SZRGM v Minister for Immigration - [2012] FMCA 1008

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRGM & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1008

MIGRATION – Review of decision of Refugee Review Tribunal – whether Tribunal fell into jurisdictional error.

First Applicant:

SZRGM

Second Applicant:

SZRGN

Third Applicant:

SZRGO

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 586 of 2012

Judgment of:

Raphael FM

Hearing date:

23 October 2012

Date of Last Submission:

23 October 2012

Delivered at:

Sydney

Delivered on:

23 October 2012

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

No. SYG 586 of 2012

SZRGM

First Applicant

SZRGN

Second Applicant

SZRGO

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The three applicants in this matter are a young Chinese couple and their son. The adults variously arrived in Australia as holders of student visas in about 2008 and did not continue with their studies and applied for protection (Class XA) visas on 21 January 2011. A delegate of the Minister refused to grant those visas on 18 March 2011 and on 25 March they applied for a review of the delegate’s decision from the Refugee Review Tribunal. The Tribunal arranged a hearing which was attended by the applicants on 22 June 2011. It was only the female applicant[1] that made a claim to be a person to whom Australia owed protection obligations but to a great extent her claims overlapped with those of her infant son even though he was classed as a member of a family unit not having claims of his own. On 27 February 2012 the Tribunal determined to affirm the decision under review.
[1] “Applicant”
The First Applicant’s claim to be a person to whom Australia owes protection obligations was two-pronged. Firstly, she said she was a Christian and had a record of underground church activities and feared to return to the PRC for that reason. She claimed that when she did return to the PRC in 2008 for a short visit she was caught whilst attending a house church and arrested. Her father managed to obtain bail for her and she departed the PRC to return to Australia. She fears that if she returns to the PRC she will be re-arrested.
The second prong was the existence of the son. Born out of wedlock to a couple who at the time were under the permitted age to marry in the PRC and who would therefore be incapable of obtaining a Hukou unless a social compensation fee was paid. This fee could not be paid because of the inability of the parents to earn sufficient funds and the refusal of their parents, the child’s grandparents, to sanction their marriage or liaison and assist them.
The female applicant was questioned by the Tribunal as to her involvement in Christianity. It would appear that although she claimed that she had been caught attending a church meeting in 2008 that her evidence was that she only began to take a real interest in Christianity after she left China for Australia, although this was before the 2008 visit. She told that she had attended the house church twice but had not otherwise been involved in church activity. She was not involved in church activity in Australia until after she became pregnant when she turned to the church for support in her situation. She says that she was baptised at a family church in Berala.
The Tribunal questioned the applicant about her knowledge of Christianity in a way that indicated that she did have a certain familiarity with some of the basic tenets of that religion at [121]:
“[77]The Tribunal considered whether the applicant is a genuine practising Christian. In this context the Tribunal notes that despite having claimed that she practised Christianity, beyond displaying a very basic knowledge of the Christian religion, apart from the tenets of the religion that are common knowledge, she knew little about Christianity despite claiming to have her own Bible and to have read it. For example, her account of the meaning of the Lord’s Prayer was inaccurate. Her account of the Old Testament being about the story of humans and Jesus was clearly incorrect. She was not aware of who Mary Magdalene or Lazarus were. … She was unable to name Good Friday as the day of the crucifixion of Jesus….
[78]The Tribunal considered the applicant’s knowledge of Christianity.”… [CB 121]
It notes that she claimed to have followed the religion for a lengthy period of time and has claimed to have attended churches in China and Australia and to have been baptised in Australia.
“[79]The Tribunal finds that the applicant’s knowledge of Christianity is not commensurate with that of a genuine practising Christian. Given that the applicant has not been a genuine practising Christian, the Tribunal finds that there is no real chance that as a result of future conduct as a genuine practising Christian she would face persecution in the PRC. The applicant testified that her husband merely follows her in terms of her religious beliefs. Given these factors, the Tribunal finds that the applicants are not genuine practising Christians. The Tribunal finds that as his parents are not genuine practising Christians that there is no real chance that the minor applicant would face persecution in the PRC for reasons of religion.”
The Tribunal also made findings contrary to the applicant in relation to her claims about her persecution arising from having a child born out of wedlock citing independent country information which it preferred to that provided by the applicant at [CB 120]:
“[72]The Tribunal concludes that the applicants, the applicant, her partner and the minor applicant would not face persecution for reasons of any breach of family planning laws in China, and that in any event, any impact on them would not amount to persecution for any Convention-related reason, and that any harm caused would not amount to persecution as it would not be the result of discriminatory conduct, but rather would be the result of the implementation of a law of general application.”
The views expressed by the Tribunal in relation to the family planning issue are orthodox and have been repeated time and time again. The views expressed by the Tribunal in relation to the applicant’s alleged fear arising out of her adoption of the Christian religion are views to which the Tribunal was entitled to come to based upon the evidence put to it. There was therefore, on the face of it, nothing in the Tribunal’s findings and reasons that would indicate a jurisdictional error.
On 16 March 2012 the applicant filed an application with this court. There were three grounds of the application. The first was the “RRT considered our case unfairly”. The second was the “RRT did not consider our situation in China.” The third was “I will be put in jail if I go back.” The first ground has not been particularised so that the court is unable to say whether it indicates some jurisdictional error on the part of the Tribunal. The second ground is clearly incorrect as the applicant’s situation in China was the very thing that the Tribunal was looking at. The third ground is a statement of fact the Tribunal has rejected.
The applicant appeared before me today and told me that the Tribunal did not look at the matter from her perspective. That, of course, is not the function of the Tribunal. The function of the Tribunal is to decide whether or not it is able to be satisfied that the applicant is a person to whom Australia owes protection obligations. In any event the Tribunal most certainly did look at the matter on the basis of the evidence of the applicant. It just did not agree with her that she will be liable to persecution for convention reasons should she return. The applicant told me that as a mother she hoped her children would not experience what she has. It is not entirely clear what experience she was referring to but in any event this is an argumentative request for merits review that the court cannot provide.
Cases of this type have become distressingly familiar. Young Chinese students arrive in the country on student visas. Within a short period of time they abandon their studies and enter into de facto relationships with other former students and after the birth of children make the type of claims that are made by this applicant. This applicant has another child for whom no doubt claims will also be made. Given the inevitability of the failure of these claims it seems to me to behove the immigration authorities and the Chinese community to, at the very least, put forward an educational program to assist these young and vulnerable people. Other policy or legislative options might be contemplated which will have the effect of relieving the Department, the Tribunals and the Courts of this extra burden.
The applicant has been unable to satisfy me that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. I dismiss the application. The Applicant is to pay the First Respondent’s costs which I assess in the sum of $5,000.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 9 October 2012