SZSIJ on behalf of SZSIL v Minister for Immigration

[2018] FCCA 1652

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSIJ ON BEHALF OF SZSIL v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1652

Catchwords:
MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of a protection visa – applicant a child, represented by his mother, who had previously been refused a protection visa – applicant’s claims rejected by the Tribunal – whether the applicant’s claims were lawfully considered – no jurisdictional error.

Legislation:
Migration Act 1958 (Cth), s.438

Cases cited:
AVO15 v Minister for Immigration [2017] FCA 566
BEG15 v Minister for Immigration [2017] FCAFC 198
Minister for Immigration v BJN16 & Anor [2017] FCAFC 197
Minister for Immigration v CQZ15 [2017] FCAFC 194
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225
Minister for Immigration v SZMDS (2010) 240 CLR 611
SCAA v Minister for Immigration [2002] FCA 668

Applicant: SZSIL

Litigation Guardian: SZSIJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2988 of 2016

Judgment of: Judge Driver

Hearing date: 22 June 2018

Delivered at: Sydney

Delivered on: 22 June 2018

REPRESENTATION

The Applicant’s Litigation Guardian appeared in person

Counsel for the Respondents: Ms N Laing

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2988 of 2016

SZSIL

Applicant

SZSIJ

Litigation Guardian

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction and background

1. The applicant is a charming and well behaved child.  He was represented in these proceedings by his mother, who is his litigation guardian.  The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 18 October 2016. 

2. Background facts relating to this matter are set out in the Minister’s outline of submissions filed on 15 June 2018. 

3. The applicant is a citizen of China, who was born in Sydney on 11 April 2011.  His mother applied for the visa on his behalf on 16 May 2014.[1] 

   [1] Court Book (CB) 1-33

4. On his behalf, the applicant’s mother claimed that the applicant faced harm in China because of:

   a)her beliefs and practice of her religion as a Jehovah’s Witness;

   b)his birth outside of marriage, in breach of China’s family planning laws.  As she cannot pay the social compensation fee, the applicant will not be eligible to receive social welfare benefits and will be disadvantaged in other areas such as access to education and medical services; and

   c)his birth out of wedlock will result in discrimination due to traditional Chinese attitudes. 

5. The application was refused by the delegate on 25 February 2015,[2] which decision was affirmed by the Tribunal on 18 October 2016.[3]

   [2] CB 50-69

   [3] CB 92-103

Tribunal decision

1. The Tribunal accepted that the applicant’s mother had developed a connection with the Jehovah’s Witnesses since coming to Australia.  However, the Tribunal observed that country information indicated that Jehovah’s Witnesses was not on the list of officially banned cults in China.  The Tribunal was unable to locate any credible reports of persecution of Jehovah’s Witnesses.  Although China does not allow proselytising in public or unregistered places of worship, the Tribunal concluded that the applicant’s mother was not qualified to proselytise, having not undertaken the requisite process and having regard to her practices in Australia.  The Tribunal was satisfied that the applicant’s mother would be able to maintain her beliefs in China without exposing her son to a real risk of the relevant harm.[4]

   [4] [48]-[49]

2. In relation to the applicant having been born out of wedlock, the Tribunal had regard to country information that indicated the applicant would be able to obtain household registration following relaxation of family planning laws.  The Tribunal accepted that the mother may be required to pay a social compensation fee.  However, the Tribunal was satisfied that the mother would be able to pay the fee having regard to the mother’s work in Australia and that of her siblings as well as her brother’s demonstrated willingness to provide assistance.[5]

   [5] [43]-[44]

3. The Tribunal acknowledged that traditional attitudes continued to exist in China in relation to unwed mothers, particularly in rural areas.  The Tribunal observed that the applicant’s mother was not from a rural area but Fuzhou city where traditional values were unlikely to be as strongly held.  In any event, the Tribunal accepted that the applicant may from time to time experience some stigma and discrimination. However, the Tribunal was satisfied that this would not amount to serious or significant harm.[6]

   [6] [45]

4. For the above reasons, the Tribunal was not satisfied that the applicant was a person to whom protection obligations were owed.  Accordingly, it affirmed the delegate’s decision.[7]

   [7] [52]-[55]

The current proceedings

1. These proceedings began with a show cause application filed on 31 October 2016.  The applicant continues to rely upon that application.

2. The grounds in the application are contained in an attachment to it and somewhat confusingly appear under the heading “Orders Sought by the Applicant”.  The grounds are expressed as follows:

   1.I could not accept DIBP and AAT's decisions as I don’t think my real claim and situation have been given a good understanding and account for a reasonable consideration.  I don't think my family context has been thoroughly and carefully considered, especially my commitment and faith as well as my constant pursuing and practice involved in Jehovah Witness church in Australia.

   2.AAT' s conclusion for my real and lower chance of serious or significant harm if maintaining my religious beliefs in China is unacceptable because it is unrealistic and hypothetical with review based on the assumption.

   3.I don' t think AAT has fully understood and compromised my family special circumstance which I have explicit in the hearing in regards to my unmarried status and life change since converted to Jehovah witnesses in Australia. I am really stressed in such bias view. For a committed follower, I spare no effort in changing my life style, engaging enthusiastically myself in bible study and gospel preaching, disciplined my morality by doing good deeds and sharing mercy in helping others in need to ensure a qualified follower in Christ.

   4.AAT failed to properly consider our commitments in faith and ignored the evidence provided.

   5.AAT also failed to give unfair consideration to my honest explanation in hearing, misinterpreted my comment and information provided.

   6.AAT failed to gave me a chance to make a comment to outstanding issues that may exist off hearing. I am fairly disappointed in such dominant attitude and reckless decision.

   (paragraphs renumbered sequentially; errors in original)

3. Under the heading “Grounds of the Application”, the applicant repeats the protection claims. 

4. The grounds are conveniently summarised as raising four issues at [10] of the Minister’s submissions:

   The applicant raises a myriad of complaints by way of an annexure to the application for review.  As the Minister understands those complaints, they may be understood to raise the following grounds:

   (a)The Tribunal was unreasonable in coming to its findings (Ground 1);

   (b)The Tribunal failed to properly consider or understand the applicant’s claims and/or evidence (Ground 2);

   (c)     The Tribunal was biased (Ground 3);

   (d)The Tribunal failed to give the applicant adequate opportunity to make comment after the hearing (Ground 4).

5. I have before me as evidence the court book filed on 31 March 2017 and the affidavit of Thomas Shaw made on 5 May 2017. Mr Shaw’s affidavit deals with a purported certificate issued under s.438 of the Migration Act 1958 (Cth) (Migration Act) which appears at page 89 of the court book. Exhibited to Mr Shaw’s affidavit is a bundle of documents identified in the certificate. I have examined that material.

6. I received as a submission the applicant’s affidavit filed with the application. 

7. I invited oral submissions from the applicant’s litigation guardian this morning.  She asserted that the Tribunal decision is affected by bias.  When I explored that proposition with her, she put the view that the Tribunal’s decision was affected by the prior consideration of her own protection visa application. 

8. It is true that the Tribunal was aware of that prior protection visa application and referred to it at several points.  It is untenable, however, to claim that the present Tribunal did not bring an independent mind to bear upon the review application before it.  It is abundantly clear from its reasons that the Tribunal brought a fresh mind to bear on the present applicant’s review claims.  That was necessary because the applicant child’s circumstances might have been different from those of his mother and circumstances can change over time.  The Tribunal was, in my view, alive to those possibilities.  There is, in my view, no substance to the assertion of bias. 

9. In other respects I agree with the Minister’s submissions concerning the grounds of review advanced.

Ground 1 – unreasonableness

1. What is sought under this ground appears to be essentially merits review. 

2. The Tribunal’s reasoning cannot be said to be unintelligible.  In essence, after analysing the relevant country information against the applicant’s circumstances and those of his mother, the Tribunal was not satisfied that the applicant faced a real risk of relevant harm.  Such reasoning cannot be described as “arbitrary”, “capricious” nor unreasonable in a legal sense.[8]

   [8] Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130]; Minister for Immigration v Li [2013] HCA 18; (2013) 297 ALR 225 at [76]

Ground 2 – failure to consider

1. Contrary to this ground, the Tribunal considered the claims and evidence that were put forward on behalf of the applicant.  That included the applicant’s claims regarding his family context (born out of wedlock) and his mother’s practice as a Jehovah’s Witness. 

2. After considering relevant country information, the Tribunal rejected that the Jehovah’s Witnesses were outlawed in China or faced a real risk of persecution.  The Tribunal considered, by reference to country information and the individual claims and practices of the applicant’s mother, that neither he nor his mother faced a real risk of the relevant harm on this basis.

3. Nothing has been identified on behalf of the applicant that the Tribunal failed to consider.  For these reasons, the grounds that have been advanced on this basis cannot succeed.

Ground 3 - bias

1. The allegation of bias is unparticularised and appears to rely on the other grounds that have been raised.  It is well settled that bias must be “distinctly made and clearly proved”.[9]This is rarely able to be done in the absence of a transcript and on the face of the decision alone.[10]  Given the lack of particularisation and evidence, save for the assertions made from the bar table by the applicant’s mother dealt with above, the high threshold imposed for grounds of this nature has not been met in the present case.

   [9] Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J

   [10] SCAA v Minister for Immigration [2002] FCA 668 at [38]

Ground 4 - post-hearing submissions 

1. The basis upon which the applicant claims that he was not permitted to make further submissions is not clear on the materials before the Court. There is no general obligation on the Tribunal to allow post-hearing submissions. The Tribunal complied with the requirements of Part 7, Division 4 of the Migration Act.

2. There is no evidence that suggests the Tribunal was asked to adjourn its decision to enable further submissions to be made.  In the absence of such a request, the Tribunal could not be said to have unreasonably determined the matter when it did.  No error is demonstrated under this ground. 

3. The Minister’s submissions also raise the issue of the purported s.438 certificate. It is plain from a simple examination of the certificate that it is invalid. Having examined the documents purportedly covered by the certificate, I am satisfied that they are either not relevant at all to the Tribunal’s review or have only passing contextual relevance.

4. It follows that I agree with the Minister’s submissions on that issue. 

5. None of the documents could be said to have affected the Tribunal’s decision.  Accordingly, the certificate does not provide a basis upon which the Tribunal’s decision may be set aside.[11]

   [11] Minister for Immigration v CQZ15 [2017] FCAFC 194; BEG15 v Minister for Immigration [2017] FCAFC 198 and Minister for Immigration v BJN16 & Anor [2017] FCAFC 197. Special leave has been granted in respect of CQZ15 and BEG15 however this Court is bound by the decisions of the Full Court.  The Minister’s position in relation to the certificate cohort before this Court is that matters ought to be determined on the law as articulated in those cases

6. Neither the invalidity of the certificate nor the failure of the Tribunal to provide the applicant with a copy of it or the documents referred to therein gave rise to any practical injustice to the applicant.[12]  The documents could have been of no, or only passing, contextual relevance to the application and even if there was some technical breach, the applicant has not suffered any practical injustice.[13]

   [12] BEG15 at [33]

   [13] AVO15 v Minister for Immigration [2017] FCA 566 at [87], [91]

Conclusion

1. I conclude that the applicant is unable to demonstrate that the decision of the Tribunal is affected by any jurisdictional error.  The decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in the sum of $7,206.  The litigation guardian did not wish to be heard on costs. 

3. I will order that the applicant’s litigation guardian pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $7,206.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:       25 June 2018