SZIVN v Minister for Immigration - [2006] FMCA 1648

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIVN v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1648

MIGRATION – Review of decision by Refugee Review Tribunal – whether the second named applicant, being the infant son of the first named applicant, is a non-citizen – whether the second named applicant, being the infant son of the first named applicant, made independent claims of a well founded fear of persecution, other than as a dependant of the first named applicant – whether Refugee Review Tribunal was entitled to proceed with its review – whether Refugee Review Tribunal has a duty to investigate an applicant’s claims – whether Refugee Review Tribunal complied with s.424A(1) of Migration Act 1958 (Cth).

Migration Act 1958 (Cth), ss.36; 36(2)(b); 48A; 48B; 65; 424A; 424A(1); 425(2); 474
AustralianCitizenship Act 1948 (Cth), ss.10; 13; 32

Re Minister for Immigration and Multicultural and Indigenous Affairs and Another: Ex parte Applicants S134/2002 [2003] 211 CLR 441
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195
SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306
SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78
SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2
SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208

Applicant:

SZIVN

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

SYG1389 of 2006

Judgment of:

Emmett FM

Hearing dates:

31 October & 2 November 2006

Date of last submission:

2 November 2006

Delivered at:

Sydney

Delivered on:

2 November 2006

REPRESENTATION

The Applicant appearing on her own behalf

Solicitors for the Respondent:

Mr A. Cox, Phillips Fox

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1389 of 2006

SZIVN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

By application filed on 12 May 2006, the applicant sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 March 2006 and in respect of in which the applicant was notified on 25 April 2006.
The applicant was born in the People’s Republic of China (“the PRC”) on 14 October 1966 and claims to be a citizen of the PRC.

The applicant arrived in Australia on 13 March 1998 on a visitor's visa. The second named applicant is the infant son of the first applicant and the second applicant was born in Australia on 15 June 2005.
On 24 October 2005, the first applicant applied for a Protection (Class XA) visa on the basis that she had a well founded fear of persecution from Chinese authorities because of her participation in the underground Christian church in the PRC.
In her protection visa application, the applicant stated that she was married and had another son born on 4 August 1990. She stated that she left the PRC in 1998; that she and her husband had been separated for over seven years, although “he comes to Australia”. The applicant stated that she and her husband had not decided on their future together as yet. She stated that her husband is a citizen of China, having been born in the PRC.
The applicant in her Form B, being the application for a protection visa, identified the second applicant as her son born on 15 June 2005. It is apparent from the Form B that the applicant completed the form with the assistance of an unqualified person to whom she paid $50.

In the Form B, in answer to the question of the first named applicant: “Do you have your own claims to be a refugee?”, the applicant has marked the box "Yes" and signed the answer to that question.

In relation to the second named applicant, the question: “Do you have your own claims to be refugee?” is unanswered and unsigned.

The questions indicate that, in the event an applicant has their own claims to be refugee, a Form C must be completed and, if an applicant does not have claims of their own to be refugee, a Form D is to be completed.
The first named applicant duly completed the Form C in respect of her own claims. A Form D, being a form for a member of a family unit who does not have their own claims to be a refugee but is included in the application of the primary applicant, was completed on behalf of the second named applicant, being the infant son of the first named applicant. The Form D identified the second named applicant as being a citizen at birth of the PRC and has current citizenship as Chinese, since his date of birth on 15 June 2005.
The applicant provided a copy of a birth certificate in respect of the second applicant indicating that the second applicant was born in

New South Wales on 15 June 2005. The birth certificate contains the mother's details but contains no details in respect of the father.
These matters are relevant to the question of whether or not the second applicant satisfies s.36(2)(b) of the Migration Act 1958 (Cth) (“the Act”) in relation to the requirement of being a non-citizen in Australia, were the first applicant to be granted a protection visa. That is because one of the criterion for a protection visa under s.36(2)(b) of the Act as a dependant of the first named applicant, is that the second named applicant is also a non-citizen. Under the AustralianCitizenship Act 1948 (Cth), where a baby is born in Australia, where one of the parents is an Australian citizen or permanent resident, that baby may also be an Australian citizen (see s.10 of the AustralianCitizenship Act 1948 (Cth)). In the proceeding before this Court, the father is not identified on the birth certificate. Were the presumption of legitimacy to apply, where the mother, being the first named applicant, is legally married at the time and there is no evidence to rebut that presumption, then the baby, being the second named applicant, may be presumed to be the child of the husband of the first named applicant. There may be provision in the Australian Citizenship Act 1948 (Cth) for a certificate of registration where doubt exists as to a person’s status as an Australian citizen (see ss.13 and 32 of the Australian Citizenship Act 1948 (Cth)).
There was no evidence before the Tribunal and there has been no evidence provided to this Court that would suggest other than that the second named applicant is a citizen of the PRC and therefore a non citizen.
On 24 January 2006, a delegate of the first respondent (“the Delegate”) refused the applicant's application for a protection visa on the basis that the first applicant was not a person to whom Australia had protection obligations.
On 17 February 2006, both applicants applied to the Tribunal for a review of the Delegate's decision.
On 3 March 2006, the Tribunal sent 3 letters to the applicant at her address identified for correspondence:
i)a request for additional information to be furnished by 28 March 2006 and indicating that, if the applicant did not provide the information by the due date, the Tribunal may make a decision on the review without taking any further steps to enable the applicants to attend a hearing;
ii)a letter informing the applicant that the Tribunal had information that would, subject to any comments the applicant may make, be the reason or part of the reason for deciding the applicant is not entitled to a protection visa. The letter went on to identify the information and the reasons why the information was relevant. Again, the letter informed the applicant that if she did not give comment by 28 March 2006, the Tribunal may make a decision on the review of her case without further notice;
iii)a letter informing the applicant that the Tribunal had considered the material before it in relation to that application but was unable to make a decision in her favour on that information alone and inviting her to attend a hearing on 12 April 2006. The letter indicated that if the applicant thought she may be unable to attend the hearing, she should contact the Tribunal immediately and if she did not attend the hearing and the Tribunal did not postpone the hearing, it could make a decision on her case without further notice.
The Tribunal also enclosed in the third letter a ‘Response to Hearing Invitation’ form and requested its completion and return by 21 March 2006. The applicant was again invited to send any new documents or written arguments that she wished the Tribunal to consider.
On 20 March 2006, the applicant appears to have signed a ‘Response to Hearing Invitation’ form, indicating that she did not wish to come to a hearing. That document was received by the Tribunal. In the circumstances, by signing and returning the ‘Response to Hearing Invitation’ form, the first named applicant consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it.
In its decision, the Tribunal noted the correspondence it had with the applicant and the receipt by the Tribunal from the applicant of its ‘Response to Hearing Invitation’ form, indicating that the applicant consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal. That course of action was available to the Tribunal pursuant to s.425(2) of the Act, where the Tribunal had otherwise complied with statutory obligations in the conduct of its review.
It is plain that the Tribunal exercised its discretion to proceed with its review pursuant to its entitlements under s.425(2) of the Act
The Tribunal went on to identify with some specificity the claims of the applicant made before it and material provided to it by the applicant in support of her application. The Tribunal acknowledged that the applicant had provided some details in support of her claims, however, did not find the material conclusive.
The Tribunal identified various concerns about the first named applicant's claims that it would have wished to have explored with the applicant at a hearing. In particular, the Tribunal stated that it was not satisfied by her explanation as to why she had waited seven and a half years before lodging that application for a protection visa.

The Tribunal was ultimately not prepared to accept the assertions made by the first named applicant in her material and found that there were insufficient particulars to enable the Tribunal to be satisfied that the applicant was a true Christian. Because the Tribunal was not satisfied that the first named applicant was a Christian, it was not able to be satisfied that the first named applicant was of adverse interest to the PRC authorities, including the police.
In accordance with ss.36 and 65 of the Act, where a decision maker in the position of the Tribunal is not satisfied that an applicant meets the criteria required for refugee status, it must refuse a protection visa. Accordingly, the Tribunal affirmed the decision of the Delegate.
The applicants filed an application for judicial review of that decision with this Court on 12 May 2006.

The proceeding before this Court

The first named applicant appeared before this Court unrepresented but with the assistance of an interpreter. The first named applicant confirmed that she relied on her amended application, filed on 10 July 2006, although she had nothing to say in support of the grounds identified in the amended application. She did say that the Tribunal had treated her and her son unfairly; that the Tribunal had not considered the position of her son, the second applicant, and the fact that, if he were to return to PRC, he would suffer persecution because he is unregistered in the PRC.
As is clear from the forms completed on behalf of the second named applicant, his claim is as of a dependant of the first named applicant. There are no claims made independently on the material before the Tribunal in respect of the second named applicant as articulated by the applicant before this Court this morning. The only reference is in a statement made by the first named applicant on 20 October 2005 in support of her protection visa application where she said that her son is innocent and that “his future should not be ruined by her”.
I do not regard those words as being capable of giving rise to a claim so plain on the face of the material such that the Tribunal was obliged to consider that the second named applicant was purporting to make claims in his own right. The Form B, Form C and Form D completed by the first named applicant made it clear that the second named applicant's application is as a dependant of the applicant.
Where an applicant proceeds in respect of one limb of an entitlement for a protection visa application, a Tribunal is not obliged to consider any claims that may arise under a second limb (Re Minister for Immigration and Multicultural and Indigenous Affairs and Another: Ex parte Applicants S134/2002 [2003] 211 CLR 441 per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at [28] - [32]).
In the proceeding before this Court, the claim by the second named applicant was made pursuant to s.36(2)(b) of the Act; that is, as a non-citizen dependant of a non-citizen who satisfies the criteria for protection under the Refugees Convention as amended by the Refugees Protocol (“the Convention”). There is plainly no claim under s.36(2)(a) of the Act that the second named applicant is a non-citizen to whom Australia has protection obligations under the Convention.
For completeness only, I note the provisions of ss.48A and 48B of the Act, particularly in respect of the second named applicant.
I now turn to the grounds relied upon by the applicants in their amended application.
Ground 1 contains general complaints without further particularisation. Ground 1 is identified as follows:
“1. RRT’s decision is unfair to me which totally disregard my evidences and claims and it made the decision based on the general country’s information.
Particulars
(1) The tribunal took the irrelevant considerations into account in the exercise of the power: The general country’s information is main considerations in making the decision of this application. It did not address my specific circumstances.
(2). The tribunal failed to investigate independently my special circumstances for my participation in Christian religion both in China and Australia.
(3) In tribunal’s decision record, it made the conclusion that I was not in Australia in the end of 2004. The decision was made not based on any evidences and it also disregarded the evidences I provided.”
Ground 1(1) appears to include a complaint that the Tribunal failed to have regard to independent country information. However, where the Tribunal has failed to be satisfied that the applicant has a well-founded fear of persecution from an objective point of view, it is not necessary for the Tribunal to proceed to consider general country information about the circumstances claimed by the applicant to exist.
Further, Ground 1(1) is at odds with the complaint identified in paragraph 1 of the ground where the applicant complains that the Tribunal based its decision on the general country's information.

The Tribunal did not have regard to independent country information in its conclusion of lack of satisfaction about the first named applicant’s claims. Such an allegation is plainly misconceived.
Ground 1(2) appears to be a complaint that the Tribunal failed to investigate the applicant's special circumstances for participation in Christian religion, both in the PRC and Australia. However, the Tribunal does not have a duty to investigate the applicant's claims (See NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18]-[21] per Jacobson J).
Ground 1(3) asserts that the Tribunal concluded that the applicant was not in Australia at the end of 2004 and that no such evidence was before the Tribunal. However, the Tribunal makes no findings in relation to the movements of the applicant or her return to the PRC in late 2004. Having said that, if such information did form part of the Tribunal’s reasons for affirming the decision under review, it had met its obligations pursuant to s.424A(1) of the Act where it had written to the applicants on 3 March 2006 identifying the relevance to the Tribunal of such information and providing the applicant with an opportunity to respond.
Accordingly, Ground 1 is not made out.
Ground 2 is set out as follows:
“2. The tribunal’s decision disregarded my practical situation that I and my son would face a real chance of persecution if we go back to China.
Particulars
(1). In tribunal’s decision, it didn’t contain any information of considering my son’s situation. My son was born in Australia and he has no household registration in China. I have been in Australia for eight years. If we go back to China, we would face a real chance of persecution due to my past involvement in China and also my son’s no birth registration in China.
(2) The tribunal’s assert contains no evidence and all based on their imagination.”
Ground 2 appears to be at the heart of the applicant's complaints, namely, that the Tribunal did not consider the situation of her son, were he to return to the PRC. However, for the reasons already discussed above, at paragraphs 21 to 26, no independent claims were made by or on behalf of the son of a well-founded fear of persecution for a Convention related reason independent to those of the first named applicant. The second particular in Ground 2 is meaningless and discloses no error capable of review. Ground 2 otherwise cavils with the conclusions of the Tribunal and seeks merits review, which this Court cannot undertake.
Accordingly, Ground 2 is not made out
Ground 3 is set out as follows:
“3 Tribunal’s decision is neither fair nor serious, which contains prejudice.
Particulars
(1). Tribunal’s assert that I’m not afraid of persecution due to my late of application for protection is not fair to me. As an individual, not having sufficient information source and ability of protecting myself from a legal way doesn’t mean I am not scared of my situation. As a mother of an innocent infant, I realised that I have to consider the safety and future of my kid instead of hiding forever. However, all these became the excuses for the tribunal to make unfavourable decision on me.”
Ground 3 appears to be a complaint of bias by the Tribunal, particularly because of the Tribunal's decision to refuse the applicant a protection visa because of the lateness of her application. However, the Tribunal's decision makes no specific findings about the claims of the applicant. It simply is not satisfied, due to the inadequacy of the material before it, that the applicant satisfies the criteria for protection visa. In those circumstances, the Tribunal was obliged to refuse a protection visa.
There was no information contained in the applicant's protection visa application that formed part of the Tribunal's reason for affirming the decision under review. Rather, it was the Tribunal’s thought processes in evaluating the first named applicant’s claims about the inadequacy of the applicant's material to which the Tribunal had regard in affirming the decision under review. In those circumstances, there is no breach by the Tribunal of its obligations under s.424A(1) of the Act (VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24] per Finn and Stone JJ; SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195 at [29] per Allsop J; SZDXC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1306 at [16] per Hely J; SZEFM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 78 at [23] per Bennett J; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [216] per Allsop J; SZCIA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 238 at [11] – [13] per Allsop J).

In circumstances where the applicant failed to attend a hearing and the Tribunal was unable to be satisfied that the applicant had a genuine subjective fear of persecution or had experienced the alleged harm, then the Tribunal was bound to affirm the decision of the delegate to refuse to grant the applicant a protection visa (NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 (“NAST”) at [5]).
The Full Court, in NAST at [4], found that for the Tribunal to want an explanation about matters that it identified as causing it concern, and that it would have wished to satisfy itself at hearing, then in such circumstances, it is not in any way irrational, arbitrary or capricious for the Tribunal to conclude that it was not satisfied about those matters.
In the circumstances, the Tribunal's conclusions were open to it on the material before it and the decision is not affected by jurisdictional error.
Accordingly, the Tribunal’s decision is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere. The proceeding before this Court is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Emmett FM

Deputy Associate: S. Tsang

Date: 6 November 2006