SZTPQ v Minister for Immigration

[2014] FCCA 2893

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTPQ & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2893

Catchwords:
MIGRATION – Application for review of Refugee Review Tribunal decision – whether Refugee Review Tribunal considered applicant’s claims – no jurisdiction error – application dismissed.

First Applicant: SZTPQ

Second Applicant: SZTPR

Third Applicant: SZTPS

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3022 of 2013

Judgment of: Judge Manousaridis

Hearing date: 1 July 2014

Delivered at: Sydney

Delivered on: 12 December 2014

REPRESENTATION

Applicants in person assisted by an interpreter.

Solicitors for the Respondents: Mr R. Baird of
Clayton Utz Lawyers

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3022 of 2013

SZTPQ

First Applicant

SZTPR

Second Applicant

SZTPS

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants apply for an order to quash the decision of the second respondent (Tribunal) affirming the decision of a delegate of the first respondent (Minister) not to grant the applicants a protection visa.

Claims for protection

1. The first and second applicants are citizens of the Peoples’ Republic of China. The first applicant arrived in Australia in early 2009 and the second applicant arrived in early 2008. They each did so holding a student visa. In December 2010 the first applicant gave birth to the third applicant. The second applicant is the father of the third applicant.

2. In July 2012, the first applicant (applicant) applied for a protection visa. The applicant claimed she had a well-founded fear of persecution because of her Christian faith, and because of the application to her of the family planning regulations of China. The second and third applicants also applied for a protection visa, not because they claimed fear of persecution, but because they are members of the family of which the applicant is a member.

3. The asserted facts on which the applicant relied for a protection visa are as follows. The applicant and her sister and brother lived with their grandmother in a village in China.[1] The applicant joined the Local Church and was baptised when she was 8 years old.[2] In Easter 2006, “the Security Team” arrested the applicant’s grandmother because the applicant’s grandmother participated in the local church congregation.[3] The applicant and a few other students were detained but were bailed out by their school.[4] That led to the applicant being discriminated against at school.[5] The only person who showed sympathy towards her was her political teacher who persuaded the applicant to study overseas.[6]

   [1] CB46, [2]

   [2] CB46, [2]

   [3] CB46, [3]

   [4] CB46, [3]

   [5] CB46, [3]

   [6] CB46, [3]

4. The applicant arrived in Australia in 2009.[7] On her arrival, the applicant searched for local churches, but persons she asked seemed not to know anything about local churches, and was told by someone that “local church was a cult”.[8] The applicant, however, kept in touch with her home church in China by participating in an “online Gospel Class”.[9] After a visit to Australia by a “church sister”, the applicant promised to send to her home church a “video about the gospel by Bother [sic] Changshou Li”.[10]

   [7] CB46, [4]

   [8] CB46-47, [4]

   [9] CB47, [5]

   [10] CB47, [6]

5. In 2010, in response to constant extortion by the government, the applicant’s home church appealed to the government for protection. That generated fierce online discussion which resulted in the government and the Department of Public Security investigating the applicant’s home church, and abolishing the online gospel forum.[11]

   [11] CB47, [7]

6. Just before Easter 2012, a foreign journalist went to the applicant’s hometown and interviewed the applicant’s grandmother and a solicitor. The solicitor handed a petition letter to the journalist, which was discovered by the government.[12] A local government officer requested the applicant’s grandmother withdraw the petition, but that was refused.[13] The grandmother was detained for one week, together with a few other key members. “They” also discovered materials the applicant had sent to China, and the applicant was accused of spreading cult information from overseas.[14]

   [12] CB47, [8]

   [13] CB47, [9]

   [14] CB47, [9]

7. The applicant claimed there was no future for her and her family if they return to China. She claimed she and her son would be penalised and discriminated against for breaching “the Birth Control Policy”.[15]

   [15] CB48, [11]

Tribunal’s reasons

1. The Tribunal found the applicant “is not a witness of truth”, and did not accept the applicant or her family members have any profile with the Chinese authorities other than that of ordinary citizens.[16] The Tribunal relied on a number of matters for these conclusions:

   [16] CB141, [22]

   a)The applicant gave inconsistent evidence about the impact of the applicant’s grandmother’s arrest on the applicant’s religious practice.[17]

   b)The applicant’s evidence about her claimed involvement in an online website about the local church was vague and improbable.[18]

   c)The applicant’s testimony about the fate of the online website was vague and lacked the same detail as her written claims.[19]

   d)The applicant’s oral testimony about her communications with church members in China was extremely vague and lacked relevant and persuasive details.[20]

   e)The applicant’s claims concerning her grandmother’s arrest and detention were improbable, vague “and not otherwise credible by relevant detail or corroborating documentation”.[21]

   f)The applicant’s knowledge of the local church was superficial and could have been acquired in Australia.[22]

   g)The Tribunal did not find the applicant’s evidence about her involvement in the local church in China to be convincing.[23]

   h)The applicant’s evidence about her Christian faith was shallow and limited to generalities.[24]

   i)The applicant began to attend a local church in Australia in 2012, even though the applicant had arrived in Australia in 2009.[25]

   [17] CB141, [23]

   [18] CB141-142, [24]

   [19] CB142, [25]

   [20] CB142, [26]

   [21] CB142, [27]

   [22] CB143, [28]

   [23] CB143, [29]

   [24] CB144, [30]

   [25] CB145, [34]

2. The Tribunal accepted the applicant and the second applicant had been attending the local church in Sydney, and that the applicant was baptised in Australia.[26] The Tribunal, however, was not satisfied the applicant attended the local church in Australia, and was baptised in the local church in Australia, otherwise than for the purpose of strengthening her claim to be a refugee.[27] The Tribunal did not accept the applicant is a genuine Christian, and found that the applicant’s church attendance in Australia “has been motivated solely by the desire to secure an immigration outcome”.[28]

   [26] CB145, [36]

   [27] CB145, [36]

   [28] CB145, [37]

3. In relation to the applicant’s claim based on the application to her of China’s family planning laws, the Tribunal found as follows. There are family planning laws in China that impose sanctions if they are breached. The standard penalty is often referred to as a “social compensation fee”,[29] but the enforcement of the sanctions varies throughout China.[30] The third applicant was born out of wedlock in breach of article 14(1) of the Population and Family Planning Regulation of Fujian Province.[31] The only penalty the applicants will face is the payment of a social compensation fee of between 4008 and 6680 yuan .[32] Authorities in China have the power to impose fines and accept payment of the social compensation fees by instalments if warranted by the circumstances, and the child born out of wedlock would be permitted to register before the fee is paid in full.[33]

   [29] CB146, [42]

   [30] CB146-147, [42]

   [31] CB147, [43]

   [32] CB148, [46]

   [33] CB148, [47]

4. The Tribunal found the applicants would have the capacity to pay any social compensation fee that may be imposed. The Tribunal relied on the first and second applicant’s having demonstrated a capacity to support themselves;[34] on the Tribunal’s not accepting the applicant’s claim that she is estranged from her family;[35] on the Tribunal’s not being satisfied that the applicant’s parents do not have the ability to financially support the applicant;[36] and on its finding that the applicant’s family would “do whatever is necessary to assist the applicant to register her son”.[37]

   [34] CB148-149

   [35] CB149, [51]

   [36] CB148, [52]

   [37] CB148, [52]

5. The Tribunal accepted that on her return to China, the applicant will be identifiable as an unmarried mother who had a child out of marriage, and there was country information that suggested discrimination against single mothers and children born out of wedlock.[38] The Tribunal was not satisfied, however, that the discrimination suggested by the country information would rise to the level of serious harm or significant harm.[39]

   [38] CB150-151, [56]

   [39] CB150-151, [56]

Grounds of review

1. In a document attached to the application filed with the Court, the applicant sets out the grounds on which she seeks to quash the Tribunal’s decision.

2. The first ground is as follows:

   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.

3. At the hearing before me the applicant, who is not legally represented, made no submission in relation to this ground other than to state that she hoped “they have seriously considered the consequence of my and my children’s return to China”.[40]

   [40] T5.5

4. Whether or not the Tribunal’s decision was fair or reasonable does not state any recognised ground of jurisdictional error. The claim that the Tribunal failed to consider all or a part of the applicant’s claim, if established, would disclose jurisdictional error. I do not accept, however, the Tribunal failed to consider the applicant’s commitment to religion, or that it ignored the applicant’s background and actual religious practice.

5. As my summary of the Tribunal’s reasons indicates, the Tribunal did consider the applicant’s claims. The Tribunal identified the applicant’s claims in its reasons and questioned the applicant about her claims. Unfortunately, the Tribunal, after having considered the applicant’s claims, did not accept them. It was reasonably open to the Tribunal not to accept the applicant’s claims for the reasons the Tribunal has given for not accepting those claims.

6. The second ground is:

   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.

7. At the hearing, the applicant made the following submission in support of the second ground:[41]

   From the very beginning, the member in RRT didn’t believe in me. I can tell that just from the look on her face. She asked me to provide further evidence, which I did, but still she didn’t believe me.

   [41] T5.20

8. The second ground largely overlaps with the first ground. It claims the Tribunal placed emphasis on the applicant’s level of knowledge of the Christian faith rather than on the applicant’s actual religious practice. I do not accept this claim.

9. The Tribunal considered, and considered in detail, the applicant’s claims about her religious practice both in China and in Australia. The Tribunal did not accept the applicant’s evidence and it was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons the Tribunal gave.

10. The oral submission the applicant made at the hearing amounts to a complaint that the Tribunal had closed its mind to whatever the applicant said. In other words, it is an allegation of actual bias. What the applicant said in submissions is, obviously, not evidence. Even if the applicant made such submissions under oath, it would not be capable of proving actual bias by the Tribunal. Further, if I take the applicant’s submission to be a claim that the Tribunal conducted itself in a manner that would give rise to a reasonable apprehension of bias, there is no evidence from which it could reasonably be inferred that the Tribunal did conduct itself in that manner.

11. The third ground is:

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

12. At the hearing, the applicant made the following submission in relation to this ground:[42]

    I was just a student and a child when I first came to Australia, and I was traumatised from the harm and the discrimination that I suffered back in China, and they just don’t understand how traumatising that could be, and I don’t want my – my son to experience the same harm and persecution that I experienced in China.

    [42] T5.35

13. The third ground, as stated in the application, cannot be made out. The Tribunal did consider the applicant’s claims. It is true the Tribunal did not consider the risks to the third applicant. The occasion for the Tribunal to do so, however, did not arise because the Tribunal found the applicant had no fear of persecution if she were to return to China. In other words, the third applicant would not suffer the persecution the applicant claimed she would suffer because the Tribunal found the applicant did not have a well-founded fear of persecution if she returned to China. In any event, the third applicant made no independent claim for protection.

14. The fourth ground is:

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

15. At the hearing, the applicant made the following submission in relation to this ground:[43]

    I said that, from the very beginning, the member of RRT didn’t believe any word I say. No matter what I say, she’s – she was always wearing a look that she didn’t – that she doesn’t trust me. So it doesn’t matter what I said.

    [43] T6.5

16. The fourth ground cannot be made out. The Tribunal identified the applicant’s claims, questioned the applicant about her claims, and then dealt with the applicant’s claims. The oral submission the applicant made in support of the fourth ground is in substance the same as the oral submission she made in relation to the second ground. For the reason I have already given for not accepting that submission, I also do not accept the submission the applicant made in relation to the fourth ground.

17. The fifth ground is:

    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.

18. At the hearing, the applicant submitted that if the applicants returned to China, they would have to pay a large fine. The applicant further submitted that the applicants do not have savings out of which to pay the fines, and that her parents will not help her.

19. The Court does not have jurisdiction to set aside a decision of the Tribunal on the ground that it is unfair. Although the Court does have jurisdiction to set aside a decision of the Tribunal that has been arrived at as a result of the unreasonable exercise of a discretionary power, the Tribunal’s decision in this case was one that was reasonably open to it to make on the material that was before it.

20. The Tribunal did recognise the applicants would be liable to pay a social compensation fee. It found that that did not amount to persecution. It was reasonably open to the Tribunal to so find. The submissions the applicant made before me were submissions that invited the Court to arrive at a conclusion on the merits that is different to the decision the Tribunal made. The Court does not have jurisdiction to decide the merits of an applicant’s claim for protection.

21. The fifth ground, therefore, also fails.

22. In the attachment to the application for review, under the heading “The Grounds of the Application are”, the following matters are stated:

    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 actives [sic] in Australia. My action and religious performance has been evidenced by church elder with reference.

    3.RRT unreasonable suspect of the truthfulness of my claims just because of the absence of the evidence.

    4.Tribunal’s over objective in judging the explanation and the response of the applicant at the hearing.

23. The applicant made no submissions in support of these grounds at the hearing before me.

24. The first and second of these grounds are contentions that go to the merits of the applicant’s claim for protection. The Court does not have any jurisdiction to determine such matters. The third of the four grounds cannot be made out because, in my opinion, it was reasonably open to the Tribunal not to accept the applicant’s evidence for the reasons on which the Tribunal relied.

25. It is difficult to understand what the applicant intends to mean by the fourth of these grounds. I read it as complaining the Tribunal applied too strict a standard of persuasion in judging the applicant’s evidence. If that is the intended ground, it cannot be made out. As I have already concluded, it was reasonably open to the Tribunal to arrive at the conclusions it did on the basis of the material that was before it.

Conclusion and disposition

1. The applicant has not succeeded on any of her grounds. I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  12 December 2014