SZQNG v Minister for Immigration
[2012] FMCA 156
•7 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNG & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 156 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – dismissal of judicial review application due to the non appearance of the applicant. |
| Federal Magistrates Court Rules 2001 (Cth) |
| First Applicant: | SZQNG |
| Second Applicant: | SZQNH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1757 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 7 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 7 February 2012 |
REPRESENTATION
No appearance by or on behalf of the Applicant
| Solicitors for the Respondents: | Ms L Weston Minter Ellison |
INTERLOCUTORY ORDERS
Pursuant to rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (Cth), the application is dismissed.
The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,800.
The Court directs that the Minister is to arrange to have these orders entered and the Minister is to serve a sealed copy of these orders on the applicants by ordinary pre-paid post at their last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1757 of 2011
| SZQNG |
First Applicant
SZQNH
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me an application to review a decision of the
Refugee Review Tribunal (“the Tribunal”) made on 18 July 2011. The Tribunal affirmed a decision of the delegate of the Minister to refuse the applicant and her daughter protection visas. The applicants are from Fujian province in China and had made claims of persecution based partly on the Chinese one child policy and partly on a claim of religion. The following statement of background facts relating to the applicants’ claims and the decisions of the Minister’s delegate and the Tribunal on them is derived from the Minister’s written submissions filed on 31 January 2012.
The first applicant is a citizen of the Peoples Republic of China born on 1 June 1987.[1] She first arrived in Australia on 20 October 2005 with a Subclass 571 (Schools Sector) Visa and most recently re-entered the country on 22 January 2010 on the same visa.[2] On 6 October 2010 the first applicant applied for a Protection (Class XA) Visa.[3]
[1] Court Book (CB) page 25
[2] CB pages 64 and 109
[3] CB pages 1-30
The first applicant's claims for protection were set out in a statement provided with the protection visa application forms.[4] The first applicant claimed that her daughter would face discrimination as a “black child” and that the first applicant herself would be isolated and face discrimination as a single mother.[5] The first applicant also claimed that the “most main” reason she feared returning to China was because she had been detained by the police for her involvement in the Family Church.[6]
[4] CB pages 29-30
[5] CB page 29
[6] CB page 29
On 15 December 2010 the first applicant gave birth to a daughter who was taken to be included in the application as a member of the first applicant's family unit.[7] The daughter is the second applicant in these proceedings.[8]
[7] CB page 47
[8] At the first Court date, on 26 September 2011 the first applicant was appointed as the litigation guardian of the second applicant for the purposes of Part 11 of the Federal Magistrates Court Rules 2001 (Cth).
A delegate of the Minister interviewed the first applicant on 1 February 2011[9] and, by decision dated 8 February 2011, the delegate refused to grant the applicants protection (Class XA) visas.[10]
[9] CB pages 35 and 142-143
[10] CB pages 64-74
The applicants applied for review of the delegate's decision on 15 February 2011.[11] By letter dated 18 March 2011 the applicants were invited to attend a hearing to give evidence and present arguments in support of their applications on 29 April 2011.[12]
[11] CB 75-77
[12] CB 94-95
The first applicant appeared at the scheduled hearing and was assisted by a Mandarin interpreter.[13] She was accompanied by a friend, Ms Xiaohong Huang, who provided support but did not give evidence.[14]
[13] CB 103-105
[14] CB page 103
At the hearing the Tribunal discussed the first applicant's claims and, among other things, informed her that it had concerns in relation to inconsistencies between her evidence and the hearing and that which she gave at the interview with the delegate.[15] The Tribunal explained the information and its relevance to the review and invited her to comment or respond (noting that she could seek additional time to do so).[16] The first applicant chose to respond to some information orally at the hearing but requested time to respond to information concerning her claim that records had been deleted to allow her to escape from China.[17] The Tribunal agreed that she could do so by 10 May 2011.[18]
[15] CB pages 150-152 at [70]-[79]
[16] CB page 150 at [70]-[72]
[17] CB pages 150-151
[18] CB page 151 at [74]
On 10 May 2011 the Tribunal received a letter from the first applicant dated 6 May 2011 in which she responded to issues raised at the hearing.[19] Attached to the letter were corroborative documents including letters of support from “church sisters” and a note from Dr Reverend Chung-ruey Lee confirming that the first applicant was baptised on 8 August 2010 and that she had regularly attended Sunday Services, cell group meetings and other activities at the Bread of Life Church in Sydney since June 2010.[20]
[19] CB pages 113-117
[20] CB pages 118-126
On 27 May 2011 the Tribunal wrote to the applicants to invite them to comment on or respond to information which it considered might be the reason or part of the reason for affirming the decision under review.[21] The letter advised that the Tribunal had contacted Lloyds International College after the hearing in relation to whether the first applicant had completed a Diploma of Management course, and that the College had confirmed that she had done so.
[21] CB pages 128-129
The letter advised the applicants that this information was relevant to the review because it indicated that the applicant might be employable in China. It advised that the information may lead the Tribunal to find that, if she was liable to pay a fee for registration of her daughter, she would be able to pay the fee and support herself and her daughter.[22] Attached to the letter was a copy of the response from Lloyds International College.[23]
[22] CB page 128
[23] CB pages 129-130
The Tribunal received a response from the first applicant on 17 June 2011 in which she stated that she was “surprised” by the documents because her transcript records indicated that she had not completed all of the units for her course.[24] The response had a letter from Lloyds International College dated 2 June 2011 attached.[25]
[24] CB page 131
[25] CB pages 132-135
On 22 June 2011 an officer of the Tribunal contacted Ms Priya Thakur at Lloyds International College by phone, who advised that a record that a student had completed a course did not mean that the student had passed or been assessed as competent.[26]
[26] CB 137
By decision dated 18 July 2011 the Tribunal affirmed the delegate's decision not to grant the applicants protection (Class XA) visas.[27] In reaching this decision the Tribunal made the following findings and observations regarding the claims arising from the first applicant's religion as a Christian:
a)The Tribunal found that the first applicant's claims in relation to her attendance at church, arrest and detention in China were implausible and lacked credibility.[28]
b)The Tribunal accepted that the first applicant had attended the Bread of Life Church in Australia from June 2010.[29] The Tribunal further accepted that the first applicant had not attended the church solely for the purpose of strengthening her claims for protection.[30]
c)The Tribunal found that the first applicant would not attend Local Church services if she returned to China.[31] Moreover, the Tribunal did not accept that she would attend an unregistered Church “even if” she did attend a Church in China.[32] The Tribunal found that in any event, even if she did attend an underground Church in Fujian there was not a real chance that she would be subject to persecution on that basis in the reasonably foreseeable future.
[27] CB 139-170
[28] CB page 165 at [126]
[29] CB page 166 at [131]
[30] CB 167 at [135]
[31] CB 167 at [136]
[32] CB 167 at [137]
The Tribunal concluded that the first applicant did not face a well‑founded fear of persecution by reason of her religion and so did not accept that the second applicant would be separated from her on this basis or would herself face a well-founded fear of persecution by reason of her religion.[33]
[33] CB page 167 at [139]
The Tribunal made the following findings and observations regarding the claims arising from the claims relating to China's family planning policy:
a)The Tribunal accepted that the second applicant was born out of wedlock and that the first applicant was liable to pay a social compensation fee as a result.[34]
b)However, the Tribunal found that the social compensation fee arose from a law of general application which would not be applied to the first applicant disproportionately.[35] The Tribunal was satisfied that the law was appropriate and adapted to achieving a legitimate national objective.[36]
c)The Tribunal found the first applicant not to be a credible witness and was not satisfied that her parent's had disowned her.[37] In light of her parents' ability to fund her travel to and tuition in Australia, the Tribunal was not satisfied that the first applicant did not have access to sufficient funds to pay the fee and that persons unable to pay immediately can pay by instalments.[38]
d)The Tribunal found that there was no evidence to indicate that children born out of wedlock were denied registration and that the second applicant would have access to basic entitlements such as education, health care and other social services, after payment of the fine.[39]
e)The Tribunal had regard to Article 25 of the Marriage Law of the People's Republic of China and found that although the first and second applicants might face some discrimination at a societal level, it was not satisfied that this would amount to persecution in a “Convention sense”.[40]
[34] CB 167 at [140]
[35] CB 168 at [141]-[142]
[36] CB 168 at [143]
[37] CB 168 at [144]
[38] CB page 168 at [145]
[39] CB pages 168-169 at [146]
[40] CB 169 at [147]
The Tribunal could not be satisfied that the applicants would face a well-founded fear of harm in China for a “Convention reason” at the time of the decision or in the reasonably foreseeable future.[41] The Tribunal was thus not satisfied that either of the applicants were a person to whom Australia owed protection obligations under the Refugees Convention.[42]
[41] CB 169 at [148]-[149]
[42] CB 169 at [149]
These proceedings began with an application filed on 11 August 2011. The grounds of that application are:
1, I am a Chinese citizen and committed Christian, was persecuted by police in China. I have fears of return due to my pursuing of Local Church which is forbidden by China’s government.
Tribunal failed to consider the fact and my detailed explanation in and off the hearing as to the reason of my detention in China and wrongly produced an assumption on why and how soon I left China under special and private assistance after the incident occurred, and impossibility of grabbing an effective evidence from China, which described in paragraph 127 and 128.
Tribunal failed to well consider the reason why I delay to apply for a protection as an overseas student simply because of my short of knowledge of laws, fear of being removed and financial problem, etc which described in paragraph 129.
Tribunal did not well consider the fact of my physical involvement with local churches in different stage in Australia and my commitment pursuing in underground family church if return to origin.
Tribunal did not make a real consideration to the fact that in Fujian’s rural area, underground family churches are under repression of local government and were often taken advantaged from due to corruption issue.
Tribunal fail to thoroughly and prudently consider my single mother in particular the impact on my Australian born child out of wedlock, which will leave us in helplessness, limbo or dilemma due to my family’s denial of my marital relation and devalued concept against daughter as well. My child will be greatly challenged in social welfare and discriminated as she is unable to access to household registration because of my marital status. My child and I will be placed in a stressful, traumatic and vulnerable position if return.
The matter came before me for directions on 21 September 2011. The applicant attended in person, with the assistance of a Mandarin interpreter. At that time I made orders, among other things, listing the matter for a final hearing today at 10.15am. I am satisfied that the applicant understood the need to attend court today at this time.
I made orders for the applicant to file any amended application and further evidence, but nothing further has been filed by or on behalf of the applicant. I note from court correspondence file that the applicant received advice under the Minister’s panel advice scheme on 7 November 2011 and that the advice was confirmed in writing on 21 November 2011.
The Minister’s solicitors wrote to the applicant by letter dated 31 January 2012[43]. That letter provided the first applicant with the Minister’s authorities and outline of submissions and reminded her of the court fixture today. There is a minor typographical error in the letter, but I do not consider that the letter would have caused any particular confusion.
[43] exhibit R1
There was no appearance by or on behalf of either applicant when the matter was called today at 10.22am and again at 10.30am. I note in that regard that the first applicant was appointed the litigation guardian on the second applicant who is a child. I adjourned while an attempt was made to contact the first applicant by telephone on her nominated mobile telephone number. That attempt was unsuccessful as the telephone rang out.
In view of the failure by the first applicant to attend the hearing today and the lack of any explanation for that non-attendance and having regard to the matter generally I have decided that the appropriate course is to accede to the Minister’s request for the application to be dismissed pursuant to rule 13.03C(1)(c) 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 fixed in the sum of $4,800. That amount is somewhat below scale and I have no difficulty in accepting that costs of not less than $4,800 have been reasonably and properly incurred on behalf of the Minister. I will make both orders sought by the Minister.
I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders to be sent by ordinary prepaid post to the first applicant at her last known address for service, together with a copy of rule 16.05 of the Federal Magistrates Court Rules.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 7 March 2012
0
0
1