AZH15 v Minister for Immigration and Border Protection

1. The first applicant is appointed as the litigation guardian of the third applicant, a minor.
2. The solicitor for the applicant must file a notice of acting by the end of the day.
3. The application for leave to appeal is dismissed.
4. The first and second applicants must pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Farrell J: 1 The applicants, a husband, wife and their child, are citizens of China. For the purposes of distinguishing between the applicants I will refer to them as husband, wife and child, without intending any disrespect to them. The third applicant is a minor and I appointed the husband as the child's litigation guardian. 2 The applicants seek leave to appeal a decision of the Federal Circuit Court of Australia (FCCA) delivered on 30 August 2016: see AZH15 v Minister for Immigration & Border Protection [2016] FCCA 2230. The primary judge dismissed an application for judicial review of a decision of the Refugee Review Tribunal (now the Administrative Appeals Tribunal) made on 13 May 2015. The Tribunal had affirmed a decision of the delegate of the Minister to refuse to grant the applicants Protection (Class XA) visas. The primary judge dismissed the application for judicial review pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). 3 The primary judge's decision was interlocutory, with the result that the applicants require leave to appeal. In summary, it is well established that to justify grant of leave to appeal, the applicant must show that there is sufficient doubt as to the correctness of the primary judge's decision to warrant its reconsideration on appeal, and further, that if that decision is assumed to be wrong, substantial injustice would result if leave to appeal were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397; [1991] FCA 844. 4 The protection visa application which is the subject of these proceedings was made by the husband. The wife and child joined the application as members of his family unit. The combined application was lodged with the Minister's Department on 8 September 2013. The husband's protection claims in his visa application, at the interview with the Minister's delegate and before the Tribunal, were summarised by the primary judge at J[3]-[6]: 3. In his application for a Protection visa, the applicant claimed he left China to avoid persecution by police, government officials, and thugs connected to the police and government officials. The applicant claimed he experienced significant physical harm, mental torture, and was detained because he practised Falun Gong in China. 4. The applicant also claimed that in 2011 the local government confiscated land which he owned, and which was worth 350,000RMB, because the applicant was a Falun Gong member. A friend farmed the land after the applicant left for Australia and that, as a farmer, the applicant and his family's livelihood "is reliant upon the land". The land was confiscated without any compensation and, when the applicant's sister complained to the government, it did not take any action, but instead threatened the applicant's sister that if she continued to make trouble she may be detained. 5. The applicant further claimed the government informed his sister that the applicant should be arrested because he is a Falun Gong practitioner and did not have a right to complain about the matter. The applicant claimed if he is returned to China, he will protest against the Chinese government because he does not have any land to farm to make a living. 6. The applicant also claims the government will take action to prevent the applicant and the second applicant (the applicant's wife) from registering the third applicant, the applicant's second born son. The applicant stated in his protection visa application, however, that "we prepare [sic] to pay the social compensation fee". 5 The applicants have separately and unsuccessfully applied for a protection visa on previous occasions (2004, 2008 and 2010 respectively). Those applications were made before the complementary protection criterion in s 36(2)(aa) of the Migration Act 1958 (Cth) came into effect. The delegate who considered the applications refused to grant visas. The delegates' decisions were affirmed by differently constituted Tribunals. 6 On 16 May 2014, the husband attended an interview with the Minister's delegate in relation to the combined application lodged on 8 September 2013; the other applicants did not attend the interview. On 21 May 2014, the delegate refused to grant the protection visas. The applicants applied to the Tribunal for review of the delegate's decision on 13 June 2014. On 13 May 2015, the Tribunal affirmed the delegate's decision to refuse to grant protection visas and set out its reasons in a Statement of Decision and Reasons (Decision Record or DR). 7 Among other things, the Tribunal found that it did not have power to consider whether the applicants were entitled to protection visas under the "refugee" criterion in s 36(2)(a) of the Migration Act. This was because s 48A of that Migration Act (as it stood at the time the visa applications were made) imposed a bar on a non-citizen (while in the migration zone) making a further application for a protection visa which duplicates an earlier unsuccessful application based on the same essential criterion for grant of a protection visa. For this reading of s 48A, the Tribunal relied on the decision of the Full Court of this Court in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71: DR [37]. 8 The Tribunal proceeded on the basis that it could only consider the applicants' claims under the "complementary protection" provisions in s 36(2)(aa) of the Migration Act. The Tribunal did not find the husband to be a credible witness and it did not find his claims credible, apart from accepting that the child was born in breach of China's "one child" policy. In reaching its decision, the Tribunal took into account country information regarding China's one child policy and the child's registration. The Tribunal found (at DR [59]) that the applicants did not satisfy the criterion set out in ss 36(2)(a) or 36(2)(aa) of the Migration Act. Accordingly, the Tribunal affirmed the decision not to grant the applicants protection visas. 9 The applicants filed an amended application for a review of the Tribunal's decision in the FCCA on 3 August 2016 which listed three grounds of review (as written): 1. The Tribunal failed to comply with s 424A of the Act Particulars: The Tribunal did not give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review, and did not invite the applicant to comment on it. 2. The Tribunal erred in the finding that is unsupported by evidence. Particulars: The Tribunal made the finding that the inconsistent statements made by the applicant that "the applicant stated he was willing to pay the social compensation fee" and "the applicant could not afford to pay the fee". 3. The Tribunal failed to consider the applicant's claims in accordance with the refugee criterion under s 36(2)(a) of the Migration Act 1958 (Cth) 10 The primary judge rejected each of these grounds. As the first two grounds were not raised in the application for leave to appeal, I will refer to the primary judge's findings on the third ground only. The primary judge found that the applicants relied on the decision in SZVCH v Minister for Immigration and Border Protection [2015] FCCA 405 to the effect that, in circumstances similar to this case, the Tribunal made a jurisdictional error by not considering the application for review against the criteria in both s 36(2)(a) and s 36(2)(aa). At the time of the primary judge's decision, the Full Court of this Court had reserved its decision in the appeal from the orders made in SZVCH. The primary judge considered that he was bound by two decisions of single judges of this Court in AMA15 v Minister for Immigration and Border Protection [2015] FCA 1424 (Markovic J) and SZRAG v Minister for Immigration and Border Protection [2016] FCA 189 (Katzmann J) to the effect that the Tribunal did not make a jurisdictional error when it considered the applications only under s 36(2)(aa). The primary judge noted that the applicants might protect their position pending the Full Court's decision in SZVCH by filing an application for leave to appeal. 11 The applicants' application for leave to appeal dated 16 September 2016 lists one ground (as written): The primary judge erred in making an order that the Tribunal made no jurisdictional error by determining the applicants' application for review on the basis that the Tribunal did not have power to determine the application for review against both s.36(2)(a) and s.36(2)(aa) of the Act, but only against s.36(2)(aa) of the Act. 12 The applicants have not filed any submissions. At the hearing today they appeared by counsel who offered no submissions in light of the Full Court's decision in Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127. That decision was delivered on 14 September 2016; the Full Court set aside the orders made by the primary judge in that matter. At [41] and [44], Kenny, Siopis and Besanko JJ affirmed the correctness of the decisions in SZRAG and AMA15 and found that the primary judge in SZVCH was in error in holding that it was open to the Minister's delegate to consider the applicant's second application for a protection visa by reference to s 36(2)(a) as well as s 36(2)(aa). They also found the primary judge was in error in holding that the Tribunal was obliged to consider the applicability of both criteria since the delegate had elected to do so. There was no jurisdictional error on the Tribunal's part in considering the application only under the criterion in s 36(2)(aa). 13 The Minister submits that this ground does not identify any legal error by the primary judge or jurisdictional error by the Tribunal. In light of the Full Court's decision in Minister for Immigration and Border Protection v SZVCH I am bound to agree and the respondent's counsel does not contest that point. I am not satisfied that any substantial injustice results from refusing leave to appeal in those circumstances. 14 The application for leave to appeal is dismissed and the first and second applicants must pay the Minister's cots as agreed or taxed. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell.