CNF15 v Minister for Immigration
[2018] FCCA 2416
•15 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CNF15 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 2416 |
| Catchwords: MIGRATION – Protection visa – applicants’ grounds discursive – unparticularised – applicants failed to discharge onus of making out their claims before the tribunal – applicants’ allegations of bias not made out – tribunal complied with statutory obligations – considered evidence before it – had appropriate regard to country information – application dismissed. |
| Legislation: Migration Act 1958, ss 36(2)(a), 36(2)(aa), 36(2A), 91R, 422B |
| Cases cited: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344 |
| First Applicant: | CNF15 |
| Second Applicant: | CNG15 |
| Third Applicant: | CNH15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2635 of 2015 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 15 August 2018 |
| Date of Last Submission: | 15 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 15 August 2018 |
REPRESENTATION
| First Applicant: | In person |
| Solicitors for the First Applicant: | None |
| Second Applicant: | In person |
| Solicitors for the Second Applicant: | None |
| Third Applicant: | In person |
| Solicitors for the Third Applicant: | None |
| Counsel for the First Respondent: | Mr T Smyth |
| Solicitors for the First Respondent: | Clayton Utz |
| Counsel for the Second Respondent: | No appearance |
| Solicitors for the Second Respondent: | Clayton Utz |
ORDERS
The proceeding filed on 27 November 2015 is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $7 328.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2635 of 2015
| CNF15 |
First Applicant
And
| CNG15 |
Second Applicant
And
| CNH15 |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(ex tempore)
This application for judicial review of the decision of the Administrative Appeals Tribunal made 9 November 2015 was commenced on 27 November 2015. The tribunal affirmed a decision not to grant the applicants a protection visa they sought.
In this application the applicants relied on grounds that were discursive and, in places, ill-directed. Doing the best he could, and in conformity with his obligations as a model litigant, the minister distilled the applicant’s grounds into six discrete propositions that the minster submitted represented the applicant’s real contentions in this case. They were as follows –
a)the tribunal failed to afford the applicants natural justice;
b)the tribunal’s reasoning in paragraphs 51 and 59 of its reasons;
c)the tribunal failed to consider the applicants’ evidence about the treatment by Chinese authorities of christians;
d)the tribunal erred in its treatment of country information;
e)the tribunal failed to consider that Chinese authorities may have suppressed the reporting of certain events favourable to the applicants’ protections claims; and
f)the tribunal’s decision was inconsistent with the grant of asylum in Australia or elsewhere in favour of other Chinese christians.
Synopsis
For the reasons that follow, in my judgment none of the grounds of review were made out with the consequence that this application for judicial review failed and the applicants must pay the minister’s costs.
Factual recital
All applicants are nationals of China.
On 19 August 2013 they applied for the visa in issue in this case. In her application the first applicant stated she feared that if returned to China she would be harmed by reason of her christian faith and that she was pregnant when she applied, contrary to China’s one child policy.
The department acknowledged receipt of the first applicant’s protection visa application by letter dated 21 August 2017. In that letter the delegate sought further information from the first applicant. The delegate invited the first applicant to appear before the delegate, which she did.
On 24 June 2014 the delegate refused to grant the first applicant the protection visa that she sought.
As judicial review in this court is concerned with the activities of the tribunal rather than those of the delegate (as was held in Zubair v Minister for Immigration and Multicultural and Indigenous Affairs)[1] it is not necessary to examine the delegate’s decision in greater detail.
[1] (2004) 139 FCR 344
On 30 June 2014 the first applicant applied to the tribunal then in the form of the Refugee Review Tribunal. In her application she nominated her son and partner. With her application the first applicant included a collection of media articles. She also attached a single page letter that she signed. In that letter she stated that she was concerned that, if she was returned to China, she would stay with her church practising her religion and there was a strong chance that she will be arrested, detained and subjected to serious harm and persecution by the Chinese government.
On 1 July 2014 the tribunal acknowledged receipt of her application.
On 20 August 2015 the tribunal invited all three applicants to attend an interview to give evidence and to present arguments. It seemed that an earlier invitation scheduled for 21 April 2015 did not take place. At all events, a hearing was scheduled for 29 October 2015. On 29 August 2015 the first applicant responded to that invitation stating that she, her partner and her son would be attending. The hearing was duly convened. At it the applicants submitted further documents including –
a)a letter from Church in Melbourne stating that the first and second applicants come to the church regularly, and
b)various photographs.
On 9 November 2015 the tribunal decided to affirm the delegate’s decision to not grant the applicants the protection visa they sought.
In order to understand the reasoning of the tribunal, it is necessary to focus on its treatment of the claims.
Between paragraphs 1 and 3 of its reasons, the tribunal correctly identified its task in the application for review.
The tribunal correctly recorded the relevant provisions of the Migration Act (“Act”) between paragraphs 4 and 19 of its reasons.
The tribunal’s recital of the first applicant’s claims were set out between paragraphs 21 and 24 of its reasons. In essence, the tribunal recorded that the first applicant feared harm by reason of her christian faith and by reason of her non-compliance with Chinese family planning laws. The tribunal addressed China’s family planning laws between paragraphs 28 and 50 of its reasons. Those passages may be paraphrased as follows –
a)the tribunal accepted, based on country information, that the applicants would be fined in order to register their second child;
b)the tribunal said the applicants were unable or unwilling to pay that fine and, even if they did, the prejudicial effect on the family would be minimal;
c)in any event, the fine (described as a social compensation fee) did not amount to serious or significant harm for the purposes of either s 91R or s 36(2A) of the Act nor were those laws discriminatory or administered in a discriminatory way so they did not amount to persecution;
d)the prospects of any forced medical procedure on the first applicant did not assume a level of likelihood such as to enliven the amended convention or complementary level of likelihood; and
e)the social stigma that might attach to the mother of children born out of wedlock or to the children themselves did not amount to serious or significant harm.
Between paragraphs 51 to 60 of its reasons, the tribunal addressed its treatment of the applicants’ religious contentions. In essence, the tribunal reasoned as follows –
a)it accepted that the first and second applicants were members of the local church and had practised their faith in Australia as well as in China;
b)it rejected the first applicant’s claim that her mother had been detained by reason of the mother’s religious beliefs as that assertion was inconsistent with objective information, it was undermined by the second applicant’s information, it was objectively implausible, it was further undermined by the applicants’ delay in applying for protection in Australia and it was undermined by the tribunal’s view of the first and second applicants’ credibility;
c)the applicants had performed their religious observances without interference from the authorities since they were small children, suggesting tolerance of those practices by the authorities, consistent with DFAT country information, and which was not undermined by the media articles the applicants submitted; and
d)based on country information as a whole, the tribunal was unable to reach the view that the amended convention threshold or the complementary protection threshold were met.
The tribunal affirmed the delegate’s decision not to grant the applicants the protection visa they sought.
In this court
In the passages above I have set out the minister’s distillation of the applicants’ bases of review. It is important to record that the applicants were ordered on 27 April 2016 to file and serve any amended application on which they wished to rely by 17 April 2018. No such amended application was served.
Applying the minister’s distillation of the grounds of review, let me now turn to a consideration of them.
First ground – natural justice
Under this ground the applicants asserted that the tribunal “failed to make a fair decision”. I do not agree. In my view, the tribunal complied with its obligations to give the applicant clear particulars of information it considered would be the reasons or part of the reasons for affirming the decision under review, ensuring the applicants understood the relevance of the information and seeking comment upon it. The tribunal also complied with its obligation to invite the applicants to a hearing so as to give evidence and to present arguments. In my view, the tribunal complied with its obligations under s 422B of the Act. I reject the suggestion that the tribunal did not give the applicants a fair hearing. It did.
Second ground
The applicants seemed to be asserting that some disjunct existed in the tribunal’s reasoning between paragraphs 51 and 59. I do not agree. At paragraph 51 the tribunal stated it accepted that the first and second applicants were adherents to the local church, that they had attended christian observances in China and in Australia, that the first applicant’s mother was an elder in the church and that they would continue their observances if returned to China. At paragraph 59 of its reasons the tribunal stated that the applicants would not face a real chance of serious harm if returned to China. In other words, the tribunal reasoned that notwithstanding their practice of their faith they would not face harm if returned to China. That method of reasoning was perfectly acceptable, it seemed to me. The fact that the applicants may not agree with it does not render the reasoning defective.
I reject the second ground.
Third ground
Under this ground it seemed the applicants were contending that the tribunal failed to accept the applicants’ case about the Chinese treatment of christians. I do not agree. In fact, the tribunal did consider and accept the submission that the first applicant and her family were practising members of the local church. The tribunal took into account the media articles that the applicants put before it. However, having considered them, the tribunal reached the conclusion it did. That did not amount to error for any failure to consider material urged by the applicant.
Ground three failed.
Fourth ground – use of country information
Under this ground the applicants asserted in a broad and ill defined way that the tribunal was somehow biased in this case. Importantly, the applicants did not characterise the claim as one of actual bias or apprehended bias. A number of authorities have addressed the need for a claim of bias to be firmly established, including SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship.[2] In my view, no species of bias was firmly established by the applicants in this case. When properly understood, under this ground the applicants were in reality contending that the tribunal erred in relying on the country information on which it relied rather than preferring the information advanced by the applicants.
[2] [2013] FCAFC 80
I reject that contention. It is established beyond doubt that the tribunal is entitled to have regard to such country information as it considers appropriate since that information informs the tribunal’s fact-finding function. The Full Court of the Federal Court of Australia held as much in NAHI v Minister for Immigration and Multicultural and Indigenous Affairs.[3] In this case the tribunal stated that it referred to the country information mentioned in paragraph 58 of its reasons. That was permissible, dare I say, unexceptional and to be expected. I detected no error in the tribunal undertaking that course. The fact that the outcome was not to the applicants’ liking was neither here nor there.
[3] [2004] FCAFC 10
I dismiss the fourth ground.
Fifth ground – failure to consider suppression of media
Under this ground the applicants seemed to contend that the tribunal did not expressly consider the applicants’ submission to the effect that media reporting of events supportive of the applicants’ protection claims might have been suppressed. It must be observed at the outset that the material before the tribunal does not reveal, in terms, that such a submission was in fact made. The customary way of demonstrating that certain things did or did not unfold before the tribunal is to exhibit the transcript of the proceeding before the tribunal. The applicant bears the onus of making out his or her application in sufficient detail as to enable the decision maker to establish the relevant facts, a proposition well known from the decision in Minister for Immigration and Multicultural Affairs v Lay Lat.[4] Further, the tribunal is not required to make out the applicant’s case as was held by the High Court in Abebe v Commonwealth of Australia.[5] The applicant has the onus of establishing jurisdictional error, as was held in Minister for Immigration and Citizenship v SZGUR.[6]
[4] (2006) 151 FCR 214
[5] (1999) 197 CLR 510
[6] (2011) 241 CLR 594
Here, even if the material on the transcript before the tribunal revealed that the applicants made the submission they alleged under this ground (and, as I mentioned above, the material before the tribunal did not go that far), then in my view any such submission was in the nature of supporting evidence rather than a claim or an integer of a claim. The point has been canvassed in SXRB v Minister for Immigration and Multicultural and Indigenous Affairs[7] and in Minister for Immigration and Citizenship v MZYZA.[8] In any event, it must not be forgotten that the contention in this ground was predicated upon the proposition that the point was not already subsumed by the tribunal’s broader finding at paragraph 58 of its reasons, in the findings about media information in paragraph 57 and in the reference to the applicants’ oral evidence in paragraph 55 of the tribunal’s reasons.
[7] [2005] FCA 1222
[8] [2013] FCA 572
In my view this ground was devoid of merit.
Sixth ground – inconsistent asylum outcomes
The minister pertinently highlighted how this ground involved the postulation of a rhetorical question –
“If other Chinese christians have been granted asylum, then how can this claim have failed?”
Several things must be said of this ground.
First, at the risk of stating the obvious, the work of the tribunal involves a fact intensive examination of all applications brought before it on a case by case basis. There is no “one size fits all”. To argue that other Chinese christians (whomever they may be) may have obtained protection is to ignore the individual case by case fact specific inquiry in which the tribunal must engage when considering each and every protection claim brought before it.
Second, while the applicants raised matters they considered attracted an outcome for the grant of protection, the tribunal was required to embark on an evaluative process that the Act required and, in so doing, the tribunal was required to determine whether it was satisfied that the applicants had made out a case for protection under s 36(2)(a) of the Act or a claim for complementary protection under s 36(2)(aa) of the Act. Here, the tribunal said it was not so satisfied. To complain that such a result was not consistent with other cases in which protection was granted entirely missed the point.
In my judgment, the tribunal made no error. This ground failed.
Conclusion
All grounds of review failed.
I dismiss the application to this court for judicial review.
I order the applicants to pay the minister’s costs in the sum of $7 328.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 30 August 2018
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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