SZOOU & Anor v Minister for Immigration & Anor [2010] FMCA 969 (2 December 2010)

Last Updated: 16 December 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOOU & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 969

MIGRATION – Review of RRT decision – applicants mother and son from China – where mother’s claim for protection related to her breach of the one child policy, her catholic faith and protest regarding the compulsory requisition of land she and her husband leased for farming – where applicant essentially seeking merits review.

Applicant A & Anor v Minister for Immigration (1996-97) 142 ALR 331

First Applicant:

SZOOU

Second Applicant:

SZOOV

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1786 of 2010

Judgment of:

Raphael FM

Hearing date:

2 December 2010

Date of Last Submission:

2 December 2010

Delivered at:

Sydney

Delivered on:

2 December 2010

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $5,500.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1786 of 2010

SZOOU

First Applicant

SZOOV

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application by two Chinese persons, a mother and her son, who arrived in Australia on 7 May 2008 and applied to the Department of Immigration and Citizenship for protection (Class XA) visas on 16 December 2009. The delegate of the Minister refused to grant them visas on 18 March 2010 and on 22 April 2010 they applied for review of the delegate’s decision from the Refugee Review Tribunal. They both attended a hearing before the Tribunal which took place, firstly, on 23 June 2010 and then on 29 June 2010. On 22 July 2010 the Tribunal determined to affirm the decision under review and handed its decision down on 23 July 2010.
2. The mother and son came to Australia as the holder of a student guardian and a student visa respectively. The majority of the Tribunal’s hearing time and decision was taken up with the claims of the mother. She asserted that she was a person to whom Australia owed protection obligations for a number of reasons. The first was that she found herself in breach of the Chinese government’s one child policy in that she had given birth to a daughter in 2007. She had done this in apparent disregard of a number of notices from her local authority requiring her to submit to birth control procedures. She told the Tribunal that she had been forced to have two terminations prior to the birth, claimed that she had to pay a bribe to have the child born in a hospital and given a birth certificate. She claimed that she was asked by the local authority to pay a social maintenance fee of 60,000 RMB in order to obtain a hukou for the daughter. She feared that if she returned to China she would be subject to further interference with her personal life by the Chinese authorities including possibly a forced sterilisation and would be made to pay an even larger sum of money for the daughter’s hukou.
3. Associated with the above claim was the fact that the applicant said that some land, which she and her husband had farmed under a lease from the local authority, had been requisitioned by that authority for the purposes of allowing the building of a major road. She said that she and her husband had not been offered compensation for this and they were unable to earn a living as a result of their farm being taken away from them. It later transpired that they had been offered compensation but the compensation appeared to equal the amount of the social maintenance fee which she was likely to have to pay for the daughter. In addition to the above two grounds the applicant also claimed that she was persecuted by reason of her adherence to the Catholic faith. She claimed that she was a member of an underground Catholic church but did not claim to have suffered any particular persecution as a result of that in China. She was fearful of what might happen to her if she returned and became active in the underground church. She stated that upon arrival in Sydney she commenced attending church services and had become a devout Christian.
4. The claims made by the son related, in effect, to the position of his mother. He seemed to be saying that he would face discrimination because his family had breached the family planning rules and because of the protest that his father had made about the inadequate compensation for the taking of his land. He stated that he was also a regular church attendant in Sydney and would have difficulties if he returned on that basis. Although he had entered Australia on a student visa he was no longer studying because he said he did not have sufficient funds.
5. The Tribunal questioned the mother in considerable detail upon her claims. She told this court that she had spent seven hours with the Tribunal and that is very possible but, of course, she did that over two separate occasions. It seems the Tribunal was determined to ensure that the applicant had every opportunity to put forward her claims and to respond to the concerns it had about her credibility. The Tribunal’s questioning of the applicant in relation to the family planning problems revealed that the information given by the applicant as to the attitude of the local authorities, was inconsistent with independent country information that the Tribunal had about these matters and which it put to the applicant. Perhaps most significant is the fact that the relevant local authorities did permit persons to have a second child under certain circumstances provided that they made an application, and it would appear that this applicant may well have been able to take advantage of that policy. The Tribunal also considered the applicant’s claims that arose out of the requirement to make a payment for her daughter’s hukou noting the independent country information indicated a figure less than that the applicant had put forward. The Tribunal appears to have doubted that the applicant’s financial situation was such as to prevent her from being able to pay this charge particularly when the evidence came out that she and her husband had indeed been offered compensation for termination of their lease and, of course, a substantial sum of money had been put up to obtain the student visa for the son.
6. The matters discussed above were constituents of the Tribunal’s finding that the applicant’s claims lacked credibility and this finding was strengthened when it came to consider her claims of religious persecution. The Tribunal noted that although the applicant claimed to be a devout Catholic she had not said so much in her protection visa application. It noted that although she claimed to be a devout Catholic she first commenced attending church in Australia soon after her arrival but gave up when she discovered that she could not understand the services even though she appears to have been living in an area where there were a number of services conducted in the Mandarin language.
7. The Tribunal found that the applicant was not able to satisfactorily explain why she resumed her attendance at the church she had previously stopped going to because she could not understand the services and did not accept her explanations. The Tribunal questioned the applicant on her religious understanding and found this lacking. It did not accept the applicant’s excuse that she was illiterate because she had been asked to read something to the Tribunal:
   • “The Tribunal considers that the applicant has sought to portray herself as illiterate and unable to read when it suits her to do so; however, at the hearing she demonstrated by her fluent reading of her hukou, and her initial evidence that she had read the bible, that she does have the capacity to read; she also demonstrated at the hearings that she can write. The Tribunal considers that this apparent lack of honesty and tailoring of her evidence reflects poorly on the applicant’s credibility.” [141] [CB 222]

The Tribunal concluded that it could not be satisfied that the applicant was a genuine adherent of the Catholic faith and therefore could not accept that when she went back to China she would join an underground church and fall foul of the authorities as a result of her activities within it.

8. In regard to the son the Tribunal concluded that he was a most unimpressive witness, that his oral testimony was extremely vague to the point that he appeared evasive and unhelpful. Even having regard to his age in assessing his evidence the Tribunal concluded that he should have been able to present his claims with some greater clarity if they had been genuine.
9. In its conclusions the Tribunal did not accept the claims in evidence of the son for the reasons given, did not believe that he would suffer any discrimination as a result of the matters raised by his mother, even if they had been accepted as truthful. The Tribunal did not consider that the confiscation of the applicant’s land constituted convention persecution. It found that the land had been seized for the construction of a road and that although the amount of compensation might have been considered inadequate by the applicant, neither the seizure nor the lack of compensation constituted serious harm that was directed against her or her family on a discriminatory or selective basis for any convention reason. In regard to the penalty imposed for breach of the FBR, the Tribunal did not think that that constituted convention persecution because it would result from the implementation of a law on general application.
10. On 17 August 2010 the applicant filed with the court an application seeking, on behalf of herself and her son, review of the decision of the Tribunal. There were three grounds of application. The first appears to be a statement of the applicant’s claims before the Tribunal and previously the delegate, who referred to her breaching the one child policy, her being a member of the underground church and that her land had been reclaimed. This does not constitute a ground of review. It is merely a statement of fact. The second ground of application repeated the allegation that the applicant had breached the one child policy and they were members of the underground church and stated that the applicant therefore had a well founded fear of persecution. If the court was to assess this matter it would be falling into the appealable error of granting the applicant merits review.

Finally, the applicant states in her application that the Tribunal did not take into account the above facts and therefore made a jurisdictional error.

11. The Tribunal’s decision record commences at [CB 195] and does not conclude until [CB 230]. It is clearly a very thorough account of the applicants’ claims in their protection visa applications, their hearing before the delegate and their hearings before the Tribunal. The Tribunal has dissected each of their claims and dealt with them. By no stretch of the imagination could it be said that the facts had not been taken into account. The Tribunal rightly, to my mind, identified by reference to Applicant A & Anor v Minister for Immigration (1996-97) 142 ALR 331, the difficulties in making a finding of that breach of the one child policy constituted a convention related form of persecution.
12. The Tribunal came to certain factual conclusions that were based upon its assessment of the applicants’ evidence and its comparison of independent country information. It decided, as it was entitled and indeed obliged to do if it so thought, that neither applicant was a credible witness. All these findings were available to it on the evidence. In my view the applicants have not been able to satisfy me that the Tribunal fell into jurisdictional error in the manner in which it reached its decision. The applications must therefore be dismissed. I order that the Applicants pay the First Respondent’s costs assessed in the sum of $5,500.00.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 15 December 2010