FEDERAL COURT OF AUSTRALIA

SZEIA v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1860

SZEIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2012 of 2005

SACKVILLE J

SYDNEY

19 DECEMBER 2005

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                This is an appeal from a decision of the Federal Magistrates Court made on 11 October 2005 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 12 August 2004.  The RRT affirmed a decision of a delegate of the respondent (‘the Minister’) made on 17 February 2004 refusing to grant the appellant a protection visa.

2                     The appellant is a citizen of the Peoples’ Republic of China (‘PRC’), born in 1971.  He arrived in Australia on 9 January 2004.  On 15 January 2004, he applied for a protection visa on the ground that he feared persecution by reason of his having breached the PRC’s one child policy.  The delegate refused the application on 17 February 2004.

3                     On 17 March 2004 the appellant applied to the RRT for review of the delegate’s decision.  On 21 May 2004, the RRT wrote to the appellant advising him that it could not make a decision in his favour on the material before it and invited him to attend a hearing.  That hearing took place on 8 July 2004.  The appellant attended and gave oral evidence.  On 12 August 2004, the RRT affirmed the decision of the delegate.

4                     The RRT summarised the appellant’s claims as follows:

‘The [appellant] claims that he is a father of three children and in breach of the “one child policy” and that he left [the PRC] to avoid forced sterilisation.  The [appellant] claims that he fears that he will be forcibly sterilised if he returns to [the PRC]. The [appellant] also claims that he will be forced to pay a penalty for breaching the “one child policy”’.

5                     The RRT accepted that the appellant was the father of three children and in breach of the PRC’s one child policy.  However it did not accept that the appellant faced forced sterilisation before leaving the PRC or that he would face the same prospect on his return to that country.

6                     The RRT pointed out that the appellant’s wife had already been sterilised and that seven years had passed since the birth of his third child.  Given that the appellant had remained married to his wife, the RRT did not consider it plausible that the authorities in the PRC had pursued the appellant in order to force his sterilisation.  The RRT also considered it implausible that the authorities would pursue the appellant on his return to China to force him to undergo sterilisation.

7                     The RRT accepted that the appellant may have incurred a fine for breaching the one child policy.  However, it considered his evidence in this respect to be vague and most imprecise, such that the RRT could not be satisfied that the imposition of the fine amounted to serious harm.  The RRT also rejected as unconvincing the appellant’s evidence that he could not afford to pay the penalty and borrowed money in order to leave the country.

8                     The appellant had made no claim that the penalty had been imposed upon him in a discriminatory or persecutory manner.  The RRT considered that the one child policy in the PRC could be characterised as a law of general application.  It was therefore not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

9                     The appellant was unrepresented before the Magistrates Court.  The learned Magistrate understood his claims to be the following:

(i)          the RRT had been biased in failing to accept that the sterilisation amounted to persecution for a Convention-related reason;

(ii)         the RRT had been biased in rejecting the appellant’s factual claims; and

(iii)       the RRT had been biased in failing to find that a penalty had been imposed on the appellant in a discriminatory and persecutory manner.

10                  Her Honour observed that the appellant’s claims amounted to dissatisfaction with the RRT’s factual conclusions.  She also pointed out that there had been no evidence that the fine had been imposed upon the appellant in a discriminatory or persecutory manner.  It had been open to the RRT to find, as it did, that both the imposition of sterilisation and a fine would be pursuant to the application of a general law of the PRC.

11                  Her Honour also pointed out that, in any event, the RRT had not accepted that the appellant was likely to be pursued to undergo sterilisation if he were to return to the PRC.  This was merely a conclusion open to the RRT on the merits.  Accordingly, there was no jurisdictional error on the part of the RRT.

12                  The appellant’s amended notice of appeal asserts that the RRT did not have sufficient evidence before it to reach the conclusions it did.  The notice of appeal also asserts that the RRT’s findings were not based upon reasoning which provided a ‘rational or logical foundation’ for the conclusions.  The appellant did not support the notice of appeal with any written submissions.

13                  As the Magistrate held, the RRT rejected the principal factual claims made by the appellant.  In particular, it found that, contrary to his claims, he had not faced forcible sterilisation in the PRC and did not face any such threat if he were to return to that country.  The RRT based its findings upon the appellant’s admissions that his wife had already been sterilised and that seven years had passed since the birth of the third child.  This evidence, on any view, provided support for the findings reached. 

14                  There is no basis for concluding that the Magistrates Court fell into error in rejecting the appellant’s application for judicial review of the RRT’s decision.  The RRT’s decision was simply based on the evidence before it.  There is no foundation for any claim that the RRT was biased in its approach to the appellant’s claims.

15                  The appeal must be dismissed, with costs.

Associate:

Dated:              19 December 2005