SXJB v Minister for Immigration
[2005] FMCA 1536
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SXJB & ORS v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1536 |
| MIGRATION – Protection visa applications – findings on critical issue when no evidence available to ground findings – “black child” – s.91R(1) and s.91R(2). |
| Migration Act 1958 (Cth), ss.483A, 476, 353(2), 65, 36(2), 91R, 91S Judiciary Act 1903 (Cth), s.39B |
| SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24 Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 SFGB v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAC 231 Minister for Immigration & Ethnic Affairs v Guo 191 CLR 559 Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD Aala v Minister for Immigration & Multicultural Affairs [2002] FCAFC 204 SFGB v Minister for Immigration & Multicultural Affairs Minister for Immigration, Multicultural & Indigenous Affairs v SGLV (2004) 207 ALR 12 |
| Applicant: | SXJB & OTHERS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | ADG 41 of 2005 |
| Judgment of: | Lindsay FM |
| Hearing date: | 30 May 2005 |
| Date of Last Submission: | Nil |
| Delivered at: | Adelaide |
| Delivered on: | 16 December 2005 |
REPRESENTATION
| Counsel for the Applicants: | Mr S Ower |
| Solicitors for the Applicant: | Refugee Advocacy Service of SA Inc |
| Counsel for the Respondent: | Mr M Roder |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That a writ of certiorari issue directed to the First Respondent quashing the decision of the First Respondent dated 3 June 2002 as it relates to the First Applicant in matter number VO1/13085.
That a writ of mandamus issue directed to the First Respondent requiring the First Respondent to determine according to law the applicant for review of the decision of the delegate of the Second Respondent dated 3 July 2001 as it relates to the First Applicant.
That a writ of prohibition issue directed to the Second Respondent requiring her whether by her servants, agents or howsoever from acting upon or giving effect to or proceeding further upon the decision of the First Respondent dated 3 June 2002 in matter number VO1/13085 as it relates to the First Applicant.
That the applications as they relate to the Second and Third Applicants do stand dismissed.
That there be liberty to apply as to the form of the orders or as to any consequential matter.
That the respondent have 42 days to file and serve written submissions as to matters grounding issues as to costs and that the applicant have 14 days to file and serve a response.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SOUTH AUSTRALIA |
ADG 41 of 2005
| SXJB & OTHERS |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks relief by way of judicial review of a decision of the Refugee Review Tribunal made on 3 June 2002. The application in its further amended form was filed on 28 April 2005. The decision of the Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are a married couple and their child.
Consistent with the decision of the High Court in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs (2005) HCA 24, I joined the Tribunal as a party to these proceedings.
Section 483A gives the Court the same jurisdiction as the Federal Court in relation to a matter arising under the Migration Act. The relevant jurisdiction in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Pt 8 of the Migration Act. As interpreted in Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476 at [76], and in subsequent cases the limitations have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for protection visas.
The application for a protection visa is made by the husband. The Migration Act contains provisions pursuant to which family members are derivatively entitled to a protection visa on the basis that they are members of the same family unit as an applicant who is found to be a refugee. The applicant child has also made a specific claim for a protection visa.
This matter essentially concerns the decision as to whether or not the husband and the child are entitled to protection visas. I have determined that the claim of the applicant husband should be upheld for the reasons set out hereunder. I have determined that the discrete claim for the issue of constitutional writs by the child should be refused for the reasons set out hereunder. I will deal firstly with the application of the husband. He will be referred to hereunder as “the applicant”. The applicant child will be referred to as “the child”.
The reasons for decision of the Tribunal canvass the many aspects of the applicant’s claim for a protection visa. The Tribunal came to the conclusion that the applicant was not a credible or reliable witness and that he had submitted some false documents in support of his claim (he admitted this) and he also conceded that some of his claims were untrue. The Tribunal found that he had fabricated significant parts of his story and had exaggerated other parts. It will be unnecessary for me to canvass these matters in any detail because the applicant put forward before me proceeded on the basis of a single complaint in relation to one aspect of the Tribunal’s reasons.
The applicant arrived in Australia with his wife and young son on 1 March 2001. The application for protection visa was lodged by the applicant on 14 March 2001.
The applicant and his family are nationals of China. They travelled to Australia on valid Chinese passports.
The applicant joined the Chinese navy in 1974. He served in the navy for over 20 years. He joined the Chinese Communist Party in 1975 and was a senior party member for over 26 years. He transferred to civilian work in 1994.
He claims that he was assisted by friends in the navy to flee China. In the summer months from 1987 to 1990 he was engaged in construction work in the Nansha Islands. In 1987 he had taken three confidential documents relating to political issues from material relating to his work in the navy. He still possesses those documents. He produced them to the Tribunal. He said that the removal of the documents was discovered in 1990. He was punished by being demoted and transferred to civilian operations in the navy. He sought to link these documents to a recently published account of events relating to the Tiananmen Square massacre in 1989. The Tribunal did not accept the applicant’s claim that Chinese authorities had shown a renewed interest in these documents and in particular did not accept that he would be punished again for the removal of these documents.
However the applicant has in his possession further classified military information which he obtained during his period in the Nansha Islands. He attempted to use these documents as a bargaining tool at the time of his initial application for a protection visa. He claims that his taking of the confidential documents has been widely published in the Chinese media. The Tribunal found that his motivation in taking the documents out of China was to promote his own interests and was not a reflection of a political opinion opposed to the Chinese regime. Specifically the Tribunal rejected the applicant’s claim that he was approached whilst in Australia by someone from the Chinese Embassy in relation to these documents.
The critical part of the Tribunal’s reasons appears at page 286 of the Court Book. It is the only passage claimed by the applicant to give rise to jurisdictional error. It is said that the passage constitutes a constructive failure to exercise jurisdiction.
I set out the passage in full.
“The Tribunal accepts that taking national security information, removing it from the country and offering it to a foreign government in exchange for a protection visa would be a serious offence, regardless of whether the material was of any current value to the other government. The Tribunal accepts that if the applicant were to return to China and his actions were to be discovered he would be punished, possibly quite severely. However, as discussed with the applicant at the hearing, the law relating to the protection of classified military information is a law of general application which applies to all Chinese nationals entrusted with access to such material. In Applicant A & Anor v Minister for Immigration & Ethnic Affairs and Anor (1997) 190 CLR 225, Brennan CJ stated 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 no 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’.
There is nothing before the Tribunal which indicates that the Chinese law on the protection of classified military information is selectively enforced or that it is discriminatory in its intent or impact. The Tribunal is of the view that anyone would be punished with equal severity for divulging national security information, regardless of their motivation for doing so or the motivation that was imputed to them. While the applicant may be imputed with an anti-government political opinion for taking these documents, the Tribunal does not accept that this would affect the severity of his punishment or the reason for the punishment. The Tribunal finds that if the applicant were to be punished for taking military information and trying to pass it on to another government, the punishment would be for breaking a law of general application, and there are no factors which would lead to the application of the Refugees Convention in the applicant’s case.”
Under s.65 of the Migration Act a visa may be granted only if the decision maker is satisfied as to the existence of the prescribed criteria.
Section 36(2) of the Migration Act provided relevantly that a criterion for a protection visa is that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The reference to the Convention is to the 1951 Convention relating to the Status of Refugees and the reference to the Protocol is to the 1967 Protocol relating to the Status of Refugees.
Article 1A(2) of the Convention provides that a refugee is any 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, is unable or, owing to such fear, is unwilling to return to it.”
Sections 91R and 91S of the Migration Act qualify some aspects of Article 1A(2).
The issue raised by the applicant is his fear that if he returns to China he will be persecuted for a convention reason namely his political opinions in that he will be prosecuted with especial severity and punished with especial severity for the theft and disclosure of national security information on account of his anti-government political opinion.
The passage cited above appears to accept the possibility of the imputation of the anti-government political opinion. This is notwithstanding an earlier finding (CB 285 and top of 286) that his motivation in taking the documents from China was to safeguard his own interests.
What the Tribunal may be recognising is that the taking of the documents and their disclosure to a foreign government might well be seen by the Chinese authorities as a manifestation of an anti-regime political opinion even though the actual motivation was more personal. What is important is the recognition of the possibility of the imputation of the political opinion.
The Tribunal, however, found that any punishment for the taking of the military information would be punishment for the breaking of a law of general application.
The question of the enforcement of a law of general application has been the subject of High Court attention in a number of cases (see Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293.
The first step will be to determine whether the fear arises in relation to the application of a law of general application, i.e. does the law apply to all citizens of the State. If the law is capable of being enforced in a discriminatory manner then the next step will be to determine whether the treatment of a person in such a discriminatory manner is appropriate.
As stated by the High Court in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 at [43] and [44]:
“The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is ‘appropriate’ and adapted to achieving some legitimate object of the country [concerned]. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen. As a matter of law to be applied in Australia, they are to be taken as settled. This is what underlay the court’s decision in Israelian. Namely, that enforce of the law of general application in that particular case was appropriate and adapted to achieving a legitimate national objective.
In App0licant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the state and its citizens. His Honour gave the examples that (i) enforcement of a generally applicable criminal law does not ordinarily constitute persecution; and (ii) nor is the enforcement of laws designed to protect the general welfare of the state ordinarily persecutory. Whilst the implementation of these laws may place additional burdens on the members of a particular race, religion or nationality, or social group, the legitimacy of the objects, and the apparent proportionality of the means employed to achieve those objects, are such that the implementation of these laws is not persecutory.”
The Tribunal’s findings in relation to this topic may be summarised thus:
1.The law under which the applicant would be punished for stealing the documents is not selectively enforced or discriminatory.
2.All citizens would be punished with equal severity under that law whatever their motivation or imputed motivation was.
3.The applicant may be imputed with an anti-government political opinion for taking the documents.
4.The imputed political opinion would not affect whether he was punished or the severity of his punishment.
The applicant’s complaint is that there was no evidence available to support any of these findings.
It must be borne in mind that the Tribunal is not limited to the evidence that is formally put before it (see s.353(2) of the Migration Act).
The applicant says that the making of findings without any evidence to support them constitutes jurisdictional error and relies upon the decision of the Full Court of the Federal Court in SFGB v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCAC 231.
The case involved a finding by the Tribunal that the Taliban was no longer a force in Afghanistan. The Court said at [18]:
“But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason.”
It went on at [19]:
“This argument, if it were made out, would be sufficient to establish that the Tribunal had made a ‘jurisdictional error’ so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdiction error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355 – 7; 1994 ALR 11 at 37 – 8; 21 ALD 1 at 23 – 4.”
The respondent says in answer to the submission that there was no evidence upon which the Tribunal could rely to make such findings that, firstly, the Tribunal is entitled to use common sense in dealing with the applications before it. It is said that no evidence is required to establish that there is a general law in China that prohibits the theft and disclosure of confidential military information. That is true in so far as it goes. One need not know the precise terms of any relevant penal provision to make an assumption that such an activity would contravene the law of the land. But the Tribunal made a series of much more far reaching findings in relation to this matter and they are set out above.
The respondent also says that it was for the Tribunal to be satisfied that the applicant had a well-founded fear of persecution before it was entitled to grant a protection visa. Reference was made to the decision of the High Court in Minister for Immigration & Ethnic Affairs v Guo 191 CLR 559. Implicit in this submission is the suggestion that the onus was on the applicant to adduce evidence relating to the content of the relevant law and information in relation to the way in which it was enforced. But the applicant is not contending that the Tribunal made a finding that there was no evidence. The Tribunal simply made a series of factual findings. The compliant is that the views expressed by the Tribunal as articulated in these findings, were views that were not related in any way to any evidence or information before the Court. It was not contended by the respondent that there was anything in the country information to support such findings or that they were referrable to any other way in which the Tribunal might have informed itself. In truth, what I have described as findings would be more accurately described as invalidated assumptions.
The respondent relies upon dicta from the Heerey J in the Federal Court in Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347 at 348 as follows:
“A decision maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out.”
The applicant is contending that there is a real chance of persecution for a Convention reason.
But on the specific issue of the implementation of the law, the applicant has not pointed to anything other than his own evaluation of the risks presented by his return to China in these circumstances. The Tribunal looks to all of the material available to it to evaluate whether the real chance of persecution for a Convention reason exists. The Tribunal in this case has placed some store upon certain unvalidated assumptions as to the way in which the particular law would be administered to come to a conclusion that it would not be administered in a way which would give rise to the application of the Refugees Convention in the applicant’s case.
The assertions of the applicant might be rejected for a whole range of reasons, including lack of credit worthiness and or findings about certain events in the applicant’s narrative. This was one area in which the applicant’s evidence was accepted, however, despite other and substantial findings of lack of credibility. The Tribunal accepted he had taken the confidential documents, and that he might be punished for doing this (CB 282). In this instance the assertion as to the real chance of persecution was rejected because the Tribunal relied upon certain findings inconsistent with the assertions. We have already noted that the findings cannot be seen as other than unvalidated assumptions.
Reliance was placed by the applicant upon the decision of the Full Court of the Federal Court in Aala v Minister of Immigration & Multicultural Affairs [2002] FCAFC 204. Certainly in that case the Court made very specific findings as to the absence of any evidence before the Tribunal justifying a finding that the law under which the appellant might face execution in Iran was one of general application the enforcement of which was not persecution for a Convention reason. But the exercise on which the Court was involved in that case was the quite specific one then required pursuant to s.476 of the Migration Act. The section as it was then in place provided for a “no evidence ground” of review in which it was necessary to show that there was no evidence to support the finding and that the particular finding did not exist. The case can be of little assistance in determining whether the absence of evidence to make such a finding can amount to jurisdictional error as that concept is now understood.
The respondent submitted that the reliance by the applicant on SFGB v Minister for Immigration & Multicultural Affairs was misplaced. It was said that the decision of the Full Court of the Federal Court in that case was inconsistent with the decision of the High Court in Minister for Immigration & Multicultural & Indigenous Affairs v SGLV (2004) 207 ALR 12. Certainly the High Court in that case had this to say at [38]:
“The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did not display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient to establish jurisdictional error.”
But the applicant here does not contend there was inadequate material to ground the findings. He says that there was no material at all. In any event, the passage cited is part of a general description by Gummow and Hayne JJ of the jurisdiction of the Tribunal and precedes their analysis of the three bases upon which Selway J in the Federal Court had found jurisdictional error in the way in which the Tribunal had dealt with the application for a protection visa in that case. When we turn to that analysis we find the following, at [39]:
“To return to the first ground identified in the Federal Court, the ‘no evidence’ ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a pre-condition to the exercise of jurisdiction. No question of a ‘no evidence’ ground of jurisdictional error arises.”
In that obiter dicta context, then, it is difficult to see that any basis exists therein for concluding that critical findings in the rejection of the applicant’s contention of real risk of persecution for Convention related reasons having been made in the absence of any evidence supporting such findings at all, is a circumstance incapable of amounting to jurisdictional error.
It will be recalled that the Tribunal rejected the existence of real risk of persecution arising from the first theft of documents by the applicant for which he had already been punished. The punishment – demotion and transfer – was not unreasonably harsh or punitive. The matter was remote in time from present events. So the Tribunal found. Does this provide some factual basis for the findings as to the absence of real risk in relation to the second theft and disclosure? It is not utilised as such by the Tribunal expressly. We have already noted that no discussion of factual matters accompanies the relevant findings. But the first incident, as described by the Tribunal, does not include any suggestion of imputation of political purpose (see CB 276, at .3, where the applicant is described as being “held accountable because he had signed for the documents”). I am unable to accept that such an outcome in the context of the lack of imputation for political purpose can be any kind of guide as to the way in which the applicant will be dealt with where such imputation is expressly recognised as possible in relation to the second theft.
China is a Communist Party-controlled society. A finding that the theft of military documents and their subsequent disclosure to another State by a person to whom may be imputed anti-regime political opinions would not carry the real chance of persecution on account of those political opinions might be thought to require a clear basis in the evidence available to the Tribunal. None was here present. I find that the Tribunal constructively failed to exercise the jurisdiction granted to it under the Migration Act. Constitutional writs should issue in relation to the decision as it relates to the applicant.
It is otherwise with respect to the claim on behalf of the child.
The child is a so-called “black child”. That is to say, the child is one born outside the formal family planning regulations in China. The Tribunal’s reasons at CB 293-294 refers to the country information provided by the Department of Foreign Affairs & Trade about the predicament of black children in China.
The Tribunal considered whether the child’s membership of the particular social group comprised of black children created a real chance of persecution.
The Tribunal specifically found that the child belonged to the particular social group comprised of black children. However, the findings of the Tribunal in this regard was (CB 294):
“However, based on the information provided by Efat, the Tribunal is satisfied that the applicant child will have access to medical and education services if his parents paid for them and that he would not be disadvantaged in adult life beyond the possibility of being able to obtain employment in the public sector. The applicant child’s parents have been able to provide for his needs in the past, and the Tribunal is satisfied that the applicant child’s parents have business interests and other assets which would enable them to continue to pay for health and education services for the applicant child. The Tribunal notes that the applicant child’s parents have been able to afford to educate a child overseas for several years and are still doing so. The Tribunal finds that the withholding of services to the applicant child would not constitute serious harm as defined by s 91R of the Act. The Tribunal finds that there is not a real chance that the applicant child would face persecution in the reasonably foreseeable future for reason of his membership of a particular social group comprised of ‘black children’ or for any other Convention reason if he were to return to China now or in the reasonably foreseeable future. The Tribunal finds that the fears of the applicant child are not well founded.”
In the case of VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 Merkel J found jurisdictional error in a case involving a black child where the Tribunal only considered the specific examples enumerated in s.91R(2) without addressing the fundamental question which was whether the persecution constituted serious harm in terms of s.91R(1).
His Honour’s discussion of this issue appears at paragraphs 56 – 67 of his judgment. For the reasons therein discussed His Honour was of the view that the Tribunal failed to give consideration to the cumulative effect of the harm occasioned to the black child in that particular case. In particular, the passages cited from the Tribunal’s decision in paragraphs 57 and 58 indicated that the Tribunal addressed whether the conduct fell within s.91R(2) without referring to s.91R(1).
I am unable to read the Tribunal’s finding in the instant case in that way. The passage set out above in the Tribunal’s reasons does not fall into the same error as that manifest in VTAO.
The application insofar as it relates to the child is dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Associate:
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