SZRVD v Minister for Immigration

[2013] FCCA 1059

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZRVD & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1059

Catchwords:
MIGRATION – Review of decision of RRT – where applicant claimed persecution arising out of enforcement of China’s one child policy.

Dranichnikov v Minister for Immigration & Anor [2003] 77 ALJR 1088
NABE v Minister for Immigration & Anor (No 2) [2004] 144 FCR 1

First Applicant: SZRVD

Second Applicant: SZRVE

First Respondent: MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2100 of 2012

Judgment of: Judge Raphael

Hearing date: 2 August 2013

Date of Last Submission: 2 August 2013

Delivered at: Sydney

Delivered on: 2 August 2013

REPRESENTATION

For the Applicants: In person

Counsel for the First Respondent: Ms K Morgan

Solicitors for the First Respondent: Minter Ellison

ORDERS

1. Application dismissed.

2. Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00.

3. Name of the First Respondent be amended to Minister for Immigration, Multicultural Affairs and Citizenship. 

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2100 of 2012

SZRVD

First Applicant

SZRVE

Second Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The two applicants in this matter are a mother and her daughter who came to Australia on 4 May 2008, the mother as a guardian of her student daughter.  After the visa expired on 31 July 2009 they remained unlawfully in Australia until they applied for a protection visa on 1 November 2011.  The second applicant, the daughter, completed a Form D indicating that she did not have her own claim to be a refugee and she does not appear to have taken any part in the proceedings, either before the Tribunal or in this Court.  However, one of the grounds upon which the applicant claimed a well-founded fear of persecution was the possibility that the daughter would be discriminated against because the mother had been divorced.

2. On 2 March 2012 a delegate of the Minister refused the applicants a protection visa and they applied for a review of that decision from the Refugee Review Tribunal on 2 April 2012.  The mother attended the hearing before the Tribunal.  On 31 August 2012 the Tribunal determined to affirm the decision not to grant the applicants’ protection visas.  The ground put forward by the first applicant to be a person to whom Australia owed protection obligations was that she was the mother of three children which was in breach of the family planning laws in China.  She made the now familiar claims about the inability of these “black” children to obtain a Hukou and argued that the discrimination that they would thus suffer amounted to persecution under the Convention.  It later transpired that in fact both the child who is in Australia and the son who remains in China have got Hukous and that the applicant had paid the social compensation charge for them. 

3. The Tribunal discussed with the applicant her claims and discussed with her the fact that if the second daughter in China might experience difficulties through not having a Hukou this did not amount to harm being directed at either her or the daughter who was in Australia.  It was also suggested to her by the Tribunal that any difficulties placed in the way of marriage of the first daughter might not be considered persecution or serious harm.  The Tribunal also discussed with the applicant her failure to apply for a protection visa until two and a half years after her arrival into this country.  The Tribunal commented upon the fact that the applicant had spent a very large amount of money coming to this country, in comparison with which the social compensation fee was a small percentage, so that she clearly could have afforded to pay the fee had she wished.

4. The gravamen of the Tribunal’s decision was that it did not believe the applicant had a second child in China and that her only two children were the daughter who was with her and was a fellow applicant and the son who remained in China and who did have a Hukou.  The Tribunal gave thorough reasons for coming to this conclusion based on the evidence before it including certain independent country information.  It is clear that these matters were discussed with the applicant and she was given an opportunity to comment upon them.

5. At [CB 167] the Tribunal opined:

   “[64]Even if the Tribunal were wrong in this regard, the Tribunal does not believe that any difficulties encountered by that child who is currently in China and experiencing those harms amounts to persecution of either the first or second named applicant.  The evidence, were it accepted, indicates that the second named applicant has been registered and would not be denied access to anything in China on the basis of her not being registered.  In respect of the impact of the family planning regulations on the first named applicant, these are matters of general application and the Tribunal does not accept that they would have a discriminatory impact such that they could be considered persecutory of the first named applicant.  The situation may be different for a child genuinely affected by such laws, however, in this case such a child is not an applicant for the visa sought.”

6. The Tribunal also discounted the concerns raised by the mother in respect of the treatment of her daughter arising from her status as a divorced woman:

   “[65]There is a clear administrative process to deal with divorce and the Tribunal does not accept that in China currently there are significantly serious harms being directed at divorced women or single parents that they amount to persecution.  The first named applicant was asked about difficulties she encountered in China after her divorce and apart from speaking about her children was quite vague.  Her suggestion that she could not obtain employment despite attempting to do so does not sit credibly with her capacity to generate large amounts to finance her travel to and stay in Australia with her daughter.  The Tribunal does not accept that it is true.” [CB 167]

7. The Tribunal gave consideration to other matters raised by the applicant such as a fear of domestic violence but concluded that this did not raise any risk of harm on her return given the amount of time that had had gone past since her divorce.

8. At [71-72] the Tribunal gave some consideration to the possibility of claims under the complementary protection legislation and concluded that the claims that had been advanced were not truthful and stated then: 

   “[72]Even if the claims were accepted at their highest, the Tribunal does not accept that difficulties encountered in registration of the first named applicant’s daughter in China can be considered significant harm of the applicants before the Tribunal.  Neither, in the Tribunal’s view, are social difficulties in organising a marriage of sufficient magnitude to be considered cruel, inhuman or degrading treatment, even if it were accepted that the second named applicant would encounter such difficulty.” [CB 168]

   The Tribunal concluded that neither applicant had been able to meet the essential prescribed criteria for the grant of a Class XA visa.

9. On 26 September 2012 the applicants filed an application with this Court seeking review of the Tribunal’s decision.  There was only one ground of application, which is this:

   “My first child is a girl.  The second child is also a girl.  We have no money to pay the fines to the government, so my second child had to become a black child.  In our countryside, we all need a boy to support our family in the future.  Therefore, I had to have my third child who also became a black child.  We ordinary people have no money to pay the huge amount of fine imposed by the government.  In China our rights are badly violated by the Chinese Government.  We fear to be fined and persecuted.  The Tribunal member failed to take all my claims into account according to S91R of the Migration Act making jurisdictional error.”

10. Ms Morgan, in her helpful written submissions, indicates that the Minister has treated this ground as one indicating that the Tribunal had not taken into account all the applicant’s claims in the manner required by the full Federal Court in Dranichnikov v Minister for Immigration & Anor [2003] 77 ALJR 1088 and NABE v Minister for Immigration & Anor (No 2) [2004] 144 FCR 1.

11. She goes on to note that, in fact, this is a complaint that cannot be substantiated.  She points out that the Tribunal did consider the concerns raised by the applicant, being the fact that she had three children in contravention of the one child policy, that she was divorced and that she had been the victim of domestic violence.  In those submissions the paragraph numbers in which the matters were discussed are referred to. The submissions have been read and considered by the applicant. In my view the submission made by Ms Morgan is correct. The Tribunal has thoroughly considered all the claims made by both applicants even those made by the second applicant who, as previously noted, did not actually make a claim on her own behalf. 

12. The ground of application could also be considered to be request for merits review of the Tribunal decision and this was certainly indicated to me by the applicant in her oral submissions.  She told me that she did have a second child and that she could prove this by providing DNA evidence.  But as explained to her this Court is unable to provide merits review.  The applicant also told me that when she was in China she did get fined.  She also stated that she had been made to have an operation preventing her from having any further children.  This was not a matter that had been mentioned previously to the Tribunal and it was explained to her that the Court was unable to take into account new evidence of that type. 

13. In the Court’s opinion the applicant has not shown any ground upon which it could be said that the Tribunal fell into jurisdictional error in the manner in which it reached its decision.  In those circumstances the application should be dismissed.  I order the Applicants to pay the First Respondent’s costs assessed in the sum of $5,000.00. The name of the First Respondent be amended to Minister for Immigration, Multicultural Affairs and Citizenship. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  9 August 2013