BEE16 v Minister for Immigration and Border Protection [2018] FCA 489

RANGIAH J: 1 This is an appeal from a judgment of the Federal Circuit Court of Australia delivered on 15 August 2017. The primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) dated 29 April 2016, which affirmed a decision of a delegate of the first respondent to refuse to grant the appellants protection visas. 2 The first appellant sought an adjournment of the hearing before this Court on the basis that her two children were ill and she was unable to attend court. The first respondent opposed any adjournment, but indicated that he would not oppose the appellants appearing by telephone. The appellants were offered the option of appearing by telephone and took up that option. The first appellant represented the second appellant, her infant daughter, at the hearing. 3 The appellants are citizens of the People's Republic of China. The first appellant arrived in Australia in 2007 on a student visa and obtained a series of student visas thereafter. On 31 May 2013, she gave birth to the second appellant. 4 On 25 November 2013, the appellants applied for protection visas. On 10 February 2015, the delegate decided to refuse the grant of the protection visas. 5 Before the Tribunal, the first appellant claimed to fear persecution in China on the basis of her membership of the Local Church and as a practicing Christian. The Tribunal rejected that claim, finding that it lacked credibility. Amongst other things, the Tribunal noted that the first appellant had delayed in applying for a protection visa for more than six years after she arrived in Australia, which indicated that she did not genuinely fear returning to China. 6 The first appellant also claimed to fear persecution in China by being made to pay social compensation fees, as she had given birth to her two children outside marriage. The Tribunal accepted that she is likely to be required to pay such fees, but was not satisfied that she would be unable to pay the fees and was not satisfied that she would suffer serious harm within s 91R(2) (now repealed) of the Migration Act 1958 (Cth) (the Act). Further, the Tribunal was not satisfied that there was a real chance that the first appellant would suffer serious harm as the parent of children born out of wedlock. 7 The first appellant also claimed that her de facto partner is a Falun Gong practitioner and that the appellants feared persecution as members of his family. The Tribunal noted that a differently-constituted Tribunal had found that her de facto partner was not a Falun Gong practitioner or a genuine believer in Falun Gong. The first appellant had told the Tribunal that she disagreed with the Tribunal's decision concerning her partner and that her partner was lodging an appeal. However, the Tribunal found, based upon the differently-constituted Tribunal's finding, that there was not a real chance that the appellants were of adverse interest to authorities in China as a result of being a member of a Falun Gong family, or that they would suffer serious or significant harm as a result. 8 It was claimed that the second appellant would suffer discrimination and harassment as a result of being born "out of plan". The Tribunal found that, while the second appellant may suffer some social discrimination, there was no real chance that she would be an unregistered child or face such discrimination as to constitute serious harm or significant harm under the Act. Accordingly, the Tribunal affirmed the delegate's decision. 9 The appellant's first ground of review before the Federal Circuit Court was that the Tribunal wrongly took into account the first appellant's delay in lodging the protection visa application. The primary judge found that it was open to the Tribunal to have regard to that matter in assessing the credibility of the appellant's claims. 10 The appellant's second ground asserted a denial of procedural fairness by the Tribunal by making the decision without thoroughly examining the appellant's claims of fearing harm. No particulars were given in support of this ground of review. The primary judge found that, in the absence of any particulars, the ground must fail, but that, in any event, the Tribunal had considered the claims raised. 11 The third ground challenged the Tribunal's findings as to the genuineness of the first appellant's Christian beliefs. The primary judge noted that the Tribunal did not rely only upon the length of time the first appellant had been a Christian. His Honour found that the Tribunal considered the appellant's claims at length, but was in the end not satisfied that the appellant was a genuine Christian. 12 The appellant's fourth ground asserted that the execution of law in China is very weak and that the appellant would be punished if the social compensation fee was not paid. The primary judge noted that no evidence had been provided in support of that assertion. Further, there was no evidence that this issue was raised before the Tribunal. The only claim before the Tribunal was that the first appellant could not pay the fee, and this was a matter considered by the Tribunal. 13 The primary judge was unable to find any error in the decision of the Tribunal and dismissed the application for review. 14 Before this Court, the grounds of appeal are as follows: 1. The first and Second Respondents have not considered the real harm and risk will be faced by the appellants once they return to their country. They have made the decision without giving any reason or supporting evidence. 2. The child was born without marriage certificate issued, the child will face the difficulties to register the household in China, the child will not have the welfare because of the fact of breaching the family plan policy. 3. The first and second respondents have not considered that the appellant may have health conditions while she attended the hearing, she should be given the chance to have hearing in Tribunal when she stabilised after giving birth. 4. The first and second Respondents have unfairly assessed the claim. (Errors in the original.) 15 The first appellant made oral submissions before this Court. She said that when her second child was coming into the world her case was going through the Tribunal, and that the Tribunal knew of this but did not consider that matter when making its final decision. Later, the first appellant explained that her complaint was that there would be more penalties imposed in China because of the birth of her second child. However, the Tribunal's decision record shows that it expressly considered that the first appellant would have more fines imposed upon her following the birth of her second child. 16 The first appellant also said that her partner's case had not finished before the Federal Circuit Court and that was a matter which the Tribunal should have considered. The Tribunal relied upon the previous decision of a differently-constituted Tribunal in making a factual finding that the appellant's partner was not a practitioner of Falun Gong. The appellant was unable to describe her partner's grounds of the application to the Federal Circuit Court. There is no indication that the factual findings made by the previous Tribunal are being challenged, and it seems unlikely that they would be because her partner will have to demonstrate a jurisdictional error in order to succeed in the Federal Circuit Court. It was open to the Tribunal to rely upon the factual findings made by the differently-constituted Tribunal: see s 424(1) of the Act. 17 As to the first ground of the notice of appeal, the Tribunal did consider the appellant's claims to fear harm and the risk they claimed to face if they return to China. Further, the Tribunal did give reasons for its findings. Those findings were supported by evidence which was described by the Tribunal in its decision record. The matters asserted by the first ground are factually wrong and the ground cannot succeed. 18 The second ground seeks to reagitate the merits of the appellant's claims for protection, or take issue with findings of fact made by the Tribunal. The ground does not raise any allegation of jurisdictional error. It cannot succeed. 19 As to the third ground, there is no evidence that any complaint was made by the appellant to the Tribunal concerning any health conditions. The appellant's second daughter was born on 25 November 2015 and there were two hearings held on 1 and 16 March 2016. There is no indication of any discomfort or difficulty experienced by the appellant in the course of the hearings before the Tribunal. The third ground cannot succeed. 20 The appellants have provided no particulars of the fourth ground. It is not apparent how the Tribunal is said to have unfairly assessed their claims. In the absence of particulars, that ground cannot succeed. 21 For these reasons, the appeal must fail and the appeal must be dismissed. The appellants will be ordered to pay the first respondent's costs of the appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah.