SZTWV v Minister for Immigration

[2014] FCCA 2307

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTWV & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2307

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – dismissal of show cause application on account of the non appearance of the applicants.

Legislation:

Federal Circuit Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.36, 91R

First Applicant: SZTWV

Second Applicant: SZTWW

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 362 of 2014

Judgment of: Judge Driver

Hearing date: 8 October 2014

Delivered at: Brisbane, via videolink to Sydney

Delivered on: 8 October 2014

REPRESENTATION

No appearance by or on behalf of the Applicants

Solicitors for the Respondents:

Mr L d'Avigdor

Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth).

2. The first applicant is 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).

3. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicants by ordinary pre-paid post at their nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 362 of 2014

SZTWV

First Applicant

SZTWW

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application filed on 18 February 2014 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal) made on 22 January 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants who are a mother and her infant child.  The mother is from China and had made claims of religious persecution.  The child claimed as a member of her family unit.  Background facts relating to this matter are set out in the Minister’s outline of their submissions filed on 1 October 2014. 

2. The first applicant is a citizen of the People's Republic of China. She arrived in Australia on 25 April 2007 on a valid student visa. The second applicant, her child, was born in Australia on 25 May 2013. References to the “applicant” are to the first applicant unless otherwise specified.

3. On 29 January 2013, the applicant applied for a protection visa, which was subsequently amended to include the second applicant as a dependant[1].

   [1] Court Book (CB) 1-30

4. On 29 August 2013, a delegate of the Minister refused the application[2].

   [2] CB 33-53

5. On 6 September 2013, the applicant applied to the Tribunal for review of the delegate's decision[3].

   [3] CB 54-74

6. On 13 January 2013, the applicant appeared before the Tribunal to give evidence and present arguments[4].

   [4] CB 81

7. On 22 January 2014, the Tribunal affirmed the delegate's decision[5].

   [5] CB 96-113

8. On 18 February 2014, the applicant applied for judicial review of the Tribunal's decision.

Applicant's claims

1. The applicant claimed to fear persecution on the basis of her membership of the Local Church. The substance of her claims are as follows[6]:

   [6] CB 27-28 and summarised by the Tribunal at CB 99-100 [10]

   a)the applicant's family are members of the Local Church. Her father is an elder and her mother is a clerk in the church. They have served the church for over ten years. Both of the applicant's parents have been punished by the government for their involvement in the Church;

   b)the applicant began attending church from the age of eight and was baptised at eleven;

   c)the applicant attended a nursing school in China.  She introduced some of the other students to her church.  During the summer holidays they joined the gospel praying group and attended spiritual camps.  The applicant and some of her housemates were arrested and interrogated by the police, but eventually released;

   d)the applicant's family's situation worsened after she arrived in Australia in 2007 to study:

   i)the church was sealed and her parents were taken for “brainwashing” during the 2008 Olympics and the 2010 World Expo; and

   ii)before Easter 2012, the applicant gave a friend a Local Church CD to take to her parents in China. The material was posted on the internet, and the applicant's parents were taken in by the police. Her father was detained until November 2012 and released only after payment of substantial bail. Her family remains under constant surveillance;

   e)the applicant could not locate a Local Church when she first arrived in Australia, and attended a different church for three months. Subsequently she contacted her Local Church group in China using “QQ” over the internet and participated in gatherings in this way.  However, in December 2012, the applicant found out about a Local Church in Sydney and began attending that Church.

2. The applicant raised a further claim for protection regarding her infant. The applicant claimed that her parents were angry with her for having had a child with her former boyfriend, and will not support her upon her return to China.  The applicant stated that the second applicant will not be registered in China as she cannot afford to pay the social compensation fee for having a child out of wedlock.

Tribunal's findings

1. The Tribunal identified the two issues in the case to be “the credibility of the applicant's claim to be a genuine member of the Local Church and the applicant's ability to obtain household registration for her son by paying the compensation fee for having a child out of wedlock.”[7].

   [7] CB 100 [12]

2. On the first issue, the Tribunal found the applicant's evidence regarding the Local Church “vague, generalised and contradictory in significant respects”[8]. The Tribunal made the following specific findings and comments:

   [8] CB 100 [13]

   a)when questioned by the Tribunal about the practices of the Local Church, the applicant did not demonstrate a genuine interest in, or depth of knowledge about her claimed religion[9];

   [9] CB 100-101 [14]-[21]

   b)the applicant was not able to substantiate her claim to have been a believer and practitioner in the Local Church in China since the age of eight.  The Tribunal found the “contrasting versions of the depth of her religious belief in China very difficult to reconcile and indicative of a lack of honesty on the part of the applicant”[10];

   c)the applicant's evidence regarding her parent's involvement in the Local Church was “vague and lacking in detail”[11];

   d)the applicant's evidence regarding her claimed arrest and brief detention in China was confused and inconsistent.  Aspects of her evidence were evasive, and indicative of the applicant's lack of actual religious practice and experience in China[12];

   e)the applicant's evidence regarding her baptism in China, and her wish to be rebaptised in Sydney, was confused and contradictory[13];

   f)the applicant's evidence regarding her involvement in Internet gatherings with the Local Church group in China was not persuasive because it was contradictory, generalised and brief[14];

   g)the Tribunal considered the applicant's evidence regarding her alleged difficulties in locating a Local Church in Sydney to be contrived[15];

   h)the applicant's evidence regarding her attendance at a Local Church in Sydney since December 2012 was lacking in sincerity. Despite having claimed to have attended a gathering on the night before the hearing, she was unable to provide a description of what happened there. She did not demonstrate any real knowledge or actual experience of participating in the gathering[16]. Furthermore, the documentary evidence, being a letter from "Responsible Brother" William Poh, stated that she attended that Church since January 2012, which contradicted her evidence that she attended since December 2012. The Tribunal accepted that the applicant had attended the Local Church in Sydney on at least one occasion. However, for the purposes of assessment against the Refugees Convention criteria for a protection visa, the Tribunal disregarded the evidence of her conduct in Australia pursuant to s.91R(3) of the Migration Act 1958 (Cth) (Migration Act). For the purposes of assessment against the complementary protection criteria, the Tribunal found that this attendance would not place the applicant at risk upon return to China;

   i)the Tribunal found the applicant's claimed fear of persecution in China to be undermined by her five year delay in applying for protection[17];

   j)the Tribunal was not satisfied that the applicant was a genuine member, follower or practitioner of the Local Church in China or Australia, or had any involvement or participation in the Local Church in China[18]; and

   k)the applicant's account of sending a religious CD to China, and the subsequent arrest of her parents, was contradictory and implausible. She claimed to have recorded a Local Church gathering in March 2012, yet by her own evidence only began attending in December 2012. The applicant then changed her evidence to state that the information she put on the CD was from the internet[19]. The Tribunal did not accept that the applicant sent a religious CD that resulted in the arrest of her parents[20].

   [10] CB 102 [26]

   [11] CB 102 [27]

   [12] CB102-103 [28]-[30]

   [13] CB [31]-[32]

   [14] CB 104 [35]-[37]

   [15] CB 104 [38]-[39]

   [16] CB 105 [43]

   [17] CB 106 [48]-[49]

   [18] CB 106-107 [50]-[53]

   [19] CB 107-108 [54]-[63]

   [20] CB 108 [63]

3. On the second issue, the Tribunal found that the applicant would be subject to a social compensation fee for having had a baby out of wedlock, which would be less than $A2,000, and payable in instalments over three years[21]. The Tribunal found that her evidence regarding her parents disapproval to be confused and contradictory[22]. The Tribunal was not satisfied that the applicant would not be able to get assistance from relatives, including her parents.  It found that the applicant would be able to pay the fee without any particular difficulty[23].

   [21] CB 110 [72]-[74]

   [22] CB [75]-[77]

   [23] CB [78]-[84]

4. The Tribunal, after considering the applicant's circumstances and claims, both individually and cumulatively, concluded that neither the applicant nor her child, were persons in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Migration Act or s.36(2)(aa) of the Migration Act.

The present application

1. These proceedings began with a show cause application filed on 18 February 2014.  The purported grounds in that application are reproduced verbatim at [18] of the Minister’s submissions:

   Orders sought by 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. (Ground One)

   2. RRT did not consider that I will be persecuted and in big trouble if I return home. (Ground Two)

   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 prejedous attitude to my application. RRT should grant my application. (Ground Three)

   The Grounds of the Application are:

   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. (Ground Four)

   2. I cannot go back to China since I am very scared to be sentenced. (Ground Five)

   3. My child will be facing challenge and social biases due 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. (Ground Six) "

2. The matter came before me for a first court date direction on 8 March 2014.  At that time, the applicant attended in person with the assistance of a Mandarin interpreter.  I gave the applicant the opportunity to file an amended application and additional evidence.  She has not taken up that opportunity.  I also listed the matter for a show cause hearing today.  I satisfied myself at that time that the applicant understood the orders that I made.

3. There was no appearance by or on behalf of the applicant when the matter was called today in Sydney.  The matter has been called twice and on each occasion, there was no answer to the call.  There is no explanation for the applicant’s non-attendance.  Exhibit R1 is a letter dated 1 October 2014 to the applicant from the Minister’s solicitors reminding her of today’s court fixture and warning her of the consequences of non-attendance.  In addition, before I came on the bench today, attempts were made by my staff as well as the Minister’s solicitor to contact the applicant on her mobile telephone number.  I understand three attempts were made.  All of them were unsuccessful. 

4. In the circumstances, I have decided that the application should be dismissed pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules). I so order.

5. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with Court scale. I will order that the first applicant is 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.

6. I will further direct that the Minister arrange to have the orders made today entered and that the Minister cause a sealed copy of those orders, together with a copy of rule 16.05 of the Federal Circuit Court Rules, be served on the applicant by ordinary prepaid post and her last known address for service.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  14 October 2014