SZUIS v Minister for Immigration & Border Protection
[2014] FCCA 2456
•17 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUIS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2014] FCCA 2456 |
| 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: Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 |
| Applicant: | SZUIS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1332 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 17 October 2014 |
| Date of Last Submission: | 17 October 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2014 |
REPRESENTATION
| The applicant appeared in person with the assistance of an interpreter |
| Solicitors for the Respondents: | Ms Natasha Blake (Clayton Utz) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1332 of 2014
| SZUIS |
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 19 May 2014.
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 applicant and her litigation guardian were unrepresented before the Court this morning although had the assistance of a Mandarin interpreter.
On 5 August 2014, the applicant’s mother was appointed litigation guardian of the applicant by me at a First Court Date directions hearing.
On that occasion, I explained to the litigation guardian that the 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 mistake that goes to the jurisdiction of the RRT. I also explained to the litigation guardian 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 litigation guardian that in circumstances where the grounds of the application did not raise an arguable claim for the relief claimed, the application may be dismissed pursuant to the rules of this court. The applicant and her litigation guardian were provided with a copy of the cost schedule and the consequences of any costs order made against her explained to the litigation guardian. The applicant’s litigation guardian confirmed that the applicant would continue with the application for judicial review of the RRT’s decision, dated 30 April 2014.
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 evidence by way of affidavit and submissions in support, by 3 October 2014. At the directions hearing, the applicant’s litigation guardian was also provided with the contact details of legal services providers and interpreting and translating services in documents in her own language and the matter was listed for hearing today pursuant to r.44.12 of the Rules. A copy of those rules was also given to the litigation guardian.
The applicant’s litigation guardian confirmed this morning that no documents have been filed by or on behalf of the applicant, either in accordance with those directions or otherwise, and that the applicant relied on the grounds identified in the application filed on 19 May 2014. Those grounds were as follows:
“1. At the hearing, the applicant’s mother did not have a fair opportunity to answer questions about and accurately present her religious knowledge because the applicant and the applicant’s brother were frequently crying
2. The applicant’s mother provided a clear explanation of a previous inconsistent response, but the Tribunal member unreasonably refused to accept the explanation and instead found the mother’s evidence to be not credible.
3. In post hearing submissions, the applicant’s agent provided a number of supporting documents from official governmental agencies, including the RRT. There was no reason for the Tribunal member to reject the evidence in these documents, or to prefer the information from DFAT referred to in his decision.”
Each of the grounds of the application was interpreted for the applicant and the applicant was invited to make submissions in support of each of the grounds.
The solicitor for the first respondent, Ms Blake, read the affidavit of the applicant’s litigation guardian, sworn 19 May 2014, annexing a copy of the RRT’s decision record. I note that paragraphs 4 to 6 of that affidavit were not read.
In relation to ground 1, the applicant had nothing to say.
Ms Blake directed the Court’s attention to a passage in the RRT’s decision record where it refers to a post-hearing submission by the applicant’s migration agent that the applicant’s mother was distracted by the applicant and her brother during the hearing.
The RRT noted that it carefully considered the responses given by the applicant’s migration agent in the agent’s submissions that the litigation guardian had given consistent evidence about the applicant’s father’s involvement in the local church and that the applicant’s mother is a genuine and committed member of the local church. However, the RRT was not persuaded that any of those factors explained or excused the concerns that it had identified in its decision record about the evidence, particularly, in the applicant’s claim that she would face discrimination in China because of her parents’ Christianity and that she would face harm as a result of being required to pay a compensation fee because the applicant was born outside China’s family planning laws.
In relation to the first claim, the RRT was not satisfied that either the applicant’s mother or her partner were genuine Christians and the RRT referred to inconsistencies in the evidence and the vague and general terms of the evidence. The RRT put its concerns to the applicant’s mother during the hearing and noted the mother’s responses. The RRT further put these concerns to the applicant in a letter sent to the applicant’s mother, pursuant to s.424A of the Migration Act 1958 (Cth) (“the Act”).
The RRT had regard to the post-hearing submission from the migration agent addressing the concerns that the RRT had raised, but was ultimately not persuaded by them.
There is nothing on the face of the RRT’s decision record to suggest those findings, including the adverse findings, were not open to the RRT on the evidence and material before it and for the reasons it gave. The RRT clearly had regard to the applicant’s mother’s allegation of distraction during the hearing but found that was not sufficient to explain or excuse the concerns which it had previously identified.
In relation to ground 2, I asked the applicant what she said was the inconsistency in respect of which she said was her explanation and which she contended had been unreasonably rejected by the RRT. The applicant was unable to identify any particular inconsistency and responded simply that the RRT had not believed her.
It is well established that the RRT is not required to accept the applicant’s evidence uncritically (see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). As stated above in these reasons, there is nothing to suggest that the RRT’s adverse findings in respect of the applicant’s litigation guardian’s evidence were not open to it, on the evidence and material before the RRT and for the reasons it gave.
The allegation in ground 3 appears to be a complaint that the RRT preferred country information from Department of Foreign Affairs and Trade (“DFAT”) to country information provided by the applicant.
It is well established that the country information to which the RRT has regard and the weight it gives that information is a matter for the RRT (see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10, and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29).
Again, there is nothing on the face of the RRT’s decision record to suggest that the RRT’s acceptance of the DFAT information, insofar as it was inconsistent with any country information provided by the applicant, was not open to it on the evidence and material before it and for the reasons it gave.
Otherwise, I accept as accurate the first respondent’s summary of the applicant’s claims and the RRT’s decision record as follows:
“9. The applicant's claims may be summarised as follows:[1]
[1] DR [9]-[35].
(i) in her application for a protection visa, the applicant claimed that her parents are from China and are not married. She and her older brother were born out of wedlock and her parents would have to pay a fee of 100,000RMB before they could register her birth. Her parents cannot afford to pay that sum. Accordingly, the applicant will be a black child and will suffer persecution. She would also suffer social and psychological pressure from the community because she was born outside the planning laws; and
(ii) further, the applicant's mother's family in China are members of the Local Church and her grandfather has been arrested and detained because of his involvement with an organisation that fights for the rights of the Local Church (namely, the Association of Chinese Christian Family Church). Her mother also attends church.
10. In the Tribunal decision, under the heading of "consideration of claims and evidence", the Tribunal set out (at [6]-[30]):
i. the applicant's mother's evidence in her previous protection visa application in 2011;
ii. the applicant's mother's evidence in the present application lodged by the applicant with the Department on 16 November 2012;
iii. the applicant's mother's evidence before a delegate of the Minister at an interview held on 20 March 2013; and
iv. the applicant's mother's evidence to the Tribunal given on 6 March 2014.
11. The Tribunal also set out in its decision the content of its section 424A letter[2] as well as the post hearing submissions made on behalf of the applicant. Those post-hearing submissions included:
[2] DR [31].
i. written submissions dated 24 March 2014 (which attached numerous country information reports);[3]
[3] DR [32].
ii. country information reports sent to the Tribunal on 27 March 2014;[4]
[4] DR [33].
iii. written submissions dated 1 April 2014 which responded to the Tribunal's section 424A letter;[5] and
[5] DR [34].
iv. written submissions dated 23 April 2014, which attached further country information.[6]
12. In relation to the above, the Tribunal made the following findings and comments:
(a) the applicant is a national of China and the Tribunal assessed her claims against that country;[7]
(b) as to the applicant's parents' religion:
i. even if it accepted that the applicant's mother and father were genuine and committed members of the Local Church, for the reasons set out below, the Tribunal did not accept that there is a real chance that the applicant would suffer harm;[8]
ii. it had serious concerns about the reliability of the applicant's mother's evidence. It found that the applicant's mother gave inconsistent evidence regarding the applicant's grandfather's involvement in the Local Church and unpersuasive evidence as to how she found the Local Church in Sydney in June 2010. Relevantly, the Tribunal found the applicant's mother's evidence regarding her knowledge of the Local Church and the reasons for being attracted to it over other churches to be vague and general;[9] and
iii. it did not accept that the applicant's mother or father are genuine or committed members of the Local Church. While the Tribunal accepted that the applicant's parents have attended the Local Church in Sydney that did not affect its conclusion that they are not genuine or committed members of the church. The Tribunal considered that if in the future they returned to China and wished to continue attending a church they could do so with no risk of them being harmed in any way for practising their Christian faith;[10]
[6] DR [35].
[7] DR [37].
[8] DR [38].
[9] DR [39].
[10] DR [40].
(c) as to the issue of registration in China:
i. it accepted that the applicant is the second child of her parents and that, like her older brother, she was born in Australia and her parents were not married at that time;[11]
[11] DR [42].
ii. it accepted that the applicant's parents would be subject to a social compensation fee and that the fee payable by her parents to register the applicant's birth including the fee payable to register the birth of her older brother would be a combined fee of between 53,666RMB and 83,592RMB; [12]
[12] DR [42]-[43].
iii. having considered the age of the applicant's mother and father and their work history, the Tribunal considered that, if it became necessary for them to do so in order to pay the social compensation fee, the applicant's parents both have the capacity to find work and between them share in the care arrangements of their 2 young children and together pay off the fee;[13]
iv. it did not accept that the applicant's father's family would not provide relevant support to the applicant's family in the event it became necessary;[14]
v. it considered that the chance of the applicant suffering harm for reasons of her being born outside the family planning laws in China to be remote and it did not accept that there is a real chance that she would suffer harm in connection with the application or enforcement of family planning laws in China;[15]
vi. it did not accept that the applicant would suffer serious harm through discrimination or social ostracism for being a child of unwed parents in a rural area;[16]
vii. the Tribunal did not accept that there is a real chance that the applicant would suffer serious harm for any reason if she returned to China now or in the reasonably foreseeable future. The Tribunal found that the applicant does not have a well-founded fear of persecution in China;[17] and
(d) as for the complementary protection criterion, the Tribunal found that there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that she will suffer significant harm.[18]
13. For the reasons set out above, the Tribunal affirmed the decision not to grant the applicant a protection visa.”
[13] DR [44].
[14] DR [45]-[46].
[15] DR [46].
[16] DR [48].
[17] DR [49].
[18] DR [50]-[54].
The applicant’s litigation guardian’s oral submissions in support of the grounds for review remain largely unparticularised and appear to be more in the nature of a disagreement with the findings and conclusions of the RRT. Such complaints invite merits review which this court cannot undertake (see 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).
A fair reading of the RRT’s decision record makes clear that the RRT explored the applicant’s claims with her mother in some detail at the hearing and, as stated above, put to her concerns it had about her evidence and noted her responses. The RRT also gave the applicant’s mother information in writing pursuant to s.424A of the Act in respect of information that the RRT was of the view may be the reason or part of the reason or affirming the decision under review and considered the response.
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 and none has been identified by the applicant’s litigation guardian. 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.
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 19 May 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules, with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 27 October 2014
Key Legal Topics
Areas of Law
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Administrative Law
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Immigration
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Jurisdiction
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