SZRMX v Minister for Immigration
[2012] FMCA 1206
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRMX & ORS v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 1206 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether Refugee Review Tribunal considered all claims made - whether Refugee Review Tribunal was obliged to investigate the applicants’ claims further – whether the Refugee Review Tribunal’s decision was affected by bias or apprehended bias – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 474, Pt.8 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012); Minister for Immigration and Citizenship v SZIAI [2009] HCA; NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668; |
| First Applicant: | SZRMX |
| Second Applicant: | SZRMY |
| Third Applicant: | SZRMZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1145 of 2012 |
| Judgment of: | Emmett FM |
| Hearing date: | 12 December 2012 |
| Date of Last Submission: | 12 December 2012 |
| Delivered at: | Sydney |
| Delivered on: | 12 December 2012 |
REPRESENTATION
| The applicant appear in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Michelle Stone, DLA Piper Australia |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1145 of 2012
| SZRMX |
First Applicant
| SZRMY |
Second Applicant
| SZRMZ |
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Pt.8, Div.2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 30 April 2012 and handed down on 29 April 2012.
The applicants claim to be citizens of the People’s Republic of China and of Christian faith. The second named applicant is the defacto partner of the first name applicant (“the Applicant”) and whose claims are entirely dependent on those of the Applicant’s.
The third named applicant (“the Child”) is the son of the first and second named applicants born 8 March 2011. The Child’s claims were made as part of the family unit of the Applicant. However, the Tribunal accepted that claims were made by the Applicant that the Child may suffer persecution in China as a ‘black’ child if he was to return to China. The Applicant was appointed as the ligation guardian the Child in Orders made by this Court on 14 June 2012.
Prior to considering the proceeding before this Court, these Reasons provide the relevant procedural background, a summary of the legislative framework, a summary of the Applicant’s protection visa application claims and the decision of the delegate of the First Respondent (“the Delegate”) and a summary of the Tribunal’s review and decision.
Background
The Applicant arrived in Australia on 15 March 2010, having departed legally from China on a passport issued in her own name and a Student TU572 visa. The Applicant’s partner arrived in Australia on 4 July 2007, having departed legally from China on a passport issued in his own name and on a Student TU571 visa. The Child was born in Australia on 8 March 2011.
On 10 June 2011, the applicants lodged applications for a protection visas with the Department of Immigration and Citizenship (“the Department”).
On 1 September 2011, the Delegate refused the applicants protection visas.
On 9 September 2011, the applicants lodged an application for review of the Delegate’s decision with the Tribunal.
On 29 April 2012, the Tribunal affirmed the decision of the Delegate.
On 28 May 2012, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
In their written submissions in SZRLA v Minister for Immigration and Citizenship & Anor (SYG929/2012), Minter Ellison, the solicitors for the first respondent, attached a useful summary of the relevant legislative scheme. That summary is as follows:
“1. Under section 65(1) of the Act, the first respondent may grant a visa if he is satisfied of a number of matters, including that the prescribed criteria for the particular visa have been satisfied.
2. Section 31(1) of the Act provides that there are to be prescribed classes of visa. One class of visa is a Protection (Class XA) visa (Regulation 2.01 of the Migration Regulations 1994 (the Regulations) and to the Regulations).
3. Section 36(2)(a) of the Act provides that:
(2) A criterion for a protection visa is that the Applicant for the visa is:
(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.
4. The 'Refugees Convention' is defined in section 5 of the Act as meaning the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The 'Refugees Protocol' is defined in that section as meaning the Protocol relating to the Status of Refugees done at New York on 31 January 1967.
5. Subject to certain exceptions, provided for in section 36(3) of the Act, Australia has protection obligations under the Refugees Convention to persons who satisfy the definition of 'refugee' in Article 1 of the Refugees Convention. Article 1A(2) of the Refugees Convention defines a refugee as a person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
6. Section 36(2)(aa) of the Act provides that:
(2) A criterion for a protection visa is that the applicant for the visa is:
(aa) a non-citizen in Australia (other than a citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm.
7. Under section 411(1)(c) of the Act, a decision to refuse to grant a protection visa is a decision which may be reviewed by the second respondent.
8. Relevantly, in conducting that review, the second respondent must comply with the natural justice hearing rule, the requirements of which are exhaustively stated in Division 4 of Part 7 of the Act (section 422B(1) of the Act). That Division contains sections 424A and 425, which provide that:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
9. Under section 474(2) of the Act, a decision of the second respondent is a 'privative clause decision'. Under section 474(1)(a) of the Act, a privative clause decision is final and conclusive.
10. However, a purported decision of the second respondent which is affected by jurisdictional error is not a decision which is made under the Act and therefore is not a privative clause decision: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.”
The Applicants’ application for a protection visa
The Applicant provided a statement in support of the protection visa applications in which she stated that she attended an illegal family church in China. She met her partner, the second named applicant, when she arrived in Australia and became pregnant to him in May 2010 with the Child.
The Applicant claims that her partner’s family in China do not accept her or the Child and that her partner had not yet reached legal marital age in China. The Applicant claimed that the applicants would be discriminated against and financially punished because of their violation of the Family Planning Law. The Applicant claimed that the applicants could not afford to pay any fine that would be imposed by Family Planning and would lead to the Child being unregistered, socially abandoned as a black child and ineligible for social welfare.
The Applicant claimed that in Australia she joined a Church and was baptised.
The Delegate’s decision
On 28 July 2011, the Applicant attended an interview with the Delegate.
On 1 September 2011, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.
The Delegate found that any discrimination that the Child may face, if he was returned to China, would not be sufficiently serious to constitute persecution.
Otherwise, the Delegate disbelieved the Applicant’s claims made to the Delegate that fines were levied upon her family in China by the Public Security Bureau in China as punishment for her claimed attendance at the illegal church in China. The Delegate found that the Applicant had little knowledge of Christianity.
The Tribunal’s review and decision
On 9 September 2011, the applicants lodged an application for review of the Delegate’s decision by the Tribunal.
The applicants provided further documents in support of their review application.
On 5 January 2012, the Tribunal wrote to the applicants informing them that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the applicants to attend a hearing on 28 February 2012 to give oral evidence and present arguments.
On 28 February 2012, the Applicant attended the hearing and gave evidence.
On 28 March 2012, the Tribunal wrote to the applicants informing them that after the date of their hearing with the Tribunal, new alternative criteria for the grant of a protection visa were introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth). The applicants were invited to attend a second hearing on 24 April 2012 to give oral evidence and present arguments as to whether they met the alternative complementary protection criteria.
On 24 April 2012, the Applicant attended a second hearing and gave further evidence.
The decision of the Tribunal is accurately summarised by the solicitor for the First Respondent in her written submissions as follows:
“12. The RRT did not accept that the applicant had attended an underground Church in China.[1] The RRT considered that her account was vague and lacking in circumstantial detail, and that she gave little impression that she was speaking from first-hand experience.[2] The RRT also considered some aspects of the applicant's account to be implausible.[3]
13. The RRT accordingly did not accept that the applicant had been found by the police to have attended the church, that her parents were forced to pay a fine or that the first named applicant was adversely known to the Chinese authorities as claimed.[4]
14. The RRT accepted that the applicant attended the Local Church in Sydney, and had been baptised. The RRT was not satisfied that this was for any purpose other than strengthening her refugee claims, and accordingly disregarded that conduct pursuant to section 91R(3) of the Act.[5]
15. The RRT was not satisfied that the applicant would worship in a Local church or an underground Church in the future in China, on the basis that she had not done so previously and her Church attendance in Australia was undertaken for the purpose of strengthening her claims.[6]
16. The RRT did not accept that the applicant had sent material about the jasmine revolution to China over the internet or that she had come to the adverse attention of the authorities for this reason.[7] In reaching this conclusion, the RRT considered the applicant's evidence on this issue to be vague, and also had regard to its overall view of her credibility.
17. The RRT accepted that the applicants' families did not approve of their relationship or of their having a child together. However the RRT was not satisfied that this extended to either family having an intention to physically harm the applicants.[8] The RRT did not accept that the applicants would suffer serious harm in China as the result of not having the support of their parents.[9]
18. The RRT accepted that the applicants would need to pay a social compensation fee in order to register the third named applicant.
18.1 The RRT considered that the family planning laws were laws of general application and concluded that the first and second named applicants were not at risk of persecution as the result of the application of those laws.[10] The RRT also found that the payment of the fine would not amount to significant harm for the purposes of the complementary protection measures under the Act.[11]
18.2 The RRT then considered the claims advanced on behalf of the third named applicant, that he would suffer discrimination as a "black child". The RRT found that the applicants would be able to pay the social compensation fee and register the third named applicant. He would therefore not be a part of the particular social group of 'black children' and would be able to access education, medical and other services.[12]”
[1] CB 164 [100]
[2] CB 163 [96]
[3] CB 163 [97]-[99]
[4] CB 164 [100]
[5] CB 164 [104]
[6] CB 164 [105]
[7] CB 165 [107]
[8] CB 166 [111]
[9] CB 166 [113]
[10] CB 166-167 [114]
[11] CB 168 [121]
[12] CB 167 [115]-[117]
The proceeding before this Court
The Applicant and the Child attended the hearing before this Court, although were unrepresented. The Applicant had the assistance of a Mandarin interpreter.
On 14 June 2012, the Applicants attended a directions hearing before me. I explained to the Applicant that this Court had no power to interfere with the decision of the Tribunal, unless the Court is satisfied that the Tribunal’s decision is affected by a mistake going to the jurisdiction of the Tribunal. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court. The Applicant confirmed that she wished to continue with the application. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, including any transcript of the Tribunal hearing, as well as submissions in support.
At the directions hearing, the applicants were referred to the Court’s Legal Advice Scheme for free legal advice. The applicants have participated in the Court’s Legal Advice Scheme and received free legal advice. The Applicant was also provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
At the commencement of the hearing, the Applicant confirmed that the applicants had not filed any amended application, evidence or submissions in support of their application for judicial review and that had no further documents to present to the Court this morning.
The Applicant confirmed that the applicants relied on the grounds contained in the application filed on 28 May 2012 which is in the following terms:
“1. I am a Chinese citizen and Christian who has been persecuted by Chinese government. I had been warned by the corrupted government and police.
2. I can not go back to China since I am very scared to be persecuted and affect my family in particular my child.
3. Tribunal didn’t pay enough attention to the affection on my innocent child if I am forced to return.
4. Tribunal didn’t pay enough attention to the facts I have sufficiently explained as well as the evidences provided after the hearing.
5. RRT consider our case unfairly. Tribunal judged by personal assumption in my case, whilst ignoring an investigation in particular the facts do not exist in our cultural background.
6. I have strong feeling that the Tribunal member showed her bias attitude in my case, and this is absolutely not the fact and I feel strongly angry about such judgment which is unfair and unprofessional”
Each of the grounds was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of each of the grounds and in support of the application generally.
None of the grounds were supported by particulars, evidence or written submissions.
In relation to Grounds 1 to 4, I asked the Applicant what were the facts to which she says the Tribunal did not pay enough attention. The Applicant responded that they related to her child. She said that her partner’s mother in China would take the Child from her. Otherwise, the Applicant had nothing further to say.
The Tribunal’s decision record notes the Applicant’s claim that she and her partner could not afford the fine required to register the Child in China, thus he would be a black child and deprived of access to social welfare. The Tribunal accepted that the Child may be said to fear harm in his own right and that the relevant convention ground for the fear would lie in his membership of the particular social group consisting of unregistered (black) children.
The Tribunal’s decision record discloses that the Tribunal explored those claims with the Applicant in thorough detail at the second hearing on 28 February 2012. The Tribunal put to the Applicant concerns it had about those claims and noted her responses.
Ultimately, the Tribunal was not satisfied that there was any reason why the Applicant and her partner would be unable to find employment in China. The Tribunal was not satisfied that the Applicant and her husband would be unable to pay any fine required to register the Child. The Tribunal noted conflicting information before it about a fine payable for a first child born out of wedlock in Fujian. The Tribunal found that even if the higher fine was payable, it would still be substantially less than the annual tuition fees that the Applicant and her partner would have to pay in Australia.
Further, the Tribunal noted that, based on country information before it, the household registration of the Applicant and her partner would enable them to register the Child even if they were unmarried.
The Tribunal was not satisfied that there was a real chance that the Child would suffer serious harm as a member of the particular social group of unregistered children or from social stigmatisation as the child of unmarried parents.
In the circumstances, a fair reading of the Tribunal’s decision record makes clear that the Tribunal considered the Child’s claims and was not satisfied that he had a real chance of harm if he was to return to China and was therefore not satisfied that the Child has a well founded fear of persecution for a convention reason in China, now, or in the reasonably foreseeable future.
The Tribunal also considered the Child’s claims in the light of the complementary protection obligations in accordance with s.36(2A) of the Act and s.36(2)(aa) of the Act and concluded that Australia had no such protection obligations to the Child.
Those findings and conclusions were open to the Tribunal on the evidence and material before it and for the reasons it gave.
Accordingly, Grounds 1 to 4 are not made out.
In relation to Grounds 5 and 6, the Applicant said that she spoke the truth and that other people who had lied had been granted protection.
To the extent that Ground 5 appears to suggest that the Tribunal did not accept the Applicant’s claims and should have investigated her claims, the Tribunal has no such obligations.
It is well established that the Tribunal is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
There is no general obligation on a Tribunal to investigate an applicant’s claims (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ (Gleeson CJ agreeing); Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20] per Black CJ, Sundberg and Bennett JJ in joint judgment).
The duty imposed on the Tribunal by the Act is a duty to review and not a duty to enquire. There is no obvious failure by the Tribunal in the case before this Court to make an obvious enquiry about a critical fact, the existence of which is easily ascertained, and none is identified by the Applicant (Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [25] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
It may be that, in certain circumstances the Tribunal may be obliged to make some further investigation (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [20]; VCAK of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 459 at [27]; WAGJ of 2002 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 277 at [21], [24] and [25]; W389/01A v Minister for Immigration and Multicultural Affairs (2002) FCR 407 at [74]-[78]; NAYU v Minister for Immigration and Multicultural Affairs [2004] FCA 528 at [18]-[21]).
However, the case before this Court is not such a situation. The Applicant did not give any evidence of any degree of cogency that would have prompted an obligation on the part of the Tribunal to investigate his claims further.
Moreover, the Tribunal’s decision record does not suggest that any request was made by the Applicant to investigate any particular aspect of her claims.
There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 14 June 2012, the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was also directed to give notice if she wished to rely on recordings of the hearing. However, no step was taken by the Applicant to rely on any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing. The Court is entitled to accept the Tribunal’s decision record as accurately reflecting the matters to which it refers as taking place at the hearing in the absence of any evidence to the contrary (NAFF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1).
To the extent that Ground 5 and Ground 6 allege bias on the part of the Tribunal, a claim of bias is serious and requires evidence, such as a transcript of the Tribunal hearing. Further, it is a rare and exceptional case where bias can be demonstrated solely from the published reasons of a decision. Similarly, the mere fact that the Tribunal makes adverse findings in respect of the Applicant does not give rise to an inference of bias or, by itself, suggest that the decision-maker approached its task other than with a mind open to persuasion (SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]).
As stated above, the Applicant was directed on 14 June 2012 by this Court to file and serve any affidavit containing additional evidence to be relied upon, including the transcript of the hearing, by 3 August 2012. As stated above, the Applicant confirmed at the commencement of the hearing before this Court that she had not filed any documents in accordance with the Court’s directions or otherwise, and had no documents to give to the Court this morning in support of her application for judicial review of the Tribunal’s decision.
A fair reading of the Tribunal’s decision does not disclose any prejudgment on the part of the Tribunal in the sense that the Tribunal was “so committed to a conclusion already formed as to be incapable of alteration, or of being persuaded differently, whatever evidence or argument may be presented.” (Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 205 CLR 507 at [69], [71]-[72], [127]).
A fair reading of the Tribunal’s decision does not suggest that the Tribunal approached its task other than with a mind open to persuasion. There is no evidence upon which a fair minded lay observer, properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal may not have brought an impartial mind in determining the application for review (Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27]-[32]; NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [115]).
Accordingly Grounds 5 and 6 are not made out.
Conclusion
A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at two hearings; and, had regard to all material provided in support. The Tribunal put to the Applicant matters of concern it had about her evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court should be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Emmett FM
Date: 12 December 2012
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