CEA18 v Minister for Immigration

[2019] FCCA 3437

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEA18 v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3437

Catchwords:
MIGRATION – Review of Administrative Appeal Tribunal decision – where applicant seeks impermissible merits review – allegation of bias against the Tribunal – allegation of bias not made out – whether the Tribunal fell into jurisdictional error by failing to take into account a relevant consideration – no jurisdictional error established.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 476

Cases cited:

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347; [1994] FCA 1105

Applicant: CEA18

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1212 of 2018

Judgment of: Judge Baird

Hearing date: 29 October 2019

Date of Last Submission: 22 October 2019

Delivered at: Sydney

Delivered on: 29 October 2019

REPRESENTATION

The Applicant appeared in person by his litigation guardian, his mother

Solicitors for the First Respondent: Ms D Stone, Sparke Helmore Lawyers

ORDERS

THE COURT:

1. AMENDS the name of the First Respondent to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs”.

2. DISMISSES the application.

3. ORDERS that the Applicant’s litigation guardian pay the First Respondent’s costs fixed in the sum of $5,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1212 of 2018

CEA18

Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES & MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT
(Ex tempore, revised from transcript)

Introduction

1. This is an application pursuant to s.476 of the Migration Act 1958 (Cth) seeking judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal, made on 5 April 2018 affirming the decision of a Delegate of the First Respondent, the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) made on 27 August 2015 to refuse to grant the Applicant, a minor, a Protection (Class XA) Visa. 

Background

1. The Applicant is a young boy, a Chinese citizen born in Australia in August 2015 to Chinese citizens.  This makes him 6 years old now and 4 years old at the time of the Tribunal decision.  The Applicant has an older sister who was also born in Australia in January 2012.  By application made 3 July 2014 for the Visa, the Applicant was included in an application made on behalf of him, his sister, and his parents. 

2. The Applicant’s parents had previously applied for a protection visa in July 2012 and had included the Applicant’s sister.  That previous application had been rejected by a Delegate of the Minister on 29 October 2012 and on review by the Refugee Review Tribunal on 30 October 2013.  Accordingly, although the Applicant’s parents and his sister were included in the Applicant’s application made 3 July 2014, they were barred from applying for a visa as a consequence of s.48A of the Act.  The Applicant, however, had a valid application. 

3. The Applicant was represented by his mother as litigation guardian before the Delegate, and was also represented by a migration agent. As I have said, the Delegate found that the Applicant did not meet the criteria in s.36(2)(a) or s.36(2)(aa) of the Act in his own right, or as a member of the family unit. The Applicant, through his parents, lodged an application with the Tribunal on 15 September 2015 for review of the Delegate’s decision.

4. On 9 March 2018, the Tribunal invited the Applicant to attend a hearing, and on 4 April 2018, the Applicant attended the scheduled hearing with his mother and his migration agent.  The Applicant’s father was also in attendance, and the Applicant’s mother was assisted by an interpreter in Mandarin and English.  The Applicant’s mother provided a statutory declaration in support of the Applicant’s review application made on 26 March 2018. 

5. The Tribunal was not satisfied that the Applicant met the refugee criterion in s.36(2)(a) of the Act. Having considered the alternative criterion in s.36(2)(aa) of the Act, and the Applicant’s claims as presented by his mother, the Tribunal was not satisfied that there are substantial grounds for believing the Applicant will be arbitrarily deprived of his life, have the death penalty carried out, be subjected to torture, be subjected to cruel or inhumane treatment or punishment, or be subjected to degrading treatment or punishment. Accordingly, the Tribunal was not satisfied that the Applicant is a person in respect of whom Australia has protection obligations and does not satisfy the criteria for a protection visa.

6. The Tribunal also considered and found there was no suggestion that the Applicant satisfied s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and holds a protection visa. The Tribunal did accept at [47], that:

   There may be some societal disapproval of [the Applicant] being the product of unmarried parents.  But having people gossip about you, while awful behaviour, is not sufficient to establish significant harm.

7. As I have said, the Tribunal affirmed the decision of the Delegate. 

The Applicant’s Claims

1. The Applicant’s claims for protection were set out in his application for the Visa and a statement provided by the Applicant’s mother dated 26 March 2018.  They are summarised by the Minister’s solicitor, Ms Stone, in her written submissions, and today I have confirmed with the Applicant’s mother that the summary is accurate and sufficient.  The Applicant’s claims may be summarised as follows:

   (a)the Applicant would be severely discriminated by the Chinese authorities because his parents breached the family planning laws. His parents would be forced to undergo sterilisation because of the breach;

   (b)the Applicant would not be included in a household registration (hukou) and would therefore be deprived of free hospital treatment, education, and other basic social services. He could die if his parents were unable to provide him with medical care;

   (c)the Applicant would be subjected to a degraded and humiliated life in China because of his parents’ actions as his parents were unmarried; and

   (d)the Applicant would be unable to practise as a Christian.

The Tribunal Decision

1. The Tribunal in its decision first set out some history of the Applicant’s parents, his sister, and their various visa applications and time in Australia.  In short, the Applicant’s mother was born in September 1989 in the Fujian Province in China and arrived in Australia on a student visa on 18 March 2008.  The Applicant’s father was also born in September 1989 in the Fujian Province in China and arrived in Australia on 6 May 2007 on a student visa. 

2. The Applicant’s parents and sister applied for protection visas in 2011 and 2012 respectively, each of which was refused by a delegate of the Minister, was unsuccessful on review by the then Refugee Review Tribunal, and on application for judicial review before the then Federal Magistrates Court of Australia.  The Applicant’s parents and sister remain in Australia on a bridging visa associated with the Applicant’s application for Visa. 

3. The Tribunal considered various claims and evidence, and made findings under each of the following headings:

   (a)“Breach of the family planning laws and social compensation fee by parents”;

   (b)“Forced sterilisation of parents”;

   (c)“Inability of applicant to obtain household registration, hukou”;

   (d)“Applicant being born out of wedlock”; and

   (d)“Christianity”.

4. The following overview of the Tribunal’s decision is taken from the Minister’s submissions, and from the Tribunal’s decision with which the Applicant’s mother has indicated her acceptance.  

5. The Tribunal accepted that although country information revealed that China allowed a couple to have two children without paying a social compensation fee, children born before 1 January 2016, such as the Applicant, are required to pay the compensation fee, and the Applicant’s parents would be caught by such a provision (Tribunal’s decision at [22]).

6. The Tribunal recorded that there was nothing in the country information before it to suggest that those who did not pay the fee (such as the Applicant’s parents as the Applicant’s mother contended) would be taken away or detained by the government (at [23]).  The Tribunal also found that there is no evidence to suggest that a failure to pay the fee would result in any harm to the Applicant, because such failure was no longer linked to hukou registration (at [26]).

7. The Tribunal found that the social compensation fee appeared to be a law of general application, which was applicable to all citizens and was not imposed in a discriminatory way.  It was in those circumstances that the Tribunal found that the Applicant would not suffer significant harm if his parents did not pay the social compensation fee (at [24]‑[27]).

8. The Tribunal considered what the circumstances would be if the Tribunal was wrong to consider the family planning laws to be laws of general application, and recorded that it appeared that the Applicant’s parents would have the resources to discharge this financial burden.  The Tribunal recorded the Applicant’s mother’s evidence submitted to the Tribunal that she and her husband had previously worked both in Australia and China, and the Applicant’s mother told the Tribunal that her family who remained in China, had a local market stall selling fish, a business that her mother and brother were involved in since she was very young, and that the Applicant’s mother had worked at the stall as a child (at [25]).

9. The Tribunal rejected the Applicant’s mother’s claim that as her family had access to pay for her enrolment and student visa in Australia (which amounted to RNB 200,000), which was borrowed and had not been paid back, it would be impossible for this social compensation fee to be discharged with the assistance of her family, or through her and her partner working in China, or a combination of the two.  The Tribunal concluded and found that even if the Applicant’s mother and her father did not pay the social compensation fee, there was no evidence to suggest that this would result in any harm to the Applicant “as the social compensation fee is now not linked to hukou registration, despite historically this being the case” (at [26]). 

10. In the light of country information, the Tribunal did not accept the Applicant’s claim that his parents would be forced to undergo sterilisation as they breached China’s family planning laws.  The country information indicated that China abolished forced contraceptive measures as part of reforms to the Population Law, and that in any event this was not a claim related to the Applicant but, rather, his parents (at [28]). 

11. The Tribunal accepted that the Applicant was not registered in the Chinese household registration system, and that if he was not registered in the hukou system he would face difficulties in accessing education, health, and social services (at [29]).  However, the Tribunal referred to country information which indicated that under the new household registration system implemented in the Fujian Province, provincial Public Security Department officials were directed not to treat payment of the social compensation fee as a prerequisite for accepting an application for hukou registration (at [30]).

12. The Tribunal found that this meant all Fujian babies including those born out of wedlock should now have access to household registration whether or not they have paid their fee.  The Tribunal did not give any weight to the Applicant’s mother’s claim that her brother, the Applicant’s uncle, in China had to pay to get his adopted (second) daughter registered as part of the hukou.  The Tribunal preferred the evidence contained in the country information (at [29]-[32]).  The Tribunal said that, given that the Applicant is in possession of a New South Wales birth certificate and a passport, it does not find he will have any difficulty in obtaining hukou registration in China (at [32]).  

13. The Tribunal accepted that unmarried parents face societal disapproval if they remain unmarried in China.  The Tribunal accepted that the Applicant’s parents were not married.  The Tribunal accepted that even if the Applicant’s parents did marry this would not change the fact that the Applicant had been born out of wedlock (at [34]).  However, on the basis of country information, the Tribunal found that the societal disapproval that unmarried mothers have faced did not amount to serious harm, and that children born out of wedlock had the same rights as those born to married parents.  The Tribunal concluded that the Applicant’s claim is only that people will “gossip” about him (at [35]).

14. At [36], and following, the Tribunal considered the Applicant’s claim that he would have difficulty in China on the basis of his Christianity.  It accepted that his mother wished to raise him as a Christian, and that he would have an imputed religion by reason of his family’s practice of the Christian faith.  However, it was not satisfied that the Applicant, as a 4 year old, was of his own volition a practising Christian. 

15. In any event, the Tribunal found on the basis of country information that there would be no issue with practising as a Christian in China as there are millions of Christian worshipers in China.  The Tribunal noted that discrimination of the basis of religion is prohibited by law and that, particular to the Fujian Province, the Chinese Communist Party is largely indifferent to religious practice at an individual level.

16. The Tribunal noted the Applicant’s mother’s observations that these policies are different from what actually happens on the ground but considered that they were not based on any experienced harm but, rather, speculation that is not supported by country information (at [39]).  The Tribunal found that there is no country information to suggest that children of Christians in China are at risk of any harm due to their parents’ practice of Christianity.

17. The Tribunal was satisfied that if returned to China the Applicant will attend unregistered house churches with his family as part of the family’s practice of Christianity, if his parents decide not to attend government registered churches because of their objection to the influence the government has over registered churches (at [42]).

18. Having considered the Applicant’s claims singularly and cumulatively the Tribunal did not accept that there is a real chance that the Applicant will face harm for reasons of his membership of a particular social group or religion if he were to return to China in the foreseeable future (at [45]).  The Tribunal found the societal disapproval the Applicant might face due to his unmarried parents was not sufficient to establish significant harm, and, relying on its anterior findings, it found that he did not meet the complementary protection criteria. 

Grounds of Review

1. By application filed on 30 April 2018 by the Applicant’s litigation guardian, the Applicant seeks review of the Tribunal decision.  The Applicant’s litigation guardian has not filed any amended application or affidavit evidence nor any written submissions as permitted to do so by order of the Registrar.

2. The Applicant relies in his application for judicial review on 8 grounds as follows (without alteration):

   1.After reading paragraphs 21 - 32 of the decision record of the Tribunal, I feel that the Tribunal member has been prejudiced and biased in my son's application. The Tribunal has not been fair in the review assessment of my son's application.

   2.During the hearing, the Tribunal member mentioned a few times that since it was my son's application, he would only consider claims directly related to him. However, since my son is only a small child, his fear of facing serious discrimination and losing freedom of religion can only be an impact on him by what will happen to me and my husband, being his parents. Our fear will be a mirror to reflect his fear. From our real experience and that of our relatives' and friends', we know that if we go back to China, Joshua will be discriminated and cannot lead a normal life because we know that we cannot afford to pay the fines due to our various breaches of family planning laws of China. In fact, since my husband and I have been absent from China for a long time, our Hukou are also subject to cancellation. Hence, how and where can Joshua be registered for a Hukou? The Tribunal member failed to consider this and he was not willing to accept this evidence as he had been preoccupied by the generic "Country Information"

   3."Country Information" is a generic description of some general pictures that have been made known to public. But, they should not be regarded as a prescription. It should only be used as a reference guide. Otherwise, all applications for protection visas would have been refused. Therefore, for each individual application and claims, they should be assessed and considered independently and discretionary. However, the Tribunal member in our application was wrong because he had not considered the uniqueness of our claims such as the systematic corruptive behaviour of our town in China. Rather, he unreservedly and collectively used the "country information" during his process of assessment of Joshua's and our claims.

   4.The Tribunal member mentioned in Paragraphs 21 -- 27 about my husband and my financial capacity and the assistance that my family can offer to us for the repayment of the fines. The assessment is wrong because the Tribunal member interpreted my answers wrongly. He also failed to clarify before jumping to conclusion. I said I had worked in China. However, the work that I did in China was "work experience" I was studying in vocational high school before I came to Australia. Therefore, during summer vacation, I went to a restaurant to do dish washing for a month. Also, I unintentionally made a mistake when I told the tribunal that my husband also worked in China. As a matter of fact, my husband never worked in China. However, the Tribunal member did not ask my husband to come in to testify the answer (My husband also came to the Tribunal for the hearing).

   5.In addition, I told the Department in 2011 during an interview that I was a abandoned child by my biological parents whose whereabouts have been unknown till now and I was adopted by my current parents. The Tribunal member did not consider this fact and concluded that my parents should and would help me to repay the fines because they could pay my adoptive brother to go to Canada. My adoptive brother in my adoptive parents' natural son. Besides, the Tribunal member rejected my claim that I had not repaid the money that my adoptive parents borrowed for sending me to Australia. However, the Tribunal member has not provided any evidence to disprove my claim which I always maintain as a fact and truth. In our native town, there is a saying that a daughter who has been married is like water which has been poured out. I am now responsible for repaying the debts.

   6.Furthermore, regarding the business of my adoptive parents. The Tribunal member misinterpreted that it was a proper shop or a proper stall. The Tribunal member did not ask me how much the business can earn but jump directly to imply that they have resources to help me to pay the fines. The "stall" is in fact just a table of around 110 cm x 60cm dimensions. Please see drawing below: (drawing is depicted in the schedule to these reasons).

   7.My adoptive parents buy "Hai Li" (very small oyster) from the fishermen and take the meat out from the shells for reselling at their "stall". Regarding the income, it is very little and barely enough for the family to live on. If the day is a good and lucky day, the total net income is between Renminbi Yl50- 200 Yuan.

   8.Lastly but not the least, the Tribunal member did not consider that my husband and I are Christians. If we go back to China, we will face serious religious persecution. We will not have freedom of religion. Triggered by our breach of the Family Planning Laws and being not able to repay the fines, we have a greater chance of being arrested and detention because of our religious belief.

Proceeding in this Court

1. The Applicant and his sister are both present in Court today with their mother. The Applicant appeared today by his mother, his litigation guardian, with the benefit of an interpreter in Mandarin and English.  I would like to record my appreciation here for the assistance that the interpreter has given today.  The Minister was represented by his solicitor, Ms Stone. 

2. I have been informed that the Applicant’s mother has received and had translated to her the Minister’s written submissions.  When I came onto the bench, the application and the eight grounds of review were also translated to the Applicant’s mother.  I ascertained from the Applicant’s mother that she wished to speak to each of the grounds of review, and I informed the Applicant’s mother that the question before the Court is whether there were legal problems in the Tribunal’s decision, and whether the Tribunal had followed proper process. 

3. I informed the Applicant’s mother to the effect that the Court does not generally have any power to hear evidence as to the facts before the Tribunal, and to reach different findings.  I explained to the Applicant’s mother the consequences that would flow to the Applicant’s litigation guardian if he was not successful and a costs order was made against her.

4. The Applicant’s mother’s submissions were focused largely on matters of fact.  In sum, the submissions addressed the following matters:

   (a)the discussion during the hearing before the Tribunal of the Applicant’s maternal grandparent’s employment.  The Applicant’s mother asserted that her parent’s seafood business was not very profitable, and that she had a better knowledge of the business.  It was just a table, and on occasions, a foam box with a wooden board;

   (b)any suggestion that the Applicant’s maternal grandparents could pay off the fines for the Applicant’s mother was not the case, as the profits of the seafood business were very basic, and no additional funds were available.  The Applicant’s mother reiterated her evidence given before the Tribunal to the effect that her parents had borrowed money to send her and her brother overseas;

   (c)the Applicant’s mother said that if her parents could help with the payment of the penalty fines, the Applicant’s mother and the Applicant’s family would be happy to go home to China but that they did not have any money to do so; and

   (d)the Applicant’s mother made submissions in relation to country information, stating to the effect that China is big and that different areas may have different laws and different officials.  She submitted that it is possible that in one area, there may not be persecution, but there was persecution in her ancestral area.  She also referred to evidence she had wished to bring from other Chinese people, but that they were too scared and that if they did give that evidence, they would be harmed.

5. The Applicant’s mother then made submissions that she and her partner, the Applicant’s father, appreciated they were “illegal”, and asked that the Court consider the next generation, and pardon the parents’ mistake.  She apologised for overstaying previously, but submitted that she had no other options.

6. In reply to Ms Stone’s submission, the Applicant’s mother made a submission about a new change in her mother’s, (the Applicant’s grandmother’s) health condition to the effect that about six months ago, the Applicant’s maternal grandmother had, “a small thing inside the brain area”, and she should not be stimulated or excited or it would explode. 

7. The Applicant’s mother made some submissions regarding the circumstances of her brother, and the troubles that he had to get a hukou for his adopted daughter.  Lastly, she made a submission that if the family had to return to China, whilst the children would not be harmed as they were underage, the parents would be, and the children would have limited capacity to deal with the emotional challenges that would ensue.

8. As is apparent from the above, the Applicant’s mother’s submissions on behalf of the Applicant were directed substantially to merits review.  As such, they are matters beyond the jurisdiction of this Court.

9. Ms Stone’s submissions are incorporated in the consideration of each of the grounds to which I now turn to.

Consideration

Ground 1

1. In the first ground, the Applicant’s mother contends that she feels that the Tribunal member has been prejudiced and biased in the Applicant’s application, and has not been fair.  There are no particulars of this ground; it is vague and generalised.  It is trite that allegations of actual or apprehended bias must be “distinctly made and clearly proven”: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J; see also at [127] per Kirby J.

2. The allegation made by this ground in this application is not distinctly made; it is unsupported by evidence.  The fact that the Tribunal made adverse findings against the Applicant, or did not accept that Australia owed protection obligations to the Applicant, does not give rise to an inference of bias or, by itself, suggest that the Tribunal approached its task other than with an open mind, reasonably capable of persuasion. 

3. In my view, a fair reading of the Tribunal’s decision does not reveal any pre-judgment on the part of the Tribunal.  The Tribunal decision does not reveal that the Tribunal was, “…so committed to a conclusion already formed as to be incapable of alteration whatever evidence or arguments may be presented.”: Jia Legeng, at [72] per Gleeson CJ and Gummow J. The Applicant has not established that at the time of the decision the Tribunal had a closed mind to the issues raised, not open to persuasion: see Jia Legeng at [127] per Kirby J.

4. Whilst the Applicant’s mother today has said that the Tribunal misunderstood the seafood business of the Applicant’s maternal grandparents, I do not consider that any possible misapprehension evidences any bias, and I note there is no evidence of any such misunderstanding in any event. 

5. This ground is without substance and it must fail.

Grounds 2 and 3

1. Grounds 2 and 3 may be considered together.  They relate to the Tribunal’s preference for country information which did not support the Applicant’s evidence made through his mother, the litigation guardian. 

2. The choice and assessment of country information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at [13]). There is nothing on the face of the Tribunal’s decision to suggest that the Tribunal’s acceptance of country information, insofar as it was inconsistent with the Applicant’s claims or those of his parents, was not open to it.

3. In essence, grounds 2 and 3 are a complaint that the Tribunal should have come to different conclusions than available on the basis of the country information before it, or that the country information was not applicable to the particular town in China from which the Applicant’s parents came.  There is nothing in the evidence before me, or what is apparent on the Tribunal’s decision record, to support this claim.  The Applicant is inviting this Court to engage in impermissible merits review. 

4. Insofar as the grounds can be understood as a complaint that the Applicant or his parents were not believed by the Tribunal, it is established that the Tribunal is not required to accept, uncritically, any and all claims made by an applicant, nor does the Tribunal have to have before it rebutting evidence prior to reaching a finding that a particular assertion by an Applicant is not made out: see Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at [278] per Beaumont J; and Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [348].

5. I accept Ms Stone’s submission that to the extent that ground 2 asserts that the Tribunal failed to consider the claims advanced by the Applicant’s parents in the circumstances where protection visa applications made by the parents and sister were invalid, the Tribunal’s consideration of their invalid claims as directly related to the Applicant does not demonstrate jurisdictional error and should be dismissed. 

Grounds 4 to 7

1. These grounds may be considered together.  Through these grounds, the Applicant disputes various findings made by the Tribunal and seeks to advance explanations and evidence which it is not apparent were explanations or evidence before the Tribunal.  The matters raised in these grounds appear to relate to the litigation guardian and do not appear to have relevance to the proceedings before the Tribunal in this matter, being the Tribunal’s consideration of the Applicant’s Visa application, not those of his parents. 

2. Grounds 6 and 7 are matters that have been expanded upon before me today regarding the Applicant’s maternal grandparents’ seafood store and their income.  I do not consider that these grounds raise any allegations of jurisdictional error on the part of the Tribunal.  I find that they can rise no higher than an invitation to engage in impermissible merits review. 

3. Grounds 4 to 7 do not demonstrate any jurisdictional error and should be dismissed.

Ground 8

1. By ground 8 the Applicant asserts that the Tribunal did not consider that the Applicant’s parents are Christians and, on return, would face serious religious persecution.  It also complains that the Applicant’s parents would not be able to repay the fines and would face a greater risk of detention because of their religious belief.  Contrary to the Applicant’s assertions, the Tribunal did consider the religious circumstances of the Applicant’s parents, and did so in some detail from [36] through to [42] of its decision (see discussion above).  The Tribunal concluded, however, that the Applicant would not suffer harm because of the religious practice of his family. 

2. This ground and these complaints fail at a factual level.  The Tribunal’s reasons reveal that it accepted the Applicant’s parents’ claim to be Christians; however, as I have said, it was not satisfied that the Applicant was at risk as a consequence.  This ground also invites the Court to engage in impermissible merits review. 

3. Ground 8 does not demonstrate any jurisdictional error and should be dismissed.

4. As to the Applicant’s mother’s oral submissions today, to the extent that these repeat what was raised in the grounds, my consideration above addresses her submissions. 

5. Additionally, in relation to evidence of income from the seafood business, I note that the Tribunal did consider the Applicant’s mother’s family financial assistance or capacity.  It considered:

   (a)the Applicant’s mother’s evidence as to her parents’ business in China; and

   (b)the Applicant’s mother’s claims to have borrowed money for the Applicant’s mother’s student visa and enrolment in Australia.

6. The Tribunal rejected the Applicant’s mother’s claim that, as this money was borrowed and had not been paid back, it would be impossible for their social compensation fee to be discharged with the assistance of her family or through her and her partner working in China or a combination of the two.  That being said, even if the Applicant’s mother and her de facto husband did not pay the social compensation fee, there is no evidence to suggest that this would result in any harm to the Applicant, as the social compensation fee is now not linked to hukou registration despite, historically, this being the case.

7. Accordingly, the Tribunal concluded that the question of capacity to pay was irrelevant to the Applicant’s access to hukou and the Tribunal did not accept that the Applicant would suffer significant harm if his parents did not pay this fee. 

8. No jurisdictional error is established.

Conclusion

1. For the above reasons, I conclude that the application must be dismissed, and it follows that the Minister is entitled to his costs.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Baird

Associate:

Date: 28 November 2019

Schedule

Drawing referred to in [29]: Ground of Review 6: