SZSHG v Minister for Immigration

[2013] FCCA 690

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSHG v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 690

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to act fairly and justly, was biased, made incorrect findings of fact, failed to comply with s.424A of the Migration Act 1958 and failed to accord the applicant a real and meaningful hearing.

Legislation:

Migration Act 1958, ss.36, 417, 420, 424A, 424AA, 425, 474

Cases cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v Li (2013) 297 ALR 225

Applicant: SZSHG

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2758 of 2012

Judgment of: Judge Cameron

Hearing date: 11 June 2013

Date of Last Submission: 11 June 2013

Delivered at: Sydney

Delivered on: 11 June 2013

REPRESENTATION

The Applicant’s litigation guardian appeared on behalf of the Applicant

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The applicant’s litigation guardian pay the first respondent’s costs fixed in the amount of $4,800.

3. In the event that it is necessary to further identify the applicant’s litigation guardian in orders of this Court, the parties have liberty to apply.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2758 of 2012

SZSHG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant was born in Australia on 20 May 2011, but is taken to be a citizen of China.  On 26 September 2011 the applicant’s parents lodged an application for a protection visa on his behalf.  The application asserted that the applicant would face harm in China by reason of that country’s family planning laws.  On 6 January 2012 a delegate of the first respondent (“Minister”) refused the applicant’s application.  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision. 

2. In these judicial review proceedings, the Court cannot rehear the applicant’s application for a visa. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error, as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. The applicant was represented by his mother as his litigation guardian.

4. For the reasons which follow, the application will be dismissed.

Background facts

1. The applicant’s parents are citizens of China. The applicant’s father arrived in Australia in 2008 and his mother arrived in 2009. They have a daughter born in 2001 who lives in China. The applicant’s parents applied for protection visas separately in 2009 and 2010, claiming fear of persecution by Chinese authorities. Both of their applications were refused by the Department and by the Tribunal. After the applicant was born his parents made an application for ministerial intervention under s.417 of the Act but that application was refused.

2. As noted earlier, on 26 September 2011 the applicant’s parents lodged on his behalf an application for a protection visa.  The facts alleged in support of the applicant’s claim for a protection visa were set out in pages 4-19 of the Tribunal’s decision.  Relevant factual allegations are summarised below.

Protection visa application

1. In a letter attached to his protection visa application, the applicant’s authorised representative made the following claims on his behalf:

   a)his parents came to Australia to flee persecution by Chinese authorities;

   b)he was an involuntary member of a disadvantaged social group which was subject to severe discrimination in China;

   c)he would be labelled on his hukou as an excessive child, even if his parents managed to pay the heavy fine and underwent forced sterilisation to enable him to be registered;

   d)he would be labelled as an illegitimate child born overseas, as his parents are divorced in China.  This classification would be recorded on his household registration and he would be discriminated against because he would need to show this document when enrolling in nursery or school, receiving immunisations or doing other social activities; and

   e)he would be a target for exploitation as Chinese officials are ignorant of the law and would think that he was a foreigner from Australia.

Tribunal proceedings

1. Prior to its hearing, the Tribunal received a submission made on behalf of the applicant.  The submission contained a statement from the applicant’s mother in which she claimed that she and the applicant’s father already had a daughter in China who was born before they married.  The applicant’s mother also claimed that she and the applicant’s father subsequently married, then divorced, but were still in a relationship.  The rest of the statement essentially repeated claims already made.  The submission also contained several newspaper articles about the escape from house arrest of a blind human rights activist in China who had campaigned against the forced sterilisation of women.

2. At a Tribunal hearing on 7 June 2012 the applicant’s mother made the following additional claims:

   a)the applicant’s sister was registered in 2003 or 2004 after the payment of a social compensation fee.  The applicant’s mother claimed that she was invoiced 6,000RMB, but ended up paying over 10,000RMB as she had to give gifts and money in addition to paying the fine.  She claimed that she had to report to the government after her daughter’s birth because they did not want her to fall pregnant again;

   b)after the applicant’s birth his grandmother went to the neighbourhood committee and was told that although the amount of the consequential fee was dependent on various factors, 50,000RMB would not solve the problem;

   c)the family planning laws had fines that varied from place to place and the power of the family planning authority was almost unlimited.  She claimed that the authority was a large organisation and would not miss the chance to issue a fine for extra children born out of wedlock and before marriageable age;

   d)as a child born out of wedlock, the applicant had no hukou.  He would also have no medical or educational benefits, be refused immunisation and would face many problems. These consequences would be exacerbated because he was born overseas;

   e)even if the applicant were to obtain a hukou, which would be very difficult, he would be labelled and would be treated differently and unfairly.  For example, his parents would have to pay 40RMB every year towards medical treatment and he would be treated more strictly by the government;

   f)the applicant’s mother was fearful that she would lose her life in China, as Chinese officers use their power in an oppressive way, which might lead to a person’s death if officers were not obeyed and the person protected their rights.  The applicant would also be oppressed because if the parents were oppressed, the child would be too;

   g)the applicant’s parents married in 2006;

   h)in 2005 the applicant’s father complained about the unfair treatment of a colleague who had been a church member and had been electrocuted at work.  In 2008 the applicant’s mother’s shop was forcibly closed by the government because of her husband’s troubles with the authorities.  She was also arrested, together with other church members who were visiting her home;

   i)the applicant’s parents arrived in Australia separately, as they were already divorced and the applicant’s mother did not want to leave her daughter and her father when the applicant’s mother’s father was suffering from a serious illness.  They had divorced so as not to implicate the applicant’s mother in her husband’s troubles;

   j)the applicant’s mother’s fifteen month delay after she arrived in Australia in applying for a protection visa was because she needed the courage to step forward;

   k)the applicant’s parents faced persecution in China because of their religion.  The applicant’s mother claimed that they had held gatherings at home and had been arrested.  She feared that she would be under surveillance and would be arrested should she return to China.  She stated that the government would come looking for her mother and the neighbourhood committee would check on her;

   l)the applicant’s mother returned to China for approximately six months in 2008 because things happened at home.  She was not arrested or put under surveillance during that period;

   m)the applicant would not have freedom of religion in China.  He would believe in God in the future and would face problems which would test and try him; and

   n)the applicant and his family would be a target of exploitation because of his sex and his overseas birth.  It was possible that he would be smuggled and his relatives arrested and their houses burned.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant, and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention Relating to the Status of Refugees 1951 amended by the Protocol Relating to the Status of Refugees 1967, (“Convention”) or pursuant to s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)on the basis of the Tribunal’s finding that the applicant’s parents were Chinese citizens, the applicant’s claimed nationality on the protection visa application and Article 5 of the Nationality Law of the People’s Republic of China, it found that the applicant was a Chinese national.  The Tribunal also acknowledged that as the applicant was an infant, a well-founded fear in a subjective sense could be derived from the fear held by his parents;

   b)taking into account all the information before it, the Tribunal found that the applicant’s birth could and would be registered with Chinese authorities should he return to China.  In this connection the Tribunal made the following findings:

   i)it accepted that upon their return to China the applicant’s parents might be subject to a fine under China’s family planning regulations because the applicant was an “out-of-plan” child.  It also accepted that the registration of the applicant might not be possible unless and until a social compensation fee was paid.  However, the Tribunal found the fee that would be payable was within his parents’ means and would be paid.  In arriving at this conclusion the Tribunal referred to the following:

   ·     the failure of the applicant’s parents to make any explicit or clearly articulated claim that they could not or would not pay the fine in respect of the applicant if he were to return to China;

   ·     his mother’s agreement with the Tribunal’s suggestion that the social compensation would be paid, even though it would be difficult;

   ·   information about his parents’ financial circumstances;

   ·     the range of levies and the methods by which they could be paid;  and

   ·     the fact that the applicant’s parents had managed to support themselves in Australia for a number of years.

   ii)the Tribunal referred to the applicant’s mother’s claim that he would be exploited because he was born overseas.  In the absence of country information, the Tribunal was not prepared to accept that the applicant would be forced to pay a higher compensation fee because of his overseas birth or because his parents would be deemed wealthy due to their overseas travel.  It also did not accept that local officials had unlimited power to issue fines;

   iii)the Tribunal did not accept the applicant’s mother’s claim that she or her husband would have to undergo sterilisation in order for the applicant to be registered or as a result of having had two children.  In this connection, it referred to the absence of independent country information before it which connected sterilisation to the registration of children.  Further, because of the existence of a detailed regime for the imposition of the social compensation fee, it also did not accept that the parents would be prevented from registering the applicant until they consented to sterilisation; and

   iv)in the absence of corroborative country information, the Tribunal also did not accept that the applicant would face barriers to his registration because he was born overseas or because his parents were returning from overseas.

   (c)the Tribunal did not accept that the applicant would be subject to severe discrimination or inhumane treatment because he was an out-of-plan child.  In this connection, the Tribunal referred to the mother’s inability to provide convincing reasons why this would result in significant adverse consequences for the applicant and considered that her claims relating to this point were vague and lacking in detail.  It also found that while the applicant would be unable to access state-subsidised education and medical services while he was unregistered, that did not amount to serious or significant harm to the applicant as health services were available privately and were within the financial means of the applicant’s family and he would be registered prior to reaching school age; 

   (d)while the Tribunal accepted that there was not complete religious freedom in China, it found that as the applicant was an infant the claim that he would be subject to harm because of his religious beliefs was purely speculative; 

   (e)the Tribunal found that there was no real chance that the parents, and by extension, the applicant, would suffer religious persecution in the future.  In this connection, the Tribunal accepted that the applicant’s mother might have held some Christian beliefs and might have wished to practise Christianity in China and to raise her son in the faith.  However, it also referred to country information which suggested that a large number of Christians practise without incident in Fujian in both registered and unregistered churches.  It also referred to the applicant’s parents’ previous failed protection visa claims; and

   (f)in the absence of country information, the Tribunal did not accept that there was a real chance that the applicant would be smuggled, kidnapped and sold because he was a boy. 

Proceedings in this Court

1. In the application commencing these proceedings, the applicant alleged:

   1.The tribunal has not been in compliance with s.420(1) and (2) of the Migration Act 1958 because it failed to act fairly or justly in carrying out the reviewing of the application. It also did not act in accordance with substantial justice and merits of the case.

   2.The tribunal was wrong and too subjective for assuming that since there were a large number of Christians in Fujian province and no incident of arrest was mentioned in the reports that the tribunal had access to, therefore, we would not face religious suppression or persecution. The tribunal was not fair because many of the reports referred to and used by the member as recorded in the decision record were not mentioned to me during the hearing or after the hearing. It also did not ask me to provide comments on those reports which were all in favour and supportive for the tribunal’s decision. Therefore, it failed in its obligations under 424AA and 424A.

   3.The tribunal was wrong in assuming that we could afford to pay the fine to enable our son to obtain Hukou so that discrimination against him by the government and the society would be reduced to the minimum. The tribunal also provided many different figures in relation to the amount of fine in the decision. These figures were not provided to me during the hearing or after the hearing for me to respond or comment. Therefore, it failed its obligations under 424AA and 424A.

2. At the time the application was filed, the applicant’s litigation guardian also filed an affidavit sworn or affirmed on 25 November 2012 to which was annexed a statutory declaration which included a number of grounds relied on in support of the application.  Further matters were also raised during the course of addresses. 

Ground One

1. The first ground of the application does not disclose a basis to set the Tribunal’s decision aside.  As French CJ noted in Minister for Immigration & Citizenship v Li (2013) 297 ALR 225 at 231-232 [12], s.420 is not expressed in terms which would support claim of jurisdictional error based on non-observance of any of its elements.

2. However, at the hearing of this application, the applicant’s litigation guardian gave some substance to this allegation by submitting that the Tribunal had not considered the applicant’s case on its individual merits and had thereby acted unfairly.  She submitted in this regard that the Tribunal’s failure to consider the applicant’s case on its individual merits could be seen in its use of information from other people’s cases and information from the internet to draw conclusions about the likelihood of the applicant facing religious persecution in Fujian province. 

3. The applicant’s litigation guardian further submitted implicitly that the Tribunal was biased, disbelieving her evidence even though she had given it on oath.  She also referred to actions of the Minister’s department but the Court’s jurisdiction in this case is limited to the Tribunal and does not extend to the Department.

4. I do not agree that the Tribunal did not consider the applicant’s case on its individual merits, its reasons disclose quite the contrary, and the fact that information from third party sources was drawn on by the Tribunal does not affect this conclusion.  The Tribunal was entitled to obtain information on its own account and to accord it such weight as it considered appropriate.  It was also entitled to draw inferences from such information which in turn led it to particular conclusions relevant to the applicant’s application and his allegations.

5. The implicit allegation of bias was not supported by any evidence or arguments other than the reference to the fact that the applicant’s mother had given her evidence to the Tribunal on oath.  The Tribunal was entitled, given the matters to which it referred, to doubt what the applicant’s mother had told it and doing so did not manifest bias against the applicant.  Nothing else advanced by the applicant’s litigation guardian provided a basis to find actual or apprehended bias on the part of the Tribunal. 

6. For these reasons, the allegations and submissions concerning s.420 of the Act do not disclose jurisdictional error on the part of the Tribunal.

Ground Two

1. The first part of the second ground of the application alleged that the Tribunal made incorrect findings of fact.  However, no matter how much this Court might disagree with a finding of fact expressed by the Tribunal, that alone is insufficient to ground a finding of jurisdictional error.  It would be a different matter if the finding of fact was unsupported by evidence but that is not the allegation made on behalf of the applicant. 

2. The second part of the second ground alleges a breach of s.424A of the Act. Relevantly, that section provides:

   Section 424A     Information and invitation given in writing by Tribunal

   (1)Subject to subsections (2A) and (3), the Tribunal must:

   (a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   (b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

   (c)invite the applicant to comment on or respond to it.

   …

   (3)This section does not apply to information:

   (a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   …

1. Quotation of that section reveals that the information which it is said should have been provided to the applicant was information falling within the exception to the operation of ss.424A(1) found in 424A(3)(a). For that reason, the second element of the second allegation in the application is not made out.

Ground Three

1. The third ground of the application also challenged one of the Tribunal’s finding of fact.  For the reasons already given, such circumstances do not provide a basis to find jurisdictional error. 

2. A further allegation of breach of s.424A is also made, but again, for reasons already given, no error was made by the Tribunal by not providing the information in question to the applicant’s mother, if in fact that is what happened.

3. The Minister submitted, in relation to this aspect of the allegation, that a breach of s.425 might be perceived in it. I disagree, but even if it can be, the Tribunal’s discussion at paragraph 116 of its reasons indicates that the issue of various levels of fees or fines in China was discussed at the hearing.

Statutory declaration

1. The fourth ground relied upon by the applicant was found in paragraph 1 of the statutory declaration.  It impliedly alleged that the applicant’s mother was denied an opportunity to put before the Tribunal everything she wished it to have because of the disruptive effect which the applicant had had at the Tribunal hearing.  No evidence was adduced at the hearing of this application in support of that allegation and the only evidence before the Court which is of relevance to it is found in the Tribunal’s decision record.  At paragraph 32 of that decision record, which is located in the Tribunal’s summary of its hearing, the Tribunal records that the applicant attended the hearing with his mother and that the Tribunal told the applicant’s mother that she could request a break at any time.  It went on to say:

   The Tribunal said that while it was happy to proceed with the child present, if the child became disruptive, the Tribunal may adjourn the hearing to another day, so the mother had an opportunity to present his case.  The representative (the applicant and his mother were assisted at the Tribunal hearing by a representative) indicated that he would be available to take the child outside if he became distracting if the mother agreed.  The Tribunal indicated that this was a matter for the representative and the mother to decide and noted that there would be a recording of the hearing which the representative could listen to. 

2. In paragraph 68 of the Tribunal’s decision record, which summarises the final moments of its hearing, the Tribunal records itself as having asked the applicant’s mother if she wished to say anything more and that she provided some further additional comments.  However, she did not request further time to put additional material before the Tribunal.  In paragraph 69, the applicant’s representative is recorded as indicating that he had nothing that he wished to say.  Based on that evidence, I am not satisfied that the allegation made in paragraph 1 of the statutory declaration is made out and I do not accept that the applicant was denied a fair hearing.

3. Paragraphs 2 and 4 of the statutory declaration alleged breaches of s.424A of the Act, which for the reasons already given, are not made out.

4. Paragraph 3.1 of the statutory declaration alleged bias on the part of the Tribunal in that it was alleged that the Tribunal only quoted information that was unfavourable to the applicant.  However, as already noted, the Tribunal is entitled to source information on its own account and to give it such weight as it considers appropriate.  The fact that the Tribunal might identify and rely on certain information does not, without more, support of a finding of bias whether actual or apprehended. 

5. Paragraph 3.2 of the statutory declaration challenged the Tribunal’s finding of fact on an issue and for the reasons already given would not provide a basis to set the Tribunal’s decision aside.  Paragraph 3.3 of the statutory declaration repeated the applicant’s earlier claim concerning the individual nature of his claim and his entitlement to a separate consideration of his rights.  For the reasons already given I am not satisfied that that allegation is made out. 

6. Paragraph 3.4 of the statutory declaration was another challenge to a finding of fact which did not point to jurisdictional error. 

7. Paragraph 5 of the statutory declaration was in essence a repetition of ground 1 of the application and for the reasons already given is not made out. 

Allegation at hearing

1. At the hearing of this application, the applicant’s litigation guardian also made submissions concerning the persecution she and her family were likely to face if they returned to China and the fact that state protection would not be available to them. 

2. The Tribunal’s findings of fact, relevantly in this instance concerning whether the applicant and his parents would be likely to face persecution in China, were open to it.  For the reasons already given, disagreement with them does not evidence jurisdictional error. 

3. Having concluded that the applicant did not have a well-founded fear of persecution in China, whether as understood under the Convention or under Australia’s complementary protection obligations, meant that it was not necessary for the Tribunal to consider whether state protection was available.  Consequently, it did not error by not doing so. 

Conclusion

1. For these reasons, jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed. 

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

Associate: 

Date: 3 July 2013