BUG15 v Minister for Immigration

[2017] FCCA 3059

FEDERAL CIRCUIT COURT OF AUSTRALIA

BUG15 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 3059

Catchwords:
MIGRATION – Application for judicial review of decision of Administrative Appeals Tribunal (Tribunal) affirming decision not to grant applicant protection visa – whether Tribunal considered claims – whether the Tribunal conducted hearing fairly – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: BUG15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2436 of 2015

Judgment of: Judge Manousaridis

Hearing date: 18 November 2016

Date of Last Submission: 18 November 2016

Delivered at: Sydney

Delivered on: 8 December 2017

REPRESENTATION

Applicant in person assisted by an interpreter.

Solicitor for the First Respondent:

Mr T Hillyard of

Sparke Helmore Lawyers

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2436 of 2015

BUG15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant, who is a young child and a citizen of the People’s Republic of China (China), seeks judicial review of a decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

2. Before I turn to the grounds stated in the application, I will set out the claims for protection advanced on the applicant’s behalf by his mother, and the Tribunal’s reasons for not accepting those claims.

Claims for Protection

1. The applicant’s claims for protection were recorded in a statement written by the applicant’s mother that formed part of the applicant’s application for a Protection visa.[1] According to that statement, the applicant was born in Australia and will be persecuted if he returns to China because of his parent’s Christianity, and because he was born in contravention of China’s birth-control policy. The applicant’s parents, who are both from Fujian province, arrived in Australia as the holders of student visas. The applicant claims that both his parents are Christians and have attended the Local Church.

   [1] CB27-29

2. While in Australia the applicants were legally married, but their families rejected their union. The applicant claims his parents are unable to register their marriage in China because they hold an Australian marriage certificate. The applicant claims that his parents would have to show their residency status (Hukou) by law and the “reality is that my parents’ families will definitely not agree to deliver a Huko [sic] to them for marriage registration”.[2] As a result, if they return to China the applicant’s parents will be fined for being in breach of the family planning policy which they are unable to pay. The applicant’s parent’s inability to pay any imposed fine will prohibit the applicant from receiving his residence permit and as a consequence, he will become a “black baby” without legal status and will be discriminated against in “almost all social aspects”, including education and medical care.

   [2] CB27

3. The applicant claims the local government in Fujian province are “inhuman” in their treatment of families who have violated its birth-control policy, and often take brutal measures to punish those who fail to pay the penalty, such as “throwing them into illegal prisons, arresting their family members, demolishing their houses or destroying” their property. Forced contraceptive operations are also imposed. As there is no lack of victims to the birth-control policy “among their relatives”, the applicant’s parents “never dare to come back to China”. The applicant also claimed that the penalties that are imposed for breaches of the birth control policy are higher than reported. The applicant claims his family has “no alternative but to stay in Australia” due to the threat of religious persecution and social punishment, and oppression and discrimination they will face due to the government’s birth-control policy.

Tribunal’s reasons

1. The Tribunal was not satisfied the applicant’s mother was a credible witness. The Tribunal found the applicant’s mother’s claims about being a Christian in China and Australia were either embellished or fabricated.[3] First, the mother gave evidence before the Tribunal that contradicted the “Reference to [applicant’s mother]”. That letter stated the Mother was “actively involved in our little flock and family congregation since June 2013”. When asked at the hearing about her involvement with “little flock”, the mother “had no idea what the Little Flock was”.[4] Second, the Tribunal considered there was a lack of corroborative evidence from persons within the Church she allegedly has been attending in Australia.[5] Third, the applicant’s mother displayed a “very basic understanding of any religious doctrine or practise” (sic).[6]

   [3] CB81, [11]

   [4] CB81, [11]

   [5] CB81, [11]

   [6] CB82, [13]

2. The Tribunal, however, accepted the applicant’s mother was born into a Christian family in China; that she had some limited contact with an unregistered Christian church in China; the applicant’s mother’s parents attend a local unregistered church in China and have done so for many years; around ten persons attend the services conducted by that church; except for one incident in 2000, the applicant’s mother’s parents have attended the unregistered church without being harmed, harassed or questioned by the authorities; and the applicant’s mother has some limited contact with a Christian Church in Australia.[7] Nevertheless, relying on country information, the Tribunal was not satisfied that a person who has had some limited attendance at a house or local church in China with between ten to twenty persons in attendance would have a real chance of suffering persecution for that reason.[8] The Tribunal also was not satisfied that a person who has some limited attendance at a Church in Australia would have a real chance of suffering persecution for that reason in China.[9]

   [7] CB84, [18]

   [8] CB84, [19]

   [9] CB84, [20]

3. As to the applicant’s claim based on his parents’ marriage not being recognised in China, the Tribunal was not satisfied the marriage would not be recognised in China.[10] The Tribunal was also satisfied that the applicant would be able to live in the hukou area of his mother or father in China, subject to the applicant’s parents’ choice.[11]

   [10] CB85, [25]

   [11] CB86, [30]

4. As to the claim based on the applicant’s parents’ breach of the family planning policy, the Tribunal was not satisfied there is a real chance the applicant’s parents would be imprisoned in China for breaching family planning laws; and it was satisfied the applicant’s parents could pay the penalty for breaching that law.[12]

   [12] CB87, [35]; CB89, [41]

5. At the hearing before the Tribunal, the applicant’s mother, when asked whether she had any other issues to discuss with the Tribunal, advanced an additional claim, namely that she suffered from Hepatitis B and would be discriminated against in China for that reason.[13] The Tribunal referred to country information that showed there is discrimination in China of persons who have Hepatitis B. The Tribunal was not satisfied, however, the applicant’s mother (and as a consequence the applicant) has a real chance of suffering serious harm because she has Hepatitis B.[14] The applicant’s mother said that she would not work in China because she would be required to care for her children;[15] the Tribunal was satisfied the Chinese economy would not continue to expand if it excluded the 10% of the population who have Hepatitis B;[16] and the Tribunal was satisfied that the applicant’s father’s work as a gyp-rocker in Australia would enable the applicant to be supported in China by his father.[17]

   [13] CB90, [45]

   [14] CB91, [50]-[51]

   [15] CB90, [47]

   [16] CB91, [49]

   [17] CB91, [49]

6. Finally, the Tribunal considered the applicant’s claims against the complementary protection criterion provided for by s.36(2)(aa) of the Migration Act 1958 (Cth) but was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal there is a real risk he will suffer significant harm if he were returned to China.[18]

   [18] CB94, [64]-[65]

Grounds of application

1. The applicant’s application for review contains three grounds. The first ground is:

   The Tribunal failed to consider a claim that clearly arose on the information before the Tribunal.

   The Tribunal failed in considering whether the applicant’s parents have real capacity to “pay any financial penalty in China” as required. When the applicant’s parents cannot afford to pay the penalty as required, the applicant will have a real chance of suffering serious harm. The Tribunal make a finding that the applicant’s parents have access to more financial capacity, but the Tribunal made no reference on what basis the applicant’s parents would have such a capacity.

2. The applicant’s mother, who appeared at the hearing before me, submitted in relation to this ground that the Tribunal “made a wrong decision in this regard”. She submitted that neither her nor her husband’s parents have the capacity to pay; and that if the fine is not paid she will be put into gaol. The applicant’s mother also tendered a report concerning her medical condition. The applicant’s mother submitted this showed she suffered from Hepatitis B. She acknowledged she did not provide this report to the Tribunal. I admitted the report subject to relevance.

3. Ground 1 makes two contentions. The first is that the Tribunal did not consider whether the applicant’s parents had a real capacity to pay any fine that may be imposed because they did not comply with the family planning laws. I do not accept that contention. The Tribunal specifically asked the applicant’s mother why the applicant’s parents could not pay any financial penalty in China. After recording the submissions the applicant’s mother made, the Tribunal referred to the following two matters:

   a)First, the applicant’s parents have been able to travel to and study in Australia, reside in Australia for many years, and maintain themselves and two children in Australia. Based on these matters, the Tribunal was satisfied the applicant’s parents have access to more financial capacity than they claimed.[19]

   b)Second, there was country information to the effect that a person may request to pay the penalty for breaching the one-child policy by instalments over a period not exceeding 3 years; and that a hukou will be issued before the penalty is paid in full, so there would be no effect on the applicant getting access to public schools or other services.[20]

   [19] CB89, [38]

   [20] CB89, [39]

4. The second contention made in ground 1 is that the Tribunal did not identify the basis on which the Tribunal found the applicant’s parents have access to more financial capacity than they claimed. I also do not accept that contention. As I have already noted, the Tribunal relied on the applicants’ parents having been able to support themselves in Australia, the applicant’s father having worked in Australia as a gyp-rocker, and the applicant’s parents having been able to travel to and study in Australia.

5. The submissions the applicant’s mother made before me go no further than expressing disagreement with the Tribunal’s findings that it was satisfied the applicant’s parents would be able to pay the penalty that may be imposed because of the failure by the applicant’s mother and father to comply with the family planning policy. The applicant’s mother’s reliance on the medical report she tendered at the hearing before me is an appeal to the merits of the claim she made before the Tribunal, which the Tribunal did not accept, that she faces harm in China because she has Hepatitis B. The submissions the applicant’s mother made before me, therefore, do not disclose any jurisdictional error.

6. It was reasonably open to the Tribunal, for the reasons it gave, not to accept the applicant’s claims based on the applicant’s parents not having complied with family planning laws and the applicant’s mother having Hepatitis B.

7. The second ground is:

   The Tribunal erred in arriving at a conclusion without supported evidence.

   At paragraph 38, the Tribunal made a finding that the applicant’s father works as a gyp-rocker in Australia and he could make financial earning to support the family. The applicant’s parents have been able to travel to and study in Australia. Therefore, the Tribunal inferred that the applicant’s parents have access to more financial capacity than was claimed. The Tribunal failed to take account of the applicant’s parent’s financial dependency on their respective family. The Tribunal also erred in its findings that the applicant parents’ ability to make income in Australia is not necessary to indicate that they have same opportunity and ability to make sufficient income to support the family.

8. The ground makes two contentions. The first is that the Tribunal failed to take account of the applicant’s parent’s financial dependence on their respective families. It does not appear from the Tribunal’s reasons, however, that the applicant’s mother advanced a claim that she and the applicant’s father were dependent on their respective families. The Tribunal, therefore, did not make any jurisdictional error by not considering such claim.

9. The second contention made in ground 2 is that the Tribunal erred in finding that the applicant’s parents’ ability to make income in Australia indicated they have the same opportunity and ability to make sufficient income in China to support the family. It is true the Tribunal relied on the applicant’s father’s working as a gyp-rocker in Australia. The Tribunal, however, was aware that the income the applicant’s father would earn as a gyp-rocker in Australia was greater than he might receive in China.[21] Further, the Tribunal also relied on the applicant’s parents having been able to travel to and study in Australia. It was reasonably open to the Tribunal to conclude that the applicant’s parents would have the ability to pay any penalty that may be imposed for breaching the family planning law.

   [21] CB89, [38]

10. At the hearing before me, the applicant’s mother submitted that:

    a)although the Tribunal found the applicant’s father would be able to obtain a job as a gyp rocker in China, it failed to consider that the job is not secure;

    b)the applicant’s mother told the Tribunal that all the supporting documents for the purpose of the student visa application were not genuine;

    c)gyp rockers are paid less in China than in Australia.

11. It does not appear from the Tribunal’s reasons the applicant’s mother said that the applicant’s father’s position as a gyp-rocker would not be secure, or that the applicant’s parents relied on false documents in their applications for student visas. The Tribunal, therefore, could not have made any jurisdictional error by not considering these matters. As to the third submission, the Tribunal was aware that the applicant’s father would be paid less in China than he has been paid in Australia.

12. The third ground is:

    The Tribunal failed to give the applicant an opportunity to respond the questions asked by the Tribunal.

    Particulars

    The Tribunal on a number of occasions interrupted my responding to its questions and closed my unfinished response by saying “I know”.

    The Tribunal on a number of occasions asked polar questions (yes-no questions) and expected me to answer only either “yes” or “no”.

13. At the hearing before me, the applicant’s mother said the Tribunal member did not give her a chance to explain and that “halfway through my answering the member just said, “I know”. After that I don’t know what else to say”.

14. I have listened to the audio recording of the hearing. The Tribunal member did say to the applicant “just yes or no” on the following occasions.

    a)The first occurred some 17 minutes into the hearing. The Tribunal member there put to the applicant’s mother what the delegate recorded the applicant’s mother as having said, namely that she did not attend a church in Australia during 2008 to 2013 because she could not find one. The applicant’s mother responded by saying the delegate had misheard her. The Tribunal then asked whether what the applicant’s mother was now saying was that she attended church but not a local church because she could not find one and added “just yes or no”.

    b)The second occasion occurred around 23 minutes into the hearing. It occurred in the course of the Tribunal member seeking to obtain information about the churches the applicant’s mother said she had been attending and the time at which she attended and did not attend the church. On this occasion, the Tribunal member asked the applicant about her attending the Wesley church. The applicant’s mother said she stopped attending when she was five or six months pregnant. At this point the Tribunal member asked whether she stopped attending for four or five months and added “please answer yes or no”.

    c)The third occasion occurred around 28 minutes into the hearing. The Tribunal member asked the applicant’s mother how often she attended church services in China. The applicant’s mother said in effect that she would go on Sundays if her school did not have activities on that day. The Tribunal member at that point said he understood the applicant’s mother to say that she would attend church services on Sundays if her school did not have activities on that day. He then asked whether that is correct and asked the applicant to “please answer yes or no”.

    d)The fourth occasion occurred around 46 minutes into the hearing in the course of the applicant’s mother saying her father had been taken away during a gathering. The Tribunal said he understood the applicant’s mother to say that on pages the applicant’s mother used to use for study, those pages were used to print out Christian materials; and that the applicant’s father was detained but then released with a warning. At the end of the first of these two statements the Tribunal member said “just yes or no” and after the second statement the Tribunal member said “please answer yes or no”.

    e)The fifth occasion occurred around 1 hour 13 minutes into the hearing in the course of the applicant’s mother’s evidence about the times during which the applicant’s father works in Australia. The Tribunal member said that the applicant’s mother said the applicant’s father does not work full time but only several days a week and, after asking whether that is correct, he said “please answer yes or no”.

15. There was no unfairness in the Tribunal asking the applicant to answer “yes or no”. The Tribunal member made the request for the purpose of communicating to the applicant’s mother his understanding of what the applicant’s mother said; and the Tribunal member did that to satisfy himself that he had correctly understood what the applicant’s mother said. Having listened to the recording of the hearing, I am satisfied the Tribunal member acted fairly in the manner in which he conducted the hearing. The Tribunal member methodically took the applicant’s mother to the particular aspects of the applicant’s claims. The Tribunal member indicated to the applicant’s mother when he had completed his questions on each topic, and asked the applicant’s mother whether she had anything further to say before the Tribunal member moved onto another aspect of the applicant’s claims.

16. Ground 3, therefore, is not made out.

Conclusion and disposition

1. The applicant has not established any jurisdictional error by the Tribunal. I propose, therefore, to order that the application be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  8 December 2017