SZSRS v Minister for Immigration

[2013] FCCA 1858

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSRS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1858

Catchwords:
MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal failed to consider all the material evidence, failed to make a necessary enquiry and failed to consider a claim it was required to consider.

Legislation:

Migration Act 1958, ss.36, 474

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123

Applicant: SZSRS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 585 of 2013

Judgment of: Judge Cameron

Hearing date: 7 November 2013

Date of Last Submission: 7 November 2013

Delivered at: Sydney

Delivered on: 7 November 2013

REPRESENTATION

Counsel for the Applicant: Mr J. King

Solicitors for the Applicant: Fragomen

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The name of the first respondent be amended in the Court’s record to ‘Minister for Immigration and Border Protection’.

2. A writ of certiorari issue removing into this Court to be quashed the decision of the second respondent made on 26 February 2013.

3. A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made on 31 August 2012.

4. The first respondent pay the applicant’s costs.

5. The parties have liberty to apply on three days’ notice, such liberty to be exercised not later than 5 December 2013.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 585 of 2013

SZSRS

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is an infant who was born in Australia on 8 June 2011 and is a citizen of China.  On 10 May 2012 the applicant’s father lodged a protection visa application on her behalf, alleging that she feared persecution in China because of her and her parent’s religion and because of China’s family planning laws.  On 8 August 2012 the applicant’s application was refused by a delegate of the first respondent (“Minister”).  The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision.  She was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the Tribunal’s decision will be set aside and the matter remitted to it to be determined according to law.

Background facts

1. The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-12 of the Tribunal’s decision. Relevant factual allegations are summarised below.

The applicant’s parents and sister

1. The applicant’s parents arrived in Australia separately on student visas.  On 9 December 2003 the applicant’s father lodged an application for a protection visa, alleging that he was a Falun Gong practitioner.  The applicant’s mother lodged her own protection visa application on 11 September 2007, alleging that she was a member of an underground church.  Both of their applications were refused by delegates of the Minister.  The Tribunal had no jurisdiction to review the decision concerning the applicant’s father and affirmed the delegate’s decision in relation to her mother.  Her parents’ subsequent applications for judicial review were unsuccessful.  The applicant’s parents were also unsuccessful in seeking ministerial intervention.

2. The applicant’s parents married on 10 June 2009 and their first daughter, the applicant’s sister, was born in September 2009.  In October 2010 the applicant’s sister applied for a protection visa.  Her application was refused by a delegate of the Minister and subsequent applications for merits and judicial review were unsuccessful.

Applicant’s application

1. The applicant made the following claims in a statement attached to her protection visa application:

   a)her parents were Christian and served in their church.  She also wanted to be Christian like her parents;

   b)she could not return to China because she was an “out of plan” baby and would be punished under Chinese family planning laws.  Her parents would not be able to afford the penalties and, as a result, she would have no residency, would become a “black child” or second-class citizen and would be discriminated against in social and public welfare systems.  All this would have a devastating physical and psychological effect on her;

   c)her parents were from a rural area in Fujian where boys were valued over girls and it was not uncommon to hear about girls being killed or abandoned; and

   d)she was born in Australia and had no connection to China.

2. The applicant and her parents attended a Tribunal hearing on 11 January 2013.  At the commencement of the hearing the applicant’s father submitted:

   a)his certificate of baptism from Hillsong Church dated 22 April 2007;

   b)a certificate of baptism from the Wesley Mission for the applicant’s mother dated 2 September 2012; and

   c)membership certificates from the Wesley Mission for the applicant and the rest of her family dated 2 September 2012.

3. The applicant’s father also provided a letter dated 23 December 2012 from the Rev. Kau Lee of the Chinese congregation of the Wesley Mission stating that the applicant and her family had been baptised and became members of the church on 2 September 2012.  That letter was not referred to expressly in the Tribunal’s reasons.

4. The applicant’s father made the following claims on her behalf:

   a)the applicant was born outside China’s family planning laws and as a result did not have a hukou and would not have access to education, medical or social services and would be discriminated against;

   b)the applicant also sought protection on the basis that she and her parents were Christians.  The applicant’s father initially said their denomination was Christian before saying they were part of the Wesley Church;

   c)he had not tried to register the applicant with the family planning office in China through the Chinese Consulate in Sydney because penalties applied.  He had been told by friends that the fee to register the applicant was between 80,000 and 100,000RMB but had not asked any official sources because he was afraid he could not afford it;

   d)although the fee was stipulated generally, local officials imposed different levels of fees;

   e)he came from a rural area where it was prohibited to have a second child.  If the first child born to a family was a girl, the family had to wait for five years before having a second child; and

   f)his wife and two daughters had been baptised together.  He thought that the membership certificates for his daughters which he had submitted at the beginning of the hearing were baptismal certificates.

5. After the hearing, the applicant’s father provided the Tribunal with the applicant’s “Certificate of Infant Dedication” from the Wesley Mission dated 2 September 2012.

The Tribunal’s decision and reasons

1. After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”) or s.36(2)(aa) of the Act. The Tribunal’s decision was based on the following findings and reasons:

   a)the Tribunal was not satisfied that the applicant’s parents were Christians, that the applicant was a member of a Christian family or that she would practise Christianity if she returned to China on the basis that:

   i)the applicant’s parents’ claims for protection based on their religions had already been assessed and they had been found to not have a well-founded fear of persecution based on their faiths;

   ii)the applicant’s father had provided a membership certificate and a “Certificate of Infant Dedication” for the applicant, neither of which was a baptismal certificate.  The Tribunal noted that a baptismal certificate was a record or symbol of a very important event in a Christian’s life and found that the fact that the applicant’s father had confused a baptismal certificate with a membership certificate was not in the applicant’s favour; and

   iii)the applicant’s father had initially been unable to identify the denomination of Christianity to which his family belonged before later saying that they belonged to the Wesley Mission.  This uncertainty on the part of the applicant’s father led the Tribunal to doubt the truth of his evidence; and

   b)the Tribunal found that country information indicated that family planning laws were more leniently applied in the Fujian area, whence the applicant’s parents came.  It noted that the country information further indicated that the family planning rules were more leniently applied if a family’s first child was a girl.  The Tribunal considered the applicant’s father’s challenge at its hearing to the country information to be unconvincing and concluded that he lacked credibility.  It noted that although the applicant’s father had said that he would be required to pay a fine to register the applicant and could not afford to do so, he had not made enquiries through official channels about whether he was required to pay a fine and what the amount of the fine might be.  Based on the applicant’s father’s unconvincing evidence and lack of credibility, the Tribunal preferred the country information before it over his evidence.  The Tribunal thus found that as a second child born into a rural family whose first child was a girl, the applicant had been born within the family planning rules.  It found that the applicant’s parents would not be required to pay a fee to have her registered in China and that she would not be denied access to education and medical and social services in China.

Proceedings in this Court

1. In her amended application the applicant alleged:

   1.The Tribunal failed to consider Reverend Lee’s letter, in which Reverend Lee stated that the applicant had been baptised.

   Particulars

   a.The question of whether the applicant had been baptised was seen by the Tribunal to be dispositive of whether the applicant and her parents were Christians. (CB 113 [58])

   b.The tribunal had a letter from Reverend Lee saying that both the applicant and her parents were baptised on 2 September 2012. (CB 92). The Tribunal had a baptism certificate from Reverend Lee certifying that he had personally baptised the applicant’s mother on that date. (CB 82). The natural inference is that it was Reverend Lee who baptised the applicant (a baby girl) at the same time that he baptised her mother.

   c.The Tribunal never referred to Reverend Lee’s letter. The letter was so material to the Tribunal’s decision that, to comply with its obligations under s 430(1) of the Act, the Tribunal was bound to make findings about whether and why it accepted or rejected the letter. That the Tribunal did not refer to the letter raises a strong inference that the Tribunal wrongly failed to consider it, or wrongly considered that it was not material: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46].

   2. The Tribunal failed to inquire of Reverend Lee whether he had baptised the applicant where, in the circumstances of this case, the Tribunal could not reasonably discharge its statutory review function without making that inquiry.

   Particulars

   a.A failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can supply a sufficient link to the outcome to constitute a failure to review: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [23]. The touchstone is reasonableness in the performance of the duty to review: Minister for Immigration and Citizenship v Li [2013] HCA 18 at [100]; Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123 at [20]-[21], [25].

   b.The critical fact in this case was whether the applicant had been baptised.

   c.The existence of that fact was easily ascertainable by telephoning Reverend Lee. Reverend Lee said both the applicant and her parents had been baptised on 2 September 2012 (CB 92). Reverend Lee certified that he had personally baptised the applicant’s mother on the same day (CB 82). In his letter, Reverend Lee specifically provided his mobile number and invited telephone contact about the baptism (CB 92).

   d.There was no evidence that the applicant had not been baptised. The certificate of infant dedication dated 2 September 2012 (CB 94) was not inconsistent with the applicant’s baptism on that date. The father’s oral evidence about the applicant’s baptism and the documentary evidence about her baptism could not have been “conflicting” (CB 113 [58]). There was no reason not to call Reverend Lee.

   e.If the Tribunal was aware of Reverend Lee’s letter, it was unreasonable for the Tribunal to reject the applicant’s claim to have been baptised without first telephoning Reverend Lee and asking if he had baptised her, and the Tribunal failed to discharge its duty to review. If the Tribunal was not aware of the letter, the applicant succeeds on her first ground.

   3.The Tribunal denied the applicant procedural fairness by failing to respond to the applicant’s claims that, irrespective of whether she is a ‘black child’: (i) there is a real risk that she will suffer significant harm as a baby girl if removed to China; and (ii) she fears persecution for reasons of her membership of the particular social group of baby girls in China.

   Particulars

   a.The applicant claimed to fear significant harm as a baby girl in China on the basis that “it is not uncommon to hear about girl babies being abundant (sic) and even killed” (CB30).

   b.The claim was recorded by the delegate (CB53, third last bullet point) and the Tribunal (CB103-104).

   c.The Tribunal did not respond to the claim in its consideration of the refugee criterion or the complementary protection criterion.

   d.A failure to respond to a clearly articulated claim involves a denial of procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 at [24], [95]; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [90].

   e.A failure to respond to a claim squarely raised or apparent on the material available to the decision-maker involves a constructive failure to exercise the Tribunal’s review function: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [58].

Ground 1

1. As noted earlier, the applicant’s father provided the Tribunal with a letter from a minister at the Wesley Mission, Mr Lee, which stated that the applicant and her family had been baptised there on 2 September 2012.  The Minister met the applicant’s allegation that the Tribunal had not considered this document by submitting that some of the several other documents submitted at the hearing had been referred to and that it would not be fair to infer in those circumstances that the letter had been overlooked.

2. Although, as the Minister submitted, the Tribunal need not refer to every piece of evidence before it, failure to refer to important evidence may indicate that it has not been considered. If the Tribunal fails to consider evidence which might have had a bearing on the outcome of the review, in that the evidence was not so insignificant that failure to take it into account could not have materially affected the decision, and where such failure could possibly have deprived an applicant of a successful outcome to his or her application for review, then that amounts to a failure to conduct the review in a manner required by the Act and is properly characterised as a jurisdictional error. I am satisfied that that is what occurred in this case.

3. An important element in the Tribunal’s finding that the applicant’s family was not Christian and that the applicant would not practise Christianity if she were to live in China was what it described as conflict between the oral evidence given at its hearing by the applicant’s father and the documentary evidence he submitted, relevantly, evidence concerning whether the applicant had been baptised.  The Tribunal found that the applicant’s “Certificate of Infant Dedication” dated 2 September 2012, was not a baptismal certificate. 

4. Relevantly, that certificate stated that the applicant:

   …was this day dedicated to the Lord with the expressed prayer of his [sic] parents that he [sic] may grow up to know, love and serve Jesus Christ as his personal Saviour and Lord.

   Notwithstanding its unhelpfully innovative title, to anyone with an understanding of infant baptism, and the Tribunal appeared to profess some understanding of baptism, the document in question must, at the very least, have suggested that the applicant had been brought to church by her parents to be baptised a Christian.  However, if there had been any doubt, as the Tribunal clearly had on this occasion, it might very well have been assuaged by consideration of Mr Lee’s letter which stated that the family’s baptisms had taken place on 2 September 2012.

5. The significance of Mr Lee’s letter, if accepted as genuine, was sufficiently great in the circumstances that the Tribunal’s failure to refer to it when finding that the “Certificate of Infant Dedication” was not a baptismal certificate indicates that it was overlooked.  If it had not been overlooked, it is possible that the Tribunal’s opinion on whether the applicant’s family was a Christian one and whether the applicant might practise Christianity in China if she were to be sent there might have been different and that this might have led to a different outcome of the review.  The Tribunal therefore erred.

Ground 2

1. However, contrary to the applicant’s second allegation, the Tribunal did not err by not making enquiries of Mr Lee.  The duty to make the enquiry propounded was said to arise out of Minister for Immigration & Citizenship v SZIAI (2009) 83 ALJR 1123 where it was said:

   The duty imposed upon the tribunal by the Migration Act is a duty to review.  It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review.  If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. (at 1129 [25])

2. This case did not turn on the discovery of a critical fact but on the Tribunal’s regard to and assessment of the evidence already before it.  In substance, the applicant asserted that the Tribunal erred because it did not undertake an enquiry which she might have made and could have made if she had thought about it.  Circumstances such as these do not meet the very narrow test described in SZIAI of inaction possibly amounting to a failure to review. 

Ground 3

1. In the third ground of the application, the applicant alleged that the Tribunal failed to consider a claim which she said she had made to fear persecution in rural Fujian as an infant female.  The claim to have that fear was set out in the particulars of the allegation.  To deal properly with the allegation, the passage in question must be considered in context.  That context is the applicant’s written statement reproduced in the Court Book (“CB”), in particular the following passage at CB 30:

   I am an “out-of-the-plan” baby according to the Chinese family planning law.  Children like me will be punished by the law if returned, and such penalty will be unaffordable for my family.  I will have no residency and become a “Black child” or “second-class-citizen”, be regarded with discrimination in the social ideals and public welfare system.  Normal life will be a luxury to me, and it will be a devastating damage to an Australian born baby like me, physically and psychologically.  It is unjust and inhumane.  My parent’s families are located in the rural area of Fujian.  The social values there weight boys over girls and it is not uncommon to hear about girl babies being abundant and even killed.  The local government conducts an inhumane scheme of pushing forward family planning law, and the means is simply cruel.  Everybody knows that. (errors in original)

1. The applicant did not suggest there, or anywhere else, that her parents would abandon or kill her or that she would be kidnapped by other people who might cause her to be abandoned or who might kill her.  Seen in context, the sentence which the applicant says was a separate claim was no more than a descriptive passage giving emphasis to her claim to fear persecution as a “black child”.  Consequently, I am not satisfied that the jurisdictional error alleged in the third ground of the application occurred.

Conclusion

1. For these reasons, the decision of the Tribunal will be set aside and the matter remitted to it to be determined according to the law.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date:  15 November 2013