FEDERAL COURT OF AUSTRALIA

BCF17 v Minister for Immigration and Border Protection [2019] FCA 210

Appeal from:

BCF17 v Minister for Immigration and Border Protection [2018] FCCA 2475

File number:

NSD 1523 of 2018

Judge:

BANKS-SMITH J

Date of judgment:

25 February 2019

Catchwords:

MIGRATION - appeal from decision of Federal Circuit Court of Australia dismissing application for judicial review - protection visa - claim based on China's family planning policy - credibility - no jurisdictional error disclosed

Legislation:

Migration Act 1958 (Cth) s 36(2)(aa)

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593

Date of hearing:

19 February 2019

Registry:

New South Wales

Division:

General Division

National Practice Area:

Administrative and Constitutional Law and Human Rights

Category:

Catchwords

Number of paragraphs:

33

Counsel for the Appellant:

The Appellant appeared in person with the assistance of an interpreter

Counsel for the First Respondent:

Mr H Gao

Solicitor for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

The Second Respondent filed a submitting notice save as to costs

ORDERS

NSD 1523 of 2018

BETWEEN:

BCF17

Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:

BANKS-SMITH J

DATE OF ORDER:

25 FEBRUARY 2019

THE COURT ORDERS THAT:

1.    Appeal dismissed.

2.    The appellant to pay the first respondent's costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    This is an appeal from the decision of the Federal Circuit Court dismissing the appellant's application for judicial review of the decision of the Administrative Appeals Tribunal (Tribunal) to affirm the Minister's delegate's decision to refuse to grant the appellant a protection visa: BCF17 v Minister for Immigration and Border Protection [2018] FCCA 2475.

Background

2    The appellant is a Chinese citizen who arrived in Australia on 3 April 2014 as the holder of a tourist visa.

3    On 19 May 2014 the appellant lodged an application for a protection visa.

4    On 15 April 2015 a delegate of the Minister refused to grant the visa. The appellant had failed to attend an interview before the delegate.

5    The appellant applied to the Tribunal for a review of that decision. The appellant attended a hearing conducted by the Tribunal on 14 December 2016. The appellant also provided a letter to the Tribunal post hearing. On 15 February 2017 the Tribunal affirmed the decision of the delegate.

6    The appellant then applied to the Federal Circuit Court of Australia for judicial review of the Tribunal's decision. The matter was heard on 13 August 2018, and the primary judge dismissed the application for review in an ex tempore decision.

7    The appellant now appeals from the judgment of the Federal Circuit Court. I should formally record that the case management orders in this matter were apparently made on the assumption that leave was required to extend the time for an application for leave to appeal. That was not correct. The appeal was instituted within time, as the Minister's representative properly pointed out.

The appellant's protection claims

8    The appellant's protection claims, as summarised by the Tribunal, were set out in a written statement. According to the statement, the appellant completed a tertiary education in China, was employed and received a good salary. The appellant claims that she married and gave birth to twin daughters in 2011. The appellant had wished to have a son first with a daughter to follow.

9    On 10 October 2013, the appellant believed that she was pregnant again, and on 15 October 2013 she moved to a unit near her husband's aunt in order to hide from the authorities.

10    The appellant claims that she was discovered by communist cadres, who forcefully took her to a hospital for a check-up. When it was discovered she was pregnant, the appellant was forced to undergo an abortion.

11    The appellant claims her husband suggested she book a tour to Australia to recover from the trauma of the forced abortion. She now wishes to have a son and claims to fear that similar things might happen if she were to return to China.

The Tribunal's decision

12    The appellant attended a hearing before the Tribunal.

13    The Tribunal noted that the appellant did not provide documentary evidence in support of her application, and that there was no documentary evidence that the appellant had twin daughters. This was an important aspect of its reasoning. In particular, it stated as follows:

[22]    The applicant told the Tribunal that her family in China comprised a husband and two children and provided names and dates of birth for them that corresponded generally with the information in her written application. The Tribunal asked the applicant whether she could provide the Tribunal with copies of her daughters' birth certificates or hukous (household registration). The applicant said she was unwilling to provide that information in relation to the visa application. The Tribunal noted that any information given in connection with the application would remain private. The Tribunal also explained that because the applicant's claims turned on the fact that she had two children already and wanted a third child, evidence of the existence of her two children would significantly advance her case. Asked whether she would like additional time to provide such evidence, the applicant said she would need to discuss the matter with her husband. The Tribunal put to the applicant that it would wait for one week and if she needed additional time to provide such evidence, the Tribunal would consider any request.

14    The Tribunal questioned the appellant about the circumstances of family planning officers allegedly locating the appellant and using force to take her to hospital. The appellant said that only her family knew she was pregnant but maybe a neighbour had told them. When the Tribunal doubted that neighbours would have been aware that she was pregnant if she was only two months pregnant at the time, the appellant said that perhaps the planning officers were looking for her because she failed to attend compulsory regular pregnancy screening.

15    The Tribunal raised with the appellant the fact that there had been a change in China's family planning policy since she had departed, that the usual penalty for a breach of such policy was a social compensation fee and that the appellant and her husband had well paid positions in China and would be able to pay any such fee if it were imposed. The appellant said she did not believe such a policy had been implemented.

16    The Tribunal told the appellant that it had concerns about her evidence. It noted that there was no documentary evidence to confirm the existence of her two daughters. It said that if the appellant had concerns about providing a hukou she could submit photographs or evidence of communications with her husband and children in order to assist her case.

17    The Tribunal expressed doubt about the plausibility of the appellant's claims as to how family planning officers discovered her, and that she had attempted to conceive whilst subject to monthly pregnancy checks. The appellant declined an opportunity to respond to those concerns.

18    The Tribunal told the appellant that it would wait one week to receive any additional evidence or a request for more time, after which it would make a decision. No additional evidence was received, apart from a letter in which the appellant identified an interpreting error in her statement and insisted that she had two children.

19    The Tribunal found that the appellant had not provided truthful evidence, and had not provided any explanation for why she was unwilling to provide documentary evidence of the existence of her twin daughters. The Tribunal was not satisfied that the appellant has twin daughters, or that in 2013 she fell pregnant, was apprehended by family planning officers, or forced to undergo an abortion. The Tribunal found that her evidence lacked detail and had to be prompted and that the appellant appeared to be recalling the content of her written statement rather than recounting her actual personal experiences. It did not consider that her evidence as to being located by family planning officers was plausible, particularly as she also gave evidence to the effect that she submitted to monthly pregnancy screenings at a time she was actively trying to conceive.

20    Accordingly, the Tribunal was not satisfied that the appellant is married and has twin daughters. It was not satisfied that she fell pregnant and was apprehended by family planning officers or taken to hospital and forced to undergo an abortion.

21    The Tribunal was not satisfied that there is a real chance or risk that the appellant would suffer any harm connected with the enforcement or implementation of China's family planning laws should the appellant return to China.

22    As the appellant had not claimed to fear harm in China on any other ground, the Tribunal was not satisfied that the appellant is a person in respect of whom Australia had protection obligations under the Refugees Convention or that she is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Migration Act 1958 (Cth).

Before the Federal Circuit Court

23    The appellant's application for judicial review in the Federal Circuit Court restated the claims that she made in support of her protection visa before the Tribunal, and stated that the Tribunal member did not make findings about the way in which the Chinese authorities treat younger women. The application asserted that the refusal of the appellant's protection visa was a jurisdictional error.

24    The primary judge correctly summarised the appellant's claims and the Tribunal's decision. His Honour referred to the reasons why the Tribunal doubted and rejected the appellant's evidence.

25    The primary judge also stated (in effect) that it was not part of his task to assess the appellant's restated factual submissions as it was not part of the Federal Circuit Court's jurisdiction to undertake merits review.

26    As to the appellant's submissions that the Tribunal had not considered the way in which younger women were treated, the primary judge stated:

[10]    Further, while it is true that the Tribunal did not deal with, in terms of making positive or negative findings about the way in which the Chinese authorities deal with younger women, it was unnecessary for the Tribunal to engage with that issue because of its other findings. The Tribunal's task was to determine not what might happen to other people, but what might happen to the applicant herself. One of the bases upon which it was asked to, and did assess that question, was to determine what had happened to the applicant in the past. That was because what the applicant claimed to have happened in the past was the basis for her fears of what might happen to her in the future.

27    The primary judge found that the Tribunal's findings in rejecting the appellant's claims had logical bases, stating:

[11]    As I have explained, the Tribunal rejected the applicant's claims. Its reasons for doing so included specific elements of the applicant's own evidence and, in general, the lack of particularity and circumstantial detail in it and her unwillingness to provide corroborating evidence about the existence of her own children. Each of those reasons provided a logical basis for the Tribunal's rejection of the applicant's claims.

28    Accordingly, the primary judge was not satisfied that the Tribunal's decision was subject to jurisdictional error and dismissed the application.

Grounds of appeal before this Court

29    The appellant relies on two grounds of appeal, which mirror the grounds put before the Federal Circuit Court. These are as follows:

1.    On 10 Oct 2013, I experienced symptoms of pregnancy. My mother in law helped me leave hometown to avoid to be forced for check-up by my local family planning officers. I was arranged in a unit near my mother in law's sister home. I was found and forced for an abortion. The Tribunal member didn't believe my experience in China. He ignored the Chinese authorities [cruelly] treated younger women by the means of forcing them for abortions.

2.    It is a jurisdictional error for him to make a refusal of my protection visa.

Consideration

30    The appellant did not provide any written submissions but appeared and made brief oral submissions which paraphrased the protection claims and were to the effect that she was unable to make any further submissions as she does not have legal advice. She was unable to point to any error on the part of the primary judge.

31    The first ground of appeal repeats the complaint made in the Federal Circuit Court that the Tribunal did not reach a conclusion that Chinese authorities treat younger women cruelly. The appellant has not disclosed any error in the primary judge's reasoning. The Tribunal made factual findings that it was not satisfied that the appellant had two children or that she was forced to undergo an abortion. It was unnecessary for the Tribunal to make any further findings about the treatment of young pregnant women, because the factual contentions on which the appellant's claims rested had been rejected: Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ). No error on the primary judge's part is disclosed.

32    The second ground of appeal is not particularised. It does not identify any particular form of jurisdictional error on the part of either the primary judge or the Tribunal. In my view, there is nothing in the primary judge's reasons that in any event discloses jurisdictional error.

Determination

33    It follows that the appeal is dismissed and the appellant is to pay the first respondent's costs to be assessed if not agreed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Banks-Smith.

Associate:

Dated:    25 February 2019