SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143
IMMIGRATION – refugees – appeal from decision of Refugee Review Tribunal – application on behalf of minor by her next friend for protection visa – application refused – membership of a particular social group – one child policy of Peoples Republic of China –finding of fact by Refugee Review Tribunal that financial burden incurred by parents of unregistered children did not amount to persecution – application of Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
J Hathaway, Law of Refugee Status, Butterworths, Canada, 1991
SZBQJ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1456 OF 2004
TAMBERLIN J SYDNEY 28 FEBRUARY 2005
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1456 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZBQJ APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
TAMBERLIN J
DATE OF ORDER:
28 FEBRUARY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1456 OF 2004
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZBQJ APPELLANT
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
28 FEBRUARY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal brought on behalf of the appellant child by her mother acting as next friend from a decision of a Federal Magistrate Raphael given on 23 September 2004. Federal Magistrate Raphael found that the Refugee Review Tribunal (“the Tribunal”) had not fallen into jurisdictional error in finding that any harassment or discrimination which might be suffered by the appellant upon her return to China did not constitute “persecution” within the meaning of the Convention definition or s 91R of the Migration Act 1958 (Cth) (“the Act”).
The appellant claims that she has a well-founded fear of persecution in China as she is a member of a particular social group of “black” children which is comprised of children born in breach of China’s One Family Planning Policy. It is claimed that she would be unable to obtain household registration, would not receive adequate health care and that her parents would be unable to pay the fine to allow her to get household registration. The appellant also claimed…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading SZBQJ v MIMIA
Sign in free to access the full text
Details
AGLC
SZBQJ v MIMIA [2005] FCA 143
Case
[2005] FCA 143
Decision Date
CaseChat Overview and Summary
The appeal, SZBQJ v MIMIA, was heard by the Federal Court, with the Tribunal's decision to deny the appellant refugee status being contested. The Tribunal had determined that the appellant, who had left her home country due to concerns about her unregistered birth status, would not face sufficient harm in adulthood to constitute persecution. This conclusion was based on the lack of social stigma attached to "black" children and the limited impact of unregistered status on employment opportunities. The Tribunal further found that the appellant's adulthood would not be affected by her childhood registration status, regardless of any perceived distinction between registered and unregistered children.
The legal issue at the heart of this appeal centred on the interpretation and application of the statutory and Convention criteria for determining persecution. The appellant's counsel argued that the Tribunal erred in its use of factual findings in light of these criteria. The counsel contended that the Tribunal's conclusion overlooked significant forms of serious harm, such as economic hardship and denial of basic services, which could reasonably be considered as persecution under the Convention. The appeal hinged on whether the Tribunal's factual findings, while unchallenged, were misapplied in relation to the statutory and Convention definitions of persecution.
The Federal Court, in dismissing the appeal, upheld the Tribunal's findings as arguable and supported by independent country information. The Court noted that the Convention purposefully left the notion of persecution undefined to encompass a broad range of serious harms. While the appellant drew an analogy to potential persecution in Australia, the Court found that the Tribunal's conclusion was within the bounds of reasonable interpretation of the relevant legal standards. The Court also observed that even if the Tribunal's finding was incorrect, it did not constitute a jurisdictional error. Therefore, the application for review was dismissed, and the appellant was ordered to pay the respondent's costs.
The final orders of the Court were straightforward: the appeal was dismissed, and the appellant was directed to pay the respondent's costs. This outcome affirmed the Tribunal's assessment that the appellant's circumstances did not meet the threshold for persecution as defined under the Convention and the relevant statutory provisions.
Orders
Orders of the court
1. The appeal is dismissed.
2. The appellant is to pay the respondent’s costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
TAMBERLIN J
The Tribunal member accepted the independent information that to the extent that there was any distinction between officially registered and “black” children, such a distinction was unlikely to extend to the appellant’s adulthood and was very unlikely to affect her access to employment in adulthood in the non‑government sector or in rural areas. In any event, the Tribunal member expressed some doubt as to whether there was any distinction between officially registered and “black” children. She accepted the information that there was no social stigma attached to “black” children. For these reasons, the Tribunal concluded that there was no risk of harm serious enough to amount to persecution within the meaning of the Convention and s 91R of the Act.DECISION BELOW His Honour set out and considered the reasoning of the Tribunal and the submissions made in par [13] of the judgment, concluding that the finding that there was no harassment sufficient to amount to persecution was a finding of fact for the Tribunal alone and was an arguable conclusion. His Honour was satisfied that there was independent country information that would have enabled the Tribunal to reach its decision but, even if the finding of fact was wrong, it was not a jurisdictional error. Accordingly, the application for review was dismissed.REASONING ON APPEAL Counsel for the appellant refers to s 91R(2) of the Act which refers to instances of serious harm for the purpose of considering whether there has been persecution within the meaning of the Convention. Among these instances are economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where the denial threatens the person’s capacity to subsist and denial of the capacity to earn a livelihood of any kind where the denial threatens the capacity to subsist. The emphasis is on “subsistence”, which denotes the ability to continue to exist or remain in being. As James Hathaway points out in the Law of Refugee Status (1991) at 102 when considering the content of the notion of persecution, the Convention left the expression of “persecution” undefined because it was realised that it was not possible to enumerate in advance all the forms of maltreatment which might legitimately entitle persons to benefit from the protection of a foreign state. He notes that refugee status was premised on the risk of serious harm but not necessarily on the possibility of consequences of life or death proportions. There is sufficient cause for international concern in circumstances where there are serious social and economic consequences: see also the observations of McHugh J in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 at [61]-[65]. There is no challenge in this appeal to the factual findings of the Tribunal. Indeed, the appellant relies on the factual findings made. The error is said to reside in the use that the Tribunal made of the factual findings, having regard to the statutory and Convention criteria as explained in the authorities. An analogy, it is said, can be drawn with circumstances in Australia if the parents of second children were required to pay a fine and denied access to Social Security payments, made ineligible for enrolment in public schools, denied medical care benefits and denied the possibility of public sector employment. It is said that these circumstances would be regarded as persecution.