Dci18 as Litigation Guardian for DCH18 v Minister for Home Affairs

[2018] FCCA 3233

FEDERAL CIRCUIT COURT OF AUSTRALIA

DCI18 AS LITIGATION GUARDIAN FOR DCH18 v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3233

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a subclass XA-866 Permanent Protection visa – whether the Tribunal considered the claims advanced by the applicant – whether the adverse findings made by the Tribunal were open to it – whether the Tribunal identified the relevant law – whether the Tribunal complied with its statutory obligations – whether the Tribunal complied with the requirements of procedural fairness – invitation to this Court to engage in impermissible merits review – no arguable case of jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.5J, 36, 476

Applicant: DCH18

Litigation Guardian: DCI18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1666 of 2018

Judgment of: Judge Street

Hearing date: 8 November 2018

Date of Last Submission: 8 November 2018

Delivered at: Sydney

Delivered on: 8 November 2018

REPRESENTATION

The Applicant’s litigation guardian appeared in person.

Solicitors for the Respondents: Ms A Nanson
Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant’s litigation guardian pay the first respondent’s costs fixed in the amount of $4,500.00.

DATE OF ORDER: 8 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1666 of 2018

DCH18

Applicant

DCI18

Litigation Guardian

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 23 May 2018 affirming a decision of the delegate not to grant the applicant child a subclass XA-866 Permanent Protection visa.

2. The proceedings were brought by the applicant’s litigation guardian in this Court, being the applicant’s mother. The applicant was born in Australia in 2013 and was found to be a citizen of China. The applicant claimed to fear harm as his parents are not married and they are liable to pay fines, including the social compensation fee in China for the applicant and his brother, due to breaches of the Chinese family planning regulations. The applicant claimed that his parents would not have financial support of their families and would be unable to pay the fees.

3. The applicant’s litigation guardian also claimed that she would be persecuted in relation to debts owed by her brother from corrupt Government officials and the applicant’s litigation guardian claimed that this would be implicated by virtue of her brother’s arrest for condemning the corruption of the district government.

4. On 18 December 2015, the delegate found the applicant failed to meet the criteria for the grant of a protection visa.

5. On 24 December 2015, the applicant, through his guardian, the applicant lodged an application for review to the Tribunal. By letter dated 18 December 2018, the applicant was invited to attend a hearing and on 8 February 2018 the applicant’s mother attended the hearing to give evidence and present arguments on behalf of her son. The Tribunal also noted that the applicant and his mother were accompanied by their migration agent at that hearing and that the hearing was conducted with the assistance of an interpreter.

6. The Tribunal, in its reasons, on 23 May 2018, identified the background to the review application and set out the relevant law. The Tribunal noted that the applicant’s parents arrived in Australia as students in 2007. The Tribunal noted that the applicant’s elder brother was born out of wedlock and outside the Chinese family planning regulations, in 2012. An application for protection by the applicant’s father, brother and mother, lodged on 22 December 2014, was unsuccessful. that The applicant stated that the mother was now pregnant with a third child and the Tribunal treated the application as concerned with the second of the three unauthorised children and fearing harm under the Chinese family planning regulations.

7. The Tribunal took into account the claim that the applicant’s parents are not yet married and will have to pay the social compensation fees so that the applicant son and his elder brother can attend school and have access to state-sourced benefits. The Tribunal raised with the applicant’s mother country information and the Tribunal was not satisfied the applicant’s parents would be prevented by the Government authorities from paying the social compensation fees for their children by instalments, nor would they be treated as an urban family. The Tribunal concluded that it was not satisfied that the imposition of social compensation fees in the case of the applicant and/or his siblings would amount to persecution either indirectly or through his parents or directly. The Tribunal found on the evidence before it that the enforcement of the family planning regulations is the subject of laws of general application directed at achieving legitimate national objective.

8. The Tribunal accepted that the applicant might face some social and administrative discrimination as long as he lacks hukou status but was not satisfied that such discrimination or difficulty would amount to persecution.

9. The Tribunal referred to the issues faced by the applicant’s mother’s brother, being the applicant’s uncle, and was not satisfied, given the unsatisfactory evidence before the Tribunal, that the applicant’s family would be implicated in the problems that he faced. The Tribunal was not satisfied the applicant’s hukou registration process would be impeded as a consequence. The Tribunal concluded that it gave no weight to the history and circumstance of the applicant’s uncle in this regard.

10. The Tribunal was not satisfied that any of the facts raised in the application give rise to a real chance of persecution in China for any of the reasons identified in s 5J(1) of the Act and found that the applicant failed to meet the criterion under s 36(2)(a) and s 36(2)(aa) of the Act. The Tribunal affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 14 June 2018. On 5 July 2018, a Registrar of the Court made orders giving the applicant an opportunity to put on an amended application, affidavit evidence and submissions. No such documents were filed.

2. At the commencement of the hearing the Court explained to the applicant’s litigation guardian the nature of the hearing and the applicant’s litigation guardian confirmed that she understood the nature of the hearing as explained by the Court.

3. From the bar table, the applicant’s litigation guardian asserted that the Tribunal had not accepted anything she had said and that the Tribunal had made its mind up at the commencement and was biased. An allegation of bias must be clearly alleged and properly proved. The applicant’s litigation guardian’s assertion that the Tribunal had made up its mind before the hearing and did not accept anything she said is inconsistent with the Tribunal’s own reasons. The Tribunal identified that it accepted that the applicant may face some social administrative discrimination while he lacks the hukou status. The Tribunal also accepted that the applicant’s mother’s brother has been jailed in a heavy-handed response to his complaint. The litigation guardian’s assertion that none of her evidence was accepted is incorrect. No transcript was put on, or any other evidence, to support the allegation of bias. On the material before the Court it is apparent that the Tribunal raised with the applicant in the course of the hearing issues in respect of the applicant’s claims.

4. The Tribunal summarised the applicant’s response in relation to matters raised by the Tribunal in the course of its reasons. On the face of the material before the Court, there is nothing to support the contention that the Tribunal did other than approach the review with an open mind reasonably capable of persuasion as to the merits. The adverse findings by the Tribunal are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent impartial mind to the determination of the matter on its merits. No case of bias as alleged by the applicant’s litigation guardian orally is made out.

5. From the bar table the applicant’s litigation guardian also complained in relation to the documentation that she had provided. It is apparent that the Tribunal did accept that there was a need to pay the social compensation fee and the litigation guardian’s assertion that all the documents provided by her were not accepted is not correct. On the face of the Tribunal’s reasons, the Tribunal made adverse findings that were open to the Tribunal for the reasons given by the Tribunal as summarised above, which cannot be said to lack an evident and intelligible justification.

6. The litigation guardian’s disagreement with the adverse findings does not identify any relevant legal error by the Tribunal. The litigation guardian’s asserted that the Tribunal was wrong in relation to the findings concerning the problem for the applicant and his mother because of the mother’s brother. It is apparent that the Tribunal considered that claim and made adverse findings that were open to the Tribunal.

7. In substance, the applicant’s submissions otherwise invited this Court to engage in impermissible merits review. This Court has no power to review the merits. No jurisdictional error is made out by anything said by the applicant from the bar table.

The grounds

1. The grounds in the application are as follows:

   Ground I do not believe that the Department and the Tribunal have carefully considered my son's application. I believe that the decision on my son's case is absolutely incorrect.

   Ground 2: My brother has been set up by… the district government… china, as well as other corrupt communist officals. As a result, my brother has been sentenced by XX for 7-year imprisonment. My brother now imprisoned in…  I believe that my partner ... and I as well as our children ... must deeply be implicated by my brother's case if we go back to China. Our livelihood and freedom must be threatened seriously. We must become victims of persecution by the Chinese government. Furthermore we must be harmed by… as well as the gangsters from “Black Society” we must also be chased by those creditor to whom my brother… has owed huge money.

   Ground 3: In support of my son's claims I have submitted a Verdict issued by Fuzhou Municipality Intermediate People's Court in relation to my brother's case to the Tribunal. Unfortunately, the Tribunal failed to take any genuine attempts to carefully consider such important documentary evidence.

   Ground 4: The Tribunal used wrong methods to assess my evidence. In particulars, the Tribunal was of a view, which is obviously incorrect, that my own families (me, my partner, and my children) would not have any problems on return as my mother did not have too many troubles due to my brother’s case, but, the circumstance between my own families and my mother are completely different. Those corrupt communise officials, as well as… and those gangsters “Black Society”, think that my partner and I must be rich with a lot of money as we have spent more than 10 years in Australia and that we are targets for them to extort a great deal of money. If we fail to satisfy their greed, than we will definitely suffer from significant harm. But, as a matter of fact, we do not have the money, because we subjected to great difficulties in Australia, however it will be impossible for us to make those corrupt communes officials, as well as… and those gangsters of “Black Society” believe us. On the contrary, the must think that we refuse them internationally. That’s why we must become victims of persecution if we return to China.

   Ground 5: Likewise, it will definitely be impossible for my children to obtain their household registers 'hu-kou', though the relevant “family plan” regulations has been changed recently, because… as well as other corrupt communist officials, will take advantage of their positions and positions to all kind of obstruction for my children.

   Ground 6: My son is a person to whom the Australian government has protection obligations according to the law. Unfortunately, his application has been refused unfairly and incorrectly. I therefore, have to appeal to the Court. I sincerely hope your honour could kindly hold the justice for my son.

Ground 1

1. In relation to ground 1, I accept the first respondent’s submission that there is no relevant material identified that the Tribunal failed to take into account in its determination of the applicant’s claims. Further, the Tribunal’s reasons support the conclusion that the Tribunal considered all of the evidence that was before it and the applicant’s submissions and that the Tribunal made dispositive findings in respect of those claims. The adverse findings by the Tribunal cannot be said to lack an evident and intelligible justification given the reasons provided by the Tribunal as summarised above.

2. The Tribunal identified, in relation to the applicant’s uncle’s troubles that the evidence in that regard and submissions were speculative and depend on inconsistent claims. This reasoning was logical and reasonable. The disagreement with the Tribunal’s adverse finding does not identify any jurisdictional error. No jurisdictional error is made out by ground 1.

Ground 2

1. Ground 2 raises the applicant’s litigation guardian’s concern in relation to being implicated in the applicant’s uncle’s case if sent back to China. The Tribunal expressly considered the evidence in relation to the applicant’s uncle and made an adverse finding that was open as referred to above. The Tribunal referred to the confused and inconsistent evidence before it and was not satisfied as to the credibility of those claims. This reasoning was logical and reasonable.

2. The Tribunal did accept that the applicant’s uncle had been jailed in a heavy-handed response to his complaint and was prepared to accept that the jail term had been extended. The Tribunal referred to not being satisfied on the evidence before the it that the government official’s, or his contacts in Government or the underworld, are pursuing or otherwise harassing the applicant’s family or anyone else related to the applicant or that they will do so in the event of the applicant’s family returning to China. The Tribunal was not satisfied on the evidence before it that the government official and his contacts have any potential or significant links with the uncle’s creditors or their debt collectors.

3. The Tribunal was not satisfied on the evidence before it that the mother’s family has been implicated in the applicant’s uncle’s debts or other misfortunes. The Tribunal was not satisfied that the applicant’s mother had been changing her address, let alone in order to avoid unwanted attention. The Tribunal was not satisfied that any of the uncle’s alleged antagonists have any capability, or even interest in, preventing the applicant from becoming hukou registered. It was in those circumstances that the Tribunal did not accept that the uncle would impact on the applicant’s prospects of being hukou registered.

4. Those adverse findings by the Tribunal were rational and logical. Otherwise, ground 2, in substance, invites this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 2.

Ground 3

1. In relation to ground 3, this further raises the issue concerning the brother’s case. It is apparent the Tribunal accepted that the brother had been jailed and that his term had been extended. Those matters do not identify any relevant error in the adverse finding in respect of the applicant’s claims. Ground 3, again, is in substance an invitation to this Court to engage in impermissible merits review. No jurisdictional error is made out by ground 3.

Ground 4

1. In relation to ground 4, no method is identified by the applicant in relation to what it is that was said to be wrong in the assessment of the applicant’s evidence. It was a matter for the Tribunal to determine whether or not to accept the evidence adduced by the applicant’s mother and to make credibility findings in that regard. On the face of the material before the Court, the Tribunal correctly identified the relevant law and made findings that were open to the Tribunal on the material before the Tribunal as summarised above. No jurisdictional error is made out by ground 4.

Ground 5

1. In relation to ground 5, the applicant’s litigation guardian’s assertion of impossibility to obtain the hukou was the subject of a different finding by the Tribunal. That adverse finding by the Tribunal was open to the Tribunal and the applicant’s disagreement with the same does not identify any jurisdictional error. In substance, ground 5 appears also to be inviting this Court to engage in impermissible merits review. This Court has no power to review the merits. No jurisdictional error is made out by ground 5.

Ground 6

1. Ground 6 asserts that the application has been refused unfairly and incorrectly. On the face of the material before the Court the Tribunal complied with its statutory requirements in the conduct of the review. Further, on the face of the material before the Court the Tribunal complied with its obligations of procedural fairness in the conduct of the review. Further, the Tribunal correctly identified the relevant law and ground 6, in substance, appears to be a disagreement with the adverse findings and does not identify any relevant error by the Tribunal. Ground 6 is in substance an invitation to this Court to engage in impermissible merits review. This Court does not have power to review the merits. No jurisdictional error as alleged in ground 6 is made out.

Conclusion

1. The application fails to make out any jurisdictional error. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 13 December 2018