SZHIS v Minister for Immigration
[2006] FMCA 997
•10 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHIS v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 997 |
| MIGRATION – Refugee Review Tribunal – application for review of tribunal decision – application dismissed. |
| Migration Act 1958, s.424A |
| Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19 |
| Applicant: | SZHIS |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2952 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 10 July 2006 |
| Date of Last Submission: | 10 July 2006 |
| Delivered at: | Sydney |
| Delivered on: | 10 July 2006 |
REPRESENTATION
| Advocate for the Applicant: | In person |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Blakes Dawson Waldron |
ORDERS
The application filed on 14 October 2005 be dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,800.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2952 of 2005
| SZHIS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant in this matter entered Australia on 12 December 2004 on a business short stay visa. He applied for a protection visa on 24 January 2005. The matter came before a delegate of the Minister who refused the application for a protection visa on 18 March 2005.
The applicant then sought review by the Refugee Review Tribunal. The Tribunal made a decision on 15 August 2005. This decision was handed down on 6 September 2005. The decision was made after the applicant had attended a hearing conducted by the Tribunal on 10 August 2005.
The applicant's case was that he had had a child with his partner in China when he and his partner were unmarried. At the time, his partner was not old enough to be married according to the laws enforced in China. As a result the Birth Control Office intervened and the child's household registration was withheld. He said that the mother went into hiding until the child's birth and that a number of consequences followed, such as being denied the right to vote in the village election, withholding of his family's compensation for land, refusal of a reference certificate and cancellation of his car registration.
The Tribunal member accepted as plausible that the child's household registration was withheld but did not accept that he had been refused the right to vote as a result of the child being born out of wedlock. Nor did the Tribunal accept that if land compensation money was payable, it was withheld for this reason. Nor did the Tribunal accept that the village leader refused to give the applicant a reference certificate and that consequently he had to arrange for a forged one to get married. Similarly, the Tribunal did not accept that his car registration was cancelled because he had a child out of wedlock.
The Tribunal explained at page 7 of its reasons the matters that it relied upon in reaching this view about what of the applicant's version of events he had accepted and rejected. As a result of these findings the Tribunal did not accept that the applicant had a well-founded fear of persecution for a Convention reason and therefore found that the applicant did not meet the criteria for a protection visa.
In his application to this Court, the applicant relies upon three grounds. They are as follows:
1.The Tribunal failed to follow the requirements of the Migration Act 1958 s.424A.
2.The Tribunal did not make a genuine and realistic attempt to make the decision in a bona fide manner in that the Tribunal did not afford to the applicant the benefit of the doubt when there was no material to the contrary to what was being asserted by the applicant.
3.The Tribunal stated, also on page 8 of the decision record, that “any harm suffered by the applicant is a result of a law of a general application” and it “would not amount to persecution as stipulated by the Convention. The applicant contests that the one-child policy is a law against human rights and people being punished because they breach such law are suffering convention-related persecution.”
Ground One
The first ground is an allegation that the Tribunal failed to follow the requirements of s 424A of the Migration Act1958. It was apparent at the hearing that the applicant had no understanding of this ground and was unable to provide an answer when asked whether there were documents or information that he said the Tribunal relied upon, of which he did not get notice. He did not appear to understand that concept. There does not appear to be anything in the decision of the Tribunal or the brief Court Book that relates to this matter which falls within the ambit of s.424A.
No particulars or written submissions were lodged by the applicant. The applicant explained that he had a friend (whom he did not name) assist him in completing his application. As a result, I also inquired of him as to what he had told his friend in order to ascertain whether there was a factual basis to support this ground. The applicant repeated his claim and stated that he felt that the Australian government should show sympathy to him because he says he told the truth and he hopes that the Australian government would consider the circumstances. There did not appear to be anything that would fall within the first ground.
Ground Two
The second ground is an allegation that the Tribunal did not make a genuine and realistic attempt to make a bona fide decision. Making decisions about the facts and what evidence, if any, of the applicant is to be believed is the central function of the Tribunal. This is the Tribunal's role. That the Tribunal did not believe the applicant about all of the matters that he claimed does not show that they failed to make a genuine and realistic attempt to make a bona fide decision. Indeed, the reasons of the Tribunal show that the Tribunal member did consider the details of the applicant's claims and gave reasons for why the Tribunal accepted some but not all of the applicant's claims.
Ground Three
The third ground sets out that the applicant argues that the one child policy is a law against human rights and that people being punished because they breach such law is suffering Convention-related persecution. This does not clearly follow the process that the Tribunal must follow in deciding whether or not to grant a protection visa. As set out at page 2 of the Tribunal decision, article 1A(2) of the Convention defines a refugee as any 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 county 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.
The Tribunal concluded that the laws referred to were of general application and not directed to a particular social group nor applied in a discriminatory fashion. This is consistent with the statements by the High Court of Australia with respect to cases concerning issues related to China's one child policy. see Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 and Chen Shi Hai v The Minister for Immigration and Multicultural Affairs [2000] HCA 19. I see no error in the way in which the Tribunal has approached this issue.
Conclusion
In the circumstances, I am not satisfied that the applicant has made out a ground for judicial review. I therefore dismiss the current application.
I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 8 August 2006
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