SZQXF v Minister for Immigration - [2012] FMCA 332

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQXF v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 332

MIGRATION – Review of decision of Refugee Review Tribunal – whether denial of natural justice – whether Tribunal failed to take into account relevant facts.

Migration Act 1958 (Cth), ss.91R(3), 422B, 424A

Applicant:

SZQXF

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2749 of 2011

Judgment of:

Raphael FM

Hearing date:

16 April 2012

Date of Last Submission:

16 April 2012

Delivered at:

Sydney

Delivered on:

16 April 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the first respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2749 of 2011

SZQXF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of China who arrived in Australia on a student visa on 7 March 2008. Her mother appears to have travelled with her as a student guardian but has now gone to live elsewhere in Australia and made her own claim for this country’s protection. The applicant ceased her studies in Australia after six months but remained here. She was taken into immigration detention on 21 July 2011 as an unlawful non-citizen. On 4 August 2011 she made an application for a Protection (Class XA) visa. On 23 August 2011 a delegate of the Minister refused to grant a protection visa, and on 31 August 2011 she applied for a review of that decision from the Refugee Review Tribunal. The applicant was assisted in her application to the Tribunal by a firm of lawyers and migration agents. She attended two hearings before the Tribunal and she responded to a letter sent by the Tribunal on 5 October 2011 under the provisions of s.424A of the Migration Act 1958 (Cth).[1] On 7 November 2011 the Tribunal determined to affirm the decision not to grant her a protection visa.
[1] The “Act”.
The grounds upon which the applicant first claimed to be a person to whom Australia owed protection obligations were those of religion. The applicant claimed she was a Catholic from the Fujian Province. She stated that her father and mother were also Catholics. Her father was a leader of the Catholic community in her home village and had been detained by the Chinese authorities for his profession of religious observance. He had been persecuted by losing his job as a middle school teacher and demoted to teaching in a primary school. After being detained, she said, on 10 to 20 occasions, he lost his teaching position altogether. The applicant claimed, for her part, that she followed her family in their Catholic observance and that she got to a stage where the authorities would not let her continue in education. This was the reason why she obtained an education visa to come to this country. She said that because of her family’s financial position in China, as a result of the persecution of her father, she was unable to maintain funding for Australian education after approximately six months.
The applicant claimed that if she was returned to China she would be arrested or detained because of her religious affiliation and her association with an unregistered church. The Tribunal discussed these matters with the applicant at the first hearing and pointed out to her some discrepancies and inconsistencies in her evidence with that which had been given in the past: in particular, in relation to her father and what had occurred to him in China:
“The Tribunal put to the applicant that it was concerned about what appeared to be an escalation in her claims as she did not refer to her father having been detained at all in her application, at the departmental interview, she stated that something had happened on two occasions and at the hearing she stated that he had been detained on 10-20 occasions. The applicant replied that when she was young she just had a vague memory about how many times he was detained but after she called her father he told her how many times he was detained.”
It was after this that the Tribunal wrote a lengthy letter pursuant to s.424A of the Act inviting the applicant to comment on her inconsistent evidence in relation to her contact with her mother, her father’s arrest, employment and her knowledge of these things, her inconsistent evidence as to why she had to leave school in China, inconsistent evidence in relation to how many times her father was detained, her attendance at church in Australia and her father and brother’s addresses in China. Her agents replied to the s.424A letter on her behalf and, thereafter, the Tribunal appointed a second hearing.
When the applicant attended the second hearing she told the Tribunal that she was pregnant and that she feared to return to China as a single mother of a child born out of wedlock. She also feared to return to China as a failed applicant for a protection visa. These matters were discussed with the applicant in detail. The applicant told that the father of the child was also detained in Villawood with her. There seemed to be some suggestion that the parents did not approve of the marriage at this stage because the applicant and the partner were so young, being under the legal age for marriage in China. However, there did not appear to be a parental ban on the idea of them getting married. The Tribunal discussed with the applicant the independent country information concerning the treatment of children born out of wedlock in Fujian: including the necessity to pay a social contribution charge. She considered the independent country information concerning the possibility that the applicant will be required to undergo an abortion should she return to China. And then also considered the independent country information relating to returnees.
In its findings and reasons the Tribunal concluded that a combination of a series of matters, set out between [75 and 81 CB 145-147] led it to the finding that the applicant had been untruthful in her evidence concerning the events in China, her reasons for leaving China and her fears about returning to China. It did not accept that she was a Catholic in China, or that her father was a leader in an underground Catholic Church in China, or that he lost his job as a result of the religion, or that any members of her family had been detained, harassed or persecuted as a result of their religious beliefs.
It did not accept that the applicant was forced to leave school in China as a result of her family's religious beliefs, or that she travelled to Australia to avoid persecution. The Tribunal considered the applicant's slight evidence concerning her observance and attendance at churches in Australia and concluded that it could not be satisfied that this was done for purposes other than strengthening her claim to be a refugee, and therefore ignored them pursuant to s.91R(3) of the Act:
"The Tribunal finds that the applicant is not a Catholic. Therefore the Tribunal finds that the applicant will not attend Catholic gatherings in China nor engage in any Catholic related activities if she were to return to China now or in the reasonably foreseeable future. The Tribunal finds that there is no real chance that the applicant will face persecution because of her association with the Catholic Church or any other Christian denomination if she were to return to China now or in the reasonably foreseeable future. The Tribunal also finds that there is no real chance that the applicant will face persecution because of her relationship to her father as the Tribunal does not accept that her father is a person of interest to the Chinese authorities. As the Tribunal does not accept that the applicant is a Catholic, it does not accept that she will face persecution for any reason of any imputed political opinion as a result of her religion now or in the reasonably foreseeable future." See [84 CB 148]
The Tribunal then turned to the pregnancy related claims, and, whilst accepting that there were examples of forced abortions in Fujian, did not accept that the reports showed that the practice is wide spread, or that there was a real chance that the applicant would be forced to undergo an abortion upon return from Australia:
"Furthermore, as referred to above the country information states that compulsory abortions are illegal under Chinese law and as [sic] far less common than in the past." [91 CB 150]
In my view this is, in any event, not a matter of relevance as the applicant is now six months pregnant and is unlikely to be deported prior to her giving birth.
The Tribunal also considered the social compensation fee and the independent country information relating thereto:
"The Tribunal accepts that the applicant will have to pay a social compensation fee in relation to the birth of her child if she returns to China because the child will be born when the couple were not married and below the legal marriage age. There is provision for the payment of this fee by instalments in certain circumstances and the couple can apply for this concession if they face financial difficulties.
The Tribunal is satisfied that such laws apply generally to the Chinese population. It is well established that enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention for the reason that enforcement of such a law does not ordinarily constitute discrimination.” [97-98 CB 151]
The Tribunal noted that the applicant had not claimed that the penalty would be applied to her in any way differently to others in breach of the family planning laws, and there was no evidence before the Tribunal to suggest that the law would be enforced against her in a discriminatory fashion. The Tribunal did not consider that any discrimination against her as an unwed mother would amount to serious harm. Finally it concluded that the independent country information indicated that if a person was not of adverse interest to the Chinese authorities they would not suffer persecution as a result of being identified as a failed asylum seeker.
On 1 December 2011 the applicant filed an application for review with this court. There were three grounds set out. The first is “Jurisdictional Erro [sic]”. This ground has no particulars whatsoever and the court, in accordance with its usual practice, does not propose to speculate upon what is meant by it.
The second ground is:
"Denial of natural justice. I am not agree the decision which from the RRT."
Again there is no particularisation of the alleged breach of natural justice. The applicant's reference to the Tribunal was governed by the provisions of s.422B of the Act and the subsequent sections which amount to a code in respect of the natural justice hearing rule. The Tribunal appears to have complied with that code. It provided the applicant with two hearings and it sent her a letter under s.424A of the Act requesting her comments on matters that might lead the Tribunal to affirm the decision under review. There was nothing in the decision record that leads me to a view that the relevant provisions were not complied with, or that natural justice as ordained by the legislation was not provided.
The final ground is:
"Failing to take into account very relevant facts of the matter".
Once again, no particulars have been provided. When the applicant appeared before me she did not spell out any. She told me that she had intended her application to be one made in conjunction with her mother's. But neither she nor her mother understood the steps so that did not happen. She told me that the Tribunal did not believe that she was a Catholic, but apart from that said very little.
In the circumstances there does not seem to me to be any ground upon which I could find that the Tribunal made an error of law in the manner in which it reached its decision. Therefore, the application must be dismissed and the applicant must pay the respondent's costs, which I assess in the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 20 April 2012