SZSEA v Minister for Immigration

[2013] FCCA 407

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEA & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 407

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and particular social group persecution in China – Tribunal finding the applicants not entitled to protection in Australia – no jurisdictional error.

Legislation:  
Migration Act 1958 (Cth), ss.424A, 425

NAHI v Minister for Immigration [2004] FCAFC 10
NAOA v Minister for Immigration [2004] FCAFC 241
QAAT v Minister for Immigration [2005] FCA 968
SZBELv Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152
SZNRH v Minister for Immigration & Anor [2009] FMCA 849
VWFW vMinister for Immigration [2006] FCAFC 29

First Applicant: SZSEA

Second Applicant: SZSEB

Third Applicant: SZSEC

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2597 of 2012

Judgment of: Judge Driver

Hearing date: 29 May 2013

Delivered at: Sydney

Delivered on: 29 May 2013

REPRESENTATION

The Applicants appeared in person

Counsel for the Respondents: Mr D Godwin

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,471.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2597 of 2012

SZSEA

First Applicant

SZSEB

Second Applicant

SZSEC

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 15 October 2012.  The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicants protection visas.  There are three applicants, the first two of whom are from Fujian Province in China.  They are the first applicant, the applicant mother and the second applicant, the applicant father.  The third applicant, the applicant child, was born in Australia.  The applicant child is a charming, but vocal boy.  All three applicants attended the hearing today.  The applicant child and the applicant father had to leave the court room at various stages because of the applicant child’s vociferous interjections. 

2. The principal protection claims were made by the first applicant.  Any references in these reasons to the applicant are intended to be references to her. 

3. The applicants claimed persecution in China on account of their religion and the Chinese one child policy and also opposition to their relationship from their family.  The following statement of background facts relating to the applicant’s protection visa claims and the Tribunal decision on them is derived from the Minister’s written submissions filed on 16 May 2013.   

4. The first applicant’s claims were that her parents were underground Christians in China, and she herself was a Christian who had continued her faith in Australia.  The Tribunal accepted that she was a Christian.  She claimed her father had been detained for three days in 2003 and at the same time she had also been detained and questioned about her family’s religious activity and then released over the course of a day.  The Tribunal accepted that these events occurred.[1]  The applicant came to Australia in 2008.  She claimed that in 2010 her father had been arrested and fined for holding a family gathering and put in the community for labour reform.  The Tribunal did not accept this claim as it was considered inconsistent with independent country material which suggested that the authorities in Fujian were now more tolerant of unofficial church gatherings.[2]  The Tribunal concluded that the applicant could return to China and practice her religion at the state run church, and if she was unhappy there she could attend the underground church in her home area without risk of persecution.[3]  The second applicant had converted to Christianity in Australia, and the Tribunal found, for the same reasons, that he could continue his religious practice in China.[4]

   [1] Court Book (CB) 132[99]

   [2] CB 133 [104]

   [3] CB 134[112]

   [4] CB 135[113]

5. The first applicant claimed that her marriage to the second applicant would not be recognised in China.  The Tribunal rejected this claim on the basis of independent country information.[5]

   [5] CB 135 [118]

6. The first applicant claimed that the third applicant would not be registered in China without the payment of a fine as he was born out of wedlock.  The Tribunal accepted this was the case, but found that the fine payable was considerably less than that claimed by the first applicant.[6]  The Tribunal considered that the applicants would pay this fine on their return to China, and the third applicant would be registered.  The third applicant thus did not have a well founded fear of persecution as an unregistered child.[7]

   [6] CB 136 [120]

   [7] CB 137 [124]

7. The first applicant gave evidence that she intended to have a second child.  The Tribunal accepted that this would be a further breach of the one child policy.  The Tribunal considered that the penalty for this breach would be pursuant to a law of general application and thus not persecution for one of the Convention reasons.[8]

   [8] CB 138[134]

8. The Tribunal then found that there were no complementary protection obligations to the applicants.  In relation to any potential breach of the one child policy the Tribunal stated that: ^[9]

   The Tribunal again considers the information cited above regarding laws of general application are relevant, and the applicants will consider this when determining whether to have a second child.  If they decide to have a second child, the Tribunal finds that the applicants will pay to have the second child registered.

   [9] CB 140 [148]

9. These proceedings commenced with a show cause application filed on 9 November 2012.  There are three grounds in the application under the heading “Orders Sought by the Applicant”:

   1, I disagree with Immigration and RRT’s decision as they did not carefully consider my religious background with Local church, my commitment and risk in pursuing my [Christian] faith in origin.

   2, RRT failed to give thorough consideration to my Australian born child’s interest and our financial difficulty in support family in origin.

   [3],   RRT made an unfair judgment based on country information, instead of facts and investigation on specifics.

10. There are a further four paragraphs under the heading “Grounds of the Application”:

    1, I am on student visa background, and was a member of Local church in China with experience of being persecuted by Chinese government.  My family also experienced persecution due to practice with Local church.  RRT failed to fairly consider my fear and risk due to my religious commitment and family background.

    2, RRT failed to carefully consider my case and make a judgment simply on country information that in Fujian the religious situation is in liberal circumstance which is doe not reflect the real facts on my specifics.

    3, Tribunal failed to take into account of my poor financial ability to pay for the social compensation fee in origin, especially our Australian born child’s interest due to our financial difficulty to pay for social compensation fee for household registration.  To make a living, we are forced to work but this does not necessarily mean we can work and support a family with a unregistered child in China because we have no qualification as result of quitting school in Australia.

    4, RRT failed to well consider my husband’s commitment on Christian faith and failed to give us a chance to common on outstanding questions, which is unfairly treated to us.

11. Some of the grounds are bald statements unsupported by particulars.  Others appear on their face to be an attack upon the merits of the Tribunal’s decision.  The Minister in his submissions has identified four arguable legal proposition from the grounds.  Those propositions are discussed in the Minister’s written submissions.  The first and second applicants declined to make any oral submissions in chief and they have not provided any written submissions.  In reply, the first applicant complained that at the Tribunal hearing, she was not permitted to finish her sentences and was cut off by the presiding member.  In the absence of a transcript, it is impossible to verify that assertion which was raised for the first time at the hearing today. 

12. The first applicant also complained that she expected the panel lawyer, appointed under the Minister’s Panel Advice Scheme to provide advice to the applicants, to appear at today’s hearing.  The correspondence file records that Mr Matthew Tyson provided advice to the applicants pursuant to the Panel Advice Scheme on 22 February 2013.  There is nothing to indicate that the applicants should have had any expectation that any further assistance was to be provided by Mr Tyson.  The scope of the Panel Advice Scheme was explained to the applicants at the first court date hearing in this matter on 30 January 2013.  That explanation is contained in an information sheet which was read to the applicants at that time by the interpreter.  At that directions hearing, I asked the applicants if they had any questions about the Panel Advice Scheme.  My recollection is that they did not. 

13. In terms of the legal issues raised in the application, the Minister’s submissions deal adequately with those issues.  I agree with the minister’s submissions. 

14. The application can be considered as raising four grounds.  The first ground asserts that the Tribunal failed to assess the claims of the first applicant fairly.  No particulars or submissions in support of this ground have been provided.  As it stands it is an impermissible request for merits review.

15. The second ground asserts that reliance on country information meant that the Tribunal failed to consider the specifics of the applicant’s case.  Again this is not supported by particulars or submissions.  The weight to be placed upon country information is a matter of fact finding for the Tribunal.[10]  Absent identification of any particular “specific” which has been overlooked this ground cannot succeed.

    [10] VWFW v Minister for Immigration [2006] FCAFC 29; QAAT v Minister for Immigration [2005] FCA 968; NAHIv Minister for Immigration [2004] FCAFC 10. SZNRH v Minister for Immigration & Anor [2009] FMCA 849 at [6]

16. The third ground alleges that the Tribunal failed to take into account the applicants’ poor financial capacity to pay a social compensation fee, and in particular the fact that they had not achieved any qualifications in Australia which could assist their employment prospects in China.  This was a question of fact for the Tribunal.  The Tribunal expressly took into account that the applicants were unqualified and would have to undertake unskilled work.[11]  Nevertheless it made a factual assessment that the applicants would both work and the income they would receive would be sufficient to pay the fine on behalf of their child so he would receive services in China.[12] 

    [11] CB 136 [121]

    [12] CB 136 [123]

17. The fourth ground asserts a failure to consider the second applicant’s Christian commitment and a failure to allow the applicants to comment on outstanding questions.  This ground fails on the facts.  The Tribunal considered the second applicant’s Christian commitment and made findings in relation to it[13]:

    The applicant’s husband raised claims that he will be persecuted due to his association with the religious applicant and for his own religious practices.  The Tribunal notes that the applicant’s husband is an irregular attendee at the church that the applicant attends on a regular basis.  This is due to the legitimate reason that the applicant’s husband has to work on Sundays and is not always available to attend church.  The Tribunal has found that the applicant will not be persecuted for her practice of religion in China.  This finding is made regardless as to whether she attends the official church or a local church.  Accordingly the applicant’s husband’s claim that he would be persecuted due to his association with the applicant’s religious practices are not made out.  The Tribunal finds that the applicant’s husband will not be persecuted because of his association [with] the applicant’s religious practices.  Further, the Tribunal finds that the applicant’s husband will not be persecuted because of his own religious practices, given the circumstances discussed above regarding [the] applicant’s religious prospects.

    [13] CB 135 [113]

18. The applicants have failed to identify by way of particulars or submission the “outstanding questions” upon which they claim they were not provided an opportunity to comment.  In the absence of a transcript there is no evidentiary basis for such an assertion.[14]  Nor is there an obligation upon the Tribunal to provide the applicants with a running commentary on its thought processes.[15]  Again, the applicants appear to be seeking merits review.

    [14] NAOA v Minister for Immigration [2004] FCAFC 241 at [21]

    [15] SZBEL v Minister for Immigration [2006] HCA 63; (2006) 228 CLR 152 at 166

19. The Minister’s submissions also raise, consistently with the model litigant principle, a question concerning the discussion of forced sterilisation in China.  No issue relating to forced sterilisation had been raised either before the Tribunal or by this Court. 

20. In the course of setting out the independent country information upon which it relied, the Tribunal discussed forced sterilisation in China.  The inference that sits most easily with the decision of the Tribunal, read as a whole, is that the Tribunal considered that the material it discussed did not raise a real chance that the applicant(s) might be sterilised.

21. The applicants made no reference to forced sterilisation in their written claims.  It was not persecution or significant harm which they claimed to fear.  In substance the Tribunal agreed with the applicants that it was not persecution or significant harm they need fear.

22. In my view, the application fails to disclose any jurisdictional error by the Tribunal. As I have explained to the applicants, the Tribunal met its statutory obligations. The Tribunal provided a hearing opportunity to the applicants consistently with its obligations under s.425 of the Migration Act 1958 (Cth) (Migration Act). It does not appear that there was anything engaging an obligation of disclosure under s.424A of the Migration Act. All elements or integers of the applicant’s claims were considered.

23. I find that the Tribunal’s decision is free from jurisdictional error and is therefore a privative clause decision.  It follows that the application must be dismissed and I so order. 

24. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  The scale amount applicable when this application was filed is $6,471.  The first applicant indicated an intention to pay the costs, although those costs would be a substantial financial burden.  I am satisfied that costs of at least $6,471 have been reasonably and properly incurred on behalf of the Minister when considered on a party and party basis.  I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $6,471.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:  4 June 2013