FEDERAL COURT OF AUSTRALIA

SZHIS v Minister for Immigration and Multicultural Affairs [2006] FCA 1641

MIGRATION – no point of principle – appeal dismissed

Migration Act 1958 (Cth) – ss 65, 424A

Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 followed

NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 cited

Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 cited

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 cited

SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 cited

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 referred to

SZHIS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1430 OF 2006

JACOBSON J

17 NOVEMBER 2006

SYDNEY

On appeal from the Federal Magistrates Court of Australia

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The Appellant pay the First Respondent’s costs of the appeal.

THE COURT NOTES THAT:

3.         The First Respondent is incorrectly referred to as the Minister for Immigration and Multicultural and Indigenous Affairs in the Appellant’s notice of appeal and should properly be referred to as the Minister for Immigration & Multicultural Affairs.

4.         The Refugee Review Tribunal has already been added as Second Respondent in the proceeding.

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

On appeal from the Federal Magistrates Court of Australia

REASONS FOR JUDGMENT

(REVISED FROM TRANSCRIPT)

Introduction

1                     This is an appeal from a decision and orders of Federal Magistrate Riethmuller dated 10 July 2006 dismissing an application for review of a decision of the Refugee Review Tribunal handed down on 6 September 2005.  The Tribunal affirmed a decision of the Minister not to grant the appellant a protection visa.  

2                     The appellant is a citizen of the People’s Republic of China.  He arrived in Australia on 12 December 2004.  He claimed to have a well-founded fear of persecution.  The principal basis of his claim seems to have been that he suffered persecution by reason of his membership of a particular social group, namely as the father of a child born out of wedlock. 

Decision of RRT

3                     The Tribunal characterised the appellant’s fear of persecution as relating to China’s ‘one child policy’.  It went on to say that the appellant claimed that as long as the one child policy existed in China he would not be treated fairly.

4                     The Tribunal observed that the appellant claimed he had suffered harm because he and his partner had a child at a time when he was unmarried.  The Tribunal accepted as plausible the appellant’s claim that he was the father of a child born out of wedlock and that the Chinese Birth Control Office intervened.  However, the Tribunal was not satisfied that the harm to which the appellant pointed was as a result of the fact that he had fathered a child at a time when he was not married.

5                     The Tribunal referred to the decision of the High Court in Applicant A v Minister of Immigration and Ethnic Affairs (1997) 190 CLR 225.  The Tribunal did not make a specific finding that the appellant was not a member of a particular social group.  However, it referred to the observations of Brennan CJ and also those of McHugh J pointing to the principle that, without evidence of selectivity in the enforcement of a law of general application, such an application of the law will not amount to persecution for a Convention reason. 

6                     The Tribunal concluded its reasons by stating as follows:

Looking at the evidence as a whole, the Tribunal is satisfied that any harm suffered by the applicant is a result of a law of general application.   Looking at the evidence cumulatively, the Tribunal is satisfied that there is nothing in the applicant’s profile that would result in him being persecuted if he were to return to China and be subjected to the one child policy.  The Tribunal is satisfied that in the applicant’s circumstances, this would not amount to persecution as stipulated in the Convention.  The Tribunal is satisfied that the applicant would not receive disproportionate ill-treatment amounting to persecution.

Decision of Federal Magistrate

7                     Three grounds of review were raised before the Federal Magistrate.  The first ground was a claim that the provisions of s 424A of the Migration Act 1958 (Cth) had not been observed.  The Federal Magistrate pointed out that the appellant did not identify any documents or information which he failed to receive.  Accordingly, the Federal Magistrate was of the view that the alleged breach of s 424A was not made out.

8                     The second ground of review was that the Tribunal did not make a genuine and realistic attempt to arrive at its decision in a bona fide manner.  The learned Federal Magistrate said that the fact that the Tribunal did not believe the appellant about the matters that he claimed does not establish that the Tribunal failed to make a genuine and realistic attempt to reach a bona fide decision.  The learned Federal Magistrate observed that, indeed, the Tribunal’s reasons showed that it did consider the detail of the appellant’s claims.

9                     The third ground of review was an argument based upon China’s one child policy.  The Federal Magistrate was of the view that the approach taken by the Tribunal was consistent with the principles stated by the High Court in Applicant A.   

Discussion

10                  The appellant’s notice of appeal states two grounds of appeal.  The first ground is that the Tribunal committed a jurisdictional error because it did not afford the appellant the benefit of the doubt when there was no material to the contrary of that which the appellant asserted.  However, it is clear in my view that this ground of appeal cannot succeed because it is contrary to the well-established principles that apply to the provisions of s 65 of the Migration Act. 

11                  It is well established that s 65(1) does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established.  Rather, what is required is a refusal of an application if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied; see for example Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73.

12                  The first ground of appeal states in addition that the Federal Magistrates Court failed to give consideration to this claim.  That may be an attempt to raise the ground to which the learned Federal Magistrate referred, namely a failure to make a genuine and realistic attempt to reach a bona fide decision.  However, as the Full Court said in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [65], that language does not create a kind of general warrant for review.  It seems to me that what is meant by such a ground is that the decision-maker must not inflexibly apply a policy.  There is no such suggestion in the present case.

13                  The second ground of appeal is that the Tribunal did not provide an opportunity to the appellant to comment on materials which the Tribunal relied upon in its decision and that the Tribunal made an error of procedural fairness in relation to the case.  In addition, the notice of appeal states that the Federal Magistrates Court failed to give consideration to this claim.  This ground of appeal must also fail. 

14                  Firstly, the natural justice hearing rule did not apply to the application for review because it was filed after the commencement of the operation of s 422B of the Migration Act; see decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 at [60] to [67].  See also SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62 at [8].

15                  In any event there is no evidence before the court to demonstrate that the Tribunal member failed to provide the appellant with any opportunity to comment on the critical issues that arose for consideration and upon which the Tribunal member based her decision; see NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241 at [21].

16                  To the extent that the second ground of appeal seeks to raise a breach of s 424A(1) of the Migration Act, I do not consider that such an argument can succeed.  As the learned Federal Magistrate observed, the appellant was unable to point to any documents or information which would have fallen within the provisions of s 424A(1). 

17                  There is nothing which could be said to constitute information within the principles stated by a Full Court in VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 at [24].  That paragraph has been applied and adopted by other Full Courts.  

18                  Even if there was information which fell within s 424A(1) of the Migration Act, the information about China’s one child policy dealt with an exception contained in s 424A(3)(a); see Minister for Immigration and Multicultural and Indigenous Affairs v NAMW (2004) 140 FCR 572 at [138]. 

Conclusion

19                  I am mindful of the fact that the appellant is not legally represented.  I have given careful consideration to the reasons for decision of the Tribunal and the reasons given by the Federal Magistrate.  I can see no jurisdictional error in the decision of the Tribunal nor can I see any error in the reasons of the learned Federal Magistrate. 

20                  Accordingly, the orders that I will make are that the appeal be dismissed with costs.

Associate:

Dated:         17 November 2006