MZZGE v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 13 May 2019
• Neutral Citation: [2019] FCAFC 72
• Date: 13 May 2019

FEDERAL COURT OF AUSTRALIA

MZZGE v Minister for Home Affairs [2019] FCAFC 72

Appeal from:	MZZGE v Minister for Immigration and Border Protection [2018] FCCA 3546
File number:	VID 1665 of 2018
Judges:	BESANKO, FARRELL AND THAWLEY JJ
Date of judgment:	13 May 2019
Catchwords:	MIGRATION – appeal from decision of the Federal Circuit Court of Australia dismissing application for judicial review of decision of the Refugee Review Tribunal – whether the Refugee Review Tribunal’s decision that the first appellant was not at risk of forced sterilisation was irrational or illogical – whether the Refugee Review Tribunal failed to evaluate the relevant findings of fact and material before the Tribunal
Legislation:	Migration Act 1958 (Cth) ss 65(1), 414
Cases cited:	Fattah v Minister for Home Affairs [2019] FCAFC 31 Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Date of hearing:	7 May 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	25
Counsel for the Appellants:	Mr P Reynolds and Mr D McDonald-Norman
Solicitor for the Appellants:	Varess
Counsel for the First Respondent:	Mr G Johnson SC and Mr N Swan
Solicitor for the First Respondent:	Sparke Helmore Lawyers
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance, save as to costs

ORDERS

		VID 1665 of 2018
BETWEEN:	MZZGE First Appellant ; EGP18 Second Appellant ; EPH18 BY HER LITIGATION GUARDIAN MZZGE Third Appellant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

JUDGES:	BESANKO, FARRELL AND THAWLEY JJ
DATE OF ORDER:	13 MAY 2019

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3. Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4. In the absence of any agreement:

   1. within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

   2. within a further 14 days, the appellants file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (CPN-COSTS); and

   3. in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

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

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. The appellants are an unmarried couple and their daughter. They applied for a Protection (Class XA) visa on 21 November 2011, making a number of claims which revolved around the following facts:

1. the parents were “underage” according to Chinese Family Planning regulations when their daughter was born;

2. the first appellant was pregnant with a second child and would, if returned to China, be forced to have an abortion and be sterilised; and

3. the family would face various societal pressures in their hometown in Fujian province including because their daughter would be considered “early born” and a “black child”, resulting in no entitlement to social benefits or welfare.

2. A delegate of the Minister for Immigration and Citizenship refused the grant of a visa on 30 January 2012. The Refugee Review Tribunal affirmed that decision on 26 September 2012. By the time of the Tribunal’s decision, the mother’s second child had been born (on 17 June 2012). The appellants applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. That application was dismissed on 5 December 2018.

3. The appellants appeal to this Court from the Federal Circuit Court’s order dismissing their application for judicial review. The sole ground of review attacks the failure by that court to conclude that the Tribunal erred in a way which went to jurisdiction in the manner in which it dealt with, and decided, the mother’s claim that she had a well-founded fear of persecution arising from a risk of being forcibly sterilised.

4. For the reasons which follow, the appeal must be dismissed.

The Tribunal and the Federal Circuit Court

5. In light of the narrow scope of the appeal, it is unnecessary and distracting to recount in detail the manner in which the Tribunal dealt with each of the claims made. It is not now contended that the Tribunal erred in dealing with the appellants’ claims, except the claim concerning the first appellant’s risk of forced sterilisation.

6. The Tribunal recorded at T[4] that a visa may be granted only if the decision-maker was satisfied that the prescribed criteria had been satisfied: s 65(1) of the Migration Act 1958 (Cth).

7. The Tribunal set out a lengthy review of relevant country information from T[78] to T[104]. This included a detailed analysis of “family planning policy” in China (T[79] to T[83]), “family planning in Fujian” (T[84] to T[90]), “black children” (T[91] and T[92]), “delayed marriage and childbearing” (T[93] to T[95]) and “children born out of wedlock” (T[96] and T[97]).

8. From T[98] to T[104], the Tribunal addressed “forced sterilisation and abortion”. It stated (footnotes omitted):

Forced Sterilisation and Abortion

[98] Forced sterilizations allegedly continue to occur across China, but the prevalence of this is uneven. In April 2009, the Department of Foreign Affairs and Trade stated that “[t]here is little, if any, media reporting [in China] on this issue [of forced sterilization]”, and went on to state that “[a]lthough Post cannot discount the possibility of forced sterilization, Post has the impression that it is not a widespread practice”. Similarly, the 2010 Freedom in the World Report – China reports that the practice is less common than in the past, however the report goes on to state that “compulsory … sterilization … still occur[s] fairly frequently”. A more critical view is presented in the 2010 Chinese Human Rights Defenders report which states that forced/coerced sterilizations continue to occur but that this occurs unevenly:

[99] Women and (less often) men are urged by family planning officials to be sterilized once they have reached their birth quota. Again, the application of forced sterilization is uneven across the country and is dependent upon the discretion of the particular family planning officials. In some cases, officials threaten to withhold a hukou for the couple’s child if the mother or father fails to submit to the sterilization procedure. Other times, couples are physically threatened if they refuse. Elsewhere, however, parents can get away with paying fines and bribing officials to avoid being sterilized. Others never have the request made of them at all. If a couple is...