SZQMF v Minister for Immigration
[2012] FMCA 114
•24 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQMF & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 114 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – failure to consider integer of claim – unfair outcome – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 424AA, 425, 425A, 426, 426A, 441A, 441C, 441G, 476 Population and Family Planning Regulations (Fujian Province), Art.39 |
| Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 Attorney-General (NSW) v Quin[1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) [2004] FCAFC 263 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 SZMDS v Minister for Immigration and Citizenship [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425 SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543 |
| First Applicant: | SZQMF |
| Second Applicant: | SZQMG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1641 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 17 February 2012 |
| Date of Last Submission: | 17 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| The Applicants: | In Person |
| Appearing for the Respondents: | Ms Stone |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
The application made on 1 August 2011 is dismissed.
The first named applicant pay the first respondent’s costs set in the amount of $ 4,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1641 of 2011
| SZQMF |
First Applicant
SZQMG
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This an application made on 1 August 2011 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 6 July 2011, which affirmed the decision of the Minister’s delegate, made on
4 February 2011, to refuse the applicants the grant of a protection visa.
Background
The applicants are citizens of the People’s Republic of China (“China”). The first named applicant (“the applicant”) arrived in Australia on 16 March 2008 on a student visa (see Court Book – “CB” – CB 2, [7] at CB 106). In August 2010, she gave birth to the second named applicant (“the applicant’s child”).
The applicant applied for a protection visa on 27 September 2010, and listed her child as a member of her family unit (CB 1 to CB 39).
Claims to Protection
The applicant’s claims for protection, as expressed in her application for protection, are:
1)The applicant found God and commenced practicing Christianity in her village, along with her other immediate family members (CB 108).
2)The Church she attended was required to meet in different locations in order to avoid being “blackmailed” by the police or reported on (CB 108)
3)In June 2007 the applicant’s Church was reported to the police by members of the “Three-self Patriotic Church”. As a result her Church was raided and the individuals present, including the applicant, were “arrested for interrogation” (CB 108).
4)While at the police station, the applicant exhibited a “bad attitude”, which the police interpreted as a “refusal of confession”. The applicant was placed in isolation with no food or water and was beaten with “electric sticks” (CB 108).
5)The applicant was “bailed out” from the police station by her family, although she was required to regularly report to the police (CB 109).
6)The applicant, “on the edge of a nervous breakdown”, decided to leave China with her mother. Documents were obtained to allow her and her mother to leave China and arrive in Australia (CB 109).
7)She continued to practice Christianity and, through her Church, met the father of her child, whom she was, and is, in a de facto relationship with. The child’s conception was “out of accident” and is neither recognised nor supported by either her or the father’s family (CB 109).
8)As an unmarried mother, the applicant would face discrimination and penalties from the government if she returned to China. Further, her son would be denied access to “medical welfare and education” and would be discriminated against as a “black child” (CB 109).
9)As a Christian, the applicant fears religious persecution and “humanitarian disaster” (CB 109).
The Delegate
The applicants were invited to attend an interview with the delegate on 25 January 2011 (CB 40 to CB 41). The applicant attended, along with her partner and their child, and was assisted by an interpreter in the Mandarin language ([9] at CB 109).
The delegate found that religion and membership of a particular social group were the essential and significant reasons for the harm feared by the applicant. Further, the harm feared by the applicant was “serious harm” and systematic and discriminatory conduct, as set out in the Act (CB 52).
However, in light of independent country information (CB 5 to CB 10), and the applicant’s evidence, the delegate found that there was “not a real chance of the applicant suffering persecution for a Convention reason in the reasonably foreseeable future.” As the applicant’s fear of harm was not well-founded, the delegate held that Australia did not owe her, or her child, a protection obligation (CB 11).
The Tribunal
The applicant applied to the Tribunal for review of the delegate’s decision on 22 February 2011 (CB 61 to CB 64). The applicants were invited to attend a hearing on 6 May 2011. The applicant attended, along with her partner and their child, and was assisted by an interpreter in the Mandarin language.
On 16 May 2011, the applicant wrote to the Tribunal and responded to the issues it had raised with her at the hearing (CB 88 to CB 90). They included:
1)The purpose of her engaging in Church activities.
2)Her relationship with her immediate family.
3)The reason for the delay in her applying for a protection visa.
4)The various churches she attended and her religious practice.
The applicant also attached documents to the correspondence, including a “Certificate of Church Membership” (CB 91), “Certificate of Believer’s Baptism” (CB 91), a letter from Padstow Chinese Congregational Church (CB 92), two letters in support of her application from fellow Christians at the church (CB 95 to CB 101) and a letter in support from her neighbour (CB 102 to CB 103).
On 27 June 2011 the Tribunal notified the applicants of its decision to refuse the applicant and her child a protection visa. The reasons for the Tribunal affirming the delegate’s decision are set out in its decision record ([96] at CB 125 to [116] at CB 129).
The Tribunal found that the applicant’s evidence regarding her arrest and detention in China, as well as her attendance at the village Church, was “… inconsistent and lacked credibility” ([97] at CB 125). When coupled with the inconsistencies in her evidence before the Tribunal and her written application ([100] at CB 99) and the applicant’s meagre explanation for the delay in lodging an application for a protection visa ([101] at CB 126), the Tribunal concluded that the applicant was not a credible witness. Nor was she involved with any Christian church in China, nor detained or arrested in China by virtue of that, or any other, reason ([102] at CB 126).
The applicant failed to satisfy the Tribunal that she had attended Church in Australia for purposes other than strengthening her visa application ([105] at CB 127). Given its finding regarding her religious practice in China and Australia, the Tribunal did not accept that the applicant had a real chance of being persecuted on the basis of her religion if she were to return to China ([106] at CB 127).
The Tribunal then turned its mind to whether the applicant would face persecution in China as she was unmarried and the child “was born out of wedlock” ([107] at CB 127).
The Tribunal accepted that the applicant was liable to pay a social compensation fee in relation to the birth of her child (Art.39 of the Population and Family Planning Regulations (Fujian Province)). However, enforcement of a law of general application does not ordinarily constitute persecution, as set out in the Act, and as such the applicant’s claims in this regard where not accepted by the Tribunal.
In respect of her child, the Tribunal was satisfied that once the applicant had paid the social compensation fee, the child would be able to access basic services, including “education, health care and other social services associated with household registration”. Further, Chinese law (see Art.25 of the Marriage Law of the People’s Republic of China) prohibits discrimination on the basis of an individual being born to unmarried parents. Although the Tribunal found that it was “plausible” that the applicant and her child may experience some societal discrimination, this was not of such a nature as to amount to persecution ([114] at CB 128 to CB 129).
Consequently, the Tribunal found that the applicant did not have a well-founded fear of harm for the Convention reason of religion or membership of a particular social group. The Tribunal affirmed the decision of the delegate to refuse the applicant and her child protection ([116] at CB 129).
Before the Court
The application before the Court is in the following terms:
“1, I am a Chinese citizen and Christian shouter persecuted by Chinese government. I had been picked up and detained by Chinese police.
2, I have a fear of return because of my previous traumatic experience, and I am afraid of being detained and affect my child if I pursue my religion of family church in China.
3, Tribunal’s decision is unfair and not prudent as it does not make ample consideration of my family situation as a whole, in particular my Australian born child’s interest.
5, Tribunal fails to consider the evidence I have provided in and off hearing in regard to my de factor relationship with my boyfriend and the conflict with out families. I am homeless in China.
6, Tribunal made unreasonable and unfair judgement about my statement of my mother’s arrest although I have explained this in detail in the hearing, especially the reason why I could not remember the specific time for my mother’s arrest and its relevant to my claim. The judgements made in paragraph 99, 100, 10 and 102 were unfair and improper. In fact, I have explained these in detail honestly in the hearing and nothing contradicted against realities.
7, I have strong feeling that Tribunal member has prejudice in my case and made judgement based on her impression, instead of facts and evidences. I am credible witness and innocent in judging of untrusted. I hope my case can be reviewed and finalized by the federal court with justice.”
[Errors in the original].
At the hearing, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. The second named applicant, an infant, was also present. Ms M Stone appeared for the respondent. The applicant had previously been appointed as the litigation guardian for the second named applicant.
Consideration
Complaints
The applicant’s complaints before the Court were that she did not understand the law, wanted the best life for her child and that she was refused a protection visa.
As to the first, she confirmed that she had received advice from a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. Her second complaint is not any assertion of jurisdictional error on the part of the Tribunal. The third, on its own, is simply an expression of grievance at the outcome of the review conducted by the Tribunal. Again, it does not constitute any assertion of legal error on the part of the Tribunal.
Grounds of the Application
None of the “grounds” of the application reveal any legal error on the part of the Tribunal.
Grounds one and two cannot, even in the best light for the applicants, be seen as anything other than a challenge to the facts as found by the Tribunal. The Tribunal’s findings and the conclusion derived from them were all reasonably open to it on what was before it. Further, the Tribunal gave cogent reasons. In the circumstances, the applicants’ challenge does not rise above a request for impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang[1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).
Ground three asserts that the Tribunal’s decision was not “fair” and that the Tribunal did not take into account the interests of the applicant’s child.
The complaint of unfairness directed at the decision cannot succeed in revealing jurisdictional error. As was said in Attorney-General (NSW) vQuin[1990] HCA 21; (1990) 170 CLR 1; (1990) 93 ALR 1 per Brennan J.
The second aspect of the complaint is ambiguous. If what is meant is that the Tribunal failed to accept that the applicant’s child would suffer persecution in China, then this does not rise above a request for impermissible merits review (Wu Shan Liang).
If however what is meant is that the Tribunal failed to consider the child’s claims (as set out in authorities such as NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) [2004] FCAFC 263 (“NABE No.2”)) then this also, in the circumstances, fails to disclose legal error. The Tribunal did consider the child’s circumstances, in particular the claim that he was born out of wedlock and his registration, or “hokou”, in China ([107] – [108] of CB 127). Further, the impact on the child of any disapproval by family members, household registration and discrimination generally, was specifically considered ([111] - [114] of CB 128).
I note that the application does not contain a “ground four”.
In ground five the applicant complains that the Tribunal failed to consider that she and her boyfriend were in conflict with their families. Presumably, this is a complaint that the Tribunal failed to deal with an aspect of her claims.
As referred to above, a failure to deal with a claim or an aspect of a claim could lead to jurisdictional error. However, the Tribunal’s obligation is to deal with claims expressly made or clearly arising from the circumstances presented. (NABE No2, WAEEv Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630, Htunv Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244.)
In the current case, the applicant’s claim concerning her parents was, at its highest, that her parents did not support her decision to remain in Australia and did not “recognise” her relationship with her “de facto boyfriend”.
The Tribunal dealt with this matter. It found that the applicant was not a credible witness in this regard and rejected the applicant’s claim. The use of the word “evidence” in her ground before the Court (“Tribunal fails to consider the evidence”) in the circumstances reveals that the applicants’ real complaint is that the Tribunal did not believe her evidence. The short answer to the applicant is that the Tribunal is not obliged to uncritically accept what she said (Randhawa v Minister for Immigration and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 and Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22; (1997) 191 CLR 559). The Tribunal’s finding was reasonably open to it in the circumstances.
To the extent that this ground seeks to complain on behalf of her “de facto boyfriend”, he was not an applicant before the Tribunal and therefore there was no claim before the Tribunal. Further, there was no claim before the Tribunal that she or her child feared persecutory harm from his parents.
Ground six asserts that the Tribunal’s rejection of the applicant’s factual claims concerning her mother’s arrest and detention in China was unreasonable (see with reference to [99] – [102] of the decision record at CB 126).
Any plain reading of the Tribunal’s record reveals that the applicant’s complaint is, yet again, a challenge to the Tribunal’s findings of fact. Such findings, including findings on credibility, were within the Tribunal’s proper exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1). Nor can the Tribunal’s decision be said to be unreasonable in this regard (see SZMDS v Minister for Immigration and Citizenship [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (“SZMDS”) per Crennan and Bell JJ (at [130])).
Ground seven asserts that the applicant had a “strong feeling” that the Tribunal member was prejudiced against her. To the extent that this statement may seek to invoke some assertion of bias on the part of the Tribunal then it is not clearly made. Nor is there any evidence proffered, or otherwise available in the material presented before the Court, to say that this assertion can be distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69] and Kirby J at [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 per Tamberlin, Mansfield and Jacobson JJ at [43], VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).
The applicant’s grounds do no disclose jurisdictional error on the part of the Tribunal. Nor is any such error apparent on the material before the Court.
The applicant was given the opportunity to make her claims. She and her child were invited to a hearing before the Tribunal pursuant to s.425. The invitation complied with all of the statutory and regulatory requirements (ss. 425, 425A, 426, the reference to s.426A, ss.441G, 441A(5), 441C(5) and reg.4.35D(a) of the Migration Regulations 1994 (Cth) (“the Regulations”)).
The applicant has put no evidence before the Court to challenge the Tribunal’s account of what occurred at the hearing ([21] at CB 111 to [70] at CB 117). The issues that disposed of the review were the Tribunal’s rejection of the applicant’s claims to fear persecutory harm because of past events in China, her claimed religious conduct and family planning laws in China.
That the applicant’s credibility was at issue in relation to the first two was squarely put to her at the hearing ([53] at CB 115): “The Tribunal advised the applicant that her credibility was an issue. The applicant stated that she knew her credibility was low”. The question of the impact of the family planning policy in China was also plainly discussed ([59] – [60] at CB 116). No error as explained in SZBELv Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152; (2006) 231 ALR 592 can be made out in this regard.
The Minister submits that, to the extent that the Tribunal purported to fulfil by the use of s.424AA (the facilitative mechanism) any obligation arising from s.424A(1), then the dates relating to the delay in applying for protection were not “information” for the purposes of that section as they did not amount to “a rejection of the applicant’s refugee claims” (SZBYR v Minister for Immigration and Citizenship[2007] HCA 26; (2007) 235 ALR 609).
The Minister’ submissions, with which I agree, is that in these circumstances the Tribunal’s use of those dates, in finding that the delay in the applicant making a protection application was inconsistent with the claim to fear persecutory harm, was part of the Tribunal’s reasoning process and therefore s.424A(1) was not enlivened (SZGIY v Minister for Immigration and Citizenship [2007] FCA 1543 (“SZGIY”)).
In any event, the relevant dates were all available in the delegate’s decision record which the applicant gave to the Tribunal for the purpose of the review (see CB 61 to CB 70) and therefore, even if they did constitute “information” as that term is properly understood for the purposes of s.424A(1), they fall within the exception to that obligation set out in s.424A(3)(b).
In these circumstances, the Tribunal was not obliged to put the dates to the applicant pursuant to s.424A(1), using the mechanism in s.424AA and engaging s.424A(2A). However, there is no error in it having done so (SZGIY).
Conclusion
For the applicants to succeed the Court would need to discern some jurisdictional error in the Tribunal’s decision. No such error is revealed. The application should be dismissed. I will make an order accordingly.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 23 February 2012
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