SZTXH v Minister for Immigration

[2015] FCCA 2508

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTXH & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2508

Catchwords:
MIGRATION –  Application for judicial review of Refugee Review Tribunal (Tribunal) – whether grounds of application go beyond challenging the merits of the Tribunal’s decision – whether there was a claim before the Tribunal which the Tribunal failed to address – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth),ss.36(2)(a), 36(2)(aa)

First Applicant: SZTXH

Second Applicant: SZTXI

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 406 of 2014

Judgment of: Judge Manousaridis

Hearing dates: 21 October 2014, 14 September 2015

Delivered at: Sydney

Delivered on: 17 September 2015

REPRESENTATION

The first applicant appeared by telephone assisted by an interpreter

Solicitors for the Respondents: Ms N Blake of Clayton Utz

ORDERS

1. The application is dismissed.

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

3. The Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 406 of 2014

SZTXH

First Applicant

SZTXI

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicants are citizens of the People’s Republic of China (China). They seek judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).

2. The first applicant (applicant) is the only applicant who made claims for protection. The second applicant, who is the applicant’s de facto partner, applied as a member of the family unit.    

Claims for protection

1. In a statement that formed part of the applicant’s application for a Protection visa,[1] the applicant claimed to fear harm due to her political convictions, status as an unmarried mother, and difficulties faced due to the disability of the second applicant.  According to that statement, the applicant’s parents leased land on which they conducted a fishery and piggery business. In April 2006 the local village leader demanded shares in the applicant’s family business. Her parents refused, and in response the leader ordered that the piggery be demolished. That occurred in May 2006. The applicant’s father “tried to resist” and was “beaten very badly”.

   [1] CB37-38

2. In October 2006 the applicant’s parents were again targeted by the leader, who ordered a “staged” car accident. The applicant’s parents recognised the driver as someone who was involved in the demolition of the piggery. As a result of the accident the applicant’s mother suffered a concussion and broken leg, and her father was badly bruised. The actions of the leader caused her parents to worry about the applicant’s safety and they arranged for her to leave and study in Australia.

3. After she left China, the applicant’s parents informed her they “were persecuted harder”. In December 2008 the applicant’s mother was assaulted by the nephew of the leader and was hospitalised. In February 2009 the leader ordered the fishery be closed. When the applicant’s parents resisted they were reported to the local government, who decided that they needed to be “punished”. Police were then sent to evict them and demolish the fishery. The applicant’s father tried to appeal the leader’s decision to the government. While awaiting a response the leader “used his power to torture and persecute” the applicant’s father. Subsequently the applicant’s parents lost hope that their appeal would be successful and, fearing for their safety, they decided to give up the fishery in February 2011 without compensation. The applicant’s parents now live in poverty, “misery and fear” following the destruction of their business by the leader. They are in debt and homeless despite their attempts to appeal the leader’s decisions to the government.

4. The applicant was pregnant when she applied for a Protection visa. The applicant claimed to fear persecution if she were to return to China because her child would be born out of wedlock. The applicant also claimed she feared that she would be forced to undergo an abortion, would be fined, and the child would be unable to be registered. The applicant provided to the Tribunal documents confirming she was pregnant with her second child.[2] The applicant also provided a letter from her psychologist, who confirmed the applicant’s pregnancy and stated she was suffering “severe depression and anxiety symptoms due to the constant worrying of her residency application”.[3]

   [2] CB111-112

   [3] CB112

5. The applicant also claimed she and her children would be harmed and unable to sustain themselves if they returned to China due to the second applicant’s physical disability. The applicant submitted a photograph of the second applicant’s hands and a medical certificate which stated he is prevented from performing heavy duties or lifting.[4] A certificate in Chinese was also submitted, which the applicant asserted recorded his disability and exempted the second applicant from military service.[5]

   [4] CB130

   [5] CB129

Tribunal’s reasons

1. While the Tribunal accepted that the applicant’s parents had built and operated a fishery and piggery on land leased from the local government, it was not satisfied “as to the truth of the Applicant’s claims concerning harm suffered by her family”.[6] The Tribunal relied on the following matters:

   a)The applicant “produced no substantiation of her claims about the harm done to her family by local officials or village elders beyond six photographs”.[7] The applicant claimed the photographs depicted the business before and after destruction, but the Tribunal was of the view that they failed to demonstrate that the same business belonged to the applicant’s parents.

   b)The applicant did not provide any documents evidencing the applicant’s parents’ dispute with the local leader, or the appeals to the government.[8]

   c)The Tribunal considered it was implausible that local officials would demolish the applicant’s parent’s business only to then build and operate another fishery and piggery in its place.[9]

   d)The applicant’s family had the ability to raise money that was necessary to arrange for the applicant to travel to and study in Australia. That cast further doubt on the applicant’s claim that her parents lost a major part of their business in May 2006 and were deeply in debt.[10]

   e)The applicant’s claims regarding the current circumstances of her family were vague and implausible.[11]

   f)The applicant’s claims about her father’s petitioning activities were vague and inconsistent.[12]

   [6] CB171, [25]

   [7] CB167, [24], first dot point

   [8] CB 167-168, [24], first dot point

   [9] CB168, [24], second dot point

   [10] CB168, [24], third dot point

   [11] CB168, [24], fourth dot point

   [12] CB169, [24] fifth dot point

2. The Tribunal accepted that the applicant had one child who was born in Sydney and was expecting a second child and that this would be in breach of the family planning regulations in China.[13] While the Tribunal accepted that the applicants, as holders of “rural household registrations”, would be subject to a fine, it found the fine would be relatively small and would be “payable in instalments”.[14] Further, given it did not accept the applicant’s claims about her parents’ circumstances in China, the Tribunal did not accept that the applicant would lack the “support of her own family if she were to return to China”.[15] The Tribunal was also not satisfied the applicant would be unable to seek support from the second applicant’s family.[16] Further, although the Tribunal accepted that the applicant had been “diagnosed as suffering from depression and anxiety”, and that the second applicant “has a medical condition which prevents him from engaging in heavy physical labour”, the Tribunal was not satisfied that, on their return to China, these conditions would prevent the applicants from finding employment.[17] The Tribunal, therefore, was not satisfied “that there is a real chance” that the applicants would suffer serious harm “simply because they were required to pay fines imposed on them for the breach of China’s family planning regulations”.[18]

   [13] CB170, [29]

   [14] CB170, [32], [33]

   [15] CB171, [34]

   [16] CB171, [34]

   [17] CB171, [34]

   [18] CB171, [34]

3. The Tribunal accepted there have been cases of “forced sterilisations and abortions in China”.  The Tribunal, however, was not “satisfied that this practice occurs with such frequency that there would be said to be more than a remote chance that the application would be subjected to a forced abortion”. [19]

   [19] CB171, [36]

4. The Tribunal also accepted that the second applicant may be limited by his medical condition in the kind of employment he may be able to find in China.[20] However, there was nothing to indicate the second applicant had suffered any discrimination in China because of his condition; and the second applicant had achieved a level of education in China which enabled him to meet the requirements for a Student visa.[21] The Tribunal, therefore, was not satisfied that he would face a real chance of serious harm or that he does, in fact, have a well-founded fear of persecution if he were to return to China.[22]

   [20] CB172, [39]

   [21] CB172-173, [38]

   [22] CB172, [39]

5. The Tribunal concluded that neither applicant were persons in respect of whom Australia has protection obligations pursuant to s.36(2)(a) of the Migration Act 1958 (Cth) (Act). Because the Tribunal was not satisfied that the applicant’s family was ever subjected to harm through the loss of their business to corrupt government officials, or that her father has ever been harmed for petitioning or that the applicant herself would petition the authorities, it found the applicant did not satisfied s.36(2)(aa) of the Act and was not a person to whom Australia has protection obligations.

Grounds of application

1. The application contains four grounds of review. The first is:

   In the RRT decision, the first section of paragraph 24 mentioned that, except for the photographs, I did not provide any other materials. Because the local government forced us to give up our business with illegitimate approaches, which directly caused large losses on us. It was impossible for us to get proper documentations such as the demolition certificate. In addition, the documentations and materials we used to have for the appeal have been confiscated and destroyed by the government.

2. This ground raises no jurisdictional error by the Tribunal. It is a submission to explain why the applicant did not have documents which the Tribunal considered the applicant ought to have had available, if the applicant’s claims were true.

3. At the hearing before me, the applicant, who is not legally represented, said that she did not inform the Tribunal that the government had confiscated documents; but that was because the Tribunal did not ask the applicant. The Tribunal made no jurisdictional error by not asking the applicant whether she had any documents that supported her case. It was for the applicant to put material before the Tribunal in support of her case.

4. The applicant also submitted that there were no documents in relation to the destruction of the applicant’s parents’ business because it was done illegally. Again, this submission discloses no jurisdictional error; it goes to the merits of the claims the applicant presented to the Tribunal, and which the Tribunal did not accept. In any event, the Tribunal accepted that formal documents such as demolition orders, demands for the resumption of land, or demands for the termination of the lease might not have existed if the applicants’ family were subjected to demands which had no legal basis. What was significant for the Tribunal, however, was that the applicant did not produce documents which might reasonably be expected to have been prepared by the applicant’s father if he had, in fact, made efforts to petition the authorities against the resumption of the leased land.[23]

   [23] CB167-169, [24], first dot point

5. The second ground stated in the application is:

   Referring to the 4th section of paragraph 24, RRT could not understand the reason why the relatives would like to demolish our home. It actually the same thing in Australia, to the bank, houses are valuable; to the relatives, destroying our home, making us homeless was their way to revenge.

6. This ground does not disclose any jurisdictional error. It is a submission that goes to the merits of the claim the applicant made to the Tribunal. At the hearing before me, the applicant only said that the “relatives just felt comfortable to demolish our house and made us homeless”. This submission does not add anything to the ground stated in the application.

7. Ground 3 is as follows:

   [The second applicant’s] health has been in a bad condition (Disability certificate has been handed in). [The second applicant] is unable to do any heavy work. It means, if we go back to China, we definitely will be persecuted, it’s very likely [second applicant] will not survive. By then, I will become a single mother without any income, and have to wander from place to place to hide myself from the persecution. These facts have never been considered by the RRT.

8. The Minister submits that this ground contains a claim which the applicant did not make before the Tribunal, and which could not reasonably be taken to have arisen on the material that was before the Tribunal. That claim is that, because the second applicant will be unable to work, the applicant will become a single mother without any income and, for that reason, will suffer persecution.

9. I agree that the applicant made no such claim; and that no such claim can reasonably be taken to have been made or to have arisen from the material that was before the Tribunal. In any event, even if such claim can reasonably be taken to arise from the material, the claim would have been necessarily premised on the elements of a claim the applicant made, and which the Tribunal did not accept. The claim is that the applicant would be unable to pay the social compensation fee because the second applicant was disabled, and that the applicant could not afford to pay the fee, even by instalments, because the applicant could not support herself.[24] The Tribunal rejected that claim because the Tribunal was not satisfied the applicant would lack support from the applicant’s family or from the second applicant’s family; and the Tribunal was not satisfied that, notwithstanding the second applicant’s having a medical condition which prevents him from engaging in heavy physical labour,  the applicants “if they were to return to China they would be unable to find employment of some kind and establish themselves as, presumably, many millions of other young couples do each year”.[25]  Thus even if the applicant claimed persecution because she would be without a wage due to her partner’s inability to work, all the essential factual elements of such claim, bar facing persecution, were not accepted by the Tribunal, and thus would inevitably have failed had the Tribunal considered such claim.

   [24] CB164-165

   [25] CB171, [34]

10. The only submissions the applicant made to me in support of ground 3 was to ask why the applicant and her family cannot remain in Australia because they have settled in Australia, and to say that she wanted to remain in Australia for the sake of the health of her children. These are not matters that are relevant to whether the Tribunal made any jurisdictional error.

11. The fourth ground stated in the application relies on the first three grounds. It states that the “above suggests RRT’s lack of fairness to me”. Unfairness by itself, however, is not a recognised ground of jurisdictional error.

12. On my review of the transcript of the hearing before me when I was considering my reasons, I noticed I did not specifically have ground 4 interpreted to the applicant and ask her to make submissions in relation to that ground. I do not now recall whether I did that consciously because the ground wholly relies on the other three grounds. I did, however, both at the beginning and end of the hearing invite the applicant to make submissions in relation to her application. In any event, I caused to have the matter listed before me at 2.15 pm on 14 September 2015 for the purpose of having ground 4 interpreted to the applicant and inviting the applicant to make submissions on that ground. A letter dated 25 August 2015 was sent by the Court to the applicants notifying them of the listing of the matter before me at 2.15 pm on 14 September 2014 and the purposes of the relisting. The letter was posted to a post office box address provided by the applicants.

13. The applicant appeared by telephone at the hearing on 14 September 2014. The applicant informed me that she did not receive the letter dated 25 August 2015 because she has not checked her post office box. She nevertheless said she was prepared to proceed with the hearing. All four grounds were interpreted to the applicant. I did not invite the applicant to make submissions in relation to the first three grounds; but I did invite her to make submissions in relation to the fourth. The applicant repeated the substance of her claims for protection. She submitted that both her children are young; the second applicant cannot work in the construction industry; and that she would face fines if she returns to China. The applicant also submitted that she and the second applicant would make a useful contribution to Australia. None of these matters, however, suggest any jurisdictional error by the Tribunal.

14. The applicant also submitted the Tribunal failed to consider that the applicant would be subjected to fines if she returned to China. I do not accept that submission. As I have already noted, the Tribunal accepted the applicant would be subjected to a fine but it was not satisfied there was a real chance that the applicants would suffer serious harm simply because they would be required to pay fines for breaching China’s family planning regulations.

15. Finally, the applicant submitted before me that the hearing before the Tribunal took place over two sessions because, at the first session, the interpreter had to leave before the hearing was completed. This is not a matter raised in the grounds of application. In any event, that the Tribunal hearing was not completed in one session does not by itself suggest the Tribunal made any jurisdictional error.

Disposition

1. I propose to order that the application be dismissed, and that the applicant pay the Minister’s costs. I also propose to order that the Administrative Appeals Tribunal be substituted for the Refugee Review Tribunal as the second respondent.

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

Associate: 

Date: 17 September 2015