ENM19 as Litigation Guardian of DZZ19 v Minister for Immigration, Citizenship and Multicultural Affairs

Federal Court of Australia|2023-12-01|Before: Burley J

Leave to appeal be granted, limited to the contention that the primary judge failed to afford the applicant procedural fairness because the hearing proceeded on the basis that the applicant had received the Court Book when in fact she had not.
The application for leave to appeal otherwise be dismissed.
The costs of the application for leave to appeal be costs in the appeal.
The name of the applicant be changed to 'Minister for Immigration, Citizenship and Multicultural Affairs'. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 This is an application for leave to appeal from a decision of a judge of the Federal Circuit Court of Australia (FCCA)(as the Federal Circuit and Family Court of Australia was then), dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth); ENM19 as Litigation Guardian of DZZ19 v Minister for Immigration and anor [2020] FCCA 2333. Leave to appeal is required by virtue of s 24(1A) of the Federal Court of Australia Act 1976 (Cth) because a decision under r 44.12 is interlocutory in nature; Federal Circuit Court Rules r 44.12(2).

Background 2 The applicant is a minor who was born in December 2014 in Sydney. The applicant's mother was appointed by the FCCA as the applicant's litigation guardian. The mother arrived in Australia on 18 February 2006 as the holder of a student visa and held consecutive student and bridging visas until 26 November 2011. On 13 February 2012 the mother lodged a protection visa application which included the applicant's father. That application was refused by a delegate of the Minister for Immigration and Citizenship, whose decision was subsequently affirmed by the Refugee Review Tribunal. The mother's application for judicial review before the FCCA was dismissed on 26 September 2014. 3 On 21 August 2015, the applicant's mother lodged a protection visa application in accordance with s 36 of the Migration Act 1958 (Cth) on behalf of the applicant. The application advanced claims, inter alia, that if she and her parents return to China, her parents will face serious harm by reason of their Christian beliefs and if they are harmed she will be in danger because she will not be able to survive without the care of her parents. A delegate refused the grant of a protection visa under s 65 of the Act. The applicant, by her mother, lodged an application for review of the refusal decision with the Administrative Appeals Tribunal on 27 September 2016. The applicant and her mother attended a hearing before the Tribunal in August 2019. On 24 September 2019 the Tribunal affirmed the decision of the delegate. 4 The applicant then filed an application for judicial review with the FCCA. The matter was listed for a show cause hearing, and on 24 August 2020, the application was dismissed on the basis that the application did not raise an arguable case for the relief claimed. 5 The grounds of review relied upon by the applicant before the FCCA as set out in [24] were that: • the finding that the applicant and her parents have no well-founded fear of persecution for any of the reasons set out in section 5J(l)(a) of the Act is irrational and illogical; • the finding that the applicant and her parents do not meet the complementary protection criterion is irrational and illogical.

Application for leave to appeal 6 The applicant filed her application for leave to appeal on 1 September 2020. The grounds set out in her draft Notice of Appeal are as follows:
1. The primary judge erred in making an order that the Tribunal made no jurisdictional error.
2. The primary judge failed to consider the procedure fairness not fairly afforded in the applicant's application process. 7 In her application for leave to appeal the applicant repeats ground (1) of her draft Notice of Appeal and adds a further potential ground that:
3. The Primary judge failed to consider the relevant issue that the [first respondent] did not serve a court book on the applicants. 8 An affidavit in support of the application for leave was provided by the mother, which notes that she is the litigation guardian of the applicant and annexes a copy of the judgment below. 9 The mother was appointed litigation guardian in the FCCA, presumably in accordance with Division 11.2 of the Federal Circuit Court Rules, including rules 11.08 - 11.11. That appointment is sufficient to carry into an application for leave to appeal and, if granted, an appeal to this Court: BKW17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 1; (2023) 296 FCR 115 (Allsop CJ, Burley, O'Callaghan JJ) at [15] - [28]. 10 The mother represented the applicant at the hearing. Directions were made by a Registrar of the Court for the parties to file written submissions in advance of the hearing. The applicant filed none. 11 The first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, who is represented by Mills Oakley (Solicitors), filed submissions and appeared at the hearing. The Minister relies on an affidavit affirmed by Julian Pipolo, a solicitor at Mills Oakley. 12 The mother made oral submissions at the hearing to the following effect: (a) That the primary judge failed to pay attention to the claim advanced by her daughter, as distinct from her. It is the position of mother that the applicant requires protection and the primary judge ought to have considered that separately. (b) The applicant is only "to some degree" in her position of vulnerability because of her mother's circumstances. Her position is separate in that, the mother's claim for a protection visa has been refused. (c) Her daughter has not lived in China and is used to her life in Australia. The mother was unable to elaborate on any other specific points that related purely to the daughter. (d) In relation to ground (2) of the application for leave to appeal (above), the mother denied ever receiving the court book in advance of the hearing before the primary judge. 13 The question of whether leave to appeal should be granted is governed by the twin questions of whether there is sufficient doubt as to the correctness of the judgment below and whether, if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused; Décor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 844; (1991) 33 FCR 397 at 398-399.

Ground 1 14 The first ground advanced is simply an assertion that the primary judge erred in failing to find jurisdictional error. I assume, in favour of the applicant, that she intends to argue that the primary judge failed to find jurisdictional error for the same reasons that were articulated before him (as identified above). Those grounds, in effect, are that the findings of the Tribunal are irrational and illogical. 15 The primary judge noted that no particulars were provided for the basis upon which error on the part of the Tribunal was alleged. He found that the Tribunal's reasons reflect a genuine intellectual engagement with the claims and evidence advanced on behalf of the applicant ([25]), that dispositive findings made by the Tribunal were open to it ([28]) and that the mother's disagreement with the adverse findings does not identify any arguable jurisdictional error (at [26], [29]). 16 The reasons of the Tribunal summarise the applicant's claims as follows: 20. Essentially the applicant's claims are that if she and her parents return to China her parents will face serious harm for reasons of their Christian beliefs and if they are harmed the applicant will be in danger and she will not be able to survive without her parents care. 21. She will be a child with no support from her family and will be unable to get household registration and consequently denied [sic] access to fair education, health care, social opportunities and future job opportunities. 22. …[her father's] family are Buddhists and will not be welcoming to her or [her mother]. 17 In assessing her claims, the Tribunal considered the evidence that the mother provided to the delegate and before the Tribunal. The decision record refers to discussions that it had with the mother about the relevance of country information and the likelihood that the applicant would be able to obtain household registration in circumstances where her parents were unable to pay the requisite social compensation fee ([38], [39]). The Tribunal notes that although the mother appeared during the hearing to abandon her claim that the applicant would not be able to obtain household registration if she returned to China, it nonetheless considered that claim in light of the country information available ([49]). It found that on return to Fujian Province, the applicant's parents would be able to apply for household registration for the applicant, despite being born out of wedlock and that upon registration the applicant would have access to services including healthcare, education and transport ([60]). It accepted that her parents may have to pay a social compensation fee on the basis that they are not married ([61]) but noted that they are able to work so as to save enough money for the payment ([64]). 18 The Tribunal rejected the mother's claim that if the family returned to China, she and the applicant's father would be forced to separate ([67]). This claim was first made orally at the hearing in which the father did not attend to give evidence related to this claim ([67]). The Tribunal found that even if the mother's claim was accepted, such family breakdown would not amount to persecution of the applicant ([68]). 19 The Tribunal also rejected as false the claim advanced by the mother that due to her Christian practice and that of the father of the applicant, the applicant would face harm by losing family support, if her parents faced religious persecution in China ([69]). It rejected her claim that she has a continuing connection with a Christian church or that she is a committed Christian ([69]). The Tribunal found that the mother knew little about the nature of the church to which she claimed to belong and did not provide any supporting evidence of any continuing connection with a Christian church ([69]). This conclusion was based on a number of matters arising from the evidence, to which the Tribunal referred. Ultimately, the Tribunal did not accept that the applicant's parents would be persecuted by reason of their religion if they returned to China, and that the applicant would not face serious harm as a consequence of the loss of parental support and care that was claimed to flow from such persecution. The Tribunal was not satisfied that if the applicant returns to China she faces a real chance of persecution for reasons of her membership to a particular social group of religion ([70]). Having regard to each of the findings set out above, it was not satisfied that that the applicant had a well-founded fear of persecution for any of the reasons set out in s 5J(1)(a) of the Act or that she was entitled to protection under the complementary protection criterion set out in s 36(2)(a) or (aa) of the Act. 20 Having reviewed the reasoning of the Tribunal, and uninstructed by any particulars or submissions that point to a particular reason for considering that the reasoning of the Tribunal lacked rationality, I can see no conclusion that would form the basis for a submission that the decision of the Tribunal was illogical or lacked rationality. Accordingly, I do not consider that there is sufficient doubt in the correctness of the decision of the primary judge in relation to ground 1 to grant leave to appeal. 21 In her oral submissions, the mother contended that the primary judge erred by failing to have regard to the distinction between the claims advanced by her, and the claims of her daughter, the applicant. In this regard, I do not consider that there exists a viable ground of review based on the mother's contention that the primary judge misunderstood the nature of the case being advanced. In the prefatory parts of the primary decision at [2] - [16] his Honour noted the relationship between the protection visa application of the mother (which had earlier been rejected) and the claims made by the mother on behalf of the applicant in the present case. He was clearly aware of, and took into account, the distinct position of the applicant as opposed to that of the mother. The Tribunal's reasons reflect a clear understanding of that distinction also. I do not consider that there can be sufficient doubt as to the correctness of the decision to warrant leave for this ground to advance.

Ground 2 22 The second ground advanced in the draft Notice of Appeal contains no particulars as to the basis for the asserted lack of procedural fairness. However, the application for leave to appeal provides a basis for the contention, namely that the applicant was not served with a copy of the Court Book prior to the FCCA hearing. I understand the contention to be that the primary judge failed to afford the applicant procedural fairness because the hearing proceeded on the basis that she had received the Court Book, when she had not. 23 The affidavit of Mr Pipolo provides details that suggest, but do not prove, that the Court Book was served on the applicant. In argument, the mother denied that she had received the Court Book, however, she gave no sworn evidence to that effect. No transcript of the hearing before the primary judge was supplied during the hearing, although Mr Pipolo's affidavit includes a report on the conduct of the hearing which suggests that no claim was advanced by the mother to the effect that she did not have a copy of the Court Book. 24 These matters lead me to conclude that there is a sufficient doubt as to the correctness of the judgment below to warrant the grant of leave on this ground.

Disposition 25 Accordingly, I will grant leave to appeal i, limited to the contention that the primary judge failed to afford the applicant procedural fairness because the hearing proceeded on the basis that the applicant had received the Court Book when in fact she had not. The application for leave to appeal in relation to ground 1 will be dismissed. 26 The costs of the application for leave will be costs in the appeal. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley.

Evidence Act 1995(Cth)s 160(1)

Federal Court of Australia Act 1976(Cth)ss 5J(1)(a), 24(1A), 36, 36(2)(a), 65

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