SZWCR v Minister for Immigration and Anor (No.2)
[2016] FCCA 2803
•28 July 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZWCR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2016] FCCA 2803 |
| Catchwords: MIGRATION – Application for protection visa – review of decision of Refugee Review Tribunal – whether the Tribunal failed to lawfully consider the applicant’s case – whether the Tribunal failed to afford the applicant procedural fairness – claims to fear harm upon return due to China’s family planning laws – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.424A, 425 |
| Cases cited: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263 |
| Applicant: | SZWCR |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 362 of 2015 |
| Judgment of: | Judge Smith |
| Hearing date: | 28 July 2016 |
| Date of Last Submission: | 28 July 2016 |
| Delivered at: | Sydney |
| Delivered on: | 28 July 2016 |
REPRESENTATION
| The applicant’s litigation guardian appeared in person. |
| Solicitors for the Respondents: | Mr J Pinder, Minter Ellison |
ORDERS
The parties file and serve any written submissions concerning orders for costs within 7 days.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 362 of 2015
| SZWCR |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Delivered Extempore and Revised)
The applicant is three years old and was born in Sydney in 2013. His parents are citizens of China who arrived in Australia in October 2006 on student visas. The applicant is their second child. On 17 October 2013, the applicant’s parents lodged a protection visa application on his behalf. Although the applicant is a child, his parents are considered his guardians in common law, and so they are able to make claims and give evidence on his behalf (see Re Woolley; Ex parte M276 of 2003 (2004) 225 CLR 1; [2004] HCA 49).
The claims made for the applicant was that because the applicant was the second child born to his parents, and thus born in breach of the family planning laws of China, his mother would be forced to undergo sterilisation and pay a huge fine. More importantly, perhaps, for the applicant, it was claimed that he would be refused registration because he was a second child and suffer the consequence that he would not have available to him a number of important elements that are available generally to citizens of China who are registered.
It was also claimed that the applicant would be harmed as a result of his parents’ Christian faith, and the potential that he himself would develop such a faith. A delegate of the Minister made a decision on 13 May 2014 to refuse to grant the applicant a protection visa. By his parents, the applicant applied to the Refugee Review Tribunal[1] for review of that decision.
[1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).
Tribunal’s decision
The applicant was invited to attend a hearing to give evidence and present arguments before the Tribunal. The applicant’s parents attended the Tribunal hearing and gave evidence and answered questions put to the applicant by the Tribunal. The Tribunal made its decision on 30 January 2015 affirming the decision of the delegate to refuse to grant the applicant a protection visa.
The Tribunal accepted that the applicant was the second child of his parents. The Tribunal accepted that as a result, the applicant was born in breach of the family planning laws of China, and in particular, of Fujian province, to which the applicant’s parents said they would return if they were forced to return to China. It also accepted that prior to registration his parents would be required to pay a social compensation fee based upon their residence in an urban area of China. It accepted that that fee was substantial. However, the Tribunal found, on their own evidence, that the applicant’s parents were willing and able to pay the social compensation fee in Fujian for the birth of the applicant.
The Tribunal found then that it was possible that the applicant’s mother may be required to at least have an IUD[2] fitted, or to undergo forcible sterilisation, or at worst, an abortion. It found that that of itself would not result in any real chance that the applicant would suffer serious harm for any conventional reason. However, the Tribunal went on to consider the claim made on the applicant’s behalf that he would be unable to be registered until his mother underwent a forcible sterilisation. In this respect, it accepted that there was some evidence that coercive methods were used to require contraceptive steps to be taken by women, including sterilisation.
[2] Intrauterine Device, a contraceptive device.
However, the Tribunal found that the evidence as to that occurring in the Fujian province was limited. It also found that the evidence before the Tribunal indicated that the most common form of penalty under China’s family planning laws for breaching China’s family planning laws was the levying of a social compensation fee. It then referred to some country information about that fact. The Tribunal found on the basis of their information that the applicant’s parents would be able to obtain household registration for the applicant, following the payment of the social compensation fee.
For those reasons, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution arising out of the fact that he was born in breach of the family planning laws in China. It then turned to consider the claims concerning religion. In this regard, the Tribunal found that on the basis of country information, even if the applicant were raised as a Christian, that that fact and the fact that his parents practice their Christianity would not give rise to a real chance of persecution.
For those reasons the Tribunal was not satisfied that the applicant had met the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
The applicant was represented before the Court by his mother who is his appointed litigation guardian. I will refer to her submissions directly as the applicant’s submissions. The applicant relies upon an amended application filed on 29 October 2015. It appears at first glance to have one ground; namely, that the Tribunal failed to lawfully consider the applicant’s case, and failed to give him procedural fairness.
However, the particulars to that ground reveal that there are a number of arguments raised by the applicant in support of his application for judicial review. At a high level, what is asserted is that the claim concerning breach of family planning laws required the Tribunal to consider a number of things. This included firstly, whether the applicant would be subject to persecution if he could not obtain family household registration; secondly, if so, whether he would be denied registration; and thirdly, even if the Tribunal concluded that the applicant could get registration at some stage, then it also needed to consider how long the applicant would have to remain as a black child; that is a child born outside the family planning laws, – in his specific family circumstances.
I will deal with the third of those particulars first as it is the most straightforward. In essence, the particular is that even though the Tribunal found that the applicant would be able to obtain household registration upon payment of compensation, it did not consider two relevant matters:
i.The impact upon the applicant’s families of having to pay such a large fee or fine; and
ii.the impact upon the applicant of the time spent in China between arriving and his eventually obtaining registration, due to any delay in obtaining registration.
It is well established that if the Tribunal fails to consider a claim that is made by an applicant, or which arises sufficiently clearly on the material before the Tribunal, then the Tribunal will fall into jurisdictional error and its decision must be set aside (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) (2004) 144 FCR 1; [2004] FCAFC 263). The question then is whether the claim as such was actually made before the Tribunal. In my view, neither of the claims were.
The evidence given by the applicant’s parents before the Tribunal, set out in [26] of its reasons, was that they would be willing and able to pay the social compensation fee. The Tribunal noted that the applicant’s parents did not claim that this would result in a financial burden to them. In other words, the second of the claims relied upon and the third particular to the amended application was in fact inconsistent with the evidence given by the applicant’s parents during the hearing. For that reason it did not arise and so was not required to be considered by the Tribunal.
Similarly, there was nothing said either in any of the applicant’s written submissions, or in the evidence given orally on his behalf at the Tribunal hearing that suggested that there would be any significant period between the time of return to China, and the registration of the applicant, such as might give rise to serious harm or significant harm within the meaning of the Migration Act 1958 (Cth). For those reasons, the third particular to the application must fail.
Returning to the other particulars, I note first that the ground itself is cast in terms of a failure to consider the case and the denial of procedural fairness. The failure to consider the case arises under para.2 of the particulars. The argument in this case is not particularly easy to understand. Essentially what the applicant argues is that the Tribunal erred by applying two different standards to its consideration of whether the applicant’s mother would be forced to undergo a sterilisation process. The two standards, it was said, were, firstly, the information specifically considering Fujian, and secondly, more general information concerning China.
Reliance was placed by the applicant at the hearing upon the statement by the Tribunal at [28] of its reasons. The Tribunal considered that the evidence as to the occurrence of coercive measures taken by authorities in Fujian was limited, and then the later reference to evidence that referred more broadly to China. In my view, there is no error revealed in this approach taken by the Tribunal.
The assessment of the information concerning the country circumstances was a matter for the Tribunal, in particular, where, as noted, there was limited information about coercive measures being taken in Fujian. There was nothing wrong with the Tribunal having regard to broader information about China as a whole.
It has not been established that the information referred to by the Tribunal was completely irrelevant to the circumstances in Fujian. It is also important to note that Fujian, as I have said earlier, was the province to which the applicant’s parents said that they would return if forced to return to China. Therefore, information about that province was relevant to the Tribunal’s consideration.
The next aspect of the particular in ground 2 relates to procedural fairness, and there are two aspects of that. The first is the allegation of bias. In this respect, the applicant claims that the Tribunal disclosed a strong disbelief that forced sterilisation still occurred, and relied on the extract of the transcript at p.8. It is fair to say that the first half of p.8 of the transcript reveals that the Tribunal had read certain information about forced sterilisation in China and had formed a view that there was very little evidence of that occurring at the current time. It certainly put that view to the applicant’s parents for their comment.
However, those statements must be seen in their context, both statutory and factual. The statutory context is that the Tribunal is obliged at a hearing to give the opportunity to an applicant – and, in this case, the applicant’s parents as his guardians – to give evidence and make submissions about the issues that are critical also that arise from the decision under review.
In this case, one of those issues, it appears, was the likelihood of the applicant’s mother having to undergo forced sterilisation. In that context, it is not surprising that the Tribunal stated a view to the applicant’s parents about the information that it had undertaken; in fact, it was, on one view, its statutory obligation to do so.
The factual context must also be considered. In this case, lines 45 through to 49 at p.8 of the transcript and lines 44 to 45 at p.9 of the transcript reveal that rather than having made up its mind to an extent that it was not willing or able to change it according to the evidence that was given by the applicant or on his behalf, the Tribunal in fact revealed that it remained open-minded. It said, for instance, at the p.8.45[3], “I don’t see evidence to support that, so can you refer me to any evidence that supports the fact that you would have to be compulsorily sterilised before [the applicant] could get registered”. At p.9.45, the Tribunal, after some further discussion about the issue, said “[y]es, but I don’t think it says what your client is suggesting it says. I’ve looked at it. I’ll consider it. I’ll have a look at it more carefully.”
[3] Transcript pinpoint reference.
In my view, both the statutory and factual context reveal that there was neither a reasonable apprehension that the Tribunal might have made up its mind about an issue in the proceedings or that it, in fact, had prejudged the matter in a way that it was unable or unwilling to change its mind, regardless of the evidence. For those reasons, the allegation of bias does not succeed.
The second question of procedural fairness is that the Tribunal relied upon undisclosed information, did not give the applicant the opportunity to comment in writing on that information and did not provide a further hearing. The information referred to in this context was the country information regarding the consequences of breaches of the family planning laws in China.
It may be accepted on the description by the Tribunal of that information that it was adverse to the applicant’s claims. Thus, one might have expected, at common law, that the Tribunal was required to disclose that information and to give the applicant a reasonable opportunity to comment on it.
However, the Tribunal’s procedure is, in this respect, restricted to the provisions in the Act and, in particular, s.424A. That provision requires the Tribunal to give particulars of information that it considers would be the reason or part of the reason for its decision.
However, and importantly here, that provision does not relate to information that it is not specifically about the applicant. It only relates to a group of people of which the applicant is a member. It is well-established that that exception applies to information such as relied upon here, namely country information. For that reason, there was no obligation on the Tribunal to give the applicant the opportunity to provide a written response to the information or to provide any further hearing at which he could respond to it.
In respect of the further hearing, it might also be added that the obligation on the Tribunal under s.425, in my view, was clearly complied with. That provision requires the Tribunal to invite the applicant to attend a hearing to give evidence and present arguments relating to issues arising in respect of the decision under review.
The transcript reveals that that opportunity was given. For that reason, no further opportunity was required by the Act. For those reasons, the arguments raised by the applicant in support of his application for judicial review have not established any jurisdictional error in the Tribunal’s decision.
I mention one further thing. I have referred to the Tribunal’s reasons at [28] and to its statement that the information indicated that the most common form of penalty under China’s family planning laws for breaching China’s family planning laws was the levying of a social compensation fee.
At first glance, this appears to be where the Tribunal left the issue. If that were the case, it would have been insufficient, in my view, to deal with the issues that arose for consideration. That is because the fact that one thing is the most common does not answer the question whether there is a real chance that the other will occur.
However, having regard to the balance of the Tribunal’s reasons and, in particular, to the country information relied upon by the Tribunal, some of which is set out at footnote 4, p.243, as well as its conclusion at [29], that the applicant’s parents would be able to obtain household registration following the payment of the social compensation fee, I do not consider that the Tribunal did in fact leave the issue as it was stated at [28]. In spite of my initial hesitance about the matter, the Tribunal did complete its review according to law. For those reasons, I find that there is no jurisdictional error in the Tribunal’s decision, and the application must be dismissed.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 2 November 2016
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