SZHVB v Minister for Immigration - [2006] FMCA 491

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZHVB v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 491

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China – no reviewable error found – application dismissed.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.424A

Chen v Minister for Immigration (2000) 201 CLR 225
NABE v Minister for Immigration (No 2) (2004) 144 FCR 1
SZBOV v Minister for Immigration [2005] FCA 1407
SZDGB v Minister for Immigration & Anor [2006] FMC 341
SZEEU v Minister for Immigration [2006] FCAFC 2

Applicant:

SZHVB

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3668 of 2005

Judgment of:

Driver FM

Hearing date:

7 April 2006

Delivered at:

Sydney

Delivered on:

7 April 2006

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondents:

Mr G Johnson

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, pursuant to rule 44.15(1) and item 1(c) of Part 2 of Schedule 1 of the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3668 of 2005

SZHVB

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application for an order to show cause why relief should not be granted in relation to a decision of the Refugee Review Tribunal (“the RRT”). Pursuant to orders made by me on 30 January 2006 the application was listed today for a final hearing. The decision was handed down on 15 November 2005. The application was filed on 14 December 2005. That application asserts notification of the decision on 24 November 2005. On that basis I find that the application was filed within time.
The applicant is from China. He arrived in Australia on 20 March 2005. On 14 April he lodged an application for a protection visa with the Minister's department. On 6 July 2005, a delegate of the Minister refused that application. On 8 August 2005, the applicant applied to the RRT for a review of that decision.
The applicant's claims were set out in his protection visa application. He had made diverse claims. He had alleged that he had suffered harm through government harassment apparently related to corruption. He asserted he had been subject to demands to pay more taxes. He asserted that he had been detained and accused of being a Falun Gong practitioner. He asserted that he and his wife had suffered harm by reason of the application of the Chinese one-child policy.
The RRT sent a letter to the applicant on 8 September 2005 advising him that it was unable to make a decision in his favour on the basis of the information he had provided and inviting him to a hearing. The applicant attended a hearing on 21 October 2005. He confirmed the truth and accuracy of his protection visa claims. He was asked a series of questions about those claims. As is apparent from what is said in the RRT decision (court book, pages 75 and 76), the RRT had concerns about the credibility of the applicant's claims. He was given the benefit of the doubt in relation to his claims stemming from the one-child policy. In other respects he was not believed. The RRT concluded that the applicant would not suffer harm constituting persecution for the purposes of the Refugees Convention by reason of the application of the one-child policy.
When this matter came before me on 30 January 2006, I struck out all but one of the grounds in the application before the Court. However, I gave the applicant the opportunity to file an amended application by 27 March 2006. An amended application was filed on 28 March 2006 that asserts two grounds of review. The first is that the RRT failed to carry out its statutory duty. The particulars establish that the applicant is asserting a breach of s.424A of the Migration Act 1958 (Cth) (“the Migration Act”). The applicant confirmed in his oral submissions that he was concerned about the fairness of the RRT proceeding and what he sees as the lack of a fair opportunity to present his claims.
The Minister's submissions deal with the asserted breach of s.424A in paragraphs 13 and 14. I agree with those paragraphs and adopt them with minor amendments for the purposes of this judgment:
Applying SZEEU v Minister for Immigration [2006] FCAFC 2, there was no breach by the RRT of s.424A. In SZEEU at [227], Allsop J spoke of the “distinction”, important in this case, “between using information as part of the reason and the information simply being the context or platform for questioning, the answers to which questioning the Tribunal does not believe and such answers (and not the information) being part of the reason”.
The content of the protection visa application was repeated to the RRT in the sense that the applicant confirmed to the RRT the truth and accuracy of its content (see court book, page 71.2). It then became the context or platform for the questioning at the hearing described from court book, page 71.2. It was what was said to the RRT in answer to those questions and the limitations of those answers that became “part of the reason” for the RRT’s decision at court book, pages 75.8-76. The content of the application was not itself “part of the reason” for the RRT’s decision.
Although the contrary is probably arguable, I accept that the applicant's protection visa claims were not the determinative factor in the adverse credibility findings made by the RRT. What was determinative was the applicant's inability to explain and expand upon those claims at the RRT hearing.
It is apparent from the terms of the letter sent to the applicant on 8 September 2005 (court book, page 58) that at the time the applicant was invited to a hearing the RRT had some concerns about his claims. However, I do not know what those concerns were. It may have been that the RRT was at that stage simply unconvinced by a lack of detail in the claims.
I have previously said[1] that it would be preferable in order to avoid unnecessary debate about compliance or non-compliance with s.424A that the RRT adopt as a universal practice the disclosure of concerns it may have about an application at or around the time an applicant is invited to a hearing. In this case I am persuaded that there was no breach of s.424A(1).
[1] SZDGB v Minister for Immigration & Anor [2006] FMC 341 at [24]-[26].
The other ground in the amended application is an assertion that the RRT misunderstood the applicant's claims and that the RRT was biased. This assertion is dealt with in paragraphs 8 to 12 of the Minister's written submissions. Once again, I agree with those submissions and adopt them for the purposes of this judgment:
First it is to be noted that the applicant has not placed before the Court any transcript of the proceedings before the RRT. No finding can be made as to what in fact was claimed except with reference to the court book.
The RRT does note the claim that “when (the applicant’s) wife gave birth to their second child, they were heavily penalised and were unable to register the child” and “(the applicant’s) wife was forced to have operation for birth control”. There is also some discussion by the RRT of what was said about this claim at the hearing – see court book, page 72.5. Those were the claims to be dealt with.
The RRT then deals with the applicant’s claims at court book, pages 76.5-78.1. That analysis looks widely at whether the applicant faces a well-founded fear of harm so serious as to amount to persecution as a result of his having had a child outside the one child policy. The child in question was not an applicant. The issues may not have been decided as the applicant would wish, but the claims that he made were considered and dealt with. There was nothing further that the RRT was jurisdictionally obliged to do in compliance with the principles discussed in NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [55]-[63]. The forced sterilization was something which the RRT found would not occur again, as it had occurred in the past and there was no evidence that it was unsuccessful or would become unsuccessful (court book, page 76.7). The financial penalties were also dealt with (court book, pages 76.8-78.1). The RRT then proceeded to reach the conclusion that “any harm suffered by the applicant would not amount to persecution” (italics deleted), clarifying that it was “satisfied that the applicant would not receive disproportionate ill‑treatment amounting to persecution”. That may be seen as embracing all of the applicant’s claims. To the extent that he claimed a well-founded fear of persecution by reason of being part of a family with a second child, the RRT simply was not satisfied that he faced a real chance of harm so serious as to amount to persecution. That was ultimately a question of fact for the RRT. See SZBOV v Minister for Immigration [2005] FCA 1407 per Jacobson J and the authorities there collected.
In looking at the purpose and effect of the law, the RRT referred unexceptionably to authority (including Chen v Minister for Immigration (2000) 201 CLR 225).
The ground is accordingly not made out.
The only evidence I have before me is the book of relevant documents filed on 3 March 2006. There is no evidence before me that supports the assertion of bias. Neither is there any evidence that the RRT misunderstood the applicant's claims intentionally or otherwise.
I find that there is no jurisdictional error in the decision of the RRT. It is therefore a privative clause decision and the application must be dismissed.
Costs should follow the event in this case. The Minister seeks an order for costs in accordance with the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). Pursuant to rule 44.15(1) and item 1(c) of part 2 to schedule 1 to the Federal Magistrates Court Rules the applicant is required to pay $5,000. I note that the actual costs incurred by the Minister exceed that amount. The applicant did not wish to be heard on costs.
I will make order that the application is dismissed and that the applicant shall pay the first respondent's costs and disbursements of and incidental to the application in accordance with rule 44.15(1) to the Federal Magistrates Court Rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 13 April 2006