CAH17 v Minister for Immigration
[2018] FCCA 3573
•21 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAH17 & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 3573 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – primary applicant claiming a fear of harm in China – applicant not believed – whether the Tribunal decision vitiated by an apprehension of bias considered – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36 |
| Cases cited: Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 Minister for Immigration v Teoh (1995) 183 CLR 273 SZNPG v Minister for Immigration [2010] FCAFC 51 SZRLY v Minister for Immigration [2012] FCA 1459 |
| First Applicant: | CAH17 |
| Second Applicant: | CAJ17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1433 of 2017 |
| Judgment of: | Judge Driver |
| Hearing date: | 9 November 2018 |
| Delivered at: | Sydney |
| Delivered on: | 21 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms E Grotte |
| Solicitors for the Applicant: | Michaela Byers, Solicitor |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | Mills Oakley |
ORDERS
The application lodged on 9 May 2017 and filed on 10 May 2017 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1433 of 2017
| CAH17 |
First Applicant
| CAJ17 |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicants seek judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 12 April 2017. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicants protection visas.
The following statement of background facts is derived from the submissions of the parties.
The first and second applicants are mother (applicant) and son (second applicant) respectively and citizens of China.
The applicant arrived in Australia from the People’s Republic of China on 12 January 2009 on a valid temporary work (Skilled) (subclass UC-457) visa that was granted offshore on 2 January 2009.[1] That visa was cancelled on 11 October 2011 and the applicant became unlawful.
[1] Court Book (CB) 27
The applicant’s Chinese passport expired on 25 April 2011.[2]
[2] CB 101
On 23 August 2012 the applicant was located by the Minister’s Department and a Compliance Client Interview was conducted.[3] The applicant was seven months pregnant at the time.[4] The applicant was granted a bridging visa on the basis that she was to depart Australia. She did not depart and once again became unlawful.
[3] CB 1
[4] CB 7
On 3 November 2012 the applicant gave birth to the second applicant.[5]
[5] CB 47
On 18 December 2014 both applicants were located by the Minister’s Department and detained in Villawood Immigration Detention Facility.
The applicant lodged an application for protection visas on 11 February 2015.[6] The second applicant was included in the application but had his own claims.[7]
[6] CB 9
[7] CB 48 and 49
The delegate refused to grant the protection visa on 31 March 2015.[8] The applicants applied to the Tribunal for review of the delegate’s decision on 8 April 2015.[9]
[8] CB 97-101
[9] CB 122-124
The claims
The claims are set out at CB 48 and 49 with additional submissions made at CB 50 and 51 by the applicants’ legal representative in respect of the second applicant’s claims.
In summary they are:
a)while in Australia the applicant commenced a de facto relationship with a Chinese national (Mr G) who was already married with a wife and three children in China, and for that reason, he could not marry the applicant. He was removed to China on 16 February 2015. The applicant fell pregnant and decided to keep the child because she believed that this might be her only chance to have a child as she was already in her 40s;
b)the applicant did not inform her family in China about the pregnancy or the birth until she was detained. Her family’s response was that she had tarnished its reputation and humiliated the family by having a child out of wedlock. The family has refused to support her. She fears that she will be on her own and isolated from her family and the rest of society because of prejudice and hostility. She also feared that she may be subjected to enforced sterilisation by the Chinese authorities. The applicant fears that she will be subject to abject poverty and her survival and that of the second applicant will be threatened;
c)the Chinese authorities will require her to pay an exorbitant amount of money as a fine because the second applicant is illegitimate. She does not have access to any money and has no family support. The second applicant will be not be able to be registered as a permanent citizen because she cannot afford the fine and thus will be denied rights that are available to other citizens. He will not be able to apply for his own identity and will not go to school or have access to free health care;
d)the father of the second applicant cannot assist her as he has been deported and is, in any event, married and will be fined for breaching family planning laws because he already has exceeded the one-child limit;
e)as the second applicant is a child, his claims must be considered in light of the United Nations Convention on the Rights of the Child (UNCRC). The UNCRC does not affect refugee assessment, but rather enhances the assessment of what constitutes serious or significant harm by providing enumerated rights of the child; and
f)if the second applicant is returned to China, he will be considered a “black child” as he was born out of wedlock and was born in contravention of the China’s one child policy and family planning laws. He will suffer the following harm:
i)payment of a large fine before his birth can be registered in China is in breach of Articles 7 and 8 of the UNCRC, because a child has the right to a legally registered name and nationality;
ii)denial of access to schooling and basic government services breaches Articles 6 and 28 of the UNCRC as a child has the right to develop healthily and a right to an education; and
iii)Chinese nationality is acquired by descent through the father. The second applicant was born out of wedlock and may be considered not to be a Chinese national. He may, therefore, be stateless and this is a breach of Articles 7 and 8 of the UNCRC.
The applicant also claimed that she and the second applicant had attended church, Bible study and other activities while in immigration detention from December 2014 to February 2015. The applicant claimed she intended to be baptised on 21 April 2017 and that she and the second applicant would continue their religious involvement if they returned to China.
The Tribunal’s key findings
The Tribunal did not accept that the applicant was a witness of truth. It found she was prepared to change her evidence and say anything to enable her and her child to remain in Australia.[10] Accordingly, the Tribunal did not accept that the applicant’s involvement in Christianity (on her and her child’s behalf) was genuine. While it accepted the applicants had undertaken the “claimed religious activities”, the Tribunal did not accept these actions were undertaken for “genuine reasons”[11] and disregarded the activities in considering whether the applicant met s.36(2)(a) of the Migration Act 1958 (Cth) (Migration Act).[12] The Tribunal found that the applicant’s conduct in Australia could not be disregarded when considering the claims under s.36(2)(aa), but it was not satisfied on the evidence before it that the applicants’ religious activities would lead them to face a real risk of significant harm in China.[13]
[10] [118]
[11] [120]
[12] [122]
[13] [123]
On the basis of its adverse credibility findings, the Tribunal was not prepared to accept that the applicants had been rejected by the applicant’s family; they would be “without a home”; Mr G had a wife and three children back in China; or that it would be illegal for the applicants to reside with Mr G, if they chose to do so.[14]
[14] [128]
The Tribunal was prepared to accept that the applicant and Mr G were not married, the second applicant was born in violation of China’s family planning laws and a social compensation fee was payable.[15] However, on the basis of country information that confirmed the second applicant could be registered without paying the social compensation fee,[16] the Tribunal was not satisfied the second applicant could not be registered on the applicant’s hukou.[17] The Tribunal was satisfied that the applicant would register the second applicant and that he would not be a “black child” for reason of non-registration. The Tribunal accordingly rejected the associated claim that the second applicant would be unable to access health, welfare and other essential services. It concluded there was not a real chance of serious harm or a real risk of significant harm faced by the second applicant.[18]
[15] [130]
[16] at [132]-[134]
[17] household registration
[18] [135]
The Tribunal preferred country information concerning the likely amount of the social compensation fee ($12,000 to $24,000) over the applicant’s changing evidence as to the fee payable.[19] Further, the Tribunal found the applicant had been untruthful about the financial resources available to her for the payment of a social compensation fee.[20] While the Tribunal was prepared to accept that the applicant had not been working since her release from detention,[21] it noted her changing evidence as to when she worked in Australia[22] and considered it likely that she had accumulated funds in Australia which she had not declared between 2009 and December 2014.[23] The Tribunal also noted country information that indicated there was the option to pay the social compensation fee in instalments.[24] The Tribunal therefore concluded that the applicant would be able to pay the social compensation fee calculated to be between $12,000 and $24,000.[25] In the alternative, the Tribunal found the imposition of the social compensation fee was the result of a law of general application and its enforcement did not amount to persecution.[26]
[19] [136]-[140]
[20] [141]
[21] at [144]
[22] at [142]
[23] [143]
[24] [145]
[25] [147]
[26] [148]-[149]
In relation to complementary protection, the Tribunal found that it did not appear that a generally applicable law had the intentional element necessary for s.36(2A)(c)-(e). In the alternative, the Tribunal found the “lawful sanction exceptions” were relevant.[27] In the further alternative, the Tribunal was not satisfied that the applicants faced significant harm as a result of the imposition or enforcement of a fee “within the bandwidth”, given its earlier findings that the applicant had the ability to pay the social compensation fee. For these reasons, the Tribunal did not accept that payment of a social compensation fee fell within the exhaustive definitions of significant harm.[28]
[27] Migration Act, s.5
[28] [150]
While the Tribunal accepted the applicants could be subject to some social stigma and ostracism, it also found that they would either reside with the applicant’s family or with the second applicant’s father. In those circumstances, and given the applicant’s education, experience, finances and family support, the Tribunal did not accept that the applicants faced a real chance of serious harm or a real risk of significant harm in relation to accessing services.[29]
[29] [154]-[156]
In relation to the applicant’s additional claim to fear harm in the form of being involuntarily sterilised, the Tribunal considered it speculative and remote on the evidence before it that the applicant intended to have a second child in the reasonably foreseeable future.[30] The Tribunal found[31] that the applicant “made no mention” of this claim until the end of the protection visa interview and also found that the country information did not support the applicant’s claim.[32] The Tribunal therefore concluded there was not a real chance or a real risk that the applicant faced serious or significant harm as a result of China’s family planning laws or in the form of sterilisation.[33]
[30] [163]
[31] at [157]
[32] [160]-[161]
[33] at [162]
Having considered the applicants’ claims individually and cumulatively, the Tribunal was not satisfied the applicants were persons to whom Australia had protection obligations under s.36(2)(a) or s.36(2)(aa) of the Migration Act.[34]
[34] [164]-[165], [168]
The current proceedings
These proceedings began with a show cause application filed on 10 May 2017. Despite some uncertainty,[35] the applicants continue to rely upon that application. There is one particularised ground in it:
[35] see below
1. The AAT fell into jurisdictional error in that the Tribunal denied the second applicant procedural fairness by reason of there being a reasonable apprehension of bias based on the adverse credibility finding made against the first applicant.
Particulars
a. The applicants are mother and child. The second applicant is 4 years old; and
b. At [75] the Tribunal put to the applicant that her willingness to return to China with the second applicant indicated that she did not believe that they would suffer serious harm or significant harm in China;
c. The Tribunal failed to consider what were the best interests of the second applicant in relation to his protection; and
d. The Tribunal transposed the adverse credibility finding that the first applicant was not credible to the second applicant and failed to consider whether the second [applicant] would face harm in China under the refugee convention and complementary protection criteria in relation to him independent of the first applicant.
The only evidence I have before me is the court book filed on 12 July 2017.
Both the applicants and the Minister filed pre-hearing written submissions and made oral submissions through their counsel at the trial of this matter on 9 November 2018. I initially raised with counsel for the applicants whether the allegation of apprehended bias was being pressed, noting that the applicants’ written submissions had not addressed that issue. Counsel confirmed that the ground in the application was pressed. Oral submissions thereafter addressed that issue.
Consideration
It is unfortunate that this case was put as an allegation of procedural unfairness by way of an apprehension of bias. The core allegation is that the Tribunal had not dealt with the second applicant’s claims, in particular in relation to religion, independently of the claims by the applicant. That does not necessarily involve an allegation of bias, whether apprehended or actual. It could have been put differently, for example as a constructive failure of jurisdiction. However, as the case was run as an allegation of apprehended bias, that is what I have considered.
There is no evidence to support the allegation of apprehended bias apart from the reasons of the Tribunal. As has been made clear by the Full Federal Court in SZNPG v Minister for Immigration[36] it will be a rare case where the reasons of a decision maker will be sufficient to establish a case of bias. This is, in my opinion, not such a case.
[36] [2010] FCAFC 51 at [18]
At [27]-[29] of the decision[37] the Tribunal sets out the second applicant’s claims. At [30] the Tribunal notes the submission made on behalf of the second applicant that the his claims ought to be considered in light of the UNCRC, while acknowledging that this “does not affect the refugee assessment submitting that it enhances the assessment of what constitutes serious or significant harm”.
[37] CB 162-163
At [63] the Tribunal stated that it had “serious concerns about the applicant’s credibility and the veracity of the claims made on behalf of herself and the second applicant. The Tribunal does not accept that the applicant is a witness of truth concerning her background, relationship, and other matters central to, and related to, claims of future feared persecution, harm and concerns.” The Tribunal set out ten detailed reasons for the adverse credibility findings in respect of the applicant. At [113] the Tribunal stated that the applicant is not a credible or reliable witness, and at [117] it found that the applicant had fabricated her claims “in order to allow her and the second applicant to stay in Australia, and that she is prepared to make any claim in order to remain in Australia”.
Although the Tribunal did not accept any of the applicant’s claims, it did accept that the second applicant was born in violation of the Chinese family planning regulations and that a social compensation fee was payable.[38] At [135] the Tribunal stated that it was not satisfied that the second applicant could not registered on the applicant’s hukou and that therefore the second applicant would not be a “black child”.
[38] [130]
The second applicant was aged 4½ at the time of the Tribunal decision. Plainly, he could not articulate his claims himself and it would almost certainly have been inappropriate for the Tribunal to question him at the Tribunal hearing. The simple fact is that the second applicant was entirely dependent upon his mother to articulate his claims. The Tribunal made comprehensive adverse credibility findings against her which necessarily impacted upon the claims of both applicants.
It is unfortunate that at [112][39] the Tribunal used terminology suggestive that both applicants had engaged in religious activities in Australia solely for the purpose of enhancing their claims for protection. It is not appropriate to impute a dishonest motive to a child, especially a child of tender years. The reasoning, however, is explicable on the basis that the second applicant had no independent exercise of will in accompanying his mother to religious activities and that it was the mother’s motivation which was being impugned.
[39] CB 176
In other respects, I agree with the Minister’s submissions in relation to the particulars of the ground advanced.
The applicants’ submissions claim that the Tribunal was obliged to consider the best interests of the second applicant as a primary consideration in accordance with the UNCRC, relying on Minister for Immigration v Teoh.[40] However, this submission is misconceived. It is well established that the Tribunal was not making a discretionary decision and so Teoh does not apply.[41]
[40] (1995) 183 CLR 273
[41] see SZRLY v Minister for Immigration [2012] FCA 1459 (Griffiths J) at [26]-[31] and cases there cited
The applicants’ submissions also claim that the Tribunal did not consider the second applicant’s claims “separately”, relying on Chen Shi Hai v Minister for Immigration.[42] However the Tribunal expressly considered the claims of the second applicant to fear persecution as a “black child”, and found that he would not be a “black child” as claimed because he would be registered.[43] There is accordingly no basis for the submission that the second applicant’s claims were not considered in accordance with Chen Shi Hai. The ability of the applicant to pay the social compensation fee was relevant to whether the second applicant would be a “black child” and so was necessarily relevant to his claims, but that does not indicate that his claims were not considered on the basis that he was an individual. The Tribunal did not reason that because the applicant’s claims failed, the second applicant’s necessarily failed too, unlike in Chen Shi Hai at [75].
[42] (2000) 201 CLR 293 at [75]-[78] per Kirby J
[43] CB 162-163 [29]-[30], 179-180 [132]-[135]
Conclusion
The applicants have failed 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.
I will hear the parties as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 21 December 2018
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