SZBXV v Minister for Immigration & Anor - [2007] FMCA 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBXV v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 28

MIGRATION – Application to review decision of Refugee Review Tribunal –Peoples Republic of China one child policy – whether Tribunal failed to have regard to the circumstances of the applicant child – whether Tribunal failed to consider and determine the impact of laws of general application – whether Tribunal failed to determine whether feared discrimination amounted to persecution – whether Tribunal made contradictory findings and failed to consider the cumulative effects of disadvantages that would be experienced by the applicant.

Migration Act 1958, s.91R

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 317
Chen v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293
Guitta Levy v Minister for Immigration & Multicultural Affairs [1998] FCA 1666
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
SZBPQv Minister for Immigration & Multicultural Affairs [2005] FCA 568
VTAO v Minister for Immigration & Multicultural Affairs [2004] FCA 927

Applicant:

SZBXV

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1765 of 2006

Judgment of:

Barnes FM

Hearing date:

17 October 2006

Delivered at:

Sydney

Delivered on:

22 February 2007

REPRESENTATION

Counsel for the Applicant:

Mr J. Atkin

Solicitors for the Applicant:

Coroneos & Company

Counsel for the Respondents:

Mr G. Kennett

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1765 of 2006

SZBXV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 25 May 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa.
The applicant was born in Australia in June 2001 as the second child of two nationals of the People’s Republic of China. His parents applied for a protection visa on his behalf on 4 November 2002.
The claims made in the protection visa application were, in essence, that, as a child born in contravention of the PRC’s “one-child” policy, the applicant would be likely to suffer serious harm amounting to persecution if he had to go to the PRC. It was claimed that the applicant would be denied access to education, medical and other basic rights, would continuously suffer discrimination throughout his life and would be denied the household registration required to access education, social welfare and employment.
The application was refused by a delegate of the first respondent on

14 November 2002. The applicant sought review by the Tribunal on

9 December 2002. His mother provided a statement and other material in support of the application for review. On 26 September 2003 the Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa (the first Tribunal decision). The applicant sought review of that decision in this Court. On 22 December 2005 Federal Magistrate Driver made orders quashing the Tribunal decision and requiring a reconsideration of the application by the Tribunal. The Tribunal (differently constituted) conducted a further hearing which the applicant’s parents attended. The applicant’s migration agents made further submissions. The second Tribunal decision, handed down on 25 May 2006, is the subject of these proceedings.

Tribunal decision

The Tribunal found that, as the child of nationals of the PRC, the applicant was a national of the PRC. It outlined the written material before it and the evidence given by the applicant’s parents at both Tribunal hearings.
The Tribunal addressed the issue of the credibility of the witnesses. It addressed the fact that, as it had indicated to the applicant’s parents in the course of the hearing, it had concern with aspects of the evidence of the applicant’s mother, in particular in relation to her claims about whether and why she had been refused permission to have a child on earlier occasions. The Tribunal considered that it was “quite clear” that the applicant’s mother had changed her evidence on these matters in a way she perceived would be to the applicant’s advantage.
Further, in light of the family planning regulations in Shandong Province, (where the parents came from) at the time of the birth of the couple’s first child, the Tribunal did not accept the assertion of the applicant’s father (who had a child from a prior relationship) that he and the applicant’s mother had already been in breach of the family planning policy as a result of the birth of the first child of their relationship.
In the findings and reasons part of its decision the Tribunal accepted that the applicant was born in breach of the family planning regulations in China because he was the second child of his parents’ relationship. However it had regard to regulations issued by the State Family Planning Commission stating that Chinese people who were studying abroad who had given birth to children in excess of the plan were not to be punished or fined on their return to China. It addressed submissions of the applicant’s representatives in relation to these regulations. However it found, based on country information from the Australian Department of Foreign Affairs and Trade (DFAT), that the regulations were not confined to students being sent abroad to study by government instrumentalities and that there was no restriction in the regulations to those who returned to China as students. The Tribunal found that the regulations specifically referred to the situation of people who, like the applicant’s parents, had applied for refugee status on the basis they would be punished for having given birth in excess of the plan if they returned to China.
The Tribunal addressed the evidence of the applicant’s mother that she had approached the Chinese Consulate in Sydney in an attempt to register the applicant but had been turned away. Having regard to the view it had formed of the credibility of the applicant’s mother, the Tribunal did not accept her evidence in this regard. It found that the relevant regulation had been made by the State Family Planning Commission and that there was no reason to believe that the regulation would not be applied in the case of the applicant.
In considering the position of the applicant child, the Tribunal also had regard to claims that had been made by the applicant’s father (in his application for a protection visa) that he had been involved in Falun Gong and in pro-democracy demonstrations in 1989. In the absence of evidence confirming that the applicant’s father was a genuine Falun Gong practitioner, the Tribunal did not accept that he was currently engaged in Falun Gong activities, nor that if he returned to China now or in the reasonably foreseeable future he would wish to be involved in such activities or to practice Falun Gong. It found nothing in the evidence to suggest that the Chinese authorities were aware of any past involvement that the applicant’s father may have had in Falun Gong activities in Australia.
Further, the Tribunal did not accept that the applicant’s father’s involvement in pro-democracy demonstrations in 1989 would have an adverse effect if he returned to China now. The applicant’s father had expressed concern that any application for household registration could be rejected if the Chinese government was to be aware that he and his wife had applied for refugee status in Australia. However the Tribunal found nothing in the evidence before it to suggest that the Chinese authorities were aware of this fact. The Tribunal also had regard to independent country information in relation to treatment of failed refugee claimants. It did not accept that the applicant’s parents would be denied household registration because of any political opinion imputed to them if they returned to China now or in the reasonably foreseeable future and found that, as far as the authorities were concerned, there would be nothing to distinguish the applicant’s parents from any other Chinese nationals returning from study abroad.
The Tribunal continued:
Having regard to the regulation made by the State Family Planning Commission with the approval of the State Council (DFAT Country Information Report No. 308/98, dated 30 July 1998, CX31344), I do not accept that the Applicant’s parents will be punished or fined on their return to China because the Applicant was born “in excess of the plan” nor that the Applicant will be denied household registration for this reason. I find, therefore, that the Applicant will not be a “black child” in China, that is, an unregistered child (DFAT Country Information Report No. 39/03, dated 27 February 2003, CX73769). I do not accept that there is a real chance that, if the Applicant goes to China with his parents now or in the reasonably foreseeable future, he will suffer social, legal and economic disadvantages by reason of being denied household registration including a denial of public education, health and welfare benefits, social discrimination, prejudice and ostracism, an inability to gain access to tertiary education, limited job opportunities, the inability to vote or to stand as a candidate for public office, the inability to register his marriage or to have children of his own, the inability to apply for a driver’s licence or a passport or even a permit to ride a bicycle, the inability to hold public office or to become a member of the Chinese armed forces and the inability to own property, to run his own business, to get personal insurance or loans or to sue.
Based on country information the Tribunal found that a “black child” was an unregistered child whose birth may or may not violate family planning regulations. It found, consistent with advice from DFAT, that some children born in breach of the family planning regulations would nonetheless be able to be registered and would therefore not be “black children”, while other children who were unregistered and were therefore “black” were unregistered in circumstances where their lack of registration had nothing to do with any breach of the family planning regulations. The Tribunal continued:
I accept that, notwithstanding my finding that the Applicant will not be denied household registration and that he will therefore not be a “black child”, he may nevertheless suffer some discrimination and prejudice arising from the fact that he has been born in breach of the “one child” policy. I accept that, as the Applicant’s father said at the hearing before me, Shandong has implemented family planning since the 1950’s and that it has been implemented very strictly with the result that people will “look at you with different eyes” if you have had a child outside the family planning policy. However social ostracism will not normally amount to persecution without something more (see Guitta Levy v MIMA, unreported, Federal Court, Tamberlin J, 21 December 1998). I do not accept on the evidence before me that there is a real chance that any social ostracism which the Applicant may suffer as a result of his having been born “in excess of the plan” will amount to persecution involving “serious harm” as required by paragraph 91R(1)(b) of the Act.
I likewise accept that, as the Applicant’s father said at the hearing before me, the Applicant will not get the benefits conferred by Chinese Government policy on only children. However, as I put to the Applicant’s father, it is always possible for governments to have policies which benefit certain groups. This is not the same thing as discriminating against people by denying them basic rights. The Applicant’s father suggested that the way they treated people who were in breach of the family planning policy was different from giving preference to people in need or a weaker class. However the question is whether a law or policy of general application is appropriate and adapted to achieving a legitimate national objective (see Applicant S v MIMA (2004) 217 CLR 387 at paragraphs [43] to [45] per Gleeson CJ, Gummow and Kirby JJ). Offering financial incentives to parents who restrict themselves to having only one child may be considered to be appropriate and adapted to meeting an objective the pursuit of which is required in order to promote the general welfare of the State. (In different circumstances, of course, a State may offer financial incentives to parents to have more children.) This is clearly distinguishable from the denial of basic rights which the High Court said in Chen, referred to above, amounted to such a significant departure from the standards of the civilised world as to constitute persecution. I do not accept that the fact that the Applicant will not be eligible for the benefits conferred by Chinese Government policy on only children amounts to persecution involving “serious harm” as required by paragraph 91R(1)(b) of the Act.
I also accept that, as the Applicant’s father said at the hearing before me, there is a real chance that the Applicant will be denied access to government employment in China because he was born in breach of the family planning policy. In times gone by that might have amounted to persecution because of the limited opportunities available in the private sector in China but, as was discussed at the previous hearing before the Tribunal (differently constituted), China has a rapidly growing private sector. I do not accept that, as the Applicant’s father said at the hearing before me, the Applicant will be denied priority in private sector employment compared to a child born in accordance with the family planning policy. While I accept that potential employers may be able to tell that there is more than one child in a family I do not accept that they will be able to tell from this fact alone that the second child was born in breach of the family planning policy. I do not accept that there is a real chance that the Applicant will suffer discrimination in obtaining employment that is so serious, or causes him such significant hardship or detriment, as to amount to persecution involving “serious harm” as required by paragraph 91R(1)(b) of the Act.
Finally the Tribunal considered the cumulative effect of the problems that it accepted the applicant would face as a result of having been born “in excess of the plan”, but was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason if he went to China with his parents. Hence it found that he was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol and did not satisfy the applicable criterion for the grant of a protection visa.

This application

The applicant sought review by application filed in this Court on

22 June 2006. The grounds in the application are as follows:
1. The Tribunal in deciding that the “One Child Policy” was a law of general application and appropriate to achieving a legitimate national objective:
(a)     looked at the position of the parents without regard to the circumstances of the applicant child. In doing so the Tribunal did not apply the Real Chance Test; and
(b)     failed to deal with the question of whether a law, being one of general application, was nonetheless persecutory of the applicant and thus failed to determine the application before it;
(c) failed to consider the question of whether such laws were selectively enforced and therefore constituted discrimination; and
(d)     failed to consider whether such laws were persecutory by reference to standards of common humanity.
2. Whilst the Tribunal found that the applicant child would suffer social ostracism, the Tribunal did not consider the nature and extent of the ostracism and therefore failed to determine whether the discrimination feared by the Applicant would amount to persecution and in particular failed to consider the legal and social factors prevalent in the community.
3. The Tribunal whilst finding that the applicant’s parents will not be persecuted or fined upon their return to China and further found that there was a real chance if the applicant child went to China he would not suffer a social and economic disadvantage, but the Tribunal also found that there were significant financial consequences for families having more than one child without determining whether those consequences could amount to persecution.
4. In failing to determine the matter before it the Tribunal fell into jurisdictional error.

Applicant’s submissions

Counsel for the applicant summarised the grounds of review as a contention that the Tribunal had failed to consider and determine the impact of laws applicable to children born in contravention of the one child policy, erred in finding that the applicant would not suffer a real chance of persecution by reason of social ostracism and in not being eligible for government employment and consequently failed to consider the cumulative effects of the disadvantages that would be experienced by the applicant as a second child in the PRC.
It was submitted that the Tribunal first found that the applicant could be registered, therefore would not be a black child and would not suffer “social, legal and economic disadvantages”. However it was said that the Tribunal then found that nonetheless the applicant would incur disadvantages of social discrimination and prejudice, loss of benefits conferred on only children and denial of access to government employment and that there was a lack of clarity and a contradiction in these findings.
It was suggested that, adopting a beneficial reading of the decision, it appeared that the Tribunal found that while the applicant would suffer disadvantage by reason of having been born in contravention of the one child policy, such disadvantage was not sufficient to amount to serious harm. However it was contended that the Tribunal erred in making such findings.
First, it was submitted that the later finding that the applicant may “suffer some discrimination and prejudice arising from the fact that he has been born in breach of the one child policy” contradicted the earlier finding that he would not be a black child and would not suffer “social, legal and economic disadvantages”. Further it was said that while the Tribunal found that social ostracism would not amount to persecution within s.91R of the Migration Act 1958 (Cth) it did not give reasons for this finding or elaborate upon it.
It was also submitted that there was also a contradiction in the findings that the applicant would not get the benefits conferred on only children and the finding that the applicant would not be a black child and would not suffer “social, legal and economic disadvantages” and that while the Tribunal drew a distinction between being deprived of benefits by reason of a law of general application as opposed to being penalised, this distinction blurred a critical issue. The Tribunal contended that the Tribunal failed to assess whether there was a real chance that the applicant would suffer serious harm if he were forced to return to the PRC.
In support of this general contention it was noted that the benefits that would not be available to the applicant were not identified in the Tribunal reasons for decision in connection with the finding that the applicant would not get benefits conferred by the government on only children. There was said to be evidence before the Tribunal referred to in the decision (including in the Shandong Family Planning Regulations) as well as in the submissions from the applicant’s parents that such benefits might include access to drugs, lack of equal opportunity in education, medical attention and the cost of drugs, the right to own property, the right to register for marriage and have a child and the ability to serve in the military forces. It was submitted that if such benefits were those that the Tribunal member had in mind in making the finding that the law was not a penalty, then the Tribunal fell into error in determining there was no persecution and also fell into error in finding there would be no “legal, social or economic disadvantages” because of the benefits of registration.

On the other hand, it was submitted that if the Tribunal had in mind those benefits identified in conjunction with the finding that the Tribunal did not accept there was a real chance the applicant would suffer social, legal and economic disadvantages by being denied household registration (that is “including a denial of public education, health and welfare benefits, social discrimination, prejudice and ostracism, an inability to gain access to tertiary education, limited job opportunities, the inability to vote or to stand as a candidate for public office, the inability to register his marriage or to have children of his own, the inability to apply for a driver’s licence or passport or even a permit to ride a bicycle, the inability to hold public office or to become a member of the Chinese Armed Forces and the inability to own property, to run his own business, to get personal insurance or loans or to sue”), as the Tribunal had found that the applicant would not be deprived of those benefits, then the subsequent findings that the applicant would incur disadvantages, namely social discrimination and prejudice, loss of benefits conferred on only children and denial of access to government employment would not have been “necessary”.
It was suggested for the applicant that the difficulty was that while the Tribunal accepted that the applicant would suffer some discrimination and prejudice and would not receive the benefits that single children get, it did not actually identify those benefits in any detail other than as a general description. It was said that if one went back to what the applicant’s father had said about such concerns, his claim was that such benefits extended to a variety of matters, not just financial incentives. It was submitted that it was possible that the Tribunal had in mind the concerns raised by the father and also the mother’s evidence in relation to those matters which was not rejected by it. Moreover, the family planning regulations were said to indicate that even with registration there was a denial of a wide variety of benefits that would continue throughout life.
Further, it was suggested that in considering such matters and dealing with whether the law was a law of general application, the Tribunal seemed to have merged the concepts of a financial incentive to parents and benefits conferred on only children. It was submitted that whether one had regard to a conferral of a benefit or deprivation of a benefit, what was critical was not simply whether the law was of general application but the impact of the law and whether that impact amounted to serious harm. Hence it was submitted that in stating that a law was of general application and in drawing a distinction between getting a benefit or not getting a benefit, the Tribunal had failed to identify the critical issue of the impact of the laws, consistent with the approach in Chen v MIMA (2000) 201 CLR 293, in particular the observation at [18] per Gleeson CJ, Gaudron, Gummow and Hayne JJ that:
notwithstanding that China’s ‘one child policy’ may be reflected in laws of general application which limit the number of children that a couple may have, that does not mean that the laws or practices applied to children born in contravention of that policy are laws or practices of general application. Such children are … persecuted for what they are (the circumstances of their parentage, birth and status) and not by reason of anything they themselves have done…
It was pointed out that in discussing the suggestion by McHugh J in Applicant A v MIEA (1997) 190 CLR 225 that “[w]hether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct [but] … on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group”, Gleeson CJ, Gaudron, Gummow and Hayne JJ had continued in Chen at [21]:
To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory.
It was noted that their Honours had adopted (at [28]) the test of McHugh J in Applicant A v MIMA (1997) 190 CLR 225 at 258, that whether different treatment of persons amounted to persecution depended on “whether different treatment is appropriate and adapted to achieving some legitimate object of the country”. Their Honours continued:
Whether the different treatment of different individuals is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. 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 significant departure from the standards of the civilised world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective (Chen at [29] and see Kirby J at [73]).
On this basis it was contended for the applicant that it was not sufficient for the Tribunal merely to say that a law was one of general application and therefore did not constitute persecution, particularly when it came to a denial of basic rights that ordinarily one would expect the State to pay for or to provide (see Kirby J in Chen at [73]).
It was suggested that while s.91R of the Migration Act 1958 (Cth) did not specifically refer to laws of a country in considering whether serious harm was involved (as the test was one of serious harm however caused), laws of general application which were apparently non-discriminatory may nonetheless impact differently upon different people and thus be discriminatory (see Chen and VTAO v MIMA [2004] FCA 927 at [38]). It was submitted that the Tribunal had erred in failing to consider the impact of the laws on the applicant and whether the different treatment was “appropriate and adapted to achieving some legitimate object of the country” (see Applicant A v at 258 per McHugh J).
Thus it was submitted that the Tribunal had failed to determine the effect of the laws by reference to the applicable criteria and had applied the wrong test. Further, it was contended that the Tribunal had failed to consider the question of whether such laws were selectively enforced and therefore constituted discrimination, in failing to consider whether Shandong Province (from where the applicant’s family came) was a conservative province within China where laws were strictly enforced. The critical point was said to be that the Tribunal had failed to consider whether such laws were persecutory by reference to standards of common humanity and that if the laws did benefit single children as found by the Tribunal, that finding failed to determine the critical issue, as a law benefiting single children by providing them with basic rights could be said to deny those rights to other children to such an extent that it may amount to a significant departure from the standards of the civilised world.
Counsel for the applicant also contended that insofar as it might be suggested for the respondent that the Tribunal did not err because it made a finding that the conferral of benefits on single children and the fact that the applicant would not get these benefits was not such as to amount to persecution, in making the finding in issue the Tribunal had considered only the offer of financial incentives to parents who restricted themselves to having one child. It was said that eligibility for the benefits conferred by the Chinese government policy on only children was not the same concept as financial incentives for parents.
Next, it was contended that the Tribunal had erred in its consideration of the issue of access to government employment. The Tribunal had found that there was a real chance that the applicant would be denied access to government employment. Again it was said that this finding was apparently in conflict with the finding that the applicant would not be a black child and would not suffer “social, legal and economic disadvantages”. It was submitted that while the Tribunal did not accept the applicant would be denied priority in a rapidly growing private sector and hence found that he would not suffer discrimination, the denial of government employment was discriminatory but the Tribunal did not appear to have considered the impact of being deprived of employment by what was the largest employer in the country.
Finally it was contended that the Tribunal failed to consider the cumulative impact of the discrimination the applicant would suffer as a second child in the PRC.

Respondent’s submissions

It was submitted for the first respondent that the Tribunal reasons for decision had to be read with an eye not too finely attuned to the perception of error (see MIEA v Wu Shan Liang (1996) 185 CLR 259) and, in particular, that the Tribunal passages in issue had to be read in the context of the whole of the decision. On that basis it was submitted that there was no contradiction in the Tribunal’s reasoning and that the Tribunal did not fail to deal with any relevant issue.
Counsel for the first respondent addressed the passages extracted at paragraphs 13 and 14 above and drew a distinction between what the Tribunal was discussing in the passage that began “Having regard to the regulation made by the State Family Planning Commission” and what it later found in the paragraph which commenced “I likewise accept that, as the Applicant’s father said at the hearing …”.
It was contended that while if the two passages were read literally there may be a difficulty reconciling the Tribunal’s initial statement that there would be no social, legal and economic disadvantages when there was a subsequent acceptance that there was a possibility of that occurring, it was necessary to read the initial passage in context. Part of that context was said to be the subsequent finding which distinguished financial incentives from the denial of basic rights referred to in Chen. On this basis it was said to be clear that the earlier finding was that there was a “suite” of adverse impacts arising from being a black child, some of which were listed and that the applicant would not face that suite of significant disadvantages because he would not be a black child, notwithstanding that, as the Tribunal later found, he would face some difficulties. Hence it was contended that there was no contradiction in the Tribunal reasoning.
It was suggested that in the first of the two passages in issue the Tribunal made quite a clear finding that the applicant would not be denied household registration in China by reason of having been born outside the family planning regulations and found therefore that the applicant would not be a “black child” in China. It was acknowledged that this finding may encompass within it an assumption that the applicant’s parents would register the applicant.
It was suggested that what was important was that thereafter the Tribunal did not simply find that it did not accept that there was a real chance that the applicant would suffer uncategorised social, legal and economic disadvantages by reason of being denied household registration in China (which would have been difficult to reconcile with what was said later in the reasons). Rather that it found was that it did not accept that the applicant would suffer such disadvantages “including” a long list of specified and extremely significant disadvantages, many of which echoed things that the applicant’s parents had suggested would befall the applicant. It was contended that what the Tribunal was stating was that this was the range of ill-treatment which might follow from being a black child which would not befall the applicant. In other words it was said that the Tribunal found that the disadvantage the applicant may suffer would not go so far as these measures.
It was submitted that while the Tribunal subsequently accepted that the applicant may nonetheless suffer “some discrimination and prejudice arising from the fact that he has been born in breach of the ‘one child’ policy”, it was clear reading the Tribunal reasons as a whole that what the Tribunal was referring to was the social ostracism referred to by the applicant’s father who had suggested that people would “look at you with different eyes” if you had a child outside the family planning policy. It was said to be clear from the Tribunal conclusion that it did not accept on the evidence before it that there was a real chance that any social ostracism the applicant may suffer as a result of having been born “in excess of the plan” would amount to persecution involving serious harm within s.91R(1)(b) of the Act, that while it referred to “discrimination and prejudice”, what was in issue was social ostracism rather than legal or economic disadvantages.
On this basis there was said to be no contradiction in the Tribunal’s reasoning in this respect, as the Tribunal found that the applicant may face some degree of “ostracism” and may be disadvantaged to some degree compared to an only child, but that he would not be a “black child” or face the denial of basic rights and services that that would entail.
It was also contended that in accepting that, as the applicant’s father had said, the applicant would not get the benefits conferred on only children by the Chinese government policy, the Tribunal was expressly adopting part of the set of predictions made by the applicant’s parents as to the circumstances the applicant would face on return to China as a child born outside the one child policy. This was said not to be inconsistent with the Tribunal’s rejection of other aspects of the parents’ evidence, or its particular concerns about the credibility of the mother’s evidence. Rather, the Tribunal accepted the evidence from the applicant’s father at the Tribunal hearing in this respect as summarised earlier in the reasons for decision. While the precise nature of the “benefits” conferred on only children was not spelt out by the Tribunal in the findings and reasons part of its decision, it was said to be clear that such benefits constituted the “financial incentives” to parents of only children and that these benefits were seen as fundamentally different from the denial of basic rights which followed from being a “black child”. On this basis it was contended that the submission that the Tribunal found the applicant to be potentially subject to the very serious disadvantages suggested by his parents in evidence as part of the treatment faced by “black” children could be discounted.
It was submitted that the Tribunal not only accepted that the applicant would not get the benefits conferred by a Chinese government policy on only children but also addressed the question of whether a law or policy of general application was appropriate and adapted to achieving a legitimate objective (see Applicant S v MIMA (2004) 217 CLR 317 at [43] – [45] per Gleeson CJ, Gummow and Kirby JJ). It was said to be clear that the Tribunal finding in relation to financial incentives was that offering such incentives to parents who restricted themselves to having only one child was appropriate and adapted to meeting an objective the pursuit of which was required in order to promote the general welfare of the State and was distinguishable from a denial of basic rights which amounted to such a significant departure from the standard of the civilised world as to constitute persecution. That the Tribunal was considering the fact that the applicant would not get the benefits conferred by the Chinese government’s policy on only children (which included financial incentives offered to parents of only children) was said to be clear from the fact that that paragraph concluded with the Tribunal finding that it did not accept that the fact that the applicant would not be eligible for benefits conferred by Chinese government policy on only children amounted to persecution involving serious harm.
Hence it was submitted that the Tribunal was not erecting a fundamental distinction between benefits on the one hand and penalties on the other, but rather that the distinction being drawn was between the very serious denials of rights referred to in Chen which would have applied to those denied household registration (as summarised earlier in the reasons for decision) on the one hand, and what it considered were benefits conferred on only children (such as financial incentives offered to parents of only children) on the other hand.
Thus it was submitted for the respondent that it was clear reading the Tribunal decision as a whole, that the Tribunal correctly considered not only whether a law was of general application but also the impact of the law, in particular whether it was “appropriate and adapted to achieving a legitimate national objective” (see Applicant S at [43] – [45]).
Indeed, it was contended that the Tribunal quite properly analysed the question of whether such disadvantage as the applicant faced by virtue of not being an only child was persecutory and moreover also made its decision on the basis that it did not accept that the fact that the applicant would not be eligible for the benefits conferred by Chinese government policy on only children amounted to persecution involving serious harm within s.91R(1)(b) of the Act. There were said to be two bases for the Tribunal decision, first that the treatment the applicant may encounter was not treatment visited upon him as a consequence of any Convention ground because it was the consequence of application of a general law adapted to achieve a legitimate national objective and secondly because such treatment was not serious harm.
Counsel for the respondent also addressed the applicant’s submissions in relation to denial of access to government employment. It was acknowledged that the Tribunal expressly accepted that at times in the past denial of government employment in China might have amounted to persecution because there was little other employment available. However it was pointed out that the Tribunal was of the view that such reasoning would no longer apply, given the existence of a large and expanding private sector. It had found that in such circumstances denial of government employment, while obviously discriminatory, would not be likely to amount to “significant economic hardship that threatened a person’s capacity to subsist” (see s.91R(2)(d)) and no error was apparent in this respect.
Finally, it was contended that the Tribunal had expressly considered the cumulative effect of the possible difficulties to be faced by the applicant at the conclusion of its reasons for decision. Hence it was submitted that the Tribunal did not fall into any of the errors contended for by the applicant, but dealt with all the relevant issues. Further, as the Tribunal found that the degree of disadvantage that the applicant may face did not constitute persecution, it was submitted that it was not necessary for it to consider whether such harm would be inflicted on the applicant as a member of a particular social group.

Reasoning

Underlying the grounds of review is a contention that there was an inconsistency between the Tribunal’s finding that the applicant would not be a black child and would not suffer “social, legal and economic disadvantages” and its subsequent acceptance that the applicant would incur disadvantages of social discrimination and prejudice, loss of benefits conferred on only children and denial of access to government employment.

The initial finding in issue is that the Tribunal did not accept that there was a real chance that if the applicant went to China with his parents now or in the reasonably foreseeable future, “he will suffer social, legal and economic disadvantages by reason of being denied household registration including a denial of public education, health and welfare benefits, social discrimination, prejudice and ostracism, and inability to gain access to tertiary education, limited job opportunities, the inability to vote or to stand as a candidate for public office, the inability to register his marriage or to have children of his own, the inability to apply for a driver’s licence or a permit to ride a bicycle, the inability to hold public office or to become a member of the Chinese armed forces and the inability to own property, to run his own business, to get personal insurance or loans or to sue.”
However, critically, this finding followed the finding that the applicant would not be a “black child” in China, that is, an unregistered child. While it is clearly implicit in this finding that the applicant’s parents would be willing to and would obtain household registration for the applicant, such an assumption was reasonable in light of the evidence of the applicant’s parents to the Tribunal. In this context the Tribunal dealt not only with the question of whether the applicant’s parents would be punished or fined on their return to China (and hence the issue of whether there might be some obstacle to registration of the applicant), but also with the specific issue of whether the applicant would be denied household registration because he had been born ‘in excess of the plan’. Contrary to the contentions for the applicant, the Tribunal considered the position of the applicant child in determining whether there was a real chance of serious harm befalling him having regard to his circumstances, including his membership of a family unit in which it was reasonable to assume that the father was willing, and on the Tribunal’s findings able, to obtain household registration for the child (see SZBPQv MIMA [2005] FCA 568 at [27] – [28] per Hely J and Chen at [78] per Kirby J).
While the Tribunal went on to accept that there was a possibility of the applicant suffering some disadvantages, in the first paragraph in issue the Tribunal finding was clearly a finding that there was no real chance that the applicant would suffer social, legal and economic disadvantages “by reason of” being denied household registration. In other words this was a finding that he would be able to be registered and so would not suffer disadvantages (such as the listed disadvantages) as a consequence of being a black child.
This interpretation is consistent with the claims made for the applicant in his original application, in the written submissions from his mother and the applicant’s representatives and in the Tribunal hearing about the consequences of being a black child. Included in the list of disadvantages that the applicant would not suffer by reason of being denied household registration (that is because he would not be a black child) were matters such as “social discrimination, prejudice and ostracism” as a black child and “a denial of public education, health and welfare benefits” as well as “limited job opportunities” available to black or unregistered children.
Moreover it is clear, reading the Tribunal reasons for decision as a whole, that when the Tribunal accepted that, despite the fact that the child would not be a black child, he may “nevertheless suffer some discrimination and prejudice arising from the fact that he had been born in breach of the one child policy” (emphasis added) it was referring to the claims of the applicant’s father at the hearing in this respect.
The applicant’s father made claims first about what he feared would happen to the applicant if the family returned to China with a child who was not registered by the government and was without a “hukou” or an identity card (what the applicant’s father described as a “black child”). In particular he made a number of claims about the benefits such a black child would not receive, the prospect of different treatment of such a child and discrimination against black children. However the Tribunal recorded that it discussed with the applicant’s father what would happen if the applicant had a “hukou” and that he agreed that the child would no longer be a “black child” and might be admitted to a public school, but nonetheless claimed that he might be charged more compared to an ordinary child and that he would not get the benefits offered to single children, although it was conceded that he would be able to obtain health care and would have other rights like the right to vote and run a business. The applicant’s father is recorded as having said in this context that the applicant might face greater difficulties in doing certain things when compared to a single child and “would be put at the back of the queue whereas single children were given a lot of benefits”.
The Tribunal observed that it had noted in the hearing that it was always possible for governments to have policies which benefited certain groups and that this was not the same as discriminating against people by denying them basic rights. The applicant’s father was recorded as suggesting that the way “they treated people who were in breach of the family planning policy was different to giving preference to people in need or a weaker class”. The applicant’s father went on to say that even if the applicant had a “hukou” it would be very difficult for him to get a government job and that, on the basis of his previous experience, children born in breach of the family planning policy were denied access to government employment.
Importantly, the Tribunal recorded that the applicant’s father agreed that of all the problems he had mentioned, the one thing that would not be overcome by the applicant obtaining a “hukou” would be access to government employment and that he also claimed the applicant would face discrimination from his peer group and would not be given priority in private sector employment compared to a child who had been born in accordance with the family planning policy. There was then a discussion of how a private sector employer would know that the applicant had been born in breach of the family planning regulations.
As contended for the first respondent, it is clear that the Tribunal accepted the applicant’s father’s evidence that even if the applicant was not a black child he would nonetheless face certain “problems” as a result of having been born “in excess of the plan” that would not be overcome by being registered. Such acceptance is not inconsistent with the Tribunal’s concerns with the credibility of the applicant’s mother (or with its rejection of the applicant’s father’s claim that he and the applicant’s mother had already been in breach of family planning policy as a result of the birth of the first child of their relationship.)
Having accepted that, as his father claimed, the applicant would face certain problems even if registered because he had been born outside the one child policy, the Tribunal then considered the extent of such problems and whether the problems amounted to persecution involving serious harm as required by paragraph 91R(1)(b) of the Act.
The first such “problem” was the claim that having been born in contravention of the one child policy the applicant would suffer some discrimination and prejudice even if he was registered and hence not a black child.
It was contended for the applicant that the Tribunal did not consider the nature and extent of the ostracism the child would suffer (see ground 2 of the application). However it is apparent from the Tribunal’s account of the hearing (which is the only evidence of what occurred in the Tribunal hearing before the Court) that in the discussion of what difficulties the applicant might nonetheless face if he had a hukou and was no longer a black child, the applicant’s father suggested that the applicant would “also face discrimination from his peer group”. That this was the nature and extent of the ostracism under consideration in the relevant part of the findings and reasons is consistent with the Tribunal’s reference to the applicant’s father’s claim at the hearing (when asked about discrimination by the applicant’s peers) that China had had family planning for 20 years and that if you had a child outside the family planning policy, not just the government but also your friends and colleagues would “look at you with different eyes”.
Read in the context of this discussion, it is apparent that when the Tribunal accepted that while the applicant would not be a black child he may nonetheless suffer some “discrimination and prejudice” because he had been born in breach of the one child policy, it was addressing the applicant’s father’s claim that people would “look at you with different eyes” if you had been born outside the one child policy. The Tribunal addressed the nature and extent of the ostracism claimed. Contrary to the applicant’s submission it also considered the information before it in relation to legal and social factors prevalent in the community, in particular Shandong Province’s very strict implementation of family planning laws since the 1950s.
The Tribunal also addressed whether social ostracism as such (and there is no evidence that anything broader had been claimed) amounted to serious harm constituting persecution within s.91R. It was in that context that it found that social ostracism will not normally amount to persecution without something more (see Guitta Levy v MIMA [1998] FCA 1666 per Tamberlin J suggesting that “generally speaking, social hostility would not properly be described as persecution in the context of a Convention concerning refugees, which has focused, to a large extent, on the protection of core human rights”). The Tribunal also considered s.91R(1)(b) in finding that it did not accept on the evidence before it that there was a real chance that any social ostracism the applicant may suffer as a result of having been born “in excess of plan” would amount to persecution involving “serious harm”. Such findings addressed a specific “problem” which the applicant’s father had suggested would continue to be a problem, even if the applicant obtained registration. It was not inconsistent with the Tribunal’s earlier finding in relation to a lack of a real chance that the applicant would suffer a specified “suite” of disadvantages by reason of being denied household registration and hence being a black child. Ground 2 is not made out.
Moreover, it is clear that in considering whether the applicant would face persecution as a child born in breach of the one child policy, albeit he would not be a black child after his return to China and registration, the Tribunal considered each of the issues raised by the applicant’s parents in this respect, addressed the circumstances of the child and considered whether the problems contended for constituted serious harm as required by s.91R(1)(b) of the Migration Act. As set out above it first considered this issue in relation to ostracism (as well as the issue of whether social ostracism of itself would normally amount to persecution).
In relation to the issue of benefits conferred by the Chinese government policy on only children, the Tribunal accepted that, as the applicant’s father had said at the hearing, the applicant would not get such benefits. However it did not accept that the fact the applicant would not be eligible for such benefits involved serious harm as required by s.91R(1)(b) of the Act.
The Tribunal did not find that there were “significant financial consequences for families having more than one child” as contended for in ground three of the application. Rather, it accepted the claims made for the applicant and the evidence before it that financial incentives may be offered to parents who restricted themselves to having only one child. Reading the Tribunal decision fairly and as a whole, it is apparent that in accepting that the applicant would not get the benefits conferred by the Chinese government policy on only children the Tribunal accepted that those benefits were as asserted by the applicant’s father at the Tribunal hearing. Putting on one side the question of whether such benefits would include priority in private sector employment (an issue considered separately by the Tribunal in relation to the question of denial of access to government employment) it is clear that the Tribunal addressed not only the question of financial incentives offered to parents but also the other issues raised and the cumulative effect of the problems (that is the problems contended for by the applicant’s father other than those specifically rejected) which the Tribunal accepted the applicant would face as a result of having been born in excess of the plan.
One of the reasons for the Tribunal finding that the denial of certain financial benefits did not constitute “persecution” was that these were conferred under laws of general application that the Tribunal saw as appropriate and adapted to meeting an objective the pursuit of which was required in order to promote the general welfare of the State. The Tribunal distinguished such circumstances from the denial of basic rights referred to in Chen which would amount to such a significant departure from the standards of the civilised world as to constitute persecution. In making these findings the Tribunal expressly considered the impact and appropriateness of the laws in a manner consistent with Chen. The Tribunal was not erecting a distinction between benefits and penalties as contended, but rather drawing a distinction between a denial of basic rights as referred to in Chen and what it considered were benefits conferred on only children (such as financial incentives offered to parents of only children) on the other hand. In this context the Tribunal addressed the father’s claim that “the way they treated people who were in breach of the family planning policy was different from giving preference to people in need or a weaker class.” The Tribunal considered not only that such disadvantages as the applicant faced by virtue of not receiving the benefits conferred on an only child were not persecution, but also did not accept that the lack of the benefits identified by the father as those the applicant would not receive amounted to serious harm within s.91R(1)(b).
Contrary to the contention for the applicant, the Tribunal did not consider only the offer of financial incentives to parents who restricted themselves to having only one child. It is clear that it considered the general issue of benefits available to only children as contended for by the applicant’s father and in that context addressed his claim that the way the Chinese treated people who were in breach of the family planning policy was different from giving preference to people in need or a weaker class. The Tribunal discussion of a law or policy of general application was clearly a reference to laws conferring benefits on only children generally and not simply one category of benefits. It considered the issue of whether such a law was appropriate and adapted to achieving a legitimate national objective in light of the specific claims made about benefits. In particular, the Tribunal considered both the issue of offering financial incentives to parents and also the issue of denial of access to government employment and whether or not the applicant would be denied priority in private sector employment as well as the cumulative effect of the problems the applicant would face as a result of having been born in excess of the plan. It did not fail to address the financial consequences for families having more that one child or to determine whether those consequences could amount to persecution.
Nor has it been established that the Tribunal erred in its consideration of the issue of access to government employment or the cumulative impact of problems the applicant would face as a result of having been born outside the one child policy. Contrary to the contention that the Tribunal did not consider the impact of the applicant being deprived of employment in the government sector or the cumulative impact of the discrimination he would suffer as a result of having been born in excess of the plan, the Tribunal considered first that while denial of access to government employment in China “in times gone by … might have amounted to persecution because of the limited opportunities available in the private sector of China”, it found that, as discussed at the first Tribunal hearing, China had a rapidly growing private sector. Moreover the Tribunal considered, but did not accept, the claim that the applicant would be denied priority in private sector employment compared to a child born in accordance with the family planning policy. In such circumstances the Tribunal finding in relation to s.91R was clearly to the effect that while denial of government employment was “discriminatory” it was not likely to amount to “significant economic hardship that threatens a person’s capacity to subsist” in that it found that there was not a real chance that the applicant would suffer discrimination in obtaining employment that was so serious or caused him such significant hardship or detriment as to amount to persecution involving serious harm.
It has not been established that the Tribunal erred in the manner contended for in the application. The Tribunal did not simply look at the position of the parents without regard to the circumstances of the applicant child. Rather it had regard to all of the circumstances of the child including his membership of a particular family unit. Nor did it fail to deal with the question of whether a law of general application was nonetheless persecutory of the applicant. As set out above, it dealt with the particular issue of whether the law in question was distinguishable from a denial of basic rights which amounted to such a significant departure from the standards of the civilised world as to constitute persecution. It dealt with the issue of selective enforcement on the information before it. The claims about conservatism in Shandong Province and that laws were strictly enforced there were claims put to Tribunal by the applicant’s father in support of the proposition that the applicant would face social ostracism. The Tribunal considered this issue, accepting that Shandong family planning laws had been implemented very strictly.
Moreover, as set out above, the Tribunal expressly addressed the cumulative effect of the disadvantages which it accepted the applicant would face as a result of having been born in excess of the plan.
Further, the Tribunal understood that it was not simply a question of whether a law was a law of general application, but that it was also necessary to have regard to whether the law was appropriate and adapted to meet an objective the pursuit of which was required in order to promote the general welfare of the state. It did not fail to consider whether the laws were persecutory by reference to standards of common humanity. It referred to the issue of whether the laws amounted to such a significant departure from the standards of the civilised world as to constitute persecution. It addressed this issue in general and also in relation to the particular issue of financial incentives. In relation to ostracism it found that such conduct did not amount to serious harm and nor was it of itself persecution. In relation to the employment issues, it rejected the claim that the applicant would be denied priority in private sector employment compared to a child born in accordance with the family planning policy and while it understood and accepted that there was a real chance the applicant would be denied access to government employment in China and that that might (at a different time) have amounted to persecution, it had regard to the current situation in China in finding that it did not accept that there was a real chance the applicant would suffer discrimination in obtaining employment that was so serious or would cause him such significant hardship or detriment as to amount to persecution involving serious harm. The Tribunal did not fail to determine the matter before it.

No jurisdictional error has been established on any of the bases contended for by the applicant. The application must be dismissed.

I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 22 February 2007