SZOWN v Minister for Immigration and Citizenship
[2011] FCA 906
•3 August 2011
FEDERAL COURT OF AUSTRALIA
SZOWN v Minister for Immigration and Citizenship
[2011] FCA 906
Citation: SZOWN v Minister for Immigration and Citizenship [2011] FCA 906 Appeal from: SZOWN v Minister for Immigration and Citizenship [2011] FMCA 392 Parties: SZOWN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 832 of 2011 Judge: RARES J Date of judgment: 3 August 2011 Legislation: Convention relating to the Status of Refugees
Migration Act 1958 (Cth) ss 91R, 424ACases cited: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 followed
SZOWN v Minister for Immigration [2011] FMCA 392 referred to
Date of hearing: 3 August 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 22 Counsel for the Appellant: Appellant appeared in person Solicitor for the First Respondent: Ms B Rayment of Sparke Helmore Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 832 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOWN
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
3 AUGUST 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 832 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOWN
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
3 AUGUST 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
This is an appeal from a decision of the Federal Magistrates Court refusing constitutional writ relief to the appellant in respect of a decision by the Refugee Review Tribunal on 26 November 2010 that affirmed the decision of the Minister’s delegate not to grant him a protection visa: SZOWN v Minister for Immigration [2011] FMCA 392.
THE APPELLANT’S CLAIMS
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 4 April 2010 and applied for a protection visa on 28 April 2010. In substance, the appellant claimed that he faced a real chance of persecution if he returned to China because the authorities required him to be compulsorily sterilised. He claimed that he and his wife had two children, the first born in 1992 and the second in 1997. He claimed that his wife became pregnant with a third child in July 2009 and that when she was seven months pregnant the local family planning office required her to undergo an abortion on 15 January 2010. He claimed that during that operation his wife bled heavily, and that although the authorities had planned to subject her to a tubal ligation, this procedure was not carried out. He claimed that on 25 January 2010 the family planning office issued a notice requiring him to attend, on 27 January 2010, at a hospital to undergo a surgical sterilisation. He had given to the delegate the document dated 25 January 2010 on which he relied to claim that he had been required to attend to undergo sterilisation on 27 January, together with an English translation of it that supported his assertion.
Because he claimed to have been fearful of this operation, he felt his only course was to flee overseas, and so on the day that he received the notice from the family planning authorities, he fled to a cousin’s house in Beijing. He claimed that a friend arranged for him to obtain a visitor’s visa to Australia, and that until he was able to leave, he hid in Beijing. He claimed that the authorities visited his home on numerous occasions asking where he was and that he feared that these visits were connected to the desire of those authorities to ensure that he underwent a vasectomy in order that he be sterilised.
The delegate rejected the appellant’s application on 16 August 2010, finding that while he had a genuine fear of harm, there was no real chance of persecution occurring. The delegate found that there was a real chance that the appellant would be forced to undergo surgical sterilisation were he to return to China, but noted that, while such an operation may constitute cruel and inhuman treatment and may warrant further examination by the Minister, it was not the delegate’s function to consider it in the context of the appellant’s claim for a protection visa.
THE PROCEEDINGS IN THE TRIBUNAL
The appellant attended and gave evidence before the tribunal. After the appellant attended the hearing before the tribunal, it sent him a letter under s 424A of the Migration Act 1958 (Cth) asking for comments on a number of matters that might have provided a reason for the tribunal affirming the decision under review and deciding against his claim to a protection visa. In response, the appellant provided a document together with an English translation that was a certificate of medical diagnosis in respect of his wife made on 15 January 2010 that bore the seal of the hospital in appellant’s locale. This stated that she had:
“… undergone the operation of abortion and tubal ligation from 9:00 to 11:00 in the morning with relatively high blood loss and weak physical health.”
(emphasis added)The appellant did not provide a further explanation of this medical certificate to the tribunal.
In its findings and reasons, the tribunal explained that it considered that the appellant’s claim of being required to undergo a compulsory vasectomy and his fears of that procedure were predicated upon his claim that his wife could not undergo that sterilisation procedure on 15 January 2010 when she was subjected to the compulsory abortion because she experienced excessive bleeding. The tribunal noted that it had questioned the appellant about why his wife could not have been sterilised when subjected to the abortion procedure. He had told it that because his wife was suffering from excessive bleeding, this prevented her forced sterilisation occurring on that occasion. The tribunal noted that he had given a similar explanation to the delegate.
The tribunal found that the appellant’s claims that he was required to undergo a compulsory vasectomy were interlinked with his claim that his wife had not been able to be subjected to a sterilisation procedure when she was forced to have her abortion. It noted that the appellant’s evidence had been that the authorities visited his house on the morning of 27 January 2010 to accompany him to the hospital after he had fled. The tribunal assessed the notice dated 25 January 2010 that the appellant relied on. He claimed that it showed the Family Planning Office required his attendance for the compulsory sterilisation procedure. This document recorded that when his wife had been examined on 10 January 2010, as part of a process dealing with all mothers who were still capable of bearing of children, she had been found to be seven months pregnant and that, as this was her third pregnancy, a serious breach of the one-child policy in Hebei Province had occurred.
The tribunal noted that the 25 January notice simply recited that the appellant was then required to attend for a compulsory sterilisation two days later. But, as the tribunal emphasised, the 25 January notice made no reference to anything that had happened to his wife on 15 January. The tribunal emphasised that the 15 January medical certificate relating to appellant’s wife stated that she had undergone an abortion and tubal ligation procedure on 15 January. The tribunal accepted that the latter document corroborated that she was bleeding heavily. However, the tribunal concluded that the 15 January certificate fundamentally contradicted the appellant’s evidence founding his claim that the 25 January notice required him to be sterilised. The tribunal was not satisfied that the two documents dated 15 and 25 January on which the appellant relied reflected his actual circumstances. It did not give them any weight as supporting his claims.
The tribunal found that the medical certificate of 15 January so significantly contradicted the appellant’s account of critical factors in his circumstances that he should be found to have manufactured entirely his claims relating to his and his wife’s interaction with the family planning authorities in January 2010. The tribunal found that the appellant was not a truthful witness in respect of the central features on which his claims were based. It did not accept that he had been required to undergo a vasectomy in January 2010 for breaching the Hebei family planning regulations and did not accept that he had come to the adverse attention of the authorities for failing to undergo such a procedure or for expressing any opinion opposing those policies or requirements or for any other reasons.
The tribunal accepted the appellant’s claim that after the birth of their second child in 1997 he had been required to pay a fine of 15,500 yuan. It considered that the quantum of that fine was broadly consistent with country information about the level of fines applied in other counties of Hebei Province in the late 1990s. It did not accept the appellant’s claim that the level of fine was due to a corrupt demand by officials because it did not appear to be outside the range of penalties that independent evidence indicated could be imposed at the time.
The tribunal also expressed serious doubts about a further claim that the appellant had made that his wife had been detained for three days in 1997 after the birth of their second child. But, it did not make any ultimate finding about this claim. It said that even if this claim were accepted, the incident had occurred 13 years ago and on the appellant’s own account the second child had been able to commence school and was currently a student. The tribunal did not accept that the appellant or his family had experienced any ongoing problems from the authorities after paying the fine or social compensation fee relating to the birth of the second child.
In light of those findings, the tribunal did not accept that the appellant would come to the adverse attention of the authorities for any Convention reason if he returned to China. Accordingly, it was not satisfied that he held any well-founded fear of being persecuted on account of any Convention reason should he return to China now or in the reasonably foreseeable future.
THE PROCEEDINGS BEFORE THE TRIAL JUDGE
The grounds of the appellant’s application to the Federal Magistrates Court recited the principal factual basis of his claim for protection, although there was a typographical error about the year in which his wife became pregnant. Realistically, I will allow for the fact that the appellant does not speak English and that his notice of appeal in this Court was obviously prepared by someone else. It is not sensible to draw an adverse inference against the appellant’s English language mistake about a date in his notice of grounds of appeal or in his application to the Federal Magistrates Court. The notice of appeal also referred to the asserted failure of the tribunal to take his claims and evidence into account according to s 91R of the Act.
The appellant gave evidence to the trial judge that the 15 January certificate did not say in terms that his wife had been sterilised on that date. He pointed out that the document stated that she had undergone an operation for abortion and sterilisation on that date but, as he said to the tribunal, his wife was so weak after the abortion procedure that she could not undergo the planned sterilisation. He said that the tribunal member had not given him an opportunity to correct that asserted misunderstanding of the meaning of the document and that, had he had such an opportunity, he would have provided this explanation.
The trial judge rejected the appellant’s contention that the tribunal had not taken his evidence and claims into account in the sense of considering what weight to give them. He found that the tribunal had carefully identified the appellant’s evidence, weighed it and then considered whether it should be accepted as correct. His Honour, as am I, was unable to understand the purpose of the reference to s 91R of the Act in the grounds of the application for relief and noted that no submissions had been made to him about it.
His Honour found that the appellant’s construction of the meaning to be taken from the 15 January certificate was not the only available construction. He found that the meaning attributed to this document by the tribunal, namely, that the operation for abortion and tubal ligation had been completed successfully, was plainly open and, therefore, the tribunal had not proceeded upon a misunderstanding of the meaning of the document. Moreover, his Honour found that because the appellant had himself supplied both the original and translated versions of this document to the tribunal in response to its letter under s 424A following the hearing, the tribunal was under no further obligation to invite any comments from the appellant as to how the 15 January certificate should be understood. This was because where an applicant had given information to the tribunal for the purpose of his or her application for review, s 424A(3)(b) excluded any obligation of the tribunal to give to an applicant for review clear particulars of that information if it considered that it would be the reason, or part of the reason for affirming the decision under review. His Honour noted that this statutory exclusion was a limitation on the common law procedural fairness hearing rule.
His Honour found that there was a critical issue as to the appellant’s credibility in respect of his claims that was apparent from the nature of the decision to be made by the tribunal. He held that the conclusion that the tribunal had drawn from the 15 January certificate, and other evidence submitted by the appellant, was open on the material known to the appellant to be material on which the tribunal could act. Accordingly, his Honour found that there was no procedural unfairness that affected the tribunal’s decision-making process.
His Honour noted the submission that the appellant had made to him that the tribunal was biased against him and Chinese people, but found that there was no evidence suggesting any such bias. As his Honour explained, merely because the tribunal ultimately did not believe the appellant’s evidence is not bias, but merely a performance by the tribunal of its function according to law. In those circumstances his Honour dismissed the application.
THIS APPEAL
The notice of appeal to this Court did not raise the substantive complaint which the appellant sought to agitate before me. It referred to a failure by the tribunal to deal with a completely irrelevant claim in relation to the practice of Falun Gong and insomnia in about 2006 and 2007. The Minister did not object to his being allowed to explain his case orally. The appellant said that he was not satisfied with the tribunal’s decision because it contained an element of discrimination and all his evidence had been true. He told me that he did not know if the translations of the documents had been accurate, but that all the experiences he had had made him unable to live in China. He said that he could not go back there, and it would not be fair to make him suffer again. These were all arguments for the Court to conduct a merits review. That is not the function of the Court on an application for constitutional writ relief. I explained to the appellant the need for him to identify a jurisdictional error by the tribunal in order to found a claim for relief.
In my opinion there was no error made by the trial judge in his assessment of the application that the appellant made in the Federal Magistrates Court. The appellant has relied on the same arguments in substance today. The family planning regulations, known as the One-Child Policy applied in China, have been held by the High Court not to amount to persecution but rather the enforcement of a policy that applied generally. The Court held that those laws are made, or enforced, as laws of general application in China and do not attract any entitlement to protection in accordance with the Convention relating to the Status of Refugees: Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.
The appellant’s claim made today that the tribunal’s decision demonstrated an element of discrimination is similar to the claim he made to the trial judge that the tribunal was biased. These claims are based on the appellant’s misunderstanding of the function of the tribunal to assess the claims made by him and to make a decision on those claims. The mere fact that the decision is adverse to him does not demonstrate any discrimination. I reject the allegation.
Having carefully read the tribunal’s decision record, including its findings and reasons, I am unable to detect any element of bias, or any other jurisdictional error in the way in which it approached its function. In those circumstances I am not able to detect any basis upon which the trial judge erred, or the tribunal could have been said to have fallen into jurisdictional error. It follows that the appeal must be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 9 August 2011