Chen, Shi Lian v The Minister for Immigration & Ethnic Affairs
[1996] FCA 259
•19 APRIL 1996
CATCHWORDS
IMMIGRATION - Refugee Status - amendments to the Migration Act 1958 (Cth) - s476(3) grounds of review by Federal Court - judicially reviewable decisions under the Migration Act 1958 cannot be reviewed on grounds of failure to take into account relevant considerations and taking into account irrelevant considerations - effect of legislative amendments as a result of the Migration Reform Act 1992 where procedural steps of application straddle amendment date of 1 September 1994 - application in substance on basis of no or insufficient evidence - whether economic discrimination can amount to persecution - whether evidence of "real chance" of persecution - whether evidence that financial hardship fell short of persecution - whether open to Refugee Review Tribunal (RRT) to form opinion it did - whether sufficient evidence to find possible persecution by family planning authorities no more than remote - whether failure to take into account relevant evidence.
ADMINISTRATIVE LAW - application to review decision of Refugee Review Tribunal (RRT) that applicants not be granted protection visas - improper exercise of power in that RRT took into account irrelevant considerations and failed to take into account relevant considerations - application in substance on basis of no evidence, insufficient evidence - whether sufficient evidence for RRT to make its finding - whether failure to take relevant considerations into account.
Migration Act 1958 (Cth) ss475(1), 476(1),(3),(4), s3, s5(9)(a), s478(1) & (2)
Migration Reform Act 1992 (Cth) (No 184 of 1992)
Migration Legislation Amendment Act 1994 (Cth) (No 60 of 1994), Item 2, Schedule 2, s39
Convention Relating to the Status of Refugees (1951)
Protocol relating to the Status of Refugees (1967)
Hathaway, JC, The Law of Refugee Status (1991) (1996 reprint)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited
Fuad Bin Mahboob v Minister for Immigration and Ethnic Affairs, Unreported, Lehane J, 15 March & 15 April 1996, cited
CHEN, SHI LIAN & HE, CHUAN QIU v
THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No WAG 132 of 1994
Tamberlin J
Sydney (Heard in Perth)
19 April 1996
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 132 of 1994
GENERAL DIVISION )
BETWEEN: CHEN, SHI LIAN
First Applicant
HE, CHUAN QIU
Second Applicant
AND: THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
Respondent
CORAM: TAMBERLIN J
PLACE of HEARING: PERTH
JUDGMENT DELIVERED: SYDNEY
DATED: 19 APRIL 1996
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY ) WAG 132/1994 GENERAL DIVISION )
BETWEEN: CHEN, SHI LIAN
First Applicant
HE, CHUAN QIU
Second Applicant
AND: THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
Respondent
CORAM: TAMBERLIN J
PLACE of HEARING: PERTH
JUDGMENT DELIVERED: SYDNEY
DATED: 19 APRIL 1996
REASONS FOR JUDGMENT
Introduction
This application is for judicial review. It was filed on 16 November 1994. The application seeks judicial review of two decisions of the Refugee Review Tribunal ("RRT") dated 24 October 1994. The RRT decided that the applicants were not "refugees" under the Migration Act 1958 (Cth) ("the Act") and were therefore not entitled to protection visas.
The broad question is whether the applicants were at the relevant time, "refugees" within the meaning of the International Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). These instruments are incorporated into the Act by the definition of "refugee" in s4 of the Act. Under those instruments a refugee is defined as person who:
"...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events is unable or, owing to such fear, is unwilling to return to it."
Grounds
The grounds raised in the application are:
"(i)That the decisions were an improper exercise of the power conferred by the Migration Act 1958 in that the RRT took into account irrelevant considerations ...
and
(ii)failed to take into account relevant considerations".
The irrelevant considerations relied on at the hearing, which it is said the RRT took into account, are:
"(i)(a)that the financial penalties imposed on the Applicants for breaching the family planning policy will not be such an amount as to make life intolerable for the Applicants;
(b)that the effect of the family planning regulations on the Applicants' child amount to financial penalties for the Applicants;
(c) that the financial sanctions imposed on the Applicants for breaching the family planning policy do not amount to persecution;
(d) ...
(e) claims that the First Applicant will be persecuted by the family planning authorities at some unspecified time in the future are no more than remote because it depends on, among other things, the resolution of the dispute between the Second Applicant and the obstructive official, the likelihood of conception, and the attitudes of the local family planning officials and the capacity to pay financial penalties;
(f)when in fact each of such considerations was:
(i) unsupported by evidence before the RRT; and
(ii) contrary to the evidence provided by the Applicants." (Emphasis added)
The relevant consideration which it is said the RRT failed to take into account are:
"(ii) ...
(a)...
(b)...
(c) the evidence submitted by the Applicants that they fear that they will be faced with forced sterilisation procedures if they are returned to China;"
Other grounds stated in the application were not pressed before this Court.
Applicable Law - pre or post 1 September 1994?
A threshold question arises in this case as to whether the grounds relied on by the applicant, namely, taking into account irrelevant considerations and failing to take into account relevant considerations, are available to the applicants.
On 1 September 1994 the Migration Reform Act 1992 (Cth) commenced operation. That Act made major changes to the Migration Act 1958 (Cth).
The relevant provisions of the Migration Act 1958 (Cth) as amended are:
"475 (1) Subject to subsection (2), the following decisions are judicially- reviewable decisions:
(a)decisions of the Immigration Review Tribunal;
(b)decisions of the Refugee Review Tribunal;
(c) ....
476 (1)Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
....
(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;
....
(g)that there was no evidence or other material to justify the making of the decision.
(3) The reference in paragraph (1) (d) to an improper exercise of a power is to be construed as being a reference to:
(a) ...
(b)...
(c) ...
but not as including a reference to:
(d)taking an irrelevant consideration into account in the exercise of a power; or
(e)failing to take a relevant consideration into account in the exercise of a power; or
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
478(1) An application under section 476 or 477 must:
....
(b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.
(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1) (b) (Emphasis added).
If the law as in force on and after 1 September 1994 is the relevant regime then as a result of s476(3), the decision cannot be reviewed by this Court on the ground that the decision under review has taken an irrelevant consideration into account, or has failed to take a relevant consideration into account in the exercise of a power. On their face these are the grounds relied on by the applicants. However, in substance ground (i) in the application is a no evidence ground under s476(1)(g). Ground (ii) in the application is covered by the restriction but it is a ground which is clearly without foundation in any event.
Under the legislation in force up to 1 September 1994 it was possible to rely on the grounds set out in s476(1)(d) and (e).
The applications for refugee status, in the present case, were made on 27 July 1994. The applications were refused by a delegate of the Minister on 5 September 1994. Applications for review was received by the RRT on 12 September 1994. The decisions of the RRT confirming the delegate's decision, refusing the applications, were made on 24 October 1994. The
application to this Court for judicial review was filed on 16 November 1994. This application was made within the time limit set out in s478(1)(b) and it is not suggested that the Court does not have jurisdiction to hear the application on the basis of the time limit.
The chronology of events is important because the review process straddles 1 September 1994.
The amendments which inserted Part 8 (sections 476-481) of the Act are enacted by the Migration Reform Act 1992, (No 184 of 1992) which, relevantly, did not commence operation until 1 September 1994. These amendments were in turn further amended by the Migration Legislation Amendment Act 1994 (Cth) (No 60 of 1994) ("the 1994 Act"), which commenced operation on 9 April 1994, the date of the assent.
The history of this application attracts the transitional provisions of the legislation.
The 1994 Act by item 2 of the Second Schedule, provided:
"Transitional - refugee application
"39. If:
(a) an application for:
(i) a determination by the Minister that a person is a refugee within the meaning of the Principal Act as in force immediately before 1 September 1994; or
(ii) ......
was made before that date; and
(b) before that date, the application has not been finally determined (within the meaning of the Principal Act);
then, on and after that date, the provisions of the Principal Act (including provisions relating to review of decisions) apply as if the application was an application for a protection visa (within the meaning of the Principal Act as in force on that date)." (Emphasis added)
The Principal Act is defined in s3 to mean the Migration Act 1958 (Cth) as amended. See Note 1 to Act No 60 of 1994. The reference to the Principal Act in s39 is to the Act as in force on and after 1 September 1994.
Section 39 evinces an intention to ensure finality and to regulate the position where the application and review precedes and continues after 1 September 1994. Its wording, in my view, is clear and unambiguous.
The expression "finally determined" in s39(b) above is defined in s5(9)(a) of the Principal Act:
"5(9) ... an application under this Act is finally determined when either:
(a) a decision that has been made in respect of the application is not, ... subject to any form of review under Part 5 or 7; or
.... "
Part 7 is the part of the Principal Act which deals with the review of protection visa decisions by the RRT, see ss410-473.
The consequence of s39, in my opinion, is that the provisions for judicial review of decisions, in respect of the present matter, are those effective on and after 1 September 1994. Accordingly, the law in force on and after that date is the applicable legislative framework.
The considerations which lead me to this view are as follows:
First, the reference to the Principal Act in s39 is to the Migration Act 1958 (Cth) as in force "on and after" 1 September 1994.
Second, the word "apply" is used in the third last line, and not the expression "continue to apply" which would be appropriate if the previous review provisions were to remain in force.
Third, the provisions are to apply as if the application was for a protection visa under the Act, as in force on 1 September 1994. The words "as if" denote a deemed situation designed to bring earlier incomplete application procedures within the provisions of the Act as in force on 1 September for review purposes. If the application is treated as if it were made on or after 1 September 1994, the new legislative
regime, including those provisions limiting judicial review, will apply.
Fourth, there is an express reference in s39 to the provisions of the Principal Act which are to apply and these include "provisions relating to review of decisions".
Fifth, as at 1 September 1994 the application had not been finally determined because the decision of the RRT was not given until 24 October 1994.
The parties made a joint submission on jurisdiction which was that the amendments which came into operation on 1 September 1994 did not apply to the present review, and that they only applied to primary applications made after that date. It is said that the relevant provisions were those which applied before that date.
The submission relied on the following:
An implied limitation, resulting from the inclusion of the new code of conduct comprised by ss52-64 of the Migration Act for the non-application of that code to primary applications made before that date. If there was no such implication, then a primary application, it was submitted, made before 1 September 1994, would not have to be decided in accordance with the code of conduct, but the applicant would not have the benefit of the available grounds for review, based on natural justice and relevant or irrelevant considerations previously in force. This detrimental effect on a transitional applicant it was said, could not have been intended.
A presumption that legislation is not intended to oust the Court's established jurisdiction.
Section 8 of the Acts Interpretation Act 1901, (which is subject to a contrary intent).
In my view, because s39 deals specifically and expressly with transitional refugee applications, the above submissions, based as they are on implication and presumption, cannot be accepted. See Fuad Bin Mahboob v Minister for Immigration and Ethnic Affairs & Anor, (unreported, Lehane J, 15 March 1996). Further reasons of his Honour were delivered on 15 April 1996. In that matter his Honour dismissed the application for judicial review because the application was made outside the mandatory time limit prescribed by s478(1).
Accordingly, I consider the post 1 September 1994 legislative regime applies.
As a practical matter in the present case the difference between the pre-September 1994 regime and the post-September regime is ultimately not significant. This is because the principal ground relied on, ground (i), is really founded on a "no evidence" argument and this ground remains available in a modified form as a result of s476(1)(g) and s476(4).
With respect to the other ground in the application, (ii)(c), concerning failure to take into account a relevant consideration, this ground clearly has no substance, for reasons which will appear later and this ground could not in any event have been relied on to set aside the decision of the RRT.
Factual Background
Ms Shi Lian Chen, ("the first applicant") and Mr Chuan Qiu He ("the second applicant") are both citizens of the People's Republic of China ("China"). They arrived in Darwin by boat on 13 July 1994 without documentation. The applicants were transferred and are detained at the Cooke Point Immigration Reception and Processing Centre at Port Hedland. The applicants claims to refugee status are therefore to be assessed having regard to their experiences and the conditions in China.
The first applicant was born in and lived with her parents in Di Jiao, Beihai, in the province of Guanxi where she worked in a stall selling pork. The second applicant also lived and has been registered in Di Jiao since birth. He worked in fishing related occupations until he left his job in 1992 and unsuccessfully sought work in the private sector.
On 27 July 1994 the applicants lodged their applications for Refugee Status which included each other as members of their family unit. The applications were refused by a delegate of the Minister for Immigration and Ethnic Affairs on 5 September 1994 and applications for review of the decisions of the delegate were received by the RRT on 12 September 1994.
The first applicant stated at her compliance interview that she had been asked by an acquaintance if she wanted to join a boat trip to Australia and that she left China because she had heard that Australia was a good country and she was concerned about the drug problems in Di Jiao. In addition, her husband, the second applicant had not worked since their marriage and her earnings of 300 RMB a month from the pork stall were not very high.
The first applicant had become a Christian because, she claimed, it taught good deeds and was anti-abortion. She said that she attended church every Sunday and had not been prevented from doing so by the authorities. The RRT accepted that the first applicant attended church whenever she had time on Sundays, as there is some conflict in the evidence of the applicants in this regard.
The first applicant claimed that she had been denied permission to formally marry and had last encountered such a refusal in October 1993. It is the first applicant's belief that the refusal was a result of a business dispute in relation to a fishing contract which her husband had with the local official who was now in charge of the issue of their marriage certificates.
In November 1993, about 8 months before arriving in Australia, the first applicant moved into her husband's mother's house and subsequently became pregnant. The first applicant said that she had been harassed by the family planning authorities who would force her to have an abortion. In April 1994 when she was 2 months pregnant they had come to her house while she was visiting her mother. The authorities arrested and detained her husband for a few days and attended on the first applicant's mother advising her that if the first applicant did not present herself to them they would jail her son. The first applicant did not present herself to the authorities and the second applicant escaped from the authorities upon which both the first applicant and her husband went into hiding until their departure for Australia. In the interim the first applicant's hawker/vendor licence was suspended. She believes this suspension of her licence is an indication of the fact that the family planning authorities were punishing her, not she believed, because she had been refused a marriage certificate but because she had not obtained permission to have a child. The first applicant hid in the house of a neighbour of her mother, particularly in the evenings when the family planning authorities conducted their raids.
The first applicant stated in an interview that her sister had obtained on her behalf the marriage certificate form which had a local government seal approving the marriage on it and the application for which was dated May 1994.
The first applicant also claimed during an interview that she fears that if she returned to China her child would not be granted neighbourhood registration and thus not be entitled to the benefits which attach to registration, such as the right to an education. In addition, she apprehends that she will be subjected to a significant period of imprisonment for leaving the country illegally and that whatever her punishment might otherwise be it would be increased as a result of her having escaped the family planning authorities.
At the hearing before the RRT the first applicant was 8 months pregnant and feared that if she returned to China she would still face forced abortion and sterilisation. She stated that she had a friend who was aborted at 6 months and who continued to suffer as a result of complications during the operation. As she wanted to have her child she said she would have to go into hiding if she were to return to China and this would mean that she would not receive proper medical care.
The first applicant had heard about the boat on 20 April 1994 and her mother had paid 10,000 RMB each for the first applicant, her sister and her husband to sail to Australia.
It was submitted on behalf of the first applicant at the hearing before the RRT, that even if the first applicant was not forced to have an abortion and be sterilised, she faced the prospect of financial penalties which she could not afford and the denial of the right to work. It was argued that such detriment would amount to persecution and that she was persecuted as a member of a social group comprising unmarried pregnant women and unmarried mothers.
The second applicant claims he first saw the boat on which they travelled to Australia on the day of their departure and had no particular knowledge of previous departures. Later he said he had first seen the boat on 20 April and had worked on the boat from 1 May 1994 until it departed. The second applicant stated that he was a fisherman and left China because there was no future there for him.
Prior to his arrival in Australia the second applicant was self-employed, working for relatives running a small business. He borrowed money from his mother-in-law to come to Australia and left China because he could not afford to educate his child. The second applicant had heard about Australia in magazines and on the television and had been aware of the boat trip "from the beginning".
The second applicant stated during his interview on 13 August 1994 that he had become a Christian because it taught good deeds and that he had not been prevented from practising his religion. He had been taught that abortion was wrong and as his wife was pregnant and faced an abortion he could not agree to this on religious grounds. He said that his wife only attended the local church rarely when she had time.
In 1992 the second applicant left his occupation and commenced a fish selling business. However he soon stopped this as he was unable to earn enough. He then applied with some friends and relatives for a contract with the local state-owned fishing co-operative but the contract was awarded to friends or relatives of the official in charge. He had complained to government officials to no avail and had since that time been unable to find a job.
The second applicant claimed that the government officials refused to grant permission to marry despite several applications since June 1993, the last being in October 1993, by way of revenge. The first and second applicant were informally married in November 1993 and the first applicant subsequently moved in to live with him at his mother's house. She became pregnant the following February.
On 4 April 1994 the Family Planning officials, police and members of the Public Security Bureau ("the PSB") came to their house searching for his wife so that they could force her to have an abortion as they did not have permission to have a child. The first applicant was visiting her mother at the time, so the officials arrested and detained the second applicant. He escaped a few days later. The second applicant then hid at the house of the person who was organising the trip to Australia and the first applicant hid with relatives or friends. Both the first and second applicants remained in hiding until their departure and did not see each other until their departure.
The second applicant made a statutory declaration to the effect that he had obtained his officially sealed marriage certificate through a friend whom he had paid 15 RMB to bribe the officials with cigarettes. Further, he declared that he was not detained by officials when they came to the house of the person with whom he was hiding because he was not known to the local police and "because they were not after him".
In an interview the second applicant claimed that he feared that if he were returned to China his wife would be forced to have an abortion and that he was against this for religious and personal reasons. In addition, he feared that he would be sentenced to a significant period of imprisonment, because he left the country illegally and that the imprisonment would be more severe because he had breached family planning regulations. At the RRT hearing, the second applicant stated that he believed that he would be jailed, if he did not pay the fines and that he and his wife would be sterilised.
The second applicant explained the dispute with the obstructive government official in the following way. The second applicant and some colleagues had won the right to operate two fishing boats under one of the schemes of "open policy" conducted by the government. The official in charge allocated the boats to his relatives instead, and the second applicant and his colleagues had complained. The second applicant continued to make complaints and had arguments with the particular official who was subsequently transferred to another office where he issued marriage certificates.
When the second applicant went to him to obtain a marriage certificate the official refused to issue it and the arguments between the second applicant and the official resumed. The second applicant also stated that he believed that the family planning officials were behind the refusal to issue the marriage certificate.
It was submitted on behalf of the second applicant that he would be seen as a trouble maker and that what had commenced as a bureaucratic dispute had escalated to the extent that the second applicant had obtained a political profile as a person opposed to people in authority. It was argued that the denial of the right to marry was a breach of Article 23(2) of the International Covenant on Civil and Political Rights. In addition, the second applicant and the first applicant faced the prospect of financial penalties which they could not afford and the denial of the right to work. Such detriment it is said would amount to persecution.
RRT Reasons
The RRT was satisfied that the refusal of permission to marry, and the resultant inability to obtain a birthing certificate, required under the Guanxi family planning regulations, before becoming pregnant, were "plausible, despite some inconsistencies." However, it rejected the claim that the second applicant was imputed with a political opinion because he was seen as a trouble maker and found that:
"While this official may have continued to deny legal rights to the Applicant and his wife, the dispute between them is personal and does not disclose any Convention reason."
The RRT did not find that the applicants were refused a marriage certificate for any reason other than the second applicant's dispute with the responsible official. Further, after the discussion of the protective measures in place in China for corruption, extortion and misuse of office, the RRT stated that, notwithstanding the absence of a Convention reason, if there was a failure by persons to have recourse to the organs of the State in order to test the availability of protection from harm, then it cannot be said that any harm suffered results from a failure of State protection.
The RRT was not satisfied that the applicants were persecuted by the official or that his alleged mistreatment of them was for a Convention reason.
The RRT accepted that the family planning officials went to the applicants' house in April 1994 intent on coercing the first applicant into having an abortion or at least exacting a fine because she had become pregnant without being married and without a birthing certificate. However, it found that the adverse interest in the second applicant soon dissipated and that it is likely that no action was taken against him while in hiding with the person who was helping to organise the boat trip to Australia because at that stage they did not want him. On the evidence before it the RRT accepted that the second applicant was detained in an effort to pressure his wife to present herself to the family planning authorities, but that once the second applicant had escaped from the authorities they lost interest in him.
The RRT found that although the first applicant stated that her motives for leaving China were to escape a poor living standard and drug problems in her area, her fear of being forced to abort her first child was a further motive. However, it considered that as she was more than 8 months pregnant at the time of the hearing, the prospect of being coerced into an abortion had receded, despite evidence which suggested that zealous family planning officials might attempt an abortion at eight months or more. At the time of the hearing before the RRT, the first applicant was at a stage where she could not travel to China and would not be able to until after her child had been born. As a result there was a substantial alteration in her circumstances in that she no longer faced a forced abortion, rather the first applicant would come within the family planning regulations which provide for unmarried mothers.
Similarly, although the second applicant had initially stated his motives for leaving China were to escape a poor standard of living in order to be able to educate his future child, the RRT found that a further motive was to accompany his wife to Australia to avoid her being forced to abort their first child.
Evidence before the RRT showed that the applicants would be subject to financial penalties on return to China, as a result of their non-compliance with the family planning regulations, although the amount of those penalties is not specified in the regulations. The RRT considered the fines imposed in other recent cases of returnees which varied from 1000 to 5000 RMB. It was acknowledged that the size of the fine imposed was subject to the caprices of the family planning officials who exact them. However the RRT found that:
"any financial penalty imposed would not be of such an amount as to make life intolerable for the Applicant(s)."
The RRT found that the first applicant's hawker's licence was cancelled as a result of a failure to pay the monthly licence fee rather than as a result first applicant's avoidance of the family planning authorities who are not PSB officials or associated with the Industrial and Commercial branch of the PSB which oversees activities of the type carried out by the first applicant. Although the second applicant was inconsistent about his work prior to coming to Australia, it seemed to the RRT that he was self employed and able to obtain casual work to supplement the family income.
It appeared to the RRT that the applicants' child would not be entitled to subsidised child care, dependent's medical treatment, welfare and other such services before its seventh birthday and that the applicants would therefore have to meet the costs of those services. Although the RRT found that the financial sanctions imposed on the applicants for breach of the family planning policy were discriminatory they did not in its view amount to persecution.
The RRT found that the first applicant's fear of sterilisation was genuine but was not well founded as it considered there was no more than a remote chance that she will be forced to have such an operation after the birth of her first child. Such a conclusion, the RRT believed was inconsistent with the numerous exceptions to the one child policy and other evidence which suggested that sterilisation would only be encouraged where the parents exceed the permissible quota of children. The RRT found that the second applicant's claim that he feared sterilisation was not genuine. The claim was not made until the day of the hearing before the RRT and until then he was only concerned that his wife would be forced to have an abortion. The RRT also found that even if the fear were genuine it was not well founded. The regulations make provision for sterilisations after the birth of a second child for those subject to being restricted to one child, and in addition the second applicant being classified as a "fishing person", it appears, is permitted to have two children.
The RRT was of the opinion that persecution of the first applicant at some unspecified time in the future, was speculative, depending, among other things, on the resolution of the husband's dispute with the obstructive official, the likelihood of conception and the attitudes of the local family planning officials as well as their capacity to pay the financial penalties. The chance of persecution it believed was therefore no more than remote.
In relation to illegal departure, the tribunal considered the evidence of specific returnees, Departmental cables, articles, reports and US Department of State, Amnesty International and Asia Watch Reports and came to the conclusion that in the absence of "serious acts" such as organising illegal emigration for profit, or criminal activity, the likely consequences of illegal departure, followed by application for refugee status are a short period of detention (up to 15 days) and a fine, most probably between 1000 and 5000 yuan, although there may be additional expenses added to the fine. As a result the RRT found that the first applicant would be counselled and fined, and if unable to pay the fine detained for a short period. Such a sanction it was held would be imposed for breaching a valid law and is neither excessive, given the serious nature of the offence, nor does it disclose a Convention reason. The sanctions are imposed by officials who are not associated with family planning officials and there is no more than a remote chance that they will be increased because the applicants avoided the latter. The applicants it was said may find that her financial obligations to the authorities are onerous, but given that the applicants were able to raise 10,000 RMB each to come to Australia, and that the first applicant's business provides a relatively good income, the RRT found that the cumulative effect of the sanctions was not persecutory.
With respect to the second applicant the RRT found that he did not profit from the journey to Australia, was not involved in the organisation of the trip and there is no evidence to suggest that he would be viewed as a participant who had committed serious acts which would attract a more onerous punishment than that discussed above with respect to the first applicant.
The RRT concluded its reasons for decision in relation to the first applicant by stating:
"..... When added to the sanction imposed for breaching the family planning regulations, the Applicant may find that her financial obligations to the authorities are onerous, but given that she was able to raise 10,000 RMB to come to Australia and that she has a business that provides a relatively good income, the Tribunal finds that the cumulative effect of the sanctions is not persecutory.
Conclusion:
In considering the evidence before it, the Tribunal finds that the Applicant is not a refugee as there is not a real chance that she will be persecuted should she return to the PRC. In making such a finding, the Tribunal notes that it is unnecessary to determine whether or not the Applicant is a member of a particular social group. As she is not a refugee she is not a person to whom Australia has protection obligations under the Refugees Convention and is therefore not entitled to the grant of a protection visa."
In the case of the second applicant, the conclusion is substantially the same.
The Substantive Issues
The substantive issues are:
Whether there was evidence to justify a conclusion that the financial hardship on the applicants if they return are sufficiently onerous to amount to persecution?
Whether there was any evidence to justify a finding that there was only a remote chance the applicants would be persecuted?
Whether the RRT failed to consider the evidence of the applicants that they feared they would be faced with forced sterilisation if returned to China?
Applicants' Submissions
Submissions in relation to ground (i) are as follows:
The first submission is that there was no evidence before the RRT to justify its finding that financial penalties imposed for breaching the Family Planning Policy would not be such as to make life intolerable for the applicant.
The second submission is that there was no evidence to support a finding that the effect of the Family Planning Regulations on any children, would amount to financial penalties and difficulties, because the child would not be granted neighbourhood registration and the benefits which attach to such registration.
The third submission is that there was no evidence to support the conclusion that claims of persecution were too remote.
The submission in relation to ground (ii)(c), is that the RRT did not take into account the evidence submitted by the applicants that they feared that they would be faced with forced sterilisation procedures, if returned to China.
Consideration of the Submissions
In relation to the first submission, the evidence accepted by the RRT was that the income of Mrs Chen from the pork stall, was 300-400 RMB per month, and that her husband was unemployed for the duration of the marriage. There was no evidence that if they returned to China the combined income situation would be any different. There was evidence that the average income was in the order of 200-300 RMB per month.
The evidence before the RRT was that the fines for breach of the Family Planning Regulations was likely to be between 1,000 to 5,000 RMB which taking the highest figure was the equivalent of more than 12 to 17 times Mrs Chen's monthly income. In substance, the submission was that the RRT was bound on the evidence to make a finding that a penalty of this magnitude would make life "intolerable" for the applicants and thereby amounts to persecution.
It is clear that economic discrimination can amount to persecution in certain circumstances. See Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 430-431, per McHugh J.
An examination of the decided cases and consideration of the principles set out by J C Hathaway in the Law of Refugee Status 1996 at 116-123, indicate that it is necessary to distinguish "economic hardship" from "persecution". Economic hardship may often fall short of persecution. However, in some instances, where for example, a person is deprived of an opportunity to work, or engage in a profession for which he or she may be qualified, there may be hardship of a sufficient degree as to amount to persecution. Nevertheless, in assessing questions of degree, due allowance must be made for the varying economic policies and conditions which prevail in different sovereign nations.
In the present case, there is evidence of a "real chance" of financial penalties being incurred by the applicants to an amount of around 15,000 RMB if one includes the birthing penalty and the illegal departure penalties at the maximum levels. Nevertheless, I am of the view that it was open to find that on the evidence that this financial hardship fell short of persecution.
There was evidence before the RRT as to the payment of 20,000 RMB to enable the applicants to finance their departure. It is true that there was no evidence that financial assistance would again be forthcoming. However, the RRT was entitled to take into account that such a substantial advance had been made for the benefit of the applicants. The weight to be assigned to this consideration was a matter for the RRT.
Furthermore, on the evidence, it can be said there must be a "real chance" that government benefits would be withheld from any children of the applicants, until the age of 7 years. However, even when this is taken into account, together with the hardship imposed by the above financial penalties, it remained open, in my view, for the RRT to form the view, on the facts, that the cumulative effect of the financial hardship and the withholding of government state benefits for a child, did not amount to persecution.
The second matter relied on, was that there was no evidence to support the conclusion that the effect of the Family Planning Regulations on the applicants' child, amounted to financial penalties for the applicants.
This is a curious submission, for the applicants to make, because this conclusion of the RRT assists, rather than detracts from, the present case advanced by the applicants, to the effect that the extent of economic disadvantage, which they would be likely to suffer, amounts to persecution.
However, be that as it may, there was some evidence before the RRT in relation to this matter. For example, Article 31 of the relevant government family planning regulations referred to by the RRT, reads as follows:
"Article 31 Staff of state organs, business or institutions cannot receive "difficulty allowance" if they give more births. They must pay for all the cost associated with their pregnancy examination, birth and hospitalisation. Children born outside the plan are not entitled to subsidised childcare, dependent's medical treatment and welfare etc. before they are (sic) 7th birthday. "
The conclusion of the RRT was, in my view, reasonably open to it. The withholding of such benefits for any child born in breach of the policy could reasonably be said to amount to a financial penalty to them. They will bear the additional financial burden.
The regulations, in question, are entitled "Family Planning Regulation of Guangxi Zhuang Autonomous Region" as set out in a document of the Department of Trade and Foreign Affairs, No CX325, bearing date 17 September 1988.
I am satisfied on the basis of this material, that there was sufficient evidence before the RRT to enable it to reach the conclusion that the disentitlements in respect of children would in substance impose financial penalties to the applicants.
The third ground relied on was that the finding that the first applicants would be persecuted by the Family Planning Authorities, are no more than remote.
There was substantial evidence before the RRT on which to base this conclusion. This is as follows.
The Report of the Delegate of the Minister was before the RRT. The evidence of both applicants was that the application seeking official approval to marry in October 1993 was rejected because, they thought, that the officials in question wanted to take revenge on the male applicant because he had made a complaint over a fishing contract in 1992. The first applicant, Mrs Chen, did not complain to higher authorities because "they seldom listen to the common people". The dispute with the authorities did not arise because of general persecution in China, but rather as a result of a particular dispute over a fishing contract.
A second matter taken into account was that the documentation available to the RRT indicated that the usual penalties were likely to be of a pecuniary nature rather than of an invasive medical nature such as sterilisation or abortion measures.
Moreover, Article 30 of the Regulations provides:
"Those who give births (sic) without permission are given financial penalty and disciplinary sanction if they are staff, or financial penalty if they are peasants or town or city residents.
Those who get married and give birth earlier or give birth without marriage will be dealt with according to the above measures."
There was evidence that the necessary marriage certificate was withheld because of a personal dispute. Moreover, the Document No. CX406 from the Department of Foreign Affairs and Trade, "entered" on 27 February 1994, indicates that returnees after illegal departure have not on the evidence available been treated harshly. Further, the document records that the instances of forced sterilisation and abortion have only
occurred in remote rural areas and the numbers have declined since the early 1980's. In addition, there was evidence before the RRT, to the effect that the attitude of authorities in China, varied considerably according to locality.
In view of the above material, I consider that there was evidence before the RRT on which it could reasonably come to the conclusion, that the claims that either the applicants might be persecuted by the Family Planning Authorities at some unspecified time in the future were no more than remote in the sense that they did not give rise to a real chance of persecution.
The final ground relied on by the applicants was that the RRT failed to take into account the evidence submitted by the applicants that they feared that they would be faced with forced sterilisation procedures if returned to China.
There is clearly no substance in this ground because the fears and foundations for those fears, on behalf of the applicants, were not only referred to but were discussed at length in the decision of the RRT. See pages 6-10 of the decision relating to the first applicant, and at pages 7-11 of the decision relating to the second applicant.
I am satisfied that it was open to the RRT to come to the view which it did.
General
Initially, on reading the decisions under review, two matters caused me concern.
The first was that in each decision, a finding is made that any financial penalty imposed as a result of unlawful birthing (1,000 - 5,000 RMB) would not be of such an amount as to make life intolerable for the applicants. It seemed to me, on first impression, that the introduction of a criterion of "intolerability" went beyond the authorities. However, on a fair reading of the judgment as a whole, I think that the RRT meant by use of the term "intolerable", simply a finding that the penalty and financial hardship was not sufficient, as a matter of degree to amount to persecution. Moreover, I note that paragraph 42 of The Handbook on Procedures and Criteria for Determining Refugee Status, issued by the Office of the United Nations and High Commissioner for Refugees in 1979, states that:
"In general the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there." (Emphasis added)
While, of course the Handbook is only a broad general guideline as to the content of the term, "persecution", nevertheless the description indicates that a reference to
"intolerable" raises a question of reasonable degree and this is essentially a matter for evaluation by the RRT.
The second matter is that in reaching its conclusion that the financial hardship did not amount to persecution, in the present case, the RRT refers to the fact that the applicants were able to raise 20,000 RMB to come to Australia. There is perhaps an implicit view that if returned to China, funds may be forthcoming to assist payment of any financial penalty. There is no documentary evidence of this being the case, nor any testimony to that effect. I am satisfied that it was legitimate for the RRT to take into account the fact that the applicants had been able to raise 10,000 RMB each to come to Australia and that it was open to the RRT to give such weight as it saw fit to this fact. It does not follow that because there was no evidence specifically directed to the ability of the applicants to raise funds to meet the financial penalties, that the quantum of the financial aid to leave China was irrelevant and should have been left out of account.
I can find no error of law in the decisions under re
view. Accordingly, the application should be dismissed. I make no order as to costs.
I certify that this and
the preceding thirty-four (34)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 19 April 1996
Counsel for Applicants: Ms V Moss
Solicitors for Applicants: Legal Aid
Counsel for Respondent: Mr S Bhojani
Solicitors for Respondent: Australian Government Solicitor
Date of Hearing (Perth): 22 November 1995
Date of Final Submissions: 16 February 1996
Date Judgment Delivered: 19 April 1996
(Sydney)
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