SZUPI v Minister for Immigration

[2015] FCCA 880

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPI & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 880

Catchwords:
MIGRATION – Refugee Review Tribunal – Protection (class XA) visa – complementary protection – no jurisdictional error.

Legislation: 

Migration Act 1958, s.476

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

First Applicant: SZUPI

Second Applicant: SZUPJ

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1774 of 2014

Judgment of: Judge Street

Hearing date: 9 April 2015

Date of Last Submission: 9 April 2015

Delivered at: Sydney

Delivered on: 9 April 2015

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Ms F. Taah
Australian Government Solicitor

ORDERS

1. The application be dismissed.

2. The First Applicant to pay the First Respondent’s costs fixed in the sum of $3500.

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT SYDNEY

SYG 1774 of 2014

SZUPI

First Applicant

SZUPJ

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 in respect of a decision of the Tribunal made on 23 May 2014 affirming a decision of the delegate not to grant the applicants a Protection (class XA) visas. 

2. The application identifies the following ground:

   Tribunal made a Jurisdictional error by failing consider my envidence an Independently R.R.T. member rejects my true story as fabrication. [sic]

3. The grounds are patently deficient to disclose any arguable jurisdictional error.  This is a case where the first applicant came to Australia almost five years before applying for a protection visa.  The Tribunal made adverse findings as to credit which were clearly open to the Tribunal.  It is clear that the Tribunal carefully addressed the  applicants’ claims and evidence and made findings that were open to it.  It was open to find that the first applicant had fabricated her story on the material before the Tribunal. 

4. The first applicant arrived in Australia on a student visa in 2007.  The applicant did not apply for protection until 27 November 2012 which application was refused on 29 July 2013.  The second applicant is a child.  The first applicant appeared before the Tribunal with the child on 15 April 2014 to give evidence and present arguments and the hearing was conducted with the assistance of an interpreter.  The first applicant was found to be a citizen of China and her claims were assessed on that basis. 

5. The Tribunal carefully assessed the first applicant’s claims noting in relation to her fears concerning her religion that she first went to a church, which was a local church, in October 2012 and said that she had gone to other churches that occurred at homes.  The Tribunal said in para.45:

   45. The applicant was asked why she waited five years before making her protection application and that the timing of that lodgement in relation to her immigration status in Australia.

6. The Tribunal made adverse findings in relation to the credit of the first applicant:

   54. The Tribunal had serious concerns regarding the applicant’s lengthy delays in lodging her protection visa application in Australia, the timing of that lodgement, her applying for a new PRC passport in Australia, her return to the PRC with her boyfriend, despite claiming to fear persecution there.

   …

   56. The Tribunal considered the applicant explanations but finds that the applicant’s failure to lodge a protection visa application until over five years after arriving in Australia is inconsistent with a subjective fear of persecution for reasons of her religion. The Tribunal finds that the applicant does not have a subjective fear of persecution in relation to her claims on religion. The Tribunal finds that these factors seriously undermine the applicant’s credibility in relation to her claimed fear of persecution in the PRC.

   …

   68. … The Tribunal finds that the applicant is not a genuine practicing Christian. The Tribunal finds that there is no real chance that due to the strength of her convictions she would come to the attention of the authorities in the PRC as a Christian who regularly attended church and studied the Bible.

   69. The Tribunal does not accept that the applicant is a genuine practicing Christian.

   70. Given the Tribunal’s finding that the applicant is not a genuine practicing Christians, it does not accept as credible the claims by the applicant that she4 is a genuine practicing Christian and it is not satisfied that they have been involved in any church activities in Australia or China which will now, or in the reasonable foreseeable future attract the adverse interest of the PRC authorities.

   71. The Tribunal finds that the applicant, and noting the applicant’s ability to depart the PRC legally without hindrance, finds that the applicant’s claims of past harm relating to her family for reasons of religion are not credible. The Tribunal finds that neither the applicant nor any members of her family including her father were arrested detained or suffered serious harm in the PRC for reasons of religion.

   72. …The Tribunal does not accept that given her claimed problems and those of her family for reasons of religion that she would be able to exit the PRC without difficulty despite her testimony that this was a miracle to her too.

   …

   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 the ability of her parents to depart legally. Given that this is the central element of her claim, the Tribunal finds that there is insufficient credible evidences upon which to make a finding that the applicant is a Convention refugee for reasons of her religion.

7. The Tribunal carefully identified the family planning laws that are applied in China and said they were laws of general application. The Tribunal addressed the claims and steps needed to be taken in registering the second applicant which the Tribunal found to be non-discriminatory laws of general application

   81. The Tribunal has considered the applicant's claims that she would face hardship in paying the social compensation fee. The Tribunal finds that the applicant in this regard would not being singled out or differentially treated by the government of China. The applicant would incur a fine for contravening a law which applies to all PRC citizens. The enforcement of such generally applicable laws does not ordinarily constitute persecution for the purposes of the Convention, for the reason that enforcement of such a law does not ordinarily constitute discrimination. As Brennan CJ stated in Applicant A :

   …

   83. The court found that non-discriminatory enforcement of generally applicable laws is outside the scope of the Convention, including the enforcement of China's family planning policies. In the present matter, the applicant has contravened the government family planning policy by having a child outside marriage. The Tribunal has formed the view that the imposition of a fine, and having to take certain steps to ensure that the child is registered, is not discrimination and neither is it conduct which amounts to persecution for Convention purposes.

   84. Finally, the one child policy and laws apply throughout China. The Tribunal considers this to be a law of general application in China. In doing so, it has had regard to whether the law itself is discriminatory in its terms/intent; whether it has a discriminatory impact on members of a group recognised by the Convention; whether it is enforced in a discriminatory way; and whether it is 'appropriate and adapted to achieving some legitimate object'. The Tribunal finds on the evidence that there is no real chance that the application of the policy in the circumstances of these applicants would involve discriminatory enforcement of the law such as to amount to Convention-related persecution, including the applicant's child.

   …

   86. The applicant has family in the PRC. The country condition information referred to above indicates that after the payment of a fine, which can be paid in instalments and is based on family income, the cl1ild could be registered, and would have access to education, medical care, and social programs. The Tribunal finds that given the applicant's skills and work experience, that there would be no serious impediments to her alone, or together with her estranged husband should they reconcile, in securing employment in the PRC and in being able to pay the social compensation fees given her skills, education, and demonstrated ability to adapt to a new country and to support herself and child. Given the country condition information regarding the family planning laws in the PRC, the Tribunal concludes that the applicants, including the minor applicant would not face a real chance of persecution for reasons of any breach of family planning laws in China, and that, in any event, any impact on them would not amount to persecution for any Convention-related reason, and that any harm caused would not amount to persecution ash would not be the result of discriminatory conduct, but rather would be the result of the implementation of a law of general application. The Tribunal further finds that the application of this law of general application in the circumstances of these applicants would not of itself amount to persecution. The Tribunal finds that the payment of the fine, which can be paid in instalments would not amount to persecution for a Convention reason. Accordingly the Tribunal finds that the applicant's child would be registered upon payment of the social compensation fees and would not be· denied social and public services that would impact adversely upon the applicant's child and that the applicant's child would not face a real chance of persecution in the PRC for this reason.

   …

   89. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will be subjected to persecution by the authorities in China for any Convention reason.

   90. Having considered all of the evidence, the Tribunal finds that there is no real chance the applicant will face persecution in the PRC for any Convention reason. The Tribunal is not satisfied that there is a real chance that the applicant will be subjected to persecution by the authorities in the PRC for a Convention reason.

   91. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the PRC, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Act. The Tribunal has had regard to the evidence and claims put forward by the applicant. It repeats its finding that the applicant is not credible in relation to her claims regarding her Christianity nor the claims relating to harm faced by her for this reason, and that she would not face significant harm in the PRC for reasons of her religion. It further finds that there is no real risk that the applicant would suffer significant harm for reasons of family planning regulations if returned to the PRC under Australia's protection obligations under s.36(2)(aa). It repeats its finding that the applicant would not face harm in the PRC for the reasons claimed and that she is not credible in relation to the central elements of her protection claim. The Tribunal does not accept that there is a real risk the applicant will be arbitrarily deprived of her life, or the death penalty will be carried out on her, or that she will be subjected to torture or to cruel or inhuman treatment or to degrading treatment or punishment if she returns to the PRC. On the evidence before it the Tribunal does not accept that there is a real risk the applicant will suffer significant harm in the PRC. The Tribunal is not satisfied on the evidence, that a real risk· of significant harm exists for the applicant. The Tribunal does not accept that the applicant is a person to whom Australia has protection obligations under paragraph 36(2)(aa) of the Act.

8. It was in those circumstances, the Tribunal found the applicant was not a person in respect of whom Australia owed a protection obligation.  There is no substance in either of the grounds advanced and it was a matter for the Tribunal to determine the applicant’s credit and the alleged grounds are an impermissible merits review; See Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [53]-[54] and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. The application is dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date:  13 April 2015