complaint by the Applicant about the rejection by the Tribunal of her claims.
A fair reading of the Tribunal’s decision record makes clear that the Tribunal considered in detail the Applicant’s claims of harm by the local government, forced abortion, her mental health and her deprived birthright.
The Tribunal referred to the documents provided by the Applicant in support of her claims.
However, the Tribunal found the Applicant’s evidence to be confusing and inconsistent and lacking in credibility. The Tribunal found the Applicant’s evidence to be internally inconsistent and inconsistent with her written claims.
The Tribunal referred to various exchanges that it had with the Applicant about concerns it had and noted the Applicant’s responses. In particular, the Tribunal noted the Applicant’s written claim that she was forced to undergo abortions and a tubal ligation and had an IUD inserted. However, she fell pregnant several times thereafter. The Tribunal found there was no credible evidence to support her claims and accordingly did not accept that the Applicant was forced to undergo abortions or a tubal ligation or had an IUD inserted.
The Tribunal found the Applicant provided inconsistent evidence as to when she divorced her husband. In her written claims she stated she had divorced him in 2001, although had a son with him in 2003. She also told the Tribunal that she had divorced her husband about ten years ago, although she can’t remember when. She also gave inconsistent evidence in relation to the registration of her children in China.
Ultimately, the Tribunal did not accept that the Applicant’s children in China were not registered.
In relation to her mental health, the Tribunal noted that the Applicant did not make any claim to fear returning to China on the basis of her mental health, although she provided copies of documents indicating that she had received treatment for mental health issues while in China.
Further, and in any event, the Tribunal noted that the Applicant had not been denied medical treatment in China and that based on country information she is able to access health care in China. Based on the evidence before it, the Tribunal did not accept that the Applicant would be denied medical treatment if returned to China or that there was a risk of significant harm on that basis.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The Tribunal’s findings were open to it on the evidence and materials before it and for the reasons it gave, including its adverse credibility findings. Those findings were not tainted by any failure to afford procedural fairness, reaching a finding without a logical or probative bases or unreasonableness (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [83] per Griffiths, Perry, Bromwich JJ). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility.” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547)
In the circumstances, the Tribunal considered the matters referred to by the Applicant in Ground One, but did not accept that any of those claims put her at risk of serious or significant harm if returned to China.
Otherwise, Ground One does not identify any jurisdictional error on the part of the Tribunal and appears more to be a disagreement with the findings and conclusions of the Tribunal. The Applicant’s complaints, such as they are, invite merits review which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:
“It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.”
Accordingly, Ground One does not demonstrate any jurisdictional error on the part of the Tribunal.
Ground Two
In support of Ground Two the Applicant said that her children were not able to be registered on the Chinese household register (the hukou).
The Tribunal relied on country information which referred to the imposition of fines for breaching the family planning laws. Based on the country information, the Tribunal accepted that fines may be imposed in the Applicant’s local Fujian province. In particular, the Tribunal noted that the restrictions in the Applicant’s home province for obtaining hukou (household registration) for children born in contravention of family planning laws. The Tribunal referred to country information that indicated that such children could access government services such as education and health.
More importantly, the country information indicated that hukou can be obtained without proof of payment of the social compensation fee, although the parents may still receive a punishment for breaching the rules. The Tribunal referred to country information that all children would be allowed hukou from 1 January 2016 if born outside the government’s family planning policy, regardless of payment of a social compensation fee.
The Tribunal found that the second applicant would be able to obtain household registration on his return to China and was not at risk of serious or significant harm on that basis.
Insofar as Ground Two asserts that the Tribunal did not consider that the laws may be imposed variously in different areas, there is nothing on the face of the Tribunal’s decision record to suggest that the Applicant made any such claim. The Tribunal found that any social compensation fee payable by the Applicant would be able to be paid by instalments and was not satisfied that any such amount would cause undue hardship to the Applicant. The Tribunal found the Applicant had exaggerated her excuses for her inability to pay the social compensation fee and found she would be able to obtain assistance from her family and would be able to obtain employment in China on her return.
The Tribunal did not accept that the Applicant would suffer any harm in paying the social compensation fee and found that any such imposition does not amount to serious harm.
The Tribunal found that the fines were imposed pursuant to laws generally applied to the Chinese population and would not be selectively enforced against the Applicant.
The Tribunal found that the payment of any fee did not amount to persecution.
It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Accordingly, Ground Two does not identify any jurisdictional error on the part of the Tribunal.
Ground Three
In support of Ground Three, the Applicant repeated her submission in support of Ground Two, that her children would not be able to be registered on the Chinese household register.
In making the finding referred to in Ground Three, the Tribunal was doing no more than considering whether the Applicant met the Complementary Protection criteria in s.36(2)(aa) of the Act, which requires the Tribunal to consider if there is a real risk that a person such as the Applicant would suffer significant harm if returned. Section 36(2A) defines “significant harm” to include the matters referred to by the Applicant in Ground Three.
Ground Three also refers to the Applicant’s allegations of past harm from her husband’s family. However, the Tribunal noted that the Applicant has been absent from China for nearly ten years, and is divorced from her first husband. In those circumstances, the Tribunal found that she did not face a risk of harm from her ex-parents-in-law if returned to China now or in the reasonably foreseeable future.
Further, the Tribunal’s decision record makes clear that it considered the Applicant’s claims to fear violence from her ex-husband if returned to China. The Tribunal explored that claim with the Applicant. The Tribunal noted the Applicant’s response that she had no idea how her husband would react if she were to return to China with her son as they had divorced over ten years ago and he would not help her. The Tribunal found there was no credible evidence that the Applicant faced harm from her husband on her return to China, and that her evidence in support of such a claim was not satisfactory. The Tribunal did not accept that the Applicant was at risk of serious or significant harm on that basis if returned to China.
The Tribunal’s findings in relation to these claims were open to it on the evidence and material before it and for the reasons it gave. The findings were based on rational grounds and arrived at in consideration of matters that were logically probative (see ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174; Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).
Accordingly, no jurisdictional error is demonstrated in Ground Three.
Typographical Errors
The first respondent drew the Court’s attention to what would appear to be two typographical errors in paragraphs 26 and 49 of the Tribunal’s decision record. In each, the Tribunal states that it “does accept” certain of the Applicant’s claims. I accept that in the context of those errors, it is plain that each phrase should read “does not accept”.
In the circumstances the error was not material to any of the Tribunal’s findings and is not capable of establishing jurisdictional error (see S14/2002v Refugee Review Tribunal [2004] FCAFC 171 at [27]-[35]).
In making this finding I have regard to the caution the Court should exercise in “filling the gaps” (Handa v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 95; [2000] FCA 1830 per Finkelstein J at [48]).
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicants; explored those claims with the Applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal identified independent country information to which it had regard.
The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 13 March 2018
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