SZUGB v Minister for Immigration

[2015] FCCA 388

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUGB & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 388

Catchwords:
MIGRATION – Application seeking review of decision of Refugee Review Tribunal to refuse to grant applicants Protection (Class) XA visas – no reviewable error – application dismissed.

Legislation:

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

Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
NADH of 2001 & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407

First Applicant: SZUGB

Second Applicant: SZUGC

Third Applicant: SZUGD

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1091 of 2014

Judgment of: Judge Lloyd-Jones

Hearing date: 28 January 2015

Delivered at: Sydney

Delivered on: 5 March 2015

REPRESENTATION

The Applicants: The First Applicant appeared in person with a Mandarin interpreter.

Solicitor for the First Respondent: Mr S Speirs of Clayton Utz

The Second Respondent: The Second Respond filed a submitting notice.

ORDERS

1. The application be dismissed.

2. The first applicant pay the first respondent’s costs of and incidental to the application, fixed in the sum of $6,646.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1091 of 2014

SZUGB

First Applicant

SZUGC

Second Applicant

SZUGD

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed on 22 April 2014 under the Migration Act 1958 (Cth) (the “Migration Act”), seeking judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”), being RRT Case Number 1315021, a decision of Tribunal Member F. Simmons dated 26 March 2014, affirming the decision of a delegate of the Minister for Immigration and Border Protection (the “Minister”) (at the time of the application to this Court the Minister for Immigration, Multicultural Affairs and Citizenship) to refuse to grant the applicants Protection (Class XA) visas.

2. The solicitors for the Minister filed on 22 July 2014, pursuant to orders of the Court, a folder which was indexed, labelled and paginated, containing all documents that may be relevant to the hearing. The volume of material provided has been identified as the Court Book (CB) and marked as Exhibit “A”.  

3. The applicants were granted leave on 24 June 2014 to file and serve any amended application, affidavit evidence, written submissions or list of authorities upon which they sought to rely, however, they elected not to do so.

Background

1. In setting out the following background material I have quoted directly from the Court Book and submissions prepared by the Minister. I have not made further attribution as this would make the summary unwieldy. Where this information is extracted from the Court Book, each item contains a reference (“CB”) for that material.

2. The first applicant is a national of the People's Republic of China (“China”).  The second and third applicants are the infant daughters of the first applicant.  On 15 March 2013, the first applicant applied for Protection visas, including the second applicant as her dependent. On 16 July 2013, the first applicant gave birth to her second daughter (the third applicant), who was also joined as a dependent to the visa application (CB 1-50, 57).

3. On 17 September 2013, the first applicant attended a departmental interview. On 30 September 2013, a delegate of the Minister refused the applications for Protection visas (CB 55-79).

4. The applicants applied to the Tribunal for review of the Delegate's decision (CB 80-108).  The Tribunal affirmed the Delegate's decision on 26 March 2014 (CB 139-165). 

Applicants' claims

1. The applicants' claims were detailed in a statement accompanying their visa applications (CB 34-36), to the Delegate at interview (CB 55-79), and at the Tribunal hearing (CB 139-165).  They may be summarised as follows:

   a)The first applicant was born in the Fujian countryside and brought up by her mother, who took her to the True Jesus Church from a young age. The True Jesus Church became very important to the first applicant and her mother;

   b)In middle school she often spread the "gospels", but her school had rules against students taking bible studies. Despite this, the first applicant and her mother continued to help locals build their churches and pray for people in rehabilitation;

   c)During 2006, the first applicant's mother was arrested for taking their gospel group on a missionary act in Jiangxi. The first applicant wanted a change of environment and, with help from her church, prepared documents to travel to Australia. In Australia she attends the True Jesus Churches;

   d)In 2012, several True Jesus Church members who were involved in missionary works were arrested, including the first applicant's mother. The first applicant continues to preach the gospel in Australia;

   e)The first applicant is now an unmarried mother, her ex-boyfriend does not support her and she is in a lot of debt. Under "old countryside ideology", unwed mothers have no place. She fears "tremendous social discrimination and psychological pressures" from this, on top of the religious persecution from the government that she will face should she return to China.

Tribunal's Decision

1. The Tribunal did not find the applicant to be a credible witness, and made the following findings and comments:

   a)The Tribunal found the first applicant's oral description of her evangelical activities to be vague and to lack the same detail as her written claims (CB 147 at [28]).  Similarly, it found the first applicant's evidence at the hearing concerning her mother's role in the True Jesus Church to be vague and limited to generalities (CB 147 at [29]);

   b)The Tribunal found the first applicant's evidence that she was engaged in online communications with members of the True Jesus Church in China to be improbable, vague and unsupported by any documentation. The first applicant was unable to provide the Tribunal with copies of any emails she claimed to have sent to Church members in China. The Tribunal considered it incredible that the first applicant would not have retained records of such communications. It did not find her evidence as to why she was unable to provide such records to be persuasive (CB 148-149 at [33]);

   c)The Tribunal considered the first applicant's long delay in applying for protection to indicate that she did not have a genuine fear of persecution in China (CB 149 at [34]). The Tribunal found it difficult to accept that the first applicant would not have obtained information about applying for a Protection visa at an earlier point in time. On the first applicant's own evidence, she knew she could apply for protection from 2010, but did not do so at that time and remained in the Australian community without a valid visa (CB 149 at [35]); 

   d)The Tribunal was also concerned about the credibility of the first applicant's evidence that she supplied correct information for her student visa application but that false information was later provided on her behalf without her knowledge. The Tribunal did not accept the first applicant's explanation that she had only discovered that false information had been included in her student visa upon being informed of this by the delegate. It found that the inconsistencies between the information provided in the first applicant's student visa application and her Protection visa application cast further doubt upon her credibility as a witness (CB 150 at [38]);

   e)The Tribunal was not satisfied that the first applicant or her mother were ever members of the True Jesus Church in China (CB 150 at [39]). It did not accept that the first applicant or her family had any profile with the Chinese authorities because of their religious beliefs and activities. Accordingly, it did not accept that the first applicant would suffer any harm on this basis (CB 150 at [39]);

   f)While the Tribunal considered the first applicant's involvement in, and commitment to Christianity in Australia to be exaggerated, for the purposes of its decision, it was prepared to give the first applicant the benefit of the doubt and accept that she is now a genuine member of the True Jesus Church (CB 152 at [45]). However, it did not accept that the first applicant or her daughters would be of adverse interest to the Chinese authorities because of the first applicant's religious beliefs and activities. Taking into consideration independent information concerning the circumstances in Fujian province, the Tribunal was satisfied that, if the first applicant chose to attend a True Jesus Church upon her return to China, the chance that she would suffer any harm by reason of her religious beliefs and activities was remote.  It also rejected the suggestion that the child applicants would face any harm if they were to accompany their mother to a True Jesus Church (CB 152-154 at [45]-[52]);

   g)Notwithstanding significant doubts, the Tribunal was also prepared to accept that the first applicant would return to China as a single mother (CB 159 at [63]). The Tribunal accepted that the social compensation fee that may need to be paid by the first applicant was a substantial sum of money for a single mother to pay.  However, it noted that country information indicated that she would be able to apply to pay by way of instalments over a period of three years.  The Tribunal found the first applicant's evidence about her financial circumstances and her ability to secure financial support from her family members and former de facto to be unreliable.  Having regard to all of the evidence before it, the Tribunal found that the first applicant would be able to pay the fee on behalf of her children so that they would be registered and receive social services. The Tribunal concluded that the child applicants would not be subjected to serious harm or significant harm for breaching the Fujian family planning regulations (CB 155-165 at [53]-[84]); and

   h)For the purposes of the decision, the Tribunal was prepared to accept that upon her return to the Fujian province, the first applicant would be identified as a single mother who had two children out of wedlock. As the Tribunal indicated to the first applicant at the hearing, whilst there existed information suggesting that single mothers and children born out of wedlock may face a degree of discrimination, particularly in remote areas, there was also information that these attitudes were improving. Whilst it found that she may experience a degree of discrimination in China because of her status as a single mother, it was not satisfied that any harm that she would face for this reason would rise to a level of serious harm or significant harm. The Tribunal was prepared to accept that the child applicants may likewise experience a degree of social opprobrium (for example, teasing at school) and discrimination because they were born out of wedlock and their mother was a single parent. However, it was not satisfied that any discrimination or hardship that they would suffer would rise to the level of serious harm for the purposes of s.36(2)(a) Migration Act 1958 (Cth) (Act) or significant harm for the purposes of s.36(2)(aa) of the Act.

Current Proceedings

1. The application before this Court pleads the following grounds of review (noting a number of grounds are contained in the section of the application titled “Orders sought by Applicant”) verbatim:

   Orders sought by Applicant

   1.  I disagree with Immigration and RRT’s decision.  They did not consider that my children will be in danger if we return.

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

   3.  RRT member failed to consider my fears and concerns about my faith in particular my children’s future if I return.  They did not trusted me and have prejedous attitude to my application.  RRT should grant my application.

   The Grounds of the Application are:

   1.  I am a Chinese citizen and Christian who has been persecuted by Chinese government.

   2.  I can not go back to China since I am very scared to be sentenced.

   3.  Mr children will be facing challenge and social biases due to the sanction of the family planning policy of I return.  RRT failed to consider the reality that both my children and my family will be denied by the society.

Applicant’s Submissions

1. Despite leave being granted for her to do so, the first applicant elected not to file any written submissions.

2. At the hearing, the applicant stated the Tribunal’s decision was not fair.  She argued that her children will face persecution in China and she is a single mother.  She further fears returning to China because she will face persecution, including for her religious beliefs.

Minister’s Submissions

1. The Minister contends the First Ground(s) of Review must fail as they are factually incorrect.  The Tribunal, as set out in its Decision Record at [17]-[84] comprehensively considered all of the first applicant's claims, including her claim to fear persecution in China (CB 144-164 at [17]-[84]).

2. The Minister argues to the extent the first applicant alleges bias, there is no evidence to support such an allegation.  A party alleging bias bears a heavy onus and it is difficult to establish bias solely upon the written reasons.   In this matter, the Tribunal's reasons for decision do not support any such allegation.  There is nothing in the Tribunal's conduct nor its reasons for decision that would indicate to a fair-minded and informed person that the Tribunal might not have brought an impartial mind to the resolution of the question to be decided (see NADH of 2001& Ors  v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 at [14] per Allsop J (as he then was)). Indeed, in relation to a number of the first applicant's claims, notwithstanding its serious doubts as to the credibility of those claims, it gave the first applicant the benefit of the doubt and accepted them (such as her claim to no longer be in a relationship with the father of her children).

3. The Minister submits the Second Ground(s) of Review cavil with the merits of the Tribunal's decision and, as such, must also fail.   

4. The Tribunal's decision was based upon extensive credibility findings.  Those findings were open to the Tribunal on the material that was before it.  The Court has no jurisdiction to re-open the merits of the Tribunal's decision.

5. The Minister respectfully submits that the application does not identify any error capable of review by this Court, and should therefore be dismissed with an order that the first applicant pays the Minister's costs in such amount as may be fixed by the Court.

Consideration

1. A number of the grounds of the application allege a failure on the part of the Tribunal to consider a number of claims made by the applicant. 

2. The first claim the first applicant alleges the Tribunal failed to consider was that her children would be in danger if she returned to China.  The first applicant, in her statement attached to her Protection visa application, stated “Both I and my baby will be hurt if we go back, and we will fall into second-class citizens there”.

3. At [81]-[82] of the Decision Record (CB 164-165) the Tribunal stated:

   81.    The applicant has claimed her daughters would suffer harm because they would be identifiable as children born out of wedlock to a single mother.  She has said she was worried her daughters would not be treated fairly because she would evangelise and she was a single mother.  They would say to her children they only had a mother not a father.  If her children were able to go to school they would be persecuted against inside of the school and discriminated against in daily life.  Previously when she was in China one of her classmates was a single parent family.  Her cousin only had a mother and she experienced a kind of discrimination and was bullied by other classmates.

   82.    While DFAT has advised children born out of wedlock and without household registration in remote regions ‘may have experienced discrimination in the past due to traditional and cultural disapproval’, as I discussed with the applicant, DFAT advises that this situation is likely to have improved.  For the reasons I have set out above, I have found the applicant will be able to pay the social compensation fees necessary to acquire hukou registration for the child applicants.  Having considered the applicant’s evidence and the available country information, I am prepared to accept that the child applicants may also experience a degree of social opprobrium (for example, teasing at school) and discrimination because they were born out of wedlock and their mother is a single parent.  However, I am not satisfied any discrimination or hardship the applicants will suffer will rise to the level of serious harm for the purpose of s 36(2)(a) or significant harm for the purpose of s 36(2)(aa).

   (footnote omitted)

4. On a fair reading, the Tribunal considered the first applicant’s claim her children would suffer persecution in China, however, found that any discrimination or hardship they may face was not of a level of serious harm or significant harm for the purposes of ss.36(2)(a) and 36(2)(aa) of the Migration Act.

5. To the extent that the first applicant states the Tribunal failed to consider her claim her children would be in danger in China, I am satisfied on the evidence before the Court that no claim was raised before the Tribunal of that nature in that express term.  The Tribunal did consider the first applicant’s claims in relation to her children and made findings about those claims that were open to it on the material before it.  I am satisfied this ground cannot be sustained.

6. The second claim alleged by the first applicant not to have been considered by the Tribunal was that the applicant would be persecuted and in big trouble if she returned to China.  This claim has not been particularised in any further detail by the applicant.  At [17]-[84] of the Decision Record (CB 144-165) the Tribunal gave extensive and comprehensive consideration to the various claims made by the applicant.  It also made detailed findings in respect of them.  Ultimately, for various reasons, particularly its credibility findings in respect of the first applicant, the Tribunal was not satisfied the applicant had a well-founded fear of persecution.  Accordingly, I am satisfied this ground cannot be sustained.

7. The applicant further claimed the Tribunal failed to consider her fears and concerns about her faith if she were to return to China, particularly in respect of her children.  Again, this claim was not particularised any further.  At [21]-[52] of the Decision Record (CB 146-155) the Tribunal gave detailed consideration to the applicant’s various claims in respect of her faith and religion.  At [51] (CB 154) it stated:

   51.    Taking into consideration the independent information concerning the circumstances in Fujian province for ordinary members of the unregistered church and the information concerning the True Jesus Church in Fujian province, I am satisfied that, if the applicant chooses to attend a True Jesus Church upon her return to China, the chance of the applicant suffering any harm by reason of her religious beliefs and activities is remote.  There is also no evidence to suggest that the applicants would face a real chance of serious harm on the basis of having attended the True Jesus Church in Australia.  I do not accept that the applicant ever engaged in evangelical activity in China and, having regard to evidence about the religious practice in Australia, I do not accept that she has publicly proselytised in Australia or that she would be motivated to do so if she ever returned to China.  I do not accept that there is anything that will give rise to a real chance of persecution if she returns home to China and continues to practice her faith and I reject the suggestion that the child applicants will face any harm if they accompany their mother to a True Jesus Church in Fujian.  Consequently, I find that there is no real chance that the applicants would face Convention-related persecution for reasons of religion in the reasonably foreseeable future if they were to return to China.

1. The Tribunal then went on to make findings in respect of the provisions of the complementary protection criterion, but found there was not a real risk the applicants would suffer significant harm or, indeed, any harm in relation to their faith or religious beliefs.  Accordingly, this aspect of the ground cannot be sustained.

2. The second aspect of this ground alleges that the Tribunal did not trust the first applicant and was prejudiced against her.

3. To the extent the first applicant disagrees with the Tribunal’s credibility findings in respect of her as a witness, findings on credibility are a matter for the Tribunal par excellence.  His Honour McHugh J stated in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]:

   67.    … a finding on credibility … is the function of the primary decision-maker par excellence. If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.

   Accordingly, this aspect of the ground cannot be sustained.

4. The final aspect of this ground raises an allegation of bias on the part of the Tribunal, but has not in any way been particularised.  Such an allegation is not made out simply because the Tribunal did not believe some or all of the first applicant’s claims or evidence.  An allegation of bias or apprehended bias is a serious one, that must be distinctly made and clearly proven: see Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. There is no evidence before the Court that is capable of substantiating such an allegation. Specifically, there is nothing in the Tribunal’s reasons that would allow the Court to draw the inference that the Tribunal approached its task other than in good faith and with a mind open to persuasion. In respect of any claim of apprehended bias, the test of whether a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings might reasonably apprehend that the Tribunal might not have brought an impartial and unprejudiced mind to its task cannot be made out on the basis of the Decision Record. Accordingly, this aspect of the ground cannot be sustained.

5. The “Grounds of Review” as pleaded by the applicant are statements in support of the applicants’ substantive protection claim.  These statements do not purport to raise any error on the part of the Tribunal and instead, invite the Court to engage in impermissible merits review (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259). To the extent the third ground in this series alleges a failure by the Tribunal to consider a claim made by the applicant, this nature of claim has been adequately addressed above at [19]-[25]. These grounds cannot be sustained.

6. The first applicant’s oral submissions made at the hearing further invite the Court to engage in merits review, and for the reasons stated directly above, cannot be sustained.

7. To the extent that first applicant claimed the Tribunal’s Decision Record was not fair, no further particularisation of this claim was forthcoming.  On a fair reading, the Tribunal addressed the applicants’ protection claims, made findings in respect of them and gave reasons for those findings.  No error is apparent.  Further, on a fair reading of the Court Book and Decision Record, no denial of procedural fairness on the part of the Tribunal is apparent.

Conclusion

1. None of the pleaded grounds advanced or oral submissions made by the first applicant can be sustained.  I have had regard to the Court Book and, particularly, the Tribunal’s Decision Record and no error on the Tribunal’s part is apparent.  The application should be dismissed with the first applicant ordered to pay the Minister’s costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Lloyd-Jones

Associate: 

Date: 5 March 2015