SZVQR v Minister for Immigration & Border Protection
[2015] FCCA 1363
•22 May 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVQR & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR | [2015] FCCA 1363 |
| Catchwords: PRACTICE & PROCEDURE – Show cause hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth) – no arguable case for the relief claimed – application dismissed. |
| Legislation: Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13 |
| Abebe v Commonwealth of Australia (1999) 197 CLR 510 |
| First Applicant: | SZVQR |
| Second Applicant: | SZVQS |
| Third Applicant: | SZVQT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3169 of 2014 |
| Judgment of: | Judge Emmett |
| Hearing date: | 22 May 2015 |
| Date of Last Submission: | 22 May 2015 |
| Delivered at: | Sydney |
| Delivered on: | 22 May 2015 |
REPRESENTATION
| The first applicant appeared in person with the assistance of a Mandarin interpreter |
| Solicitors for the Respondent: | Ms Ramya Krishnan (Australian Government Solicitor) |
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3169 of 2014
| SZVQR |
First Applicant
| SZVQS |
Second Applicant
| SZVQT |
Third Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 14 November 2014, the applicants filed an application seeking judicial review of a decision of the Refugee Review Tribunal dated 20 October 2014 and handed down on 21 October 2014 (“the RRT”).
On 12 March 2015, the applicants attended a directions hearing before a Registrar of the Court.
The applicants confirmed that they wished to continue with the application for judicial review of the RRT’s decision. The applicants were given leave to file and serve an amended application giving complete particulars of each ground of review relied upon, together with any further evidence by way of affidavit, by 15 May 2015. The applicants were also directed to file and serve written submissions in support of the grounds of their application by 15 May 2015.
At the directions hearing, the applicants were provided with the contact details of legal services providers and interpreting and translation services in documents headed in their own language.
The matter was listed for today for a hearing pursuant to r.44.12 of the Federal Circuit Court Rules 2001 (Cth), a copy of which was given to the applicant.
Rule 44.12 of the Rules provides as follows:
“(1) At a hearing of an application for an order to show cause, the Court may:
(a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or
(b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or
(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.
(2) To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.”
Relevantly, r.44.13 provides:
“(1) At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application.”
The background of this matter, including the applicants’ claims and a summary of the RRT decision, are accurately summarised in the first respondent’s written submissions as follows:
“Background
3. The first named applicant (the applicant) arrived in Australia on 18 April 2005 on a student visa. She became unlawful on 8 June 2009, and applied for a protection visa on 9 October 2013: Court Book (CB) 1-48. The applicant’s de facto spouse and child, born in Australia on 22 September 2011, were included in the application as members of the applicant’s family unit. Each of the applicants is a citizen of the People’s Republic of China (China).
4. The applicant attended a Department interview on 3 February 2014. A delegate of the Minister refused to grant the applicants protection visas on 14 February 2014: CB 57-73. The applicants applied for review of the delegate’s decision on 12 March 2014: CB 74-79. They appeared before the Tribunal on 19 September 2014: CB 86-89.
5. The applicant claims that she is an adherent of the Local Church and that, if returned to China, she will be persecuted because of her religious beliefs and activities: CB 42-44. She claims that she and her partner can never marry as their parents disapprove of their union. Their families have cut them off financially: CB 43 at [4]. As a result, they cannot afford to obtain hukou registration for their son, and their son will be discriminated against: CB 44 at [8]; CB 132 at [48]. The second and third named applicants have not made claims in their own right: CB 127 at [14].
Tribunal’s Decision
6. The Tribunal affirmed the decision of the delegate on 20 October 2014: CB 123-135. The Tribunal found that the applicant was not a witness of truth and that she had fabricated her claims relating to the Local Church of China for the purpose of obtaining protection for her and her immediate family: CB 131 at [42].
7. Significantly, the Tribunal noted that the applicant had given inconsistent evidence with respect to the number of times she had been arrested for engaging in religious activities, and the circumstances in which those arrests occurred: CB 128-129 at [21]-[25]. In her written statement, the applicant claimed that she had been arrested 3 times – twice for attending gatherings at the Local Church as a student, and once for evangelising on a mission tour. However, before the delegate the applicant claimed that she had been arrested 4, not 3, times. And before the Tribunal, she claimed that she had never been arrested for attending gatherings of the Local Church. Rather, on each of the 4 occasions she was arrested, she had been evangelising on a mission tour.
8. The Tribunal found that the applicant’s evidence was implausible in a number of respects:
- the applicant’s parents did not care about, or were unaware of, the applicant’s religious upbringing: CB 127 at [19]
- the applicant was baptised into the Local Church at the age of 7 in circumstances where her parents were not members of the Local Church themselves, and the Local Church was banned in China: CB 127 at [19]
- her mother would have said nothing if she had been raped, or that her parents would not have reacted when told that she had been arrested for a third time: CB 129 at [28]
- the applicant’s school would not have made inquiries after she was missing for 2 days following her third arrest, especially as it had criticised and threatened to expel her the first 2 times she was arrested: CB 129 at [29]
- the Local Church allowed the applicant to attend its gatherings via the internet once in Australia or, if they did, that those gatherings were not discovered by the Chinese authorities: CB 130 at [33]-[35].
9. The Tribunal accepted that the applicant started attending the Bread of Life Christian Church in Sydney in March 2013: CB 131 at [39]. However, it considered that the applicant’s failure to attend a church for 8 years, and to apply for a protection visa for some 8.5 years, following her arrival in Australia cast doubt over the veracity of her claims: CB 129 at [30]-[31]; CB 130-131 at [36]-[37]. Accordingly, it was not satisfied that the applicant’s attendance at church in Australia was otherwise than for the purpose of strengthening her claims to be a refugee and pursuant to s 91R(3) of the Migration Act 1958 (Cth) (the Act), disregarded this conduct in assessing her claim to hold a well-founded fear of persecution: CB 131 at [39].
10. The Tribunal found that the applicant was not a member of the Local Church in China, and would not seek to practise Christianity if she were return to China: CB 132 at [44]. The Tribunal also found that neither of the second or third named applicants was Christian, or would be of adverse interest to the authorities should they return to China: CB 132 at [45]-[46].
11. The Tribunal referred to country information indicating that the 2002 Population and Family Planning Regulations of Fujian Province, where the applicant and her partner were born, provided that parents whose child was born ‘before the stipulated time’, but who obtained a marriage certificate within 3 months of being notified that they must pay the social compensation fee, are exempt from paying the fee. It found that the applicant and her partner intended to get married irrespective of their families’ views. Accordingly, it considered that they would not be required to pay a social compensation fee, and that they would be able to obtain hukou registration for their son: CB 134 at [55].
12. The Tribunal concluded that the applicant did not satisfy the refugee criterion. The Tribunal also found that she did not satisfy the complementary protection criterion. While accepting that s 91R(3) does not apply under the rubric of complementary protection, the Tribunal was not satisfied that the Chinese authorities would be aware of the applicant’s church attendance in Australia. Alternatively, it found that, even if the applicant had come to the attention of the Chinese authorities for her church attendance in Australia, she would not seek to practise Christianity in China: CB 134-135 at [57]-[61]. As a result, neither of the second or third named applicants were entitled to protection on the basis of being a member of the same family unit as the applicant: CB 135 at [62].”
The applicants were unrepresented before the Court this morning. The second and the third applicant, being the husband and the infant child of the first applicant respectively, did not appear. The claims of the second and third applicant are wholly dependent on that those of the first applicant. The first applicant confirmed with the Court that she was appearing on behalf of all applicants. In considering the matter this morning I will simply refer to the first named applicant as “the Applicant”, intending to cover all applicants.
The Applicant confirmed that she relied on the grounds of her application, which are set out under the heading “Orders Sought by Applicant”, as follows:
“1. I couldn't agree with RRT' s decision as it is unfair for me. I don' t think RRT has fully understood my background and my explanation on what has occurred in my poor life which lead me into a faithful person with commitment on gospels.
2. RRT ignored my clear explanation in writing and hearing on why I couldn't fix myself in a particular church a few years before I found the Bread of Life Christian church in Sydney in 2003 and received a baptism there. RRT should not ignore the fact that I had left Sydney and lived in distant area where I have no access to locate Chinese church around. I know about protection visa after I have close involved in my current church and that is why I delayed my application for protection, and this situation is apparently and totally beyond my control. Therefore RRT wrongly doubt about my credibility based on this misleading analysis end up made me innocent and vulnerable.
3. RRT failed to consider my childhood traumatic background that I have been sexually insulted. I put this particular in my statement and articulated in hearing as well, but unfortunately I don' t think this specific has been well considered in relation to my faith and commitment on religion.
4. RRT gave insufficient understanding in my family's background towards my religion and relationship with my partner, my child and our financial hardship in supporting a family, if we are forced to return to origin. The fact is that my relation with parents is broken and unable to gain any family support once we are in need. And this will make us fall into a stress, and harm both economically and psychologically.
5. RRT has ignored the church evidence provided to demonstrate my commitment and strong will in spreading gospels and if I do this to convey my vision I will be fallen into a disaster as preaching gospels is against law in China and such tragedy happens day by day.
6. RRT lack of consideration and fairness on my families' situation as whole, and the decision made us more stressed, emotional rather any relief in our current struggling life.
7. I actually had an operation and suffered from server bleeding one day before hearing and this substantially affected my memory and triggered stress physically and psychologically on me due to the medical side effect.” (errors in original)
Under the heading “The Grounds of the Application Are”, the applicant did no more than restate her claims.
The applicant made no further complaint to this Court, save to say that the reason that she was unable to represent herself at the RRT as well as she might was because of physical ill health, having recently had an operation. The applicant confirmed that she neither raised these factors with the RRT, nor provided to the RRT any documents to indicate to the RRT the complaints she makes today.
In a document headed “Submissions” filed in this Court on 5 March 2015, the Applicant made the following assertions:
“My name is [redacted] and my File number is SYG 3169/2014. I am writing to you to explain that why I had the poor performance at my interview with Refugee Review Tribunal and kindly ask if I can be granted another chance for Federal circuit court hearing.
My interview with Refugee Review Tribunal was held on 19 September 2014. However, just two days before the interview, i.e. on 17 September 2014, I had a C1N 111 operation. At that time, l was suffering great pains and continuous light hemorrhage. Moreover, I was under huge pressure as l was advised by the doctor that there would probably be several risks such as sterility and recurrence despite of the operation. The tumour might turns malignant. I was only 28 years old then and I couldn't image how my life would be If l lose the right of being a mother.
On 19 September 2014, though I struggled to attend the interview, my mind was all blank. I remained muddleheaded and was all wet with cold sweat. I totally had no idea of what I bad said. 5 days after the interview, I was sent to hospital due to sudden massive hemorrhage. I hadn't been told that the operation was successful until I had the review on 8 October 2014. During those days, I had been tortured by both physical pains and psychological pressure. I kept awake nights over nights. I was in extreme panic that one day I had to leave my son. my partner and my families,
Based on the aforesaid. I sincerely wish the Federal Circuit Court could kindly take into my compelling circumstances into consideration and make a favorable decision to me.” (errors in original)
Those submissions also annexed copies of medical records about her condition. None of these records were provided to the RRT. I explained to the Applicant that this Court has no power to interfere with the decision of the RRT unless this Court is satisfied that the decision of the RRT is affected by a mistake that goes to its jurisdiction. I explained to the Applicant that it cannot be a jurisdictional error on the part of the RRT for it to have failed to consider documents that were not given to it by the applicant; or to fail to consider complaints about her health or physical and psychological condition that were not raised by her at the RRT hearing.
The RRT hearing commenced at 9.17am on 19 September 2014 and concluded at 12.50pm. There appears on the RRT’s record to have been an adjournment at around 11.43am. The RRT’s decision record makes clear that it explored with the Applicant’s claim with her in some detail and put to her various matters of concern that it had about her evidence and noted the Applicant’s responses.
The RRT formed the view that the Applicant was not a witness of truth and that she had fabricated her claims in relation to the local church in China for the purpose of obtaining a protection visa. The RRT comprehensively rejected the Applicant’s claims of past harm in China; that she was ever a member of a local church in China; or, that she was ever of adverse interest to Chinese authorities. The RRT was satisfied that the Applicant would not seek to practice Christianity in a local church or the Bread of Life Christian Church in China if she was returned now, or in the reasonably foreseeable future.
The RRT made similar findings in respect of the second named applicant and found that he was not a Christian in China or in Australia. The RRT found that the third named applicant, being the child of the first and second named applicants, was also not a Christian.
The RRT ultimately was not satisfied that the applicants met the criteria for protection visas, either under s.36(2)(a) or s.36(2)(aa) of the Migration Act1958 (Cth). There is nothing to suggest that those findings were not open to the RRT on the evidence and material before it and for the reasons it gave, and indeed they would appear to be open to the RRT for the reasons given.
The Applicant’s complaints in the grounds of her application largely cavil with the adverse findings made by the RRT, thereby inviting merits review, which this Court cannot undertake (see Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 53-54; Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The RRT’s findings would appear to be open to it on the evidence and material before it and for the reasons it gave, including its adverse credibility findings. It is well established that credibility findings are a matter par excellence for the RRT (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J).
Further, it is well established that the RRT is not required to accept uncritically any and all claims made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 per Beaumont J; Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559 at 596 Kirby J; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 per Wilcox J). Nor does the RRT have to possess rebutting evidence before holding that a particular assertion was not made out (see Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 per Heerey J).
The Applicant’s allegations in the grounds of her application that the RRT’s decision was unfair; did not fully understand her background; wrongly doubted her credibility; ignored her explanations; did not understand her family background and ignored church evidence are not supported on a fair reading of the RRT’s decision record.
In relation to the complaint in ground 7 that the Applicant was suffering from physical and psychological stress at the time of the RRT hearing due to medical side effects, as stated above, this was not a matter that was raised by the applicant with the RRT. I accept the first respondent’s submission that the applicant bears the onus of establishing the absence of fitness to give evidence and that a hearing may proceed, notwithstanding some measure of psychological distress or disorder in the applicant (see SZFDEv Minister for Immigration and Citizenship [2007] HCA 35; NANJ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 270).
As stated above, the Applicant conceded that she did not raise any of these difficulties with the RRT. Moreover, the RRT’s reasons do not suggest that there was any difficulty with the applicants in answering the RRT’s questions or that her capacity to participate in the hearing was significantly diminished see (Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41 at [36] per Keane CJ and at [49] per Emmett J).
Whilst the applicant attached a document dated 19 August 2014 on Western Sydney Health letterhead to her application for a judicial review to this Court referring to a medical appointment on 17 September 2014. The document does not show that the applicant was suffering from any illness at the relevant time or was unfit to give evidence. The documents attached to the Applicant’s submission, to which I have referred above, are just bare documents that are not the subject of any report from which the Court could make relevant findings as to the condition of the Applicant at the time of the RRT hearing. The Applicant has provided no other evidence to this Court, despite having been given an opportunity to do so.
While I make no final decision as to whether or not the RRT’s decision is affected by jurisdictional error, the applicant has not identified any error on the part of the RRT that is capable of establishing jurisdictional error and none is apparent on the face of the decision record. The RRT referred to the relevant law in affirming the decision under review.
In the circumstances, I am not satisfied that the application has raised an arguable case for the relief claimed. Accordingly, in the exercise of the Court’s discretion under r.44.12(1) of the Rules and on the basis that the application does not raise an arguable case, the proceeding before this Court, commenced by way of application on 14 November 2014, should be dismissed pursuant to r.44.12(1)(a) of the Rules with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Emmett
Associate:
Date: 2 June 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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