MZYWF v Minister for Immigration - [2012] FMCA 716

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYWF & ORS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 716

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming persecution in China on account of the Chinese one child policy – applicants’ fears found not to be well-founded – no arguable case of jurisdictional error – observations on the operation of s.91R(3) of the Migration Act 1958 (Cth) in relation to children born in Australia.

PRACTICE AND PROCEDURE – Observations on the desirability of a preliminary hearing where legal issues not apparent on the face of an application.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A, 425

First Applicant:

MZYWF

Second Applicant:

MZYWG

Third Applicant:

MZYWH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 278 of 2012

Judgment of:

Driver FM

Hearing date:

16 August 2012

Delivered at:

Sydney

Delivered on:

16 August 2012

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents:

Ms S Zowghi
Clayton Utz

INTERLOCUTORY ORDERS

The Court directs that the names of the applicants are not to appear on the transcript of the hearing.
The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The second and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules 2001 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

MLG 278 of 2012

MZYWF

First Applicant

MZYWG

Second Applicant

MZYWH

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me a show cause application filed in the Melbourne registry of the Court on 13 March 2012. The application seeks review of a decision of the Refugee Review Tribunal (the Tribunal) made on 15 February 2012. The Tribunal affirmed decisions of a delegate of the Minister not to grant the applicants protection visas. There are three applicants. The second applicant, who is the mother of the first applicant, arrived in Australia from China (Fujian Province) on 5 September 2006. The third applicant arrived in Australia from China on 11 February 2007. Their son, the first applicant, was born in Australia on 10 July 2010. All three applicants applied to the Minister’s Department for protection visas on 23 November 2010.
The Minister’s delegate refused that application on 15 April 2011. The applicants applied to the Tribunal for review of that decision on 11 May 2011. The applicants claimed protection on account of the Chinese one child policy. The issue is conveniently summarised at [21] of the Tribunal’s reasons[1]:
The first named applicant was born on 10 July 2010 in Melbourne to Chinese citizen parents, who are included in the visa application. In a statement from the second named applicant … dated 23 September 2010 she claims that her partner, the third named visa applicant …, was injured in a work accident on 10 July 2010 and on hearing the news she went into labour and their son was born that day. She claims that they will be unable to pay the social compensation fees to have their child registered in China because he was born out of wedlock and before the were of marriageable age. In this regard she claims that they owe people money for medical expenses her husband incurred following his accident and to cover the cost of her emergency caesarean. She claims that her partner’s parents have rejected their grandson, blaming him for bringing bad luck to their son, and they would be forced to separate on return to China. As a result she and her son will face discrimination in China. [The second applicant] claims that her own parents are farmers and are in debt. She also claims that her parents believe she has humiliated the family by giving birth outside wedlock and at a young age. As such she will not be supported and she will be discriminated by others.
[1] court book (CB), page 214
The applicants’ fear was confirmed in writing by the second and third applicants on 23 July 2011, as set out at [25] of the Tribunal’s reasons[2]. The Tribunal was unable to make a favourable decision on the papers and invited the applicants to a hearing pursuant to s.425 of the Migration Act 1958 (Cth) (the Migration Act). The applicants appeared on 2 August 2011 and the second and third applicants gave evidence and presented arguments. The Tribunal had concerns about some aspects of the applicants’ evidence. The Tribunal wrote to the applicants on 30 September 2011, pursuant to s.424A of the Migration Act, inviting comment on what the Tribunal thought might have been untruthful evidence by the second applicant about an apparent visit from her sister while the third applicant was hospitalised as a result of his accident. The second applicant had denied her sister visited the hospital but hospital records disclosed such a visit. The applicants provided an explanation which was ultimately accepted by the Tribunal at [93] of its reasons[3]:
The applicant parents claim they will not be able to afford the social compensation fees and their parents will not help them pay the fees. [The second applicant] claims that her parents will refuse to help her out financially because they do not accept her relationship. At the hearing she claimed that she has had no contact with her sister in Australia for two years, she thinks because their mother told her sister to have no contact with her because she has ruined the family’s reputation. As put to [the second applicant] in its letter dated 30 September 2011 and to all the applicants in its letter dated 14 December 2011, the Tribunal notes that this is inconsistent with Mitcham Hospital’s patient records which show her sister as next of kin and that she visited [the second applicant] during her time in hospital. However, based in part on the letter provided by [the second applicant’s] friend, Mei Wang, in response, the Tribunal accepts that Ms Wang pretended to be [the second applicant’s] sister at the time and the Tribunal does not draw any adverse conclusions about these circumstances in relation to the protection visa claims being assessed.
[2] CB 214
[3] CB 231
The Tribunal wrote a second time pursuant to s.424A of the Migration Act on 14 December 2011[4]. That letter raised, among other things, concerns the Tribunal had about the applicants’ evidence concerning their fears of a lack of parental support. The Tribunal ultimately formed the view that while the parents of the second and third applicants might have some concerns about their relationship, as they were unmarried, and about the birth of their child out of wedlock, they would not reject the child and would not withhold assistance in payment of the social compensation fee required pursuant to the Chinese one child policy.
[4] CB 195
The Tribunal further summarised the applicants’ claims at [92] of its reasons[5]:
The applicant parents claim, on behalf of the first named applicant, that because their son was born out of wedlock and when they were under the marriage age, they will be required to pay social compensation fees to register their son on return to China, which they cannot afford and their parents will not help them. As a consequence, their son will face discrimination and be unable to access health, education and other social services in China. They also claim to fear persecution in the form of serious discrimination because their son was born out of wedlock and this is contrary to the social norms in China.
[5] CB 230
Having considered all of the available material, the Tribunal concluded that the first applicant would not suffer persecution in China because his parents, with the assistance of their parents, would be able to pay the social compensation fee and that, upon payment of the fee and registration of the birth, and on the basis that he would be living with his parents, no harm would come to the first applicant. The Tribunal further reasoned that the second and third applicants would not come to harm in China amounting to persecution under the Convention because the Chinese one child policy is a law of general application and it would not be applied in a selective or discriminatory manner against the second and third applicants. The Tribunal reasoned that, notwithstanding the third applicant’s accident which injured his leg and notwithstanding the second and third applicants’ assertions about a lack of parental support from their parents, they would, with the support of their parents, be able to pay the required social compensation fee over time.
These proceedings began with a show cause application filed on 13 March 2012. The applicants continue to rely upon that application. The grounds in that application are:
1. Independent reviewer made the decision did not base on the fact.
2.The doubt by Tribunal does not base on the fact and my current situation.
3.My strong compassionate circumstances should be concerned.
The matter came before a registrar of the Court in Melbourne on 4 April 2012, who made the following orders:
1.Pursuant to rule 44.11 (c) a hearing under rule 44.12 be dispensed with and the application for an extension of time and application for judicial review be listed for final hearing.
2.The first respondent file two copies and serve one copy of the court book by 1 June 2012.
3.By 19 July 2012, the applicant file and serve:
a)     an amended application, if any;
b)     a supplementary court book, if any; and
c)      written submissions
4.By 16 August 2012, the first respondent file and serve written submissions.
5.The application for judicial review be fixed for final hearing before Federal Magistrate O’Dwyer on 23 August 2012 at 10:00am.
6.Costs be reserved.
Order 1 was problematic because, in my view, the state of the application called for a show cause hearing and secondly, the applicants had not sought and did not require an extension of time for their application as it was filed within the period prescribed by s.477(1) of the Migration Act. Prior to the hearing provided for on 23 August 2012 the applicants relocated from Melbourne to Sydney. As a consequence of that relocation, the parties presented the Court with consent orders which were made by O’Dwyer FM on 2 July 2012:
1.Orders 3, 4 and 5 of the Court’s orders date 4 April 2012 be vacated.
2.The hearing listed for 23 August 2012 at 10.00am before O’Dwyer FM be vacated.
3.Unless the applicants otherwise notify the Court by filing a Notice of Address for Service, the applicants’ address for service is ….
4.Pursuant to r.11.11(1) of the Federal Magistrates Court Rules 2001 (Cth), on the Court’s own motion, the Court appoints the second applicant, MZYWH, as the litigation guardian of the first applicant, MZYWF.
5.Pursuant to s.52(2) of the Federal Magistrates Act 1999 (Cth), the proceeding is to be continued at the Sydney registry of the Court and is to be removed from the docket of O’Dwyer FM.
6.Direct that the Victorian District Registry forward to the Sydney Registry, with a request that the parties be notified of an appointment for directions before the Court in Sydney.
7.The first respondent must serve a copy of these orders on the applicants and provide the applicants with the details as to the location and contact details of the Court in Sydney, and warn the applicants that the application filed on 13 March 2012 may be dismissed if the applicants do not appear at any listings of which they receive notice.
8.Costs reserved.
The matter came before me for further directions on 15 August 2012. At that time the applicants confirmed that they did not wish to amend their application. I ordered that order 1 made by the registrar on 4 April 2012 be vacated and that the matter be listed for a show cause hearing pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth) (Federal Magistrates Court Rules) today.
The three applicants attended Court today and the second and third applicants made oral submissions. I received as evidence the court book filed on 29 May 2012 and the affidavit purportedly made by all three applicants (but apparently made by the second applicant) on 13 March 2012. It is clear that the second and third applicants are dissatisfied with the outcome of the review by the Tribunal. They appear to be genuinely concerned about the welfare of their child and themselves should they be required to return to China.
The Tribunal itself did not dispute the genuineness of the applicants’ fear but found that that fear was not well-founded. Unfortunately for them, the applicants are not able to present any arguable case of jurisdictional error by the Tribunal. The Tribunal met its obligations under s.425 of the Migration Act to invite the applicants to a hearing. That hearing appears to have been a fair one. The Tribunal also met its obligations pursuant to s.424A of the Migration Act to invite comment upon adverse information that the Tribunal thought might play a role in the resolution of the review. I am satisfied that the Tribunal considered all elements or integers of the applicants’ claims. The conclusions reached by the Tribunal on those claims were available to it on the material before it.
The applicants contend that their circumstances call for strong compassionate consideration. Had the Tribunal decision been made after 24 March 2012 the Tribunal would have needed to have given consideration to the issue of complementary protection. However, the decision was made a month in advance of the commencement of those provisions. Any further consideration of the applicants’ claims is a matter for the Minister.
It is of some interest that the applicants’ claim is a sur place claim. The applicants’ fear derives from the birth of their child (the first applicant) in Australia. Section 91R(3) of the Migration Act requires decision-makers to disregard conduct engaged in in Australia unless satisfied that conduct was engaged in for a reason other than to enhance protection claims:
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
One can envisage circumstances in which a decision maker might not be satisfied that the conduct of applicants in having a child in Australia was engaged in for a reason other than to enhance (or indeed to create) protection claims. In that event, the decision maker would be required to disregard that conduct. How the section could be applied to a child himself or herself as an applicant I am uncertain. That is because the relevant conduct is that of the parents, not the child. The present Tribunal’s decision was entirely silent on that issue. I infer from that silence that the Tribunal was satisfied that the second and third applicants had their baby for a reason other than to engage Australia’s protection obligations.
I find that the applicants have failed to establish an arguable case of jurisdictional error by the Tribunal. I will therefore order that the application be dismissed pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules.
In consequence of the dismissal of the application, the Minister seeks an order for costs in accordance with the Court scale. The second applicant asked if the costs could be reduced. I am satisfied however, that costs well in excess of the scale amount have already been incurred on behalf of the Minister. I see no reason to depart from the Court scale. I will order that the second and third applicants are to pay the first respondent’s costs and disbursements of and incidental to the application in the sum of $3,239 in accordance with rule 44.15(1) and item 1(b) of part 2 of schedule 1 to the Federal Magistrates Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 17 August 2012