FEDERAL CIRCUIT COURT OF AUSTRALIA
SZWCR v MINISTER FOR IMMIGRATION & ANOR	[2015] FCCA 569	

Catchwords: 
MIGRATION – Refugee Review Tribunal – protection (class XA visa) – whether the Tribunal failed to properly consider the applicant’s claim – no jurisdictional error.

PRACTICE AND PROCEDURE – Summary dismissal – proceedings summarily dismissed.	

Legislation:  
Federal Circuit Court Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Migration Act 1958, ss.48, 424, 476	

Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28	

Applicant:	SZWCR	

First Respondent:	Minister for Immigration & Border protection	

Second Respondent:	Refugee Review Tribunal	

File Number:	SYG 362 of 2015	

Judgment of:	Judge Street	

Hearing date:	12 March 2015	

Date of Last Submission:	12 March 2015	

Delivered at:	Sydney	

Delivered on:	12 March 2015	

REPRESENTATION
The Applicant appeared in person	

Solicitors for the Respondents: 	Ms S. Lloyd
Minter Ellison	

ORDERS
(1)	The proceedings be summarily dismissed. 
(2)	The Applicant’s mother, being the litigation guardian, pay the First Respondent’s costs fixed in the sum of $1367. 
(3)	There be no publication of the Applicant’s name on the transcript in accordance with s.91X of the Migration Act 1958.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT Sydney	
SYG 362 of 2015
SZWCR	
Applicant

And

Minister for Immigration & Border protection	
First Respondent

Refugee Review Tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in which the applicant is seeking a Constitutional writ in respect of the decision of the Tribunal affirming a decision not to grant the applicant a protection visa made on 30 January 2015.  In the application it identifies the Court may hear and determine all interlocutory or final issues or may give directions for future conduct of the proceedings on the return date.  
2.	The Court identified to the applicant that it was concerned that the application failed to identify any arguable grounds and that, having looked at the decision of the Tribunal, the application appeared doomed to failure and that it would be an appropriate case for this Court to consider exercising its powers of summary dismissal. 
3.	In considering exercising the Court’s summary dismissal powers, I take into account the powers s.17A (Federal Circuit Court Act 1999) and r.13.01 (Federal Circuit Court Rules 2001), and the principles and caution in Spencer v the Commonwealth of Australia (2010) 241 CLR 118; [2010] HCA 28, and, in particular, [24]-[25] and [59]-[60].
4.	The applicant’s mother identified her concern was that the Tribunal did not believe her.  That was a matter for the Tribunal to determine.  The applicant’s mother said that, “The decision is unfair to me.”  The applicant’s mother identified the medical sterilisation procedure risk that she had identified before the Tribunal and which was clearly taken into account by the Tribunal and was subject of findings adverse to the views advanced by the applicant’s mother.  Those findings were clearly open on the material before the Tribunal.  The applicant wanted a chance to obtain further documents to provide to the Court and for the Court to listen to the transcript.  The Court identified that it is not a Court of appellant review and that this is not a review of the merits but is confined to determining whether there was any jurisdictional error in a review by the Tribunal.
5.	The applicant’s mother asked for more time to try and find other documents.  It is clearly the position that there is no utility in granting any adjournment as it will only incur increased costs to the parties and utilisation of further Court time where the proceedings are clearly doomed to failure.  The applicant’s mother also identified her concern that she would not be able to raise funds to make a relevant payment in respect of paying for her child so as to receive appropriate care and treatment in China.  The Tribunal carefully addressed this matter and made findings adverse to the applicant and his mother that were open on the material before it.  The applicant’s mother asserted that she was denied procedural fairness in the conduct of the hearing by the Tribunal and that the Tribunal did not properly look at her papers.  There is no substance in either of those contentions.  
6.	The applicant is an infant who was born in 2013.  The parents lodged a protection visa on behalf of the applicant on 17 October 2013.  Both the parents and the applicant’s elder sister have all been refused protection visas, and the decisions of the delegate were affirmed by the Refugee Tribunal on 27 February 2013.  The applicants’ parents are barred by s.48A of the Migration Act 1958 from making further applications for protection in Australia.  
7.	The delegate refused the grant of the visa applied for on behalf of the applicant on 13 May 2014.  The delegate found that, although the applicants’ parents would be required to pay a compensation fee to enable the applicant to be registered, upon the payment of the fee the child could be registered.  The delegate found that there was not a real chance or a real risk that the applicant would suffer harm upon his return to China for reasons his own or his parents’ religion.
8.	The Tribunal identified that the applicant’s mother came to Australia on a student visa in October 2006 and that her husband also came to Australian on a student visa in 2006 and were married in June 2011.  The Tribunal identified that they are committed Christians that attend church services. The applicant’s mother stated that her old sister was forcibly sterilised in October 2012 and that she has fears in that regard and has developed health issues.  She also asserted that if her son, the applicant, was returned to China, he would not be able to have access to the services available to other Chinese citizens.  The applicant’s mother also identified that because of their religious practices the applicant would be subjected to a risk of persecution by the Chinese authorities due to his potential Christian faith.  
9.	The Tribunal noted that the applicant was represented and appeared before the Tribunal on 19 January 2015 and that the applicant’s mother gave oral evidence as well as his father on his behalf.  The Tribunal heard arguments and conducted a genuine hearing on the merits.  The applicant’s parents were assisted in that regard by a registered migration agent at that hearing.  
10.	The Tribunal carefully identified the claims relating to the family planning policies applied in China as follows:  
	25. … The Tribunal accepts that the independent evidence indicates that social compensation fees are imposed for children born in breach of China’s family planning policies.
26. … However, the Tribunal accepts the applicant’s evidence that the area where the applicant’s father’s family lives is now considered to be an urban area and the exemptions do not apply to them. The Tribunal also accepts that the applicant’s parents evidence at the hearing that this is the area in [F] province where the applicant will reside with his parents. Accordingly, the Tribunal accepts that the applicant is the second child of his parents and he has, therefore, breached the family planning laws of [F] province.
11.	The Tribunal said that:
	26. … The Tribunal accepts that the fee is substantial, particularly by Chinese Standards where incomes are generally lower than in Australia. However, the Tribunal finds, on their own evidence, that the applicant’s parents are willing and able to pay the social compensation fee in [F] province for the birth of their second child.  When the Tribunal advised the applicant’s during the hearing that the fee can be high, they indicated that they are able to pay the fine whatever its amount because they will borrow the money from friends and relatives.… the Tribunal indicated that the fee can be paid in instalments in [F] province, they did not indicate that they would need to do so. The Tribunal finds, therefore, that the applicant’s parents will be able to pay the social compensation fee for the applicant who is the first additional child born to them. 
12.	The Tribunal noted in relation to the concerns of the applicant’s mother about forced sterilisation: 
	27. …the Tribunal is not considering whether the applicant’s mother faces a real chance of serious harm upon her return to China, but whether (the applicant), her son, will suffer serious harm for a Convention reason upon his return to China. 
13.	There was no explanation as to how the sterilisation process may impact on the child.  The Tribunal said:
	27. The Tribunal is not satisfied that the imposition of contraceptive devices, sterilisation or even abortion which may be imposed forcibly on the applicant’s mother would result in a real chance that (the applicant) would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returned to China now or in the reasonably foreseeable future. 
14.	The Tribunal also considered the claim that the child would be unable to be registered until the mother undergoes forcible sterilisation.  The Tribunal found:
	29. … the applicant’s parents will be able to obtain household registration for (the applicant) following the payment of the social compensation fee. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm because he is unable to obtain a hukou. The Tribunal is not satisfied, therefore, having considered the applicant’s circumstances individually and cumulatively, that he will suffer serious harm as a result of the breach of China’s family planning laws. Therefore, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his particular social group of “black children” or “children without a hukou”, as posited by the representative, or any other formulation of particular social group.
15.	In relation to religion, the applicant’s parents disputed the country information and stated that there was no reporting by Australian media and the Tribunal does not know what is happening and is unable to know the situation in different parts of China.  The Tribunal found:
	34. In light of the independent evidence, the Tribunal is not satisfied that, even if applicant’s parents practise their Christianity, and the applicant is raised as a Christian, that there is a real chance that he will suffer harm for this reason. The Tribunal is not satisfied that the applicant will have no religious freedom or fairness in China given that there is provision for Christians to practice their faith legally and the authorities in [F] province appear to be relatively tolerant of those who choose to practice in underground Christian gatherings outside of the official churches.  
16.	The Tribunal continued:
	34… The Tribunal is not satisfied that the applicant’s parents will be arrested, harassed or detained for practising Christianity in China such that the applicant will be denied care by his parents. It follows that the Tribunal is not satisfied that the applicant will be harmed as a result of any harm that his parents may suffer as a result of their religious practise. The Tribunal is satisfied that the chance of the applicant suffering harm in [F] province, which is where his parents told the Tribunal they will reside upon their return, is remote. The Tribunal finds, therefore, that there is not a real chance that the applicant will suffer serious harm for reasons of his religion if he returns to China now, or in the reasonably foreseeable future. 
17.	The Tribunal turned to consider the question of complementary protection:
	36. The Tribunal has also considered whether the applicant meets the Complementary Provisions set out in s.36(2)(aa). As the Tribunal has found that the applicant is a national of China, the Tribunal also finds that China is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
	37. The Tribunal has found above that the applicant will be able to obtain a hukou after the compensation fee has been paid. As stated above, the Tribunal has accepted that there is a possibility that the applicant’s mother will be forcibly subject to China’s family planning laws, requiring her to be sterilised. As stated above, the Tribunal is not considering any harm the applicant’s mother may suffer, but the effect that it may have on her son, the applicant. The Tribunal has found above that there is not a real chance that the applicant will suffer serious harm for a Convention reason as a result of the imposition of China’s family planning laws on his mother. The Tribunal is also not satisfied that the imposition of China’s family planning laws on the applicant’s mother is such that there is a real risk that the applicant would suffer significant harm, arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or degrading treatment or punishment. Nor does it accept that the imposition of fines themselves, which is a law which is applied to the entire population, amounts to significant harm. 
	38. The Tribunal has also found above that the independent evidence does not support the applicant’s claims that he will suffer harm as a result of being raised as a Christian in [F] province or as a result of his parent’s religious beliefs. For the same reasons, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for this reason. 
	39. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China that there is a real risk that he will suffer significant harm, including arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or degrading treatment or punishment.
18.	It is in these circumstances that the Tribunal affirmed the decision of the delegate.  It is clear from the decision of the Tribunal, contrary to the alleged ground 1 of the application, that the Tribunal carefully and properly considered the case and conducted a genuine hearing and made findings that were open.  In relation to the assertion that the applicant was not given a chance to respond to country information, it is material that s.424A(3)(a) identifies that there is no obligation to put information of the kind that is country information to the applicant.  In these circumstances it is clear that there was no breach of the statutory requirements in the conduct of the review by the Tribunal.  
19.	None of the matters raised by the applicant identify any arguable jurisdictional error. I am clearly satisfied there is no utility in granting an adjournment that will only increase the costs for the respective parties and utilise further Court hearing time in circumstances where the application is clearly doomed to failure.  I am clearly satisfied that the proceedings have no reasonable prospect of success.  The proceedings are summarily dismissed.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate:  

Date:  16 March 2015