SZUMR v Minister for Immigration

[2017] FCCA 1781

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUMR & ANOR v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1781

Catchwords:
MIGRATION – Migration Act 1958 (Cth) – application for judicial review of decision of Administrative Appeals Tribunal affirming delegate’s decision not to grant protection visas to applicants – application in this Court alleged bias and disregard of evidence and invoked merits review not available in this Court – no jurisdictional error affecting Tribunal’s decision – application for judicial review dismissed.

Legislation:

Migration Act 1958 (Cth), s.36

Migration Regulations 1994 (Cth)

Cases cited:

ABX15 v Minister for Immigration and Border Protection [2016] FCA 855

BAX15 v Minister of Immigrationand Border Protection [2016] FCA 491

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668

SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574

First Applicant: SZUMR

Second Applicant: SZUMR(B)

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1567 of 2014

Judgment of: Judge Dowdy

Hearing date: 12 October 2016

Delivered at: Sydney

Delivered on: 3 August 2017

REPRESENTATION

The First Applicant appeared in person.

The Second Applicant appeared through the First Applicant as her Litigation Guardian.

Counsel for the Respondents: Ms E Warner Knight

Solicitors for the Respondents: Australian Government Solicitor

THE ORDERS OF THE COURT ARE AS FOLLOWS:

1. The Application filed in this Court on 10 June 2014 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1567 of 2014

SZUMR

First Applicant

SZUMR(B)

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The First Applicant in this proceeding is a female citizen of China aged 28 years, having been born on 3 April 1989, and is the litigation guardian of the Second Applicant for the purposes of this proceeding.

2. The Second Applicant is a female citizen of China aged 4 years, having been born on 13 April 2013 at Fairfield Hospital in Sydney, and is a member of the First Applicant’s family unit under reg.1.12 and a dependent for the purposes of a protection visa application under reg.1.05A(2)(d) of the Migration Regulations 1994 (Cth) (the Regulations) because she is a dependent child of the First Applicant.

3. By Application filed in this Court on 10 June 2014, the First and Second Applicants (collectively Applicants) seek to quash and have redetermined a decision of the Second Respondent, the Administrative Appeals Tribunal (at the time of decision the Refugee Review Tribunal) (Tribunal) dated 16 May 2014 which affirmed a decision dated 13 August 2013 of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister) refusing to grant to them a Protection (Class XA) visa (Protection visa). 

4. The First Applicant applied in China for a Student visa on 28 May 2008 and this was refused on 8 August 2008.

5. The First Applicant then arrived in Australia from the United Kingdom on 20 October 2010 on a Tourist (Subclass 676) visa which expired on 20 January 2011. The First Applicant then became an unlawful non-citizen for some 21 months until she was issued a Bridging Visa C on 18 October 2012 in association with the lodging on that date of her Protection visa application which is the subject of this proceeding.

6. The Second Applicant was included in the First Applicant’s Protection visa application as a dependent family member on 22 May 2013 but made no protection claims in her own right.

Claims for Protection

1. In her Personal Statement which formed part of her Protection visa application the First Applicant claimed in substance as follows:-

   a)she was scared of going back to China because she was persecuted by the Chinese government for her belief in Christianity;

   b)both of her parents are devoted Christians and she was told Bible stories when she was a young child;

   c)the Chinese government did not allow the preaching of Christianity in public;

   d)the Chinese government regarded the family churches which her family attended as illegal and those who went to them were persecuted;

   e)on 20 August 2007 five policemen had broken into a home where a family church was being conducted by the studying of the Bible. Study and Bible notes were confiscated and the Applicant had to sign a statement of apology and promise to pay a fine of 1,000 RMB. She refused to write anything against God and the police began to beat her up. The Applicant’s father refused to sign any document and he was detained for 15 days on the accusation of participating in evil cult activities;

   f)in July 2008 she told her parents that she would like to go to study in England. She went to England for study purposes in August 2009 where she was able to take part freely in church activities. In England she collected some materials on Christianity and emailed them to her father because it was not possible for him to get such materials in China at all.

   g)she left England in October 2010 and came to Australia to see her boyfriend. In early January 2011 she received a telephone call from her mother who told her that her father had been arrested by the Chinese police on 25 December 2010 when he was celebrating the birth of Jesus and that they tortured him. He was sentenced to a 1 year re-education course; and

   h)although she would like to go back to China to reunite with her parents, she could not because she was scared of being persecuted by the Chinese government.

Relevant Criteria and Law Applicable to Protection Visa Applications

1. A convenient summary of the grounds and criteria for the grant of a Protection visa can be found in the judgment of Wigney J in SZUIJ v Minister for Immigration and Border Protection [2016] FCA 1574 at [5]-[7] as follows:

   [5]The criteria for the grant of a protection visa are well known. At the time the appellant applied for a protection visa, s 36(2)(a) of the Migration Act 1958(Cth) provided that a criterion for a protection visa was that the appellant was a non-citizen in Australia in respect of whom the Minister was satisfied Australia had protection obligations under the Refugees Convention. In simple terms, Australia has protection obligations under the Refugees Convention in respect of a person who is outside their country of origin and who is unable or unwilling to avail themselves of the protection of that country, or to return there, on account of them having a well-founded fear of persecution based on reasons of race, religion, nationality, membership of a particular social group, or political opinion.

   [6]Section 36(2)(aa) of the Act provided an alternative criterion known generally as the complementary protection criterion. A person met the complementary protection criterion if the Minister was satisfied that Australia had protection obligations because the Minister had substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there was a real risk that the non-citizen would suffer significant harm.

   [7]The remaining subsections of s 36 and subdivision AL of the Act contained additional provisions about protection visas, including provisions that defined or explained various expressions used in s 36(2)(a) and (aa), such as “significant harm” and “persecution”.

Decision of Delegate

1. The Applicant attended an interview with the Delegate on 6 June 2013.

2. By her Decision Record of 13 August 2013 the Delegate refused to grant Protection visas to the Applicants as she was not satisfied that Australia had protection obligations to them under s.36 of the Migration Act 1958 (Cth) (the Act) and cl.866.221 of Schedule 2 to the Regulations.

3. In her Decision Record, the Delegate summarised the Applicants’ claims for protection. However, in particular the Delegate:-

   a)did not consider that the First Applicant’s knowledge of Christianity was commensurate with a person who had been deeply connected to Christianity since childhood;

   b)did not accept the First Applicant’s claims that her father was detained for 15 days in August 2007 because he was worshipping with a group of 8 other Christians and did not consider that the two documents provided by the First Applicant to support the claim of her father’s detention in 2007 were genuine but rather considered them to be false;

   c)did not accept the First Applicant’s claim that she had sent illegal documents to her father in China by email;

   d)did not consider that the First Applicant had adequately explained the delay of 24 months between her arrival in Australia and the lodging of her Protection visa application;

   e)because of the First Applicant’s delay in making an application in Australia for a Protection visa nearly 2 years after having arrived in Australia, was not satisfied that she genuinely feared persecution in China;

   f)was not satisfied that the First Applicant faced a real chance of being subject to significant harm should she return to China.

4. Accordingly the Delegate refused to grant the First Applicant a Protection visa and consequently also refused to grant a Protection visa to the dependent Second Applicant.

Tribunal Hearing and Decision Record

1. The First and Second Applicants applied to the Tribunal on 9 September 2013 for review of the Delegate’s decision. On 10 April 2014 they appeared before the Tribunal to give evidence and present arguments with the assistance of an interpreter in the Mandarin and English languages.

2. In [9]-[16] of its Decision Record, the Tribunal set out the substance of the First Applicant’s claims for protection and noted that she had first arrived in Australia on a Student visa on 20 October 2010, after previously living in the United Kingdom from August 2009 until October 2010. The Tribunal recorded that the First Applicant claimed to be a Christian and that she had gone in China to family churches every weekend and had been exposed to Christianity since an early age. It referred to the claim that on 20 August 2007 Chinese police stormed a family church gathering and that she had been detained, had to sign a statement and was then released with other members of her family after having paid 1,000 RMB. The Tribunal further recorded that in January 2011 the First Applicant had learned from her mother that her father had been arrested on 25 December 2010, tortured and sent to re-education for one year. The Tribunal also recorded that the First Applicant claimed to have emailed Christian material to her father in China when she was living in the United Kingdom.

3. In the result, the Tribunal affirmed the decision of the Delegate not to grant a Protection visa to either the First or Second Applicant.

4. From [19]-[47] of its Decision Record the Tribunal recorded evidence given by the First Applicant at the Tribunal hearing. At [24] the Tribunal noted that the First Applicant claimed to fear that she would be arrested if she returned to China and that she and the Second Applicant would face discrimination given that the Second Applicant had been born out of wedlock.

5. At [48] of its Decision Record, the Tribunal referred to documentation forwarded by the First Applicant to the Tribunal after the hearing of 10 April 2014. Then from [49]-[53] the Tribunal considered relevant country information.

6. From [58]-[87] the Tribunal set out its analysis and assessment of the protection claims of the First and Second Applicants.

7. From [57]-[60] the Tribunal dealt with the Applicant’s delay in lodging a Protection visa application. It found that the failure to lodge a Protection visa application at an earlier juncture was inconsistent with a subjective fear of persecution for reasons of the First Applicant’s religion. It also noted her failure in this connection to claim protection when she was in the United Kingdom.

8. I note at this point that it was open to the Tribunal to regard delay as a relevant consideration. In BAX15 v Minister of Immigrationand Border Protection [2016] FCA 491 Perry J at [41]-[42] stated the principles concerning the relevance of delay in lodging an application for a protection visa as follows:

   [41]In my view, the appellant’s delay in applying for a visa is not an irrelevant consideration. Rather, in line with the principles identified in the joint judgment in Yusuf, the significance attributed to that delay constitutes a part of the Tribunal’s process of making a particular finding of fact upon which the Tribunal has acted, namely, in reaching a view as to whether it was satisfied that the appellant has a subjective fear of persecution and otherwise in assessing his credibility.

   [42]Nor do I consider that the Tribunal in having regard to this delay in reaching a view on these matters was acting unreasonably or irrationally. For example in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 349, Heerey J said with respect to a similar line of reasoning:

   ...the applicant complained of the tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicants alleged fear of persecution. It is a rational consideration open on the material.

9. At [60] the Tribunal found that the Applicant did not have a subjective fear of persecution in relation to her claims on religion.

10. From [61]-[75] of its Decision Record the Tribunal considered the First Applicant’s claims to be an adherent of Christianity. At [61]-[62] of its Decision Record the Tribunal, based partly on the First Applicant’s demeanour in giving evidence at the Tribunal hearing, found a discrepancy in that evidence, in relation to taking a real personal interest in Christianity in a rebellious period in her teenage years, and her claims in her Protection visa application. It found that the First Applicant had invented her story about her religious conversion to form the basis of a claim for protection for reasons of religion. The Tribunal recorded that it did not believe the First Applicant’s account given at the Tribunal hearing of her greater sudden interest from around 2006 in Christianity. At [64] the Tribunal found that her knowledge of Christianity was not a reliable indicator of her genuine Christian belief and that her evidence in this regard was memorised for the purpose of strengthening her claim. It found that her evidence in relation to Christianity was not credible and at [65] the Tribunal recorded its finding that the First Applicant’s knowledge of Christianity was rehearsed for the purposes of establishing her claim to protection and that her evidence in this regard was memorised, lacked spontaneity and detail and was not demonstrative of a genuine faith in Christianity.

11. At [68] the Tribunal came to its ultimate conclusion on this issue, namely that it did not accept that the First Applicant was a genuine practising Christian.

12. At [70]-[71] the Tribunal found that the First Applicant had not been arrested or detained with her father and mother in China and had not been involved in any church activities in Australia or China which would attract the adverse interest of the Chinese authorities now or in the reasonably foreseeable future. The Tribunal also rejected the First Applicant’s claim that she had sent religious materials to her father in China.

13. At [73] of its Decision Record the Tribunal found that the First Applicant had never been arrested, detained or suffered serious harm in China for reasons of her religion and it gave no weight to the documents provided by the First Applicant after the Tribunal hearing.

14. At [74]-[75] the Tribunal stated as follows:

    [74]The Tribunal further notes that the applicant was able to depart China legally without difficulty. Given these factors and the Tribunal’s finding that the applicant is not a genuine practicing Christian, the Tribunal finds that there is no real chance the applicant will face persecution in the PRC for reasons of her religion.

    [75]The Tribunal is not satisfied that the applicant will be targeted or mistreated by the authorities in China for being a genuine practicing Christian, and is not of any interest to the authorities in the PRC given his (sic) ability to depart legally. Given that this is the central element of her claim, the Tribunal finds that there is insufficient credible evidence upon which to make a finding that the applicant is a Convention refugee for reasons of her religion. The Tribunal therefore gives the applicant’s Baptismal Certificate and photographs submitted after the hearing no weight.

15. From [76]-[84] the Tribunal dealt with the First Applicant’s claims that she would face hardship in China from paying the social compensation fee for giving birth to the Second Applicant out of wedlock. In this regard, the Tribunal found that the First Applicant would not be singled out or differentially treated by the Government of China because the First Applicant would incur a fine for contravening a law of general application of a non-discriminatory nature applying to all Chinese citizens. Further, the Tribunal found that the First Applicant, having regard to her skills and work experience, would be able to pay the social compensation fee, which in any event was payable in instalments and was based on family income and found that the Second Applicant would have access to education, medical care and social programs and that the payment of the social compensation fee would not amount to persecution for a Refugees Convention reason.

16. At [87] the Tribunal found that it was not satisfied on the evidence that there was a real risk of significant harm for either of the Applicants in relation to the complementary protection criterion under s.36(2)(aa) of the Act.

17. Accordingly, the Tribunal affirmed the Delegate’s decision not to grant Protection visas to the Applicants.

Grounds of Attack on Tribunal Decision in this Court

1. The Grounds relied upon by the Applicants are as follows:

   1. RRT disregard my knowledge of Christianity for no reason.

   2.RRT disregard my evidence I submitted which was requested by RRT.

   3.RRT has bias against me as RRT has judgment about my relationship.

   4.RRT says I can apply for Partner visa which is irrelevant to my protection visa application.

Consideration

Ground 1

1. This Ground appears to simply argue with the Tribunal’s decision and invoke a merits review which is not available in this Court.

2. The First Applicant’s primary claim to protection was that she had a well-founded fear of persecution for reasons of religion, namely her belief in and practise of Christianity. Whilst the Tribunal cannot act as an “arbiter of doctrine” by setting up its own standard of what amounts to genuine religious belief or practice, there was no impediment to the Tribunal testing and evaluating the First Applicant’s claim to be a Christian. As Flick J in the Federal Court stated in ABX15 v Minister for Immigration and Border Protection [2016] FCA 855 at [24]:

   The manner in which the Refugee Review Tribunal set out to test the Applicant’s claim to be a Christian was a function entrusted to it.  There was no impediment to the Tribunal testing the claim being advanced.  An assertion on the part of the Applicant that he was a Christian did not manacle the Tribunal to the confined task of simply testing whether he had been baptised or attended church.  The Applicant by making the claim could not preclude the Tribunal from testing the more fundamental assertion of fact as to his Christian belief.  In testing the claim being made, the Tribunal moreover did not seek to impose upon the Applicant any preconceived views as to the beliefs a person would have to hold in order to be a Christian; it was simply testing the claim made.

   For a general discussion of this area of the law, see Minister for Immigration and Citizenship v SZLSP (2010) 187 FCR 362.

1. Unfortunately for the First Applicant, for reasons which in my view are not affected by legal unreasonableness, illogicality or irrationality, the Tribunal did not accept that the First Applicant was a genuine practising Christian. As evidenced by its Decision Record, the Tribunal gave a full and considered analysis and evaluation of the First Applicant’s claims in this regard but ultimately was unconvinced of their truth.

2. Accordingly, Ground 1 fails to establish jurisdictional error.

Ground 2

1. At the Tribunal hearing on 10 April 2014 the First Applicant tendered and relied upon a number of documents including her certificate of baptism of herself dated 24 April 2011 from the “Chinese & Australian Baptist Church – West Ryde”, pages from the First Applicant’s passport and a supporting letter. Then on 16 April 2014 the First Applicant sent two letters to the Tribunal enclosing further documentation which included supporting letters, photographs and translations of a Warrant Certificate and Certificate of Release of her father as detainee dated 20 August 2007 and 4 September 2007 respectively.

2. Contrary to this Ground, there is no evidence that the Tribunal disregarded any of this body of documentary material relied upon by the First Applicant. The documents forwarded under cover of the letters of 16 April 2014 and received by the Tribunal on 17 April 2014 were specifically referred to and summarised at [48] of the Decision Record and specific documents were considered and evaluated by the Tribunal at [72]-[73] and [75] of its Decision Record. There does not appear to be any evidence that the Tribunal at the hearing on 10 April 2014 requested the First Applicant to provide further evidence and she did not tender any transcript of the Tribunal hearing to establish such a request. This was notwithstanding that consent order 3 of the Orders of the Court of 7 July 2014 had required the First Applicant to file and serve a transcript of the Tribunal hearing on or before 8 September 2014 if she wished to rely on such a transcript.

3. This Ground also fails to establish jurisdictional error.

Ground 3

1. This wholly unparticularised Ground also fails in establishing jurisdictional error or any procedural unfairness. At the hearing the First Applicant asserted that the Tribunal was “biased against my private life”.

2. A charge of bias is of a serious nature and there is no evidence at all that the Tribunal member was biased or denied the Applicants procedural fairness. No transcript of the hearing has been tendered which would have a tendency to establish any form of bias.

3. Actual or apprehended bias are matters that go to procedural fairness and the denial of procedural fairness on the part of an administrative decision-maker such as the Tribunal may result in jurisdictional error justifying an order that a decision be set aside: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 91 [17] per Gaudron and Gummow JJ; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 357 [48] per Hayne, Kiefel and Bell JJ.

4. This Ground does not make clear whether actual bias or apprehended bias is alleged by the Applicants. In the circumstances, I consider it sufficient to state that there is no evidence of actual bias in the form of prejudgment or otherwise and there is no evidence that a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the decision-making process: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 per Gleeson CJ, McHugh, Gummow and Hayne JJ.

5. Further, the face of the Tribunal’s Decision Record does not indicate or demonstrate any prejudgment or actual bias or give rise to any reasonable apprehension of bias on the part of the Tribunal member: SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38] per von Doussa J.

6. There is also no evidence of procedural unfairness or breach of the rules of natural justice. The Applicants have consequently failed to make out this Ground.

Ground 4

1. There is also no basis to this Ground. There is no evidence that the Tribunal ever told or asserted to the First Applicant that she could apply for a Partner visa.

2. At [19]-[20] of its Decision Record, the Tribunal noted discussion which arose relating to the First Applicant’s relationship with her current Australian boyfriend in the context of the Tribunal’s questioning about her failure to seek protection in the United Kingdom and then in Australia. At [20] the Tribunal recorded the First Applicant as stating in substance as follows, in connection with her current boyfriend:-

   He is currently studying and is an Australian citizen. She does not know when he became a citizen. They are verbally engaged and he “has kind of made a promise”. No sponsorship has been lodged as she would have to leave Australia. They plan to marry later this year. They will lodge a sponsorship application later. She denied that she was awaiting the outcome of the review application before lodging a Partner visa application.

3. This Ground fails. Whether the First Application might or might not later lodge a Partner visa application was irrelevant to and not part of the Tribunal’s reasons for failing to be satisfied that the Applicants did not meet the criteria set out in either s.36(2)(a) or s.36(2)(aa) of the Act.

Conclusion

1. The Applicants have failed to establish that the Tribunal’s decision is affected by jurisdictional error and the Application filed in this Court is to be dismissed.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Dowdy

Date:     3 August 2017