SZURP v Minister for Immigration

[2015] FCCA 3477

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZURP & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 3477

Catchwords:
MIGRATION – Application for review of the decision of the Administrative Appeals Tribunal – whether Tribunal provided an “intelligible” justification – allegation of bias – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.425, 476

Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152
Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102
Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425
Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108
Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259

First Applicant:

Second Applicant:

Third Applicant

SZURP

SZURQ

SZURR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 1918 of 2014

Judgment of: Judge Nicholls

Hearing date: 1 December 2015

Date of Last Submission: 1 December 2015

Delivered at: Sydney

Delivered on: 1 December 2015

REPRESENTATION

First Applicant: In Person

Second Applicant: In Person

Third Applicant: By Litigation Guardian

Solicitors for the Respondents: Mr J Pinder of Minter Ellison

ORDERS

1. The name of the second respondent is amended to read “Administrative Appeals Tribunal”.

2. The application made on 10 July 2014 is dismissed.

3. The first and second applicant pay the first respondent’s costs set in the amount of $6,000.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1918 of 2014

SZURP

First Applicant

SZURQ

Second Applicant

SZURR

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex Tempore; Revised from Transcript)

1. This is an application made pursuant to s.476 of the Migration Act 1958 (Cth) (“the Act”) on 10 July 2014, seeking review of the decision of the then Refugee Review Tribunal, now known as the Administrative Appeals Tribunal (“the Tribunal”), made on 16 June 2014 which affirmed the decision of the Minister’s delegate to refuse protection visas to the applicants.

Background

1. In evidence before the Court is a bundle of relevant documents filed by the Minister (“the Court Book” – “CB”). The following background can be ascertained from those documents.

2. The applicants are citizens of the People’s Republic of China (“China”). The first applicant (“the applicant”) and second applicant are in a de facto relationship and have a child (“the third applicant”) (CB 2).  The applicant arrived in Australia on 21 February 2008 on a student visa (Class TU Subclass 571) (CB 3). The second applicant arrived in Australia in May 2008 also on a student visa ([28] at CB 182). The applicants applied for protection visas on 15 February 2013 (CB 1 to CB 52). The second and third applicants applied as members of the applicant’s family group (CB 16 to CB 29). They were assisted in their application by a registered migration agent (item 16 at CB 38 and CB 40 to CB 42).

3. The applicant’s claims to protection can be summarised as follows. She was sent to live with her aunt shortly after she was born as she was her parent’s second child and they feared “consequences” from the local authorities, as they were unable to pay the child’s “registration money” (CB 7). Her parents paid a bribe and the applicant was finally registered in 1997, and she returned home (CB 8).

4. The applicant continued to visit her aunt. In the “school holidays” in June 2006 they both joined an underground Christian church where she was “moved” by the Holy Spirit and was baptised on 20 August 2006 (CB 8). The applicant attended three church activities a week (CB 9).

5. On 25 December 2007 the police arrested her at school for her participation in an “illegal religious organisation”. The applicant was detained in “inhumane conditions” (CB 9 to CB 10).

6. She was forced into signing a confession where she named other members of her church. Her father paid the police a bribe and she was released on 31 December 2007. Her father had been making arrangements for her to study in Australia, including paying a bribe to ensure she was able to leave the country, and she departed on 20 February 2008.

7. The applicant learnt that her aunt, and others that she named, were imprisoned in China for 10 years (CB 10). The applicant claimed that due to her guilty feelings arising from this, she did not apply for protection in Australia earlier (CB 10). The applicant claimed that she had attended the Christian church in Australia and continued to pray. The applicant claimed that if she were to return to China as a Christian she would be subject to persecution by the Chinese authorities (CB 10).

8. The applicant commenced a relationship with the second applicant in May 2011. Their daughter was born on 13 June 2012. The third applicant was born out of wedlock. The applicant claimed they would have to pay a fine to register the child in China, which she claimed they will have difficulty in doing. She claimed that their daughter will be regarded as a “black child” and her human rights will be “seriously” threatened (CB 10).

9. A delegate of the Minister refused the grant of a protection visa on 23 August 2013 (CB 79 to CB 105). It is clear from the decision record that the delegate had concerns about the applicant’s delay in applying for protection, the lack of her relevant knowledge about Christianity, and the lack of documentary support for her claims, that is, a letter from any church.  The delegate found that the applicant could pay any registration fee in China in relation to having a child out of wedlock. 

10. The applicants applied for review to the Tribunal on 20 September 2013 (CB 107 to CB 112). The Tribunal affirmed the decision of the Minister’s delegate on 16 June 2014 (CB 178 to CB 195). The applicants’ claims, as they were before the Tribunal, are set out in the Tribunal’s decision record. This included the Tribunal’s account of what was said at the hearing ([5] CB 179 to [53] at CB 186).

11. At the Tribunal hearing, the applicant stated that she was 30 weeks pregnant and that if they were to return to China, they would be unable to pay the social compensation fee for the second child ([53] at CB 186).

12. The Tribunal noted that it was not until after the applicant, and the second applicant, were “found out” by “immigration” that they lodged their protection visa application ([60] at CB 190). The Tribunal had serious concerns regarding the applicant’s migration history, her lengthy stay in Australia, the fact that the applicant and second applicant became “unlawful” in Australia for a protracted period, and the claim that they would both be at risk if they return to China ([61] at CB 190).

13. Further, the Tribunal stated that it ([62] at CB 190):

    “… considered the applicant’s delay in lodging her protection visa application, and finds that the applicant's failure to lodge a protection visa application, when viewed in the context of her migration history, that of her partner, her becoming unlawful in Australia, is inconsistent with a subjective fear of persecution for reasons of religion. The applicant remained unlawfully in Australia for some two years despite claiming to have become a Christian.  Further the adult applicants had a child outside wedlock, her partner had also been unlawful for a considerable period of time and both risked return to the PRC during their unlawful stays in Australia both occurring prior to the lodgement of the application forming the subject matter of this review.  The Tribunal concludes that the applicant does not have a subjective fear of persecution for reasons of religion or family planning regulations in respect of the applicant child. The Tribunal finds that these factors seriously undermine the applicant’s credibility in relation to her claimed fear of persecution in the PRC.”

14. The Tribunal had serious concerns as to the applicant’s migration history and her claimed conversion to Christianity, especially given her failure to mention that she feared returning to China for reasons of “religion or family planning regulations when ‘found out’ by compliance” ([63] at CB 190).

15. The Tribunal found that the applicant displayed some knowledge of Christianity, noting that she had been found “wanting” by the delegate in this regard ([64] – [65] at CB 190). The Tribunal found that when the applicant was asked questions regarding the importance of Christianity to her life, her manner, when presenting evidence, “changed markedly”, and she became “hesitant” and “paused at length”. The Tribunal found that she was able to recite memorised information from the Bible, but that her answers regarding her religious convictions and motivation was superficial, “unpersuasive, hesitant, lacked spontaneity or any reflection of deep religious convictions”.  Further, that the applicant’s knowledge of, and her account of how she became a follower of Christianity was not a “reliable indicator” of her genuine Christian belief ([66] at CB 191).

16. The Tribunal further found that ([67] at CB 191):

    “…given her lack of knowledge at interview, her demeanour whilst giving evidence, her hesitation in giving responses, and delivery of evidence which was presented as though memorised and recited, that her evidence was memorised for the purpose of strengthening her claim. It finds her evidence in relation to Christianity not to be credible.”

17. The Tribunal found that the applicant was not a “genuine practicing Christian”, did not attend a family church in China, or that any of her family members were, or are, Christians, or that she implicated anyone with a statement that she made at the time ([69] – [72] at CB 191). Further, the Tribunal did not accept that the applicant’s attendance at church in Australia was indicative of the fact that she is a genuine practicing Christian, given its credibility concerns ([73] at CB 191). The Tribunal noted the applicant’s ability to depart China legally, without “hindrance”, despite her claims to have been detained there and to have attended church gatherings ([74] at CB 191 to CB 192).

18. Further, the Tribunal was not satisfied that ([79] at CB 192):

    “…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 her 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 religion.”

19. The Tribunal noted that the applicants would be returning to China as a couple who are now parents with one child and expecting another, were students in Australia, and would be eligible for an exemption from the payment of social compensation fees. The Tribunal found that, given their own qualifications and experience, family income, the ability to pay the fee through instalments, and when considered in all the circumstances, the applicants would be in a position to pay the social compensation fee. The Tribunal found that, given the absence of evidence of any forced sterilisation of termination of pregnancies in the Fujian province, there was no real chance that the applicant or the unborn child would face persecution based on this claim ([81] at CB 192 to CB 193).

20. Having regard to country information before it, the Tribunal held that the applicants would not be required to pay bribes in relation to the family planning regulations. The applicants would not be “singled out”, and “differentially treated” by the government of China as the “enforcement of a generally applicable law”, such as the family planning laws in China, do not ordinarily constitute persecution for the purposes of the Refugee’s Convention. The Tribunal referred to Brennan CJ in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 in coming to this finding

    
    

    ([82] – [84] at CB 193).

21. The Tribunal also had regard to country information before it and evidence given by the applicants in relation to their ability to pay the social compensation fee ([85] at CB 193 to [87] at CB 194). The Tribunal found that ([86] at CB 194):

    “…given the applicants’ skills and work experience, there would be no serious impediments to them in securing employment in the PRC and in being able to pay the social compensation fees given their skills, education, and demonstrated ability to adapt to a new country and to support themselves.”

22. The Tribunal found that there was no real chance that the applicants would face persecution in China for a Refugees’ Convention reason ([90] at CB 194). The Tribunal further found that there were not substantial grounds for believing that there was a real risk that the applicants would suffer significant harm if they returned to China

    
    

    ([91] – [92] at CB 194 to CB 195).

Application before the Court

1. The grounds of the application before the Court are in the following terms:

   “1. Tribunal member think I am in order to apply for protection visa to go to church. He can’t doubt me without according.

   2. Tribunal member negative right I am a genuine practicing Christian, I think he didn’t trust me from beginning to end, just want to reject my application.”

   The grounds were not particularised.

Before the Court

1. The second applicant appeared at a first Court date on 21 August 2014 and was assisted by an interpreter in the Mandarin language. The second applicant appeared for the first and third applicant. At this time, orders were made appointing the second applicant as the litigation guardian of the third applicant. The applicants were provided with the opportunity to file any amended application and any evidence by way of affidavit. Nothing further has been filed by the applicants.

2. Before the Court today, the applicant appeared in person and was assisted by an interpreter in the Mandarin language. She advised that the second and third applicants were outside the Court and that she would speak on their behalf. 

3. Before the Court the applicant submitted that the Tribunal had said that she had not given a “good answer” at the departmental interview in relation to her knowledge about Christianity. However, that the Tribunal had said at the hearing before it that she had given “reasonable” answers.  However, in spite of that observation, the Tribunal said that she only learnt this knowledge in the recent past so that she could strengthen her claims to protection in Australia.  The applicant complained that she was only asked one question about her Christian beliefs at the interview with the delegate. 

Consideration

1. I understood the complaint to be that it was not fair, or open, to the Tribunal to come to the conclusion that it did, in light of the comparison on which it relied, which was based on a circumstance where she was only asked one question about her Christian beliefs by the delegate.

2. There are a number of answers to the applicant’s complaint.  The first is that despite opportunity, the applicants have not put before the Court any evidence as to what they say may have occurred at the interview with the delegate.  The delegate’s decision is in evidence before the Court (CB 73 to CB 105).  With reference, in particular, to the account of the interview in the delegate’s decision record (from CB 92 to CB 95), it reveals that there were a number of points about religion and religious practice which were discussed at the interview. This is contrary to, and does not support, the applicant’s claim that she was only asked one question.

3. I also note that the complaint made about the delegate’s interview in this regard was also put to the Tribunal. The Tribunal records the applicant’s answer at [44] (at CB 185) of its decision record.  In any event, the short answer to the applicant’s complaint is that the Tribunal’s assessment of her knowledge of Christianity, and her religious practice, did not simply derive from what may, or may not have, occurred at the interview with the delegate. 

4. It is clear from the Tribunal’s account of the hearing that the applicant was given the opportunity to explain her religious beliefs. In part, the Tribunal’s concerns about her claimed religious belief arose from a number of factors, including her incapacity to explain her religious experience and knowledge at the hearing with the Tribunal, and her delay in applying for protection. The delay was seen by the Tribunal as being inconsistent with a genuine fear of persecution, or harm, if the applicant were to return to China.  The applicant says the Tribunal’s decision in this regard was not fair.  On the material before the Court, and it must be said there is no evidence by the applicants to challenge that material, the Tribunal’s conclusion, was reasonably open to it on the material that was before it.  No jurisdictional error is revealed in this regard.

5. Ground one, with respect to the applicants, lacks coherence.  As the Minister submits at best, it would appear that, again, this ground seeks to take issue with the Tribunal’s finding that the applicant only attended church in Australia in order to bolster her claims to protection. 

6. As I have already stated, in the absence of any evidence about what occurred at the hearing, the Tribunal’s account of what occurred reveals that the Tribunal squarely raised the question of her church activities in Australia with the applicant at the hearing, and that she was given the opportunity to respond. I note [51] of the Tribunal’s decision record, in this regard (at CB 185):

   “The applicant was asked whether her church activities in Australia were motivated by her protection claim and responded that had she intended to apply for protection as a means to remain in Australia she would have done so long ago and not waited until she was found by compliance.”

7. I agree with the Minister’s submissions that the applicants were on notice that the question of the genuineness and motivation for the applicant’s church activities was raised at the hearing, and the Tribunal complied with its procedural fairness obligations as those are understood to arise from s.425 of the Act. The Tribunal, consistent with High Court authority in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2006] HCA 63; (2006) 228 CLR 152, raised the issues which were dispositive of the review. However, it is also of note that the applicants could have been left in no doubt, following the delegate’s decision record, that the question of claimed religious beliefs and the delay in applying for protection in Australia were live issues as a result of that decision. I note the Minister’s comprehensive submissions today regarding various points in the Tribunal’s account of what occurred at the hearing, where matters of religious practice and conduct were raised with the applicant (see [30] at CB 182 to [44] at CB 185).

8. The Tribunal’s relevant findings on this issue were reasonably open to it on what was before it. It gave cogent and intelligible reasons for these findings.  No jurisdictional error is revealed in ground one and it is not made out.

9. Ground two can only be understood as an attempt to assert that the Tribunal member was biased. As the Minister again correctly submits, such an allegation is serious for the reason that, unlike many other assertions of legal error, it is an attack on the very integrity of the decision-maker. It is for this reason that such allegations need to be distinctly made and clearly proven (Minister for Immigration & Multicultural Affairs v Jia Legeng [2001] HCA 17 (2001) 205 CLR 507 at [69] and [127], SBBS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 361; (2002) 194 ALR 749, VFAB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 872; (2003) 131 FCR 102 and Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 179 ALR 425).

1. In the current circumstances, it cannot be said that a claim of bias has been clearly made or properly pleaded.  No particulars are provided. A general assertion that the applicant did not “think” she was trusted from the beginning is not sufficient to explain the claimed bias.  On the evidence before the Court, it would appear that this is no more than a disagreement with the Tribunal’s adverse findings relating to the applicant’s claims.  In any event, no bias is evident in the material that is before the Court. Ground two also fails to reveal jurisdictional error and is not made out.

2. In submissions before the Court today the Minister drew the Court’s attention to the manner in which the Tribunal explored the applicant’s religious beliefs and practice.  I agree with, and accept, the Minister’s submission that the Tribunal did not set itself up as the arbiter of religious doctrine, as this concept is explained in relevant authorities (Minister for Immigration and Citizenship v SZLSP [2010] FCAFC 108, in particular the judgment of Kenny J, and Minister for Immigration and Citizenship v SZOCT [2010] FCAFC 159; (2010) 189 FCR 577). I accept the Minister’s submission, on the evidence presented, that the Tribunal’s questions to the applicant in this regard, as revealed in its account of the hearing, which is not challenged before the Court by any other evidence, were open-ended questions inviting the applicant to explain her beliefs and practice rather than expecting some predetermined answer from her.

3. The grounds of the application do not reveal jurisdictional error.  Nothing that the applicants have put before the Court today reveals jurisdictional error in the Tribunal’s decision record.  It is clear that the applicants are aggrieved by the Tribunal’s decision. As I explained to the applicant today, the question for the Court is not whether the Tribunal made the correct decision, but whether it made a decision according to the law.  Her dissatisfaction with the Tribunal’s findings, in circumstances where the Tribunal’s findings were reasonably open to it on what was before it, can only be seen as an attempt to challenge the Tribunal’s findings of fact, and to invite the Court to engage in impermissible merits review (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6; (1996) 185 CLR 259).

Conclusion

1. The grounds of the application are not made out. It is appropriate in the circumstances to dismiss the application. I will make an order accordingly.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Nicholls

Associate: 

Date: 23 December 2015