SZBQJ v Minister for Immigration (No 2)

[2004] FMCA 341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQJ v MINISTER FOR IMMIGRATION (No 2) [2004] FMCA 341

MIGRATION – Review of RRT decision – where applicant the child of Chinese citizens – where applicant would be regarded as a ‘black child’ under Chinese law – where applicant claimed to have a well-founded fear due to membership of this particular social group – where applicant’s parents’ applications for protection visas declined – where applicant born in Australia – whether applicant is an alien to whom the Migration Act applies – where this constitutional issue currently before High Court – whether Court should decide matters severable to the constitutional issue – whether Tribunal failed to consider Australia’s treaty obligations under Convention of the Rights of the Child thereby denying the applicant natural justice.

Migration Act 1958 (Cth) ss. 91R, 36
Australian Citizenship Act 1948 (Cth) s.10(2)(b)
Judiciary Act 1903 (Cth) s.78B


Convention on the Rights of the Child

Fakatava v MIMA [2000] FCA 118
Sikahele v MIMA [1998] FCA 1453
Prahastono v MIMA (1997) 77 FCR 260
MIMIA v Kord (2002) 125 FCR 68
NAAQ v MIMIA [2003] FMCA 17
Abebe v Commonwealth (1999) 197 CLR 510

Applicant:	SZBQJ
Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
File No:	SZ 2123 of 2003
Delivered on:	31 May 2004
Delivered at:	Sydney
Hearing date:	3 March 2004

And by written submissions
Last Submissions Received:	23 March 2004
Judgment of:	Raphael FM

REPRESENTATION

Counsel for the Applicant:	Ms M Gillies,  Mr M McAuley
Counsel for the Respondent:	Mr T Reilly
Solicitors for the Respondent:	Sparke Helmore

ORDERS

1. Applicant is ordered to file notices pursuant to s.78B Judiciary Act 1903 upon the Attorneys-General of the Commonwealth and States and Territories.

2. Proceedings adjourned until notice of further hearing is provided by Federal Magistrate Raphael’s associate.

3. Costs reserved.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2123 of 2003

SZBQJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant is a child born in Australia on 27 September 2002 to parents who are citizens of the Peoples Republic of China. In accordance with the provisions of Part 11 Rule 11.08 and 11.11 I appoint J*C*P* the applicant’s mother and signatory to her application for a protection visa whose name in full is found on [CB 9] as the litigation guardian of the applicant.

2. The applicant’s parents have each previously received finally determined decisions to decline protection visas. On 13 August 2003 the applicant’s parents lodged in her name an application for a protection (class XA) visa with the Department of Immigration and Multicultural Indigenous Affairs. On 21 August 2003 a delegate of the Minister refused to grant a protection visa and on 22 August 2003 the applicant’s parents applied to the Refugee Review Tribunal in the applicant’s name for a review of that decision. The Tribunal considered the application and arranged a hearing which was attended by the applicant’s parents.  Submissions were made on behalf of the applicant by Refugee Advice Casework Service (RACS). On 25 September 2003 the Tribunal determined to affirm the decision not to grant a protection visa and that decision was communicated on the same day to the applicant at Villawood Detention Centre and to her migration agent.

3. The applicant’s claim to a well-founded fear of persecution for the Convention reason of membership of a particular social group arises out of her position as the second child of parents who are due to be deported into the People’s Republic of China. Giving birth to a second child is contrary to the notorious one-child policy which takes its powers from Articles 25 and 49 of the Chinese Constitution. Children born in contravention of this policy are known as “black children”. The children are punished through their parents by such methods as criticism, fines and economic disadvantage, in particular the withdrawal of the right of a parent to employment by the State and the withdrawal of social security services and medical services.

4. The disadvantages suffered by a black child can be ameliorated by the payment of a fine which allows for registration of the family and access to the normal benefits. As an alternative a family in private employment can pay for education and medical services independently.

5. At the hearing before the Tribunal the status of black children and the particular financial circumstances of the applicant’s parents were discussed in detail. The applicant had the benefit of assistance from a competent and effective migration adviser. Arguments were put to the Tribunal concerning the nature of serious harm pursuant to s.91R Migration Act and that the applicant had a legitimate expectation that in making its decision the Tribunal would act in accordance with the International Convention on the Rights of the Child.

6. The Tribunal came to the conclusion that the family planning regulations in Peoples Republic of China were not discriminatory but were applied equally to all Chinese citizens and were directed at a legitimate purpose which was to attempt to slow the rate of growth of China’s population. At [CB 83] the Tribunal says:

   “I am not satisfied that the imposition of a fine on parents for breach of the family planning regulations is discriminatory or persecutory to unregistered children as a particular social group. I am not satisfied that the level of financial imposition which results from a breach of the family planning regulations … is so onerous as to threaten the applicant’s parents’ capacity to subsist or to amount to a denial of access to basic services such that the applicant’s capacity to subsist is threatened. In any event, if the fine remains unpaid, the applicant is not thereby denied access to basic services, which as the independent information makes clear, are available to anyone who pays for those services.”

   The Tribunal also decided, as a matter of fact, that it was not beyond the parent’s capacity to pay the fine for the reasons given at [CB 83]. The Tribunal noted that unregistered children were not precluded from accessing education and health services by reason of their lack of household registration, just that these would have to be paid for. It came to the conclusion at [CB 84]:

   “This may well amount to a significant financial imposition but in my opinion it is not so serious as to amount to persecution within the meaning of the Convention and the Act.”

7. The Tribunal came to a similar view about the seriousness of a parent being excluded from public sector employment namely that it did not threaten the applicant’s capacity to subsist as required by s.91R(2) Migration Act 1958. The Tribunal made a factual finding on the basis of the independent country information that the applicant’s status as a black child was unlikely to affect his/her access to employment in adulthood in a non-government centre or in the rural area. It also accepted the information that there was no social stigma attached to being a black child and no reports of discrimination or abuse serious enough to amount to persecution within the meaning of the Convention and s.91R(2) of the Act.

8. For the reasons given above the Tribunal came to the conclusion that it was not satisfied that the applicant was a person to whom Australia had protection obligations and therefore did not satisfy the criteria set out in s.36(2)(a) Migration Act for a protection visa.

9. The applicant has filed written submissions in accordance with my orders made in SZBQJ v MIMIA (No 1) dated 15 March 2004. On her behalf it is argued that I should not proceed to hear this matter unless notices are given under s.78B Judiciary Act 1903. This is because the applicant is raising a constitutional issue that subsection 10(b) Australian Citizenship Act 1948, in so far as it is relied upon in support of the proposition that the applicant is an alien, is beyond the power of the Commonwealth Parliament and that the Migration Act, in so far as it is relied upon against the applicant, is beyond the power of the Commonwealth Parliament. However, it is suggested in the written submissions of the respondent that because the points made in this case are identical to those being made in Singh v Commonwealth & Anor (S441/2003 heard in the High Court of Australia on 10 and 11 February 2004 and reserved) the applicant accepted there was no need to issue notices in this particular case. It appears that the applicant is now denying or resiling from that agreement. However, she has not filed any notices herself. I have been provided by the applicant with a copy of the written submissions of the applicant in the matter of Singh, which the applicant’s counsel states “broadly reflects the submissions as to the constitutional issues which the applicant wishes to make in this matter.” I am happy to adopt the procedure provided for in s.78B(2)(c) Judiciary Act 1903 to hear and determine the argument on the severable matters. I propose to provide the parties with my reasons for the determination, to require the applicant to file the necessary notices under s.78B and to have the matter restored to me for final determination on the constitutional issue following the decision in Singh. If, as has been submitted to me, the decision in Singh will be determinative of the decision in the constitutional issues in this case I do not anticipate that such hearing will take very long.

10. On 3 March 2004 I gave certain orders concerning the conduct of these proceedings. Those orders required the applicant to file written submissions on or before 17 March 2004. The reasons why I gave that decision are contained in my reasons for judgment. The submissions which I received contained an allegation that I had failed to provide the applicant with procedural fairness because Mr McCauley, the counsel for the applicant, only received a copy of those reasons on 15 March 2004, although he accepted he knew about the orders on 3 March from the other counsel, who appeared on that day because he was inconvenienced. I do not accept this submission. Mr McCauley voluntarily decided to take this brief after being appointed pursuant to the Minister’s scheme on 27 November 2003. Notwithstanding his understandable personal reasons for not dealing with the matter which are contained in his written submissions I do not accept that such submissions could not have been prepared by 17 March 2004. In fact they were prepared by that time. Mr McCauley said they are not as good as they could be.

11. The amended application filed in Court on 3 March 2004 contains eight grounds of review of which one (ground 7) is not proceeded with. Grounds 1-4 are the constitutional matters. Grounds 5 and 8 are grounds relating to the failure of the Tribunal to act in accordance with the substantial justice and merits of the case and to have provided the applicant with natural justice in that the Tribunal should have taken into account Australia’s treaty obligations under the Conventions of the Rights of the Child (CROC) and failed to inform the applicant’s mother that it intended to ignore such treaty obligations. In this regard the Tribunal said at [CB 82]:

    “The applicant’s adviser submitted, in effect, that the applicant has a legitimate expectation that in making my decision I will act in accordance with an international human rights convention, other than the Refugee Convention and Protocol, specifically, the International Convention on the Rights of the Child. This submission recalls the decision in MIEA v Teoh (1995) 183 CLR 273, in which the High Court held that where a decision maker is exercising a discretion there may be legitimate expectation that the discretion will be exercised in accordance with Australia’s treaty provisions. However, my power is not discretionary, but adjudicative by reference to the criteria for a protection visa specified in the Act and regulations. The principles laid down in Teoh do not permit me to use treaty provisions to make a decision which is contrary to the requirements of Australia’s municipal law (Jayawardene v MIMA (2001) 60 ALD 425; Malik v MIEA (1998) 47 ALD 27 at 40) Teoh’s case does not therefore assist the applicant. The standard against which I am required to determine whether harm which the applicant fears is serious enough to amount to persecution is that set out in s.91R(2) of the Act and in the Convention definition itself.”

12. The Tribunal did not ignore the CROC as is clear from the extract set out above. It took a view of its duties in relation to the Convention that made the Convention irrelevant. This approach is supported by the cases referred to by the Tribunal and also by Fakatava v MIMA [2000] FCA 118 where the Court specifically approved of the dicta of Lindgren J in Sikahele v MIMA [1998] FCA 1453 where his Honour said at [7]:

    “Additionally, the decision in Teoh does not alter the law in Australia that the entry into a treaty by Australia does not create enforceable rights and obligations under Australian municipal law…the decision in Teoh goes no further than to hold that where there is room for the exercise of a discretionary judgment there may be a legitimate expectation that the government decision maker will exercise the discretion consistently with Australia’s treaty obligations. It does not permit decision-makers to use treaty provisions to make decisions which are contrary to the requirements of Australia’s municipal law.”

    As it seems to me that the Tribunal acted lawfully in the way in which it dealt with CROC and did not appear to have ignored it I cannot see how there can be any force in the argument that the failure to inform the mother that it proposed to “ignore” CROC amounted to a denial of procedural fairness.

13. Ground six raised by the applicant was that “the Tribunal failed to apply the law as to Refugee Status of members of a particular social group who have a well-founded fear of being persecuted, including children born in contravention of China’s one-child policy.” As I read the decision of the Tribunal it accepted that the applicant, being a black child, may well be a member of a particular social group. But the Tribunal came to the conclusion that any discrimination which might be suffered by this child through the discrimination suffered by its parents, such as the requirement to pay a fine or the requirement to pay privately for education and medical benefits, did not constitute persecution within the meaning of the Convention or s.91R Migration Act. That finding would appear to be a finding of fact which is one for the Tribunal alone: Prahastono v MIMA (1997) 77 FCR 260 at 269, 271 per Hill J; MIMIA v Kord (2002) 125 FCR 68 at [3], [56] and see also NAAQ v MIMIA [2003] FMCA 17. I am satisfied that there was independent country information which would have enabled the Tribunal to have come to the decision it did, but even if this finding of fact was wrong that is not a jurisdictional error: Abebe v Commonwealth (1999) 197 CLR 510.

14. In all the circumstances I am not satisfied that the applicant has shown any jurisdictional error on the part of the Tribunal in respect of any of the matters other than those concerning the constitutional issues arising out of the applicant having being born in Australia.

15. The applicant is in detention together with her parents. Notwithstanding this, she wishes the procedures under s.78B Judiciary Act to be followed. I propose to take the course set out earlier in these reasons and adjourn the matter until the decision in Singh is handed down by the High Court following which my associate will notify the parties of the date of the adjourned hearing.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date: