SZRUK v Minister for Immigration

[2013] FMCA 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRUK & ANOR  v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 109

MIGRATION – Application for review of decision of Refugee Review Tribunal – matter set down for a ‘show cause’ hearing – application dismissed.

Migration Act 1958 (Cth), ss.36, 91R, 414A, 425, 476
Federal Magistrates Court Rules 2001 (Cth), r.44.12

Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265
Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
SZQRC v Minister for Immigration and Citizenship [2012] FCA 851
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1

First Applicant: SZRUK

Second Applicant: SZRUL

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2043 of 2012

Judgment of: Nicholls FM

Hearing date: 18 February 2013

Date of Last Submission: 19 February 2013

Delivered at: Sydney

Delivered on: 11 March 2013

REPRESENTATION

The Applicants: The first named applicant in person and as litigation guardian for the second named applicant.

Appearing for the Respondents: Mr O Jones

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application made on 10 September 2012 is dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The first named applicant pay the first respondent’s costs set in the amount of $3,500.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2043 of 2012

SZRUK

First Applicant

SZRUL

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. I have before me an application made on 20 September 2012 under s.476 of the Migration Act 1958 (Cth) (“the Act”) seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 5 September 2012, which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. The applicants are mother (“the applicant”) and child (“the applicant’s child”). Both are nationals of the People’s Republic of China (“China”). The applicant came to Australia in April 2008 as a student (Court Book – “CB” – CB 15). She remained in Australia unlawfully after her visa ceased on 13 December 2010 ([21] at CB 102). The applicant’s child was born in Australia on 15 August 2011 ([23] at CB 102). Notwithstanding this, he is not an Australian citizen as both his mother and father were not Australian citizens, or the holders of “permanent” visas, at the time of his birth.

2. The applicants applied for protection visas on 14 November 2011 (CB 1 to CB 34). The applicant’s claims to protection were that she feared religious persecution because of her membership of an illegal, or “underground”, local church, and “social discrimination” because her, and her husband’s parents, did not approve of their marriage (CB 11 to CB 12).

3. The applicant also claimed that her child would be the subject of discrimination because he would not have access to household registration in China due to his conception being in violation of China’s family planning laws.

4. The delegate refused the application (CB 74). He found that the applicant was not a Christian in China, although he conceded she may have become a Christian since she arrived in Australia (CB 55.8). However, he found this would not result in persecution of the applicant were she to return to China. Further, that the applicant’s husband had not abandoned her and their child. Further, and in any event, on the payment of a social compensation fee, the child would be registered in China (CB 70.5).

5. The applicants applied to the Tribunal for review of the delegate’s decision (CB 76 to CB 81). They appeared at a hearing before the Tribunal. In the circumstances, only the applicant gave evidence ([33] at CB 105). The Tribunal’s account of the hearing is set out in its decision record ([33] at CB 105 to [72] at CB 111).

6. The Tribunal found that the applicants were citizens of China

   
   

   ([99] – [100] at CB 121). It understood the applicant’s claims to be that she was a local church member in China, had suffered harm as a result, she had sent anti-government material to China since her arrival in Australia, where she had maintained her local church ties ([101] at CB 121). Further, that she had violated China’s family planning laws and would suffer financial punishment and discrimination as she had a child out of wedlock ([101] at CB 121).

7. In addition, on her son’s behalf, the applicant claimed that her child would face discrimination in China because he had been born out of wedlock and in breach of the “one child policy” (a reference to China’s family planning laws) ([101] – [102] at CB 121).

8. The Tribunal did not accept any of the applicant’s relevant claims brought on her own behalf, or her son’s behalf ([103] at CB 121).

9. The Tribunal rejected the applicant’s claims to have participated in local church activities in China on the basis of her contradictory and confusing accounts of past events ([105] at CB 122 and [117] at CB 124). The Tribunal rejected the applicant’s assertions that she had suffered harm in the past. It did not find her to be a truthful witness ([143] at CB 129).

10. The Tribunal did not accept that she, nor her “boyfriend” (the child’s father), were members of the local church in Australia. It did accept that, since April 2011, she had attended some local church meetings, noting earlier that she had arrived in Australia in April 2008. Also noting that she did not participate in any studies in Australia, having arrived as a student in September 2008 ([118] at CB 124 to [124] at CB 124). The Tribunal disregarded the applicant’s conduct in Australia pursuant to s.91R(3) of the Act. It found that the applicant would not attend any local, or “underground”, church if she were to return to China ([124] at CB 125).

11. The Tribunal did not accept that, apart from one “QQ” message (a “chat” message) sent on 10 May 2011, the applicant sent anti-government material to China in support of the “Jasmine” Revolution. The Tribunal also disregarded this conduct (the sending of the “QQ” message) pursuant to s.91R(3) of the Act ([125] at CB 125 to [131] at CB 127).

12. The Tribunal accepted that the applicant and her “boyfriend” had had a child out of wedlock and that this was in breach of China’s family planning laws in a number of ways ([133] at CB 127). However, the Tribunal found that those laws were laws of general application ([134] at CB 127).

13. Further, it did not accept that the applicant would not be able to meet the cost of any social compensation fee she may be required to pay to register her child in China. It relied, in part, on country information for this finding ([136] at CB 127 to [139] at CB 128).

14. The Tribunal found that the applicant did not apply for protection until three years after her arrival in Australia. The Tribunal noted the applicant’s explanation for this, however it found that if the applicant had genuinely feared persecution she would not have delayed making her application ([140] at CB 128 to [142] at CB 129).

15. The Tribunal also considered the complementary protection criterion relevant to the application for a protection visa. However, the Tribunal found that neither applicant met the requirements set out at s.36(2)(aa) of the Act ([145] at CB 129 to [150] at CB 130).

Before the Court

1. The orders sought from this Court and the grounds of the application are in the following terms:

   “Orders sought by the Applicant

   ..

   1, I disagree with Immigration and RRT’s decision. They did not consider I will be in danger if I return.

   2, RRT did not consider that I will be persecuted and in big trouble if I return home.

   3, RRT member questioned me at hearing made me feel very up sad. They never trusted me and I do not think they had the right attitude to my application . RRT should grant my application .

   …

   The Grounds of the Application are:

   1, I am a Chinese citizen and Christian local church persecuted by Chinese government. I had been picked up and detained by Chinese police.

   2, I have a fear of return because of my previous traumatic experience, and I am afraid of being detained and affect my child if I pursue my religion of family church in China. My son have no access to household registration without satisfying the requirement of social compensation that beyond our ability. I have strong fear and concern dealing with the hardship, trauma, and persecution if return.

   3, Tribunal’s decision is unfair and not prudent as it did not make ample consideration of my family situation as whole, in particular my Australian born child’s interest.

   4, I have strong feeling that Tribunal member has prejudice in my case and made judgments based on her impression, instead of facts and evidences. I am a credible witness and innocent in judging of untrusted. I hope my case can be reviewed and finalized by the federal court with justice.”

2. These are formulaic and, in terms, strikingly similar to those often seen by this Court.

3. At an earlier occasion before the Court, I appointed the applicant the litigation guardian for her child. At that time, I noted for the applicant the deficiencies in her application. She indicated her willingness to participate in the Court’s “RRT Legal Advice Scheme” and, in those circumstances, I urged her to pay close attention to the lawyer on the panel to whom she would be referred. The matter was ultimately set down for a hearing pursuant to r.44.12 of the Federal Magistrates Court Rules 2001 (Cth) (a “show cause” hearing). Nothing further was filed by the applicant.

4. When the matter was called the applicant appeared in person with her child (noting that she remained the litigation guardian for her child). She was assisted by a interpreter in the Mandarin language. Mr O Jones appeared for the respondent Minister.

5. At the commencement of the hearing the applicant requested that she be given more time to “find a lawyer”. She said that her husband was in prison in Australia and that he had been detained for six months. All of her funds had been used to “post” his bail and, as she had not been working, she had no money to pay a lawyer. She hoped that when her husband was released he might be able to work and, using those funds, she could speak with a lawyer.

6. I confirmed with the applicant that she had received written advice from the panel lawyer appointed to assist her under the Court’s “RRT Legal Advice Scheme”. She confirmed that she had received such advice.

7. I refused the applicant’s request for an adjournment. First, even if it is the case that the applicant’s funds had been depleted because she gave priority to her husband, while understandable, nonetheless this means she elected this priority over her own and her child’s interests in prosecuting their claims for protection in Australia. A matter of great importance and consequence for both of them. Some funds were obviously available to her, her application, and her election, are matters for her. That she gave priority to her husband is not such as to cause the grant of more time to her in the circumstances.

8. Second, the applicant’s expectation was that, on release on bail, her husband would work and she could generate sufficient funds to consult a lawyer.

9. A number of difficulties emerged. There was nothing in what the applicant said to suggest that her husband would, or could, obtain work, or work sufficient to generate funds to allow for the obtaining of additional legal advice within a reasonable period. Nor that he would agree to the allocation of funds for this purpose. Further, the applicant said her husband was to be released on, or had been granted, a “Criminal Justice visa” which, she said, stated on its face that he could remain in Australia “28 days after his case is finalised”. Given that the applicant confirmed that her husband had no migration proceedings before the Court, in the circumstances, this appeared to be a reference to criminal proceedings. In these circumstances, there was no certainty as to how long the applicant’s husband would be able to remain in Australia, nor whether his visa would permit him to work in Australia.

10. Third, and in any event, the applicant has had access to legal advice through the Court’s “RRT Legal Advice Scheme”. In these circumstances, I refused the adjournment application and the hearing proceeded.

The Applicant’s Oral Complaint Before the Court

1. The applicant stated that her child had been “restless” at the Tribunal hearing and that, as a result, the Tribunal member had become “rushed” and she had not had the opportunity to answer all of his questions. The applicant also claimed that the Tribunal member had adjourned the hearing and had said that she would receive a letter inviting her to another occasion for the hearing. Subsequently, the applicant stated that the Tribunal had said that she “may” be invited to another hearing.

2. I pointed out to the applicant that there was no evidence, or indeed implication, in the material before the Court that the Tribunal member had adjourned the hearing to another day and then made a decision on her application without giving her the opportunity of attending to any such hearing. Nor was there any evidence to support her claim that her hearing was “rushed”.

3. It is common practice for the Minister’s solicitors, in preparing the Court Book, to include the Tribunal’s “RRT Hearing Record”. This would normally record the time and length of the hearing and related matters. No such document was included in the Court Book filed in these proceedings. While the Tribunal’s account of the hearing is set out over six typed pages in the decision record, it is not possible to ascertain whether the hearing was, as the applicant asserts, cut short or “rushed”.

4. The applicant asked the Court to listen to the audio recording of the Tribunal hearing. The Minister objected to that request on the basis that there was sufficient evidence before the Court to infer that a full and complete hearing had occurred. However, given that the applicant had indicated that this part of the discussion with the Tribunal member had occurred at the end of the hearing and given what is set out immediately above, leave was granted to the applicant to file the audio recording in Court.

5. The applicant subsequently advised that she had neglected to bring the “CD” with her and that it was at her home. I afforded the applicant a further opportunity to put the audio recording before the Court, making an order that she provide the “CD” to the Court’s registry by 4pm the following day (19 February 2013). The applicant provided two “CDs”, containing the audio recording of the Tribunal hearing, to the Registry on that day.

6. The applicant’s oral complaint did not progress beyond a mere assertion of what she said occurred at the hearing. At best, it may be that the complaint could be articulated as a denial of procedural fairness pursuant to s.425 of the Act, or some miscarriage of the Tribunal’s discretion to adjourn the hearing.

7. In any event, for the reasons below, whatever legal ground the applicant wanted to articulate as part of the complaint is not available to her. The audio reveals that the Tribunal indicated to the applicant that it “may” write to her and invite her to another hearing. Further, that it “may” put questions to her, in writing, for her to comment on and respond to. From the audio recording it is clear that the Tribunal made these statements in the context of the applicant’s child being highly disruptive during the hearing (as he was, albeit to a lesser extent, at the hearing before the Court).

8. In those circumstances, in my view, it is clear that the Tribunal needed to, subsequently and at leisure, consider the applicant’s evidence at the hearing and was reserving its position as to whether it “may” need to ask the applicant further questions (whether at a subsequent occasion of a hearing, or by providing those question to the applicant in writing) until it had considered everything that the was said at the hearing. The applicant’s assertion that she was promised, and expected, another hearing is not made out. There was no miscarriage of the Tribunal’s discretion not to adjourn the hearing. No such opportunity had been sought by the applicant. Nor, was one promised. The audio does not reveal that the applicant was misled in this regard.

9. Similarly, if the applicant’s complaint was a denial of procedural fairness pursuant to s.425 of the Act, it was clear from the audio recording that, although the applicant’s child was highly disruptive at the Tribunal hearing, the applicant was not denied procedural fairness. It is the case that the applicant is entitled to a fair hearing. While the Tribunal complied with all of the relevant statutory and regulatory requirements in its invitation to the hearing sent pursuant to s.425 of the Act, the Tribunal is still required to provide the applicant with a meaningful opportunity to give her evidence, understand the case against her and make her arguments. The invitation in that sense cannot be a “hollow shell” (Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759; (2000) 183 ALR 188).

10. The potential issue that arises is whether the disruptive conduct of the applicant’s child was such as to deprive the applicant of that opportunity. The applicant described her son’s behaviour to the Court as “restless”. The audio recording reveals that he was loud and unruly.

11. However, no matter what failures in this regard are attendant on the applicant or arise from the conduct, it still remains that, as the inquisitor and responsible for the conduct of the review, the obligation is on the Tribunal to provide the applicant with a fair opportunity. There may be some argument to say that, notwithstanding the strictures imposed by s.414A of the Act, the Tribunal should have adjourned the hearing to enable the applicant to arrange child minding. She told the Tribunal that she could have left the child with “someone” at home.

12. In any event, the issue is whether the Tribunal provided the applicant with a fair opportunity to give her evidence. The complaint now by the applicant is that she was denied the opportunity to give her evidence. Further, that the Tribunal member “rushed” the hearing. Despite these complaints, before the Court the applicant could not give details of what else she had wanted to say before the Tribunal. Further, no comment was made by the applicant that she was hindered by her child’s behaviour. Other then the applicant’s reference to the claimed statement by the Tribunal towards the end of the hearing she did not direct the Court to any other part of the audio such as to support her assertion that the hearing was “rushed”, or even “cut short”. Towards the end of the hearing the Tribunal is heard asking the applicant whether there was anything else she wanted to say. Her response was: “I just want to say everything I said was true”.

13. Further, no complaint was made by the interpreter as to any inability to conduct the interpretation to an adequate level due to the child’s behaviour.

14. Ultimately, the resolution of this question must be assessed on an objective basis. There were certainly difficulties presented by the applicant’s child. However, on balance, I am satisfied that the applicant was given a meaningful opportunity to present her case. No failure of procedural fairness can be established after listening to the audio recording of the hearing. Jurisdictional error is not made out in this regard.

The Application to the Court

1. What must immediately be noted is that, despite the benefit of legal advice, the application to the Court remains in the same state as it did upon initial presentation. Despite opportunity to ascertain the true nature of these proceedings, the applicant’s “submissions” (other than the matter involving the audio recording) did not, in the circumstances, rise above a challenge to the facts as found by the Tribunal. In short, the application seeks impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 (“Wu Shan Liang”)).

2. To the extent that the first “order” sought by the applicant asserts disagreement with the delegate’s decision, that decision, as a “primary” decision, was not only reviewable under Pt.7 of the Act but was, in fact, so reviewed. As such, it is not susceptible to review by this Court (s.476(2)(a) and s.476(4) of the Act).

3. The remainder of “order one”, and “order two”, assert that the Tribunal did not consider that the applicant would be persecuted and in danger if she returned to China. On any plain reading of the Tribunal’s decision record it did consider all of the applicant’s claims to fear harm on return to China. The applicant’s reference to “not consider”, therefore, can only be seen as a complaint that the Tribunal did not accept the applicant’s claims. This, again, seeks impermissible merits review (Wu Shan Liang). The Tribunal does not have to unquestionably accept what an applicant puts to it (Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 per Beaumont J).

4. “Order three”, as with ground four, in effect, asserts bias, or the apprehension of bias, on the part of the Tribunal member. The applicant asserts that she was a credible witness and complains that the Tribunal’s finding to the contrary was based on impressions, instead of facts and evidence.

5. Claims of bias must be clearly made and distinctly proven (Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J, see also SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749 at [43] per Tamberlin, Mansfield and Jacobson JJ, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425). The test for bias and the apprehension of bias are well settled (Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ and SZQRC v Minister for Immigration and Citizenship [2012] FCA 851 at [36] per Griffiths J).

6. The Tribunal’s credibility findings were open to it on what was before it and were within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407). The Tribunal gave cogent reasons for its findings.

7. Such serious allegations as bias and the apprehension of bias cannot be asserted, let alone made out, simply because, for reasons given, the Tribunal did not accept an applicant’s claim to fear persecutory harm. Nothing on the audio of the hearing supports the applicant’s claim in this regard.

8. Grounds one and two are merely restatements of some of the applicant’s factual claims and assertions of fear of persecutory harm if she were returned to China that were before the Tribunal. At their highest, they seek impermissible merits review.

9. To the extent that ground three asserts that the Tribunal’s decision was unfair, then the applicants are entitled to a fair process, not necessarily the “right”, or “fair”, decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 and see also at [35] above).

10. Two other elements are raised in ground three. First, contrary to the applicant’s assertion, the Tribunal gave “ample” consideration to her family situation. It did not find that that situation led to serious, or significant, harm such that a protection visa must be granted.

11. Second, it cannot be said that the Tribunal did not consider the child’s interests. The child’s claims essentially flowed from his mother’s circumstances, and claims, and his own circumstances as an “unregistered” (in China) child born out of wedlock outside of China. The Tribunal considered these circumstances. No arguable case for the applicant is revealed in its relevant findings, which were all reasonably open to the Tribunal on the material before it.

12. Further, in relation to complementary protection, the Tribunal specifically considered the child’s circumstances on return to China in relation to his registration (see [149] at CB 130).

Conclusion

1. None of the grounds, or complaints, before the Court reveal jurisdictional error. However, the question at the hearing before the Court was whether the grounds of the application to the Court reveal an arguable case for the relief the applicant seeks. For the reasons above, they plainly do not. The “grounds” of the application to the Court seek either impermissible merits review, have no factual basis in the circumstances presented or, as in the case of the assertion of bias, are ill conceived.

2. The matter arising from the hearing before the Court (the “audio” of the Tribunal hearing) had two elements. The first was that the applicant had been promised a further hearing. For the reasons set out above, that, factually, is not correct. Whatever legal error the applicant may have sought to imply here does not rise to an arguable case.

3. The second element is whether the applicant was denied a fair hearing. For the reasons set out above, no jurisdictional error is made out. However, I did consider whether an arguable case can be said to have been raised by the applicant before the Court even if it was not stated in the application to the Court. The difficulty for the applicant here is that the factual basis of her complaint was not supported when regard was had to the audio recording of the hearing. On this basis, and given the consideration of the “grounds” of the application itself, it is appropriate that the application be dismissed pursuant to r.44.12(1)(a) of the Rules. I will make an order accordingly.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  11 March 2013