CEK15 v Minister for Immigration

[2016] FCCA 1366

FEDERAL CIRCUIT COURT OF AUSTRALIA

CEK15 v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1366

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to make findings in relation to the dipositive issues – real chance test – no jurisdictional error identified – application dismissed.

Legislation:

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

Applicant: CEK15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2883 of 2015

Judgment of: Judge Street

Hearing date: 3 June 2016

Date of Last Submission: 3 June 2016

Delivered at: Sydney

Delivered on: 3 June 2016

REPRESENTATION

The applicant appeared in person.

Solicitors for the First Respondent: Ms M Blackadder
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The applicant pay the costs of the first respondent fixed in the amount of $5,800.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2883 of 2015

CEK15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 23 September 2015 affirming a decision of the delegate not to grant the applicant a protection visa.  The applicant was found to be a citizen of China and the claims were assessed against that country.

2. In substance, the applicant claimed that she had a husband and daughter and wished to have a son.  The applicant says that in 2013 the applicant and other women were taken to a hospital by local family planning officials for a pregnancy screening.  The applicant was found to be two months pregnant. The applicant alleges that after an unsuccessful attempt to escape she suffered a miscarriage. 

3. The applicant asserts that she and her husband sought to have a son and that would not be possible in China which led the applicant to move to Australia. The applicant did not appear before the delegate in relation to her claims. It was in those circumstances the delegate refused to grant the applicant a protection visa on 12 June 2014.

4. The applicant arrived in Australia on 8 February 2014 holding a subclass 600 visitor visa which was valid until 8 May 2014.  On 24 February the applicant lodged a valid application for protection.  Following the delegate’s decision the applicant applied for review on 21 July 2014.  The applicant was sent an invitation on 8 May 2015 to appear before the Tribunal on 15 June 2015. The applicant appeared on that date to give evidence and present arguments. 

5. The Tribunal identified the applicant’s claims and, in particular, made reference to the issue of whether the applicant would suffer serious or significant harm in China because of the application of the “One-Child” policy.  The Tribunal referred to the applicant’s claim that she suffered a miscarriage in 2013 in the process of escaping from a local family planning authority.

6. The Tribunal noted the applicant fears that she would be forced to undergo an abortion if she returns to China and falls pregnant once more.  The Tribunal accepted that the applicant had a child in 2000 and that she fell pregnant again 13 years later and that that pregnancy ended in a miscarriage in the circumstances claims by the applicant.

7. The Tribunal referred to the Department of Foreign Affairs and Trade report of 3 March 2015 in compliance with the ministerial direction summarising details in relation to the nationwide planning family planning policies in China.  It was in those circumstances that the Tribunal found that if the applicant were to be returned to China and fall pregnant once more she would be unlikely to have the difficulties from the planning authorities given that she has a rural hukou and her first and only child is a girl.

8. The Tribunal had doubts in relation to the applicant’s assertion that her husband had an urban hukou and found even if true the report indicates that the most likely response from the authorities would be to impose on the applicant a compensation fee or fine to allow to have the child. 

9. The Tribunal found that although it accepted that coerced terminations sometimes occur in China.  It was not satisfied that there is a chance that the applicant would suffer harm in that way and that she would conceive once again was more than remote.  The Tribunal noted that the applicant was not now pregnant and her claim to fear harm in China rests entirely on the assumption that she would fall pregnant once more. 

10. The Tribunal made reference to the fact that 13 years had passed since the birth of the applicant’s first child.  It was in those circumstances the Tribunal found that it was not satisfied that the chance of the applicant conceiving once more could be said to be more than simply speculative.  It was in those circumstances that the Tribunal found it was not satisfied that there is a real chance the applicant would suffer serious harm if she were to return to China in regard to any of the family planning regulations.

11. The Tribunal noted that the applicant did not claim to fear harm for any other reason and that there was no other reason apparent on the face of the material before the Tribunal.  It was in those circumstances the Tribunal found that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should she return to China now or in the reasonably foreseeable future.

12. The Tribunal also found that it was not satisfied that there are substantial grounds to glean that as a necessary and foreseeable consequence of the applicant being removed to Australia there is a real risk she would be subject to significant harm within the meaning of s.36(2)(aa) of the Migration Act 1958. It was in those circumstances the Tribunal found that the applicant did not satisfy the criteria under s.36(2) of the Migration Act 1958 and affirmed the decision of the Tribunal. 

13. On 3 December 2015 a Registrar of the Court made orders providing the applicant with an opportunity to file an amended applicant, affidavit evidence and submissions.  No such documents were filed.  The grounds of the application are as follows: 

    We had a daughter in 2000. But according the Chinese tradition, we must have a son. In Dec. 2013, our local family planning officials took me and other women to hospital for pregnancy screening. I was found to be two months pregnant, after an unsuccessful attempt to escape, suffered a miscarriage.

    My husband and me still want to have a son. It would not be possible to do so in China and so we planned for me to go to democratic countries that protect human right. After which my husband would win down our business and join me with our daughter. Then we would be free to have one son or even more. With the agent assistance, I got to Australia.

    I can't return to China as I have no right to have a child in China. I request that the Australian government to grant me a humanitarian visa to let me stay in Australia.

    Unfortunately the Tribunal member didn't know the China real fact of depriving of women's rights of having more than one child.

    The fact was I was ever forced to hospital for abortion in Dec. 2013. But the office didn't pay attention to it. The Tribunal member made jurisdictional error while making his decision of refusing my application.

14. At the commencement of the hearing the Court explained that this was a final hearing to determine whether the Tribunal’s decision was affected by relevant legal error.  The Court explained that the relevant legal error had to be either an excess of statutory power by the Tribunal or a denial of procedural fairness to the applicant.  The Court explained that in summary this meant the Court was determining whether the Tribunal’s decision was lawful or whether the Tribunal’s decision was fair.  The Court explained to the applicant that if satisfied the Tribunal’s decision was affected by relevant legal error the decision would be quashed and sent back to the Tribunal for further hearing.  The Court explained that if not satisfied that the Tribunal’s decision was affected by relevant legal error the applicant would be dismissed.  The Court explained that it would identify the evidence and then hear submissions from the applicant and then submissions from the solicitor for the first respondent and submissions from the applicant in reply.  The applicant confirmed that she understood the nature of the hearing as explained by the Court.

15. I accept the first respondent’s submissions that the substance of the grounds set out in the application, in essence, invite an impermissible merits review by this Court.  On the material before the Court the findings of the Tribunal were open and the applicant had a genuine hearing.  There was nothing before the Court to establish that the Tribunal’s decision was not carried out and made in accordance with the statutory regime.  There was no material before the Court to establish that the applicant was denied any procedural fairness.  It was a matter for the Tribunal to determine the dispositive issue that was clearly raised by the applicant at the hearing in relation to China’s family planning policy. 

16. Insofar as the grounds refer to the applicant being forced to hospital for an abortion in December 2013 it is apparent that the Tribunal did refer to the applicant’s claim that she had suffered a miscarriage in 2013 in the process of escaping from the local family planning authorities.  It is apparent that the Tribunal made a finding in relation to what would happen to the applicant if she fell pregnant once more in relation to the planning authorities. 

17. It cannot be said that the Tribunal failed to make findings in relation to the dispositive issues.  Nothing in the grounds of the application identified any jurisdictional error.  From the bar table, the applicant maintained that she would be persecuted in China and that what she had said was all true.  Nothing said by the applicant from the bar table identified any jurisdictional error.  This Court does not have power to make fresh findings of fact in relation to the applicant’s claims.  The application is dismissed.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  16 June 2016