SZOWN v Minister for Immigration and Citizenship

[2011] HCASL 180

SZOWN
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2011] HCASL 180
S293/2011

1. The applicant is a citizen of the People's Republic of China.  He arrived in Australia in April 2010 and shortly thereafter he applied for a protection visa.  He claimed to fear persecution in China because the authorities would require him to be compulsorily sterilised.  The Minister's delegate found that there was a real chance that the applicant would be forced to undergo surgical sterilisation in China but that, while this circumstance may warrant further examination by the Minister, it was not the delegate's function to consider it in the context of a claim for a protection visa[1].

   [1]Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; [1997] HCA 4.

2. The applicant sought merits review of the delegate's decision before the Refugee Review Tribunal ("the Tribunal").  He claimed that his wife had been forced to undergo an abortion when the authorities in China discovered that she was seven months pregnant with their third child.  He said that she had bled heavily following the procedure and that the doctor had not been able to proceed with a planned tubal ligation. 

3. Following the hearing, the Tribunal sent the applicant a letter asking for his comments on certain matters that might have provided a reason for affirming the decision under review.  In response, the applicant provided a certificate from the hospital relating to the procedure carried out on his wife.  The certificate stated that the wife had undergone a tubal ligation.  The Tribunal did not accept the applicant as a witness of truth.  It did not accept that he would be required to undergo sterilisation or that he would come to adverse attention for any Convention-related reason if he returned to China. 

4. An application for judicial review was dismissed by the Federal Magistrates Court (Smith FM). 

5. An appeal to the Federal Court (Rares J) was dismissed.

6. The applicant applies for special leave to appeal from the orders of the Federal Court.  Nothing in the draft notice of appeal or the written case engages with the reasoning of the court below.  The applicant makes an unparticularised assertion that the Tribunal was biased against him.  There is no reason to doubt the correctness of the decision below.  If special leave to appeal were granted the appeal would have no prospect of success. 

7. The application is dismissed. 

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
26 October 2011 V.M. Bell