FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Border Protection v SZSRS
[2014] FCAFC 16
Citation: Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 Appeal from: SZSRS v Minister for Immigration & Anor [2013] FCCA 1858 Parties: MINISTER FOR IMMIGRATION AND BORDER PROTECTION v SZSRS and REFUGEE REVIEW TRIBUNAL File number(s): NSD 2424 of 2013 Judge(s): KATZMANN, GRIFFITHS AND WIGNEY JJ Date of judgment: 6 March 2014 Catchwords: MIGRATION – application for protection visa – Minister’s appeal from the Federal Circuit Court – whether the Tribunal ignored or failed to consider corroborative evidence – whether the Tribunal’s failure to refer to a piece of evidence in its reasons demonstrated that the evidence had been overlooked
ADMINISTRATIVE LAW – whether the failure of the Tribunal to consider corroborative evidence amounted to jurisdictional error – whether the failure to consider evidence will only amount to jurisdictional error if a claim is ignored – distinction between claims and evidence
Legislation: Migration Act 1958 (Cth), s 430 Cases cited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen v Minister for Immigration and Citizenship [2011] FCAFC 56
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244
Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303
Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99
Minister for Immigration and Citizenship v SZRKT [2013] HCATrans 251
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
MZXSA v Minister for Immigration and Citizenship (2010) 117 ALD 441
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396
Raza v Minister for Immigration and Multicultural Affairs [2002] FCAFC 82
Reece v Webber (2011) 192 FCR 254
Rezaei v Minister for Immigration and Multicultural Affairs [2001] FCA 1294
SZQRW v Minister for Immigration and Citizenship (2012) 134 ALD 454
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268
WAEE v Minister for Immigration and Citizenship (2003) 75 ALD 630Date of hearing: 26 February 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 65 Counsel for the Appellant: G Johnson SC and T Reilly Solicitor for the Appellant: Sparke Helmore Lawyers Counsel for the First Respondent: S B Lloyd SC and J King Solicitor for the First Respondent: Fragomen
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 2424 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
AppellantAND: SZSRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGES:
KATZMANN, GRIFFITHS AND WIGNEY JJ
DATE OF ORDER:
6 MARCH 2014
WHERE MADE:
SYDNEY
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CaseChat Overview and Summary
The appeal in Minister for Immigration and Border Protection v SZSRS was heard in the High Court of Australia. The appellant, the Minister for Immigration and Border Protection, challenged a decision of the Federal Circuit Court which had dismissed his appeal against the grant of a protection visa to the respondent, SZSRS, a Chinese national born in Australia. The primary issue before the High Court was whether the Federal Circuit Court had erred in law by finding that the Administrative Appeals Tribunal (AAT) had failed to consider corroborative evidence in its review of the Minister's decision to refuse SZSRS's application for a protection visa. The Court was also asked to determine whether the AAT's failure to refer to a piece of evidence in its reasons meant that the evidence had been overlooked.
The High Court held that the Federal Circuit Court had erred in concluding that the AAT had failed to consider the corroborative evidence. The Court clarified that the AAT was not required to consider all evidence before it in making its decision, but rather was required to consider the evidence that was relevant to the issues before it. In this case, the evidence in question related to SZSRS's baptism and her family's Christian faith, which the AAT found was not relevant to her claim for a protection visa. The Court found that the AAT had properly considered the evidence that was relevant to its decision, and had provided sufficient reasons for its decision. The Court also held that the AAT's failure to refer to a piece of evidence in its reasons did not necessarily mean that the evidence had been overlooked, as long as the AAT had considered all relevant evidence and provided sufficient reasons for its decision.
The High Court dismissed the appeal and ordered that the appellant pay the respondent's costs. The Court found that the Federal Circuit Court had erred in concluding that the AAT had failed to consider corroborative evidence, and that the AAT's failure to refer to a piece of evidence in its reasons did not necessarily mean that the evidence had been overlooked. The Court held that the AAT had properly considered the evidence that was relevant to its decision, and had provided sufficient reasons for its decision. The appeal was therefore dismissed, and the respondent's costs were awarded to her.
The High Court held that the Federal Circuit Court had erred in concluding that the AAT had failed to consider the corroborative evidence. The Court clarified that the AAT was not required to consider all evidence before it in making its decision, but rather was required to consider the evidence that was relevant to the issues before it. In this case, the evidence in question related to SZSRS's baptism and her family's Christian faith, which the AAT found was not relevant to her claim for a protection visa. The Court found that the AAT had properly considered the evidence that was relevant to its decision, and had provided sufficient reasons for its decision. The Court also held that the AAT's failure to refer to a piece of evidence in its reasons did not necessarily mean that the evidence had been overlooked, as long as the AAT had considered all relevant evidence and provided sufficient reasons for its decision.
The High Court dismissed the appeal and ordered that the appellant pay the respondent's costs. The Court found that the Federal Circuit Court had erred in concluding that the AAT had failed to consider corroborative evidence, and that the AAT's failure to refer to a piece of evidence in its reasons did not necessarily mean that the evidence had been overlooked. The Court held that the AAT had properly considered the evidence that was relevant to its decision, and had provided sufficient reasons for its decision. The appeal was therefore dismissed, and the respondent's costs were awarded to her.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
For the reasons that follow, the appeal should be dismissed with costs. Background The first respondent, SZSRS, is a Chinese national, who was born in Australia on 8 June 2011. Her parents, both citizens of the People’s Republic of China, separately arrived in Australia on student visas, the mother in 2006, the father in 2001. Both those visas were cancelled. Later, each parent, separately and unsuccessfully, applied for protection visas and each unsuccessfully sought reviews and mounted court challenges to the decisions of the Tribunal to refuse those applications. After marrying in Australia in June 2009, the parents had a daughter. She was born in September 2009. In October 2010, when their daughter, the sister of SZSRS, was just over one year old, an application for a protection visa was lodged on her behalf. The Minister refused that application too. His decision was affirmed by the Tribunal. An application for judicial review of that decision also failed. On 10 May 2012, when SZSRS was just ten months old, a protection visa application was lodged in her name, signed by her father on her behalf. The application was accompanied by a statement, again signed by her father on her behalf, which is expressed in the first person and reads as if it had been given or prepared by SZSRS herself. In view of her age that is, to say the least, odd. In it, SZSRS purports to speak of her fear of the future if she were to return to China given that she is an “out-of-the-plan” baby according to Chinese family planning law. “She” states that she would, as a result, be denied residency and become a “black child” and suffer discrimination. The statement also appears to claim that she might be harmed because she was a girl and “social values [in China] weight boys over girls and it is not uncommon to hear about girl babies being abundant (sic) and even killed”. A delegate of the Minister refused the protection visa application. The delegate found that SZSRS did not have a well-founded fear of “Convention based persecutory harm” as a “black child” if she had to live in China. The notion of a well-founded fear of persecution in the applicant’s country of nationality, which is the primary criterion for the grant of a protection visa, has both a subjective element (does the applicant have a fear of being persecuted?) and an objective element (is that fear well-founded?): Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The delegate did not raise any issue about the statement purportedly given by SZSRS or appear to question whether, given her age, SZSRS was capable of entertaining any subjective fear of persecution in China. Whilst it may be accepted that, in the case of a minor, the subjective fears of a parent on behalf of the minor may be sufficient (Raza v Minister for Immigration and Multicultural Affairs [2002] FCAFC 82 at [18]), the statement lodged in support of SZSRS’s protection visa application purported to have been made by her, not her father.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Tribunal’s reasons for so finding are set out in three paragraphs: 56.In considering the current matter the Tribunal took into account the evidence provided by the applicant’s father during the hearing regarding the applicant’s alleged baptism and his own and the applicant’s membership of the Christian faith. As raised during the hearing, the applicant’s father provided a Membership Certificate for the child dated 2 September 2012. This is not a Baptism Certificate, (as is demonstrated by comparison to the Baptism Certificate provided for the mother also from Wesley Mission). After the hearing, by facsimile dated 15 January 2013, the applicant’s father forwarded a ‘Certificate of Infant Dedication’ for the applicant child, dated 8 June 2011 (sic.), from Wesley Mission. The Tribunal again notes that this is not a Baptism Certificate. The Tribunal also took into account that although the father said his religion was Christian, when asked which denomination he belonged to, he initially was unable to answer. The father then said that they were Wesley Mission denomination. This uncertainty on the father’s part leads the Tribunal to doubt the truth of this evidence. 57.As raised by the Tribunal during the hearing, Baptism is very important in a Christian’s life and the certificate is a record or a symbol of this. However the fact that the applicant’s father had mixed up a Baptism Certificate with a Membership Certificate is not in the applicant’s father’s favour, or in the applicant’s favour. The applicant’s father said that there were two Baptism Certificates for the children and he will supply these by the end of the week. However, after the hearing the applicant’s father forwarded a ‘Certificate of Infant Dedication’ for the applicant child, dated 8 June 2011 (sic.), from Wesley Mission. The Tribunal notes that is not a Baptism Certificate, as can be seen by comparison with the mother’s Baptism Certificate from Wesley Mission. 58.Based on the conflicting oral and documentary evidence provided by the applicant’s father as to the parents’ and applicant’s Christian denomination, and as to whether or not that applicant has been baptised, the Tribunal has found that it is not satisfied that the applicant’s parents are Christians, and/or that the applicant is a member of a Christian family. Nor is the Tribunal satisfied that the applicant will practise Christianity if she returns to Fujian Province. Therefore the Tribunal finds that the applicant does not have a well-founded fear of serious harm or persecution for a Convention reason based on her own faith and/or her family’s faith as Christians.Judgment of the Federal Circuit Court In the application for judicial review in the Federal Circuit Court three grounds were pleaded. First, it was said that the Tribunal had failed to consider the Reverend Lee’s letter. Second, it was said that the Tribunal had failed to inquire of the Reverend Lee whether he had baptised SZSRS in circumstances where the Tribunal could not reasonably discharge its statutory review function without making that inquiry. The primary judge accepted the first contention but rejected the second. The third ground, which the primary judge also rejected, has no bearing on the issues in this appeal.
Ratio Decidendi
Legal Principle Established
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