SZLUY v Minister for Immigration and Citizenship

[2008] FCA 1273

FEDERAL COURT OF AUSTRALIA

SZLUY v Minister for Immigration and Citizenship [2008] FCA 1273

SZLUY v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 949 OF 2008

GILMOUR J
19 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 949 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE OF ORDER:	19 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant pay the first respondents costs fixed at $2,300.

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 949 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GILMOUR J
DATE:	19 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 13 June 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 4 December 2007.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship to refuse to grant a protection visa to the appellant.

   PROCEDURAL HISTORY

2. The appellant is a citizen of the People’s Republic of China who arrived in Australia on 2 May 2007. On 10 May 2007 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  A delegate of the first respondent refused the application for a protection visa on 4 June 2007. On 9 July 2007 the appellant applied to the Tribunal for a review of that decision. 

3. Before the Tribunal, the appellant claimed that she was persecuted due to her breach of the one child policy in China.  She claimed that she was forced to have an abortion and that she was sterilised via a ‘tubal ligation’ operation against her will.  The appellant claimed she was fined an amount of $5000 and that the police took a significant number of her possessions to be auctioned for the payment of the fine.  She claimed that the amount from the auction was not enough to satisfy the fine and therefore the doors and windows of her house were taken by the Police, making it uninhabitable.  The appellant claimed that she was subjected to the “water test” to ensure that her tubes were successfully blocked.  The appellant claimed to fear further persecution if she were to return to China.

   THE TRIBUNAL DECISION

4. The Tribunal accepted that the appellant was fined for breaching the one child policy as she did not comply with the time spacing requirement between children.  The Tribunal considered that the appellant could be a member of a social group consisting of “women in China who give birth to two children within four years” or “women who have breached the one child policy”.  Both these groups, as the Tribunal found, are recognisable groups within Chinese society.  The common attribute however is not the shared fear of persecution.  The Tribunal found that the imposition of the fine for this breach was not implemented or enforced in a discriminatory manner by reason of her membership of such a group.   

5. The Tribunal determined that the appellant was not a truthful witness and that she had fabricated her material claims to support her application as her evidence was vague, inconsistent and implausible.  In particular, the Tribunal did not accept the appellant’s claims that her property or that of her husband was taken, that the she was forced to be sterilised or have an abortion or that she was forced to undergo “water testing” in the past. 

6. The Tribunal held that there was no real chance of the appellant facing serious harm in the foreseeable future even assuming (contrary to its findings) that she had been harmed because that harm occurred a long time ago.  The Tribunal found that there was no real chance that the appellant would suffer serious harm for any Convention related reason from the Chinese authorities.  The Tribunal was not satisfied that there was any well-founded fear of persecution if she were to return to China.

   PROCEEDINGS IN THE FEDERAL MAGISTRATES COURT

7. Before the Federal Magistrate, the appellant submitted that:

   1.The Refugee Review Tribunal did not provide the applicant with procedural fairness.

   2.The Refugee Review Tribunal erred in law when making the decision.

   3.The appellant was not given the benefit of the doubt.

8. The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, dismissed the application. Her Honour found no evidence of a breach of s 425(1) or s 424A of the Migration Act 1958 (Cth) (‘the Act’), and consequently, no evidence of a denial of procedural fairness. Her Honour found that the Tribunal gave the applicant a sufficient opportunity to present her case and that the Tribunal’s decision clearly demonstrated that the Tribunal understood the nature of the claims and explored these claims with her through two letters as well as at the Tribunal hearing.

9. Her Honour found no evidence that the Tribunal erred in law and that it had correctly set out the applicable principles of law.  Nor did Her Honour find any evidence to suggest that the Tribunal denied the appellant “the benefit of the doubt”.  The Tribunal was not required to “uncritically accept any or all of the allegations made by the applicant”: Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451-2. The Tribunal considered the evidence as a whole and found that the appellant was not a truthful witness.

   THE PRESENT APPEAL

10. The notice of appeal raises the following grounds of appeal:

    1.The decision of the RRT was an improper exercise of the power conferred by law.

    2.The Tribunal failed to have regard to some evidence and claims which were before the Tribunal.

11. At the hearing of the appeal before me the appellant declined the Court’s invitation to make oral submissions.

    REASONS

12. The appellant has not particularised these grounds. It is not for this Court to make out a case for the appellant. The grounds do not warrant a response. Nonetheless I have considered the reasons of the Federal Magistrate which do not, in my opinion, reveal relevant error. There the grounds were also unparticularised. Despite this the Federal Magistrate considered at length upon a review of the procedural history of the case as well as the Tribunal’s reasons and conclusions whether procedural fairness had been afforded. In particular the Federal Magistrate considered whether there had been compliance with ss 424A and 425 of the Act. The Court’s conclusion that there had been compliance was, in my opinion, correct for the reasons stated.

13. The Federal Magistrate also considered the law concerning the onus of proof in such matters.  In that respect in its application to this case the Court correctly noted that to a substantial extent the appellant had failed in her application to the Tribunal because it concluded that she was not a witness of truth and had fabricated her claims to support her application for a protection visa.

14. The Federal Magistrate was amply justified in rejecting the application.  

15. The appeal should be dismissed and the appellant should pay the first respondent’s costs. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

Associate:

Dated:        19 August 2008

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Ms S Sirtes
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	19 August 2008
Date of Judgment:	19 August 2008