SZQIU v Minister for Immigration
[2011] FMCA 1009
•29 November 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQIU & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 1009 |
| MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1 |
| First Applicant: | SZQIU |
| Second Applicant: | SZQIV |
| First Respondent: | MINISTER FOR IMMIGRATION AND CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1237 of 2011 |
| Judgment of: | Barnes FM |
| Hearing date: | 29 November 2011 |
| Delivered at: | Sydney |
| Delivered on: | 29 November 2011 |
REPRESENTATION
| Applicants: | In person |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application is dismissed.
The applicants pay the costs of the first respondent fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1237 of 2011
| SZQIU |
First Applicant
| SZQIV |
Second Applicant
And
| MINISTER FOR IMMIGRATION AND CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal dated 18 May 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants’ protection visas. The applicants, who are citizens of China, arrived in Australia in December 2007 and February 2008 respectively. For convenience future references are to the first applicant who made claims in connection with her protection visa application to fear persecution were she to return to China.
The applicant’s claims related to the dismantling of her parents’ piggery in China without, what she regarded as, fair compensation and the consequences thereof; that she and the second applicant had formed a relationship; and she had given birth to a child out of wedlock.
First, the applicant claimed that in January 2010 her parents were ordered by the authorities to dismantle their piggery to make way for an industrial development. They were offered what they considered was inadequate compensation, and villagers – including the applicant’s father – protested. She claimed that as a result in February 2010 her father was arrested, detained for 15 days and mistreated. She claimed that when her substantive visa expired in March 2010 her parents advised her not to return home as they were worried she would become involved in their troubles.
In its findings and reasons the Tribunal found that during the hearing the applicant’s evidence about this claim was unreliable, that “[h]er account of past events was vague and lacking in detail” and that “[s]he was unable to give a cogent account of her claims”. It was of the view that “[a]t times her evidence appeared to be adjusting to questioning by the Tribunal”. For reasons which it gave the Tribunal found that the applicant was not a credible witness.
Despite this finding, the Tribunal accepted on the basis of independent country information that the applicant’s father may have been arrested and detained as claimed and that he may not have received a fair price for selling his pigs when the piggery closed. However it found that “at no time did the applicant claim that she or any other family member, other than her father suffered serious harm at the hands of [the] authorities” and that the vague claim she made about harm occasioned to her brother was given in response to Tribunal questioning and was, in any event, not at the hands of the authorities.
Insofar as she claimed that the chief of the village had not allowed her brother to graduate, the Tribunal took into account evidence that the applicant’s parents continued to live in the same village as neighbours of the town chief and found there was no evidence of harm suffered by the applicant or by other family members at the hands of the authorities. The Tribunal also stated that there was no evidence that such actions as may have been taken against her father over his complaints about inadequate compensation were for a Convention-based reason.
Hence it found that such actions in relation to the applicant’s father could not be said to lead to a conclusion that the applicant would suffer serious harm for a Convention reason should she return to China.
The Tribunal also addressed the applicant’s claim that she feared returning to the People’s Republic of China because she might be threatened by the town chief in circumstances where he had previously proposed to her parents that she marry his son. The Tribunal accepted that the “village chief may have made such proposals” and also that the “applicant’s mother had received an “anonymous phone call” whilst the applicant’s father was detained” in which “the caller suggested that he could secure the father’s release from detention if the applicant agreed to marry the town chief’s son”. The applicant claimed that the son of the village chief was a bully and her father was worried that if she returned they would bully her and her son. The Tribunal accepted the “unwanted proposal…causes the applicant some distress” and that “the village chief’s son may be a bully”, but found that there was no evidence that either of these people had “inflicted serious harm upon the applicant in the past”. It had regard to the applicant’s stated “intention to marry her son’s father”, the birth of her son and the nature of her relationship with her partner. It found that “any further pressure from the village chief…to marry his son [would] in these circumstances be diluted”.
In any event, the Tribunal found that there was no evidence of a Convention-based reason for the harm the applicant claimed to fear at the hands of the village chief and his son. It found no evidence that the applicant would face a real chance of suffering serious harm at the hands of either the village chief or his son for a Convention-based reason should she return to China now or in the reasonably foreseeable future.
The Tribunal then considered the applicant’s claims arising out of the fact that she had become an unwed mother. It accepted she met her partner – the second applicant and the father of her child – in Australia and formed a relationship with him and that she had given birth to a child. She claimed to fear not only a “social stigma of being an unwed mother” but that her child would not be issued with a legal identity card by the Chinese government. The Tribunal had regard to independent country information about the situation in China and in the province from which the applicant came, including family planning regulations and the general need for registration to access state schools in Fujian Province which could be overcome by a payment of a fee effectively allowing for legal identity. It also had regard to evidence about the availability in Fujian of private schools and clinics which would enrol or treat unregistered children while charging fees that were not excessive by Chinese standards, and the fact that registration, while preferable when seeking work, was not essential in Fujian.
The Tribunal accepted that the applicant was not yet married and may be required to pay a fee to register her child, but found that the fee applied to all children born outside policy guidelines and that rather than the family planning laws being laws to punish the applicant as she claimed, they were “appropriate laws designed to achieve a legitimate national objective in the context of China’s need to control its overall population growth”.
The Tribunal considered the applicant’s claim that as an unmarried mother or woman who had had a child out of wedlock she would be persecuted, but found that, having regard to the principles considered by the High Court in Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225; [1997] HCA 4, she was not a member of a particular social group such as unmarried mothers or women who had had a child out of wedlock on the facts before the Tribunal having regard to the fact that the characteristic or attribute common to all members of the posited particular social group was no more than a shared fear of persecution.
The Tribunal also found that there was “no evidence before it to indicate, that should a fee be required, that the applicants would be required to pay more than the standard social compensation fee set down in law”. It found that they “would be subject to the same requirements” as any other person in breach of the regulations. It also found that the applicant’s claim that her son would not be entitled to an education in China was inconsistent with independent country information to which it referred.
The Tribunal concluded, based on country information and the Chinese legislation, that the applicant’s son born out of wedlock was “unlikely to suffer ill treatment or social ostracism as a direct consequence of his status, nor will he be deprived of an education”.
The Tribunal considered, but did not accept, the applicant’s claims that she and her partner would not be able to afford to pay the fee or bring up their child. It set out in detail the evidence that the applicant and her partner had given in this respect, finding their evidence about their ability to pay any fee to be vague. Insofar as the second applicant had given evidence that it would only be if he and the applicant could not get recognition of their relationship from their family that their son would become “black”, the Tribunal found that there was no reliable evidence to indicate that either family would not recognise the relationship of the applicants.
Having regard to the vagueness and embellishments in the second applicant’s evidence the Tribunal found he was not a reliable witness. It did not accept his evidence and explanations in relation to his financial future in China. In particular, it found his evidence that his family would not support him to be “vague and unreliable”. In any event it took into account independent country information which indicates that “couples unable to pay the compensation fee immediately are allowed to pay by instalments”.
The Tribunal discussed the applicant’s evidence about her family’s financial situation and on the evidence before it was unable to be satisfied that her parents were “reduced to such an extent that they would not assist [her] should she return to [China] now or in the reasonably foreseeable future”. The Tribunal found “nothing to suggest that the law would be applied to the applicant in a discriminatory fashion” and having regard to all the circumstances of both applicants found that payment of any fee, if required, did not amount to persecution.
The Tribunal also had regard to the applicant’s delay from March to October 2010 in applying for a protection visa after her substantive visa ceased. It considered, but did not accept the applicant’s explanations for this delay and found that at the time of her arrival and stay in Australia “the applicant did not have a strong fear for her personal safety or future well-being in [China]”. The Tribunal found that there was no real chance if the applicants were to return to China now or in the reasonably foreseeable future they would suffer serious harm constituting persecution for any Convention-related reason. Hence neither could meet the criteria for membership of a family unit of such a person. The Tribunal affirmed the delegate’s decision.
The applicants sought review by application filed on 15 June 2011. There are three generally expressed grounds in the application. The applicant did not file written submissions but was given the opportunity to make oral submissions. The first ground is that the Tribunal considered the applicant’s case “unfairly” and “doubted [her] claim without substantive evidence”.
To the extent that this is an allegation that the Tribunal did not afford the applicants procedural fairness, such a claim is not made out on the material before the court. The applicants do not raise, and nor is there anything in the material to suggest, any contention that the Tribunal failed to comply with its obligations in Division 4 of Part 7 of the Migration Act 1958 (Cth). The applicants attended a Tribunal hearing at the Tribunal invitation. It is apparent from the Tribunal’s account of that hearing – the only evidence before the court of what occurred – that it raised with the applicants matters of concern and gave them an opportunity to comment. There is nothing in the material before the court to suggest any failure to raise dispositive issues under s.425 of the Act. Nor is there any contention of any failure to comply with any other obligation under Division 4 of Part 7.
In oral submissions the applicant raised a concern about the Tribunal’s knowledge of the situation in China, in particular the part of China from which she came. She suggested that the Tribunal did not understand Chinese policy, particularly in that part of the world. Insofar as this may be taken to raise a claim that the Tribunal failed to put to the applicant independent country information on which it relied, such information is outside the obligation in s.424A(1) of the Act. In any event on the Tribunal’s account of the hearing it gave both applicants the opportunity to comment on independent country information about the situation and the law in Fujian Province.
Beyond this, the selection and weight to be given to items of independent country information is a matter for the Tribunal. There is no suggestion that the Tribunal failed to have regard to the most current country information or that it failed to give genuine, proper and realistic consideration to the applicants’ claims.
The applicant also submitted today that the decision was not fair because the Tribunal only took into account the law, but failed to take into account humanitarian considerations. The Tribunal is, however, obliged to take into account and apply the applicable law, in particular the definition of refugee in the Refugees Convention as modified by the Refugees Protocol and having regard to the provisions of the Migration Act. It is not open to the Tribunal to grant a visa or make a decision based on humanitarian considerations insofar as that appeared to be contended by the applicant. If this was intended to be a contention that the Tribunal failed to consider some aspect of the applicant’s claims, it is not made out on the material before the court.
Ground one also suggests that the Tribunal erred in doubting the applicant’s claims without substantive evidence. As stated in Abebe v The Commonwealth of Australia (1999) 197 CLR 510; [1999] HCA 14 proceedings before the Tribunal are not adversarial, but are inquisitorial. It is for the applicant to advance evidence or arguments that she wishes to advance in support of her claims that she has a well-founded fear of persecution for a Convention reason and for the Tribunal to then decide if such claim is made out.
The Tribunal has no general obligation to make inquiries or to obtain evidence to rebut an applicant’s case, as appears to be suggested. More generally, credibility findings are for the Tribunal par excellence (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405; [2000] HCA 1). I note that notwithstanding its credibility concerns the Tribunal did in fact accept some aspects of the applicant’s claims about past events. Its findings in relation to both applicant’s credibility and other matters were open to it for the reasons which it gave on the material before it. Ground one and the suggested extensions of that in oral submissions are not made out.
Ground two is that the Tribunal always asked something which did not relate to the applicant’s claim, such as her son’s registered permanent residence. I have considered such a claim on the basis that it may be intended to suggest that the Tribunal had regard to an irrelevant consideration. However there is no reference in the Tribunal’s reasons to any questioning of the applicants about the registered permanent residence of their son or otherwise evidence to support any contention that the Tribunal had regard to an irrelevant consideration.
The Tribunal considered the various bases on which the applicant claimed to fear persecution, including relevantly her claim that because her son was born out of wedlock he would not be issued a legal identity by the government and she would be required to pay a social compensation fee to obtain household registration. Ground two is not made out.
The third ground is that:
RRT did not consider my situation, I will be dangerous (sic) if I go back rather than my financil (sic) or son’s problem.
As set out above, in addition to the applicant’s claims based on being an unwed mother, the Tribunal considered the claims that she made based on the events that she said had happened to her family and her father in China and also her claimed fear of the village chief and his son.
It has not been established that the Tribunal failed to have regard to a relevant consideration in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24; [1986] HCA 40. Insofar as the applicant seeks merits review, merits review is not available in this court. Ground three is not made out.
The applicant also raised some concern about the conduct of her migration agent following on from the fact that the solicitor for the respondent had addressed a concern raised by the court because the copy of the Tribunal decision attached to the affidavit of the applicant filed on 15 June 2011 appeared to be photocopied on documents relating to other applicants to the Tribunal. The first respondent’s solicitors have raised this issue with their client.
Beyond this, the applicant claimed that she had paid her migration agent in relation to the proceedings before the Tribunal and also the court. She claimed that the migration agent had not done anything for her and that she had to do everything. The allegations that the applicant makes about her migration agent are not such as to establish or suggest any fraud on the Tribunal in the sense considered by the High Court in SZFDE and Others v Minister for Immigration and Citizenship and Another (2007) 232 CLR 189; [2007] HCA 35. No more specific concerns were raised by the applicant about the conduct of the migration agent. Mere negligence or inadvertence is not sufficient to give rise to fraud by a migration agent on the Tribunal. I also note that the applicants had the opportunity to participate in a Tribunal hearing. The concerns that the applicant raises about her migration agent do not establish jurisdictional error on the part of the Tribunal. As no jurisdictional error has been established the application must be dismissed.
RECORDED : NOT TRANSCRIBED
The applicants have been unsuccessful and the Minister seeks that they pay the Minister’s legal costs of these proceedings. The applicant expressed concern about her ability to pay such costs as she claims she does not have enough money to raise her child. However it is well-established that an applicant’s lack of funds is not a reason for departing from the general principle that an unsuccessful applicant should meet the costs of the first respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such funds.
An appropriate amount of costs in this matter, having regard to the nature of this and other similar matters, the fact that the grounds relied on are general and were to a large extent unparticularised, the lack of legal representation on behalf of the applicant, the fact that written submissions were not filed by the applicant and that the matter did not raise any legal issues of particular complexity, is the sum of $4,000.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Barnes FM.
Date: 15 December 2011
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