SZNOO v Minister for Immigration

[2009] FMCA 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNOO v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 666

MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visa – applicant claiming persecution in China because of the Chinese one child policy – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.424A, 425

Applicant: SZNOO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1089 of 2009

Judgment of: Driver FM

Hearing date: 13 July 2009

Delivered at: Sydney

Delivered on: 13 July 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents: Ms K Dunn
Clayton Utz

INTERLOCUTORY ORDERS

1. The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

2. The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1089 of 2009

SZNOO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 8 April 2009. The Tribunal affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.

2. The applicant is from China and claimed a fear of persecution as a result of a breach of the one child policy. The applicant claimed that before her departure from China the Chinese authorities wanted her to undergo sterilisation and pay a fine. The applicant claimed that as a result of her inability to pay the fine her house was destroyed. She arrived in Australia on 11 July 2008 and applied to the Minister's Department for a protection visa on 8 August 2008. That application was refused by the Minister's delegate on 1 November 2008. The applicant sought review before the Tribunal on 1 December 2008. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing.

3. The Tribunal also wrote to the applicant pursuant to s.424A of the Migration Act 1958 (Cth) (“the Migration Act”) seeking comment on information the Tribunal thought might be a reason for affirming the delegate's decision. The applicant replied and drew attention to a number of issues including an asserted medical condition. She claimed that because she could not give birth to her second child in China in an official hospital she gave birth at home and has suffered medical problems since then. She claimed that she had experienced medical problems since her arrived in Australia and was not in good health during her interview with the delegate. She stated that because of her health problems she gave wrong answers to the delegate. In the light of her medical condition the applicant requested a postponement of the Tribunal hearing.

4. The applicant appeared before the Tribunal on 16 February 2009.  The Tribunal raised with the applicant issues in relation to her protection visa claims.  The applicant expressed concern about her ability to answer questions because of her asserted medical problems.  The Tribunal offered to adjourn the hearing and invited the applicant to present medical evidence about her capacity to give oral evidence.  On 6 March 2009 the Tribunal received from the applicant a medical report from Dr Matthias stating that the applicant was admitted to hospital on 12 February 2009 and was discharged on the same day in good condition (court book, page 102 at [36]).

5. The Tribunal resumed the hearing on 2 April 2009.  The Tribunal raised with the applicant concerns it had about the credibility of her claims.  These included medical evidence the applicant had submitted to the Tribunal which purported to show that the applicant had undergone a hysterectomy whilst in Australia.  The Tribunal had regard to the applicant's claims and evidence and country information.  The Tribunal stated at paragraph 77 of its reasons (court book, page 111) that it had paid particular regard to the medical evidence presented by the applicant and her most recent medical report which indicated that she was discharged from hospital on 4 March 2009 in good condition (court book, page 111 at [77]).  The Tribunal found none of the medical evidence presented by the applicant suggested that she was unable to meaningfully participate in a hearing or to give evidence.  The Tribunal found the applicant not to be a witness of credibility.   The Tribunal accepted that the applicant was subject to the Chinese one child policy and that as a result of breaching that policy the applicant had been subject to the imposition of the fine.

6. However, the Tribunal did not accept the applicant's claims of the discriminatory enforcement of the policy against her.  The Tribunal did not accept that forced sterilisations are being practised in Tianjin Province or that the applicant would be required to undergo a sterilisation operation.

7. These proceedings began with a show cause application filed on 5 May 2009.  The applicant continues to rely upon that application.  There are three grounds in that application which I incorporate in this judgment:

   1. The decision made by [Tribunal] was void for jurisdictional error in that review as failed to comply with the Migration Act.

   2.[Tribunal] took the cases which are against me, and doubt my claim without substantive evidence.

   3.[Tribunal] did not accept my evidences but did not give appropriate reasons and did not weight my evidence.

8. Because of the generality of those claims I ordered on 26 May 2009 that there be a show cause hearing into the application.  An issue arose at that time concerning the applicant's address for service.  The applicant told me that the post office box nominated as her address for service was a post office box belonging to a migration agent, Mr Li.  The applicant was adamant that she wished that post office box to be used as her address for service in relation to the Court proceedings except in relation to the Minister's panel advice scheme.  The applicant gave an assurance that all correspondence sent to her nominated address for service would be drawn to her attention and explained to her.  I note that the applicant received advice under the panel advice scheme from Ms Campbell on 15 June 2009.

9. The applicant has not taken up the opportunity to file an amended application or a statement of particulars of the asserted jurisdictional errors.

10. On 10 July 2009 the applicant faxed to my associate a letter in which she requested an adjournment of the show cause hearing. The applicant asserted an inability to attend Court due to pelvic pain. She included a statement by Dr Quang Phu Ho that the applicant attended his rooms for a consultation on 9 July 2009. The doctor stated that the applicant is having chronic pelvic pain resulting from a severe pelvic infection. In the light of the fact that the doctor’s statement was not directed to the Court and did not express any opinion on the applicant's fitness to attend the Court, I asked my Associate to telephone the applicant on 10 July 2009 with the assistance of a Mandarin interpreter. My Associate informed the applicant that I would invite her to attend the show cause hearing by telephone.

11. The Court telephoned the applicant at the commencement of today's hearing. The applicant again asserted illness and sought an adjournment. The applicant also invited me to speak to her doctor. I asked the applicant if there was any reason why she could not attend the hearing by telephone. She said she was fearful but after further questioning she said she was fearful of failing in her case before the Court. After some consideration and doubt the applicant accepted the offer of a telephone hearing.

12. I am satisfied that, despite showing signs of distress at several stages during the course of the hearing, the applicant was able to attend by telephone and make submissions and answer questions. 

13. The applicant continues to rely, as I have noted, on her original show cause application.  That is supported by a short affidavit filed on the same day which I received as a submission.  I have before me as evidence the court book filed on 29 May 2009.  The applicant denied receipt of the court book.  I found that surprising in view of the assurance given by the applicant on 26 May 2009.  The applicant thought that the court book was most likely with Mr Li.  I explained to the applicant what was in the court book and noted that she ought to be already familiar with those documents. 

14. I invited oral submissions from the applicant.  She referred to her protection visa claims and her asserted illness.  I was unable to obtain from her any clear statement of what her medical condition is.  It appears to be an infection resulting from a home birth in China.  The applicant expressly denied undergoing a hysterectomy operation in Australia.  The applicant was unable to advance any arguments bearing upon the asserted jurisdictional errors. 

15. I received oral submissions from the solicitor for the Minister on those matters and also considered for myself what issues might hypothetically arise, noting that the applicant is not assisted at today’s hearing by a legal practitioner. I am satisfied that the Tribunal met its statutory obligations under the Migration Act. The Tribunal met what it saw as its obligations of disclosure pursuant to s.424A of that Act. The applicant was properly invited to a hearing pursuant to s.425. Notwithstanding the applicant's asserted medical problems the hearing opportunity was a real one. The Tribunal considered the applicant's claims and its approach to consideration of the Chinese one child policy was an orthodox one. Essentially, the applicant failed because the Tribunal did not believe her claims of a discriminatory application of the law relating to that policy. I see no arguable case of jurisdictional error in relation to the Tribunal's approach.

16. The applicant appears to be asserting bias but there is no evidence to support that assertion.  The applicant also appears to attack the merits of the Tribunal's findings but that is beyond the scope of this hearing.

17. The Tribunal did not require evidence other than the material presented by the applicant in order to deal with the applicant's claims. The Tribunal was entitled to make the adverse credibility findings it did on the material before it. I conclude that no arguable case of jurisdictional error arises.

18. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”).

19. Costs should follow the event in this case. The Minister seeks an amount of $2,000 to be fixed. That is less than the amount prescribed under the Federal Magistrates Court Rules. The applicant referred to her impecuniosity but that is not a reason for the Court to refrain from making a costs order. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  16 July 2009