Xia v Minister for Immigration & Multicultural Affairs [2001] FCA 1550

FEDERAL COURT OF AUSTRALIA

Xia v Minister for Immigration & Multicultural Affairs [2001] FCA 1550

ALICE XIA BY HER NEXT FRIEND CHUANG YING XIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1147 of 2001

HILL J 5 NOVEMBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1147 OF 2001

BETWEEN: ALICE XIA BY HER NEXT FRIEND CHUANG YING XIA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 5 NOVEMBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent Minister's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1147 OF 2001

BETWEEN: ALICE XIA BY HER NEXT FRIEND CHUANG YING XIA

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HILL J

DATE: 5 NOVEMBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a two-year-old child born in Australia on 31 May 1999. She is a national of the People's Republic of China. She applied for a Protection (Class XA) Visa, a criterion of which is that she is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). Her application was unsuccessful. An application was then made to the Refugee Review Tribunal ("the Tribunal") to review the decision of the delegate of the Minister. She was unsuccessful before the Tribunal and now applies to the Court for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth)("the Act"). 2 The amended application for an order of review referred to nine grounds upon which the applicant relied. Those grounds reduced before me effectively to two. The first ground was that there was no evidence or other material before the Tribunal upon which a finding said to have been made by it that certain fines could be afforded by the applicant's immediate family could be made. The ground was said to be that in s 476(1)(e). So far as it was more appropriate the applicant relied as well upon s 476(1)(g) of the Act which specifically refers to there being no evidence. 3 The second ground, also based upon s 476(1)(e), was that the Tribunal had erred in law in finding that any possible persecution which the applicant might suffer could be avoided by the family of the applicant moving to a part of China other than Guangdong province. The complaint is that the Tribunal did not consider whether it was likely that this could occur or what location or province it was likely the family could reside in. 4 Australia has protection obligations, generally speaking, under the Convention to a person who is, within the meaning of the expression in the Convention, a refugee. A person will be a refugee if that person: "… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."