MZAJZ v Minister for Immigration
[2016] FCCA 2737
•28 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZAJZ v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 2737 |
| Catchwords: MIGRATION – Refugee Review Tribunal – protection visa – Tribunal having regard to findings of Tribunal as differently constituted – whether Tribunal obliged to listen to whole of recording of hearing before Tribunal as previously constituted – whether Tribunal obliged to consider “what if I am wrong” – whether Tribunal’s decision so unreasonable no reasonable Tribunal could have made it – whether Tribunal misapprehended concept of serious harm – whether Tribunal correctly applied the law relating to laws of general application – whether the Tribunal approached its task without an open mind. |
| Legislation: Migration Act 1958 ss.424, 424AA |
| Cases cited: Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (Chinese One Child Policy Case) [1998] INLR 1; (1997) 190 CLR 225; (1997) 142 ALR 331; (1997) 71 ALJR 381; [1997] 4 Leg Rep 9; [1997] HCA 4 Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293; (2000) 58 ALD 321; (2000) 170 ALR 553; (2000) 74 ALJR 775; (2000) 21(7) Leg Rep 11; [2000] HCA 19 Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20; (2009) 49 AAR 455; [2009] FCA 241 MZZTV v Minister for Immigration [2014] FCCA 1949 MZZZW v Minister v Minister for Immigration and Border Protection & Anor (2015) 234 FCR 154; (2015) 328 ALR 433; (2015) 67 AAR 159; [2015] FCAFC 133 SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 341 SZBXV v Minister for Immigration and Multicultural Affairs [2007] FMCA 28 SZHFG v Minister for Immigration and Citizenship [2010] FCA 118 SZLQB v Minister for Immigration and Citizenship [2008] FMCA 1590 SZSIJ v Minister for Immigration and Citizenship [2013] FCCA 295 SZUPI v Minister for Immigration and Border Protection [2015] FCCA 880 |
| Applicant: | MZAJZ, BY HER LITIGATION GUARDIAN |
| First Respondent: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 1707 of 2014 |
| Judgment of: | Judge Riley |
| Hearing date: | 2 August 2016 |
| Date of last submission: | 2 August 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 28 October 2016 |
REPRESENTATION
| Counsel for the applicant: | Anthony Krohn |
| Solicitors for the applicant: | Chua Tan & Associates |
| Counsel for the first respondent: | Catherine Symons |
| Solicitors for the first respondent: | Clayton Utz |
| Counsel for the second respondent: | No appearance |
| Solicitors for the second respondent: | Clayton Utz |
ORDERS
The application filed on 21 August 2014 and amended on 19 February 2016 be dismissed.
The applicant pay the first respondent’s costs, fixed in the sum of $7,206.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1707 of 2014
| MZAJZ, BY HER LITIGATION GUARDIAN |
Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First respondent
And
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second respondent
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision made by the Refugee Review Tribunal (“the Tribunal”). In that decision, the Tribunal affirmed a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant’s claims
The applicant is a child. She was born on 18 October 2012 in Melbourne. She is a citizen of the People’s Republic of China, as are her parents. The applicant brings the application by her mother, who has been appointed as her litigation guardian. The applicant’s parents are no longer in a relationship.
The applicant’s mother applied for a protection visa on 17 March 2011. A delegate of the first respondent refused that application. The Tribunal affirmed the refusal.
The applicant applied for a protection visa on 30 April 2013, when she was six months old. The applicant claimed, through her mother, that:
a)she is a Christian and her mother would bring her up as a Christian;
b)she was born out of wedlock in breach of China’s family planning laws;
c)consequently, she belonged to a particular social group consisting of unregistered children and known as “black children”;
d)her mother would not be able to pay the social compensation fee required for having a child out of wedlock;
e)the social compensation fee in the applicant’s circumstances would be very high, for example, because the authorities would know that the applicant and her mother had been in Australia;
f)as the social compensation fee could not be paid, the applicant would be unable to access basic services such as education and healthcare;
g)the applicant would suffer discrimination from the authorities and people generally as she was born out of wedlock, is the child a single mother, was unregistered and would live in a rural part of China;
h)the authorities would be concerned about the applicant and her mother, partly because they had made applications for protection;
i)if they returned to China, the applicant’s mother would be detained and questioned and the applicant would suffer harm because she would not be in her mother’s care; and
j)the applicant feared persecution on the grounds of:
i)her membership of a particular social group consisting of unregistered children;
ii)her membership of a particular social group consisting of children of single mothers;
iii)her membership of a particular social group consisting of her mother’s family;
iv)her actual and imputed Christian religion; and
v)her and her mother’s imputed political opinion, being opposition to the Chinese government as shown by her actual and imputed Christian religion and by her and her mother’s applications for protection in Australia.
The delegate’s decision
The delegate accepted that the applicant’s mother would not be able to pay the social compensation fee immediately upon her return. However the delegate considerate that the applicant’s mother would be able to pay the fee prior to the applicant reaching school age.
The delegate considered that there was no national health insurance scheme for children in China. Consequently, the delegate considered that the fact of the applicant being unregistered was irrelevant to her health care. The delegate considered that the applicant’s mother would be able to obtain any necessary health treatment for the applicant at a private clinic without excessive fees.
The delegate accepted that the applicant would face social stigma and discrimination on the basis of having been born out of wedlock. However, the delegate did not consider that these issues rose to the level of persecution.
The Tribunal’s decision
The Tribunal did not accept that the applicant’s mother was a Christian. The Tribunal found that the applicant’s grandparents would pay the social compensation fee applicable to the applicant. Consequently, the Tribunal concluded that the applicant would not be a member of the particular social group of unregistered children, and would have access to health care and education. The Tribunal considered that the applicant may experience low level discrimination by reason of having been born out of wedlock. However, the Tribunal did not accept that this would amount to serious or significant harm. The Tribunal did not accept that the Chinese authorities would impute the applicant or her mother with anti-government opinions. The Tribunal considered that the applicant might be separated from her mother while she was questioned by the Chinese authorities. However, the Tribunal did not accept that the brief separation for that purpose would amount to serious or significant harm.
Ground 1(a)
The first part of the first ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
(a)The Tribunal was obliged by section 424(1) to have regard to all the material and evidence in the applicant’s mother’s application, but it did not do so, referring instead only to a selection of the material before the earlier Tribunal, again contrary to the objection of the applicant’s representative. (Decision [35], [39], CB 261-262).
This ground arose from the Tribunal’s consideration of the applicant’s mother’s claim to be a Christian. The Tribunal noted that the applicant’s mother continued to claim that she was a Christian, notwithstanding that the Tribunal, differently constituted, had found that she was not a Christian. In addition, the Tribunal noted that:
a)the applicant’s mother initially told the Tribunal as presently constituted that she went to church once a week, but later said that she had not been to church for a long time;
b)the applicant’s mother said that the applicant, who was then about 18 months old, had not yet been baptised; and
c)the applicant’s mother said that she had not talked to the applicant’s father about her religion and did not know whether or not he was a Christian, even though she had been in a relationship with him during the period when the Tribunal as previously constituted had determined her protection visa application.
The Tribunal put to the applicant’s mother, pursuant to s.424AA of the Migration Act 1958 (“the Act”), that the Tribunal as previously constituted had found that the applicant’s mother was not a Christian. The Tribunal then said:
35.At the hearing itself the applicant’s representative suggested that the Tribunal should listen to the record of the hearing and make up its own mind. The Tribunal noted that it had both read the decision of the previously constituted Tribunal in relation to the applicant’s mother and has listened to parts of the recording of the hearing with that Tribunal. (emphasis added)
…
38.The hearing with the previously constituted Tribunal was almost 140 minutes long. There is nothing on the face of the decision record of the previous Tribunal that it made any adverse findings based on the applicant’s mother’s demeanour. At the hearing, this Tribunal remarked that it had not simply taken as a given that the previous Tribunal’s findings were correct. This Tribunal has taken the view that the information would be the reason or part of the reason for affirming the decision after both reading the decision of the previous Tribunal and some of the documents on that file, and listened (sic) to the hearing that Tribunal held. (emphasis added)
39.The Tribunal does not accept the proposition that it is not open to it to give any weight to findings made by a different member of the same Tribunal. The earlier decision of the Tribunal is a privative clause decision made in accordance with law. It is for an applicant to make out her case. In the absence of evidence (or new evidence) to the Tribunal that the applicant and her mother are Christians, it is open to the Tribunal to give weight to the findings of the previous Tribunal that the applicant’s mother is not a Christian.
In the circumstances, the applicant argued that the Tribunal had made a jurisdictional error by considering only parts of the recording of the hearing of the Tribunal as previously constituted in relation to the application by the applicant’s mother for a protection visa. The applicant argued that the Tribunal was obliged to listen to the whole recording of the previous Tribunal hearing.
The first respondent noted that s.424(1) of the Act provides that:
In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
The first respondent said that the Tribunal had got information, consisting of the file of the Tribunal as previously constituted in relation to the application by the applicant’s mother for a protection visa, and had had regard to it, in the sense of engaging with it in an active intellectual process.
That submission does not really engage with the applicant’s complaint that the Tribunal stated frankly in paragraph 35 of its reasons for decision that it had only listened to parts of the recording of the hearing before the Tribunal as previously constituted. Contrary to that admission, the Tribunal said at paragraph 38 of its reasons for decision that it had listened to “the hearing” before the Tribunal as previously constituted, implying that it had listened to the whole hearing.
However, assuming that the Tribunal did listen to only parts of the recording of the hearing before the Tribunal as previously constituted, it does not seem to me that the Tribunal thereby fell into jurisdictional error. It is for an applicant to put before the Tribunal such material as he or she wishes to rely upon. If an applicant wants the Tribunal to listen to a recording of a previous hearing, it is incumbent on the applicant to identify the relevant parts of the recording and explain why listening to those parts might have a bearing on the matters to be determined by the Tribunal.
In the present case, it appears from paragraph 35 of the Tribunal’s reasons for decision that it told the applicant’s solicitor during the course of the hearing that it had listened to parts of the recording of the hearing of the Tribunal as previously constituted. The Tribunal then gave the applicant an opportunity to provide post-hearing written submissions, which were provided.
There is no indication in the Tribunal’s reasons for decision, and no evidence before this court, that the applicant’s solicitor asked the Tribunal to listen to the whole recording rather than simply parts of the recording. It appears that the applicant’s solicitor did not pursue that particular issue at the hearing or in the post-hearing written submissions. In that context, it does not seem to me that the Tribunal can be faulted for not listening to the whole recording.
It should also be noted that the recording was two hours and twenty minutes long. While it is sometimes appropriate and necessary to listen to a recording of a Tribunal hearing that goes for many hours, that only needs to be done for good reason. It does not seem to me that, in this case, the applicant’s solicitor put a good reason to the Tribunal.
Section 424 of the Act requires the Tribunal to have regard to any information it gets. In this case, the Tribunal got the file of the Tribunal as previously constituted. It was sufficient for the Tribunal to read and listen to such parts of the file and recording as it considered relevant. That is especially so in circumstances where the applicant’s solicitor did not ask the Tribunal to look at particular parts of the recording and apparently did not submit that the Tribunal should listen to the whole recording of the hearing of the Tribunal as previously constituted after the Tribunal said it had listened to parts of the recording.
Ground 1(b)
The second part of the first ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
(b)The Tribunal did not consider what would happen if the applicant’s grandparents cannot or do not pay the large fee for the applicant to be registered under the laws of the PRC, and whether she would suffer denial of access to health care or education or other assistance such as to constitute persecution or significant harm.
This ground arises from paragraphs 95 to 97 of the Tribunal’s reasons for decision, which are as follows:
95.The Tribunal accepts that their situation may have deteriorated somewhat because the applicant’s grandmother might no longer be working and might have health problems. Nevertheless, the Tribunal finds that the applicant’s maternal grandparents would be able and willing to pay the fee. The Tribunal finds that the applicant’s grandparents’ financial situation is relatively comfortable – they sent the applicant to Australia to study and the Tribunal finds that when the applicant’s uncle applied for student visa to Australia, it was his grandparents who were going to pay the education expenses and the living expenses.
96.The grandparents live in a 3 bedroom apartment, which would be sufficient to accommodate the applicant and her mother, as the applicant’s uncle (the grandparents’ other child) had moved to another village according to the applicant’s mother’s evidence at the hearing.
97.The Tribunal does not accept that the applicant’s grandfather has ever had any problems with the authorities (as claimed in the applicant’s mother’s protection visa application) and that he is only making enough money to cover the family’s basic expenses and his wife’s medical costs. The Tribunal finds that the grandfather makes enough money to pay the applicant’s social compensation fee to enable her registration with the authorities. The Tribunal further finds that the applicant’s grandparents would know how to ‘navigate the system’ as they had three children of their own, that is, they breached China’s family planning laws. The applicant’s mother was child number two and she was registered as living with her parents.
Essentially, the applicant argued that the Tribunal should have applied the “what if I am wrong” test to the question of whether the applicant’s grandparents would pay the social compensation fee. However, there is nothing in the Tribunal’s reasons for decision that indicates that the Tribunal had the degree of doubt about the applicant’s grandparents’ ability and willingness to pay the social compensation fee that would have required the Tribunal to embark on a consideration of “what if I am wrong”.
Ground 1(c)
The third part of the first ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it failed to consider a relevant consideration, or an integer of the claim, or a material question of fact.
Particulars
(c)The Tribunal did not properly consider whether the PRC officials may suspect the applicant’s mother of making a claim for protection on some political or religious ground apart from the issue of the applicant’s birth outside marriage, and the consequences for the applicant of such suspicion, and of any consequent action against the applicant’s mother.
This ground arises in connection with paragraph 113 of the Tribunal’s reasons for decision, which is as follows:
Just because the applicant’s mother may be asked questions [by the Chinese authorities] about the present Protection visa application, it does not follow she will be asked or forced to disclose that she lodged an application previously on the basis of her claims to be a Christian, nor that she will be imputed with anti-government views. The Tribunal finds on the evidence that the Chinese authorities will not become aware that the applicant’s mother applied for protection previously.
The background to this paragraph is that the department required the applicant’s mother to obtain a passport for the applicant from the Chinese consulate in Australia, both before and after the applicant’s application for a protection visa was lodged. The Tribunal was very critical of the department for this conduct.
In any event, the applicant argued that the Tribunal did not consider a submission that the Chinese authorities may know that the applicant’s mother had previously applied for protection on religious or political grounds. However, the Tribunal squarely dealt with that submission by finding that the Chinese authorities would not become aware of the applicant’s mother’s previous application for a protection visa.
Ground 2
The second ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it considered an irrelevant matter.
Particulars
(a)The Tribunal erred regarding as evidence of the subject matter of the review the earlier findings of the Tribunal differently constituted for the review of the applicant’s mother’s matter, that:
“..according to the Tribunal (differently constituted) the applicant’s mother is not a Christian, has not attended church or Christian gatherings in China or in Australia, and she was never arrested or suffered any harm in China for reasons of her religion.”
(CB 261, Decision [34])
This ground concerned the Tribunal’s findings in relation to the applicant’s mother’s claim to be a Christian. The Tribunal set out in paragraphs 31 to 46 of its reasons for decision its consideration of this issue. The Tribunal noted the evidence relating to the issue and the submissions put by the applicant. The Tribunal said at paragraph 39 of its reasons for decision that it did not accept that it was not able to give any weight to the findings of the Tribunal as previously constituted. The Tribunal then concluded, in paragraph 45 of its reasons for decision:
Having considered
(a) the evidence the applicant’s mother’s (sic) gave to the present Tribunal that she has not been to church for a long time and that the applicant has not been baptised yet
(b) the inconsistencies whereby the applicant’s mother first claimed that she went to church weekly but then said that she was too busy looking after the applicant by herself
(c) the lack of detailed claims about the applicant’s mother’s alleged continued adherence to Christianity – there is only one general reference to Christianity in the statutory declaration;
(d) the findings of the previous Tribunal in the mother’s case that she is not and has never been a Christian; and
(e) the applicant’s mother’s lack of knowledge about the applicant’s father’s religion,
the Tribunal does not accept that the applicant is a Christian, that the applicant’s mother is or has ever been a Christian, that the applicant will be raised as a Christian, that the applicant’s mother has any intention of engaging in any Christianity related activities in China, (or) that the applicant or her mother will be imputed with being Christians by the Chinese authorities.
Clearly, the Tribunal did not accept as determinative the findings of the Tribunal as previously constituted regarding whether the applicant’s mother was a Christian. Rather, the Tribunal looked at all of the evidence before it, including the evidence given to the Tribunal as presently constituted, the evidence given to the Tribunal as previously constituted, and the findings of the Tribunal as previously constituted.
The Tribunal is not in the same position as a court. It is open to the Tribunal to have regard to the findings of the Tribunal as previously constituted, provided that the Tribunal independently makes up its own mind based on the evidence before it, and gives the applicant notice. The Tribunal did so in this case.
That approach is supported by the decision of Bennett J in the Federal Court in Cheung v Administrative Appeals Tribunal (2009) 176 FCR 20; (2009) 49 AAR 455; [2009] FCA 241. In that case, the Tribunal in 2001 considered whether the applicant’s injuries were work related and was called upon to consider substantially the same question in 2008. The court said at [66]:
The 2008 Tribunal was not bound to apply the 2001 Tribunal decision but did have a discretion to take the 2001 Tribunal decision into account. … The 2008 Tribunal was aware of the 2001 Tribunal decision but embarked upon its own determination in the light of fresh medical evidence and in the context of different reviewable decisions. (emphasis added)
That approach is also supported by decisions of this court. For example, in SZLQB v Minister for Immigration and Citizenship [2008] FMCA 1590, Barnes FM, as her Honour then was, said:
40.No error is established by the fact that in assessing the claims of the applicant based on his membership of his father’s family … the presently constituted Tribunal had regard to the findings and reasons of [a differently constituted Tribunal] when it considered his father’s claims made on that basis.
41.The Tribunal is not bound by earlier decisions or constrained by what was decided in earlier cases. However it was open for it to find that it would not reach a different conclusion to that reached by the differently constituted Tribunals in relation to what were essentially the same claims, albeit that it must make the decision on the information before it at the time of that decision and in relation to the applicant in question (Ibrahim v Minister for Immigration and Multicultural Affairs (2000) 60 ALD 465).
This court is obliged to follow those decisions unless satisfied they are plainly wrong. I am not so satisfied and I do follow them.
The present matter is readily distinguishable from MZZZW v Minister v Minister for Immigration and Border Protection & Anor (2015) 234 FCR 154; (2015) 328 ALR 433; (2015) 67 AAR 159; [2015] FCAFC 133, where the Tribunal adopted in a wholesale fashion the wording of the reasons for decision of the Tribunal as previously constituted in relation to the same applicant in a decision which was quashed. The Tribunal in the present case did not adopt the wording of the reasons for decision of the Tribunal as previously constituted at all, and the decision of the Tribunal as previously constituted in relation to the applicant’s mother’s protection visa application was not quashed.
In MZZZW, the Full Court of the Federal Court said at [67]:
What we have said should not be taken to cast doubt on the proposition that it is legitimate, and indeed in many cases, necessary, for a differently constituted tribunal to have regard to what occurred during any hearing or process previously conducted by a tribunal in relation to the same applicant.
In the present case, the hearing by the Tribunal as previously constituted did not concern the same applicant. However, the hearing by the Tribunal as previously constituted had a direct bearing on the present applicant’s claims, because she claimed to fear harm because her mother’s religion would be her religion.
Consequently, it seems to me that it was legitimate and necessary for the Tribunal in the present case to consider the hearing and process of the Tribunal as previously constituted. However, that is always subject to the overriding requirement that the Tribunal must apply its own independent mind to the questions in issue. As stated above, the Tribunal did that in this case.
While the Tribunal said in the present case that it had regard to the findings of the Tribunal as previously constituted, it is obvious that it had regard to the evidence on which those findings were based, including the hearing tapes, and the evidence before the Tribunal as presently constituted, and brought an independent mind to the question. Indeed, the Tribunal said at paragraph 38 of its reasons for decision:
At the hearing, this Tribunal remarked that it had not simply taken as a given that the previous Tribunal’s findings were correct. (emphasis added)
There is no reason to doubt that statement.
Ground 3(a)
The first part of the third ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
(a)The Tribunal erred in having regard to the earlier findings of the Tribunal differently constituted for the review of the applicant’s mother’s matter, that:
“..according to the Tribunal (differently constituted) the applicant’s mother is not a Christian, has not attended church or Christian gatherings in China or in Australia, and she was never arrested or suffered any harm in China for reasons of her religion.”
(CB 261, Decision [34])
The Tribunal erred in not having regard to this finding as a mere fact that there was a finding in another application, but as if those earlier findings were evidence of the matters with which they dealt, or even as if those findings disposed of the matter. It was the task of the Tribunal as constituted for dealing with the applicant’s application to make its own findings on material questions of fact, not to be led by or defer to another Tribunal member’s view of some of those questions.
For the reasons discussed above, the Tribunal did not fall into error by having regard to the findings of the Tribunal as previously constituted. It is also obvious from the Tribunal’s reasons that it did not treat the findings of the Tribunal as previously constituted as determinative of the question of the applicant’s mother’s alleged Christianity.
Ground 3(b)
The second part of the third ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
(b)The Tribunal found that a social compensation fee of 60% of annual average income in order to obtain registration for the applicant, is a not large enough to be serious harm for her;
This ground concerns the following paragraphs of the Tribunal’s decision:
92.On the evidence before it, the Tribunal considers that the applicant’s mother would be liable to pay a social compensation fee in relation to the applicant.
93.The Tribunal finds on the available country information that the applicant’s mother will not be liable to pay a separate fee for having a child while under the marriage age.
94.Based on the DFAT advice (see at [51]-[52] above), which is more recent than the CIRB advice, the Tribunal finds that the fee payable will be the lower amount somewhere between 5,267 and 8,779 RMB which is approximately $908 to $1,513.[1]
95.The Tribunal accepts that their situation may have deteriorated somewhat because the applicant’s grandmother might no longer be working and might have health problems. Nevertheless, the Tribunal finds that the applicant’s maternal grandparents would be able and willing to pay the fee. The Tribunal finds that the applicant’s grandparents’ financial situation is relatively comfortable – they sent the applicant to Australia to study and the Tribunal finds that when the applicant’s uncle applied for [a] student visa to Australia, it was his grandparents [it should say parents] who were going to pay the education expenses and the living expenses.
96.The grandparents live in a 3 bedroom apartment, which would be sufficient to accommodate the applicant and her mother, as the applicant’s uncle (the grandparents’ other child) had moved to another village according to the applicant’s mother’s evidence at the hearing.
97.The Tribunal does not accept that the applicant’s grandfather has ever had any problems with the authorities (as claimed in the applicant’s mother’s protection visa application) and that he is only making enough money to cover the family’s basic expenses and his wife’s medical costs. The Tribunal finds that the grandfather makes enough money to pay the applicant’s social compensation fee to enable her registration with the authorities. The Tribunal further finds that the applicant’s grandparents would know how to ‘navigate the system’ as they had three children of their own, that is, they breached China’s family planning laws. The applicant’s mother was child number two and she was registered as living with her parents.
[1] Conversion using on 28 July 2014.
…
104.The Tribunal considers that the imposition of the social compensation fee is not large enough to be described as amounting to serious harm (s.91R(1)(b)). Further, it will be paid by the applicant’s relatives, not the applicant herself. Finally, the fee would be payable pursuant to laws of general application (the Marriage Law of the People’s Republic of China together with the local Fujian regulations). The Tribunal finds that it would not be applied to the applicant’s family disproportionately compared to others who are subject to the same law. Enforcement of a law of general application does not ordinarily constitute persecution for the purpose of the Refugees Convention (Applicant A & Anor v MIEA & Anor (1997) CLR 225 per McHugh J at 258 referring to Yang v Carrol (1994) 852 F Supp 460 at 467) for the reason that enforcement of such a law does not ordinarily constitute discrimination. (Chen Shi Hai v MIMA (2000) 201 CLR 293 at [20]). As Brennan CJ stated in Applicant A [at 233]:
…the feared persecution must be discriminatory…..[It] must be ‘for reasons of’ one of [the prescribed] categories. This qualification…excludes persecution which is not more than punishment of a non discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non discriminatory cannot stamp the contravener with the mark of ‘refugee’.
The applicant argued that, in circumstances where a social compensation fee of 60% of average annual income had to be paid, or, if the relevant parent had a higher income, 60% of their higher income, then the Tribunal’s conclusion that the requirement to pay the social compensation fee was not serious harm could only have come about through a misunderstanding of the concept of serious harm.
That submission would have some attraction if the Tribunal had considered that the applicant’s mother would pay the social compensation fee. However, the way the system works, apparently, is that the fee is calculated by reference to the average salary for the region or the actual income of the relevant parent. In the present case, the applicant’s mother was the relevant parent. She said she would have a low income, as she could only work as a labourer. Therefore, it was reasonably open to the Tribunal to conclude that the social compensation fee payable in respect of the applicant would be at the lower level.
The Tribunal then concluded that the applicant’s grandparents would pay the fee. The Tribunal evidently considered that they were well off, not least because they had financially supported the applicant’s mother in Australia and had intended to support the applicant’s uncle while he studied in Australia.
In the circumstances of the applicant’s family, it seems to me that the Tribunal’s conclusion that a social compensation fee of 60% of average annual earnings was not serious harm was reasonably open to it, and was not indicative of a misapprehension of the concept of serious harm.
Ground 3(c)
The third part of the third ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it misunderstood the law or applied the wrong legal test.
Particulars
(c)The Tribunal found that the imposition of a social compensation fee in order to obtain for the applicant a hukou, is a (sic) not persecution as it is pursuant to a law of general application.
This ground concerns paragraph 104 of the Tribunal’s reasons for decision, which is set out above. In oral submissions, the applicant explained the ground further, saying that the Tribunal failed to appreciate that a law of general application can be persecutory because it is enforced or implemented in a discriminatory manner.
However, that submission ignores the Tribunal’s finding in paragraph 104 of its reasons for decision that:
The Tribunal finds that it [the law of general application requiring the payment of a social compensation fee] would not be applied to the applicant’s family disproportionately compared to others who are subject to the same law.
More generally, it may be that the law requiring the payment of a social compensation fee is “appropriate and adapted to achieving some legitimate object of the country”[2], being population control in a country in which, in living memory, 45 million people are thought to have starved to death in the space of three years.[3] In any event, there are numerous cases, which I follow, in which it has been held that a requirement to pay a social compensation fee is not persecution because it is a law of general application. Those cases include:
a)SZHFG v Minister for Immigration and Citizenship [2010] FCA 118 at [14] per Besanko J;
b)MZZTV v Minister for Immigration and Border Protection [2014] FCCA 1949 at [12] per Hartnett J;
c)SZSIJ v Minister for Immigration and Citizenship [2013] FCCA 295 at [37];
d)SZBXV v Minister for Immigration and Multicultural Affairs [2007] FMCA 28 at [65]ff;
e)SZUPI v Minister for Immigration and Border Protection [2015] FCCA 880 at [7]-[8]; and
f)SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FMCA 341 at [13].
[2] Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225 at 258 per McHugh J.
[3] Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [36].
Ground 4
The fourth ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it made findings with no logically probative evidence.
Particulars
The Tribunal rejected the claim that because the applicant was born outside the family planning laws and policies of the PRC the applicant will not be registered, and that this would prevent her from having access to benefits including education and health care, and would render her liable to other difficulties and discrimination. It did so because it found that the applicant’s maternal grandparents would pay the social compensation fee, a large sum, calculated as a multiple of yearly income. It did so after rejecting the applicant’s claims - made by her mother - of hostility or condemnation by her grandfather to the applicant’s conception and birth out of wedlock.
The Tribunal had no probative evidence to make a positive finding – without doubt or hesitation – that the applicant’s maternal grandparents could and would, without any doubt, pay for the applicant to be registered.
In oral submissions, the applicant argued that her mother had given evidence to the Tribunal that her parents were in straitened financial circumstances and the Tribunal did not reject that evidence. That is not so. The Tribunal noted various inconsistencies and inadequacies in the evidence given by the applicant’s mother about her relationship with her parents and their financial circumstances. It is clear that the Tribunal rejected the claims made by the applicant’s mother about her parents being in difficult financial circumstances. There was sufficient logically probative evidence on which to base that conclusion, namely, the grandparents’ willingness to support their son to study in Australia, and the applicant’s mother’s inconsistent, evasive and fabricated evidence.[4]
[4] For example, the Tribunal found that the applicant’s mother had “made up” the claim that her parents had disowned her (para 89).
Ground 5
The fifth ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that it acted so unreasonably that no reasonable Tribunal would so have acted.
Particulars
The applicant refers to and repeats the particulars to Ground 4 of this application.
It does not seem to me that the Tribunal’s conclusion that the applicant’s grandparents would pay her social compensation fee was so unreasonable that no reasonable Tribunal could have drawn it. The Tribunal was clearly unimpressed by the applicant’s mother as a witness, and gave adequate reasons for disbelieving aspects of her claims.
There was evidence from which it could be reasonably concluded that the applicant’s grandparents were well off and would be able to pay the social compensation fee in respect of the applicant. That evidence included the evidence regarding their support of the applicant’s mother in Australia and their willingness to support the applicant’s uncle while he studied in Australia.
Ground 6
The sixth ground of review in the application filed on 21 August 2014 and amended on 19 February 2016 is:
The Tribunal fell into jurisdictional error in that there was a reasonable apprehension that it was biased or a reasonable apprehension that it approached its task without an open mind.
Particulars
The applicant refers to and repeats the particulars to Grounds 2, 3 and 4 of this application.
The applicant confirmed in oral submissions that it was only apprehended bias that was being alleged. The applicant said that a fair minded and fully informed lay observer might have apprehended in this case that the Tribunal might not bring an open mind to the matter because the Tribunal had regard to the findings of the Tribunal as previously constituted and because the Tribunal had regard to only part of the recording of the hearing before the Tribunal as previously constituted.
As discussed above, it was open to the Tribunal to have regard to the findings of the Tribunal as previously constituted and it was open to the Tribunal to listen to that part of the recording of the hearing before the Tribunal as previously constituted that the Tribunal as presently constituted considered to be relevant. There was no reasonable apprehension of bias arising from the Tribunal doing so.
Conclusion
As none of the applicant’s grounds has been made out, the application must be dismissed with costs.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Judge Riley
Date: 28 October 2016
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