SZRHW v Minister for Immigration

[2012] FMCA 1108

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRHW & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 1108

MIGRATION – Review of decision of Refugee Review Tribunal – no jurisdiction to review primary decision-maker’s decision after merits review – whether Tribunal did not apply procedural fairness.

Migration Act 1958 (Cth), ss.422B, 424A, 425

Wang v Minister for Immigration & Anor (2000) 105 FCR 548
Selvadurai v Minister for Immigration & Anor (1994) 34 ALD 347
Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALR 261

First Applicant: SZRHW

Second Applicant: SZRHX

First Applicant: SZRHY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 740 of 2012

Judgment of: Raphael FM

Hearing date: 15 November 2012

Date of Last Submission: 15 November 2012

Delivered at: Sydney

Delivered on: 15 November 2012

REPRESENTATION

For the Applicants: In person

Solicitors for the First  Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. First and Second Applicants to pay the First Respondent’s costs assessed in the sum of $4,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 740 of 2012

SZRHW

First Applicant

SZRHX

Second Applicant

SZRHY

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There are three applicants in these proceedings.  The first named principal applicant, who is a citizen of the PRC, arrived in Australia on 25 July 2007 as the holder of a student visa.  The second applicant is another Chinese citizen who is in a de facto relationship with her.  He also came to Australia on a student visa.  And the third applicant is their child who was born in July 2010.  Since that child was born another child has been born to the first and second applicants.  That child is not a party to these proceedings although her existence was noted by the Tribunal who made certain findings in relation to claims that appear to have been made on her behalf. 

2. The first named applicant made an application for a protection (Class XA) visa on 18 February 2011 together with the second and third named applicants who completed the forms as members of her family unit being persons without claims of their own to be a refugee.  On 23 March 2011 a delegate of the Minister refused to grant the protection visas and the applicants applied to the Refugee Review Tribunal for review of the delegate’s decision on 12 April 2011.  The applicants were interviewed twice by the Tribunal at hearings in which they were accompanied by a Mandarin interpreter.  On 14 March 2012 the Tribunal determined to affirm the decision under review. 

3. The grounds upon which the principal applicant claimed to be a person to whom Australia owed protection obligations were:

   i)  That she was a Christian born of parents heavily involved in the local church movement in their state of Fuqing who had been arrested and detained as a result of their proselytising and other activities.  The applicant claimed to fear that she would be arrested, should she return.  One of the principal reasons for this fear is said to be the existence of certain documents entitled Arrest Notice, Release Notice, Summons Certificate which were said to establish that the parents had been arrested, that the mother had been released, although the father was still allegedly detained, and that the applicant herself was required to attend before the Public Service Bureau on 1 May 2011 for interrogation relating to the spreading of illegal materials.  The spreading of illegal materials is said to have come about after an aunt of the second applicant had visited the couple after the birth of the first child.   It is said that the aunt was provided by the couple with some Christian materials which were hidden in her case but were found upon her arrival in the PRC.  It is said that the aunt was interrogated and confessed that the information or materials had been provided by the first principal applicant.

   ii) The second basis upon which the group claimed Australia’s protection arose out of the birth of the children.  They claimed that the children were born out of wedlock to persons who were too young to be married and if they returned to China, they would be required to pay a social benefit fee in order for the children to obtain a Hukou and have the benefit of the education and social services, including medical services, provided by the state.  The adult applicants claimed that they would be unable to make a payment of this type and, as a result, the children would suffer.  One of the concerns that the adults had was that the social compensation payment was higher in respect of children born out of wedlock.

4. The Tribunal questioned the applicant and her partner on these matters.  It came to the conclusion that both the adults were Christians and did not disregard their attendance at church in Australia for the purposes of the proceedings.  However, it is clear that their church attendance in Australia was anodyne and does not appear to be part of their claims of fear of persecution should they return.  The Tribunal took a less favourable view of other elements of the applicant’s story.  It did not accept the alleged persecution of her parents or that the principal applicant was herself a participant in an unregistered family church in China.  Noting the admonition of the Federal Court in Wang v Minister for Immigration & Anor (2000) 105 FCR 548 that the Tribunal could not be considered an arbiter of doctrine the Tribunal set out in some detail commencing at [96] [CB 120] its reasons for concluding that:

   “[96]There are numerous and very significant inconsistencies and discrepancies in key aspects of the evidence provided by the first named applicant.  There are also components of the applicant’s evidence which the Tribunal finds to be wholly implausible.  The Tribunal does not accept that the documents which have been provided by the applicant are genuine documents.  The applicant’s claims regarding the experiences of her parents and her own fear of persecution for reason of her Christianity are not consistent with a substantial volume of independent country information which is extracted below.”

   The grounds for coming to those conclusions are set out [98] [CB 120-122]:

   “[98]The Tribunal has considered the evidence of the first named applicant during the second Tribunal hearing as to the reason for some of these inconsistencies.  She stated that the inconsistency as to how and when the illegal materials made their way into the aunt’s luggage may have been due to a translation error.  However, the inconsistency pertains to two quite different means of the material being packed, who packed it and when it was packed and the Tribunal does not accept that it can be explained solely by a translation error.  In respect of the content of the Summons Certificate, the applicant has submitted that what it actually means when it states that you must attend at 9.30 pm on 1 April is that you must attend at any time prior to that date and time.  Given the legal nature of a Summons document, the Tribunal does not accept that its meaning is something other than what is clearly stated in its content.  The applicant’s evidence does not explain the very significant discrepancies in the applicant’s evidence that the summons required her to go back to China within 60 days, (according to her written statement), that it required her to attend the PSB within thirty days of the summons being issued (in her oral evidence) and the actual content of the summons which requires her to attend on 1 April.  The Tribunal therefore does not accept the applicant’s evidence regarding the content of the document and does not accept that it is genuine.”

5. The Tribunal then goes on at some length to give reasons for its declining to accept the applicant’s evidence and for coming to a conclusion that the corroborative documents were not genuine.

   “[105]Because the Tribunal does not accept that the applicant sent illegal materials to China or that her parents were the subject of adverse attention as a consequence, or that the documents discussed in the preceding paragraphs are genuine documents, the Tribunal also does not accept that the document purporting to be an Arrest Notice in respect of the applicant’s parents is a genuine document.”

6. The Tribunal also took into consideration, as it was open for it to do, Selvadurai v Minister for Immigration & Anor (1994) 34 ALD 347, the delay in making the application for a protection visa. It also set out independent country information which led it to a view that religious tolerance was, in fact, quite reasonable and widespread in Fujian province and it was unlikely that persons would be persecuted for being ordinary members or attendees of local churches.

7. The Tribunal questioned the second- named applicant and then:

   “[135]The applicant told the Tribunal that he never experienced any harm in China and he is not sure whether he fears any harm for this reason if he returns to China.

   [136] The Tribunal accepts the applicant is a Christian.  However based on the applicant’s evidence that he has never experienced any harm in China for reason of his religion and that he is not sure whether he fears future harm for this reason, the Tribunal finds that the applicant does not have any subjective fear of harm for reason of his Christian religion if he returns to Fujian province now or in the reasonably foreseeable future.”

8. In regards to the claims arising out of the birth of the children the Tribunal cited a considerable quantity of independent information relating to the collection by the Fujian province of the social compensation fee and the amount thereof.  It also dealt with the application of Chinese law to overseas born children and children being born out of wedlock. 

   “[151]The applicant’s evidence is that they are unmarried and that they fear returning to China due to the strict marriage and children rules.  The Tribunal accepts that the applicants are not married.  The applicant’s evidence is that they had not reached the legal age of marriage in China when they had their children and therefore would be unable to register their children without payment of a fee.  The Tribunal accepts that the applicants were below marriageable age in China when they had their children.  The Tribunal also accepts that the applicants have two children and that they will be liable to pay a fine pursuant to the Population and Family Planning Regulation of Fujian Province in order to subsequently have their children registered on their Hukou if they return to China. 

   [152]At the second Tribunal hearing, the applicants gave evidence they did not have the money to pay any fines and they are not working and they are receiving assistance from the Red Cross, and the first-named applicant’s parents are no longer running their petrol station. …  When the Tribunal put to the applicant’s country information indicating that any fines and applicable household registration fees would be of much smaller amounts, the applicant stated she was not sure, but that her mother had told her that the authorities were very strict about such things…

   [153] For the reasons set out previously, the Tribunal does not accept the applicant’s parents are no longer operating a petrol station.  The Tribunal notes that the first and second-named applicants are of working age.  Further, the applicants have, in the past, been able to raise sufficient funds to travel to Australia as students and to remain in Australia for several years.  They have supported themselves in Australia during this period and the second-named applicant has been working in the building industry and has work experience he can draw on in the future.

   [154] The evidence before the Tribunal indicates that the applicants could work if they returned to China.  According to country information set out above, couples who are unable to pay the applicable fine immediately may apply to pay by instalments.  Accordingly the Tribunal does not accept that the applicants would be unable to pay the applicable social compensation fees for their children, and the Tribunal does not accept that the children would not be registered.”  [CB  134]

9. The Tribunal concluded that having assessed each of the applicant’s claims individually and cumulatively it did not accept that they faced a real chance of serious harm for convention reason now or in the reasonably foreseeable future if they return to China.

10. On 3 April 2012 the applicants filed an application with this court seeking review of the decision of the Tribunal.  There were two grounds for that application.  The first was:

    “RRT and Immigration Department denied my evidence without conscience.”

11. There are no particulars to this ground.  As Mr Jones says, in his helpful written submissions, to the extent that the grounds cavil with the decision of the delegate it is not relevant.  That is a primary decision which this court does not have power to review but, in any event, it is now well-established that a merits review of a previous decision of a delegate has the effect, if conducted lawfully, of curing any problems that may have arisen in the delegate’s decision: Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) ALR 261 at [28] to [32].

12. It is not entirely clear what the words “denied my evidence without conscience” really mean.  When the applicant appeared before me today she told me that the member failed to consider her evidence in her shoes.  I think that what it amounts to is the applicant believes that the Tribunal should have accepted her evidence which makes her complaint one seeking impermissible merits review from the court.

13. The second ground was:

    “RRT failed to comply with procedural fairness”

    Again, there is no particularisation of this ground. Procedural fairness in matters of this nature are governed by a code contained in s.422B of the Migration Act 1958 (Cth)[1] which is an exhaustive statement of the natural justice hearing rule. It requires the Tribunal to ensure that an applicant is given an opportunity to give evidence and present arguments at a hearing convened in accordance with s.425 of the Act. It requires the Tribunal to give certain information to an applicant that may be the reason or part of the reason for determining the decision under review and it provides exclusions from that rule. In this case the applicant received two hearings from the Tribunal and was clearly able to give evidence and present arguments because that is exactly what happened. The independent country information which the Tribunal cited was discussed with the applicant and, in any event, was excluded from the provisions of information under s.424A(3)(a).

    [1] “Act”

14. When she appeared before me today the applicant told me that the Member had just downloaded information from online and used it to reject her application.  I am unaware of exactly how the Tribunal got the information which it had.  I am aware that the Tribunal has an extensive library of independent country information, some may well be available online.  That is not a ground for setting aside a decision.  It is for the applicant to establish for the satisfaction of the Tribunal that she is the person to whom Australia owes protection obligations.  If she is unable to do so because of the prevalence of independent country information then there is no jurisdictional error in that.

15. Having considered the decision record of the Tribunal I am of the view that it does not reveal any indication of jurisdictional error in the manner in which the decision was reached.  The application must therefore be dismissed.  I order that the First and Second Applicants to pay the First Respondent’s costs assessed in the sum of $4,000.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  4 December 2012