Cpa15 BY His Litigation Guardian Agw16 v Minister for Immigration

[2017] FCCA 1018

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPA15 BY HIS LITIGATION GUARDIAN AGW16 v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1018

Catchwords:
MIGRATION – Review of decision by Administrative Appeals Tribunal – whether Administrative Appeals Tribunal’s decision affected by jurisdictional error – whether the findings of the Administrative Appeals Tribunal were open to it – whether the Administrative Appeals Tribunal erred in failing to comply with section 424A of the Migration Act 1958 (Cth) – no jurisdictional error – application dismissed.

Legislation:
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.422B, 424A, 474

Cases Cited:
SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123
SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68

Applicant: CPA15 BY HIS LITIGATION GUARDIAN AGW16

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3284 of 2015

Judgment of: Judge Emmett

Hearing date: 17 May 2017

Date of Last Submission: 17 May 2017

Delivered at: Sydney

Delivered on: 17 May 2017

REPRESENTATION

The Applicant’s litigation guardian appeared in person with a Mandarin interpreter

Solicitors for the Respondents: Shelley He
(Mills Oakley)

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
SYDNEY

SYG 3284 of 2015

CPA15 BY HIS LITIGATION GUARDIAN AGW16

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Administrative Appeals Tribunal dated 5 November 2015 (“the Tribunal”).

2. The applicant is a child born on 15 July 2013. The applicant’s parents are Chinese citizens. The applicant’s mother was appointed as litigation guardian for the applicant.

3. The background of the applicant's case and the Tribunal's decision are accurately summarised in the first respondent's written submissions as follows:

   “2. The applicant is a male citizen of the People's Republic of China (the PRC), born on 17 July 2013: CB 1. His mother arrived in Australia on a Student visa in 2004. Her application for a further Student visa was refused, a decision that was affirmed by the (then) Migration Review Tribunal. The applicant's mother, his father and older sister, had all previously made unsuccessful applications for Protection visas. On 28 May 2010, the applicant's mother applied first applied for a Protection visa on the basis of her own claims for Protection, which was refused. The (then) Refugee Review Tribunal affirmed that decision on 28 December 2010. An application for judicial review of that decision was dismissed on 23 May 2011. The father first applied for a Protection visa on 17 October 2012, and the decision to refuse the application was affirmed by the Refugee Review Tribunal on 20 December 2012. The applicant's older sister applied for a Protection visa on 1 November 2012. The decision to refuse the application was affirmed by the Refugee Review Tribunal on 24 September 2013 and an application for judicial review of the Tribunal's decision was dismissed on 7 November 2014: CB 211.

   3. On 5 November 2013, the applicant's mother lodged an application for a Protection visa on the applicant's behalf: CB 1-44. A decision to refuse the mother's Protection visa was affirmed by the (then) Refugee Review Tribunal on 28 December 2010. The mother was not included in the present application because she intended to lodge her own Protection visa application under complementary protection provisions. The applicant's sister was not included as she had her own ongoing Protection visa application (that was dismissed), and the applicant's father was not included as he had been removed from Australia in March 2013: CB 211; CB 181, [23].

   4. The applicant's claims for protection were contained in a statement attached to the application: CB 48-56. It was claimed that he would face harm in the PRC because as he was conceived before his parents' marriage and because he was a second child, his birth was not in compliance with the PRC's Family Panning Regulations. His parents would be unable to pay the required social compensation fee. It was also claimed that the applicant's mother was born into a Christian family and that her family was harmed in the past by PRC authorities due to their religious activities. The applicant claimed to fear harm because he was born into a Christian family.

   5. The applicant's mother, on the applicant's behalf, attended an interview with the delegate on 5 March 2014: CB 89. On 4 April 2014, a delegate of the Minister refused the application: CB 85-103. The delegate accepted that the applicant would be an unregistered “black child”; however he did not accept that the applicant's parents would not register the applicant or that they did not have the financial resources to pay the social compensation fee to do so. The delegate did not accept that the applicant or the applicant's mother were genuine Christians. Accordingly, the delegate found that the applicant did not face either a real chance or real risk of harm for the reasons claimed.

   6. On 27 April 2014, the applicant sought review to the (then) Refugee Review Tribunal: CB 104-106. On 7 November 2014, the applicant was invited to a hearing scheduled to take place on 10 December 2014: CB 109-113. On 9 December 2014, the applicant provided written submissions and further documentation to the Tribunal and sought a postponement of the hearing: CB 113-132. The postponement was granted, and the applicant was invited to a hearing on 19 December 2014: CB 133-136. The applicant's mother appeared at the hearing on the applicant's behalf and was assisted by a representative and Mandarin interpreter: CB 137-139; CB 183, [31]. On 5 January 2015, the applicant's representative faxed post-hearing submissions and documents to the Tribunal: CB 146-173.

   The Tribunal's decision

   7. On 5 November 2015, the Tribunal affirmed the delegate's decision not to grant the applicant a Protection (Class XA) visa: CB 178-213.

   8. The Tribunal had “serious concerns” about the credibility of the applicant's mother and the veracity of the claims made by her on behalf of the applicant. In light of these concerns, the Tribunal found that she was not a witness of truth and had fabricated the applicant's protection claims: CB 185, [45]; CB 192, [78]; CB 193, [85]. In reaching its credibility finding, it found that the applicant's mother had provided inconsistent and limited evidence about her claimed Christian beliefs and practise in the PRC (CB 185-186, [46]-[47]) and her limited ability to talk about the religion to the Tribunal (CB 186, [48]). It noted inconsistencies in the mother's evidence to a previous Tribunal and her evidence to the current Tribunal in relation to the length of her parents' detention and their role in the Church, as well as when she started going to Church in Australia. Those inconsistencies were put to her under s 424AA of the Act: CB 186-187, [51]-[54]. The Tribunal found that the mother's credibility was undermined by her inability to recall how many times she had returned to the PRC after first arriving in Australia on a Student visa (CB 187-188, [58]-[59]) as well as her delay in lodging various Protection visa applications on behalf of herself and her children: CB 188-189, [60]-[68].

   9. The Tribunal found further that she had given “vague, changing, evasive and not credible evidence” about what she had been doing in Australia, and in relation to her family and claimed financial affairs: CB 189-190, [69]. It identified a number of deficiencies in her evidence, and found that her evidence about her studies was vague and evasive (CB 190, [70]), her evidence about her work and lack of knowledge about her visa was highly unlikely (CB 190, [71]), and that her evidence about her parents' and her financial situation was evasive and not credible: CB 190-191, [72]-[74].

   10. The Tribunal found that the applicant's mother's evidence about the situation of her two younger siblings, who she claimed were also born outside Family Planning Regulations, was evasive and not credible: CB 191, [75]-[76]. The mother claimed that she did not ask her husband about the situation with his siblings, who were also born in breach of Family Planning Regulations, and found that her failure to do so suggested that she did not consider that a breach of those regulations was a concern for herself or her children and that this undermined the applicant's claims for protection: CB 191, [77].

   11. The Tribunal did not accept that the applicant's mother had provided an adequate explanation for the identified deficiencies in her evidence or that they could be explained by her nervousness at the hearing, past gastroenteritis or previously diagnosed depression, anxiety and insomnia: CB 195-193, [79]-[84].

   12. On the basis of its adverse credibility findings, the Tribunal did not accept that the applicant's mother, or any members of the family were involved in underground or illegal churches in the PRC or that they were harmed and came to the adverse attention of Chinese authorities for this reason. It considered that the mother fabricated her claims of adverse events that occurred in China. While it was prepared to accept that the mother attended church in Australia, it was not satisfied that this was done for any reason other than to assist her claims. It found that the mother was not genuinely religious and that there was not a real chance or risk that she would engage in religious activities in China. While it accepted that the mother engaged in some Christian religious activities in Australia it was not satisfied that such involvement would lead to a real chance or real risk of harm to the applicant (or his mother or other family members): CB 193, [86]-[89].

   13. The Tribunal was not prepared to accept that the applicant and his sister attended church or undertook religious activities in Australia. It did not accept that the applicant or his sister were Christians, that they would attend any religious activity in China or that they faced a real chance or real risk of harm on the basis of religion: CB 193-194, [90]-[92].

   14. The Tribunal accepted that the applicant was in born in breach of the Family Planning Regulations and that his parents would be required to pay the requisite social compensation fee as a result: CB 194, [95]-[96]; CB 196, [106]. The Tribunal did not accept on the basis of its assessment of the evidence given by the applicant's mother that she would be unable to pay the fee for both children “up-front” as a lump-sum payment when required: CB 198, [111]. The Tribunal found that in light of its adverse credibility finding and its concerns about the mother's evasive evidence about her and her parents' financial situations, the mother had not been honest about the finances available to her and her husband for the payment of fees to register the children: CB 200, [120]. It considered the claim that she only worked “odd jobs” in Australia to be implausible, and observed that she had been able to afford expenses such as travel to the PRC and had been able to accumulate savings: CB 200, [123].

   15. As it had not accepted that her family had been harmed due to their religious beliefs, it did not accept that her parents' financial position diminished after they were arrested for religious reasons, and found that their circumstances continued to be “good.” CB 201,

   [126]. It did not accept that either the mother's parents or the father's parents were continuing to repay debts and did not accept that the husband had only been able to work “odd jobs” in the PRC: CB 201, [126]-[128]. It accepted that the mother represented herself as poor and had received funds from the Red Cross, but it observed that this did not mean that she declared her true financial situation to the Red Cross: CB 201, [129]. It placed weight on the mother's apparent lack of interest in her husband's siblings difficulties who she claimed were also born outside Family Planning Regulations and was not satisfied that she had been truthful about her or the father's financial situation: CB 201-202, [130]-[131].

   16. The Tribunal was not satisfied that the applicant's parents and grandparents could not and would not pay the social compensation fee on return to the PRC. It was not satisfied that the social compensation fee would affect the family's capacity to subsist such that the applicant faced a real chance or real risk of harm: CB 202, [132]. The Tribunal was not satisfied that the applicant could not be registered on the family's joint hukou and was not satisfied that the applicant would be a “black child” or would not be able to survive. Accordingly, it was not necessary to consider the claim that the applicant would be denied access to basic services. It found that there was not a real chance or real risk of harm to the applicant due to not being registered in the PRC or for being a “black child”: CB 202, [133]. The Tribunal accepted that the mother would wish to register both the applicant and his elder sister and therefore took into account the claim that the parents' would need to pay social compensation fees for both children. In light of the country information before it and its earlier findings, it was not satisfied that the mother would not have the ability and capacity to pay this fee on return or that payment of the fee amounted to a real risk or real chance of harm: CB 202, [134]-[135].

   17. The Tribunal had regard to country information and accepted that there was a possibility that the applicant might be teased for being conceived out of wedlock, however it was not satisfied on the available country information that he would suffer any serious or significant harm for this reason: CB 203-204, [136]-[144]. Nor was it satisfied on the country information before it, that there was a real chance that the applicant's mother would be subjected to forced sterilisation or insertion of a contraceptive device or forced abortion if she returned to the PRC: CB 204-207, [145]-[153]. The Tribunal did not accept that the applicant or his family would face any other type of harm as a result of the Family Planning Regulations: CB 207, [154].

   18. The Tribunal was not satisfied that the applicant faced a well-founded fear of persecution on the basis of his claims individually and cumulatively: CB 207, [155]. On the basis of its earlier factual findings, it did not accept that the applicant faced a real risk of significant harm on the basis of his claims individually and cumulatively: CB 207-208, [157]-[158].”

The proceeding before this Court

1. The applicant was unrepresented before this Court. The applicant’s mother made submissions on behalf of the applicant with the assistance of a Mandarin interpreter. 

2. On 11 February 2016, the applicant’s mother attended a directions hearing before a Registrar of the Court. The applicant was given leave to file and serve an Amended Application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support. The matter was set down for hearing today.

3. At the outset of the hearing, I explained to the applicant’s mother that the role of this Court is very different to that of the Tribunal, and that it is not for this Court to reconsider his claims and reach different findings or conclusions. I also explained to the applicant’s mother that the only issue before this Court is whether or not the decision of the Tribunal was made according to law. I explained to the applicant’s mother that this Court has no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the decision of the Tribunal is affected by a mistake going to its jurisdiction. I further explained to the applicant’s mother that disagreement with the findings and conclusions of the Tribunal rarely, by itself, establishes such a mistake.

4. At the commencement of today’s hearing, the applicant’s mother confirmed that the applicant has not filed any Amended Application, evidence or submissions in support of the applicant’s application and that she has no further documents to present to the Court this morning in support of the applicant’s application.

5. The applicant’s mother confirmed that the applicant relied on the grounds contained in the applicant’s initiating application filed on 2 December 2015 as follows:

   “1. At Paragraph 122 of the Tribunal decision record, the presiding member, Christine Cody, stated: “Although the mother said that she had not studied since June 2008, ....... the Tribunal is not prepared to accept that the mother just worked in odd jobs and was in a precarious financial position as claimed; the Tribunal considers that she is resourceful and resilient and has worked much more that she is prepared to disclose.” The Tribunal apparently drew its conclusion from its speculation, instead of replying on solid evidence or comprehensive assessment on my financial position and as such, I believe the Tribunal breached the procedural fairness and acted in such manner that is inconsistent with the Subsection s422B(3) of the Migration Act, 1958 which requires the tribunal to act in a way that is fair and just.

   Other than that, Red-cross conducted thorough Mean Test before granting my request for financial assistance; Should I be financial stable as the Tribunal assumed, Red-cross would not offer me financial support through SRSS (Status Resolution Support Service) program.

   2. When assessing my ability to pay for the social compensation fee (from Paragraph 120 to Paragraph 133), the Tribunal made negative decision based on the adverse credibility findings of the mother's previous PV application and believed the mother of the Oscar Yu is able to meet the monetary fine, amount of 20,000 Australian dollars, which is part of the reasons the Tribunal affirmed the decision of the delegate of the Minister.

   However, the Tribunal failed to offer an opportunity to the applicant (the mother of the applicant per se) to respond to the concerns that the Tribunal had, in relation to the parents' financial capability in writing; therefore, the Tribunal erred in applying the subsection s424A of Migration Act 1958.”

6. Each of the grounds was interpreted for the applicant’s mother and she was invited to say whatever she wished in support of each of the grounds and in support of the application generally.

7. The applicant’s mother had nothing further to say in support of Ground 1. In support of Ground 2, the applicant’s mother stated that she had been trying to contact the applicant's father for help, however, he always said that he had no money and that he had asked her for help. The applicant’s mother further stated that the money she received from the Red Cross was not much.

Ground 1

1. In Ground 1, the applicant’s mother alleges that the Tribunal denied the applicant procedural fairness and breached s.422B of the Act because the Tribunal did not accept her claim that she worked odd jobs and was in a precarious financial position. Ground 1 also asserts that the Tribunal erred when it found that the applicant’s mother is resourceful and resilient and has worked much more than she is prepared to disclose.

2. Ground 1 asserts that the Tribunal made its conclusion based on speculation instead of relying on solid evidence or a comprehensive assessment of the applicant mother's financial position. Ground 1 also refers to the assistance the applicant’s mother had received from Red Cross, asserting rhetorically that if she was as financially stable as the Tribunal assumed, the Red Cross would not have offered her financial support.

3. Section 422B of the Act states that compliance with Part 7, Division 4 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule. An allegation of breach of that provision alone without further particularisation does not identify jurisdictional error by itself (see SZMOK v Minister for Immigration and Citizenship (2009) 110 ALD 15 at [15] per Emmett, Kenney and Jacobson JJ).

4. On 7 November 2014, the Tribunal wrote to the applicant's migration agent inviting the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. The applicant does not suggest that the request was made other than in accordance with the statutory regime. The applicant's mother ultimately attended a hearing before the Tribunal, together with the applicant's registered migration agent. The Tribunal identified the applicant's claims and summarised the background of the matter and the applicant’s mother’s interview with a delegate of the first respondent (“the Delegate”).

5. The Tribunal noted that the applicant's mother was giving evidence on behalf of the applicant. The Tribunal also noted that it would take into account relevant circumstances affecting the people surrounding the applicant, such as his mother and sister, which might lead to the applicant facing a real chance of serious harm or a real risk of significant harm in China. 

6. The Tribunal also referred to a request in the Response to Hearing Invitation to take evidence from people in China. However, the Tribunal declined to take further evidence on the basis that such evidence may not be relevant if the Tribunal found that the applicant’s mother can pay the social compensation fee.

7. The Tribunal also referred to evidence before it that the claimed difference in price for medical attendance between registered and unregistered children was $20 per visit, and concluded that this would not amount to serious or significant harm.

8. Ultimately, the Tribunal found that the applicant’s mother would be able to pay the social compensation fees and that her children would be registered on a Hukou. 

9. The Tribunal set out in detail the various exchanges that it had with the applicant’s mother about the applicant’s claims, noted matters of concern that it had put to her, and the applicant mother's responses and explanations. The Tribunal identified with specificity the various credibility concerns that it had about the applicant's mother’s evidence, and ultimately comprehensively rejected her claims of past harm and prior religious involvement of both herself and her parents.

10. The Tribunal found the applicant's mother’s evidence to be inconsistent in various respects that it identified. The Tribunal further found that her explanation as to her two-year delay in seeking protection to be evasive and not credible. The Tribunal found the applicant’s mother’s evidence regarding her financial matters to be generally evasive and vague.  The Tribunal explored in detail its concerns with the applicant’s mother about her financial position. Based on the adverse credibility findings, the Tribunal did not accept that the applicant's mother or any members of her family had been involved in any underground or illegal church activities in China, or that they had been detained, harassed, pressured, threatened or otherwise ever brought to the adverse attention of Chinese authorities as claimed by the applicant's mother.

11. The Tribunal did not accept that the applicant's mother had provided religious anti-Communist materials to her family or that such materials were discovered by police. The Tribunal found that the applicant's mother had fabricated her claims about events that occurred in China. The Tribunal did not accept that she had been of adverse interest to Chinese authorities for the reasons claimed or for any reason.

12. The Tribunal accepted that the birth of the applicant was in breach of Fujian family planning laws, and that the applicant’s parents may be subjected to the imposition of a social compensation fee because they conceived him before their marriage and because he is a second child.

13. The Tribunal then comprehensively referred to Department of Foreign Affairs and Trade (“DFAT”) country information on those issues, including DFAT information published post-hearing. The Tribunal ultimately accepted that for the purposes of its decision, there was a real chance and a real risk that the applicant's parents would have to pay the relevant fees in order for their children to be registered. The Tribunal then referred to the new country information by DFAT as to the amount of any such fine and accepted that the fine in respect of the applicant was likely to be between $11,000 and $15,000.  The Tribunal then considered in great detail the ability of the applicant’s mother to pay any fine. The Tribunal found that even if the fine was $20,000, the applicant's mother would be able to pay the sum, for the reasons provided by the Tribunal.

14. The passage quoted by the applicant’s mother in Ground 1 is part of paragraph 122 of the Tribunal’s decision record, as follows:

    “Although the mother said that she had not studied since June 2008, when the Tribunal attempted to ascertain what she had been doing with her time, she claimed that since then she had only worked in “odd jobs,” because she did not know her visa status. The Tribunal does not accept as credible her claim that she only worked in odd jobs because she did not know her visa status. The Tribunal considers it highly likely that the mother was aware of her visa status, and that she had no lawful reason to stay in Australia, and that while here unlawfully she did not have permission to work, but that this did not matter to her. The Tribunal considers it highly likely that the reason the mother remained in Australia was because she wanted to work and earn money; the Tribunal further considers that in these circumstances, it is highly unlikely that the picture she portrayed (of a person barely making ends meet and only working minimally) is true. The Tribunal is not prepared to accept that the mother just worked in odd jobs and was in a precarious financial position as claimed; the Tribunal considers that she is resourceful and resilient and has worked much more than she is prepared to disclose.”

15. The Tribunal went on to note that the applicant's mother had been able to afford to return home to China on at least two or three occasions, had claimed to have paid about $3,000 to migration agents in the past with the assistance of her husband, and had been able to accumulate savings. The Tribunal also noted that the applicant’s mother had been able to enter into a lease for a property at $550 a week and to support her children.

16. The Tribunal accepted that the applicant's mother had represented herself as being poor, and that as a result of this, she may be receiving money from the Red Cross and may have received fee waivers and free advice from her migration agent. However, the Tribunal found that her receipt of free assistance did not mean that her circumstances were as claimed. Having regard to the adverse credibility findings, the Tribunal did not accept the applicant’s mother’s changing evidence about why she stopped studying; her inability to provide a reasonable explanation as to why she did not get a proper job or jobs other than odd jobs; her claimed lack of knowledge about her visa status and her evasive evidence in telling the Tribunal how much money her parents had given her.

17. The Tribunal noted the applicant’s mother’s claim that her parents would have helped her to pay the social compensation fees but that they were unable to do so as they were still paying off debts for her studies. The Tribunal did not accept that claim as it was not satisfied that the applicant’s mother would have no idea of the amount the debts her parents still owed.

18. The Tribunal noted that in June 2008 the parents paid $50,000 for the applicant’s mother to come to Australia. The Tribunal also found that the applicant's mother had not been forthcoming about her husband's activities in Australia, nor about her own, nor about the financial circumstances generally affecting their ability to pay the relevant amounts to register the children. The Tribunal found the applicant's mother and father to be resourceful and resilient, including working in Australia when unlawfully present. The Tribunal noted that both the applicant's mother and father are of working age and that there was no evidence before the Tribunal to suggest that the applicant’s parents would not have the right to work in China. The Tribunal also noted that the applicant's mother made no such claim.

19. The Tribunal noted that it put to the applicant's mother that her parents had paid $50,000 for her to come to Australia; that she had been resourceful in obtaining free advice from an agent; that she had given the impression that she had barely been able to earn any funds, yet she had lived in Australia for 10 years; that she had returned to China for holidays; and that she had supported her two children while living in an expensive city, Sydney. The Tribunal noted the applicant’s mother’s response, that the Red Cross had assessed her as needing assistance.  As stated above, the Tribunal noted the applicant’s mother’s response that her parents paid $50,000 for her to come to Australia before they were persecuted. However, the Tribunal did not accept that her parents had been persecuted, and therefore did not accept that their financial situation had changed for reasons of persecution.

20. Ultimately, the Tribunal was not satisfied that on the evidence before it, the applicant could not be registered on the joint Hukou that the parents could obtain as a married couple. The Tribunal was satisfied that the parents would register the applicant, and therefore was not satisfied that the applicant would be a black child as claimed, or that the applicant could not survive as claimed. The Tribunal was not satisfied that the mother would not pay the social compensation fee upon return, and in light of that finding, found that it was not necessary to deal with the claim that the applicant would be denied access to basic services.

21. In the circumstances, the Tribunal found that there was not a real chance of serious harm or a real risk of significant harm to the applicant by reason of him not being registered on a Hukou in China or for being a black child. While the Tribunal accepted that there was a possibility that the applicant may face some teasing or bullying at school if people became aware that he was born outside the family planning law or conceived out of wedlock.

22. Based on country information before it, the Tribunal was not satisfied that the applicant faced a real chance or a real risk of any societal or governmental discrimination, stigma or ostracism that would be sufficiently serious to constitute serious or significant harm.

23. The Tribunal also concluded that there was not a real chance or real risk that the applicant's mother would be subjected to serious or significant harm as a result of China's family planning laws. 

24. The Tribunal’s findings were open to it on the materials and evidence before it, and for the reasons it gave, including its adverse credibility findings. Credibility findings are a matter par excellence for the Tribunal (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J). A credit finding is sound if it was “open to [the Tribunal] on the material, was based on rational grounds and was arrived at on consideration of matters that were logically probative of the issue of credibility” (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547).

25. It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 per Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).

26. Further, it is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for the Tribunal (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).

27. The Tribunal accepted that the applicant's mother may have been nervous in appearing before the Tribunal, but noted that she has appeared in a number of tribunal hearings as well as the Delegate's interview, and was not satisfied that her nervousness could explain the difficulties that the Tribunal found with her evidence.

28. In the circumstances, the applicant's complaints in Ground 1 appear more to be a disagreement with the findings and conclusions of the tribunal. Such a complaint invites merits review, which this Court has no power to undertake. (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54 per Gleeson CJ and McHugh J; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The following was stated in Minister for Immigration and Citizenship v SZNPG [2010] FCAFC 51 at [20] per North, Lander and Katzmann JJ:

    “It was not for the Federal Magistrate’s Court, nor for this Court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: Reg v The District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.” 

29. Accordingly, Ground 1 is not made out.

Ground 2

1. Ground 2 refers to the Tribunal's findings that the applicant’s mother could meet a fine of up to $20,000. Ground 2 alleges that the Tribunal had failed to offer the applicant’s mother an opportunity to respond to its concerns in relation to her parents’ financial capability, thereby failing to comply with s.424A of the Act.

2. The information about which the applicant’s mother complains was not provided to her in accordance with s.424A of the Act as it was more in the nature of the Tribunal's assessment of her evidence. It is well established that the Tribunal’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the Tribunal’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).

3. The Tribunal referred to various deficiencies that it found to be in the applicant's mother's evidence, including her changing evidence as to why she stopped studying, her inability to provide a reasonable explanation as to why she did not get a proper job, her claimed lack of knowledge about her visa status, her evasive evidence and her contradictory claims relating to the debts her parents owed. 

4. The Tribunal’s decision record disclosed that the Tribunal purported to put to the applicant various inconsistencies about her evidence in accordance with s.424AA of the Act. However, there was no obligation on the Tribunal to do so, as it was not information that enlivened any obligation under s.424A of the Act for the reasons referred to above. However, a Tribunal may out of an abundance of caution or concern for fairness, put a particular line of reasoning to an applicant in circumstances where s.424A of the Act has no application (see SZGIY v Minister for Immigration and Citizenship [2008] FCAFC 68 at [30] per Dowsett, Bennett and Edmonds JJ).

5. As stated above, the Tribunal's findings in relation to the applicant’s mother's capacity to pay a fine or the social compensation fee in an amount of $20,000 was open to it on the evidence and material before it and for the reasons it gave. There was no breach by the Tribunal in respect of the alleged failure to give the applicant an opportunity to respond in writing to its concerns in relation to the applicant's financial capability, as this was not information that enlivened any obligation under s.424A of the Act. In any event, it is clear from the Tribunal's decision record that it purported to give such information to the applicant at the hearing and discuss its concerns with her.

6. Again, Ground 2 appears to be no more than a disagreement with the findings and conclusions of the tribunal, thereby seeking impermissible merits review.

7. Accordingly, Ground 2 is not made out. 

Conclusion

1. A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant’s mother at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant’s mother matters of concern it had about her evidence and noted her responses. The Tribunal identified with specificity the country information to which it had regard and which it discussed with the applicant’s mother at a hearing.

2. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.

3. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

4. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no power to interfere.

5. The proceeding before this Court should be dismissed with costs.

I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Emmett

Date: 29 May 2017