SZUOH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 826
•29 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
SZUOH v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 826
File number(s): SYG 1711 of 2014 Judgment of: JUDGE HUMPHREYS Date of judgment: 29 April 2021 Catchwords: MIGRATION – Administrative Appeals Tribunal – protection (class XA) visa – whether the decision of the Tribunal was infected by irrationality, illogicality or legal unreasonableness – Whether the Tribunal’s failure to disclose the existence of s 438 Certificate amounts to jurisdictional error – no jurisdictional error is made out – the application is dismissed. Legislation: Migration Act 1958 (Cth) ss 5, 36
Migration Regulations 1994 (Cth) reg 2.08(1)
Cases cited: Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Singh v Minister for Immigration and Border Protection [2016] FCAFC 183
WZAVW v Minister for Immigration and Border Protection [2016] FCA 760
Number of paragraphs: 38 Date of last submission/s: 15 April 2021 Date of hearing: 15 April 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person. Counsel for the Respondents: Ms Hooper ORDERS
SYG 1711 of 2014 BETWEEN: SZUOH
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE HUMPHREYS
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.The name of the First Respondent be changed to the Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs.
2.The name of the Second Respondent be changed to the Administrative Appeals Tribunal.
3.The application is dismissed.
4.The Applicant to pay the First Respondent’s costs, fixed in the amount of $6646.00.
REASONS FOR JUDGMENT
JUDGE HUMPHREYS
INTRODUCTION
The applicant is a female citizen of China. The applicant first arrived in Australia in July 2007 on a student visa.
In October 2009, the applicant lodged a partner visa application. This application was refused in September 2010. The applicant divorced her former husband on 9 July 2011. The applicant remained unlawfully in Australia until 17 April 2013, when she was located by Departmental staff.
On 30 April 2013, the applicant applied for a Protection (Class XA) Visa. The applicant gave birth to a child in Australia on 27 February 2014.
A delegate of the Minister for Immigration (“the delegate”) refused to grant the applicant a protection visa on 14 November 2014. The applicant sought merits review in the then Refugee Review Tribunal (“the Tribunal”). In a decision dated 20 May 2014, the Tribunal affirmed the decision not to grant the applicant her protection visa.
The applicant sought judicial review in this Court. On 30 January 2017, after a short hearing, Orders were made by this Court (differently constituted) that the matter should await determination of a special leave application to the High Court in the matter of Singh v Minister for Immigration and Border Protection [2016] FCAFC 183.
Following a request dated 9 April 2020, the matter was taken out of abeyance and subsequently listed before this Court for final hearing.
THE ADMINISTRATIVE APPEALS TRIBUNAL DECISION
After setting out the relevant history, at paragraph 10 of its decision, the Tribunal noted the applicant’s claims as follows:
•I am worried that if I go back to China my parents will not support me and have disowned me. I will have nowhere to live.
•Because I had been divorced this is against my culture so if I go back to my country my family will not support me and I will not be able to get married again. I will not be able to get employed.
•My ex-husband’s family lives in China and they have threatened to hurt me if I ever come back to China. I fear for my safety.
•My ex-husband took all the money after the divorce and I have no savings so if I go back to China I will live on the street.
At paragraph 11 of its decision, the Tribunal noted that when the applicant was asked who would harm or mistreat her if she returned to China, she said that her ex-husband’s family have threatened to harm her. When the Tribunal asked the applicant why she thinks this will happen to her, the applicant stated that “her parents have told me already” and that “my ex-husband’s family has verbally threatened to physically harm me”.
At paragraph 12 of the Tribunals decision, the applicant indicated that she came from a village in a remote area of China, that her parents would not accept her divorce and that they would not support her if she returns to China. At paragraph 13 of the Tribunals decision, it was noted that the applicant stated that she had not been threatened directly by her ex-husband’s family, but that her parents called her ex-husband’s grandparents in Shanghai and an argument ensued over the telephone. The applicant’s parents advised the applicant that her former husband’s grandparents “would do this and do that” to her if she returned to China.
The Tribunal noted, at paragraph 14 of its decision that the grandparents of the applicant’s former husband would be in their 80’s now. The applicant agreed with this but claimed that there were other relatives of her former husband’s family that she was worried about. The applicant acknowledged that her former husband’s parents live in Australia, as does her former husband.
At paragraphs 21 through to 23 of its decision, the Tribunal noted the applicant’s current domestic situation as regards her boyfriend, being the father of her child. The applicant stated that her parents had cursed her when they found out she had a child to her current boyfriend. At paragraph 26 of its decision, the Tribunal noted that the applicant did not raise any other reasons for fear if she were to return to China.
At paragraphs 33 and 34 of its decision, the Tribunal found that not all of the applicant’s claims were credible. The Tribunal acknowledged that the applicant felt aggrieved by the actions of her former husband. However, the Tribunal was not satisfied that the applicant’s claims, that she will suffer harm from the family of her ex-husband if she returns to China, to be credible or plausible. The Tribunal was not satisfied, even if the applicant returns to China with a child born out of wedlock, that she would have a real chance of suffering serious harm for the purpose of s 36(2)(a) of the Migration Act 1958 (Cth) (“the Act”) or significant harm for the purpose of s 36(2)(aa) of the Act.
At paragraph 35 of its decision, the Tribunal concluded that the applicant was unable to plausibly explain why the relatives of her former husband would harm her if she were to return to China. The applicant confirmed that the only time she was threatened was the year she and her husband broke up. The applicant gave evidence that the grandparents of her ex-husband were in their late 70s or early 80s. Whilst the applicant’s ex-husband had other relatives in China, she had never met these people. The Tribunal had difficulty understanding why, given the passage of time, and the fact that the applicant had separated from her ex-husband some years before, the relatives of her ex-husband would have any interest in harming her if she was to return to China, or that they would even be aware that she had returned to China.
The Tribunal noted, at paragraph 38 of its decision, that the applicant made a claim that her father had been hit by a motorbike and broke his leg. The applicant claimed that this was related to the dispute with her ex-husband’s family and that it was deliberate. The Tribunal noted that this had not been previously mentioned. After the hearing, the applicant provided what was said to be medical certificates in relation to her father. The certificates were copies and were provided to the Tribunal in translated form. Whilst the Tribunal was prepared to accept the applicant’s father may have been injured in a motorcycle accident and required medical treatment, it was not prepared to accept that the applicant’s ex-husband had threatened to kill her, or that they were responsible for deliberately injuring her father in a motorcycle accident.
At paragraph 42 through to 52 of its decision, the Tribunal considered the applicant’s claims that she would suffer harm because she is divorced, has a child out of wedlock and would be unable to support herself if she were returned to China. The Tribunal accepted that the applicant’s child was born out of wedlock in breach of the Fujian family planning regulations, which impose penalties for giving birth to a child out of wedlock. This would involve the payment of a penalty. Country information and the Department of Foreign Affairs and Trade (‘”DFAT”) indicated that “out of plan children can obtain household registration, or “Hukou” which entitles them to government funded public education and subsidised healthcare. This may require the parents to pay an appropriate social compensation fee. The Tribunal did not accept the applicant’s claims that she could not register the child’s hukou at her parent’s family home. The Tribunal accepted that the applicant may encounter some disapproval because she was divorced and had had a child out of wedlock, but was not prepared to accept that this would rise to the level of serious harm or significant harm. The Tribunal was satisfied that if the applicant were to return to China without her boyfriend, and without the support of her family, the applicant’s boyfriend would continue to provide the applicant and their child with financial assistance sufficient to avoid serious financial hardship.
At paragraph 48 of its decision, the Tribunal, by reference to country information, noted that many marriages in China result in divorce. The Tribunal did not accept that the applicant would face harm for this reason. The Tribunal was satisfied that as the applicant had a child out of wedlock, she may face some level of social disapproval but this would not rise to the level of serious harm or any of the types of significant harm set out in s 36 and s 5 of the Migration Act 1958 (Cth) (“the Act”).
At paragraphs 53 through to 56 of its decision, the Tribunal considered complimentary protection considerations, but, for the same reasons as discussed above, was not satisfied that the applicant was entitled to protection under s 36(2)(aa) of the Act.
GROUNDS OF JUDICIAL REVIEW
The grounds of judicial review are set out in an Initiating Application filed with the Court on 21 July 2014. They are as follows verbatim:
Ground one
On the basis of all reliable evidence before it, the Refugee Review Tribunal (the Tribunal) has unreasonably concluded that the applicants are not persons in respect of whom Australia has protection obligations. In my case, I claimed fear of persecution with the reliable reason which establishes the genuineness of the asserted fear that it is “well-founded”. I fear harm in China in because if I return to China, I will suffer harm from the family member of my ex-husband.
Ground two
I am divorced and have had a child of wedlock. My child cannot be registered in China as he was born out of wedlock in breach of Fujian family planning regulations. I am unable to pay social compensations fees in respect of my children, so he will be discriminated and persecuted. Since we belong to ‘the same family unit’, in my case, the Tribunal should have considered his situation with fair and justice.
Ground three
The Tribunal did not fairly consider whether the applicant is eligible for complimentary protection. In my case, the applicant faces a real risk of serious persecution being carried out and that the applicant will be arbitrarily deprived of life in China. If I return to China, the possibility that I will be hurt by family member of my ex-husband is very high. What happened to my father is evidence. Also, my child will be discriminated. These real risk of harm and hardship in the reasonable foreseeable future in China are ignored by the Tribunal.
THE APPLICANT’S SUBMISSIONS
The applicant appeared before the Court unrepresented. The applicant was assisted by an interpreter. Prior to the commencement of the hearing, the Court ensured that the applicant was in possession of the relevant Court books and that a copy of the first respondent’s written submissions had been interpreted to her. The Court also ensured that the applicant had access to a pen and paper so that she could take written notes during the course of the hearing, should she wish to.
At the commencement of the hearing, the Court discussed with the applicant that it was undertaking judicial review, not merits review, and the difference between the two types of review.
Despite Court Orders, no written submissions or other material was provided by the applicant in support of her application. In an Affidavit sworn by the applicant on 23 June 2014, the applicant stated as follows:
•I was born in Fujian, China on the day XXXX 1990
•I arrived in Australia on XX/7/2007.
•I fear for my safety. If I come back to China, my ex-husband’s family will hurt me.
The Court notes that the precise dates have been redacted to ensure the applicant’s anonymity in these proceedings.
The applicant stated that she was confused and did not know what to say to the Court. The Court also ensured that the contents of the Affidavit of Nicole Maddocks, solicitor, was translated to the applicant. This Affidavit attached a redacted version of the material that was the subject of the Certificate and Notification Regarding the Disclosure of Certain Information pursuant to s 438 of the Act before the Tribunal. The applicant was asked if she wished to say anything about the material contained within the Affidavit and how it may have affected the outcome of her case had she known about it at the Tribunal hearing. The applicant stated that she had nothing further to say. Following the first respondent’s oral submissions, the applicant was again asked if she wished to say anything further on her matter. The applicant again replied “No”.
THE FIRST RESPONDENT’S SUBMISSIONS
In relation to ground one, it was submitted that this ground, in substance, seeks impermissible merits review of the Tribunal’s decision. It is submitted that the Tribunal’s decision is not unreasonable due to irrationality or illogicality, with regard to the stringent test as set out in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 (“SZMDS”) at [131].
It was submitted that the Tribunal considered the applicant’s claims in full and on the basis of its adverse credibility finding, rejected the applicant’s claims. This was reasonably open to the Tribunal on the evidence. It was submitted that any argument by the applicant to the contrary arises only from a difference of “degree, impression and empirical judgement” which cannot give rise to jurisdictional error on the part of the Tribunal: see SZMDS at [78] per Heydon J.
In relation to ground two, it was submitted that the Tribunal complied with its obligations in Division 4 Part 7 of the Act. The ground alleges that the Tribunal should have considered the applicant’s child’s fear of harm in China. The applicant’s child was born in February 2014, after the delegate’s decision had been made. The applicant’s child was therefore not deemed to have an application for a visa. This is not a case where reg 2.08(1) of the Migration Regulations 1994 (Cth) (“the Regulations”) applied such as to deem the child as having made the same visa application as its parent, as this only applies when a visa applications before the Department is not yet decided by a delegate. Given the above, the Tribunal did not have jurisdiction to consider the applicant’s child’s claims in their own right, as if the child was an applicant for a protection visa. The applicant’s child has not made a valid application for protection visa as a primary applicant on the basis of his/her own claims.
Nevertheless, the Tribunal considered the applicant’s claims relating to her divorce and her child born out of wedlock at paragraphs 42 through to 52 of its decision. This ground therefore seeks impermissible merits review by the Court of the Tribunal’s decision.
In relation to ground three, it was submitted by the first respondent that again, in substance, this ground seeks impermissible merits review of the Tribunal’s decision. In relation to the allegation that the Tribunal failed to consider the applicant against the complimentary protection criteria, it was submitted that the Tribunal properly dispensed with its obligations in respect of the criteria. The applicant made no specific claims against the complimentary protection criteria. The Tribunal considered the applicant’s claims against the complimentary protection criteria at paragraphs 53 through to 56 of its decision. of its decision. The First respondent submitted that no error exists.
In relation to the non-disclosure certificate, it was submitted that the certificate was valid as it was issued under s 438(b)(1) of the Act. Notwithstanding this, the existence of the certificate should have been disclosed to the applicant. This failure constitutes a denial of procedural fairness.
However, jurisdictional error will only occur in such circumstances if the denial of the opportunity to make submissions is material to the outcome of the matter: see Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 (“SZMTA”) at [38]. It was submitted that the material covered by the certificate relates to movements records in relation to the applicant and her ex-husband. The applicant was on notice as to that material as it was raised at the applicant’s delegate’s interview and was part of the delegate’s decision. Accordingly, no jurisdictional error arises.
CONSIDERATION
It is for the applicant to satisfy the Tribunal that they meet the criteria for being a refugee: see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [97]. Further, a bland assertion in grounds of judicial review will not constitute jurisdictional error in the absence of particulars: see WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 at [35].
Ground one is a bland assertion of legal unreasonableness in the Tribunal’s decision. A fair reading of the Tribunal’s decision indicates that it considered each of the applicant’s claims and rejected then for the reasons given. The Tribunal’s decision clearly has “an evident and intelligible justification”: see Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 (“Li”) at [76]. There is nothing in the decision that indicates that the decision of the Tribunal remotely approached the stringent test required for legal unreasonableness to be found: see Li at [30] and [113]. Accordingly, ground one has no merit.
Ground two consists of an assertion that the Tribunal should have considered the position of the applicant’s child. Firstly it is clear that the Tribunal did consider the possible position of the applicant’s child should he return with her to China. This is set out at paragraphs 42 to 52 of the Tribunal’s decision. The Tribunal clearly noted relevant country information as to the problems the applicant might suffer if she returned to China as a divorced woman with a child out of wedlock. The Tribunal accepted that the applicant may be required to pay some social compensation fees and may experience some level of social disapproval. The Tribunal was not satisfied that the problems the applicant may encounter were sufficient to reach the required level of significant harm as set out in s 36 and s 5 of the Act for the purposes of s 36(2)(a) or (aa) of the Act. Ground two has no merit.
Ground three alleges a failure to consider whether the applicant is eligible for complimentary protection. This fails at a factual level. The Tribunal turned its mind to this consideration at paragraphs 53 to 56 of its decision. The Tribunal correctly instructed itself as to the relevant test and found against the applicant for the reasons it had set out earlier in its decision. Accordingly, no error arises.
The final matter relates to the non-disclosure Certificate. The Court accepts that, as the Certificate was issued under s 438(1)(b) of the Act, the Certificate was valid.
The Court accepts, however, that the Tribunal failed, as required, to disclose the existence of the Certificate to the applicant. This constituted a denial of procedural fairness. The Court has perused the material contained within the Certificate and is satisfied that it was not material to the ultimate outcome of the Tribunal’s decision. That is, it was not material to the outcome and no “practical injustice” arose due to the error: see SZMTA at [38]. The failure to disclose the Certificate in these circumstances does not amount to jurisdictional error.
No jurisdictional error arises from the grounds of judicial review. As the applicant is unrepresented, the Court has perused the Tribunal’s decision but is unable to detect any other unarticulated jurisdictional error.
CONCLUSION
The application is dismissed.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys. Associate:
Dated: 29 April 2021
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