SZUFD v Minister for Immigration

[2014] FCCA 2816

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUFD & ORS v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2816

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.91R, 424AA

First Applicant: SZUFD

Second Applicant: SZUFE

Third Applicant: SZUFF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1042 of 2014

Judgment of: Judge Driver

Hearing date: 2 December 2014

Delivered at: Sydney

Delivered on: 2 December 2014

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents: Ms F Taah of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. 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 $3,400.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1042 of 2014

SZUFD

First Applicant

SZUFE

Second Applicant

SZUFF

Third 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 seeking judicial review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 21 March 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 who were also applicants before the Court.  These are a father, a mother and their son[1].  They also have a second child.  At the time of the Tribunal decision, the applicant mother was said to be pregnant with their third child.  Today, however, the applicant father told me that unfortunately his partner had not been able to carry that child to term. 

   [1] Unfortunately, the consent orders made by the Court on 17 June 2014 did not include the appointment of a litigation guardian for the third applicant and I did not identify the omission prior to the dismissal of the application.

2. The background facts are otherwise detailed in the Minister’s outline of legal submissions, which I adopt. 

3. The first and second named applicants are citizens of the People’s Republic of China. The third applicant is their child who was born in Australia.

4. On 3 July 2007, the first applicant arrived in Australia on a student visa which was cancelled on 9 January 2008[2]. On 18 June 2012, he lodged an application for a protection visa, with the second applicant, his partner, included as a member of his family unit[3].

   [2] Relevant Documents (RD) 88

   [3] RD 1-41

5. The application included a signed personal statement of the first applicant in which he set out his claims for protection in alternate paragraphs in Chinese script and English[4]. The first applicant claimed to fear harm in connection with his father’s ongoing appeals against confiscation and re-development of his land (a lychee farm) without payment of adequate compensation. He claimed that his father was involved in a physical altercation with village committee officers after his father refused to accept compensation because it was below the market value. When the first applicant intervened on his father’s behalf, he ‘bumped into’ a bulldozer and fractured his leg. His injuries kept him in hospital for two months. His father was detained for 15 days and was released upon payment of a fine. His father started to appeal to the Complaints Bureau and in February 2012, the applicant was informed by his sister that their father had been beaten by the police as a result of his appeal. The applicant claimed that he would face the same fate if he returned to China.

   [4] RD 16-19

6. On 13 September 2012, the first applicant attended a protection visa interview with a delegate of the Minister.[5]

   [5] RD 93

7. On 25 September 2012, the third named applicant was born[6] and on 6 November 2012, he was added to the protection visa application[7]. To the delegate, the first applicant did not advance any other Convention related claims either with respect to himself or the secondary applicants, other than with respect to the land confiscation.[8]

   [6] RD 77

   [7] RD 52-58

   [8] RD 97

8. On 12 November 2012, a delegate refused the applicants’ protection visas[9]. The delegate found the applicant’s claims to be unsubstantiated, fabricated and exaggerated[10], concluding that the applicants were not persons to whom Australia owed protection obligations. 

   [9] RD 79-101

   [10] RD 97

Review to the Tribunal

1. On 3 December 2012, the applicants applied to the Tribunal for review, with the assistance of a migration agent[11].

   [11] RD 102-106. The applicants were initially assisted by an agent from Auyangtong International but later appointed Ms Weiming Qian as their representative/authorised recipient (see RD 110)

2. On 19 December 2013, the applicants appeared before the Tribunal for a hearing[12]. By that time, the first and second applicants had had a second child, born on 10 September 2013[13]. The second applicant was also pregnant with the couple’s third child, who was to be born on 6 August 2014[14].

   [12] RD 133

   [13] RD 139

   [14] RD 137

3. To the Tribunal, the first and second applicants also claimed to fear harm as a result of the family planning laws in China. They claimed they would be unable to pay the fines applicable for having more than one child and for having children out of wedlock, and that the third applicant would suffer harm as a result of being unregistered. The second applicant also claimed to fear harm in respect of the family planning laws as she was pregnant with her third child and she feared forced abortion or forced sterilisation in China.

Tribunal decision

1. The Tribunal had significant concerns regarding the first applicant’s credibility as a witness and rejected the claim that his father had owned land which had been confiscated and any claims arising for any of the applicants from that central claim[15]. The Tribunal’s concerns may be summarised as follows:

   a)whilst the first applicant was able to approach the Department and seek working rights as early as August 2007, he did not seek protection until some five years after entering Australia[16];

   b)the first applicant was unable to provide even the most basic details regarding the alleged appeals instituted by his father[17], and he had done nothing in the time that he has been in Australia to support his father in pursuing the appeal, even though he claimed that he would assist his father if he was returned to China[18];

   c)the first applicant’s oral evidence to the Tribunal regarding the amount of compensation offered to his father, the number of times that his father was detained, and how long he stayed in hospital after the injury to his leg were inconsistent with what had been stated in his written statement to the Department[19]. Further, his claim that the lychee farm was his family’s only source of income was inconsistent with information contained in his application for a student visa, with the Tribunal noting that this issue was referred to in the delegate’s decision which had been provided to the Tribunal by the applicant’s representative[20];

   d)the first applicant had given inconsistent evidence regarding how he sustained his leg injury. The Tribunal put information to him pursuant to s.424AA of the Migration Act 1958 (Cth) (Migration Act), being information contained in a record of a Departmental interview conducted in January 2008 where the first applicant had stated that he sustained the injury in a car accident in China[21].

   [15] RD 160 [28]-[29]

   [16] RD 157 [17]

   [17] RD 157 [19]

   [18] RD 158 [20]

   [19] RD 158-159 [22]-[24]; [26]

   [20] RD 159 [26]

   [21] RD 159 [24]-[25]

2. On the family planning claims, the Tribunal accepted that the applicants had two children who were born out of wedlock and that the second applicant was pregnant with their third child[22]. While the Tribunal accepted that the applicants may have to pay a fine in China for having more than one child and for having those children out of wedlock, it found that:

   a)the first and second applicants have access to supportive families who can assist them in paying any fines imposed[23];

   b)any monetary penalty which would be imposed in respect of the births of their children would not be imposed or administered against them for the essential and significant reason of a Convention characteristic as required under s.91R(1)(a) of the Migration Act[24];

   c)that the payment of the relevant fines would not amount to serious or significant harm[25].

   [22] RD 161 [32]

   [23] RD 162 [35]-[36]

   [24] RD 162 [37]

   [25] RD 162 [38]

3. The Tribunal then considered the second applicant’s claims of forced abortion and sterilization. However, on the basis of available country information, specifically Fujian, where the applicants were expected to return, the Tribunal was not satisfied that the second applicant faced a real chance or a real risk of forced abortion in the reasonably foreseeable future should she return to Fujian[26].

   [26] RD 163 [39]-[40]

4. In relation to the third applicant, the Tribunal was satisfied that after arrangements for paying the social compensation fee are made and the third applicant registered, he will have access to all services, including health and education as other Chinese nationals. It therefore found that he would not face a real chance of serious harm or a real risk if significant harm upon return for this reason [27].

   [27] RD 163-164 [42]

5. The Tribunal concluded that the applicants could not be granted protection visas on Convention grounds[28]. In its consideration of whether they satisfied the complementary protection criteria, the Tribunal referred to its cumulative findings of fact and found that it was not satisfied that the applicants faced a real risk of significant harm in China in the reasonably foreseeable future[29].

   [28] RD 164 [44]

   [29] RD 164 [45]

6. Consequently, on 21 March 2014, the Tribunal affirmed the decision not to grant the applicants protection visas.

The present application

1. These proceedings began with a show cause application filed on 15 April 2014.  The applicants continue to rely upon that application.  There are three grounds in that application in narrative form:

   1. On the basis of all reliable evidence before it, the Refugee Review Tribunal (the Tribunal) has unreasonably concluded that the applicants are not person in respect of whom Australia has protection obligations.  In my case, I claimed fear of persecution with reliable reason which establish the genuineness of the asserted fear and that it is “well-founded”.  I fear harm in China in connection with my father’s ongoing appeals against the confiscation and re-development of land without payment of adequate compensation.  I also fear being unable to pay social compensations fees in respect of my children who were born in breach of China’s family planning laws.  I provided evidence to support my case.

   2. The Tribunal should have considered the claims made by my wife and child with fair and justice, since we belong to ‘the same family unit’.  Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person.  Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition.  The expression is defined in r.1.12 of the Regulations to include a de facto spouse and a child.  In respect of the family planning laws, my wife is currently pregnant with third child which is due in August 2014 and she fears forced abortion or forced sterilization.  My child cannot be registered in China as he was born in breach of the family planning laws as he was born out of wedlock.

   3. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration PAM3 Refugee and humanitarian – Complementary Protection Gu9idelines and PAM3 Refugee and humanitarian-Refugee Law Guidelines-and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.  The Tribunal did not fairly considered whether any of the applicants are eligible for complementary protection.  In my case, all applicants faces a real risk of serious persecution being carried out and that the applicant will be arbitrarily deprived of life in China.  The Chinese authorities, other person and entity in China have the requisite intention to inflict significant harm on the applicants.  These real risk of harm and hardship in the reasonably foreseeable future in China are ignored by the Tribunal. (errors in original)

2. The application is supported by affidavits by the first and second applicants.  I received those affidavits as, in part, uncontroversial statements of fact and otherwise as submissions. 

3. I also have before me as evidence the book of relevant documents filed on 1 July 2014. 

4. The applicants all attended today’s hearing.  The first and second applicants made oral submissions.  The Minister relies upon his written submissions. 

5. The applicants are concerned that the Tribunal did not believe their claim about the father of the first applicant having a land dispute with the Chinese authorities.

6. That aspect of the Tribunal’s decision is described as unreasonable.  In my opinion, however, that aspect of the Tribunal’s decision is one about which reasonable minds can differ.  The Tribunal’s adverse credibility conclusions were open to it on the material before it.  The first and second applicants are also apprehensive about the imposition of the social compensation fee for having children out of wedlock.  I see no arguable case of jurisdictional error, however, in relation to the Tribunal’s assessment of that claim. 

7. Likewise, the Tribunal’s assessment of the applicants; claims against the complementary protection criteria is uncontroversial.  I otherwise agree with and adopt the Minister’s legal submissions. 

8. None of the applicants’ grounds of review raise an arguable case for the relief they seek.

Ground 1

1. This ground merely repeats the applicants’ protection claims and alleges that the Tribunal’s conclusions were unreasonable. This allegation is not supported by any particulars. The Tribunal’s reasons indicate that it gave detailed consideration to the applicants’ claims and came to conclusions which were reasonably open on the material before it. The allegation of unreasonableness therefore appears to be an expression of disagreement with those conclusions.

2. Insofar as the applicants may also be alleging that the Tribunal failed to consider their evidence, it is unclear what evidence the applicants are referring to. In any event, it is clear from the Tribunal’s reasons that it considered the evidence given in the application to the Department, being the first applicant’s statement, his oral evidence to the delegate, and the first and second applicant’s oral evidence to the Tribunal.

Ground 2

1. By this ground, the applicants claim that the Tribunal should have considered the claims of the second and third applicants ‘with fair and justice, since we belong to ‘the same family unit’’’. The ground then sets out the legislation which determines who is considered to be a member of a family unit and repeats the applicants’ claims in relation to the family planning laws.

2. It is unclear what error is alleged by this ground as the Tribunal clearly considered the three review applicants as members of the same family unit.

3. To the extent that the applicants allege that the claims of the second and third applicant were not considered, this is not supported by the Tribunal’s decision record. The Tribunal, at [39]-[43] expressly considered and rejected the claim that the second applicant would face harm on account of her pregnancy and that the third applicant would face harm because he was born out of wedlock.

Ground 3

1. By this ground, the applicants claim that the Tribunal did not fairly consider whether any of the applicants were eligible for complementary protection, claiming that they face “a real risk of serious persecution being carried out and that the applicant will be arbitrarily deprived of life in China”.

2. Contrary to what is alleged, the Tribunal expressly considered whether any of the applicants faced a real risk of significant harm, as that term is defined in the Migration Act, and found that they did not.

3. The Tribunal also noted that the applicants did not make any claims (and nor did any arise on the evidence) in relation to significant harm.

4. It is unclear what allegation is being made by the applicants’ reference in this ground to “Ministerial Direction 56” and the requirement for the Tribunal to take into account policy guidelines and country information from the Department of Foreign Affairs and Trade (DFAT) prepared expressly for protection determination assessment purposes and available to the decision maker.  In any event, in Appendix 1 to its decision, the Tribunal refers to Direction 56[30] and, in its summary of country information, cites numerous pieces of information from DFAT provided in response to Tribunal research requests along with country information from various sources[31], and made its decision in light of that information. The Tribunal’s approach is not affected by any error.

   [30] RD 167 [63]

   [31] RD 168-177

5. The first and second applicants have been in Australia for approximately seven and a half years.  They are very young.  They are apprehensive about returning to China.  They would benefit from information and advice and perhaps counselling in the event that they are required to return there. 

6. In the case before me, I am bound to conclude that no arguable case of jurisdictional error has been established. 

7. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

8. In consequence of the dismissal of the application, the Minister seeks an order for costs.  The Minister seeks an order for costs in accordance with the currently applicable scale.  Some work, however, was performed prior to the new scale commencing.  The first applicant did not oppose a costs order.  He indicated that he may wish to pay by instalments.  I will not require payment by any particular time.  I will order that the first and second applicants pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,400.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  5 December 2014