SZUNC v Minister for Immigration

[2016] FCCA 479

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUNC v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 479

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal applied incorrect legal test – whether the Tribunal failed to consider applicant’s claims that she would face harm in her country of nationality – whether Tribunal obliged to give to the applicant particulars of country information – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss.91R(1)(c), 91R(2), 424A, 424A(3)(a)

MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor [2006] FCA 1271
SZNXZ v Minister for Immigration and Citizenship [2010] FCA 573
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178

Applicant: SZUNC

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1620 of 2014

Judgment of: Judge Manousaridis

Hearing date: 12 March 2015

Delivered at: Sydney

Delivered on: 11 March 2016

REPRESENTATION

The applicant appeared in person assisted by an interpreter

Solicitors for the Respondents: Ms H Musgrove of Sparke Helmore

ORDERS

1. The application is dismissed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1620 of 2014

SZUNC

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant seeks judicial review of the decision of the second respondent (Tribunal) affirming a decision of a delegate of the first respondent (Minister) not to grant the applicant a Protection (Class XA) visa (Protection visa).

Applicant’s claims for protection

1. The applicant is a citizen of the People’s Republic of China (China). In a statement that formed part of her application for a Protection visa, the applicant claimed she feared harm because she is a Falun Gong practitioner, and because she breached China’s family planning regulations.[1]

   [1] CB54-64. The applicant’s husband also applied for a Protection visa but as a member of the applicant’s family unit. The applicant’s husband is not a party to these proceedings.

2. According to her statement, in September 1996, after leaving junior high school, the applicant began to practice Falun Gong with her parents. The practice helped her recover from the ill effects of a disease with which she was born, and for the remedy of which she had an operation when she was an infant. From 1997 the applicant was encouraged to “diligently” practice Falun Gong.[2] This enabled the applicant to find a job at a garment factory.

   [2] CB55

3. In 1999, when she was 16, the applicant and other workers at the garment factory received anti-Falun Gong education. The applicant was a “key education target” because she was an “active practitioner” of Falun Gong.[3] After voicing her support for the practice of Falun Gong to the factory secretary, the police arrested the applicant at her workplace. The applicant was taken for “questioning and education”,[4] and was detained for one week until her “mother bailed [her] out”.[5] The applicant was then fired from her job, and became enraged at her “unfair treatment”.[6]

   [3] CB55

   [4] CB55

   [5] CB56

   [6] CB56

4. The applicant decided to remain at home after her parents warned her not to act against the government. She remained at home until 2000 when the applicant returned to work as a hotel receptionist in the city. She worked at that business until it “went bankrupt” in May 2002. The applicant looked for other work but felt “pressure” because she did not have a diploma or experience. The applicant resumed practising Falun Gong and, eventually, she found a job as a cashier at an Internet café. While in this position the applicant met the man whom she married in April 2006.

5. In 2007 the applicant gave birth to her first child. In 2010 the applicant fell pregnant with her second child. The news was unwelcome. The applicant, however, decided to give birth to the baby despite the consequences. Accordingly, the applicant sought permission to have the baby from the neighbourhood committee, and expressed her willingness to pay the fine to have her child registered. While doing so, the applicant was detained by the police, and was told she would be released only if she underwent an abortion. The applicant was taken to the police station and then to the hospital, where she was locked inside a room. A nurse, however, helped the applicant escape. The applicant travelled to her mother’s home and then to her aunt’s house where she hid.  

6. When the time came for the applicant to deliver her baby, she went to the hospital. The applicant was initially denied treatment because she was unable to provide a birth permit certificate. The doctors eventually provided assistance, but the hospital refused to provide the applicant with a medical birth certificate.

7. After she left the hospital, the applicant was told she must pay a fine of RMB80,000 to the family control office. Because the applicant and her husband were unable to pay the fine, they were threatened with sterilisation. The applicant and her husband paid a bribe of RMB20,000 to an officer to get the applicant’s second child’s hukou registered. The officer, however, refused. The family control office subsequently found out about the applicant’s prior record, and demanded the fine be paid. The applicant’s parents-in-law sold their unit and, from the proceeds of sale, paid the fine and an additional RMB10,000.

8. Even though the fine was paid, the director of the family planning office and his officers visited the applicant’s home “every week or every two weeks”, and asked for more money.[7] The applicant and her husband were threatened with sterilisation if they did not pay. The applicant paid RMB58,000 to a friend to secure her a passport, and she and her husband left China in May 2011. The applicant’s parents informed the applicant after she arrived in Australia that the director and his officers continued to come to their home and harass her parents-in-law regularly. The director and officers threatened that if the applicant and her husband did not return, her children and parents-in-law would be arrested.

   [7] CB63

Tribunal’s reasons

1. The Tribunal accepted the applicant’s claims she was a Falun Gong practitioner, that she had come to the adverse attention of the authorities, and that she had been detained briefly when she was sixteen years of age because of her practice of Falun Gong.[8] The Tribunal, however, found the applicant had no further problems with the authorities because of her Falun Gong practice.[9] The Tribunal did not accept that Chinese authorities concluded the applicant was a leader, or that they maintained any adverse interest in the applicant because of her arrest when she was 16 years of age.[10]

   [8] CB187, [81]

   [9] CB187, [82]

   [10] CB188, [83]

2. The Tribunal also found that the applicant “has now ceased to practice Falun Gong”.[11] The Tribunal noted that, at the hearing before it, the applicant said she ceased practising Falun Gong because her family did not want her to practice it any more, given the trouble it had caused. That implied the applicant had ceased practising Falun Gong, at least in part, because she feared the consequences. The Tribunal noted, however, that although at a previous Tribunal hearing the applicant said she was more interested in the moral aspects of Falun Gong, at the hearing before the present Tribunal the applicant indicated she was more interested in the physical benefits the practice afforded. The applicant made it clear, not only that she had already ceased the practice of Falun Gong, but that she would not choose Falun Gong again. The Tribunal concluded:[12]

   Given that the applicant has ceased her practice of Falun Gong in Australia, where there is no suggestion that she faces any risk of serious harm as a consequence of such activities, the Tribunal finds that if the applicant returned to China she would not resume Falun Gong, and finds furthermore that the reason for this is not because of any threat of persecution or other fear of the consequences, but because of a lack of commitment to Falun Gong.

   [11] CB188, [85]

   [12] CB188, [85]

3. As to the applicant’s claims based on China’s family planning laws, the Tribunal noted that, although the applicant claimed in her application for protection that she feared being sterilised, at the hearing before the Tribunal the applicant did not in fact claim she feared being sterilised.[13] In any event, the Tribunal did not accept there was any more than a remote chance of the applicant’s being sterilised. The Tribunal relied on country information that, while acknowledging that forced sterilisation could conceivably happen under the Henan family planning regulations, sterilisation is illegal under Chinese law. The Tribunal also relied on the applicant’s not having been subjected, or not having been threatened to be subjected, to sterilisation at the time she gave birth to her second child.[14] Further, the Tribunal found that the amount of the outstanding fine that was due in relation to the birth of the applicant’s second child did not appear to be substantial.[15] The Tribunal noted the applicant said that the fine and bribe that was necessary to register the second child had been paid, but additional money was demanded. The Tribunal found that the outstanding money equated to a range of 9-18 months salary at the minimum wage.[16] The Tribunal concluded that the penalties the applicant faced for breaching the one child policy did not amount to serious harm for the purpose of s.91R(2) of the Migration Act 1958 (Cth) (Act); nor did it involve discriminatory conduct for the purpose of s.91R(1)(c) of the Act.[17]

   [13] CB188, [88]

   [14] CB189, [89]

   [15] CB189, [90]

   [16] CB190, [92]

   [17] CB 190, [95]

Grounds of application

1. In her application for judicial review, the applicant raised three grounds.

2. The first is:

   The Refugee Review Tribunal applied the wrong test in making the decision.

3. At the hearing before me, this ground was interpreted to the applicant, who is not legally represented, and I invited the applicant to make submissions in relation to the ground. The applicant said the Tribunal told the applicant that if she returned to China she would not be persecuted in any way; but the applicant feels she had been persecuted already. The applicant asked that if she were to return to China, and if she were persecuted again, what should she do about that? By that time, the applicant submitted, it would be impossible for the applicant to return to Australia.

4. Given the applicant is not legally represented, it is not surprising the first ground does not identify the test the applicant says the Tribunal applied, and the respects in which that test differed from the test the Tribunal ought to have applied. In my opinion, however, the Tribunal addressed the correct questions, namely, whether the applicant had a well-founded fear of persecution, and whether there were substantial reasons for believing there was a real risk the applicant would suffer significant harm if she were to return to China. It is true that, in answering these questions, the Tribunal did not discuss what it understood by “well-founded fear” and by “real risk”. I am satisfied, however, from its reasons for decision, that the Tribunal applied the correct tests for answering the two questions it asked itself.

5. The submissions the applicant made at the hearing do not disclose any jurisdictional error by the Tribunal. The submissions only state disagreement with the Tribunal’s conclusions about the risk of harm the applicant would face if she returned to China.

6. The first ground, therefore, fails.

7. The second ground of application is:

   The Tribunal failed to consider that if the applicant is deported from Australia she will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of Refugees.

8. This ground was also interpreted to the applicant at the hearing before me, but the applicant made no submission in relation to it.

9. The Tribunal considered whether the applicant would be at risk of being persecuted if she returns to China. The Tribunal found the applicant had not been the subject of any attention by the authorities since she was detained when she was 16 years of age, that the applicant had ceased practising Falun Gong, and had no intention of practising Falun Gong because she has no commitment to Falun Gong. The Tribunal also found that the amount of the penalty the applicant and her husband would be required to pay was not such as to constitute serious harm or discriminatory conduct.

10. The second ground, therefore, fails.

11. The third ground of application is:

    The Tribunal failed to put to the applicant for comment the independent country information on which it relied in making its decision.

12. In relation to this ground, which was also interpreted to the applicant, the applicant submitted that the Tribunal member had no knowledge, and that the Tribunal member decided the application based on his own knowledge. The applicant submitted the Tribunal member did not have good knowledge of the Falun Gong situation in China.

13. The Tribunal referred to country information concerning Falun Gong,[18] family planning laws in Henan,[19] obtaining a Chinese passport,[20] and minimum wage levels in China by province, city, and district.[21] The only country information on which the Tribunal relied adversely to the applicant concerned wage levels, and forced sterilisation being illegal in China.

    [18] CB183-184, [73]

    [19] CB184-186, [74]

    [20] CB186, [75]

    [21] CB189-190, [92]

14. The Minister submits that, because of s.424A(3)(a) of the Act, the Tribunal was not required to give to the applicant particulars of the country information on which it relied. Subsection 424A(3)(a) of the Act provides that s.424A does not apply to information that is “not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member”. That subsection has been construed as excluding information that is not specifically about the applicant or about another person, whether or not the information is also about a class of persons that includes the applicant or another person.[22]

    [22] VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 at [14]: “The reference to the class of persons in subs 424A(3)(a) is not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as a reference to all individuals falling within it”.

15. The Minister’s submission assumes that s.424A of the Act is an exhaustive statement of the Tribunal’s obligations to inform an applicant of information on which the Tribunal intends to rely. Thus, if information falls within s.424A(3)(a) of the Act, the Minister’s submission assumes that the Tribunal has no other obligation to disclose information to the applicant. In VJAF v Minister for Immigration and Multicultural and Indigenous Affairs, the Full Federal Court suggested “there may be occasions on which the Tribunal remains subject to general law obligations of procedural fairness despite having satisfied its statutory obligations”.[23] It has been held, however, that if information falls within s.424A(3)(a) of the Act, the Tribunal is otherwise under no duty to disclose the information to the applicant. Thus, in MZXCV & Ors v Minister for Immigration and Multicultural Affairs & Anor, Middleton J said:[24]

    It appears clear that s 424A is an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with and excludes other common law principles: s 422B and see SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493; (2005) 148 FCR 302 and Lay Lat v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 61 at [60]–[70].

    [23] [2005] FCAFC 178 at [19]

    [24] [2006] FCA 1271 at [21]

16. In SZNXZ v Minister for Immigration and Citizenship Nicholas J said:[25]

    It is well settled that the effect of s 424A(3)(a) is to exclude country information from the requirements of s 424A(1): Minister for Immigration and Multicultural Affairs and Indigenous Affairs v NAMW [2004] FCAFC 264; (2004) 140 FCR 572 at [64]–[74] and [138]; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 at [11]–[16]. Accordingly, the Tribunal was not obliged to provide the independent country information to the appellant for comment.

    [25] [2010] FCA 573 at [17]

17. The third ground, therefore, cannot succeed because the country information on which the applicant relies was information that fell within s.424A(3)(a) of the Act, and the Tribunal was under no obligation to disclose that information to the applicant.

18. I do not accept the submission the applicant made to me that the Tribunal decided the application based on its own knowledge. It relied on the country information to which it referred.

Conclusion and disposition

1. The applicant has not established any of the three grounds on which she relies. I propose, therefore, to order that the application be dismissed. I also propose to order the Administrative Appeal Tribunal be substituted for the Tribunal as the second respondent.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  11 March 2016