SZVSL v Minister for Immigration

[2016] FCCA 1664

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVSL & ORS v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 1664

Catchwords:
MIGRATION – Application to review decision of former Refugee Review Tribunal – whether the Tribunal failed to consider the Applicants’ claims or evidence in a manner constituting jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), s.36(2A), 425

Cases cited:

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCAFC 10

First Applicant: SZVSL

Second Applicant: SZVSM

Third Applicant: SZVSN

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3276 of 2014

Judgment of: Judge Barnes

Hearing date: 21 June 2016

Date of Last Submission: 21 June 2016

Delivered at: Sydney

Delivered on: 21 June 2016

REPRESENTATION

The First Applicant: In Person

Solicitors for the Respondents: Australian Government Solicitor

ORDERS

1. The name of the Second Respondent be amended to read “Administrative Appeals Tribunal”.

2. The application be dismissed.

3. The First and Second Applicants pay the costs of the First Respondent fixed in the sum of $3,800.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3276 of 2014

SZVSL

First Applicant

SZVSM

Second Applicant

SZVSN

Third Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. The Applicants are a wife, her husband and one of their children.  The first two Applicants arrived in Australia in 2007, leaving a child in China.  A second child born in Australia, returned to China in 2007.  A third child, who is the Third Applicant, was born in March 2011.  The three Applicants sought a protection visa by application filed in August 2012.  A fourth child was born to the First and Second Applicants after the delegate’s decision.  In the protection visa application the First Applicant (referred to for convenience as the Applicant) claimed to fear persecution in China as a practitioner of Falun Gong and on the basis that her two youngest children had been born in breach of China’s family planning regulations and would be discriminated against as black children.

2. The application was refused.  The Applicants sought review by the Tribunal.  The adult Applicants participated in a Tribunal hearing.  The only evidence before this Court of what occurred in the Tribunal hearing is the Tribunal’s account in its reasons for decision. 

3. The Tribunal recorded that the First Applicant made protection claims on her own behalf and for the Third Applicant and that her husband also claimed that he did Falun Gong exercises in Australia and that to that extent, a protection claim arose.  He also sought protection as the father of the Third Applicant.

4. The Tribunal summarised these claims as claims the First and Second Applicants were Falun Gong practitioners and had breached China’s family planning regulations and that as the Third Applicant was born in breach of the Chinese family planning regulations she was a “black child”. 

5. The Tribunal noted that the First and Second Applicants had had a fourth child since the delegate’s decision and that this was relevant to their family planning regulations claims, but that as the fourth child was born after the delegate’s decision, she was not before the Tribunal as an applicant.

6. The Tribunal set out in some detail the claims made by the First and Second Applicants in relation to Falun Gong.  Included in that account was the Tribunal’s explanation of issues it raised with the Applicants at the hearing, in particular concerns that it raised with the Applicant about aspects of her claims, the effect of independent information, a perceived lack of logic and inconsistencies in aspects of her claims (which it detailed), her delay in seeking protection in Australia and the relevance of the fact that she had voluntarily sent her second child back to China.  It also recorded the evidence of the Second Applicant about his involvement in Falun Gong activities.

7. The Tribunal summarised the discussion at the hearing of the family planning regulations claims. It recorded that it put to the Applicants the effect of independent country information as to the availability of household registration on payment of the applicable social compensation fee, the likely amount of such fee in the Applicants’ circumstances, the evidence before the Tribunal in relation to the Applicants’ financial ability to meet such a fee and the Applicant’s response in that respect.  The Tribunal also recorded a discussion with the Applicant of the consequences if the third child or the additional children generally were not registered. 

8. Having set out these matters in some detail, the Tribunal found that it did not accept that the Applicant was a Falun Gong practitioner now, that she was a Falun Gong practitioner in China or that her father was a Falun Gong practitioner as she had claimed.  Hence, it did not accept that she was ever the subject of adverse attention by the Chinese authorities for that reason, or that she had written protest notes about her father’s detention in a labour camp due to his Falun Gong involvement.  The Tribunal did not accept that the Applicant’s father had been detained on any of the occasions claimed by the Applicant or that the Applicant herself was detained.  It did not accept that she paid for her passport and obtained it through connections and would otherwise not have been able to depart China.  The Tribunal was satisfied, for reasons which it went on to give, that the Applicant had fabricated these claims in order to remain in Australia. 

9. The Tribunal referred to the fact that at the hearing it had put to the Applicant that there were several aspects of her claims as presented and in the context of independent information which raised doubts about whether her claims were true.  It referred to the concerns it had raised with the Applicant set out in its recitation of the evidence at the hearing and the Applicant’s responses. 

10. In light of that detailed evidence, the Tribunal made a number of observations relevant to its conclusions.  It found that the Applicant knew almost nothing about Falun Gong at the time she was interviewed by the delegate and very little at the time of the Tribunal hearing and that her level of knowledge was not what might reasonably be expected of a person who had been practising and studying Falun Gong since 2004 as she claimed. 

11. The Tribunal observed that, apart from the husband who had a strong interest in the outcome of the review, there were no witnesses or any other form of support or corroboration for the Applicant’s claims about events in China or to support her claim to have been involved with Falun Gong in Australia since 2007. It found that there were significant inconsistencies in the Applicant’s claims at each stage of the process from protection visa application to delegate’s interview to hearing (which it had set out in detail) and that the Applicant’s responses did not persuade it to set aside those concerns. 

12. The Tribunal also had regard to the fact that the Applicant raised new claims at the hearing which were “obviously significant, clearly relevant, and closely connected” to matters she had raised earlier.  It was satisfied that these new claims were fabricated to bolster the Applicant’s chances of obtaining protection after the initial refusal. 

13. The Tribunal found that the Applicant’s claims to have been suspected of being a Falun Gong practitioner and of being a member of the family of a well-known practitioner was inconsistent with independent information that such persons would have difficulty obtaining a passport and departing from China (which it found was not the case in the Applicant’s situation).  It also found that the Applicant’s claims about a “pattern of diminishing seriousness” in the level of punishment of her father was not consistent with either logic or the harsh treatment meted out to Falun Gong practitioners by the Chinese authorities. 

14. It found the very long delay between the Applicant’s 2007 arrival in Australia and the 2012 protection visa application was inconsistent with a genuine fear of persecution and that the Applicant’s explanations for the delay were not persuasive.  In addition, it did not accept that the parents would voluntarily send their second child back to China if the Applicant’s father was subject to constant adverse attention by the Chinese authorities, especially as the Applicant claimed to have had personal experience of adverse treatment of family members of Falun Gong practitioners. 

15. The Tribunal also had regard to the fact that the Applicant had voluntarily approached the Chinese Consulate in Sydney to obtain a passport for her second child, while at the hearing she claimed she had not asked Falun Gong practitioners in Australia about seeking protection because people here would tell the Consulate and cause trouble for their family. 

16. The Tribunal reiterated that the Applicant had not provided any material or evidence which might support or corroborate her claims, except the equally unsupported evidence of the husband.  It had regard, in particular, to the absence of any support from local Falun Gong practitioners or associations in Australia, which the Tribunal considered would be easy to obtain if the Applicant’s claims of regular practice here were true.  It was satisfied that the Applicant had not provided evidence from such an obvious source as fellow Falun Gong practitioners in Australia because she did not engage in Falun Gong practice in Australia. 

17. The Tribunal stated that while it relied on the Applicant’s demonstrated lack of knowledge of Falun Gong, it acknowledged that her lack of familiarity with basic aspects of Falun Gong practice was less marked at the Tribunal hearing.  It was satisfied that this was because she had made some effort to acquire more knowledge of Falun Gong practice in preparation for the Tribunal hearing and not as a result of Falun Gong practice.  It found that her knowledge of and familiarity with Falun Gong was not only sparse, but also not commensurate with what might reasonably be expected of a person who had been a practitioner since 2004, who had persisted despite adverse consequences in China and who had been able to practise openly in Australia with other practitioners on multiple occasions in multiple settings, including study sessions, as she claimed. 

18. The Tribunal concluded that the Applicant was able to obtain a passport and leave China through airport security because she was not a Falun Gong practitioner in China or suspected of being one and that she had never been the subject of adverse attention by the authorities for this or any other reason.  For the same reason it was satisfied her father was not a practitioner and was never the subject of adverse attention. 

19. As the Tribunal did not accept that the Applicant was a Falun Gong practitioner now, or that she had been in China, it did not accept she was subjected to harm in China, that she left China because she feared harm, or that there was any chance she would be at risk of harm for this reason if she returned to China. 

20. For the same reasons, the Tribunal did not accept that the Second Applicant had engaged in Falun Gong practices.  It was satisfied his claim had been fabricated to advance the Applicants’ migration intentions. 

21. The Tribunal considered the claims about breach of Chinese family planning regulations but found that independent information it cited indicated that the parents would be able to obtain household registration for their children born in breach of the family planning regulations on payment of a social compensation fee.  It referred to the likely quantum of that fee in the Applicants’ circumstances.  It also had regard to the fact that the parents of an unregistered child could still educate the child in the private sector and that school fees were not considered exorbitant by Chinese standards.  It found that as only government employees had government assistance for their children’s medical expenses, this did not affect the Applicants any more than it did other non-government employees. 

22. The Tribunal was satisfied that China’s family planning laws were a legitimate measure adopted to achieve a particular social outcome sought by China’s government and were applied in a non-discriminatory manner to achieve that objective and did not amount to persecution within the meaning of the Refugees Convention criterion. 

23. The Tribunal found that the requirement that the social compensation fee be paid by two relatively young, able-bodied adults with higher than usual educational levels and significant employment experience who had families who had provided significant assistance in the past and might be expected to be able to assist in the future, did not amount to significant harm within s.36(2A) of the Migration Act 1958 (Cth). It was satisfied that enforcement of China’s family planning regulations against the adult Applicants did not amount to significant harm within the Act, but amounted to no more than a significant financial detriment which was not insurmountable and was not imposed in a discriminatory, vengeful or deliberately humiliating manner, but was applicable to all Chinese citizens who breached the regulations.

24. For the same reasons, the Tribunal was also satisfied that the hardship which would be involved in the Applicants meeting their additional children’s educational expenses was not so onerous as to amount to significant harm. 

25. The Tribunal considered the claims for the Third Applicant if she remained unregistered. It was satisfied on the basis of cited independent information that the Third Applicant would not be deprived of education by reason of fees being payable as (for the reasons given) there was no evidence to indicate that such additional fees were beyond the financial capacity of the parents.  It noted that China did not have a universal free healthcare system so that the financial impost would be the same whether or not the child was registered. The Tribunal accepted that independent information indicated that “black children” were unlikely to experience discrimination or social ostracism for this reason and that while there was some social disapproval of parents who did not comply with the regulations, there was no evidence that such disapproval was so serious as to amount to persecution or significant harm. 

26. The Tribunal found that none of the Applicants met the Refugees Convention or complementary protection criteria for a protection visa and hence that they could not meet the criteria for members of a family unit. 

27. The Applicants sought review by application filed in this court on 25 November 2014.  In a supporting affidavit the Applicant claimed they were at risk on the basis of their Falun Gong practice.  Such claim seeks impermissible merits review. 

28. The application itself contains three numbered paragraphs under the heading “Grounds of the application” which restate the Applicant’s claims.  As the First Respondent submitted, this part of the Application does no more than reiterate the claims for protection made by the Applicants before the delegate and the Tribunal.  As I endeavoured to explain to the Applicant, merits review is not available in this court and these claims do not identify any legal error on the part of the Tribunal, let alone one going to the Tribunal’s jurisdiction. 

29. In addition, there are five numbered paragraphs under the heading “Final orders sought”.  The Applicant was given the opportunity to elaborate on the basis for her claims of error in the Tribunal decision or procedures and to tell the court of any concerns she had in that respect.  She reiterated her claims to protection, but did not identify any arguable jurisdictional error in the decision or procedures of the Tribunal.

30. The first paragraph under the heading “Final orders” expresses disagreement with the Tribunal decision as follows: 

    We couldn’t agree with RRT’s decision because it is unfair for me and failed to take a good and reasonable consideration for our fear to return to origin.  We feel very much upset about our fate and future because such decision caused us an endless concern, stress, trauma and anxiety.

31. The general contention that the Tribunal decision was “unfair” does not establish jurisdictional error.  There is nothing in the material before the court to support any claim that the Tribunal’s reasoning was illogical or unreasonable, let alone in such a way as to amount to jurisdictional error.  The Tribunal rejected the Applicant’s Falun Gong claims in circumstances where it made adverse credibility findings.  Such findings were open to the Tribunal on the material before it for the reasons which it gave.  Insofar as this ground may be seen as asserting a failure to consider an aspect of the Applicant’s claims, it is not made out.  It is clear from the Tribunal’s reasons for decision that it considered the integers of the Applicant’s claims. 

32. Furthermore, insofar as this may be seen as a complaint about the approach at the Tribunal hearing, it is apparent from the Tribunal’s account of the hearing (the only evidence in that respect before the court) that it discussed with the Applicants their claims, raised concerns and dispositive issues with the Applicants (particularly the First Applicant) and gave them the opportunity to respond to such concerns.  It addressed those matters in its reasons.  The Applicants’ disagreement with the Tribunal’s conclusion and their expressed concern about their present psychological states is not such as to establish jurisdictional error on the part of the Tribunal.  Paragraph 1 does not establish jurisdictional error. 

33. Paragraph 2 raises more than one issue.  It states first that the Tribunal failed to consider that the First Applicant was the mother of four children who would be negatively affected if they were found to be Falun Gong practitioners in China.  Insofar as this may be seen as suggesting that the Tribunal should have considered a fear of persecution or significant harm on the part of all of the Applicants’ children, only one of those children was the subject of the Tribunal review. The Tribunal considered the claims made for the Third Applicant insofar as necessary to do so.

34. Importantly, the Tribunal acknowledged that the Applicants had four children, but that only one child was a party to the review application. It considered the relevance of all the children to the claims made in relation to the family planning regulations.  Insofar as this ground is based on the assertion of potential harm to the children if the Applicants were found to be Falun Gong practitioners, as indicated, the Tribunal considered this claim, but did not accept that the Applicants had been Falun Gong practitioners in China or that they were now Falun Gong practitioners.  As it rejected such claims as fabricated it was not necessary to consider the implications for a child whose parents were Falun Gong practitioners.

35. This ground also claimed that the Tribunal failed to take the Applicants’ “commitment on faith” into account and ignored the fact that Falun Gong family members were mistreated in China.  However, the Tribunal considered the First and Second Applicants’ claims about their commitment to their faith, but was not satisfied in that respect.  It understood the claims made in relation to mistreatment of family members, but as it did not accept that the First or Second Applicants or the First Applicant’s father were Falun Gong practitioners, it was not necessary for it to go on to consider whether they would face harm as such or whether their child would face harm as a family member of a Falun Gong practitioner.  Paragraph 2 does not establish jurisdictional error.

1. In paragraph 3 it was contended that the Tribunal failed to consider the fact that the First Applicant was a person of limited education, weak memory and that it was hard for her to articulate her background in detail due to her “stressful mood” in the interview and at the hearing. It was claimed that she could not make “a clear and exact account in Falun Gong theory” but that she was committed to her belief.

1. There is nothing in the Tribunal’s reasons to suggest that the Applicant had, or appeared to have, any difficulty in presenting her evidence during the hearing or that she was in any way unwell.  Insofar as this may be seen as an assertion that the Applicant was unfit to participate in the Tribunal hearing, there is no evidence to support such a claim. Nor is there any evidence to suggest that the Applicant raised such matters with the Tribunal as an explanation for the inadequacies in her evidence.  The Tribunal set out at some length the concerns it raised with the Applicant about her knowledge of Falun Gong and her evidence in that respect and her responses.

2. It has not been established that the Applicant was unfit to participate in the Tribunal hearing or that there was any failure by the Tribunal to comply with its obligations under s.425 of the Migration Act to afford the Applicant a meaningful opportunity to give evidence and present arguments in relation to the issues arising in relation to the decision under review or that it otherwise fell into jurisdictional error on the basis contended for in paragraph 3.  

3. In paragraph 4 the Applicants again claimed that the Tribunal failed to consider the adverse impact on the children in China due to their parents’ background, in particular under the family planning laws.  The Tribunal considered such issues, in particular it considered the consequences for the Applicants if they wished to register all the children born in breach of the family planning regulations.  It also specifically considered the claim that the Third Applicant (the only child who was a party to the proceedings) would be a black child.  No error is established on that basis.

4. To the extent that the Applicants otherwise complain that the Tribunal failed to consider the position of the other children, those children were not included in the protection visa application or review application.  The Tribunal was not required to consider any claims they might have for protection.  It did consider the implications of their situation for the parents.  The Applicants’ assertion that they were unable to pay the social compensation fee seeks impermissible merits review.  No jurisdictional error is established on the basis of the matters asserted in paragraph 4.

5. Finally, in paragraph 5 it is contended that the Tribunal undertook an “unfair review” by taking into account “irrelevant” country information.  The Applicant was unable to elaborate on what was intended by this ground.  It is well-established that the selection and weight to be given to items of independent country information is a matter for the Tribunal (see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]). At the hearing the Tribunal raised dispositive issues, including in relation to the effect of relevant independent country information, and gave the Applicants the opportunity to respond. There is nothing in the material before the Court to support any contention that the use the Tribunal made of country information was unreasonable, illogical or irrational in a manner amounting to jurisdictional error. Paragraph 5 does not establish jurisdictional error.

6. In submissions the Applicant today reiterated her claims. Such contentions do not go beyond seeking merits review. She also complained that this matter was stressful, that she had a poor memory and could not be articulate.  This seems to reiterate the claims made in paragraph 3 in the application. These claims are not such as to establish jurisdictional error on the part of the Tribunal.

7. I note for the sake of completeness that there is nothing to indicate that the Applicant was unable to participate effectively in this hearing. Insofar as she appeared to express concerns on the basis that the Court would be deciding whether or not she was a refugee, as I explained to her, that is not the case.

8. As no jurisdictional error has been established on any of the bases contended for, the application must be dismissed.

9. The Applicants have been unsuccessful. The Applicant told the Court that she had insufficient money to pay the costs of $3,800 sought by the First Respondent. I am not satisfied that her claimed impecuniosity is a reason for departing from the normal principle that unsuccessful applicants should meet the costs of the First Respondent, although it may be a matter to be taken into account by the Minister in determining when and how to seek to recover such costs. The amount sought is considerably less than the amount provided for in the Federal Circuit Court Rules. It is reasonable and appropriate in the light of the nature of this and other similar matters. The costs should not be paid by the Third Respondent, who is a child.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Judge Barnes

Date: 5 July 2016