SZDKM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 164 (28 February 2005)

Last Updated: 7 March 2005

FEDERAL COURT OF AUSTRALIA

SZDKM v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 164

Migration Act 1958 (Cth)












SZDKM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1600 OF 2004

AND

SZDKN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1602 OF 2004



TAMBERLIN J
SYDNEY
28 FEBRUARY 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1600 OF 2004 AND NSD 1602 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NSD 1600 OF 2004 SZDKM APPELLANT NSD 1602 OF 2004 SZDKN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	28 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal is dismissed.
2.	The appellant pay the costs of the respondent.

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 1600 OF 2004 AND NSD 1602 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	NSD 1600 OF 2004 SZDKM APPELLANT NSD 1602 OF 2004 SZDKN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	28 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Federal Magistrate Smith dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") in relation to a husband and wife who are citizens of the Peoples Republic of China.

2 The appellants arrived in Australia on 22 June 2003 and thereafter lodged separate applications for protection visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 26 September 2003, a delegate of the Minister refused to grant the protection visas.

THE DECISION OF THE TRIBUNAL

3 Although the appellants were informed that they could attend the hearing before the Tribunal, they elected not to attend the hearing because, so they informed me, they were afraid that they might be taken into detention.

4 Prior to the hearing before the Tribunal, the Tribunal wrote to the appellants advising them that it had considered the material that had been furnished by the appellants in relation to their application but was unable to make a decision in their favour on that information alone. This letter was written on 29 January 2004.

5 On 20 February 2004, the Tribunal received two documents submitted by the appellants. The first document appears to refer to the appellants and is a receipt for a fine in the amount of RMB15,000 for the birth of an extra child. The receipt bears the official seal of the Birth Control Office of Gang Tou Town, Fuqing City. The receipt does not appear to bear a date. The second document is entitled "Arrest Warrant" and is dated 18 August 2002. This document states that, according to No. 59 of the Regulations of Criminal Litigation of the Peoples Republic of China, a Mr Chen is sent to arrest the persons named as the appellants and refers to their address. The official seal of Fuqing Security Bureau is attached.

6 In the appeal papers, there is a document dated 10 February 2004 and entitled "Response to Hearing Invitation". This document appears, on its face, to be a form used by the Tribunal. One of the questions asked in this document is whether the appellants want to come to a hearing before the Tribunal. The answer of the appellants indicates that they do not want to come to a hearing and that they consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable them to appear at the hearing.

7 In its reasons for decision, the Tribunal noted that there had been no appearance by the appellants on the hearing. There was reference to the claims and evidence and the background history of the matter which it is not necessary to repeat here. So far as I can determine, the Tribunal made no reference to country information. However, in the reasoning of the Tribunal, it was stated that the mere fact that a person claims fear of persecution does not establish the genuineness of the fear or that the fear is well-founded. The Tribunal referred to a number of authorities in this regard. The Tribunal expressed satisfaction that the appellants were citizens of the Peoples Republic of China and assessed their claims against that country.

8 The Tribunal noted that the appellants had sent documents purporting to be those referred to above, however, the Tribunal considered that it had before it little more than assertions containing written statements and these two documents. It was therefore not satisfied that the appellants were entitled to protection visas. The principal reason for reaching this conclusion was that the Tribunal was unable to obtain further information in order to determine the veracity of the claims and their relevance to the applications for refugee status because of the appellants’ failure to attend the hearing. A number of relevant matters in respect of which the Tribunal was unable to be satisfied are itemised in the decision of the Tribunal. These matters include the significance of the purported arrest warrant, its connection with the appellants’ claimed violation of the one child policy and how the appellants came to have what appears to be an original of that document.

9 The Tribunal also made reference to the appellants’ fear of further action from local Chinese authorities, given that the penalty following the birth of their second child was a substantial administrative fine.

10 In the absence of any further material from the appellants and their election not to attend the hearing, the Tribunal found that the appellants did not satisfy the criteria set out for a protection visa.

THE APPEAL

11 At the hearing before me, the appellants advanced no substantial arguments in support of their appeal except to say that the Tribunal had not considered all the evidence before it.

12 I expressed some concern during the course of the hearing as to the Tribunal’s rejection of, or failure to give any weight to, the two documents which, on their face, appear to bear official seals. However, on closer examination of the documents, it appears to me that the first document, being a receipt, does not really take the matter any further in the absence of any explanation or connection with surrounding circumstances which can explain the basis on which that fine was exacted and the consequences of that fine so far as the parties were concerned. It may well be, for example, that the payment of the fine is sufficient to purge the concern of the authorities in relation to the birth of the child in respect of whom that fine was paid.

13 In relation to the arrest warrant, there is no indication on the face of the arrest warrant itself that would lend any direct support to the case sought to be made by the appellants. The warrant simply sends a person to arrest the appellants and is issued by a security bureau. The warrant refers to criminal litigation and to the procuratorate of Fuqing City, Fujian Province. In the absence of any forthcoming explanation or detail as to the meaning of these documents, I consider that it was open to the decision-maker to reach the view that the case sought to be advanced on behalf of the appellants had not been made out.

14 The decision of the learned magistrate adopts a similar course in relation to the reasoning of the Tribunal to that which I have outlined above.

15 I am not satisfied in this case that any error of law or principle has been made or is disclosed in the reasons and findings of the Tribunal or in the decision of the Federal Magistrate. Accordingly, the appeal in the present case is dismissed with costs. The orders that I make in this matter concern the appeals of both the husband and the wife, that is to say, the two appeals which are presently before me.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 28 February 2005

The Appellants appeared in person with the assistance of an interpreter
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 February 2005
Date of Judgment:	28 February 2005