MZARN v Minister for Immigration

[2016] FCCA 746

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZARN & ANOR v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 746

Catchwords:
MIGRATION – Application for Judicial Review – fear of persecution in China and parents of extra-marital children – dismissed.

Legislation:

Migration Act 1958 (Cth)

Applicants: MZARN & MZARP

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: MLG 237 of 2015

Judgment of: Judge McGuire

Hearing date: 30 March 2016

Date of Last Submission: 30 March 2016

Delivered at: Melbourne

Delivered on: 17 May 2016

REPRESENTATION

Solicitors for the Applicant: Self Represented

Counsel for the Respondent: Mr Smyth

Solicitors for the Respondent: Clayton UTZ

ORDERS

1. The name of the second respondent be amended to read “Administrative Appeals Tribunal”.

2. The application for judicial review be dismissed.

3. The applicants pay the first respondent’s costs fixed in a quantum of $6825.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 237 of 2015

MZARN & MZARP

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for judicial review of the decision of the Refugee Review Tribunal (as it then was) made 22 January 2015 affirming a decision of the Minister’s delegate to refuse the applicant’s Protection (Class XA) visa.

2. This matter was listed and heard on the same day as that of the first applicant’s partner (and father of the second applicant) in MLG237/2015.

3. The first applicant is from the People’s Republic of China.  She arrived in Australia holding a student visa on 2 August 2007.  The second applicant was born in Australia on 24 July 2011 and is therefore also a People’s Republic of China national.  The mother and her partner have a second child being a daughter born in Australia on 18 May 2013 who is deemed to be included on the father’s protection application.  By reason of her date of birth in relation to the progress of the father’s application for a visa. 

4. The first applicant applied for a protection visa on her own behalf and on behalf of the second applicant on 9 July 2012.  That applicant was refused by the Minister’s delegate on 13 February 2013.  On 18 February 2013 the mother sought a merits review of the delegate’s decision by the Tribunal.

5. The mother appeared before the Tribunal on 1 August 2013 together with her representative and an interpreter (and her partner).  She also provided a post-date hearing submission and further documents.  On 14 July 2014 the applicant was invited to further appear before the Tribunal with the invitation noting:

   Your claim for protection relates to the same body of facts said to support the claim to protection made by [the father].  It therefore appears likely that you will wish to appear as witnesses in the hearing of [the father’s] application.  It is also likely that the Tribunal will rely on the evidence arising in each of your respective claims in considering each application.

   In order to deal with your and [the father’s] two respective applications, the Tribunal is of the preliminary view the most appropriate course is to conduct your further hearing and [the father’s] further hearing together, with the evidence in one claim to be treated as evidence in the other.  In so doing, the Tribunal proposes to take evidence from each of your separately without the other one present, to avoid your evidence be affected by the evidence of the other.  However, to the extent that there might arise any material inconsistencies in your respective evidence that might form the reason or part of the reason for affirming the decision under review, this would be set out for each of you in writing and you would each be given an opportunity to respond in writing.

6. No complaint is made in respect of the above anticipated process.  The applicant mother attended at the second hearing on 14 August 2014 bringing with her further documentation. 

7. On 19 August 2014 the Tribunal wrote to the applicants setting out perceived inconsistencies and inviting comment.  The applicants responded by letter of 22 August 2014.

8. The Tribunal made its determination to affirm the delegate’s decision. 

The Tribunal’s decision 

1. The Tribunal’s reasons disclose that it identified the two claims made by the applicants in respect of convention grounds.  Firstly, the applicants claimed to be members of local Christian churches in Fujian province and, secondly, that they are members of a particular social group specifically that the first applicant is a mother of “black children”.  And that the second applicant by reason of his illegitimacy is a “member” of the social group of “black children.”  The applicants claim a well-founded fear of persecution in China accordingly.

2. In respect of the claim of reasonable fear based on practice of religion, the Tribunal’s reasons disclose concerns as to the applicant’s credibility.  The Tribunal noted, for instance, a delay between the expiration of the applicant’s student visa and her application for a protection visa.  The Tribunal noted contradictory admissions from the applicant when seen against her protection claim.  The Tribunal noted inconsistencies in the applicant’s evidence as to attendance at a Melbourne Christian church and asserted family problems in China because of Christian affiliations.  Specifically, at [116] the Tribunal says:

   I give significant weight to these inconsistencies and the inability of the applicant and [the father] to explain them, in assessing the credibility of the applicant and [the father].  In light of the significant length of time between when the applicant and [the father] became aware their respective student visas may be cancelled and when they lodged their respective protection visa applications and the inconsistencies and admissions referred to above, I find that the applicant and [the father] have deliberately made false claims about their and their family’s membership of and involvement with local, unregistered Christian churches in China and Australia.  I give their willingness to provide this false information significant weight and find them both to significantly lack credibility in relation to their protection claim.

3. The Tribunal proceeded to make findings that it did not accept that the applicant or any of her family had been involved in local, unregistered Christian churches in Fujian or elsewhere and had therefore not suffered any adverse consequences from such membership as claimed by her.  The Tribunal also made findings that neither the applicant nor her partner had attended Christian church services in Australia as claimed.  It followed that the Tribunal rejected the applicant’s convention claim based on religion.

4. In respect of the applicant’s second claim for protection in respect of being members of particular social groups, the Tribunal accepts the mother would be identified in China as being the mother of two children in breach of the People’s Republic of China family planning laws.  It then accepted that the second applicant would be identified as an illegitimate child born in breach of those family planning laws.  The Tribunal therefore accepted that the applicant and the second applicant were each members of the particular social groups claimed by them.  The Tribunal then identified its proper consideration in saying [126]:

   To assess whether the application of these laws amounts of persecution, I must first consider whether discriminatory treatment under these laws is appropriate and adapted to achieving some legitimate object or purpose.  Considering the country information before me, I find the relevant objective of the Chinese family planning laws to be population control and that this is a legitimate object or purpose of the Chinese state in order to protect or promote the general welfare of China and its citizens.  As I have noted below, the applicable fees for breach of Chinese family planning laws are determined according to scales relating to the average annual income of citizens, in particular regions, and it is possible in Fujian for the applicable fees to be paid in instalments.  In this context, I consider the Chinese family planning laws and their operation to be proportionate means of achieving the legitimate stated objective of controlling the population level in China.  Further, the country information before me does not suggest that in Fujian those laws are being selectively enforced for a Convention reason against particular groups or individuals.  As a result, I do not accept that the application of the Chinese family planning laws to the applicants amounts to persecution under s91R of the Act.

5. The Tribunal considered in its reasoning a reference to the likely amount of the social compensation fee and the possibility of paying by instalments together with the likely family support available to the applicants. 

6. The Tribunal, in its discretion, concluded that it was unable to be satisfied that the applicant’s membership of the particular social groups resulted in the asserted reasonable fear of persecution.

Application to this Court

1. The applicant appears unrepresented but with the assistance of an interpreter.  She provided no written submissions in support of her application.  Short oral submissions were made to the Court but, despite an explanation as to this Court’s role, those submissions could fairly be categorised as addressing only the merits of the Tribunal’s exercise of discretion.  The application of itself under the heading “grounds of application” provides for paragraph.  They are:

   1) I am lodging this review application with Federal Circuit Court of a decision made by the Refugee Review Tribunal to affirm the decision made by the delegate to refuse my protection visa application.  

   2) The Tribunal constitute juridical error in the way that the Tribunal does not consider carefully if visa applicant will be able to support the substantial amount of compensation in order to register the two children in China.  In Paragraph 129, the Tribunal member stated that, I find it highly likely that the applicant will also be assisted by her family with the payment of the social compensation fees in order for the two children to be registered.  I find it highly likely they will be able to do so on their return to China and also make contributions to the payment of the social compensation fee by instatements (sic).  My parents are both growing older and father’s seafood business has closed down and has no income in China.  My parents will be unable to provide such financial assistance to us.

   3) Paragraph 134, the Tribunal member stated that country information before me shows that children born out of wedlock may experience discrination (sic) and ostracism, such being treated with pity and distain, being subjected to teasing at school, but that if they had gained household registration they are entitled to the same access to government services as other.  I accept that there is a real chance the second applicant, as an illegitimate child with face difficulties of this sort if he returns to China.  Figures suggested by the Tribunal for the fine is between CNY 47,400 to CNY 75,000, However, the actual fine is much greater than that and we will not be able to afford such fine if we have to return to China.  In the last few years, we have been supported by Australian Red Cross.  If we had not received the assistance from Red Cross, we would not have been surviving in Australia. 

   
   
   

   4) The Tribunal denied the visa applicant fairness in failing to clarify with the visa applicant and the witness about two different church locations in Melbourne that we attended.  As a matter of fact, we attend Melbourne church gatherings in three locations, at a church brother’s own house in (X), at (X) primary school and in a meeting hall in (Y).  On different weeks, we attend churches at different locations.  However, the Tribunal member did not raise this concern and we did not know he had concern about this difference of gathering ….. we attended in Melbourne.  

Ground 1

1. Paragraph 1 of the grounds of the application comprises a narrative and does not address any alleged jurisdictional error.

Ground 2

1. The Tribunal accepted that the applicant would be seen as being in breach of the Chinese family planning laws.  It accepted that the second applicant would be identified as an illegitimate child and also in breach of those laws.  The Tribunal therefore, accepted that the applicants were each a member of the claimed particular social group for the purposes of the convention. 

2. The crux of the Tribunal’s consideration appears at [126] of its reason thus:

   To assess whether the application of these laws amounts to persecution, I must first consider whether discriminatory treatment under these laws is appropriate and adapted to achieving some legitimate object or purpose.  Considering the country information before me, I find the relevant objective of the Chinese family planning laws to be population control and that this is a legitimate object or purpose of the Chinese state in order to protect or promote the general welfare of China and its citizens.  As I have noted below, the applicable fees for breach of Chinese family planning laws are determined according to scales relating to the average income of citizens in particular reasons and it is possible in Fujian for the applicable fees to be paid in instalments.  In this context, I consider the Chinese family planning laws and their operation to be proportionate means of achieving the legitimate stated objective of controlling the population level in China.  Further, the country information before me does not suggest that in Fujian these laws are being selectively enforced for a convention reason other than particular groups or individuals.  As a result, I do not accept that the application of the Chinese family planning laws to the applicants amounts to persecution and s01R of the Act. 

   
   

3. The applicant’s complaint at ground 2 can be understood to be that the Tribunal did not consider a claim namely that the applicant would not be able to meet any social compensation fees.  To the contrary, the Tribunal’s reasons at [177] – [133] engaged this issue in some detail.  The applicant’s disagreement with the Tribunal’s conclusion, being one that was open to it, constitutes simply a quarrel with the merits and does not point to any jurisdictional error in the Tribunal.  I find no merit in this ground of complaint.

Ground 3

1. This complaint can only be understood as a quarrel with the Tribunal’s factual finding and conclusion.  In respect of the applicable social compensation fee.  The Tribunal had before it the applicant’s submissions as well as the country information.  It was open to the Tribunal to prefer the country information where the evidence was in conflict and reasoned its preference at [127] in finding that the applicant’s evidence was, “vague, lacking in detail and inconsistent with the country information.”  It is for the Tribunal within the exercise of its discretion to attribute weight to evidence and to make findings of credit and disputed fact.  I am satisfied in this case that the Tribunal’s finding was one open to it.  There is no merit in this ground of the application. 

Ground 4

1. This ground can be understood as a complaint that procedural fairness was not afforded the applicant. The applicants claimed to have attended Melbourne church gatherings in three locations. The applicant claims that she was put on notice and invited to comment or respond in respect of the Tribunal’s concerns as to inconsistent evidence in this respect. However, by letter of 19 August 2014 and pursuant to section 424A of the Migration Act, the Tribunal wrote to the applicant in the following terms:

   At the first hearing and at the second hearing, [the mother] stated that she and [the father] had been attending the local church services at [X] in Melbourne.  At the second hearing [the mother] stated that the place she attended the local church services was near [Y].  At the second hearing [the father] stated that the local church services he attended in Australia with [the mother] were at [Z] which was near [B] in Melbourne.

2. The applicant responded by letter of 22 August 2014 (in the form of her partner’s response in his application) as follows:

   Both [the mother] and me have been attending local church gathering in Melbourne on weekly basis.  Our church gathering was held at [X] primary school in Melbourne which is one [sic] the Upfield train line.  We get off at [Y] station and walk to the primary school for the gathering.  We also attending monthly gathering at [Z].  However, I cannot spell out the word for [Z] as it is a difficult word to remember and it was further up [B] directions.

3. If the applicant claims that the Tribunal’s concerns as to inconsistencies in the evidence were not raised with her then she is incorrect by reason of the Tribunal’s letter of 19 August 2014.  Accordingly, procedural fairness was afforded the applicant.  The remainder of ground 4 is again an attempt by the applicant to cavil with the credit and factual findings of the Tribunal.  I find no merit in the ground of complaint.

Conclusion

1. Having found no merit in the four paragraphs set out in the applicant’s application as “grounds of application”, the substantive application for judicial review is dismissed.  There will be an order for costs in favour of the first respondent. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date:  17 May 2016