BNY15 v Minister for Immigration

[2016] FCCA 685

FEDERAL CIRCUIT COURT OF AUSTRALIA

BNY15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 685

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), s.424A

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

Applicant: BNY15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2107 of 2015

Judgment of: Judge Driver

Hearing date: 23 March 2016

Delivered at: Sydney

Delivered on: 23 March 2016

REPRESENTATION

The applicant’s litigation guardian appeared on behalf of the applicant 

Solicitors for the Respondents: Ms M Stone of DLA Piper

INTERLOCUTORY ORDERS:

1. Pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

2. The applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2107 of 2015

BNY15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(revised from the transcript)

1. This is an application to review a decision of the Administrative Appeals Tribunal (Tribunal).  The decision was made on 6 July 2015.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is a child born in Australia.  Background facts relating to this matter are set out in the Minister’s outline of legal submissions filed on 11 March 2016

2. The applicant is an infant, born on 5 July 2013. He was born in Sydney and is a Chinese citizen.  His application for protection has been made on his behalf by his mother, CG.   A birth certificate was provided confirming that she is the applicant's mother.  Pursuant to orders made by Registrar Hannigan on 3 September 2015, CG was appointed the litigation guardian of her son, the applicant.

3. The applicant's claims were initially set out in a statement attached to his visa application. He claimed that his parents' marriage is not approved by both families and thus they won't be able to receive care and help in China. He also claimed that as he was born out of wedlock, a penalty will be required to be paid which exceeds RMB 50,000 and beyond the financial capacity of the mother. The applicant claimed if the penalty was not paid he would not obtain a legal residence permit and be discriminated against and become part of a group with no social benefits. The applicant claimed treatment of people who violate the Chinese birth control policy is particularly tough in the Fujian Province.

4. The applicant also claimed his mother is Christian and attended her family Church in China, as a result of which she suffered persecution. The applicant claimed that his grandmother was arrested by plain-clothed policeman for distributing religious leaflets and detained for a month. The applicant claimed that in 2013 his mother’s computer was hacked when she sent gospel material to the applicant’s grandmother, and his grandmother was summoned by the police for further investigation.

5. The applicant claimed his mother was baptised in Sydney in 2008 and has been attending the Bread of Life Christian Church. He claimed that his mother is an overseas student who is dependent on her family for financial support but the government has made it impossible for his family to farm in China. 

Tribunal decision

1. The Tribunal set out the background to the review[1] and extracted the applicant's written claims.[2] It noted that a baptism certificate for the mother had been provided.[3]

   [1] Tribunal Decision [1]-[3]

   [2] Tribunal Decision [5] 

   [3] Tribunal Decision [6]

2. The Tribunal noted that the applicant's mother previously applied for a protection visa in 2011 and that application was refused, with merits and judicial review unsuccessful.[4] The applicant's mother told the Tribunal she would be giving evidence on the applicant's behalf and that she was currently pregnant.[5] The applicant's mother also provided a letter from the Bread of Life Christian Church in Sydney certifying that she had come to church since the end of 2007 and was baptised in 2008.[6]

   [4] Tribunal Decision [7]

   [5] Tribunal Decision [9]

   [6] Tribunal Decision [10]

3. The Tribunal expressed its concerns about the credibility of the mother's evidence in the following respects:

   a)first, the Tribunal considered the mother's oral evidence about only one incident she suffered as a child because of her involvement with the Church was inconsistent with the applicant's written statement;[7]

   b)secondly, the Tribunal was concerned that the mother's oral evidence did not mention events referred to in the written statement that the grandmother's church was repeatedly inspected from 2013;[8]

   c)thirdly, the mother's oral evidence was different from the written statement in respect of the grandmother being detained;[9]

   d)fourthly, the mother's oral evidence was different to the written statement in respect of the grandmother being in a blacklist;[10]

   e)fifthly, the mother's oral evidence was different to the written statement in respect of the government making it difficult for her family to farm;[11]

   f)sixthly, the mother told the Tribunal she would be fined RMB 10,000 for breaching the family planning policies but the written statement said RMB 50,000.

   [7] Tribunal Decision [13]

   [8] Tribunal Decision [14]

   [9] Tribunal Decision [15]

   [10] Tribunal Decision [16]

   [11] Tribunal Decision [17]

4. The Tribunal found that the mother was “not a witness of truth” and has not told the truth “in relation to critical aspects of the claims”.[12]

   [12] Tribunal Decision [19]

5. The Tribunal considered the applicant's claims relating to religion. It accepted the mother may continue her Christian Protestant religious practices in China but that spreading the gospel would not be part of that.[13] It did not accept she would be involved with the “Almighty God” or “Eastern Lightning” Churches in China, and after considering country information, did not accept the applicant would suffer serious harm or persecution if she continued her Protestant religious practices in China.[14]

   [13] Tribunal Decision [25]

   [14] Tribunal Decision [27]

6. The Tribunal considered the applicant as a baby born while his parents were not married. It accepted the parents were not married when he was born. It noted country information that the likely fee imposed would be 5980 to 9967 Yuan.[15] The Tribunal found that while the fee may cause financial difficulty for the mother, she would be able to pay it for the registration of the applicant, at which point he would enjoy all the social benefits of any other child.[16]

   [15] Tribunal Decision [30]

   [16] Tribunal Decision [35]

7. The Tribunal also considered whether the applicant would suffer persecution until he is registered. It noted extensive country information[17] and concluded that while the applicant may suffer some “social stigma and ostracism”, which might be distressing it does not constitute societal discrimination or amount to serious harm.[18] The Tribunal rejected the applicant's Convention based claims.[19]

   [17] Tribunal Decision [37]-[42]

   [18] Tribunal Decision [43]

   [19] Tribunal Decision [44]-[45]

8. The Tribunal considered complementary protection, and recalled its previous findings in respect of the mother's religious practice and concluded it did not accept there was a real risk that the mother or applicant would suffer significant harm.[20] It also found any societal discrimination suffered by the applicant for being born out of wedlock would not amount to significant harm.[21] The Tribunal affirmed the decision under review.

   [20] Tribunal Decision [48]

   [21] Tribunal Decision [51]

Current proceedings

1. These proceedings began with a show cause application filed on 29 July 2015.  The applicant continues to rely upon that application.  He has not taken up the opportunity afforded in procedural orders made by a registrar to file and serve an amended application or additional evidence.  The application is supported by an affidavit which I received as a submission.  The applicant’s mother was appointed litigation guardian for the applicant pursuant to the registrar’s orders. Also pursuant to those orders, the Minister filed a court book on 8 September 2015 that is before me as evidence. 

2. The applicant appeared today with his mother and his sister.  His sister was born recently.  At the time of the Tribunal’s hearing, the applicant’s mother was pregnant with her.  The applicant’s mother told me from the bar table that she and the father of her children were married on 14 February 2016.  She intends that her daughter will make her own protection claim shortly.  I invited oral submissions from the applicant’s mother.  She reiterated his claims for protection and foreshadowed that those of her daughter would likely be the same.

3. The applicant’s mother had herself made protection claims some years ago which were also rejected.  Having heard the applicant’s mother, I am firmly of the view that the dispute before the Court does not rise above a dispute over the merits of the Tribunal decision.  Those merits are beyond the jurisdiction of this Court.  I incorporate in this judgment the grounds set out in the application.

   Orders sought by Applicant

1, I could not accept the Migration & Refugee Division of the AAT’s decision for me as my statement and real situation have not been well and thoroughly considered. I don’t think the Migration & Refugee Division of the AAT has carefully treated my statement and explanation presented by my mother on my behalf in a good faith especially I will be implicated due to my mother’s faith with Eastern Lighting which is cracked down by Chinese communist Government.

2, The Migration & Refugee Division of the AAT has ignored the arrest, repress and persecution of my grand mother (my mother’s Mum) in origin due to her religion and practice of East Lighting and this will inevitably impact on me and my family if we return to China.

3, The Migration & Refugee Division of the AAT failed to carefully consider my mother’s constant pursue in her faith while she is Australia, her understanding and stance in her commitment of faith.

4, The Migration & Refugee Division of the AAT failed to consider my family’s insufficient financial ability dealing with the compensation imposed by the Chinese Family Planning authority as my mother is unmarried and I am a child out of wedlock. I will fall into a vulnerability of being discriminated and biased in social welfare such as medical health services and education sectors of social life.

5, The Migration & Refugee Division of the AAT has given NO more chance for me to make comment and provide evidence to the outstanding issues after hearing.

The Grounds of the Application are:

1, I am the Australian born child in family, who is out of wedlock. My parents are not married due to family denial. My mother has committed faith and get involved in Eastern Lightening church activity and practice. My mother once had bad experience with her faith when she was in China and has a fear to return due to her and her family faith after arrival in Australia. I believed my mother’s commitment and religious practice will make me adverse impact in origin and life challenged.

2, I will be a victim according to China’s Family Planning policy and my family couldn’t pay for the penalty or social compensation fee imposed by government. My family is suffering and struggles in stress and financial difficulty. We could not deal with the hung social compensation in our origin.   

3, I have a good reason to believe our family background will put negative impact on me as a innocent child, in particular my access to household registration (Huko), putting me into a Black Child” societal group, making me disadvantaged, suffered and harmed in medical and educational sectors and every aspect of social life in origin.

(Errors in original)

1. The Minister’s submissions deal with those grounds. I agree with those submissions.  

2. Under the heading on the application, “Orders sought by Applicant”, the applicant raises five paragraphs which could be interpreted as grounds for relief.

3. The first is that the applicant's “statement and real situation” have “not been well and thoroughly considered”. This amounts to impermissible merits review and does not disclose any jurisdictional error.[22] It does not disclose any jurisdictional error.

   [22] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259

4. The second is that the Tribunal ignored the 'arrest, repress and persecution of my grandmother'. The Tribunal considered the claims in respect of the grandmother variously throughout its decision as set out above. This ground does not identify any jurisdictional error.

5. The third is that the Tribunal failed to consider the mother's pursuit of her faith while in Australia. This is factually incorrect as the Tribunal had regard to this. The applicant’s claim does not identify any jurisdictional error.

6. The fourth is that the Tribunal failed to consider the applicant's family's financial circumstances and ability to pay the fee for the applicant being born out of wedlock. As set out above, the Tribunal considered this.  This ground does not disclose any jurisdictional error.

7. The fifth is that the Tribunal provided no chance to comment and provide evidence on the outstanding issues after hearing. Short of any obligation arising under s.424A of the Migration Act1958 (Cth) (Migration Act), the Tribunal is not required to invite the applicant to comment on the issues after hearing. The Tribunal hearing was on 14 April 2015 and the Tribunal delivered its decision on 6 July 2015. There is no indication that the applicant sought further time to provide further information.

8. Under the heading, “Grounds of Application”, the applicant has three paragraphs, all of which are submissions of fact and make various claims for protection. They do not identify any jurisdictional error.

9. It follows that the applicant is unable to demonstrate an arguable case of jurisdictional error. I will order that, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules), the application is dismissed.

10. In consequence of the dismissal of the application, the Minister seeks an order for costs against the applicant’s litigation guardian in accordance with the Court scale.  The applicant’s mother asked if costs could be reduced on the basis of financial hardship.  In my opinion, scale costs are appropriate in this matter and the capacity for the applicant’s litigation guardian to pay is not the determining factor.

11. I will order that the applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 31 March 2016