MZZGE v Minister for Immigration

[2018] FCCA 3546

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZGE & ORS v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 3546

Catchwords:
MIGRATION LAW – Appeal from decision of the Administrative Appeals Tribunal – whether Tribunal failed to apply the “real chance” test – whether Tribunal’s decision irrational – Tribunal not failing to apply the “real chance” test – decision not irrational – application dismissed.

Legislation:

Migration Act 1958, s.36(2)(aa)

First Applicant: MZZGE

Second Applicant: EGP18

Third Applicant: EPH18

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: MLG 185 of 2013

Judgment of: Judge Burchardt

Hearing date: 4 October 2018

Date of Last Submission: 4 October 2018

Delivered at: Melbourne

Delivered on: 5 December 2018

REPRESENTATION

Counsel for the Applicants: Mr Wood

Solicitors for the Applicants: Fragomen

Counsel for the First Respondent: Mr Tran

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The Application is dismissed. 

2. The Applicants pay the First Respondent’s costs fixed in the sum of $7,460. 

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 185 of 2013

MZZGE

First Applicant

EGP18

Second Applicant

EPH18

Third Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. By an amended application dated 21 August 2018, the applicants seeks judicial review of a decision of the then Refugee Review Tribunal

   
   

   (“the Tribunal”) dated 26 September 2012.  The Tribunal affirmed

   
   

   a decision of a delegate of the first respondent not to grant the applicants’ Protection (Class XA) visas.  It should be noted a number of earlier issues, including extension of time, have fallen away.

2. There is only one ground of application, which is:

   “The Tribunal erred by misconstruing or misapplying the definition of “refugee” in the Refugees Convention and therefore the criteria for a protection visa under s 36(2) of the Act or alternatively the Tribunal engaged in irrational reasoning.

   Particulars:

   a.    The first applicant, who is the mother of two children, claimed to have a well-founded fear of being subjected to forced sterilisation if she was returned to China and her home area of Fujian Province.

   b.    There was information before the Tribunal indicating that forced sterilisation did occur in China, and Fujian Province in particular, particularly for mothers of two children.

   c.     The Tribunal accepted that forced sterilisation did occur in Fujian Province.  However, the Tribunal found that “no recent information was found on forced sterilisation occurring in Fujian Province”.  On this basis, the Tribunal purported to find that it did not accept that there was a foreseeable chance that the first applicant would be subjected to forced sterilisation.

   d.    However, the evidence before the Tribunal noted that there was little reporting on the prevalence of forced sterilisation in China – one way or the other.  In light of the limited information, the most recent DFAT advice before the Tribunal stated that DTAF “cannot discount the possibility” of a woman being subjected to forced sterilisation.

   e.    Accordingly, the Tribunal has made one of at least two kinds of error; it has misunderstood or misapplied the “real chance” test; or its finding that there was not a “real chance” of the first applicant being subjected to forced sterilisation was not rationally open to it in light of the evidence before it and the other findings which it made.”

3. In circumstances where submissions to this effect are made, there is, in my view, no alternative but to examine what was before the Tribunal to enable the Court to form a view as to whether the Tribunal did or did not properly address the task before it.

4. The applicants’ application was for a Protection (Class XA) visa

   
   

   (the second and third applicants are wholly subsidiary to the primary applicant’s claim and need not be further considered).  The application is at CB11-25.  At CB18, she responded to the question, “What do you fear may happen to you if you go back to that country?” by saying:

   “1.    If I go back to China, According to the Chinese family planning regulation, both me and my partner are underage when we together and having our daughter, in this case, our daughter will be treated as early born, and will result a large sum of fine.

   2.  According to the Fujian family planning regulation, as we already have one child, we will not be allowed to have a second child, but I am pregnant at the moment, if i go back, I will be facing a forced abortion and then a forced tubal ligate, a young life will be killed before it even start, which is totally not humane and for sure against my will.”

5. A number of other matters were asserted, but these went to the prejudice that her first child would suffer for having been born out of wedlock.

6. At CB19 in response to the question, “Why do you think this will happen to you if you go back?”, the applicant responded:

   “from the current situation in China, and what the authority had done to people with similar situations.  the very same thing happened to my already, she was forced to have a educe abortion.”

7. The applicant’s husband’s application asserts similar claims as to the likelihood of a forced abortion and tubal ligation in the event of return to China (CB33).

8. The visa decision record of the departmental officer who considered the matter is at CB74-85.  The decision noted that the parents were born in Fujian in China and had commenced a de facto relationship in August 2008 in Australia, where they had both previously arrived as students, although they overstayed their visas.  The claims for protection are summarised at CB75 and, in my view, correctly paraphrase what the applicants had put in their visa applications.

9. The delegate found that the financial penalties or burdens that the couple might face as a result of having a child out of wedlock would be the result of the application of China’s family planning laws.  The delegate noted that these laws were of general application and that they were not selectively enforced for Convention reasons.  On that footing, the delegate dismissed the claims of the parents.

10. The delegate went on to consider the claim made on behalf of the applicant’s then existing child (the second child’s birth was only at that point awaited).  This aspect of the decision is not now relevant save that I note that at CB83 the delegate asserted:

    “Country information confirms that the implementation of family planning policies varies substantially from region to region [CX233649].  The adult applicants come from Fujian Province, and in my view, the available country information indicates

    
    

    a more relaxed attitude towards multiple child families on the part of authorities in Fujian than that found in some other parts of China.  The family planning regulations in Fujian indicate several circumstances in which parents of children born outside China may not be required to pay a social compensation fee.

    Country information indicates that very significant numbers

    
    

    of families in Fujian have two or three children [CX42323].”

11. I note that the delegate had considered country information, consistent with his observations, at CB81-82.  Some of that material is before the Court as annexure B to the affidavit of Shelli Frankel sworn 2 October 2018.

12. The applicants applied for a review before the Tribunal and their advisors’ submissions are at CB103-117.  At CB103, relevantly, the claim by the applicant that she would face a forced abortion and then tubal ligation if returned to China is repeated.  I note that it is asserted that her own mother had experienced this herself.  It is noted that even if the then due child (due in June 2012) was born in Australia, the new child would also be a black child and that this made the chance of persecution to the couple more likely. 

13. It should be noted that on CB104 under the heading “The Visa Application” the submissions say:

    “Basically, the fear is mainly outlined as follows

    1.  The couple are underage were underage when they start their relationship.  Their daughter, the secondary applicant Ms S (name omitted) was early born and out of wedlock according to Chinese family planning regulations.

    2.  Thus, the couple will be punished upon return to China.  The punishment includes large amount of social compensation fee.  The applicants do not have the capacity to pay for the reasonably foreseeable future. 

    3.  To enforce the collection of social compensation fee, it is likely that arbitrary and corrupt practice physical coercion of enforcement will seriously harm the applicant.”

14. Two further grounds relate to the question of black children and are not now pertinent.

15. The submission traversed family information at CB105-113.  There was reference a 2004 DFAT report at CB105:

    “The Family Planning Law in Fujian is regulated by a mixture of national, provincial and local laws and rules.  Enforcement is by local authorities and evidence suggests that some local governments enforce family planning laws more vigorously than others.  This has created a patchwork of different rules and enforcement across the province.  Family planning rules are more strictly enforced in the larger cities, such as Xiamen and Fuzhou, than in the poorer countryside… In general, however, Fujian has one of the least coercive family planning regimes in China.”

16. At CB109-110 the country information traversed the question of forced abortion or sterilisation, and noted at CB110 Article 18 of the Fujian Provincial Government 2002 Population and Family Planning Regulation of Fujian Province, which inter alia required “those who have become pregnant in violation of this regulation should take remedial measure in time”.

17. I should say it seems clear from the material before the Court that “remedial measures” is a term widely used synonymously with compulsory abortion (see page 6 of the affidavit of Farid Varess filed

    
    

    1 October 2018).

18. Country information in relation to Fujian also noted a 2007 US Department of State report, which relevantly stated (CB111):

    “Consulate General officials visiting Fujian have found that coercion through public and other pressure has been used, but they did not find any cases of physical force employed in connection with abortion or sterilization… In interviews with visa applicants from Fujian, representing a wide cross-section of society, Consulate General Officers have found that many violators of the one-child policy paid fines but found no evidence of forced abortion or property confiscation”.

19. The written submissions, in my view, concentrated on matters primarily other than abortion or sterilisation, but there is no question that the risk of this occurring was stated in plain terms in the submissions at CB116.  The submission did, however, relevantly state:

    “… The country information tends to indicate that the authorities in Fujian province may be less likely than those in some other parts of the country to employ such coercive measures, but the information is not unequivocal.  The information indicates that the pressures on officials are such that coercion may be exercised through imposition of fines, and the level of fines, even if there would be less prospect of physical coercion.  Especially at her age and with her lack of support, therefore the applicant has a well-founded fear of harm in the form of “forced” abortion and sterilisation.  Even if it is arguable that the process of abortion/sterilisation is legitimate law enforcement in China under family planning regulations, therefore people suffered forced abortion/sterilisation were not members of a particular social group for Convention purposes, as it is obvious a ‘Cruel or inhuman treatment or punishment’, the complementary protection should be offered to them.”

20. The Tribunal’s decision is at CB219-248.

21. The Tribunal traversed the relevant law at CB220-222.  At paragraph 14 on CB221 the Tribunal relevantly observed:

    “Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a ‘well-founded’ fear of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”

22. I observe in passing that this encapsulation of this law sits comfortably with the submissions made by the applicants’ counsel in this case.

23. The Tribunal paraphrased the delegate’s decision at CB224-225, and

    
    

    I note that at paragraph 36 the Tribunal recorded:

    “The country information indicates that very significant number of families in Fujian have two or three children.  The delegate found that based on this country information the applicant’s family composition is indistinguishable from a larger part of the population in Fujian Province.  In the circumstances the delegate was not satisfied that the child applicant would experience discrimination, threats or harassment amounting to persecution from the local authorities.”

24. At paragraph 41, when describing what was said at the review hearing, the Tribunal noted:

    “On 16 May 2012 the applicants’ migration provided lengthy written submissions and country information regarding family planning policy of China.  The agent also made claim for a protection visa on complementary protection grounds.  The agent claimed that forced abortion and tubal ligation amounts to “torture, or cruel or inhuman treatment or punishment” and the denial of access to basic services amounts to “degrading treatment or punishment”.”

25. At paragraphs 58-59 the Tribunal recorded the following extract of the applicant’s evidence (CB228):

    “58.  The Tribunal asked the applicant what harm she feared if she was to return to China.  The applicant said if she returned to China she would have two children and this would be in breach of the Chinese family planning laws.  She will not be able to afford to register her children and will have to pay high fines.  She fears that if her children are unable to obtain household registration this will jeopardise their ability to attend school and have access to medical treatment. 

    59.    She is also fearful because the two children were conceived out of wedlock.  She fears that the Chinese authorities will force her to have an abortion and she will be sterilised because she has more than one child.

26. It should be noted in passing that much of what is recorded by the Tribunal had to do with issues relating to the applicant and her partner’s student visas, rather than the issues with which the Court is now concerned.

27. The Tribunal set out country information at CB230-239.  It should be noted that much of this was to do with the applicant and the related applicants’ claims of possible persecution arising out of their children being born out of wedlock.  At paragraphs 98-104, the Tribunal dealt with the question of forced sterilisation and abortion (CB237-239).  At paragraphs 98-99, the Tribunal recorded:

    “98.  Forced sterilisations allegedly continue to occur across China, but the prevalence of this is uneven.  In April 2009, the Department of Foreign Affairs and Trade stated that there is little, if any, media reporting in China on this issue of forced sterilisation, and went on to state that although Post cannot discount the possibility of forced sterilisation, Post has the impression that it is not a widespread practice.  Similarly, the 2010 Freedom in the World Report – China reports that the practice is less common than in the past, however, the report goes on to state that compulsory… sterilisation… still occurs fairly frequently.  A more critical view is presented in the 2010 Chinese Human Rights Defenders Report which states that forced/coerced sterilisations continue to occur but that this occurs unevenly:

    Women and (less often) men are urged by family planning officials to be sterilised once they have reached their birth quota.  Again, the application of forced sterilisation is uneven across the country and is dependent upon the discretion of the particular family planning officials.”

28. The Tribunal noted that the most significant report of systemic sterilisation in recent times came from Guangdong Province in April 2010 (paragraph 100, CB237).  The Tribunal noted that the reports as to that particular campaign were conflicting.  At paragraph 102, the Tribunal recorded:

    “Information has been located which indicates that the nature and scale of this sterilisation program undertaken in Puning was highly unusual.  There is also information indicating that the campaign was initiated in response to the particular conditions of Puning, where the enforcement of the family planning policies had grown lax.  The Marie Claire report states that the Puning sterilisation campaign “was unprecedented in recent Chinese history” and that, while forced sterilisation was an abuse associated with the one-child policy since its introduction in 1978, “this was a crackdown on an unusually large and draconian scale”.”

29. At paragraphs 103-104 (CB239), the Tribunal stated:

    “103.    The Population and Family Planning Regulation of Fujian Province does not explicitly state that mandatory abortion or sterilisation is required for out of plan births.  Article 18 of the Regulations states that individuals who have unauthorised pregnancies should “take remedial measure in time” and that local committees “should urge them to take remedial measures in time”.  The Regulations do not however provide further information as to what constitutes “remedial measures”.  As noted previously, the US Congressional-Executive Commission on China’s Annual Report 2010 states that mandatory abortion is often referred to as “remedial measures” in government reports.  In contrast, older DFAT advice from 2004 states that “Fujian’s provincial regulations on population and family planning do not impose compulsory abortion or sterilisation for people with a history of out-of-quota births, but rather observe that guidance on birth control methods and family planning should be available to all to prevent out-of-quota births.

    104.  There have been some reports of incidents of forced sterilisations and abortions occurring in Fujian Province in recent years (2007-2009).  However, no recent information was found in the sources consulted on the prevalence of forced sterilisation and abortion within the province as a whole.  According to 2004 DFAT advice, while forced abortions and sterilisations occurred in Fujian province at that time, such measures were much less common than in the 1980s.”

30. The Tribunal paraphrased the summary of claims at paragraphs 107-109 (CB239-240), and I only pause to observe that while the Tribunal was clearly aware of the claim that the applicant would face a forced abortion and tubal ligation if returned to China, this was but one of the various claims proffered and not put at the forefront of the applicant’s case.  This is not to suggest that the claim did not require proper consideration, but it needs to be noted that it was in this context that it was pressed.

31. At paragraphs 114-116, the relevant kernel of the decision is set out (CB241) in the following terms:

    “114.     The first named applicant fears she will be forcibly sterilized because she has had more than one child.  In assessing the applicant’s claim the Tribunal has had regard to the country information referred to above.  The Tribunal finds that while independent information reveals that Family Planning regulations do not require compulsory sterilisation in Fujian for people who have out of plan children, the regulations do make reference to unspecified “remedial action” to enforce family planning laws.

    115.  The Tribunal notes that Amnesty International have reported in April 2010 on local authorities plans to sterilise up to 10,000 people in Puning City, Guangdong Province in southern China.  The Tribunal notes that the sterilisation campaign was highly unusual and unprecedented in recent Chinese history and has been distinguished from other provinces in China.

    116.  The Tribunal accepts that there have been reports of forced sterilisation do occur in the Fujian Province in 2009.  However, the country information assessed by the Tribunal does not suggest that forced sterilisation is a standard procedure within Fujian province.  The Population and Family Planning Regulation of Fujian Province does not explicitly state that mandatory abortion or sterilisation is required for out of plan births and that needs to be distinguished from other parts of China.  While accepting that forced sterilisations do occur, the Tribunal finds that based on the country information consulted no recent information was found on forced sterilisations occurring in Fujian province.  Having regard to the country information, the Tribunal does not accept that there is a foreseeable chance the applicant will face sterilisation if she returns to Fujian province in China in the reasonably foreseeable future.”

1. The Tribunal made a similar finding at paragraph 148 (CB246) in relation to the applicant’s claim under the complementary protection obligation in s.36(2)(aa) of the Migration Act 1958 in respect of the claim of possible sterilisation.

2. As perhaps already indicated, the Court has been provided with tranches of the country information that was apparently before the Tribunal.  These are respectively annexures A, B and C to the affidavit of Mr Varess and annexures A and B to the affidavit of Ms Frankel.  As foreshadowed during the hearing, I have read these materials.  All of it makes dispiriting reading and some of it is both distressing and unpleasant.  Of the 16 disturbing cases referred to in annexure B to

   
   

   Mr Varess’s affidavit covering dates, it would appear, from 1981 till 2009, one is from Fujian Province.

3. Annexure B to the affidavit of Ms Frankel, being the DFAT report from 2 September 2004, relevantly states:

   “B.    We understand that compulsory abortions and sterilisations occur in Fujian, but that such measures are much rarer than in the 1980s.  Fujian’s provincial regulations on population and family planning do not impose compulsory abortion or sterilisation for people with a history of out-of-quota births, but rather observe guidance on birth control methods and family planning should be available to all to prevent out-of-quota births.  Furthermore, in present day China, particularly in provinces such as Fujian and Guangdong, sanctions relating to family planning can be avoided through payment of a fee to local authorities, parts of which may be both above and below the table.  Such fees are generally not excessive by middle-class Chinese standards, though fees vary from locality to locality.”

4. It should be noted that this response replied to questions which included a number of serious concerns on the Tribunal’s part, set out at pages 7 and 8 of Ms Frankels’s affidavit.

5. Annexure A to Ms Frankel’s affidavit is the DFAT report dated 28 April 2009 providing information about fines for those who had breached the one child policy in Fujian Province, but it did refer to a mother ordered to have an abortion which was put off by payment of a bribe.  However, the father was ordered to undergo forced sterilisation.

6. The report noted that Post could not confirm the veracity of the claims made on the websites they had consulted, and it is not possible to avoid amusement at the last paragraph of the response.

7. In the end, the differences between the parties can be boiled down to this.  Did the Tribunal properly consider the real chance test and/or did the Tribunal arrive at a conclusion that was unsupportable on the evidence that was made?  Usurpingly, the applicant says yes and the first respondent says no.

8. The primary point pressed by the applicant in written submissions is that the Tribunal found that forced sterilisations do occur in Fujian, that there was no evidence one way or the other since 2009 and that the Tribunal had not found that there was evidence of recent absence of forced sterilisations.  I accept, I should say in passing, the submission at paragraph 21 that it is a logical fallacy to confuse absence of recent evidence with evidence of recent absence, as set out at paragraph 22 of the applicants’ written submissions.  That is not, however, the end of the matter. 

9. Here, in the ultimate, there are two things to be said, in my opinion.  First, I do not accept that the Tribunal failed to apply the real chance test.  The Tribunal set the test out in terms at paragraph 14 of its ruling, and there is nothing, taking the decision fairly and as a whole, that suggests that the Tribunal was not aware of the real chance test and failed to apply it.

10. The real question is whether the finding was one open on the evidence.  The Tribunal did not accept, of course, that sterilisations occurred in Fujian Province in 2012, the time at which it was considering the matter.  The Tribunal accepted that there was evidence of some sterilisations in the period 2007 to 2009.  The Tribunal was obliged to consider this evidence in accordance with other evidence, much of which went to the evasion of the consequences of the one child policy by the payment of fines.  The Tribunal’s decision might have been expressed more clearly, but, in my view, the correct characterisation is that contended for by the first respondent.  The Tribunal’s central finding, was:

    “… While accepting that forced sterilisations to occur, the Tribunal finds that based on the country information consulted, no recent information was found on forced sterilisations occurring in Fujian province.  Having regard to the country information, the Tribunal does not accept that there is a foreseeable chance the applicant will face sterilisation if she returns to Fujian province in China in the reasonably foreseeable future.”

11. The country information, of course, also included that forced sterilisation was not a standard procedure within Fujian Province, nor that mandatory abortion or sterilisation was required for out-of-plan births and that this needed to be distinguished from other parts of China.  I accept that the matter is one capable of being looked at in more than one way, but looking at the Tribunal’s decision fairly and as a whole, it seems to me that the Tribunal found that although sterilisations had occurred, and might still continue to occur, the applicant’s chance of being forced to undergo one did not amount to a real chance in the requisite sense.  In substance, this was a factual finding that it was open to the Tribunal to make.  It does not follow from the fact that a sterilisation or sterilisations had occurred in some indeterminate number in Fujian Province that it necessarily followed, without more and without qualification, that every person returned to Fujian Province faced a real chance of sterilisation.

12. While skilfully put, in the ultimate, I think that the better analysis of the applicant’s case is one of disagreement with a factual conclusion reached by the Tribunal’s decision and constitutes merits review.  The application must be dismissed with costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 5 December 2018