FEDERAL COURT OF AUSTRALIA

SZIBZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1025

SZIBZ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

NSD1076 OF 2006

EMMETT J

4 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal filed on 5 June 2006 be dismissed.

2.                  The applicant pay the first respondent’s costs in the sum of $1,500.

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

REASONS FOR JUDGMENT

1                     The applicant seeks leave to appeal from orders of the Federal Magistrates Court dismissing his application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’). The orders were interlocutory and he seeks leave pursuant to Order 52 rule 5 of the Federal Court Rules.

2                     The applicant is a citizen of the People’s Republic of China. He arrived in Australia on 8 August 1998. On 17 September 1998, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 27 October 1998, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa. It appears that notification of that decision to the applicant was not delivered and was returned by Australia Post. However, on 4 April 2005, the applicant was notified of the delegate’s decision. On 28 April 2005, he applied to the Tribunal for review of the delegate’s decision.

3                     The circumstances of the non-notification of the applicant are a matter of conjecture so far as the Court is concerned. The question came to light when the applicant asserted that he had been in Australia for many years and had, in fact, begun to pay income tax. Those are matters that may be relevant to the exercise by the Minister of discretion to grant a more favourable decision. However, they do not appear to be relevant to the question before the Court.

4                     On 15 November 2005, the Tribunal affirmed the delegate’s decision not to grant a protection visa. The applicant was notified of that decision on 29 November 2005. The applicant then commenced a proceeding in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. The Minister filed a show cause application on 11 January 2006 and the Federal Magistrates Court gave directions in relation to that application on 7 February 2006.

5                     At the request of the applicant, the audiotape of the hearing before the Tribunal was provided to him by the Minister. An amended application was filed on 10 February 2006 and the applicant was directed to file and serve any additional affidavit material, including a transcript of the Tribunal hearing, by 31 March 2006. Nothing further was filed. However, pursuant to directions given by the Federal Magistrates Court, the Minister filed and served a bundle of relevant documents on 20 February 2006. While the applicant was not represented by legal advisors, he apparently received assistance from a migration agent in connection with the preparation of his amended application.

6                     On 4 April 2006, Driver FM concluded, for reasons then given, that the amended application failed to disclose an arguable case. His Honour then dismissed the proceeding pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules. On 5 June 2006, the applicant filed an application for leave to appeal from the orders of the Federal Magistrates Court. That application was supported by an affidavit which did no more than repeat the ground of appeal set out in the draft notice of appeal attached to the application for leave. Before dealing with the grounds of the amended application and the draft notice of appeal, it is desirable to say something about the reasons of the Tribunal.

7                     The applicant attended a Tribunal hearing on 11 October 2005, when he was assisted by a Cantonese interpreter. After the hearing on 11 October 2005, the Tribunal wrote to the applicant, inviting his response to certain information before the Tribunal, relating to his claim of being mistreated in the past. He was asked to respond by 3 November 2005. The applicant did not respond by that date. However, on 14 November 2005, the applicant submitted several documents to the Tribunal, including documents said to relate to the applicant’s grandfather.

8                     The Tribunal accepted that the applicant is a national of the People’s Republic of China. Further, the Tribunal found the applicant to be a credible witness. However, the Tribunal considered that the applicant’s concern was about financial difficulties that he and his family had had in the past and that might appear in the future. The Tribunal accepted that, in the past, the applicant’s financial difficulties were caused, in part, because of his grandfather’s identification as a landlord and because of his and his wife’s contravention of the one child policy. However, the applicant did not claim that he and his wife suffered serious harm amounting to persecution for those or for any other reasons. His claim was to have suffered financial hardship and a degree of social hostility.

9                     The Tribunal accepted that the applicant may have been disadvantaged in his youth, in both education and employment, because of his grandfather’s status as a landlord. However, the Tribunal was persuaded by information before it that such discrimination against the children of landlords was reversed in 1979, when the applicant was 21 years of age. While the applicant was given the opportunity to comment on that information, he did not do so. The Tribunal was, therefore, satisfied that the applicant was not harmed because of his status as a child of a landlord after 1979. The Tribunal was also satisfied that there was no real chance that the applicant would be persecuted for that reason if he returns to China in the foreseeable future.

10                  The Tribunal then stated that the documents submitted by the applicant concerning his grandfather had been considered by the Tribunal. One of the documents was a certificate issued in Australia in 1930 in respect of a person who was named, saying that he is leaving the Commonwealth temporarily. Another document, from the Residents’ Committee of the applicant’s former village, said that the applicant was once labelled as a family member of ‘bad people’ because his grandfather was appointed as the village military commander in 1947. A third document was a notarial certificate stating that the applicant is the grandson of the man named in the Australian certificate and that the grandfather was formerly resident in Australia.

11                  The Tribunal dealt with those documents on the basis that they supported a claim that the applicant would be persecuted by reason of his being the grandson of his grandfather. However, the Tribunal concluded that there was no evidence to indicate that the fact that the applicant’s grandfather was considered a bad person resulted in discrimination against the applicant in China.

12                  In the course of the hearing before me, the applicant asserted that his grandfather was not permitted to return from China to Australia. He said, in effect, that if his grandfather had been allowed to return to Australia, he, the applicant, would now be an Australian. However, there does not appear to have been any complaint or claim along those lines, either to the delegate or to the Tribunal. Even if that were so, it is difficult to see how that could give rise to a conclusion that there was a possibility of persecution of the applicant for a Convention reason. As I have said, the Tribunal expressly found that there was no evidence that the applicant would be discriminated against by reason of his grandfather’s status.

13                  The Tribunal then dealt with the claim of fear of being harmed in the future for reason of the one child policy. The applicant said that he was afraid he might not get a work licence because of his contravention of the one child policy, and that that would affect his family. However, the Tribunal found that the applicant had paid his fines after the birth of his second and third children and had continued to work the land after paying the second fine in 1991. The applicant worked from 1991 until 1998, when he left for Australia, without further harassment by the authorities, even though he had financial difficulties.

14                  The applicant did not claim to have engaged in any activities since 1991 that might have drawn adverse attention from the authorities. He did not claim that his family had been subjected to harassment in the period of seven years since he has been away from China. In fact, his two younger children are at school and his eldest child was educated to Year 10. The Tribunal concluded that there was no Convention reason why the applicant would not get a work licence if he returned to China. In those circumstances, the Tribunal was not satisfied that there was a real chance that the applicant would face serious harm as a result of the application of the one child policy, or for any other reason, if he returned to China in the foreseeable future.

15                  Driver FM observed that the amended application filed by the applicant set out four grounds of review. The first ground was an assertion that the Tribunal failed to recognise the principle of non-refoulement in article 33 of the Convention. As his Honour observed, that that article is of no relevance unless there is first a finding that a person is a refugee. The Tribunal concluded that the applicant is not a refugee within the meaning of the Convention.

16                  The second ground was an allegation of bias. Driver FM observed that there is no evidence to support bias. In the course of the oral hearing before me, the applicant said that he was not satisfied with the interpretation at the hearing before the Tribunal. He said that he was interrupted sometimes and was not able to finish his answers to questions. He accepted, however, that he made no complaint about that matter to the Tribunal and has not previously complained of such a matter. As I have said, a transcript of the hearing was made available to him, but he has made no effort to provide that, either to the Federal Magistrates Court or to this Court.

17                  The third ground asserted error in using country information. His Honour concluded there was no basis for the assertion and that the Tribunal decision consisted of a thorough examination of the applicant’s claims.

18                  The fourth ground was an assertion of error in the construction of Part 8 of the Migration Regulations. However, the primary judge observed that the ground and the particulars accompanying it defied attempts by his Honour to understand it. Accordingly, his Honour concluded, as I have said, that the amended application failed to disclose an arguable case of jurisdictional error on the part of the Tribunal.

19                  The only ground of appeal stated in the applicant’s affidavit and his application for leave to appeal is that the primary judge erred in failing to recognise the principle of non-refoulement contained in Article 33 of the Convention, and in failing so to find, the Tribunal had erred in also failing to apply that principle. Such a complaint has no substance, since Article 33 applies only once it has been determined that an applicant is a refugee within the meaning of the Convention. If the Tribunal concludes that an applicant is not a refugee within the meaning of the Convention and does so without jurisdictional error, Article 33 can have no possible application.

20                  It follows, in my view, that the decision of the Federal Magistrates Court is not attended with any doubt. There is no warrant, therefore, for the decision being reconsidered by the Federal Court. It was incumbent upon the applicant to demonstrate that, if he wanted the Federal Magistrates Court to re-open his case, there was some purpose in doing so. The applicant has not been able to demonstrate an arguable case that the Tribunal’s decision should be quashed on the grounds of jurisdictional error. It follows that leave to appeal should be refused.

Associate:

Dated: 8 August 2006