SBGC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 24

FEDERAL COURT OF AUSTRALIA

SBGC v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 24

MIGRATION – appeal from decision of a judge of this Court – whether primary judge erred in dismissing application for judicial review – where appellant made no submissions in support of ground of review – appeal dismissed. SBGC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SAD 232 of 2005 KIEFEL, LANDER and GRAHAM JJ 10 MARCH 2006 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 232 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SBGC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES: KIEFEL, LANDER and GRAHAM JJ

DATE OF ORDER: 23 FEBRUARY 2006

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 232 OF 2005

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SBGC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGES: KIEFEL, LANDER and GRAHAM JJ

DATE: 10 MARCH 2006

PLACE: ADELAIDE

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from an order of a judge of this Court dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal (RRT). 2 The appellant is a citizen of the People's Republic of China and entitled to permanent residency in Hong Kong since May 1989. She entered Australia on 9 January 1998. 3 On 5 February 1998 she lodged an application for a protection (Class AZ) visa with the Department of Immigration and Multicultural Affairs. On 27 January 1998 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. On 23 March 1998 the appellant applied to the RRT for a review of that decision. On 15 November 2000 the Tribunal published its reasons for affirming the delegate's decision not to grant a protection visa. 4 On 8 June 2005, nearly five years after the RRT's decision, the appellant applied to this Court under s 39B of the Judiciary Act 1903 (Cth) for a review of the RRT's decision. The grounds of that review were: 'A. The Tribunal member refused to accept that the applicant has a well-founded fear of persecution convention reasons. B. The Tribunal failed to take a relevant consideration into account in the exercise of a power. C. The Tribunal was in error of law those finding were open to it from my side fact and evidence. D. Procedures that were required by law to be observed in connection with the making of the decision were not observed.' 5 On 30 August 2005 Finn J published his reasons for judgment and dismissed the appellant's application. 6 The appellant's claim for refugee status was based upon the following facts and circumstances. In 1983 she was appointed as a social worker with a responsibility to liaise with women in relation to birth control, one child policy and family planning. The appointment was forced upon her by the Communist Party's committee in the village in which she was living. The village's head man's wife became pregnant after already giving birth to two female children. The appellant advised the head man that his wife should attend the local hospital and undergo an abortion operation. The head man became very angry with her. Because of his position she was afraid to report his conduct to any higher authority. 7 Later, as a result of criticism of the town's failure to adhere to the party's one child policy, the same village head ordered the appellant to force all women to have an induced abortion if they became pregnant after having already given birth to one child. 8 In May 1985 she was informed by the village head man that there was a woman (Mrs Wang) in the village who was eight months pregnant and who had already had three children. The village head man ordered the appellant to take Mrs Wang to the local medical clinic to undergo an abortion operation. 9 Mrs Wang was forced to undergo the operation. Both Mrs Wang and her unborn baby died during the abortion operation. 10 Mrs Wang's husband and his relatives came to the appellant's office to seek 'justice'. The village head disavowed any responsibility for Mrs Wang's death and, in fact, suggested that the appellant should bear full responsibility. The appellant fled the village and hid because she feared that Mrs Wang's husband and family would kill her. 11 The appellant eventually left China and entered Hong Kong illegally. As indicated above, in May 1989, she was granted permanent residency by the Hong Kong Department of Immigration. 12 While she lived in Hong Kong she participated in protests against China's one child policy. She also participated in wider protests against the Chinese government. She did not agree with Hong Kong becoming under the control of China. 13 As a result, she said that she left Hong Kong because she feared she would be persecuted by the Communist Party of China because of her protests. She went to Singapore hoping to be allowed to migrate to that country but was unsuccessful. On the advice of her relatives in Singapore she came to Australia and sought protection. 14 On 3 October 2000, in response to her application for a review of the delegate's decision, the RRT wrote to the appellant advising her that it had considered all of the papers relevant to the application but was unable to make a favourable decision on that information alone. 15 It invited the appellant to give oral evidence and present arguments at a hearing which was to be heard on 15 November 2000. She was advised that if she did not attend that hearing the RRT could make a decision on her case without further notice. The appellant did not appear before the RRT on the appointed day. 16 The RRT considered her application in the light of the facts which I have recited. It said: 'If the applicant had attended for hearing the Tribunal would have discussed these claims with her and put to her that the matters from 1983 to 1985 do not appear, on the face of what has been said, to be Convention related. The harm she fears is serious, but the motivation of the husband and father is revenge and retribution for the death of his wife and child for which he holds the applicant responsible. There is nothing to indicate that he is motivated for any other reason. If the applicant had attended and given evidence it would also have been discussed with her why she could not have sought and received assistance from the authorities for the claimed threat, and why she could not have moved somewhere else. In relation to her claims relating to Hong Kong she would have been asked for better detail of her involvement in the various matters raised by her. Her claims relating to Hong Kong are at best vague. It would have been put to her that her involvement was at best minor in relation to support for democracy and such minor involvement would not cause anyone to be adversely interested in her. As the applicant has not availed herself of the opportunity to give evidence at hearing these matters cannot be raised with her.' 17 The RRT was not satisfied that the appellant was a person to whom Australia had protection obligations and, in those circumstances, affirmed the delegate's decision not to grant a protection visa. 18 The primary judge said in his reasons for dismissing the appellant's application for review of the RRT decision: '5 The s 39B application is particularly uninformative, simply reiterating in general terms alleged jurisdictional errors but complaining principally that the Tribunal member refused to accept her claim for refugee status. Her submissions in support of the present application merely reiterate, in substance, the claims she made in her original application for a protection visa. They do not disclose any possible basis to attract the jurisdiction of this Court. At the hearing she again reiterated her claims and fears and, in reply, stated that she did not attend the Tribunal hearing because she was scared that if she lost she would be deported to China. This was the first mention of this latter matter.' 19 He concluded that the RRT's reasons did not disclose jurisdictional error. 20 The grounds of appeal from the primary judge are: '3. I don't accept the orders made by Justice Finn of the Federal Court of Australia, Adelaide. 4. The Judge had no sufficient reasons to make such a decision.' 21 The appellant has made no submissions in support of those 'grounds'. The first ground is no ground at all. The second might be a ground if it contained some particulars identifying the error said to have been made by the primary judge. 22 There was nothing before the primary judge which would have allowed him to find that the RRT's decision was infected with jurisdictional error. Therefore, he was bound to reach the decision which he did. There is nothing before this Court now which was not before the primary judge which would allow this Court to conclude that the RRT's decision was infected with jurisdictional error. Moreover, there is nothing before this Court which would demonstrate that the primary judge erred in arriving at the same conclusion. 23 In those circumstances, it is not possible to identify any error in the reasons of the primary judge or any error in the decision of the RRT which would amount to jurisdictional error. 24 The appeal must be dismissed. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Lander and Graham.