SZBXV v Minister for Immigration - [2005] FMCA 1884

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXV v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1884

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in China as a “black child”- constructive failure by the RRT to consider the application – RRT overlooked a relevant consideration or asked itself the wrong question in relation to the risk of persecution faced by the applicant – RRT erroneously conflated the issues of non registration of births and non compliance with the One Child Policy.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), s.477(1A)

Appellant S395 of 2002 v Minister for Immigration (2004) 203 ALR 112
Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
VBAP of 2002 v Minister for Immigration [2005] FCA 965

Applicant:

SZBXV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2497 of 2003

Judgment of:

Driver FM

Hearing date:

8 December 2005

Delivered at:

Sydney

Delivered on:

22 December 2005

REPRESENTATION

Counsel for the Applicant:

Mr J Atkin

Solicitors for the Applicant:

Coroneos & Company

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

The Refugee Review Tribunal is joined as the second respondent to the proceedings.
A writ of certiorari shall issue quashing the decision of the Refugee Review Tribunal handed down on 22 October 2003.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the proceeding according to law.
The first respondent shall pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2497 of 2003

SZBXV

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) handed down on 22 October 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following background facts are taken from the Minister’s written submissions.
The applicant was born in Australia on 5 June 2001. Both of his parents are citizens of the Peoples Republic of China. They lodged an application for a protection visa, on the applicant’s behalf, on 4 November 2002. A delegate of the Minister refused to grant the visa on 14 November 2002, and on 9 December 2002 the applicant applied for review of that decision by the RRT.[1]
[1] Relevant Documents (RD) 103.
On 22 October 2003 the RRT handed down its decision, affirming the decision of the delegate.[2]
[2] RD 102.
The RRT was satisfied, and proceeded on the basis, that the applicant was a citizen of China.[3] No complaint is made about that conclusion.
[3] RD 105.
The claim advanced on behalf of the applicant was, in short, that he was the second child of his parents and thus born in contravention of China’s “One Child Policy”. Accordingly, it was claimed, if he were to live in China he would be discriminated against and denied access to household registration, education, health care and other entitlements.[4]
[4] RD 106.
The RRT accepted that the applicant’s parents had contravened the policy in having a second child and that he would be regarded as a “black child”.[5] However, in the RRT’s view, it did not follow that he faced a real chance of being subjected to discriminatory treatment amounting to persecution. The RRT had regard to the following considerations:
a)household registration could be bought and officials can be bribed to overlook irregularities;[6]
b)country information suggested that a less stringent policy was applied to couples who had given birth to a second child overseas;[7]
c)country information also suggested that the application of the policy differs quite markedly between provinces;[8]
d)the failure of the applicants’ parents’ attempts to obtain registration for him did not mean that all avenues had been exhausted or that he would not be able to obtain household registration in China;[9]
e)country information also suggested that “black” children can be registered at a later stage on payment of a fine;[10]
f)recent economic developments in China, and his father’s skills as an engineer, meant that the applicant’s parents would be able to find suitable employment and would not have to return to their former home in Shandong province;[11] and
g)even if the applicant was not able to obtain registration, the consequences were not so conclusive as to amount to “persecution” in the relevant sense.[12]
[5]     RD 115.
[6]     RD 115.
[7]     RD 115.
[8]     RD 116.
[9]     RD 116.
[10]    RD 116.
[11]    RD 117.
[12]    RD 118.

The present application

The present proceedings were commenced by the filing of an application on 19 November 2003. There is therefore no issue as to the application of the limitation period in s.477(1A) of the Migration Act 1958 (Cth) (“the Migration Act”). I note that the applicant’s mother is his tutor (litigation guardian).
An amended application was filed on 4 August 2004, setting out eight grounds, of which grounds 1-6 identified alleged errors by the RRT.
At trial on 8 December 2005 the applicant relied upon a further amended application filed by leave on that day. That application joined the RRT as the second respondent. Save for the removal of an allegation of bias, the further amended application is substantially similar to the second application but somewhat more detailed. It purports to set out 14 grounds but only 13 assert error.

Submissions

Both Mr Atkin (for the applicant) and Mr Kennett (for the Minister) prepared written submissions and made oral submissions. It emerged from Mr Atkin’s submissions that the applicant’s attack on the RRT decision boils down to two issues:
a)an assertion that the RRT constructively failed to consider the applicant’s claims by failing to ask itself the right question in dealing with the applicant’s claim to have a well-founded fear of harm as a “black child” in China. The RRT erroneously assumed that the issue was simply whether the applicant could be registered (as a birth) and what the consequences of non registration were. The real issue, however, is asserted to be what the consequence was of the applicant being born in breach of China’s One Child Policy;
b)the RRT allegedly erred in failing to properly consider whether the applicant’s parents could relocate within China[13].
[13] The applicant relies upon the Federal Court decisions in Singh v Minister for Immigration [2000] FCA 1014 and NAIZ v Minister for Immigration [2005] FCAFC 37
In addition, I raised the issue whether the RRT had fallen into error by finding that the applicant could avoid the risk of persecution through his parents bribing officials in China to register him[14].
[14] see AppellantS395 of 2002 v Minister for Immigration (2004) 203 ALR 112
The Minister relevantly submits as follows:
Having accepted that the Applicant would be regarded as a “black child” in China, it fell to the Tribunal to determine whether he had a “well-founded fear” of “persecution”. (If he did, the Tribunal would still have had to consider the further question of whether “black children” formed a “particular social group” within the meaning of the Refugees Convention.) This was essentially a factual exercise.
The task involved necessary elements of speculation, and the assessment of likelihoods. The Tribunal had to form views about what might eventuate if the Applicant went to live in China and whether the various possibilities involved the Applicant suffering harm that would amount to “persecution”.
A necessary element in that process was some assessment of what the Applicant’s parents were (or would be) able to do to eliminate or minimise the adverse effects of “black child” status. In the absence of some strong indication to the contrary it is both safe and proper for a decision-maker to proceed on the assumption that a child’s parents will do what they reasonably can to advance the child’s interests.
This is the context in which the Tribunal came to consider: (i) the steps that the Applicant’s parents had taken to attempt to obtain registration with the Chinese authorities, and (ii) his parents’ employment prospects in China.
Contrary to what the Applicant’s submissions appear to suggest, the Tribunal did not treat recognition of refugee status as somehow subject to a requirement that the Applicant’s parents prove that they had done everything in their power. Nor was it necessary for the Tribunal to nominate specific things that the Applicant’s parents could have done and had not done. The point was simply that, because the steps which the Applicant’s mother had taken did not exhaust all of the possibilities, their failure could not be taken as proving that the Applicant would not be able to obtain household registration in China.
It should also be noted that, contrary to the Applicant’s submissions, the Tribunal gave direct attention to what the position would be if the Applicant were not able to obtain registration (including “what are the chances of persecution” in that event). It recorded its conclusion, based on country information, that denial of registration would not have consequences so serious as to amount to “persecution”.[15] (That finding was probably not strictly necessary. On a fair reading, the Tribunal appears to have concluded that the Applicant’s parents would in all likelihood be able to obtain registration for him.)
Assessment of the employment prospects of the Applicant’s parents was relevant to the likelihood that he would suffer persecution in two, or possibly three, ways:[16]
(a)the ability to find suitable private sector employment would enable the Applicant’s family to settle in a province that had a more liberal approach to the one child policy than their home province of Shandong;
(b)a good income would enable the Applicant’s parents to pay any necessary fines; and
(c)the ability to pay for such services as education would offset the disadvantages of being a “black child”, if the Applicant continued to have that status.
It follows from the first of these points that the Tribunal has considered (as it must) whether the Applicant has a well founded fear of persecution in China as a whole rather than some particular part of it. The issue was not one of “relocation” (the Applicant having never lived in any part of China, and his parents having been outside the country for six years), although the applicable principles are related to some extent. The Tribunal clearly did not accept that the Applicant and his family were bound to settle in Shandong (where, apparently, the administration of the one child policy was particularly strict); it considered that it was open to them (in view of the parents’ employment prospects) to live in some other province; and it therefore did not regard the position in Shandong as conclusive of whether the Applicant would be able to obtain household registration. In any event, the Tribunal also concluded that the inability to obtain registration would not spell persecution.
[15] RD 117-118.
[16] See RD 117.
In his oral submissions, Mr Kennett acknowledged that a distinction could be found in the country information between registration and compliance with the One Child Policy, but submitted that the RRT did not adopt that distinction and was not obliged to. He submitted that the RRT dealt with the applicant’s case as it was framed.
Mr Kennett further submits that the RRT did not fall into the kind of error identified by the High Court in S395. He submits that the task before the RRT was to focus on the applicant’s fear, not that of his parents, and, to the extent that bribery was an issue, it was only an issue affecting the parents.

Reasoning

The RRT decision is discursive which renders it difficult to determine precisely what its determinative findings were. At page 14 of the decision[18] the presiding member stated:
[18] RD 115
The Tribunal finds as follows:
There follows four pages of reasoning and the conclusion that the RRT is not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. Much of what appears under the heading of “Findings” is difficult to describe as findings. It appears to be reasoning.
At page 116 of the court book the presiding member said:
In addition, the Tribunal has noted country information cited earlier, regarding Chinese children born outside China in breach of the One Child Policy, which indicates that at a later stage such children can be registered on payment of a fine. The Tribunal noted country information which suggests that the hukou system has been under review and the significant variations in its application between provinces, as well as the prevalence of bribery, offers the applicant’s parents opportunities to circumvent the system.
If, by this statement, the presiding member was finding that the applicant’s parents could avoid the persecution of their child by bribery, then the presiding member fell into the error identified in S395 at [40]. Just as it is impermissible for a decision maker to expect an applicant to modify his or her behaviour to “live quietly” it is impermissible for a decision maker to expect an applicant to avoid the risk of persecution by engaging in the immoral and probably illegal practice of bribery. I reject Mr Kennett’s oral submission that this case can be distinguished from S395 on the basis that the bribery would be undertaken by the applicant’s parents rather than the applicant, who is a child. The applicant cannot personally fear persecution or avoid it. His fear, and the means of dealing with it, are expressed through his parents. For all practical purposes, the issue was whether the applicant’s parents had a well-founded fear of persecution and how they might avoid it.
Because of the discursive nature of the RRT’s decision it is by no means clear that the above quoted statement by the presiding member was determinative of the application. On balance I find that it was not. On a fair reading, in my view, the presiding member’s reasoning can be reduced to the following propositions:
a)it was unclear whether or not the applicant’s parents would be able to register the applicant with the Chinese authorities but the country information indicated that there were reasonable prospects of them being able to do so;
b)the rigorousness with which the One Child Policy is enforced in China varies throughout the country. In some areas the policy was not rigorously enforced and it was open to the applicant’s parents to move to one of those areas; and
c)in any event, the consequences of the applicant not being registered did not constitute serious harm amounting to persecution.
If the third element of the presiding member’s reasoning is free from jurisdictional error then the application must be dismissed. That is because that reasoning would support the decision independently of the presiding member’s other conclusions: VBAP of 2002 v Minister for Immigration [2005] FCA 965 at [33].
In these circumstances, the challenge to the RRT decision based upon the asserted misapplication of the principle of relocation falls away. That is because, even if the RRT did misapply that principle, the decision is potentially independently supported by the finding that the consequences of non registration did not amount to persecution. Conversely, if that finding is vitiated by jurisdictional error it is unnecessary to deal with the relocation finding. Apart from anything else, the approach by the RRT was fundamentally to assess the issue of registration or non registration. If that approach by the RRT was wrong, the decision as a whole is infected by jurisdictional error.
At page 118 of the court book, the presiding member found, based upon country information, that “the consequences of not being registered are neither conclusive nor exclusive”. The country information indicated that unregistered children could access private education even if public education was unavailable and that unregistered children are unlikely to suffer ostracism or ill treatment as a direct consequence of that situation. In substance, the country information pointed to little real difference between the circumstances of registered and unregistered children, either in childhood or in adult life.
If the RRT was correct in equating an unregistered child to a “black child”, then the assessment of the risk of persecution is in stark contrast to the assessment of the tribunal the subject of the decision of the High Court in Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293. At paragraph 6 the Chief Justice said:
The Tribunal found that, "because [the appellant] was born outside the parameters of [China's] One Child Policy, [and] also, and perhaps primarily, because he was born of an unauthorized marriage", he is what is known in China as a "black child". It also found that "black children" or "hei haizi" are a social group for the purposes of the Convention. Further, the Tribunal found that, as a "black child" in China, the appellant would be "denied access to food, education and to health care beyond a very basic level [and would] probably face social discrimination and some prejudice and ostracism".
It is indeed surprising if so much has changed in only a few years.
The RRT had available to it country information concerning the Chinese One Child Policy, some of which is reproduced at RD 109 and 110. That country information pointed to significant detriments facing “black children”, although the situation appeared to be less serious where the “black child” was born overseas. Significantly, the RRT placed emphasis on country information dealing with the ability to register children and the consequences of non registration. In particular, the country information relied upon relating to the consequences of non registration pointed to few serious problems. However, I accept Mr Atkin’s submission that the RRT in this case conflated the notion of being a “black child” with registration. This conflation may have derived from a DFAT cable reproduced at RD 110-113 in which a number of questions and answers are set out. The cable included the words[19]:
We are not certain that there is a widely accepted understanding of the concept of “black children” within Chinese society. If it simply means an individual who was not registered at birth, then that is readily understood.
In a second DFAT cable reproduced at RD 113 the following statement was made:
As noted in CX46100 we are not certain that there is a widely accepted understanding of the concept of “black children” within Chinese society. In standard parlance, this term appears to be a loose descriptive catch-all referring to children not formally registered at birth. PRC legislation requires all births to be registered. Children whose births are unregistered, for whatever reason, could be lumped together for ease of reference under the unofficial term “black children”. However, this is not a formally recognised category under PRC legislation.
CX46100 provided our understanding of the social context and possible implications for children whose births are not officially registered. As far as we are aware, individuals who are unregistered are unlikely to suffer ostracism or ill-treatment as a direct consequence of that situation.
[19] RD 111

The other information relied upon by the RRT related to the relative difficulty of obtaining registration for a child born in breach of the One Child Policy and the consequences of a child being unregistered. It was the latter information which was relied upon by the presiding member to conclude that, even if the applicant could not be registered, he would not suffer persecution. However, as is apparent from the country information, while the absence of registration may in general parlance be equated with being a “black child” they are not the same thing. A child may be unregistered for many reasons, including remoteness and a lack of understanding of the need for registration in rural areas. It is probably not coincidental that the country information pointed to a particularly lenient attitude being taken to non registration in rural areas. In my view, the presiding member fell into error in conflating the notion of non registration with being a “black child”. In so doing the presiding member asked himself the wrong question. In order to determine whether the applicant had a well-founded fear of persecution. The question was not what the consequence would be of not being registered but, rather, what the consequence would be of being a “black child” in the sense of one born in breach of the Chinese One Child Policy. The absence of registration was merely one consequence of being a “black child”, albeit an important one.
In my view, this point is illuminated by the country information reproduced at page 114 of the court book relating to the steps which need to be taken by Chinese living abroad when a “black child” is born abroad. Those steps involve registration of a case at a Chinese diplomatic mission, registration of the child upon presentation of a certificate issued by the diplomatic mission, together with a birth certificate issued in the country of birth and an instruction that the birth was not to be counted for the purposes of the family work unit birth quota. Where those steps are taken, work units are instructed not to punish the family of the “black child”. It is, in my view, apparent that the risk of harm under the One Child Policy stems essentially from the role played by local work units in enforcing the policy by reference to a birth quota. Registration is a necessary, but not in itself a sufficient, step to avoid the consequences of being in excess of the birth quota.
In my view, in asking himself the wrong question, the presiding member constructively failed to consider the applicant’s claims. Alternatively, the presiding member overlooked a relevant consideration by restricting his enquiries to the issue of registration, while the applicant’s claim was based on a fear of persecution due to non compliance with the One Child Policy, in respect of which registration was but one issue. These are jurisdictional errors[20] meriting relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
[20] VAT v Minister for Immigration [2004] FCAFC 255 at [16]
Costs should follow the event in this case. The Federal Magistrates Court Rules 2001 (Cth) in force from 1 December 2005 prescribe recoverable costs in the sum of $5,000 after a final hearing. Those rules do not necessarily apply to an application filed before the amendment of the rules but the sum of $5,000, in my view, is an appropriate one in this case on a party/party assessment. I will fix costs in that amount.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 22 December 2005

[17] Cf. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.