SZSJH v Minister for Immigration

[2013] FCCA 884

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSJH & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 884

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – no jurisdictional error – application dismissed.

Legislation:
Migration Act 1958 (Cth), ss.36, 91(R)(1)(b), 412

First Applicant: SZSJH

Second Applicant: SZSJI

Third Applicant: SZSJJ

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2916 of 2012

Judgment of: Judge Manousaridis

Hearing date: 16 July 2013

Delivered at: Sydney

Delivered on: 1 August 2013

REPRESENTATION

The Applicants appeared in person.

Appearing for the Respondents: Ms N Johnson

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent recorded in the application be amended to “Minister for Immigration, Multicultural Affairs and Citizenship”.

2. The application be dismissed.

3. The first and second applicants pay the first respondent’s costs assessed in the sum of $5,400.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 2916 of 2012

SZSJH

First Applicant

SZSJI

Second Applicant

SZSJJ

Third Applicant

And

MINISTER FOR IMMIGRATION, MULTICULTURAL AFFAIRS & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. There are three applicants to this proceeding – an adult female, an adult male, and their child. The adult applicants are citizens of the People’s Republic of China.

2. The three applicants applied to the first respondent (Minister) for a protection visa. A delegate of the Minister refused the application. The applicants then applied to the second respondent (Tribunal) pursuant to s.412 of the Migration Act 1958 (Act) for a review of the delegate’s refusal to grant the protection visa. The Tribunal affirmed the delegate’s decision.

3. The applicants now apply to this Court for judicial review of the Tribunal’s decision. For the reasons set out below, that application fails and must be dismissed.

Decision of Tribunal

1. Before the Tribunal, the applicants relied on three grounds to support their claim for a protection visa. The first was that the first and second applicants were of the Mormon faith, and they feared persecution on account of their adherence to that faith if they returned to China.

2. The second ground was that, if the applicants returned to China, the third applicant would be disadvantaged by the operation of China’s family planning laws. That was so because:

   a)the third applicant was born out of wedlock;

   b)as a consequence of (a), the first and second applicants would be unable to access for the third applicant home registration unless the first and second applicants paid a “social compensation fee”;

   c)neither the first nor second applicant will have the means to pay the social compensation fee; and

   d)without home registration, the third applicant will not be able to access public services such as education and possibly health to the same extent or on the same terms as children who are registered.

3. The third ground was that the first applicant would be stigmatized or discriminated against on account of her having had a child out of wedlock.

4. The Tribunal did not accept the applicants’ claims, largely because the Tribunal did not find the first and second applicants worthy of credit. The Tribunal did not accept the first and second applicants were of the Mormon faith. And, although the Tribunal accepted the first and second applicants would be liable to pay a social compensation fee in order to secure home registration for the third applicant, the Tribunal did not accept that the first and second applicants will not have the means to pay such fee.

5. The Tribunal accepted that the first and second applicants might not be in a position to immediately pay the amount of the social compensation fee, and that during the time it would take the first and second applicants to do that, the third applicant would remain unregistered and to that extent face some discrimination in some areas. The Tribunal was not satisfied, however, that such unfavourable treatment constituted harm of such a nature or extent as to amount to persecution, having regard to the meaning of “serious harm” in s.91(R)(1)(b) of the Act.

6. The Tribunal was also not satisfied that the criterion specified in s.36(2)(aa) of the Act was satisfied. The Tribunal found that, whatever harm the third applicant might suffer on account of the operation of China’s family planning laws, or on account of her being born out of wedlock, such harm did not constitute “significant harm” as that expression is defined in s.36(2A) of the Act.

Application before this Court

1. In their application, the applicants identify four grounds of review. The applicants did not support these grounds with any written submissions. At the hearing, however, the first and second applicants (through an interpreter) made submissions in support of three of those grounds.

2. The first ground of review is that the Tribunal failed to take into account “relevant facts of the matter”, namely the second applicant’s family having broken up, his father’s house having been destroyed by the government, and the first and second applicants’ ability and difficulty to make a living in China.

3. This ground is not made out because the Tribunal did consider these matters. The Tribunal considered the break-up of the second applicant’s family and the claimed destruction of his family home at paragraphs 185 to 197 of the Tribunal’s reasons for decision. Further, the Tribunal not only considered, but made a finding about the applicants’ capacity to earn a living in China. The Tribunal found that “either or both of them may be able to find employment in China and meet their and their child’s financial needs of any social; compensation fee” (paragraph 182 of the Tribunal’s reasons for decision). In any event, these were not matters the Tribunal was bound to consider.

4. The second ground of review is that the Tribunal took into account irrelevant facts, namely, the occasions on which the first and second applicants last contacted their families in China.

5. This ground is not made out. The extent to which the applicants last contacted their parents in China was relevant to the Tribunal’s assessing whether or not, as the applicants claimed, they would be unable to draw on family support if they were to return to China. That, in turn, was relevant to whether the first and second applicants would be able to pay the social compensation fee and hence secure registration of the third applicant. In any event, matters relating to the applicants’ last family contact were not matters the Tribunal was forbidden to investigate and consider.

6. The third ground of review is that the Tribunal failed to take into account Australia’s obligations under articles 2, 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR). The applicants submitted nothing further in support of this ground during the hearing. There is no substance to this ground because the Tribunal was not bound to take into account Australia’s obligation under the ICCPR.

7. The fourth ground of review is that the Tribunal failed to take into account the Commonwealth’s obligation under the ICCPR and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. In support of this ground, the applicants submitted that the Chinese Government will tear down the houses of ordinary people by force. There is no substance to this ground because the Tribunal was not bound to take into account Australia’s obligation under the ICCPR of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

8. In his written submissions, the Minister suggested that the applicants’ third and fourth grounds might be intended to challenge the Tribunal’s assessment of the applicants’ satisfying the complementary protection criterion specified in s.36(2)(aa) of the Act. If that was the applicants’ intention, I accept, for the reasons submitted by the Minister in his written submissions, that the Tribunal manifested no reviewable error in its assessment of the applicants’ entitlement to complementary protection.

Disposition

1. The application should be dismissed and the first and second applicants should pay the first respondent’s costs which I fix at $5,400.

2. The name of the first respondent changed after the commencement of this proceeding. I will order that the name of the first respondent currently on the application be amended to reflect the current name.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  1 August 2013