SZOPW v Minister for Immigration and Citizenship
[2011] FCA 481
•12 May 2011
FEDERAL COURT OF AUSTRALIA
SZOPW v Minister for Immigration and Citizenship [2011] FCA 481
Citation: SZOPW v Minister for Immigration and Citizenship [2011] FCA 481 Appeal from: SZOPW v Minister for Immigration and Cizenship & Anor [2011] FMCA 48 Parties: SZOPW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 308 of 2011 Judge: MARSHALL J Date of judgment: 12 May 2011 Cases cited: SZNTQ v Minister for Immigration and Citizenship [FCA 858] Date of hearing: 11 May 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 12 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Mr J Smith Solicitor for the Respondents: DLA Phillips Fox
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 308 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOPW
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE OF ORDER:
12 MAY 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant pay the first respondent’s costs of the appeal, to be taxed in default of agreement.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 308 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOPW
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
MARSHALL J
DATE:
12 MAY 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from a judgment of the Federal Magistrates Court which dismissed her application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had dismissed her application to review the decision of a delegate of the first respondent Minister to refuse her application for a protection visa.
The appellant is a citizen of the Peoples Republic of China. She claimed to fear persecution if returned to China in the reasonably foreseeable future. The source of the feared persecution was her breach of China’s one child policy and because of the matter raised in paragraph [5] below.
The Tribunal found that the appellant has two children and that she was required to pay a social compensation fee to Chinese authorities as a result of the birth of her second child. The Tribunal also found that the requirement to pay the fee was not implemented or enforced in a discriminatory manner.
The Tribunal observed that the second child was included in the family’s household registration after payment of the fee and, importantly, that the appellant does not claim to have any fear of ongoing harm as a result of her having had a child in breach of the “one child” policy.
The Tribunal accepted that the appellant made a payment to a person in China to enable her to travel to and enter Australia. It accepted that that person was an underworld entrepreneur who charges exorbitant fees to smuggle migrants without documents out of China (“a snakehead”). The appellant claimed that if she was returned to China the snakehead would seriously harm her because she jeopardised his profits and ruined his plans to bring more people to Australia. The appellant did not claim that her use of a snakehead was part of the reason for her fear.
The Tribunal was also satisfied that the snakehead’s intention to harm the appellant did not arise for a reason related to the Refugees Convention. The Tribunal dismissed the appellant’s application.
Before the Court below the appellant sought judicial review of the Tribunal’s decision. At paragraph [23] of the reasons for judgment of the Federal Magistrate his Honour noted that the appellant only claimed she feared the snakehead because she had caused him to lose money. His Honour noted that:
She never said that her use of a snakehead was any part of the reason for her fear…the Tribunal was under no obligation to consider the claim now articulated by the applicant.
Before the Federal Magistrates Court, counsel for the appellant submitted that the Tribunal should have found that the appellant was a member of a particular social group of persons who use the services of a snakehead to leave China. The Court below endorsed the finding of the Tribunal that the appellant’s fear of harm stemmed from what the appellant had done and not from her membership of a particular social group.
His Honour also observed that the Tribunal reasoned correctly that Chinese authorities would protect the appellant from the snakehead by reason of her membership of the social group of people who use the services of snakeheads. At paragraph [24], his Honour said:
…a person who is caught up in a people smuggling operation and who fears harm as a consequence of something having gone wrong in that operation is not protected under the Refugees Convention unless he or she can establish a nexus between the harm feared and the Convention. That this applicant was unable to do.
The Federal Magistrate considered that the Tribunal’s decision was free from jurisdictional error and dismissed the application before him.
On appeal the appellant claimed that the decision of the Tribunal was affected by jurisdictional error. That singl e appeal ground was not particularised. Having carefully read and considered the decision of the Tribunal and the judgment of the Court below, I consider that the first contains no jurisdictional error and the second no appealable error. The appeal must be dismissed, with costs. As was noted by Collier J in SZNTQ v Minister for Immigration and Citizenship [FCA 858] at paragraph [23], the failure of an appellant to particularise a ground of appeal and/or to attempt to engage with the reasons for judgment below, raises no case to answer on the appeal.
The appeal must be dismissed, with costs to be taxed in default of agreement.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate:
Dated: 12 May 2011
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