SZTAV v Minister for Immigration

[2014] FCCA 2209

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTAV & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2209

Catchwords:
MIGRATION – Application for review of decision by Refugee Review Tribunal (RRT) – whether RRT considered applicants’ claims – no jurisdictional error.

First Applicant: SZTAV

Second Applicant: SZTAW

Third Applicant: SZTAX

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1570 of 2013

Judgment of: Judge Manousaridis

Hearing date: 3 April 2014

Delivered at: Sydney

Delivered on: 26 September 2014

REPRESENTATION

Applicants in person assisted by an interpreter.

Solicitors for the Respondents:

Mr D. McLaren

Sparke Helmore

ORDERS

1. The application is dismissed.

2. The first and second applicants pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1570 of 2013

SZTAV

First Applicant

SZTAW

Second Applicant

SZTAX

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. In this application for judicial review, the applicants claim the second respondent (Tribunal) failed to consider or fairly consider the claims they made for a protection visa.

Claims for protection

1. The first and second applicants are citizens of the People’s Republic of China and are de facto partners. The third applicant is their child.

2. The first applicant claimed fear of persecution if she returned to China because of her Christian faith, and her being an unmarried mother. The first applicant also claimed she feared her child would face persecution in China because of China’s family planning laws and discrimination. And the second applicant claimed he feared harm because he had breached China’s family planning regulations by having a child outside marriage.

3. The asserted facts on which the first applicant claimed fear of persecution on the ground of her religion were as follows:[1] when the first applicant was a child, her family were involved in a local church in the countryside of Fujian province; in Easter of 2004 the first applicant’s family gathering was accused by the government of being a cult, and the first applicant’s father was punished; the first applicant’s parents changed the venue of the gathering, but the government discovered the new location, and punished the first applicant’s father by sending him away for labour reform; at Christmas 2004, the first applicant sang a gospel song praising Jesus Christ at her school’s party after which the first applicant’s teacher suspected the first applicant of being involved in an underground church; that resulted in the applicant feeling sick about going to school; later, the first applicant’s family agreed with her proposal to study in Australia; the first applicant had been to some churches since she arrived in Australia in 2006, but did not find one that made her feel as close to her family church until the beginning of 2010 and in July 2010 the first applicant was baptised; in 2011, the first applicant heard her father had again been summoned because of his church activities, and that he had been summoned because of gospel material the first applicant had sent to her family online; the first applicant is terrified of returning to China because of the persecuting policies of the Chinese government. The asserted facts on which the first applicant feared her child would suffer persecution are that she is an unmarried mother, and her child will be punished by the family planning laws and discriminated against by family and society.

   [1] CB34-35

Tribunal’s decision and reasoning

1. The Tribunal found that neither the first nor second applicant was a Christian in China; that the first applicant fabricated her claims of the harm suffered in China; that the first applicant engaged in Christian activities in Australia in order to strengthen the applicants’ protection claims; that the consequences of the first and second applicants’ breaching China’s family planning policy is not serious enough to amount to persecution or to significant harm; and that the likely treatment of the third applicant as a result of his being born out of wedlock is not serious enough to amount to persecution or to significant harm.[2]

   [2] CB147, [36]

2. The Tribunal found the first applicant was not a Christian for the following reasons: the first applicant has not married the second applicant, and the only reason she gave for not getting married is the second applicant’s mother, a Buddhist, disapproves;[3] apart from a letter dated 30 June 2012 from the Local Church in Sydney, there was no corroboration of the first applicant’s account of her religious activities before leaving China;[4] the only documentary evidence was the first applicant’s student visa application which recorded her father was employed in 2004, whereas the first applicant claimed her father had been detained in July and August 2004;[5] the first applicant’s claim that her uncle had to arrange her passport because her father was in detention conflicted with the fact her passport had been issued in April 2005, being well after August 2004 when the first applicant claimed her father had been released from detention;[6] the first applicant raised at the hearing claims she had not raised before;[7] the first applicant departed China on a passport and exit visa in her own name, and departed China one month after being granted a student visa;[8] the delay in the first applicant applying for a protection visa, and her doing so after she first obtained three student visas and two bridging visas, and only after she had become an unlawful citizen with the cancellation of her student visa;[9] the first applicant had no trouble renewing her Chinese passport in Australia in April 2010, and showed no reluctance in approaching the Chinese Consulate for assistance;[10] the first applicant was unable to identify any of the churches she claimed to have attended before attending the Local Church in Sydney;[11] the first applicant produced no baptism certificates or other evidence or any photographic memorabilia of such baptism.[12]

   [3] CB148, [38]

   [4] CB148, [39]

   [5] CB148, [40]

   [6] CB148, [41]

   [7] CB148, [42]

   [8] CB148, [43]-[44]

   [9] CB148, [45]-[46]

   [10] CB149, [47]

   [11] CB149, [48]

   [12] CB149, [48]

3. The reasons for which the Tribunal concluded the adverse impact of China’s family planning laws would not amount to persecution or significant harm were as follows: the “social compensation fee” that the first and second applicants would be required to pay, although significant, can be paid over time, and is not so substantial as to be a significant economic hardship that would amount to a denial of the capacity to subsist;[13] the second applicant has been able to support the first applicant and his child in Australia, despite impediments of language, social obstacles and differences, lack of recognised qualifications, nor family or other social support networks and there is no reason why the second applicant would be unable to do so in China;[14] even if the first and second applicants do not pay the social compensation fee, the first and second applicants would be able to access private education, and medical treatment for a cost that is not excessive by Chinese standards;[15] in any event, if the first and second applicants marry, they would be able to secure household registration for their child; but even if the first and second applicants chose not to marry, their child would not be precluded for that reason from accessing the usual basic services of education and health nor, in later life, of employment.[16]

   [13] CB149, [51]

   [14] CB149, [51]

   [15] CB149, [52]

   [16] CB149-150, [53]-[54]

Grounds stated in application

1. The applicants list their grounds of application in an attachment to the application. I will set out that attachment in full:

   Orders sought by Applicant

   1,I don’t think DIAC and RRT’s 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 [sic] in China and Australia.

   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.

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

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

   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 Grounds of the Application are:

   1,I am a Chinese student and have faithful and committed Christian faith. I have been persecuted and threatened by Chinese authority due to underground church practice, and have a fear of return to origin. People associated to local church activity are also adversely affected.

   2,I have been actively involved in church activities in Australia. My action and religious performance has been evidenced by church elder with reference.

   3,I can’t give up my commitment of faith or backward my religious practice into a secret mood in China. The fact tells me that there is no real religious freedom in China to allow me legally enjoys the same approach and proselytizing will be treated illegal and underground activities are bound to be suppressed by government.

2. The grounds stated under “The Grounds of the Application are” are grounds in support of the contention that the applicants have a well-founded fear of persecution if they were to return to China. These grounds, therefore, do not disclose any jurisdictional error on the part of the Tribunal. And this Court does not, of course, have jurisdiction to determine whether the applicants have a valid claim for a protection visa. On the other hand, the grounds stated under the heading “Orders sought by Applicant” do relate to the Tribunal’s decision. And I will now consider each of the grounds.

Ground 1- failure to consider first applicant’s commitment to religion

1. I will treat this ground as a claim that the Tribunal did not consider the first applicant’s claim that she was committed to the Christian religion. If that ground can be established, the Tribunal will have made a jurisdictional error.

2. In my opinion, that ground cannot be established. The Tribunal set out the first applicant’s claims in relation to her faith,[17] it referred to the document in which the first applicant first stated her claim,[18] and, at the hearing, questioned the first applicant about her claims.[19] The Tribunal questioned the first applicant about: the treatment of the first applicant’s father because of his Christian faith;[20] the apparent discrepancy between, on the one hand, the first applicant’s student visa application which stated the first applicant’s father was employed from October 1999 to 25 August 2005 and, on the other, the first applicant’s claim her father had been detained in a labour camp in July and August 2004;[21] the month’s delay between the issuing of a student visa to the first applicant, and the first applicant’s departing China;[22] the first applicant’s renewing her passport at the Chinese Consulate;[23] the first applicant’s delay in applying for protection;[24] why, if the first applicant was a pious Christian, she did not regularly attend church, or know details of the churches she visited;[25] and the religious activities the first applicant engaged in, other than attending church and reading the Bible.[26] The Tribunal then considered the first applicant’s claims that she was a committed Christian but rejected those claims.[27]

   [17] CB141, [5]; CB142, [11]

   [18] CB141-142, [10]

   [19] CB142-145, [12]-[27]

   [20] CB142, [12]

   [21] CB142, [13]

   [22] CB143, [16]

   [23] CB143, [15]

   [24] CB143, [17]

   [25] CB144, [19]

   [26] CB144, [20]

   [27] CB148-149, [37]-[49]

3. Ground 1, therefore, is not made out.

Ground 2 – failure to consider statements

1. The first applicant claims the Tribunal failed to consider her “statement and comments given to the questions asked in the hearing and judge my faith simply by knowledge, instead of real practice and fact”.

2. This ground is also not made out. The Tribunal did consider the first applicant’s statement and her answers to the questions the Tribunal asked. And the Tribunal asked questions about the first applicant’s actual practice, and considered the answers the first applicant gave. The Tribunal was not bound to accept the answers the first applicant gave; and it was reasonably open to the Tribunal not to accept the answers the first applicant did give.

Ground 3 – failure to consider risk to applicants

1. It is not entirely clear what the ambit of this claim is intended to be. I will take it to be a claim that the Tribunal did not consider that part of the applicants’ claims that related to the application to them, and in particular, to their child of the family planning laws of China.

2. The Tribunal set out the applicants’ claims in that regard;[28] it discussed with the first and second applicants the household registration of their child;[29] it put to the first and second applicants that it was open to them to register their child if they married, and that their choosing not to marry may indicate an absence of a genuine fear of persecution;[30] the Tribunal put to the first applicant independent information that children born to unwed parents can be registered, but only on payment of a social compensation fee, and that private education and health services are available to children who are not registered.[31] The Tribunal then considered the claims based on the application of the family planning laws, but did not accept them.

   [28] CB141, [7]-[8]; CB144, [22]-[23]

   [29] CB144, [23]

   [30] CB144, [24]

   [31] CB145, [26]-[27]

3. The Tribunal did consider these claims. This ground, therefore, is also not made out.

Ground 4 – failure to consider claim as a whole

1. The matters I have set out in paragraphs 5, 6, 7, 11 and 16 of these reasons shows the Tribunal did consider the applicants’ claims as a whole. This ground, therefore, is also not made out.

Ground 5 – failure to consider punishment if returned to China due to family planning laws

1. For the reasons I have given in paragraphs 14-16 of these reasons, the Tribunal did consider the applicants’ claims that they would be punished if they returned to China because of the family planning laws. This ground, therefore, fails.

Submissions made at the hearing

1. At the hearing, the first applicant submitted that the applicants were entitled to protection, and expressed disagreement with the Tribunal’s conclusions. Nothing the first applicant submitted at the hearing, however, disclosed any jurisdictional error on the part of the Tribunal.

Conclusion and disposition

1. The applicants have not made out any of the grounds on which they rely to set aside the Tribunal’s decision. Accordingly, I propose to dismiss the application, and order that the first and second applicants pay the first respondent’s costs.

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

Associate: 

Date:  26 September 2014