SZMIX v Minister for Immigration and Citizenship [2008] FCA 1749 (21 November 2008)

Last Updated: 21 November 2008

FEDERAL COURT OF AUSTRALIA

SZMIX v Minister for Immigration and Citizenship [2008] FCA 1749

SZMIX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1443 of 2008

SIOPIS J
21 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1443 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMIX Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	21 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant is to pay the first respondent’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1443 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMIX Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	SIOPIS J
DATE:	21 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of China who arrived in Australia on 29 September 2007. On 8 November 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. The delegate of the first respondent refused the application for a protection visa on 17 January 2008. On 31 January 2008, the appellant applied to the Tribunal for a review of that decision.

2 Before the Tribunal the appellant claimed to have a well-founded fear of persecution by reason of his Christianity and his breach of China’s one child policy. He claimed that after he and his wife had their second child, they were fined by the local government and his wife was forced to undergo sterilisation surgery. However, the appellant’s wife had a third child in January 2004 and he and his wife were fined again.

3 The appellant claimed that he attended Christian gatherings at different people’s houses each Sunday. He claimed that in March 2004 the police came to one of the gatherings, but he was able to escape by climbing through a window. He was forced to hide and could not return home. Later the police came to his house and arrested his wife because they had not paid the fine for their third child. He obtained a passport in December 2006 and went to South Korea in August 2007. He could not get away from the tour group leader and had to return to China. Shortly after he obtained an Australian visa and left China.

THE TRIBUNAL

4 The Tribunal was satisfied that the appellant was regarded by the authorities as having breached China’s family planning regulations and accepted that he had an unpaid debt in China. The Tribunal accepted that this caused his family some hardship and that this would continue to be the case until the debt was repaid. The Tribunal, however, found that the policy was a law of ordinary application and there was no evidence that the imposition of fines was discriminatory or had a discriminatory impact. The Tribunal concluded that any harm feared by the appellant in this regard was not for a Convention reason.

5 The Tribunal had doubts about the appellant’s membership in a small group of Christians as claimed. The Tribunal referred to the lack of corroborating evidence and the fact that the appellant was unable to recall the Lord’s Prayer. However, the Tribunal considered it possible that the appellant regarded himself as a Christian while in China and then went on to consider his claims on this basis.

6 The Tribunal found that it was not illegal to be a Christian in China and that local authorities in Fuqing are tolerant towards unregistered churches. The Tribunal found that the group of which he was a member was not likely to attract the adverse attention of the authorities. Further, it noted aspects of evidence in relation to the 2004 police raid and subsequent detention of others as implausible. The Tribunal also found the appellant’s actions to be inconsistent with his claimed fear of persecution as it found it implausible that he would risk leaving the country on a passport with his own name, having already travelled to South Korea and re-entered China. The Tribunal also noted that he had lived at the same address for three years without trouble from the authorities.

7 The Tribunal was not satisfied that the appellant was of any interest to the authorities. It found that if the appellant returned he could continue to participate in a level of religious activity consistent with his beliefs and not face persecution.

THE FEDERAL MAGISTRATES COURT

8 On 3 June 2008, the appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court. Before the Federal Magistrate the appellant claimed:

1. The Tribunal’s decision was affected by jurisdictional error as the appellant was not given an opportunity "to explain the doubts" of the Tribunal.

2. The appellant was denied procedural fairness.

3. The Tribunal failed to properly apply the real chance test by finding that the appellant’s unregistered Christian group did not fall into a particular category that was likely to attract adverse attention.

9 As to the first ground, the Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, noted that the appellant had appeared before the Tribunal, had given evidence and that the Tribunal raised its concerns with him. The Federal Magistrate stated that the appellant had replied to those concerns at the hearing and also in a letter written to the Tribunal after the hearing. The Federal Magistrate was, therefore, satisfied that sufficient opportunity had been afforded to the appellant in this regard.

10 The Federal Magistrate was also satisfied that the Tribunal complied with all of its procedural requirements and, therefore, found that the second ground of review was not made out.

11 As to the third ground of review, the Federal Magistrate was satisfied that the Tribunal did properly apply the real chance test. The Federal Magistrate found that the Tribunal was not satisfied that the appellant had shown there were reasons why the Chinese government would have an interest in him, or why he would fear persecution should he return to China. The Federal Magistrate was satisfied that the Tribunal’s findings were open to it based on the evidence before it.

12 The Federal Magistrate dismissed the application.

THE APPEAL

13 On 15 September 2008, the appellant filed a notice of appeal which raised the following grounds:

1. The Tribunal was biased and did not make a fair decision.

2. The Federal Magistrate unfairly refused the application on the hearing date.

3. The Federal Magistrate did not consider the appellant’s application reasonably.

14 The first ground of appeal, namely, that the Tribunal was biased, was not raised before the Federal Magistrate. The appellant would, therefore, require the leave of the Court to raise this as a ground of appeal. The allegation of bias is a serious allegation which is required to be supported by evidence. The appellant has adduced no evidence of bias by the Tribunal which he would foreshadow leading. Further, the appellant gave no particulars in support of this allegation of bias. Accordingly, I am of the view that there is no merit in the allegation and I do not grant leave for the allegation to be raised as a ground of appeal.

15 As to the allegation that the Tribunal did not make a fair decision, the appellant did not support this generalised assertion with particulars which might found some allegation capable of comprising a jurisdictional error by the Tribunal. In the absence of any such particulars, the allegation is not capable of comprising a ground of appeal, even assuming that the ground was that the Federal Magistrate erred in failing to find that the Tribunal had not made a fair decision. I, accordingly, dismiss the first ground of appeal.

16 As to the second ground of appeal, the appellant did not provide any particulars of the allegation that the Federal Magistrate did not act fairly in dismissing the appellant’s application for review. In the absence of any elucidation, the asserted ground of appeal does not disclose a proper ground of appeal. One possible ground of appeal raised by the generalised assertion, generously construed, could be that the Federal Magistrate did not accord the appellant procedural fairness. However, there is nothing in the record upon which such an allegation could be founded. Accordingly, I dismiss the second ground of appeal.

17 The third ground of appeal is that the Federal Magistrate did not consider the appellant’s application reasonably. The appellant provided no further particulars in support of this ground of appeal. There is nothing on the record to support an allegation that the Federal Magistrate did not act reasonably in dismissing the appellant’s application for review. I accordingly dismiss the third ground of appeal.

18 The appeal is dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated: 21 November 2008

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the First Respondent:	Ms L Buchanan
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	17 November 2008
Date of Judgment:	21 November 2008