SZRJK v Minister for Immigration - [2012] FMCA 1041

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRJK & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1041

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 424AA

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28

First Applicant:

SZRJK

Second Applicant:

SZRJL

Third Applicant:

SZRJM

First Respondent:

MINISTER FOR IMMIGRATION AND CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 831 of 2012

Judgment of:

Barnes FM

Hearing date:

18 October 2012

Delivered at:

Sydney

Delivered on:

18 October 2012

REPRESENTATION

Applicants:

In person

Solicitors for the Respondents:

DLA Piper

ORDERS

The application is dismissed.
The first and second applicants pay the costs of the first respondent fixed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 831 of 2012

SZRJK

First Applicant

SZRJL

Second Applicant

SZRJM

Third Applicant

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 22 March 2012. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicants protection visas. The first named applicant (the first applicant) is a female citizen of China who first arrived in Australia as the holder of a student visa in 2007. The second named applicant (the second applicant) is the first applicant’s de facto partner and a citizen of China who first arrived in Australia on a different date in 2007. The third named applicant (the third applicant) is the son of the first and second applicants. He was born in Australia in April 2011.
The applicants applied for protection visas in June 2011. In a statement accompanying the protection visa application the first applicant claimed to fear harm in China on the basis of her Christianity and her attendance at Local Church gatherings in China. She also claimed to have sent information to “sisters” from her former family church since arriving in Australia and that this had brought her to the attention of the police in China. She claimed she had attended a family church in Sydney. The second applicant also made claims based on his claimed attendance at church in Australia. He did not claim to have attended church in China.
The first and second applicants attended an interview with the delegate. They claimed that they would be unable to get married or live together in China because their families did not agree with their relationship. They also claimed that their child would be discriminated against in China and would not have a good education because of his parents’ unmarried status. They claimed they would have to pay a fine for their child to be registered in order to be entitled to a good education and medical care and that they could not afford such a fine.
The application was refused and the applicants sought review by the Tribunal. They were invited to and attended a Tribunal hearing. The only evidence of what occurred at that hearing is the Tribunal’s reasons for decision. It is apparent that in the course of the hearing the Tribunal raised a number of issues with the applicants in accordance with s.424AA of the Migration Act 1958 (Cth). While the first and second applicants responded to some of this information immediately, the first applicant sought additional time to make inquiries and to respond to country information about the situation for children born out of marriage and about household registration in China.
The Tribunal gave the applicants additional time to respond. The applicants subsequently submitted a handwritten statement addressing penalties payable under China’s family planning laws and other matters. They also made additional claims. The applicants also submitted two letters from the Local Church in Sydney attesting to the attendance of the first and second applicants at church services since 31 October 2010.
The Tribunal invited the applicants to a further hearing. It recorded that it discussed the documents provided to the Tribunal and further country information with the applicants. Several issues were raised by the Tribunal. The Tribunal discussed with the applicants their evidence in relation to attending church in Australia as well as independent country information which differed from the applicants’ written claims about information provided to them by a friend in the Birth Control Office in their part of China. The Tribunal raised its concerns in relation to the applicants’ credibility and their motivation for attending church in Australia.
In its findings and reasons the Tribunal found that the applicants’ material claims lacked credibility and could not be accepted. Based on independent country information and inconsistencies in their evidence it found that the first and second applicants were not credible witnesses. It set out in detail its concerns about internal inconsistencies and implausibilities as well as differences between the applicants’ claims and country information.
Included in those concerns were inconsistencies between the first applicant’s account in her written statement and her evidence at the Tribunal hearing of how she was introduced to Christianity. In addition her evidence at the hearing changed over time.
The Tribunal found that the first applicant’s claim that her parents were unaware of her church attendance until the police contacted them in June 2006 was “highly implausible” given that she was only 15 years old at the time and was attending boarding school and coming home for the weekends. The Tribunal also had regard to inconsistencies in the applicant’s evidence in relation to her church gatherings being raided and her subsequent arrest. It addressed, but did not accept, her explanations in this respect. It also had regard to the fact that the second applicant’s evidence at the Tribunal hearing was not consistent with the first applicant’s written statement.
The Tribunal was of the view that if the first applicant’s parents had been “criticised, warned, threatened and required to pay a fine by the Chinese authorities” and her school had “suspended her and warned her that she would not be able to graduate” if she continued to attend family church gatherings, then her parents would have stopped her from attending. It found the applicant’s claims that she continued to attend family gatherings despite her claimed arrest and warnings, being beaten by her parents and warnings and threats from her school to be “highly implausible”.
The Tribunal was of the view that if the first applicant was as committed to her beliefs and to attending family gatherings in China as she claimed, she would have started attending a Local Church in Australia soon after her arrival in 2007, particularly as she could have done so without risk to herself or her family. However she did not do so until October 2010. The Tribunal did not accept her explanation that she made unsuccessful inquiries about the existence of Local Churches in Australia in 2007. It found that this claim was inconsistent with her written statement to the Department.
The Tribunal also found that the applicant’s explanation for why she sent material to China over the internet was implausible and that her account at the hearing was not consistent with her written statement. It was of the view that if the first and second applicants were in a relationship since 2005 and the claimed significant events had occurred in 2006, the first applicant would have told the second applicant about these events at the time and not several years later, as was his evidence.
The Tribunal had regard to the first applicant’s knowledge of the Bible in light of her claims about her involvement in Christianity and that she had read the Bible. It found that her answers “demonstrated a very limited knowledge of the Bible” and were not consistent with her claims that she started attending a Local Church in 2006 and studied the Bible in family gatherings. The Tribunal was of the view that this raised serious concerns about the first applicant’s credibility, the veracity of her claims and her motivation for attending the Local Church in Australia.
Based on the letters from the Local Church, the Tribunal accepted that the first and second applicants had attended a Local Church in Sydney since 31 October 2010 and that they had been baptised. However it found that notwithstanding the second applicant’s claim that he attended church on Sundays except when work commitments prevented him from doing so and that he read the Bible, when he was asked about the Bible he was only able to answer one question. It did not accept that the second applicant had read the Bible.
The Tribunal addressed the applicants’ claims in relation to the effect of having had the third applicant. In particular they claimed that if they returned to China they would be fined for breaching the one child policy by having a child without being married and because they were under marriageable age at that time. The first applicant claimed that they could not afford to pay the fine, that the child would be discriminated against due to his parents’ unmarried status, that he would not be able to obtain a “hukou” (family household registration) if the fine was not paid and that “this [would] impact on his ability to access education and medical services”.
The Tribunal found that the applicants’ claims regarding the one child policy in the part of China from which they came, the amount of the expected fine and their inability to pay the fine were not consistent with country information to which it referred. It relied on the country information in finding that it did not accept that the first applicant was under marriageable age at the time of the child’s birth. It accepted that the second applicant was under marriageable age and that they would be required to pay a “social compensation fee” because the father was under marriageable age at the time of birth and the child was born out of wedlock.
However, the Tribunal found that the amount of the fee would be the same or similar to a table under the Chinese Family Planning Regulations and significantly less than the applicants claimed. It also found, based on the country information before it, that the applicants would be able to marry and/or register the child without the approval of their families because they could obtain a copy of their household registration from the local police station. The Tribunal found that once they did so their child could be registered and the social compensation fee paid, and their child would be able to access public education and medical and social services.
The Tribunal did not accept that the first applicant would be unable to obtain a job in China or that she would be forced to work in a low paying job as she was an unmarried mother. Nor, having regard to the second applicant’s demonstrated commitment to the first applicant, did it accept that there was a real chance he would be forced by his parents to marry someone else, that the first applicant would be on her own and unable to marry someone else, or that the child would not be able to live with his parents. The Tribunal also found, having regard to country information, that there was no real chance that the first applicant would be forcibly sterilised should she return to China.
The Tribunal accepted that the first applicant “may face some discrimination” as an unmarried mother, but was not satisfied that this amounted to persecution. It was not satisfied that the first applicant had any subjective or objective basis for her claim that she would be forcibly sterilised.
Having set out these findings, the Tribunal summarised that it had considered the applicants’ claims “individually and cumulatively”. However having regard to inconsistencies within the evidence to the Tribunal, between the first applicant’s evidence to the Department and Tribunal, and between her claims and independent country information, as well as her failure to join a church in Australia until three and a half years after her arrival, her poor knowledge of Christianity and new claims raised late in the proceedings, it had serious concerns about her credibility and the veracity of her claims.
The Tribunal found that the first applicant was not a witness of truth and that she was prepared to fabricate her claims to give herself the profile of a refugee. It did not accept that she became interested in Christianity in 2006, that she attended church gatherings in China as claimed, that she was at a church meeting raided by police or that she was arrested, that she sent information from Australia to China, or that the Chinese authorities had any interest in her because of this. Nor did it accept the claims that the first and second applicants would be unable to get married in China or be unable to obtain household registration for their child. It accepted that they would need to pay a social compensation fee, but was satisfied that they would be able to pay the required amount and, based on their evidence, was satisfied they had the savings and capacity to pay in a lump sum so that the third applicant would be able to obtain registration and access to public education and medical and social services in China.
As indicated, the Tribunal did not accept the other claims made by the applicants. In the course of reaching its findings, the Tribunal had regard to the fact that it accepted that the first and second applicants started attending the Local Church in Australia in October 2010 and had been baptised. However it was not satisfied that their attendance was otherwise than for the purpose of strengthening their claims to be refugees for reasons which it gave. It had regard to their explanations in that respect, but disregarded that conduct under s.91R(3) of the Migration Act.
The Tribunal considered the claims in relation to the third applicant in the context of their impact on the first and second applicants, as well as in the context of claims in his own right, but found for no real basis for the claimed fears of persecution.
As none of the applicants was a person to whom Australia had protection obligations the Tribunal found that the other applicants could not satisfy the criteria applicable to family members of such a person. The Tribunal affirmed the decision not to grant the applicants protection visas.
The applicants sought review by application filed in this Court on 17 April 2012. The first applicant swore an accompanying affidavit in which she claimed they “need[ed] religion freedom” and “fear[ed] to go back to [China]”.
In the application there are four grounds which need to be read in conjunction with the orders sought. They are as follows:
Orders sought by Applicant
(Identify each order sought by way of final relief)
1, I disagree with Immigration and RRT’s decision. They did not consider that I will be in danger if I return.
2, RRT did not consider that I will be persecuted and in big trouble if I return home.
3, RRT member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application. RRT should grant my application.
The Grounds of the Application are:
1, I am a Chinese citizen and Christian shouter persecuted by Chinese government. I had been picked up and detained by Chinese police.
2, I have a fear of return because of my previous traumatic experience, and I am afraid of being detained and affect my child if I pursue my religion of family church in China. I am homeless in China
3, Tribunal’s decision is unfair and not prudent as it did not make ample consideration of my family situation as whole, in particular my Australian born child’s interest.
4, I have strong feeling that Tribunal member has prejudice in my case and made judgment based on her impression, instead of facts and evidences. I am a credible witness and innocent in judging of untrusted. I hope my case can be reviewed and finalized by the federal court with justice.
Before considering the grounds in the application, I note that the applicants did not file written submissions. At the hearing today, which only the first applicant attended, the only submission that she made was that they did not attend church in Australia for the purpose of supporting their application and that the Tribunal should have believed them on that matter. As indicated, the Tribunal disregarded the applicants’ attendance at the Local Church in Australia pursuant to s.91R(3) of the Migration Act. Such a finding was open to it on the material before it for the reasons that it gave. The applicant takes issue with the merits of the Tribunal finding. Merits review is not available in this Court.
Turning to the application, starting with the orders sought, the applicants “disagree with Immigration and RRT’s decision. They did not consider that I will be in danger if I return [and] did not consider I will be persecuted and in big trouble if I return home”. Insofar as these claims seek merits review, merits review is not available in this Court. Insofar as this is a contention that the Tribunal failed to consider any integer of the applicants’ claims (perhaps seen together with the first two grounds in which the first applicant claims to be a Chinese shouter persecuted by the Chinese Government who was picked up and detained by the police, to have a fear of returning to China, of being homeless and detained, and the effect on her child if she pursued her religion) it is apparent from the material before the Court that the Tribunal considered all aspects of the applicants’ claims, including those claims advanced on behalf of the child and the interaction between the claims made by each of the applicants.
There is nothing in the material before the Court to establish any claim that the Tribunal failed to consider any integer of the applicants’ claims. In particular, it clearly considered the position of the child and the bases for the first applicant’s claimed fears.
Ground three is that the Tribunal decision “did not make ample consideration of [her] family situation as whole, in particular [her] Australian born child’s interest”. This ground is contrary to the Tribunal’s detailed consideration of the claims of each applicant.
The applicants also complained that the Tribunal’s decision was “unfair and not prudent”. That claim can be seen in association with the claim (in the third order sought) that took issue with the Tribunal’s questioning at the hearing, which the applicant said made her feel “very up sad” (which may be intended to be “upset”). She claimed that the Tribunal did not trust her and that she did not think they had “the right attitude” to her application. Similarly, in ground four, she claimed that she had a “strong feeling” that the Tribunal member had “prejudice” in her case and made a judgment “based on her impression, instead of facts and evidences”. The first applicant claimed that she was “a credible witness and innocent in judging of untrusted”.
There is nothing in the Tribunal reasons for decision to suggest that the Tribunal’s questioning at the hearings was in any way inappropriate. Insofar as this may been seen as an allegation of actual or apprehended bias it is not made out on the evidence before the Court (see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 and Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28). It is the role of the Tribunal to question applicants as part of the review process and no jurisdictional error is established on that basis.

There is nothing in the Tribunal’s decision record or otherwise in the evidence before the Court to suggest that the Tribunal had a state of prejudgment or that from the perspective of the appropriately informed reasonable lay observer there was any basis for an apprehension of bias. Credibility findings are a matter for the Tribunal. The Tribunal’s adverse credibility findings in this case were open to it on the material before it for the comprehensive reasons which it gave. Insofar as the first applicant disagrees with the Tribunal’s factual findings, she seeks impermissible merits review.
More generally, there is nothing in the material before the Court to support any contention as to a denial of procedural fairness, whether by way of a failure to comply with provisions in the Migration Act or otherwise.
Insofar as the applicants’ claims repeat the claims to be entitled to the grant of protection visas, this seeks impermissible merits review and does not establish jurisdictional error.
As no jurisdictional error is established on any of the bases contended for by the applicants, the application must be dismissed.

RECORDED : NOT TRANSCRIBED

It is appropriate that the unsuccessful adult applicants meet the costs of the first respondent. The amount sought is reasonable and appropriate in light of the nature of this and other similar matters.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 12 November 2012