SZSKZ v Minister for Immigration

[2013] FCCA 1882

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSKZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1882

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – where applicants claimed protection on grounds of religion and non-adherence to one child policy – whether Tribunal failed to consider children’s claims – whether Tribunal fell into error of law in consideration of applicants’ religion based claim.

Legislation:  

Migration Act 1958 (Cth), s.36(2)(aa)

First Applicant: SZSKZ

Second Applicant: SZSLA

Third Applicant: SZSLB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3058 of 2012

Judgment of: Judge Raphael

Hearing date: 8 November 2013

Date of Last Submission: 8 November 2013

Delivered at: Sydney

Delivered on: 8 November 2013

REPRESENTATION

For the Applicant: In Person

Counsel for the Respondent: Mr D A Hughes

Solicitors for the Respondent: Clayton Utz

ORDERS

1. Application dismissed.

2. First and Second Applicants to pay the Respondents’ costs assessed in the sum of $5,500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 3058 of 2012

SZSKZ

First Applicant

SZSLA

Second Applicant

SZSLB

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. There comes before the court an application by three applicants, a mother, a father and a child, seeking a review of a decision of the Refugee Review Tribunal made on 30 November 2012.  The mother and father are Chinese citizens, the child was born in Australia.  Their story is a familiar one.  They have been in Australia for some years, coming first on student visas.  They did not study for long.  For reasons of their own they gave up study and vanished into the community.  They did not come here together, they met here and became partners.  The child was born on 4 February 2012.  It is not entirely clear whether the father and mother came to the notice of the Department or whether they voluntarily made a claim for a protection visa in November 2011, after the mother had been in the country since 2007, and the father since approximately a year later. 

2. The mother was the principal applicant.  She claimed that she was a person to whom Australia owed protection obligations because she was a member of the Shouters Church and would be persecuted if she returned to China as a result of her activities and her intention to evangelise.  The father also claimed to have been a member of the Church, but his activities seem to have commenced in Australia. 

3. When the applicant attended before the Tribunal, she was questioned about her knowledge of and adherence to Christianity as espoused by the Shouters.  From her evidence the Tribunal came to the conclusion that it could not accept that she was a genuine Christian, or that the incidents that she related had happened to her in China.  The Tribunal was also unable to accept her story that she had sent some information to the Church through her brother to China, and that she would be in trouble should she return because of this.

4. The Tribunal then dealt with the applicant’s other claims, the first of which arose out of her allegation that her father had abused her violently.  The Tribunal concluded that as her parents had been divorced and she had had no contact with her father since 2005, she could not have a genuine fear of return because of him.

5. Next, the Tribunal turned to the claims arising out of the birth of the child and the expected birth of a second child.  The Tribunal questioned the applicant upon certain independent country information that indicated that a social compensation fee would be payable, but that it was based upon the earning capacity of the parents and could be paid by instalments.  The Tribunal discussed with the applicant the fact that the one child policy was a policy of general application and did not constitute Convention related discrimination unless there was a specific convention reason for imposing particular aspects of the law upon her.  The Tribunal found that:

   “non-discriminatory enforcement of general applicable laws is outside the scope of the Convention, including the enforcement of China’s family planning policies.  In the present matter, the applicant has contravened a government family planning policy by having a child outside marriage.  The Tribunal has formed the view that the imposition of a fine, and having to take certain steps to ensure the child is registered, is not discrimination and neither is it conduct which amounts to persecution for Convention purposes.” ([110] CB141)

   The Tribunal concluded that none of the applicants would suffer persecution as a result of those matters upon which their claims were based, at ([112] CB 141).

6. The Tribunal went on to consider whether there were substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there was a real risk that they would suffer significant harm, as defined by s.36(2)(aa) of the Migration Act 1958 (Cth):

   “The Tribunal has had regard to the evidence and claims put forward by the applicants, including her claims of being a genuine practicing Christian, and the applicant having had a child out of wedlock, and now expecting a second child.  It also considered the applicant’s partner’s claims relating to newfound Shouter Christianity and his claims relating to the Family Planning Regulations in the PRC.  Having found that the applicant is not a genuine practising Shouter Christian, or that due to the strength of his convictions, the applicant’s partner would draw adverse interest of the PRC authorities for reasons of religion, its finding that there are not substantial grounds for believing that the applicants would face significant harm at the hands of the applicant’s father, and its findings of the applicants’ fears relating to Family Planning Regulations would not amount to significant harm, the Tribunal does not accept that there is a real risk the applicants would suffer significant harm, of risk to their life, of torture, of cruel or unusual degrading treatment or punishment if they returned to China.  Therefore the Tribunal does not accept that there is a real risk that the applicants would suffer significant harm in the PRC.  The Tribunal is not satisfied on the evidence, that there is a real risk of significant harm exists for the applicants.  The Tribunal does not accept that the applicants are persons to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.” ([114] CB 142)

7. On 20 December 2012 an application was made to this court seeking review of the decision of the Tribunal.  The document was typed and, over a number of paragraphs, it gave some factual information and pointed out some alleged failings of the Tribunal.  It argued:

   “4, RRT also failed to well consider the interests of my Australian born child and various difficulties if returned because of both family’s denial.

   5, RRT made unfair judgment to our purpose of application for protection, and assessed our case merely based on our bible knowledge, in stead of true passion of soul and commitment to Holy Spirit and faith.” [as in original]

   In the court’s view, these are the only two paragraphs which could possibly raise a ground of application, the others being argumentative as to the Tribunal’s findings of fact.

8. When the applicant appeared in court this morning and was asked to tell it, in her own words, why she believed the Tribunal had made an error of law in the manner in which it reached its conclusions, she claimed that she had no knowledge whatsoever of the application and it had been typed by “a friend” who lived next door whom they had not paid.  She indicated that the responsibility for the application was that of her partner.  She reminded the court that she had not attended the first court date but that her partner had attended in her place because she was about to give birth to the second child.  Although there is information in the file that she had an oral interview with a legal adviser, under the Minister’s scheme, she denies this.

9. The court explained to her, in some considerable detail the extent of its jurisdiction in these matters.  In particular, it pointed out to her that the court was unable to hear submissions from her as to the merits of the Tribunal’s decision.  The applicant was unable to provide the court with any assistance in relation to her case, save to say that she is concerned about returning to China.

10. In regard to the claims extracted above, it cannot be said that the Tribunal failed to consider the interests of her child.  Indeed, it considered the interests not only of one child but of the one to be born at the time of the hearing.  The Tribunal concluded that the applicant and her partner would be able to make arrangements for payment of the social compensation fee and they would not, and neither would the child, suffer as a result.  This is a finding of fact on the part of the Tribunal with which the court cannot interfere.

11. In regard to the second ground, this is not one of those cases where the Tribunal has set itself up as the arbiter of religious doctrine.  As can be seen from the decision record, the applicant’s knowledge of biblical matters was very slight and was not in any way consistent with her story of adherence to the Shouter faith.  To that extent, this ground is also seeking merits review.

12. It follows from the above that the Court is satisfied that there are no grounds upon which it could be said that the Tribunal fell into jurisdictional error in the manner in which it reached its conclusions.  Thus the application must be dismissed and the first and second applicants must pay the respondents’ costs, which are assessed in the sum of $5,500.00.  The name of the first respondent will be changed to Minister for Immigration and Border Protection.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  15 November 2013