SZGXS v Minister for Immigration and Citizenship [2007] FCA 398

FEDERAL COURT OF AUSTRALIA

SZGXS v Minister for Immigration and Citizenship [2007] FCA 398

MIGRATION – appeal from decision of Federal Magistrate – protection visa – failure to comply with s 424A – separate and independent reason for Tribunal decision not affected by jurisdictional error – Tribunal's decision upheld

Migration Act 1958 (Cth) s 424A Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, applied SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, considered VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, followed SZGXS v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 1716 OF 2006

STONE J

22 March 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1716 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGXS

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE OF ORDER: 22 march 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as second respondent to the appeal. 2. The appeal is dismissed with costs. 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 NSD 1716 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGXS

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: STONE J

DATE: 22 MARCH 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of China, from Fujian province, who arrived in Australia on 12 December 2004. Shortly after his arrival he applied for a protection visa claiming to be a victim of persecution in China because he had breached that country's one-child policy. His application was refused in turn by a delegate of the First Respondent and the Refugee Review Tribunal. His application to the Federal Magistrates Court for judicial review was refused. He now appeals to this Court. 2 In its reasons for judgment the Tribunal gave a brief summary of the factual background to the appellant's claim. The Federal Magistrate was satisfied, as am I, that the Tribunal's summary was a reasonably accurate synopsis of the claim made by the appellant in the material provided in support of his application. The Tribunal's summary is as follows: "In a brief typed statement the Applicant claimed to have left China because of the endless mistreatment of himself and his family for breaching the One Child Policy (OCP). He explained that as a peasant he wanted a second child to help the family in the future; a second son was born in violation of the OCP. The Applicant wrote that everything bad happened after the birth of his second child (elsewhere stated to be September 2002). The Family Planning Committee fined him 5000 yuan (about $A800 at current exchange rates) to be paid within a month and the Committee confiscated their rice "for paying the penalty" because they couldn't pay on time. Supplies such as water and power to the land they were working were also restricted and when working at night the electricity was suddenly cut; they had "no way to go but gave it up." Also, Family Planning officers came to his house, took everything of value and demolished his home. They used a tractor to pull the steel rope that surrounded his home and this caused his family a huge loss; the family had nowhere to live and nothing to live on. In China the Applicant won't be able to evade their inhuman treatment so he borrowed money from relatives and friends and bought an Australian visa to avoid endless mistreatment." 3 The Tribunal observed that, in his application to the Tribunal, the applicant "added nothing" to this factual background. He did, however, appear before the Tribunal to give oral evidence and the Tribunal gave a detailed account of this evidence. 4 In setting out its findings and reasons the Tribunal said that it had concerns about the appellant's credibility. It noted that the appellant's account was "at odds with independent country information about the implementation of the [One Child Policy] in Fujian Province" and that it found the appellant's oral evidence to be "often contradictory or vague and confused". In part the Tribunal's doubts about the appellant's credibility were attributable to inconsistencies between his oral and written evidence. The Tribunal said: "Also, at times, his oral and written evidence differed, for example about the amount he paid, about whether his home was demolished or damaged, and new claims were made at the Tribunal hearing, such as that he has to pay a second and third instalment." 5 The Tribunal also noted that there was no mention in the written evidence of the second or third instalment of the fee although at the hearing the appellant produced a document that he said supported his claim that the fee or fine was payable in three instalments. The Tribunal said that at the hearing the interpreter who assisted the appellant translated the document and said it was a "special receipt for administrative fees" and had been "issued to the Applicant and his wife on 22 January 2003 by the Fujian Provincial Financial Bureau for 6000 yuan cash as first instalment of social maintenance fee for an extra child." 6 The receipt that the appellant produced at the hearing appears to be the only written evidence in support of the appellant's claim other than that submitted with his application for review. This much appears from the Tribunal's statement referred to in [3] above and was conceded by counsel for the appellant at the hearing of the appeal. The Tribunal's conclusion that the appellant was not a credible witness depended on a comparison between the information provided at the time of his visa application and the information provided at the hearing. It would seem therefore that in relation to the alleged damage to, or demolition of, the appellant's house the Tribunal relied on information that the appellant had given in support of his application for a visa and had not given in relation to his application for review by the Tribunal. The same point may be made about the Tribunal's observations about the appellant being able to obtain a passport in his own name and to leave China legally at the end of 2004. 7 The information concerning the appellant's house and his passport did not, in my view, fall within the exception in s 424A(3) of the Migration Act 1958 (Cth). This raises the possibility of a breach of s 424A. I am satisfied that this information was part of the reason that the Tribunal doubted the appellant's credibility. Had the Tribunal rejected the appellant's application because of the appellant's lack of credibility it would be clear that, having failed to comply with s 424A, it had no jurisdiction to reject the application. 8 The Tribunal, however, had another reason for its decision that was independent of its views about the appellant's credibility. The Tribunal said: "Even if the Applicant's claims about the fee, and the damage to his home and livelihood are true, and even if the Applicant thinks he can't return to China because his family is poor and/or because further payments of the social maintenance fee for the second child are still required, the Tribunal is not satisfied that the Applicant suffered persecution for a Convention reason or that he has a well-founded fear of persecution within the meaning of the Convention if he returns to China now. As noted by the delegate, the High Court, in Applicant A, made it clear that the application of China's One Child Policy (OCP) does not of itself constitute persecution for a Convention reason, nor are those affected a particular social group within the meaning of the Convention; the fear of persecution cannot be relied upon as the defining characteristic of a particular social group. In this case the Tribunal is not satisfied that a particular social group, such as persons contravening the OCP, exists or that the Applicant fears harm for reason of his membership of such a group, as it is clear that the Applicant's difficulties arose because as an individual he breached the OCP by having a second child without permission. … In this case there is nothing to suggest that the Applicant was or will be treated unfairly or differently, in being punished for breaching the OCP, for a Convention reason, rather than say because officials are corrupt and/or want to get as much from a suitable victim as they can. For example, it was his evidence that he never had any problems in the past from the authorities for any reason. The Tribunal is not satisfied that the Applicant has a well-founded fear of persecution within the meaning of the Convention." 9 The Tribunal's conclusion that the appellant's experiences, as he recounted them, did not amount to persecution would, if correct, be a sufficient reason for rejecting the appellant's application. No challenge has been made to the Tribunal's characterisation of the conduct as non-persecutory nor, in my view, would any such challenge have been successful. The conclusion that the One Child Policy does not, of itself, constitute persecution is in accord with the High Court's decision in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. Similarly there is no evidence to suggest that the Tribunal made any jurisdictional error in failing to be satisfied that the appellant was targeted because of his membership of any particular social group. 10 In VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965, North J considered a decision of the Tribunal for which, in his Honour's view, there were four independent bases, only three of which were challenged on appeal. His Honour rejected the challenges to two of the three. The appellant in VBAP challenged the third basis of the decision on the ground of an alleged breach of s 424A. It was submitted that if such a breach was made out then, following the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the Tribunal's decisionmust be set aside. Responding to this submission his Honour said: "SAAP does not stand for the proposition that if there be a breach of s 424A in relation to one ground upon which a decision is made, and there exists one or more other grounds upon which the decision is not or cannot be impeached, the decision nonetheless falls. SAAP was itself a case in which the only ground relied upon was a ground on which jurisdictional error was established. There was therefore no other basis upon which the decision in that case could be upheld. In the present case there are three other bases upon which the decision may be supported." 11 I agree with his Honour that SAAP does not stand for the proposition asserted. Provided that the other ground or grounds of decision are truly independent of the ground that is tainted by error and are themselves free of jurisdictional error then, in my view, it follows that the Tribunal had jurisdiction to make the decision it made. In this case the Tribunal put aside its doubts about the appellant's credibility and for the purpose of considering if he had suffered persecution in the past, accepted his account. Putting the appellant's claims at their highest however, the Tribunal did not accept that he had suffered persecution in the past or that he had a well-founded fear of persecution in the future. In my view this decision was within the jurisdiction of the Tribunal. 12 For these reasons the appeal must be dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.