SZTVB v Minister for Immigration
[2015] FCCA 267
•10 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTVB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 267 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – interlocutory dismissal of show cause application – no arguable case of jurisdictional error. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R |
| Khan v Minister for Immigration (1987) 14 ALD 291 Kopalapillai v Minister for Immigration (1998) 86 FCR 547 Minister for Immigration v SZMDS (2010) 240 CLR 611 NAHI v Minister for Immigration [2004] FCAFC 10 Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 Minister for Immigration v Li (2013) 297 ALR 225 Re RRT; ex parte H (2001) 1790 ALR 425 SCAA v Minister for Immigration [2002] FCA 668 SZHVL v Minister for Immigration [2008] FCA 356 SZSKR v Minister for Immigration & Anor [2014] FCCA 2 SZSRV v Minister for Immigration [2014] FCA 220 |
| First Applicant: | SZTVB |
| Second Applicant: | SZTVC |
| Third Applicant: | SZTVD |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 215 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 10 February 2015 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2015 |
REPRESENTATION
The First and Third Applicants appeared in person
| Solicitors for the Respondents: | Ms R Krishnan of Australian Government Solicitor |
INTERLOCUTORY ORDERS
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).
The first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,416.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 215 of 2014
| SZTVB |
First Applicant
SZTVC
Second Applicant
SZTVD
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
On 30 January 2014, the applicants sought judicial review of a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 7 January 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There were three applicants before the Tribunal. The first applicant is the applicant mother; the second applicant is her partner; the third applicant is their infant daughter. The three applicants are also applicants before the Court. I appointed the first applicant the litigation guardian for the third applicant. Since I gave directions in this matter on 18 March 2014, a second child has been born. I granted an adjournment of this hearing because of the impending birth of the child. The second child, a boy, was not a party to the Tribunal proceedings and is not a party to these proceedings. The references in this judgment to the applicant are intended to be references to the first applicant.
The applicants continue to rely upon their original judicial review application. I received as a submission a short affidavit filed with that application.
I received as evidence the book of relevant documents filed by the Minister on 20 March 2014.
Background facts relating to the applicants’ protection visa claims and the decision of the Tribunal on them are set out in the Minister’s outline of submissions filed on 30 January 2015.
The first named applicant is the primary applicant (the applicant). The second named applicant is her de facto spouse. The third named applicant is their child, who was born in Australia on 10 February 2013[1]. The second and third named applicants are included as members of the family unit of the applicant and have not made any separate, individual claims. The applicants are all citizens of the People’s Republic of China (China).
[1] Court Book (CB) 1,49
The applicant arrived in Australia in May 2008 as the holder of a student visa[2]. That visa ceased in 2011. However, the applicant remained in Australia and did not lodge an application for a protection visa until 2 October 2012[3].
[2] CB 102-103
[3] CB 1-38
The applicant’s written statement set out the following claims[4]. The applicant is an adherent of the Local Church. She grew up with her aunt and uncle, who are Christian. When she was in her first year of junior high school, she was baptised in the Local Church. In 2005, her uncle came to the adverse attention of authorities for smuggling bibles into China. In 2006, her aunt and uncle were arrested at a Christmas gathering in their house. The applicant was suspended from school for three days. Since arriving in Australia, the applicant has come to the adverse attention of the Chinese authorities for sending a video containing religious material to her Local Church in China. In 2012, her uncle was arrested while on a missionary trip to north-eastern China, and his home was raided. Her aunt has since warned her not to return to China. The applicant is scared.
[4] CB 37-38
The applicant also claimed that she and her partner would be fined for having a child outside wedlock, but that they could not afford to pay fine. As a result, they would be unable to register the child, and the child would be discriminated against and harmed.
A delegate of the Minister refused to grant the applicants protection visas on 31 July 2013[5]. On 27 August 2013, the applicants applied to the Tribunal for review of the delegate’s decision[6]. The applicants appeared before the Tribunal on 20 December 2012[7].
[5] CB 53-84
[6] CB 85-90
[7] CB 97-99
Before the Tribunal
The Tribunal affirmed the decision of the delegate on 7 January 2014[8].
[8] CB 123-138
The Tribunal noted that the applicant’s oral evidence lacked internal consistency and that the applicant altered her evidence when asked to comment on inconsistencies between the claims articulated in her written application and before the Tribunal[9]. It found that the applicant was not a credible witness and that she had fabricated her claims in the hope of achieving a favourable immigration outcome[10]. Accordingly, it did not accept that the applicant or her family members had ever been involved in the Local Church in China. Nor did it accept that, once in Australia, the applicant had sent religious material to China[11].
[9] CB 129 [27]
[10] CB131 [35]-[36]
[11] CB131 [36]-[37]
In reaching these findings, the Tribunal considered that the applicant had no plausible explanation as to why it took her four years to discover the Local Church in Sydney and that it was improbable she would have sent religious material to her uncle at a time when she was not attending a Local Church[12]. The Tribunal considered the applicant’s account of a subsequent raid upon her uncle’s home “…to be vague, improbable and lacking in credibility”[13]. The Tribunal also took into account that the applicant did not apply for protection until four years after she had arrived in Australia and found that her knowledge of Christianity “…could have been acquired through church attendance in Australia”[14].
[12] CB 130 [31]
[13] CB 130 [32]
[14] CB 130-131 [33]-[34]
The Tribunal accepted the applicant had been attending the Local Church in Sydney since September 2012, and that she had been baptised in Australia. However, the Tribunal considered her delay in attending Local Church services to be significant and expressed concern with the applicant’s decision not to marry and to have a child “out of wedlock”, a decision seemingly at odds with the applicant’s claimed religious beliefs[15]. The Tribunal’s concerns were not resolved by documentation from the Local Church or photographs of the applicant participating in various church activities which were provided following the hearing[16].
[15] CB 132 [42]
[16] CB 132 [41]
The Tribunal had regard to the applicant’s claims that she was a member of the Local Church in Australia. However, it was not satisfied that her attendance in Australia was “…otherwise than for the purpose of strengthening her claim to be a refugee…”. The Tribunal therefore disregarded her conduct in attending church in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act)[17].
[17] CB 131-133 [38]-[43]
Having regard to the above findings, the Tribunal concluded that there was no real risk the applicant would suffer significant harm pursuant to s.36(2)(aa) of the Migration Act. While accepting the applicant attended the Local Church and been baptised in Australia, the Tribunal found there was no evidence the applicant would face significant harm for this reason[18].
[18] CB 133 [45]-[46]
With regard to the breaches of family planning laws, the Tribunal accepted the applicant’s daughter was born in breach of the Population and Family Planning Regulation of Fujian Province and that the applicant would have to pay a financial penalty. Having regard to the applicant’s evidence and relevant country information, the Tribunal found the applicant would be able to work sufficiently to be able to pay the fine by instalments and that, once the fine had been paid, the child would not suffer discrimination as a result of being a “black child” or because she was born in breach of the relevant regulations[19]. To the extent the applicant or her child might suffer some social stigma as a result of the applicant being an unmarried mother, the Tribunal was not satisfied that would rise to the level of serious or significant harm for the purpose of s.36(2)(a) or s.36(2)(aa) respectively[20].
[19] CB137 [60]-[62]
[20] CB 137-138 [64]
The judicial review application has a document attached to it which sets out the grounds of the application in template form. The material contentions contained in that document are reproduced in the Minister’s submissions at [18]:
The applicants raise a number of different contentions under the headings of ‘Orders sought’ and ‘Grounds of the Application’. These contentions may be summarised as follows:
1. The Tribunal’s decision was unfair and unreasonable because it failed to consider the applicant’s claims or the evidence provided in support of those claims as a whole.
2. The Tribunal’s finding as to credibility was unreasonable or was made in the absence of evidence.
3.The applicant has been actively involved in church activities in Australia.
4.The Tribunal’s decision could give rise to an apprehension of bias in the mind of a reasonable observer.
The applicant made short oral submissions in which she took issue with the Tribunal’s findings concerning her religious faith and the attitude of her and her partner’s parents. Those are simply factual issues which do not rise above a dispute over the merits of the Tribunal decision.
The Minister’s submissions deal with the grounds advanced in the application. I agree with those submissions.
Grounds 1 and 2
The applicant contends that the Tribunal failed to properly consider:
a)her commitment to Christianity,
b)her practise of her faith, and
c)her claimed fear of persecution based on China’s family planning laws.
More generally, the applicant contends that the Tribunal failed to consider her evidence in support of the claims made. Alternatively, it is said that the Tribunal was unreasonable because it doubted the truth of the applicant’s claims in the absence of evidence.
To establish that the Tribunal’s findings were unreasonable, the applicants must show that the approach adopted by the Tribunal was lacking in any “evident and intelligible justification” or was “arbitrary, capricious or clearly unjust[21]. The applicants have not discharged this onus.
[21] SZSKR v Minister for Immigration & Anor [2014] FCCA 2 at [34] citing Minister for Immigration v Li (2013) 297 ALR 225 at [76] and Minister for Immigration v SZMDS (2010) 240 CLR 611 at [128]-[130]
The Tribunal considered the applicant’s claims and evidence concerning her involvement with the Local Church, but, for the reasons given, did not accept those claims as credible[22]. Findings as to credit are findings of fact par excellence[23]. So long as the Tribunal's credibility findings were open to it, they do not disclose any error[24]. Having regard to the matters set out by the Tribunal at [27]-[34] of its reasons, the Tribunal's credibility findings were open to it.
[22] CB 128-133 [24]-[46]
[23] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407
[24] Kopalapillai v Minister for Immigration (1998) 86 FCR 547 at 558-559
The Tribunal also considered the consequence to the applicant and her child arising from the breach of the relevant family planning regulations in China[25]. The Tribunal reached its findings based on its consideration of the applicant’s evidence and on the basis of relevant country information. It is well settled that the country information to which the Tribunal has regard and the weight it gives that information is a matter for it[26]. The Tribunal’s findings in relation to this issue do not disclose error.
[25] CB 133-137 [47]-[62]
[26] NAHI v Minister for Immigration [2004] FCAFC 10
While the applicant might disagree with the findings made, there is no evidence that the Tribunal failed to comply with the procedural fairness requirements under Division 4 of Part 7 of the Migration Act. It is clear from its reasons that the Tribunal explored the applicant’s claims during the hearing and put to the applicant issues of concern.
In the absence of a conclusion that the Tribunal did not, in fact, give “proper, genuine and realistic consideration” to the claims put by the applicant[27], these grounds appear to invite the Court to engage in impermissible review of the merits of the Tribunal decision[28].
[27] cf Khan v Minister for Immigration (1987) 14 ALD 291 and 292 per Gummow J
[28] SZSRV v Minister for Immigration [2014] FCA 220 at [9]
Grounds 1 and 2 do not disclose an arguable case for the relief claimed.
Ground 3
Ground 3 is simply an assertion of fact. It does not disclose a proper ground of judicial review and does not disclose an arguable case for the relief claimed.
Ground 4
This ground is not supported by any particulars or evidence. There is no transcript filed in these proceedings and it is a rare and exceptional case where bias may be established solely on the basis of the Tribunal’s decision[29]. The mere fact of an adverse decision or findings against an applicant does not, of itself, give rise to an inference of bias or suggest the decision maker approached its task other than with a mind open to persuasion[30]. There is nothing in the Tribunal’s decision to suggest that it approached its task other than with an open and impartial mind[31]. This ground does not disclose an arguable case for the relief claimed.
[29] SZHVL v Minister for Immigration [2008] FCA 356 at [17]
[30] SCAA v Minister for Immigration [2002] FCA 668 at [37]-[38]
[31] Re RRT; ex parte H (2001) 1790 ALR 425 at [27]-[32]
Conclusion and additional observations
The applicants have failed to establish any arguable case of jurisdictional error by the Tribunal. It follows that the application should be dismissed and I will so order. However, I want to add some additional comments.
At the time of the Tribunal decision, the first and second applicants had a single child. A second child born this year was not a party to the protection visa application. It would be open to him to make his own application for protection now. The process of considering that application would take some time. The Minister enjoys the power to substitute a more favourable decision for that of the Tribunal. The Minister, on exercise of that power is not subject to the jurisdiction of the Court. There are some factors that might bear upon the Minister’s consideration should he be willing to give it.
The first is the obvious factor of the birth of a second child. That will have an impact on the social compensation fee payable in China. The second is that the Tribunal concedes at [54] of its reasons[32] that it did not have up-to-date information of an official nature on the social compensation fee payable in Fujian Province. The third factor is that the applicant produced at today’s hearing a document in the Chinese language which she says sets out official figures for Fuqing City in Fujian Province for the five years 2010 to 2014.
[32] CB 135
These are factors which, in my view, might merit consideration of the case by the Minister.
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 $3,416 in accordance with rule 44.15(1) and item 2 of Division 1 of Part 3 to the Federal Circuit Court Rules 2001 (Cth).
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 13 February 2015
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