SZSIJ v Minister for Immigration
[2013] FCCA 295
•15 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSIJ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 295 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – applicants claiming religious and particular social group persecution in China – applicants’ fears found not to be well-founded – no arguable case of jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36, 474 |
| Minister for Immigration v SZIAI (2009) 83 ALJR 1123 Minister for Immigration v SZMDS (2010) 240 CLR 611 Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259 Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 SZMIA v Minister for Immigration (2010) 116 ALD 580 |
| First Applicant: | SZSIJ |
| Second Applicant: | SZSIK |
| Third Applicant: | SZSIL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2843 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 15 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 15 May 2013 |
REPRESENTATION
The First Applicant appeared in person
| Solicitors for the Respondents: | Ms A McCaughan Clayton Utz |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
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 $3,239.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2843 of 2012
| SZSIJ |
First Applicant
SZSIK
Second Applicant
SZSIL
Third Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
I have before me a show cause application filed on 4 December 2012, seeking review of decision of the Refugee Review Tribunal (Tribunal) made on 7 November 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are three applicants who are a mother, the first applicant, her partner and their child. Any references in this judgment to the applicant are intended to be references to the first applicant. The first and second applicants are from China and the first applicant’s home province is Fujian. She made claims of religious persecution and also persecution based on the application of the Chinese one-child policy.
The following statement of background facts relating to the applicants’ claims and the decision of the Tribunal on them is derived from the Minister’s written submissions filed on 8 May 2013.
The applicants are citizens of the People's Republic of China (China).
On 7 March 2008, the first applicant arrived in Australia holding a sub-class 573 Student visa which was valid until 15 March 2012[1].
[1] Court Book (CB) 158 at [21]
On 29 March 2008, the second applicant, who is the first applicant's de facto husband, arrived in Australia holding a sub-class 571 Student visa. This visa was cancelled on 2 April 2009.
On 22 October 2009, the first applicant visited China and later returned to Australia[2].
[2] CB 158 at [21]
On 11 April 2011, the third applicant, the child of the first and second applicants was born in NSW, Australia[3].
[3] CB 160 at [23]
On 26 September 2011, the applicants applied for Protection (Class XA) visas (protection visas). The second and third applicants claimed protection through the first applicant as members of the family unit[4]. On 22 December 2011, the first applicant was interviewed by a delegate of the Minister for Immigration (delegate)[5].
[4] CB 160 at [23]
[5] CB 160 at [24]
On 24 January 2012, the delegate refused to grant the protection visas[6].
[6] CB 155 at [3]
On 20 February 2012, the applicants applied to the Tribunal for review of the delegate’s decision.
On 11 May 2012, the applicants appeared before the Tribunal to give evidence and present arguments[7]. On 12 June 2012, the applicants appeared at a second hearing to give evidence and present arguments, and oral evidence was also presented by a member of the Jehovah’s Witnesses[8].
[7] CB 163 at [25]
[8] CB 175 at [77]
On 7 November 2012, the Tribunal affirmed the decision of the delegate.
First applicant's claims
The first applicant claims persecution from Chinese authorities due to her:
a)practice of the Christian faith - this arises from her family's involvement with the Local Church in China, and from her own involvement as a Jehovah’s Witnesses in Australia; and
b)status as an unmarried mother with a child who was born out of wedlock - this being a breach of China's family planning laws and thus requires the payment of a social compensation fee.
Tribunal's findings and reasons
In relation to the Convention claim concerning the first applicant’s practice of Christianity, the Tribunal found:
a)her involvement with the Local Church in China to be insubstantial - limited to being in the choir[9].
b)she did not, as claimed, send Jehovah’s Witnesses materials by internet to her friend “Meng Meng” - the evidence concerning the date(s) of despatch of such material pre-dated her contact with the Jehovah's Witnesses in October or November 2010[10]; and
c)she would not face persecution in China on the basis of religion[11] because:
i)she is not baptised, has not undertaken any missionary work, remains in an unmarried relationship (which is inconsistent with the tenets of the religion) and her stated intention to be baptised was not believed;
ii)the credibility findings concerning the sending of Jehovah’s Witnesses material cast doubt about the plausibility of her intention to become a published Jehovah’s Witnesses missionary;
iii)country information did not suggest that the first applicant would be at risk of persecution as a Jehovah’s Witness – Jehovah’s Witnesses are not a banned cult; their literature is circulated in China; their website is not blocked and recent UN reports did not evince any particular suppression of Jehovah’s Witnesses.
[9] CB 191 at [145]-[146]
[10] CB 191-192 at [145]-[149]
[11] CB 193 at [153]-[155]
In relation to the claim about persecution for having a child out of wedlock, the Tribunal found that[12]:
a)the imposition of the social compensation fee is not persecution;
b)upon payment of the social compensation fee, the third applicant can obtain household registration and its attendant benefits;
c)the evidence suggested that the first and second applicants would be able to work or obtain financial assistance to pay the social compensation fee;
d)even if the third applicant were not to obtain household registration, or if the relevant social compensation fee was not paid, the ramifications would not amount to persecution.
[12] CB 194-196 at [157]-[162]
Accordingly, the Tribunal concluded that the applicants did not have a well-founded fear of persecution for a Convention reason.
Nor, the Tribunal found, did the applicants face significant harm within the meaning of s.36(2)(aa) of the Migration Act 1958 (Migration Act)[13].
[13] CB 196 at [163]-[166]
The applicant continues to rely upon her original show cause application. The grounds of that application are set out in a document attached to it. The grounds are contained under the heading “Orders Sought by the Applicant”. Under the heading, the “Grounds of the Application”, there is a narrative repeating factual claims made by the applicant in support of her claim for protection:
Orders sought by Applicant
…
I disagree with [Tribunal’s] decision as they did not carefully consider the risk due to my religious practice and commitment, especially my strong desire of preaching which is legally forbidden in China.
[Tribunal] failed to consider my faith, as well as my genuine and truthful church involvement at current stage and my long term commitment of evangelization.
[Tribunal] show unfair assessment to my family financial situation and its doubt about my family ability is wrong and lack of investigation.
[Tribunal’s] judgment on my family, including the assessment of the reason why I could not marry and assumption to my partner’s family’s attitude against our relation is not true and unfair.
[Tribunal] [failed] to consider my Australian born child’s interest if we are forced to remove to origin, in particular the discrimination and social basis, penalty due to our breach to family planning law are not carefully and prudently considered.
The Ground of the Application are:
I am a Chinese student and faithful member of Jehovah witness which in Australia. I have a genuine faith and commitment in evangelization and wish to spread gospel wherever I go.
I used to be cautioned and hard experienced due to my religious practice in China. My family especially my mother and brother also has been persecuted and suffered be police. I have fear of life challenge, persecution in origin due to my religion and commitment on preaching and practice.
I have been an active church member and equipped through cause of constant bible study and qualified training in current church with evidence and witness. I am ready to go whenever I am called by church for missionary duty.
Although I am currently in partnership with my boy friend due to family denial of our relation I don’t think this will be a hurdle for my holy vision in future. We are suffering financial difficulty and really our life on faith. We must be put in vulnerable situation coping with various social bias and pressure if remove to China as result of breach of family planning law. We, in particular our child will suffer in endless harm and unfair treatment and all these will amount more serious harm on bring our fate and future in blue.
I received as evidence a short affidavit filed at the same time as the application. I also received the court book filed on 11 January 2013. The first applicant, who was the only applicant to appear before the Court in these proceedings, asserted that there were documents missing from the court book. She provided two documents in the Chinese language which I initially marked for identification. I ultimately received those documents as an exhibit[14]. It transpired that the documents were not omitted from the court book but had been obtained by the applicant after the Tribunal decision.
[14] exhibit A1
At one level, the grounds advanced by the application are simply a complaint over the outcome of the review before the Tribunal and argument over the merits of the Tribunal’s reasoning. The Minister has, however, in his submissions, attempted to divine what may be legal issues arising from the grounds.
Grounds 1, 2, 4 and 5
The decision record, which is lengthy and detailed, demonstrates that the Tribunal fully considered, and subsequently rejected, the applicants' claims. The grounds raised by the applicant invite merits review, which is beyond the Court's jurisdiction[15]. Further, the Tribunal's factual findings were open to it on the evidence and do not disclose any irrationality of the sort discussed by the High Court in Minister for Immigration v SZMDS[16]. The Tribunal's conclusions were open to it on the material before it[17].
[15] Minister for Immigration v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ
[16] (2010) 240 CLR 611
[17] SZMIA v Minister for Immigration (2010) 116 ALD 580 at [20]
Ground 3
The basis on which the applicant claims the Tribunal was “unfair” in its assessment of the first applicant’s family financial situation is not clear. The claim lacks particulars. It does not disclose any reviewable error.
The applicant’s claim that the Tribunal's “doubts” and its “assessment” about her financial situation being “wrong” again challenges the merits of the Tribunal decision. In any case, no indication is given as to how or why the Tribunal was wrong but it ought be observed that the issue was the subject of detailed consideration in the decision record at [159]. On the evidence before it, the Tribunal found that the applicants had been resourceful, had a history of employment and otherwise it was not satisfied that they would not find employment in China.
Additionally, the available evidence did not suggest that the first applicant will not have access to financial support from her family (the first applicant's family having sent (and it may be inferred funded) the first applicant and her two sisters to Australia for study purposes).
As to the applicant's claim that the Tribunal failed to investigate, this must also fail on the basis that the Tribunal's duty is one of review, not investigation. The Tribunal's duty is to determine the case put to it. There is no general duty of inquiry. In Minister for Immigration v SZIAI[18] at [25], the High Court stated:
...The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error...
[18] (2009) 83 ALJR 1123
In the present case, there has been no failure by the Tribunal to investigate a critical fact.
Insofar as the applicants allege unfairness in the Tribunal’s conduct of the review, there is no basis in the evidence for a finding of breach of any of the provisions set out in Division 4 of Part 7 of the Migration Act. The applicants attended hearings before the Tribunal on 11 May 2012 and 12 June 2012, at which they both gave evidence and presented arguments relating to the issues arising in relation to the delegate's decision. They were given clear particulars of information that would be the reason, or a part of the reason, for affirming the delegate's decision by letter dated 26 June 2012 and they took up the Tribunal's invitation to comment on or respond to that evidence.
The applicant made extensive oral submissions in support of the show cause application. First, she asserted that the Tribunal’s record of what occurred at the hearings conducted by the Tribunal was not complete[19]. She said that her witness had given evidence of the risks faced by those who sent religious materials to China or distributed them there. She also said that the witness was cautioned not to disclose her evidence outside the Tribunal.
[19] CB 180-181
The applicant did not take up the opportunity afforded in procedural orders I made on 7 February 2013 to provide as evidence a transcript of the Tribunal hearing. Nevertheless, I have no reason to doubt that the applicant’s witness may have been cautioned in the manner described and she may have referred in her evidence to the risk faced by people spreading religious materials in China.
The caution, if given, would be normal procedure in dealing with a witness. As to the risk faced by those spreading religious materials, the presiding member did not purport to give a verbatim account of the Tribunal hearings in her reasons. The reasons, however, are very detailed in their description of what occurred at the hearing. I proceed on the basis that the Tribunal included, in its reasons, those aspects of what occurred at the hearings that it considered relevant. As I told the applicant during the course of argument, the risk faced by persons spreading religious materials in China only becomes relevant if an applicant has engaged in that activity. The Tribunal found that the applicant had not.
At [150] of its reasons[20], the Tribunal referred to the fact that the applicant was unable to corroborate her claim of having sent religious materials to China with any documents. The applicant before this Court sought to deal with that problem by tendering the documents which formed exhibit A1. The interpreter read the documents aloud. The documents are two screen prints of what appears to be an online chat sessions between two people via computer. The people use only nicknames, and the time of the exchange is unclear, although it appears to be in the evening. I do not know the date of the exchange. The exchange is a combination of informal chat, and references to a document verifying, or containing, religious material. The applicant conceded that she had discovered these documents after the Tribunal decision. Although I receive them as evidence, in my view they have no significance in relation to any asserted jurisdictional error by the Tribunal.
[20] CB 192
The applicant complained about the Tribunal’s reliance upon information it received from the Jehovah’s Witnesses church in response to a letter[21]. The applicant asserted that the Jehovah’s Witnesses church does not admit publicly the persecution of its members in China. The response received by the Tribunal form the church stated that although members of the church do not worship openly in China, and the church is not registered in China, Jehovah’s Witnesses are not generally given harsh treatment, or suffer imprisonment. The applicant contested the accuracy of those statements, by reference to things that she said she had been told by her friends, or members of her congregation. As was pointed out by the Minister’s solicitor in oral argument, it is for the Tribunal to determine what independent material to refer to, and the weight to give to that material. I see no arguable issue of error by the Tribunal in the use it made of the response to its letter.
[21] CB 185
The applicant also referred to alleged errors in interpretation at the Tribunal hearing, reflected at [148] of the Tribunal’s reasons[22]. The applicant asserted that the word “casual” was mistranslated from Mandarin Chinese. Again, as I pointed out to the applicant, in the absence of a transcript, and opinion evidence from someone expert in both the Mandarin and English languages, it is difficult to do anything with that bold assertion.
[22] CB 192
Further, as was pointed out by the solicitor for the Minister, the issue at this point in the Tribunal’s decision was the applicant’s relationship with her friend in China, and whether the applicant had sent religious material to her. The nature of the relationship was but one of several considerations bearing ultimately upon the Tribunal’s conclusion, that the applicant had not sent the religious materials as she had asserted.
In relation to [51] of the Tribunal’s reasons[23], the applicant took issue with the Tribunal’s statement concerning the significance of the bible and the involvement of ordinary members of the Jehovah’s Witnesses church. The applicant complains that she was asked leading questions by the presiding member about her faith relative to that of her brother. I see, however, nothing unfair in the recitation of that aspect of the Tribunal hearing. In relation to [88] of the Tribunal’s reasons[24], the same issue was raised and I reach the same conclusion.
[23] CB 169
[24] CB 177
The applicant took offense to the Tribunal’s treatment at [160] of its reasons[25], of the second applicant’s claim that he may have to sell a kidney to pay the social compensation fee for their child. On its face, that claim appears somewhat extravagant. In the applicant’s mind, that simply demonstrated the second applicant’s determination to do whatever was necessary to secure the welfare of their child. I accept that, but the Tribunal had to deal with the claim as made.
[25] CB 195
The Tribunal found that while the first and second applicants would have to pay a social compensation fee (which the Tribunal quantified) for their child in China in order to have him registered, that fee was not so high that the payment of it would amount to persecution. That finding was open to the Tribunal on the material before it. That material included financial information provided by, or on behalf of the applicant in support of an earlier student visa application.
Finally, the applicant asserted that the presiding member was biased against her. In support of that assertion, the applicant pointed out that the presiding member has Indian ethnicity. She considered, apparently for that reason, and in the light of her experience at the Tribunal hearings, that the presiding member was biased. There is no indication of any bias on the face of the Tribunal record. An allegation of bias is a serious matter that should be raised specifically and supported by evidence. Such claims are too frequently and too lightly made. The Tribunal decision is unusually detailed. The Tribunal’s reasoning is careful and comprehensive. It is in my view, an impressive statement of reasons. I see no significance whatsoever in the ethnicity of the presiding member.
I conclude that the applicants have failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will order that the application be dismissed.
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 $3,239.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 21 May 2013
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