SZUPS v Minister for Immigration

[2015] FCCA 628

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUPS & ANOR v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 628

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

First Applicant: SZUPS

Second Applicant: SZUPT

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1811 of 2014

Judgment of: Judge Driver

Hearing date: 19 March 2015

Delivered at: Sydney

Delivered on: 19 March 2015

REPRESENTATION

The First Applicant appeared in person

Solicitors for the Respondents: Ms E Warner Knight of Australian Government Solicitor

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. The first applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1811 of 2014

SZUPS

First Applicant

SZUPT

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me a show cause application seeking review of a decision of the Refugee Review Tribunal (Tribunal).  The Tribunal decision was made on 2 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are two applicants, who are a mother and child.  The child was born in Australia on 9 April 2013.  The mother is from Fuqing City, in Fujian province in China.

2. The first applicant arrived in Australia in May 2007 on a student visa, which expired on 16 September 2009.  After that, she became an unlawful non-citizen.  She applied for a protection visa on 28 September 2012.  After the birth of her child, the child was added to that application.  The Minister’s delegate refused to grant the visas on 22 August 2013 and the applicants sought review before the Tribunal.  The first applicant was represented before the Department by a registered migration agent, Ms Weiming Qian of Good Fortune Company, and then another person from the same company.  The applicants were not represented before the Tribunal.

3. The first applicant claimed that if she and her child returned to China they would be persecuted by people who persecuted her father, and that she and the child would be discriminated against or disliked by society because the child was born out of wedlock.  The first applicant claimed that she could not afford to pay the social compensation fee to register her child on her hukou, and thus her child would not be educated.  The first applicant claimed further that she cannot register her child on the hukou because she is unmarried.

4. In support of her claims to the Minister’s Department, the first applicant provided a typed, signed statement.  She attended an interview with the Minister’s delegate on 24 July 2013.  The delegate rejected the applicant’s claims concerning the alleged persecution of her father as not credible, and also had regard to the first applicant’s delay in seeking protection.  The delegate refused to grant the visas and the applicant sought review before the Tribunal.  No further documentary evidence or written submissions were provided to the Tribunal. 

5. The first applicant attended a hearing before the Tribunal on 22 May 2014, which was conducted with the assistance of a Mandarin interpreter.  The Tribunal noted the first applicant’s evidence presented to the Department and discussed her claims with her.  The Tribunal put to the first applicant concerns about her claims.  She initially sought the opportunity to produce further documents after the hearing, but as recorded by the Tribunal, she later declined an offer made by the Tribunal to do so.

6. The Tribunal found that the first applicant was not a credible, truthful, or reliable witness concerning her claim based upon the alleged persecution of her father.  The Tribunal’s concerns about that aspect of the first applicant’s claims are set out in some detail in the Tribunal’s statement of reasons[1].  The Tribunal accepted that the first applicant would have to pay a social compensation fee for her child born out of wedlock, but reasoned that she had the capacity to pay the fee.  The Tribunal did not accept that the first applicant and her child would suffer social stigmatisation or discrimination reaching the level of serious or significant harm in China.  On that basis, the Tribunal affirmed the decision of the Minister’s delegate. 

   [1] Relevant Documents (RD) 119-121

7. These proceedings began with a show cause applicant filed on 1 July 2014.  The applicants continue to rely upon that application.  There are four grounds in the application:

   1. RRT has bias against me and discriminate against me.

   2. RRT said I don’t need to speak about my statement, but then ask me about it.

   3. The interpreter interrupted me for many times this is caused me very unfair.

   4. RRT said I can’t answer his questions because I don’t understand the questions. The RRT must have discrimination because of my education background.

   (errors in original)

8. I gave directions in this matter on 29 July 2014.  At that time the first applicant attended in person with the assistance of a Mandarin interpreter.  I provided her with the opportunity to file and serve an amended application and additional evidence, including a transcript of the Tribunal hearing.  She has not taken up that opportunity. 

9. I have before me as evidence her affidavit filed on 1 July 2014 and the book of relevant documents filed on 31 July 2014.  Neither the Minister, nor the applicants provided written submissions.  Both made only brief oral submissions.

10. In the course of oral argument, I pointed out to the first applicant that the allegations in the show cause application did not go anywhere in the absence of evidence.  I asked why she had not provided a transcript of the Tribunal hearing.  She told me that she does not speak English and encountered difficulties in obtaining evidence.  She said that she did not have the sound recording of the Tribunal hearing and that she was not given it.  She apparently has not asked for it, and asserted that she did not understand her rights in that regard.  She was not able to say with any certainty whether the asserted problems at the Tribunal hearing were real problems or not.  She put this down to her language difficulties.

11. The first applicant did assert that she would encounter serious problems in China as a single mother.  She said that the pressure upon her could be so great that she might kill herself.  The challenges facing the applicants in China were considered by the Tribunal and I see no error in the Tribunal’s approach to the issue of the social compensation fee and societal discrimination and stigmatisation.  Neither do I see any error in the Tribunal’s approach to the assessment of credibility.  In the absence of any evidence of what occurred at the Tribunal hearing that might throw some light upon the allegations in the show cause application, those are simply bald allegations.  There is nothing in the book of relevant documents to indicate any substance to those allegations. 

12. I conclude that the applicant is unable to demonstrate an arguable case of jurisdictional error by the Tribunal. Accordingly, I order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

13. In consequence of the dismissal of the application, the Minister seeks an order for costs fixed in the sum of $3,000.  That is less than the scale amount.  The first applicant did not wish to be heard on costs.  I will order that the first applicant pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  25 March 2015