CPD15 as litigation guardian for CGE15 v Minister for Immigration and Border Protection
[2016] FCA 475
•6 May 2016
FEDERAL COURT OF AUSTRALIA
CPD15 as litigation guardian for CGE15 v Minister for Immigration and Border Protection [2016] FCA 475
Appeal from: CGE15 v Minister for Immigration & Border Protection [2016] FCCA 173 File number: NSD 213 of 2016 Judge: FARRELL J Date of judgment: 6 May 2016 Catchwords: MIGRATION – appeal from judgment of the Federal Circuit Court of Australia – protection visa – appellant’s mother appointed as litigation guardian – where appellant claims to fear harm as a “black child” in China because he was born to unmarried parents and in breach of China’s family planning laws – where appellant’s father imprisoned in Australia for drug related offences – where appellant claims to fear harm as a “son of a criminal” – where appellant’s parents claim they are unable to pay the social compensation fee in China for the appellant as an “extra child” and “unmarried fertility” – where appellant’s parents and an older sibling made individual protection claims which were unsuccessful – whether Tribunal failed to properly consider claims – whether Tribunal biased – whether Tribunal gave adequate reasons – whether Tribunal failed to take into account relevant considerations – whether appellant denied procedural fairness – whether Tribunal asked irrelevant questions – consideration of ss 36(2) and 424A of the Migration Act 1958 (Cth) – appeal dismissed Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 424A, 425, 476(2), 476A Cases cited: CGE15 v Minister for Immigration & Border Protection [2016] FCCA 173
Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Date of hearing: 2 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 45 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Blake of Clayton Utz Counsel for the Second Respondent: The second respondent submitted save as to costs ORDERS
NSD 213 of 2016 BETWEEN: CPD15 AS LITIGATION GUARDIAN FOR CGE15
Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
6 MAY 2016
THE COURT ORDERS THAT:
1.Leave to raise new grounds on appeal be refused and the appeal otherwise be dismissed.
2.The appellant’s litigation guardian pay the first respondent’s costs in a lump sum amount of $3,916.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
This is an appeal from a judgment of the Federal Circuit Court of Australia (“FCCA”) delivered on 3 February 2016: CGE15 v Minister for Immigration & Border Protection [2016] FCCA 173 (“FCCA Judgment’). The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 9 October 2015. The Tribunal affirmed a decision of a delegate of the Minister made on 2 June 2014 to refuse to grant a Protection (Class XA) visa to the appellant.
BACKGROUND
This background is taken from the Tribunal’s Statement of Decision and Reasons dated 9 October 2015 (“Decision Record” or “DR”) and the appellant’s visa application.
On 27 September 2013, the appellant (through his mother) lodged a protection visa application with the Department of Immigration and Citizenship (now the Department of Immigration and Border Protection). The appellant is a minor and was born on 5 January 2013; he is the youngest of three children all of whom were born in Australia. His litigation guardian is his mother (“mother”) who arrived in Australia on 2 July 2005 on a Subclass TU 571 (Schools Sector) Student visa. The appellant’s father (“father”) arrived in Australia on 7 August 2006 on a Subclass TX 771 (Transit) visa.
The appellant’s parents are Chinese citizens who met in Australia and commenced a de facto relationship here. They made separate applications for protection visas; but both were refused. The eldest child (now eight years old) was included in the mother’s application and she did not make separate protection claims. The second child (now four years old) made an application for a protection visa in August 2012, six days after the father was arrested on drug related offences. The second child’s application was also unsuccessful. The mother told the Tribunal at the hearing that the father had been in prison or in immigration detention from the time of his arrest and he was sent back to China in the week before the Tribunal hearing on 9 July 2015.
The appellant’s claims to protection set out in his visa application were:
(1)His parents would be unable to pay the social compensation fee prescribed by the “Population and Family Planning Regulation” in their province “no matter how much it will be”. As his parents are unmarried the social compensation fee must be paid in relation to each of the three children. His parents have no money as his father was in prison when he was born and his mother has to look after the children so “she does not have any jobs”.As a consequence of not paying the social compensation fee, he would not be eligible to have his “household register (hukou)”. As an unregistered “black child” he would not have access to public education, healthcare or social and state support so that “it must be extremely difficult … to grow up normally and healthily” in China; he would be “harmed or mistreated” by officials and government agencies. The appellant also says that would be unable to get support or help from his relatives in China, as they are no longer in contact with his parents and “they are also in extremely difficult position”.
(2)Because the father was imprisoned in Australia for drug related offences, the appellant will be viewed as the “son of the criminal” and will be subjected to “serious discrimination, degrading treatment and punishment” and he will be “abandoned by society”. He will not be able to obtain protection from the Chinese government or relatives from whom his parents are cut off.
On 2 June 2014, a delegate of the Minister refused to grant the appellant a Protection (Class XA) visa because she was not satisfied that he is a person to whom Australia owes protection obligations under the Migration Act.
On 19 June 2014 the appellant applied to the Tribunal for a review of the delegate’s decision. The appellant and his mother appeared before the Tribunal on 9 July 2015; the appellant’s mother gave evidence and presented arguments on the appellant’s behalf. By a letter dated 23 July 2015, the Tribunal invited the appellant to comment on or respond to information pursuant to s 424A of the Migration Act (“s 424A Letter”) and the mother responded by letter dated 6 August 2015 (“Response”).
TRIBUNAL DECISION
On 9 October 2015 the Tribunal affirmed the delegate’s decision to refuse to grant the appellant a Protection (Class XA) visa.
The Tribunal found the mother to be an “unimpressive witness” and that her responses “were generally vague and she did not present as a witness in genuine fear of harm” for the appellant in China. The Tribunal had a “number of concerns about the credibility of the evidence before it”. The Tribunal had before it decision records of differently constituted Tribunals which had separately considered protection visa applications made by the mother and father. I will refer to those Tribunals as the “mother’s Tribunal” and the “father’s Tribunal” respectively.
The Tribunal identified four principal areas of concern in respect of the credibility of the evidence before it:
(1)The mother’s “inconsistent and vague evidence” to the Tribunal regarding when she told her parents of her relationship with the father (that is, whether she told them before or after her visit to China in 2007) and her parents’ lack of reaction to that news in light of a marriage said to have been arranged for her with an army officer in China and a large dowry paid to her family before she left for Australia in 2005. The evidence was inconsistent with the mother’s claim in her own protection visa application that she feared harm from her parents and the army officer if she returned to China because she had not married the officer and instead had entered into a relationship with the father. It was also inconsistent with her evidence to the mother’s Tribunal that her parents did not approve of her relationship with the father. These inconsistencies were put to the appellant in the s 424A Letter. In the Response, the mother did not dispute the fact that the evidence was inconsistent but said that her evidence may have been incorrect because she did not understand questions put to her, she had not explained her evidence clearly and in the intervening period she had had three children. The Tribunal did not accept that that response satisfactorily explained or excused the inconsistency: DR at [11]-[16].
(2)A “pattern of delay” on the part of the appellant’s mother in seeking protection either for herself or her children. The mother’s Tribunal was told that her fear of the army officer arose in early 2007, however she did not lodge her protection visa application until June 2008. The Tribunal also questioned why the mother had not advanced protection claims for her first child, born in January 2008, as she says she has the same fears for that child as she does for the appellant and the second child. Further, there was a delay of almost one year between the birth of the second child and the mother’s application for a protection visa on his behalf. The appellant’s protection visa application was made eight months after he was born. The Tribunal found that “the explanations she has given for this do not overcome the impression that these Protection visa applications are made as a ruse to be able to gain more time in Australia and not because of any genuine fear of harm in China”: DR at [17]-[21].
(3)Discrepancies in the mother’s evidence about when she became aware of the father’s involvement in drugs. The mother told the Tribunal that she would not live with the father in China nor would she marry him; she says that when the father was arrested and put in gaol she decided that she did not want to be with him because his involvement with drugs would harm the children. She said she discovered his involvement in September 2011 after the birth of their second child. She then confirmed that she found out before he was arrested in August 2012. She later changed her evidence, saying that she only found out after the father’s arrest. This discrepancy was put to the mother in the s 424A Letter. In her Response the mother said that the father was arrested after the birth of their second child in September 2011 and before the appellant’s birth in January 2013 and she may not have explained her evidence clearly. The Tribunal found that the mother’s “change of evidence to say that in fact she found out after he was arrested was not credible”: DR at [22]-[26].
(4)In the s 424A Letter, the Tribunal put to the appellant that the father was found not to be a credible witness by the father’s Tribunal because he displayed ignorance of fundamental aspects of operating a clam farm. The father claimed to be in conflict with Chinese authorities concerning use by the Chinese military of land on which the farm was operated. That credibility finding appeared to be valid and therefore the father’s protection claims were false. The Tribunal found that, in determining the appellant’s review application, it was “fair” to take into account that the father’s claims to protection were false, “in particular, when assessing the credibility of claims that have been put to the Tribunal that the [appellant] will suffer harm in China because his parents are impecunious and unable to pay the requisite fee to avoid that harm”: DR at [27]-[30].
The concerns that the Tribunal had about the credibility of the appellant’s mother and the evidence before it “considered cumulatively” led the Tribunal to find that “the [appellant’s] mother is not a witness of truth and certain evidence before the Tribunal related to the risk of the [appellant] suffering harm is false”: DR at [31].
In light of its conclusions regarding the credibility of the appellant’s parents the Tribunal did not accept: (1) claims that the father was in conflict with and was pursued by Chinese authorities; (2) claims that the mother entered into an arrangement for a marriage to a man in the Chinese army, that the mother refused to marry him and that his family approached her family about it; (3) claims that the father had been questioned at the airport on his return to China and subsequently visited by the police and asked to write a report about being in prison in Australia; (4) that Chinese authorities or anyone in China held any adverse interest in the mother or the father; (5) that people in the province from which the appellant’s parents originate are aware of the father’s imprisonment in Australia arising from a drug offence; (6) that relatives of the mother have cut off the appellant’s family because of debts owed by the mother’s parents to relatives to fund the mother’s student visa or because of the father’s involvement in drugs or that they cannot stay with the mother’s family in China or that the father’s family want nothing to do with the mother or that both families disapprove of the relationship between the father and mother; (7) that the appellant’s parents have separated and do not seek to live together; the Tribunal found that they are still in a de facto relationship; or (8) that the appellant’s parents and their respective families are all impecunious: DR at [32]-[34].
The Tribunal considered documents from Australian assistance agencies and the mother’s Australian bank statements submitted as evidence of the family’s need for financial assistance in Australia. The Tribunal found that this was not credible evidence of the true financial position of the appellant in light of its credibility findings concerning the mother. The Tribunal did not consider that a medical certificate which was said to relate to the hospitalisation of the father’s father for a period of 11 days for “uremia” was evidence that the father’s family in China was not in a position to assist the appellant’s parents if they returned to China; it did not overcome the Tribunal’s concerns about the credibility of the evidence of the mother and the Tribunal gave no weight to the document. It also gave no weight to documents which indicated that the first child was doing well at school in Australia, finding that those documents did not go to the mother’s credibility or the risk of the appellant suffering serious or significant harm if he returned to China: DR at [35]-[36].
In the Decision Record at [37], the Tribunal said:
At the conclusion of the hearing, the applicant’s mother said that she wished to hand over a large bundle of documents that appeared to be disorganised and much of them not translated. In addition, she could not provide the Tribunal with any adequate explanation as to the relevance of this information. Accordingly, the Tribunal told the applicant’s mother that it would give her a period of two weeks from the conclusion of the hearing to submit any documents she wished the Tribunal to consider along with an explanation as to why those documents were relevant. The Tribunal advised the applicant’s mother that documents in Chinese must be translated. No documents were received from the applicant’s mother.
The Tribunal proceeded to assess whether the appellant faced a risk of suffering serious harm if he was returned to China “based on the only evidence it accepts as credible”, being the fact that the mother and father are in a de facto relationship, they have three children born in Australia and they come from Fujian province where their respective families live: DR at [38].
The Tribunal considered the available “country information” related to family planning laws in China. Based on that information, the Tribunal accepted that the Fujian “Population and Family Planning Regulations” specify that giving birth to “extra children” and “unmarried fertility” are prohibited, however, once the requisite fees imposed on the mother and the father are paid, the appellant would receive household registration (hukou) and can access social services. The Tribunal considered the range of fees that might be payable dependent on whether the mother and father were found to be urban or rural dwellers; the Tribunal acknowledged that the amount of the fees could vary having regard to the region and the amount of yearly income against which they were calculated. The fees can be paid in instalments over three years during which time household registration will be issued. Before the household registration is obtained, private healthcare and education are available: DR at [39]-[42], [44].
The Tribunal discussed this “country information” with the appellant’s mother at the hearing; she said she could not afford to pay the compensation fees or for private healthcare or education. The Tribunal also provided the “country information” to the appellant with the s 424A Letter; the mother did not comment on it in her Response: DR at [46].
In the Decision Record at [44] and [49]-[50], the Tribunal found that:
(1)There could be a social group of “black children” in China but the appellant’s risk of being a member of that group and suffering serious harm on this ground was remote. This was because there was “no credible evidence” of the financial position of the appellant’s parents and their respective families, or to support the claim that the appellant’s relatives will not assist them. Further, the husband and wife were free to seek employment in China and the fee is payable by instalments during which time the household registration (hukou) is available to the appellant. There was also no credible evidence that the parents could not afford to pay for private healthcare and education; and
(2)While there were reports of “offending couples” being detained, forcibly sterilised or having their property confiscated “matters which, to some degree, affect their capacity to pay the requisite fee”, “country information” does not indicate that this happens frequently or at a systematic level. The risk of punitive action being taken against the appellant’s parents is remote so none of these matters will affect their capacity to pay the requisite fees.
In respect of the claim that the appellant would suffer harm as “the son of the criminal”, the Tribunal found that “country information” indicated that the returnees to China who are of interest to the Chinese government are usually Falun Gong practitioners or political dissidents: DR at [43]. The Tribunal found that there was “no credible evidence” that the Chinese authorities were aware of the father’s criminal past and the risk of the appellant suffering serious harm because of his father’s criminal past was remote: DR at [48].
The Tribunal was therefore not satisfied that there was a real chance that the appellant will suffer serious harm in China and that he does not hold a well-founded fear of persecution based on any Convention ground: DR at [51].
The Tribunal then proceeded to consider the complementary protection criterion and found that the risk of the appellant suffering significant harm on return to China is remote for the same reasons it found that the risk of him suffering serious harm is remote. The Tribunal found that there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant returning to China, there is a real risk that he will suffer significant harm in light of its credibility findings in respect of the mother and in the absence of any credible evidence (1) that Chinese authorities or anyone else in China holds any adverse interest in the appellant’s parents; (2) that anyone in China knows of the father’s imprisonment in Australia or involvement with drugs; (3) regarding the financial position of the appellant’s parents or their respective families; or (4) that the appellant’s parents’ families have disowned them: DR at [52]-[55].
In the result, the Tribunal was not satisfied that the appellant was owed a protection obligation, either as a refugee under s 36(2)(a) or as a beneficiary of complementary protection under s 36(2)(aa) of the Migration Act: DR at [56]-[57].
DECISION OF THE FCCA
The appellant filed an application for review of the Tribunal’s decision in the FCCA on 29 October 2015. His application listed three grounds of review (as written):
1. The Tribunal member acted arbitrarily and peremptorily. He refused or rejected everything no matter what I have claimed or submitted as supporting evidence.
2. The Tribunal member was as hard as nails. I clearly told him that I did not have money to have my documentary evidence translated from Chinese to English, but he refused to consider my particularly difficult circumstance.
3. The Tribunal member failed to take any genuine attempts to fairly look at my cases but just liked to refuse my application straightaway.
On 3 December 2015, a Registrar of the FCCA made orders providing the appellant with an opportunity to file any amended application, affidavit evidence and written submissions. The appellant did not do so. The application was heard by the primary judge on 3 February 2016 and judgment was delivered that day.
In respect of the first ground, after noting that an allegation of bias must be clearly alleged and properly proven, the primary judge found that the Tribunal had given detailed reasons for its findings and that the adverse credibility findings which the Tribunal made was not conduct by reason of which a fair minded lay observer might reasonably apprehend that the Tribunal might not bring an independent and impartial mind to the determination of the matter on its merits. The primary judge further concluded that the appellant “was afforded a genuine hearing”, noting that the Tribunal had invited the appellant’s mother to respond to discrepancies in her evidence and had therefore complied with its obligations: FCCA Judgment at [5]-[6].
The primary judge noted that the complaint in ground two related to the attempt by the mother to tender at the Tribunal hearing a large bundle of material which had not been translated to English. His Honour noted that the Tribunal had given the mother leave to submit translated copies of the documents together with an explanation as to the relevance of the documents within two weeks after the conclusion of the hearing, but that the Tribunal did not receive any such documents. After noting that the Tribunal “identified” that the mother did not explain the relevance of the untranslated documents and that it was not apparent that the Tribunal was informed that the mother was unable to afford the cost of translation, the primary judge found that ground two did not disclose any denial of procedural fairness or jurisdictional error on the part of the Tribunal: FCCA Judgment at [7]-[8], [11]-[12].
In dismissing ground three, the primary judge found that there was “no substance” to the complaint that the Tribunal had failed to address the claims advanced on behalf of the appellant and that such a complaint was “inconsistent with the detailed reasons of the Tribunal”: FCCA Judgment at [9].
In the result, the primary judge dismissed the application as the appellant had failed to establish jurisdictional error on the part of the Tribunal: FCCA Judgment at [12].
APPEAL TO THIS COURT
The appellant filed a notice of appeal from the FCCA’s decision on 12 February 2016.
Grounds
The appellant raised five grounds of appeal (as written):
1. The First and the Second Respondents failed to consider the risk of significant harm to the appellant due to the imputation of the status of discrimination to the Appellant and his mother by the Chinese authorities and the most probable consequences on their forced return to China given the background and status of the appellant.
2. The Second Respondent failed to give the Applicants an opportunity for a fair hearing in accordance with s425 of the Migration Act, whilst forming an explicit bias as against the appellant’s claims relating to the background of his parents and his very status, by way of having a “full blanket” rejection of all these claims. This is the second ground of review raised by the appellant during the review process, which the Court failed to allow a fair hearing to, without providing reasons for it.
3. The First Respondent failed to exercise discretion and did not take into account of all relevant considerations in making the determination whilst only considered the interview outcome with the Appellant’s litigation guardian on behalf of the appellant.
4. The Second Respondent denied the applicant natural justice or procedural fairness in making the determination, particularly regarding the dire consequences for the Appellant’s on his return to their country of origin.
5. In determination of the Second Respondent was in an improper exercise of power whereby no relevant considerations have been taken into account other than the decision record of the First Respondent, and the Second Respondent allegedly did not fairly conduct the fact finding under the statutory requirement by way of using irrelevant line of questioning in the hearings.
The mother appeared for the appellant as his litigation guardian. This status was confirmed by orders made at the hearing. The Court was assisted by an interpreter.
The Minister submitted that the appellant requires leave to raise these grounds as they were not raised in the proceedings before the primary judge and that leave should be denied because the grounds have no reasonable prospects of success.
The appellant served written submissions on the Minister on 29 April 2016 but did not file them. Those submissions, together with a one page personal statement (“Personal Statement”), were handed up at the hearing without objection by the Minister. I consider the issues raised in those written submissions together with the merits of the grounds in the appeal below.
CONSIDERATION
The Minister submitted that grounds one, three and five “generally lack particularisation”. The appellant’s written submissions provided some further particulars of these grounds.
As I explained to the mother at the hearing, I accept the Minister’s submission that insofar as grounds one and three relate to the decision of the Minister’s delegate, not only was such a ground not raised in the review application to the FCCA, those grounds must fail since neither the FCCA nor this Court has jurisdiction to review a decision of the delegate in relation to a protection visa: see ss 476(2) and 476A of the Migration Act. Any failure by the delegate to afford the appellant procedural fairness was cured by the decision of the Tribunal. It would therefore not be appropriate to grant the appellant leave to rely on ground one or ground three to the extent the complaints relates to the delegate’s decision.
The appellant’s first issue is whether the Tribunal adequately considered the risk of significant harm to the appellant if he is returned to China due to the “imputation of the status of discrimination to the appellant and his mother by the Chinese authorities and the most probable consequences on their forced return to China”. The mother explained that it would be “bad” for the appellant to be returned to China because his father abuses drugs and there is no possibility that the mother and children could live with him because she does not want the children to follow that path. The appellant’s mother further explained that now there are three children, the Tribunal gave inadequate consideration to the consequences to the appellant of his parents’ incapacity to pay the social compensation fees or to get support from their families in China. This issue is at the core of grounds one and four.
The Minister submitted that ground one is the appellant’s “most specific claim” as it relates to the Tribunal, but grounds one and four disclose no legally recognisable error. I accept that submission. The Tribunal gave explicit consideration to the background and status of the appellant as a child born out of wedlock and the son of a man who had been imprisoned for drug related offences: see DR at [9]-[10] and [39]-[43]. Findings of fact, including as to the parents’ credibility, are a matter for the Tribunal. In light of relevant “country information” and the Tribunal’s credibility findings, it was open to the Tribunal to make the findings summarised at [12] above and to reach the conclusions that the risk of the appellant being part of a social group of “black children” and suffering serious or significant harm as a result was remote, as was the risk of serious or significant harm on account of the father’s involvement with drugs and imprisonment in Australia: see DR at [48]-[49] and [53]-[54]. The mother’s explanation of these grounds invites impermissible merits review and raises an issue (exposure of the children to a father who takes drugs) not raised with the Tribunal. It would not be appropriate to grant leave to the appellant to rely on this aspect of grounds one and four.
The appellant’s next issue, reflected in ground two of the appeal to this Court, is whether the Tribunal member was biased and failed to give the appellant a fair hearing and whether the primary judge erred by rejecting grounds one and two of the grounds of review to the FCCA. I accept the Minister’s submission that, to the extent that ground two of the appeal traverses these issues, it must fail. Albeit that the primary judge’s reasons were brief, he considered the appellant’s claim of bias on the part of the Tribunal and the Tribunal’s rejection of untranslated documents which the mother sought to tender at the hearing on 9 July 2015 and he did not err in rejecting those grounds.
An allegation of actual bias must be distinctly made and clearly proved: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [69] and [127]. The appellant did not provide a copy of the transcript of the proceedings of the Tribunal either to the primary judge or to this Court, even though the Court Book indicates that the appellant was provided with one under cover of a letter dated 9 July 2015. Accordingly the bias claim relies entirely on the Decision Record. While errors in reasoning and fact finding may be so egregious as to warrant an inference that the decision maker has prejudged the case to the point of being unable to decide it impartially, it is a rare and exceptional case where actual bias can be demonstrated solely by reference to the published reasons. Reasons for decision reflect conclusions reached at the end of the decision making process. The expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter gives rise to no inference as to the state of mind of the decision maker before and while the matter was under consideration, nor of prejudgment of the issues that fell for decision: SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [37]-[38] per von Doussa J.
In my view it was open to the primary judge to reject ground one of the review application; a fair reading of the Decision Record does not establish that the Tribunal member brought to his task a mind which was not open to being satisfied of the appellant’s claims and the appellant has not drawn to the Court’s attention or provided evidence of any conduct by the decision maker antithetical to the appellant’s interests such as a hostile attitude throughout the hearing. As the appellant appeared before the Tribunal at the hearing on 9 July 2015 to present evidence and arguments and was given the opportunity to comment on matters by reason of which the Tribunal might find against the appellant by way of the s 424A Letter (including findings of credit in respect of the mother and father which bear on the appellant’s application), the appellant’s complaint appears to be that he was denied a hearing in accordance with s 425 of the Migration Act because the Tribunal rejected his claims. To engage with that complaint would involve impermissible merits review. To the extent that the complaint relates to the Tribunal’s refusal to accept untranslated documents which the mother sought to tender at the hearing on 9 July 2015, the primary judge did not err in rejecting ground two of the review application to the FCCA for the reasons which he gave: see FCCA Judgment at [7]-[8], [11]-[12] and [26] above.
The next issue raised by the appellant relates to ground five, that is, the Tribunal engaged in an irrelevant line of questioning concerning the mother’s visa application rather than asking questions about the child. This ground must also fail. The mother’s credibility was directly relevant since she, as the appellant’s litigation guardian, was the source of information in relation to the appellant and his claims. It would not be appropriate to grant leave to raise this fresh ground on appeal.
The next issue is whether the Tribunal gave adequate reasons for its decision. This ground is not obviously raised in the notice of appeal. It was considered as ground three of the review application to the FCCA. The primary judge did not err when he found that such a complaint was “inconsistent with the detailed reasons of the Tribunal”: FCCA Judgment at [9] and [27] above.
The final issue, which was raised in the mother’s Personal Statement, is the complaint that she could not afford legal assistance and that it was unfair that the court did not help her find a lawyer. Regrettably, that is a position many parties to proceedings in this Court find themselves. It is not a ground for setting aside the decision of the FCCA.
DISPOSITION AND COSTS
For these reasons I will order that to the extent a ground or part of a ground in the appellant’s notice of appeal raises an issue not before the primary judge leave be refused and that the appeal otherwise be dismissed.
The Minister relied on an affidavit of Esther Louise Dwyer sworn 22 April 2016 in support of an application for costs fixed in the amount of $3,916. For the reasons set out in the affidavit, I am satisfied that an order should be made for that amount. Having regard to the fact that the appellant is a small child and the appeal was brought by his mother as his litigation guardian, I accept the Minister’s submission that it is appropriate that the mother be ordered to pay those costs.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 6 May 2016
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