SZSTF v Minister for Immigration

[2013] FCCA 1529

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSTF & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1529

Catchwords:
MIGRATION – Application for review of a decision of the Refugee Review Tribunal – application dismissed.

Legislation:  

Migration Act 1958 (Cth), ss.36, 91R, 424A, 426

Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63

SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26

SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58

First Applicant: SZSTF

Second Applicant: SZSTG

Third Applicant: SZSTH

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 737 of 2013

Judgment of: Judge Barnes

Hearing date: 5 September 2013

Delivered at: Sydney

Delivered on: 5 September 2013

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: Minter Ellison

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration, Multicultural Affairs and Citizenship’.

2. The application be dismissed.

3. The First Applicant pay the costs of the First Respondent fixed in the amount of $4,300.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 737 of 2013

SZSTF

First Applicant

SZSTG

First Applicant

SZSTH

First Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 12 March 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants’ protection visas. 

2. The Applicants are a mother and her two infant children.  The infant children were born in Australia.  The mother is a citizen of the People’s Republic of China.  For convenience I refer to her as ‘the Applicant’.  In her protection visa application the Applicant claimed to fear harm in China on the basis of her religion.  She claimed that she had converted to Christianity after coming to Australia.  She provided various documents in support of her claims, including certificates of baptism and confirmation, supporting letters and various items of country information. 

3. The Applicant attended an interview with the delegate of the First Respondent.  At that time she also claimed that she and her second child, the Third Applicant, would suffer harm in China because he had been born in violation of China’s one child policy.

4. The application was refused and the Applicants sought review by the Tribunal.  The Applicant provided a statement in support of the review application which repeated her original claims and took issue with the findings of the delegate. 

5. The Applicants were invited to and attended a Tribunal hearing.  The Applicant gave evidence on 25 February 2013, as did Ms Yu who was said to be the leader of the Chinese congregation the applicant belonged to in Australia.  The only evidence of the Tribunal hearing before the Court is the Tribunal’s account in its reasons for decision. 

6. In its reasons for decision the Tribunal set out in some detail the evidence to the delegate and at the Tribunal hearing.  I will return to aspects of that evidence relevant to the grounds relied on by the Applicant.  The Tribunal also set out independent country information about the situation in China. 

7. In its findings and reasons the Tribunal stated that it was proceeding on the basis that the Second and Third Applicants, as well as the First Applicant, were nationals of the People’s Republic of China. It assessed their claims against China as their country of nationality both for the purposes of the Refugee Convention claims and the complementary protection criterion in s.36(2)(aa) of the Migration Act 1958 (Cth) (the Act).

8. The Tribunal summarised the Applicant’s claims to fear persecution on the basis of her religious beliefs following her conversion to Christianity and that she would be persecuted for breaching China’s family planning laws for having a second son who was born in Australia.  Although there was no claim in relation to the Second Applicant, the Tribunal considered not only the claim that the Third Applicant would be persecuted because he was born in breach of China’s family planning laws but also any claim for protection having regard to family planning laws in the province of China from which the Applicant came.  The Tribunal considered that a claim for protection arose for each of the Second and Third Applicants for having been born in breach of local family planning laws, even though the Applicant did not believe that her first-born child would have any difficulties in China.

9. First, notwithstanding that it expressed some concern in relation to aspects of the Applicant’s evidence, on the basis of her evidence in relation to her Christian practices and other evidence, including documentary evidence and the evidence of Ms Yu, the Tribunal found that it was not certain that the Applicant’s conduct in becoming involved with the church and pursuing Bible study in Australia was for the sole purpose of strengthening her refugee claim. It therefore found that s.91R(3) of the Act was not enlivened and did not disregard such conduct for the purposes of assessing whether the Applicant had a well-founded fear of persecution.

10. The Tribunal accepted that if the Applicant was to return to China she would wish to practise her Christian beliefs.  It also accepted that she would attend an underground church if she were to return to China.  However the Tribunal was not satisfied that the Applicant would evangelise in China as claimed, having regard to a lack of detail and inconsistent and unpersuasive aspects of her evidence in that respect which it outlined. 

11. The Tribunal was willing to accept that the Applicant may have once handed out pamphlets on behalf of the church in Australia, but did not consider that this demonstrated any commitment to evangelising in Australia where the applicant was free to do so if she so desired.  Nor did it accept that the Applicant’s responsibilities as a parent would have prevented her from practising her beliefs if she truly wanted to evangelise.  The Tribunal was of the view that the Applicant had exaggerated her plans to evangelise in China to strengthen her application.  It did not accept she would publicly preach or invite non-Christians to her home for meetings in China.  It preferred her initial evidence that she would evangelise by speaking privately with friends about her beliefs and by welcoming newcomers to the church.  Having regard to independent country information to which it referred about the treatment of underground Christians in China, particularly in Fujian province, the Tribunal concluded that given the tolerant attitude taken by the Fujian authorities towards unregistered believers, it was not satisfied there was a real chance the authorities would take action against the Applicant for attending an underground church.

12. The Tribunal considered, but did not accept, the claim that the Applicant’s family would report her in China.  It had regard to the absence of evidence in support of such claim and noted that the Applicant did not raise it as a fear at the hearing.  The Tribunal went on to find that even if the Applicant’s family were to report her for attending an underground church, it was not satisfied on the independent country information that the authorities would take any action against her on that basis.  The Tribunal was of the view that the evidence was that if any targeting occurred, it was most likely to be against house church leaders, or house churches in urban areas which were not relevant to the Applicant’s claims.

13. The Tribunal did not consider that the Applicant had a profile that would bring her to the attention of the authorities in China in relation to her religion.  It referred to its earlier findings, its rejection of the Applicant’s claims about her intentions to evangelise, independent country information, and the fact that the Applicant had no religious record with the Chinese authorities.  The Tribunal found that there was no real chance the Applicant would face persecution in the reasonably foreseeable future if she returned to China and continued to practice her faith as a Christian.

14. The Tribunal also addressed the complementary protection criterion in this context in light of country information about the treatment of Christians in China and its findings that the Applicant would not publicly evangelise and did not have a profile that would bring her to the attention of the authorities.  The Tribunal concluded that it had no substantial grounds for believing that as a necessary and foreseeable consequence of the Applicant being removed from Australia to China, there was a real risk she would suffer significant harm on this basis.

15. The Tribunal then considered the claims based on violation of China’s family planning laws.  Although no claim had been made in relation to the Second Applicant, it found that because at the time of his birth his mother was only 19 years old, under the Fujian family planning laws he was considered to have been born before the stipulated time and forbidden.  It accepted that the Third Applicant (the Applicant’s second child) was also forbidden, and that the limited exceptions were not applicable.  Hence the Tribunal found that the First Applicant had breached the family planning laws as a result of the birth of both children. 

16. The Tribunal accepted, however, that the family planning law was a law of general application that was appropriate and adapted to a legitimate purpose in the context of the perceived need in China to control the overall population growth.  It was not satisfied it would be applied against the Applicants in a discriminatory manner.  The Tribunal did not consider that the application of the family planning laws, including the imposition of a social compensation fee, constituted persecution for the purposes of the refugee protection criterion.

17. The Tribunal did not accept the Applicant’s claim that she faced the risk of forced sterilisation if she returned to China in light of country information that was said to indicate that it was unlawful to force a parent to be sterilised.  It found that whilst overzealous officials had been known to engage in this practice in some provinces, it had been uncommon in Fujian province other than for some isolated reports. 

18. The Tribunal addressed the Applicant’s claims that her aunt had been subjected to forced sterilisation.  It referred to the absence of evidence in support of this claim and found that in any event it had occurred in very different circumstances, where the aunt was pregnant and the authorities required her to have an abortion.  The Tribunal observed that the Applicant’s second child had already been born.  The Tribunal did not accept that the aunt’s situation was indicative of the Applicant’s treatment if she were to return to China.

19. The Tribunal also considered whether the Applicants would face harm as a result of the Applicant’s asserted inability to pay the fine or social compensation fee in relation to the birth of her two children.  It accepted that a social compensation fee would be payable and discussed the likely amount of such fee based on country information about the situation in China and the Applicant’s circumstances. 

20. The Tribunal addressed the Applicant’s evidence that she would not be able to pay the fee, her husband’s financial situation, his work in Australia and his financial support for the family.  It was not satisfied that he would necessarily return to China with the rest of the family in circumstances where he was apparently working in Melbourne and providing financial support for the family.  The Tribunal found that even if the husband did choose to return to China, he had been working in Australia for many years and had acquired skills and demonstrated resourcefulness that would assist him in acquiring work in China in order to pay the fees.

21. Given their resourcefulness and past employment history, the Tribunal was not satisfied on the evidence that the Applicant and her husband would be unable to obtain some work in China to enable them to pay the necessary compensation fee to register the children, especially in light of the ability to pay by instalments. 

22. The Tribunal also took into account that the Applicant’s family had accessed sufficient resources to send her to Australia to study.  It addressed her claims that they had disowned her because of her conversion to Christianity and Ms Yu’s claims in that respect.  However, while it was willing to accept that the Applicant’s family did not approve of her conversion and may have a strained relationship with her, it was not satisfied that this meant they would not assist their only grandsons or that they would refuse to assist them because they perceived them to be Christian converts because they had been baptised.  Nor, given the Applicant’s lack of knowledge about her husband’s family, was the Tribunal satisfied that she could know that they would be unwilling and unable to assist in registering their grandchildren.

23. The Tribunal concluded that it was not satisfied that the Applicant and her husband would not be able to access sufficient funds from a combination of their earnings in Australia, future earnings in China and assistance from friends and family.  It reiterated that they had shown themselves to be hard-working and resourceful and willing to be physically separated.

24. The Tribunal was satisfied that upon payment of the social compensation fee the children would be able to obtain household registration and hence access to basic entitlements such as education, health care and other social services associated with household registration. 

25. The Tribunal considered whether the children would face harm in the form of persecution by reason of their status as unregistered children until such time as they were registered if the Applicant paid by instalments.  It accepted that, as indicated in independent information, higher school fees would be applicable for an unregistered child, but had regard to the fact that there were a number of reasonably priced private schools that could be accessed.  It found that while the country information on health care was somewhat contradictory, the latest DFAT information indicated that there was no public health system in China and all residents must fund their own medical costs, whether they were registered or unregistered.

26. The Tribunal was not satisfied that the implications of not being eligible for state-funded education and/or health benefits as an unregistered child constituted harm of such nature or extent as to amount to persecution, having regard to the examples of serious harm in s.91R(2) of the Act, or significant harm for the purposes of the complementary protection provision, having regard to the definition in s.36(2A) of the Act.

27. The Tribunal concluded that having considered the Applicants’ circumstances individually and cumulatively, they were not owed protection obligations in Australia.  It affirmed the decision under review. 

28. The Applicants sought review by application filed on 10 April 2013.  There are three grounds in the application.  The Applicant did not file written submissions, but made oral submissions today in which she raised a number of issues, some of which may be seen as elaboration of the claims in her application and some of which appear to raise fresh issues. 

29. It is convenient to consider first the grounds in the written application.  The first ground is that the Tribunal “failed to consider evidence of my auntie given by me”. 

30. It appears that this is a claim in relation to the oral evidence given by the Applicant at the Tribunal hearing.  There is no evidence that any aunt of the Applicant provided any form of evidence in support of the Applicant’s claims.  However, the Tribunal’s accounts of the Applicant’s evidence, both to the delegate and at the Tribunal hearing, included consideration of claims made by her in relation to what she eventually explained were two different aunts. 

31. The Tribunal recorded that in the interview with the delegate the Applicant had referred to a paternal aunt in China who had converted to Christianity and cut ties with her family and to whom the Applicant’s father no longer spoke because of her religion.  At the Tribunal hearing the Applicant reiterated claims in relation to this aunt, but also referred to a different aunt who she claimed had had a forced abortion and sterilisation.  According to the Tribunal, the Applicant stated that this had occurred in the period from November 2012 to January 2013 at a time her aunt was pregnant with her second child.  She explained she had contact with this aunt online and that it was a different aunt to the convert.  This aunt had not disowned the family and did not have any religious beliefs. 

32. The Tribunal addressed the Applicant’s evidence and her claims that her family would report her as a Christian and also her claims to fear sterilisation. 

33. As the First Respondent submitted it is clear from its reasons for decision that the Tribunal had regard to the Applicant’s evidence about both aunts.  The first aunt’s experience as a member of an authorised registered church was of little relevance in relation to the Applicant’s claim to fear persecution as an attendee at an underground church.  The Tribunal addressed the evidence about the second aunt in its findings and reasons as described above. 

34. Beyond this the Applicant has not identified any particular evidence the Tribunal was said to have overlooked. There is no suggestion she asked the Tribunal to take evidence from either aunt such as to oblige the Tribunal to consider this issue (see s.426(3)). It cannot be said that failing to obtain evidence from either aunt would be a failure to make an obvious inquiry about a critical fact the existence of which is clearly ascertained in the sense considered in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39.

35. Ground one is not made out. 

36. Ground two is that the Tribunal “did not give my chance to review my interview”. 

37. If the Applicant is asserting that she should have been given the opportunity in some way to respond after the hearing in writing, or indeed, at any other time, there was no such general obligation on the Tribunal. There is nothing to indicate that she sought any opportunity to put further information before the Tribunal. Nor is there anything to indicate that there was any information that would be the reason, or part of the reason, for affirming the decision under review, that would be subject to the s.424A(1) obligation. The evidence given by the Applicant at the Tribunal hearing was not subject to the s.424A(1) obligation. Nor is independent country information (see s.424A(3) of the Act). The Applicant’s oral evidence to the delegate about the aunt who converted is not “information” within s.424A(1) (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26 at [17] – [18]). Ground 2 is not made out.

38. Ground 3 is “I was not given chance to respond to RRT’s refusal”. Insofar as this may be taken as a contention that the Tribunal was obliged to give the Applicant an opportunity to respond after it had made a decision to refuse her application, there is no such obligation on the Tribunal. It seems however from the Applicant’s submissions that this is an allegation that the Tribunal should have in some way put to her its thought-processes, whether by way of a running commentary or draft decision. There is no obligation on the Tribunal to take such a step, whether under s.424A of the Act or otherwise (see SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63 and SZBYR).  The Tribunal met its obligation under s.425 of the Act to invite the Applicant to a hearing.  That was the opportunity for her to address dispositive issues that the Tribunal raised with her and to put evidence before the Tribunal in support of her claims. Ground 3 is not made out.

1. In oral submissions the Applicant raised a number of claims which in some respect overlapped with the grounds pleaded in her application.  I have considered all of the issues that were raised or appeared to be raised by the Applicant today.  The Applicant said that the Tribunal ignored the fact of forced sterilisation in China, did not allow her to provide evidence of her aunt’s forced sterilisation, concluded that she would not be subject to forced sterilisation because she had no evidence of her aunt’s forced sterilisation or abortion, that it mixed up the facts and concepts and that this led it to conclude that the Applicant would not be subject to forced sterilisation in circumstances where her aunt had been so subject. 

2. The Applicant also took issue with the Tribunal’s approach to independent country information, given that in one part of its decision it was said to have found such information unreliable, but in another part of its decision relied on information in relation to another issue.  She reiterated her claims that she did not have a chance to respond to the Tribunal hearing after listening to the tape and suggested that there was insufficient time after the hearing and before the decision.  Her claims may also be seen as raising, at least implicitly, a suggestion that the Tribunal should have invited her to provide additional corroborative evidence in relation to her aunt’s claimed forced sterilisation and abortion in China. 

3. As the solicitor for the First Respondent submitted, these claims take issue with what may be seen as the Tribunal’s procedural obligations, appear to suggest a failure to consider a claim or an integer of a claim, take issue with the Tribunal’s treatment of independent country information, are suggesting that the Tribunal reasoning was unreasonable or irrational. 

4. The Applicant’s claims in relation to her aunts’ experience appear to be concerned with the Tribunal’s treatment of the evidence in relation to the aunt who she claimed at the Tribunal hearing had been forced to have an abortion and forced sterilisation.  Insofar as there is any contention that the Tribunal failed to have regard to the Applicant’s claims about her fears if she returned to China, as set out above, the Tribunal addressed the Applicant’s claim that she faced the risk of forced sterilisation if she returned to China.  It had regard to country information in that respect and considered the claim that her aunt had been subjected to a forced abortion and sterilisation.  It referred not only to the absence of supporting evidence, but also to the very different circumstances, as the aunt was said to be pregnant, whereas the Applicant’s second child had been born.

5. It was open to the Tribunal in light of the information before it, to reach the conclusions that it did, based in essence on the country information.  It did not ignore the Applicant’s claims in relation to her aunt.  Nor did it ignore country information in relation to forced abortion or sterilisation in China.  I note in that respect that the Tribunal recorded that in the course of the hearing it put independent country information to the Applicant for comment that suggested that forced sterilisation was illegal and not widespread in Fujian, apart from isolated reports.  The Applicant responded that she had no comment about this.  She did not take issue with the independent country information to which the Tribunal referred, apart from reiterating that her aunt had had such an experience.

6. Insofar as the Applicant disagreed with the Tribunal’s approach to the country information about forced sterilisation in China, the selection and weight to be given to items of independent country information is a matter for the Tribunal.  It set out the information in that respect in its reasons.  Its findings were open to it for the reasons that it gave on the material before it. 

7. Insofar as the applicant contended that the Tribunal did not allow her to provide evidence about her aunt’s forced sterilisation, there is no evidence, and nor did the Applicant claim today, that she asked the Tribunal for the opportunity to provide such evidence.  Rather she explained today that her concern was that the Tribunal did not ask her for evidence from her aunt. 

8. These circumstances are not indicative of jurisdictional error.  There is nothing in the Tribunal account of the Tribunal hearing to suggest that it prevented the Applicant from giving evidence on this issue or that the Applicant sought to put on more evidence in relation to her aunt and was denied the opportunity.  Nor is there any evidence to support any claim that the Applicant sought an adjournment, such that issues in relation to the reasonableness of the Tribunal’s exercise of its discretion in that respect would arise in the sense considered by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18.  At the Tribunal hearing, the Applicant was given the opportunity if she wished to say anything else, in circumstances where the Tribunal had raised with her its concerns about the independent country information. 

9. Moreover it is well-established that it is for an applicant to advance evidence and arguments in support of her claims (see Gummow and Hayne JJ in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 at [187]). The Tribunal is not in the position of a contradictor. It is for an Applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. Moreover as Keane CJ pointed out in Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41 at [22], the provisions of the Act do not support the view that the Tribunal is under an obligation to press an applicant to call further evidence on an issue, or to seek an adjournment of the hearing to enable him or her to do so, or indeed, to seek out such evidence itself. As already indicated, this is not a case in which the Tribunal was under a duty to make inquiries in the sense considered in SZIAI.

10. The Tribunal did not simply reject the Applicant’s claims to face the risk of forced sterilisation on the basis of the absence of supporting evidence in relation to her aunt.  Rather it had regard to the absence of corroboration, the independent country information, and the different circumstances in finding that the claims about the aunt did not establish the Applicant’s claims.  The Tribunal did not accept that the aunt’s situation was indicative of how the Applicant would be treated if she returned to China.  No jurisdictional error has been established on any of these bases. 

11. It appears that the Applicant’s claims about the Tribunal “mixing up” facts and concepts also refers to this aspect of the Tribunal’s reasoning.  Contrary to the Applicant’s contentions, it has not been established that the Tribunal mixed up facts and concepts in the manner in which it distinguished between the circumstances her aunt had faced and the circumstances the Applicant would face on return to China.  Insofar as the Applicant’s claim appears to be that the Tribunal did not completely address her claim to face the possibility of forced sterilisation in the future, albeit she had already had a second child, the Tribunal specifically rejected such claim based on the independent country information in relation to the situation in the Applicant’s home province.  It has not been established that the Tribunal failed to address any integer of the Applicant’s claims in this or in any other respect. 

12. The claim that the Tribunal’s reasoning was unreasonable and irrational appears to be associated with the claim that it dealt differently with different aspects of independent country information.  The Applicant took issue with the fact that the Tribunal had found that independent country information was unreliable on p.199 of its reasons for decision but had nonetheless applied independent country information in relation to forced sterilisation. 

13. The only discussion of independent country information on p.199 of the Tribunal decision is in the context of its consideration of the consequences of breaches of the family planning laws as a result of the birth of the Second and Third Applicants.  The Tribunal considered whether the children would face harm in the form of persecution until such time as they were registered.  It had regard to independent information in respect of education.  It made no critical finding in relation to that independent country information and applied it.  The Tribunal did find that country information on health care was somewhat contradictory. 

14. The contradictory information is apparently a reference to information cited earlier in the Tribunal decision being a 2009 research paper published by Stanford University which referred to both public health providers and private health providers compared to DFAT advice which stated that China did not have a national health insurance system for children so that a child’s registration status was not relevant to accessing medical services. 

15. The Tribunal did not find that any country information was “unreliable” as the Applicant submitted, but rather preferred what it described as the latest DFAT information indicating that there was no public health system in China and that all residents must fund their own medical costs whether registered or unregistered.

16. It was open to the Tribunal to prefer the evidence from DFAT.  The fact that it did so does not establish that its reliance on other independent country information (in particular relevant to the Applicant’s claims to fear forced sterilisation) was unreasonable or irrational such as to constitute jurisdictional error in the very narrow sense considered by the High Court in the Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 as explained by the Full Court of the Federal Court in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58.

17. Even if a different decision-maker might have reached a different position on the material before the Tribunal that does not suffice to establish unreasonableness or irrationality.  There is nothing in the material before the Court to establish that the Tribunal’s reasoning was irrational or unreasonable in the sense considered in SZMDS and explained by Rares J in SZOOR. As his Honour pointed out at [15] the approach to irrationality or illogicality dictated by the authorities in the High Court appears to be that even if the decision-maker’s articulation of how and why he or she went from the facts to the decision is not rational or logical, if someone else could have made that decision on the evidence it will not be set aside. In any event, in this case it has not been established that the Tribunal’s articulation of how it went from the facts to the decision was not rational or logical. No jurisdictional error has been established on this basis.

18. The Applicant’s contention that she should have had an opportunity not only to listen to the tape of the Tribunal hearing but also to respond to what was said in that hearing before the Tribunal made its decision does not establish jurisdictional error.  There is no such obligation on the Tribunal under the Act.  Nor has it been established that such obligation otherwise arose as an incident of procedural fairness.  In particular, there is nothing in the Tribunal’s account of the hearing to suggest that the Tribunal undertook to provide such opportunity to the Applicant in this case.  Rather, the Tribunal raised dispositive issues with the Applicant at the hearing.  She had the opportunity to respond.  No jurisdictional error is established on this basis.

19. The Applicant also took issue with the time between the hearing and the making of the decision.  The time between the hearing of 25 February 2013 and the decision of 12 March 2013 is not indicative of jurisdictional error.  Indeed, the Tribunal would have been entitled to make its decision on the day of the hearing in circumstances where there is nothing to suggest that it had indicated that it would delay making a decision and no indication that the Applicant sought an adjournment such that the request would have to be considered by the Tribunal. 

20. Finally, insofar as the Applicant appeared to contend that the Tribunal should have invited her to put on extra evidence from her aunt, as already indicated the Tribunal is not under an obligation to invite or press an applicant to call further evidence on an issue or to inform her as to how best to put her case (see SZNVW).  While the Tribunal has the power to obtain further information, it was not under an obligation to do so.  No jurisdictional error has been established on this basis.

21. In submissions in reply the Applicant took issue with the merits of the Tribunal decision, suggesting that the Tribunal had ignored the facts in relation to her aunt’s abortion.  She disagreed with its conclusions in relation to her ability to meet the social compensation fee for the children.  Merits review is not available in this Court.  The Applicant’s claims in that respect do not establish jurisdictional error.

22. As no jurisdictional error has been established on any of the bases contended for by the Applicant the application must be dismissed.

    RECORDED  :  NOT TRANSCRIBED

23. The Applicants have been unsuccessful and the Minister seeks that the First Applicant pay costs in the sum of $4,300.  The Applicant told the court that she did not have money.  However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.

24. The amount sought is considerably less than the amount provided for in the Federal Circuit Court Rules. It is appropriate and reasonable in light of the nature of this and other similar matters. It is also appropriate to amend the name of the First Respondent to reflect the change of portfolio.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  4 October 2013