SZQCF v Minister for Immigration
[2011] FMCA 597
•25 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQCF v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 597 |
| MIGRATION – RRT decision – Chinese applicant claiming persecution under family planning policies – Tribunal disbelieved claim of forced abortion – found no Convention nexus to applicant’s fears – no jurisdictional error identified – application dismissed. |
| Migration Act 1958 (Cth) |
| Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 |
| Applicant: | SZQCF |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 594 of 2011 |
| Judgment of: | Smith FM |
| Hearing date: | 25 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 25 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 594 of 2011
| SZQCF |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The applicant arrived in Australia on a one month temporary business visa in May 2008. Her passport showed she had previously made a visit to Europe in 2007. Two years after her arrival, on 15 June 2010, she applied for a protection visa. A statement attached to the visa application explained her fears of persecution, which she claimed had caused her to leave the People’s Republic of China and to seek protection in Australia.
The applicant claimed to have lived in Shandong Province. She said she was unemployed and “stayed at home” after completing her education. She married in 1990 and had a child in 2000, but her son was “with poor physical health” and she wanted a second child. In 2005, the Family Planning Office detected that she was pregnant and compelled her to undergo an abortion. She set out the circumstances in which she claimed this happened. She said that, in August 2006, her friend advised her to go either to the USA or Australia to have a second child. She borrowed money on the family home and came to Australia “because we would like to have another child, as our son is in such poor health that he becomes sick very often” and because:
It is a woman’s right to give birth to a child. However in China, it is ruled by CCP and democracy is only in name. Human rights are violated there, as forced abortion is imposed and innocent young life is killed.
A delegate of the Minister interviewed the applicant on 9 September 2010. The delegate made a decision on 17 September 2010 refusing the visa application. The delegate thought that it was “plausible that the applicant was subjected to a forced abortion in 2005”. However, the delegate thought that she could relocate “to an area where Birth Control officials are unlikely to attempt to force her to have another abortion”. More significantly, the delegate also was not satisfied that any persecution would be for a Convention reason because:
The family planning laws in China are generally applicable laws, and they purport to be for the purpose of limiting the population in China. There is nothing to suggest that they are discriminatory in application.
The applicant appealed to the Tribunal. She did not submit any evidence corroborative of her claims, but attended hearings held by the Tribunal on 10 November 2010 and on 10 February 2011. A lengthy description of both hearings is given by the Tribunal in its statement of reasons, and I accept its description.
It is clear, in my opinion, that the Tribunal questioned the applicant concerning her history and, in particular, the aspects upon which it later decided the matter. The Tribunal clearly raised with the applicant its concerns both about the credibility of her claim to have suffered a forced abortion, and her claims to fear persecution in China. The Tribunal questioned the applicant about the delay in bringing her protection visa application, inconsistencies in her evidence, and whether the One Child Policy and regulations related to it in China are laws which inflict persecution covered by the Refugees Convention.
It appears from the Court Book that the files before the Tribunal contained some information upon which the temporary visa had been granted in 2008, but it did not rely upon that information when making its decision. It appears to me probable that the Tribunal considered at all relevant times that it was able to review the delegate’s decision based only on the evidence given by the applicant to the delegate and then to itself. I am not satisfied that any obligations arose under s.424A(1) of the Migration Act, in relation to this information.
The Tribunal made a decision on 23 February 2011 which affirmed the delegate’s decision. In its statement of reasons, the Tribunal set out the applicant’s evidence and country information concerning family planning policies and practices in China in recent years, in particular in Shandong Province. The Tribunal concluded that, although the Shandong Province Population and Family Planning Ordinance did not contain reference to abortion as a penalty for out of plan pregnancies, there was general information suggesting that this occurred at times as a result of various motives on the part of the family planning officials. The Tribunal said these could be that they could make a profit or that they were under pressure for having high rates of extra births. There was information that they were under “intense pressure to meet birth limitation targets set by government regulations” which was “the primary motivator for local planning officials adopting coercive measures, including forced abortions”. The Tribunal said that it accepted that “in Shandong, it is common that a woman who was pregnant with a second child may have been forced to have an abortion”.
However, the Tribunal said that it had serious concerns about the credibility of the applicant’s claims to have encountered such an experience in 2005. It identified inconsistencies in her evidence which were not satisfactorily explained, and which, in its opinion, showed that: “the applicant has fabricated her claims regarding being forced to have an abortion and having to go into hiding because she wanted a second child”.
The Tribunal, in particular, referred to inconsistent evidence that she had given concerning whether her husband had been at home when she was taken away for the abortion, and about what subsequent contact she had had with the family planning officials. The Tribunal noted that she had made a new claim that she had gone into hiding from the end of 2005 to avoid them, which was inconsistent with other evidence she had given.
The Tribunal also said that it “does not accept that the applicant left China to avoid persecution”. The Tribunal thought that her travel to Europe in 2007 without applying for protection there, and her voluntary return to China, “leads the Tribunal to not accept that the applicant fled China and came to Australia because she feared persecution, or because she wanted to have a second child.”
The Tribunal thought this conclusion was also pointed to by her delay in lodging a protection visa in Australia for about two years. The Tribunal did not accept the explanations which the applicant had given for that conduct.
The Tribunal also addressed, as it was required to, whether the applicant would face Convention related persecution if she returned to China in the nature that she had claimed to fear, that is, on the part of the family planning officials. The Tribunal said:
It is well established that enforcement of a law of general application does not ordinarily constitute persecution for the purposes of the Convention, and this has been found to be the case specifically in relation to China’s Family Planning Regulations: see Applicant A’s case.
The Tribunal noted that it found that there was a:
…real chance that the applicant could be subjected to a forced abortion if she returned to Shandong and fell pregnant with a second child.
However, it found that the reasons for the feared harm would not be for any Convention reason. It said:
The Tribunal finds that the essential and significant reason for any withholding or failure of state protection is not for a Convention reason but to limit population growth.
The Tribunal considered the qualification found in the judgments in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225, that a Convention ground can be found if the particular applicant has a well-founded fear that in her special circumstances a Convention reason would exist, but the Tribunal said:
105. The Tribunal has not accepted that the authorities targeted the applicant or implemented the family planning policy itself in an unusually harsh or discriminatory manner for any Convention reason. Nor does the Tribunal accept that the Family Planning laws impacted more seriously on the applicant, in a discriminatory manner for any Convention reason, although it is not clear that, even if they did, this would be a sufficient basis on which to find that the laws themselves, which clearly do not intend to discriminate against particular groups, could thereby be construed as persecutory. The Tribunal therefore does not accept, on the available evidence, that any past or future penalty imposed on the applicant under the Family Planning Regulations would have the character of Convention persecution.
106. The Tribunal is satisfied that any penalty imposed on the applicant for breach of the Family Planning Regulations in the future would not constitute Convention persecution, as it would result from the implementation of a law of general application or, in the case of a forced abortion, that the essential and significant reason for this harm would not be for any Convention reason.. The Tribunal does not accept that the Family Planning Regulations would be applied selectively or discriminatorily to the applicant for any reason or that it would be discriminatory in its impact on the applicant for a Convention reason.
The Tribunal concluded that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention.
I have considered the Tribunal’s reasoning and, in my opinion, it is consistent with a proper application of Applicant A.
The applicant now asks the Court to set aside the Tribunal’s decision and to remit the matter. I have power to make those orders only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant qualifies for a protection visa, nor whether she should be given permission to stay in Australia for any other reason.
Unfortunately, the ground set out in the applicant’s application to the Court has been taken from a precedent with no relevance to the claims which, in fact, the applicant had made to the Department of Immigration and the Refugee Review Tribunal, and which they addressed in their decisions. It says:
1.I have gotten two children which beached the one family one child policy of China and been a member of underground Catholic church. The Tribunal member failed to consider my persecuted experience according to S91R of the Migration Act of 1958. The Tribunal made jurisdictional error.
The applicant has not filed an amended application or made any written or oral submissions which points to any arguable jurisdictional error. Today her submissions were confined to maintaining that her claimed experience in China was ‘true’, and a request that her case be sent back to the Tribunal.
Unaided by any useful submissions, I have not been able, for myself, to find any jurisdictional error affecting the Tribunal’s decision. It is, therefore, a privative clause decision, and I must dismiss the application.
I note that the court made an extension of time for a short period under s.477(2) at the first court date.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Smith FM
Date: 3 August 2011
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