SZQFG v Minister for Immigration

[2011] FMCA 765

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQFG & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 765

MIGRATION – RRT decision – Chinese applicant claiming fear as Christian and under family planning policies – religious claims disbelieved by Tribunal – finding of ability to avoid discrimination against unregistered children – whether separate refugee claim made by infant secondary visa applicant – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(b), 91R(3)

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 341
SZGME v Minister for Immigration & Citizenship (2008) 168 FCR 487, [2008] FCAFC 91
SZLGF v Minister for Immigration & Citizenship [2008] FCA 1369
V120/00A v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 576

First Applicant: SZQFG

Second Applicant: SZQFH

Third Applicant: SZQFI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 894 of 2011

Judgment of: Smith FM

Hearing date: 29 September 2011

Delivered at: Sydney

Delivered on: 12 October 2011

REPRESENTATION

Counsel for the Applicants: First Applicant in person by telephone

Counsel for the First Respondent: Mr J Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed. 

2. The first and second applicants must pay the first respondent’s costs in the amount of $6,240. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 894 of 2011

SZQFG

First Applicant

SZQFH

Second Applicant

SZQFI

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are a mother, her ‘boyfriend’ or de‑facto partner, and their infant son. Another child was born during the pendency of the proceeding. They seek judicial review of a decision of the Tribunal dated 12 April 2011, which affirmed a decision of a delegate on 25 November 2010 refusing to grant them protection visas. Only the mother submitted a form ‘C’ claiming to be a refugee, and a form ‘D’ was submitted on behalf of the mother’s partner and child indicating that they did not ‘have their own claims to be a refugee’. They therefore sought eligibility as secondary applicants under s.36(2)(b) of the Migration Act 1958 (Cth). As did the Tribunal, I shall refer to the mother as ‘the applicant’.

2. The applicant and her partner claimed to have met on a flight from China, when they travelled to Australia in June 2007 under student visas.  Both of them abandoned their studies before their visas expired, respectively, in December 2009 and March 2010.  Their son was born in August 2010.  Their visa applications were lodged on 30 August 2010. 

3. In a statement attached to her application, the applicant claimed that, although her parents were Buddhists, she “used to go to the Three‑self Patriotic Church of Christianity and family church at the same time”.However, she ‘left’ the official church, and was ‘reported’ to the government.  Members of her ‘family church’ were investigated and fined, and she was interrogated and released.  After she came to Australia, she “received baptism and became a Christian”.  During a visit to China in January 2008, she again engaged in underground church activities and was “picked up by police and detained for two days, during the period I was investigated and ill‑treated”.  She said: “the local police suspected me to undertake missionary through associating with overseas evil force.  I was cautioned not to leave the country”.  However, she returned to Australia, and “keep spreading gospels to them”.  She was told that members of her former family church were arrested after her departure, and that police were searching for her.  

4. At the end of her statement, the applicant also referred to a concern about the position of her son and herself under China’s family planning policies:  

   I am afraid of going back to China because my involvement in the underground church has made me terrified and anxious.  My family has paid a lot of dues for me already, and the least thing I am willing to do is to put more weight on their burden.  In addition, I have concern that our child will be discriminated in the society.  Since he cannot register for residency, he will not be eligible receiving educational and medical welfares.  It is said in my hometown that the local government is still in force controlling birth, and the methods used were considered inhumane.  It is almost common that people being arrested and put into jail or fined for pregnant with an additional child.  Women are forced to do sterilising operations, and permanent diseases are left.  Furthermore, the local folkways and social standards will cast bias on us as well, forcing us out of a normal life. 

5. The applicant was later interviewed by the delegate, and she also attended a hearing of the Tribunal held on 7 March 2011.  She tendered a document issued in Chinese and English by the Bread of Life Christian Church in Sydney, certifying that she was baptised on 4 April 2010.  After the hearing, she also tendered to the Tribunal letters of support from two friends. 

6. At the interview and hearing, the applicant was questioned about her claimed church activities in China, and her knowledge and commitment to Christianity as a member of an underground church.  The gist of relevant country information was also put to her.  Evidence was also taken from the applicant’s partner. 

7. In her decision, the delegate referred to the applicant’s evidence as vague and contradictory, and doubted the veracity of her claims to fear religious persecution. She did not accept that the applicant had been arrested and detained in 2008, and concluded that she was not of interest to the Chinese authorities. She disregarded the applicant’s Australian religious activities under s.91R(3), but also noted country information suggesting “a high degree of religious tolerance in Fujian”. 

8. The delegate considered information concerning family planning regulation in Fujian, and concluded that neither the applicant nor her son would suffer persecution amounting to serious harm by reason of the applicant being an unmarried mother.  She noted that a social compensation fee would need to be paid before the son could be registered, but concluded that the applicant’s partner would be able to pay this.  She thought that, even if the applicant chose not to register her son, he would have access to education and medical treatment, and was unlikely to suffer “ill treatment or social ostracism as a direct consequence of their status”.  She found “that the applicant’s son will not suffer persecution amounting to serious harm if his mother chooses not to register him”. 

9. The Tribunal’s findings and reasons largely followed the same reasoning.  The Tribunal said that it had found the applicant’s evidence not to be reliable, and described her account of past events as “vague and lacking in detail”.  The Tribunal found the applicant “to be a well‑educated person who at times gave evidence which appeared to be rehearsed.  She also demonstrated an ability to adjust her responses to Tribunal questioning for her own purposes”. 

10. The Tribunal found that “the applicant is not a Christian”, and gave detailed reasons for this finding.  It did not accept that she “ever attended a local or family underground Christian church in the PRC as claimed”.  It accepted that she had attended a Church in Sydney, but found that this was for the sole purpose of strengthening her refugee application.  It found her account of events on her trip to China in 2008 to be “implausible and more likely fabricated”.  It referred to the post‑hearing statements of the applicant and her friends, but was not persuaded by them. 

11. In relation to the applicant’s concerns relating to family planning, the Tribunal referred to the applicant’s “fear that her child will be discriminated against as he cannot be registered for residency”.  However, it found that registration could be effected by the payment of a fee, and that the applicant’s expected second child could also be registered. 

12. It noted that the applicant “fears she and her partner will not be able to afford to bring up their children”.  However, it noted the evidence of the applicant’s partner, and concluded that he “could continue to work and support the applicant and pay any social compensation fee required under the family planning policies”.  It also thought that her parents would provide support.  It said:  

    167.The Tribunal does not accept on the evidence before it that either the applicant or the second named applicant will be singled out or treated differently, for reasons of his or her membership of any ‘particular social group’ in China, from anyone else who might not have complied with the family planning policy or laws.  The Tribunal finds nothing to suggest that the law is applied to the applicant in a discriminatory fashion.  The Tribunal finds that payment of the fee does not amount to persecution. 

13. The Tribunal expressed sympathy for the personal predicament of the applicant and her partner, and their desire to remain together in Australia so as to avoid disapproval by their families of their relationship and their having babies at a young age.  In effect, it saw these concerns to be their true motives for their wishing to stay.  It said:  

    130.…  The Tribunal accepts that the predicament or dilemma the applicant finds herself in causes her grave concern.  The Tribunal has formed the view that it is for these reasons the applicant wishes to remain in Australia.  

14. The Tribunal formulated its ultimate conclusions: 

    173.Having considered the applicant’s claims both singularly and cumulatively the Tribunal finds the applicant does not have a well‑founded fear of being persecuted for a Convention reason if she returns to the PRC now or in the reasonably foreseeable future. 

    CONCLUSIONS 

    174.The Tribunal is not satisfied that any of the applicants is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

15. The applicants now ask the Court to set aside the Tribunal’s decision and to remit the matter for reconsideration.  I have power to make these orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether they qualify for protection visas, or should be permitted to stay in Australia. 

16. The applicants attended the first court date held on 31 May 2011, when I gave directions allowing them to take advice, file additional documents, and attend a hearing on 29 September 2011.  They received free legal advice, but did not file an amended application nor written submissions. 

17. There was no appearance by them or on their behalf at the appointed time on the hearing date.  When contacted by telephone with the assistance of an interpreter, the applicant mother told the Minister’s solicitor that she had forgotten the morning hearing.  She also said that she could not arrange care for her two infant children so as to attend in the afternoon, and accepted an offer to make her submissions to me by telephone with the aid of the interpreter.  She then did so, showing an understanding of the Tribunal’s reasons, and seeking to persuade me to accept the points which were in her original application.  I am satisfied that this exceptional hearing procedure was appropriate and sufficient in the circumstances. 

18. The applicants’ grounds for review are found in an attachment to their application: 

    Orders sought by the applicant 

    1,I disagree with Immigration and RRT’s decision.  They did not consider that I will be in danger if I return. 

    2,RRT did not consider that I will be persecuted and in big trouble if I return home. 

    3,RRT member questioned me at hearing made me feel very up sad.  They never trusted me and I do not think they had the right attitude to my application.  RRT should grant my application. 

    The Grounds of the Application are: 

    1,I am a Chinese citizen and Christian who has been persecuted by Chinese government.  I had been picked up and detained by the corrupted government and police. 

    2,I can not go back to China since I am very scared to be persecuted and affect my family in particular my child. 

    3,The Chinese government still looks for me due to my involvement of missionary from abroad.  Both of our families (my boyfriend and I) denied our marriage and we couldn’t be supported by families and government due to our breach of family planning, in addition, I have been pregnant again and my due day is 13/07/2011. 

    4,Tribunal didn’t pay enough attention to the affection on my innocent child if I am forced to return. 

    5,Tribunal didn’t pay enough attention to the facts I have explained as well as the evidences and witnesses provided after the hearing in regards to my relationship with my boyfriend and conflict with our families. 

    6,Tribunal judged by personal assumption in my case, whilst ignoring an investigation in particular the facts do exist in our cultural background. 

    7,I have strong feeling that Tribunal member showed her bias attitude in my case as she stated I have rehearsed while I answered her questions, and this is absolutely not the fact and I feel strong angry about such judgment which is unfair and unprofessional. 

19. I am unable to find in these contentions, considered in the light of the evidence before me and the applicant’s oral submissions, any arguable ground of jurisdictional error.  I consider that essentially, the applicant is only able to demonstrate strong disagreement with the findings of the Tribunal and the merits of its assessment of her refugee claims. 

20. I consider that undoubtedly the Tribunal did consider and give careful thought to all the applicant’s claims and evidence.  Its conclusions were open to it as a matter of law.  I can find no support in the evidence for the applicant’s suggestions of bias or (in her oral submissions) prejudice against Chinese refugee claimants.  The evidence suggests to me that the Tribunal endeavoured to keep an open mind when taking the applicant’s evidence.  At least, in the absence of a transcript I am not persuaded otherwise. 

21. In my opinion, the identification in the Tribunal’s statement of reasons of adverse points which explain its conclusion, shows no more than it performing its statutory duties to decide the matter and to give reasons for the adverse decision. 

22. The only point of law which I could identify in the applicant’s grounds, might arise from the contention that “Tribunal didn’t pay enough attention to the affection on my innocent child if I am forced to return”.  In particular, I raised with counsel for the Minister whether the Tribunal was bound to, and failed, to address whether the applicant’s son himself satisfied the definition of ‘refugee’ under the Convention by reason of a fear on the part of his guardians of discriminatory treatment as a member of a particular social group of ‘black children’ (cf. Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293).

23. There are statements in the reasons of the delegate and the Tribunal suggesting that they might have perceived a duty to address a separate refugee claim by the son, encompassed or raised by the mother’s expressed concerns about discrimination against her son. 

24. Whether or not this was so, I accept the submission of the Minister’s counsel that the Tribunal’s reasons contain findings which, in fact, address and reject such a claim.  In particular, the Tribunal found that discrimination would be avoided by payment of a special registration fee, and that the family could afford to pay this.  In the context, I think that the Tribunal’s finding that the child’s father “could … pay any social compensation fee required”, implies a finding of ‘could and would’, and provided a legally sufficient answer to any separate refugee claim of the child raised by the statements of the mother. 

25. It is therefore immaterial whether in law the Tribunal was bound to treat the visa application of the child as encompassing a separate application to qualify for a protection visa under s.36(2)(a) of the Migration Act as a primary applicant, notwithstanding that this was not shown in the documents lodged and was disclaimed in the Part D lodged in his name. However, I note that the balance of authorities binding on me, suggests that the Tribunal was not bound, and did not have jurisdiction, to treat the child as having sought a protection visa “in his own right” (see Kenny J in V120/00A v Minister for Immigration & Multicultural Affairs (2002) 116 FCR 576 at [59], followed by Gyles J in NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 341 at [14] and by Graham J in SZLGF v Minister for Immigration & Citizenship [2008] FCA 1369 at [21], distinguishing SZGME v Minister for Immigration (2008) 168 FCR 487 at [73], [85], [93], [95], and [185]).

26. Taking into account all that was said to me by the mother at the hearing, I am not satisfied that she has established any jurisdictional error affecting this Tribunal decision. 

27. I must therefore dismiss the application with costs. 

I certify that the preceding twenty‑seven (27) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  12 October 2011