SZTCT v Minister for Immigration

[2014] FCCA 811

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTCT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 811

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – consideration of Tribunal’s treatment of applicant’s credibility – whether Tribunal biased – whether Tribunal fell into jurisdictional error.

Legislation:  

Migration Act 1958 (Cth) s.65

Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609

SZHVL v Minister for Immigration and Citizenship [2008] FCA 356
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39

Applicant: SZTCT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1707 of 2013

Judgment of: Judge Raphael

Hearing date: 9 April 2014

Date of Last Submission: 9 April 2014

Delivered at: Sydney

Delivered on: 9 April 2014

REPRESENTATION

For the Applicant: In person

Solicitors for the Applicant: DLA Piper

ORDERS

1. Application dismissed.

2. Applicant to pay the respondents’ costs assessed in the sum of $4,400.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1707 of 2013

SZTCT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant in this case is a young, male, Chinese citizen who at one stage held a student visa which enabled him to come to Australia to study. At some later stage, he ceased studying and has since then worked. In all probability, his student visa is now expired or been withdrawn. He has formed a relationship with another young student. They are not married. On 8 November 2011 they had a baby. On 21 March 2013 they had another baby. The applicant, who appeared in court today, told me that his wife is again pregnant. On 3 May 2012 the applicant applied to the Department of Immigration and Citizenship for a protection (Class XA) visa under s. 65 of the Migration Act 1958 (Cth).[1]  It is said that his partner, and possibly all the children have applied for their own visas.  These were not considered by the Tribunal, and are not being considered in court today.  On 13 August 2012 a delegate of the Minister refused to grant a protection visa.  The applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision, and attended a hearing before the Tribunal on 19 June 2013.  On 28 June 2013 the Tribunal determined to affirm the decision under review. 

   [1] The ‘Act’.

2. The grounds upon which the applicant claimed to be a person to whom Australia owed protection obligations were twofold.  First, he said that he was a member of the Mormon Church, and believed he would encounter discrimination should he return to China as a result of his adherence to it.  Second, as the father of two – and soon to be three – children born out of wedlock, if he returns to China, he will face unaffordable fines and penalties.  The child will not be eligible for social welfare, medical care, child nursing or compulsory education; and he and his partner will encounter discrimination in employment and unbearable social pressure.  This will amount to tremendous psychological and economic harm for him and his family.

3. The Tribunal questioned the applicant on his claims, and put to him in regard to his association with Mormonism that, in fact, the Mormon Church was tolerated in China because it had declared that it operated under the laws of any country in which its churches were situated.  That included a ban on proselytisation in China.  The Tribunal questioned the applicant on his adherence, and from his responses, came to the view that:

   “In relation to the applicant’s claims based on his religion, the Tribunal finds that the applicant has had some involvement with the Mormon Church in Australia since early 2012.  However, the Tribunal finds that the applicant’s interest has been for the sole purpose of furthering his refugee application, and therefore it has disregarded his actions in assessing application under section 91R of the Migration Act.  The reasons for this are that the applicant showed no interest in the Mormon Church in China during his first three years in Australia.  However he was then baptised and confirmed in February 2012 and launched his protection visa three months later.  This action after such a relatively long period of time in Australia raised doubts with the Tribunal regarding the applicant’s motives.  In addition, when the applicant was asked about his current participation in the Mormon Church, he gave the vague answers that did not display a level of commitment that could be expected from someone who converted only 15 months prior.  This included vague and limited answers regarding how often he was involved with the Mormon Church, with the applicant initially saying ‘regularly’, if no social circumstances prevented it, (and when prompted further saying ‘weekly’); regarding what actually occurred at the gatherings, with the applicant giving evidence that it was ‘communion and gathering’, and when prompted further saying ‘gatherings to remember Jesus Christ’; asked what role he played at these meetings, such as was he a member of the congregation, the applicant said ‘nothing’.  As such, based on the evidence before it, the Tribunal is not satisfied that the applicant is genuinely committed to the Mormon faith. [[42] CB100-101]

   The Tribunal also noted that country of origin information indicated that there was no known mistreatment or harassment of Mormon Church members in China.

4. In regard to the applicant’s claims arising out of his relationship and the birth of his children, the Tribunal discussed with him – in some considerable detail – his ability to the pay the social compensation fee that the Tribunal accepted will be imposed upon him as a parent should he return to China with the children.  The Tribunal put to the applicant that based upon a piece of information known as the “Tables of Fujian Family Planning Fines 1990 to 2011” (which is found as annexure A to the Tribunal’s decision at [CB 105-106]), the amount of the fine that he was likely to be made to pay was something that he could save for from his earnings in Australia which he told the Tribunal was between $500 to $700 net per week as a gyprocker.  The Tribunal noted that if the applicant did pay the social compensation fee then the children would be eligible for social welfare, medical care and education, and would not face discrimination, social pressure, psychological or economic harm, or have a difficult life or receive unfair treatment due to being born outside the family planning rules:

   In addition the Tribunal finds that if the applicant did not pay the social compensation fee to register his child or children, [then] he may suffer social discrimination or alienation, but the Tribunal is not satisfied that this could be categorised as serious harm or persecution as per the Refugees Convention.  This is based on the country of origin information regarding the lax nature of application in the applicant’s area of Fujian, and the number of children born outside the Family Planning rules in that area.  As such, the Tribunal finds that it is not satisfied that the applicant has a well-founded fear of serious harm or persecution based on his having fathered one child and/or two children below the marriageable age and/or outside of marriage.” [[47] CP 102]

5. The Tribunal then considered the applicant’s claims under s.36(2)(aa), stating:

   “The Tribunal has found the applicant to be a Chinese National from Fujian area who entered Australia on a Student Visa. The applicant has lived and worked in Australia for in excess of four years, and he has fathered two children to his partner, who is also a Chinese national. The applicant applied for a Protection Visa several years after arriving in Australia, and based on his own evidence, this was after he joined the Mormon Church and fathered his first child. The Tribunal has found the applicant joined the Mormon Church in Australia for the sole purpose of furthering his refugee claim (the Tribunal notes that these actions are not excluded under section 91R of the Migration Act when considering complementary protection). The Tribunal has also found that Mormons are not at risk in China due to their religion, as there is no known mistreatment or harassment of Mormon Church members by the Chinese authorities. The Tribunal has also found that the applicant has financial capacity to register his children within the family planning rules when he returns to China if he so chooses, based on his income in Australia and his outgoing expenses. However, if he did not register his children, the Tribunal finds the applicant would not face significant harm as a result.” [[50] CB102-103]

   In the course of its decision record, the Tribunal notes that it has difficulties with the credibility of the applicant, due to the vagueness of his responses and the fact that his evidence contradicted reputable country of origin information. 

6. On 24 July 2013 the applicant filed an application with this court, in which he put to the court, under the heading ‘Orders sought by the Applicant’, the following [as in original]:

   “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 in China and Australia.”

   Although this seems to the court to be nothing more than a claim for merits review of the Tribunal decision, which is impermissible, it should be stated that it is also incorrect, because the Tribunal gave a very thorough consideration of the applicant’s commitment to the Mormon religion.  It is its views upon that commitment with which the applicant disagrees.

7. The next contention was:

   “2, The 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.”

   This again is argumentative with the merits of the Tribunal’s decision. 

8. The next contention was:

   “3, RRT failed to prudently consider our risk, especially our commitment of paralyzing if I return to origin.”

   It is not entirely clear what this means, however, the court can assume the reference to paralysing to mean proselytising. The Tribunal most certainly considered the applicant’s risk should he return to China, under both the headings in which he made claims.  It did not consider that those risks constituted the appropriate level of harm required to find that he was a person to whom Australia owed protection obligations. 

9. The next contention was:

   “4, RRT failed to consider our statements, explanation, and evidence provided in support of our claim as a whole.”

   This again cannot be substantiated from a reading of the decision record. 

10. Under the heading ‘The Grounds of the Application are’, the applicant said:

    “1, I have been actively involved in Mormon church activities in Australia.  My action in religious performance has been evidenced by church elder with reference.”

    Whilst there is a baptism certificate found at CB38, there does not appear to be any reference from any church elder in the court book.  But in any event, it is the Tribunal’s duty, par excellence, to consider the credibility of the applicant’s claims, and that it did:  Minister for Immigration and Multicultural Affairs, Re; Ex parte Durairajasingham (2000) 58 ALD 609.  Furthermore, it would not avail the applicant if he was a regular or even proselytising member of the Mormon Church, because the Tribunal has found that he would not be permitted to proselytise in China by the Mormon Church, and as an ordinary member of that church would not suffer persecution. 

11. The second ground of application was:

    “2, RRT unreasonable suspect of the truthfulness of my claims just because of the absence of evidence”

    Without wishing to appear glib, the court would only remark that in the absence of evidence, any Tribunal might suspect the truthfulness of an applicant’s claims. 

12. Finally, the applicant states as a ground:

    “3, The tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observe.”

    This latter claim was referred to by the applicant when he appeared before me today.  He said that the RRT member was impatient, and that he did not consider what he had said thoroughly.  He said that the Tribunal member had used the applicant’s inability to express himself as a ground to reject the application.  The applicant has not provided the court with any evidence concerning these matters.  In the directions hearing, he was given an opportunity to provide further amended particulars or an amended application.  He was also given an opportunity to provide a transcript.  Without this, and looking only at the decision record, it is difficult to reconcile the applicant’s complaints with the Tribunal’s actions.  The courts have frequently made it clear that it will be very difficult indeed to establish bias on the part of the Tribunal simply by reference to the reasons.  In SZHVL v Minister for Immigration and Citizenship [2008] FCA 356, McKerracher J said at [17]:

    “It is clear that an allegation of bias must be distinctly made and proven: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. It would be a rare and extreme circumstance that bias on the part of the Tribunal would be established simply by reference to the reasons produced by the Tribunal: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J. See also SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 at [16] per Tamberlin, Mansfield and Jacobson JJ.”

13. The applicant explained to the court that the reason that his evidence was vague was because he was scared in the hearing before the Tribunal.  The court understands that persons appearing before the Tribunal will be nervous, but a reading of the Tribunal decision record would indicate that the vagueness of the applicant’s answers was only a minor difficulty for him.  The applicant told me that the Tribunal did not investigate the real situation of his life, but there is no duty upon a Tribunal to make independent investigations of this sort: Minister for Immigration and Citizenship v SZIAI [2009] HCA 39.

14. For the above reasons, the court is satisfied that the Tribunal did not fall into jurisdictional error in the manner in which it reached its decision, and thus the applicant must fail.  The application shall be dismissed, and the applicant shall pay the respondent’s costs, which are assessed in the sum of $4,400.00. 

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Raphael

Associate: 

Date:  23 April 2014