CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-07-22|Before: Cheeseman J

THE COURT ORDERS THAT:

The appeal be dismissed.
The appellant's litigation guardian pay the costs of the first respondent fixed in the amount of $4,000.
Within 7 days the first respondent make arrangements for an interpreter to sight translate these Orders to the appellant's litigation guardian, or alternatively provide a written translation of these Orders to the appellant's litigation guardian. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellant is a citizen of the People's Republic of China (PRC). He was born in Australia on 22 August 2013 to parents who are also citizens of the PRC. The appellant has a sister who was born in Australia on 22 January 2012. 2 The appellant, through his litigation guardian mother, appeals from the order of the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia) made on 29 October 2019: CEA18 v Minister for Immigration & Anor [2019] FCCA 3437 (PJ). 3 The primary judge dismissed an application for judicial review of the decision of the Administration Appeals Tribunal, the second respondent, dated 5 April 2018, in which the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the appellant a Protection (Class XA) visa. 4 The appellant's mother, who is acting as his litigation guardian, appeared on his behalf at the hearing. She is not fluent in English and is not legally qualified. The Court had the benefit of the assistance of a Mandarin interpreter at the hearing. I am mindful of the difficulties faced by litigants who are not legally represented. I am also mindful that in the present appeal that difficulty was compounded by the appellant's mother's command of English, her natural emotional engagement with the matters in issue, and her lack of familiarity with the processes of the Court. I have taken this into account in considering the submissions made on behalf of the appellant and in determining the appeal. Notwithstanding that it was clearly a stressful situation for her, interested as she necessarily is in the outcome, the appellant's mother sought to assist the Court in putting submissions on behalf of her son.

CONCLUSION IN SUMMARY FORM 5 For the reasons which follow, the appeal must be dismissed.

Background 6 The appellant's mother and father arrived in Australia on 18 March 2008 and 7 May 2007 respectively. They applied for, but were unsuccessful in obtaining, protection visas: initially for themselves on 25 July 2011, and subsequently on behalf of the appellant's sister on 20 July 2012. 7 On 3 July 2014, a further visa application was lodged on behalf of the appellant, his sister and his parents. On 7 July 2014, the Department of Immigration and Border Protection (now called Department of Home Affairs) notified the appellant's mother, father and sister that their applications were invalid because they were each prevented by s 48A of the Migration Act 1958 (Cth) from making a further protection visa application. On 7 July 2014, the Department notified the appellant that his was a valid application 8 The appellant's claims for protection are essentially threefold. First, that as the second child of unmarried parents, he would be severely discriminated against by the Chinese authorities because his parents breached the family planning laws by having a second child. As a second child, he says that he would not be included in a hukou registration (household registration) and would therefore be deprived of free hospital treatment, education and other basic social services. The appellant contends that this means that he would be at risk of death if his parents were unable to provide him with medical care. He also says that he would be subjected to a degrading and humiliating life in the PRC because of the circumstances of his birth. Secondly, the appellant says that if returned to the PRC his parents would be forced to undergo sterilisation because of their breach of family planning laws. Finally, he contends that he would be unable to practise as a Christian in the PRC. 9 On 27 August 2015, the delegate refused to grant the visa on the basis that the appellant did not meet the criteria in s 36(2)(a) or s 36(2)(aa) of the Act in his own right, or as a member of the family unit. 10 On 15 September 2015, an application was lodged with the Tribunal for review of the delegate's decision. On 9 March 2018, the appellant was invited to attend a hearing scheduled on 4 April 2018. The appellant was represented on that occasion by his registered migration agent and his mother gave evidence on his behalf. At the time of the hearing, the appellant was 4 years old. 11 On 5 April 2018, the Tribunal affirmed the delegate's decision and gave reasons (T).

Tribunal's decision 12 The Tribunal first addressed the issue of the impact of the appellant's parents' breach of family planning laws and the claim that upon return his parents would be required to pay a social compensation fee. The appellant contended that he would be impacted by his parents' inability to pay the social compensation fee because they would be taken away and he would be left as "having no parents and being discriminated against by other people": T [21] to [22]. 13 The Tribunal found that although the PRC no longer had a 'one child' policy and now permitted couples to have two children without paying the social compensation fee, children born before 1 January 2016 (such as the appellant) did attract such a fee: T [22]. The Tribunal recorded that there was nothing in the country information before it to suggest that those who did not pay the social compensation fee would be taken away or detained by the government. The Tribunal also found that there was no evidence to suggest that a failure to pay the social compensation fee would result in any harm to the appellant because the payment regime was no longer linked to household registration: T [23], T [26]. The Tribunal found the social compensation fee appeared to be a law of general application to all citizens and that there was no evidence before it to suggest it was applied in a discriminatory manner. Accordingly, the Tribunal found the appellant would not suffer significant harm if his parents did not pay the social compensation fee: T [24] to [27]. The Tribunal further found that even if it was wrong in its conclusion that the relevant law was of general application then, contrary to the evidence given by the appellant's mother, it was satisfied that the appellant's parents would have the necessary resources available to them to pay the social compensation fee: T [25] to [26]. 14 The Tribunal did not accept the appellant's claim that his parents would be forced to undergo sterilisation as a result of their breach of the applicable PRC family planning laws. The country information before the Tribunal indicated that forced contraceptive measures had been abolished in the PRC. The Tribunal further noted that this claim of harm, even if substantiated, related to the appellant's parents and not to the appellant: T [28]. 15 The Tribunal accepted that if the appellant was not registered in the household registration system, he would face difficulty in accessing education, health and social services but rejected the appellant's claim that he could not be so registered: T [29]. The Tribunal relied on country information which indicated that, under the new household registration system, payment of the social compensation fee was not a prerequisite for household registration: T [30]. The appellant's mother claimed that her brother in the PRC had to pay for his adopted second daughter to be registered as part of his household's registration. The Tribunal did not give any weight to this claim because it had insufficient information about the relevant circumstances and preferred the information concerning the prevailing practices regarding the registration of second children derived from the country information: T [31]. For these reasons, the Tribunal found that the appellant would not have any difficulty in obtaining household registration in the PRC: T [32]. 16 In assessing the claim that the appellant would be discriminated against on the basis that he was born to unmarried parents, the Tribunal accepted that unmarried mothers faced societal disapproval if they remained unmarried in the PRC. However, the Tribunal found there was no country information which supported a finding that societal discrimination against unmarried children amounts to serious harm. Further, the Tribunal found that in the PRC children born outside of marriage had the same rights as those born to married parents: T [33] to [35]. 17 The Tribunal next considered the appellant's claim that he would experience difficulty in the PRC on the basis of his Christianity. The Tribunal recognised that it faced a difficult task in assessing whether a 4 year old child was a practising Christian. Further, the Tribunal recognised that it was unable to assess whether the appellant was a genuine Christian on the basis of his mother's knowledge of Christian teachings: T [41]. The Tribunal accepted that the appellant's mother wished to raise him as a Christian, and that the appellant would be imputed with being a Christian, by reason of his family's practice of the Christianity. However, it was not satisfied that in light of the appellant's age, that the appellant was, of his own volition, a practising Christian. In any event, the Tribunal found, on the basis of country information, that the appellant could practise Christianity in the PRC. The Tribunal regarded the appellant's mother's contention that the country information was "different from what actually happens on the ground" to be based on speculation, not experienced harm, which was not supported by the country information: T [39]. 18 The Tribunal accepted the appellant's submission that if returned to the PRC the appellant would attend an unregistered Church as that was his mother's preference. The Tribunal found that the country information did not suggest that the children of Christian parents in the PRC were at risk of harm owing to their parents' practice of Christianity, irrespective of whether the child's parents attended a registered or an unregistered church: T [36] to [42]. 19 Based in its consideration of the material before it and of the appellant's claims, singularly and cumulatively, the Tribunal found that the refugee criterion in s 36(2)(a) of the Act was not met - there was not a real chance that the appellant would face harm for reasons of his membership of a particular social group or religion if he returned to the PRC: T [45]. 20 Having decided that the appellant did not meet the refugee criterion in s 36(2)(a), the Tribunal then considered the alternative criterion in s 36(2)(aa), namely, whether there are substantial grounds for believing that there is a real risk that the appellant will suffer significant harm as a necessary and foreseeable consequence of being returned to the PRC. The Tribunal found that the societal disapproval the appellant might face due to his parents' unmarried status was not sufficient to establish significant harm: T [47]. The Tribunal was not satisfied that there were substantial grounds for believing that the appellant, if returned to the PRC, faced a risk of being arbitrarily deprived of his life, subject to the death penalty, torture, or cruel, inhumane or degrading treatment or punishment: T [48]. The Tribunal found that the appellant had not established the criteria under s 36(2)(aa) of the Act. 21 The Tribunal was not satisfied that the appellant was a person to whom Australia owed protection obligations and it was not contended that he was a member of the same family unit as a person to whom Australia owed such obligations or who held a protection visa: T [49]. The Tribunal concluded that the appellant did not satisfy the criteria for a protection visa and accordingly could not be granted a visa: T [50]. Accordingly, the Tribunal affirmed the decision under review: T [51].

Proceedings in the Federal Circuit Court 22 On 30 April 2018, the appellant filed an application in the Circuit Court pursuant to s 476 of the Act seeking judicial review of the Tribunal's decision. In that application, the appellant advanced eight lengthy grounds of review, each of which were rejected by the primary judge, with reasons. The grounds of review are extracted by the primary judge at PJ [29]. 23 The appellant appeared by his mother, his litigation guardian in the Circuit Court proceedings, with the benefit of an interpreter of Mandarin and English. The primary judge noted that she had explained (to the appellant's litigation guardian) that the question before the Court was whether there were legal problems in the Tribunal's decision, and whether the Tribunal had followed proper process, and that the Court does not generally have any power to hear evidence as to the facts before the Tribunal, and to reach different findings. Further, that there would be costs consequences that would flow if the appellant was not successful: PJ [31] to [32]. 24 The primary judge summarised the appellant's mother's submissions, which were largely focussed on matters of fact and substantially directed to merits review, noting that merits review was beyond the jurisdiction of the Court: PJ [33], [37]. 25 The primary judge held that the first ground of review was vague and generalised in that the allegation of bias was not distinctly made and was not supported by evidence: PJ [39] to [41]. Her Honour found that a fair reading of the Tribunal's decision did not reveal any prejudgment, and held that the appellant had not established that the Tribunal had a closed mind to the issues raised: PJ [41]. To the extent the appellant's mother advanced a contention orally that the Tribunal had misunderstood evidence in respect of a family seafood market business, her Honour did not consider that any possible misapprehension in this regard demonstrated bias, and noted that there was no evidence of any such misunderstanding in any event: PJ [42]. 26 The primary judge considered the second and third grounds of review together. These grounds concerned the Tribunal's preference for country information over the evidence given on the appellant's behalf by his mother. The primary judge held there was nothing on the face of the Tribunal's decision to suggest the Tribunal's acceptance of country information, insofar as it was inconsistent with the appellant's claims, was not open to it: PJ [44] to [45]. The primary judge correctly observed that the choice and assessment of country information is a matter for the Tribunal, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10 at [13]. In addition, the primary judge held that, insofar as the appellant complained that the Tribunal should have come to different conclusions on the basis of country information before it, that the appellant was inviting the Court to engage in impermissible merits review: PJ [46]. To the extent these grounds could be understood as a complaint that the appellant, or his parents, were not believed by the Tribunal, her Honour held that the Tribunal was not required to uncritically accept the appellant's claims: PJ [47]. 27 Finally, in circumstances where the protection visa applications made by appellant's parents and sister were not valid, the primary judge accepted the Minister's submission that there was no jurisdictional error in the Tribunal not considering the claims advanced in respect of them: PJ [48]. 28 The primary judge next dealt with the fourth to seventh grounds of review together: PJ [49] to [51]. Her Honour held that the matters raised in these grounds appeared to seek to raise explanations and evidence that were not before the Tribunal and which relate to the protection claims of the appellant's mother, rather than to the appellant's claims before the Tribunal: PJ [49]. In addition, the primary judge found that the oral submissions advanced in relation to the sixth and seventh review grounds, relating to the appellant's maternal grandparents' operation of a seafood market store and their income therefrom, did not raise any allegation of jurisdictional error and were in substance asking the Court to engage in impermissible merits review: PJ [50]. 29 In respect of review ground eight, by which it was asserted that the Tribunal had erred in failing to consider the issue of serious persecution in the PRC by reason of the Christian faith of the appellant's parents, the primary judge found that this ground failed at a factual level because the Tribunal did consider the religious circumstances of the parents in some detail (PJ [36] to [42]) but concluded that he would not suffer harm on the basis of his family's religious practice: PJ [52] to [53]. The primary judge identified that the Tribunal accepted the appellant's parents' claim that they were Christians, but was not satisfied the appellant was at risk as a consequence. Again, her Honour found the ground invited the Court to engage in impermissible merits review: PJ [53] to [54]. 30 Accordingly, the primary judge dismissed the review application with costs: PJ [60].

Grounds of Appeal 31 On 12 November 2019, the appellant filed a Notice of Appeal which contains two grounds (as written): 1. When making the judgment and the order to dismiss the application, the Honourable Judge of The Federal Circuit Court of Australia had not considered all the facts that when the Delegate of the then Department of Immigration and Border Protection (Now called Department of Home Affairs) and the Presiding Member of The Administration Tribunal made their respective decision, they had not considered all the relevant circumstances and background of the tightening of national policy against religion by the Chinese Government and the prospect of whether and how such policy could affect the extent of freedom of religion of the child applicant who should also enjoy the same human right 2. When making the order for the litigation guardian to pay the cost, the Honourable Judge of The Federal Circuit Court of Australia had not considered the applicant was a child under the age of 18 and also the financial hardship of the litigation guardian, as well as the fact that the Federal Circuit Court had granted fee exemption on the ground of financial hardship of the litigation guardian when the application was lodged with the Federal Circuit Court. 32 Written submissions were not received on behalf of the appellant. At the commencement of the hearing of the appeal, the grounds of appeal were interpreted for the appellant's litigation guardian and she was invited to make submissions orally.

Ground 1 - appellant's religious freedom 33 By ground one, the appellant contends that the primary judge did not consider that the delegate and the Tribunal had not considered all the relevant circumstances and background of the PRC's tightening of national policy against religion and how it would affect the appellant's freedom of religion. 34 Although ground one is framed to impugn the primary judge's reasons, the substantive issue to which it is directed was not raised in the court below. Rather, by review ground eight in the court below, the appellant complained that the Tribunal failed to consider that his parents were Christians and would face religious persecution. Review ground eight was as follows (as written): Lastly but not the least, the Tribunal member did not consider that my husband and I are Christians. If we go back to China, we will face serious religious persecution. We will not have freedom of religion. Triggered by our breach of the Family Planning Laws and being not able to repay the fines, we have a greater chance of being arrested and detention because of our religious belief. 35 The primary judge cannot be said to have erred in failing to consider an argument in respect of the appellant's own religious freedoms based on an asserted tightening of the PRC national policy against religion which was not put. As a new contention, leave is required to advance this ground for the first time on appeal. In the circumstances of the present appeal, and in light of the fact that the appellant is a minor and not legally represented, the Minister acknowledged that this was a technical point and adopted the pragmatic course of addressing the ground on its merits, even though leave had not been sought to raise the contention for the first time on appeal. 36 In support of the ground one, the appellant's mother made an emotional appeal advocating on behalf of her son and asked that the Court look at the matter from the perspective of the appellant as a child born in Australia and who has lived in Australia for 10 years. The appellant's mother said that she relied on everything that she had previously said before the delegate and the Tribunal. She reiterated arguments that she said she had advanced at earlier stages in the proceedings in respect of which there was no relevant ground of appeal. The transcript of the proceedings before the Tribunal and the primary judge were not included in the material on the appeal. The material in the Appeal Book as to the arguments put by the appellant was therefore confined to the observations made in the reasons for decision of the delegate, the Tribunal and the primary judge, respectively. 37 In addition, the appellant's mother submitted on behalf of her son that if he went back to the PRC, then "due to tightening religious policy, he will lose his religion". As mentioned, that last submission was not made before the primary judge. Before the Tribunal, the appellant relied on a statutory declaration of his mother in which she said: "…the suppression of religious freedom in China has become more tightened nowadays as we have heard the evidence from other people in China and the elders of our church. If we do not attend the registered church in China, we will be subjected to interferences, raids, arrest and detention by the Chinese authorities at any time when they think it is necessary. My husband and I do not want to lose our freedom of religion. More than that, we do not want our child to lose freedom of religion. We want to keep our children to grow in the true love of God. We want our children to get close to God. We do not want to live in fear and we do not want to worship in fear. Therefore, we hope to be granted protection visa by the Australian Government so that we can continue to live and worship here without fear." 38 Without any criticism of her, it must be observed that the appellant's mother advanced submissions that were in substance directed to merits review and did not address herself to demonstrating error on the part of the primary judge, or the Tribunal. The Minister submitted, and I accept, that the opportunity for merits review was before the Tribunal and the appeal is not the occasion to consider the merits of the appellant's visa application. 39 The Minister did not take any point in relation to specific prejudice, relying on systemic prejudice of the kind identified in TGWR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 200 at [22] to [23], and submitted that leave should be refused because the ground is devoid of merit and therefore should not be permitted to be advanced for the first time on appeal. The Minister submitted that the contention fails at a factual level because the Tribunal's reasons reveal that the Tribunal plainly did consider the appellant's claims regarding religion in the terms in which they were put to the Tribunal. 40 On a fair reading of the Tribunal's reasons, it is clear that the Tribunal considered the material that it had in relation to the PRC policy which the appellant described as being a policy "against religion" and also considered how any such policy could or would affect the appellant's "freedom of religion", not just the religious freedom of his parents: T [36] to [42], summarised at paragraphs [18] to [19] above. The Tribunal noted that it put the relevant country information on the issue to the appellant's mother (at T [39] footnotes omitted): The Tribunal put to [ALF] that country information indicated that there would be no issue with practising as a Christian in China, as there were millions of Christian worshippers in that country. The Tribunal noted that the Chinese Constitution stated that citizens enjoy freedom or religious belief and that no state organ, public organisation or individuals may compel citizens to believe in, or not believe in, any religion. The Tribunal noted that discrimination on the basis of religion is prohibited by law, and that, particular to the Fujian Province, the Chinese Communist Party is largely indifferent to religious practice at an individual level. [ALF] told the Tribunal that these policies are different from what actually happens on the ground, but that observation is not based on any experienced harm, but rather speculation that is not supported by the country information. 41 The Tribunal found that there was no country information to suggest that in the PRC children of Christians are at risk of any harm due to their parents' practice of Christianity and, accordingly, the Tribunal was satisfied that if returned to the PRC the appellant would be able to attend unregistered house churches with his family as part of the family's practice of Christianity in accordance with his parents' desire that he do so: T [42]. Those findings were open to the Tribunal. Further, as the primary judge held at PJ [44] to [47], the choice and assessment of country information was a matter for the Tribunal: NAHI at [13]. No error has been established on the part of the primary judge, or the Tribunal, in preferring the country information to the views of the appellant's mother in relation to national policies in the PRC in respect of religion. The Tribunal put forward a reasoned and rational basis for so doing. Accordingly, ground one must be dismissed.

Ground 2 - costs order below 42 Ground two contends that the primary judge did not consider the financial hardship of the litigation guardian when making the costs order against the litigation guardian. The primary judge's reasons demonstrate that the primary judge did consider this issue. The risk of an adverse costs order was an issue which the primary judge raised with the appellant's mother at the outset: PJ [32]. It is well established that costs normally follow the event and that an unsuccessful party will usually pay the successful party's legal costs of the proceedings. Having determined to dismiss the application for review, the primary judge concluded that the Minister was entitled to his costs. The costs order was made in an amount which was significantly below the scheduled amount of $7,467 permitted in respect of proceedings concluded at a final hearing: see Schedule 1, Part 3, Division 1, Item 3 of the Federal Circuit Court Rules 2001 (Cth) (as at the date of the applicant's application for judicial review, 30 April 2018). It is implicit in the award of a fixed sum in the reduced amount, that the primary judge took into account the particular circumstances of the appellant's status as a minor and the appellant's mother's submissions as to financial hardship. No error has been established. Ground two must be dismissed.

ConCLUSION 43 The appellant has not established the errors on the part of the primary judge, or on the part of the Tribunal, for which he contends in the notice of appeal. Accordingly, the appeal must be dismissed.

Costs 44 The Minister submits that it is appropriate to fix the costs payable by the appellant's litigation guardian on the appeal in the amount of $4,000. Once again, the amount sought is significantly less than the amount that may be claimed in a Short Form Bill for an application involving a migration decision, namely, $7,241: Federal Court Rules 2011 (Cth), item 15 of Schedule 3. 45 Having regard to the whole of the circumstances I am also satisfied that it is appropriate to make the costs order sought by the Minister. It is reasonable and "proportionate to the nature, including the complexity, of the case": Bitek Pty Ltd IConnect Pty Ltd [2012] FCA 506 at [18]. I am further satisfied that it is appropriate in exercising the Court's broad discretion in relation to costs to make a fixed costs order in the reduced amount sought by the Minister in this case: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181 at [29] to [30]. Accordingly, I will make an order in the terms sought by the Minister. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

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