SZHFG v Minister for Immigration - [2007] FMCA 736

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHFG v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 736

MIGRATION – RRT decision – Chinese woman claiming persecution under one-child policy – Tribunal found claims inconsistent with country information – no jurisdictional error identified – application dismissed.

Migration Act 1958 (Cth), ss.91R, 424A, 483A
Judiciary Act 1903 (Cth), s.39B, Pt VIII
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Acts Interpretation Act 1901 (Cth), s.8

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

Minister for Immigration v Jia (2001) 205 CLR 507
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425

Applicant:

SZHFG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2744 of 2005

Judgment of:

Smith FM

Hearing date:

9 May 2007

Delivered at:

Sydney

Delivered on:

9 May 2007

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the First Respondent:

Mr B Cramer

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2744 of 2005

SZHFG

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 27 September 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 4 August 2005 and handed down on 25 August 2005. The Tribunal affirmed a decision of a delegate made on

17 March 2005 refusing to grant a protection visa to the applicant.
Section 483A has been repealed, but the repeal does not affect the continuance of this proceeding (see Sch.1 cl.41 of the Migration Litigation Reform Act 2005 (Cth), and Acts Interpretation Act 1901 (Cth) s.8). The Court's jurisdiction is the same as that of the Federal Court under s.39B of the Judiciary Act 1903 (Cth), but it is subject to limitations under Pt.7, so that I do not have power to set aside the Tribunal’s decision and send the matter back to the Tribunal, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claims should be believed or whether she qualifies for a protection visa.
The applicant arrived in Australia on a temporary business visa in December 2004. On 18 January 2005 she lodged an application for a protection visa. Her application did not reveal the person who assisted her. It attached a short typed statement explaining her claims to fear return to her country of nationality, the People's Republic of China.
The applicant claimed: “I was the victim of the ‘one child policy’ in China”. She said that after her first child was born, she was criticised for declining a sterilisation operation. When she became pregnant a second time, she said “I have to stay at home without going out before my second daughter was born. I could not go anywhere, I knew that only I went out once, local official would find out that I was pregnant and I would be forced to have operation. I passed that period of time like staying in a prison.” Her second child was born in 1994, and she claimed that she was then “heavily fined and registration of the child was refused”. She was again “threatened me to have the sterilisation operation”.
The applicant said she became pregnant a third time in early 1996, and:
Six officials came to my home and forced me to go to hospital for operation. I was pushed to get into the theatre. I was so scared and took the chance to escape from the theatre before the operation began. I ran and ran and I fell on the river. Luckily I was saved by a farmer working around. I had to hide at my relative’s home before my third child was born. After the child was born, again I was refused the application for birth registration of that child and was fined heavily and my poor child could not enjoy the normal life in China. I came to Australia now; I hope that I can save my poor children so the children and I can have protection from Australia.
No corroboration of these claims was given to the Department nor on appeal to the Tribunal. The delegate refused the application, referring to Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 as having “found that those subjected to the policy do not constitute a particular group in relation to the Convention. Therefore I need not consider the applicant's claim in this regard any further.” However the delegate also noted: “that the applicant's claims appear far fetched”. The delegate noted that the applicant was not accompanied by her second and third children, and that they did not have an application before the Department, so that “their circumstances cannot be considered within this decision”.
The applicant attended a hearing to which she was invited by the Tribunal on 28 July 2005. The Tribunal gave a brief description of the applicant's evidence:
The applicant confirmed the details of her family circumstances. In response to questions, she stated that her children were living with their father and were attending school.
The applicant stated that she had been in hiding since the birth of her third child and the authorities wanted to force her to have a tubal ligation. However, she wanted more children and did not want to have the operation. She was in Australia because her husband, who farmed his own land, did not earn much money and she wanted to work and send money back to China to support her children. Eventually, she wanted to have her children and her husband in Australia.
I stated that the information I had on the operation of the country’s “one child” policy did not support her claims. In particular, compulsory sterilisation was very rare and, in rural areas, many families had more than one child.
The applicant stated that she wanted another child, which would mean more problems for her. I pointed out that some years had elapsed since the birth of her third child in 1997. She stated that she had been in hiding since then. I asked why it was not her husband who was sterilised. She said that Chinese did not know how to do it. Pressed, she clearly confused sterilisation with castration, so I did not further press the matter.
I asked about her application to come to Australia and the financial backing for her trip she would have had to demonstrate. She was very vague on the subject. She simply said that friends had advised her to get to Australia quickly, seek protection and then reunite here with her husband and children. In the meantime, she could work and send money back to China. I asked whether she had worked in China, to which she said that she had had only casual jobs and had not earned much money. Her husband also did not make much money (although, when I admired a particularly smart handbag and leather jacket she had, she explained that it had been sent from China, where it was cheap.)
In its statement of reasons, the Tribunal referred to general country information, which said: “Fujian has one of the least coercive family planning regimes in China”, and “family planning rules are more strictly enforced in the larger cities such as Xiamen and Fuzhou than in the poorer countryside. …In rural area of Fujian more than half of all families have more than one child.”
Under the heading “Findings and Reasons”, the Tribunal said that it could find no independent information that would justify the applicant going into hiding after the birth of her third child in 1997. It said that it did not accept that claim. It also did not accept her claim to have been threatened with an abortion in relation to her second child, because this was inconsistent with the situation suggested by the general information in relation to children of a farmer working his own land.
The Tribunal also said:
The fact that her children are in school suggests that either they are registered or they go to a private school. If the family is indeed as poor as the applicant claims, the latter is unlikely.
The Tribunal's conclusion as to the risk of future Convention-related persecution of the applicant if she returned to China was:
The “one child” policy and the laws and regulations giving effect to it are laws of general application, implementing a social policy which is designed to deal with the fact of China’s huge population. I do not find the policy and the laws and regulations persecutory in themselves. The country information cited above does not suggest that the implementation of them is persecutory. The applicant claims that she has had three children and wants more. I do not accept the last of these claims. She gave birth, according to her statements, to her children in 1992, 1995 and 1997. She has had no further children in nearly 8 years, despite wanting more, during which time she claims she has not practised contraception. While this is possible, it is very unlikely and I do not accept it. In any event, even if I am wrong, if she were to return to China, she would be discouraged from having more children, but not in a manner which is persecutory, and assisted to that end with advice and information about contraception. If all fails, the consequences would be a fine and further efforts to persuade her not to become pregnant again. I do not accept that any measures taken would be persecutory.
In the circumstances, I do not accept that there is a real chance of the applicant suffering harm amounting to persecution for any reason should she return to China in the foreseeable future.
I have considered the reasoning of the Tribunal and the procedures followed by it, insofar as they are shown by the evidence before me, and have been unable to identify any jurisdictional error affecting its decision.
The applicant has filed an application, and an amended application which repeats its grounds. The first ground alleges:
1. The Tribunal did not believe my claims because of the officer’s bias against me, the officer started to suspect my claims because he thought that my fake famous handbag was a genuine one, and did not believe my claims.
When on 21 March 2006 I listed this matter for a final hearing today, I specifically drew the applicant's attention to the need for her to consider whether she should file a transcript of the Tribunal's hearing in support of this claim. However, she has not done so, and has presented no evidence in support of the allegation of bias.
Reading the Tribunal's description of the hearing, I am not satisfied under the tests of actual or apprehended bias that there is any substance to this ground (see Minister for Immigration v Jia (2001) 205 CLR 507 at [35] and [72], and Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at [27-32] respectively). I do not consider that the fact that the Tribunal enquired about the applicant's financial circumstances, and made a comment concerning the appearance of her handbag when doing so, reveals that it might not have brought an open mind to its ultimate assessment of her evidence and claims.
The second and third grounds of the amended application contend that the Tribunal “misunderstood my claims” and “referred to some wrong independent information”. They argue:
It was true that people living in rural area can have two children under conditions, but never three. The Tribunal officer made jurisdictional errors because he wrongly applied the independent information. He misunderstood my claim.
However, I do not accept that the Tribunal misunderstood the claims which had been made by the applicant. It identified them accurately from the brief written statement attached to the visa application and, so far as I can discover, from the oral evidence given by the applicant to the Tribunal at the hearing. The evidence suggests that the applicant maintained that she was persecuted for having more than one child, and it is not apparent to me that she ever made the present concession that she was permitted to have a second child.
The identification by the Tribunal of relevant general information and the weight it gave to that information was a matter within the Tribunal's jurisdiction, and I am not satisfied that its use of independent information revealed any jurisdictional error. I consider that it was open to the Tribunal to find inconsistency between the information it identified and the claims made to the Tribunal.
The fourth ground in the amended application contends that the Tribunal's decision “was not supported by rational or logical foundation, it was not supported by evidence”. However, I would not characterise the Tribunal's reasoning with any of those features. I consider the Tribunal's reason was rational, and was open to it upon the evidence which appears to have been before it.
The applicant did not file a written submission, but attended today with a brief submission in Chinese which was read to the Court by the interpreter. This repeated un-particularised contentions of a jurisdictional error, which are frequently made to the Court, concerning non-compliance with s.91R and s.424A. It also repeated the contentions made in the amended application, without giving further development to them.
Her recited oral submission also presented a misconceived interpretation of s.424A(1), by suggesting that this section required the Tribunal to foreshadow its reasoning processes to the applicant in writing. However, the section does not require that, and I am unable to identify in the Tribunal's reasoning any information which formed a part of its reasons for affirming the delegate's decision which should have given rise to an invitation under s.424A(1).
The applicant's only other submission was that she should have been believed by the Tribunal, and that I should believe her. However, the credibility of her claims was a matter for decision by the Tribunal alone. I can find no jurisdictional error revealed by its reasoning about her credibility.
For the above reasons I am not satisfied that the Tribunal's decision was affected by jurisdictional error. It is therefore a privative clause decision and I must dismiss the application.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 23 May 2007