FEDERAL COURT OF AUSTRALIA

BBV16 v Minister for Immigration and Border Protection [2017] FCA 98

ORDERS

THE COURT ORDERS THAT:

1.    The application for leave to appeal is dismissed.

2.    The applicant 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.

REASONS FOR JUDGMENT

FARRELL J:

1    This is an application for leave to appeal a decision of the Federal Circuit Court of Australia (FCCA) made on 13 September 2016: see BBV16 v Minister for Immigration & Border Protection [2016] FCCA 2394. Pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the primary judge dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal made on 4 April 2016. The Tribunal affirmed a decision of a delegate of the Minister made on 16 December 2014 to refuse the applicant a Protection (Class XA) Visa.

2    The applicant is a citizen of China. He arrived in Australia on 9 February 2014 on a Visitor, Tourist Stream (Offshore) (FA 600) visa. He has a wife and son in China. The applicant applied for a protection visa on 30 April 2014. He claims to fear harm on the basis that if he is returned to China he will be forcibly sterilised on account of breaching the one child policy. He claims that, when his wife fell pregnant with a second child, she was located by the authorities and forced to have an abortion. He says he fled China to escape forced surgical sterilisation.

Tribunal decision

3    The Tribunal set out reasons for its decision in a Statement of Decision and Reasons dated 4 April 2016 (DR or Decision Record). The applicant appeared before the Tribunal on 30 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter.

4    Having regard to the applicant’s evidence at the hearing (including that he had never been harmed in China and his wife has not been sterilised) and the country information about forcible sterilisation in China, the Tribunal was not satisfied that the applicant was at risk of being forcibly sterilised before he left China: DR [17]-[19]. With respect to the credibility of the applicant’s evidence regarding why he left China, the Tribunal was “troubled by the inconsistencies between his written claims and his evidence to the Tribunal”: DR [22]. Further, the Tribunal considered that the applicant’s evidence regarding why he had failed to attend his scheduled interview with the Minister’s delegate “shifted in an attempt to respond to the Tribunal’s concerns” which the Tribunal did not find persuasive: DR [24].

5    The Tribunal did not accept that the applicant had been harmed or threatened or otherwise mistreated in China in the past because his wife fell pregnant with a second child or that he left China because he was afraid of being forcibly sterilised. Noting changes to China’s family planning policy which now permits couples to have two children, the Tribunal found that if the applicant returns to China and has a second child, there is no real chance that he will face harm of any type, including serious harm or significant harm. The Tribunal did not accept that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to China, nor did it accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to China, there is a real risk that he will suffer significant harm: DR [26]-[28]. As the Tribunal was not satisfied that the applicant satisfies the criteria in ss 36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth), the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa: DR[29]-[32].

FCCA decision

6    The grounds of the application to the FCCA for judicial review of the Tribunal’s decision were (as written):

On 4th Jan. 2014 we had a son. But we did wsnt to have a daughter.In Sep. 2013 my wife felt pregnant and went into hiding with her coursin.

Unfortunately, my wife was located by the authorities and forced to have an abortion on 4th Nov. 2013.

Ater that, I was forced to have the surgical sterilisation.

My wife and family all didn't want o see this happen so the only option was for me to hide overseas untill there was a change of policy.

The member of Tribunal said: “ I have found that there is no real chance that the applicant will be forcibly sterilisation or face harm of any type of if he returns to China.: {in No.28 paragraph of the decision of Administration Appeals Tribunal.}. I think the member's view is wrong because it is the China policy of “One Family One Child” that if the wife was forced for an abortion, her husband must be forced to have surgical sterilisation. The member didn't know the China policy of “One Family One Child “,which led the member making judictional error.

7    A show cause hearing was held on 13 September 2016 and the primary judge delivered judgment on that day: J[10].

8    The primary judge found that the grounds of the application were in substance a restatement of his claims and failed to identify any jurisdictional error by the Tribunal. He noted the applicant’s submission from the bar table that the Tribunal was unfair and that as Australia is a democratic country, the decision was not correct: J[14]. On the face of the material before the Court, the primary judge was satisfied that the Tribunal complied with its statutory obligations in the conduct of the review and that the applicant had a genuine hearing. He found that the applicant’s submissions from the bar table invited impermissible merits review and did not identifying any arguable jurisdictional error: J[15].

9    Taking into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28 at [24]-[25] and [59]-[60] the primary judge was satisfied that the application failed to disclose any arguable jurisdictional error and that it was an appropriate matter in which to exercise his discretion under r 44.12 of the Federal Circuit Court Rules to dismiss the application: J[16].

Application for leave to appeal the FCCA’s decision

10    On 27 September 2016, the applicant filed an application for leave to appeal the FCCA’s decision. Under the heading “Grounds of application” the applicant states (as written):

On 10 2yue 2014, I came to free and democratic Australia.

In Chian my human right has been deprived by the China authorities. I had to leave for Australia in order to have a beloved daughter when China Authorities really permit us tohave a daughter.

But the member of the Refugee Review Tribunal ignored my claims as well as the China true policy and refused my application.

Given above reasons, I think the Tribunal member’s conclusion was unfair and he made jurisdictional error.

The Federal Circuit Court also dismissed my appeal on 13th Sept. 2016.\

I have to appeal to the Federal Court in order to obtain a fair judgment.

11    The primary judge’s decision was interlocutory, with the result that the applicant requires leave to appeal. In summary, it is well established that to justify granting 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.

12    The Minister filed written submissions and appeared by his representative at the hearing. The applicant appeared at the hearing. The hearing was conducted with the assistance of an interpreter. The applicant made no submissions in support of his application. He agreed that his proposed grounds of appeal addressed two issues: whether the Tribunal ignored his claims and whether the Tribunal ignored China’s “one child” policy.

13    The Minister submitted that the applicant’s claim that the Tribunal member “ignored my claims” is factually wrong and that that ground was not raised before the FCCA. The Tribunal did not ignore the applicant’s claims. The claims are summarised at DR [11]. They are assessed and the Tribunal sets out its reasons for not accepting key aspects of the claims at DR [17]-[28]. The key finding was that the applicant was not a credible witness. Further, the applicant would require leave to raise the new ground and the Court should not grant that leave having regard to the principles considered by Flick J in SZKCQ v Minister for Immigration and Citizenship [2009] FCA 578 at [7]-[11].

14    The Minister submitted that the claim that the Tribunal member ignored the “China ‘one family one child’ policy” repeats the claim made in the FCCA which the primary judge correctly rejected. The Tribunal considered the applicant’s claim that that policy allowed the applicant only one child, but placed greater weight on more recent country information that the National People’s Congress of China amended the policy to permit all couples to have two children with effect from 1 January 2016.

15    I accept the Minister’s submissions. On my reading of the Tribunal’s decision, it did not ignore the applicant’s claims; it considered them carefully, it accepted that the applicant has a wife and child in China and it rejected his other claims for reasons that were open to it. The applicant has provided no evidence on the basis of which it would be necessary in the interests of justice to grant the applicant leave to raise this claim. The Tribunal was entitled to give weight to country evidence which indicated that China’s “one child” policy had changed.

16    The applicant’s proposed grounds of appeal are an invitation to impermissible merits review; they identify no appealable error by the primary judge. Justice does not demand that leave to appeal be granted.

Disposition

17    I will dismiss the application for leave to appeal and order that the applicant pay the Minister’s costs as agreed or taxed.

Associate:

Dated:    13 February 2017