SZSOW v Minister for Immigration

[2014] FCCA 527

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSOW & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 527

Catchwords:

MIGRATION – Review of Refugee Review Tribunal decision – where applicants mother and child – where applicant formerly holder of student visa – whether Tribunal failed to consider applicant’s claims – whether Tribunal placed itself in position as arbiter of religious doctrine – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth) ss.36(2)(aa), 91R(2), 424A

WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108

First Applicant: SZSOW

First Applicant: SZSOX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 262 of 2013

Judgment of: Judge Raphael

Hearing date: 12 March 2014

Date of Last Submission: 12 March 2014

Delivered at: Sydney

Delivered on: 12 March 2014

REPRESENTATION

Counsel for the Applicants: SZSOW in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,500.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 262 of 2013

SZSOW

Applicant

SZSOX

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China.  She first arrived in Australia in July 2005 as the holder of a TU571 School Sector (Student) visa.  This visa remained valid until 10 March 2008.  On 15 February 2008 she lodged an application for a TU572 Vocational Education and Training (Student) visa.  That was granted and remained valid until 11 April 2010.  The applicant ceased studying on 23 March 2009.  There is no evidence that any steps were taken about this breach of her visa conditions.

2. The visa lapsed on 11 April 2010, and the applicant remained in this country as an unlawful non‑resident.  There is no evidence that any steps were taken to remove her from the country and, in the meantime, she partnered and had a child.  On 20 March 2012 she and one of her children, because at that time she had two, lodged an application for a protection visa.  She told that the other child had lodged an application for a protection visa with her partner.

3. A delegate of the Minister refused to grant her a protection visa on 6 July 2012.  The applicant then applied for a review of that decision from the Refugee Review Tribunal.  She attended a hearing before the Tribunal, by which time she was pregnant with her third child.  On 5 February 2013 the Tribunal determined to affirm the decision under review.

4. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations are distressingly familiar to this court.  They are a combination of her claimed belief in Christianity and observance in the Local Church with its consequent allegations of her persecution and the fact that then with two, and now with three, children she will be in breach of the Chinese family planning laws and her children will be unable to obtain household registration.  Again familiarly, this claim is coupled with the fact that because she and her partner are not married, the community charge that might be made in order to obtain household registration for the children will be higher.  It is a charge, she will claim, that they cannot pay.  And she will also claim, again familiarly, that neither her parents nor those of her partner are supportive of their situation nor will support them, should they return to China, nor assist with the payment of the community charge.

5. The applicant told the Tribunal that her history was of a young girl who had been born out of wedlock herself and was adopted by two villagers and brought up by them as step‑parents, although the stepmother died when she was very young.  She told that she had no connection with her biological parents.  The applicant told that the stepfather was a committed Christian and a member of a family church and she gave instances of him being arrested and subject to administrative detention and interrogation.  The applicant told the Tribunal that she herself was a committed member of the Local Church, who had been baptised.  She told that she had been brought up as a Christian and that the only reason why she had not gone regularly to church in the years in which she was in Australia was that she had not found a local church that was similar to the one that she had at home until 2012.

6. The applicant was questioned on her story by the Tribunal, who raised with her a concern that it had about responses that she had given to the delegate, who had asked her what she understood by the concept of sin.  The responses that the applicant had given influenced the delegate in his decision because the delegate did not believe that she evidenced a person who had the religious understanding and lengthy association with a church, that the applicant claimed.  Details of the discussion between the delegate and the applicant are contained at CB181.

7. These matters were put to the applicant at [40] CB185:

   “The applicant stated that she had not explained sin clearly but did say people were born with sin.  The Tribunal said it did not think she had said that.  She stated she did.  The Tribunal asked what marriage meant to her as a Christian.  She stated it was a sacred ceremony.  The Tribunal asked why she was not married.  She stated at the beginning their marriage was not accepted by both families.  The Tribunal asked why that bothered her as she was Christian and marriage was sacred.  She stated she hoped to get the blessing from both families.  The Tribunal asked if that was more important than following her religion.  She stated that she did not know how to explain.  She stated a friend said that if they registered their marriage her boyfriend will be arrested and deported back to China.

   The Tribunal put to her that it was wondering if she had not married for the purposes of the protection visa application only.  The Tribunal also put to her that it was wondering if she had gone to church in 2012 for the purposes of the application only.  She stated that at the beginning she went to a lot of churches but not the local church…” [41-42] CB 185.

8. The Tribunal questioned the applicant in some detail about her claims concerning what might occur to her children should she return to China and in particular about her ability to pay the social compensation fee.  These discussions are reproduced in detail in the decision record.  Essentially the Tribunal came to the view that the applicant was not entirely truthful about her financial situation.  It appeared to the Tribunal that she was obtaining financial assistance from her parents, and it concluded in the end that her statement that they would not assist in the payment of the social compensation fee was not credible.  In regard to this, the Tribunal also questioned the applicant about the inconsistencies between her statements and the applications that she made for a student visa and when it appeared that the person who agreed to be responsible for her fees was her natural father.

9. The Tribunal provided the applicant with a s.424A letter, in which it set out in detail all the concerns that it had about her claims. The letter itself is found at CB 116‑120 and is repeated in the decision record. The applicant responded to the letter but the Tribunal concluded that it could not accept her as a credible witness and, in particular, did not accept that she was a Christian and that she had been brought up by the stepfather in association with the Local Church or that, if she returned to China, she would be the subject of persecution as a result of her association with the Local Church or any activities she might carry out upon her return.

10. The Tribunal concluded, in regard to the children that:

    “The Tribunal is not satisfied on the evidence before it that the applicant, given her de facto husband’s past employment history as well as the findings that her parents earned an annual salary of 300 000 yuan, would be unable to pay the fine.  The Tribunal does not accept the claim that the applicant is unable to pay the social compensation fee for her two daughters and if born, a third child. 

    The Tribunal is satisfied that the applicant can and will pay the social compensation fee and that upon payment of the social compensation fee, her daughters will be able to obtain household registration and will accordingly have access to basic entitlements such as education, health care and other social services that are associated with household registration.  Although the Tribunal accepts it is possible that the applicant may face some societal discrimination if people know they have a child outside marriage, the Tribunal is not satisfied that she will face discrimination that constitutes ‘serious harm’ of the kind identified in s91R(1)(b).” [65‑66] CB 196.

11. The Tribunal made similar findings in relation to the daughter whose claim was made with the applicant and also considered the applicant and the daughter as claimants for complementary protection under s.36(2)(aa) of the Migration Act 1958 (Cth). It came to the conclusion that there were no substantial grounds for believing that as a necessary and foreseeable consequence of any of the applicants being removed from Australia to China there was a real risk that they would suffer significant harm., given the findings that it had made about her social position and her religious conviction.

12. On 13 February 2013 the applicant made an application for review in this court.  Under the heading, “Orders sought by Applicant” she makes some statements as to her views about the Tribunal’s decision and under the heading, “The Grounds of the Application are” she makes some statements about her adherence to Christianity.  It will immediately be seen that these do not constitute grounds of application.  To the extent that any grounds of application are identified, they are found in the, “Orders sought by the applicant.”  The first is [as in original]:

    “1, I don’t think DIAC and RRTs decision are fair and reasonable as they failed to take a good consideration in my commitment of religion, ignoring my background and actual practice of Christian in China and Australia.”

13. A reading of the Tribunal’s decision record will reveal that it did give consideration to the applicant’s claimed commitment to religion. It was a matter that was taken up with her at some length at the Tribunal hearing. It had also been taken up by the delegate. The Tribunal’s concerns are explained to the applicant and were made the subject of the s.424A letter. The grounds upon which the Tribunal concluded that it could not accept the applicant’s claims concerning her religious adherence are also clearly stated. There is no merit in this ground either as one seeking judicial review or even as one seeking impermissible merits review.

14. The second ground is [as in original]:

    “2, RRT did not consider my statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact.”

15. As Ms Crittenden says, in the helpful written submissions provided to the court, this ground could be interpreted as a claim that the Tribunal had fallen into error by anointing itself as an arbiter of religious doctrine; WALT v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCAFC 2 at [29]. There is little doubt that the applicant must be referring to the Tribunal’s questions concerning her understanding of the concept of sin and possibly the discussion extracted above about her marital status. In Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108[1] the Full Federal Court stated at [38]:

    “As the authorities emphasize, there is nothing objectionable in the Tribunal questioning an applicant about his or her beliefs. When the Tribunal does so, it is not prohibited from evaluating the applicant’s answers against probative material evincing the doctrines of the religion in question, and the weight to be given to that evaluation will generally be a matter for the Tribunal.”

    [1] ‘SZLSP’.

16. In the court’s view the Tribunal did no more than  to give an evaluation of the applicant’s adherence based upon her responses to what was clearly a question about a fundamental concept.  The Tribunal also relied upon the applicant’s failure to regularly attend church in Australia in all the years that she has been here and that reliance bears out what was said, again in SZLSP at [38] by the court, who opined:

    “the Tribunal’s reliance on other factors besides its evaluation of an applicant’s knowledge will typically be a strong indicator that the Tribunal has conducted a legitimate exploration rather than made a determination by reference to a preconceived minimum standard of knowledge.”

    Looked at in this way, this ground cannot succeed.

17. The third ground is [as in original]:

    “3, RRT failed to prudently consider our risk, especially my child due to my commitment of paralyzing if we return to origin.”

18. The court assumes that “paralysing” is a reference to proselytising.  The applicant made a weak claim that, if she returned to China, she would proselytise for the Local Church.  The Tribunal concluded that she could not be believed upon her story and that she was not a Christian and, therefore, did not accept that she would do so.  Any argument against this conclusion is an argument that seeks merits review by the court.  Therefore this ground cannot succeed.

19. The fourth ground is:

    “4, RRT failed to consider my statements, explanation, and evidence provided in supporting my claim as a whole.”

    A proper reading of the decision record indicates that the Tribunal did consider all of the applicant’s claims, both singularly and cumulatively.  That it did not accept them is not a ground for judicial review.

20. The fifth ground is [as in original]:

    “5, RRT treat my case unfair and unreasonable and did not consider that I will be punished by the Chinese government due to family planning issue”

    The Tribunal accepted that if she returned to China with three children, the applicant would be made to pay a social compensation fee and further that she would be the subject of some discrimination. It did not believe the discrimination amounted to serious harm under s.91R(2), and it believed that the applicant would be able to pay the social compensation fee. It did not believe that the children would suffer should they return to China, but indicated that even if they did they would be the subject of a piece of legislation that was not discriminately applied to them and was applied to all Chinese citizens and thus was not something which came within the Convention grounds. For the reasons given above the application must fail and the applicant must pay the respondent’s costs, assessed in the sum of $4,500.00.

21. The court has already indicated that claims of this nature are familiar and becoming more frequent.  This is a distressing revelation.  It is particularly distressing because most of these applicants are very young with their whole lives before them.  It is difficult not to feel that there is some pattern to these applications, and it is difficult not to feel that if the Department was more prompt in removing from this country young students who have ceased to study, and thereby lost the privilege of their student visas, claims of this type might be reduced.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Raphael.

Associate: 

Date:  18 March 2014