SZRTT v Minister for Immigration

[2013] FCCA 713

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRTT v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 713

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

Legislation:  

Migration Act 1958 (Cth), ss.91R, 425

Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39

Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575; [2010] FCAFC 41

NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241

Applicant: SZRTT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1935 of 2012

Judgment of: Judge Barnes

Hearing date: 14 June 2013

Delivered at: Sydney

Delivered on: 14 June 2013

REPRESENTATION

Applicant: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The Application be dismissed.

2. The Applicant pay the costs of the First Respondent fixed in the sum of $3,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1935 of 2012

SZRTT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 3 August 2012.  The Tribunal affirmed the decision of a delegate of the First Respondent not to grant the Applicant and her son protection visas.  The Applicant sought review of the Tribunal decision, by application filed in this court on 7 September 2012.  Her son has not been included as an Applicant in the present proceedings.

2. The Applicant, a citizen of the People’s Republic of China, arrived in Australia in December 2007 as the holder of a student guardian visa.  Her son was the holder of a student visa.  She lodged an application for a protection visa on 29 August 2011.  Her adult son was included as a member of her family unit. 

3. The Applicant’s claims were set out in her protection visa application and elaborated on in a statement accompanying the application.  In short, she claimed to fear harm in China as a Falun Gong practitioner and also because she had four children in breach of China’s family planning laws.  She detailed the circumstances of the birth of these children and what she claimed occurred thereafter. 

4. The Applicant was invited to, but failed to attend, an interview with a delegate of the First Respondent.  Her application was refused on 7 November 2011 and she sought review by the Tribunal.  She attended a Tribunal hearing held on 7 May 2012.  The only evidence before the Court as to what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision.

5. As indicated, on 3 August 2012 the Tribunal affirmed the delegate’s decision.  In its reasons for decision the Tribunal set out in detail and later summarised the Applicant’s claims made in connection with her protection visa application and at the Tribunal hearing. 

6. The Tribunal recorded the Applicant’s claims that she and her husband had four children, born in 1985, 1987, 1989 and 1991 and that she was forced by family planning officials to foster out or give up for adoption her second child who was later refused household registration.  She also claimed that she had to pay RMB3,000 for her third child’s household registration, 4,000RMB for the fourth child’s household registration and fines of 300 RMB and 400 RMB respectively for their births in breach of the family planning laws.  She submitted a household registration book which showed that she and her husband had three children registered to their household. 

7. The Applicant claimed to have borrowed money from relatives and friends and that the family was impoverished by the need to pay such fines and that she and her husband had to sell their land to pay registration fees and fines and were in financial difficulty.  She claimed she had resisted pressure “to have a termination of her fourth pregnancy” but that she was ultimately arrested and forced to undergo sterilisation.  She claimed that “[b]ecause she had broken the family planning policy, she could not obtain anything other than temporary employment”. 

8. As the Tribunal recorded, the Applicant also claimed to have been a Falun Gong practitioner since 1996 who had practised with other villagers until Falun Gong was banned in 1999 and thereafter secretly at home.  She claimed that at the end of 2002 she was arrested, detained in a detention centre for over six months.  She claimed she was mistreated during her detention.  She “obtained her release from detention in July 2003 by paying RMB 2,000 through a friend of her husband to someone with “connections” to a government official in her village”.  The Applicant claimed that thereafter she went into hiding but that the police continued to search for her.  She claimed that she paid a total of 100,000RMB to arrange for herself and her fourth child to obtain passports and visas to Australia.  She claimed her husband in China had told her the police continued to ask about her whereabouts.

9. While the Tribunal observed that the Applicant’s son had made no claim to protection on his own behalf, it nonetheless also assessed whether he had any claim to protection on the basis of having been born in 1991 in breach of the applicable Chinese family planning regulations.  He has not sought judicial review of the Tribunal decision. 

10. The Tribunal found, for reasons which it gave, that the Applicant was not a truthful witness and that she had fabricated certain of the claims she made to support her claim for protection.  The Tribunal set out a number of matters to which it had regard in making its adverse credibility finding, including the lack of documentary or other corroboration for the Applicant’s claims in relation to her second child, in relation to penalties and fines she claimed she had had to pay, and in relation to her claims she had been forced to undergo sterilisation, arrested twice and detained once and paid a bribe for her release and a large sum to obtain her and her son’s passport and visa.

11. The Tribunal had regard to the “superficiality” of the Applicant’s familiarity with and knowledge of Falun Gong as well as the lack of any supporting material for her claim to have been practising Falun Gong since 1996 in China or since her arrival in Australia in 2007.  It also had regard to the fact that she had raised several new claims the Tribunal regarded as significant for the first time at the hearing and to the absence of any convincing explanation for why such claims had not been raised earlier and to the Applicant’s failure to attend the interview with the delegate and thus to take every opportunity to pursue her claims.

12. In addition, the Tribunal had regard to the fact that the Applicant had, on her evidence, been able to depart China on a passport and exit visa in her own name and without any difficulty notwithstanding her claims that she was then, and still was, the subject of continued police searches and had had to pay a large sum for her passport and visa.  The Tribunal also had regard to the delay in the Applicant’s departure from China after the grant of her Australian visa and the considerable delay after her arrival in Australia before she lodged her protection visa application in circumstances where she had been unlawful for over two years after her visa expired.

13. The Tribunal found that while these matters had been put to the Applicant at the hearing, her responses did not resolve its doubts about her credibility.  It was not prepared to accept such claims and evidence unless corroborated by supporting and credible evidence or documentation, or consistent with independent country information or otherwise credible.

14. The Tribunal elaborated on its reasons in relation to each of the claims made by the Applicant.  While it accepted that the Applicant had breached China’s family planning regulations, in the absence of any supporting evidence or documentation the Tribunal did not accept her claim to have had four children (rather than three).  It found that, having regularised the household registration for each of her children, neither the Applicant nor any of her children faced a real chance of persecution for this reason.  In the course of considering such claims the Tribunal referred to the Applicant’s claims about fines and penalties she had paid and that this impoverished the family.  The Tribunal assumed, for the sake of analysis, that her claims about penalties and fines were true, but found that on the Applicant’s evidence she and her husband were able to pay the fines, albeit by selling property and borrowing.  It found that this indicated that the payment of fines was within the means of the Applicant.

15. In addition, given that the Applicant was able to finance travel to Australia for herself and son in 2007 and his education, the Tribunal concluded that “the expenditure on fines and penalties in order to obtain household registration for the two children born in breach of family planning regulations was not such a financial impost as to amount to significant economic hardship that threatened the applicant’s capacity to subsist” within s.91R(2) of the Migration Act 1958 (Cth).

16. In these circumstances the Tribunal found the Applicants were not subject to serious harm amounting to persecution by reason of membership of a particular social group such as persons who breach family planning regulations or children born in breach of such regulations at the time of such breaches and that neither the Applicant nor her son faced a real chance of serious harm amounting to persecution in the future by reason of those breaches.

17. In addition, for reasons given by the Tribunal, it did not accept that the Applicant was a genuine Falun Gong practitioner.  It was satisfied that she had “fabricated this claim to further her migration intentions”.  The Tribunal found that the Applicant was not a practitioner of Falun Gong in China or in Australia and therefore that there was no reason for her to practice Falun Gong if she returned to China.  In making such findings the Tribunal referred to the absence of corroborative evidence and the fact that the Applicant’s knowledge of Falun Gong theory and philosophy was “considerably more limited and superficial than would reasonably be expected of someone who claim[ed] to have practiced Falun Gong regularly and frequently since 1996”. 

18. The Tribunal accepted that the Applicant knew “basically” the five exercises, but found that she did not know the purpose for three of the five exercises, or the verses recited with each exercise and that her knowledge of the underlying philosophy was superficial and slogan-like and that she had limited familiarity with fundamental Falun Gong texts which she had never owned.

19. The Tribunal found that a number of factors supported its conclusion that the Applicant had not been arrested or detained for six months by reason of her Falun Gong practice or for any other reason.  These factors included the absence of documentation and the fact of the Applicant’s ability to obtain a passport and leave China without any difficulty.  It also had regard to matters that indicated that the Applicant did not genuinely fear return to China, particularly her delay and her unsatisfactory explanation for why she did not attend the Department interview or attempt to arrange an alternative date.

20. The Tribunal found that the Applicant was not of adverse interest to the Chinese authorities prior to her departure from China.  It repeated its conclusion about fabrication of her claims. 

21. The Tribunal considered complementary protection.  It found not only that the Applicants did not face a real chance of Convention-related persecution, but also that for the same reasons that there were no substantial grounds for believing there was a real risk that either Applicant would suffer significant harm if they returned to China.  It was not satisfied either Applicant was a person to whom Australia had protection applications. 

22. As indicated, only the Applicant mother sought review of the Tribunal decision.  She filed an application on 7 September 2012.  She filed an amended application on 20 November 2012.  At the hearing she confirmed that she sought to rely on the grounds in her amended application. 

23. The Applicant did not file written submissions, although at the hearing she read out a written submission.  However in so doing the Applicant essentially repeated the grounds in the amended application. 

24. In the first ground the Applicant suggested that the Tribunal accepted that the Applicant had three children and had breached China’s family planning regulations and paid penalties and fines for doing so.  It referred to the Tribunal finding that she did so by selling her property and borrowing from her relatives and friends.  The ground continues:

    The Tribunal Member did not consider the difficulty the applicant faced by doing this.  The Tribunal member did not realize that the Chinese officers of family planning department are greedy and brutal. 

25. However the Tribunal was aware of and referred to the Applicant’s claims as originally made and as added to at the Tribunal hearing in relation to paying fines as well as penalties.  Despite its concerns about late claims, the Tribunal made findings in this respect on the basis of accepting for the purpose of analysis all of the claims about payments that the Applicant had presented at the Tribunal hearing and that she had raised the money in the manner that she had explained at the Tribunal hearing.

26. It recorded that on her evidence the Applicant and her husband were able to pay the claimed fines and penalties albeit by selling property and borrowing. Contrary to the Applicant’s contention, the Tribunal did consider the claim that the need to pay such penalties and fines resulted in impoverishing the Applicant’s family. However the Tribunal rejected this claim and found that the expenditure on fines and penalties for household registration was not such a financial impost as to amount to serious harm constituting persecution within s.91R(2)(d) of the Migration Act.

27. The Tribunal gave reasons for its findings that were open to it on the material before it.  The Applicant’s disagreement with the Tribunal’s conclusion does not establish jurisdictional error.  Insofar as this ground takes issue with the merits of the Tribunal decision, merits review is not available in these proceedings.  Ground one is not made out. 

28. The second ground appears to assert that the Tribunal erred in finding that the expenditure on payment of fines and penalties did not amount to significant economic hardship that threatened the Applicant’s capacity to subsist insofar as the Tribunal had regard to the Applicant’s ability to finance her travel to Australia for herself and her son in 2007 and education for her son. 

29. The ground continues:

    The Tribunal member did not realize I borrowed money from underground money borrowers, and the interest rates are much higher than normal bank.  I did not go back to China after I arrived in Australia because I am not able to pay the money back.  I believe I will be killed by those underground money borrowers if I return to China. 

30. The difficulty with this ground is that there is nothing in the material before the Court to establish or even suggest that the Applicant made a claim to the Tribunal in relation to borrowing money from underground money lenders or that she feared that she would be killed by such persons if she returned to China. 

31. As the Tribunal stated in its reasons for decision, the claim made by the Applicant at the time of her protection visa application in relation to meeting passport, visa and travel costs was a claim that she and her husband took out all of their deposit and sold their house.  The Tribunal also set out the various claims made by the Applicant in relation to the sources of money used to pay fines, penalties and for travel and education in the course of the Tribunal hearing.  None of these are the claims that she now seeks to make.

32. It cannot be said that the Tribunal erred by failing to have a regard to a claim that was not made to it.  In her oral submissions today the Applicant appeared to concede that the Tribunal did not know that she had borrowed the money from money lenders. 

33. On the evidence before the Court, no jurisdictional error is established on the basis that the Tribunal failed to consider the claim that the Applicant now makes.  This ground is not made out. 

34. The third and last ground in the amended application takes issue with the reasons that the Tribunal did not accept that the Applicant was a Falun Gong practitioner.  The ground suggests that the Tribunal made this finding “just because [the Applicant’s] knowledge of Falun Gong [was] limited”.  The Applicant claimed that the Tribunal member did not ask her the reason for her limited knowledge.  She gave a reason in the amended application that she had been detained for more than six months and “tortured terribly there which caused [her] brain damage” and to be “very scared of even talking about Falun Gong”. 

35. The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  The Applicant did not take the opportunity to file a transcript.  The evidence before the Court does not support the assertions that she makes in relation to what occurred at the hearing (See NAOA v Minister For Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21]). In any event, as is well-established, the Tribunal is not required to give an Applicant a running commentary on its thought processes or to tell an Applicant that it considered her knowledge was limited. It was clear from the delegate’s decision and the conduct of the Tribunal hearing that the Applicant’s involvement in Falun Gong was in issue. There is nothing in the material before the Court to establish or even suggest that the Tribunal failed to meet its obligations under s.425 of the Migration Act.

36. Insofar as the Applicant appeared to suggest that the Tribunal should have made inquiries as to the reasons for any deficiencies in her knowledge, this is not case in which the Tribunal was under any obligation to make such inquiries (see Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39). It is for an Applicant to put before the Tribunal facts and circumstances relied on in support of an application for protection (See Minister for Immigration and Citizenship v SZNVW and Another (2010) 183 FCR 575 at 586 and 589; [2010] FCAFC 41). The Tribunal is not obliged to conduct inquiries to gather information to support an Applicant’s claims. As expressed, this ground is not made out.

37. Perhaps associated with this ground, in oral submissions the Applicant elaborated on her practice of Falun Gong in Australia.  In so doing she seeks impermissible merits review.  She did not raise any ground of jurisdictional error on the part of the Tribunal in this respect. 

38. In submissions in reply the Applicant suggested that at the hearing the Tribunal member had asked her to “show Falun Gong” and that when she tried to do so the Tribunal stopped her.  The Applicant claimed that the Tribunal did not allow her to “show it” and that this made her fearful. 

39. Initially this appeared to be a claim that the Tribunal had, in some way, stopped the Applicant from giving evidence.  Insofar as she intended to make such a claim, it is not established on the material before the Court.  I note that at paragraph [44] of its decision the Tribunal referred to the fact that it had asked the Applicant “whether she knew how to perform all five exercises” and the Applicant stated that “basically” she did, that while she had been able to name all five exercises and identify the particular purpose for the first two (but not the remaining three) she was unable to recite the verses which should be recited with each of the five exercises.  The Tribunal also referred in some detail to the Applicant’s evidence at the hearing in relation to the philosophy and theory of Falun Gong. 

1. There is nothing in this material to support any claim that the Applicant was in any way prevented from giving evidence to the Tribunal that she wished to give.  Insofar as she appeared to be referring to a physical demonstration of the exercises, in its findings the Tribunal accepted that the Applicant knew “basically” the five exercises.

2. In any event, in concluding submissions the Applicant modified her claim to indicate that while she knew all the verses and tried to perform the exercises, she did two sets but when she tried to continue was so nervous she could not speak a word.  The Applicant’s claims in this respect do not establish jurisdictional error on the part of the Tribunal. 

3. There is nothing in the material before the Court to indicate that she brought any such difficulty to the attention of the Tribunal or that the Tribunal breached any obligations under the Migration Act or more generally of procedural fairness in the conduct of the hearing.

4. Insofar as in oral submissions the Applicant reiterated aspects of her claims and the reason she claimed to fear persecution in China, as I endeavoured to explain to her, merits review is not available in this Court.  Her disagreement with the Tribunal’s conclusions do not establish jurisdictional error.

5. Finally, there is nothing in the material before the Court to support the general and un-particularised claims in the original application that the Tribunal did not put adverse information to the Applicant for comment. On the contrary, it is clear that a number of issues of concern to the Tribunal were raised with the Applicant during the Tribunal hearing. Nor is there any evidence to support the claim that the Tribunal failed to consider the Applicant’s claims for a protection visa or any integer of those claims or failed to comply with unspecified obligations under the Migration Act.

6. No jurisdictional error is established on any of the bases contended for by the Applicant.  As no jurisdictional error has been established, the application must be dismissed.

   RECORDED  :  NOT TRANSCRIBED

7. The Applicant has been unsuccessful. The Minister seeks that she pay legal costs in the sum of $3,500. Such amount is, appropriately in this case, considerably less than the amount provided for in the Federal Circuit Court Rules.

8. The Applicant raised an issue as to how she could pay such a large sum as a woman already in deep debt.  However the Applicant’s lack of funds is not a reason for departing from the normal principle that an unsuccessful Applicant should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs.  The amount sought is reasonable and appropriate in the circumstances. 

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Barnes.

Associate: 

Date:  3 July 2013