SZIPC v Minister for Immigration and Citizenship [2008] FCA 146

FEDERAL COURT OF AUSTRALIA

SZIPC v Minister for Immigration and Citizenship [2008] FCA 146 Migration Act 1958 (Cth)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited SZIPC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1746 OF 2007

TAMBERLIN J

21 FEBRUARY 2008

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1746 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIPC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TAMBERLIN J

DATE OF ORDER: 21 FEBRUARY 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the respondents' costs in a sum fixed at $1,250.00. 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 1746 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIPC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TAMBERLIN J

DATE OF ORDER: 21 FEBRUARY 2008

WHERE MADE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of a Federal Magistrate in which his Honour rejected an application by the appellant for review of a decision of the Refugee Review Tribunal ("the Tribunal") which confirmed an earlier decision by a delegate of the first respondent refusing an application for a protection visa under the Migration Act 1958 (Cth). 2 When the matter came on for hearing, the appellant appeared in person with the aid of an interpreter. He was unable to, and did not formulate any submissions in support of his case. This is understandable in the difficult circumstances in which he finds himself. But in order to succeed on this appeal, it is necessary to persuade the Court that there has been jurisdictional error in the decision of the Tribunal, or that there has been some reviewable error in the decision of the Federal Magistrate. 3 The critical reasoning in the Tribunal's decision relates to the claim made by the appellant that, if he is returned to China, he will be persecuted and harassed due to his breach of China's "one-child policy". 4 The appellant also raised an argument in relation to the possibility of being persecuted as a result of an accusation that he was involved in the disappearance from his former employer's account of a substantial sum of money, and refers to the fact that another accused employee is a relative of a significant local politician in China. In relation to this claim, I am not satisfied that the appellant has a well-founded fear of persecution on the basis of religious belief, political belief or any other basis in the Refugees Convention. 5 In relation to the principal question, namely, the appellant's fear of persecution for breach of China's "one-child policy", the Tribunal accepted that the appellant had breached the policy, but went on to state that it was satisfied that any harm which may be suffered by the appellant was pursuant to a law of a general application. Accordingly, after referring to the principle discussed by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 (per Brennan CJ) and 258 (per McHugh J) that the enforcement of a generally applicable law does not ordinarily constitute persecution for the purposes of the Refugees Convention, the Tribunal in the present case formed the view that the law concerning China's "one-child policy" was a law of general application, and that the appellant did not have a well-founded fear of persecution arising out of the existence of that law. 6 The appellant disputed the uniformity and generality of the application of China's "one-child policy" on the basis that the law was applied differently as between different ethnic groups and regions in China. However, the Tribunal accepted that the law was one of general application and reasoned that, without evidence of selectivity in its enforcement, such a law amounts to no more than a non-discriminatory law and, therefore, on the High Court authority, would not give rise to circumstances warranting the grant of a protection visa. 7 The appellant, in his notice of appeal, raises two other grounds. The first is that he was denied natural justice because the Tribunal did not give him particulars of certain information which constituted its reason or part of its reason for affirming the decision under review. None of the brief submissions advanced in the notice of appeal make out the allegation embodied in this ground. The second ground is that the Federal Magistrate failed to find that the Tribunal erred because it asked incorrect questions. There is no substance in this ground because it is apparent on a fair reading of the Tribunal's reasons for decision that it not only asked the correct questions but also directed its attention to the crucial aspects of the appellant's claim, namely, China's "one-child policy" and its general application. 8 Having considered the reasons of the Tribunal, I am not persuaded that there was any breach of natural justice or procedural fairness. The conclusion of the Tribunal did not need to be communicated beforehand for comment by the appellant and the correct question was fully addressed. In those circumstances, and in view of the fact that no errors were identified in submissions by the appellant, my conclusion is that the present appeal should be dismissed. In addition, on the application of the first respondent, I order that appellant pay the respondents' costs in a sum fixed at $1,250.00. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.