FEDERAL COURT OF AUSTRALIA SZOVR v Minister for Immigration and Citizenship [2011] FCA 1248 Citation: SZOVR v Minister for Immigration and Citizenship [2011] FCA 1248 Appeal from: SZOVR v Minister for Immigration [2011] FMCA 503 Parties: SZOVR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 1117 of 2011 Judge: FOSTER J Date of judgment: 2 November 2011 Cases cited: SZOVR v Minister for Immigration [2011] FMCA 503 upheld Date of hearing: 2 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 16 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Ms SA Sirtes Solicitor for the First Respondent: DLA Piper Australia Solicitor for the Second Respondent: The Second Respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1117 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOVR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE OF ORDER: 2 NOVEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of and incidental to the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1117 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZOVR Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FOSTER J DATE: 2 NOVEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 In this matter, the appellant appeals against a judgment of a Federal Magistrate delivered on 20 June 2011 (SZOVR v Minister for Immigration [2011] FMCA 503). The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 18 November 2010 which had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) dated 29 July 2010 to refuse to grant a Protection (Class XA) visa (protection visa) to the appellant. 2 The appellant is a citizen of China who arrived in Australia on 21 April 2010. On 25 May 2010, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the first respondent refused the application for a protection visa on 29 July 2010. 3 On 30 August 2010, the appellant applied to the Tribunal for a review of that decision. The appellant claimed that his wife had undergone a forced abortion following the local family planning office becoming aware that she was pregnant with their second child. The appellant claimed that this abortion was performed in February 2010 when his wife was six months pregnant. The appellant's wife had refused to undergo sterilisation. The couple's first child had sustained a brain injury after a fall in January 2008. The appellant and his family then went into hiding and fled to Shanghai, so he claimed, in an attempt to avoid detection of the 2009 pregnancy. 4 In China, individuals whose first child is intellectually disabled are allowed to have another child. However, when the appellant's son was tested by the relevant authorities, they did not accept that he had suffered more than a minor injury. The appellant and his wife came to Australia so they could have another child. 5 The appellant attended an interview with the delegate on 28 July 2010 and put forward his claims. The delegate also had regard to the appellant's written claims attached to his visa application and to independent country information. The delegate concluded that the operation of the one child policy was not discriminatory and was not satisfied that the appellant had shown the necessary connection between his fear of harm and a Convention ground. THE TRIBUNAL'S REVIEW 6 On 14 October 2010, the appellant appeared before the Tribunal and gave evidence through the assistance of a Mandarin interpreter. The Tribunal was concerned that the appellant had been assisted by a migration agent in filling out his application form and that the appellant did not know what visa he was applying for. 7 The appellant indicated at the Tribunal hearing that he had come to Australia to have a second child and feared harm in China if he and his wife endeavoured to have another child. The Tribunal questioned the appellant and noted that he could not remember the birth date of his only child. The appellant indicated at the hearing that he had not been abused or persecuted. The Tribunal member was concerned that the appellant's wife had undergone an abortion but had refused sterilisation suggesting that she had consented to the abortion. 8 The appellant indicated that he had paid 20,000 RMB to a friend to come to Australia. The Tribunal had regard to the fact that China's family planning laws are applied to the population as a whole and that there was no element of discrimination in this particular case. The Tribunal was not satisfied as to the appellant's credibility regarding his claims in any event and, in particular, it was not satisfied in respect of the claims which he had made concerning his wife's abortion. The Tribunal found that the appellant's evidence regarding this incident was vague and unsupported. The Tribunal found this problematic considering the presumably memorable and traumatic nature of the incident. The Tribunal concluded that the appellant did not hold a well-founded fear of persecution if returned to China and dismissed his application. THE PROCEEDING IN THE FEDERAL MAGISTRATES COURT 9 On 10 December 2010, the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal decision. The appellant raised the following ground in his application: 1. My only son suffered from intellectual impairment through his injury. We have to want a healthy son. When my wife conceived the second child, she was forced to have an abortion and I was also persecuted by the authorities. The RRT member failed to consider my claims according to S91R of the Migration Act. 10 The appellant appeared before the Federal Magistrate and made oral submissions which her Honour summarised as taking issue with the Tribunal's findings and seeking impermissible merits review. The appellant also submitted that the Tribunal did not understand Chinese policy very well, which her Honour described as appearing to take issue with the independent country information upon which the Tribunal relied in its understanding of the situation in China. I should add that the appellant has repeated that submission this morning at the hearing before me. 11 At [14] of her judgment, the Federal Magistrate said: 14. Such concerns on their face do not establish jurisdictional error. I note in that respect that the Tribunal recorded that it put its understanding of the position in China to the applicant (as indeed had the delegate who had referred in the decision to particular items of country information also before the Tribunal in relation to the one-child policy in China, in particular the part of China from which the applicant came). As I endeavoured to explain to the applicant, merits review is not available in this court. 12 The Federal Magistrate reiterated that credibility findings are a matter for the Tribunal and that the appellant's concerns in this regard did not reveal jurisdictional error. THE APPEAL IN THIS COURT 13 On 8 July 2011, the appellant filed a Notice of Appeal in this Court seeking review of the Federal Magistrate's decision. That Notice of Appeal contained the following grounds: 1. My son is intellectual disabilities. We must have a healthy son to take care of us when we are old. But the Chinese one family one child prohibitted us to have a healthy son. We were arrested and my wife was forced to undergo an abortion in hospital, which the RRT member doubted about. I am a Buddhist and never lies to anyone. The RRT member has bias against me, making jurisdictional error. 2. The Federal Magistrates Court failed to accept my appeal. 14 Neither of those grounds articulates reviewable error, let alone jurisdictional error. They highlight the fact that the appellant is truly seeking merits review in this Court in circumstances where no such review can be afforded to him. The appellant has raised an allegation of bias against him on the part of the Tribunal. However, he did not raise that allegation before the Federal Magistrate. There is no evidence before me that would support such an allegation and a close inspection of the Tribunal's reasons does not betray bias against the appellant. 15 In my view, there is no reviewable error discernible in the judgment of the Federal Magistrate. For those reasons, I propose to dismiss the appeal with costs. 16 There will be orders accordingly. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 7 November 2011