SZGWJ v Minister for Immigration and Citizenship [2007] FCA 661

FEDERAL COURT OF AUSTRALIA

SZGWJ v Minister for Immigration and Citizenship [2007] FCA 661

Migration Act 1958 (Cth), ss 424A(1), 424(A)(3)(b) Applicant S301/2003 v Minister for Immigration and Multicultural Affairs [2006] FCAFC 155 followed Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited SZGWJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD 268 OF 2007

RARES J

1 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 268 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGWJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE OF ORDER: 1 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed. 2. The appellant pay the first respondent's costs, fixed in the sum of $3,000. 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 268 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGWJ

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 1 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from the Federal Magistrates Court which refused to grant constitutional writ relief to the appellant against a decision of the Refugee Review Tribunal to refuse to issue a protection visa to her by a decision made on 8 February 2006 and handed down on 21 February 2006 (SZGWJ v Minister for Immigration [2007] FMCA 90). 2 The appellant claimed in her application for a protection visa made to the Minister that she was a citizen of the People's Republic of China involved in the enforcement of China's 'one child' policy. She claimed that she had been appointed chief of the women's welfare group in her village and she claimed that her role had been to lead the people in that group and go to individual households to make sure that families were sterilised after they had had more than one child. She claimed that she had been required to report to the authorities in her village identifying the people who had to be sterilised, and that although she had not been trained she had learned her role through regular meetings of officials in her group. 3 The tribunal found that the appellant had limited education. It accepted her account that, other than household duties, the only jobs she had ever held in China were as a farmer and as chief of the group between, as she had claimed, 1992 and 1995. It also found that after late 1995 until she came to Australia in June 2002, the appellant had been a domestic worker. 4 Essentially, the appellant claimed that as a result of performing her duties with the group she had gone to three separate families and identified husbands or wives as being persons who ought to be sterilised, and that they were sterilised. The tribunal then found that the appellant was only a low-level person in the village, with menial and limited duties, who was for a few years involved in the Chinese family planning program, but without any substantive authority or position. It found she was not involved in the identification of people to be sterilised. It said that when she had been asked who performed the sterilisations she claimed that they were done in the hospital and that her role was simply to summons the people to go to the hospital for that purpose: a claim which the tribunal accepted. 5 The tribunal then found: 'And while claiming in her protection visa application that "My role was to lead this group of people and go to individual households and make sure that the families were sterilised after having one child. I was also required to report to the authorities in [her village] the people who had to be sterilised. I was not trained but learnt my role through the regular meetings of the officials of the [village] group," this claim was not repeated at the second hearing, and given her low level of education and its earlier finding about her limited and low level involvement in the village in the Chinese family planning program, the Tribunal does not accept these claims and finds that she has embellished her claims in order to enhance her claims for a protection visa.' 6 Nothing appeared in the record of the tribunal or elsewhere as to why the second hearing was required, other than that an earlier application to the Federal Magistrates Court had been the subject of consent orders remitting the matter to the tribunal for further hearing. 7 The tribunal accepted the appellant's evidence that she had summonsed three households only for the purposes of obtaining sterilisations of persons in those households. 8 The tribunal also accepted that over the years since 1992 the appellant and her family had been the victims of several incidents of vandalism and, in the case of her daughter, assault. The vandalism which the tribunal accepted was that persons went to the appellant's house in a group, sometimes individually, and that it had been attacked on several occasions. On one occasion four windows were broken in the house and the door was banged on; on another, a brick was thrown. On another occasion the house was vandalised and local officials did not assist her in protecting her property. She said that in 1994, which the tribunal accepted, some unrecognised people drove around her house beeping their horns and that she was terrified for her life. In early 1995 she quit her role with the women's welfare group because of the attacks, and moved away, going to stay with her sister and sending her children to a friend's house. 9 The tribunal accepted that the appellant's daughter had been physically assaulted, harassed and abused as she walked home from school to a friend's house and that in 1996 an orchard of over an acre, which the appellant owned with her husband, had been destroyed and the house again vandalised. The tribunal accepted that the appellant dare not return to her house; it also accepted that two of her pigs had been killed in 1997. The tribunal also found that the appellant had been subjected to an assault by being stabbed in the hand in 2000 by the husband in a family in which, following the appellant's role in the wife being sterilised, a son had later died. 10 In a number of respects, however, the tribunal found the appellant not to have been a satisfactory witness. Critically, the tribunal found that it had not been satisfied that the essential and significant reason why the appellant suffered these various incidents, and feared their continuation and repetition, was related to a Convention reason for the purposes of s 91R(1)(a) of the Migration Act 1958 (Cth). 11 The appellant had been represented before the tribunal by the Refugee Advice and Casework Service (RACS). On her behalf, it articulated a claim that the appellant had been responsible in her position in the women's welfare group for implementing the political and social agenda of the Government of China and that she had been targeted by several families precisely because of those policies and her political and social action in enforcing them. RACS made the claim for the appellant that she would not have suffered any harm had she not been perceived as an agent of government policy, and as having the view that sterilisation, as a form of contraception, was necessary. This imputation of political opinion to her was argued as being a sufficient Convention nexus. When the appellant sought protection from authorities within China she was not offered it and, indeed, suffered on a number of occasions the personally confronting and abusive conduct which the tribunal found had been occasioned to her. 12 The appellant was represented by counsel before his Honour, but unfortunately before me she has appeared without representation or assistance, other than from an interpreter. Essentially the same grounds as were put forward to his Honour are contained in the notice of appeal. They are, in substance: 1. The appellant as a citizen of China would be at risk of suffering persecution within the meaning of the Convention were she returned to that country. 2. His Honour failed to understand the appellant's claims and failed to consider relevant matters; in particular, he failed to understand that the tribunal had committed a jurisdictional error by not explaining adverse information on her protection claims [sic]. 3. Relief should be granted under s 39B of the Judiciary Act 1903 (Cth) because the tribunal had failed to observe s 424 (which I understand to be a reference to s 424A) of the Act and that it had not exercised its jurisdiction in accordance with law because it had failed to grant a protection visa and otherwise failed to afford natural justice to the appellant. 4. The tribunal had prejudged the appellant's case. 13 I will consider the last two grounds first.