SZQNQ v Minister for Immigration - [2012] FMCA 460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQNQ & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 460

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.36, 91R, 424AA

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668

First Applicant:

SZQNQ

Second Applicant:

SZQNR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1801 of 2011

Judgment of:

Barnes FM

Hearing date:

15 March 2012

Delivered at:

Sydney

Delivered on:

1 June 2012

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1801 of 2011

SZQNQ & SZQNR

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for review of a decision of the Refugee Review Tribunal dated 22 July 2011. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants protection visas.
The first applicant is a citizen of the People’s Republic of China who arrived in Australia in March 2008. The second applicant is her daughter, who was born in Australia. Although the child’s father was included in the protection visa application as a member of the family unit, he was not included in the application to the Tribunal and is not a party to the present proceedings. For convenience, future references to the applicant are to the first applicant and the second applicant is referred to as the applicant child.
In a statement accompanying her protection visa application, the applicant claimed to have been a member of a family church in China from a young age. She claimed that while attending a gathering in 2006 she was arrested and detained for three days and was bailed out by her family at great cost. She claimed that she was forced to stop attending gatherings, but subsequently got in touch with some of the members and rejoined the gatherings.
The applicant claimed that the police visited her home on a day that she was not there and informed her family that her involvement in the underground church had been reported and that she had to go to the police station “to confess”. She claimed she “escaped to another place” and did not return home. She also claimed that while she was under “tremendous pressure because the police [were] investigating [her] for the underground church matter”, nonetheless, she continued to attend. Her family was said to be “so worried” that they sent her abroad. She claimed that the government was blackmailing the members of family churches, that her grandmother had been caught and only released after paying a large penalty.
The applicant also claimed that she and her boyfriend, the father of the applicant child, were afraid of returning to China because as he had not reached the legal marital age according to the Chinese law they could not get married. She claimed that they would be punished under the Family Planning Law, that they could not afford to pay a penalty and that the baby would “not be recognized in the society”, enjoy social benefits or be able to register for residency. The applicant claimed that the applicant child would be regarded as a “black child” in China, discriminated against and isolated.
The applicant elaborated on her claims in an interview with the delegate. In particular, the delegate recorded that she claimed that she had been attending church with her grandmother while she was about seven to eight, but that she usually did not attend between the ages of nine and 15. She began attending again at 16. She claimed that she had attended an unregistered family church in China and had also attended church gatherings in Australia. She provided supporting documentation in relation to her attendance at church in Australia.
The applicant also attended a Tribunal hearing. As discussed further below, at the hearing the applicant and a witness referred to for present purposes as Ms LH gave evidence. The only evidence before the court about what occurred at the Tribunal hearing is the Tribunal reasons for decision recording that it received oral evidence from Ms LH who was described as a friend of the applicant. In accordance with s.424AA of the Migration Act 1958 (Cth) (the Act), it had invited the applicant to comment on certain inconsistencies in her evidence and also aspects of the evidence of Ms LH. According to the Tribunal reasons for decision the applicant chose to respond at the hearing.
The applicant wrote to the Tribunal in effect seeking to distance herself from Ms LH, claiming that she was not a loyal practitioner of the Christian faith and not a regular church attendant in China and Australia, that her evidence was “improper” and that she lacked qualifications. The applicant also sought to provide explanations of other aspects of her evidence and provided references from two persons in relation to her participation in church activities in Australia.

The Tribunal Decision

The Tribunal found that the applicant was not a credible witness. It did not accept the claims in relation to her past arrest and detention for a number of reasons. While the Tribunal acknowledged that minor inconsistencies in the applicant’s evidence could be attributed to the passage of time it had regard to a number of what it regarded as significant inconsistencies in the applicant’s evidence. Thus, the Tribunal had regard to the fact that in her written statement the applicant had stated that “after the heat was gone following her arrest, she rejoined the Church gatherings”, whereas at the Tribunal hearing, when the Tribunal observed that she had not encountered any difficulties with the police after her arrest despite remaining in China for another year, “the applicant [had] stated [that] she only attended every six months or so”.
The Tribunal also had regard to the fact that in her written statement the applicant claimed she was arrested in the “second half of 2006” whereas she told the Tribunal that she had had “more time to think about it and now remembered the date” and that it was a Sunday night at the end of November in 2006. In light of other inconsistencies in her evidence, the Tribunal did not accept that the applicant would not remember the date for the purpose of writing a statement but would then remember it for the Tribunal hearing.
In addition, the Tribunal had regard to the fact that the applicant had told the delegate that her mother had attended church in China, but that when the Tribunal asked what family members attended stated that her grandmother attended. Further, while Ms LH had stated that the applicant’s parents had attended church in China, the applicant stated that her father did not attend.
The Tribunal had regard to the fact that Ms LH, who was said to have been “presented at the hearing by the applicant as a witness with knowledge of [her] religious activities”, had “stated that nothing had happened to the applicant because of her religion”. The Tribunal took into account the applicant’s explanation that she had not met Ms LH until 2007 that “she did not want to frighten her by telling her what had happened” and that Ms LH’s parents “had not told her what had happened”. However, the Tribunal found that “if the applicant had been arrested for her religion in China and if she had been staying with [Ms LH] in Australia, [it did] not accept that the applicant would not have told [Ms LH] about such an important event as her arrest in China”.
The Tribunal also had regard to the fact that in her statement the applicant had claimed that “she was a member of the family church and that she began to attend local church in Australia”, whereas at the Tribunal hearing she claimed that in China she had attended the church known by the authorities as the Shouters Church and using the Recovery Bible. The Tribunal found that there was a “substantial difference” between the family church and the local church. It had regard to country information and did not accept that the applicant would not know the difference or that she would “unwittingly use the terms Family Church and Local Church to mean the same church”.
The Tribunal was of the view that the applicant had “attempted to enhance her claims” at the Tribunal hearing by “stating that she attended local church when she was in China and that it was the same church as she attended in Australia”.
In addition to such inconsistencies, the Tribunal had regard to the fact that the applicant claimed that in October 2008 she decided to stay in Australia permanently, her student visa was cancelled in April 2009, and that she did not lodge her protection visa application until October 2010. The Tribunal considered the applicant’s explanation for the delay (which involved a claim that she did not become aware of such a visa until she became pregnant) but found that this was “a further indication that the applicant did not have concerns about returning to China until she became pregnant, even though she wanted to stay in Australia before that date”. The Tribunal found that when considered with its other concerns, “if the applicant had previously been arrested and detained for participating in Church activities [in China] and then had been attend[ing] the local church in Blacktown, she would have lodged a protection visa application earlier”.
The Tribunal also had regard to the absence of any documentary evidence to substantiate the applicant’s claims and the applicant’s explanation in that respect.
In light of these matters the Tribunal did not accept that the applicant attended any church in China, that she was arrested and detained for that reason or that she paid a bribe in order to be able to leave China.
Nor did the Tribunal accept that the applicant attended a local church in Blacktown. It had regard to the fact that she had provided a letter attesting to her attendance at a Lidcombe church after January 2010, but also to the fact that while she had stated that Ms LH would be able to testify to her attendance at the church in Blacktown, Ms LH had said that “she did not attend the church in Blacktown and that she knew the applicant from China because their families attended church together there”. It noted the applicant’s explanation that Ms LH had been asked to attend the Blacktown church and so she considered her to be a sister from that church. The Tribunal also had regard to the applicant’s post-hearing explanation that Ms LH was “not a loyal practitioner of the Christian faith as she was not a regular church goer in China or Australia and that she was a Christian simply because she was brought to the family church by her parents when she was young but she was seldom involved in church activities”, and that “her evidence was improper and unqualified”. However, the Tribunal found that it was the applicant’s choice to nominate Ms LH as a witness to support her assertion that she had attended the Blacktown church and it was the applicant who had stated that Ms LH could vouch for her religious activities. It found that the fact that when she gave evidence Ms LH did not fully support the applicant’s claims did not of itself undermine Ms LH’s evidence, but it did undermine the applicant’s evidence.
The Tribunal had regard to the fact that after the hearing the applicant provided two letters from people who claimed to have attended the church in Blacktown with her and invited the Tribunal to contact them. However the Tribunal did not consider that it would be of any benefit to contact the writers of the letters when they were “clearly on notice of what they would need to say if the Tribunal did contact them”. It found that the letters had been provided “for the purpose of compensating for the oral evidence” at the Tribunal hearing, and that it had “not had the opportunity to take oral evidence from the writers prior to them being told what to say”. Hence the Tribunal did not give weight to these letters purporting to support the applicant’s attendance at a church in Blacktown.
In addition, the Tribunal had regard to the fact that although the applicant said the church was next to a park (which might indicate it had been described to her), she did not know the address of the church in Blacktown even though she claimed to have attended that church for nearly two years. In light of this and “the inconsistency of the applicant stating that she knew [Ms LH] from the Blacktown church and [Ms LH] stating that she knew the applicant from the church in China, the Tribunal [did] not accept that the applicant attended the local church in Blacktown”. It did not accept that the applicant attended church at all in China or Australia prior to January 2010.
On the other hand, the Tribunal accepted, on the basis of letters provided prior to the hearing from the local church in Sydney and the fact that the applicant demonstrated some knowledge of Christianity in the interview with the delegate, that she had attended a local church at Lidcombe from January 2010. However, having regard to the fact that the applicant stated that she decided to stay in Australia permanently in October 2008, the cancellation of her student visa in April 2009 (from which time she was unlawfully in Australia), and the fact it had found her claims to have attended church in China not to be credible and had not accepted that she attended local church in Blacktown, the Tribunal found that there was “no credible history of the applicant attending Church or of any Christian activities prior to January 2010”. The Tribunal had regard to the fact that the applicant’s evidence was that “she had already formed the intention to remain in Australia permanently well before she attended the local church in Lidcombe”. Having regard to the fact that agents for protection visa applications are “widely advertised in the Chinese press”, the Tribunal did not accept that the applicant spent nearly three years in Australia before she became aware of the existence of a protection visa.
The Tribunal was not satisfied that the applicant attended the local church in Lidcombe otherwise than for the purpose of strengthening her claims to be a refugee. Although she had provided evidence that she attended church, the Tribunal did not find that this indicated that she was an adherent to the Christian faith, and it found that it must disregard this activity in determining whether she had a well-founded fear of being persecuted for a Convention reason under s.91R(3) of the Migration Act.
The Tribunal reiterated that it had found that the applicant did not attend a Christian church in China or local church in Blacktown and that it was required to disregard any attendance at the local church in Lidcombe. As it had not accepted that she was an adherent to the Christian faith, it did not accept that the applicant would practice Christianity if she returned to China and found she did not have a real chance of being persecuted for this reason if she returned to China now or in the reasonably foreseeable future.
In relation to the applicant child, as the Tribunal did not accept that the applicant would practice Christianity if she returned to China, it did not accept that she would be arrested or detained for that reason and found that there was not a real chance that the applicant child would face persecution for a Convention reason on this basis if she travelled to China now or in the reasonably foreseeable future.
The Tribunal then considered the claims made by the applicant based on family planning policy in relation to herself and her daughter. It recorded that the applicant claimed that because she was unmarried she “would not be able to obtain a hukou for the applicant child and because her parents would not support her she could not afford to pay the social compensation fee for the child”. The Tribunal accepted that the child was born out of wedlock and that the applicant was therefore liable to pay a social compensation fee in relation to the birth.
However the Tribunal found that, as the applicant acknowledged “this requirement [was] a law of general application and that it would not be applied to her disproportionately to others in the same situation” or in a discriminatory manner.
In particular, the Tribunal rejected the applicant’s claim that she had a Christian profile which distinguished her from other mothers of children born out of wedlock. It was not satisfied that “the laws would be applied differently to her for any reason other than those considered”.
In relation to the applicant child, the applicant had claimed that her parents did not approve of her relationship with the child’s father and had ceased to give her money for her tuition fees when she indicated she was to remain in Australia. She also claimed that her relationship with the father of the child had ended. As it had not found the applicant was a credible witness, the Tribunal did not accept her evidence that her parents had refused to support her. In view of their ability to fund her travel to and tuition in Australia, it did not accept that the applicant did not have access to sufficient funds to pay the social compensation fee. It found, in any event, that independent country information indicated that persons unable to pay the fee immediately were allowed to pay the fee by instalments. The Tribunal found that the applicant would not be without means to pay the fee if she and the applicant child returned to China.
The Tribunal also found that there was no evidence that household registration was denied to children born out of wedlock. The Tribunal was satisfied that upon payment of the fine, the applicant child would be able to obtain household registration and thereby have access to basic entitlements such as education, health care and other social services associated with household registration. Hence the Tribunal did not accept that there was a real chance that the applicant child would be unable to obtain household registration or that she would be an unregistered child.
The Tribunal accepted that it was “plausible that the applicant and the applicant child might experience some discrimination on the societal level”, but was “not satisfied that this would be of sufficient seriousness to amount to persecution in the Convention sense”.
The Tribunal concluded that having considered both applicants claims individually and cumulatively, they did not face a real chance of persecution if they travelled to China now or in the reasonably foreseeable future, and that they did not have a well-founded fear of persecution for a Convention reason if they returned to China. As neither applicant satisfied the primary criteria for a protection visa in s.36(2)(a) of the Act, it followed that they were each unable to satisfy the criterion in s.36(2)(b) of the Act for members of a family unit. The Tribunal affirmed the decision of the delegate not to grant the applicants protection visas.

These Proceedings

The applicant sought review by application filed in this court on 17 August 2011.
Before considering the grounds in the application, I note that at the start of the hearing of this matter the applicant took issue with what happened at the Tribunal hearing. She appeared to suggest that the Tribunal’s account of the hearing was not complete, in particular, in relation to Ms LH. Notwithstanding that the applicant stated that she was unable to remember why she had not filed a transcript of the Tribunal hearing as had been provided for in directions and then suggested that maybe the child was sick at that time or something else had occurred, she was given the opportunity after the hearing to file and serve an affidavit attaching a transcript of the Tribunal hearing and written submissions in relation to any ground concerning the Tribunal hearing.

The applicant did not file a transcript and nor did she file any further written submissions in relation to the conduct of the Tribunal hearing. Given a lack of clarity in her oral submissions the applicant was also given the opportunity to clarify the nature of her contention about the Tribunal hearing after the hearing in this court to determine whether it may be appropriate to listen to a recording of part of the Tribunal hearing, as the applicant appeared to be implying. She did not take the opportunity to clarify her concern in relation to the hearing, despite being advised that if she did not file an affidavit with a transcript of the Tribunal hearing or otherwise explain her concern in a written submission, the court would make its decision on the basis of the material that was before it on the day of the hearing. The only evidence before the court of what occurred in the Tribunal hearing is the Tribunal reasons for decision. The applicant’s general claim that the Tribunal’s account of the hearing was not complete does not establish jurisdictional error.
The applicant raised a number of grounds of review in her application. She contended first that she did not think the decision was fair as the Tribunal did not “well consider” her “Christian history and record of being persecuted in China and [her] commitment with Local Church”. She also contended that the Tribunal “did not consider that [she would] be persecuted and in big trouble” if she returned home. Insofar as each of these contentions may be seen as taking issue with the merits of the Tribunal decision, merits review is not available in this court. The Tribunal concluded that the applicant was not credible. Credibility findings are a matter for the primary decision-maker. The Tribunal’s findings in that respect were open to it on the material before it for the reasons which it gave (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16 at [135] – [136] per Crennan and Bell JJ). As the Tribunal did not accept the applicant’s claims about the applicant’s “Christian history” and record of being persecuted in China or her commitment to the local church, it was not necessary for it to consider the impact of such beliefs and events in its reasons for decision. The Tribunal’s rejection of the applicant’s claim that she had a real chance of being persecuted on the grounds of her religion if she returned to China was open to it, based on its finding that it did not accept that she was an adherent to the Christian faith and did not accept that she would practice Christianity if she returned to China.
In oral submissions, the applicant submitted that the Tribunal was biased against her on the basis that she felt that the member had said that he did not believe her claims about her religion. She claimed that this was hurtful to her. However, actual bias is a serious allegation. It is a rare case in which it would be made out on the reasons for decision alone (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668). This is not such a case. There is nothing in the material before the court to indicate that the Tribunal had reached a state of predetermination such as to constitute actual bias in the sense considered in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17. For the sake of completeness, I note also that the material before the court is not such as to establish an apprehension of bias from the perspective of the fair-minded or properly informed lay observer (Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28).
The applicant also contended that the Tribunal failed to consider the applicant child’s interests and the possibility that the child would be deprived of human rights “due to household registration hurdle” if she returned to China. Contrary to this contention, the Tribunal considered but rejected the claim that household registration would not be available to the applicant child. It did not accept that there was a real chance she would be an unregistered child. I note that the Tribunal accepted that the applicant and the applicant child might experience some discrimination on the societal level, but found that it was not satisfied that this would be of sufficient seriousness to amount to persecution in the Convention sense. The Tribunal was entitled to find that there would be no persecution on this basis. This ground is not made out.
The applicant reiterated her claims about involvement in the shouters church in China and to have been the subject of verbal abuse. She attempted to provide an explanation about whether that church was referred to as the local church in China. She contended that the Tribunal had “misinterpreted [her] honest explanation”. However, the fact that the Tribunal did not accept the applicant’s explanation for inconsistencies in her claims about whether she was a member of the family church or the local church is not indicative of jurisdictional error. Contrary to the applicant’s further contention, it is not apparent that the Tribunal failed to consider her explanation for why she only attended the underground church a few times. What was of concern to the Tribunal in that respect was the inconsistency in her evidence about whether and when she rejoined church gatherings after she was arrested by the police.
The applicant also took issue with the Tribunal’s questioning of her friend Ms LH as follows:
Tribunal questioned my friend [LH] who is not familiar with my entire history of Christian faith and practice in China and Australia (she helped me to take care for my baby only for the hearing at the time instead of presenting as a witness) as a witness without any notice before the hearing, and the member only said to me she would only ask her a few simple questions (normal questions only) however, it was out of our expectation the member asked more than a few detailed questions related to my faith and practice and took her statements as an evidence for my Christian faith and practice in China and Australia, and it is absolutely unfair and improper. The member made wrong judgment based on the unqualified statement from unqualified witness.
Notwithstanding that an opportunity was given to the applicant at the hearing to elaborate on this issue and to put further evidence of what occurred in the Tribunal hearing before the court, the only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision. It is apparent from the Tribunal reasons for decision that the applicant volunteered Ms LH as a witness about her attendance at church in Blacktown at a time at which Ms LH was waiting outside the hearing room with the baby. According to the applicant, LH could give that evidence and “[s]he was one of the sisters in Blacktown”. The Tribunal recorded that this occurred in the context of a discussion of the applicant’s attendance at church in Australia as follows:
The Tribunal noted that there was no evidence that she had attended the local church in Blacktown and the letter which she had provided said that she only started attending local church in January 2010. The applicant stated that she was attending this church now, but for the Blacktown church she could only get someone to give evidence. The Tribunal could ask her friend who was waiting outside the hearing room with her baby. She could give that evidence. She was one of the sisters in Blacktown.
The Tribunal asked whether her friend knew why she was at the Tribunal. The applicant stated that she had asked her to look after the baby so she had to explain. She was not sure but thought she would know the claims the applicant was making. Sister [LZ] was not able to come to be a witness because her health was not good.
At that point Ms LH gave evidence under affirmation. Contrary to the applicant’s claim in these proceedings there is no evidence that the Tribunal said to the applicant that she would only ask Ms LH a few simple questions. No jurisdictional error is apparent from the fact that the Tribunal sought to elucidate from Ms LH her involvement in Christianity and the circumstances in which she had come to meet and know the applicant as well as evidence about the applicant’s attendance at the Blacktown church.
Moreover, the Tribunal asked the applicant if she wanted to say anything about Ms LH’s evidence immediately after Ms LH had given evidence. It recorded and considered her response. Later in the hearing, the Tribunal put to the applicant under s.424AA of the Act the fact that she had said that Ms LH was one of the sisters in the church at Blacktown but that Ms LH had said that she did not go to church in Australia but that she knew the applicant from China, and also that she and the applicant did not have any trouble in China and that the applicant’s mother had been involved in the church. The Tribunal explained that this information was relevant to the review because it might lead it to find that the applicant did not go to church in China or in Blacktown.
The applicant made a post-hearing submission to the Tribunal taking issue with the propriety and qualifications of Ms LH’s evidence. This was considered by the Tribunal in its findings and reasons.
However the concerns that the applicant raises in the application for review are not such as to establish that the Tribunal fell into jurisdictional error in either taking evidence from Ms LH or placing any reliance on her evidence. In particular, no lack of procedural fairness is apparent in the manner in which the Tribunal proceeded given that the applicant volunteered Ms LH as a witness and had the opportunity to comment on her evidence. No jurisdictional error is established in this respect.
The applicant also contended that the Tribunal had failed to consider her commitment to the Christian faith, her baptism in the local church in Australia, the risk and reality of her daughter facing a challenge due to the breach of family planning laws if she returned to China, and her history of being arrested by the Chinese government. As indicated, the Tribunal rejected the applicant’s claims about her commitment to the Christian faith and past consequences in China. It disregarded her conduct in attending the Lidcombe community church and church activities pursuant to s.91R(3) of the Migration Act. It did not fail to consider her claims in relation to a possible breach of the family planning laws and the impact both for herself and for the applicant child. In particular it considered but rejected her specific claim that she had a profile which was different to other mothers of children born out of wedlock. This claim is not made out.
Finally, the applicant contended that the Tribunal failed to consider her child’s interests due to the lack of access to household registration if she returned to China. This ground seeks impermissible merits review. The Tribunal found no evidence that household registration was denied to children born out of wedlock. It was satisfied that a fine for the child could be paid and that therefore she would obtain household registration. It did not accept that there was a real chance that she would be an unregistered child.
As no jurisdictional error has been established on any of the bases contended for by the applicant, the application must be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 1 June 2012