SZSUZ v Minister for Immigration

[2013] FCCA 1751

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZSUZ & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1751

Catchwords:
MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Legislation:  

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

Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63
SZLSM and Another v Minister for Immigration and Citizenship and Another (2009) 176 FCR 539; [2009] FCA 537
SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58

First Applicant: SZSUZ

Second Applicant: SZSVA

Third Applicant: SZSVB

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 964 of 2013

Judgment of: Judge Barnes

Hearing date: 2 October 2013

Delivered at: Sydney

Delivered on: 2 October 2013

REPRESENTATION

Applicants: In person

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The name of the First Respondent be amended to read ‘Minister for Immigration and Border Protection’.

2. The application be dismissed.

3. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $3,500.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 964 of 2013

SZSUZ, SZSVA, SZSVB

Applicants

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application for review of a decision of the Refugee Review Tribunal dated 8 April 2013.  The Tribunal affirmed a decision of a delegate of the First Respondent not to grant the Applicants protection visas. 

2. The First Applicant (referred to for convenience as the Applicant) is a female citizen of China.  The Second Applicant is her de facto partner.  The Third Applicant is their child who was born in Australia.  The Applicants applied for protection on 27 February 2012.  The Applicant claimed she feared persecution on return to China on the basis of her religion as a Catholic.  She claimed she had been detained twice in China while attending Catholic gatherings.  She also claimed that she had shown her support for a micro-blog posted by her godfather supporting the Pope, that her computer had been attacked by hackers and her home computer searched by the police.  She claimed that her mother was warned and threatened. 

3. The Applicant also claimed that her boyfriend grew up going to the Catholic Church in China with his grandmother and was baptised there, and that after they met in Australia they went to church together. 

4. Finally, the Applicant claimed that as she and her boyfriend were not married and had a child they may be in breach of the Chinese family planning law. 

5. The application was refused by a delegate of the First Respondent. The Applicants sought review by the Tribunal. The Applicants were invited to and attended a Tribunal hearing. The only evidence before the Court of what occurred at the Tribunal hearing is the Tribunal’s account in its reasons for decision. The Tribunal recorded that at the hearing it raised certain issues with the Applicant and she gave certain evidence and that it also took evidence from the Second Applicant. After the hearing the Tribunal wrote to the Applicants pursuant to s.424A of the Migration Act 1958 (Cth) (the Act), inviting their comments on and response to certain information, in particular inconsistencies between the evidence the Applicant had provided to the Department and her evidence at the Tribunal hearing and inconsistencies between the evidence provided by the First and Second Applicants to the Tribunal.

6. The Applicants responded by letter dated 20 March 2013.  In addition, the Applicants provided the Tribunal with a copy of a letter addressed “[t]o whom it may concern” from Father Paul McGee of the Chinese Catholic Community of West Sydney dated 19 March 2013 to which I will return. 

7. In its findings and reasons the Tribunal summarised the Applicant’s claims that she and the Second Applicant were Catholic, that she had been arrested twice in China and that she had posted information on the internet which led to her computer being hacked in Australia and her godfather being arrested in China.  However the Tribunal found, for reasons which it gave, that it had serious concerns as to the credibility of each of these claims. 

8. The Tribunal set out in some detail its concerns, explanations that were provided by the Applicants, and the difficulties that the Tribunal had with such explanations.  First, it had regard to inconsistencies in the Applicant’s evidence in relation to her claimed second arrest (which it specified).  It did not accept the Applicant’s explanation for not recalling whether her godfather was present at the second gathering when she was arrested.  The Tribunal was of the view that the Applicant would be able to recall accurately whether or not her godfather was arrested at the same time as her claimed arrest in 2007, given the traumatic nature of being arrested, the limited number of people said to be present, and the importance of her godfather to her religious life.  It found that her inability to recall these matters cast doubt on whether the claimed events occurred. 

9. The Tribunal found the Applicant’s evidence in relation to her attendance at services in China to be “vague, hesitant, and unpersuasive”. 

10. It also found that she had provided inconsistent evidence in relation to her attendance at church activities in China, in particular as to whether it was every week or less frequently. It addressed her claim in reply to the s.424A letter that the case officer had some “misunderstandings” about the time of her church activities, but observed that “she did not specify what those misunderstandings were”.  The Tribunal found the Applicant’s evidence was “so inconsistent as to not be credible”. 

11. The Tribunal found the “[A]pplicant’s evidence in relation to her mother’s attitude to the Catholic Church in China to be inconsistent and unpersuasive”.  It also found her claim:

    that her mother strongly opposed her attending church in Australia because it was dangerous to attend church in China and [that she had] threatened to cut [the Applicant] off financially if she [attended church in Australia]. … difficult to reconcile with a mother who would [as the Applicant claimed] allow her daughter to attend fortnightly meetings in China where they sang hymns and studied the Bible.

12. In addition, the Tribunal raised:

    concerns about the genuineness of [the Applicant’s] beliefs given that she was only baptised in April 2012 after her protection visa application was lodged despite claiming to have wanted to join Catholicism since 2005 and having been in Australia since 2007.  The Tribunal did not accept that [if the Applicant] had a genuine desire to be baptised and join the Catholic Church that she had to wait until April 2012 because her mother did not approve. 

13. The Tribunal gave reasons for this finding.  The Tribunal was also of the view that “the timing of the [Applicant’s] baptism indicate[d] that [it] was undertaken for the sole purpose of strengthening her protection visa application”. 

14. The Tribunal found that the evidence of the First and Second Applicants was inconsistent in relation to whether the Second Applicant attended church in China.  It set out details of these inconsistencies.  It found that the explanations provided did not explain the significant inconsistency.  This made the Tribunal doubt whether the Second Applicant had attended Catholic gatherings in China at all. 

15. In addition the Tribunal found the Applicant’s evidence in relation to her internet posts “to be inconsistent and unpersuasive”.  In particular while she had initially claimed that she shared gospel news to the brothers and sisters in China who had no access to such information, at the Tribunal hearing she stated that the only information she posted consisted of blocks of text from the Bible.  She was unable to provide any reason why she would do this.  The Tribunal was of the view that this information was very different to that implied in her initial claims and could see no reason to copy out passages of the Bible, given that on the Applicant’s evidence, church members in China had access to the Bible through their local groups.  

16. The Tribunal found that the Applicant’s evidence in relation to her computer being hacked was “unpersuasive”.  It had regard to the absence of any evidence in support of this claim, notwithstanding the Applicant’s claim that the people who repaired the computer had told her it had been hacked. 

17. The Tribunal did not find the Applicant’s claim that the Chinese authorities went to her home in China to raid the computer credible, “given that the authorities would have been aware that she was in Australia” if they had hacked her computer in Australia.  The Tribunal “[could] not see any reason for the authorities to search her mother’s home in 2011 as a result of her connection with her adoptive father”.  It found “[her] evidence in relation to what happened at her mother’s home… [to be] inconsistent” in relation to whether her mother was warned and threatened.  The Tribunal did not accept that the Applicant posted any religious information or opinions on the internet from Australia, that her computer was hacked, that her home was raided in China, or that her mother was warned or threatened as a result. 

18. The Tribunal found that the First and Second Applicants had provided inconsistent evidence in relation to the Second Applicant’s attendance at church in Australia and that the second Applicant’s evidence in this respect and about the practice of his faith was “very vague and unpersuasive” in a manner which it detailed.  It did not accept the inconsistent evidence in this regard for reasons which it gave.  The Tribunal found that the Second Applicant did not attend a church in Australia for an extended period of time because he had no interest in doing so.  It considered this cast “doubt on his overall credibility”. 

19. In addition, the Tribunal found that the delay in lodging the application for protection undermined the refugee claims of the First and Second Applicants.  While the Tribunal accepted there may be good reasons for such a delay, it did not accept the explanation that the Applicants did not know about protection visas or the Applicant’s concern that she would be deported as the Tribunal considered they could have taken steps to obtain this knowledge. 

20. The Tribunal addressed the letter provided by Father Paul McGee stating that the First and Second Applicants regularly attend St Dominic’s mass on Sundays.  It found, however, that as the dates of first attendance were provided by the Applicants this “[did] not … [provide] any independent evidence of the timing of their attendance at church in Australia”.  It accepted that the letter did provide evidence of their recent regular attendance at a Catholic church in Australia, but observed that “Father McGee [did] not provide any opinion on the genuineness of their beliefs”.  The Tribunal did not consider the letter overcame the concerns to which it had referred and noted that while the Applicant had claimed that she could provide letters of support from fellow church members, despite having time after the hearing she had not done so.

21. The Tribunal considered the claims by the Applicant in response to the s.424A letter that there were errors in their evidence because they were “nervous [at the hearing], [it] was long, they [were] stressed, they did not have enough time to think about things which happened in the past and the [Second Applicant] ha[d] a very introverted personality.”  The Tribunal accepted that the Applicants were likely to be stressed and nervous at the hearing and that some concerns could be explained by these factors, such as issues about their knowledge of Catholic beliefs and practices and erroneous references to 2011 or 2012.  Consequently the Tribunal stated that it had not relied upon such issues.  The Tribunal, however, “[did] not accept that these factors explain[ed] the inconsistencies … or overcame its significant credibility issues”.

22. For the reasons given, the Tribunal found that the First and Second Applicants “were not witnesses of truth and were prepared to fabricate claims to give themselves the profile of a refugee.”  It did accept, “in light of Father McGee’s letter and the applicants’ demonstrated knowledge in relation to some Catholic beliefs and practices, that the [First and Second Applicants had] been attending a Catholic church in Australia on a regular basis recently”, although it did not accept that such attendance was earlier than 2011. However it found that they were not credible witnesses and was not satisfied that they held genuine Catholic beliefs. It was not satisfied that their conduct in Australia, including participation in Christian or Catholic church services, was otherwise than for the purpose of strengthening their claims to be refugees and hence disregarded such conduct in accordance with s.91R(3) of the Act.

23. The Tribunal found that the First and Second Applicants were “not genuine Catholics”.  It did not accept that either of them had attended Catholic gatherings in China or that the Applicant was arrested on two occasions for attending such gatherings.  It did not accept that she had been honest about her reasons for coming to Australia.  For these reasons it found:

    that [the Applicant] was not a Catholic … [and] that she [would not] attend Catholic gatherings in China nor engage in any Catholic related activities if she were to return to China now or in the reasonably foreseeable future because she ha[d] no interest in doing so.  [It found] that there [wa]s no real chance that [she] would face persecution as a result of this if she were to return to China now or in the reasonably foreseeable future.

24. In relation to the claims about internet posts, as the Tribunal did not accept that the Applicant posted any such materials as claimed, it found no real chance that she would face persecution as a result of this if she were to return to China. 

25. The Tribunal then addressed the claims in relation to family planning.  It accepted, on the basis of the birth certificate provided, that the Third Applicant was the son of the First and Second Applicants.  It was willing to accept that they were not married at the time of the birth and hence, even if they married now, there would be a social compensation fee payable on return to China in relation to the Third Applicant. 

26. The Tribunal accepted that the parents were “loving and devoted parents”, that “they [had] grown accustomed to the freedom and standard of living available to them in Australia and that any move back to China would be traumatic and difficult”.  However the Tribunal pointed out that it had to consider whether Australia owed them protection obligations.  In that context it considered the possibility of non-payment of the social compensation fee.  It referred to independent country information and the evidence before it as to the amount of such fee.  It rejected the claims of the Applicants that there would be a much greater fee than the independent country information suggested.  It considered whether imposition of the fee constituted persecution of the Applicant, but was satisfied that the family planning policy and law applied generally to the Chinese population, that such laws were “appropriate and adapted to achieve a legitimate national objective” and was “not satisfied there was any evidence [that such law would] be applied to the applicant in a discriminatory manner for any reason or that it was selectively enforced”.  It was not of the view that the application of the family planning laws, including a social compensation fee, constituted persecution of the First Applicant for the purposes of the Refugees Convention criterion. 

27. The Tribunal addressed the parents’ claims that they could not afford to pay the social compensation fee because they had no qualifications and could not get a job, that they had no savings or assets and their families would not assist.  However the Tribunal considered the fee to be “relatively modest”.  It had regard to the parents’ work in a number of jobs in Australia, the time they had been living in Australia and their ability to support themselves and the child since the child’s birth in 2011. Although they claimed their families would not assist them, the Tribunal had regard to the fact that they both came to Australia on student visas paid for by their families and both stated they were still in contact with their families.  Having regard to its credibility concerns and the evidence of ongoing family contact, “the Tribunal [w]as not satisfied that [the Applicants’] families would be unwilling or unable to assist in the payment of the fee for registration of their grandson”.  In that respect it accepted that the fee could be paid by instalments in the Applicants’ home province. 

28. While the Tribunal accepted it would be financially difficult for the Applicants if they returned to China, it was not satisfied they were unable to pay the social compensation fee for the child to be registered and found that if the child were to be registered he would have access to state provided education and health care.  The Tribunal found there was no real chance the Third Applicant would suffer persecution.  In that context it also considered whether he would face harm in the form of persecution until such time as he was registered and had regard to independent country information in that respect which it set out in some detail in relation to education and health care.  Having regard to the Third Applicant’s young age the Tribunal found it likely he would be registered by school age even if there was payment by instalments and that if he was not, there was independent country information in relation to reasonably priced private schools.  In relation to health care, the Tribunal preferred Department of Foreign Affairs and Trade (DFAT) information “indicat[ing] that there [wa]s no public health system in China and all residents must fund their own medical costs”.  It was not satisfied that the implications of not being eligible for state funded education and/or health benefits in the interim period prior to payment of the fee by instalments constituted harm to the Third Applicant as an unregistered child of such nature and extent as to amount to persecution. 

29. While the Tribunal accepted that the Third Applicant could be known to have been born out of wedlock and might suffer some teasing and bullying and some degree of social stigma, it was not satisfied that this was sufficiently serious to constitute serious harm amounting to persecution.  It was not satisfied that the Applicants had a well-founded fear of persecution for a Convention reason on these bases.

30. The Tribunal then considered whether any other claims arose on the material before it, in particular, claims on behalf of the Second Applicant who had not initially put forward claims of his own.  At the hearing he had claimed that “his family would force him to marry another woman” and that if he refused “he would be disowned”.  The Tribunal was of the view that the consequences of refusal by the Second Applicant to marry another woman were not sufficiently serious to constitute serious harm.  Nor were the consequences for the couple if they chose to marry and their families disowned them sufficiently serious to constitute serious harm amounting to persecution.

31. Insofar as the Second Applicant had referred to “a lack of religious freedom in China”, on the basis of the concerns it had expressed, particularly in relation to inconsistencies and delay, the Tribunal did not accept that the Second Applicant was a genuine Catholic or that he had practised Catholicism in China.  It did not accept there was a real chance he would suffer persecution because of a lack of religious freedom in China. 

1. Finally, the Tribunal considered the complementary protection criterion in the Act.  It reiterated its findings that the Applicants were not genuine Catholics and would not attend Catholic gatherings or engage in Catholic-related activities in China.  It concluded it had no substantial grounds for believing that as a necessary and foreseeable consequence of their removal from Australia to China there was a real risk they would suffer significant harm on that basis.  As it had found that the Applicant did not post any materials on the internet from Australia as claimed, it similarly reached the same conclusion in this respect in relation to the complementary protection criterion.  The Tribunal found that the imposition of the social compensation fee would not constitute significant harm.  The Tribunal referred to the fact that it was not satisfied the parents were unable to pay the fee and that if the Third Applicant was registered he would have access to the benefits associated with household registration.  It found no substantial grounds for believing there was a real risk that he would suffer significant harm on this basis.  The Tribunal also found the possibility of societal discrimination was not significant harm and that any harm the Second Applicant may suffer as a result of refusing to marry the person his parents had chosen was not significant harm.  For all of these reasons the Tribunal was not satisfied that the criterion in relation to complementary protection was met by any of the Applicants. 

2. The Tribunal affirmed the decision not to grant the Applicants protection visas. 

3. The Applicants sought review by application filed in this Court on 7 May 2013.  Under the heading “The Grounds of the Application are” the Applicants first reiterated their claims to fear persecution on the basis of religion.  However merits review is not available in this Court.  This asserted ground does not establish jurisdictional error.

4. The Applicant claimed she “ha[d] been actively involved in church activities in Australia” and that “her action[s] and religious performance had been evidenced by a church elder with a reference”.  I confirmed with her that the only letter of support provided to the Tribunal was the letter from Fr Paul McGee referred to in the Tribunal reasons for decision.  Insofar as there may be any suggestion that the Tribunal failed to consider corroborative evidence, it is clear from the Tribunal reasons for decision that it considered the evidence of Fr McGee as set out above. 

5. The Applicant reiterated her commitment to her faith and referred to the possibility of proselytising in China.  Again, she seeks impermissible merits review.  Such asserted ground does not establish jurisdictional error.

6. Under the heading “Orders sought by Applicant”, the Applicant claimed that the decisions of the Department and the Tribunal were not fair and reasonable as they “failed to take a good consideration in [her] commitment of religion, ignoring [her] background and actual practice of Catholicism in China and Australia”. 

7. First, the decision under review in these proceedings is the decision of the Tribunal, not the Department. It has not been established that the Tribunal failed to have regard to any integer of the Applicants’ claims, whether in relation to religion or otherwise, or that it ignored their background and claims about the practice of Catholicism in China or in Australia. As set out above, the Tribunal considered the Applicants’ claims. It is the case that in relation to the Applicant’s activities in Australia the Tribunal had regard to s.91R(3) of the Act. It is not apparent that it fell into error in the manner in which it applied that provision.

8. Insofar as there is a general contention that the decision was not fair and reasonable, it has not been established that the Tribunal decision was irrational, illogical or unreasonable in the limited sense that would constitute jurisdictional error (see Minister for Immigration and Citizenship v SZMDS and Another (2010) 240 CLR 611; [2010] HCA 16). The Applicant’s disagreement with the Tribunal’s conclusions or its approach to her evidence is not such as to establish irrationality or illogicality. The Tribunal’s decision and reasoning was open to it on the material before it for the reasons which it gave. The Court does not have power to review the merits of the Tribunal’s decision. Ground 1 is not made out.

9. The second ground is that the Tribunal did not consider the Applicant’s “statement and additional information given to the questions asked in and after the hearing, and judge [her] faith simply by knowledge, instead of real practice and fact”. 

10. Insofar as this is a contention that the Tribunal did not consider the Applicant’s original claims, that is contrary to the Tribunal reasons for decision which make it clear that the Tribunal did consider the claims made by the Applicant in writing and also orally to the delegate and the Tribunal. 

11. Insofar as this ground refers to the Applicants’ response to the s.424A letter, the Tribunal addressed relevant aspects of the response in the course of considering explanations for matters of concern to it.

12. The contention that the Tribunal judged the Applicant’s faith simply by knowledge instead of real practice and fact is not clear. The Tribunal considered the Applicant’s knowledge of the Catholic faith. It accepted that nervousness and stress could explain some issues in relation to knowledge of Catholic beliefs and practices. It also accepted that the Applicants had recently regularly attended a Catholic church in Australia. It noted that Fr McGee did not provide any opinion on the genuineness of the Applicants’ beliefs. It was open to the Tribunal to find that his letter did not overcome the concerns that it had in that respect (and as indicated, to disregard the Applicant’s attendance at a Catholic church pursuant to s.91R(3) of the Act). The claims made in ground 2 do not establish jurisdictional error.

13. Ground 3 is that “[the Tribunal] failed to prudently consider our risk, especially my child due to my commitment of paralyzing (sic) if we return to origin.”

14. In oral submissions the Applicant confirmed that this ground was intended to refer to “proselytising”.  However, given that the Tribunal did not accept that the Applicants would attend Catholic gatherings in China nor engage in any Catholic-related activities if they returned to China, it was not necessary for the Tribunal to consider the consequences for any of the Applicants if they did engage in such activities in China.  No jurisdictional error is established on this basis. 

15. It was also claimed that the Tribunal failed to consider the Applicant’s statements, explanation and evidence provided in support of her claim as a whole.  As indicated, it has not been established that the Tribunal failed to consider any integer of any of the Applicant’s claims.  Nor has it been established that it failed to consider any evidence in a manner constituting jurisdictional error. 

16. The final ground is that the Tribunal treated the case unfairly and unreasonably and did not consider that the Applicant would be punished by the Chinese Government due to the family planning issue.  The Applicant’s disagreement with the merits of the Tribunal decision does not establish jurisdictional error.  The Tribunal considered the claim in relation to family planning and the implications for the parents as well as for the child.  Insofar as this is a general contention of a lack of reasonableness, illogicality or irrationality, in the sense considered in the High Court in SZMDS (as explained by the Federal Court in SZOOR v Minister for Immigration and Citizenship and Another (2012) 202 FCR 1; [2012] FCAFC 58) it has not been made out. This is not a case in which the Tribunal’s decision was not rational or logical. Rather, the Tribunal’s reasoning was open to it for the reasons which it gave on the material before it. The Applicant’s disagreement with the Tribunal’s conclusions or reasoning is not such as to establish jurisdictional error. This ground is not made out.

17. In written submissions the First Respondent addressed the issue of whether the Tribunal complied with its statutory obligations, in particular pursuant to ss.424A and 425 of the Act. As submitted, in compliance with s.425 the Tribunal invited the Applicants to attend a hearing at which they were given the opportunity to present evidence and arguments in relation to the dispositive issues arising on the review in the sense considered in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 228 CLR 152; [2006] HCA 63. The infant child was given the necessary procedural fairness as his parents were given the opportunity to present evidence on his behalf (see SZLSM and Another v Minister for Immigration and Citizenship and Another (2009) 176 FCR 539; [2009] FCA 537). To the extent that the Tribunal’s obligations pursuant to s.424A of the Act were enlivened, the Tribunal complied with such obligations by virtue of its letter to the Applicants dated 7 March 2013.

18. As no jurisdictional error has been established on the part of the Tribunal, the application must be dismissed. 

RECORDED : NOT TRANSCRIBED

1. The Applicants have been unsuccessful.  The adult Applicants should meet the costs of the First Respondent.  The amount sought is reasonable and appropriate in light of the nature of this and other similar matters. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Associate: 

Date:  31 October 2013