SZSSP v Minister for Immigration and Border Protection

[2014] FCA 103

FEDERAL COURT OF AUSTRALIA

SZSSP v Minister for Immigration and Border Protection [2014] FCA 103

Citation:	SZSSP v Minister for Immigration and Border Protection [2014] FCA 103
Appeal from:	SZSSP v Minister for Immigration and Anor [2013] FCCA 1445
Parties:	SZSSP v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number:	NSD 1971 of 2013
Judge:	COWDROY J
Date of judgment:	19 February 2014
Legislation:	Migration Act 1958 (Cth) s 36
Cases cited:	Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
Date of hearing:	12 February 2014
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	15
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the First Respondent:	Ms A Carr of DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1971 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSSP
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	19 FEBRUARY 2014
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent.

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 1971 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZSSP
Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	COWDROY J
DATE:	19 FEBRUARY 2014
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from the decision of the Federal Circuit Court of Australia delivered on 4 September 2013 which dismissed an application to review a decision of the second respondent (‘the Tribunal’). In its decision delivered on 27 February 2013 the Tribunal upheld the decision of a delegate to the first respondent (‘the Minister’) not to grant the appellant a Protection (Class XA) visa (‘the protection visa’) under the Migration Act 1958 (Cth) (‘the Act’).

   FACTS

2. The appellant claims to be a citizen of the People’s Republic of China (‘the PRC’). The appellant arrived in Australia on 10 January 2012 holding a student visa.

3. On 8 March 2012, the appellant applied for the protection visa. The appellant claimed that his wife had fallen pregnant with their second child and that he feared persecution due to the fact that an attempt had been made by two Family District Planning Officers, together with cadres of the Street Committee, to take the appellant from his home to undergo sterilisation surgery at a hospital. The appellant claimed that he escaped to avoid surgery by jumping through a toilet window and that he then travelled to Beijing where he hid at his cousin’s residence. Subsequently he obtained funds and applied for a student visa to come to Australia. The appellant claimed that if he returned to China he would be forced to have sterilisation surgery.

4. A delegate of the Minister refused the application for a protection visa, whereupon the appellant filed an application for review in the Tribunal.

5. The Tribunal found the appellant’s evidence to be unconvincing. It concluded that the changing nature of the appellant’s evidence was indicative of the appellant’s claims having been fabricated. As a result, the Tribunal concluded that the appellant did not satisfy the criteria set out in s 36(2)(a) of the Act, nor the complementary protection criterion under s 36(2)(aa).

   APPEAL TO THE FEDERAL CIRCUIT COURT OF AUSTRALIA

6. On 2 April 2013 the appellant applied to the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia (‘the FCCA’)) seeking judicial review of the Tribunal’s decision, and claiming relief by way of prerogative writ.

7. The grounds of the application were as follows:

   1.In China countryside, our peasant’s family must have a son to rely on when parents are getting old. So, my wife and me do want to have a son. When my wife became pregnant and the Doctor told us it was a boy, all our family members were extremely happy. But, my wife was taken for force abortion. The local authorities forced me to hospital for surgery sterilization. It was lucky that I ran away to Beijing. Them, I arrived in Australia.

   2.The Refugee Review Tribunal member didn’t know the Chinese real conditions, so made mistake while he made his decision of refusing my application for protection visa.

   [Errors in original]

8. The application came before the FCCA on 4 September 2013. The primary judge concluded that the findings of the Tribunal resulted from the adverse credibility findings made in relation to the claims of the appellant. Her Honour also found that neither the decision nor the procedures of the Tribunal disclosed any jurisdictional error. In particular, her Honour observed that the Tribunal had satisfied its procedural fairness obligations under Div 4 of Pt 7 of the Act and that the Tribunal had properly invited the appellant to a hearing. Accordingly, the application was dismissed.

   APPEAL TO THE FEDERAL COURT OF AUSTRALIA

9. By notice of appeal filed on 20 September 2013 the appellant challenges the decision of the primary judge. The grounds of appeal are virtually identical to those raised before the FCCA. Such grounds are as follows:

   1.In China countryside, our peasant’s family must have a son to rely on when we become old. My wife became pregnant and was told a boy. Our whole fmily are all happy. But she was forced for abortion. The local authorities forced me for surgery sterilization. I have to leave China for Australia.

   2.The Tribunal member didn’t know the China real condition, so made error when he decised to refuse my application for review.

   [Errors in original]

10. The appellant appeared at the hearing unrepresented, but assisted by an interpreter. The appellant was invited to make oral submissions, since no written submissions had been provided by him. The only oral submission made by the appellant was that his statements regarding his experiences in the PRC were truthful.

11. The first ground of appeal does no more than state facts which the appellant relies upon to establish persecution. It does not assert any jurisdictional error on the part of the Tribunal, nor is any error by the primary judge identified. At best this invites the Court to engage in an impermissible merits review: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Further, the Tribunal’s credibility findings are a matter for it alone: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The first ground of appeal must therefore be rejected.

12. The significant claims of the appellant were rejected by the Tribunal; namely that the appellant’s wife was pregnant with a second child, that the appellant’s wife fled from an abortion or was forced to have an abortion, and that the appellant was detained and fled from forced sterilisation. Although the Tribunal accepted that there had been cases of abortion and sterilisation in the PRC, it did not accept that this had occurred to the appellant or his wife.

13. The Tribunal also found that the appellant had given inconsistent dates concerning the date that he became aware of his wife’s pregnancy. The Tribunal did not accept his explanation that the error resulted from the appellant’s claimed nervousness at the hearing. The Tribunal found that the appellant only changed his evidence when the discrepancy was brought to his attention. Accordingly the Tribunal concluded that if the appellant returned to the PRC he would not be targeted for a convention reason, including forced sterilisation, and that the appellant would not be at risk of suffering significant harm.

14. In respect of the second ground of appeal, the challenge to the Tribunal’s findings does not establish jurisdictional error. The reasons provided by the Tribunal were clear and comprehensive. The Tribunal considered country information in relation to the PRC, including information regarding forced abortions and sterilisations. It was a matter for the Tribunal to decide the weight to be given to that information: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]. No error is disclosed in the decision of the primary judge and her Honour was correct in concluding that the Tribunal did not fall into jurisdictional error.

15. For the above reasons, the appeal is dismissed with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated:       19 February 2014