SZRXR v Minister for Immigration
[2013] FMCA 56
•31 January 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZRXR & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2013] FMCA 56 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Minister for Immigration v SZNPG (2010) 115 ALD 303 Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 SCAA v Minister for Immigration [2002] FCA 668 |
| First Applicant: | SZRXR |
| Second Applicant: | SZRXS |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2234 of 2012 |
| Judgment of: | Driver FM |
| Hearing date: | 31 January 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 January 2013 |
REPRESENTATION
| The Applicants appeared in person by telephone |
| Solicitors for the Respondents: | Ms S Sangha Minter Ellison |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2234 of 2012
| SZRXR |
First Applicant
| SZRXS |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (the Tribunal). The decision was made on 14 September 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are a husband and wife. The relevant protection claims were made by the first applicant, the applicant wife. The applicant’s claim protection on the grounds of religion and also on account of the Chinese One Child Policy. Background facts relating to the applicant’s claims and the decision of the tribunal on them are summarised in the Minister’s written submissions, filed on 24 January 2013. The following statement of background facts is derived from those written submissions.
The first and second applicants are citizens of China. The second applicant first arrived in Australia on 20 February 2008 on a student (subclass 572) visa.[1] The first applicant arrived in Australia on 11 July 2010 on a bridging visa on the basis of her application as a dependent to the second applicant's student (subclass 572) visa.[2]
[1] Court book (CB) 73
[2] CB 3 and 73
On 3 February 2012 the applicants lodged an application for protection (Class XA) visas.[3] In a typed statement provided with the visa application forms, the first applicant claimed to have a well-founded fear of harm in China by reason of her religion as a Christian. The first applicant claimed that on 28 February 2010 she was detained for two days by the authorities in China when her family church gathering was “sealed” by police and that continuing pressure from the authorities resulted in her resignation from her employment.[4] The first applicant further claimed that as a now pregnant woman she would face social discrimination and persecution if returned to China.[5] The second applicant was included in the application and made no independent claims for protection.
[3] CB 1-33
[4] CB 46
[5] CB 45-48
By decision dated 31 May 2012 the delegate refused to grant the applicants protection (Class XA) visas. The applicants applied to the Tribunal for review of the delegate's decision on 8 June 2012.[6] Accompanying that application, the applicants provided a copy of their child's birth certificate dated 27 April 2012.[7]
[6] CB 89-94
[7] CB 95
By decision dated 14 September 2012 the Tribunal affirmed the decision not to grant the applicants protection (Class XA) visas.[8]The Tribunal accepted that:
a)the first applicant had been an adherent of a local church in China since late 2008 and that she has attended gatherings on a weekly basis from that time until she left to come to Australia[9]; and
b)that the first applicant was able to practise her religion openly and without fear from her introduction to the local church in 2008 to the event of February 2010 which indicated that the position for local church members is one of the more liberal and tolerant in China[10].
[8] CB 127-152
[9] CB 145 at [84]
[10] CB 145 at [85]
The Tribunal found that there was no real chance that the applicants would face harm, now or in the reasonably foreseeable future for the practice of their religion for the following reasons:
a)this incident was a single instance of arrest[11];
b)the first applicant had not been in contact with her family to be advised of any alleged interest by the authorities as claimed[12];
c)there was no evidence that the authorities had any interest in the first applicant's activities online[13]; and
d)the first applicant was able to leave China with no difficulty on a valid passport and visa in July 2010[14].
[11] CB 146 at [87]-[88]
[12] CB 146 at [89]
[13] CB 146 at [90]-[91]
[14] CB 147 at [92]
In relation to the applicants' religious activities in Australia, the Tribunal found it of concern that despite arriving in Australia in July 2010, the first applicant did not start attending a church or practising their religion until September 2011.[15] The Tribunal found that if the applicants demonstrated a renewed interest in religion in China they would not face persecution for the open practice of their religious beliefs. The Tribunal found that the first applicant would be able to openly practise her religion as she has done so prior to coming to Australia.[16]
[15] CB 147 at [93]
[16] CB 148 at [100]
Australian-born child
The first applicant claimed that she would face persecution in China because she is a mother of a child born without a permit and that the Chinese authorities would forcibly sterilise her and she has one male child already.[17] The Tribunal found that whilst forced sterilisation has occurred on an isolated basis in China, the first applicant's fear did not have any objective basis in fact.[18]
[17] CB 148 at [101]
[18] CB 148 at [101] and [106]
The second applicant's facial markings
The Tribunal found that these claims did not fall within the category of being serious harm, noting that the second applicant was employed in China prior to coming to Australia, received a full education and entered a relationship and married while carrying his facial marking from birth.[19]
[19] CB 150 at [109]
Lack of financial support
The applicants claimed that they fear that on return to China, they will be rejected by their families and have no financial support. The Tribunal found that this did not involve the level of serious harm envisaged by s.91R(2) of the Migration Act 1958 (Cth) (Migration Act).[20]
[20] CB 150 at [111]
Accordingly, the Tribunal concluded that ss.36(2)(a) or 36(2)(aa) of the Migration Act were not satisfied for the grant of protection (Class XA) visas.
The present application
These proceedings began with a show cause application, filed on 10 October 2012. The applicants continue to rely upon that application.
The application is supported by a short affidavit which I received as a submission. I also have before me as evidence the court book filed on 22 November 2012.
The applicants appeared before me on 8 November 2012. At that time, I gave directions for the further conduct of the matter, including an order listing the matter for a show cause hearing today. Exhibit R1 is a letter dated 24 January 2013 to the applicants providing the Minister’s written submissions and reminding them of today’s hearing. Nevertheless, neither applicant appeared when the matter was called today. The Court was successful in contacting the second applicant on the mobile telephone number specified in the application. He stated that he had forgotten about today’s hearing and provided another mobile telephone number for his wife. An attempt to contact the first applicant was unsuccessful on that number. He subsequently provided another telephone number on which the first applicant was contacted. She stated that she also had forgotten about the hearing. She sought and was granted the opportunity to attend by telephone.
The first applicant’s oral submissions made clear that the applicants are dissatisfied with the Tribunal decision. She maintains that she has real fear of returning to China. However, her oral submissions did not add any weight to the grounds advanced in the application. Those grounds are in narrative form and draw no distinction between the orders sought and the grounds specified:
Orders sought by Applicant
(Identify each order sought by way of final relief)
1, I don’t think Immigration and RRT’s made a fair decision for my case as they failed to consider the evidence provided and gave me no chance to common for those outstanding issues described in the decision.
2, RRT failed to make a through consideration to the risk and potential harms upon returning to origin, especially on my Australian born child who has no access of household registration due to parents’ unmarried status.
3, I have strong sense that RRT did not carefully consider my case with a good investigating or verifying the real situation in my origin and made imprudent decision.
The Grounds of the Application are:
1, I am on student background from China. As a committed member of Local Church member, I had experienced hardship in origin and will be persecuted by Chinese government if return.
2, I have a fear to return to origin and truly believe will be persecuted or blackmailed due to my religion and undergrounds practice.
3, I have a record with the Chinese government in authority and currently I am under investigation due to my preaching activates. [sic]
4, Tribunal didn’t give reasonably and ample consideration to my family situation especially the interest of my Australian born child and my partner who will be discriminated due to his facial defect and hardship causing a great challenge in employment and social discrimination, and the unexpected difficulties due to our families denial to our relationship, and the huge financial difficulty amounting to serious harms.
5, Tribunal judged by personal assumption in my case, whilst ignoring an investigation in particular the facts do exist in our cultural background.
In part, the applicants contest the merits of the Tribunal decision. Those merits are beyond the scope of these proceedings. There is an assertion of unfairness which appears to relate to the consideration of evidence by the Tribunal. However, there is no evidence that the Tribunal overlooked any element or integer of the applicant’s claims or any relevant material. It appears to be asserted by the applicants that the Tribunal’s examination of their claims was superficial or otherwise inadequate. However, the Tribunal’s reasons establish, to my satisfaction, that the Tribunal has given adequate consideration to each of the applicants’ claims.
It is possible that the final ground advanced by the applicants is an assertion of bias. If so, it is not clearly made and is not supported by any evidence. I otherwise agree with and adopt, for the purposes of this judgment, the Minister’s written submissions.
Grounds 1-3 and Order 3
The Minister submits and I accept that Grounds 1, 2 and 3 are assertions of fact and do not demonstrate any arguable jurisdictional error. These statements are claims which were made before the Tribunal. Further, to the extent that Order 3 alleges that the Tribunal did not properly consider their claim of harm on the basis of their religion and membership of the local church, the claim was expressly considered and not substantiated.
Ground 4
The Minister submits and I accept that Ground 4 of the application was expressly considered and dealt with by the Tribunal.
Australian born child (including Order 2)
The applicants allege that the Tribunal did not properly consider the interests of their Australian born child. The Tribunal decision record demonstrates that the Tribunal expressly considered whether the child would suffer any discrimination on return to China.[21]
[21] CB 148 at [104]
Facial defect of second applicant
The first applicant claimed that the second applicant would face social discrimination in China due his facial defect and that this would cause difficulties in employment and socially. The Tribunal concluded that the claims that the second applicant would be persecuted for his appearance were not made out.[22]
[22] CB 150 at [109]
Denial of relationship
Contrary to the applicants' claim that they would suffer harm as a result of their respective families' denial of their relationship and that this would result in financial difficulty, and the Tribunal's finding that this claim was not made out is exclusively within its jurisdiction, was expressly considered and correctly determined.[23]
[23] CB 150 at [111]
Ground 5
To the extent that this ground seeks to allege actual or apprehended bias it ought to have been clearly made and distinctly proved: Re Refugee Review Tribunal; Ex parte H[24]. Furthermore, as bias is ordinarily established by reference to the conduct of the decision maker, not just their reasons, and it is rare it can be made out on the grounds of the decision record alone[25].
[24] (2001) 179 ALR 425
[25] Minister for Immigration v SZNPG (2010) 115 ALD 303; SCAA v Minister for Immigration [2002] FCA 668 (unreported, von Doussa J, 30 May 2002) at [38])
Order 1
The applicants appear to allege first, that the decision was unfair and secondly, that they were not provided with an opportunity to comment on the Tribunal's adverse findings.
This general complaint appears to be a suggestion that the applicants were denied procedural fairness. The Minister submits and I accept that the Tribunal complied with its obligations under Part 7, Division 4 of the Migration Act.
I conclude that the applicants have failed to advance an arguable case of jurisdictional error by the Tribunal. I will, therefore, dismiss the application for that reason. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules).
In consequence of the dismissal of the application, the Minister seeks an order for costs. The Minister seeks costs in accordance with the Court’s scale. The first applicant did not wish to be heard on costs. I will order that the applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 1 February 2013
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