MZAOL v Minister for Immigration
[2017] FCCA 1837
•8 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAOL & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1837 |
| Catchwords: SECTION 438 CERTIFICATE – Consideration of MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081 – consideration of Singh v Minister for Immigration and Border Protection [2016] FCAFC 183 and Minister for Immigration and Border Protection v Singh [2017] HCATrans 107. |
| Legislation: Migration Act 1958 (Cth), s.438 PAM3 Refugee and Humanitarian – Complementary Protection Guidelines |
| Cases cited: AJB16 v Minister for Immigration and Border Protection [2017] FCA 544 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 AVO15 v Minister for Immigration and Border Protection [2017] FCA 566 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 |
| First Applicant: | MZAOL |
| Second Applicant: | MZAOM |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2444 of 2014 |
| Judgment of: | Judge Wilson |
| Hearing date: | 17 October 2016 |
| Date of Last Submission: Delivered at: | 29 March 2017 Melbourne |
| Delivered on: | 8 August 2017 |
REPRESENTATION
| Counsel for the Applicants: | Ms G Costello |
| Solicitors for the Applicants: | Victoria Legal Aid |
| Counsel for the First Respondent: | Mr L Brown |
| Solicitors for the First Respondent: | DLA Piper Australia |
ORDERS
The further amended application filed 2 December 2016 is dismissed.
The applicants pay the costs of the first respondent.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2444 of 2014
| MZAOL |
First Applicant
| MZAOM |
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Special leave to appeal application
The unusually long period of time that elapsed between the date on which this application for judicial review was heard and the handing down of judgment was explained on the basis that the parties wished to await the outcome of the application for special leave to appeal to the High Court of Australia in Minister for Immigration and Border Protection v Singh.[1] On 12 May 2017 the High Court refused special leave to appeal from the decision of the Full Court of the Federal Court of Australia in Singh v Minister for Immigration and Border Protection[2] (“Singh”). The Full Court dismissed an appeal from a judge of this Court in Singh v Minister for Immigration and Border Protection.[3]
[1] [2017] HCATrans 107.
[2] [2016] FCAFC 183.
[3] [2016] FCCA 2464.
In light of the refusal of the High Court of Australia to grant special leave to appeal from the decision of Singh, on 1 June 2017 the
legal representatives of the parties informed my associates that neither wished to file further submissions and both wished judgment to be delivered.
Introduction
The issue in this case was whether the first applicant’s alleged claim to fear harm by reason of forced sterilisation was made to the
Refugee Review Tribunal, now the Administrative Appeals Tribunal
(“the Tribunal”). If it was, the Tribunal’s consideration of the claim was deficient. If it was not, this application for judicial review fails.
Synopsis
In my view, no claim or integer of claim to fear harm on account of forced sterilisation was made to the Tribunal. This application for judicial review failed.
Relevant factual narration
The first applicant, a Chinese national, entered Australia in
December 2007 as a student. Her student visa was cancelled on
24 August 2010 at which time her stay in Australia became unlawful. Her daughter (the second applicant) was born on 24 September 2012. The first applicant filed an application for a Protection (Class XA) visa on 19 April 2013. On 9 January 2014 the delegate of the Minister for Immigration and Border Protection (“the Minister”) refused the
first applicant’s protection visa application.[4] She sought a merits review before the Tribunal and attended hearings on 30 May and
13 June 2014.
[4] Court book filed 9 February 2015 at pp.78-99.
In written submissions filed on behalf of the applicants’ then counsel, not Ms Costello who appeared before me, the applicants’ claims before the Tribunal were set out.[5] Most were not relevant to this case.
Those of relevance were recorded in paragraphs 7.8 and 7.9 of the applicants’ written submissions. In them, the first applicant asserted she feared persecution as a single mother whose child was born out of wedlock and that if she returned to China she would face discrimination and harm because China’s family planning policy provided fines for registration of children born outside of marriage.
[5] Applicants’ outline of submissions filed 7 July 2016.
Those matters were drawn from material prepared by the applicants’ migration agent in a 35-page submission dated 23 May 2014[6] and in a letter from the same migration agent to the Tribunal dated
10 July 2014.[7]
[6] Court book filed 9 February 2015 at pp.167-201.
[7] Court book filed 9 February 2015 at pp.227-228.
The Tribunal accepted that the first applicant’s child was born out of wedlock. However, the Tribunal did not accept that any of the claimed harm would be suffered arising from the daughter being unregistered.
The Tribunal affirmed the decision of the delegate and dismissed the application for a protection visa.[8]
[8] Court book filed 9 February 2015 at pp.230-285.
Judicial review in this court
In her initiating application to this court,[9] the first applicant relied on the following statement, not being in reality “grounds of review” –
I am a Chinese student with strong committed of Local Church which is forcibly undergrounded, repressed and outlawed in China. My religious background and parent’s hard experience due to religious persecution made me feared to return to origin.
With family church background, I firmly believe I will experience hardship and persecution if return to origin as my commitment and vision on preaching gospel never terminates.
I have great concern on my child’s faith due to the breach of China’s family planning law. As unmarried bother, I could not cope with the social compensation so as to have my child registered household registration in origin.
It is impossible for me to gain necessary support from my family in origin. I am desperate living in a vulnerable and helpless environment if return to origin. Fr sake of my religion and child, I beg Australian government protection.[10] (Transcribed verbatim)
[9] Application filed 3 December 2014.
[10] Application filed 3 December 2014 at p.6.
That narration did not include any reference to sterilisation, abortion or suchlike as the basis for the first applicant’s alleged fear of harm.
In her amended application,[11] the first applicant advanced three grounds of review. At the hearing before me, only grounds 3(a)(ii) and 3(b) were pressed.
[11] Amended application filed 7 July 2016.
After the hearing on 17 October 2016, both parties indicated they wished to rely on further written submissions, which I permitted them to do, in response to which further written submissions from
Ms Costello and from Mr Brown were provided. Those written submissions, as with the submissions during the hearing, were most helpful.
It is useful to set out the grounds of review that were pressed –
Ground 3: The Tribunal erred in its consideration of complementary protection in that it failed to undertake its task of review and/or failed to apply the Guidelines it was bound to consider.
Particulars
(a)In considering complementary protection the Tribunal failed to properly engage in or assess the following of the applicant:
i. That the Government pays particular attention to the eradication of Underground Church Services and given the applicant had been practising her religion in a foreign country she may be at greater risk of persecution upon return; and
ii. That she and her daughter would face degrading treatment and/or significant harm because of the applicant’s status as a single mother and because her child was born out of wedlock.
(b)While the Tribunal referred to the PAM 3 Complimentary [sic] Protection Guidelines it failed to demonstrate any active intellectual engagement with the Guidelines or apply them to the facts of the applicant’s case.[12]
[12] Amended application filed 7 July 2016 at pp.3-4.
The applicants asserted that the Tribunal failed to adequately address PAM3 Refugee and Humanitarian Complementary Protection Guidelines (“PAM3”) as the Tribunal failed to actively intellectually engage with the material as was held by the Full Court of the Federal Court of Australia in Lafu v Minister for Immigration and Citizenship.[13] The applicants submitted that by reason of the Tribunal’s failure to engage in an active intelligent consideration of the applicants’ claims the Tribunal fell into jurisdictional error as was held in Minister for Immigration and Border Protection v MZYTS.[14]
[13] [2009] FCAFC 140 at [49].
[14] [2013] FCAFC 114.
On 25 November 2016, pursuant to a joint request by the parties,
I made consent orders permitting the applicants to file a further amended application by 2 December 2016 addressing the question of the s.438 certificate issued by the Minister. The further amended application was filed on 2 December 2016.
Consideration
At the outset, let me state that despite an efficient and very
well-presented argument by Ms Costello, I do not agree that the Tribunal fell into jurisdictional error. That was for the simple reason that the Tribunal did in fact consider all claims advanced by the applicants and insofar as a claim to fear harm by reason of forced sterilisation upon the first applicant’s return to China was concerned, no such claim was made.
On behalf of the applicants Ms Costello submitted before me as follows –
So to be clear, the argument is that the tribunal has failed to consider the complementary protection claims properly in relation to an aspect of the claim regarding the child born out of wedlock. And that particular failure arises from the tribunal’s failure to consider the claim to fear compulsorily – being compulsorily sterilised.[15]
[15] Transcript of proceedings, 17 October 2016 at p.3.
Nowhere in the proceeding before the Tribunal was the phrase “fear of being compulsorily sterilised” actually said. I have carefully read the transcript of the proceeding before the Tribunal on 30 May 2014, being an exhibit to the affidavit Chelsea Clark affirmed 8 July 2016.[16]
The subject of China’s family planning laws was addressed in a single exchange. It was as follows –
MEMBER: Okay. Look, [the applicant], on that issue of the family planning laws, I certainly have [the representative’s] written submissions, which I’ve read, but really the purpose of asking you is, you know, to understand, from your perspective, what you fear would happen to you and your daughter with the family planning authorities if you went back to China?
INTERPRETER: Yes, what we will face is a hefty fine if we go back because I gave birth to my daughter too young, too early, and without getting married. Without being married.[17]
[16] Affidavit of Chelsea Clark affirmed on 8 July 2016 at annexure CC-1.
[17] Affidavit of Chelsea Clark affirmed on 8 July 2016, annexure CC-1 at p.38.
The word “sterilised” was said but in reference to the first applicant’s sister, and obliquely, and in a wholly different context at page 39 of the transcript before the Tribunal.[18] Thereafter, in the debate with the Tribunal the first applicant returned to the financial consequences of a fine being imposed upon her. Squarely, the focus was on the fine.
In my view, it could not be said that the first applicant could extract from that exchange a claim to fear harm on the basis that she was at risk of being sterilised on account of having had a child out of wedlock.
[18] Ibid.
To my mind, the so-called claim now asserted was not made in the Tribunal. In a string of recent decisions, I have written extensively on the constituent elements of a “claim” and even on the subject of an “integer of claim”. No useful purpose is served in repeating those observations here. That said, the observations in those cases are to be taken as being incorporated into these reasons. The decisions to which I refer are SZVYG v Minister for Immigration and Border Protection,[19] MZANX v Minister for Immigration and Border Protection,[20] SZUQB v Minister for Immigration and Border Protection,[21] MZAJD v Minister for Immigration and Border Protection[22] and MZAJR v Minister for Immigration and Border Protection.[23]
[19] [2016] FCCA 2887.
[20] [2016] FCCA 2564.
[21] [2016] FCCA 2180.
[22] [2016] FCCA 2697.
[23] [2016] FCCA 1787.
The learning on point is enormously voluminous. In short compass,
the Tribunal was not required to deal with a claim not made.[24]
[24] Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184.
That is sufficient to dispose of, by rejecting, the submission that called in aid the decision of another judge of this court in SZUQZ v Minister for Immigration and Border Protection.[25]
[25] [2015] FCCA 1552.
PAM3 may well have been relevant had the claim been made before the Tribunal. It was not. I do not agree with the complexion placed on the material in the court book as illustrating the fact that forced sterilisation was raised, or raised to a level that, on the authorities, represented a “claim”. Specifically, in my view no claim about forced sterilisation emerged at pages 250-253 of the court book (a reference to sterilising men, not women).
Certain country information contained vague and imprecise references to legal sterilisation (for example at page 255 of the court book). That was in the context of the first applicant’s submissions to the Tribunal on 26 May 2014. Only a few days later, on 30 May 2014 when the
first applicant gave evidence before the Tribunal, the first applicant raised her sister’s marriage after having had two children out of wedlock. The exchange was as follows –
INTERPRETER: After two babies, had two babies – after giving birth to two babies, she was pregnant a third time, and she wanted to get a marriage certificate to get married, formally married, but authorities told her she has to be sterilised after the baby if she wants to get the marriage certificate. Okay, they were telling her to force her to terminate the baby, then be sterilised, so she was able to get the marriage certificate.
MEMBER: Did that actually happen?
INTERPRETER: Yes.
MEMBER: Would you be able to afford to pay a fine?
INTERPRETER: No, I can’t. And that was a few years ago. Now it’s going to be even higher, because my brother’s first baby was about 20,000 and later it was increased.[26]
[26] Affidavit of Chelsea Clark affirmed on 8 July 2016, Annexure CC-1 at p.39.
The question from the Tribunal was ambiguous. It may have referred to the sister’s subsequent marriage or it may have referred to the pressure being exerted on her prior to her being given approval to marry. Whatever may be the correct construction of that exchange, it seemed to me that two things flowed from it –
a)first, the questions and answers that immediately followed related to a fine, the enormity of it and how the first applicant could not pay it; and
b)second, the exchange quoted immediately above from page 39 of the transcript before the Tribunal was very far from a substantial clearly articulated argument relying upon established facts, as was held to be a defining feature of a “claim” according to Dranichnikov v Minister for Immigration and Multicultural Affairs[27] or Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs.[28]
[27] (2003) 77 ALJR 1088.
[28] [2003] FCAFC 184.
It was significant that the alleged “claim” did not feature in the original initiating application before this court.
In my view, no jurisdictional error in the proceeding before the Tribunal was shown. To the contrary. In my view the Tribunal carefully and properly analysed all material before. The claim now asserted was not before it.
The s.438 certificate point
In written submissions filed with leave, counsel for the Minister accepted that the relevant certificate given under s.438 of the Migration Act 1958 (Cth) (“the Act”) was on its face, invalid: MZAFZ v Minister for Immigration and Border Protection[29] (“MZAFZ”). The Minister contended that MZAFZ was wrongly decided because –
[J]urisdictional error does not follow from the Tribunal acting on, or not disclosing, an invalid certificate unless by doing so the Tribunal’s jurisdiction to review the delegate’s decision miscarries or by so doing the applicant is denied procedural fairness.[30]
[29] [2016] FCA 1081 at [37].
[30] The first respondent’s further supplementary outline of submissions filed 22 March 2017 at [4].
Before addressing the more developed submissions concerning the s.438 point, it is important at once to deal with the Minister’s contentions that MZAFZ was wrongly decided.
The Full Court of the Federal Court of Australia held in Singh[31] that the decision of Beach J in MZAFZ was correct. In debate during the hearing of the application to the High Court of Australia for special leave to appeal against the decision of the Full Court of the
Federal Court of Australia’s decision, s.438 of the Act was specifically mentioned. The Honourable Justice Gordon in arguendo put to counsel for the Minister that it was the existence and handing over of the certificate that gave rise to the disclosure of information relevant to the way the matter was conducted before the Tribunal. Her Honour put the proposition that the fact that the Tribunal later referred to it was too late.
[31] [2016] FCAFC 183 at [39].
In the upshot, Keane and Gordon JJ were not persuaded that the proposed appeal from the decision of the Full Court of the
Federal Court of Australia enjoyed sufficient prospects of success to warrant the grant of special leave to appeal. The decision in Singh therefore stands and with it, the decision of Beach J in MZAFZ.
As mentioned previously, leave to appeal to the High Court of Australia was refused on 12 May 2017. On precisely the same day
Lee J of the Federal Court of Australia considered the decision of Beach J in MZAFZ and held, in AJB16 v Minister for Immigration and Border Protection,[32] that the holding in MZAFZ was not apposite to the facts of that case. On the other hand on 23 May 2017 Barker J of the Federal Court of Australia in AVO15 v Minister for Immigration and Border Protection[33] (“AVO15”) specifically addressed the impact of the
High Court’s refusal of special leave. Barker J addressed the Minister’s argument in AVO15 in seeking to distinguish MZAFZ and Singh by contending that no basis existed for inferring from the Tribunal’s decision that the Tribunal acted upon the relevant certificate. Barker J considered the matter from paragraph 84 of his Honour’s reasons.
His Honour held that in relation to the five documents the subject of the s.438 certificate, the circumstances in which the fact of
non-disclosure occurred showed that no substantive issue arose from
non-disclosure in that case. Consequently, his Honour held that principles of jurisdictional error and outcomes canvassed in MZAFZ and Singh had no practical application in the case of AVO15.
[32] [2017] FCA 544.
[33] [2017] FCA 566.
The relevant folios in this case were 77 and 124/126. The applicants asserted that the contents of those folios were highly prejudicial because the first applicant –
a)was said to have links to Asian crime gangs;
b)was tied to violent criminal activity having witnessed an horrific attack on a Chinese student;
c)hid from police; and
d)had her student visa cancelled, possibly a matter of credit.
The first applicant said an “obvious possibility”[34] existed that the Tribunal was influenced by the prejudicial material referred to immediately above. Ms Costello submitted that the first applicant only needed to establish that the Tribunal’s error deprived the applicants of the possibility of a successful outcome, citing in support the decision of the High Court of Australia in Minister for Immigration and Border Protection v WZARH[35] (“WZARH”). Ms Costello submitted that –
The Applicants were deprived of the opportunity to have the documents disclosed to them and then to make submissions and call evidence about the content of the documents, thereby lessening or removing the prejudicial impact of the material from the Tribunal’s mind.[36]
[34] Applicant’s further submissions in reply filed 29 March 2017 at [6].
[35] (2015) 256 CLR 326 at [56].
[36] Applicant’s further submissions in reply filed 29 March 2017 at [7].
Ms Costello contended that the fact that the Tribunal read and considered the information in folios 77 and 124/126 can be inferred. Ms Costello submitted that it can be inferred as well that the Tribunal acted on the s.438 certificate by deciding not to disclose the documents and information that was subject to the s.438 certificate. Ms Costello in her written submissions contended –
It is absolutely clear that the highly prejudicial content of folios 77 and 124/126 were not disclosed to the Applicants.[37]
[37] Applicant’s further submissions in reply filed 29 March 2017 at [10(b)].
Mr Brown for the Minister contended that having regard to the content of the documents and the Tribunal’s reasons for affirming the delegate’s decision, the disclosure to the applicants of the s.438 certificate and documents during the review could not possibly have made any difference. The applicants relied upon the observations of Gageler and Gordon JJ in WZARH to the following effect –
Where, however, the procedure adopted by an administrator can be shown itself to have failed to afford a fair opportunity to be heard, a denial of procedural fairness is established by nothing more than that failure, and the granting of curial relief is justified unless it can be shown that the failure did not deprive the person of the possibility of a successful outcome. The practical injustice in such a case lies in the denial of an opportunity which in fairness ought to have been given.[38]
[38] (2015) 256 CLR 326 at [60].
Did the failure to disclose the existence of the s.438 certificate and the information in the relevant folios deprive the applicants of the possibility of a successful outcome?
In my view it did not.
The applicants’ only reference to the Tribunal’s alleged consideration of the information in folios 77 and 124/126 was at paragraph 22 of the Tribunal’s reasons. The applicants’ further written submissions in reply filed 29 March 2017 at paragraph 8 stated that it can be inferred that the Tribunal “read, considered and might have been influenced by the information” in those folios and that the inference arose from the wording of paragraph 22 of the Tribunal’s reasons where the Tribunal noted something about one of the documents on the student file. To my mind, no such inference could or should be drawn. The note that the Tribunal referred to related to a loan not to links to gangs,
horrific attacks having been witnessed by the first applicant, hiding from police or the cancellation of a student visa as the applicants asserted. To my mind, the applicant elevated to an unrealistic level the inferences that could have been drawn from the certificate and information in the folios mentioned. I do not agree that by failing to disclose the certificate the applicants were denied the possibility of a successful outcome in the case.
In my view the Tribunal made no jurisdictional error in respect of the points agitated concerning the s.438 certificate. The point had no merit.
Conclusion
I dismiss this proceeding and order the applicants pay the costs of the Minister.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Associate:
Date: 8 August 2017
2
17
3