SZQNQ v Minister for Immigration

[2016] FCCA 656

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZQNQ & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 656

Catchwords:
MIGRATION – Administrative Appeals Tribunal (Migration & Refugees Tribunal) – Protection (Class XA) visa – whether the Tribunal erred in making adverse credit findings against the first applicant – whether the Tribunal failed to take relevant information into account – bias – no jurisdictional error identified – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 424A, 424AA, 476

First Applicant: SZQNQ

Second Applicant: CNU15

Third Applicant: SZQNR

Fourth Applicant: CNV15

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3255 of 2016

Judgment of: Judge Street

Hearing date: 29 March 2016

Date of Last Submission: 29 March 2016

Delivered at: Sydney

Delivered on: 29 March 2016

REPRESENTATION

The Applicants appeared in person

Solicitors for the First Respondent: Ms S Burnett
Clayton Utz

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the costs of the first respondent fixed in the amount of $6825.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3255 of 2016

SZQNQ

First Applicant

CNU15

Second Applicant

SZQNR

Third Applicant

CNV15

Fourth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

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) in respect of a decision of the Tribunal made on 27 October 2015, affirming the decision of the delegate not to grant the applicants protection visas.

2. The first and second applicants are the parents of the third and fourth applicants.  The first applicant and the third applicant have earlier applied for protection.  The first and third applicants’ applications for judicial review and ministerial intervention were unsuccessful.  Consistent with the principles in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71, the first and third applicants had lodged a further application for protection on the grounds of complementary protection under s.36(2)(aa). The second and fourth applicants are joined in the application for protection and their applications were assessed by the Tribunal, both under s.36(2)(a) as well as s.36(2)(aa).

3. The first and second applicants are citizens of China and the third and fourth applicants were found to be nationals of China and their claims were assessed against that country. 

4. The first applicant arrived in Australia on a student visa, TU571, on 9 March 2008.  A second student visa was cancelled on 17 April 2009.  It was not until 13 October 2010 that the first applicant lodged an application for protection.  That application was refused on 4 February 2011.  On review, the decision of the delegate was affirmed by the Tribunal on 25 July 2011.  An application for judicial review was unsuccessful and it was not until 11 October 2013 that the first applicant lodged a second application for protection. 

5. The second applicant arrived in Australia on 27 September 2005 on a student visa.  The second applicant departed Australia on 29 December 2007 and returned on a student visa on 11 February 2008.  The first and second applicants were married on 19 January 2014 in Australia. 

6. The applicants’ claim to fear significant harm or a fear of persecution by reason of the elder and younger daughters’ status as “black” or unregistered children in China and the alleged inability of the applicants to be able to pay the monetary penalty in relation to the children.  Further, the applicants maintain a claim for fear of persecution or significant harm by reason of the younger daughter’s health needs and an assertion of financial hardship and inability to be able to pay a social compensation fee. 

7. The first and second applicants also allege limited skills and employment prospects and the first applicant alleges that she and the children face social prejudice and discrimination because she was not married and that the families of the first and second applicants would not support the marriage that occurred in Australia.  The applicants also claim to have a well-founded fear of persecution or be at risk of significant harm because of their ongoing participation in branches of the local church in Fujian and Blacktown.

8. On 28 January 2016, a Registrar of the Court made orders providing the applicants with an opportunity to file an amended application, affidavit evidence and submissions.  No such documents were filed.  At the commencement of the hearing, the Court confirmed that the applicant wished to rely upon her affidavit evidence and the court book was tendered.  The Court explained to the applicant that it could only grant relief if there was jurisdictional error by the Tribunal and the court explained that jurisdictional error involved the Tribunal exceeding its statutory powers or denying the applicant procedural fairness.  The applicant confirmed that she understood that explanation. 

9. The Court also identified that the first respondent’s submissions had been read to the first applicant and the Court explained that those submissions explained the reasons why the first respondent alleged that the application failed to make out any jurisdictional error.  The applicant referred to the continuing adverse health position in relation to her younger daughter and the recent identification of ongoing regular needs for check-up.  The applicant maintained that they would not be able to pay the penalty in relation to having more than one child and that her children would be disadvantaged because of that in relation to their future.  The applicant maintained that she had no relationship with family members and that it would be impossible for them to help her. 

10. The first applicant also raised from the bar table, the proposition that the person who interviewed the applicant repeated questions that had been put before.  The first applicant suggested that the person had made up their mind on the material before the interview.  The first applicant also referred to a recent piece of news that contended that the first applicant could not pay the penalty by instalments and the Court indicated to the applicant that it would not receive further evidence on the merits as the Court did not have jurisdiction to revisit the merits of the matter.

11. The grounds of the application are as follows:

    1. The Administrative Appeals Tribunal did not consider the information about my sick daughter's health needs properly.

    2. The Administrative Appeals Tribunal overestimated the ease with which we could pay the social compensation fee.

    3. The Administrative Appeals Tribunal did not consider the difficulties with school and employment my children will have in China.

12. The Tribunal made adverse credit findings in relation to the applicants.  Those adverse credit findings were the subject of detailed reasons that were open on the material before the Tribunal.  The Tribunal rejected the applicant’s claims and fears.  The Tribunal found the first applicant and second applicant had fabricated the local church attendance in Australia and was of the view that the steps the applicants had taken in relation to local church activities were to further the application for a protection visa.

13. The Tribunal identified the fourth applicant’s medical conditions and found that it was not satisfied there was a real risk the younger daughter faced significant harm on her return to China as a result of her medical condition in the state of the Chinese health system and the treatment she would receive.  The Tribunal found that the second and fourth applicants did not have a well-founded fear of persecution for a convention reason.  The Tribunal found it was not satisfied that there was a substantial ground for believing that as a necessary and foreseeable consequence of any of the applicants being removed from Australia to China, there is a real risk they will suffer significant harm due to the claims of violence by the applicant or for any other reason.

14. It was in those circumstances, the Tribunal found that the applicants did not satisfy the criteria under ss.36(2)(a) or 36(2)(aa) and affirmed the decision under review. By a letter dated 22 July 2015, the applicants were invited to attend a hearing before the Tribunal on 21 September 2015. The first and second applicants attended on that date and the hearing was conducted with the assistance of an interpreter.

15. In relation to ground 1, it is apparent the Tribunal addressed the medical condition of the younger daughter and considered in detail the ability of the applicants to pay the fine for the applicants’ children.  The adverse findings by the Tribunal in relation to the fourth applicant were open on the material before the Tribunal.  Ground 1 fails to make out any jurisdictional error. 

16. In relation to ground 2, it was a matter for the Tribunal to determine whether or not the applicants were credible in their assertions as to the lack of financial support and ability to pay the fine.  The adverse findings by the Tribunal in relation to the applicants’ ability to pay the social compensation fee was open on the material before the Tribunal and ground 2 fails to make out any jurisdictional error.

17. In relation to ground 3, it is apparent that the Tribunal took into account the difficulties the third and fourth applicants may face in relation to the compensation fee and found that the compensation fee would be able to be paid by the applicants.  To the extent that there is a reference to employment of the children, no separate claim in relation to the employment of the children was advanced before the Tribunal and this was not a claim that arose upon the material before the Tribunal.  Further, given the finding of the Tribunal that the social compensation fee will be paid, the absence of reference to employment of the children was not a matter that could have had any material impact upon the outcome of the application.

18. The reference to education services in paras.117 and 135 is a reference to education services in relation to the children in respect of which the Tribunal made an adverse finding.  Ground 3 fails to make out any jurisdictional error.  Insofar as the applicant raised from the bar table the proposition that the person who interviewed the applicant appeared to repeat the same questions as raised before, the Court will treat that as a reference to a member of the Tribunal and as an allegation of bias.  An allegation of bias must be clearly alleged and properly proven.  No allegation of bias is made out in the present case.  No transcript has been tendered to support any criticism of the Tribunal. 

19. Further, the detailed reasons of the Tribunal are inconsistent with the assertion that the Tribunal member merely repeated questions that had been put before. It is clear that the Tribunal member raised information with the applicant consistent with s.424A and provided the applicant with an opportunity consistent with s.424AA to respond to that information. That history recounted in the Tribunal’s reasons is inconsistent with the assertion of the Tribunal merely repeating questions and is inconsistent with the proposition that the Tribunal did not ask any new questions. The adverse finding by the Tribunal is not a finding upon which an allegation of bias could be made out.

20. The putting of questions by the Tribunal to the applicant and the adverse findings made by the Tribunal in relation to the applicant’s credibility are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal may not bring a fair and independent mind to the determination of the matter on its merits. 

21. The other matters raised by the applicant from the bar table in relation to her daughter’s health and her assertions in relation to the inability to pay the fine and the absence of a relationship by her or her husband with family in China are an impermissible challenge to the merits of the matter that were before the Tribunal to determine. 

22. Nothing said by the applicant from the bar table identified any jurisdictional error.  For these reasons, the applicant is dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 5 April 2016