SZSEZ v Minister for Immigration

[2013] FCCA 219

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSEZ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 219

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal – application to the Court seeks impermissible merits review – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.65, 91R, 425, 476

Cases cited:
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Minister for Immigration & Cultural Affairs 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
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630
SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22
NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369
SZSLM v Minister for Immigration & Citizenship [2009] FCA 537; (2009) 176 FCR 539

First Applicant: SZSEZ

Second Applicant: SZSFA

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2653 of 2012

Judgment of: Judge Nicholls

Hearing date: 8 April 2013

Date of Last Submission: 8 April 2013

Delivered at: Sydney

Delivered on: 17 May 2013

REPRESENTATION

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

Appearing for the Respondents: Ms E Baggett

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application made on 15 November 2012 is dismissed.

2. The applicant pay the first respondent’s costs set in the amount of $5,000.00

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2653 of 2012

SZSEZ

First Applicant

SZSFA

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application made on 15 November 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 19 October 2012, which affirmed the decision of a delegate of the first respondent to refuse the grant of a protection visa to the applicants.

Background

1. The applicants are mother (“the applicant”) and child (“the applicant’s child”). Both applicants are nationals of the People’s Republic of China (“China”). The applicant arrived in Australia on 24 April 2008 as a student with a visa that expired on 15 March 2011. She remained in Australia unlawfully after this date (Court Book – “CB” – CB 13). The applicant’s child was born in Australia on 12 February 2011 (CB 26). However, the applicant’s child is not an Australian citizen (CB 27). The applicants applied for protection visas on 22 February 2012 (CB 1 to CB 40).

Claims to Protection

1. The applicant set out her claims to protection in detail in a statement attached to the protection visa application (CB 33 to CB 34). She claimed to fear persecution on two grounds.

2. First, she claimed to fear persecution due to her Christian beliefs and practice. She claimed to have been interrogated by police in China after attending a baptism ceremony, discriminated against at school after she attempted to share her beliefs with her friends, and abused by her family who were Buddhist (CB 33). She claimed that her family had arranged a marriage for her to a Buddhist, and since her family had accepted an engagement gift from the groom’s family, she had effectively been married. She claimed that without her family’s knowledge she had married another Christian and her family had not spoken to her since (CB 34).

3. Second, the applicant claimed that she would face persecution if she returned to China as her relationship with the father of the applicant’s child, whom she had married, had broken down. She claimed that due to her situation the family planning office in China would persecute and punish her. Further, that she would face discrimination in her hometown due to the fact that she was a single mother (CB 34).

The Delegate

1. The applicant was interviewed by the Minister’s delegate on 28 May 2012 (CB 52). The delegate wrote to the applicant on 1 June 2012 advising her that the application for protection visas had been refused (CB 54). The delegate found the applicant’s claims regarding her conversion to Christianity to be “implausible for a number of reasons” (CB 69). That is, the delegate found that the applicant’s claims to persecution for her claimed related activities were implausible when considered in context, and in light, of the applicant’s other claims (CB 69 to CB 70).

2. The delegate also did not accept that the applicant would face harm from the family planning authorities in China, as the delegate found that the applicant had not violated the planning policy, having been of age and married when her child was born (CB 69).

The Tribunal

1. On 27 June 2012 the applicants applied to the Tribunal for review of the delegate’s decision (CB 74). The applicant attended a hearing before the Tribunal on two occasions (7 September 2012 and 9 October 2012) (CB 96 to CB 122). Additional documents were presented to the Tribunal at the first occasion (CB 99 to CB 103). The applicant maintained her claims before the Tribunal and raised additional claims on behalf of her son. In essence these were that he would suffer harm because he had been born outside the Chinese family planning laws and because he was the son of a single mother.

2. On 19 October 2012 the Tribunal affirmed the delegate’s decision and the applicants were notified, by letter dated 22 October 2012, of this decision (CB 124 to CB 125).

3. The Tribunal accepted the applicant’s factual claims as they related to her family relationships, her marriage and her husband’s attitude to their son.

4. However, the Tribunal found that the applicant was not a credible witness on various key matters. Its concerns can be summarised as follows:

   1.The Tribunal did accept the applicant’s factual evidence and concerns regarding her son and possible persecution or discrimination, that she could face in China from her family. However, the Tribunal found (at [140] at CB 151) that there was not:

   “…a real chance the applicant would suffer serious harm in China for reasons of her membership of a particular social groups of ‘single mothers’ or ‘separated or divorced mothers’…”

   2.The Tribunal found that the applicant’s claims about her involvement in religious practice were lacking in credibility. The Tribunal found that the applicant’s evidence was contradictory to earlier statements and claims, and held that she had embellished her account of certain matters in an attempt to bolster her claims ([147] at CB 152 to [158] at CB 155). It rejected key factual assertions made by the applicant.

   3.Further, pursuant to s.91R(3) of the Act, the Tribunal disregarded the applicant’s claimed conduct in relation to her attendance at a local church while in Australia. The Tribunal found that it was done for the purpose of strengthening the applicant’s refugee claims ([154] at CB 154 and [157] at CB 155).

5. The Tribunal also found that the applicant’s son would not suffer serious harm in China for reason of the family planning laws or his personal circumstances ([145] at CB 151 to [146] at CB 152 and

   
   

   [164] – [165] at CB 156). Further, the Tribunal found that neither of the applicants would suffer “significant harm” as that term is understood in relation to the complementary protection criterion in s.36(2)(aa) of the Act ([160] – [163] at CB 156).

Application to the Court

1. The application before the Court contains the following:

   “Orders sought by the Applicant

   …

   1, RRT’s decision is unfair and imprudent as my real risk and harm due to my religion with Local Church as well as the financial difficulty and bias due to the family’s denial to our marital relation are not carefully and comprehensively considered.

   2, RRT railed to consider my desperation and pressure as a mother, and broken relation in China. RRT’s decision failed to consider my helpless condition and financial hardship due to my current dilemma and marital status.

   3, RRT failed to give me a clear indication of what kind of evidence required in and after hearing, and made decision claiming I am short of evidence and this is not fair to me.

   4, RRT judged the case simply by taking reference of country information in general but failed to consider my specifics and specialty before making decision.

   The Grounds of the Application are:

   1, I am a faithful Local Church follower and actively involved in church practice in Australia. I have fear of persecution due to my religion as Local Church has never legally recognized by government and repression has been continuously going on in China.

   2, I can not go back to China as my preaching activities to Local Church are checked out and investigated by Chinese authority.

   3, I have baptized and committed in my religion. My child will be hard to financially support by ourselves and our family denial to our marital relation will make out life more financially pressured, helpless, and causing psychological harmed. As a student, I am eager to go back to school and pursue my religion in Australia.”

   [Errors in the original.]

Before the Court

1. The applicant appeared in person at the first Court date in this matter, on 5 December 2012. She was assisted by an interpreter in the Mandarin language. On that occasion, the applicant was appointed as her son’s litigation guardian. Further, the applicant indicated her willingness to participate in the Court’s “RRT Legal Advice Scheme”. A Certificate in the Court’s file indicates that the applicant was provided with written advice on 28 January 2013.

2. At the final hearing the applicant again appeared in person and as litigation guardian for her son. She was assisted by an interpreter in the Mandarin language. Ms E. Baggett represented the Minister.

3. Despite the opportunity to obtain legal advice the applicant had little to say in the prosecution of her application before the Court. When pressed, the applicant referred generally to the hearing before the Tribunal.

4. The applicant’s comments appeared to concede that when she was asked by the Tribunal about her religion that she had not answered “exactly”. Further, that her evidence “perhaps” had a “little bit” of “inconsistency”. That she forgot “days and times”. She then complained that even though she appeared to have “contradicted” herself during the Tribunal hearing it was because it was a “long time”. It was not clear whether this was a reference to the length of the hearing, or the passage of time from the time of the event she was seeking to recount to the Tribunal.

Consideration: The Applicant’s Oral Complaints

1. The short answer to the applicant’s complaint on either basis is, as the Minister submitted, that the Tribunal’s findings of inconsistency in her evidence and when compared with what she had generally put in relation to her application, were reasonably open to the Tribunal on what was before it. The Tribunal gave reasons for these findings. As such, the Tribunal’s adverse credibility findings were findings of fact within jurisdiction (Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 (“Durairajasingham”)).

2. If it was the length of the hearing that the applicant sought to complain about then the first occasion of the hearing before the Tribunal, on the best evidence available, lasted about three and a half hours with two adjournments (CB 97). On the second occasion the hearing lasted just under two hours (CB 115). Importantly, the evidence before the Court, noting that the applicant did not put a transcript of the hearing before the Court, does not reveal how the length of the hearing would have affected the applicant’s capacity to give evidence. The Tribunal’s account, which is before the Court, provides no support for any such proposition. Nor did the applicant explain this complaint to the Court.

3. When given the opportunity before the Court to make submissions in reply, the applicant embarked on a complaint not previously raised. She appeared to take issue with the Tribunal’s use of the country information before it. She stated the “situation” was “different” in “every local area”. Further, that in rural areas the situation was different to that expressed in the country information relied on by the Tribunal.

4. Although not expressly articulated as such, I understood the applicant’s complaint to be that the Tribunal’s various references to country information ([105] at CB 142 to [125] at CB 147 and [142] at CB 151 to [146] at CB 152), dealing with family planning and household registration matters and the like, were not applicable to her circumstances and those of her son.

5. Other than a vague reference to the differences between rural areas the applicant did not explain how the country, or independent, information was not available to the Tribunal to resolve her claims. In any event, the choice of, and the weight to be accorded to, such information is for the Tribunal to assess and determine (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10] – [11] and [14]).

Consideration: The “Grounds” of the Application

1. The “grounds” of the application are merely a restatement of some of the applicant’s factual claims before the Tribunal. This can only be understood as a disagreement with the Tribunal’s factual findings. In the circumstances, the “grounds” do no more than seek impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259).

Consideration: The “Orders Sought” in the Application

1. The “Orders Sought” make a number of complaints about what the Tribunal is said to have done. First, the application complains that the Tribunal’s decision was “unfair”. The unfairness, at best, is said to derive from the fact that the Tribunal did not accept that the applicant faced a real risk of harm if she were to return to China.

2. Therefore, this complaint is not an assertion of any failure of procedural fairness (the context within which unfairness may lead to jurisdictional error in cases of this type), but rather, simply a disagreement with the Tribunal’s findings and conclusions. It is the case that the Tribunal is not required to make a “correct”, or even in that sense a “fair”, decision. Its obligation is to provide a “fair” process (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

3. The word “bias” also appears in this complaint. It is not clear whether this is used as an expression of disfavour by the applicant’s family’s attitude to her marital relationship (or her husband’s family) or whether it refers to the Tribunal.

4. If the latter, then such serious charges must be distinctly made and clearly proven (Minister for Immigration & Cultural Affairs 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 applicant fails at the first hurdle, and on what is before the Court, has not made out her assertion in relation to the latter.

5. Second, the “orders” complain that the Tribunal failed to consider the applicant’s claims to protection. Such a complaint, if made out, could lead to jurisdictional error in the way explained in such authorities as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 and Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630.

6. However, in the circumstances of this case and having regard to the Tribunal’s decision record, it is clear that the word “consider” is used by the applicant in the sense of “accept”. That is, that the Tribunal did not accept her claims. The short answer is that the Tribunal is not required to do so. In the current case the Tribunal did consider all of the applicant’s claims to protection. It found that the applicants (noting the separate claims in relation to the applicant’s child) did not meet the relevant statutory tests for the grant of a protection visas (“serious” or “significant harm”).

7. Third, the applicant complains that the Tribunal did not give her “a clear indication” of what evidence was required from her to succeed in her application.

8. This misunderstands the statutory context in which the Tribunal operates. There is no obligation on the Tribunal to tell an applicant what is needed to succeed. It is for the applicant to present her evidence and claims, and for the Tribunal to reach, or not reach, the requisite level of satisfaction such that the visa must, or must not, be granted (s.65 of the Act and SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 22, NAST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 208 at [4] – [5] per Beaumont, Merkel and Hely JJ and Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

9. Nor, does s.425 of the Act impose a greater burden on the Tribunal than that explained by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152. On the evidence before the Court (the Tribunal’s account of the hearing contained in its decision record) the issues dispositive of the review were raised at the hearing. The applicant could have been in no doubt that her credibility was at issue following the delegate’s decision (CB 68 to CB 72, and see in particular the finding of “fabrication” of the applicant’s claims in relation to relevant events in China – CB69.5).

10. In any event, the Tribunal made no finding that the applicant was “short of evidence” (as claimed by her now), in the sense of expecting the applicant to provide corroborating material. The applicant seems unable to understand that the reason for the Tribunal’s adverse conclusion was due to the lack of credibility in her evidence.

11. Fourth, the “orders” also complain that the Tribunal relied on country information without considering the applicant’s specific claims. Further to what is set out above at [20] – [22], this again fails to understand that the Tribunal did consider the “specifics” of her claim. It simply did not believer her. No jurisdictional error is revealed here.

Consideration: The Applicant’s Son

1. For the sake of completeness I also note the Minister’s submission in relation to the discharge of the Tribunal’s procedural fairness obligations to the applicant’s son, a minor. I agree with the Minister that although the applicant’s son was unable to personally respond to the invitation pursuant to s.425 of the Act to give evidence, he was nonetheless afforded procedural fairness as his mother was given the opportunity to give evidence on his behalf (Re Woolley and Anor; Ex parte Applicants M276/2003 (by their next friend GS) [2004] HCA 49; (2004) 225 CLR 1; (2004) 210 ALR 369 and SZSLM v Minister for Immigration & Citizenship [2009] FCA 537; (2009) 176 FCR 539).

Conclusion

1. In all, none of the applicants’ complaints reveal jurisdictional error in the Tribunal’s decision. The grounds of the application are not made out. The application should be dismissed. I will make an order accordingly.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Date:  17 May 2013