SZOSV v Minister for Immigration and Citizenship

[2011] FCA 1016

FEDERAL COURT OF AUSTRALIA

SZOSV v Minister for Immigration and Citizenship [2011] FCA 1016

Citation:		SZOSV v Minister for Immigration and Citizenship [2011] FCA 1016
Appeal from:		SZOSV v Minister for Immigration [2011] FMCA 42
Parties:		SZOSV and SZOSW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 160 of 2011
Judge:		SIOPIS J
Date of judgment:		1 September 2011
Date of hearing:	5 August 2011
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	27
Counsel for the First and Second Appellants:	The First Appellant appeared on behalf of the First and Second Appellants, in person, with the assistance of an interpreter
Counsel for the First Respondent:	Mr D Godwin
Solicitor for the First Respondent:	DLA Piper Australia

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 160 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOSV
First Appellant

SZOSW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	1 SEPTEMBER 2011
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the first respondent’s costs to be agreed or taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 160 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZOSV
First Appellant

SZOSW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	1 SEPTEMBER 2011
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrate dismissing the appellants’ application for judicial review of the decision of the Refugee Review Tribunal.  The Tribunal affirmed the decision of a delegate of the first respondent not to grant the appellants a protection visa.

   BACKGROUND

2. The appellants are citizens of the Republic of China.  The first appellant is the mother of the second appellant.  On 28 February 2008, the second appellant was granted a student visa, and the first appellant was granted a visa to travel to Australia as his guardian.

3. The appellants arrived in Australia on 18 March 2008.  The second appellant’s student visa was cancelled on 2 May 2009.  On 9 September 2009, the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship.  The second appellant applied as a member of his mother’s family unit.

4. In her statement accompanying her application for a protection visa, the first appellant claimed to be a member of a Christian family in a small city in southern China, and that she suffered persecution because of her religious beliefs.

5. The first appellant claimed that in 2006, she was arrested along with 100 other members of her church at the Dongshantang Church.  She claimed that the police detained her for three days, during which time she was questioned about her religious beliefs.  The first appellant claimed that a policeman slapped her across the face when she refused to answer questions about her religion.

6. The first appellant claimed that since her arrest, her hometown had been divided into two groups.  One group practised at the Dongshangtang Church, governed by the Chinese government, and the other group became an underground church.  The first appellant claimed to be a member of that underground church and to have allowed church meetings to take place at her chicken farm between late 2006 and early 2007.

7. The first appellant also claimed that in about March or April 2007, her religious practice at her chicken farm was discovered and she was again arrested and fined.  The first appellant claimed she wrote a confession and was released; however, when she returned home, she found that her chicken farm had been “knocked down”.  The first appellant went on to claim that she was unable to repay borrowings on the farm from private money lenders whom she alleged had connections with underworld gangs and government officials.  She claimed she and her family were threatened with death if she did not repay the debt, and that her family continues to be harassed by the same people.

8. The first appellant also claimed that in 1992, she became pregnant with her second child and was warned by the government to have the pregnancy terminated, in accordance with China’s one child policy.  She claimed that she did not wish to terminate her pregnancy because of her religious belief.  The first appellant claimed that, ultimately, the government allowed her to have her second child once her husband promised to pay the government officials a bribe and a fine.  The first appellant claimed that in 1993, she fell pregnant again, and paid the same amount of money to the local government to keep her third child.  The first appellant claimed that in May or June 1995, she was forced to undergo a sterilisation procedure which has left her in poor health.

9. On 24 September 2009, a delegate of the first respondent refused the appellants’ application for a protection visa.  On 28 October 2009, the appellants applied to the Tribunal for a review of the delegate’s decision.  On 27 September 2010, the Tribunal affirmed the delegate’s decision.

10. The Tribunal could find no mention in independent country information of Dongshantang Church, or information about 100 people being arrested for attending that church or any other church in Gaolin.

11. The Tribunal considered that the first appellant’s oral evidence was lacking detail, evasive and not consistent with a reliable, straightforward account.  The Tribunal did not consider that the first appellant’s account of her religious practice and detention was credible.

12. The Tribunal concluded that the destruction of the first appellant’s farm was likely to be connected to the fact that the first appellant and her husband owed a significant amount of money to money lenders and they were unable to meet repayments on the loan.

13. The Tribunal found that the essential and significant motivation for the persecution feared by the first appellant and second appellant, was not their religious beliefs, but was the desire of the money lenders to obtain their outstanding debt.

14. In relation to the first appellant’s claim to have suffered persecution as a result of her breaches of China’s family planning regulations, the Tribunal accepted that those breaches resulted in the first appellant being forced to pay a penalty fee, and that she had faced harassment and a period of detention in 1995, as well as being forced to undergo tubal ligation.  The Tribunal found that, whereas the penalty fees paid by the first appellant were a result of a generally applicable law, the detention suffered by the first appellant was an abuse of the law by the authorities, which resulted in serious harm to the first appellant.  However, the Tribunal concluded, on the basis of the evidence as a whole, that as the local authorities do not have an ongoing interest in the first appellant as a result of her breaches of family planning regulations in the early to mid 1990s, there is not a real chance that the first appellant would face serious harm for those breaches, were she to return to China.

    FEDERAL MAGISTRATES COURT

15. On 1 November 2010, the appellants applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  The appellants relied on the following grounds:

    1.The Tribunal’s decision is affected by jurisdictional error as it rejected the applicant’s claims on the basis that the Tribunal could not find relevant information about a particular event the applicant claimed to have happened in her hometown, or a particular church that the appellant claimed to have existed in her hometown.

    2.The RRT’s decision is affected by jurisdictional error as it applies country information selectively and biasedly.  In making the decision, the RRT only applied country information that is adverse to the applicant, and failed to give sufficient consideration to country information that supports the applicant’s claims.

16. On 1 February 2011, the Federal Magistrates Court dismissed the appellants’ application for judicial review.

    APPEAL TO THIS COURT

17. On 21 February 2011, the appellants appealed to this Court for judicial review. Their notice of appeal contained the following grounds:

    1.RRT had bias against me and did not make fair decision for my application.

    2.I clarify all my points at the hearing of the Federal Magistrates Court, but the Judge refused my application on my hearing date. It is not fair.

    3.I believe that my application was not considered reasonably by the Judge at the Federal Magistrates Court. I fear to go back to China. Chinese government persecutes underground house church members.

18. The first ground of appeal may be construed as a complaint that the Federal Magistrate erred in rejecting the appellants’ second ground of review.  In that ground of review, the appellants complained, in effect, that the Tribunal was biased because it had been selective in the way that it had used country information.  The Federal Magistrate held that the choice and weight the Tribunal gave to independent country information, was a matter for it to determine.  The Federal Magistrate did not err in coming to that view.

19. The ground of appeal also appears to be a complaint about the Federal Magistrate’s rejection of the appellants’ more generalised complaint of bias.  Aside from considering and dismissing the complaints in the appellants’ grounds of review, the Federal Magistrate also considered a complaint of bias on the part of the Tribunal at a more generalised level.  The Federal Magistrate noted that the appellants provided no evidence to support such a claim of bias.  The Federal Magistrate observed that no transcript of the Tribunal hearing had been put into evidence.  The Federal Magistrate also observed that a fair reading of the Tribunal decision record did not suggest that the Tribunal approached its task other than with a mind open to persuasion.  The Federal Magistrate held the allegation of bias or apprehended bias was not made out. 

20. In my view, the Federal Magistrate did not err in coming to that view.

21. The second ground of appeal appears to be a complaint that the Federal Magistrate did not reserve her decision, but determined the application for review at the end of the hearing.  This is the way it has been construed by counsel for the first respondent.

22. If this was the gravamen of the appellants’ complaint as recorded in their grounds of appeal, this ground of appeal is dismissed. 

23. A perusal of the reasons of the Federal Magistrate shows that the Federal Magistrate addressed the appellants’ complaints in her reasons.  The Federal Magistrate correctly found that the appellants’ complaints as to the use of country information by the Tribunal, were unfounded on the basis that it was well-established that the use the Tribunal made of country information was a matter for the Tribunal.  The Federal Magistrate also identified that the reason that the Tribunal rejected the appellants’ claims was because of the adverse credibility findings it had made in respect of those claims.  The Federal Magistrate went on to observe that the adverse credibility findings were open to the Tribunal.  In my view, the Federal Magistrate did not err in making those findings, and there was no error on the part of the Federal Magistrate in delivering her judgment at the conclusion of the hearing.

24. The third ground of appeal can be construed as a contention that the Federal Magistrate erred in rejecting the grounds of review.  In my view, that ground of appeal is dismissed.  The Federal Magistrate gave reasons at some length for rejecting each of the grounds of review.  In rejecting those grounds of review, for the reasons given, the Federal Magistrate did not err. 

25. To the extent that the complaint in this ground of appeal (and also perhaps, in the second ground of appeal) is that the Federal Magistrate refused to conduct a merits review of the appellants’ applications, the Federal Magistrate did not have jurisdiction to do so, and did not err in declining to carry out such a review.

26. I also observed that at the hearing before me, the applicant client claimed that she had not been well at the hearing before the Tribunal, and that the Tribunal had ‘talked too much’ for her to fully understand the proceeding.  The appellant provided no evidence that this complaint was made below or how the Tribunal or Federal Magistrate dealt with those complaints.  Accordingly, I reject the contention, in so far as it was made, that the Federal Magistrate erred in relation to these complaints, or that these complaints comprise a basis for impugning, on appeal, the decision of the Federal Magistrate.

27. The appeal is dismissed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:       1 September 2011