SZSKS v Minister for Immigration

[2013] FCCA 2154

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKS & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 2154

Catchwords:
MIGRATION – Refugee of decision of Refugee Review Tribunal – No sustainable grounds in application – Application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa)

Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant:

Second Applicant:

Third Applicant:

SZSKS

SZSKT

SZSKU

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3015 of 2012

Judgment of: Judge Lloyd-Jones

Hearing date: 9 July 2013

Delivered at: Sydney

Delivered on: 20 December 2013

REPRESENTATION

The Applicants: The First Applicant appeared in person with the assistance of a Mandarin interpreter.

Solicitor for the First Respondent:	Ms Jones of Australian Government Solicitor
The Second Respondent:	The Second Respondent filed a submitting notice of appearance.

ORDERS

1. The name of the first respondent be amended to read “Minister for Immigration and Border Protection”.

2. The application filed on 18 December 2012 be dismissed.

3. The first and third respondents pay the Minister’s costs and disbursements of and incidental to the application.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3015 of 2012

SZSKS

First Applicant

SZSKT

Second Applicant

SZSKU

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being a decision of C. Cody dated 21 November 2012, RRT Case Number 1111233.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration & Border Protection, (the “Minister”) to refuse to grant the applicants Protection (Class XA) visas.

2. In accordance with the Court’s orders made on 5 March 2013 the solicitors for the first respondent, the Minister, were required to file a folder which was to be indexed, labelled and paginated, containing all documents which may be relevant to the hearing. This order was complied with and the volume of material provided is identified as the Court Book (“CB”).  On the date of the hearing, the Court Book was marked Exhibit “A”.

3. The applicants were granted leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any supporting affidavit material, on or before 26 March 2013.  The applicants elected not to file an amended application.  Further, the applicants elected not to file any affidavit material or written submissions.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister’s representative. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (CB) for that material.

2. The first and third applicants, respectively SZSKS and SZSKU, are citizens of the People’s Republic of China (“China”) who arrived in Australia on 20 February 2008 (CB 3) and 21 June 2005 (CB 18).  The second applicant is their child who was born in Australia on 26 April 2011 (CB 27).  On 27 June 2011 the applicants applied for Protection (Class XA) visas and on 19 October 2011 a delegate of the Minister refused their applications (CB 59-75).  On 24 October 2011 the applicants lodged an application for review of the Minister’s decision with the Tribunal (CB 76-79).

3. The first applicant claimed she would suffer persecution by reason of her Christian religion, because of her (unapproved) relationship with the third applicant and because her child was born out of wedlock.  Specifically, the first applicant claimed that the church she had attended in China was raided in 2007 and her uncle had to pay a fine to secure her release.  She claimed that, as a result of that incident, a teacher told her she had dishonoured her school’s reputation and her future career was jeopardised because of her involvement with that church.  Further, the first applicant claimed she had become involved with the church while living in Australia and sent missionary material relating to the Jasmine Revolution to friends in China through the internet.  She claimed this resulted in the harassment of her family in China by police and caused the death of her grandfather in May 2011.

4. The first applicant also told to the Tribunal she had hepatitis B.  She submitted a psychologist’s report stating she was suffering from symptoms associated with anxiety and adjustment disorder and would not be able to afford medical treatment in China.

5. The first and third applicants claimed they could not afford to pay the social compensation fee for their child in China and, as a result, the second applicant would be considered a “black child” and discriminated against.

6. Further, the third applicant claimed he would be persecuted in China on account of his religion as he had become a Christian in Australia and had attended church.

Tribunal’s Decision

1. The Tribunal affirmed the decision of the delegate to refuse the grant of Protection visas to the applicants.  In affirming the delegate’s decision, the Tribunal accepted the applicant may experience low-level harassment or discrimination for having a child out of wedlock, but did not accept that this would amount to serious harm (CB 196 at [153]).  The Tribunal also did not accept the first and third applicants would be unable to pay the social compensation fee (approximately AUD $1,200) in China (CB 193 at [141]).

2. The Tribunal found the first applicant was not a witness of credit as she had given “vague, changing evidence” throughout the application process (CB 202 at [178]).  For example, the Tribunal:

   a)Found the first applicant had provided inconsistent evidence in relation to where she had been baptised and whether the second applicant had been baptised at all (CB 198 at [160]); and

   b)Found the first applicant also had a very limited understanding of the Bible, despite her claim that she had studied the text over a 17 month period while living in Australia (CB 198 at [159]).

   These and other inconsistencies in the first applicant’s evidence led the Tribunal to conclude the first applicant was not telling the truth about her past or present commitment to Christianity or her claim that she would practice Christianity if she returned to China.

3. The Tribunal also had concerns with the evidence of the third applicant (CB 204 at [187]).  In particular, the Tribunal noted the third applicant only raised the claim that he feared persecution in China because of his religious beliefs at the hearing before the Tribunal and that he had previously told the delegate he was not Christian, despite nominating Christianity as his religion on his Protection visa application form (CB 205 at [190]-[191]).

Current Proceedings

1. The applicant filed an application for review of the Tribunal’s decision in this Court on 18 December 2012.  The grounds of the application were attached in two separate documents to the application form.  The first attachment states:

   1.  I couldn’t agree with RRT’s decision as I don’t think RRT has taken good account for my real situation in respect of commitment of Christian faith, hard experience and persecution in origin.

   2.  RRT failed to well consider my fear and risk of return due to my continuous effort of religious practice and commitment in Australia and all the probative evidenced and facts provided such as baptism.

   3.  RRT failed to carefully consider that I am a child from a divorced family and failed to consider the evidence and numerous explanations provide and it does increase my mental stress and extremely hurt my passion or feeling being treated with unfairness.

   4.  RRT also failed to well consider the interest of my Australian born child and various difficulties if return, because of both family’s denial, the financial hardship and social bias inevitably avoided, in particular, our unrecognized child out of wedlock which results in breach to Family Planning Social Law and social compensation imposed beyond our family’s capability.

   5.  RRT failed to give careful consideration the stress and pressure of both my boy friend and I in hearing, especially our introvert character and quit number of persuasive explanation and comments in writing provided in and off the hearing, and show lack of sympathy and compromise to our dilemma, and unawareness of our initial student visa application to Australia, in which we are totally innocent about it.  RRT made unfair judgment to our family financial ability at current stage and fact of our parent’s divorce or separation and possibility in further support our overseas study.

   6.  RRT failed to prudently consider my family economy, and our desperation, especially my health condition d on going medical check at request as well as the difficulty or challenge seeking medical treatment in origin.

2. The second document attached to the application to this Court pleads the following grounds:

   1.  I am a on my Chinese student visa background from a divorced family in Fujian.  As a committed Christian, I have suffered hard experience due to underground church activities in China and fear about persecution in origin.

   2.  My religious involvement and practice in Australia has been continuous and referenced with church evidence.  I have a record being investigated due to my personal preaching engagement with Local Church in China, in particular my involvement promoting religious freedom in the event of Chinese Jasmine revolution in 2011.

   3.  I can not go back to China as I have great concern of my Australian born child’s fate and future due to my religious history and social bias tabbing a “black child” in China and heavy punishment for household registration.

   4.  I have medical condition which demonstrates a critical and adverse symptom at present stage and requires for regular check and monitoring for its development or treatment, and I have big concern this will be abused and biased due my financial ability and family denial.

3. The applicants, despite leave being granted, elected not to amend their application, file any evidence by way of affidavit or file any written submissions.  At the final hearing the first applicant indicated she sought to rely on their application and made no further oral submissions, in chief or in response.

Minister’s Submissions

1. The Minister submits that grounds 1-4 of the second attachment to the application (reproduced at [14] above) restate the grounds upon which the applicants sought refugee status, including the first applicant’s alleged experiences in China, her religious practice in Australia and the first applicant’s health. Insofar as the applicants attempt to cavil with the factual findings of the Tribunal, the Minister submits the Court cannot review the merits of the Tribunal’s decision: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at 272; Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [20].

2. In respect of the document reproduced at [13] above, the Minister submits, in summary, these grounds allege that the Tribunal failed to carefully consider various aspects of the applicants’ claims, namely, the first applicant’s religious beliefs, her family background, the hardship which would be faced by the second applicant because she was born out of wedlock, the mental pressure on the first and third applicants at the Tribunal hearing and the first applicant’s physical health.

3. The Minister contends the Tribunal carefully considered all aspects of the applicants’ claims in its Decision Record.  In particular, the Tribunal:

   a)Addressed the first applicant’s claims regarding her religious beliefs and experiences in China and found she was not a genuine Christian on the basis of adverse credibility findings which were open to it (CB 196 at [154]-[173]);

   b)Considered the first applicant’s claim that her parents divorced in 2001 and rejected it on the basis of information in her student visa file (CB 193 at [141.3]);

   c)Considered the claim the second applicant would be discriminated against in China because she had been born out of wedlock and was unregistered, and found that the applicants could afford to register the child and any stigma attached to the second applicant being born out of wedlock would not amount to serious or significant harm (CB 196 at [153] and CB 208 at [205]);

   d)Considered the first applicant’s claims regarding her mental and physical health (CB 202-204 at [180]-[186]).  It accepted a registered psychologist had diagnosed her as suffering symptoms associated with adjustment disorder and depressed mood, but rejected the proposition that there was a real chance of serious harm in China on the basis of the first applicant’s mental health (CB 203 at [181] and CB 207 at [203]).  In respect of the first applicant’s physical health, the Tribunal found that any costs associated with treatment would not cause the applicants such significant financial strain that they could not afford the social compensation fee or that their capacity to subsist would be affected (CB 204 at [186]); and

   e)Considered the first applicant’s claim that she had been nervous at the hearing and had difficulty remembering events as a result of depression, and found that her condition could not overcome the “depth and breadth of the Tribunal’s concerns with the applicant’s evidence” (CB 202 at [179]).

4. The Minister submits the Tribunal’s decision is not affected by jurisdictional error and the application should, therefore, be dismissed with costs.

Consideration

1. This is an application seeking judicial review of a decision of the Tribunal.  The hearing of the proceedings occurred 9 July 2013 where the first applicant appeared on behalf of all the applicants with the assistance of a Mandarin interpreter.  It should be noted that the first applicant was appointed as the litigation guardian of the second applicant at the First Court Date directions hearing on 5 March 2013.

2. At the hearing on 9 July 2013 the first applicant indicated she relied on the two written statements attached to her application and reiterated that she did not believe the Tribunal had comprehensively looked at her claims.  The proceedings then adjourned and, on the resumption, I explained to the first applicant the Court would consider everything that had been put before it and a decision would be prepared.  This included the documentation attached to the back of the application, the Court Book and the Minister’s submissions.

3. The document titled “The Grounds of the Application are:” (which is reproduced at [14] above) is, in effect, a restatement of the grounds pleaded by the applicants before the Tribunal. Their Honours North and Lander JJ (with Katzmann J agreeing) in Minister for Immigration and Citizenship v SZNPG (supra) stated at [20]:

   20. It was not for the Federal Magistrates Court, nor for this court, to review the merits of the RRT’s decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611. A wrong finding of fact is not an error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77. Unsound reasoning is not an error of law: R v District Court; Ex parte White (1966) 116 CLR 644 at 654; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356.

   Accordingly, the grounds in that document seek impermissible merits review and, therefore, cannot be sustained and should be dismissed.

4. I now turn to the document attached to the application titled “Orders Sought by Applicant” (reproduced at [13] above). Each point in that document alleges that the Tribunal has, in effect, failed to give proper consideration to an element of the applicants’ claims and other factors related to their Protection visa application. The Minister has prepared comprehensive written submissions that address each of the points outlined in that document at [18] above. These submissions accurately reflect where the Tribunal has given consideration in its Decision Record to the applicants’ claims.

5. In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 his Honour Kirby J stated at [147]:

   147.  While an obligation for an administrator to provide reasons does aid the process of curial review, the reasons must be read fairly and as a whole. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang this court warned against the over-zealous judicial review of decisions of the tribunal. In recognition of the fact that there is a range of legitimate approaches to decision-making and fact-finding, it was said that the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error. I support that approach. …

   In my view, his Honour’s statement correctly reflects the approach that should be adopted in respect of the current proceedings.  The Minister’s submissions show, in respect of all of the pleaded grounds, that the Tribunal had regard to each of the applicants’ claims and circumstances, and given them all careful consideration.  Accordingly, none of the grounds pleaded by the applicants can be sustained.

6. The Tribunal gave a summary of the applicants’ claims and expressed its concerns in relation to the first applicant’s evidence at [143]-[172] of the Decision Record (CB 194-201).  It then went on to make the following statement at [173]:

   173.  Having regard to the above adverse credibility findings, the Tribunal does not accept that the applicant has given a credible account of all aspects of her claims and does not accept that she is telling the truth about her claimed practice of Christianity in China and why she cannot return to China.  The Tribunal finds she is not a credible witness.

7. In Re Minister for Immigration and Multicultural Affairs & Ors; Ex parte Durairajasingham (2000) 168 ALR 407, his Honour McHugh J stated at [64]:

   … [A] finding on credibility which is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”. …

   The adverse credibility finding made against the first applicant was open to the Tribunal to make.  Accordingly, this issue needs no further consideration.

8. As the applicants are self-represented, do not speak English and have little or no experience in conducting litigation in Australia, I have conducted a review of the Court Book and the Tribunal’s Decision Record.  On a fair reading of the Decision Record, no error of law is apparent.

9. A convenient summary of the new complementary protection criteria provision of the Migration Act is contained in the then Bill’s Second Reading Speech on 24 February 2011. The speech indicates that the new provision establishes criteria to grant a Protection visa in circumstances that engage Australia’s non-refoulement obligations under human rights instruments to which Australia is a party:

   Australia will not return a person to a place where there is a real risk that a person will suffer particular types of significant harm contained in the relevant human rights treaties, namely:

   ·   the arbitrary deprivation of life;

   ·having the death penalty carried out;

   ·being subjected to torture;

   ·being subjected to cruel or inhuman treatment or punishment; or

   ·being subjected to degrading treatment or punishment.

   (Hansard, 24 February 2011)

1. As discussed above, the claims advanced by the applicants to seek protection from persecution as described in the Refugees Convention were rejected by the Tribunal. These claims were primarily rejected on the basis of the Tribunal’s finding that the first and third applicants were not witnesses of truth and that their claims to be Christian were fabricated (CB 206-207 at [196]-[200]). The Tribunal then went on to consider the alternative criterion as set out in s.36(2)(aa) of the Migration Act and found the applicants were not persons to whom Australia had protection obligations thereunder (CB 207-208 at [201]-[209]). At [209]-[212] of the Decision Record the Tribunal stated:

   209.  The Tribunal finds that the applicants are not a person  in respect of whom Australia has protection obligations under the Refugees Convention as referred to in paragraph 36(2)(a) of the Act.  The Tribunal finds that the applicants are not a person in respect of whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

   …

   211.  Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).  The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

   212.  There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicants do not satisfy the criterion in s.36(2) for a protection visa.

Conclusion

1. The grounds of review in the two documents attached to the application do not identify any jurisdictional error and it is not apparent from a reading and consideration of the material before the Court that such an error exists.  Consequently, the application should be dismissed with costs awarded to the Minister and to be paid by the first and third applicants.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date:  20 December 2013