DGB18 and Anor BY Their Litigaton Guardian SZSKS v Minister for Home Affairs and Anor

[2018] FCCA 3283

FEDERAL CIRCUIT COURT OF AUSTRALIA

DGB18 & ANOR BY THEIR LITIGATON GUARDIAN SZSKS v MINISTER FOR HOME AFFAIRS & ANOR [2018] FCCA 3283

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the Tribunal considered the applicants’ claims and evidence – whether the Tribunal brought an independent and impartial mind to the determination of the matter on its merits – whether the applicants had a real and meaningful hearing – 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 jurisdictional error made out – application dismissed.

Legislation:

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

First Applicant: DGB18

Second Applicant: DHE18

Litigation Guardian: SZSKS

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1747 of 2018

Judgment of: Judge Street

Hearing date: 13 November 2018

Date of Last Submission: 13 November 2018

Delivered at: Sydney

Delivered on: 13 November 2018

REPRESENTATION

The litigation guardian SZSKS appeared on behalf of the applicants.

Solicitors for the Respondents: Ms M Butler
Sparke Helmore

ORDERS

1. The application is dismissed.

2. The litigation guardian pay the first respondent’s costs fixed in the amount of $5,000.00.

DATE OF ORDER: 13 November 2018

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1747 of 2018

DGB18

First Applicant

DHE18
Second Application

SZSKS
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 4 June 2018 affirming a decision of the delegate not to grant the applicants Protection (Class XA) visas.

2. The applicants are brother and sister, aged four and three years and their mother, SZSKS, was appointed litigation guardian on their behalf for the purposes of these proceedings. The applicants are citizens of China. The applicants applied for protection on 15 October 2014.

3. The applicants parents claimed they would be forced to pay the “social compensation fees”, which they would be unable to afford. It was alleged the applicants would become unregistered “black” children and deprived of basic human rights and not entitled to public education, social welfare or health care. The applicants also claimed to fear harm based on their parents' Christian beliefs and becoming genuine Christians themselves in the future.

4. On 26 November 2015, the delegate found the applicants failed to meet the criteria for the grant of a Protection visa.

5. The application for review was made on 18 December 2015. The applicants’ parents were invited to attend a hearing before the Tribunal on behalf of the applicants on 20 November 2017. The applicants’ litigation guardian appeared on that date to give evidence and present arguments. There was also an attendance at the hearing of a migration representative.

6. The Tribunal identified having received a statutory declaration from the mother dated 10 November 2017, as well as letters from the Pastor of the Bread of Life Church, as well as letters from two other persons and photographs of church activities. The Tribunal identified that there was a certificate in the circumstance of the present case under s 438(1) of the Act that the Tribunal raised with the applicants’ litigation guardian at the hearing and identified that the Tribunal regarded it as not valid and considered the information to relate to internal working documents and business affairs and not to impact on the review application. No submissions were advanced on the issue of validity and the Tribunal proceeded on the basis that the documents were not adverse or information relevant to the application for review.

7. The Tribunal found the applicants’ litigation guardian came to Australia in February 2008, as a holder of a student visa that was valid until October 2010. The applicant's father came to Australia as the holder of a student visa in 2005. The couple commenced a de facto relationship in 2010 and are living together with four children.

8. The Tribunal identified raising with the applicants’ litigation guardian issues concerning the religious views of the children at the hearing and discussing country information in relation to the practice of Christianity. The Tribunal also referred to evidence from the pastor and that the pastor indicated he was surprised to ascertain that the couple were not married. The Tribunal also referred to two friends of the applicant's mother giving evidence in relation to the litigation guardian’s church activities.

9. The Tribunal referred to considering Department of Foreign Affairs and Trade country information that Christian religious practice is possible within state-sanctioned boundaries and that the state allows family and friends to hold small informal prayer meetings without official registration and it is estimated that there are between 70 to 100 million members of unregistered Protestant Christian believers in China.

10. The Tribunal referred to considering the evidence and material provided by the applicants through their litigation guardian and the other witnesses.

11. The Tribunal accepted that the applicant's mother had attended church and that the father may have attended from time to time. The Tribunal found there is no evidence of country information that indicates the applicants would face serious or significant harm on return to China for reasons of their parents' attendance at Christian church in Australia. The Tribunal found the applicants would not face any serious or significant harm for this reason.

12. The Tribunal referred to future religious practices of the applicants. The Tribunal found that the applicants, if they returned to China now or in the reasonably foreseeable future, will either choose not to attend church or they will attend a registered church or a small private gathering. The Tribunal found their practice will not pose a risk to the applicant children and the children will not be prevented from learning about Christian practices, as their parents may choose to educate them in those matters as they grow older.

13. The Tribunal turned to the issue of whether the children would be able to obtain household registration (hukou). The Tribunal referred to having discussed country information with the applicants’ litigation guardian in that regard. The Tribunal considered the country information at length and found that on return to the Fujian province, the applicants’ parents would be able to apply for household registration. The Tribunal found they would need to provide a copy of their household registration and the children’s’ birth certificates and a statement setting out their circumstances. The Tribunal found upon registration the applicants would have access to services in the Fujian Province, including health, education and transport.

14. The Tribunal turned to the issue of whether the parents will be required to pay a social compensation fee and summarised the applicants’ litigation guardian’s evidence and DFAT country information. The Tribunal referred to the litigation guardian’s assertions that they would not be able to pay the fee and gave those statements very little weight. The Tribunal accepted the parents may have borrowed some money from friends, but the Tribunal found the evidence does not demonstrate that they lack resources to cover their living expenses, including repayment of debts.

15. The Tribunal accepted that the applicant's parents return to China they may have to pay a social compensation fee and noted that there was flexibility in how the fees are applied. The Tribunal did not accept the assertion the parents would be required to pay a bribe in addition to the compensation fee. The Tribunal did not accept that the applicants themselves would have to pay a compensation fee.

16. The Tribunal considered that the applicants’ parents would marry and accordingly considered the applicants will not face any social stigma, as they will be children of married parents on return to China. The Tribunal was not satisfied the applicants have a well-founded fear of persecution for any Convention related reason.

17. The Tribunal was not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia and returned to China, there is a real risk they will face significant harm. The Tribunal found the applicants did not meet the criteria under s 36(2)(a) or s 36(2)(aa) of the Act and affirmed the decision under review.

Before this Court

1. These proceedings were commenced on 22 June 2018. On 16 July 2018, a Registrar of the Court made orders giving the applicants the opportunity to file 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 mother, being the litigation guardian, the nature of the hearing and the applicant's litigation guardian confirmed that she understood the explanation given by the Court.

3. From the bar table, the litigation guardian submitted that at the outset the Tribunal member had already made up her mind and alleged that the applicants had not had a fair hearing. An allegation of bias must be clearly alleged and properly proved. The Tribunal reasons reflect the Tribunal member having conducted the review with an open mind, reasonably capable of persuasion as to the merits. The Tribunal's reasons in that regard expressly refer to raising the relevant issues in respect of the applicants’ claims with the litigation guardian in the course of the evidence.

4. Further, the Tribunal's reasons reflect a real and genuine engagement with the applicant's claims and evidence. Notwithstanding the applicants’ litigation guardian’s assertion that the Tribunal ignored the evidence of the past and other witnesses, it is apparent from the summary given above that the Tribunal's reasons expressly referred to taking into account the applicants’ litigation guardian’s evidence, as well as referred to discussing issues with the pastor and referred to the evidence of the witnesses in the course of its reasons. 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 and impartial mind to the determination of the matter on its merits. No case of bias is made out on material before the Court.

5. The litigation guardian also expressed concern in relation to the children's future practice of Christianity. That was a matter expressly considered by the Tribunal as referred to above and does not give rise to any jurisdictional error as the adverse findings were open to the Tribunal.

6. The litigation guardian also submitted that the children would want to pray to God and may be at risk of harm in those circumstances. These submissions were in substance an invitation to this Court to engage in an impermissible merits review. This Court has no power to review the merits. Nothing said by the applicant from the bar table identified any jurisdictional error.

The grounds

1. The grounds of the application are as follows:

   1. I… am the mother of… who have applied for protection visas. As both the applicants’ are infants I have given evidence on their behalf at the hearing before the Tribunal. I do not believe that the Tribunal have carefully considered my children’s applications. I believe that the decision on my children’s case is absolutely incorrect.

   2. The Tribunal did not accept that I am a devout Christian due to my having children out of wedlock, despite the many other evidence. I have brought forward to prove that I am a devout Christian. Starting a family is a very circumstantial decision that is influenced by many different factors and is certainly not limited to my own religious beliefs. For the Tribunal to contest such a vague and subjective point whilst disregarding my 10 years of church participation is nothing short of a decision made out of bias.

   3. The Tribunal refuted the idea that it is dangerous for me to practice Christianity in China because they believe I can just attend Government churches. I absolutely cannot attend Government churches because they are corrupted by Government agendas. As someone who has matured as an individual and as a Christian under the guidance of western ideology of religious liberty. I have become in compatible with the restrictive Chinese religious systems. As per the DFAT country report, it is extremely dangerous to practice religion if it challenges the ideas of the Chinese communist party, but it is impossible for me not to challenge the ideas of the Chinese communist party because I have studied Christianity my entire life through the lens of religious liberty. For the Tribunal to suggest the possibility of attending government churches indicates neglecting this very important personal detail of my life and points to the bias they have shown in deciding my application.

   4. The Tribunal refuted the notion that my children would be harmed by the Government because they are too young to be religious or Christian and the Government would not find any troubles with them. The Tribunal did not mention my children being implicated by my harm from the Chinese Government due to my religion. My circumstances place my children in great jeopardy they cannot survive without my nurture and care and I am afraid I will not be able to provide it to them because of my religious beliefs.

   5. The Tribunal suggests household registration (“hukou”) is not problem for my children because DFAT country report indicates is has been made more available in recent years. The Tribunal did not consider my circumstances would make me a target for the Chinese Government and they will undoubtedly use social registration to extort and bully me. The Chinese Government is notorious for people in positions of power to abuse their power and mistreat certain citizens whom they find locking. I will undoubtedly be one of their targets.

   6. I believe the Tribunal has shown a lot of bias in assessing my situation and circumstances. They have neglected a lot of my personal information and details in their reasoning. As a result my children have unfairly ben deprived of their rights to be protected by Australian government under the UN Refugees Convention.

Ground 1

1. In relation to ground 1, the applicant asserts that the Tribunal did not carefully consider the children’s applications and asserted that the decision is absolutely incorrect. On the face of the Tribunal's reasons, the Tribunal correctly identified the relevant law. On the face of the Tribunal's reasons, the Tribunal made dispositive findings in respect of the applicant's claims that were open to the Tribunal for the reasons given by the Tribunal as summarised above. The Tribunal's reasons, as summarised above, reflect a real and genuine engagement with the applicants’ claims and evidence and the submissions advanced on their behalf. The disagreement with the adverse finding does not identify any jurisdictional error. No jurisdictional error is made out by ground 1.

Ground 2

1. In relation to ground 2, the applicants’ litigation guardian asserts the devout nature of her Christian practice and alleges the Tribunal disregarded her years of participation in the church, so as to reflect bias by the Tribunal. The Tribunal's reasons, in fact, accepted that the litigation guardian's evidence as to having attended church in Australia, but did not accept that they are devout or committed Christians. The Tribunal has found that they had demonstrated a flexible approach to their claimed Christian practices and beliefs.

2. It is apparent in that regard that the Tribunal had raised the issue of the marriage between the parents in that regard. The raising of issue in respect of the applicants parents being devout or committed Christians was a relevant matter for the Tribunal to raise and the Tribunal gave logical and rational reasons in support of its findings, including in that regard the applicants parents not being married. For the reasons earlier given, the adverse findings are not grounds that can make out the allegation of bias.

3. Further, the Tribunal, in the course of the review testing the litigation guardian’s evidence in relation to religious beliefs is not conduct by 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. No case of bias as alleged in ground 2 is made out. No jurisdictional error arises by reason of ground 2.

Ground 3

1. Ground 3 is a further allegation of bias in relation to the litigation guardian's assertions concerning the Chinese religious system and Communist Party and the potential impact on her Christian beliefs, pointing to the bias. For the reasons already given no case of bias is made out. No jurisdictional error is made out by ground 3.

2. I accept the first respondent's submission that ground 3 raises an attempt to cavil with the merits. It is apparent from the Tribunal's reasons that the Tribunal took into account country information indicating Christian religious practices were possible within the state-sanctioned boundaries. It was a matter for the Tribunal to determine what country information it accepted. The adverse findings by the Tribunal in relation to the children not being prevented from learning about Christian practice was open on the material before the Tribunal. No jurisdictional error arises in ground 3.

Grounds 4 and 5

1. In relation to grounds 4 and 5, the Tribunal considered the litigation guardian’s claims that because the authorities were aware of her religious practice, this would impact on her children's registration. The Tribunal found there was no evidence that the mother had a “bad record” in China. The Tribunal found the mother did not specifically claim that she would be targeted by the Chinese government or that the Chinese government would use social registration to extort or bully her. The Tribunal found that the applicants' mother did not have an adverse profile in China, and in these circumstances, the findings as to the ability to obtain household registration as summarised above were dispositive of the claim advanced on behalf of the applicants.

2. The Tribunal found that there was no evidence that the parents would be required to pay a bribe in addition to the official rate of the social compensation fee. No jurisdictional error is made out by grounds 4 and 5.

Ground 6

1. Ground 6 is a further generalised allegation of bias. For the reasons already given, no case of bias is made out. On the face of the material before the Court the applicants, through the litigation guardian, had a real and meaningful hearing before the Tribunal. On the face of the material before the Court, the Tribunal complied with its statutory obligations in the conduct of the review. On the face of the material before the Court, the Tribunal complied with the requirements of procedural fairness in the conduct of the review.

2. The assertion of unfairness by the applicants’ litigation guardian in ground 6 is, in substance, disagreement with the adverse findings and does not identify any jurisdictional error. No jurisdictional error as alleged in ground 6 is made out.

3. The Court notes that the Tribunal expressly raised the issue of the invalid section 438 certificate and identified the material as being irrelevant. The Court is satisfied that the applicants suffered no practical injustice by reason of the existence of a certificate or the documents subject to the certificate in the present case.

Conclusion

1. As the applications fails to make out any jurisdictional error, accordingly the application is dismissed.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 21 December 2018