SZOVR v Minister for Immigration - [2011] FMCA 503

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOVR v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 503

MIGRATION – Application to review decision of the Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), s.91R

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 287; [2004] HCA 25
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2002) 74 ALJR 405; [2000] HCA 1

Applicant:

SZOVR

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2685 of 2010

Judgment of:

Barnes FM

Hearing date:

20 June 2011

Delivered at:

Sydney

Delivered on:

20 June 2011

REPRESENTATION

Applicant:

In person

Counsel for the Respondents:

Mr H P T Bevan

Solicitors for the Respondents:

DLA Piper Australia

ORDERS

The application is dismissed.
That the applicant pay the costs of the first respondent fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2685 of 2010

SZOVR

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal dated 18 November 2010. The Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa. The applicant, a citizen of China, arrived in Australia on 21 April 2010 and applied for a protection visa on 25 May 2010. In a statement accompanying his protection visa application he made claims to fear persecution having regard to events that he said had occurred to his family, in particular his wife, under the Chinese family planning laws and because of the possible operation of those laws in the future.
He claimed that he and his wife had decided to have a second child after his son was injured and suffered an intellectual impairment and that after his wife fell pregnant in 2009 this was discovered by the local family planning office which issued a notice for her to undergo a medical examination and subsequently an abortion. The applicant claimed that he and his wife refused and went into hiding but that they were located, that his wife was forced to undergo an abortion and she was directed to undergo a surgical sterilisation, but refused to do so. He claimed that they were determined to have another child. The applicant also claimed that he and then his wife went into hiding and came to Australia with help from friends. His wife remained in China.
The application was refused by a delegate of the Minister and the applicant sought review by the Tribunal. He was invited to and attended a Tribunal hearing
In its reasons for decision, after setting out the law and the claims made in connection with the protection visa application, the Tribunal recorded the applicant’s evidence at a Departmental interview in relation to his understanding of family planning regulations in the part of China in which he lived, the circumstances in which he left China and the fact that his wife had not experienced any more trouble from the authorities. The Tribunal then set out the applicant’s evidence at the Tribunal hearing and the issues raised by the Tribunal with the applicant in some detail.
In its findings and reasons the Tribunal accepted that the applicant was a citizen of China. It was not satisfied with the credibility of the applicant’s claims that his wife had been forced to undergo an abortion in China. It found that “this claim is like all the applicant’s evidence, unsubstantiated” and amounted to “no more than simple assertion” and that his account of it at the hearing had been “brief, vague and virtually unsupported by any circumstantial detail”. This is clearly a reference to a number of issues that were discussed at the hearing.

The Tribunal gave as an example the applicant’s description of the claimed incident in which the authorities were said to have discovered the applicant and his wife in their hiding place and taken her to a hospital for an abortion. The Tribunal stated that “this could reasonably be expected to have been a dramatic and memorable one for him had it actually occurred”. However, the Tribunal found that, despite repeated invitations at the hearing to describe what happened, the applicant was able to offer and reiterate only the barest outline of the alleged incident. The Tribunal was not satisfied that the applicant’s responses on this point were consistent with those of a person who had, as he claimed, “genuinely left his home with his wife to save the life of his unborn child, who had nonetheless been discovered by the officials they were desperate to avoid, and who had then lost the child in such distressing circumstances”.
The Tribunal also had regard to the fact that the applicant was not able to offer a plausible explanation at the hearing as to why his wife had been unable to avoid the alleged abortion but was able to refuse the sterilisation the authorities were said to have told her to undergo.
It also expressed concern about the credibility of the applicant’s account based on what was said to be his clear ignorance at the hearing of the birth date of his first and only child, in contrast to his claims about the importance of children for their parents in Chinese culture. The Tribunal also had regard to what it described as a conflict between his written and oral claims concerning the seriousness of his son’s alleged intellectual impairment.
However the Tribunal stated that it had given the applicant the benefit of the doubt by accepting that he and his wife did have one son and that they wished to have more children. However, it stated:
I accept that the applicant’s desire for more children may be frustrated by China’s family planning policies. If they are denied further children, however, I am not satisfied that this would represent more than the enforcement of a law of general application adopted for the obvious and legitimate purpose of curbing China’s unsustainable population growth. I am not satisfied there is any reason to believe that he lacks the “connections” he claims are required to circumvent the family planning laws in China as he maintained at the hearing or, even if he did, that there would be a real chance that he would suffer discriminatory harm amounting to persecution for this reason.
The Tribunal concluded on the information before it that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason should he return to China now or in the reasonably foreseeable future. It affirmed the decision of the delegate.
The applicant sought review by application filed in this court on 10 December 2010. The ground of review is as follows:
My only son suffered for intellectual impairment through his injury. We have to want a healthy son (sic). When my wife conceived the second child, she was forced to have an abortion and I was also persecuted by the authorities. The RRT member failed to consider my claims according to S91R of the Migration Act.
No amended application or written submissions were filed. The applicant was given the opportunity to make oral submissions today. However, it is apparent that as explained in oral submissions the applicant takes issue with the Tribunal’s findings and seeks impermissible merits review. His claim that all he told the Tribunal was true, that he did not know what else he could say and that he did not have any other evidence, is not such as to establish jurisdictional error on the part of the Tribunal.
The Tribunal rejected the credibility of the applicant’s claims about what he said had occurred in China. Credibility findings are

par excellence
a matter for the decision-maker (see re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2002) 74 ALJR 405; [2000] HCA 1) and the applicant’s concerns in that respect are not such as to establish jurisdictional error.
Insofar as the applicant in concluding submissions submitted that the Tribunal did not understand Chinese policy very well, that appears to take issue with the independent country information on which the Tribunal relied in its understanding of the situation in China.
Such concerns on their face do not establish jurisdictional error. I note in that respect that the Tribunal recorded that it put its understanding of the position in China to the applicant (as indeed had the delegate who had referred in the decision to particular items of country information also before the Tribunal in relation to the one-child policy in China, in particular the part of China from which the applicant came). As I endeavoured to explain to the applicant, merits review is not available in this court.
The applicant also submitted, but was not able to clarify, that the Tribunal failed to consider his claims according to s.91R of the Act. I note first in that respect that there is no issue of conduct in Australia in this instance. Section s.91R(3) is of no relevance. As counsel for the first respondent pointed out, s.91R otherwise restricts the circumstances in which a decision-maker may find that Article 1A(2) of the Refugees Convention, as amended by the Refugees Protocol, applies to a person.
The Tribunal correctly identified the relevant provisions of s.91R(1) and (2) in its description of the relevant law in its reasons for decision. Relevantly, it pointed out that under s.91R(1) of the Act persecution must involve serious harm to the applicant and systematic and discriminatory conduct. The Tribunal also described and referred to the restriction in s.91R(1) that persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitutes at least the essential and significant motivation for the persecution feared. It also described s.91R(2). No jurisdictional error is apparent in this respect or in the Tribunal’s application of the law.
In oral submissions counsel for the first respondent addressed the issue of whether the Tribunal’s decision revealed any failure to apply the law, understand the law or apply the law correctly in its consideration of the future in its finding that if the applicants were denied further children that would represent no more than the enforcement of a law of general application adopted for the obvious and legitimate purpose of curbing China’s unsustainable population growth.
The Tribunal addressed the requirements of s.91R insofar as it considered whether it was satisfied that the applicant had a well-founded fear of persecution. In particular, while discriminatory enforcement of a law of general application may in certain circumstances amount to persecution (see Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 287; [2004] HCA 25 at [42] per Gleeson CJ, Gummow and Kirby JJ) in this instance reading the Tribunal decision as a whole, it is apparent that the Tribunal considered that possibility in going on to find that it was not satisfied that there would be a real chance that the applicant would suffer discriminatory harm amounting to persecution from the application of the family planning laws in China. That conclusion should be seen in light of the Tribunal’s account of its discussion at the hearing of the application of family planning regulations.
The Tribunal recorded that it put to the applicant independent country information to the effect that many people in China breached family planning regulations and paid a fine for doing so. The applicant’s response was that it was necessary to have “connections” for this and the Tribunal’s replied that these were standard regulations. In addition, the Tribunal recorded that it put to the applicant that:
“even if [the Tribunal] accepted that his claims were true, the family planning laws in China were applied to the population as a whole and there was no element of discrimination in his case. This would mean he would not be at risk of persecution and would lead to a conclusion that he was not a refugee”.
It recorded his response that the harm was discriminatory “because he did not have connections he was prevented from having another child”.
As indicated, the Tribunal was not satisfied that this was so and found that even if the applicant’s desire for more children was frustrated by China’s family planning policies, it was not satisfied that any consequences that would follow would be the result of anything other than the non-discriminatory enforcement of a law of general application rather than as a result of any discriminatory conduct.

It found no real chance that the applicant would suffer discriminatory harm amounting to persecution, even if he did lack “connections” as claimed. No jurisdictional error is apparent in the Tribunal reasoning in this respect and there is otherwise no basis on the material before the court for any finding that the Tribunal failed to understand or apply s.91R of the Act in a manner constituting jurisdictional error.
As no jurisdictional error has been established on any of the bases contended for by the applicant the application must be dismissed.
The applicant has been unsuccessful. The Minister seeks costs in the sum of $4,500. The applicant opposes any costs order being made on the basis that everything he said to the Tribunal was true. Again, as indicated, merits review is not available in this court and the applicant’s disagreement with the Tribunal decision is not a reason for departing from the usual principle that an unsuccessful applicant for judicial review should meet the costs of the first respondent. The amount sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date: 4 July 2011