SZEIA v Minister for Immigration

[2005] FMCA 1491

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEIA v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1491

MIGRATION – Review of decision of Refugee Review Tribunal – refusal to grant protection visa – applicant in breach of PRC one child policy – applicant fears forced sterilisation as father of three children.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474

Applicant: SZEIA

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2736 of 2004

Judgment of: Emmett FM

Hearing date: 11 October 2005

Date of Last Submission: 11 October 2005

Delivered at: Sydney

Delivered on: 11 October 2005

REPRESENTATION

The Applicant appearing for himself

Counsel for the Respondent: Ms. L. Clegg

Solicitors for the Respondent: Ms. E. Palmer, Clayton Utz

ORDERS

1. That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.

2. That the Refugee Review Tribunal be joined as Second Respondent.

3. That the applications before this Court be dismissed.

4. That the Applicant pay the Respondent’s costs in an amount of $4776.

5. That the Applicant pay the costs in accordance with Order 4 within 28 days unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2736 of 2004

SZEIA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the delegate”) not to grant a protection visa to the Applicant.

2. The Applicant was born in Gadcheng, Peoples Republic of China (“the PRC”) on 5 May 1971.

3. The Applicant claims to be a citizen of the PRC.

4. The Applicant claims to belong to a Chinese ethnic group and of no religious denomination.

5. The Applicant claims that prior to arriving in Australia he worked as a “farmer/driver”.

6. The Applicant has a wife, 2 daughters and a son who continue to reside in the PRC. The children are born on 16 August 1990, 23 July 1992 and 19 June 1997 respectively.

7. The Applicant claims that he legally departed from Shanghai on

   
   

   8 January 2004.

8. The Applicant arrived in Australia on 9 January 2004.

9. On 15 January 2004, the Applicant lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (“the Act”).

10. The Applicant claimed that if he returns to the PRC he will be targeted by the Chinese government and be persecuted by Chinese authorities because being a father of 3, he has seriously breached China’s one-child policy.

11. On 17 February 2004, the delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

12. On 17 March 2004, the Applicant lodged an application for review before the Tribunal. On 12 August 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.

13. On 3 September 2004, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

14. Pursuant to Short Minutes of Order made on 23 September 2004, the applicant filed a document entitled “Amended Application” on

    
    

    17 November 2004.

Legislative framework

1. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

3. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal Proceeding

1. Before the Tribunal, the Applicant relied on his statement in support of his visa application.

2. The Applicant’s claims were as follows:

   a)That he has 3 children in breach of the PRC’s one child policy.

   b)That he fears ‘persecution’ by Chinese authorities and has been targeted by the Chinese government for having breached the one child policy.

   c)That in 1992 he was fined after the birth of his second child, leaving his family in “significant financial hardship”.

   d)That in 1997 his third child was born, whereupon he was fined and his wife sterilised.

   e)That he escaped sterilisation by hiding from the hospital.

   f)That he is unable to work because he would be located by the authorities.

3. Before the Tribunal the Applicant made the following oral claims:

   a)He feared returning to the PRC because he would be forced to have the sterilisation operation as a result of which he would lose the ability to work because the operation is not very successful in the PRC.

   b)He stated that his wife does not currently work and his wife and children survive on support from relatives and friends. The Applicant stated that he is still married to the mother of his children. He stated that he would further be forced to pay a penalty for his third child as well as the sterilisation operation.

   c)The Applicant stated that he was a driver and a farmer and land that he had owned had been taken from him after the birth of his third child.

4. The Tribunal accepted that the Applicant is the father of 2 children in breach of the one child policy. The Tribunal did not accept that the Applicant faced forced sterilisation before leaving the PRC or that he would face sterilisation upon his return to the PRC. The Tribunal identified its reasons for that conclusion as follows:

   a)The Tribunal accepted that the Applicant’s wife underwent a medical procedure for sterilisation and that the Applicant remains married to his wife. The Tribunal stated that, given that the Applicant’s wife is now sterilised and his third child now 7 years old, and that the Applicant has remained married to his wife, the Tribunal did not consider it plausible that the authorities in the PRC would pursue the Applicant to force upon him sterilisation. Further, the Tribunal considered it implausible that the authorities would pursue the Applicant on his return to the PRC to force him to be sterilised. The Tribunal considered the Applicant’s evidence in respect of the effect of fines paid by the Applicant in the past for breaches of the one child policy as “vague and most imprecise such that the Tribunal cannot be satisfied that the imposition of the fine amounts to serious harm for the applicant.”

   b)The Tribunal also found unconvincing and incongruent that the Applicant could not afford to pay the penalty so he borrowed money to leave the country in circumstances where relatives and friends were assisting in the upkeep of his wife and children.

   c)Further, the Tribunal found that the one child policy in the PRC may be categorised as a law of general application and therefore any penalty imposed upon the Applicant was not done so in a discriminatory or persecutory manner for a Convention reason.

5. Accordingly, the Tribunal concluded that it was not satisfied that the Applicant has a well founded fear of persecution for a Convention reason on his return to the PRC and, therefore, having considered the evidence as a whole, the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Proceeding before this Court

1. On 3 September 2004, the Applicant filed an Application in this Court for judicial review of the Tribunal’s decision on the following grounds:

   “1.    The tribunal hadn’t explained to me the reasons why the tribunal may refuse my application before the tribunal made the decision on my application. I was therefore deprived of the chance of explaining myself in more details.

   2.  The tribunal officer did not accept the explanation and evidence that I provided at my hearing. I believe that the tribunal officer made jurisdiction mistakes when considering my application.”

2. On 23 September 2004, Short Minutes of Order were entered by consent directing the Applicant to file an amended application giving full particulars of each ground of review relied upon by 19 November 2004. On 17 November 2004 the Applicant purported to file a document entitled “Amended Application”. That document does not seek to identify particular grounds, rather, is in the nature of a written submission.

3. The Applicant was unrepresented before this Court today, however, he had the assistance of an interpreter. The Applicant re-iterated his claim that the Tribunal decision was wrong in that forcing sterilisation upon him was too cruel and was different from “the United Nations convention”. The Applicant stated that, if he was to return to the PRC, the authorities would force him to be sterilised. The Applicant asserted that he was not sterilised before he left the PRC because he ran away, however, the authorities are still looking for him. His submissions did not go beyond those matters raised in his documents filed before this Court.

4. The Applicant confirmed that he had not filed any other document in this Court in support of his application before this Court, other than the Application, filed on 3 September 2004, and his document entitled “Amended Application”.

5. Taking into account the Applicant’s original Application, filed on 3 September 2004, and his “Amended Application”, I understand his claims before this Court to be as follows:

   a)The Tribunal was biased in failing to accept that sterilisation “is so cruel that equals to persecution for a convention related reason” in circumstances where the Tribunal had approved applications for protection visas to “this special group of people”, being people forced to undergo sterilisation, before.

   b)The Tribunal was biased in accepting “what is favourable for his decision, but does not accept what is favourable for my application.”

   c)The Tribunal was biased in failing to find that the penalty imposed on the Applicant was done in a “discriminatory and persecutory manner.” The Applicant claimed that the penalty was “only carried out to our special group of people like us”.

6. The Applicant’s claims amount to a dissatisfaction with the Tribunal’s conclusion and the facts and reasoning by which the Tribunal reached that conclusion.

7. The Tribunal set out clearly the facts upon which it relied in its reasoning process to conclude that the Applicant was unlikely to be forced to be sterilised on his return to the PRC.

8. The Tribunal also had regard to independent country information that caused the Tribunal to consider that the one child policy in the PRC may be characterised as a law of general application.

9. There was no evidence before the Tribunal to suggest that the imposition upon the Applicant of any fine was done in a discriminatory or persecutory manner for a Convention reason beyond the Tribunal’s finding that the law providing for the imposition of a fine was one of general application. The Applicant claims that the penalty imposed is discriminatory and persecutory because it is carried out only to “our special group of people like us”. The Applicant describes the special group of people as those upon whom sterilisation is forced. However, there was no evidence before the Tribunal that the Applicant would be fined other than in accordance with the law relating to the enforcement of the PRC’s one child policy. In those circumstances, it was open to the Tribunal to find, as it did, that both the imposition of sterilisation and a fine would be pursuant to the general application of the law of the PRC in respect of enforcing its one child policy. In light of that finding, it was open to the Tribunal to find that there was no Convention related reason for which the Applicant may be persecuted.

10. In any event, the Tribunal did not accept that the Applicant was likely to be pursued to be forced to undergo sterilisation if he was to return to the PRC having regard to the age of his third child, being 7, the fact that he remains married and the fact that his wife had already undergone sterilisation.

11. The Applicant’s claims relating to prior grants of visa applications that were based on similar claims to that of the Applicant is not a ground of review. The Tribunal reviews each application before it on its merits and makes findings in respect of that application. In this case, the Tribunal considered the claims of the Applicant and in its conclusion revealed its findings of fact and its reasoning process upon which that conclusion was based. In those circumstances there is no jurisdictional error committed on the part of the Tribunal.

12. There was no claim before the Tribunal by the Applicant that he belonged to a particular social group. Nor do I understand his claim before this Court to be part of a particular social group beyond those that are forced into sterilisation in pursuance of the enforcement by the Chinese authorities of the law relating to its one child policy. In any event, the Tribunal did not accept that sterilisation would have been forced upon the Applicant had he remained in the PRC, nor that it would be forced upon him if he were to return to the PRC.

13. There being no jurisdictional error, the decision of the Tribunal is a privative clause decision and accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

14. The Application is dismissed with costs.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  11 October 2005