SZQVS v Minister for Immigration

[2012] FMCA 119

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQVS & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 119

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and other persecution in China – principal applicant not believed – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425

First Applicant: SZQVS

Second Applicant: SZQVT

Third Applicant: SZQVU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2604 of 2011

Judgment of: Driver FM

Hearing date: 23 February 2012

Delivered at: Sydney

Delivered on: 23 February 2012

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms E Liddle
Sparke Helmore

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. 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 2604 of 2011

SZQVS

First Applicant

SZQVT

Second Applicant

SZQVU

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  The decision was made on 1 November 2011.  The Tribunal affirmed a decision of a delegate of the Minister not to grant protection visas to the applicants.  There are three applicants.  The first applicant, who is the applicant mother, the second applicant who is her partner and the third applicant who is their daughter.  The second applicant was appointed litigation guardian for the third applicant on
   13 December 2011.  Since the Tribunal decision was made, a second child was born on 27 December 2011.

2. The applicants are from  Fujian Province in China.  The first and second applicants arrived in Australia on 16 and 20 May 2007 respectively on student visas.  The third applicant was born in Australia in October 2010.  The applicants applied to the Minister’s Department for protection visas on 16 March 2011.  The Minister’s delegate refused that application on 10 June 2011.  The applicants applied to the Tribunal on 16 June 2011 for a review of the delegate’s decision. 

3. The relevant protection claims were made by the first applicant and were supported by the second applicant.  References in this judgment to the applicant are references to the first applicant.  Her claims centred upon her religion and in particular her underground Catholic faith in China and a continuation of that faith in Australia.  Secondly, she claimed to be at risk of harm in China by reason of her membership of the particular social group of unmarried mothers in China.  This was based upon the proposition that she and her partner were unmarried and because of family opposition their relationship would not last if they were required to return to China.  The first applicant also claimed that the third applicant and herself would be at risk because of the Chinese one-child policy and its application to children of unmarried parents.

4. The Tribunal was unable to make a favourable decision on the papers and invited the applicants to a hearing on 12 October 2011.  The first and second applicants attended and gave evidence and answered questions in relation to their claims.  The Tribunal expressed doubts about the applicant’s claims concerning her religious activities in China but also expressed doubts that the applicant’s attendance at church in Australia had been for any purpose other than to enhance her protection visa claims.  The Tribunal also discussed with the first applicant her relationship with her partner, the second applicant, and the family’s attitudes.  That discussion extended to the position of the third applicant as the child of the couple.  The applicants provided the Tribunal with a post-hearing submission on 12 October 2011.  That submission attached a letter of support from a priest at the Western Sydney Chinese Catholic Community.  The Tribunal received a further submission on 20 October 2011 which referred to psychological problems said to have been affecting the first applicant. 

5. The Tribunal in its decision did not accept the applicant’s claims concerning her involvement with an underground church in China. The Tribunal considered the first applicant’s account of these matters to be implausible on a number of significant points. The Tribunal was also concerned about inconsistencies in the applicant’s evidence at various stages of the decision-making process. The Tribunal accepted that the applicant had recently commenced attending church in Australia, but found that that attendance was not for any purpose other than to strengthen her claim to be a refugee. The Tribunal disregarded that conduct in accordance with s.91R(3) of the Migration Act 1958 (Cth) (“the Migration Act”).

6. The Tribunal found that the applicant was not at risk of harm in China by reason of her asserted Christian faith.  The Tribunal also was not satisfied about the applicant’s particular social group claim.  The Tribunal found at [103] of its reasons[1] that the applicant would not as a matter of fact be a member of the particular social group consisting of unmarried single mothers if she returned to China.  The Tribunal reasoned that the applicant’s partner, having shown a commitment to the relationship with her, would remain with her, and that there was nothing preventing him marrying her.

   [1] court book, page 127

7. In relation to the third applicant, the Tribunal found that the first applicant would be able to register her birth in China upon payment of the social compensation fee.  The Tribunal found that the first and second applicants would be able to pay that fee.  The Tribunal concluded, in the light of all of the information before it, that it was not satisfied that there was a real chance that the first applicant would suffer harm in China because of her religion or as a member of the particular social group consisting of single unmarried mothers.  Nor was the Tribunal satisfied that the third applicant would suffer harm as a member of the particular social group consisting of so-called “black children.” 

8. These proceedings began with a show cause application filed on

   
   

   16 November 2011.  That application contains three grounds:

   1.      RRT considered my case unfairly.

   2.      RRT did not consider my situation in China.

   3.      I will be put in jail if I go back.

9. I gave the applicants the opportunity to file an amended application and additional evidence, but they have not taken up that opportunity. 

10. I invited the first applicant to identify any unfairness in the Tribunal’s process. She was unable to do so. The court book, which I received as evidence, discloses that the Tribunal met its obligation to the applicants under s.425 of the Migration Act.

11. The Tribunal purported to go through a process of oral disclosure at the hearing before it pursuant to s.424AA of the Migration Act. The Minister submits that that disclosure was probably unnecessary in as much as the disclosure went to inconsistencies in aspects of the first applicant’s claims in evidence which is not “information” for the purposes of s.424A. I accept that submission. There is in my view no arguable case of any jurisdictional error in the form of procedural unfairness by the Tribunal.

12. The first applicant made submissions on the second ground in her application.  She is dissatisfied with the rejection of her claims on credibility grounds.  In my view, the Tribunal’s adverse credibility conclusions were open to it on the material before it.  No element or integer of the applicant’s claims was overlooked.  There is no arguable case of jurisdictional error in relation to ground 2.

13. The third ground appears on its face to be an attack on the merits of the Tribunal decision.  Further, as was pointed out by the Minister’s solicitor, the applicant had not in fact claimed that she would be put in jail if she returns to China.  At [31] of its reasons[2] the Tribunal records a claim made by the applicant at hearing that the police in China had a case against her and would make trouble for her.  That claim was dealt with by the Tribunal at [91] of its reasons[3].  There was no failure by the tribunal to consider the claim and its conclusion was open to it on the material.

    [2] court book, page 113

    [3] court book, page 125

14. I conclude that the applicants have failed to advance any arguable case of jurisdictional error by the Tribunal.  As was conceded at trial by the Minister, there is nothing to prevent them making a further claim for protection on behalf of their second child, should they be so minded. 

15. I will 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”).

16. Costs should follow the event in this case.  The Minister seeks scale costs.  The first applicant did not wish to be heard on costs.  The second applicant did not attend the hearing.  The first applicant told me that the third applicant is unwell in hospital and that the second applicant was looking after her there. 

17. I will order that 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.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  24 February 2012