SZQNP v Minister for Immigration
[2012] FMCA 264
•5 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQNP v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 264 |
| MIGRATION – Decision by the Refugee Review Tribunal –– failure to deal with all of the applicant’s claims to protection – failure to consider evidence – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), s. 476 |
| SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 Population and Family Planning Regulations of Fujian Province, Art.14 |
| Applicant: | SZQNP |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1799 of 2011 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 February 2012 |
| Date of Last Submission: | 2 March 2012 |
| Date Judgment Reserved: | 12 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 5 April 2012 |
REPRESENTATION
| The Applicant: | In Person |
| Appearing for the Respondents: | Ms L Weston |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application made on 17 August 2011 is dismissed.
The applicant’s litigation guardians to pay the first respondent’s costs, set in the amount of $5,200.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1799 of 2011
| SZQNP |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made on 17 August 2011, pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”), seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 22 July 2011, to affirm the decision, made on 8 February 2011, of the respondent Minister’s delegate not to grant the applicant a protection visa.
Background
The applicant was born in Australia on 26 September 2009 (Court Book – “CB” – CB 1). Her mother and father, both citizens of the People’s Republic of China (“China”), arrived in Australia on student visas in 2006 and 2001 respectively ([11] at CB 128 and [7] at CB 127). Both parents had previously applied for protection visas, but were refused (CB 28 to CB 29 and [7] at CB 127 to [12] at CB 128).
On 20 October 2010 the applicant, through her mother, applied for a protection visa (CB 1 to CB 40, including annexures). Annexed to the application was a statement of the applicant’s claims to protection (CB 38 to CB 40). Namely:
a)Both her parents are Christians and their beliefs may endanger her in China.
b)She is defined as a “pre-mature born child” in the “out-of-plan birth category” according to the “Family Planning Law in Fujian province China”. This regulation imposes a penalty upon her parents which they are unable to pay.
c)Since her parents will not be able to pay the fee to register her, she shall become a “black child” and will not be eligible for social, medical or educational services. Nor is there “legal or humanitarian protection or aid”.
d)In the context of her parents’ financial hardship, her inability to access public services will result in her being denied an education.
e)Her parents’ marriage will not be recognised by their respective families in China. As such, her family will not receive financial assistance from her extended family and will be homeless.
The Delegate
On 18 November 2010, the applicant was invited to attend an interview on 12 January 2011 (CB 41 to CB 45). Given the applicant’s infancy, her father attended and advanced claims on her behalf (CB 59).
On 8 February 2011 the applicant was notified that her application for a protection visa was refused (CB 46 to CB 66). The delegate found that the applicant would not face persecution in China by virtue of being the child of practising Christians (CB 64).
The rationale of the decision appears to be that while the applicant was conceived out of wedlock, and thus was “born ahead of schedule” in contravention of Art.14 of the Population and Family Planning Regulations of Fujian Province, it was unclear the extent to which that regulation applies to children born overseas. Although non-registration of the applicant, either temporarily or permanently, would significantly disadvantage her and incur private health and education expenses for his parents, it did not amount to serious harm as understood within the Act (CB 66).
The Tribunal
On 18 February 2011 the applicant applied for review of the delegate’s decision (CB 67 to CB 75) through her mother (CB 70). By letter dated 23 March 2011 the applicant was invited to attend a hearing on 9 May 2011 (CB 77 to CB 78). The applicant, along with her mother and father, attended at that time (CB 86 to CB 87). Her parents both gave evidence on her behalf.
At the hearing the applicant’s mother claimed that because she and her husband were wanted by the police in China they would be arrested upon arrival in China. In that event the applicant would be brought up in a single parent household, which would “have a negative effect” on her ([33] at CB 132).
On 22 July 2011 the Tribunal’s decided to affirm the decision of the Minister’s delegate to refuse the applicant a protection visa (CB 125 to CB 149). The reasons for the Tribunal’s decision are set out in its decision record ([101] at CB 146 to [115] at CB 148).
The Tribunal found that the applicant had the right to Chinese nationality ([101] at CB 146). It noted that the applicant’s mother was previously found not to face a real chance of persecution for reasons of her religion, and that it was not satisfied that the applicant’s father would continue to practice Christianity if he returned to China ([102] at CB 146). In the circumstances, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution on the basis of her parents’ religion ([103] at CB 146 to CB147).
Further, the Tribunal held that the applicant’s mother’s age at her birth, and at the time of her marriage to the applicant’s father, did not contravene the Marriage Laws of the People’s Republic of China ([104] – [105] at CB 147). Since the applicant had been conceived prior to her parents’ marriage, the Tribunal found that a social compensation fee might be imposed, but that once the fee had been paid there was no evidence that the household could not be registered ([106] – [107] at CB 147).
Although the applicant’s parents claimed that they would be unable to pay the fee, the Tribunal found, with reference to country information, that “… couples who were unable to pay the fee immediately may be allowed to pay in instalments” ([109] at CB 147). Ultimately, it did not accept that the applicant’s parents would be unable to pay the social compensation fee ([110] at CB 148).
Given the above finding, the Tribunal held that the applicant would be able to access health and education facilities in China ([110] – [111] at CB 148). Finally, even if the applicant’s parents’ families refused to accept her, that would not amount to persecution ([112] at CB 148).
Following the hearing the applicant’s father wrote to the Tribunal, transmitted by facsimile on 2 June 2011, and attempted to “… explain the reason of why I did insist my claim of Fa Lun Gong when I lodged an appeal to the high court” (CB 91 to CB 92). Included with the correspondence were “historical documents” in regards to the applicant’s parents’ Christian faith and practice, the applicant’s mother’s medical condition, and documents relating to the applicant’s father’s previous migration agent (CB 93 to CB 124).
Further, by letter dated 27 July 2011, the applicant’s father sent the birth certificate of the applicant’s sister (CB 152 to CB 153). The Tribunal notified the applicant on 1 August 2011 that the correspondence had been received on 26 July 2011, after the Tribunal had made its decision in respect of the application, and it was, under the Act, “… functus officio and has no power to take further action on the review” (CB 154).
Before the Court
When the matter first came before the Court, on 7 September 2011, the applicant’s mother was appointed her litigation guardian and the matter was set down for final hearing.
At the hearing, the applicant’s mother appeared in person, assisted by an interpreter in the Mandarin language. The applicant and her father were also present in the Court precinct. Ms L Weston appeared for the first respondent.
It became apparent that the applicant’s father had had a greater involvement in the preparation of the applicant’s application for a protection visa and had a greater understanding of the matter before the Court. The applicant’s mother expressed concern that she did not understand the proceedings. As a result the applicant’s father was also appointed litigation guardian for the applicant. He proceeded to press the grounds contained in the application before the Court.
At the time of the hearing no Court Book had been filed by the Minister, despite consent orders entered into on 7 September 2011 requiring it to be filed and served by 31 August 2011. Ms Weston indicated that an unsealed copy had been “served” on the applicant, although neither the applicant’s mother, nor father, was able to confirm this.
In the circumstances, leave was granted for the Court Book to be filed, and served on the applicant’s father, in Court. In addition, the applicant’s father was granted leave to file and serve any written submissions on any questions of law that may arise from the material in the Court Book by 5 March 2012. The applicant did so by way of “Supplemental Submissions” filed in Chambers on 2 March 2012. Leave was granted to the first respondent to file and serve any additional written submission in reply, although none were put before the Court.
The Application to the Court
The application to the Court contains the following grounds:
“1, I am an Australian born child, my parents used to be family church followers and persecuted by Chinese authority in china, I am afraid to face the persecution and social discrimination due to Family Planning policy of China if return.
2, I will be deprived the equal right of living and not entitled for social welfare in China if my family could not pay for the social compensation fee imposed by family planning policy however this is not unfair for me and beyond my control.
3, I have great concern about being affected due to my parent’s background as they are under the investigation of Chinese authority for their historical records.”
The orders sought by the applicant as expressed in her application to the Court appear to raise additional complaint about the Tribunal’s decision:
“1, I disagree with Immigration and RRT’s decision. They did not consider that I will be in big trouble and even a life challenge due to my parents background if I return.
2, RRT did not consider that I will be discriminated and treated as a “black child” in society due to the sanction by Family Planning enforced in our rural area without humanitarian concern, especially our family’s inability to pay for social compensation fee. Our family is currently suffers with financial difficulty and hard to collect money for the fine.
3, RRT member also fails to give a good consideration to what my parents explained and evidence provided for their previous applications in which they as victims have been taken advantages by others due to their lack of knowledge of law and language barrier.
4, RRT should give me a chance to express and reconsider our detailed explanation and the document provided off hearing for making a fair decision.”
Given the applicant’s unrepresented (by a legal practitioner) status before the Court I did consider whether these matters may be seen as a complaint that the Tribunal failed to have regard to the claims and evidence advanced on her behalf by her parents. This complaint appears to be the subject of written submissions provided by the applicant’s father to the Court after the hearing.
I should also just note that I took the view that before the Tribunal, the applicant’s parents acted in the capacity as her common law guardians (SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 at [47] and Re Woolley and Anor; Ex parte Applicants M276/2003(by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369).
Although the grounds of the application to the Court and the “Orders sought by Applicant” are expressed in the first person, I took the view that they were drafted by the applicant’s father on the basis that this is what the applicant would have said if she were able to speak for herself. (Although see further at [41] below).
Grounds of the Application
The three grounds of the application do not assert any legal, let alone jurisdictional, error on the part of the Tribunal. They are merely assertions of harm feared if the applicant were to go to China with her parents. In short, the very claims the Tribunal found were not well founded in the Refugee Convention sense.
Even if these were to be taken as some attempt at asserting legal error on the part of the Tribunal, it plainly would not assist the applicant, given that any disagreement with the Tribunal’s factual findings, on its own, really seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).
The grounds therefore are unmeritorious in any assertion of jurisdictional error on the part of the Tribunal and that alone, in the absence of any other apparent legal error, leads to the making of an order dismissing the application.
Additional Complaints
Nevertheless, I did consider whether the matters asserted under the heading of “Orders sought by Applicant” could be of assistance to the applicant. For the reasons that follow, they are not.
There are two matters that could be said to have been asserted:
a)The Tribunal failed to consider some aspects of the applicant’s claims or failed to give proper consideration or regard to these claims.
b)The Tribunal rejected the evidence of the applicant’s parents.
First, on the material before the Court, I cannot see that the Tribunal failed to have regard to, or properly consider, the applicant’s claims. It is difficult in the circumstances not to see this complaint as nothing more than an assertion that the Tribunal did not accept that the applicant’s claims, and her parent’s evidence in support, revealed a well-founded fear of persecutory harm if she were to go to China.
Second, in the sense that the complaint may be said to attempt some assertion of legal error, as explained in such cases as Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184 and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263, any such assertion, in the circumstances, must be rejected. The Tribunal dealt with all of the claims expressly made and clearly arising from the circumstances presented.
The Tribunal considered the claimed harm due to the parents’ background, the family planning laws, the parents’ disadvantages and the mother’s medical issues.
To the extent that the complaint is that the Tribunal failed to consider the parents’ evidence, this must be rejected at the factual level. There is a distinction to be drawn between a failure to consider, and a rejection of the credibility of the evidence.
This is particularly relevant in relation to the applicant’s father. The Tribunal found him not to be a credible witness ([109] at CB 147). This was based on his own evidence that he had previously pressed a claim that “… he knew was not true throughout the Courts in relation to his previous visa application …” ([109] at CB 147).
This finding was reasonably open to the Tribunal on what was before it and it gave reasons. No legal error is revealed in these circumstances where the Tribunal, in making this finding as to the father’s credibility, made a finding of fact within the proper exercise of its jurisdiction (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407).
While the Tribunal accepted for the most part the factual evidence given by the mother, particularly in relation to matters related to the family planning policy, it did not accept that what the mother said gave rise to a well-founded fear of persecution in relation to the applicant.
In these circumstances, the complaint really is that the Tribunal did not give “good consideration” in the sense of making a decision to the applicant’s (that is her parents’) liking. This does not reveal jurisdictional error.
The applicant also complains, as further explained in the subsequent written submissions, that the Tribunal failed to consider that the applicant’s mother would face persecution due to her religious background.
The submission is that the Tribunal simply relied on the conclusion reached by the “previous constituted Tribunal” that found that the applicant’s mother would not face a real risk of harm because of her religion if she were to return to China.
It is difficult not to observe that what is revealed here is the parents’ motive in making this application as if it were made by their daughter, or acting on their daughter’s behalf. Having been unsuccessful in their own applications for protection visas, and review before the Tribunal, and before the Courts on judicial review, the applicant’s parents have apparently used the “device” of making an application for their daughter as a vehicle for obtaining a “second” opportunity to present their claims.
The Tribunal was not required to make any finding in relation to the mother’s fear of persecutory harm. That plainly was the task of the differently constituted Tribunal that dealt with the mother’s application.
What the Tribunal was obliged to do was to review the delegate’s decision in relation to the applicant’s application for a protection visa. In this, the extent of the mother’s experience, and for that matter the father’s, was only relevant as to how it may inform the question as to whether the applicant herself had a well-founded fear of persecution for a Convention reason, either arising from her parents’ circumstances or her own, or both.
In this regard the Tribunal’s observation in relation to the mother and the previously constituted Tribunal ([102] at CB 146), and when seen in context, was entirely consistent with its task.
The second paragraph of the written submissions seeks to challenge the factual findings made by the Tribunal and to argue that a different view of country information as to unregistered Christian churches in Fujian should have been taken by the Tribunal.
It is the case that the choice of country information and the weight assigned to it, and its analysis, is a matter for the Tribunal (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10). No jurisdictional error is revealed here.
Conclusion
As neither the “orders” sought nor the written submissions lead to any revelation of jurisdictional error on the part of the Tribunal, the applicant is in no better position that she was with the unmeritorious grounds presented in the application to the Court. In these circumstances the application should be dismissed. I will make an order accordingly.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Date: 5 April 2012
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