SZKGB v Minister for Immigration
[2007] FMCA 1911
•7 November 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKGB v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1911 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution under one‑child policy – significantly disbelieved by Tribunal – no discriminatory application of policy found – decision not affected by jurisdictional error. |
Migration Act 1958 (Cth), ss.91R, 424A(1)
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425
| Applicant: | SZKGB |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 591 of 2007 |
| Judgment of: | Smith FM |
| Hearing date: | 7 November 2007 |
| Delivered at: | Sydney |
| Delivered on: | 7 November 2007 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr S Lloyd |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 591 of 2007
| SZKGB |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant came to Australia in 2006, and applied for protection against return to the People’s Republic of China. Her claims were set out in her visa application, and were subsequently explained to the Tribunal at a hearing. She said that she had suffered in the past under the Chinese family planning policy, loosely known as the “one child policy”, and that she feared further harm under this policy if she returned to China. She and her husband had one child in 1986, but he has impairments and they wanted other children. However, government officers responsible for the child planning policy did not permit this, and sought regularly to check up on her. She told the Tribunal that she had two, or possibly three, pregnancies which she terminated under pressure of the child planning policy.
She claimed that she again became pregnant in 2001 and was taken to hospital for an abortion when she was six months pregnant. She escaped from their custody by jumping through a window, but her baby was stillborn. She also claimed that, every year between 2001 and her departure to Australia, she had to avoid the officials visiting her home by living elsewhere, because they wanted to sterilise her. She claimed that she still wanted one healthy baby, and feared that if she returned to China she would be forced to have a sterilisation operation.
Although in her visa application she referred to her ethnic group and religion as being “Falun Gong”, she made no claims to the Department to have suffered as a Falun Gong practitioner, and did not present such a claim to the Tribunal.
A delegate refused the visa application on 16 August 2006, and his decision was affirmed by the Tribunal in a decision handed down on 18 January 2007. The Tribunal reviewed all the applicant’s evidence, and in my opinion correctly identified that her claims “relate essentially to the application to her of the one child policy in China. She wishes to have another baby and fears that if returned to China she will be forced to undergo a sterilisation procedure”.
The Tribunal properly instructed itself as to the law in relation to such claims, as established in the High Court in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, which held that merely suffering harm as a result of the application of the one child policy would not provide the basis for a finding of persecution for a Convention reason. It properly understood that it was necessary to examine how the policy had been applied, to establish “whether the law itself is in truth discriminatory in its intent or whether it has a discriminatory impact on members of a group recognised by the Convention”, and whether it was applied to the applicant in a discriminatory fashion for a Convention reason.
The Tribunal considered the applicant’s claims, and found that it had not been so applied. A central part of its reasoning was that it did not accept her claims that she had become of particular interest to the local family planning authorities, and that they were seeking her out between 2001 and 2006 to forcibly sterilise her. It rejected that part of her story for reasons which it explained, based on how she had answered questions at the hearing. It also found aspects of her story implausible, in particular that she was still planning another baby in 2001. It said: “based on the applicant’s past history and given that she is now forty four years of age the Tribunal finds the chance is remote that the applicant will be forced to undergo sterilisation if she returns to China”. It concluded that the chance was remote that she would suffer serious harm for any Convention‑related reason.
The applicant now asks the Court to set aside the Tribunal’s decision, and to order it to reconsider her refugee claims. I can only make these orders if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have authority to decide whether the applicant’s refugee claims are true, nor whether she should be granted a protection visa or any other permission to stay in Australia.
The applicant has filed a series of applications and amended applications in the Court, which have been unhelpfully formulated and largely contain general assertions of jurisdictional error without any particulars showing a meaningful argument.
The applicant has also presented to the Court a document which purports to be a transcript of what was said in English at the hearing attended by the applicant, and also a new translation of what was said in Mandarin. Unfortunately, it is not verified by its author and the author’s qualifications for making the fresh translations have not been shown. The Minister’s counsel objected to receipt of this document on that basis. I reserved my ruling on his objection until I had determined whether the document might assist the applicant, assuming that it was properly prepared. However, the applicant did not refer to any part of the transcript in support of any contention of jurisdictional error.
I have read it for myself, and did not identify any support for a contention that jurisdictional error was shown in what occurred at the hearing, including for any allegation of apprehension of bias or material mistranslation. The transcript, in my opinion, shows that the applicant was given a fair opportunity to present her evidence, and was fairly warned about the concerns which the Tribunal developed as to the consistency of her evidence about her movements and places of residence and other aspects of her claims.
I have not otherwise been able to identify jurisdictional error in the procedures or reasoning of the Tribunal.
Dealing with the various contentions made in the applicant’s application and amended applications globally, I have not been able to identify any failure by the Tribunal to comply with obligations under s.424A(1) of the Migration Act 1958 (Cth) as is asserted in all of the applicant’s documents, without particulars. Moreover, I do not accept that the applicant was not given an opportunity at the hearing to comment upon the Tribunal’s concerns about the applicant’s claimed history between 2001 and 2006.
I am not persuaded by anything which I have read in the material that the Tribunal had actual bias against the applicant, nor that it did or said anything which might give rise to a reasonable apprehension of bias under principles identified by the High Court in Re Refugee Review Tribunal & Anor; Ex parte H (2001) 179 ALR 425.
I am unable to identify any “wrong information” taken into account by the Tribunal, nor any failure by it to address the evidence and claims which were before it. I cannot find any error of law on the part of the Tribunal in relation to its application of s.91R of the Migration Act or any other legal issue.
As I have indicated above, the proposition made in the first amended application that “the Tribunal wrongly believed that persecution due to one child policy is not Convention related”, fails to appreciate the distinction made by the High Court in Applicant A. I am not persuaded that the Tribunal made any error of law or jurisdiction when addressing the applicant’s claims in relation to have suffered harm under the one child policy.
In my opinion, the claims made by the applicant suggested that she had suffered harm directly by reason of officials seeking to implement that policy, and I do not think that she clearly articulated any claim to have been discriminated against in the application of that policy by reason of any actual or perceived political opinions or by reason of any other Convention reason. Moreover, the applicant’s claim that she had been personally pursued by officials in the years prior to her coming to Australia was rejected by the Tribunal, based on a credibility finding in relation to that element of her history. I consider that credibility finding was open to the Tribunal.
The applicant today had no argument to elaborate the grounds set out in her application. She sought to rely upon fresh information concerning the one child policy in China, which had not been given to the Tribunal. However, that material is not relevant to the Court’s powers to review the legality of the Tribunal’s decision.
For the reasons which I have given above, I am not persuaded that any jurisdictional error affected the Tribunal’s decision, and I must therefore dismiss this 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: 16 November 2007