DGB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] FedCFamC2G 72
Federal Circuit and Family Court of Australia
(DIVISION 2)
DGB18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FedCFamC2G 72
File number(s): SYG 1747 of 2018 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 8 February 2023 Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision of the Administrative Appeals Tribunal (Tribunal) affirming a decision not to grant protection visas to two minors born in Australia to nationals of the People’s Republic of China – whether the Tribunal considered or actively considered applicants’ claims – whether findings the Tribunal made were reasonably open to it – application dismissed. Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 36(2)(aa), 414, 476 Cases cited: Bondelmonte v Bondelmonte [2017] HCA 8
DGB18 v Minister for Home Affairs [2019] FCA 1034
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176
Division: General Number of paragraphs: 60 Date of last submission/s: 3 December 2021 Date of hearing: 2 December 2021 Place: Sydney The Applicants: Litigation guardian on behalf of the applicants, assisted by an interpreter, by telephone Counsel for the First Respondent: Mr N Swan, by telephone Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS
SYG 1747 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DGB18
First Applicant
DHE18
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE MANOUSARIDIS
DATE OF ORDER:
8 February 2023
THE COURT ORDERS THAT:
1.The name of the first respondent be changed to “Minister for Immigration, Citizenship and Multicultural Affairs”.
2.The application is dismissed.
3.SZSKS, as litigation guardian of the applicants, pay the first respondent’s costs set in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
introduction
The two applicants, DGB18 and DHE18, are brother and sister. DGB18 was born in Australia in 2013, and DHE18 was born in Australia in 2014. Their parents (Parents) are nationals of the People’s Republic of China (PRC). Through their mother (Mother), who has been appointed their litigation guardian, the applicants seek remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision made by the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visas).
Claims for protection
On 15 October 2014 the applicants, through the Parents, each lodged an application for a Protection visa.[1] DHE18 stated her claims for protection in answers given to questions 43-48 of the prescribed form.[2] DHE18 claimed as follows:
(a)The Parents are citizens of the PRC. The Mother arrived in Australia in 2008 as the holder of a student visa, and DHE18’s father arrived in Australia in 2005, also as the holder of a student visa. DHE18 was born in 2014, and is the third child of the Parents.
(b)Both DHE18 and her brother, DGB18, are not willing to go to the PRC. Owing to the “Family Plan” or “Birth Control” policy, DHE18 “must be forced to pay a fine, which is “social compensation fees””. Because the Parents have not yet had their marriage legally registered, the social compensation fee for DHE18’s sister could be 60% to 100% of the average annual income; the social compensation fee for DGB18 could be two to three times the average annual income; and the social compensation fee for DHE18 could be four to six times the average annual income. Supposing the average annual income for rural residents was RMB7,427 for 2010, based on data from the Fujian Statistical Yearbook, the total compensation fee that DHE18, DGB18, and their sister would have to pay would be between RMB49,018 to RMB74,270.
(c)DHE18 does not believe that the total compensation fees will be between RMB49,018 to RMB74,270. The Mother has a good friend who, in 2014, returned to her hometown in Fujian Province with her husband and three children. When the Mother’s friend tried to register her three children she was asked to pay RMB180,000 in total compensation fees. The Mother’s friend also had to give “Hong-bao”, being a “[r]ed paper bag containing money as a gift”, to the officials in the township and the village committee, as well as to the local police station. It was indicated to the Mother’s friend that the money in each “Hong-bao” should not be less than RMB20,000. The Mother’s friend told the Mother she needed to spend at least RMB300,000. The Mother’s friend also said she was threatened to get sterilized. The Mother’s friend had to leave her hometown with her husband and three children, and “they are currently living a vagabond life”.
(d)The Parents will be unable to afford compensation fees of between RMB49,018 to RMB74,270. The Mother does not work because she remains at home looking after the children. DHE18’s father gets casual jobs, working as a removalist, or dish washer at kitchens, or as a gyprocker on construction sites. His income is “low, limited, and unsecured”. The whole family is subjected to serious financial hardship; they have to borrow money, and seek support from friends.
(e)If DHE18’s family return to the PRC, the Parents do not have money to pay the compensation fees. That means DHE18, DGB18, and their sister will not be able to obtain their household registration, and they will become unregistered children, who are also known as “black children”. As black children, DHE18, DGB18, and their sister will be deprived of their basic human rights. They will not become entitled to public education, and will be blocked from access to basic social welfare benefits, and state support, including healthcare.
(f)The Parents had previously applied for protection visas, but the decision maker, particularly the Refugee Review Tribunal (RRT), made its decisions based on regulations and information published by the PRC government agencies; but “Chinese government are very corrupt”; and few officials or police genuinely respect or abide by the laws or regulations. Further, the RRT “supposed, without giving any evidence”, that the Parents have skills, and that they could quickly find work and earn money to pay the fine immediately on their return to the PRC.
(g)DHE18, DGB18, and their sister all come from a Christian family, as the Parents are faithful Christians. There is no genuine freedom of religious belief in the PRC. DHE18, DGB18, and their sister will be subjected to persecution due to their particular religious beliefs.
[1] CB69; CB95
[2] CB102-CB105
DGB18 stated his claims for protection in a statutory declaration made on 17 October 2014.[3] DGB18 there states that he was born in 2013; he has an older sister and a younger sister (that is, DHE18); DGB18 and DHE18 have lodged applications for Protection visas, noting that “[w]e have stated our claims in details [sic] in the Form C of my younger sister”; DGB18 and DHE18 cannot go to the PRC because they will become “black children” and will thus be deprived of their basic human rights; and DGB18 and DHE18 come from a Christian family and will be persecuted in the PRC because there is no genuine freedom of religious belief in the PRC.
[3] CB133
The applicants supported their claims with a number of documents. These included a letter from a senior pastor of a church confirming the Parents, and their children, have been coming to the church since 2008, and that the Parents have been baptised.[4] The applicants further supported their claims with three documents each headed “Statement of the Loan” which purport to be translations of statements made by three different people that have lent money to the Parents (Loan Statements).[5] The applicants provided additional documents in support of their application for review by the Tribunal. These included a letter from a reverend of a church, and letters from other members of the church, attesting to the applicants and their family being church members and Christians.[6]
[4] CB161
[5] CB162-164
[6] CB229-232
tribunal’s reasons
The Tribunal was satisfied the applicants are both citizens of the PRC.[7]
[7] CB255, [27]
Claims based on religion
The Tribunal accepted the Mother has attended a Protestant Church in Australia, and that the applicants’ father may have attended from time to time.[8] The Tribunal concluded, however, on the basis of country information, that the applicants would not face serious or significant harm on their return to the PRC because the Parents had attended a Christian church in Australia.[9] As for the future religious practices of the applicants, the Tribunal found they are not old enough to form independent and committed religious beliefs, even though they may have attended church with the Parents. If, however, the Parents wish to continue their Christian practices in the PRC, available country information indicates they will be able to practise as Christians in the PRC in either one of the many registered Christian churches, or in an informal setting in a private religious gathering.[10]
[8] CB257, [55]
[9] CB257-258, [55]
[10] CB257, [56]
The Tribunal noted the Parents have been “quite pragmatic in their approach to religious practice”. The Tribunal referred to the Parents having had “four children”,[11] but nevertheless have chosen not to get married because the applicants’ father’s parents are not supportive of the marriage.[12] In any event, the Tribunal did not accept the Parents are devout or committed Christians; and that is because they have “demonstrated a flexible approach to their claimed Christian practices and beliefs”.[13] The Tribunal found that if they return to the PRC now or in the reasonably foreseeable future, the Parents will either choose not to attend church, or they will attend a registered church, or a small private gathering; and this practice will not pose a risk to the applicants, and the applicants will not be prevented from learning about Christian practice as the Parents may choose to educate them in those matters as the applicants grow older.[14]
[11] As I note below, the Tribunal accepted the Parents now have four children.
[12] CB257, [56]
[13] CB258, [57]
[14] CB257, [57]
Claims based on inability to obtain household registration
The Tribunal accepted there is no evidence the Parents have married in Australia, that the Parents now have “four children”; and, for these reasons, the Parents appear to have violated the current family planning regulations that apply in Fujian Province, which is the place of their household registration (hukou).[15] The Tribunal also accepted that the applicants have birth certificates which show the identity of their mother and father, namely, the Parents;[16] and that the Parents have household registration in Fujian Province.[17]
[15] CB258, [58]
[16] CB261, [71]
[17] CB261, [72]
On the basis of these findings, and the country information to which the Tribunal referred, the Tribunal concluded that, on their return to Fujian Province, the Parents will be able to apply for household registration for the applicants irrespective of the circumstances of their birth; and that, on their being registered, the applicants will have access to services in Fujian Province, including access to health, education, and transport.
Claims based on compensation fee
The Tribunal accepted that if the Parents return to the PRC they may have to pay a social compensation fee; but it noted that local officials have considerable flexibility in how to apply those fees because they have power to exempt persons from paying fees, or to permit persons to pay fees by instalments, depending on the circumstances of the parents. The Tribunal did not accept that the Parents will be required to pay a bribe in addition to the official rate of the compensation fee.[18]
[18] CB263, [77]
The Tribunal gave very little weight to the Loan Statements. The Tribunal noted the persons who made the Loan Statements did not give evidence at the hearing before the Tribunal, and the Loan Statements did not set out the arrangements for repayment and the nature of the financial relationships.[19] The Tribunal also noted that the Mother agreed the Parents had been able to fund their lifestyle in Australia, but she claimed that they had the assistance of friends which the Parents would not be able to access in the PRC. The Tribunal further noted, however, that the Mother “could not explain why her friends could help her in Australia, but not if she returned to China”.[20]
[19] CB263, [76]
[20] CB262, [73]
Finally, the Tribunal noted that, although the applicants claimed they would be liable to pay the compensation fee, it was the Parents who would be liable to pay the compensation fee.[21]
[21] CB262, [78]
Conclusions
Given its findings, the Tribunal did not accept there is a real chance the applicants will face harm for reasons of their membership of a particular social group of “out of plan” children, or because of religion, if they return to the PRC now or in the foreseeable future.[22] The Tribunal was also not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of either of the applicants being removed from Australia to the PRC there is a real risk they will face significant harm.[23] The Tribunal, therefore, was not satisfied the applicants satisfy the criteria for a Protection visa as provided for by s 36(2)(a) and s 36(2)(aa) of the Act.
[22] CB264, [82]
[23] CB264, [88]
grounds of application
The application on which the applicants rely was prepared by the Mother, who is not legally represented, but was assisted by an interpreter. The following appears in the application under the heading “Grounds of application” (errors in original):
1.I . . . am the mother of [DGB18] and [DHE18] who have applied for protection visas. As both [DGB18] and [DHE18] 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 incompatible with the restrictive chinese religious systems. As per the DFAT country report, it is extremely dangerous to practise 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 because 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 a 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 been deprived of their rights to be protected by Australian government under the UN Refugees Convention.
At the hearing before me the Mother made the following submissions:
(a)The Tribunal was quite cursory in making the judgment the Mother is not a pious Christian. The Tribunal overlooked the evidence given by the Mother’s “priest or pastors”.[24]
(b)The Tribunal referred to a lot of relevant country information, but it failed to comprehensively take into account this information. I asked the Mother whether she could identify the information the Mother submitted the Tribunal did not take into account. The Mother responded as follows:[25]
. . . Basically there was a piece of information which says if you didn’t challenge the interests of the Chinese Communist Party, normally – sorry, you would run into trouble.
(c)The applicants would be subjected to the control of the Chinese Government because the Chinese Government controls and monitors patriotic churches.
[24] T8.20
[25] T8.45
The Mother said she wanted to provide information in relation to the applicants’ religious education. I granted the Mother leave to provide such information. The Mother sent an email to the Minister’s lawyers (which was on-forwarded to my associate’s email address) that attached the first page of a student report issued by a Catholic School for each of DHE18 and DGB18, and a page from each of those reports recording their achievements in religious education.[26] DHE18 was assessed as having achieved a thorough development of religious concepts, knowledge, and skills, and an “outstanding” assessment for student effort. DGB18 was assessed as having achieved a sound development of religious concepts, knowledge, and skills, and a “commendable” assessment for student effort.
[26] I have marked the email and attachments in chambers as “MFI-1”.
I will now consider each of the grounds contained in the application, and the submissions the Mother made at the hearing.
Ground 1
Ground 1 makes two claims. The first is that the Tribunal’s decision is incorrect. That does not disclose a ground on the basis of which this Court can set aside the Tribunal’s decision. This Court’s jurisdiction is limited to determining whether the Tribunal made a jurisdictional error in deciding to affirm the delegate’s decision. The Court does not have jurisdiction to determine whether the Tribunal was incorrect or correct in affirming the delegate’s decision, or in making or failing to make findings on which it relied in affirming the delegate’s decision.
The second claim ground 1 makes is that the Tribunal did not carefully consider the applicants’ claims. In exercising its jurisdiction under s 414(1) of the Act to review the delegate’s decision, the Tribunal was bound to examine, scrutinise, fix its mind, and reflect on the applicants’ claims for protection that were before it;[27] and it was bound to “give proper, genuine and realistic consideration” to the material before it.[28] The Mother did not identify material or evidence that was before the Tribunal which she submits the Tribunal did not properly consider; and for that reason alone I would not be satisfied the Tribunal did not carefully consider the applicants’ claims.
[27] Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114, at [32]
[28] Bondelmonte v Bondelmonte [2017] HCA 8, at [43]
In any event, I am satisfied the Tribunal did consider carefully the applicants’ claims. That is apparent from the Tribunal’s reasons. The Tribunal identified the applicants’ claims; it identified the evidence the Parents and others had given about the Parents’ religious practices; it recorded its discussion with the Parents at the hearing about country information relating to practices and regulations of Christianity in the PRC, and about the Parents not being married; the Tribunal described the evidence the pastor gave, and recorded questions the Tribunal asked of the pastor; the Tribunal referred to the evidence given by two other persons about the Parents’ religious practices; the Tribunal considered what religious practices the Parents and the applicants would follow if they returned to the PRC; the Tribunal identified country information in relation to the registration of children who have been born in circumstances that would attract the imposition of a social compensation fee; and the Tribunal records asking the Mother questions about the ability of the Parents to fund their lifestyle in Australia, and their lifestyle in the PRC if the Parents and applicants were to return to the PRC.
Ground 1, therefore, fails.
Ground 2
Ground 2 is directed to the Tribunal’s findings in relation to the applicants’ claims based on the Parents being Christians. This ground may be taken to make a number of claims. One is that the Tribunal failed to consider the evidence that was relevant to the Parents’ Christian beliefs and practices. Another is that it was not reasonably open to the Tribunal to find, on the material that was before it, that the Parents are not devout or committed Christians. A third claim is that the Tribunal was biased in not accepting the Parents were committed and devout Christians.
None of these claims can be made out.
(a)As I have already noted, the Tribunal identified and considered the evidence, including country information, that was relevant to assessing the Parents’ religious practices in Australia, the Christian practices the Parents might adopt if they return to the PRC, whether the Parents would face a serious risk of harm if they engaged in such practices in the PRC, the religious practices to which the applicants will be exposed if they return to the PRC, and whether the applicants face serious or significant risk of harm on their return to the PRC because the Parents had attended a Christian church in Australia or because of the religious practices they might adopt on their return to the PRC.
(b)It was reasonably open to the Tribunal, on the material that was before it, and for the reasons it gave, to find that the Parents’ attitude to Christianity was pragmatic, and that they were not devout or committed Christians. The principal basis of that finding was the Parents having not married, even though they have four children. The Tribunal recorded in its reasons the explanation the Mother gave for not having married, namely, the Parents “had an issue with her partner’s parents”,[29] but noted that the Tribunal put to the Mother that, if the Parents were devout Christians it would expect that their Christian obligations would outweigh the objections of the Mother’s partner’s parents. The Tribunal also recorded that the pastor of the Parents’ church was surprised the Parents were not married, and that the pastor said the church taught that marriage was sacred and that Christians had to marry; although the Tribunal also noted that the pastor said that in Chinese culture it was important to obtain parental approval.[30] In DGB18 v Minister for Home Affairs (which I consider later in these reasons) Wigney J described the Tribunal’s findings and reasoning as “somewhat flimsy”, [31] although his Honour concluded they were findings it was rationally open to the Tribunal to make.[32] I would not characterise the Tribunal’s findings and reasoning as “somewhat flimsy” or “flimsy”. The evidence before the Tribunal revealed that the Parents did not do that which their Christian faith considered to be sacred and obligatory, namely, marry in circumstances where they have four children, only because the applicants’ father’s parents did not approve of the Parents getting married. It is well within the realm of reasonableness and rationality to characterise a person who claims to be a Christian, but who does not abide by what that religion considers to be the sacred and obligatory act of marriage, because of parental opposition to marriage, to be a pragmatic, rather than a devout and committed, Christian.
(c)The only apparent basis on which the Mother claims the Tribunal was biased is her disagreement with the Tribunal’s findings. That by itself is incapable of supporting a finding of bias, actual or apprehended.
[29] CB257, [47]
[30] CB257, [49]
[31] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [52]
[32] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [70], [71]
For these reasons, ground 2 also fails.
Ground 3
Ground 3 is directed to the Tribunal’s conclusion that the Parents will be able to practice Christianity if they return to the PRC. The ground makes three sets of claims.
First, ground 3 makes a number of factual assertions (Ground 3 Assertions), namely the Mother “cannot attend Government churches because they are corrupted by Government agendas”; the Mother has “become incompatible with the restrictive chinese [sic] religious systems”; it is impossible for the Mother not to challenge the Chinese Communist Party because she has studied Christianity all her life through the lens of religious liberty; and “[a]s per the DFAT country report, it is extremely dangerous to practise religion if it challenges the ideas of the chinese [sic] communist party”. These claims disclose no jurisdictional error because they appeal to the merits of the applicants’ claims for protection.
Second, ground 3 claims the Tribunal neglected the Ground 3 Assertions. This implies the Mother made claims to the Tribunal to the effect of the Ground 3 Assertions. The Tribunal’s reasons do not record the Mother making any claims to that effect. The Tribunal records that it discussed with the Mother country information about Christians in Fujian Province as follows:[33]
The Tribunal discussed country information on the situations for Christians in Fujian Province. It noted information in the last reports prepared by the Department of Foreign Affairs on Fujian and China that; many millions of people practise Christianity in China, that state authorities in Fujian are fairly tolerant of Christian practice and that group Bible study in private homes takes place without difficulty. Further the Tribunal put it to the applicants’ mother that the children are too young to face any harm for reasons of their parents’ religious practices and there is no country information which suggests that the Chinese authorities would harm minor children for this reason.
The applicants’ mother stated the children attend Sunday school and learn how to invite other children to church. They sing hymns, say prayers and say grace. She also stated that whilst on the surface the Chinese authorities allow Christian churches that they try to impose their own controls on religion.
The applicants’ mother stated that the children’s religious practices and beliefs would be restricted in China. If they remain in Australia they can be baptised and grow in the Christian religion and do God’s work.
[33] CB256, [43]-[45]
It is the case that before the delegate the Mother claimed “she would not go to a government church in China”; and that in response to the delegate informing her that country information showed that “most Christian groups in China are not registered, but such groups and their activities have continued to expand, and they no longer operate in strict secrecy”, the Mother said “that it was impossible”.[34] These statements, however, are largely consistent with the statements the applicant made to the Tribunal as recorded in the passage I have reproduced.
[34] CB184
I make the following findings:
(a)I am not satisfied the Mother in terms claimed that she “cannot attend Government churches because they are corrupted by Government agendas”, although it is reasonable to infer, and I find, that the Tribunal understood the Mother to have made a claim substantially to that effect by stating that “whilst on the surface the Chinese authorities allow Christian churches that they try to impose their own controls on religion”.
(b)The Tribunal considered the assertion made in (a) because the Tribunal referred to the Mother’s response to the country information the Tribunal put to the Mother, and also because the Tribunal found that on their return to the PRC the Parents “will either choose not to attend church or will attend a registered church or a small private gathering”.[35]
(c)I am not satisfied the Mother claimed she has “become incompatible with the restrictive chinese [sic] religious systems”; or that it is impossible for the Mother not to challenge the Chinese Communist Party because she has studied Christianity all her life through the lens of religious liberty.
(d)To the extent the Tribunal did not consider claims to the effect of the assertions in (c), the Tribunal made no jurisdictional error because the Mother made no claims to the effect of the assertions in (c).
(e)To the extent the Mother made a claim to the effect of “[a]s per the DFAT country report, it is extremely dangerous to practise religion if it challenges the ideas of the chinese [sic] communist party”, the Tribunal did consider that claim by referring to, and making findings on the basis of, the country information it identifies in its reasons for decision.
[35] CB258, [57]
The third claim ground 3 makes is that the Tribunal was biased. The basis of that claim is the Tribunal’s finding it was possible for the Mother to attend government churches in the PRC. That by itself is incapable of supporting a claim of bias, or a reasonable apprehension of bias.
For these reasons, ground 3 also fails.
Ground 4
Ground 4 claims the Tribunal did not consider the applicants could be implicated because of the harm to which the Mother claimed she would be exposed because of her Christian faith. I do not accept that claim. The Tribunal did consider whether the applicants faced harm because of the Parents’ Christianity. The Tribunal did so in the section headed “Will the applicants face harm due to their parents’ involvement in a church in Australia”.[36] The Tribunal in terms found that the applicants “would not face any serious or significant harm for this reason”, namely, because of the Parents attendance of a Christian church in Australia. The Tribunal also made findings relevant to whether the applicants face the risk of serious or significant harm having regard to what the Parents will do on their return to the PRC. The Tribunal found that on their return to the PRC the Parents “will either choose not to attend church or will attend a registered church or a small private gathering”; and that their “practice will not pose a risk to the applicant children and the children will not be prevented from learning about Christian practice as their parents may choose to educate them in those matters as they grow older”.[37]
[36] CB256-258, [41]-[57]
[37] CB258, [57]
Ground 4, therefore, fails.
Ground 5
Ground 5 claims the Tribunal did not consider the Mother’s circumstances that would make her a target for the Chinese government who “will undoubtedly use social registration to extort and bully” the Mother. That is incorrect. The Tribunal considered the religious practices the Parents would engage in if they return to the PRC; whether the Parents had the documents they required to ensure the applicants would obtain their hukou; and whether the Parents will be in a position to meet any social compensation fee the authorities in Fujian Province may impose on them.
Ground 5 also makes claims about the abuse of power by the PRC government. These claims are incapable of supporting a finding of jurisdictional error because they appeal to the merits of the applicants’ claims for protection.
Ground 5 also fails.
Ground 6
This ground claims the Tribunal has shown bias in assessing the Mother’s situation and circumstances, and it neglected “a lot” of the Mother’s personal information and details. The ground does not identify the circumstances and personal information the Tribunal is said to have neglected to consider. For that reason alone, ground 6 fails. In any event, for reasons I have already given, the Tribunal considered the applicants’ claims, including the circumstances and information relating to the Mother as was relevant to assess the applicants’ claims for protection.
Mothers’ submissions at the hearing
None of the three submissions the Mother made at the hearing can be established or otherwise disclose jurisdictional error. As to the first of the three submissions the Tribunal considered the evidence that was relevant to whether the Parents were devout and committed Christians; and the Tribunal’s findings the Parents were not devout and committed Christians was a finding it was reasonably open to the Tribunal to make for the reasons it gave.
As for the second submission, the Mother did not identify the country information she submitted the Tribunal had failed to take into account other that a “piece of information which says if you didn’t challenge the interests of the Chinese Communist Party . . . you would run into trouble”. [38] I infer that the Mother intended to refer to paragraph 3.24 of the DFAT Country Report to which the Tribunal refers in footnote 9 of its reasons.[39] That paragraph is as follows:[40]
Broadly speaking, religious practice in China is possible within state-sanctioned boundaries, as long as such practices do not challenge the interests or authority of the Chinese government. Restrictions on religious organisations vary widely according to local conditions, making it difficult to generalise. Those who practise their faith in unregistered institutions are more vulnerable to adverse official attention than those in registered institutions. Public expressions of faith are more vulnerable to adverse treatment than private worship (including in small groups). Religious practice that the government perceives as being connected to broader ethnic, political or security policies is at high risk of adverse official attention.
[38] T8.45
[39] CB257, [53]
[40] Affidavit of K Nash 18.11.2021, page 20
The Tribunal did take into account this information, together with other country information:[41]
The Tribunal has considered the country information indicating that Christian religious practice is possible within state-sanctioned boundaries, that the state allows family and friends to hold small informal prayer meetings without official registration and that it is estimated that there are between 70-100 million members of unregistered Protestant Christian believers in China.
[41] CB257, [53]
The third submission the Mother made is an appeal to the merits of the applicants’ claims for protection and therefore is incapable of establishing jurisdictional error.
Finally, I note that the assessment of the applicants’ religious education the Mother submitted after the hearing is not relevant to whether the Tribunal made a jurisdictional error. The material was not before the Tribunal at the time it made its decision; and the material is in any event an appeal to the merits of the applicants’ claims for protection.
other matters
At the hearing the Minister read an affidavit of Ms Nash made on 18 November 2021 annexing the country information to which the Tribunal referred in its decision. Counsel for the Minister read the affidavit for the purpose of addressing a concern Wigney J expressed in DGB18 v Minister for Home Affairs, [42] being a judgment his Honour delivered in upholding an appeal the applicant brought against the orders made by another Judge of this Court, that the country information was not before the Court.[43] I read the affidavit on the basis that I would “[h]ave a look at what Wigney J says in any detail, and satisfy myself that nothing arises, or if something arises, I will notify the Minister”.[44] I then explained to the Mother what I proposed to do with the affidavit as follows:[45]
[42] DGB18 v Minister for Home Affairs [2019] FCA 1034
[43] DGB18 v Minister for Home Affairs [2019] FCA 1034
[44] T6.25
[45] T6.45-7.40
HIS HONOUR: Now, Ms Applicant, there is a very large affidavit that has been filed by the Minister, and by large – and, sorry, by large, I mean the affidavit itself is short, but what it has annexed to it is what’s called a country information report on the People’s Republic of China, which is published by the Department of Foreign Affairs & Trading. Have you seen that affidavit?
THE INTERPRETER: No, I do not – I haven’t.
HIS HONOUR: All right. Well, whether you’ve received it or not, I will just put that aside for the time being. Let me just explain to you. The country information report is a report which sets out information about the People’s Republic of China. Now, from [what] Mr Swan tells me, the Minister does not believe that this information is relevant to any of the grounds that you have stated in your application, and subject to anything you might say today, Mr Swan says he does not propose to rely on it. Mr Swan – and you will have heard this, but if – you might not fully comprehend it – what is said. When your matter was in the Federal Court before Wigney J, Wigney J expressed some concern that this report was not before this court.
What I have suggested I will do is to read carefully what Wigney J has said about this particular information, and see if any issue arises – sorry, I withdraw that, and see whether that might give rise to some issue about what the tribunal has done. Now, by that, I don’t mean I’m going to look at it as a lawyer that you retained – or might retain will look at it – that is to say, try and find some error. All I propose to do, subject to any objection you might have, is, as I said before, look at what – and understand what Wigney J has said about this information, and as I said, look at the material and see if there’s any obvious issue that arises.
If no obvious issue arises, that will be the end of my consideration of this information. If, on the other hand, some issue arises, I will be bound, from consideration of fairness, to raise any such issue with the Minister so that the Minister can have an opportunity to say something about any issue I might identify. So have you understood everything I have said so far, Ms Applicant, about this information and this – about this information?
THE INTERPRETER: Yes.
HIS HONOUR: So my next question to you is, do you have any objection to my doing what I propose to do in relation to this information?
THE INTERPRETER: No objection.
HIS HONOUR: All right. Well, Mr Swan, I’m assuming from you’re saying nothing that you’re content for me to proceed as I have explained it?
MR SWAN: Yes, I am, thank you.
Given the basis on which I read the affidavit of Ms Nash, it will be necessary to consider Wigney J’s reasons for judgment in DGB18 v Minister for Home Affairs.
Wigney J’s reasons for judgment
As I have already noted, the subject of Wigney J’s reasons for judgment was an appeal against the dismissal by a Judge of this Court (Primary Judge) of each of the six grounds of application I have reproduced above.[46] Wigney J noted the applicants had advanced on appeal three main contentions or arguments.[47]
(a)The Primary Judge erred in not accepting the applicants’ contention that the Tribunal had not properly or carefully considered the evidence of the witnesses that were called in support of the applicants’ case.[48] Wigney J held that this ground could be characterised as a contention that the Tribunal failed to give genuine or realistic consideration to the evidence, or that the Tribunal’s relevant finding was unreasonable, illogical or not supported by the evidence; and that the Primary Judge erred in finding to the contrary.[49]
(b)The Tribunal erred in its consideration of country information relating to the practice of Christianity in the PRC.[50] The applicants contended that the Tribunal erred in its treatment of the country information because it chose what parts of the country information it would rely on and ignored or disregarded other parts on its “own taste” or “on its own discretion”.[51]
(c)The Tribunal erred in concluding that the applicants could practise their Christianity should they be returned to the PRC in a way which would not pose a risk to the applicants.[52] Wigney J took the applicants to have contended that “the Tribunal’s findings concerning the [applicants] and [the Parents] being able to safely attend government churches was not open to the Tribunal and that the Tribunal had ignored both the DFAT country report and the [Mother’s] claim that she could not attend “Government churches””.[53]
[46] These are also set out in DGB18 v Minister for Home Affairs [2019] FCA 1034, at [24]
[47] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [34]
[48] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [36]
[49] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [39]
[50] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [43]
[51] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [45]
[52] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [47]
[53] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [87]
First contention on appeal
In relation to the first contention, Wigney J:
(a)found that the “Tribunal’s reasons for finding that the [Parents] were not devout Christians were, on almost any view, somewhat flimsy and unpersuasive”, and the same could be said about the Tribunal’s finding that the Parents’ “practise of Christianity was flexible and pragmatic”;[54]
(b)said it was “not difficult to see why the [Mother] feels aggrieved by the Tribunal’s findings and reasoning in relation to this issue”;[55]
(c)found there is “nothing in the Tribunal’s reasons to suggest that the Tribunal in any way put to the [Mother] that her practise of Christianity was flexible and pragmatic, or that if returned to [the PRC] she would either choose not to attend church, or would attend a registered church or small private gathering”;[56] and
(d)the Primary Judge’s “reasoning in relation to the contentions concerning the finding that the [Parents] were not devout Christians and had practised their religion flexibly or pragmatically really amounted to little more than a series of broad and general statements or conclusions”.[57]
[54] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [52]
[55] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [52]
[56] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [56]
[57] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [60]
Wigney J then considered whether “the Tribunal erred in a jurisdictional sense in finding, in effect, that if the [Parents] returned to [the PRC], they could and would practise their religion in a way which would not give rise to any chance that the [applicants] would be persecuted or any risk that the [applicants] would suffer significant harm”;[58] and his Honour found the Tribunal did not so err:[59]
While the Tribunal’s reasons concerning those findings are flimsy and somewhat unpersuasive, it cannot be concluded that the Tribunal simply ignored or failed to consider the evidence of the [Mother], the pastor and the two fellow churchgoers concerning the [Parents’] attendance at church and Christian faith. Nor can it be concluded that the Tribunal did not actively engage with the relevant evidence, or give it “proper, genuine and realistic” consideration: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [35]-[36] and the cases there cited. It would appear from the Tribunal’s reasons that it basically accepted all of the evidence concerning the [Parents’] attendance at church for many years and their apparent commitment to the Christian faith, but nonetheless found that the fact that they were not married cast sufficient doubt on their level of commitment that it justified the findings that were made. In other words, the Tribunal genuinely considered the evidence of the [Mother], the pastor and the two fellow churchgoers, but found that it was relevantly outweighed by the considerations which were said to arise from the fact that the [Parents] remained unmarried in apparent conflict with the teachings of the church.
It follows that the primary judge did not err in rejecting the contention advanced on the [applicants’] behalf that the Tribunal had misstated, or ignored, or not properly considered the evidence which was adduced in relation to the [Parents’] practise of religion in Australia.
[58] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [61]
[59] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [62], [63]
Next, Wigney J considered the “different and more difficult question” of whether “the Tribunal’s findings in relation to the [Parents’] faith and religious practises were irrational or illogical”;[60] and his Honour concluded he was not satisfied these findings were irrational or illogical, even though his Honour found that the Tribunal’s conclusion that the Parents, on their return to the PRC, may not attend church at all manifested a “non-sequitur”.[61] His Honour concluded as follows:[62]
Ultimately, however, I am not persuaded that this reasoning or finding involves the sort of extreme illogicality or irrationality which would constitute jurisdictional error on the part of the Tribunal. Logical or rational or reasonable minds might adopt different reasoning or might arrive at different findings arising from the fact that the [Parents] had adopted a flexible or pragmatic approach in terms of deciding which of the church’s teachings they would follow. It cannot, however, be said that no rational or reasonable decision-maker could have employed the reasoning, or arrived at the findings made by the Tribunal.
It was ultimately a matter for the [applicants], through [the Mother] as their litigation guardian, to persuade the Tribunal that, if they returned to [the PRC] with [the Parents], they and [the Parents] would practise their Christian faith in a way which would expose them to persecution by the authorities in [the PRC], or would expose them to the risk of serious harm. The Tribunal was not ultimately persuaded that that was the case. The Tribunal’s finding that the [applicants] were likely to practise their religion in [the PRC] in a flexible or pragmatic way by attending registered churches or small private gatherings was no doubt an important part of the Tribunal’s reasons for finding that the [applicants] would not be exposed to persecution or harm in [the PRC] on account of their religion, or the religion of [the Parents].
[60] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [64]
[61] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [69]
[62] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [70], [71]
Second contention on appeal
Wigney J held the Primary Judge made an error in finding that it was open to the Tribunal to make the findings it did by reference to the country information that was before the Tribunal. His Honour found the Primary Judge “failed to relate this general proposition to any particular argument that had been advanced on the [applicants’] behalf”; the Primary Judge “did not specifically address the argument that the Tribunal had been selective in its treatment of the country information”;[63] and the country information that was before the Tribunal was not before the Primary Judge. In those circumstances, Wigney J found it was difficult to see how the Primary Judge could have formed the view the Tribunal’s findings were open on the material before it; and it was equally difficult to see how the Primary Judge “could have addressed the contention concerning the specific DFAT country report which was relied on by the [applicants] in circumstances where none of the country information that was before the Tribunal had been included in the Court Book”.[64] Wigney J further found that the Primary Judge “failed to genuinely consider or engage with the [applicants’] grounds of review and contentions concerning the country information, including the DFAT country report specifically relied on by the [applicants], and the issues raised by those review grounds and contentions”.[65]
[63] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [82]
[64] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [84]
[65] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [86]
Third contention on appeal
Wigney J held that the Primary Judge did not address “the quite separate and distinct allegation, which was at the heart of review ground 3 [of the grounds of application] that the Tribunal’s finding that [the Mother] was able to attend Government churches ignored [the Mother’s] contention that she “absolutely cannot attend Government churches because they are corrupted by Government agendas””.[66] Wigney J further held that the Primary Judge “failed to properly engage with the contentions and arguments in ground three of the [applicants’] review grounds and failed to give adequate reasons which addressed those contentions and arguments”.[67]
[66] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [90]
[67] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [96]
Conclusions
Wigney J concluded that the “appropriate course in these circumstances is to remit the matter to the Circuit Court”.[68] His Honour further said:[69]
There is an additional consideration in this case which compels the conclusion that the appropriate order is to remit the matter to the Circuit Court. That consideration is that, like the primary judge, the Court does not have before it all the material necessary for the review ground to be determined. In particular, the Court does not have before it any of the country information which was before the Tribunal, other than one report which was specifically provided by the [applicants]. Nor is the Court able to ascertain whether, or to what extent, the [Mother] contended, in the Tribunal, that she was unable or unwilling to attend churches registered by the Chinese Government.
[68] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [99]
[69] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [100]
What follows?
An important consideration that led Wigney J to order that the applicants’ application for remedies under s 476 of the Act be remitted to this Court is that the country information on which the Tribunal relied was not in evidence before the Primary Judge or before Wigney J. That implies that the applicants’ grounds of review, and in particular ground 3, required the Primary Judge, and now requires me to have regard to the country information that was before the Tribunal, to be in a position to determine the grounds of application. It is difficult to discern from any of the grounds of application, however, why it is necessary or even relevant for any court to consider the country information to which the Tribunal referred. Wigney J appeared to proceed on the basis that ground 3 of the grounds of application included a claim that the Tribunal was selective in the country information on which the Tribunal relied; and that is because the Primary Judge “nevertheless appears to have construed the ground in that way”.[70]
[70] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [81]
Ground 3 cannot reasonably be construed as including a claim that the Tribunal referred selectively to country information. The Mother made no such claim before me. Even if it could be construed that way, the burden was on the applicants to particularise such claims in some way by at the very least identifying some country information which the applicants contend did not support or which was inconsistent with or which undermined the country information on which the Tribunal relied. The “failure to particularise a ground of review is itself a sufficient basis to dismiss it”.[71]
[71] NWWJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 176, at [37]
It is the case that, as I noted above, the Mother submitted at the hearing before me that the Tribunal referred to a lot of relevant country information, but it failed to comprehensively take into account this information. The Mother, however, was unable to identify any country information she claimed the Tribunal did not take into account, other than a “piece of information which says if you didn’t challenge the interests of the Chinese Communist Party . . . you would run into trouble”. I have already identified the information to which the Mother referred and have found the Tribunal did consider that information.
Perhaps Wigney J may have been of the view that ground 3 carried with it a claim that the Tribunal’s statements of the effect of the country information on which it relied did not accurately reflect the contents of the county information. That is something that can easily be determined because the Tribunal identified in footnotes the source of the country information on which the Tribunal purportedly relied. I have looked at the country information the Tribunal referenced in its footnotes to the extent they relate to the practice of Christianity in the PRC, and I am not satisfied that the Tribunal’s findings based on that information was not reasonably open to it.
The final matter to note is what Wigney J identified as the third contention the applicants’ advanced in the appeal, namely, that “the Tribunal’s findings concerning the [applicants] and [the Parents] being able to safely attend government churches was not open to the Tribunal and that the Tribunal had ignored both the DFAT country report and the [Mother’s] claim that she could not attend “Government churches””.[72]
[72] DGB18 v Minister for Home Affairs [2019] FCA 1034, at [87]
I have already found that ground 3 may be taken to claim that the Mother cannot attend Government churches because they are corrupted, the Tribunal understood the Mother did make a claim to that effect, and the Tribunal considered that claim by finding that on their return to the PRC the Parents “will either choose not to attend church or will attend a registered church or a small private gathering”.[73] I am unable to construe, however, any of the grounds of application as containing a claim to the effect that the Parents would not be able to safely attend Government churches, or that the Tribunal failed to consider such a claim, or made findings in relation to such claim it was not reasonably open to the Tribunal to make. The Mother claimed she would not attend any Government church; and she so claimed, not because she would not be safe, but because “the Chinese authorities allow Christian churches that they try to impose their own controls on religion”;[74] and the Tribunal addressed that claim, not by making a finding to the effect that the Parents would attend a Government church and be safe in doing so, but by finding that the Parents will either choose not to attend church or will attend a registered church or a small private gathering.
[73] CB258, [57]
[74] CB256, [44]
There is therefore nothing in the reasons for judgment of Wigney J in DGB18 v Minister for Home Affairs that lead me to revise or modify my conclusions in relation to the grounds of application, and the Mother’s submissions, I have addressed earlier in these reasons.
disposition and costs
I will order that the application be dismissed. I will also order that the Minister’s name be changed to its current description.
The Minister submitted that if the applicants fail, the Minister will seek an order for costs in the amount of $5,000. The Mother said she did not have a firm view in relation to the Minister’s application for costs. I am satisfied that costs should follow the event, and that $5,000 is a fair indemnity for the costs the Minister has incurred in successfully resisting this application. I will therefore order that the Mother (SZSKS), as the applicants’ litigation guardian, pay the Minister’s costs set in the amount of $5,000.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 8 February 2023
0
5
0