SZKGB v Minister for Immigration and Citizenship

[2008] FCA 330

FEDERAL COURT OF AUSTRALIA

SZKGB v Minister for Immigration and Citizenship
[2008] FCA 330

SZKGB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2297 OF 2007

RARES J
5 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2297 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	5 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2297 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGB
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RARES J
DATE:	5 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1. This is an appeal from a decision of the Federal Magistrates Court refusing the appellant’s application for constitutional writ relief against a decision of the Refugee Review Tribunal which affirmed a decision of the delegate of the Minister to refuse her a protection visa:  SZKGB v Minister for Immigration [2007] FMCA 1911.

2. The appellant is a citizen of the People’s Republic of China.  She arrived in Australia in May 2006 and applied for a protection visa shortly afterwards.  She arrived on her own passport, which had been issued about a year earlier.  She claimed that she was a 44-year-old woman who was married and had one son born in 1986.  She claimed that after her marriage she had worked in two different jobs involving sales from 1993 until 1999 and then from 2000 until April 2006.  Although on her application for a protection visa she had stated that her religion and ethnic group was Falun Gong, she told the tribunal that she was not making any such claim, and nothing further need be said about that.

3. The appellant claimed that while at school in her farming family she had been imbued with the tenets of the communist party and the belief that the party would lead her to prosperity.    However, she claimed that when she got to her middle school everything changed because of a change in party policy.  After her marriage and the birth of her child shortly afterwards, she claimed that she and her husband hoped to have more children and that she became pregnant again but a government officer had taken her to hospital and took the baby away.  Since then she claimed to have been upset.  The appellant also claimed that the one-child policy in China was applied by its national government so that if a person had a second child in contravention of the policy they would lose their job and pay a fine.  She claimed that the fine was so high that not every family could pay it and if they did not have enough money they had to go to another city or the countryside and could never come back to their home.

4. The appellant claimed that she became pregnant again in 2001 and was forced to go to hospital for a termination but she refused because she was six months pregnant and the doctor had said it was too dangerous.  Later, before the tribunal, she claimed that she had gone into hiding and carried the baby to term but it was stillborn.  As a result of that pregnancy, she claimed that she had lost her job and had no money.  She claimed she could not go back to China and was in fear of her life and that she feared she would be taken to the countryside, separated from her family and be left without a job.

5. The delegate correctly summarised the appellant’s then claims.  The delegate was not satisfied about the veracity of her claims in relation to the one‑child policy.  The delegate noted that that policy was not strictly applied in rural areas of China, but even if that conclusion were wrong the delegate noted that the decision in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 had held that adults subjected to China’s family planning laws do not have a well-founded fear of persecution for a Convention reason.

6. The appellant repeated her claims before the tribunal, other than the claim to have been involved with Falun Gong.  The tribunal held a hearing at which the appellant gave evidence.  In its statement of decision and reasons the tribunal summarised the course of the evidence given by the appellant during the hearing.  It found, correctly in my view, that her claims essentially related to the application to her of the one-child policy in China and her desire to have another baby.  It noted that she claimed that she feared that if returned to China she would be forced to undergo a sterilization procedure.

7. The tribunal also referred to Applicant A 190 CLR 225. It said that the one-child policy ordinarily was a non-discriminatory application of generally applicable laws in China which did not constitute persecution. Having regard to the decision of the High Court and the country information to which the tribunal referred I am unable to perceive any jurisdictional error in that conclusion. The tribunal did not accept that the appellant was of interest to local family planning authorities in the area in which she lived and did not accept that they were seeking her out during 2006 to sterilize her forcibly or that they were then in a period of active application of family planning laws.

8. Nor did the tribunal accept that the appellant had left China to avoid persecution as she claimed.  It said the reason it made those findings against the appellant was because it did not accept that she was a truthful witness.  The tribunal found that the appellant was of a lawful age to marry and accepted her claim that she did not have a permit to give birth to her first child at the time she did, but it found that she was not subjected to any fine or penalty for that breach of the Chinese family planning laws.  The tribunal said it found implausible the appellant’s claim to have decided to have another child in 2001 in light of her decision of her own volition to terminate previous pregnancies.  It rejected as implausible her claim that she had planned another baby and became pregnant in 2001.  It also rejected her claim that she had been taken by the authorities for a termination of that pregnancy at five months and that the doctor refused to undertake the procedure because of the potential harm to her health.  It also rejected her claim to have given birth to a stillborn child in around July 2001 and her claim to have lost her job in August 2001 because of the unlawful pregnancy.  The tribunal found that her claims in relation to a pregnancy in 2001 had been fabricated in order to support her claim that she still wished to have more children, which claim the tribunal rejected.  It also did not accept that the appellant was being sought for regular health check-ups and that she had managed to avoid these by being away from the family home.

9. The tribunal concluded that the appellant had continued to live at all times in her family home and that she was not of interest to the family planning authorities during the period from 2001 until 2006 when she left China.  It recorded its finding on that point as being supported by the fact that the appellant had had a holiday visit to Singapore and Malaysia in 2005 and returned to her family home thereafter.  The tribunal also noted that she might be expected to have relocated elsewhere, possibly to the village of her husband’s grandfather, if she were facing threat or pressure from family planning authorities.  The tribunal found that there was no evidence before it that China’s one-child policy had been applied to the appellant in a discriminatory fashion for a Convention reason and then noted that based on her past history, and given the fact that she was, at the time of the hearing before the tribunal, 44 years of age, the chance was remote that the appellant would be forced to undergo sterilization if she returned to China.  It also found that the chance was remote that the appellant would suffer serious harm for a Convention-related reason.  Accordingly, it was not satisfied that the appellant was a person to whom Australia owed protection obligations under the Refugees Convention. 

10. The appellant applied to the Federal Magistrates Court for constitutional writ relief: she claimed that the tribunal had relied on irrelevant independent information for the consideration of her application, had referred to some wrong information and believed that the one-child policy was not Convention-related. She also claimed that the tribunal had failed to notify her in writing of the reason or part of the reasons for affirming the delegate’s decision, had failed to consider her application in accordance with s 424A of the Migration Act 1958 and that she was not given an opportunity to comment upon the tribunal’s concerns.

11. The trial judge considered the substance of each of the appellant’s arguments. He said that he had not been able to identify jurisdictional error in the procedures or reasoning of the tribunal. I agree with his Honour’s assessment and finding for the reasons that he gave. His Honour said that he had not been able to identify any failure by the tribunal to comply with s 424A(1) of the Act . I also agree with the finding.

12. Having read a transcript of the hearing before the tribunal proffered by the appellant his Honour said that he did not accept that she had not been given an opportunity at the hearing to comment upon the tribunal’s concerns about her claimed history between 2001 and 2006.  I am unable to perceive any error in his Honour’s approach.  He found that there was no basis for finding that the tribunal had exhibited actual or apparent bias in relation to the hearing or decision.  I see no error in his Honour’s reasoning.  His Honour was unable to identify what the appellant asserted was ‘wrong information’ which she claimed the tribunal had taken into account.  Nor am I.

13. His Honour could not see any error of law on the part of the tribunal in relation to its application of section 91R of the Act or on any other legal issue.  His Honour found that the credibility finding made by the tribunal, which I have set out at length above, was open to it.  I agree.  I am unable to perceive any error in his Honour’s judgment.

14. The grounds in the notice of appeal to this Court claimed that:

    ·the tribunal was biased against the appellant and had refused her application based on wrong information and materials;

    ·her application had not been considered in accordance with s 91R of the Act;

    ·the tribunal failed to refer to sufficient independent information for the consideration of her application;  and

    ·the tribunal had failed to consider her application in accordance with s 424A of the Act.

    Before me the appellant made a number of submissions of a general nature, repeating in substance her argument in its final form before his Honour. 

15. As is apparent from my recitation of the appellant’s argument before his Honour in her application and in her notice of appeal, much of the reasoning on which she relies in support of that appeal is the same as before his Honour.  She told me that the tribunal had not considered her case under the Act, that it was biased, that it had not considered her claim properly, that the evidence had not been properly considered and the procedures under ss 91R and 424A had not been followed.  She asserted that the tribunal acted without any reason for its decision and failed to inform her beforehand of information or evidence against her so that she could provide an answer to those reasons.

16. In according procedural fairness to a person a decision-maker is not obliged to give a running commentary upon what the decision-maker thinks about the evidence that is given.  The rules of natural justice do not require a decision-maker to disclose what he or she is minded to decide so that the parties may have a further opportunity of criticising the decision-maker’s mental processes before he or she reaches a final decision:  SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at 166 [48] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.

17. In my opinion the essential reason for which the tribunal rejected the appellant’s claims was that it did not believe them. The tribunal is the body established by the Parliament under the Act to determine whether or not it accepts the evidence and claims of a person for a protection visa. I am unable to detect any error in the way in which the tribunal conducted its procedures or arrived at its decision to affirm the decision of the delegate to refuse a protection visa to the appellant. The appellant has identified no information or evidence before the tribunal which attracted an obligation on its part to notify her in writing in accordance with s 424A(1) of the Act.

18. The appellant did not address any submissions to me on the substance of anything that occurred before the tribunal or which appeared in its reasons.  Rather, she made statements asserting deficiencies at a level of generality which provide no assistance in the identification of any jurisdictional error which she must establish in order to make good her appeal.  There is no basis for suggesting, on the material before me, that the tribunal was actually or apparently biased.  I am satisfied, having read the tribunal’s decision, that his Honour was correct to find that the tribunal followed the procedures necessary for the determination of the appellant’s case in accordance with the requirements of the Act.

19. The appellant did not point to any basis upon which it could be said that s 91R of the Act ought to have been applied to her claims and had not been. Once the tribunal found as a fact that it did not believe the appellant’s claims in relation to the one-child policy, including that she had become pregnant or had been persecuted as a result of her attempts to have another child, there was no occasion to refer to any serious harm or other matter to which s 91R relates. That issue could only arise if the tribunal had found facts which would warrant it considering whether there was a real chance that the appellant would be persecuted for a Convention reason. There was no material identified by the appellant which attracted any obligation of the tribunal to write to her under s 424A.

20. I am satisfied that there is no substance in any of the appellant’s claims on the appeal or any error in his Honour’s decision to reject her application.  For these reasons I am of opinion the appeal must be dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        13 March 2008

Appellant:	Appeared in person
Counsel for the First Respondent:	G Kennett
Solicitor for the First Respondent:	DLA Phillips Fox
Date of Hearing:	5 March 2008
Date of Judgment:	5 March 2008