SZHVI v Minister for Immigration
[2006] FMCA 1756
•8 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHVI v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1756 |
| MIGRATION – RRT decision – Chinese applicant fearing persecution under one‑child policy and for participating in demonstration – Tribunal found fears not well‑founded – no jurisdictional error. |
Migration Act 1958 (Cth), ss.474(1), 476
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723
| Applicant: | SZHVI |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG2201 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 8 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 8 November 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms T Wong |
| Solicitors for the Respondents: | Australian Government Solicitor |
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 |
SYG2201 of 2006
| SZHVI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application filed on 10 August 2006 seeking orders under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 20 July 2006 and handed down on 21 July 2006. The Tribunal affirmed the decision of a delegate made on 6 June 2005 which refused to grant a protection visa to the applicant.
The Court’s jurisdiction under s.476 is “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but the Court’s powers are confined by s.474(1) so that I do not have power to send the matter back to the Tribunal unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa.
The applicant’s history is recounted in the Tribunal’s decision from his protection visa application and his evidence given at two hearings conducted in the Tribunal, and it is unnecessary for me to detail it.
The Tribunal essentially accepted his history.
The applicant had left his country of nationality, China, in June 1990 to take up employment in Vanuatu. He held that employment for four years, before coming to Australia after a brief return visit to China.
He had a brother in Australia, and lived illegally in Australia after his visitor’s visa expired. In April 2005 he was taken into immigration detention, where he is still held.
With the assistance of a migration agent he lodged an application for a protection visa on 1 June 2005. His claims were:
40Why did you leave that country?
I left China because of the 1 Child Policy and the 4th of June events.
I was persecuted by the Government because I have 2 children. I had 1 child and then my wife became pregnant so I was asked to pay fines of RMB$50,000.
I could not pay. One day they came to my house, 3 government officials, they said that because I did not pay my house would be confiscated. They wanted to take my wife to have a termination and take me to be sterilised.
We were very scared.
I told them that I was just going to talk to my wife, who was at the back of the house. So I went to the back of the house and escaped with my wife and child.
We escaped and went to [province]. We stayed with relatives and friends. They helped us. We were always very careful and still very scared.
My family helped me go to Vanuatu.
After I left my wife went home and paid the household registration.
They were safe because I was not home.
I was worried because of all this and because I also had demonstrated against the government in [province].
A delegate made a decision refusing the application on 6 June 2005.
The applicant’s agent assisted the applicant to bring his application for review to the Tribunal. Delay was then caused because the first decision of the Tribunal was held to be invalid, and his case was remitted to the Tribunal by a consent order in this Court on 2 May 2006. The applicant then attended a further hearing held by the Tribunal as reconstituted with the present member. He was again assisted by his agent, who presented a submission to the Tribunal referring to country information concerning the administration of the one child policy in China.
In its statement of reasons, the reconstituted Tribunal adopted the summary of the evidence given by the applicant in his protection visa application and in the first hearing held by the Tribunal, which had been given by the first Tribunal in its decision. However, the new member indicated that he listened to the tape recording of the earlier hearing, and I am satisfied that he fully considered the matter afresh for himself.
At the second hearing attended by the applicant on 13 July 2006, the applicant confirmed his previously claimed history. He confirmed that his wife was still living in the village which they had left in 1987, and gave other information.
Under the heading “Findings and Reasons”, the Tribunal first addressed the applicant’s claims in relation to his fear that he would be punished for having breached the one child policy. It concluded:
The Tribunal accepts that the applicant and his wife breached China’s one child policy by having a second child in 1988. However, the Tribunal is satisfied that the applicant’s chance of facing harm in China for that reason is now remote. The applicant lived in a rural area and his first child was a girl. According to the independent sources consulted the authorities allow those in the applicant’s circumstances to have another child. Moreover, Article 49 of the Family Planning Regulations in [province] stipulates that the penalty for breaching the regulations is the imposition of a social support fee or a “social compensation fee”. This fee has already been paid by the applicant’s wife who continues to live in [village]. She was not sterilised, she was not subjected to any other harm and their children have not suffered any detriment. There is no reason to believe and the Tribunal is not satisfied that there is a real chance that the applicant would be subjected to any form of punishment, harm or harassment by the authorities for the reason of breaching the one child policy in 1988.
The Tribunal also noted that, on the opinions given in the High Court in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, any punishment or harm faced by the applicant upon his return by reason of failure to comply with the one child policy would not be discriminatory, and would not constitute persecution for a Convention reason.
In relation to the applicant’s claim to fear persecution by reason of participating in a pro‑democracy demonstration in 1989, the Tribunal accepted that he had attended such a demonstration. However, it did not “accept that there is a real chance that the applicant will face harm as a result”. It referred to the fact that the applicant himself did not claim to have any evidence that he was wanted by the police, and the Tribunal noted that there had been a significant lapse of time since his participation. It said that the independent evidence “clearly suggests that the Chinese authorities are no longer interested in those who participated in the 4th of June demonstrations”. It concluded that his chance of facing harm or punishment by reason of that participation was remote, and said that it was satisfied that his chance of facing persecution for the reason generally of his political opinion or any other Convention reason was remote.
I have considered the assessments made by the Tribunal and considered that they were open to it on the material. I can identify no jurisdictional error in the procedures or reasoning followed by the Tribunal.
The applicant has filed only his original application and has not filed any amended application or written submission. His application has three grounds which are not easy to read or understand. They appear to state:
1.The Court asks the Tribunal to offer proof of my not being of interest to the police of China.
2.That the Court act [sic: ask] the Tribunal to say why I am not good witness or to tell truth.
3.The interpreter was not good and did not tell my story good.
Counsel for the Minister has addressed these grounds with arguments which, in my opinion, should be accepted:
Ground 1:Tribunal to offer proof that Applicant is not of interest to the police
21.The first ground of review amounts to a request that this Court order the Tribunal to “offer proof” that the Applicant is not of interest to the police in China. In this ground, the Applicant appears to be asserting that it was for the Tribunal to demonstrate that the Applicant would be safe upon his return to China.
22.To the contrary, it was for the Applicant to satisfy the RRT that he had a well‑founded fear of persecution, and adduce evidence in support of his case: Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187] per Gummow and Hayne JJ. The RRT was not required to prove that the Applicant was not of interest to the police in China. No jurisdictional error is demonstrated in this ground of review.
Ground 2:Tribunal to give reasons
23.The Applicant asks the Court to require the Tribunal to give reasons why the Applicant was not a good witness or did not tell the truth. However, the RRT did not find against the Applicant on the basis that he lacked credibility. Rather, the RRT accepted that the Applicant breached China’s one child policy and attended a demonstration on 4 June 1989, but did not accept that there was a real chance that the Applicant would face harm as a result.
24.The RRT has given full and complete reasons in support of its findings of fact and conclusions of law. The second ground of review does not identify any jurisdictional error affecting the RRT’s decision.
Ground 3:Standard of Translation Services
25.The Applicant claims that “[t]he interpreter was not good and did not tell my story good”, however does not provide any evidence of standard of interpretation at the Tribunal hearing, or errors made by the interpreter which were material to the conclusions of the Tribunal.
26.In the absence of such evidence, it is not possible for this ground of review to succeed: Appellant P119/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 230; Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6.
I do not think it necessary for me to elaborate further reasons for not being persuaded by the grounds in the application. I would note in addition to the authorities cited by counsel in relation to the contention about translation, that her submission is also consistent with the discussion of Finkelstein J in VWFY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1723 at [7]‑[11].
The applicant was brought to Court today, and has been assisted by an interpreter. A statement which he had written in Chinese was read to me by the interpreter. However, this explains why the applicant wishes to stay in Australia and does not wish to return to China, but it does not indicate any ground of jurisdictional error affecting the Tribunal’s decision. The applicant pointed out that he was not a lawyer and could not present legal argument. I have appreciated this, and have attempted to find arguments which could assist him, but have been unable to do so.
For the above reasons I consider that the Tribunal’s decision was a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 29 November 2006
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