SZUAF v Minister for Immigration & Border Protection
[2014] FCCA 1643
•24 July 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUAF & ANOR v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 1643 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Migration Act 1958 (Cth) ss.36, 91R, 424A, 424AA Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Cases Cited: Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 |
| First Applicant: Second Applicant | SZUAF SZUAG |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 640 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 24 July 2014 |
| Date of Last Submission: | 24 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 24 July 2014 |
REPRESENTATION
The applicants appeared in person with the assistance of an interpreter
| Solicitor for the Respondents: | Ms Michelle Stone (DLA Piper) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 640 of 2014
| SZUAF |
First Applicant
SZUAG
Second Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
This is an application by the applicant pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”), for an order requiring the respondent to show cause why the Court should not grant the relief sought in the application filed on 14 March 2014.
The second applicant is the son of the first applicant. The second applicant has made no application in his own right and his claims are wholly reliant on the first applicant’s claims (“the Applicant”). On 8 July 2014, the Applicant was appointed as the litigation guardian of the second applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The proceeding before this Court
The Applicant was unrepresented before the Court this morning, although had the assistance of a Mandarin interpreter.
On 8 July 2014, the Applicant attended a directions hearing before me. I explained to the Applicant that this Court has no power to interfere with the decision of the Refugee Review Tribunal (“the RRT”), unless the Court is satisfied that the RRT’s decision is affected by a mistake going to the jurisdiction of the RRT. I also explained to the Applicant that the grounds of the application made bare assertions that were unsupported by particulars and did not by themselves disclose an error capable of review by this Court.
I also explained to the Applicant that in circumstances where the grounds of the application do not raise an arguable case for the relief claimed, the application may be dismissed pursuant to the rules of this Court.
At the directions hearing, the Applicant was provided with a copy of the applicable costs schedule of the Court and I explained to the Applicant the consequences that may flow to her if a costs order was made against her. Namely, that whilst any costs order remains unpaid, it becomes a debt to the Commonwealth of Australia. As such, the Applicant’s ability to obtain any other type of visa or re-enter Australia may be significantly affected.
The Applicant confirmed that she wished to continue with the application for judicial review of the RRT’s decision. The Applicant was given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 16 July 2014. The applicant was also directed to file and serve written submissions in support of the grounds of his application by 16 July 2014.
The Applicant confirmed to the Court this morning that she had not filed any further documents, either in accordance with my directions or otherwise.
At the directions hearing, the applicant was provided with the contact details of legal services providers and interpreting and translation services in documents headed in her own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Rules, a copy of which was given to the Applicant.
At the commencement of the hearing this morning, the Applicant confirmed that the applicants relied on the grounds for review, filed on 14 March 2014, stated the grounds of review as follows:
“1. I disagree with Immigration and RRT’s decision. They did not consider my fears of return due to the high risk of my undergrounded religion in China and the negative impact on my Australian born child.
2. RRT did not consider that I will be persecuted and being put in danger for my commitment to faith especially my personal involvement of religion in Australia, the witness given by my religious fellow in hearing.
3. RRT member failed to consider my fears and concerns about my child’s future due to my child was born out of wedlock, I have no financial ability for the social compensation imposed by china’s family planning in origin, which will accumulate the massive pressure, stress and harms on mental and economic aspects. RRT failed to give me a chance to make further commitments on the outstanding questions off the hearing.”
The grounds of the application were interpreted for the Applicant and the Applicant was invited to make submissions in support of the grounds. The Applicant declined to make any submissions in relation to any of the grounds or in support of her application generally.
The Applicant had the second applicant, her 18-month old son, in Court with her today. The Applicant confirmed to the Court that she had read the first respondent’s Outline of Submissions, filed 18 July 2014. For the reasons below and which are largely reflected in the first respondent’s written submissions, I informed the Applicant that I was not satisfied that her application raised an arguable case for the relief claimed and, accordingly, dismissed her application. I provided the Applicant with a sealed copy of the Order and informed her that a copy of my Reasons for Judgment would be sent to her in due course. I took that unusual course because it was apparent that the Applicant did not wish to stay in Court with her child whilst I dictated my Reasons.
I accept as accurate the first respondent’s summary of the Background, Applicant’s claims, and the RRT’s decision, as follows:
“Background
2. The applicant is a female citizen of China born on 11 August 1989 (the applicant).2 She arrived in Australia on 4 November 2007. The second named applicant is the applicant's son who was born in Australia.
3. The applicant applied for a Protection (Class XA) visa on 24 August 2012.3 Her claims were set out in a statement accompanying the application. The application was refused on 26 November 2012.
4. The applicant applied to the RRT for review of the delegate's decision on 21 December 2012.6
5. The applicant gave oral evidence before the RRT on 21 November 2013. The RRT made its decisions on 17 February 2014.7
The applicant's claims
6. The applicant claimed to fear harm if she returns to China on the Convention basis of her religion, being I-Kwan Tao; as a result of being fined for having a child outside the provisions of China's family planning laws and on the basis that her child would be taken from her by her partner's family. The applicant also claimed to fear harm on
The decision of the Tribunal
7. The RRT set out in detail the applicant's claims made and evidence provided in her protection visa application at the protection visa interview, in written submissions made to the RRT, and at the hearing.
8. The RRT had doubts about the credibility of the applicant's claims to have been involved with the I-Kwan Tao faith in China and to have been harmed for such a reason. At [21] of its decision the RRT set out those concerns in detail, which in summary were:
8.1 Her claims as to the nature of her attachment to I-Kwan Tao while in China were contradictory.
8.2 The delay of six weeks between obtaining her Student visa and her departure to Australia casts doubt on her claim to have feared harm in China.
8.3 Documents submitted in support of her Student visa application regarding the employment of her father, contradicted the evidence she gave in connection with her Protection visa application. In particular that he was arrested in July 2006 and had been in hiding ever since.
8.4 Her account at the hearing about her father's whereabouts was vague and the RRT found it implausible that since July 2006 her father had been unable to find any way to contact his family.
8.5 The RRT found it highly implausible that it took the applicant four years after arriving in Australia to find an I-Kwan Tao temple.
8.6 The RRT found it incongruous that the applicant would have initiated into the I-Kwan Tao faith in Australia, as was the evidence of her witness at the hearing, given that she had also claimed to have been initiated as a child in China.
9. Taking all of these considerations into account the RRT was not satisfied that the applicant was involved in the I-Kwan Tao religion when she lived in China and therefore found that she would not suffer harm at the hands of the Chinese authorities for such a reason.
10. With regard to this finding the RRT found that the applicant's conduct, in being involved in an I-Kwan Tao temple in Australia, was for no other reason than to strengthen her claims to be a refugee and as such disregarded those claims pursuant to section 91R(3) of the Act.
11. The RRT was therefore not satisfied that there was more than a remote chance that the applicant's son would be raised in the I-Kwan Tao faith, either in Australia or China. It found that he therefore would not suffer harm in China for the Convention reason of religion.
12. In relation to the applicant's claims regarding the fine that would be imposed on her because she had a son out of wed-lock, the RRT was not satisfied that there was any reason the applicant would not be able to earn an income in China to pay the fine. Further there was no evidence to suggest that such a fine would be applied in a discriminatory way or that it would represent anything more than the administration of a law of general application.
13. The RRT was satisfied that once the applicant paid the fine her son would be entered on her household registration and that once registered he would be in the same position as other Chinese citizens.
14. Accordingly the RRT was not satisfied that either the applicant or her son would suffer harm for this reason.
15. In terms of the applicant's claim that her son would face discrimination in China because he does not have a father, the RRT found:
15.1 That any discrimination suffered from neighbours and the like towards the applicant for being an unmarried mother would not amount to a real chance of serious harm; and
15.2 That any such discrimination against the second named applicant would not constitute serious harm amounting to persecution.
16. The RRT found that the applicant's claim that her child would be taken from her if she returned to China, was not credible.
17. Accordingly, having dismissed all of the applicant's claims, the RRT concluded that the applicant did not have a well-founded fear of persecution for a Convention reason should she return to China, now or in the reasonably foreseeable future and was therefore not satisfied that she was a refugee.
18. Having dismissed the claims made on behalf of the second named applicant the RRT found that he did not have a well-founded fear of persecution for a Convention reason should he return to China, now or in the reasonably foreseeable future and was therefore not satisfied that he was a refugee either.
19. The RRT considered whether the applicant or her son would meet the complementary protection criterion and found that for the reasons it dismissed each of the applicants' claims, it was not satisfied that any harm they would suffer would constitute significant harm as it is defined in section 36(2A).”
Ground 1 asserts that the RRT did not consider the Applicant’s fears of return to China and the negative impact on the second applicant. However, a fair reading of the RRT’s decision record makes clear that the RRT considered in some detail all the Applicant’s claims.
In its consideration of complementary protection, the RRT individually considered the claims of the Applicant and the second applicant.
In relation to the Applicant, the RRT accepted that she would be liable to a fine for having given birth to a child out of wedlock if she returned to China but was not satisfied that such a fine constituted significant harm in the terms contemplated in s.36(2A) of the Act. The RRT also found that, having paid the fine, neither she nor her child would be at risk of future harm from the authorities. In relation to the Applicant’s principle claims to fear harm in China because she is an adherent to the I-Kwan Tao religion, the RRT rejected that claim and was not satisfied that she would involve herself in I-Kwan Tao if she returned to China.
In relation to the second applicant, the RRT was not satisfied that he would suffer discrimination by authorities or others because of the circumstances of his birth beyond the fine that his mother would be required to pay. Further, the RRT found that there was not more than a remote chance that the child would be raised in the I-Kwan Tao faith. The RRT accepted that any social disapprobation that either he or his mother may face in his village did not constitute serious harm amounting to persecution or significant harm as defined in s.36(2A) of the Act.
The RRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. The RRT’s credibility findings are a matter par excellence for the RRT (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Otherwise, Ground 1 is expressed as a disagreement of the RRT’s decision and appears to be no more than a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
Accordingly, Ground 1 is not made out.
Ground 2 asserts that the RRT did not consider that the Applicant would be persecuted because of her involvement in religion in Australia.
However, again a fair reading of the RRT’s decision record does not support such an assertion. The RRT accepted that eth Applicant had been involved with an I-Kwan Tao temple in Australia, but disregarded this conduct pursuant to s.91R of the Act, on the basis that the RRT was not satisfied that the Applicant did not engage in such conduct for any other purpose than to strengthen her claims of persecution in China. Having made that finding, the RRT correctly did not have regard to that conduct in considering whether the Applicant was entitled to protection. Further, the RRT found that the Applicant was not previously an adherent to I-Kwan Tao in China and would not involve herself in that religion if she returned to China, nor would she refrain from doing so for fear of harm.
Again, those findings would appear to be open to it on the evidence and material before it and for the reasons it gave.
Accordingly, Ground 2 is not made out.
Ground 3 alleges that the RRT failed to consider the Applicant’s concerns about her child’s future, whether she could pay the fine imposed by authorities, and that the RRT failed to give her a chance to make further submissions on “outstanding questions of the hearing”.
As is clear from the reasons above, the RRT gave careful consideration to the Applicant’s concerns about her child’s future. As stated above, the RRT accepted that the Applicant would be required to pay a fine upon her return on the basis that her son was born out of wedlock. However, the RRT found that any fine would not be imposed in a discriminatory fashion. The RRT did not accept that the Applicant could not work and earn an income to satisfy such a fine. Further, once paid, the RRT was satisfied that no further disadvantage would be suffered by the Applicant or her child because he would be able to be entered on her household registration and then be in the same position as other Chinese citizens.
To the extent that Ground 3 asserts that the RRT failed to give the Applicant an opportunity to address its concerns, the ground is fully unparticularised and unsupported by evidence and submissions. Information contained in the Applicant’s student visa application relating to the employment and financial position of her father was put to the Applicant for comment at the hearing.
There is nothing to indicate that the RRT did not fully comply with the requirements of s.424AA. The Applicant has not sought to prove non-compliance by tendering a transcript of the RRT hearing. In the absence of such evidence, the Court draws the inference that the RRT did comply with its obligations (see: SZNJQ v Minister for Immigration and Citizenship [2010] FCA 138 at [38] per Rares J; SZLXE v Minister for Immigration and Citizenship [2008] FCA 1312 at [19] per McKerracher J).
There was no other information before the RRT and to which it had regard that enlivened any obligation under s.424A of the Act. It is well established that the RRT’s disbelief of an applicant’s evidence arising from inconsistencies therein is not “information” for the purposes of s.424A of the Act. Neither does information include the RRT’s subjective appraisals, thought processes and determinations, defects, gaps or lack of detail in an applicant’s evidence (see: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ; VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [14] per Finn and Stone JJ).
Accordingly, Ground 3 is not made out.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, none is apparent on the face of the decision record. The RRT referred to the relevant law and affirmed the decision under review. There appears to be nothing on the face of the decision record to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave.
The Applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error on the part of the RRT.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, the proceeding before this Court, commenced by way of application on 14 March 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 24 July 2014
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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