EBG16 v Minister for Immigration

[2019] FCCA 3534

FEDERAL CIRCUIT COURT OF AUSTRALIA

EBG16 & ANOR v MINISTER FOR IMMIGRATION & ANOR [2019] FCCA 3534

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for Protection (Class XA) visas – whether the Tribunal failed to take into account relevant considerations – whether the Tribunal took into account irrelevant considerations – whether the application raises an arguable case for the relief claimed – no jurisdictional error made out – application dismissed.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.44.12
Migration Act 1958 (Cth), ss.438, 476

First Applicant: EBG16

Second Applicant: EBH16

First Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3714 of 2016

Judgment of: Judge Street

Hearing date: 5 December 2019

Date of Last Submission: 5 December 2019

Delivered at: Sydney

Delivered on: 5 December 2019

REPRESENTATION

The Applicants appeared in person.

Solicitors for the Respondents: Ms A Wong
Mills Oakley

ORDERS

1. The name of the first respondent is changed to “Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs” and the Court dispenses with the need for the filing of any further document in that regard.

2. The application is dismissed under r.44.12 of the Federal Circuit Court Rules 2001 (Cth).

3. The first applicant pay the first respondent’s costs fixed in the amount of $3,667.00.

DATE OF ORDER: 5 December 2019

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3714 of 2016

EBG16

First Applicant

EBH16

Second Applicant

And

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

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 12 December 2016 affirming the decision of a delegate of the first respondent (“the Delegate”) not to grant the applicants Protection (Class XA) visas (“Protection visas”).

2. The first applicant is the mother of the second applicant, who is a child. On 4 May 2017, a Registrar of the Court made orders appointing the first applicant the litigation guardian for the second applicant.

3. The applicants were found to be citizens of China and their claims were assessed against that country. On 10 July 2007, the first applicant travelled to Australia on a Student (Subclass) 571 visa and held that visa until 15 March 2010. The first applicant then applied for and held a variety of other visas in the subsequent years she has remained in Australia.

4. On 28 May 2012, the first applicant lodged her first application for a Protection visa. On 22 August 2012, a delegate of the first respondent refused the grant of a Protection visa to the first applicant. On 12 April 2013, the Refugee Review Tribunal affirmed that delegate’s refusal decision.

5. The second applicant was born in early 2013.

6. On 12 April 2014, a second protection visa application was lodged by the first applicant, which included the second applicant. The first applicant claimed to fear harm from the biological father of the second applicant (“the former partner”) and from her former partner’s family.

7. On 12 February 2015, the Delegate found that the applicants failed to meet the criteria for the grant of Protection visas.

8. On 16 February 2016, the applicants applied to the Tribunal for review of the Delegate’s decision.

9. By letter dated 18 May 2016, the Tribunal invited the applicants to attend a hearing on 5 July 2016. The applicants appeared on that date to give evidence and present arguments.

10. On 28 November 2016, following the hearing, the Tribunal wrote to the applicants in relation to the movement records identifying that the former partner had been onshore without a valid visa since 15 March 2010. The Tribunal identified that this may lead the Tribunal to doubt the plausibility and credibility of the applicant’s claims in respect of the applicants being threatened by the former partner or his family and also the absence of contact with the applicants in any way leading to a conclusion that the former partner would not seek to harm the applicants if they were to return to China.

11. On 29 November 2016, submissions were provided to the Tribunal on behalf of the applicants in answer to that invitation to comment, which were expressly referred to in the Tribunal’s reasons.

12. The Tribunal in its reasons identified the background to the application for review. The Tribunal set out the relevant law. The Tribunal summarised the applicant’s claims. The Tribunal referred to the documentation provided by the applicants, including attendance before a clinical psychologist.

13. The Tribunal identified what occurred before the interview with the Delegate which took place on 20 November 2014, including that the first applicant confirmed that she had not been in contact with her former partner and that her former partner had not contacted her or tried to see her daughter.

14. The Tribunal referred to the applicants’ claims advanced before the Delegate in respect of their relationship with the former partner. The Tribunal referred to the Delegate’s finding that there had been no contact at least between the second applicant and the former partner.

15. The Tribunal referred to Delegate accepting that the second applicant did not have household registration (Hukou) and that the second applicant might be unable to obtain Hukou in China but that the Delegate did not consider that the denial of Hukou amounted to serious or significant harm.

16. The Tribunal referred to the Delegate not accepting that the parents of the former partner had come to the house of the first applicant’s parents and made threats.

17. The Tribunal referred to the documents submitted by the first applicant in support of the claims, including alleged police reports from a particular police station. The Tribunal summarised the evidence given by the first applicant at the hearing before the Tribunal and the first applicant’s claims of evidence at the hands of her former partner and the abandonment by the former partner of the second applicant.

18. The Tribunal referred to the first applicant confirming that she had not seen the former partner since the incident in April 2014 and that the first applicant confirmed she was not aware of any attempts by the former partner to find her. The Tribunal put to the applicant that it appeared that the former partner had not tried to find them and the first applicant agreed.

19. The Tribunal explored with the first applicant why the second applicant would be harmed in China.

20. The Tribunal raised with the first applicant its concern in relation to her evidence about contact with her parents and how she knew her family was being harassed.

21. The Tribunal explored with the first applicant her claims in respect of the former partner’s family and alleged attempt to take revenge. The Tribunal raised with the first applicant the implausibility of her claims. The Tribunal raised with the first applicant that it was difficult to understand why her former partner’s parents would repeatedly go to her parents’ home asking them the whereabouts of her daughter when they were in communication with their son and he would be in a position to tell them that she was in Australia.

22. The Tribunal referred to the first applicant’s evidence alleging that the former partner’s family had allegedly come to the first applicant’s family home every one or two months. The Tribunal referred to the police reports. The Tribunal raised with the first applicant the implausibility of the first applicant’s claims in respect of repeated visits and also raised concern in relation to the content of the police reports and the prevalence of fraudulent documentation being available in China. The Tribunal raised with the first applicant the issue of whether her daughter would be able to obtain Hukou registration in China.

23. The Tribunal also referred to the post-hearing invitation to comment.

24. The Tribunal accepted that the first applicant suffers from anxiety and depression.

25. The Tribunal accepted that the former partner is resident in Australia and has not held a valid visa since 2010.

26. The Tribunal referred to the issue raised with the first applicant that her former partner did not appear to have tried to harm her or find her since the incident in April 2014. The Tribunal referred to the first applicant’s agreement that this was accurate. The Tribunal found that the first applicant’s assertions in respect of the alleged efforts of the former partner to find the first applicant after the incident on in April 2014 were vague. The Tribunal was not persuaded that the former partner is currently trying to locate the applicants.

27. The Tribunal referred to what was put to the first applicant in that regard. The Tribunal did not accept that the former partner is trying to locate the applicants.

28. The Tribunal also referred to the post-hearing submissions suggesting that the former partner was still looking for the applicants. The Tribunal referred to the evidence in respect of mutual friends and was not prepared to accept that the former partner is currently trying to find out where the applicants are living.

29. The Tribunal found that there was no evidence that criminal proceedings had been brought against the former partner for any reason or that the first applicant has spoken to the police about the former partner since 2014 or that the former partner has had contact with the first applicant since April 2014.

30. In these circumstances, the Tribunal found the suggestion that the former partner’s family would still be harassing and threatening the first applicant’s family in 2016 to be improbable and unpersuasive.

31. The Tribunal found the first applicant’s claim that her former partner and his family want to harm her and the second applicant to be improbable and unconvincing.

32. The Tribunal did not accept that the former partner wants to take revenge against the applicants. The Tribunal did not accept that there is a real chance that, if the first applicant was to travel with the second applicant to China, the second applicant would face any harm of any type from the former partner in China.

33. The Tribunal did not accept that the former partner had made any efforts to locate the first applicant in Australia. The Tribunal did not accept as plausible that the former partner’s family had visited the first applicant’s home on nine separate occasions demanding to know the whereabouts of the second applicant. The Tribunal did not accept as plausible that the former partner’s family were genuinely motivated to find out where the second applicant was and had visited the first applicant’s family home in China asking about her whereabouts. The Tribunal did not accept that it was plausible that the former partner’s family would harass the first applicant’s family for over two years, demanding to know her whereabouts.

34. The Tribunal found the first applicant’s evidence about threats, which she claims her former partner’s family had made against her family, to be vague, highly improbable and unpersuasive.

35. The Tribunal referred to its concerns in relation to the police reports not overcoming its concerns in respect of the applicant’s credibility. The Tribunal found that the police reports should be given little weight and did not overcome the concerns of the Tribunal in respect of the applicant’s credibility and in respect of the first applicant’s claims that her family has been threatened or harassed by the former partner’s family. The Tribunal was not satisfied that the first applicant’s claims that the former partner’s family have repeatedly harassed and threatened her family in China and made threats against the applicants are credible.

36. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk the applicants will suffer significant harm from the former partner.

37. The Tribunal did not accept that the former partner’s family had threatened or harassed the first applicant’s parents. The Tribunal did not accept that the first applicant’s parents are no longer in contact with the first applicant because of the threats made against them by the former partner’s family.

38. The Tribunal referred to the claims in respect of whether the second applicant can obtain Hukou registration in China. The Tribunal, taking into account country information, found that there is no real chance that the second applicant will be denied Hukou registration if she travels with the first applicant to the first applicant’s home area.

39. The Tribunal found that the second applicant would be able to obtain Hukou before the payment of any social compensation fine that may be imposed upon the first applicant, irrespective of whether the first applicant is able to pay the fee.

40. The Tribunal did not accept that the second applicant will be unable to obtain Hukou registration. The Tribunal did not accept that the second applicant would suffer discrimination or be unable to access the publicly funded health system or be denied access to education. The Tribunal found that the second applicant will be able to obtain Hukou registration.

41. The Tribunal did not accept that there was a real chance that the second applicant would suffer serious harm because she is a “black child” or a member of a particular social group of children without Hukou registration.

42. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed from Australia to China, there is a real risk the second applicant will suffer significant harm.

43. The Tribunal was not satisfied the first applicant’s family would refuse to provide support and accommodation to the applicants.

44. The Tribunal referred to the employment skills of the first applicant. The Tribunal did not accept that the first applicant will suffer significant harm because she is unable to pay the social compensation fee and/or because she is a single mother with a child born out of wedlock and/or because a social compensation fee will be imposed upon her for having a child out of wedlock.

45. The Tribunal did not accept that the imposition of the social compensation fee amounts to significant harm. The Tribunal found that there was not a real risk that the first applicant will suffer significant harm in China or that there is a real chance that the second applicant will suffer significant harm because of her membership of a particular social group of children born out of wedlock or as a child of single mothers.

46. The Tribunal considered the applicants’ claims cumulatively. The Tribunal was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to China, there is a real risk the applicants will suffer significant harm.

47. The Tribunal found the applicants failed to meet the criteria for the grant of Protection visas.

48. Accordingly, the Tribunal affirmed the decision under review.

Before the Court

1. These proceedings were commenced on 22 December 2016. On 4 May 2017, a Registrar of the Court made orders providing the applicants an opportunity to file an amended application, affidavit evidence and submissions. No such documents have been filed.

2. The matter was fixed today for a show cause hearing under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”).

3. At the commencement of the hearing, the Court explained to the first applicant the nature of the show cause hearing and the first applicant confirmed that she understood the nature of the show cause hearing as explained by the Court.

4. From the bar table, the first applicant identified that she disagreed with the Tribunal’s findings in relation to potential harm from her former partner and her former partner’s family. The first applicant’s disagreement with the Tribunal’s findings does not identify any arguable case of jurisdictional error by the Tribunal. The Tribunal gave logical and rational reasons in support of its adverse findings which were open to it for the reasons given by the Tribunal.

5. Nothing said by the first applicant from the bar table identified any arguable case of jurisdictional error.

Grounds in the Application

1. The grounds in the application are as follows:

   1. The Tribunal failed to consider the first applicant’s ex-partner Mr Wang who is an unlawful citizen and who is the person of interest to the police. Mr Wang has concealed himself in the community and therefore is unable to take openly and overt action in locating the applicants, namely, Mr Wang cannot do much to harm the applicants in Australia.

   2. The Tribunal failed to take into account that the applicants have been in hiding since April 2014 to prevent the applicants from being harmed. Living in hiding in itself is persecutory.

   3. The Tribunal failed to provide the reason or evidence of nexus among the “lack of contact” between the applicants and Mr Wang, and the “claims that Mr Wang’s family in China have repeatedly harassed the first applicant’s family in China”. Namely, the Tribunal concluded its decision without supporting evidences.

   4. The Tribunal inflexibly applied to “country information indicates that fraudulent documents are readily available in China” to the applicants’ documentary evidences. The Tribunal simply made a reference to the Country information and denied the applicants’ documentary evidence.

   5. The Tribunal committed jurisdictional error without considering the applicants’ claims. Namely, the Tribunal denied the applicants’ claims on the basis of that Mr Wang did not locate the applicants or inflict harm on the applicants since April 2014.

Ground 1

1. In relation to ground 1, it is apparent that the Tribunal took into account the applicants’ claim to fear harm from the former partner, who is an unlawful non-citizen in Australia. The Tribunal did not accept that there were any criminal charges outstanding in respect of the former partner. There was no claim advanced, on the face of the material before the Court, that the former partner is unable to openly and overtly take action to locate the applicants. A claim not advanced before the Tribunal is not capable of giving rise to any jurisdictional error. Ground 1, in substance, identifies a disagreement with the adverse findings made by the Tribunal and invites impermissible merits review.

2. No arguable case of jurisdictional error is disclosed by ground 1.

Ground 2

1. In relation to ground 2, it is apparent that the Tribunal considered the submissions which were advanced post-hearing in relation to the applicants’ changing of addresses to avoid accidental encounters with the former partner. The Tribunal clearly considered the applicants’ submissions and made an adverse finding that the former partner was not trying to find where the applicants were living or attempting to contact them, since at least April 2014. The applicants’ assertions in ground 2 otherwise invite the Court to engage in impermissible merits review.

2. No arguable case of relevant error is identified by ground 2.

Ground 3

1. In relation to ground 3, this ground appears to disagree with the Tribunal’s reasons in respect of the significance of the lack of contact from the former partner. The Tribunal provided logical and rational reasons for the adverse findings in respect of the applicants’ claims. The applicants’ disagreement with those adverse findings does not identify any arguable case of relevant error.

2. No argument in the case of relevant error is made out by ground 3.

Ground 4

1. In relation to ground 4, the applicants disagree with the Tribunal’s taking into account of country information in relation to the prevalence of fraud and the police records produced by the applicants. The Tribunal gave logical and rational reasons for giving no weight to those police records.  The country information was a logical and relevant matter for the Tribunal to take into account and the Tribunal made findings that were open to it in respect of the applicants’ claims and evidence.

1. No arguable case of relevant jurisdictional error is identified by ground 4.

Ground 5

1. In relation to ground 5, there is no claim of the applicants that has been identified that was not considered by the Tribunal. It is apparent that the Tribunal took into account that there had not been any contact with the former partner since April 2014.

2. No arguable case of jurisdictional error is disclosed by ground 5.

Section 438 Certificate

1. The first respondent as a model litigant also drew the Court’s attention to the existence of a s.438 certificate dated 22 August 2012 and the information the subject of the certificate was tendered and marked Exhibit C. The Court has reviewed the information which overall goes to the first applicant’s identity and migration history and does not identify any credible, relevant or significant information adverse to the applicants. There is no material information of a kind by reason of which there is an arguable case that the applicant suffered any practical injustice in the conduct of the review. No arguable jurisdictional error arises by reasons of the existence of the undisclosed s 438 certificate or the information the subject of the s.438 certificate in the present case.

2. As the application does not raise an arguable case for the relief claimed, the Court is satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.44.12(1)(a) of the Rules.

3. Accordingly, the application is dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 5 December 2019 and the parties were provided sealed copies of the Court’s orders

Associate:  

Date:  27 February 2020