FEDERAL COURT OF AUSTRALIA

SZUAH v Minister for Immigration and Border Protection [2016] FCA 66

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The first appellant pay the first respondent’s costs in the fixed amount of $3,400.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ROBERTSON J:

Introduction

1    This appeal is from the judgment and orders of a judge of the Federal Circuit Court of Australia given and made on 6 October 2015. By those orders the judge of the Federal Circuit Court dismissed the proceeding commenced by way of application filed on 25 March 2014, with costs.

2    The application to that Court was for judicial review of the decision of the then Refugee Review Tribunal made on 13 February 2014, affirming the decision not to grant the first appellant a Protection (Class XA) visa and deciding that it did not have jurisdiction in respect to the second appellant, the infant daughter of the first appellant.

Grounds of appeal

3    The grounds of appeal to this Court are as follows:

1.    RRT said I was born in city so my daughter and I will not be discriminated.

2.    RRT said my parents can help me which is irrelevant.

3.    RRT didn’t consider my daughter in the application and this is my agent’s fault. I should be innocent and RRT made a mistake not to consider my daughter.

4    They are the same grounds as were raised in the application for judicial review before the Federal Circuit Court.

The Tribunal’s decision

5    The Tribunal found that the first appellant was a citizen of China and that China was the country of nationality.

6    The first appellant arrived in Australia on 20 September 2008 on a Student Visa (TU 572). On 26 November 2012, she applied to the Department for a protection visa. On 1 April 2013, the second appellant was born and added to her mother’s protection visa application on 21 June 2013.

7    Relevant to the third ground of appeal, on 26 August 2013, the first appellant applied for review of the decision of the delegate, which had been made on 30 July 2013. The first appellant did not request that her infant daughter be included in the application for review until 13 September 2013.

8    The Tribunal said, at [20], that in her application for a protection visa the first appellant stated that she was 25 years of age and came from Fuqing City, Fujian. She claimed that she came to Australia in 2008 out of concern for her safety. She claimed her parents were evicted from their pig and fish farm and had an ongoing dispute with the authorities. She also claimed to be a Christian and to have received support from members of the Church. She claimed to fear harm in the form of discrimination and social ostracism because she was an unmarried mother.

9    The Tribunal said that it discussed with the first appellant why she thought she could not return to China. The first appellant stated that her parents no longer had any property, that she could not look after her daughter back in China because she could not register her child, and because of this her child will be discriminated against.

10    In her application for a student visa, the first appellant had given information about her family’s circumstances. That information indicated that her father was the deputy manager of a material recycling company from April 2002 onwards, and in 2007 had a yearly income of 168,300 yuan.

11    The Tribunal noted country information saying that in Fujian it was illegal to have a child out of wedlock. The penalty was applied to the parent in the form of a fine. Information was found stating that children born out of wedlock would be able to register with the government, provided the fine is paid.

12    The Tribunal said it raised with the first appellant that if she was to return to China she would have the assistance of her family to pay the “compensation fee” required to register a child born out of wedlock.

13    The Tribunal referred to further country information, provided by an expert, that the treatment of single mothers depended very much on the particular circumstances. In remote villages single mothers may experience social ostracism and discrimination but that this was less likely in urban areas.

14    Relevant to the present issues, the Tribunal said in its findings and reasons:

43.    The applicant at the hearing expressed concern that she would not be able to register her child on returning to China because her child was born out of wedlock. In her oral evidence to the Tribunal she claimed that her parents no longer own a home and that they would be unable to financially assist with bringing up her child or paying the compensation fee required to register her child. However as discussed with the applicant at the hearing information provided in her student visa application indicates that her father holds a senior and well paid position in a business in Fuqing City. The Tribunal did not find the applicant’s response that she could not comment as the agent had completed the application form adequately explains the very different picture of her family’s circumstance as set out in documents accompanying her student visa application and her claim that her parents are in a poor financial situation and unable to assist the applicant financially.

44.    In light of the information contained in her student visa application the Tribunal does not accept that her parents are financially bereft and unable to assist her with the payment of a compensation fee to register her child.

45.    The country information … indicates that in a rural location a single mother may face discrimination and social ostracism, but that this is less likely to happen in a urban centre (sic). In light of this country information and the applicant’s circumstance that she comes from a major urban centre of Fuqing City and from a relatively prosperous family the Tribunal does not accept that the applicant faces harm serious or otherwise by reason of the fact that she would return to China as a single mother.

15    In relation to the position of the second appellant, the Tribunal found it had no jurisdiction to review the decision in respect of her as the application was not made in accordance with the relevant legislation. The prescribed period within which the review application could be made ended on 5 September 2013 but the application for review was not received by the Tribunal until 13 September 2013. The Tribunal referred to ss 412(1)(b) and 494C of the Migration Act 1958 (Cth) and reg 4.31 of the Migration Regulations 1994 (Cth).

The decision of the Federal Circuit Court

16    As to ground one, the primary judge said that the ground summarised a factual finding of the Tribunal and did not allege any jurisdictional error. In light of the information before the Tribunal it could not be said that the Tribunal’s findings about the first appellant’s circumstances and background were illogical or unreasonable. The Tribunal’s finding in relation to the circumstances of the first appellant’s parents necessarily involved the rejection of her claims about her parents’ alleged eviction from their pig farm and fish farm and the consequences of such asserted action.

17    As to ground two, the primary judge said that the first appellant’s claims on her own behalf included claims in relation to difficulties she would face in supporting her daughter, in particular whether she would be able to pay a social compensation fee to register her daughter, and in that context it was not irrelevant for the Tribunal to consider whether her parents could assist. Insofar as the first appellant reiterated her concerns in oral submissions as to her parents’ ability to assist her, the primary judge said the first appellant sought impermissible merits review.

18    As to the third ground, the primary judge said it was well-established that mere negligence or inadvertence on the part of a migration agent will not, of itself, be sufficient to give rise to fraud on the Tribunal. An issue arose as to whether the second appellant, the infant daughter, was properly notified of the delegate’s decision. The primary judge considered this matter at some length and referred to s 494B(1A) and (7) of the Migration Act. It followed that if a document was given to the first appellant in accordance with the provisions of the Migration Act and Migration Regulations it would be taken to have been given to her infant daughter.

19    Further, by reg 2.08 of the Migration Regulations, if a child is born after a non-citizen applies for a visa but before the application is decided by the delegate, the child’s application is taken to be combined with that of the parent. On that basis the infant daughter was included in her mother’s visa application and notification to the mother would constitute notification to both the mother and her infant daughter.

20    The primary judge held that there was notification of the decision of the delegate to the mother in accordance with the Migration Act and Migration Regulations.

The submissions of the parties

21    The first appellant did not file written submissions. In oral submissions she made two points. First, she said the Tribunal failed to take into consideration the circumstances about her daughter. When the Tribunal made its decision it focused on the circumstances of the first appellant and not on her daughter’s circumstances. Her daughter could not live a life independently of her own. Her infant daughter’s circumstances were not taken into account when the decision was made. Secondly, the first appellant said she was told by the Tribunal that her parents were able to support her financially but, the first appellant submitted, both her parents were getting old and could not help her financially.

22    The Minister’s written submissions supported the reasons of the primary judge. As to ground 1, the Minister submitted that the primary judge was correct to find that it went only to review of, and disagreement with, the merits of the first appellant’s application to the Tribunal and its findings. As to ground 2, the Minister submitted the financial circumstances of the parents were not an irrelevant consideration in light of the claims. As to ground 3, the Minister submitted that there was no evidence of fraud on the Tribunal and the primary judge was clearly correct to observe that negligence (assuming there to have been any) by a migration agent does not give rise to fraud on the Tribunal. The Minister also submitted that the primary judge was correct to find that the infant daughter, the second appellant, was properly notified of the delegate’s decision. The Minister referred to ss 494B(1A), 52(3C), 494B(4), 494C(4) (a) and 494D(1) of the Migration Act. The Minister submitted that it followed that the application for review in respect of the infant daughter was out of time, and the Tribunal, therefore, correctly found that it had no jurisdiction in that respect.

23    In my opinion, grounds 1 and 2 are of no substance and no error on the part of the primary judge has been made out. The primary judge was clearly correct in concluding these grounds raised no question of jurisdictional error on the part of the Tribunal. The same applies to the second point made by the first appellant in her oral submissions.

24    I reach a similar conclusion in relation to ground 3. First, in my opinion, the Minister gave the delegate’s decision to the infant daughter’s carer, her mother, the first appellant. Secondly, because the daughter was taken to be included in the mother’s application for a visa, notification to the first appellant was notification to her infant daughter, the second appellant. Thirdly, no error has been established in the conclusion of the primary judge that the first appellant did not withdraw the appointment of her former migration agent as her “authorised recipient”. Fourthly, no error has been shown in the primary judge’s conclusion that the first appellant was notified of the delegate’s decision by letter dated 30 July 2013 dispatched by prepaid post, within 3 working days, to the last address for service and, therefore, both appellants were taken to have received the document seven working days after its date, being 8 August 2013.

25    I also note that, as expressed, ground 3, and the first point made by the first appellant in her oral submissions, would seem to suggest that there were separate or different circumstances in relation to the infant daughter of the first appellant which, on the material before the Tribunal, does not seem to have been the case. As I read its reasons, it was assumed by the Tribunal that the first appellant’s infant daughter could not live independently of her mother, the first appellant.

Conclusion and orders

26    In my opinion, the appeal should be dismissed. As to costs, the Minister sought a costs order in the fixed amount of $3,400. The Minister relied on an affidavit sworn today, 9 February 2016, by Ms Sharon Anne Burnett. I adjourned the hearing to allow the affidavit to be translated to the first appellant and for her to make submissions about it. The affidavit was translated but the first appellant, when asked, said she had no submissions to make. In my opinion, the appropriate order is that the first appellant pay the first respondent’s costs in the fixed amount of $3,400.

Associate:

Dated:    9 February 2016