SZUTI v Minister for Immigration

[2015] FCCA 1417

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUTI & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 1417

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)

Migration Act 1958 (Cth), ss.91R, 424A, 424AA, 425

NAHI v Minister for Immigration [2004] FCAFC 10

First Applicant: SZUTI

Second Applicant: SZUTJ

Third Applicant: SZUTK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1998 of 2014

Judgment of: Judge Driver

Hearing date: 27 May 2015

Delivered at: Sydney

Delivered on: 27 May 2015

REPRESENTATION

The First and Second Applicants appeared in person

Solicitors for the Respondents: Ms N Maddocks of DLA Piper

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 and second applicants are 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 1998 of 2014

SZUTI

First Applicant

SZUTJ

Second Applicant

SZUTK

Third 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 an application to review a decision of the Refugee Review Tribunal (Tribunal).  The decision was made on 23 June 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas.  There are three applicants.  The first applicant (applicant) is the applicant mother and the second applicant is her husband.  The third applicant is their child.  I made orders on 19 August 2014 for the appointment of a litigation guardian for the third applicant.

2. The protection claims were made by the applicant, predominantly in respect of herself.  She comes from Fuqing city in Fujian province in China.  Background facts relating to the applicants’ claims for protection and the decision of the Tribunal on them are conveniently set out in the Minister’s outline of submissions filed on 20 May 2015.   

3. The applicant is a female citizen of China.[1]  The second named applicant is her husband, whom she married in Australia on 19 January 2014.  The third named applicant is the couple's daughter who was born in Sydney on 19 October 2012.

   [1] Court Book (CB) 12

4. The applicant was the only person who made claims, the second and third named applicants relied on being a part of her family unit.

5. The applicant arrived in Australia on 4 December 2006 on a student visa.  The applicant applied for a protection (Class XA) visa on 19 June 2012.[2]

   [2] CB 1

6. The application was refused on 7 January 2013.[3]  The applicant applied to the Tribunal for review of the delegate's decision on 10 January 2013.[4]

   [3] CB 55

   [4] CB 83

7. The applicant gave oral evidence before the Tribunal on 16 June 2014.

The applicant's claims

1. The applicant claimed to fear harm in returning to China on the basis of her religion, being Mormon and on the basis that their daughter was born out of wedlock and as such would be subject to a heavy social compensation fee and they would not be able to get her registered on the household registration.

2. The applicant claimed that she was raised in a Christian household but did not appreciate that it was Mormon until she was in high school.

3. The applicant claimed that her parents were arrested in 2005 when missionaries from Hong Kong or Taiwan came to their place and held a sermon and the Government found out they printed church brochures and distributed Mormon Bibles.

4. The applicant claimed that she was persecuted in China by her classmates, who did not want to be friends with her, often talked behind her back, called her a cult member, pushed her, causing the scar on her eyebrow and her teachers often talked to her.

5. The applicant claimed that her family again came to the adverse attention of Chinese authorities at Easter in 2012 and have been placed under surveillance and subject to random security checks.

6. The applicant also claimed that as her child suffered from a congenital problem in her pelvic joints, which still required medical treatment, they would not be able to afford to continue this treatment.

7. The applicant became involved in the Mormon Church in Australia in January 2012.

The decision of the Tribunal

1. The Tribunal did not find the applicant's claims to be credible.[5]

   [5] [43]

2. The Tribunal was not satisfied that the medical conditions identified at the time of the third named applicant's birth were ongoing and would require medical treatment that the applicants would not be able to afford.[6]

   [6] [45]

3. The Tribunal noted that the only evidence in support of that claim was a report dated 22 October 2012, which was almost two years old and did not reflect the child's current condition and no assessment regarding the current condition was provided.

4. The Tribunal noted that during the hearing the child ran around the room without any apparent impediment.[7]

   [7] [14]

5. The Tribunal was not satisfied that if the applicant's parents were Mormons they were detained in 2005 for associating with Mormon missionaries in China.

6. The Tribunal discussed with the applicant that the 12th Article of Faith of the Mormon Church commands its followers to obey the law of the country in which they live.[8] 

   [8] [32] and [47]

7. The Tribunal found it implausible that, if the applicant had grown up in a Mormon family, she would be indifferent to such core tenets of the Mormon faith as chastity and sanctity of marriage.[9]

   [9] [48]

8. The Tribunal found that the applicant's description of the past persecution she personally claimed to have suffered in China by her classmates and teachers, did not amount to persecution or serious harm. Accordingly the Tribunal found that the applicant had not suffered persecution or harm, rising to the level of serious harm while living in China.[10]

   [10] [49]

9. The Tribunal was not satisfied that the applicant's involvement in the Mormon Church in Australia was for reasons other than strengthening her refugee claims and accordingly dismissed the conduct pursuant to s.91R(3) of the Migration Act 1958 (Cth).[11]  While the Tribunal accepted that the applicant was confirmed and baptised in the Church on 13 May 2012, the Tribunal had reservations about the genuineness of the applicant's commitment to the Mormon Church,[12] which led it to dismiss the conduct under s.91R(3), those concerns included:

   a)the Tribunal found it implausible that the applicant was unable to find the Chinese Mormon Church in Australia for six years;[13]

   b)the Tribunal found it incongruous that although the applicant was baptised in May 2012, she did not marry her husband in the five months before the birth of their daughter but waited almost two years, until January 2014 to do so;[14]

   c)the Tribunal was not satisfied that a committed Mormon would consider themselves empowered to blatantly disregard the Mormon Articles of Faith, as the applicant has suggested she will do in her various statements that she will proselytise and preach the gospel if she returns to China, regardless of the 12th Article of Faith command to obey the law of the country in which a Mormon lives.  The Tribunal found this fact to undermine the applicant's lack of respect for fundamental Mormon Church precepts.[15]

   [11] [54]

   [12] [50]

   [13] [51]

   [14] [52]

   [15] [53]

10. In relation to the claims arising out of the fact that the third named applicant was born out of wedlock, the Tribunal noted that the law of the social compensation fee is one of general application and there was no evidence before the Tribunal to suggest that it would be applied in a discriminatory way for a Convention reason.[16]

    [16] [61]

11. The Tribunal noted that because the first and second named applicants were now married, there was no obstacle in the third named applicant becoming registered with a payment of a fee.[17]

    [17] [57]

12. The Tribunal’s concerns regarding the applicant's credibility were further undermined by the applicant's responses regarding the inconsistencies in the information regarding her parents' occupations provided in the context of her student and protection visa applications. The Tribunal found the applicant's explanation implausible and considered that the applicant had been untruthful about the matter.[18]

    [18] [58] - this “information” was dealt with pursuant to s.424AA by the Tribunal, see [39]

13. The Tribunal was not satisfied that the applicant had been truthful about her family's or her own involvement with the Mormon Church while in China.  The Tribunal was not satisfied that the applicant's parents were detained or fined for their involvement with Mormon missionaries and their activities; nor that the applicant suffered persecution because of her family's alleged involvement with the Mormon Church.[19]

    [19] [59]

14. As the Tribunal was obliged to dismiss the applicant's conduct in Australia pursuant to s.91R(3) and taking into account its finding that she had no involvement with the Mormon Church in China, the Tribunal was not satisfied that if the applicant were to return to China she would be at risk of harm because of any previous involvement with the Mormon Church.

15. Having regard to its findings above, the Tribunal found that there were not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to China, there was a real risk that she or her family would suffer significant harm.

The present application

1. These proceedings began with a show cause application filed on 17 July 2014.  The applicants continue to rely upon that application.  They have not taken up the opportunity I afforded them to file and serve an amended application or additional evidence.  Attached to the application is a document headed “Orders sought by Applicant”.  The document then sets out what appear to be intended to be the grounds of the application:

   1/. I don’t think DIBP and RRT’s decision are fair for me as they failed to take a thorough and necessary consideration for my fear of return to origin due to my commitment of religion with Mormonism.  Our religion and practice is outlawed and undergrounded in China with no safe authorization for preaching gospels in China.

   2/. RRT gave no careful consideration to my hard experience being bullied in my childhood, in which my face was physically harmed and hurt with a scar.

   3/. RRT did not well consider my statement, explanation and comments given to the questions asked in the hearing, ignoring the risk, bias treatment and persecution my family members have ever experienced in China.

   4/. RRT is refuse to take the official written reference as the most important evidence for my faith and religious practice provided by our church elder, paying no respect on my religion.  I can’t accept the member’s attitude to close the hearing in rush before my explanation is unfinished.

   5/. RRT member failed to give me a fair chance to expose and articulate my faith and asked a little about my religion and my actual church practice, giving me in an unfair treatment in expressing ideas which are necessary in my commitment on faith and how the danger will be in origin.

   6/. RRT member failed to take into account in a prudent way about my constant pursuing in Christianity, my active role in church and my passion of preaching gospels in and outside Australia, especially my biblical knowledge, ability and commitment in evangelical preaching if I return to origin which will inevitably cause a potential risk in origin.

   7/. RRT failed to consider my vulnerable child and reluctant to accept the important evidence provided about the medical condition of my daughter who has been under medical condition and treatment since given birth although I have emphasized this particular issue for member’s special consideration but it was totally ignored and the evidence refused to accept in a fair chance.  I have strong concern, worries and upset about our fate in origin, especially my inability coping with the increasing living cost at all levels for my child’s surviving and social welfare as we couldn’t get marital certificate in china and our Australian marriage certificate will not be recognized unless our resident registration (Huko) can be provided but we can not do so due to my husband’s family’s denial to our relationship.  This will cause us a breach of Family Planning Law in China with penalty imposed by authority estimated at least 50,000RMB, which is beyond our ability to pay.  RRT fail to take our special situation into account specifically.

   8/. RRT failed to give me a chance to make a comment on any of the pending issues that may exist off hearing, leaving me in limbo with no awareness about any outstanding issues may likely occur. (errors and emphasis in original)

2. The attachment, on its second page, under the heading “The Grounds of the Application are” reproduces the applicants’ claims for protection.

3. The Minister made written submissions, which were read to the applicants before I came on the bench. 

4. I have before me as evidence the court book filed on 28 August 2014.  The applicant had made the short affidavit filed with the show cause application, which I treated as a submission. 

5. I invited oral submissions from the first and second applicants, who attended court today.  The applicant is concerned principally with the Tribunal’s adverse credibility finding concerning her Mormon faith.  She places stress on her baptism.[20]

   [20] CB 128

6. The Tribunal accepted that the applicant had been baptised, but did not accept that her asserted faith was genuine.  The Tribunal found that the applicant had claimed to be a Mormon and engaged in activities of the Mormon church in Australia for the sole reason of enhancing her claims to protection.  The applicants dispute that and assert that their faith is genuine.  They strenuously disagree with the Tribunal’s findings.  Unfortunately for them, however, that dispute does not rise above a contest over the Tribunal’s factual findings.  In my opinion, the findings made by the Tribunal were open to it on the material before it. 

7. In oral submissions, the solicitor for the Minister directed my attention to the complementary protection findings made by the Tribunal.  The Tribunal’s reasoning in that regard appears at [62]-[64] of its statement of reasons.[21]  The Tribunal noted that the first applicant had made no claims in relation to complementary protection.  The Minister concedes that there was, nevertheless, an obligation on the Tribunal to consider the complementary protection criterion.  The Minister submits, and I accept, that having rejected the factual basis of the applicant’s claims to protection, the Tribunal was entitled to reject those claims both under the Refugees Convention criterion and under the complementary protection criterion.

   [21] CB 142-143

8. The Tribunal did accept that the first and second applicants would be liable to pay a social compensation fee in relation to the birth of their child out of wedlock.  The Tribunal did not specifically address that issue in relation to complementary protection apart from the finding that the fee would be imposed pursuant to a law of general application.  While the Tribunal’s consideration of the issue might have been more clearly expressed, there is sufficient before me to be satisfied that the Tribunal gave consideration to that element of the applicants’ claims in respect of complementary protection.

9. Two things may be noted or inferred.  The first is that the Tribunal would have had access to country information as to the size of the social compensation fee that would be imposed in Fujian province, if that were to be a relevant issue.  Secondly, on the basis of the Tribunal’s reasoning, it would seem that the applicants were not able to establish that any harm they might suffer in China as a consequence of the imposition of the social compensation fee would be greater than that experienced by the population generally.

10. I otherwise agree with and adopt the Minister’s submissions in relation to the grounds of review advanced. 

Ground 1

1. The first ground alleges a failure of the Tribunal to take into account the applicants' fear of harm due to her commitment to Mormonism. The Minister contends that ground one misunderstands the findings of the Tribunal.

2. I accept that the Tribunal rejected the applicant's claims to have been a practising Mormon in China, and as such whether the religion and practice is outlawed in China is irrelevant to a review of the decision.

Ground 2

1. Ground 2 alleges that the Tribunal failed to consider the applicant's claims of past persecution in her childhood.  This was explicitly considered by the Tribunal and rejected on the basis that it did not amount to persecution or harm rising to the level of serious harm while living in China.[22]

   [22] [49]

Ground 3

1. A fair reading of the Tribunal decision record shows that the Tribunal did consider the applicant's evidence, and that the Tribunal rejected the applicant's claim that her family suffered persecution in China.

Ground 4

1. This ground appears to raise two allegations, being a failure to consider evidence and dissatisfaction with the way the Tribunal hearing was conducted, particularly towards its conclusion.

2. In relation to the documents or the “official written reference”, it is unclear precisely what documents the applicant is referring to, but she confirmed in oral argument that she is referring to her baptism.

3. The only documents submitted by the applicant were a brochure regarding her baptism, a baptism certificate and photographs of the ceremony. There was otherwise no evidence provided by a church elder.

4. The Tribunal accepted that the applicant was baptised in 2012 as claimed, and as the documents submitted can only go to support that claim, there can be no failure of the Tribunal to consider them.

5. The Tribunal is entitled to determine the weight to be placed on the materials before it.  The Minister submits and I accept that the applicant taking issue with the weight afforded by the Tribunal to items of evidence in this instance seeks impermissible merits review.[23]

   [23] NAHI v Minister for Immigration [2004] FCAFC 10 at [13]

6. In relation to the second complaint regarding the conduct of the hearing, the applicant was afforded a real and meaningful opportunity to present her case and no breach of s.425 is evident.

7. The applicant was invited to and attended a hearing before the Tribunal, which lasted for 3.5 hours.

8. On the face of the Tribunal decision record there is no suggestion that there was any further evidence the applicant wanted to present to the Tribunal.  There is no other evidence before me of what occurred at the Tribunal hearing.

Ground 5

1. Insofar as ground five alleges that the Tribunal did not give the applicant a fair chance to expose and articulate her faith, the Minister submits and I accept that this misunderstands the findings of the Tribunal.

2. The Tribunal’s findings were not based on a finding that the applicant did not demonstrate a requisite level of knowledge, but that her claimed conduct was inconsistent with Mormon practice.

3. Insofar as Ground 5 makes an allegation of unfair treatment.  I reject it.

Ground 6

1. Ground 6 is similar to Ground 5, in that it alleges a failure of the Tribunal to take into account the applicant's knowledge of her religion.

2. Again, the Tribunal's findings were not based on a finding that the applicant did not demonstrate a requisite level of knowledge, but that her claimed conduct was inconsistent with Mormon practice.

Ground 7

1. Ground 7 alleges that the Tribunal failed to take into account the third named applicant's claimed medical condition, the fact that she would not be able to be registered because of the second named applicant's family's denial of the relationship and the fact that they would not be able to pay the social compensation fee.  Each of these matters was considered by the Tribunal:

   a)at [14] of the Tribunal decision, the Tribunal noted that the only evidence provided in relation to the third named applicant's medical condition was two years old and did not reflect the child's current condition.  At [45] the Tribunal found that it was not satisfied that the medical condition identified at the time of the third named applicant's birth was ongoing and would require medical treatment that the applicants would not be able to afford;

   b)at [57], the Tribunal accepted that there may be a social compensation fee, but found that there was no evidence that that law would be applied in a discriminatory way for a convention reason and as they were married there was no obstacle to them getting household registration for the third named applicant at the address of the applicant's parents on presentation of a marriage certificate and the payment of a fee.

Ground 8

1. Ground 8 alleges that the Tribunal did not allow the applicants to comment on “pending issues”.  Although it is not entirely clear what the applicant means by “pending issues”, I accept that the applicant was on notice of the dispositive issues, the delegate's decision having been made on a similar basis.

2. Further, the only “information” pursuant to s.424A which arose was information contained in the applicant's student visa application, and this was according to the decision record put to the applicant pursuant to s.424AA.

Conclusion

1. I conclude that the applicants have failed to demonstrate an arguable case of jurisdictional error by the Tribunal. I will, in consequence order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth).

2. In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale.  At the time the application was filed on 17 July 2014, the scale amount was $3,326.  The applicants did not wish to make any submissions on costs.

3. I will order that the first and second applicants are to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,326.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  28 May 2015