SZBPQ v Minister for Immigration

[2004] FMCA 1015

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPQ v MINISTER FOR IMMIGRATION [2004] FMCA 1015

MIGRATION – Review of RRT decision – where applicant was born in Australia – where applicant’s parents are not married – where applicant’s father is a Chinese national and his mother an Indonesian national – where Tribunal found that the applicant was not stateless as he would most likely be granted Chinese nationality upon application by his father – whether the Tribunal considered the Convention of the Rights of the Child – whether s.420, in requiring the Tribunal to act according to the substantial justice and merits of the case, requires the CROC to be considered – whether the Tribunal considered the applicant’s status as a “black child” constitutes persecution under s.91R of the Act – whether the applicant is an alien for the purposes of the Migration Act and the Australian Citizenship Act – whether it would be unconstitutional for the applicant to be removed from Australia – whether the detention of the applicant is unlawful.

Federal Magistrates Court Rules 2001
Australian Citizenship Act 1948 (Cth), s.10(2)(b)
Migration Act 1958 (Cth), ss.91R, 189, 196, 420, 483A
Judiciary Act 1903 (Cth), s.39B
Convention on the Rights of the Child

Singh v Commonwealth & Anor [2004] S441 of 2003
National Mutual Holdings Pty Limited & Ors v Sentury Corporation & Anor (1989) 87 ALR 539
Abebe v Commonwealth (1999) 197 CLR 510
Minister for Immigration v Teoh (1994-95) 183 CLR 593 Taylor v Minister for Immigration [2004] FCA 1081
Lorenzo v Minister for Immigration [2004] FCA 435
Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62
Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
VTAO v Minister for Immigration [2004] FCA 927
VDAU v Minister for Immigration [2004] FCAFC 32
Singh v Commonwealth of Australia [2004] HCA 43

Applicant: SZBPQ

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ 2115 of 2003

Delivered on: 22 December 2004

Delivered at: Sydney

Hearing date: 5 March 2004, 2 December 2004

Judgment of: Raphael FM

REPRESENTATION

Counsel for the Applicant: Mr M McAuley

Counsel for the Respondent: Mr J Smith

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant’s litigation guardian to pay the respondent’s costs assessed in the sum of $6,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2115 of 2003

SZBPQ, BY HIS NEXT FRIEND

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in these proceedings is a male child born on 20 September 2002 in Australia.  His father is a national of the PRC who arrived in Australia on 21 November 1996.  His mother is an Indonesian national who arrived on 21 December 1996.  He has a sister born in Australia on 18 August 1999.  His parents are not married to each other.  His father has a wife in China.  Both his parents and his sister have applied for protection in Australia but protection visas have not been granted.  All court proceedings relating to those applications have been exhausted.  The family is now in immigration detention.  In January 2003 the applicant’s parents lodged an application for protection (Class XA) visa for the applicant.  On 25 February 2003 a delegate of the Minister refused to grant a protection visa and on 26 February 2003 the applicant’s parents applied for review of that decision to the RRT.  On 5 May 2003 the Tribunal affirmed the delegate’s decision.  The applicant’s parents sought review of the Tribunal’s decision from the Federal Court of Australia and on 14 July 2003 the court made consent orders that the Tribunal’s decision be set aside and remitted to the Tribunal to be determined in accordance with law.  On 29 September 2003 the Tribunal, differently constituted, made a decision to affirm the delegate’s refusal to grant a protection visa.  The applicant seeks review of that decision from this court.

2. At the commencement of the proceedings I made an order that the applicant’s mother be appointed his litigation guardian pursuant to Part 11 Rule 11.10(1) of the Federal Magistrates Court Rules. I also made certain other orders relating to the proceedings which allowed them to continue on the basis of a document entitled “Amended Grounds” that contained eight paragraphs. The first four grounds dealt with a constitutional point relating to the applicant’s nationality. These grounds suggested that insofar as the applicant was concerned neither the Australian Citizenship Act 1948 nor the Migration Act 1958 (Cth) applied to the applicant as he was born in Australia. I was advised that a decision on this point or one substantially similar to it was in the course of being obtained from the High Court in a case known as Singh v Commonwealth & Anor [2004] S441 of 2003 and it was agreed that I would hear argument on paragraphs 5 to 8 of the Amended Grounds and then adjourn the matter until the decision in Singh had been handed down.  Grounds 5 to 8 are in the following form:

   “5  In making its decision, the Refugee Review Tribunal failed to act in accordance with the substantial justice and the merits of the case (Migration Act 1958 [Cth]) failing in particular to prefer an interpretation consistent with Australia’s treaty obligations.  The RRT failed to prefer an interpretation consistent with the Convention on the Rights of the Child inter alia, that a child shall not be separated from his parents against his will except when such separation is necessary for the best interests of the child (Article 9), and that a child that is seeking refugee status shall receive appropriate protection and humanitarian assistance in the enjoyment of the rights set forth in the Convention (Article 22).

   6  The Tribunal failed to apply the law as to refugee status of members of particular social groups who have a well founded fear of being persecuted, including children born in contravention of China’s one child policy.

   7 The Tribunal was required to determine whether the applicant was a person to whom Australia has protection obligations pursuant to Section 36 of the Migration Act 1958 (Cth). In making its determination, the Tribunal confused the Applicant’s situation with that of its father and so acted contrary to law.

   8  The Refugee Review Tribunal failed to accord the Applicant natural justice in that, given the ratification by Australia of the Convention on the rights of the child, the applicant had a legitimate expectation that the Tribunal would consider such convention when making its decision.  The Tribunal, if it was to ignore the convention on the rights of the child, ought have informed the applicant, and invited submissions as to such proposed course.”

3. When the matter was argued before me it was not put in quite the same way as that appearing in the Amended Grounds.  In order to understand the context of the arguments that were put it is convenient to recite the Summary of the Tribunal’s Findings and Reasons found at [93] of the decision [CB 236]:

   “I am satisfied that the applicant is not stateless, that he, through the operation of the Chinese nationality law, is a PRC national.  I am satisfied that it would be difficult for the applicant to gain Indonesian nationality and go to Indonesia with his mother.  I am satisfied that the applicant can go to China and enter to live there as a Chinese national.  I am satisfied that the applicant’s parents can also go to China and live there as a family, contingent on the applicant’s father completing procedures to divorce his estranged but legal wife in China.  I am not satisfied that the father has a child of that marriage in China.  I am satisfied that if the applicant returns to China with his father, mother and sister, he will be classed as the second child of the family and may be subject to penalties arising from the ‘one child’ policy.  I am not satisfied that the illegitimacy of the applicant will mean he will face discrimination amounting to persecution in China.  I am satisfied that there may be some form of a sanction or penalty imposed on the applicant’s father under the ‘one child’ policy for the second child of the family, that is, for the applicant.  However, I am satisfied that the applicant can obtain household registration and access to such of the basic social welfare services provided by the local government with the payment of such sanction or penalty, if imposed.  I am satisfied that the applicant’s father can obtain employment and be able to deal with any such sanction or penalty without detriment to the applicant sufficient to constitute persecution.”

4. The applicant argued that the finding that the Tribunal made that he was not stateless was an error of law on the part of the Tribunal.  The respondent has two answers to this.  Firstly, he argues that it does not avail the applicant if he is stateless.  If that finding had been made it would follow that he has no well founded fear of persecution in his country of habitual residence.  The reason for that is the child is one year of age and born in Australia.  To the extent that he has a country of habitual residence it is this country.  Whilst there may be proceedings which the applicant could bring if he was stateless to ensure that he remained in this country they are not proceedings seeking review of a decision not to grant a protection visa.  The second point is that a decision concerning the nationality of an applicant is a consideration of foreign law and that is one of fact for the Tribunal.

5. In National Mutual Holdings Pty Limited & Ors v Sentury Corporation & Anor (1989) 87 ALR 539 at [556] Gummow J said:

   “The existence, the nature and the scope of any rules and principles of the law of a foreign jurisdiction is to be treated as an issue of fact upon which evidence is receivable; on the other hand, the affect of the application of those rules and principles, as so ascertained, to the particular facts and circumstances of the instant case is a question of law for the court of the forum, upon which evidence is not receivable; United States Surgical Corp v Hospital Products International Pty Limited (Supreme Court of NSW McClellan J 19 April 1982 unreported). 

   In this case the Tribunal has found as a fact that the nationality laws of the Peoples Republic of China are capable of conferring Chinese nationality upon the applicant.  It has found as a fact that if the applicant’s father makes the necessary application to the Chinese Consulate, nationality is likely to be granted and it seems to have found as a matter of law that the applicant had an incohate form of nationality requiring only to be triggered by a formal application and is therefore not stateless. 

6. The applicant then argued that the Tribunal was adopting an interpretation s.91 Migration Act inconsistent with the Convention on the Rights of the Child and that it appeared to be condoning the separation of the child from its mother by having him returned to China. I do not think that is what the Tribunal decided at all. The Tribunal came to the conclusion that there was nothing to prevent the father returning to China, there was nothing to prevent the father from divorcing his wife, either consensually or by court order and therefore there was nothing to prevent the father from marrying the mother and returning to China to live with her and their children. Whilst it is not difficult to see that this approach could be problematical and would certainly take time that is not to the point. When these things did happen the Tribunal was satisfied that the child would not be the subject of persecutory conduct.

7. The Tribunal makes the following finding of fact at [CB 233] at [83]:

   “Consequently, I am unable to accept that the applicant’s mother would be precluded from going to China with the applicant, or that she would be unable to stay with the applicant in some sort of long-stay arrangement in that country.”

   I have searched the court book and I am unable to find any assertion concerning the Convention on the Rights of the Child (CROC).  The only matter which the applicant’s counsel has put to me as a matter within CROC that would affect this applicant is the question of his possible separation from his parents. Whether the Tribunal considered this matter bearing in mind CROC or not is of no importance. The situation itself was considered and the factual finding made that the child would not be the subject of separation. These findings make a consideration of whether or not the Tribunal complied with Minister for Immigration v Teoh (1994-95) 183 CLR 593 as considered by the Federal Court in cases such as Taylor v Minister for Immigration [2004] FCA 1081 or Lorenzo v Minister for Immigration [2004] FCA 435 otiose. They are also not subject to review: Abebe v Commonwealth (1999) 197 CLR 510.

8. The applicant submitted that s.420 Migration Act 1958 which requires the Tribunal to act according to the substantial justice and merits of the case is a mandatory provision that would require the Tribunal to consider CROC. The High Court considered s.420 in Applicant NAFF of 2002 v Minister for Immigration [2004] HCA 62. In the same case the High Court also considered the legitimate expectation argument. At [69] the Court said:

   “If the law requires a particular course to be followed, such as was the case in the present proceedings, the true legal issue is not, or is not only, whether the person adversely affected by a decision has had his or her legitimate expectations disappointed. That may be a consequence of the departure from the legal standard; but it is not the invalidating cause. The failure to observe proper procedures itself amounts to a legal defect in the performance of the task conferred by law as the law requires. In this sense, the invalidating element is not the disappointment but the anterior failure to conform to the law. That failure is, in a sense, a legal wrong against the whole community. The duty to accord procedural fairness is part of the public law. It is upheld to ensure that the element of governance contemplated by law will (absent lawful expectations) be discharged fairly.”

9. It is accepted that the duty to act fairly will include the duty to warn an applicant if the tribunal does not intend to take into account Australia’s treaty obligations such as those in CROC. But this did not happen in this case as I have already explained. The only element of CROC that was in issue was the separation of the applicant from his mother. The Tribunal came to a finding of fact that this would not happen on any permanent basis.

10. The applicant argues that the Tribunal’s finding that the application of the one child policy to the applicant does not constitute persecution effectively ignores the decision of the High Court in Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293. In that case the majority Gleeson CJ, Gaudron and Gummow & Hayne JJ said at [303]:

    “Ordinarily denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involves such a significant departure from the standards of the civilised world as to constitute persecution.”

    The applicant argues that whilst his parents may do their best to overcome the effects of the one-child policy the Tribunal should be looking at the case from the point of view of the applicant himself. Perhaps the high point of these arguments is found in the decision of Merkel J in VTAO v Minister for Immigration [2004] FCA 927 at [55], [62] and [65] where his Honour said:

    “65. The RRT considers the likelihood of the financial penalty being paid. However it failed to consider the cumulative effect of all of the forms of harm which on its findings of fact the applicant child might suffer and then address the question of whether the totality of that treatment met the legislative criterion of persecution involving serious harm. Plainly if s.91R(1) rather than s.91R(2) was being applied the RRT could have been expected to have addressed that question.

    66. In my view a fair reading of its reasons as a whole establishes that the RRT failed to address the question of whether the conduct feared by the applicant child constituted “serious harm” but rather, it addressed whether the conduct fell within s.91R(2), thus the RRT failed to address the correct issue and question to be addressed.

    67. In summary the question whether the treatment likely to be suffered by the applicant child amounts to persecution involving “serious harm and systematic and discriminatory conduct” is one of fact to be determined by the RRT on the merits of the case. However, the RRT is required to apply the correct test and ask the correct questions in arriving at its determination. I am satisfied that in failing to do so it has constructively failed to exercise its jurisdiction.”

11. In VDAU v Minister for Immigration [2004] FCAFC 32 the full bench when considering a case with a number of similarities to the one before me detailed the findings of the Tribunal at [3] and [4] and quotes from the Tribunal when it said:

    “In weighing all the available information the Tribunal concludes that the applicant could face some detriment in education and the provision of medical care until she attains the age of 7 years. There is no material to satisfy the Tribunal, however, that she will be denied a proper education or access to essential medical services. The Tribunal finds that to the extent that the applicant might face detriment as a consequence of having been born in breach of the one-child policy the possible consequences for her fall well short of the definition of persecution. The Tribunal came to certain findings of fact based upon the evidence available to it that the child would not be persecuted in China by reason of him being a “black” child and that the father was capable of putting himself into a financial position where he could pay the levy to allow the child access to the basic social welfare services provided by the Local Government or the State or pay such fees as were going to be incurred by the child in his education and upbringing privately.”

    The Court goes on to say at [24]:

    “However we have been unable to discern in the Tribunal’s reasons any misunderstanding of what is capable, as a matter of law, of amounting to “being persecuted” within Article 1A(2) as qualified by s.91R of the Act. “

    The difference between VDAU and the instant case is that nowhere in the instant case is there any discussion of whether or not the problems, which the applicant will undoubtedly have because of his status as a black child, constitute persecution under s.91R.

    But the Tribunal makes reference to that section in its definition of refugee at [CB 213] at [10] and [CB 214] at [12]. Paragraph [92] on [CB 235] whilst not specifying s.91R does consider the matters raised in that section. The paragraph reads:

    “In the light of the evidence and findings, I accept that while the applicant’s father may be required to pay some form of penalty to have the applicant registered as a second child of the family, this would not constitute significant economic hardship or a denial of access to basic services such as to threaten the applicant’s capacity to subsist. Whilst I accept that the imposition of a penalty may constitute discrimination, it would not be such serious harm to the applicant as to constitute persecution.”

    It seems to me that this expression of opinion by the Tribunal brings the case more in line with VDAU that with the failings identified by Merkel J in VTAO.

12. The applicant argued that the Tribunal did not consider whether the child fell within s.91R(2)(d) of the Migration Act because he would be denied services which threatened his capacity to subsist on the grounds that he was a “black” child whose father was unwilling to make the necessary payments. The applicant has to put the matter this way because the Tribunal has found that the father is not unable to make the necessary payments. The applicant argues that the case must be looked at from his point of view and not that of his father. He should not be subject to the whim of his father. He should not be required to accompany his family to China in the hope that his father would make the necessary provision for him. I think there might have been considerable force in this argument if that is what the father had argued. But he did not do so. He did not say to the Tribunal “There are no circumstances in which I will support this child of mine.”  He said “I will not be able to support this child.”  The Tribunal considered that fact and did not accept it.  It did not accept it because it believed from the evidence it had seen that the applicant was a person who was able to obtain employment, particularly in a free market economy such as that existing in Shanghai, which would enable him to either pay the capitation charge or for private education and medicine. 

1. The constitutional issues raised in the amended grounds filed by the applicant are said to be whether

   (a) The Australian Citizenship Act 1948 s.10(2)(b) in so far as relied upon in support of the position that the applicant is an alien, is beyond the power of the Commonwealth of Australia;

   (b) The Migration Act 1958 in so far as it is relied upon against the applicant is beyond the power of the Commonwealth parliament.

2. The applicant argues that his case is quite different from that recently considered by the High Court in Singh v Commonwealth of Australia [2004] HCA 43. In that case the Court considered the claims of a child born in Mildura in 1998 to parents who were citizens of India. It was accepted that Ms Singh is a citizen of India by descent of her parents: per Gummow, Heydon & Hayne JJ at [142] and [205]. The Chief Justice at [32] and Hayne, Gummow and Heydon JJ at [190] held that the term “alien” included those who owe allegiance to another sovereign power. As Ms Singh owed that allegiance by her nationality of descent she was an alien in Australia, notwithstanding her birth in this country and was therefore a person to whom both the Migration Act and the Citizenship Act could apply.

3. This applicant states that he is not a citizen of the Peoples Republic of China and that the definition of alien applied in Singh does not include him. He is therefore not an alien and any attempt to utilise the powers in the Migration Act and the Citizenship Act to expel him from the country is unconstitutional. This is an argument that I cannot accept for the following reasons.

4. First I do not accept the submission that the applicant is not a national of the Peoples Republic of China.  Insofar as the constitutional aspect of this case is concerned it is my duty to make some factual finding on this subject and I do so with the assistance of the evidence put before the Tribunal and found in the Court Book.  At [CB 241] there is set out an extract from the nationality law of the Peoples Republic of China translated into English. Article 5 is in the following terms:

   [Article 5] Any person born abroad whose parents are both Chinese Nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad or one of whose parents have settled abroad and who has acquired foreign nationality at birth shall not have Chinese nationality.

5. In my view the applicant falls within the first sentence of Article 5. He does not fall within the second sentence of Article 5 because it could not be said that his one parent who is a Chinese national has “settled abroad” when he is a person this government is holding in immigration detention pending his removal. Nor is the applicant himself someone who has acquired foreign nationality at birth because he is a person to whom the first sentence applies. The applicant sought to argue that Article 7 which is in the following form is the more appropriate Article 7 to consider.

   [Article 7] Foreign nationals or stateless persons who are willing to abide by China’s Constitution and laws and who meet one of the following conditions may be naturalized upon approval of their applications :

   1.   they are near relatives of Chinese nationals;

   2.   they have settled in China; or

   3.   they have other legitimate reasons.

6. To my mind this argument is in error. It might well apply to the applicant’s mother but the applicant is so clearly a person who falls within Article 5 that he cannot also fall within Article 7.

7. It is true that at [CB 244] there is found by way of independent country information responses to questions from the Department concerning Sino-Vietnamese citizenship issues which state:

   “Under China’s nationality law (effective as of 10 September 1980) children of Chinese nationals, even if born abroad, may claim Chinese nationality provided they have not acquired the nationality of another country. [and then sets out the terms of Article 5]”

   The advice also says:

   “In the case of the second applicant whose father is a PRC national, it would appear from our reading of the nationality law that a case could be made for Chinese nationality under Article 5 of the Nationality law (as outlined in paragraph 3 above), provided the applicant had not acquired the nationality of another country.”

   I am of the view that the information cited above supports my interpretation of Article 5. I do not accept the applicant’s argument that it is evidence to the contrary. I say this not because I place no importance on the use of the words “may” in the report, but because it is, to my mind, a piece of hearsay. My duty is to interpret the actual article and not work from someone else’s interpretation of it.

8. Because I am satisfied that the applicant is a PRC national by descent in a way similar to that of Ms Singh it is not strictly necessary for me to consider the position as if he were stateless. However I note that in Singh at [190] Hayne, Gummow and Heydon JJ said:

   “But what did remain unaltered is that “aliens” included those who owed allegiance to another sovereign power or who having no nationality owed no allegiance to any sovereign power.”

   And that Kirby J at [211] commenced his discussion of the validity of the aliens power to Ms Singh on the basis that:

   “The plaintiff’s status in law is to be determined against the probability that she is not necessarily entitled to other citizenship in default of prompt registration of her birth or without the exercise of administrative power by, officials of the country of the nationality of her parents.”

   Although these remarks are made obiter they must be persuasive authority upon this Court that a stateless person may still be considered an alien, even if born here.

9. Finally I would note that the respondent submits that I am not entitled to make finding as to the constitutionality, as far as this applicant is concerned, of the Australian Citizenship Act 1948 because this Court’s power to provide judicial review under s.39B of the Judiciary Act in relation to Migration matters comes to it through s.483A Migration Act. That section is in the following form:

   Jurisdiction of the Federal Magistrates Court

   Subject to this Act and despite any other law, the Federal Magistrates Court has the same jurisdiction as the Federal Court in relation to a matter arising under this Act.

10. The Court has not been provided with similar jurisdiction under the Australian Citizenship Act. I am not required to answer this assertion because of my previous findings but it does seem to me more than arguable that I could do so under the Court’s associated jurisdiction which is found in subsection 18 Federal Magistrates Act 1999.

11. The applicant has made an application for a writ of habeas corpus. He bases that writ upon the following:

    “(a)   The applicant has not immigrated to Australia

    (b) Further, the applicant is not an alien and he owes no allegiance to a foreign country.

    (c) Hence the provisions of the Migration Act 1958 (Cth) do not apply to the applicant in any way, and therefore the respondent has no authority under the Migration Act 1958 (Cth) to imprison the applicant.

    (d) If the respondent has some other basis for imprisoning the applicant, such has not been made known by the respondent.”

    These claims can be answered by the finding made herein that the applicant is an alien who owes allegiance to the Peoples Republic of China. The provisions of the Migration Act do apply to the applicant and pursuant to ss.189 and 196 the detention of the applicant is lawful, even if, he being a child, it is regrettable.

12. I am unable to find grounds for review of this decision on the bases submitted by the applicant. I dismiss the application. I order that the applicant pay the respondent’s costs. This matter has taken up two days of hearing before the court and I assess the costs in the sum of $6,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  22 December 2004