BPK15 v Minister for Immigration and Border Protection [2016] FCA 625

FEDERAL COURT OF AUSTRALIA

BPK15 v Minister for Immigration and Border Protection [2016] FCA 625 Appeal from: BPK15 & Ors v Minister for Immigration and Border Protection & Anor [2015] FCCA 3241

File number: NSD 1692 of 2015

Judge: MARKOVIC J

Date of judgment: 2 June 2016

Cases cited: ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

Date of hearing: 27 May 2016

Registry: New South Wales

Division: General Division

National Practice Area: Administrative and Constitutional Law and Human Rights

Category: No Catchwords

Number of paragraphs: 32

Counsel for the Appellants: The Appellants appeared in person

Solicitor for the First Respondent: N Maddocks, DLA Piper Australia

Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

ORDERS NSD 1692 of 2015

BETWEEN: BPK15 First Appellant

BPM15 Second Appellant

BPN15 Third Appellant

AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 2 JUNE 2016

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC J: 1 This is an appeal from a decision of a judge of the Federal Circuit Court of Australia (Federal Circuit Court) dismissing an application for judicial review of a decision of the then Refugee Review Tribunal now the Administrative Appeals Tribunal (the Tribunal): see BPK15 & Ors v Minister for Immigration and Border Protection & Anor [2015] FCCA 3241 (BPK15). The Tribunal had affirmed the decision of a delegate of the first respondent (the Minister) not to grant the appellants Protection (Class XA) visas (the Visas). 2 The appellants, who are a husband and wife and their son born in China, arrived in Australia from China on 15 June 2013 on visitors' visas as members of a tour group. On 26 June 2013 the appellants absconded from their tour group and on 27 June 2013 they applied for the Visas. Since their arrival in Australia, the first and second named appellants, the husband and wife respectively, have had a second child who is not a party to the proceedings. 3 The first named appellant (who I will refer to as the appellant) set out her claims in a statement annexed to her protection visa application. She claims that she has been persecuted in China because of her and her husband's desire to have a second child, which they have been trying to do for several years. Her first child has been sick since he was born with unexplained bleeding and other problems and for "the stability and future" of their family they wished to have another child. The appellant claims that she has been pregnant twice, in 2010 and 2012, but on both occasions officials in the local government of Gao Yao, upon discovering that she was pregnant, forced her to have an abortion. The appellant also claims that over the past year she has been introduced to Christianity and that her new found faith has helped her through these times but has left her depressed as she has realised that "abortion is wrong, and is murder". 4 On 12 February 2014 a delegate of the Minister refused to grant the appellants the Visas. 5 On 18 March 2014 the appellants applied to the Tribunal for review of the delegate's decision. On 9 October 2014, the appellant appeared at a hearing before the Tribunal to give evidence and to present arguments. 6 On 29 June 2015 the Tribunal affirmed the decision of the delegate not to grant the appellants the Visas.