MZANL v Minister for Immigration

[2015] FCCA 3011

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZANL & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3011

Catchwords:
MIGRATION – Judicial review of refusal of applicant for a Protection visa – whether the Tribunal made a critical finding without evidence – whether the Tribunal failed to correctly construe and consider the applicant’s claim or to consider cumulatively – application dismissed.

Legislation:

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214
Shop, Distributive and Allied Employees Association v National Retail Association(No 2) [2012] FCA 480
WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Applicant: MZANL

Second Applicant: MZANM

Third Applicant: MZANN

Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 2338 of 2014

Judgment of: Judge McGuire

Hearing date: 1 September 2015

Date of Last Submission: 1 September 2015

Delivered at: Melbourne

Delivered on: 7 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Chan

Solicitors for the Applicant: Vstar Lawyers and Consultants

Counsel for the Respondent: Mr Wood

Solicitors for the Respondent: DLA Piper Australia

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The Application filed on 20 November 2014 be dismissed.

3. The Applicant pay the First Respondent’s costs fixed in the quantum of $6,825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 2338 of 2014

MZANL

Applicant

MZANM

Second Applicant

MZANN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

REASONS FOR JUDGMENT

1. The applicants seek judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Minister’s delegate to refuse the applicants’ Protection (Class XA) visas (“the visas”). 

2. The applicants are the father, child and mother, respectively. 

3. The application relates to the second applicant who is the child of the first and third applicants.  The parents have not pursued applications in their own right, but now, as members of the same family unit as the second applicant.  All applicants are citizens of China including the second applicant child who was born in Australia on 9 August 2013.

4. The first and third applicants are not married.  The first applicant came to Australia in 2007 holding a student visa.  After the cessation of this visa the first applicant was taken into custody and subsequently released upon the lodgement of a $20,000 bond.  On 30 January 2014 the Minister’s delegate refused the applicants’ applications for Protection visas.  On 17 February 2014, within the prescribed time limits, the applicants applied for a review hearing before the Tribunal. 

5. The Tribunal found inter alia: 

   (i) that the second applicant had been born out of wedlock; 

   (ii) that on account of the first and third applicants having breached China’s family planning laws, they would be required to pay a “social compensation fee” in order to obtain household registration for the second applicant; 

   (iii) that the amount of the social compensation fee would approximate $12,000; 

   (iv) that obtaining household registration would enable the second applicant access to schools and healthcare (with an inference to the contrary should there be no household registration); 

   (v) that the first and third applicants had borrowed half of the $20,000 bond and also borrowed some $6000-$7000 for costs associated with the birth and care of the second applicant; 

   (vi) that the second applicant would be subject to gossip, teasing and face a degree of ostracism as a child born out of wedlock but that this would be alleviated to some extent if she had household registration;[1] 

   (vii) that the Tribunal was satisfied that at the time the applicants return to China they will have sufficient funds (from reimbursement of the bond) to pay the social compensation fee and although they may have to delay repaying their debts, this is a matter for the applicants to prioritise how they spend the $20,000;[2] 

   (viii) that there is no real chance that the applicants will not pay the social compensation fee and, therefore, household registration will be achieved; 

   (ix) the Tribunal found at [44] of its Reasons that the treatment feared is not of sufficient seriousness to amount to serious harm within the meaning of s.91R(1)(b) of the Migration Act 1958 (Cth) (“the Act”) and, therefore, does not constitute persecution within the meaning of the Convention and at [45] that the treatment does not amount to significant harm within the meaning of s.36(2A) and s.5 of the Act.

   [1] Decision of Tribunal, 22 October 2014 at [44]

   [2] Decision of Tribunal, 22 October 2014 at [40]

Application to this Court

1. The amended application filed 18 August 2015 raises two grounds of complaint in respect of the Tribunal’s decision, being: 

   (1) that the Tribunal made a “critical finding” “without evidence” and based on a “false premise”; 

   (2) that the Tribunal failed to “correctly construe and consider” the child’s claims to protection and/or consider the child’s claims “cumulatively”.

Ground 1

1. The second applicant’s claim is articulated on her application at Court Book (“CB”) 97 at [45] as follows:

   If I go back to China, as my parents will have problems to pay the social compensation fee, I will have issue with have hukou registration then will have no right to go to school and other welfare.  I will be denied basic social entitlement and rights.  The people surrounding will tease, bully and discriminate me.

2. The focus of this complaint is on the claim that the parents would not be able to pay the compensation fee and, the findings of the Tribunal in this respect together with the consequent part of the claim that the applicant will suffering teasing, bullying and discrimination.  The applicants’ complaint here is that there was no evidence to support the Tribunal’s finding at [40]: 

   In post-hearing submissions the applicants’ agent submitted that the social compensation fee was insurmountable for the family and they have no way to afford it.  The Tribunal does not accept this.  The Tribunal is satisfied that at the time they return to China the applicants will have sufficient funds to pay the social compensation fee.  Although they may have to delay repaying their debts this is a matter for the applicants to prioritise how they spend the $20,000 they will receive when they leave Australia…

3. Significantly, when challenged on this point Counsel for the applicant confirmed that this is not an argument from a finding made illogically or unreasonably but rather, that there was no evidence to support the Tribunal’s finding.  The argument is based on the applicants’ evidence, not refuted, that the $20,000 is subject to loans repayable and, hence, that there was no evidence to support the conclusion that the applicants could “prioritise” the use of the $20,000. Counsel for the applicant continued by saying that

   Genuine and realistic consideration should be given to the applicants’ evidence in respect of their liabilities attaching to the $20,000, including the second applicant’s requirement for money for daily support and maintenance.

4. That is, it is argued that the critical step/finding that the applicants could prioritise the use of the money is made without a genuine and realistic appraisal of their evidence and that this is a conclusion made without evidence to support it.  I was provided with the authority of Shop, Distributive and Allied Employees Association v National Retail Association (No 2)[3] where Tracey J, in dealing with an assertion that a finding was made without evidentiary support, said at [31]:

   The “no evidence” ground is available where legislation imposes a pre-condition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the pre-condition existed.  The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed:  see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 (per Gummow and Hayne JJ).  The ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”:  see Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587 (per Weinberg J).  The point is put more bluntly in Aronson M, Dyer B and Groves M, “Judicial Review of Administrative Action” (4^th Ed, Thomson Reuters, 2009) p259, where the learned authors say that the “no evidence” ground “cuts out when even a skerrick of evidence appears”.

   [3] [2012] FCA 480

5. It is proper, therefore, to look at the reasoning of the Tribunal in respect of the elements of the applicant’s claim. Firstly, it was not disputed that the applicants would arrive in China with the $20,000 bond refund. There was no challenge to the finding that the compensation fee was approximately $12,000. The Tribunal then finds that the applicants would be able to pay the compensation fee. The Tribunal then moves on to find that there is no real chance that the applicants will not pay the fee. The wording of the last finding in the form of a “double-negative” is of some significance given that s.65 of the Act required the visa to be granted if the Tribunal is satisfied that the applicant satisfies applicable criteria and, conversely, is required to refuse the grant of a visa if not satisfied and where a Tribunal would not generally require “evidence” in order to be “not satisfied”:[4] 

   [4] Minister for Immigration and Multicultural Affairs v Lay Lat (2006) 151 FCR 214

6. The Tribunal found that the parents would “be able” to pay the fee.  The Tribunal had before it the applicants’ contentions that the $20,000 was partly subject to loans but, short of documents evidencing any specific terms and conditions of such loans or evidence of fear of persecution from creditors, then, in my view, it was open to the Tribunal to conclude that the applicants would pay the compensation fee.

7. Consequently, I reject the argument that the Tribunal moved to a critical finding without evidence or alternatively, made a finding on a false premise.  Ground one of complaint therefore fails.

Ground 2

1. Here the applicant says that the Tribunal failed to consider the applicants’ claims individually and cumulatively.

2. The applicants’ application at CB 96-97 sets out claims to the second applicant being born out of wedlock. She claims that her parents will be unable to afford the compensation fee.  She claims that she will be unable to obtain registration.  She claims that she will be unable to source education or welfare.  She claims that she will be subject to teasing, bullying and discrimination.

3. It is trite to note that a Tribunal must correctly construe and consider each claim including each element/integer of each claim and the cumulative effect of each claim of an applicant:[5]

   [5] WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 at [45]

4. The focus of this complaint is on the Tribunal’s reasons at [44] where it says:

   The Tribunal accepts that the second-named applicant would be the subject of gossip, teased and face a degree of ostracism as a child born out of wedlock but this would be alleviated, to some extent, if she had household registration.

5. The applicant’s argument is that the claim to be considered was of a child prospectively not being registered and one subject to bullying, teasing and discrimination.  The applicant says that the Tribunal did not consider these two elements cumulatively because it assumed at [44] that the applicant would be registered by reason of the fee being paid.

6. I am of the view, however, that [44] should be read in full and within context. At [40] the Tribunal found that there was no real chance that the applicants would not pay the social compensation fee and therefore no real chance that the second applicant will face serious harm on account of not being registered. In any event, at [44] the Tribunal did move to consider the teasing, bullying and discrimination claim separately. It found at [44] that the treatment feared is not of sufficient seriousness to amount to serious harm within the meaning of s.91R(1)(b) of the Act and therefore does not constitute persecution within the meaning of the Convention. Further, at [45] the Tribunal found that the treatment does not amount to significant harm within the meaning of s.36(2A) and s.5 of the Act. Once the Tribunal has determined that the treatment does not amount to serious or significant harm then any consideration as to its likelihood of occurring is otiose. These are conclusions open to the Tribunal.

7. Consequently, I find no merit in ground 2 of the application.

Conclusion

1. There being no merit in either ground of the complaint, the application for judicial review is dismissed with costs.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 7 December 2015