SZRMC v Minister for Immigration

[2012] FMCA 845

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRMC & ANOR v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 845

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – first applicant claiming persecution in China as a Christian and the mother of two children – applicant’s fears found not to be well-founded – second applicant a baby born in Australia – delegate not making a decision on the child’s claim for protection – Tribunal having no jurisdiction in the absence of a decision by the delegate.

PRACTICE AND PROCEDURE – Observations on the position of child applicants born in Australia and the availability of complementary protection.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994 (Cth)

Minister for Immigration v SZMDS (2010) 240 CLR 611
SZOOR v Minister for Immigration (2012) 127 ALD 1; [2012] FCAFC 58

First Applicant: SZRMC

Second Applicant: SZRMD

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1068 of 2012

Judgment of: Driver FM

Hearing date: 13 September 2012

Delivered at: Sydney

Delivered on: 13 September 2012

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents: Mr D Godwin

Solicitors for the Respondents: DLA Piper

ORDERS

1. The application is dismissed.

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1068 of 2012

SZRMC

First Applicant

SZRMD

Second 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 dated on its face 19 April 2012 and was certified on behalf of the Tribunal’s District Registrar the following day.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the first applicant a protection visa.  There were two applicants before the Tribunal, which is a matter of some significance. 

2. The following statement of background facts relating to the claims and circumstances of the applicants is derived from the Minister’s written submissions filed on 6 September 2012. 

1. The first applicant, a citizen of China, arrived in Australia on 7 March 2010 and applied for a protection visa on 18 July 2011. At that time, she was pregnant with her daughter, the second applicant. Not yet having been born, the second applicant was not included in that application for a protection visa at the time it was filed.

2. The second applicant was born on 22 September 2011.  The first applicant and the child’s father are no longer in a relationship.

3. On 13 October 2011, a delegate of the Minister made a decision refusing to grant a protection visa to the first applicant. No mention was made by the delegate of the second applicant.  On 16 November 2011, the birth of the second applicant was notified to the Minister’s Department.

4. The first applicant and (at least purportedly) the second applicant made application to the Tribunal on 14 November 2011 to review the delegate’s decision. A copy of the birth certificate of the second applicant was attached to that application for review.

First applicant’s claims

1. The first applicant claimed that she and her parents were members of an underground church in China.  She claimed that on 2 January 2010 her parents were arrested when attending a church service.  They were imprisoned for three months and tortured.  The first applicant escaped arrest as she was at work that day.  With the help of her uncle she fled to Australia.

2. The first applicant has a son in China who was born on 22 April 2006.  The son is living with his grandmother. The first applicant and her husband are separated.

3. The first applicant has been attending an Anglican Church in Australia since arriving here.

4. At the hearing before the Tribunal the first applicant claimed that the second applicant would have no status if they were to return to China because she was a second child born overseas who had no father.

The delegate’s decision

1. Based upon her poor knowledge of Christian doctrine, and some inconsistencies in her evidence, the delegate found that the first applicant’s claim to have been an underground Christian in China not credible.  The delegate accepted that the first applicant had attended Church in Australia and found that she could continue to do so at registered churches in China.  The delegate noted that the first applicant did not raise the status of her yet to be born daughter as a second child born out of wedlock.  Nevertheless the delegate observed that this status could be regularised by payment of a fine.[1]

   [1] CB 60

The Refugee Review Tribunal decision

1. In relation to the second applicant the Tribunal found that it had no jurisdiction as the delegate had not made a decision on the second applicant’s application.[2]  There was thus no Tribunal reviewable decision in relation to the second applicant.[3]

   [2] CB 109 [70]-[71]

   [3] Section 411 of the Migration Act 1958 (Cth) (the Migration Act)

2. The Tribunal accepted that the first applicant was a Christian who had been a member of the underground church as she claimed.[4]  The Tribunal found that the first applicant had no leadership role in the church and that she simply attended church gatherings.[5]  The first applicant’s profile was thus different to her parents.[6]

   [4] CB 110 [80]

   [5] CB 111 [81]

   [6] Ibid

3. Given that the first applicant was able to remain in her own house prior to her departure without the authorities seeking to detain her, and given that she was able to depart China without difficulty,  the Tribunal was not satisfied that the first applicant was of any interest to the authorities at that time and would be of any interest to the authorities on her return to China.[7]

   [7] CB 111[81]-[82]

4. The Tribunal found that the first applicant displayed a dislike of the beliefs and practices of the underground Church in China, and that she preferred the structure of the Church in Australia. As the first applicant denied that she had anti-CCP views, the Tribunal found that she would attend a registered Protestant church on her return to China.[8]

   [8] CB 111[83]

5. The Tribunal then considered the issue of the effect upon the first applicant of the status of the second applicant as an out of plan child. Based upon country information the Tribunal found that the second applicant could be registered if a fine was paid.  The first applicant would suffer financial harm by paying this fine but this was not serious harm. The family planning law was a law of general application and its operation was not discriminatory so any enforcement of it against the first applicant would not constitute persecution for this reason.[9]

   [9] CB 113 [90]-[92]

6. The Tribunal did not consider that the distress and financial hardship that the family planning laws would occasion to the first applicant met the parameters of significant harm such as to attract complementary protection requirements.[10]

   [10] CB 114 [93]

The judicial review application

1. These proceedings began with a show cause application filed on 16 May 2012.  There are three grounds in that application:

   1. RRT concluded that the applicant could attend registered Protestant churches in China as she does not hold anti-CCP views and provided no philosophical objection to attending a registered church in China (RRT decision record, paragraph 83).  RRT’s consideration of the applicant’s lack of political views is irrelevant to applicant’s claim as a persecuted religious believer.  (RRT decision record, paragraph 84)  The RRT’s reasoning in conclusion of the applicant being not a person of interest to the Chinese authorities is likewise as it falls into jurisdictional error by taking into political factors which is irrelevant to the central of the applicant’s claim.

   2. RRT has accepted the applicant as a credible witness (RRT decision record, paragraph 79), in which RRT should have accepted the applicant’s underground church activities in China.  The test for the risk of whether she will suffer significant harm was not applied correctly.  The Tribunal failed to consider that the applicant’s practical likelihood of being persecuted by local authorities in China.  Even for a religious practitioner without political opinion or anti-CCP views like the applicant would still face a chance of being persecuted.

   3. RRT finds that “more than two years has now passed since the arrest of her parents” then “there is no real chance that she would be a person of interest to the authorities if she was to return to China now”.  (RRT decision record, paragraph 82).  This finding is not substantiated by rational and logical reasoning and should not be conclusive.  The probative value of the length of the two years is marginal in terms of the person of interest to the authorities in China.  It would constitute error of law if the factual finding is not outcome of reasonableness.

2. The applicants continued to rely upon that application.  The application was supported by a short affidavit by the first application which I received as evidence.  I also had before me as evidence the court book filed on 18 June 2012. 

3. At the commencement of the trial of the matter today the first applicant also sought to tender a transcript of the interview between her and the Tribunal on 4 April 2012.  Counsel for the Minister objected to the tender.  By directions I had given on 14 June 2012 in this matter any transcript of the Tribunal hearing was to be filed and served by 12 July 2012.  A further difficulty is that the transcript is not verified by anyone.  I do not know who prepared it and there is no verification as to the qualifications of the person who prepared it.  I marked the transcript for identification.

4. During the course of argument the first applicant took me to page 35 of the transcript, lines 11 to 18:

   [TRIBUNAL MEMBER]:  Is there a reason that you haven’t provided any letter of support from the church or asked any member of the church to attend with you to support your claims?

   CLAIMANT (INTERPRETER):  Nobody ever told me this.  If I knew I can add that later.  And actually during the first interview at that time I provided her with a lot of pictures, and for example my baptism and also sermon from a priest among many pictures.

5. The applicant sought to use the transcript in order to support a contention of jurisdictional error by the Tribunal.  However, the applicant’s understanding of the particular exchange differed from what appears in the transcript.  I have concluded that I should receive the transcript as evidence of what occurred at the Tribunal hearing for the purpose of dealing with the applicant’s contentions. 

Consideration

1. It is necessary to consider the circumstances of the first and second applicants separately.  The first applicant asserts that the Tribunal took into account an irrelevant consideration when it made findings about the applicant’s political views in consideration of whether she would be persecuted for her religious beliefs.

2. I accept the Minister’s contention that the Tribunal made a factual assessment of what the likely conduct of the first applicant would be on her return to China to determine the likelihood of her facing persecution.  That was the central relevant matter which the Tribunal was required to make factual findings about.  What evidence bore upon that fact finding issue was a matter for the Tribunal, provided that it was addressing the relevant issue.  To the extent that the applicant asserts jurisdictional error there is no scope for the concept of irrelevant considerations in respect of simple fact finding of the nature engaged in by the Tribunal here.  As counsel for the Minister points out, if the answer to the factual question was that the first applicant would be persecuted then the issue would arise as to whether the persecution was because of her religious beliefs or political opinions.  That does not mean that the Tribunal cannot take into account political opinions in making findings about the antecedent question of what was likely to happen to the first applicant on her return to China.  I reject ground 1.

3. The first applicant’s second ground asserts that the Tribunal misunderstood the test of significant harm and that the Tribunal’s acceptance that she was a practitioner of an underground church was sufficient in itself to establish a practical likelihood of persecution.  In respect of this ground, I accept the Minister’s contention that the factual finding of the Tribunal was that the first applicant was not of any interest to the Chinese authorities because the authorities did not seek her at her home address prior to her departure and she was able to leave China without difficulty.  The Tribunal also found that the first applicant would not attend an underground church on her return to China.  Because the first applicant was not and would not be of any interest to the Chinese authorities the Tribunal found that she would not be at risk of any harm if she returns to China.  I accept the Minister’s contention that in this factual context there was no need for the Tribunal to apply its understanding of what the “significant harm” might be.  I reject ground 2.

4. The first applicant’s third ground attacks the Tribunal’s reliance upon the lapse of time since the arrest of her parents.  This is said to be irrational.  I reject that contention.  The Tribunal’s reasoning was perfectly rational.  The Tribunal reasoned that if the Chinese authorities had some interest in her by reason of her family relationship with her parents she was most at risk at the time the authorities took action against her parents.  In those circumstances the arrest of the first applicant’s parents was unlikely to make her of interest to the Chinese authorities more than two years later.  The Tribunal’s reference to the lapse of time since the arrest of her parents was at its highest a matter upon which reasonable minds could differ and it accordingly could not have amounted to jurisdictional error.

5. As counsel for the Minister notes, the threshold for establishing illogicality is very high.  Illogicality or irrationality will not amount to jurisdictional error if the point is one on which reasonable minds could differ or whether there is room for a logical or rational person to reach the same decision on the material before the decision maker.[11]  It is plain that the first applicant disagrees with the Tribunal decision.  However the merits of that decision are beyond the scope of these proceedings.  I reject ground 3.

   [11] See SZOOR v Minister for Immigration (2012) 127 ALD 1; [2012] FCAFC 58 and Minister for Immigration v SZMDS (2010) 240 CLR 611

The position of the second applicant

1. In relation to the second applicant, the Tribunal found that it had no jurisdiction on review because the delegate had not made a decision in respect of her.  The second applicant, as noted above, was born on 22 September 2011 while the delegate’s decision was made on 13 October 2011.  The delegate was plainly aware that the first applicant was expecting a child and may be taken to have been aware that the birth of the child was going to occur in the near future.

2. The effect of regulation 2.08 of the Migration Regulations 1994 (Cth) (the Migration Regulations) is that upon the birth of the second applicant she became a party to her mother’s protection visa application:

   (1)   If:

   (a)a non-citizen applies for a visa; and

   (b)after the application is made, but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen;

   then:

   (c)the child is taken to have applied for a visa of the same class at the time he or she was born; and

   (d)the child's application is taken to be combined with the non-citizen's application.

   (2)  Despite any provision in Schedule 2, a child referred to in subregulation (1):

   (a)  must satisfy the criteria to be satisfied at the time of decision; and

   (b) at the time of decision must satisfy a criterion (if any) applicable at the time of application that an applicant must be sponsored, nominated or proposed.

   Note    Regulations 2.07AL and 2.08AA apply in relation to an application by a contributory parent newborn child.

3. Section 65 of the Migration Act thereupon imposed on the Minister a duty to make a decision on any claims for protection made on behalf of the second applicant. I understand that no such decision has yet been made. The duty is, however, a continuing one. The Tribunal’s conclusion that it had no jurisdiction in respect of the purported review application by the second applicant was in my view correct but probably for the wrong reasons. Counsel for the Minister drew my attention to regulation 4.31A of the Migration Regulations:

   (1)   If:

   (a) 2 or more applicants have combined their primary applications for a Protection (Class XA) visa in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 2.08B; and

   (b)the Minister's decisions in respect of 2 or more of those applicants are that Protection (Class XA) visas not be granted; and

   (c)the Minister's decisions are RRT-reviewable decisions;

   the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister's decisions.

   (2)Subregulation (1) applies to an application for review made on or after 1 August 1996.

4. In my view, the effect of that regulation is that the second applicant was not able to make a valid review application to the Tribunal because her protection visa application had not been dealt with by the Minister’s delegate.  There being no valid review application before the Tribunal by the second applicant, the Tribunal could make no decision in respect of her.

5. Any misunderstanding by the Tribunal as to the specific legal position has no jurisdictional significance because the Tribunal correctly concluded for whatever reason that it had no jurisdiction in relation to the second applicant.  When the Minister determines the application of the second applicant she will have the opportunity to seek review before the Tribunal if the decision is adverse.  I note, in that regard, that the Tribunal properly gave consideration to the issue of complementary protection in respect of the first applicant’s claims.  No challenge was raised to that aspect of the Tribunal’s reasoning by the first applicant.[12]  It may be that closer consideration would need to be given to the issue of complementary protection in relation to the position of the second applicant.  The issue would be one of asserted degrading treatment.

   [12] The grounds of review advanced all related to the first applicant’s claims of persecution, notwithstanding the use of the expression “significant harm” in ground 2

6. Country information discloses that the second applicant’s birth would not be registered in China until the required social compensation fee is paid. Article 24 of the International Covenant on Civil and Political Rights (ICCPR) states relevantly that every child shall be registered immediately after birth. The Chinese policy does not appear to be consistent with that article, however it does not follow that unregistered children in China are by reason only of the fact of that lack of registration subject to degrading treatment. That issue would require consideration of, among other things, articles 2 and 7 of the ICCPR and the definitions in the relevant provisions of the Migration Act. That is a matter for consideration by the Minister’s delegate in relation to whatever claims may now be made on behalf of the second applicant.

1. I conclude that the applicants have failed to establish jurisdictional error by the Tribunal.  The Tribunal decision is therefore a privative clause decision and the application must be dismissed.  I will so order.

2. I will order that the first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Driver FM

Date:  18 September 2012