SZQTD v Minister for Immigration
[2012] FMCA 202
•15 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQTD & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 202 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming religious and particular social group persecution in China – Tribunal not satisfied that the claims of religious persecution were genuine or that the fear of particular social group persecution was well-founded – no jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 SZBEL v Minister for Immigration (2006) 228 CLR 152 |
| First Applicant: | SZQTD |
| Second Applicant: | SZQTE |
| Third Applicant: | SZQTF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2331 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 15 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2012 |
REPRESENTATION
The Applicants appeared in person
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
The application be dismissed.
The first applicant and the second applicant are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2331 of 2011
| SZQTD |
First Applicant
| SZQTE |
Second Applicant
| SZQTF |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 September 2011. The Tribunal affirmed decisions of a delegate Minister not to grant the applicants’ protection visas. There are three applicants; the first applicant, who made the claims for protection is the applicant mother. References to the applicant in this decision are references to her. The other applicants were her de facto husband and their child.
The following statement of background facts relating to the applicant’s claims for protection and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 7 March 2012.
On 6 June 2007, the first applicant arrived in Australia from China (Fujian Province) on a subclass 571 student visa issued on 28 June 2007[1]. The second applicant arrived in Australia from China on a subclass 571 student visa on 14 November 2006[2]. The first and second applicants are in a de facto relationship and the third applicant is their child who was born in Australia on 7 December 2010[3].
[1] CB 15
[2] CB 70
[3] CB 46
By way of an application dated 14 October 2010, the first and second applicants made an application for protection visa[4]. The first applicant completed an application for a member of the family unit on behalf of the third applicant after her birth[5].
[4] CB 1-10
[5] CB 47–54
In a statement attached to her protection visa application form (form 866C), the first applicant stated the following[6]:
I am afraid of the religious persecution if I ever go back to China, and the social discriminations resulting from the humanitarian disasters. It makes me painful to think about it, especially when I relate it to my baby.
In the beginning of 2006... I made up my mind to become a Christian, to be strong in heart. So from then on, I went to the family church gathering as often as possible.
In the May of 2006, the family church I was attending was reported to the police. The police attacked our gathering place and brought us back for interrogation. I was detained for 3 days and was abused... I was told to report to the police any time they wanted after release, otherwise I would be penalized...
To avoid the police's surveillance, we change our place of gathering as often as possible...There was one time that the police were on their way to our gathering as we were informed. We ended the gathering immediately and everybody ran for their lives. I was wounded by the leg in the rush and the wound was infected later and left a scar.
My family was in great concern about my future, so they paid people to arrange my plan to study abroad... I soon joined the church here to continue my religious practice. In the August of 2007, I met my boyfriend...I later found out that I was accidentally pregnant.
Our relationship will not be recognised by the Chinese law and hence we are out of protection. What is worse is the punishment from the Family Planning Law and the social discrimination. According to the Fujian Family Planning Law, one child outside of marriage will lead to a penalty of 6 to 8 multiples. We will never be able to afford such a large amount of money...our baby will not be able to register for residency and the social welfare or education one ought to be able to receive. My baby and I will be homeless and isolated...I will not be able to get rid of the psychological prison I will be put in. Every time I think about this, I have no hope at all but to seek death with my baby.
[6] CB 27-29
On 10 January 2011, the first applicant was invited to attend an interview with an officer of the Department[7].
[7] CB 41–42
On 4 February 2011, a delegate of the Minister refused the applicants' application for a protection visa[8]. The delegate found that:
a)the vague nature of the first applicant's claims in relation to her arrest and detention as a result of attending a family church gathering led the delegate to doubt the veracity of the first applicant's claims[9];
b)available country information provides an insight into the situation of unregistered Christians in China generally and Fujian province in particular, which conflicts with the first applicant's testimony[10];
c)it could not accept that the first applicant came to the adverse attention of the Chinese authorities and that even if the first applicant's current interest in Christianity is genuine, based on the available evidence the delegate was not satisfied that she will be mistreated for reasons relating to her Christian beliefs if she returns to China[11];
d)the impact on the child of not being registered, whether temporarily or permanently, may represent a significant disadvantage to him and incur additional health care and educational costs for his parents, but it falls short of serious harm[12];
e)the delegate had reservations regarding the credibility of the claim that the first applicant's family will have no support if she returns to China and even if the first applicant's claim that she will have no support is accepted, the challenges facing the applicants are not a result of Convention related persecution[13]; and
f)neither the first applicant nor the third applicant face a real chance of Convention based persecutory harm upon return to China[14].
[8] CB 70–81
[9] CB 77
[10] CB 78
[11] CB 78
[12] CB 80
[13] CB 80
[14] CB 80
On 16 February 2011, the applicants sought review of the delegate's decision by the Tribunal[15].
[15] CB 82 – 85
On 23 March 2011, the Tribunal wrote to the applicants inviting the applicants to appear before it on 6 May 2011 to give evidence and present arguments relating to the issues arising in their case[16].
[16] CB 95 – 96
On 5 May 2011 the Tribunal received a request from the applicants that the hearing scheduled for 6 May 2011 be postponed on the basis that the first applicant was sick and unable to attend[17]. In accordance with the applicants' request, the hearing before the Tribunal was rescheduled to 16 May 2011[18].
[17] CB 112 – 114
[18] CB 105
The applicants appeared before the Tribunal on 16 May 2011, with the assistance of an interpreter in the Mandarin and English languages[19].
[19] CB 117
On 19 May 2012, the first applicant provided further information and comments to the Tribunal clarifying evidence given by the applicants at the hearing before the Tribunal[20].
[20] CB 137–139
On 19 September 2011, the Tribunal decided to affirm the delegate's decision not to grant a protection visa to the applicants[21]. The Tribunal notified the applicants of that decision by letter dated 20 September 2011[22].
[21] CB 143–180
[22] CB 142
The Tribunal found that[23]:
Having considered the applicants' claims individually and cumulatively, the Tribunal finds that the applicants do not face a real chance of persecution if the applicants return or the applicant child travels to China now or in the reasonably foreseeable future. Consequently the Tribunal finds that the applicants do not have well-founded fear of persecution for a Convention reason if they return to China.
[23] CB 179–180, [177]
The Tribunal based this finding on the following matters:
a)the Tribunal did not accept as credible the first applicant's claims to have been involved in a “local” church (referred to as the “Shouter” or “family” church) in China or that the first applicant was arrested and detained by Chinese authorities as claimed[24];
b)while the Tribunal accepted that the first applicant attended a Methodist church in Melbourne because “she was interested in Christianity” and that she attended a “local” church in Sydney, it concluded that there was insufficient evidence to find that she had been baptised at the local church. Further the Tribunal could not be satisfied that the attendance of the first applicant at the church in Sydney was for purposes other than strengthening her claim to be a refugee and s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”) was thus applied[25];
c)the Tribunal was not satisfied that the first applicant would attend gatherings of the “local” church if she returned to China. The Tribunal concluded that the first applicant did not have a well-founded fear of persecution on the basis of religion if she returned to China now or in the reasonably foreseeable future. The Tribunal also made the same findings in relation to the second and third applicants[26];
d)while the Tribunal accepted that the first and second applicants would be liable to pay a social compensation fee in relation to the birth of the third applicant it considered that this is a law of general application and it was “not satisfied that the laws would be applied differently to them for any reason”[27];
e)the Tribunal also did not accept the first and second applicants' explanations for not getting married, that their parents would disown them for having a child, that they would have insufficient funds to pay the social compensation fee and that there is a real chance that the third applicant will be an unregistered child[28]; and
f)while the Tribunal accepted that the third applicant might experience some societal discrimination because he was born out of wedlock, it was not satisfied that this was “of sufficient seriousness to amount to persecution in the Convention sense”[29].
[24] CB 174–175, [151]-[157]
[25] CB 176, [159] and [162]
[26] CB 177, [163]–[166]
[27] CB 178, [167]–[169]
[28] CB 178–179, [172]–[175]
[29] CB 179, [176]
Accordingly, the Tribunal concluded that:
a)it was “not satisfied that any of the applicants is a person to whom Australia has protection obligations under the Refugee Convention”[30];
b)“the applicants do not satisfy the criterion set out in s.36(2)(a) for a protection visa”[31]; and
c)it follows that the applicants are “also unable to satisfy the criterion set out in s.36(2)(b)”[32].
[30] CB 180, [179]
[31] CB 180, [179]
[32] CB 180, [179]
These proceedings began with a show cause application filed on 14 October 2011.
The applicants continue to rely on that application. The grounds in the application are set out in an attachment to it:
1, I am a Chinese citizen and committed Christian of Local church 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 for my arrest and the reason why I could not provide the evidence of it as well as the reason of my delay in my application for protection visa in and off the hearing. Tribunal ignores the fact that Local Church normally does not issue a baptism certificate for those who did receive baptism and use this reason for rejection of my claim which is unfair decision.
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 still under repression of local government or being taken advantaged from due to corruption issue.
Tribunal fails to thoroughly consider the challenge, harm and hardship I face as I have a child out of wedlock, and denial of family against our relation and child which will leave up in desperation. 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. We concern my child and I will be placed in a stressful, traumatic and vulnerable position if return.
The application was supported by a short affidavit which I received as a submission.
I received as evidence the court book filed on 23 November 2011.
The grounds advanced by the applicants are essentially an attack on the merits of the Tribunal’s decision. Those merits are beyond the scope of this proceeding. The first applicant impressed me as an intelligent and sincere woman who genuinely is seeking a better life in Australia for herself and her partner and child. She is pursuing the route of a protection visa. She has reasonably sought to satisfy the criteria for the grant of that visa. Her claims were not obviously fabricated and needed to be considered on their merits. They were considered but rejected by the Minister’s delegate. They were considered and rejected on a similar basis by the Tribunal. It is apparent from the Tribunal’s decision record that the Tribunal gave thorough and careful consideration to the applicant’s claims.
The hearing afforded the applicants was, it appears, a fair one. The applicants also had the opportunity to lodge a post-hearing submission. The Tribunal had regard to country information and prepared reasons which were both detailed and thoughtful. Essentially, I see no error in the Tribunal’s approach.
The first applicant raised a number of matters in her oral submissions. The first was a suggestion that issues raised at the Tribunal hearing were not resolved. The first applicant said that she was asked a lot of questions by the presiding member and her submissions raised an implication that the Tribunal’s review could not be completed at the hearing. The Tribunal’s reasons at [89][33] disclose that the Tribunal went through a process of oral disclosure of adverse information at the hearing. At the end of the hearing, the Tribunal records at [91][34] of its reasons that it discussed with the applicant whether she had stated that she had been arrested on 1 May 2006 or 3 May 2006 and noted that the delegate had written 1 May in the delegate’s decision record.
[33] CB 158
[34] CB 158
The Tribunal records at [92][35] of its reasons that in relation to delay in lodging the visa application, the applicant stated that she wished to respond in writing. The Tribunal agreed to that request. The first applicant provided a detailed written submission in the English language after the Tribunal hearing[36]. To the extent that the Tribunal extended a promise or invitation to the first applicant to provide further information to the Tribunal after the hearing, that promise or invitation was honoured.
[35] CB 158
[36] CB 158-160, [93]
The first applicant’s oral submissions might also support a contention that the Tribunal fell into the error identified by the High Court in SZBEL v Minister for Immigration (2006) 228 CLR 152. The first applicant conceded that at the hearing it was apparent that the presiding member had doubts about her claims, but she felt she had been successful in overcoming those doubts and answering the presiding member’s questions.
The only evidence I have of what occurred at the Tribunal hearing is the Tribunal’s record at CB 149-158. That is a detailed record and discloses that the first applicant was questioned at length about various aspects of her claims. The first applicant should have been, and I believe was, aware at the Tribunal hearing that the Tribunal had doubts about her claims. She had the benefit of the delegate’s decision which was consistent with the decision ultimately made by the Tribunal. I reject the contention, if made, that the Tribunal failed to ensure that the first applicant understood the essential and significant issues upon which the review would turn.
During the course of oral argument, I raised with the applicant the difficulty that the Tribunal is burdened with a large number of claims by applicants, in particular from Fujian Province in China, which are very similar. Decision makers need to be on guard not to allow an understandable concern about the potential for fabricated claims to infect their decision making in exercising their review function. In my view, in this case the Tribunal was scrupulously objective. There is no evidence which would support a conclusion that the Tribunal decision was affected by an apprehension of bias.
The Tribunal was rigorous but fair and in my view gave the applicant’s claims the close and careful attention they deserved.
The other issue explored during oral submissions was the Tribunal’s reasoning in relation to the Chinese one-child policy. The Tribunal’s reasoning is in particular reproduced at [170][37] and [175][38] of its reasons:
[37] CB 178
[38] CB 179
The Tribunal is satisfied that such laws apply generally to the Chinese population and the penalties apply not only to those who have had children out of wedlock, but also to those who have breached China’s family planning laws in other ways, such as by the birth of a second or subsequent child without permission. The Tribunal is also satisfied that such laws are appropriate and are adapted to achieving a legitimate national objective in the context of China’s need to control its overall population growth. The Tribunal is also not satisfied that there is any evidence that the laws will be applied to the applicants in a discriminatory manner for any reason.
…
The Tribunal has found above that there is no evidence that household registration is denied to children born out of wedlock. In light of the considerations set out in paragraph 172 above, the Tribunal is, therefore, satisfied that children born out of wedlock enjoy the same rights to household registration as other children in China. The Tribunal is also satisfied that, upon the payment of the fine, the applicant child will be able to obtain household registration and he will, thereby, have access to the basic entitlements such as education, health care and other social services that are associated with household registration. The Tribunal does not, therefore, accept that there is a real chance that the applicant child will be unable to obtain household registration. The Tribunal does not, therefore, accept that there is a real chance that the applicant child will be an unregistered child.
In my view the Tribunal’s approach to that issue was unexceptionable and discloses no error.
The Minister’s submissions address the applicants’ written grounds of review. I agree with those submissions.
The Minister submits that a number of the statements included in the applicants' application appear to assert that the Tribunal failed to give proper consideration to the claims they advanced in support of their protection visa applications. The Minister submits that those claims include:
a)the “potential risk and jeopardy” faced by the first applicant;
b)the harm faced by the third applicant in China as a child born out of wedlock;
c)the first applicant's explanation for her arrest in China and why she could not provide evidence of it;
d)the first applicant's explanation for the delay in making a protection visa application;
e)the first applicant's explanation for her not having a baptism certificate despite claiming to have been baptised at a Sydney church; and
f)the first applicant's involvement in local churches in Australia and her commitment to continue practicing if she returns to China.
The Minister submits that the applicants are seeking to cavil with the factual findings of the Tribunal and engage the Court in impermissible merits review. I agree. It is well established that findings of fact are a matter for the Tribunal: Abebe v Commonwealth of Australia (1999) 197 CLR 510. Moreover, the key finding in the Tribunal’s decision was the conclusion that the first applicant was not a credible witness and that her claims could not be accepted as a result. Credibility findings are within the Tribunal’s function and are not subject to judicial review: Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407.
To the extent that the applicants are alleging that the Tribunal failed to consider the applicants' claims, the Minister submits that the Tribunal’s reasons for decision show that the Tribunal properly considered and made specific findings in respect of each of the claims advanced by the applicants. I accept that submission. In particular, the Tribunal considered and made findings in relation to the following claims:
a)the first applicant's claims that she would face harm if she returned to China on the basis of her religious beliefs[39];
b)the harm faced by the third applicant in China as a child born out of wedlock[40];
c)the first applicant's explanation for her arrest in China and the lack of evidence to support such a claim[41];
d)the applicants' explanation for the delay in making an application for a protection visa[42];
e)the first applicant's claim that she was baptised and her explanation for not having a baptism certificate[43]; and
f)the first applicant's involvement in local churches in Australia and her commitment to continuing practicing if she returns to China[44].
[39] CB 151-152, [43]–[45] and [47]
[40] CB 155–158, [69]–[84]; CB 177–179, [167]-[176]
[41] CB 151-152, [43]–[45] and 48; CB 175, [155] and [156]
[42] CB 155, [64]; CB 159, [93]
[43] CB 154, [56] and [62]; CB 176, [160]-[161]
[44] CB 153–154, [53]–[60]; CB 155, [65]; CB 176, [159]–[162]; CB 177, [163]-[166]
I conclude that the Tribunal decision is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I so order.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The first applicant said that she did not know what to say in relation to costs. I explained that I was minded to make the order sought. I will order that the first applicant and the second applicant are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,240 in accordance with rule 44.15(1) and item 1(c) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 21 March 2012
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