SZHFG v Minister for Immigration and Citizenship [2010] FCA 118 (23 February 2010)

Last Updated: 26 February 2010

FEDERAL COURT OF AUSTRALIA

SZHFG v Minister for Immigration and Citizenship [2010] FCA 118

Citation:		SZHFG v Minister for Immigration and Citizenship [2010] FCA 118
Appeal from:		SZHFG v Minister for Immigration & Anor [2009] FMCA 1186
Parties:		SZHFG v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 1462 of 2009
Judges:		BESANKO J
Date of judgment:		23 February 2010
Date of hearing:	22 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	17
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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1462 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BESANKO J
DATE OF ORDER:	23 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1462 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BESANKO J
DATE:	23 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order made by the Federal Magistrates Court on 2 December 2009. On that day, the Federal Magistrates Court made an order dismissing the appellant’s application for judicial review in respect of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal’s decision was to affirm a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a Protection (Class XA) visa (“protection visa”) to the appellant.
2. The appellant is a national of the People’s Republic of China. She was born in 1969 in a village in Fuqing City, Fujian Province. She married her husband in 1991, and, in 1992, she had her first child. She has since had two further children. At the time of the hearing before the Tribunal, the appellant was 40 years of age.
3. The appellant arrived in Australia on 12 December 2004, and she applied for a protection visa on 20 January 2005. The delegate refused her application on 17 March 2005, and she applied for a review of that decision by the Tribunal. There then followed four Tribunal hearings and a number of successful applications for judicial review. A different Tribunal member constituted the Tribunal on each occasion. It is not necessary for me to set out the details. The application for judicial review, which was before the Federal Magistrates Court, and which was the subject of the order for dismissal, related to the fourth hearing by the Tribunal.
4. The Tribunal made a number of findings which are not in dispute. The Tribunal found that the appellant’s first child was born “in accordance with official family planning regulations”, and that the first child was granted household registration. The appellant’s first child is living with the appellant’s parents-in-law. The Tribunal found that the two children, who were born subsequently, were born “in contravention of the family planning policy applicable in Fujian Province at the time”. The Tribunal found that those children have never been granted household registration and were currently living with the appellant’s parents. The Tribunal found that, without household registration, those two children will not have access to government-funded education and some other state-funded services. The Tribunal found that the appellant and her husband in China contribute to the financial support of these two children.
5. The appellant advanced two grounds in support of her claim for refugee status. The first related to her claim to be a Christian. The second related to her claim that she will suffer various penalties and hardships as a result of breaching China’s one-child policy.
6. With respect to the appellant’s claim that she is a Christian, the Tribunal found that the appellant considered herself to be a Christian and that she had been attending church in Brisbane and occasionally in Sydney. The Tribunal found that, in 1994, the appellant had a brief involvement with a family church in a village in China and that during a period of about 10 years following that she had occasional contact with other small church groups in Fujian Province. The Tribunal found that, despite claims that she had made at previous hearings of the Tribunal, the appellant said that she had no problems in China because of her connections with any family churches. The appellant told the Tribunal that she was of the view that, in future, she could attend a family church in Fujian Province if she wished to do so, and she agreed that this would not give rise to any serious harm to her. The Tribunal found that the appellant could participate in religious activities in China at a level consistent with her beliefs and, on that basis, the Tribunal was satisfied that the appellant did not have a well-founded fear of persecution for the Convention reason of religion.
7. With respect to the appellant’s claim that she will face various penalties and hardships as a result of breaching China’s one-child policy, the Tribunal found that the appellant and her husband remained liable to pay a fee in respect of the births of her second and third children. That liability arose because those children were born without the permission of the family planning authorities and thus were born in breach of population and family planning regulations. The Tribunal found that the appellant was subject to the same requirement to pay the “social compensation fees” as any other person who had breached the relevant article of the law. The Tribunal found that the article was not applied more harshly than equivalent family planning regulations were applied to residents of other provinces. The Tribunal found that there was no evidence that the family planning regulations were enforced in a discriminatory way within Fujian province. The Tribunal found with respect to the fine or fee that it arose by reason of the non-discriminatory enforcement of a law of general application rather than any discriminatory conduct.
8. The Tribunal considered the appellant’s claim that she feared forcible sterilisation. The appellant had told the Tribunal that she no longer intended to have another child. The Tribunal said that it did not consider that the appellant’s fear of either enforced termination or sterilisation was well founded and it reached that conclusion for four reasons. First, the Tribunal said that it was satisfied that Fujian’s population and family planning regulations themselves do not require compulsory sterilisation or terminations for couples who have out-of-plan children. Secondly, the Tribunal said that there was evidence from various sources indicating that, although some forcible sterilisations or terminations still occur in China, their occurrence has considerably subsided. The Tribunal was satisfied that the incidence of forced sterilisations and terminations in Fujian Province was very low and said that it considered that the chance was remote that the appellant, whether she fell pregnant or not, would be subject to either if she returned to Fujian Province. Thirdly, the Tribunal noted the appellant’s age and said that it was highly likely that the appellant would be perceived by family planning officials as being at a low risk of falling pregnant. Finally, the Tribunal noted that the appellant had been living at her family home in her home village for at least a year (and possibly for several years) immediately before her departure from China. The Tribunal noted that the appellant did not claim that family planning officials made any attempt to visit or contact her in particular or that they showed any interest in her. The Tribunal concluded that the chance that the appellant would be forcibly sterilised or have a pregnancy forcibly terminated in the reasonably forseeable future if she returned to Fujian Province was remote.
9. There were four grounds in the appellant’s application for judicial review. They were as follows:
   1. The Tribunal failed to comply with the requirements set out in s 424 of the Migration Act 1958 (Cth) (“the Act”).
   2. The Tribunal failed to address the psychological harm the appellant would face upon returning to China as a result of submitting every three months for an internal examination as required under China’s one-child policy.
   3. The Tribunal failed to take into account that the appellant will be impecunious when she returns to China and unable to meet the fines that she faces.
   4. The Tribunal failed to take into account that the appellant will be forcibly sterilised or have a pregnancy forcibly terminated in the reasonably foreseeable future if she returns to Fujian Province.
   5. The Tribunal failed to consider the appellant’s circumstances, and, in particular, the level of personal and financial hardship she would face if returned to China.
10. The learned Federal Magistrate addressed each of the above grounds and concluded that the Tribunal had not committed jurisdictional error.
11. The appellant appeared before me in person. She had the assistance of an interpreter. She said that she had a headache. She became teary at times. I indicated to her on two occasions that if she was feeling unwell she could ask me to adjourn the hearing of her appeal until the following day. She did not make an application for me to adjourn the hearing of the appeal. She made brief oral submissions in support of her appeal.
12. The appellant’s notice of appeal contains three grounds.
13. The first ground of appeal is that the federal magistrate erred in failing to conclude that the Tribunal gave insufficient weight to the asserted fact that the family church in China arranged and paid for the appellant to come to Australia. That asserted fact, it was said, supported the appellant’s claim that she had a well-founded fear of persecution for a Convention reason, namely, religion. It seems that this contention was not in fact raised before the Federal Magistrates Court. An assertion that the Tribunal had not given sufficient weight to the appellant’s fear of persecution on the Convention ground of religion was, said the federal magistrate, a complaint which took issue with the Tribunal’s factual findings, and, at best, did not rise above a request for impermissible merits review. It seems to me that there is no reason to doubt the Tribunal’s conclusion that the appellant could participate in religious activities in China at a level consistent with her beliefs, and that, therefore, she did not have a well-founded fear of persecution for the Convention reason of religion.
14. The second ground of appeal is that the federal magistrate erred in not concluding that the Tribunal had failed to take into account that the appellant will be impecunious when she returns to China and unable to meet the hefty fines she will face for breaching China’s one-child policy. In my opinion, there is no substance in this ground. The Tribunal did consider the fact that the appellant will be liable to pay the social compensation fees and concluded that this liability will be the result of the non-discriminatory enforcement of a law of general application rather than a result of any discriminatory conduct. In my opinion, there is no error in that reasoning.
15. The third ground of appeal is that the federal magistrate erred in failing to find that the Tribunal had failed to comply with s 424 of the Act. In particular, it is alleged that the Tribunal was aware that the applicant had received medical attention for ongoing psychological problems resulting from her fear of being forcibly sterilised and the federal magistrate fell into jurisdictional error in rejecting this claim. This ground is similar to ground one of the application for judicial review. The federal magistrate rejected the ground and he said that a medical certificate dealing with the appellant’s condition post-dated the Tribunal’s decision and that there was no evidence of some earlier visit to a relevant medical practitioner. Furthermore, he said that, even based on what could be shown to have been before the Tribunal – the appellant’s claims to fear for her children and her safety – and even if the appellant presented in an emotional state, this did not create a basis for the appellant to now say that the Tribunal should have made inquiries as to her psychological state. The learned federal magistrate said that the Tribunal was under no general obligation to conduct inquiries to see if a medical certificate existed. The federal magistrate reached the following conclusions:

None of this comes close to indicating that the [appellant] received medical attention for psychological problems, let alone that the Tribunal was aware of it.

In all, I agree with the Minister that, on what is before the Court, there is nothing to show that there was any failure by the Tribunal to properly conduct the review in this regard.

Ultimately, if there was such evidence, and it was of assistance to the [appellant], she had ample opportunity to have it put before the Tribunal. During the course of the review, involving four different Tribunal members, the [appellant] put a number of documents in support of her claims. It cannot be said that she was unaware of how to go about doing this.

16. In my opinion, there is no error in that reasoning.
17. All grounds of appeal fail and, in those circumstances, the appeal must be dismissed.
    

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated: 23 February 2010