SZQMK v Minister for Immigration - [2011] FMCA 835

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQMK & ORS v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 835

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China – relevant claims made by the first applicant who was not believed – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424AA

First Applicant:

SZQMK

Second Applicant:

SZQML

Third Applicant:

SZQMM

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1650 of 2011

Judgment of:

Driver FM

Hearing date:

31 October 2011

Delivered at:

Sydney

Delivered on:

31 October 2011

REPRESENTATION

The First and Third Applicants appeared in person

Solicitors for the Respondents:

Mr R Graham
Clayton Utz

INTERLOCUTORY ORDERS

For the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth), the first applicant is appointed as litigation guardian of the third applicant, and the first applicant is relieved of the obligation of filing an affidavit of consent or of notifying the respondents of her appointment.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,123 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1650 of 2011

SZQMK

First Applicant

SZQML

Second Applicant

SZQMM

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application seeking review of a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 12 July 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants. The first applicant, who is the applicant mother, made the relevant claims for protection, and the second and third applicants, who are her partner and child, claimed as members of her family unit. I appointed the first applicant the litigation guardian of the third applicant.
The applicants are from China. The first applicant arrived in Australia on 4 April 2008. The second applicant arrived on 23 August 2007. The third applicant, who is the child of the first and second applicants, was born in Australia on 26 September 2010. They all applied for the Minister’s Department for protection visas on 19 January 2011. The Minister’s delegate rejected that application on 18 March 2011 and notified the applicants of the decision. The delegate found that the applicants are not persons to whom Australia has protection obligations under the Refugees Convention.
The applicants applied to the Tribunal for review of that decision on

4 April 2011. The applicants were invited to attend a hearing before the Tribunal on 30 June 2011. The applicants attended and the first and second applicants gave evidence. The first applicant described to the Tribunal her asserted Christian faith and the harm she feared in China. The Tribunal questioned the first applicant about her faith, her past experiences in China and her departure from China. The Tribunal also asked the first applicant about studies that she had undertaken in Australia.
The Tribunal also asked the first applicant about her church attendance in Australia. The Tribunal purported to go through a process of disclosure of adverse information pursuant to s.424AA of the Migration Act 1958 (Cth) (“the Migration Act”). The Tribunal asked the first applicant about her child and her relations with her family in China. The Tribunal also asked the first applicant about her fears concerning herself and her child and provided information on the application of family planning laws in Fujian Province, where the first applicant and her family come from. Finally, the Tribunal asked the first and second applicants if there was anything else they wished to put in support of their application, and they responded that there was nothing else.
The Tribunal in its decision referred to country information about China’s family planning regulations. The Tribunal also referred to country information concerning the circumstances of Christians in Fujian Province. The Tribunal accepted that the applicants are citizens of China and accepted the basic information put forward concerning their family relationship. The Tribunal noted that the first applicant fears harm amounting to persecution in China for reasons of her alleged Christian beliefs and membership of an unregistered family or house church. The first applicant claims that in February 2007, she was detained and mistreated because of her religious practice. She claims that she was released as a result of bribery and was monitored by the police and forced to flee to Australia in April 2008. She claims similar harm should she return to China.
The first applicant also claims to fear persecution from the Chinese government and the community because of having a family with a black child, as she and the second applicant, her partner, are not married. As a single mother, the first applicant fears persecution as a member of a particular social group of unmarried mothers, or women who have children out of wedlock. She claims that she and her partner would be unable to pay a social compensation fee for household registration of the child, and so the child would remain without legal status in China. The first applicant further claims that her partner’s family are male dominated or orientated, and would not accept her or her baby daughter, and that they would have nowhere to live.
The Tribunal acknowledged that the first applicant’s immigration history indicates that she was only 17 when she first arrived in Australia, and at the time of the Tribunal decision was aged 20. The Tribunal noted that the first applicant was respectful of the Tribunal. The Tribunal also noted that at times at the Tribunal hearing, the first applicant was emotional, although she understood the proceedings and acknowledged she had no difficulties with the interpreter provided. The Tribunal records in its decision that it offered to give the first applicant a break in the proceedings and to adjourn if she felt unable to continue. The first applicant expressly said that she wished to continue with the hearing. Despite emotional distress, she said she understood the interpreter and the Tribunal.
The Tribunal found that, allowing for a reasonable margin of appreciation to flaws in her testimony due to emotional distress or other factors, the first applicant was not at all times a credible witness. The Tribunal found that the first applicant’s evidence was not reliable and was it was not at all times truthful. The Tribunal found that the first applicant’s knowledge of her claimed religion was extremely poor. The Tribunal found that it was not satisfied that the first applicant had provided a credible account of her involvement with, and interest in, Christianity and the underground church in China.
The Tribunal found that the first applicant is not a Christian as claimed, and has not been a practicing Christian in China. The Tribunal also was not satisfied that the second applicant had provided a credible account of his Christianity. Pursuant to s.91R(3) of the Migration Act, the Tribunal found that the first applicant’s very limited knowledge of Christianity had been learned in Australia for the sole purpose of strengthening her claims to be a refugee. The Tribunal disregarded the first applicant’s evidence of her baptism and attendance at church in Australia.
In the light of the rejection of the first applicant’s claims concerning her religion, the Tribunal also rejected the first applicant’s claims of her arrest and detention in China. The Tribunal also considered the first applicant’s particular social group claim. The Tribunal found that the applicants would not be without familial support in China. The Tribunal found that the first and second applicants embellished and exaggerated the problems that they feared in China. The Tribunal did not accept that the applicants would suffer economic hardship or have no capacity to subsist within the meaning of s.91R(2)(d) of the Migration Act.
In relation to a fear of harm through the application of the Chinese One Child Policy, the Tribunal found that this was a law of general application. The Tribunal found that the first applicant was not a member of a particular social group on the facts submitted in the application. The Tribunal did not accept that the first applicant would be singled out or treated differently for reasons of her asserted membership of any particular social group in China from anyone else who might not have complied with Chinese family planning policy or laws. In making its decision, the Tribunal also had regard to the delay by the applicants in seeking protection in Australia.
These proceedings began with a show cause application filed on

2 August 2011. There is an attachment to that application setting out what purport to be orders sought by the applicants and the grounds of the application. In fact, no orders are sought, and the attachment is, in general, a dissertation in support of the applicants’ claims for protection. Those grounds are:
Orders sought by 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 [sic]. They never trusted me and I do not think hey 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 arrested by the corrupted government and police.
2, I can not go back to China since I am very scared to be sentenced.
3, The Chinese government still looks for me if I return. My friends told me not to go back since the police are still looking for me.
4, Tribunal didn’t give reasonably and ample consideration to my family situation especially the interest of my Australian born child and the unexpected difficulties due to our de [facto] relationship, our financial difficulty and the family conflict between family and us.
6, Tribunal judged by personal assumption in my case, whilst ignoring an investigation in particular the facts do exist in our cultural background.
I made orders in this matter on 1 September 2011 which provided the applicants with the opportunity to file and serve an amended application by 30 September 2011. No amended application was filed and the first applicant, who attended today’s hearing with the third applicant, confirmed that she continued to rely on the application filed on 2 August 2011. The application is supported by a short affidavit, which I received. My orders on 1 September included an order giving the opportunity for additional affidavit evidence to be filed by

7 October 2011. No further affidavit evidence was filed.
I received as evidence the court book filed on 13 September 2011.
I invited oral submissions from the parties today. The Minister relies on the written record of the Tribunal decision. The first applicant asserts that she was a victim of racial prejudice before the Tribunal. She claims that she was not believed, which is supported by the Tribunal decision, but adds that the Tribunal was not sympathetic to her. She refers to the presiding member laughing and mocking her. There is, however, no evidence to support those assertions. The only written evidence of what occurred at the Tribunal hearing is that set out in the court book (pages 66 through to page 75). That record establishes that, while the first applicant was questioned at length by the presiding member on her factual claims, the questions put were appropriate to the inquiry being conducted by the Tribunal.
The Tribunal also records in its reasons that it was aware that the first applicant was at times distressed during the hearing and attempted to make appropriate provision for that distress. There is nothing to support an allegation of bias on the part of the Tribunal, either actual or apprehended. I am satisfied that the Tribunal considered all elements or integers of the applicant’s claims. It does not appear to me that there is any arguable case of procedural or other legal error by the Tribunal.
I find that the applicants have failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. Scale costs in this instance would be $3,123. The first applicant claimed an inability to pay costs but, as has been repeatedly stated, impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the first and second applicants pay the first respondent’s costs and disbursements of an incidental to the application in the sum of $3,123 in accordance with rule 44.15 and item (1)(b) of part 2 to schedule 1 of the Federal Magistrates Court Rules.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 2 November 2011