ENM19 as Litigation Guardian of DZZ19 v Minister for Immigration

[2020] FCCA 2333

FEDERAL CIRCUIT COURT OF AUSTRALIA

ENM19 AS LITIGATION GUARDIAN OF DZZ19 v MINISTER FOR IMMIGRATION & ANOR [2020] FCCA 2333

Catchwords:
MIGRATION – Administrative Appeals Tribunal – application for a Protection visa – whether the Tribunal made findings that were irrational and illogical – no jurisdictional error made out – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36, 424A, 476

Federal Circuit Court Rules 2001 (Cth), r.44.12

Applicant: DZZ19

Litigation Guardian: ENM19

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

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2668 of 2019

Judgment of: Judge Street

Hearing date: 24 August 2020

Date of Last Submission: 24 August 2020

Delivered at: Sydney

Delivered on: 24 August 2020

REPRESENTATION

The Applicant’s litigation guardian appeared in person.

Solicitors for the Respondents: Mr J Pipolo, via Microsoft Teams, Mills Oakley

ORDERS

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

2. The litigation guardian, being ENM19, pay the first respondent’s costs fixed in the amount of $3,737.00.

DATE OF ORDER: 24 August 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2668 of 2019

DZZ19

Applicant

ENM19

Litigation Guardian

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 24 September 2019 affirming a decision of a delegate of the first respondent (“the Delegate”) not to grant the child applicant a Protection visa.

2. The child’s mother was joined as a litigation guardian on behalf of the child. The child is a citizen of China and the child’s parents are citizens of China. 

3. Claims were made on the child’s behalf by her mother as to why the child would face a real risk or real chance of serious harm or significant harm on return to China.

4. The mother arrived in Australia on 18 February 2006 on a student visa granted on 24 January 2006. The mother held a number of consecutive student visas that continued in force until 26 November 2011. It was not until 13 February 2012 that the mother applied for a protection visa. That application was refused and refusal was affirmed by the Refugee Review Tribunal on 24 January 2013. The applicant unsuccessfully sought judicial review, which application was dismissed on 26 September 2014.

5. It was not until about eight months after the child was born that the applicant mother lodged a Protection visa on behalf of her child. 

6. The Tribunal identified the relevant law, including in Attachment A to its reasons.

7. The claims made on behalf of the child were that her parents would face serious harm for reasons of their Christian beliefs and that because her parents were not married, the child would be without parental care, and because they were not married, there would be no family support, and that they would be unable to get household registration for the child, and that the child will face psychological harm on return to China.

8. The Tribunal summarised the applicant’s claims and evidence. 

9. The Tribunal identified that the applicant’s mother appeared before the Tribunal to give evidence and present arguments on her child’s behalf on 19 August 2019.

10. It is apparent from the Tribunal’s reasons that the Tribunal raised country information with the applicant mother in relation to the ability to obtain household registration. The Tribunal found the parents will be able to apply for household registration and accepted that the parents may have to pay a social compensation fee on return because they are not married. 

11. The Tribunal identified the flexibility in relation to how the fees are paid and found that the applicant’s parents would be able to work to enable them to save enough money towards payment and that the payments could be made by instalment or that they could seek a waiver. 

12. The Tribunal also identified that the compensation fee was payable by the parents, not the applicant child.

13. The Tribunal gave little weight to the applicant mother’s evidence about the problem with family because they were not married. 

14. The Tribunal also referred to the claims of the parents’ practice of Christianity and did not accept that the mother has a continued connection with the Christian church or that she is a committed Christian.  The Tribunal did not accept that the parents would be persecuted for reasons of religion and did not accept that the child applicant will face serious harm due to loss of parental support or care.

15. The Tribunal found that the child applicant does not have a well-founded fear of persecution. 

16. The Tribunal did not accept that the child applicant is fully integrated into Australian society or that she will face psychological harm if she returns to China. 

17. The Tribunal found that the child applicant is not a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act, and the Tribunal affirmed the decision under review.

Before the Court

1. On 7 November 2019, a Registrar of the Court made orders providing the applicant an opportunity to file an amended application, affidavit evidence and submissions, and fixed the matter for hearing today under r 44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). No such documents have been filed.

2. At the commencement of the hearing, the Court explained to the applicant’s mother the nature of the hearing under r 44.12 of the Rules and the applicant’s mother confirmed that she understood the explanation given by the Court.

3. The applicant’s mother orally submitted that the child would suffer harm because of the need for childhood registration and by reason of the potential separation of the parents and lack of family support and because of potential psychological harm to the child and because of the religious beliefs of the parents.

4. All of those claims were considered and rejected by the Tribunal. The Tribunal provided logical and rational reasons in support of the adverse findings that were open for the reasons given by the Tribunal. 

5. The applicant’s mother’s submissions, in substance, invited impermissible merits review.  Further, this Court does not have power to determine the matter on compassionate or discretionary grounds.

6. Nothing said by the applicant’s mother orally identified any arguable case of relevant error by the Tribunal. 

The grounds

1. The grounds in the applicant’s application are as follows:

   1.Findings on [the applicant and her parents] have no well-founded fear of persecution for any of the reasons set out in section 5J(l)(a) of the Act is irrational and illogical

   2.Findings on [the applicant and her parents] do not meet the complementary protection criterion is irrational and illogical

Ground 1

1. Ground 1, without proper particulars, is incapable of making out any relevant error. On the face of the Tribunal’s reasons, the Tribunal correctly identified the relevant law and made adverse findings dispositive of the child applicant’s claims.  The Tribunal’s reasons reflect a genuine intellectual engagement with the claims and evidence advanced on behalf of the child applicant. No illogicality or irrationality has been identified in the reasoning or findings by the Tribunal.

2. The applicant’s mother’s disagreement with the adverse findings does not identify any arguable jurisdictional error. The Tribunal gave reasons that provided an evident and intelligible justification for the adverse findings. 

3. No arguable case of relevant error is disclosed by ground 1.

Ground 2

1. Ground 2, in the absence of particulars, does not disclose any arguable case of relevant error. The Tribunal made dispositive findings in relation to the complementary criteria that were open to the Tribunal for the reasons given by the Tribunal.  No irrationality or illogicality has been identified in relation to the Tribunal’s reasoning or findings on complementary protection. It was open to the Tribunal to take into account the adverse findings under the Refugee Convention criteria in considering whether the child applicant me the complementary protection criteria.

2. The adverse findings in relation to complementary protection cannot be said to lack an evident and intelligible justification. The applicant’s disagreement with the same does not identify any arguable case of relevant error.

Applicant’s affidavit

1. The applicant’s mother’s affidavit refers to not seeing reports that the Tribunal discussed with the applicant’s mother. It is apparent from the Tribunal’s reasons that the Tribunal raised the adverse country information with the applicant’s mother, even though not required to do so under s 424A(3)(a) of the Act. The reference to the applicant’s mother not seeing the country information accordingly does not give rise to any arguable case of relevant error. 

2. The content of the applicant’s mother’s affidavit otherwise reflects disagreement with the adverse findings and does not identify any arguable case for relevant error.

3. The Court finds that the application has not raised an arguable case for the relief claimed and the Court is satisfied this is an appropriate matter in which to exercise the Court’s powers under r 44.12 of the Rules.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 24 August 2020 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 16 September 2020