SZVIH v Minister for Immigration

[2016] FCCA 268

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVIH & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 268

Catchwords:
MIGRATION – Judicial review of decision of Refugee Review Tribunal (Tribunal) – whether Tribunal considered applicant’s claims – whether Tribunal afforded procedural fairness to applicants – whether Tribunal biased – no jurisdictional error.

Legislation:

Migration Act 1958 (Cth), ss. 36(2)(a), 36(2)(aa)

First Applicant: SZVIH

Second Applicant: SZVII

Third Applicant: SZVIJ

Fourth Applicant: SZVIK

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 2930 of 2014

Judgment of: Judge Manousaridis

Hearing date: 5 February 2016

Delivered at: Sydney

Delivered on: 5 February 2016

REPRESENTATION

The first applicant appeared in person assisted by an interpreter

Counsel for the Respondents: Ms A Wong

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The application is dismissed.

2. The first applicant pay the first respondent’s costs set in the amount of $3,600.

3. The Administrative Appeals Tribunal be substituted for Refugee Review Tribunal as the second respondent.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2930 of 2014

SZVIH

First Applicant

SZVII

Second Applicant

SZVIJ

Third Applicant

SZVIK

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

Introduction

1. The applicants are citizens of the People’s Republic of China (China).  They seek judicial review of the decision of the second respondent (Tribunal), affirming a decision of the delegate of the first respondent (Minister) not to grant the applicants Protection (Class XA) visas (Protection visa).

2. The first applicant (applicant) is the only applicant who made claims for protection.  The second applicant, who is the applicant’s husband, and the third and fourth applicants, who are the infant children on the applicant and the second applicant, applied as members of the family unit. 

3. In a statement that formed part of the applicant’s application for a protection visa the applicant claimed to fear harm due to her being a Christian, her family’s being devout Christians and members of the local underground church, and the applicant’s being in breach of China’s family planning regulations.

4. According to her statement, the applicant’s parents had been devout Christian believers since 1999, but due to the Chinese government’s regulation of Christianity they were compelled to worship in a local underground church. On 10 June 2001 the applicant’s parents were arrested while attending an underground church meeting.  The applicant, who had been left at home, remembered her uncle going to look for them at the home of a fellow Christian who had organised the meeting.  The applicant’s parents, together with 11 other people, were detained by the police, and suffered extensive torture, including beatings, interrogation and starvation.  After 48 hours the applicant’s parents were charged and placed into a labour camp for a period of three months, and fined 10,000 Yuan each.

5. Despite the torture and imprisonment, which left the applicant’s mother permanently scarred, the applicant’s parents continued to attend underground church gatherings.  The applicant, being impressed with their parents' resilience and commitment to God, herself began to attend gatherings with them in 2004, and was baptised in July 2005.

6. On 23 October 2005 the applicant and eight others were caught during a local church gathering.  As the applicant was only a teenager, she received an education from the police, and her parents were required to pay a 5000 Yuan fine.  After the applicant was caught, her family home was monitored by police on a suspicion that she and her parents were active members of the underground church.

7. After these incidents the applicant’s mother grew more anxious and concerned for the applicant’s safety.  After the applicant’s mother discussed her concerns with the applicant’s father the applicant’s mother decided it would be best to send the applicant abroad to study.  The applicant’s parents began to save, but, in the meantime, pretended to the police that they had seen the error of their ways, and no longer attended the underground church.

8. The applicant arrived in Australia in October 2006, and was attracted to the religious freedom enjoyed here.  Inspired by this, the applicant set out to study hard, and intended to spread this cultural message at the end of her studies on her return to China.  In 2007, during the Chinese New Year period, the applicant called her parents, only to learn that her parents had been arrested and detained for three months, after being caught attending an underground church gathering. 

9. The police believed the applicant’s parents to be repeat offenders, that they had sent the applicant abroad to contact foreign cults, and that the applicant was sending her mother anti-government materials hidden in health products.  The police requested her parents give to them the applicant’s address and contact information in Australia, and informed them that the applicant is to surrender to the police station immediately on her return to China.  The applicant’s mother warned the applicant never to return, and the applicant now feared that she would be detained if she did return.

10. While in Australia the applicant met the second applicant, and they married on 24 June 2011.  On 8 October 2011 they had a son, the third applicant.  The second applicant told the applicant of his and his family’s suffering in China, and advised the applicant to apply for a protection visa.  At the time the applicant applied for a protection visa she was pregnant with her second child, who is now the fourth applicant.  The applicant claimed to fear that the third and fourth applicants will be harmed because of China’s strict family planning rules.  The applicant also claimed she feared the practice of authorities, and, in particular, forcing her to have an abortion. 

11. And an interview before the delegate, the applicant made additional claims for protection.  She claimed that when she was apprehended on 23 October 2005 she was “detained for seven days, threatened every day and slapped in the face twice because she refused to write a statement”. The applicant also claimed to be actively practicing Christianity in Australia, first by attending a church in Padstow before the birth of the third applicant, and then at a family based church in Lidcombe.  In support of her claims the applicant provided to the delegate a baptism certificate purportedly issued on 20 September 2006 by a church in Fu King. The applicant had agreed that the issuing church was a legally operated church, and that it was there that she was baptised.  The applicant, however, maintained that she attended an underground church. 

12. The Tribunal did not accept the applicant’s claims.  It formed the view the applicant was not a witness of truth, and that she fabricated her claims in relation to the local church in China for the purpose of obtaining a protection visa.

13. The tribunal relied on a number of matters.  First, the Tribunal found there were inconsistencies between her written and oral evidence to the delegate, and within her own evidence to the tribunal.  In particular:

    a)In her application for protection the applicant stated her parents had been devout Christians since 1999, that they are members of an underground church in China, and had been arrested because of this on two occasions in 2001 and late 2006. At the hearing before the Tribunal, however, when asked if her parents had any problems after the applicant’s arrest in October 2005, the applicant responded that Chinese authorities “had harassed her parents every day, but despite this they continued to attend the underground church”; that they “sometimes went to her parents’ home”; and that her parents were very careful, and continued to attend monthly gatherings at the underground church. Despite further questioning about the experience of her parents the applicant failed to mention their having been arrested and detained for three months in late 2006, or their having been asked by police to provide to them her address and contact details in Australia, or directing them to inform the applicant to surrender immediately to the police station on her return to China.

    b)In her application for protection the applicant claimed she began participating in gatherings of the underground church with her parents in 2004, and was baptised in July 2005.  At the interview with the delegate, however, the applicant provided a baptism certificate issued by a church in Fu King at 20 September 2006; and before the Tribunal the applicant gave evidence that she was baptised in July 2005 in order to become a “genuine Christian”, and that she was baptised with government consent because “she felt sorry for God”.  The Tribunal put to the applicant that the date of issue on the certificate she provided was 20 September 2006, and the Tribunal also expressed its concerns about the authenticity of that document.  In response, the applicant claimed she “had forgotten”.  The Tribunal did not accept this explanation, finding it implausible that the applicant would be baptised in an official church she was not a member of – that church, and was a member of an underground church, as she claimed.

    c)In her application for protection the applicant claimed to have been arrested on 23 October 2005 at a gathering of the underground church, but, being a teenager she, was only educated by the police, and her parents were asked to pay a fine of 5000 Yuan.  In the interview before the delegate, however, the applicant claimed she was detained for seven days, threatened daily, and slapped in the face twice because she refused to write a statement. The Tribunal put this  to the applicant, who, in response, claimed she “was pregnant and in a bad at the time she wrote the statement”.  The Tribunal did not accept that explanation. 

14. In addition to these matters, the tribunal relied on three other matters

    a)First, the applicant claimed that because of her commitment to her faith, she was prepared to put her safety at risk and attend an underground church in China.  Before the Tribunal, however, the applicant gave evidence that after arriving in Australia on 7 October 2006, she did not commence attending church until 2010.  The applicant claimed to have attended a church in Padstow with a friend but, when asked, was uncertain of its name or its address, despite claiming to have attended one day every fortnight.  The Tribunal put its concerns about the delay to the applicant, who, in response, asserted that when she first arrived “she did not know many people”, “was scared” and “seldom went out, and stayed at home”.  While the Tribunal accepted the applicant may have felt this way initially on her arrival, it did not accept that she seldom went out and stayed at home, on the basis that she was a student at the time.  The Tribunal noted that, as a student, the applicant would also have had access to the internet and would have been able to search for a Chinese-speaking church in her area and also make inquiries of other Chinese-speaking students. 

    b)Second, although the applicant arrived in Australia on 7 October 2006, the applicant lodged an application for a protection visa only on 10 July 2013.  The Tribunal put to the applicant its concerns about the delay, to which the applicant responded that she was “unaware she could obtain a protection visa” and that it was only after meeting her husband that his family told her about protection visas.  The Tribunal did not accept this explanation, noting that had the applicant suffered the claimed harm and feared returning to China, she would have made inquiries about the options available to her.

    c)The third matter relates to the applicant’s claimed attendance of church in Australia.  The Tribunal did not accept the applicant attended a church in Padstow.  The Tribunal did accept the applicant had attended a church in Lidcombe since 2013, but the Tribunal was not satisfied that her attendance reflected a genuine belief in Christianity. 

15. The Tribunal also noted that the applicants claimed fear of China’s strict family-planning regulations.  The Tribunal noted that while the applicant in her application stated that she was pregnant with her second child, and that her children would be affected if she were to return to China, and that she feared the practice of forced abortion, before the Tribunal the applicant abandoned these claims because the policy in China had recently changed. 

16. The Tribunal concluded that the applicant was not a person in respect of whom Australia has protection obligations either pursuant to section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958 (Cth) (Act).  The tribunal consequently affirmed the delegate’s decision.

17. I now turn to the grounds of application before this Court.  In the application filed by the applicants, two grounds are stated.  The first is:

    RRT had discrimination on us.  Failed to consider my true situation that I am a Christian and I have two children.

18. This ground contains two claims.  The first is that the Tribunal discriminated against the applicants.  I asked the applicant, who is not legally represented, in what way she claimed she was discriminated against.  The applicant said the Tribunal member had a “poor attitude” because the applicant’s children were noisy. The applicant said she could tell the Tribunal member had a poor attitude “from her face”. 

19. The applicant’s claim the Tribunal showed a poor attitude is a bare assertion bereft of any details.  Even if the applicant’s assertion were made under oath, it could not, by itself, form a basis from which it could rationally be inferred that the Tribunal member discriminated against the applicants.  In any event, the material before me is incapable of raising any suspicion of discrimination.  The Tribunal set out the applicant’s claims and considered them in detail, giving reasons, which it was reasonably open to give, for making a decision, that was reasonably open to it to make, not to accept the applicant as a witness of truth. 

20. The second claim contained in the first ground is that the Tribunal did not consider the applicant’s true situation and that she is a Christian.  This claim assumes that the claims the applicant made before the Tribunal are true.  The Tribunal, however, did not accept the applicant’s claims.  It was for the Tribunal to determine whether it should accept the applicant’s claims.  Before the Tribunal could have decided whether it should or should not accept the applicant’s claims, it was under a duty to consider those claims.  As I have already said, the Tribunal did consider the applicant’s claims.  Unfortunately for the applicant, the Tribunal did not accept them.  As I have also already said, it was reasonably open to the Tribunal not to accept the applicant’s claims for the reason on which the Tribunal relied.

21. The second ground contained in the application is as follows:

    RRT is unfair to me.  They breached fairness procedure and refused based on their own judgment.

    The applicant made no submission in support of this ground.  This ground, unparticularised as it is, does not disclose any jurisdictional error. 

22. On the face of the Tribunal’s decision, it is apparent that the Tribunal raised with the applicant the concerns on which the Tribunal ultimately relied in refusing to accept the applicant’s claims. It is true that the Tribunal refused the applicant’s application based on its own judgment. That, however, was the task the Tribunal was under a duty to undertake. It had to decide whether it was satisfied that the applicant met the criteria specified in section 36(2)(a) and section 36(2)(aa) of the Act. The tribunal was not so satisfied, and it was reasonably open to it not to be satisfied for the reasons it gave.

23. The applicant also submitted that she had poor sleep before she appeared at the Tribunal and she was in a “bad mood”, which led her to give answers that were “out of order”.  These are bare assertions unsupported by evidence, and they do not relate to any of the two grounds in the application.  In any event, the applicant did not assert or submit to me that she made her bad mood known to the Tribunal. 

24. Further, as I have already noted, the applicant did submit to the Tribunal she was pregnant and in a bad mood when she wrote her statement which was provided in support of her application for a protection visa, and offered that as an explanation for omitting material in that statement.  She did not submit to the Tribunal that she was in a bad mood at the time she was before the Tribunal.  Accordingly, even had the applicant, on oath, said that she was in a bad mood as a result of poor sleep, I would not have accepted it.  And even if I were to accept it, there is nothing in the material before me which could have reasonably alerted the Tribunal that the applicant was in any way impaired in presenting her case.  And there is certainly no evidence before me from which it could rationally be inferred that the mood the applicant claims she had suffered was such as did, in fact, impair her in any way from effectively presenting her case to the Tribunal and giving evidence to the Tribunal.  The applicant’s assertion, therefore, does not disclose any jurisdictional error.

25. The applicant, therefore, has failed to show the Tribunal made any jurisdictional error.  I propose, therefore, to order that the application be dismissed. 

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 11 February 2016