SZRPW v Minister for Immigration
[2013] FMCA 250
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRPW v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 250 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error. |
| Migration Act 1958 (Cth), ss.424A, 425 |
| Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230 Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 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 |
| Applicant: | SZRPW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1481 of 2012 |
| Judgment of: | Barnes FM |
| Hearing date: | 8 March 2013 |
| Delivered at: | Sydney |
| Delivered on: | 8 March 2013 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondents: | Ms K Morgan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant’s litigation guardian pay the costs of the first respondent fixed in the sum of $6,471.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1481 of 2012
| SZRPW |
Applicant
And
| MINISTER FOR IMMIGRATION & 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 12 June 2012. The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant a protection visa.
The Applicant is a child who was born in Australia in February 2010. He applied for protection in August 2011. The application was refused and, with the assistance of his parents, he sought review by the Tribunal.
The Applicant’s mother was interviewed by the delegate. Both the Applicant’s parents attended the Tribunal hearing to give evidence and present arguments on behalf of the infant Applicant. They had the assistance of an interpreter. The only evidence before the Court as to what occurred at the Tribunal hearing is the Tribunal account in its reasons for decision.
In its reasons for decision the Tribunal set out the circumstances in which the Applicant’s parents and older sister arrived in Australia in 2007 and applied for protection in 2009. Those applications were unsuccessful. They unsuccessfully sought review by the Tribunal. They applied to this Court to review the Tribunal decision but withdrew that application. They lodged two unsuccessful applications for ministerial intervention finalised in April 2011.
As the Tribunal explained, in the protection visa application of 2009 the Applicant’s mother had claimed that “her great grandfather was a businessman who was charged over the death of communist party members” in 1929 who later died in prison. The Tribunal recorded that the mother “claimed that she had tried to establish the innocence of her grandfather, but she could not do that in China and that is the main reason that she left” the country. She claimed to the Department that nothing had happened to her directly, but that she feared returning to China because “her family was trying to clear her great grandfather’s name”.
The Tribunal recorded when the mother’s visa application came before the Tribunal in February 2010, she also claimed that she had been “detained in February 2007 along with some Falun Gong workers at a factory”, that she had been “under house arrest because her family had attempted to appeal to a court regarding [her ancestor’s] political conviction” and that she “had attended a Catholic church in China”.
However, in her son’s subsequent application for protection which is the subject of these proceedings, he claimed to fear persecution on the basis that his parents were afraid of returning to China because, as was stated in the document annexed to his protection visa application, they were Falun Gong practitioners in China. The Applicant also claimed to be a child born outside the Family Planning Regulations who faced “the punishment of the law”.
In the statement provided in connection with the son’s protection visa application, claims were made about the Applicant’s mother’s involvement with Falun Gong, including about her aunt’s activities and what had occurred to her in China. An explanation was given for the mother’s failure to raise any earlier claim that she was a Falun Gong practitioner. It was also claimed that the Applicant’s mother had, not long before his application, sent some news reports about Falun Gong over the internet to her aunt in China, that the aunt had been arrested, the “family computer … checked”, the mother’s brother interrogated and the “mother’s Internet Provider address … attacked by hackers”.
The Tribunal set out the evidence given at the departmental interview and at the Tribunal hearing, and referred to issues raised by the Tribunal with each of the Applicant’s parents.
After the hearing, the Tribunal sent a letter to the Applicant care of his mother on 9 May 2012 under s.424A of the Migration Act 1958 (Cth) inviting his comment on a number of matters set out in some detail, including delay in the lodgement of the first protection visa application and the son’s application and the fact that the son’s application was based on an entirely different set of claims. It referred to numerous specified inconsistencies between the first application and the Applicant’s application and inconsistencies in the mother’s evidence in her application and in the current application, as well as in her evidence to the delegate and to the Tribunal in connection with her son’s application.
The Applicant provided a detailed response to the Tribunal’s s.424A letter (which is summarised in the Tribunal’s reasons for decision) and a copy of an extract from the Family Planning Regulations for the province from which the Applicant’s parents came in China.
In its findings and reasons the Tribunal accepted on the basis of the Applicant’s passport that he was a citizen of the People’s Republic of China. It summarised his claim that his mother had become a Falun Gong practitioner in China before it was declared illegal, that she was “required to sign papers at her workplace giving up Falun Gong but she continued to practise Falun Gong in secret”, and that her aunt was arrested and detained as a result of the aunt’s practice of Falun Gong. The Tribunal also set out the Applicant’s claims in relation to his parents’ arrival in Australia as the holders of subclass 457 visas and their application for protection after those visas were cancelled. It recorded the mother’s explanation that they had not mentioned her Falun Gong problems at an earlier stage “due to fear that it would be disclosed in China”, her claims about sending information to her aunt and what occurred thereafter, and her claim that this was why she had been prepared to disclose her claims in relation to Falun Gong.
The Tribunal summarised that the Applicant claimed he would be “affected because of his mother’s status as a Falun Gong practitioner and because of her family’s political background”. He also claimed his parents would be unable to pay a fine that would be imposed because they had breached China’s one child policy so that “he [would] be unregistered and his opportunities to attend school and have access to other benefits in China [would] be affected”. In addition it was claimed that the authorities may be aware of the son’s application for protection, as the mother claimed she had been questioned by Chinese authorities when she applied for a passport for the Applicant in Australia.
However, for a number of reasons which it set out in detail, the Tribunal did not accept that the Applicant’s mother was a truthful witness. It had regard to the fact that her earlier claim for protection had been made on an entirely different basis. It did not accept her explanations in that respect, which it set out and addressed. It also found that she had “provided inconsistent, contradictory and confused evidence” in relation to her son’s application and had shown a “considerable willingness to alter and shift her claims when she considered it convenient to do so”. It did not accept the mother was ever a Falun Gong practitioner or that she had given a truthful account at any time of the family’s reasons for leaving China. It did not accept that she genuinely feared the Applicant would suffer harm as a result of her claimed involvement in Falun Gong or their inability to pay the fine for breaching the one child policy. Nor did the Tribunal accept any of the claims the mother made regarding her past political problems, which it noted were essentially raised only in response to the Tribunal’s 424A letter. It concluded that the mother had “manufactured the entirety of her claims regarding her experiences in China and [did] not accept that [she had] any adverse political profile due to her family background or Falun Gong membership that would have any effect on the applicant”.
The Tribunal then set out its detailed consideration of the evidence and reasons for reaching these conclusions. It did not accept the mother’s explanation for why she did not include her practice of Falun Gong in her own protection visa application. It considered her various explanations, including her claims that she feared the application was not confidential, that she would have made the claim in the earlier proceedings if she was sufficiently aware of the processes, and also that she had told certain people in China that she would not make Falun Gong claims. The Tribunal gave reasons why it did not accept these explanations. In essence, it did not accept that if the mother had genuinely feared harm in China on the basis of her Falun Gong membership she would not have included those claims in her 2009 protection visa application.
The Tribunal was of the view that the mother’s failure to do so and her willingness to make an application for her son on an entirely different set of claims from those in her application seriously undermined her credibility and the credibility of her claims about the impact on the Applicant as a result of her claimed membership of Falun Gong.
The Tribunal also had regard to the fact that the claims the mother had made about her political circumstances in her protection visa application were not made in relation to her son’s application to the Department, except insofar as she indicated that the family had a “genuine political background”. The Tribunal did not accept her explanation for why she had not included those claims in her son’s application but first raised them in response to the Tribunal’s s.424A letter. It did not accept she “would not have raised [them] had she genuinely feared that the applicant would be implicated as a result of her political problems”. It did “not accept the truthfulness of these claims and consider[ed] it evident that she ha[d] sought to raise them again following the Tribunal hearing in response to the Tribunal’s concerns … as to the highly contradictory nature of the claims” made in 2009 and in the present application.
The Tribunal also found that the considerable delay before the mother made her protection visa application after the family arrived in Australia was not consistent with her claim that she and her family feared harm on the basis of her practise of Falun Gong. It had regard to inconsistencies in the mother’s evidence and explanations in relation to her delay in applying for a protection visa and also in identifying the Falun Gong claim. In particular, it found that her explanation for the delay had altered between her initial response at the hearing and her later statement in response to the s.424A letter. The Tribunal concluded that the delay was “strongly indicative of the fact that [the Applicant’s parents did] not fear harm in China on the basis of Falun Gong or the applicant’s mother’s claimed political background”.
The Tribunal also had regard to confusion and contradiction in the mother’s evidence “in relation to what actions were taken against her as a result of her claimed practise of Falun Gong”. In particular it had regard to the fact that she had not told the Department that she had been regularly questioned and interrogated, as she later claimed to the Tribunal. The Tribunal did not accept her explanation (based on the time that had passed once the events in China and her desire to refer only to important matters), or her general claim in response to the s.424A letter that there may have been interpreter problems.
The Tribunal was of the view that a claim in relation to interrogation and harassment for a lengthy period from 2001 to the mother’s departure from China in November 2007 would have been mentioned in the written statement and in her oral evidence to the Department in support of her son’s application. The Tribunal considered that the “mother’s evidence in relation to this issue [wa]s strongly indicative of her willingness to shift and alter her evidence and manufacture new claims whenever she consider[ed] it convenient to do so” and found it “indicative of her overall poor credibility”.
The Tribunal also found that there were significant inconsistencies between the current application and her previous application in aspects of the mother’s claims regarding her experiences in China. In particular, it referred to inconsistencies in relation to whether the mother had ever been detained in China. The Tribunal did not accept the mother’s explanations that she did not consider the detention of Falun Gong practitioners as detention or that she was under house arrest. The Tribunal was of the view that these explanations had been manufactured in an attempt to overcome the inconsistent evidence. It did not accept that the Applicant’s mother would not have told the Tribunal about her house arrest when asked at the hearing about any detentions in China for any reason.
The Tribunal also had regard to confusion and contradiction in the mother’s explanation for her unwillingness to practice Falun Gong in Australia publicly, particularly given that she also claimed to have sent Falun Gong material back to China to her aunt who was said to have been arrested and detained because of her involvement with Falun Gong. The Tribunal considered this evidence “highly indicative of her willingness to manufacture evidence and of her overall poor credibility”.
The Tribunal reiterated that it had found that the Applicant’s mother had “provided a contradictory and inconsistent account of her experiences in China and ha[d] shown considerable willingness to alter and embellish her claims” through the son’s protection visa application and in her previous application. It found that she was not a truthful witness and that she had provided two different sets of fabricated claims which it did not accept. The Tribunal did not accept there was a real chance the Applicant would suffer harm either as a result of his mother’s claimed political background or his mother’s claimed Falun Gong practice or association with Falun Gong, or any combination thereof.
Nor did the Tribunal accept the mother’s claims that “officials of the Chinese Embassy made her write down her claims for protection and were suspicious of her because she was on a Bridging visa” at the time she sought a passport for her son. It considered her claims in this respect were “highly speculative” and pointed out that there were various reasons why she may have been on a bridging visa as discussed at the hearing. It did not accept these claims. The Tribunal considered her evidence in this respect to be “further indicative of her willingness to manufacture new claims”.
The Tribunal then turned to the claim that the Applicant child would suffer harm as a result of the breach of the one child policy and the mother’s claim that they would be unable to pay the fine. The Tribunal accepted the documentary evidence the mother had provided about Family Planning Regulations in the province in China from which she came, which was consistent with its independent enquiries. It accepted that the Applicant was the second child of his parents and not the subject of any exemptions under the relevant Family Planning Regulations, that a fine would be imposed and that the Applicant would be unregistered until that occurred.
However, while the Tribunal was unable to determine the exact amount the parents would be required to pay (because they had not been in China for several years and the fine was based on their past year’s annual income) having regard to the local Family Planning Regulations it found that the fine would amount to the equivalent of three times their average income from the previous year. The Tribunal did not accept the mother’s claim that they would not be able to pay the necessary fine. It considered evidence about the family borrowing money and not working for periods of time and not having sufficient resources and her claim that she owed a significant debt. However, it also had regard to the fact that it did not accept that the mother was a truthful witness. It did not accept that her evidence in this respect, or that of her husband, was truthful. The Tribunal was of the view that it was evident that both the mother and father had been employed in Australia at various times. It did not accept that the mother had been forthcoming about the extent of this employment. It had regard to alterations in her evidence in this respect and, to such evidence as there was in relation to the parents’ qualifications and employment and the existence of family members in China in not accepting they would be unable to pay the fine.
The Tribunal concluded that the Applicant child could and would be registered and would therefore have the full rights of a registered child. It did not accept the claim that he may be taken away from his parents as a result of their inability to pay.
In reaching these conclusions the Tribunal had regard to the mother’s claims “that her evidence ha[d] been affected as a result of interpretation problems and her “mental torture””. It did “not accept that the problematic nature of her evidence [wa]s due to these factors or any other problems”, but rather considered it was “due to the fact that she ha[d] attempted to fabricate claims for protection”.
Considering all the claims individually and cumulatively the Tribunal was not satisfied that the Applicant child had a well-founded fear of persecution for a Convention reason.
The Tribunal also considered the complementary protection criterion but was not satisfied that it was met by the Applicant, in circumstances where it had not accepted that the Applicant would be harmed as a result of his mother’s membership of Falun Gong, or political opinion or that his parents would be unable to pay the fine for breaching the one child policy.
The Applicant sought review of the Tribunal decision. The application was filed on 6 July 2012. In the application there are four paragraphs under the heading “Orders sought by Applicant” which I have considered as grounds. There are also three paragraphs under the heading “The Grounds of the Application are”. However these paragraphs simply repeat the Applicant’s claims about his mother being a Falun Gong practitioner and the application of the Family Planning Laws and seek impermissible merits review. Similarly, the affidavit which is said to have been sworn by the infant child (but signed by his mother), repeats the claims to protection in abbreviated form and seeks impermissible merits review.
The Applicant’s mother was appointed litigation guardian for the Applicant. She did not file written submissions but made oral submissions today. I have considered the grounds as far as they can be identified in the application and the matters raised today in oral submissions.
The first ground in the application is that:
I think RRT’s decision for my review is unfair because the danger and risk of my family, especially my mother was not carefully and thoroughly considered. RRT’s decision is not prudently made in particular my family’s background and life challenge in origin has not taken into account.
Insofar as this ground takes issue with the Tribunal’s consideration of whether the Applicant had a well-founded fear of persecution based on the claims made by his mother, the Tribunal considered the integers of these claims, but for the reasons which it gave did not accept the credibility of such claims or that the child had a well-founded fear of persecution on this basis. Credibility findings are a matter for the Tribunal and the findings it made in this case were open to it on the material before it for the reasons which it gave. There is nothing in the evidence before the Court to support the claim that the decision was made in a manner which revealed that the Tribunal failed to carry out its review or denied the Applicant procedural fairness in some way.
Insofar as this ground is intended to relate to the Applicant’s claims in relation to the Family Planning Regulations and whether he would be an unregistered child, there is an overlap with ground two, in which it is claimed that the Tribunal “did not well consider that [the Applicant] as second child breaching the Family Planning Law in China will be discriminated in social welfare and treated as a “black child”, hence [his] humanitarian concern, and [his] family’s inability to deal with social compensation fee”. He also claimed the family’s financial difficulty would make their return “more suffered”.
However the Tribunal considered the Applicant’s claims in this respect. The Applicant’s disagreement with the Tribunal’s finding and the merits of the Tribunal decision in this, and indeed in other respects, does not establish jurisdiction error.
In particular, the Tribunal made a finding of fact that the Applicant could and would be registered based on an assessment of the past and future earning capacity of his parents and their access to funds and a rejection of their evidence that they could not pay the necessary registration fee. Given that finding, it was not necessary for the Tribunal to consider the consequences of the Applicant being an unregistered child and the effect that it may have on him or his family. Grounds one and two are not made out.
Ground three is that the Tribunal failed “to give a good consideration to [his] mother’s explanation, on behalf of [him], her comments and evidence provided on and after hearing, which show the details of [his] family’s history and reason of no return”.
The Applicant’s mother reiterated in oral submission her concern about the fact that the Tribunal did not accept her evidence, claims and explanations given at various times. Insofar as this ground is intended to refer to the mother’s claims made in her original protection visa application as reiterated in response to the s.424A letter, the Tribunal specifically referred to and considered these claims.
Insofar as it is intended to take issue more generally with the Tribunal’s approach to the various claims made and explanations given by the mother in connection with her son’s application, the disagreement with the Tribunal’s findings does not establish jurisdictional error.
Ground four is that:
RRT fail to investigate to the facts we have indicated in the documents provided, indicating the harm we will be facing in origin.
It appeared from the court book that the only documents provided in connection with the son’s application, apart from the written application and the response to the s.424A letter, were copies of extracts from passports and the information about the Family Planning Regulations in a particular province in China. In the hearing today I asked the mother which documents were referred to in this ground. She referred to a document she said she had provided to the Tribunal, apparently in connection with her own protection visa application, which she claimed that Tribunal had found was not genuine.
However, the decision under review in these proceedings is the decision in relation to the Applicant’s son. The Tribunal’s present findings in relation to the mother’s claims about her political background were not based on any finding in relation to genuineness of documents she had submitted to the previous Tribunal. Rather, the Tribunal did not accept that the mother would not have raised those claims again in the Applicant’s protection visa application had she genuinely feared the Applicant would be implicated as a result of her political problems.
Beyond this, there is no general duty on the Tribunal to make inquiries. It has not been established that this is a case of the nature referred to in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 in which there was a critical fact the existence of which was easily ascertained about which the Tribunal should have made inquiries or indeed that it undertook that it would do so.
The Tribunal did, as it recorded, have regard to independent country information in relation to the impact of the one child policy and the likely penalty payable to register the child in the province from which his family came. It accepted the documentary evidence provided by the Applicant in that respect. This ground of review is not made out.
In oral submissions, the Applicant’s mother raised a number of issues for the first time. First, she claimed that the Tribunal thought that whatever she said during the Tribunal hearing was untrue. She complained that while she had been given an opportunity to provide further explanations at the hearing and in response to the s.424A letter the Tribunal did not accept her explanations. She appeared to suggest that the Tribunal was just going through the motions procedurally and that in some way it had erred in not accepting her explanations.
Insofar as this may be taken to raise an allegation of either actual or apprehended bias, it is not made out on the material before the court (see Re Refugee Review Tribunal; Ex parte H (2001) 75 ALJR 982; [2001] HCA 28 and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17). Actual bias should be clearly pleaded. It has not been but in any event there is nothing in the Tribunal’s account of the hearing or in its findings and reasons which is such as to establish pre-judgment in a sense constituting actual bias or apprehended bias from the perspective of the appropriately informed reasonable lay observer. As indicated, the Tribunal’s adverse credibility findings were open to it on the material before it for the reasons which it gave. The Applicant’s disagreement with the Tribunal’s factual findings or the merits of the Tribunal decision is not indicative of jurisdictional error.
The Applicant’s mother also appeared to claim that there was no evidence for the Tribunal’s finding that she was not truthful. However, as set out above, the Tribunal set out in considerable detail some six factors which it took into account in concluding that the mother was not a truthful witness.
The Applicant’s mother also raised an issue about the fact that at the interview by the delegate she was allegedly only asked a few basic questions, (or, as she later said, two questions) about her knowledge of Falun Gong and yet the delegate concluded that she was not a genuine practitioner based on her level of knowledge. However the decision under review in the present proceedings is the Tribunal’s decision in relation to the son’s application. It did not base its decision on the mother’s knowledge or lack of knowledge of principles of Falun Gong.
The Applicant’s mother also appeared to suggest that there may have been some mistranslation, on the basis that she had provided what she thought were clear and acceptable explanations which had not been accepted by the Tribunal. It is apparent that she raised similar general and unspecified concerns in her response to the s.424A letter to which the Tribunal had regard in its reasons for decision. There is, however, no evidentiary basis before the Court to support any contention of mistranslation or misinterpretation, let alone such as to establish a failure by the Tribunal to comply with s.425 of the Act (see Appellant P119/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 230). This general claim is not made out.
Insofar as the Applicant’s mother reiterated that the fact that the Tribunal did not believe her did not mean she was not telling the truth, she seeks impermissible merits review. While she claimed to this Court that she had provided explanations, for example, in reply to the s.424A letter and had given detailed information, as I endeavoured to explain to her, this is not a re-hearing and merits review is not available in this court. The Applicant’s mother’s concern that the Tribunal did not accept any or all of her explanations and/or the fact that it found her to be untruthful is not such as to establish jurisdictional error.
As jurisdictional error has not been established on any of the bases contended for by the Applicant, the application must be dismissed.
The Applicant has been unsuccessful and there is nothing in the circumstances of this case to warrant a departure from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent. However in this case the Applicant is an infant child and it is appropriate that the costs be met by his mother as litigation guardian.
In the particular circumstances of this case, I am satisfied that the amount provided for in the Schedule to the Federal Magistrates Court Rules is an appropriate and reasonable amount.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Barnes FM
Date: 17 April 2013
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