CDU15 v Minister for Immigration
[2017] FCCA 1032
•18 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CDU15 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1032 |
| Catchwords: MIGRATION – Review of Administrative Appeals Tribunal decision – refusal of protection visas – first applicant claiming a fear of harm in China – applicant not believed in significant respects – no jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R, 476 |
| Cases cited: Applicant A v Minister for Immigration (1997) 190 CLR 225 Applicants in V722 of 2000 v Minister for Immigration [2002] FCA 1059 Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 DZACW v Minister for Immigration [2013] FMCA 46 Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 MZYXS v Minister for Immigration [2013] FCA 614 SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 |
| Applicant: | CDU15 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 2857 of 2015 |
| Judgment of: | Judge Driver |
| Hearing date: | 18 May 2017 |
| Delivered at: | Sydney |
| Delivered on: | 18 May 2017 |
REPRESENTATION
The First Applicant appeared in person by telephone
| Solicitors for the Respondents: | Ms A Wong of Mills Oakley |
ORDERS
The application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,200.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2857 of 2015
| CDU15 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant seeks judicial review of a decision of the Administrative Appeals Tribunal (Tribunal) made on 23 September 2015. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants’ protection visas. There are two applicants, who are a mother and her infant child. References in this judgment to “the applicant” are to the applicant mother. The applicant now has a second child. She was pregnant at the time of the Tribunal hearing and the Tribunal assessed the matter on the basis that there were or would be two children. Background facts are otherwise conveniently set out in the Minister’s outline of submissions filed on 11 May 2017.
The applicants are mother and daughter who are citizens of the People’s Republic of China. The applicant arrived in Australia on a student visa on 26 August 2007.
On 31 October 2013, the applicant lodged a protection (Class XA) visa application. Her infant daughter (born in Australia on 24 August 2013) applied for the visa as a dependent of the applicant’s family unit. A Form C was submitted on behalf of the second applicant on 4 June 2014 but referred to the applicant’s statement.
In a translated written statement, the applicant set out her claims to fear harm in China. The applicant claimed that when she was young her parents were atheists and left her in the care of an aunt. She claimed her aunt had her baptised in 1990 and the applicant began attending an underground family church of the Roman Catholic faith. The applicant claimed she was punished for taking part in Church activities in her hometown and was arrested and interrogated for one day by the government when she was at middle school for attending services. She claimed her aunt and a priest were also arrested and the security police told the applicant’s school that she attended cult activities. The applicant was then reprimanded and punished by the school authority.
The applicant claimed she later served as a lay preacher and actively propagated the gospel. She claimed that in her first year of high school she was again arrested after going on a missionary tour to Guangzhou. The applicant was forced to study abroad after her school threatened to dismiss her. She claimed her parents and relatives spent a lot of money and used up all of their connections to get the required papers for the applicant to study abroad.
The applicant claimed further that after her arrival in Australia she began attending a Chinese Catholic Church in “Flamingo”. She claimed she attended seminars and propagated the gospel, and tried to send church information to her family and Catholics in China. The applicant claimed that before Christmas in 2012 a fellow adherent and lay preacher (Sister Xiaohong) with whom she had exchanged information was arrested and the police traced the applicant through her email correspondence with Sister Xiaohong. The applicant also claimed her computer was subsequently hacked and files went missing. She claimed the police also warned her parents in China that the applicant should stop preaching. The applicant claimed she longed to be a preacher, had sworn allegiance to the Pope and was strongly opposed to the Patriotic Church in China.
The applicant also claimed that after she came to Australia in 2007 she lived with an old classmate from China (Xinxing Xue) and they fell in love. The applicant became unexpectedly pregnant and was pressured by her and her partner’s parents to have an abortion. Her partner’s parents said they would approve of the pregnancy and for them to be married if the applicant gave birth to a boy. However, in 2012 when the applicant was five months pregnant she suffered a still birth and as a result her parents cut her off and her partner’s parents looked down on her. Despite this, the applicant and her boyfriend continued living together and the applicant became pregnant again in 2013. When she was five or six months pregnant, the applicant discovered that her baby was a girl and her partner left her through disappointment and pressure from his parents. He paid her money on the condition that she would not contact him anymore and that he would have no duty for the unborn baby. The applicant later become depressed and contemplated suicide but was comforted by her neighbours and resumed attendance at church.
On 24 August 2013, the applicant gave birth to a baby girl (the second applicant). The applicant had to quit her studies to support herself and her daughter. She claimed that she would be disowned by her family and the Chinese community as a single mother if she returned to China and would be required to pay a significant fine as she had breached the family planning laws. The applicant claimed further that the second applicant would face discrimination as she would be unable to obtain a residence permit.
The applicant provided a copy of her passport and the second applicant’s birth certificate in support of her claims.
The applicant was initially invited to attend an interview before a delegate of the first respondent on 12 March 2014 but was subsequently invited to an interview on 29 May 2014, which she attended. The applicant provided a copy of her passport at the interview.
On 20 June 2014, the delegate made a decision refusing to grant the applicant a protection visa on the basis of adverse credibility findings and after assessing the applicant’s claims and evidence and relevant independent country information.
The Tribunal’s proceedings
On 24 July 2014, the applicant lodged an application for review with the Tribunal, and also gave the Tribunal a copy of the delegate’s decision record, and a medical report that indicated the applicant on 18 July 2014 was 11 weeks and four days pregnant and was due to give birth on 2 February 2015.
On 20 July 2015, the applicants were invited to attend a hearing before the Tribunal, which they accepted. The applicant provided some documents from a Catholic Church in Flemington and also attended the hearing on 20 August 2015. At the hearing, the applicant gave the Tribunal: a letter of support from Father McGee, Chaplain Pastor; pages from her passport; a letter from Yuan-Chi Chan, President of Western Sydney Catholic Chinese Community; and a birth certificate for her second child. The Tribunal expressly considered the applicant’s documents.
On 2 September 2015, the applicant also provided the Tribunal with various photographs and a translated internet article. The Tribunal also considered those documents.
The Tribunal’s decision
In a decision dated 23 September 2015, the Tribunal affirmed the delegate’s decision to refuse the applicant a protection visa.
The Tribunal set out the applicant’s claims in her protection visa application and her oral evidence at the delegate’s interview and at the Tribunal hearing. The applicant gave evidence at the hearing that she had resumed her relationship with her partner, they lived together and now had a second daughter together.
The Tribunal also cited independent country information about China’s family planning laws and unregistered churches in China.
The Tribunal was not satisfied the applicant’s evidence was “completely truthful”. Whilst accepting the applicant was the mother of two children born out of wedlock in Australia, the Tribunal was concerned that the applicant may have provided misleading information to the Minister’s Department about the status of her relationship with her children’s father. It found that although the date of the second child’s conception coincided with the applicant’s attendance at the delegate’s interview, the applicant gave no indication to the Minister’s Department that she remained in contact with her partner and instead said she had promised not to have contact with him after he paid her money. In addition, the Tribunal found her reasons for the resuming the relationship were “not persuasive” and her evidence about the timing and duration of the relationship was “vague”.
The Tribunal accepted the applicant and her partner were in a de facto relationship but not married. However, it found her evidence about why they had not already married was “unpersuasive”, lacked logic and appeared “inconsistent with her claimed religious beliefs”. It was concerned that the applicant’s failure to marry was at least partly motivated by a desire to enhance her claims for protection and, given her stated desire to want to marry and the consequences for her children if she failed to do so, the Tribunal was not satisfied that the applicant and her partner would remain unmarried if she returned to China.
The Tribunal found on return to China, the applicant and her partner would most likely return to Fujian province and seek to register their children’s hukous in that location as both she and her partner held rural hukous in that province. On the basis of the independent country information, the Tribunal found the applicant, having married her children’s partner, would be able to obtain hukous for her children in Fujian and was not satisfied there was a real chance or a real risk that her children would be denied access to health care, education or other public services.
On the basis of independent information that indicated a relaxation of family planning policies in Fujian, the Tribunal found societal attitudes towards second children and children born out of wedlock were improving in Fujian. Given its view about the likelihood of the applicant and her partner marrying, the Tribunal was not satisfied there was a real chance or a real risk that the applicant would be discriminated against, harassed or humiliated as a single mother. Even if they experienced any community disdain, teasing or disapproval over family planning law breaches, the Tribunal was not satisfied there was a real chance or risk of the applicant or her daughters suffering serious or significant harm now or in the reasonably foreseeable future.
The Tribunal accepted that the applicant and her partner would have to pay a social compensation fee for having two children out of wedlock. It noted the applicant had claimed she would be fined RMB 150,000 (approximately AUD$32,000) but independent information indicated it was closer to RMB 40,000 (approximately AUD$8,500) and also stated that no additional fee was required for their second child as they both held rural hukous and their first child was a daughter. Even if the Tribunal accepted the amount of the fine was as the applicant claimed, it was not satisfied she would be unable to pay such a fee. It noted her father ran a construction business in China and found the applicant’s evidence about her relationship with her parents was “vague”. Given its other credibility concerns, the Tribunal did not accept the applicant’s parents would withhold financial or other support to the applicant and her children if required. It also noted the applicant’s brother, with whom she maintained a close relationship, was employed in the IT industry in Australia and could assist financially. In addition, the Tribunal was not satisfied the applicant and her partner could not find paid work in China and found the independent information indicated the social compensation fee could be paid in instalments. For all these reasons, the Tribunal was not satisfied the applicant faced a real chance or a real risk of suffering economic harm amount to serious or significant harm.
In any event, the Tribunal made an alternative finding that the imposition of the social compensation fee was the result of a law of general application that was appropriate and adapted to achieving a legitimate purpose and was applied to the country generally and not to the applicant personally[1]. Accordingly, the Tribunal was satisfied that s.36(2B)(c) and s.91R(1)(c) of the Migration Act 1958 (Cth) (Migration Act) applied to this claim. These were finding of facts for the Tribunal to determine on the basis of the information and evidence before it[2].
[1] Applicant A v Minister for Immigration (1997) 190 CLR 225 at 233 and 258; Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 at [20]
[2] Applicants in V722 of 2000 v Minister for Immigration [2002] FCA 1059 at [32]; SZRDWv Minister for Immigration (2012) 134 ALD 290; DZACW v Minister for Immigration [2013] FMCA 46
The applicant did not claim that she was at risk of being forcibly sterilised or having an abortion if she fell pregnant with a third child. The Tribunal nevertheless considered that issue but was not satisfied on the basis of accepted independent country information about relaxed family planning policies in Fujian that there was a real chance or risk of the applicant facing such harm.
The Tribunal accepted on the basis of the applicant’s oral evidence and supporting documents that she had some familiarity with Catholic masses and basic Christian beliefs and had undertaken church attendance in Australia. However, aspects of her evidence caused the Tribunal concern and it doubted whether her church attendance was genuinely motivated by her religious beliefs. In particular, the Tribunal found the applicant’s comments that she regarded marriage as simply a piece of paper and her failure to baptise her children were inconsistent with her claim to be a committed Catholic and claimed Christian activities. It found that her explanations for not baptising her children were not persuasive and also found her evidence about whether she had engaged in preaching activities in Australia was “inconsistent”.
The Tribunal found the applicant’s evidence about the significance of the Pope and the reasons why she considered it important to remain loyal to the Pope by attending an unregistered church was “vague and unconvincing”. It also found she described her two arrests in China in “very broad terms”, appeared unwilling to provide more details and when pressed to do so her evidence was “unconvincing”. In addition, the Tribunal was troubled by the applicant’s decision to travel back to China in 2009 despite her claims of past harm. It also found that her six year delay in applying for protection after her arrival in Australia caused it doubt that her claims about her past experiences in China were genuine. Accordingly, the Tribunal was not satisfied that the applicant ever attended an underground Catholic church in China or was ever arrested for such attendance or preaching the gospel.
For these reasons, the Tribunal also found the applicant had attended church in Australia for the sole purpose of enhancing her refugee claims for protection and, accordingly, it disregarded that conduct pursuant to s.91R(3) of the Migration Act[3].
[3] Item 12 within Part 2 of Schedule 5 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) repealed, amongst other things, s 91R. That item commenced on 18 April 2015. However, pursuant to the transitional provisions at Item 28 within Part 4 of Schedule 5, that repeal does not affect the applicant’s visa application, as the visa application was made before the relevant date of effect. See also: SZTKE v Minister for Immigration [2015] FCA 1002 at [21] (per Bromberg J). Accordingly, the Tribunal was correct to have regard to s.91R in its decision.
Specifically in relation to its assessment of the applicant’s claims against the complementary protection criterion, the Tribunal relied on its findings about the applicant’s past experiences in China, her motivations for attending church in Australia and independent country information that indicated China had a large Catholic population, Catholicism was one of the five authorised religions and worship was permitted at a registered Catholic church to find it was not satisfied she faced a real risk of significant harm should it become known that she had on occasion attended a Catholic church in Australia. There is no jurisdictional error in the Tribunal referring to its previous findings of fact in relation to an applicant’s refugee claims when assessing their claims under the complementary protection provisions[4]. The Tribunal did not err by disregarding the applicant’s conduct in Australia pursuant to s.91R(3) of the Migration Act when assessing her complementary protection claims[5].
[4] SZSGA v Minister for Immigration [2013] FCA 774 at [54]-[56]; MZYXS v Minister for Immigration [2013] FCA 614 at [31]
[5] SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 at [51]-[76]; cf SZRQR v Minister for Immigration & Anor [2013] FMCA 21
The Tribunal found the applicant’s evidence about being at risk of harm because she disseminated religious materials over the internet to a friend and fellow adherent of her church in China whilst in Australia was “improbable”, particularly her claim that Chinese police had deleted her emails. Given its other credibility concerns, the Tribunal was not satisfied that the applicant had sent religious materials to a fellow preacher in China. Nor did it accept that the applicant would attend an underground Catholic church, be involved in any other unregistered religious group, preach the gospel or otherwise be perceived as engaging in illegal religious activities if she returned to China.
Whilst accepting the second applicant was born in contravention of China’s family planning laws, the Tribunal did not accept for the reasons outlined above that this would result in her being denied a hukou, access to health care, education or other public services or suffering economic hardship constituting serious or significant harm for any reason.
For these reasons, the Tribunal was not satisfied there was a real chance or risk that the applicants would face any serious or significant harm because of the applicant’s religious beliefs. Such matters provide cogent reasons to support the Tribunal’s adverse credibility findings. Its conclusion that the applicant was not credible was a finding of fact that was plainly open to the Tribunal[6]. Further, the choice and assessment of the weight to be given to the country information was also a factual matter for the Tribunal[7], and the Court cannot review the merits of the Tribunal’s decision[8].
[6] Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 at [67]
[7] NAHI v Minister for Immigration [2004] FCAFC 10 at [11]-[13]
[8] Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
The present proceedings
These proceedings began with a show cause application filed on 20 October 2015. The applicant continues to rely upon that application. No amended application or additional evidence has been filed in accordance with procedural orders made by a registrar.
Attached to the application is a document which under the heading “Orders Sought by Applicant” sets out four grounds of review:
1. I don't think the decision made by DIBP and AAT are fair and reasonable for me because my real situation is not thoroughly considered in particular, my commitment on Roman Catholic faith and practice in China and Australia. AAT's conclusion for my credibility is untrue and lack of persuasion. AAT's decision is made according to unfair perception instead of good understanding and evidence. The country information introduced by AAT is exclusive but unable to reflect the specifics and reality of my origin, in terms of religious oppression and persecution by Chinese government on house churches.
2. AAT's failed to consider my financial difficulty and ill-ability in dealing with the huge penalty to meet the social compensation imposed by the Family Planning in China. As a victim of unmarried mother, my child out of wedlock will be bias treated with residence registration and have no access to public education and medical services, and the reality is that we have no ability in getting ample financial support from outsource, including my families for our relationship have been denied by them till present.
3. AAT failed to properly consider the evidence I provided including the reference of my church to witness my constant pursuing of faith which is different from the patriotic churches in China. I don't think I can go to any churches in China or finding a safe place in my church practice as I am loyal to my church, Roman Catholic under the solely authority of Pop and there is no such one in China.
4. AAT fail to provide me a chance make comments on the outstanding issues off the hearing and consequently made wrong judgment without any concrete reason and evidences. AAT's doubt on my motivation for attendance at church in Australia is far from the truth and couldn't accept.
(errors in original)
Under the heading, “Grounds of the Application” there are four paragraphs which recite the applicant’s claims for protection:
1.As a Chinese national, I came to Australia for study. My claim for protection is based on my fear of being persecuted due to my religious commitment on Roman Catholic. I had hard experience in China and witness for government’s repression and crack down on house church activities. Since underground church gathering and gospels preaching is outlawed, so action against them is inevitable and local government may take disadvantage against house church any time as they wish.
2. As unmarried mother, I will be panelized with large among of social compensation which is far beyond my ability to deal with. I have no access to any finical assistance from either families or other outsources. My children will end up be biased in social welfare such as in education and medical services. Both my children and I will fall into the victim of vulnerability in lonely society.
3. I have been pursuing my faith in Australia and my practice and commitment can be evidenced by my church priests and siblings.
4. For sake of my religious freedom and my children' s fate, I apply for Australia's protection and we wish our situation as a whole can be taken into a good account.
(errors in original)
Those claims are beyond the scope of these proceedings.
I received as a submission the body of the applicant’s affidavit filed with her application. In that affidavit the applicant refers to her Christian faith. Annexed to the affidavit is a copy of the Tribunal decision which I received as evidence.
The applicant failed to appear in person at the time of today’s hearing. The Court was, however, successful in contacting her on her nominated mobile telephone number. The applicant explained that she had been confused about the date of today’s hearing. Exhibit R1 is a letter from the Minister’s solicitors to the applicant at her nominated address for service dated 11 May 2017. The letter provided a copy of the Minister’s submissions and reminded the applicant of the date, time and place of today’s hearing. The applicant denied receipt of that letter and told me that she had changed her residential address. However, the address she gave me was the same as that set out in her application filed in 2015. The letter was sent to a post office box in Auburn which the applicant accepted was hers. She told me, however, that there have been some issues concerning the receipt of mail at that post office box. I had the interpreter booked for today’s hearing read to the applicant those parts of the Minister’s submissions that she wished to hear.
In accordance with the registrar’s orders the Minister filed a court book on 23 December 2015. The applicant was unsure whether she had received that court book. She agreed to attend today’s hearing by telephone but was unable to locate a copy of the court book in her home. In the circumstances I declined to receive the court book as evidence. Exhibit R2 is a letter from the Minister’s solicitors to the applicant at her post office box in Auburn providing a copy of the court book in December 2015. The likelihood is that the court book was sent and received but the applicant cannot now find it.
The applicant had not prepared any written submissions other than her short supporting affidavit. I invited oral submissions from the applicant. She initially indicated that she had nothing to say but when I engaged in discussion with her about the Tribunal decision she expressed her dissatisfaction with it. The applicant contends that her claims were not considered by the Tribunal. That is patently wrong.
The applicant maintains that the Tribunal should not have made an adverse credibility finding in relation to her Catholic faith. That conclusion was, however, open to the Tribunal on the material before it. In my view the Tribunal considered all of the applicant’s claims and the material submitted by the applicant in support of them. The process followed by the Tribunal was fair. The conclusions reached by the Tribunal were available to it on the material.
I otherwise agree with the Minister’s submissions on the grounds of review advanced.
Ground 1
In the first paragraph, the applicant states she does not think the decisions of the delegate and the Tribunal were “fair and reasonable” because her real situation was not “thoroughly considered”. It is alleged the Tribunal’s adverse credibility conclusions were “untrue and lack of persuasion” (sic) but these findings were open to the Tribunal on the evidence before it and for the reasons it gave. This ground also takes issue with the weight given by the Tribunal to the country information before it but this was also a matter for the Tribunal to determine as part of its statutory function[9]. There was nothing unfair or unreasonable in the Tribunal’s approach or findings in this regard. To the extent that this ground also seeks to challenge factual findings made by the delegate, this Court has no jurisdiction to review the delegate’s decision[10].
[9] NAHI at [11]-[13]
[10] Migration Act, s.476(2)(a) and s.476(4)
Ground 2
The second paragraph alleges the Tribunal failed to consider the applicant’s financial situation and inability to pay the social compensation. However, the Tribunal expressly considered but did not accept this claim. In substance, this ground merely invites the Court to impermissibly review the merits of the Tribunal’s decision[11].
[11] Wu Shan Liang at 272
Ground 3
The third paragraph alleges the Tribunal failed to consider the reference that the applicant provided from her church and asserts that she would be unable to attend a Catholic church in China. Contrary to these assertions, the Tribunal’s decision clearly demonstrates that it did take into account the two supporting letters that the applicant provided to corroborate her claimed church attendance in Australia. Whilst the Tribunal accepted the applicant had on occasions attended church in Australia, given its credibility concerns it found she had engaged in this conduct solely for the purpose of enhancing her claims for protection and disregarded it under s.91R(3). It also did not accept that she would attend an underground church or engage in illegal religious activities on her return to China. Accordingly, this complaint has no proper basis and cannot succeed.
Ground 4
The fourth paragraph states the Tribunal failed to provide the applicant with an opportunity to comment on the “outstanding issues” of the hearing and made a wrong judgment without any concrete reasons or evidence. The applicant contends the Tribunal’s reasons for doubting her motivation for attendance at church in Australia were not true.
The applicant has not filed any evidence, such as a transcript of the Tribunal hearing, to support her assertions. Further, and contrary to the applicant’s allegations in this ground, the Tribunal’s summary of what occurred at the hearing indicates that it clearly put to the applicant at the hearing the various concerns and difficulties it had identified with her evidence. This included: that she had provided misleading information to the Minister’s Department about the status of her relationship with her partner; whether she delayed getting married to enhance her protection claims; country information that undermined her claims; that her evidence about not knowing she could apply for a protection visa was implausible; and that the Tribunal found aspects of her claims “difficult to believe” and her evidence to the Minister’s Department and to the Tribunal contained minor inconsistencies. In substance, the applicant’s complaints about the Tribunal’s conclusions concerning her motivation for attending church in Australia seeks to challenge factual findings which the Court cannot undertake in judicial review proceedings[12].
[12] Wu Shan Liang at 272
I conclude that the applicant has failed to demonstrate that the decision of the Tribunal is affected by any jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I will so order.
In consequence of the dismissal of the application the Minister seeks an order for costs fixed in the sum of $5,200. The applicant claims impecuniosity but, as has been repeatedly stated, that is not a reason for the court to refrain from making a costs order. I am satisfied that costs of not less than $5,200 have been reasonably and properly incurred by the Minister when assessed on a party and party basis.
I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application fixed in that amount.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 23 May 2017
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