SZUZA v Minister for Immigration

[2015] FCCA 2495

.FEDERAL CIRCUIT COURT OF AUSTRALIA

SZUZA v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 2495

Catchwords:
MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant a child – applicant’s litigation guardian failing to attend Court hearing – dismissal of the application.

Legislation:

Federal Circuit Court Rules 2001 (Cth)

Migration Act 1958 (Cth), ss.36, 91R, 424AA

Applicant: SZUZA

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2398 of 2014

Judgment of: Judge Driver

Hearing date: 11 September 2015

Delivered at: Sydney

Delivered on: 11 September 2015

REPRESENTATION

No appearance by the Applicant

Counsel for the Respondents: Ms R. Graycar

INTERLOCUTORY ORDERS

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

2. Pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules 2001 (Cth), the application is dismissed.

3. The applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

4. The Court directs that the Minister is to arrange to have these orders entered and the Minister is to cause a sealed copy of these orders to be served on the applicant by ordinary pre-paid post at his nominated address for service, together with a copy of rule 16.05 of the Federal Circuit Court Rules 2001 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2398 of 2014

SZUZA

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 7 August 2014.  The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. 

2. The applicant is a child born in Australia, although he is not a citizen or permanent resident.  His date of birth was given as 21 March 2013.  His parents are from China, who had at an earlier stage made claims of their own, which were rejected. 

3. The applicant’s mother had previously applied for protection (in 2010) and included in her claim the applicant’s father and his older brother (born in Australia on 5 April 2010).  That claim was unsuccessful as was an appeal to the Tribunal and a judicial review application to this Court. 

4. On 31 July 2013, an application for a protection visa was lodged on behalf of the applicant.  The claims made in his visa application were, in summary[1]:

   a)as a second child, the applicant's family will be subject to a social compensation fee of  at least 100,000 RMB in China and his family cannot afford to pay this;

   b)if the social compensation fee is not paid, the applicant will not be able to obtain household registration and this will cause problems as the local government will not provide his family with subsidies or humanitarian aid;

   c)his parents' marital relationship and their children (ie the applicant and his older brother) have never been recognised or accepted by their families and they will not receive assistance from relatives or neighbours;

   d)his parents do not have qualifications to secure proper jobs and the family would not be able to sustain a normal life;

   e)his parents are adherents of the Local Church, which is illegal in China. His mother was repressed and detained by the Chinese authorities due to her involvement in this church, and his parents are therefore fearful of returning to China; and

   f)his family's financial situation is getting worse and they are in debt, and would prefer to pursue well-being and faith by living in Australia.

   [1] see statement at Court Book (CB) 27-28

5. The applicant's mother attended an interview with a delegate of the Minister on 10 February 2014[2] and on 13 February 2014 the delegate decided that the applicant was not eligible for the grant of a protection visa[3].  On 12 March 2014, an application was lodged to the Tribunal for review of the delegate’s decision[4].

   [2] CB 42

   [3] CB 49-62

   [4] CB 63-68

6. On 11 July 2014, the Tribunal invited the applicant to appear before it on 4 August 2014 to give evidence and present arguments in relation to the issues arising in his case[5].  On 4 August 2014, the applicant and his parents attended the Tribunal hearing[6].

   [5] CB 71

   [6] CB 75-77

7. On 7 August 2014, the Tribunal affirmed the decision under review[7].

   [7] CB 80-89

The Tribunal decision

1. The Tribunal found that the applicant is a Chinese citizen, and therefore proceeded to assess his claims on this basis[8].

   [8] CB 83 at [15]

2. In relation to the claim concerning the applicant’s parents’ religion, the Tribunal noted that it had “serious concerns about their credibility and the veracity of the claims.”The Tribunal found the applicant’s mother’s evidence to be “inconsistent, contradictory and vague in relation to some aspects of her evidence” and noted that there were several inconsistencies between the evidence of the applicant's mother and father, and found that they were not witnesses of truth[9].

   [9] CB 83 at [17]

3. The Tribunal had before it the documents from the department relating to previous visa applications made by the applicant’s parents. The Tribunal noted that the evidence given by the applicant’s mother in relation to her church activities in China was inconsistent with evidence she had given at the hearing of her own appeal on 6 January 2011[10] and these inconsistences were put to the applicant's mother for comment in accordance with s.424AA of the Migration Act 1958 (Cth) (Migration Act)[11].

   [10] CB 83-84 at [18]-[19]

   [11] see CB 84 at [19]

4. The Tribunal found that the inconsistences in the mother’s evidence “raise concerns in relation to her credibility and the veracity of the claims”[12].

   [12] see CB 84 at [22]

5. The Tribunal then considered the evidence relating to church attendance in Australia. Specifically, the Tribunal noted that the applicant’s mother gave evidence that she did not start attending church in Australia until around 18 months after arriving in Australia, and found that this undermined her claim to be a committed Christian and also raised concerns about her motivation for attending church in Australia[13]. The Tribunal also noted that the applicant’s parents’ claim to be committed to their faith was inconsistent with their lifestyle as an unmarried couple with two children out of wedlock[14].

   [13] CB 84 at [24]

   [14] CB 85 at [25]

6. Further, the Tribunal considered the delay between the applicant’s mother arriving in Australia on a student visa and her seeking protection and did not accept the explanation for that delay[15], noting that the “delay in lodging her protection visa application raised concerns in relation to the credibility of her claims[16].”

   [15] CB 85 at [26]

   [16] CB 85 at [27]

7. In relation to the claim to fear harm due to membership of a particular social group as a consequence of the “social compensation fee”, the Tribunal found that the applicant’s mother “was fabricating this evidence as she was giving it”[17]. The Tribunal discussed with the applicant’s parents their claim that they did not have the financial resources to pay the social compensation fee for the applicant to be registered on the household registration, and found that the applicant’s parents’ financial circumstances were not as they claimed[18].

   [17] CB 85 at [28]

   [18] CB 85 at [30]

8. As for the claim that the applicants’ parents’ families have never recognised their relationship or their two children, the Tribunal found this to be inconsistent with evidence given by the applicant’s mother that her parents want her to return to China. Nor was it consistent with other evidence that the paternal grandparents are prepared to look after the applicant and his brother[19]. 

   [19] CB 86 at [32]

9. The Tribunal next considered the applicant's mother’s claim that the applicant would suffer serious harm in China due to the poor air quality, bird flu and discrimination due to China being materialistic and their family not having money[20].

   [20] CB 86 at [33]

10. The Tribunal concluded that the applicant’s parents were not “witnesses of truth” and had “fabricated claims and falsified their financial circumstances” for the purpose of obtaining a protection visa for the applicant[21]. The Tribunal did not accept:

    a)That the applicant's mother was a Christian in China; that she attended the Local Church or the official Church in China or that she was repressed and detained by police due to church activity or for any other reason[22];

    b)That the applicant’s mother bribed the police in China to secure her release from detention and had to sign a “letter of regret” before being released;

    c)That the applicant's parents are genuine adherents of the Local Church and are fearful of returning to China for any reasons associated with religious beliefs or practices[23];

    d)That the applicant is, as a result of his age, capable of forming any religious beliefs or faith and therefore did not accept that he wishes to pursue his faith in Australia[24].

    [21] CB 86 at [34]

    [22] CB 86 at [34]

    [23] CB 86 at [36]

    [24] CB 86 at [36]

11. The Tribunal further found that the applicant’s mother had attended the Local Church in Australia initially for the purpose of supporting her application for protection visas and, when that was unsuccessful, for the purpose of supporting the applicant's application for a protection visa. The Tribunal disregarded this conduct of the applicant’s mother under s.91R(3) of the Migration Act[25].

    [25] CB 87 at [37]

12. The Tribunal accepted that the applicant's parents would have to pay a social compensation fee for him to be registered on the household registration and also considered the possibility that they may have to pay a social compensation fee in relation to their older child who was also born out of wedlock. However, the Tribunal did not accept that the applicant's parents do not have the financial resources to pay the social compensation fee[26]. The Tribunal also found that there are family and friends in Australia who have assisted the applicant’s family in the past, and did not accept that the applicant’s mother’s parents would be unable or unwilling to assist their grandchildren to be registered[27].

    [26] CB 87 at [38]

    [27] CB 87at [40]

13. The Tribunal also did not accept that the applicant would be denied humanitarian aid in China for a Convention based reason[28].  While it accepted that his parents may be subject to a competitive labour market, it found that this does not amount to persecution for a Convention based reason[29].  Nor does China’s materialism amount to persecution for a Convention based reason[30]. Similarly, while the natural environment in China may not be as clean as in Australia, this was also not persecution for a Convention based reason[31].

    [28] CB 88 at [44]

    [29] CB 88 at [45]

    [30] CB 88 at [46]

    [31] CB 88 at [47]

14. The Tribunal reiterated its view that the applicant’s mother is not a genuine member of the Local Church, nor will she seek to practise there if she returns to China and thus neither she nor the applicant would be at risk of persecution for that reason if returned to China now or in the reasonably foreseeable future[32].

    [32] CB 88 at [48]

15. The Tribunal concluded, in its assessment of the Convention claim that there was no real chance that the applicant would be at risk of persecution on the basis of religion or membership of a particular social group in China. As the applicant did not have a well-founded fear of persecution for a Convention reason, he did not satisfy the criteria in s.36(2)(a) of the Migration Act[33].

    [33] CB 88 at [49]

16. The Tribunal then turned to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk he will suffer significant harm cf s.36(2)(aa)[34].

    [34] CB 88-89 at [50]-[58]

17. The Tribunal noted it had rejected the entirety of the claims in relation to his mother’s association with the Local Church in China which it found to be fabricated[35]. 

    [35] CB 88 at [50]

18. The Tribunal accepted that the mother had attended church in Australia, noting its finding that she initially did so to strengthen her own protection visa claim and noting also that s.91R(3) has no application to complementary protection claims[36].  However, the Tribunal found that she was not a genuine member of the Local Church and would not seek to practise Christianity if she returned to China[37].

    [36] CB 89 at [50]

    [37] CB 89 [51]

19. The Tribunal then reiterated its other factual findings, concluding[38] that the claim for complementary protection was not made out. 

    [38] CB at [56]

20. Thus the Tribunal affirmed the decision under review.

The present proceedings

1. These proceedings began with a judicial review application, filed on 26 August 2014, in the name of the applicant’s mother.  That issue was addressed at the first court date on 2 October 2014.  The applicant’s mother probably did not have standing to seek judicial review in relation to the decision made by the Tribunal on her son’s claim for protection.  However, at that time I appointed the applicant’s mother litigation guardian of her child, who is the real applicant. 

2. The application lists five “orders sought” and three “grounds of the application”.  The “orders sought” are in summary as follows:

   a)the Tribunal's decision is “unfair” as the Tribunal “did not consider my statement and explanation presented by my parents on my behalf” in relation to the applicant’s parents’ financial status and ability to pay a penalty for breaching China's family planning laws;

   b)the Tribunal “ignored” the applicant’s mother’s explanation for having a poor memory and “failed to exercise a careful consideration on my parents’ religious commitment and personal involvement in China and Australia with Local Church”;

   c)the Tribunal “failed to give a fair consideration on the evidence provided” in relation to the applicant’s parents’ ability to pay a penalty for breaching  China's family  planning laws;

   d)

   the Tribunal “wrongly interpreted and abuse the information about the car under my father’s name” and made an

   
   

   “unfair assessment on my family’s relatives” about their financial capacity; and

   e)the Tribunal “misinterpreted the relation between my parents and their families and produced wrong judgment for the financial aid we have access  to gaining.”

3. The  “grounds of application” are, in summary, as follows:

   a)the applicant has reason to believe he will be harmed in China as a result of his parents’ commitment to their religious practice;

   b)the applicant's parents will struggle to pay the social compensation fee penalty imposed for breaching China’s family planning law; and

   c)the applicant's family background will have a negative impact on him as an innocent child as a “black child”, thereby suffering disadvantage in medical, educational and social spheres.

4. It was agreed at the first court date that the matter should proceed to a final hearing today.  The applicant’s mother understood that, as she had attended in person with the assistance of a Mandarin interpreter.  When the matter was called today, there was no attendance by or on behalf of the applicant.  The matter has been called twice and on each occasion there was no appearance.  Before I came on the bench, my deputy associate attempted to contact the applicant’s mother on her mobile telephone number, with the assistance of the Mandarin interpreter.  That attempt was unsuccessful.  The phone call was diverted to a voicemail message. 

5. There is an explanation for the non-attendance of the applicant’s mother.  That is to be found in two file notes of the Minister’s solicitor on 10 September 2015[39]. Those file notes record two conversations between the solicitor and the applicant’s mother. The first file note records that the applicant mother indicated that she wished to terminate today’s hearing. The second file note records that she had contacted the Court registry with a view to filing a notice of discontinuance, but had been told that it was too late. That probably reflects the requirement in Rule 13.01 of the Federal Circuit Court Rules 2001 (Cth) (Federal Circuit Court Rules) for leave of the Court to be obtained for a discontinuance within 14 days of a final hearing.

   [39] Exhibit R1

6. Had the applicant’s mother attended today and sought that leave, it would probably have been granted. However, she has not attended and the Minister is represented by counsel and instructing solicitors, having prepared for argument on the issues raised on the application, as well as an additional issue properly raised by counsel for the Minister concerning the interpretation of s.91R(3) of the Migration Act. In that regard, it is noteworthy that the Tribunal purported to disregard conduct of the applicant’s mother in Australia, which raises the question of whether the Tribunal committed jurisdictional error, given that the conduct disregarded was not the conduct of the visa applicant. In view of the non-attendance of the applicant’s mother today, there is no opportunity to explore that issue, or, indeed, the issues raised in the application. It seems, further, that the applicant’s mother did not wish to further agitate the application.

7. I will order that, pursuant to rule 13.03C(1)(c) of the Federal Circuit Court Rules, the application be dismissed.

8. In relation to costs, the Minister seeks an order for costs fixed in the amount of $5,800.  That is below scale and takes account of the expressed wish of the applicant’s mother to discontinue the proceedings, although attendance by counsel and instructing solicitor at today’s hearing was reasonably required. 

9. I will order that the applicant’s litigation guardian is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,800.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate:

Date: 18 September 2015