Bug15 v Minister for Immigration and Border Protection
[2018] FCA 634
•11 May 2018
FEDERAL COURT OF AUSTRALIA
BUG15 v Minister for Immigration and Border Protection [2018] FCA 634
Appeal from: BUG15 v Minister for Immigration &Anor [2017] FCCA 3059 File number(s): NSD 2293 of 2017 Judge(s): ALLSOP CJ Date of judgment: 11 May 2018 Catchwords: MIGRATION – litigation representative – whether advised as to personal liability for costs Legislation: Migration Act 1958 (Cth)
Federal Court Rules 2011 (Cth)
Date of hearing: 11 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 20 Solicitor for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Mr A Keevers of Sparke Helmore Lawyers ORDERS
NSD 2293 of 2017 BETWEEN: BUG15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
ALLSOP CJ
DATE OF ORDER:
11 MAY 2018
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.Order 1 not be entered without leave of the Court.
3.Pursuant to r 9.63 of the Federal Court Rules 2011 (Cth), the appellant’s mother be appointed litigation representative of the appellant.
4.Any other formalities under r 9.64 or otherwise under the Federal Court Rules 2011 (Cth) be dispensed with.
5.On or before 18 May, the first respondent file and serve:
(a)any affidavit thought appropriate as to the circumstances of the appointment of the mother of the appellant as litigation guardian in the Court below; and
(b)any submission of no more than 2 pages as to why this Court should not partially allow the appeal by setting aside the costs order of the Court below if there is no basis to believe that the mother of the appellant received advice as to her personal liability for costs should her son’s application fail.
6.The matter be stood over to a date to be fixed for judgment or hearing on the question in order 5(b) above.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Revised from the transcript)ALLSOP CJ:
This is an appeal from orders made by a judge of the Federal Circuit Court of Australia on 8 December 2017, in which the judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) in relation to the applicant. The applicant before the Federal Circuit Court was a minor, and still is, being the child of [REDACTED]. An order was made in the Federal Circuit Court for the appellant’s mother to be a litigation representative. I have similarly made an order under r 9.63 of the Federal Court Rules 2011 (Cth).
The appellant was born in Australia, but is not a citizen. The appellant’s mother, the litigation representative, lodged an application for a Protection Visa (Class XA) in March 2014. The application was refused by a delegate of the Minister in July 2014 and an application for review was filed in the Refugee Review Tribunal thereafter. A hearing before the Administrative Appeals Tribunal, the successor Tribunal to the Refugee Review Tribunal, was heard in August 2015. The Tribunal affirmed the delegate’s decision. The claims for protection of the child centred upon the child being persecuted upon return by reason of his parents’ Christianity, or for being born in contravention of China’s birth control policy. The appellant’s claims for protection can be summarised as follows:
(1)His parents were Christians and attended the Local Church in China, but were discriminated against and persecuted by the Chinese Government. If he and his parents were to return to China, his parents would be punished for their faith and the appellant would become abandoned.
(2)The appellant would be punished and discriminated against for violating China’s birth control policy; his parents would be unable to register their marriage; and his family would be unable to pay the social compensation fee in respect of the appellant being born out of wedlock. This would leave him as, the phraseology is, a “black baby” who would be discriminated against in all social aspects.
(3)The local government in his parents’ hometown treated families which had violated the one-child policy inhumanely, taking brutal measures to punish those who failed to pay the birth fee.
(4)That the appellant’s mother suffered from hepatitis B and would be discriminated against for that reason.
The Tribunal’s reasons reflected a lack of satisfaction with the evidence of the mother. In relation to the fear of harm arising from the parents’ practice of Christianity, there was a conclusion by the Tribunal that the mother displayed only a basic understanding of religious doctrine or practice and the Tribunal found claims in this regard to have been embellished or fabricated. Some aspects of the claims advanced were accepted, but the Tribunal was not satisfied that either the appellant or his parents would face a real chance of suffering serious harm in China by reason of the parents’ faith.
With respect to the claim that the child would be abandoned in China as a result of his parents facing punishment, the Tribunal was not satisfied that the appellant’s parents would be punished due to their Christianity.
Turning to the question of marriage, the Tribunal found that there was no evidence to suggest that the marriage of the appellant’s parents in Australia would not be recognised in China, and so was not satisfied that the appellant would suffer harm on that basis. The Tribunal also rejected the appellant’s claim to fear harm by reference of the household registration system or the hukou system.
As to the appellant’s claim that he would be treated as a “black baby” and his parents would be subject to brutal punishment, the Tribunal referred to country information which underlay its finding that the parents would not face a real chance of imprisonment for breaking family planning laws and would be, instead, subjected to a financial penalty. At this point, the Tribunal drew some conclusions based on the fact that the mother and father had continued to work in Australia and their ability to travel to Australia to study meant that the Tribunal was not satisfied that the appellant would face a real chance of suffering serious harm by his parents being required to pay the financial penalty.
In relation to the hepatitis B, the Tribunal accepted that, on the basis of country information, there was discrimination against persons with hepatitis B, but concluded that such experience would not amount to persecution.
The proceeding in the Federal Circuit Court set out three grounds of review. They were set out in paragraph 13 of the submissions of the first respondent as follows:
1. 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 made 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 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.
3. 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”.
The primary judge dealt with ground 1 from [14]-[17] of his reasons. He held that the submissions of the appellant’s mother went no further than expressing disagreement with the findings of the Tribunal.
The submission in ground 1 was particularly directed to the question of the financial ability to pay. It is to be recalled that the Tribunal was not satisfied that the financial burden of the penalty in China would cause any real harm. The drawing of that lack of satisfaction came from matters that the primary judge found open to the Tribunal. In my view, the lack of satisfaction of the Tribunal on that basis is neither illogical nor irrational.
As for the second ground, once again the matters of lack of satisfaction were drawn from material that was before the Tribunal. It is important to recall that these matters were being dealt with by the Tribunal at a level of a lack of satisfaction that there would be serious harm. The primary judge was of the view that the conclusions of the Tribunal were open to it:
19. 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.
20. 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. 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.
22. 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.
The third ground of appeal was a procedural fairness ground in which the appellant complained that she had been required to answer “yes or no” and had been interrupted during the hearing. In [24]-[26] of his reasons, the primary judge dealt with this matters as follows:
24. 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”.
25. 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”.
26. 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.
As is clear from the extract above, the primary judge listened to the audiotape of the Tribunal hearing and was satisfied that there was no unfairness in the way it was conducted.
The appeal to this Court identifies one ground of appeal, as follows:
The primary judge erred in making an order that the applicant has not established any jurisdictional error by the Tribunal.
There were no submissions filed in support of the ground. At the hearing today, the appellant’s mother repeated that she had been asked “yes or no” questions. After having [24]-[26] of the primary judge’s reasons translated to her, I asked her what submissions she wanted to make about this matter. She put the submission that while the explanation of the primary judge might be reasonable, she still feels she was not given a proper opportunity to put her case.
In the light of the approach of the primary judge, and his listening to the audio recording, I am unable to conclude that there was any jurisdictional error or any failure to accord procedural fairness to the appellant through his mother.
No specific submissions were put as to any error made in those paragraphs. In my view, I do not see any basis to conclude that his Honour’s approach was in any way in error. In all the circumstances and for the above reasons, it is necessary to dismiss the appeal.
However, this order is not to be entered without the leave of the Court. There is an issue about the appropriateness of the order for costs below against the litigation representative. It is not clear that her exposure to costs was made known to her.
On or before 18 May 2018, the first respondent is to file and serve:
(1)any affidavit thought appropriate as to the circumstances of the appointment of the mother of the appellant as litigation guardian in the Court below; and
(2)any submission of no more than 2 pages as to why this Court should not partially allow the appeal by setting aside the costs order of the Federal Circuit Court if there is no basis to believe that the mother of the appellant received advice as to her personal liability for costs should her son’s application fail.
The matter is to be stood over to a date to be fixed for judgment or hearing on the question above, if it should arise.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Allsop. Associate:
Dated: 11 May 2018
0
2