SZVQR v Minister for Immigration & Border Protection

Case [2015] FCCA 1363

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVQR & ORS v MINISTER FOR IMMIGRATION & BORDER PROTECTION & ANOR [2015] FCCA 1363

Catchwords:
MIGRATION – Refugee Review Tribunal.

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:
Migration Act 1958 (Cth) s.36

Federal Circuit Court Rules 2001 (Cth) rr.44.12, 44.13

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Ors (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Guo & Anor (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SZFDEv Minister for Immigration and Citizenship [2007] HCA 35
NANJ v Minister for Immigration and Multicultural Affairs [2003] FCAFC 270
Minister for Immigration and Citizenship v SZNVW [2010] FCAFC 41
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

  1. 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”).

  2. On 12 March 2015, the applicants attended a directions hearing before a Registrar of the Court.

  3. 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.

  4. 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.

  5. 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.

  6. Rule 44.12 of the Rules provides as follows:

    “(1)  At…

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Details
AGLC
SZVQR v Minister for Immigration and Border Protection [2015] FCCA 1363
Case
[2015] FCCA 1363
Decision Date

CaseChat Overview and Summary

This case concerned an application for judicial review brought by SZVQR (the applicant) and her de facto spouse and child against the Minister for Immigration and Border Protection. The applicant, a citizen of China, arrived in Australia in 2005 and applied for a protection visa in 2013, claiming she would face persecution in China due to her religious beliefs and activities as an adherent of the Local Church. Her de facto spouse and child, born in Australia, were included in the application. The delegate of the Minister refused to grant the protection visas, and the Refugee Review Tribunal (RRT) affirmed this decision. The applicant sought review of the RRT's decision in the Federal Court.

The primary legal issue before the Court was whether the RRT had erred in law in its assessment of the applicant's claims for protection. Specifically, the Court was required to consider whether the RRT's findings that the applicant was not a witness of truth, had fabricated her claims regarding the Local Church, and that her evidence was implausible in several respects, were supported by the evidence and the applicable legal principles. This included examining the RRT's findings regarding the applicant's inconsistent evidence about arrests, the implausibility of certain aspects of her religious upbringing and family reactions, and the RRT's assessment of her subsequent church attendance in Australia. The Court also had to consider the RRT's findings on the complementary protection claims and the ability of the applicant and her partner to obtain hukou registration for their son.

Emmett J found that the RRT had not erred in law. The Tribunal's finding that the applicant was not a witness of truth was based on significant inconsistencies in her evidence regarding her arrests for religious activities, which the Tribunal detailed. The RRT's assessment of implausibility in other aspects of the applicant's evidence, such as her parents' alleged lack of awareness of her religious upbringing and their reaction to her arrests, was also a permissible finding of fact based on the evidence before it. The Tribunal was entitled to consider the applicant's delay in attending church in Australia and applying for a protection visa as factors casting doubt on the veracity of her claims, and to disregard her subsequent church attendance under s 91R(3) of the *Migration Act 1958* (Cth) if it was satisfied her attendance was for the purpose of strengthening her refugee claim. Furthermore, the RRT's findings regarding the complementary protection claims and the ability to obtain hukou registration were also based on its assessment of the evidence and country information.

The application for judicial review was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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:“Background3. 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 Decision6. 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].”

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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