SZTCA v Minister for Immigration

[2013] FCCA 1890

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCA & ORS v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1890

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s36

First Applicant: SZTCA

Second Applicant: SZTCB

Third Applicant: SZTCC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1666 of 2013

Judgment of: Judge Driver

Hearing date: 13 November 2013

Delivered at: Sydney

Delivered on: 13 November 2013

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents:

Ms N Johnson

Sparke Helmore

INTERLOCUTORY ORDERS

1. The name of the first respondent is amended to “Minister for Immigration and Border Protection”.

2. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

3. The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1666 of 2013

SZTCA

First Applicant

SZTCB

Second Applicant

SZTCC

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 26 June 2013.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are three applicants.  The first applicant is the mother of the third applicant, and the second applicant is his father.  For the purposes of these proceedings, the applicant mother was appointed the litigation guardian of the third applicant.  In this decision, any references to “the applicant” are intended to be references to the first applicant.

2. The applicants are from Fujian Province in China and made claims of persecution based upon the Chinese family planning laws, and also their asserted Christian faith.  Their application for a protection visa was rejected by the Minister’s delegate and they sought review before the Tribunal.  The Tribunal was unable to make a favourable decision on the papers and invited the applicants to attend a hearing on 24 May 2013.  The applicants all responded that they wished to participate in the hearing, and they did attend.

3. It is apparent that the Tribunal had credibility concerns about the applicants’ claims based on their asserted Christian religion, and the Tribunal wrote to the first applicant, by letter dated 27 May 2013[1] inviting her to comment on information that bore adversely on her credibility.  The applicant responded in the document appearing at pages 144 to 149 of the court book.  The information contained in the invitation and the applicant’s response is set out in Attachment 2 to the Tribunal’s decision[2]. 

   [1] Court Book (CB) 140

   [2] CB 159-170

4. The Tribunal accepted that the second applicant was aged 19 when the third applicant was born, and that they were not at the time married.  It followed that the adult applicants would be liable to pay a social compensation fee, pursuant to the Chinese family planning policy.  The Tribunal calculated from country information about the social compensation fee as applied in Fujian Province that they would have to pay the equivalent of between A$667 and A$1,112.  The applicants had given evidence that they had income of $500 a week and expenses of $400 a week.  The Tribunal concluded that the financial liability imposed on them would not be of such a degree as to constitute persecution. 

5. In relation to the claim based on their religion, the Tribunal drew adverse credibility conclusions.  The Tribunal rejected the first applicant’s claim that she had suffered harm in China before coming to Australia, and noted that she had made contradictory claims to the Minister’s delegate and in her response to the Tribunal’s invitation to comment about the timing of events in 2006.  The Tribunal was also concerned about the applicants’ non-attendance at church in Australia until they had sought a protection visa.  The Tribunal concluded that the applicants are not, and had never been, genuine Christians.

6. The Tribunal also considered whether the applicants qualified for complementary protection, and found that they did not. The Tribunal concluded that the applicants did not satisfy either of the criteria for a protection visa set out in s.36(2) of the Migration Act1958 (Cth).

7. These proceedings began with a show cause application filed on 22 July 2013.  The applicants continue to rely upon that application.  The grounds of review are set out in an attachment to that application, under the heading “Orders sought by the Applicant”:

   1, I disagree with Immigration and RRT’s decision.  They did not consider that my baby and our family will be in danger if we return.

   2, RRT did not consider that I will be persecuted and in big trouble if I return home.

   3, RRT member failed to consider my fears and concerns about my faith in particular my child’s future if return.  They did not trusted me and have [prejudice] attitude to my application.  RRT should grant my application.

8. Under the heading “The Grounds of the Application are”, the applicants made claims supportive of their application for protection visas:

   1, I am a Chinese citizen and Christian who has been persecuted by Chinese government.  I had been arrested by the corrupted government and police.

   2, I can not go back to China since I am very scared to be sentenced.

   3, My child will be facing challenge and social biases due to the sanction of the family planning policy if I return.  RRT failed to consider the reality that both my child and my family will be denied by family and society.

9. I received as a submission the affidavit of the first applicant, made on 26 June 2013, and filed with the application. 

10. I have before me as evidence the court book filed on 26 August 2013. 

11. The three applicants attended court this afternoon, although the second applicant was engaged outside the court room with the care of the third applicant. 

12. The first applicant made oral submissions.  She told me that she was willing and able to deal with the issues on her own.  She was not able to substantiate the assertion that the Tribunal had overlooked some elements or integers of the applicants’ claims.  There is nothing to support the apparent allegation of bias.  In her oral submissions, the first applicant said that during the hearing, the Tribunal member did not look at her and said afterwards that the Tribunal would send a letter.  She did receive a letter, and responded, but claimed that the response was not taken into account.  It transpired that the applicant was referring to the invitation to comment[3] and her response[4].  I explained to her that while they not reproduced in the main body of the Tribunal’s decision record, the detail of the invitation to comment and her response were reproduced in Attachment 2 to the decision[5].  Further, the Tribunal states at [13] of its reasons[6] that it considered the applicants’ submission received on 19 June 2013. 

    [3] CB 140-143

    [4] CB 144-149

    [5] at CB 159-173

    [6] CB 153

13. The applicant asserted that there was confusion over her claims concerning events in 2006, before she came to Australia, about when those events occurred.  She claims that while this was raised at the hearing before the Tribunal, it was not raised in the Tribunal’s letter.  That was not correct.  The issue of the timing of those events was specifically raised, responded to and considered by the Tribunal.  The Tribunal dealt with that issue at [18] of its reasons[7]:

    The Tribunal finds that at Departmental interview on 23 July 2012 the applicant stated that because of the incident in September (when her cousin was detained) her parents decided to send her abroad to study and that they found a migration agent to help her to do that, however Departmental records indicate the applicant’s student visa was issued on 21 July 2006.  The Tribunal finds that the applicant’s student visa was issued before she stated that the incident in September (when her cousin was detained) occurred and before her parents decided to send her overseas allegedly because of that incident.  The applicant has stated in her submission received on 19 June 2013 that she got herself into trouble (being investigated by the police) in July 2006, however this is not consistent with what she told the Department at interview on 23 July 2012 which was that the incident was in September and that they decided to send her abroad then.  This and the fact that the applicant remained in Australia from 15 August 2006 onwards and did not attend the Local Church until April 2012 leads the Tribunal to find it does not accept the applicant is telling the truth when she says she was exposed to the Local Church at any time in China or that she suffered past persecution or that she came to Australia to flee China because of her religion.  Whilst the applicant has stated that she failed to find any Local Church when she came in August 2006 because of her poor English and because she rarely went on English web sites and could not find any Local Church locations in Australia, the Tribunal does not accept that someone who had attended the Local Church in China could not find the Local Church in Australia prior to April 2012, especially given that the applicant claimed to have kept in spiritual touch through the internet with the Local Church in China and presumably, could have asked them to inquire about the Local Church in Australia or indeed inquire through the internet herself.

    [7] CB 154

14. I find that the applicants have failed to advance any arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules).

15. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the court scale. The applicant did not wish to be heard on costs. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,326 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules.

16. I will further direct that the name of the first responded be amended to the “Minister for Immigration and Border Protection”.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date:   18 November 2013