SZSMX v Minister for Immigration Anor
[2014] FCCA 691
•31 March 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZSMX v MINISTER FOR IMMIGRATION ANOR | [2014] FCCA 691 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – child applicant – whether applicant’s claims properly considered by Tribunal – whether Tribunal fell into jurisdictional error. |
| Legislation: Migration Act 1958 (Cth) ss.36(2)(aa), 425 |
| NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 |
| Applicant: | SZSMX |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 69 of 2013 |
| Judgment of: | Judge Raphael |
| Hearing date: | 31 March 2014 |
| Date of Last Submission: | 31 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 31 March 2014 |
REPRESENTATION
| For the Applicant: | Applicant’s litigation guardian |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The applicant’s mother be appointed as his litigation guardian.
Application dismissed.
Applicant’s litigation guardian to pay the respondents’ costs assessed in the sum of $5,000.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 69 of 2013
| SZSMX |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The applicant is a child of almost 10 years of age. He was born in Australia out of wedlock. His mother is a Chinese citizen. She came to Australia in 2001 on a visitor’s visa. She had, at the time, a brother who is an Australian citizen who had suffered an injury. Though it was feared he might pass away he did not. The applicant remained in Australia living with her brother who she cared for. In 2002 she made an application for a protection visa. It was unsuccessful.
She made an application for review of the decision to the Refugee Review Tribunal but that was also unsuccessful, probably because she did not attend the Tribunal hearing in 2003. She sought review of that decision from this court. That was of no avail. In 2006 the mother made an application for a carer’s visa to enable her to look after her injured brother. By that time the child applicant was born. The carer’s visa application was unsuccessful. It would seem that the final administrative action in relation to that application was the declining by the Minister in 2011 to exercise his discretion.
On 21 February 2012 the current application was made. A delegate of the Minister refused to grant a protection visa on 16 May 2012. Thereafter, the applicant applied for a review of that decision from the Refugee Review Tribunal. The Tribunal held a hearing at which the applicant’s mother attended on his behalf. On 31 December 2012 the Tribunal determined to affirm the decision under review.
The grounds upon which the applicant claimed that he was a person to whom Australia owed protection obligations are described and discussed in the Tribunal’s thorough and perceptive decision. They are classified. The first is what the Tribunal describes as the “born and living in Australia claim”. It is a claim made by the applicant that he, having been born in this country and never having visited China, has a fear of returning to that country because of his alienation from it. He claimed to be an Australian in his upbringing and education and says he has no close relatives living in China. The Tribunal considered this claim noting the applicant’s grandfather lived in China, and that far from being a person who would readily be identified with Australia, he had, in fact, lived a very insular life with his mother and uncle in a Chinese-speaking environment; although it was acknowledged that such schooling as he had received, had been here. His mother told the Tribunal that the applicant had learning problems which had manifested themselves in a speech deficiency which she believed was linked with autism, although the Tribunal found there was no evidence of that:
“The Tribunal accepts that the applicant may have some speech difficulties and behavioural problems based on the clinical psychologist’s document. This information leads the Tribunal not to accept the evidence of the applicant’s mother that he is rooted in this country and has friends here. The Tribunal infers from this evidence of his mother and that provided in the visa application and supplementary statement, that he has grown up in a household where the principal language spoken was Chinese of some kind because his mother speaks Chinese and does not speak English.
…
The Tribunal infers that he has a limited exposure to an English speaking Australian environment at school, and otherwise little social contact in an Australian English speaking environment.” [96-98] CB78
Although the Tribunal does not say so in terms, it must clearly be inferred from its decision as a whole that it understood that a claim based upon lengthy residence in this country and being a stranger to one’s country of origin is not a convention-related claim.
The second claim made by the mother on behalf of her son was what the Tribunal defined as the “illegitimate child claim”. The mother told the Tribunal that if she returned to China with the child, she would have considerable difficulties because he was illegitimate. This would mean having to pay a social compensation fee in order to obtain registration and with it the right to education and medical benefits for the child. She claimed that she would be unable to pay this and that the child would consequently suffer from the stigma of illegitimacy.
The Tribunal considered these claims in some detail and discussed them with the applicant. In particular, it discussed with the applicant her alleged inability to pay the social compensation fee:
“The Tribunal finds that the applicant’s mother is a resourceful and determined person, as evidenced by the following:
· The three visa applications she has pursued for herself and the applicant, from the departmental level to the Tribunal, Federal Magistrates Court and the Minister
· That she has found out about, and successfully applied for, a school fee exemption based on her brother’s medical history
· She gave birth to the applicant in a private hospital which required payment of fees under the Australian hospital system, and when, on her own evidence, she had no Medicare card, and somehow has supported herself and the applicant financially since then
· She has managed to remain in Australia since arriving on a visitor visa in 2001, having no other substantive visa since then
· she has managed to do all of the above in a country where she cannot speak the dominant language and did not, at least initially, have knowledge of its legal and administrative structures
The Tribunal finds that the applicant’s mother has exaggerated the difficulties she will face and the applicant will face, if they return to China because, as she said, she wants to stay in Australia. She has striven ever since her arrival in Australia to remain her legally, including making this application on behalf of the applicant, a refugee claim for herself and a carer visa application, and pursuing them to the Tribunal, to the Federal Magistrates Court and to the Minister, respectively.” [107-108] CB80
At paragraphs [111 and 112] CB81 the Tribunal found, on the evidence, that the applicant’s mother had two friends in China and her father, that she had a good knowledge of the legal and administrative institutions in that country and had run her own business there. Whilst it accepted that things had changed in China since she had left, it did not accept that she had no familiarity with those changes given the accessibility of online information and the Chinese newspapers circulating in Australia.
The Tribunal concluded that given its findings that she was a responsible, resourceful and determined person, it was satisfied that she should be able to pay the social compensation fee and, therefore, the applicant would be able to obtain hukou registration at [115] CB82. The Tribunal did not accept the applicant’s mother’s claims that she would be unable to get work or obtain housing. At [116] CB82, the Tribunal indicated that it was not satisfied that the applicant would be discriminated against because of his illegitimacy if he returned to China or that any such discrimination would constitute serious harm.
Another claim made by the applicant’s mother was that she was a Christian and that she had attended church in this country and had been a member of an underground church in China. It does not appear from the decision record that this was a claim that had been strongly made, but the Tribunal considered it fully nonetheless and found that it could not be satisfied that the mother had ever been a member of an underground Christian church or that she would attend an underground church in China, or any Christian church in China, should she return. Therefore, it was not satisfied that the applicant would suffer serious harm in relation to those claims.
The Tribunal considered whether there might be any imputed connection between the applicant himself and an underground Christian church because of the mother’s claims relating thereto and her attending church in Australia, but was not satisfied that such imputations would arise, or would be likely or that as a result there was a real chance that the applicant would suffer serious harm in respect to those claims.
The Tribunal was not satisfied the applicant would suffer language difficulties if he returned to China, and took into account the claims made by the applicant’s mother that the applicant would lose contact with his uncle who had been a father to him. Again, a matter that does not appear to be Convention related.
Having taken all of these matters into account, the Tribunal then opined in relation to the applicant’s claims for complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth)[1] at [123] CB83. It is not necessary to set out the findings in detail. Suffice to say that because of the other findings which the Tribunal had made in relation to the claims, it did not believe there was a real risk that the applicant would suffer significant harm and thus qualify for a protection under s.36(2)(aa).
[1] The Act.
On 16 January 2013 the applicant filed an application with this court seeking review of the Tribunal’s decision. Under the heading ‘Orders sought by the Applicant’, four matters were set out. They were all complaints about the Tribunal’s consideration of the claims. Under the heading ‘The Grounds of the Application are’, four other matters were set out. They were, in essence, the claims which the mother had made on behalf of the applicant to the Tribunal.
In the former “grounds”, an argument can be seen that the Tribunal failed to give the applicant’s claims proper consideration and thus did not provide him with a hearing of the type required by s.425 of the Act. This is not an allegation that, in the view of the court, can be properly made. The Tribunal took into account all the matters raised by the applicant through his mother, and in its decision record explained quite clearly why it had come to the conclusions it did, that they did not constitute a well founded fear of persecution for a Convention reason or did not raise in the Tribunal recognition that there was a real risk that the applicant would suffer significant harm should he return to China.
The applicant appeared before the court today. In response to the court’s question as to whether she would like to tell it why she believed the Tribunal made an error of law in the way in which it had reached its decision, she informed the court that she was nervous and had little to say. It is well to remind the applicant of what Allsop J, as he then was, has said about the role of the court in these matters in NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554 at [10]:
“What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958(Cth) (the "Act") says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
The situation that this court finds itself in with regard to this application is similar. The applicant’s real complaint is one on the merits. She believes that she qualifies as a person to whom Australia owes protection obligations. The Tribunal did not. She believes that her son qualifies as a person to whom Australia owes protection obligations. The Tribunal did not. In coming to that conclusion the Tribunal made no obvious error of law and thus the application must be dismissed. The applicant is to pay the respondent’s costs which are assessed in the sum of $5,000.00. Those costs shall be paid by the applicant’s mother who is also appointed the applicant’s litigation guardian for the purposes of these proceedings.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Raphael.
Associate:
Date: 7 April 2014
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