SZSFY v Minister for Immigration

[2013] FMCA 236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZSFY v MINISTER FOR IMMIGRATION & ANOR [2013] FMCA 236

MIGRATION – Application for review of decision of Refugee Review Tribunal – no arguable case – application dismissed.

Migration Act 1958 (Cth), ss.36, 91R, 424A, 425, 476
Federal Magistrate Court Rules 2001 (Cth), r.44.12

Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Associated Provisional Picture Houses, Limited v Wednesbury Corporation [1947] EWCA Civ 1
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259
NABE v Minister for Immigration and Multicultural and 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

Applicant: SZSFY

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2708 of 2012

Judgment of: Nicholls FM

Hearing date: 13 March 2013

Date of Last Submission: 13 March 2013

Delivered at: Sydney

Delivered on: 13 March 2013

REPRESENTATION

The Applicant: In Person

Appearing for the Respondents: Ms H Dejean

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The application made on 22 November is dismissed pursuant to Rule 44.12(1)(a) of the Federal Magistrate Court Rules 2001 (Cth).

2. The applicant’s litigation guardian, her mother, pay the respondent’s costs set in the amount of $3,239.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2708 of 2012

SZSFY

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore; Revised from Transcript)

1. The application before the Court today was made on 22 November 2012 pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”). It purports to seek review of the decision of the Refugee Review Tribunal (“the Tribunal”), made on 30 October 2012, which affirmed the decision of the respondent Minister’s delegate to refuse the grant of a protection visa to the applicant.

2. However, the immediate issue before the Court is to address the Minister’s contention that the application should be dismissed because, not only does it not raise any arguable case, there are no “grounds” of the application as that is understood in law. Further, there are no orders sought in any recognisable form for any relief that the applicant may seek from this Court.

3. The Minister’s position, with which I agree for the reasons that follow, is that the application should be dismissed in accordance with r.44.12(1)(a) of the Federal Magistrate Court Rules 2001 (Cth) (“the Rules”).

Background

1. The background to this case can be seen with reference to the bundle of relevant documents that the Minister has put before the Court (the Court Book – “CB”). The applicant is a child born in Australia on 18 August 2011 (CB 1.5 and [20] at CB 127). She is nonetheless, not an Australian citizen but a citizen of the People’s Republic of China (“China”). Both her parents came to Australia as tourists in July 2008. They applied for protection visas in August 2008 on the basis that the applicant’s father claimed to have feared persecution because he was a Falun Gong practitioner. That application was refused ([21] at CB 127). The Tribunal, differently constituted to the Tribunal whose decision is before the Court today, affirmed that decision in relation to the parents’ application. Despite not having permission to remain in Australia, the applicant’s parents, quite clearly, did remain in Australia without permission ([21] at CB 127).

2. The applicant before the Court, who is a child, made an application for a protection visa on 7 December 2011 (CB 1). It is clear that, in making that application, her mother acted on her behalf (CB 24). The claims advanced on the applicant’s behalf were that she feared persecutory harm from the Chinese authorities because the applicant’s parents had been, and were, Falun Gong practitioners who themselves had suffered harm in the past (CB 29). In a separate written statement the applicant’s mother further claimed that the Chinese authorities had forcibly expropriated their farming land and that they received less compensation than others because they were Falun Gong practitioners (CB 43).

The Delegate

1. The applicant’s parents, in relation to their child’s application, attended an interview with the Minister’s delegate. They made further claims about their experiences in China, including certain instances of harm (CB 68.2). They raised the claim that the applicant would face persecution because she had been born in breach of China’s family planning laws (CB 70.6).

2. Amongst other reasoning, the delegate found that the claims advanced on behalf of the applicant were “merely uncorroborated assertions” (CB 55 to CB 59).

The Tribunal

1. Through her mother, the applicant then applied to the Tribunal for review of the delegate’s decision (CB 74 to CB 79). The Tribunal wrote to the applicant pursuant to s.424A of the Act on 23 August 2012 (CB 81 to CB 102 without attachments). The letter sought comment or response in relation to, essentially, two sets of information. The first was comment or response to the matters raised in a Tribunal decision record, dated 30 December 2008, relating to the applicant’s parents. The Tribunal, whose decision is the subject of the current proceedings, explained that that record set out information concerning the difficulties about the parents’ evidence relating to their claimed circumstances in China.

2. The Tribunal noted that the information in that decision record was similar to what was, again, being asserted in relation to the applicant’s own application. Further, the Tribunal noted that this was information that led to the earlier, previously constituted, Tribunal finding that the applicant’s parents were not Falun Gong practitioners and were not of interest to the Chinese authorities (CB 81 and CB 83 to CB 88).

3. Second, the Tribunal made reference to, and provided a copy of, the delegate’s decision record in the applicant’s own matter. That decision record referred to information provided by the applicant’s mother to the delegate, and noted the delegate’s difficulty with that information which led to the refusal of the protection visa (CB 81 to CB 82 and CB 89 to CB 102 and see also [41] at CB 129 to [49] at CB 130).

4. The applicant’s mother responded on the applicant’s behalf. She also sent a number of documents in support of the applicant’s claim (CB 103 to CB 110).

5. Pursuant to s.425 of the Act, the applicant was invited to a hearing before the Tribunal (CB 113). Both of the applicant’s parents attended and gave evidence on her behalf (CB 120). The Tribunal’s account of what occurred at the hearing is set out in decision record ([53] at CB 131 to [77] at CB 134).

6. Ultimately, the Tribunal understood that the claims that were being advanced on the applicant’s behalf were that she would face harm if she were to return to China because her parents would be targeted by the Chinese authorities as Falun Gong practitioners. Further, that her parents’ difficulties with the local authorities in China, arising from the resumption of their land, would also cause difficulties. Third, that the applicant would face difficulties because she had been born in breach of the family planning laws.

7. The Tribunal made a number of important findings. First, it found that the applicant’s parents were not Falun Gong practitioners in China and were, therefore, not persecuted for that reason. In reaching this conclusion, the Tribunal found significant variations between the evidence of the applicant’s parents and found other aspects of their evidence to be “unlikely” ([82] at CB 134 to [98] at CB.137)

8. While the Tribunal found that the applicant’s parents were not Falun Gong practitioners, it nonetheless accepted that they had attended weekly Falun Gong sessions in Australia from the time following the delegate’s adverse decision. However, it gave no weight to this in the analysis of the applicant’s claims because it found that the parents’ attendance was done for the purpose of strengthening their daughter’s claims to refugee protection (s.91R(3) of the Act) ([87] at CB 135).

9. The Tribunal specifically rejected the applicant’s mother’s claims to have been arrested and to have suffered harm in China for any reason. However, it accepted that the applicant’s father may have been briefly detained in China. However, it found that this was in connection with the land dispute and not because he was identified, or targeted, as a Falun Gong practitioner ([91] – [93] at CB 136).

10. The Tribunal therefore found that the applicant would not be at risk of persecutory harm if she were to go to China for reason of her parents’ claimed connection to Falun Gong ([98] at CB 137).

11. The Tribunal also found that she was not at risk of persecutory harm because of claimed family planning infringements or because she was the daughter of Falun Gong practitioners. It found that, at most, the applicant’s parents may be put to paying, what it said was, a “social compensation fee”. Although, the Tribunal noted that even that was not certain. However, even if that were to be the case, it was not such, in the circumstances, to amount to persecution as that term is understood with reference to the Act. The Tribunal also found that the applicant would not be refused “registration” on return to China ([99] – [100] at CB 137).

12. The Tribunal noted that in 2007/2008 there had been an issue between her father and local authorities over a land dispute involving the resumption of a plot of land. However, it was not satisfied that this would remain an issue such that there would be a real risk of “significant harm” to the applicant if she were to now go to China. The Tribunal made this finding having regard to the relevant criterion for a protection visa, namely the complimentary protection criterion (s.36(2)(aa) of the Act) ([102] at CB 137).

Before the Court

1. It must be said, in what is now becoming an increasingly common approach in matters of this type, that the application to the Court is formulaic. It actually raises no grounds for review as that term is properly understood at law. Nor does the application seek any orders from the Court in any recognisable form. I say recognisable in the sense of the relief that this Court may be able to grant applicants who have been ultimately determined not to be refugees by the Tribunal.

2. Under the heading “Orders sought” the application sets out what, at best, could be described as complaints about what the Tribunal did. In essence, it makes a number of factual assertions about the merits of the applicant’s refugee claims under the headings of “Grounds of the Application”:

   “Orders sought by the Applicant

   1. RRT’s decision of NOT accepting our explanation that my parents could not find out a Falun Gong group in Australia is unfair and unreasonable and against the reality of Falun Gong rule of practice, that Falun Gong has actually no organisation or group in public. All the Flung Gong activities are open and volunteered.

   2. RRT failed to consider my parents Falun Gong background and persecution once experienced in origin and adverse affection upon our family. If we are forced to return to China.

   3. RRT failed to consider my fate, as child due to my parents’ Falun Gong record and it is unfair to give no weight of my parents evidence provided for my family history of Falun Gong.

   4. RRT failed to give us a chance to express and further common to outstanding questions and made decision imprudently.

   The Grounds of the Application

   1. I am Chinese citizen who have experience persecution and life challenge in China due to practice Falun Gong.

   2. I have great concern of our Falun Gong background will implicate me, an Australian born child if return to origin.

   3. my entire family could not survive in China as we have no any property, land or home to rely on China, and will suffer in poverty, financial difficulties, and harm. Our weak and vulnerable situation with no doubt places us in more stress, desperation and social discrimination in origin due to our background.”

   [Errors in Original]

3. At the first Court date in this matter the applicant’s mother appeared on her behalf. She was assisted by an interpreter in the Mandarin language. She was appointed the litigation guardian for the applicant. At that time I sought to explain to the applicant’s mother the difficulties with the application as presented. She was referred to a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”. At that time I also made orders providing for the opportunity for the filing of any amended application, and any evidence in support of any such application.

4. When the matter was called today, the applicant’s mother appeared for the applicant. The applicant’s father was also present. The applicant’s mother was, again, assisted by an interpreter in the Mandarin language. Ms H Dejean appeared for the Minister.

5. The Minister submitted that his position, as initially expressed in his formal “Response”, had not changed. In essence, that the application did not raise any arguable case for the relief sought. This was because it articulated no grounds and no orders in any recognisable form. The Minister asked that the Court, with reference to r.44.12(1)(a) of the Rules, proceed to dismiss the application. The applicant’s mother was on notice from the first Court date of the possibility of the Minister pressing such a course of action.

6. Unfortunately for the applicant, the applicant’s mother was unable to progress the applicant’s case in any way. This is despite having received legal advice in this matter. A Certificate on the Court’s file shows that the applicant’s mother met with, and was given advice, and was subsequently given written advice, by a lawyer on the panel of the Court’s “RRT Legal Advice Scheme”.

7. Before the Court, the applicant’s mother said that she had received a letter “about a month ago” but had not had its contents translated because there was no-one available to translate the document. I thank madam interpreter for her assistance in that regard today in assisting the applicant’s mother in translating the letter when I adjourned for that purpose (the letter appears to be advice from the lawyer).

8. In any event, it appears that there was no assistance to be gained from whatever was written in the letter because the applicant’s mother had nothing of substance to put to the Court. She stated that she wanted a “fair decision” from the Court. I understood by this that she asserted that the Tribunal’s decision was “not fair”.

9. There are at least two things that must be said about that. The first is that it was quite clear that, despite the Court’s attempts to explain the nature of these proceedings on an earlier occasion and despite being referred to a lawyer, the applicant’s mother plainly continues to misunderstand, or ignore, the nature of these proceedings. The Court has no power, as I sought to explain to her, to provide her with a “fair” decision in the sense of providing a visa for her daughter. In any event, to the extent that that is a complaint about the outcome of the Tribunal’s consideration, this Court can only be concerned with whether the Tribunal provided a “fair” process to the applicant, not necessarily that it made the “right” decision (Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1).

10. The applicant’s mother also made some reference to the hearing with the Tribunal and sought to express some “unhappiness” with what had occurred there. There is no evidence before the Court of what may have occurred at the Tribunal hearing other than what is mentioned in the Tribunal’s decision record. I note in this regard, again, that the applicants were referred to a lawyer and were given the opportunity to put evidence before the Court in support of the application. The Court can only proceed on the evidence presented to it. It is not open to the Court to make assumptions in the absence of evidence as to what may have otherwise occurred at the hearing with the Tribunal (NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241). On the Tribunal’s account, I cannot see any basis for any complaint, as vague as that complaint was in its articulation before the Court.

11. Under the heading “Orders sought” in the application, the applicant made no reference to any orders. In the circumstances I took the view that, with an unrepresented applicant of this nature (and even an applicant who has had the benefit of some legal advice), even if what the applicant, through her parents, was seeking was relief in the usual form of relief in matters of this type, that there was no basis and certainly no arguable case had been put forward to support the making of any such orders. Again, I need to emphasise, and I will return to the orders sought in a moment, that what is set out there is, essentially, a series of factual assertions relating to refugee claims.

12. Nor do the grounds of the application assert any legal error. Again, they make factual assertions about the claims to protection in Australia. As the Minister submits, they constitute no more than an impermissible attempt at seeking merits review from this Court. They do not raise any arguable case for any relief even if I were to take the position that the orders sought by the applicant were of the usual relief sought in matters of this type.

13. “Order one” complains that the Tribunal did not accept the applicant’s parents’ explanation as to why they did not attend Falun Gong practice in Australia until 2012. This was said to be unfair and unreasonable. It echoes what the applicant’s mother said to the Court today about a “fair decision”. It refers, as the applicant’s mother also sought to refer before the Court today, to the explanation put by the applicant’s parents as to why they did not attend Falun Gong practice in Australia until many years had passed after their arrival in Australia. The explanation they offered to the Tribunal was that, until recently, they had been living in Scone in country New South Wales, that this was “far away”, there was no Falun Gong practice group, so they practiced Falun Gong “at home” (see [61] at CB 132 and [75] at CB 133).

14. The Tribunal did not accept the parents’ explanation for various reasons. It found that, for most of the period between 2008 and 2012, they had been living in Newcastle or Sydney. It made further findings as set out at [84] of its decision record (at CB 135):

    “The applicant’s parents confirmed at hearing that they had not practiced Falun Gong (other than privately at home) from their arrival in Australia in July 2008 until after the May 2012 adverse decision from the delegate. Although they cited having been living ‘remotely’ in Scone and being unable to locate any Falun Gong groups as the reason, in fact for much of this period they were living in Newcastle or Sydney (most recently, in Sydney from early 2012). The pregnancy of the applicant’s mother would not have been an impediment prior to early 2011. They only claim to have been engage with group practice and study since July 2012, after that adverse decision. The Tribunal does not accept that until then they were unable to find out about a Falun Gong group in Australia or that even at the sessions they have attended this year, others refused to talk to them or tell them anything. The Tribunal is satisfied that a genuine long-term practitioner would have been able to persuade Falun Gong practitioners or groups in Australia of their bona fides and to accept and talk to them.”

1. Through her parents, the applicant asserts, under the heading of “Orders sought”, that “Falun Gong” has no organisation, or group, such that they could have participated in organised activities. Again, with reference to what was put before the Tribunal, I cannot see that such any explanation was put to the Tribunal in relation to the failure to practice Falun Gong until after the delegate’s adverse decision was given in May 2012. The complaint, therefore, as expressed in the “Orders sought”, fails at that factual level because this explanation proffered now to the Court was not part of the Tribunal’s rejection of the claims, as put forward.

2. In any event, what was put forward as explanation for not practising Falun Gong, other than in the claim to have practised privately at home, was rejected for reasons advanced by the Tribunal which were open to it on what was before it. In these circumstances, therefore, the Tribunal’s conclusion cannot be described as unfair or unreasonable. The complaint really seeks to take issue with the Tribunal’s conclusion and the findings of fact leading to that conclusion. This does not present an arguable case.

3. Further, the Tribunal’s decision is not unreasonable in the sense explained in Associated Provisional Picture Houses, Limited v Wednesbury Corporation [1947] EWCA Civ 1. Nor unreasonable, or for that matter illogical or irrational, as all those concepts are explained by the High Court in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611; (2010) 266 ALR 367 (at [130] – [131] per Crennan and Bell JJ and [78] per Heydon J).

4. As I said earlier in relation to unfairness, the applicant is entitled to a fair process, not necessarily the “right” or “correct outcome”. There is nothing before the Court to show that the process adopted by the Tribunal was procedurally unfair. Therefore, not only is there no legal error asserted, let alone not revealed by this complaint, the challenge to the Tribunal’s finding simply does not rise above a request for impermissible merits review (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259). It raises no arguable case for the relief that I have assumed the applicant seeks in this matter.

5. “Order two” asserts that the Tribunal failed to consider her parents’ Falun Gong background, the harm experienced by them in the past because of this, and the risk of harm in the future because of their Falun Gong background. Any plain reading of the Tribunal’s decision record reveals that it did not fail to consider the applicant’s parents’ claims as to their Falun Gong practice, nor did it fail to consider the claimed consequences for this practice. On what is before the Court the Tribunal did consider all of the claims put forward as that concept is understood in light of 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 and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 75 ALD 630 and the like.

6. Given this, it becomes clear that what was really meant by the use of the word “consider” by the applicant’s mother here, or whoever was the author of this document, is that the Tribunal did not accept the parents’ claims in this regard, nor the claimed consequences. This again is simply a challenge to the Tribunal’s findings of fact which were open to it on what was before it. Again, this complaint seeks impermissible merits review. The Tribunal plainly was not required to unconditionally accept everything that the applicant’s parents put to it. Again, there is no arguable case.

7. The complaint in “order three” is of similar type. The claimed consequences for the applicant and her family background were all considered by the Tribunal. That the Tribunal was not satisfied that what was left of the Falun Gong related claims, or the family planning claims, would lead to either serious, or significant, harm for the applicant, in these circumstances, does not provide any basis for the applicant’s complaint now before the Court. Again, no arguable case is raised.

8. “Order four” can only be understood as asserting that the Tribunal failed to give the applicant, and her parents, the opportunity to make further comment on “outstanding questions”. I note that the reference at “order four” to “us” cannot include the applicant given her age. It is therefore plainly written from the perspective of the applicant’s parents. It is difficult to avoid noting that this is perhaps an indicator that what the applicant’s parents really sought to achieve in bringing this application and, consequently the current proceedings, was a

   
   

   re-hearing of their own claims to be refugees which were plainly rejected by the Tribunal on an earlier occasion.

9. In any event, if the complaint is meant to relate to some omission by the Tribunal at the hearing, and if this is related to what the applicant’s mother sought to put before the Court today as to her general unhappiness with what the Tribunal did at the hearing then, as I said earlier, the material before the Court reveals that they were given the opportunity to give their evidence and put their arguments and that the Tribunal did explain its concerns to them. I note also that what the “outstanding questions” may have been is, and has been, left unexplained. In these circumstances the complaint lacks factual substance.

10. Finally, in this regard, I also note that the Tribunal wrote to the applicant, that is, in effect, her parents were given the opportunity to comment on information that was a part of the reason for the Tribunal’s affirmation of the delegate’s decision.

11. The Tribunal has complied with its procedural fairness obligations, both under s.424A and s425 of the Act. “Order four”, or the complaint in “order four”, again, does not rise to the level of raising an arguable case for the relief that I assume that the applicant really seeks.

12. In all the circumstances, it is appropriate, therefore, that the Minister’s request today that the matter be dismissed pursuant to r.44.12(1)(a) of the Rules be granted. In the absence of any arguable case being raised by the application it should be dismissed now. I will make an order accordingly.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Date:  10 April 2013