SZTKT v Minister for Immigration

[2014] FCCA 2542

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTKT v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2542

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

Legislation:

Migration Act 1958 (Cth), s.36(2)(aa)

Applicant: SZTKT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2577 of 2013

Judgment of: Judge Manousaridis

Hearing date: 29 April 2014

Delivered at: Sydney

Delivered on: 7 November 2014

REPRESENTATION

Litigation guardian of applicant in person assisted by an interpreter.

Solicitors for the Respondents:

Ms F. Taah

Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The person appointed as litigation guardian of the applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2577 of 2013

SZTKT

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant is a minor. She is the daughter of nationals of the People’s Republic of China.

2. Through her mother (mother), the applicant applied for a protection visa. The mother claimed that if the applicant returned to China, she would suffer harm because of the operation of the Population and Family Planning Regulations for Fujian Province (Family Planning Law). The mother also claimed the applicant would suffer discrimination because she is a female, and because she was born out of wedlock.

3. A delegate of the first respondent (Minister) refused to grant the applicant a protection visa, and the second respondent (Tribunal) affirmed the delegate’s decision. In these proceedings, the applicant, through her mother, who has been appointed the applicant’s litigation guardian, seeks to set aside the Tribunal’s decision.

4. To understand and assess the grounds on which the applicant seeks to set aside the Tribunal’s decision, it will be necessary to describe the applicant’s claims before the Tribunal, and the Tribunal’s reasons for affirming the delegate’s decision.

Applicant’s claims before the Tribunal

1. According to a statement the mother submitted with the application for a protection visa,[1] the applicant was born in Australia out of wedlock; the applicant’s father’s parents and the mother’s parents disapproved of the mother’s de facto relationship with the father and, after hearing the mother was going to have a girl, they tried to force the mother to terminate the pregnancy; that led the mother to end her relationship with the father but, after the mother gave birth to the applicant, the father provided support; eventually, the mother and father resumed their de facto relationship; the father’s family, who are from a village on the outskirts of Fuqing city, are prejudiced against the father having a girl, rather than a son, because the family believe it is a necessity for the father to have a son; that would mean that if the applicant returns to China she will inevitably come into contact with the father’s family members, and she will be ignored, unwelcome, and ostracised.

   [1] CB27-36

2. The mother further said in her statement that, because the applicant was born out of wedlock, the Family Planning Law would require the payment of a social compensation fee before the applicant could be registered on the Hukou; the parents would be unable to pay the social compensation fee that the Population and Family Planning Committee of the Fuqing municipal government would impose, which is three to four times the amount prescribed by Article 39 of the Family Planning Law; as a consequence, the applicant will be characterised as a “black child”[2] and she will not have access to public services such as health care, government-subsidised education and childcare; the parents considered challenging the Fuqing municipal government policy of imposing a social compensation fee that is greater than that permitted by law, but they realised they would be severely persecuted if they attempted to do so.

   [2] CB31, [18]

3. In a written submission prepared after her written statement,[3] the mother informed the Tribunal that she had given birth to a son, that the father’s family now recognised the “matrimonial relationship” between the mother and the father, and the family said they would “try their best to provide” the mother and her children with some support and assistance should she return to China.[4] The written submission included further submissions on the amount of the social compensation fee the mother and father would be required to pay for their two children. It also included information about forced sterilisation in China.

   [3] CB98-106

   [4] CB98

4. Before the Tribunal, the mother repeated the claims she made in writing. She said that the amount of the social compensation fee that would be payable for the applicant and her brother would be in excess of $25,000. Although the parents may be able to pay the fee, they would not be able to do so for one or two years. The applicant’s migration agent submitted the mother would undergo forced contraception, and possibly sterilisation, in China, and this would adversely impact on the applicant.

5. The Tribunal asked the mother questions about her financial situation. The mother said she and her husband had little money; after the son was born, her husband’s father died, and her family’s business was no longer successful because her family had problems with the authorities; the mother said she was supporting her children by relying on Red Cross payments; she rented premises, but sub-let part of the premises; the mother said she has been overseas several times after she arrived in Australia, but could not remember how many times.

Tribunal’s reasons

1. The Tribunal found that the registration in China of a child born out of wedlock is a straightforward procedure involving the payment of a fee and that, once registered, the applicant will have access to the same rights and privileges as other children in China.[5] The Tribunal found, however, that the mother “contrived the claims relating to the family’s financial hardship and their lack of financial resources”.[6] It also found that both parents come from families with financial resources, and that they lived and had access to work in Australia for many years. The Tribunal based this finding on the parents’ ability to live in Sydney, pay rent of $550 per week, travel overseas, and “afford legal options to pursue their desire to remain in Australia”.[7] The Tribunal found the parents have the financial resources to pay the social compensation fee for the applicant, and that they will pay the fee and arrange to have the applicant registered. The Tribunal found that the mother’s claimed fear of persecution if her family were to protest the level of the social compensation fee was contrived. The Tribunal was not satisfied the mother’s family intended to protest the fee or that, if they were to protest the fee, government officials would seek to harm the applicant.

   [5] CB140, [39]

   [6] CB140, [40]

   [7] CB140, [40]

2. The Tribunal was not satisfied that women in China are subjected to serious or life-threatening harm when required to use contraception according to the family planning requirements of the government, or that the mother genuinely believed she faces such harm. The Tribunal found the mother fabricated her claim to fear such harm.

3. The Tribunal, accordingly concluded it was not satisfied the applicant had any well-founded fear of persecution in China. Based on the credibility and other findings the Tribunal made, the Tribunal was also not satisfied that the applicant met the complementary protection criterion specified in s.36(2)(aa) of the Migration Act 1958 (Cth).

Grounds of application

1. The application states four grounds of review.

Ground 1

1. The first ground is that the “Tribunal failed to take into account my financial situation”.

2. There is no merit in this ground. As I have briefly summarised above, the Tribunal did consider the parents’ financial situation. It was on the basis of that consideration that the Tribunal concluded the parents were in a financial position to pay the social compensation fee for the applicant.

3. At the hearing before me, the mother, who was not legally represented, made detailed submissions challenging the Tribunal’s conclusions about the parents’ financial situation. These submissions, however, only manifested disagreement with the Tribunal’s conclusions. They do not show the Tribunal made any jurisdictional error. The Tribunal’s conclusion that the parents had the financial capacity to pay the social compensation fee is one that was reasonably open to the Tribunal for the reasons it gave.

Ground 2

1. The second ground is:

   The delegate of the [M]inister (the First Respondent) failed to make proper facts [sic] findings and relied on incorrect evidence from the Department of Foreign affairs [sic] and Trade.

2. This ground also discloses no jurisdictional error. The ground does not identify the facts the applicant says the Tribunal ought to have found, or the reasons why it ought to have found those facts; nor does the ground identify the evidence it is claimed was incorrect and on which the Tribunal relied.

3. Based on the submissions the mother made to me in relation to ground 2, the complaint appears to be that the Tribunal relied only on officially published information. The mother submitted the Tribunal should have made enquiries of various authorities in China, namely, the “office of family planning, the local PSV station, [and] the office in charge of family household registration”.[8] The applicant said that she had been “in contact with these organisation but they can’t give me any definite answer”.[9] The applicant also said that these organisations said that the applicant had “to be here to see us in person”.[10]

   [8] T7.25

   [9] T7.25

   [10] T7.35

4. The Tribunal was not obliged to make any inquiry of any agency in China. It was for the applicant to produce evidence and arguments to the Tribunal in support of her claims for protection. In any event, there is nothing to suggest that any of the organisations mentioned by the applicant would have provided any information to the Tribunal.

Ground 3

1. The third ground is:

   Both of the First and Second respondent [sic] made a wrong judgment on the credibility of some of my daughter’s claims.

2. The only submission the mother made to me in relation to this ground is that the Tribunal “did not specifically ask what kind of things might happen to myself and my children”, but rather “just relied on the officially published information”.[11]

   [11] T8.5

3. Neither the third ground, nor the submissions made by the mother, discloses any jurisdictional error. The ground only expresses disagreement with the Tribunal’s conclusions about the mother’s credibility; and the submission repeats the submission that the Tribunal was obliged to examine material other than official material.

Ground 4

1. Ground 4 is:

   The Tribunal failed to give any weight on crucial evidence pertaining to the forcible sterilization and abortion in China.

2. This does not disclose any jurisdictional error. The ground assumes the Tribunal was obliged to give weight to material the mother submitted to the Tribunal about forcible sterilisation. That assumption is incorrect. What weight, if any, the Tribunal ought to have given to material the applicant provided in relation to forced sterilisation was a matter for the Tribunal. In my opinion, it was reasonably open to the Tribunal not to be satisfied, on the basis of the material the mother provided, that women in China are subjected to serious or life-threatening harm when required to use contraception according to the family planning requirements of the government, or that the mother genuinely believed she faces such harm.

3. Before me, the mother submitted she informed the Tribunal of examples of forced sterilisation. The mother said to me that her own mother was forced to undergo sterilisation. The mother, however, confirmed to me that she did not inform the Tribunal of that matter, and that she did not do so because “they didn’t ask”.[12]

   [12] T8.35

4. The Tribunal, in its reasons, referred to the mother’s having provided country information relating to China’s one child policy and forced sterilisation. That material included reports of abortions and sterilisation. I am satisfied the Tribunal considered that material. And the Tribunal cannot be criticised for failing to consider information – such as the asserted forced sterilisation of the mother’s mother – that was not presented to it.

Conclusions, and disposition

1. The applicant has not established any of her grounds of review. I propose, therefore, to dismiss the application, and order that the mother, as litigation guardian, pay the Minister’s costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  7 November 2014