SZDAG v Minister for Immigration
[2007] FMCA 651
•2 May 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDAG & ORS v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 651 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – merits review not available. |
| Migration Act 1958, ss.91R, 91X |
| Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 |
| Applicants: | SZDAG, SZDAI, SZDAJ & SZDAK |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3720 of 2006 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 May 2007 |
| Date of Last Submission: | 2 May 2007 |
| Delivered at: | Sydney |
| Delivered on: | 2 May 2007 |
REPRESENTATION
The applicant appeared in person.
| Counsel for the Respondents: | Mr. J. Smith |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
The third and the fourth applicants pay the first respondent's costs fixed in the amount of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3720 of 2006
| SZDAG, SZDAI, SZDAJ & SZDAK |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an application dated 12 December 2006, the applicants seek review of the decision of the Refugee Review Tribunal (“Tribunal”) which was signed on 30 October 2006 and which affirmed earlier decisions of a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“Minister”) dated 25 March 2003 refusing the applicants’ protection visa applications.
The Tribunal decision the subject of these proceedings is the second or arguably the third such decision relating to the applicants. There were previous Tribunal decisions made on 15 January 2004 which were quashed by orders of this Court dated 13 July 2006.
Section 91X Migration Act 1958 (Cth) (“Act”) provides that the Court must not publish the applicants’ names.
Background facts
The Tribunal described the applicants as follows:
The applicants are two Australian-born male nationals of China … born in December 1999, and … March 2002 [respectively], and their Chinese-born parents, both from Nanan City, in the southern Chinese province of Fujian. The family has a first child, a daughter, who remains in China. Only [the two Australian-born male children] have refugee claims of their own; their parents relying on membership of the family unit. At the time of this decision, there is a fourth child, born in Australia in December 2003. (Court Book (“CB”) page 220).
The first and second applicants claim to fear future persecution in China because of their membership of a particular social group, namely children whose births are not authorised by local Chinese family planning authorities. They are also known as “black children”. The third and fourth applicants are their parents. In summary:
a)the applicant parents fear that they will suffer indirect economic harm due to their non-compliance with China’s one-child policy;
b)the applicant children fear that they will suffer social and psychological detriment arising from societal attitudes and discriminatory practices; and
c)the first and second applicants fear that in areas such as health, education and future government employment they will suffer direct material and practical disadvantages arising from their inability to be officially registered.
The facts alleged in support of the applicants’ protection visa claims are set out on pages 5-16 of the Tribunal’s decision (CB 220-231). In essence they are the practical sanctions the applicants say are or may be imposed by authorities in China on children born in contravention of that country’s one-child policy.
The Tribunal’s decision and reasons
After discussing the claims made by the applicants and the evidence before it, the Tribunal found that it was not satisfied that the applicants are persons to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)as to the question of particular social group, the Tribunal was satisfied that black children are a particular social group and it was also satisfied at the time of its decision that the first and second applicants were members of that particular social group;
b)as to the assessment of prospective harm, the Tribunal concluded that information before it indicated in broad terms that foreign‑born black children do not face serious problems or persecution in Fujian although there are references to some material and social disadvantages. The Tribunal was satisfied that this information was current and valid, reliable and relevant to the applications. It accepted these reports as evidence that:
i)there is generally a pragmatic and flexible approach rather than a punitive approach to birth control policy;
ii)the policy is implemented leniently with respect to foreign-born black children on the basis that they either fall outside the policy framework completely or their families are exempted from the requirement to pay fines as a matter of practice or, if they are, in any event the fines are not onerous;
c)as to registration, the Tribunal discerned nothing in the parents' circumstances that raised questions about the applicants' eligibility for registration, concluding that the lack of a current registration in Nanan City was simply the result of the parents' prolonged absence from China;
d)as to the prerequisites for registration, the Tribunal accepted that there were two potential prerequisites for the registration of the first and second applicants, namely, payment of a national social compensation fee because they were out-of-plan births, and payment of a provincial extra fee because they were born outside Fujian. The Tribunal considered it unlikely that the applicants' parents would be liable to pay any social compensation fee at all, concluding that the most likely scenario is that they will approach and seek the advice of local officials and come to an arrangement with them whereby they pay an affordable provincial levy that paves the way for the registration of the children. In connection with these conclusions:
i)the Tribunal noted that what emerged from the country information was that while black children are not formally exempted from the scope of family planning regulations, in practice local officials have considerable discretion in whether and, if so, how they levy any social compensation fees. Officials' attitudes to returning parents are not driven by formal classifications but rather by perceptions as to their likely contributions to or drain on the community's resources. The applicant parents are likely to be viewed as upper middle-class persons rather than workers or peasants and the third applicant's past experience and his residence in Australia would work to his credit in the eyes of local officials;
ii)the Tribunal also noted that it is plausible that provincial officials are amenable to non‑enforcement of the national social compensation fee, preferring instead to negotiate a payment of a provincial levy that, according to the Department of Foreign Affairs and Trade, is generally not excessive by middle-class Chinese standards;
e)as to the payment of the social compensation fee, on the material before it the Tribunal was satisfied that if there was a requirement for the payment of a social compensation fee with respect to the first and the second applicants, the third and fourth applicants would be able to, and in fact would, pay that fee. The Tribunal was also satisfied that such payment would not cause serious economic hardship to the family or to the first and second applicants;
f)as to the question of registration, the Tribunal was satisfied that the third and fourth applicants would be able to afford any social compensation fee if levied and that they would do so and therefore it was satisfied that the prerequisites for registration of the children would be met. The Tribunal said that it was satisfied that up to the point of such registration, which would confer on the children the full “panoply of rights as Chinese citizens”, any disadvantages to the first and second applicants would be extremely limited and would not be of a type or severity as to amount to serious harm;
g)as to indirect harm, the fourth applicant explained that she feared for her relatives' safety as a result of her out-of-plan births, but the Tribunal was not satisfied that any such actions against her relatives had a nexus to the first and second applicants sufficient to establish a risk of prospective persecution for them. The Tribunal also acknowledged that the payment of the social compensation fee or provincial extra fee would impose a financial burden on the family but it was not satisfied that this would amount to serious harm for the family as a whole or the first and second applicants in particular;
h)as to social and psychological harm, the Tribunal was not satisfied that there would be any significant social, psychological or other harm for the first and second applicants if they were registered shortly after their arrival in China, finding that upon registration the children will no longer be “black children”, actual or perceived. The Tribunal therefore found that the first and second applicants would not suffer any consequent harm related to their current status. In reaching this finding the Tribunal observed that it was true that the family would face some initial uncertainties if they settled in China but it was not satisfied that there were any barriers to resolving these issues or that they established persecution in the sense required by s.91R(1) of the Act;
i)as to non‑registration, the Tribunal considered the possibility that registration might not be available to the first and the second applicants. The Tribunal accepted that the first and the second applicants would suffer some discriminatory harm for reason of membership of a particular social group but it was not satisfied that such harm would be sufficiently serious as to amount to persecution. In making this finding, the Tribunal noted that the catalogue of harm presented on behalf of the applicants was in part incorrect and generally exaggerated and it gave instances of this; and
j)further on the subject of psychological and social harm, although the Tribunal accepted that black children are a disadvantaged group in Chinese society which could conceivably cause some individuals to have psychological problems such as low self-esteem, it observed that their return from Australia as members of a family with a private sector managerial background and the existence in Fujian of an extended family network were among the factors that suggested that they would not be vulnerable to ostracism and the attendant risks of social or psychological harm as black children.
In summary, the Tribunal concluded:
The Tribunal accepts that the children are members of a particular social group, being “black children” born out-of-plan. However, it is not satisfied that there is a real chance that they will face persecution in China for reasons of this status or for any other reason, because it finds that there are means for foreign‑born out-of-plan children to achieve registration in China (and hence no longer be considered as black children) and because it is satisfied that the applicant parents have the resources and will to achieve this outcome. The Tribunal further finds that - even if contrary to its findings that the children can become registered, they in fact do not - they would face some discrimination of various forms, but it is not satisfied that such harm, considered cumulatively, would amount to serious harm within the meaning of s.91R(1) of the [Act]. (CB 243).
Proceedings in this Court
Omitting the particulars, the grounds of the application were pleaded as follows:
(1)The Tribunal erred in drawing its own conclusions from disparate country information to make a finding that was adverse to the applicant.
(2)The Tribunal erred in relying on its own speculations to make adverse [findings] against the applicant.
(3)The Tribunal posed itself the wrong question constituting a jurisdictional error.
At the outset it should be said that the particularisation of each of these grounds is really no more than references to passages of the Tribunal's decision rather than a true particularisation of the assertions in the application. Dealing with each of the grounds in turn:
The Tribunal erred in drawing its own conclusions from disparate country information to make a finding that was adverse to the applicant.
As to the first, this ground does not identify what is said to have been the error in the conduct of the Tribunal. It could perhaps be a reference to the conclusions which the Tribunal drew or the drawing of conclusions at all. As to the drawing of conclusions at all, the sifting of evidence and the weighing of evidence is the Tribunal's role. The task which is reposed on the Tribunal is to draw conclusions from the evidence which includes the country information which was before it. Consequently there is no error in the Tribunal having drawn conclusions from material which it had.
The alternative characterisation of this ground, namely, that the Tribunal erred in the conclusions which it drew, would not be a proper ground of review in proceedings such as this. In proceedings for judicial review it is not open to the applicants to challenge the Tribunal's findings of fact except in circumstances where there has been an error in respect of a jurisdictional fact. Such is not the case here. As was said in Minister for Immigration & Ethnic Affairs v Liang (1996) 185 CLR 259 by Brennan CJ and Toohey, McHugh and Gummow JJ at 272:
In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. For example, it was said by Brennan J in Attorney-General (NSW) v Quin:
"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
The applicants cannot seek a review of the merits of their application in these proceedings. In this case the findings of the Tribunal were open to it on the material before it and there is no error disclosed in respect of this asserted ground of review.
The Tribunal erred in relying on its own speculations to make adverse [findings] against the applicant.
In relation to the second ground, no speculation on the part of the Tribunal has been identified. The Tribunal's decision record indicates that it considered and analysed in detail the considerable material before it and arrived at conclusions which were logical and not speculative. It did not hypothesise but analysed the facts and arrived at conclusions which were open to it on the material before it. Consequently no jurisdictional error has been demonstrated in respect of this asserted ground of review.
The Tribunal posed itself the wrong question constituting a jurisdictional error.
In relation to the third ground of review, the question which the Tribunal is supposed to have asked itself is not identified.
The particulars do not make clear what this wrong question is supposed to have been. In its decision the Tribunal discussed the legal issues which were before it and at CB 218 and 219 set out the terms of Article 1A(2) of the Convention and summarised the content of s.91R(1) of the Act. These set the background for the questions which the Tribunal had to ask and answer. At CB 237 one of the questions the Tribunal asked itself was articulated in the following terms:
The critical issue is whether the applicant children face a real chance of persecution for the essential and significant reason of their status as "black children", in particular as foreign-born black children settling in China with their parents.
In relation to the subsidiary question which it asked, the Tribunal noted on CB 242 that although it accepted -
that the applicant children will suffer some discriminatory harm that could be characterised as being "for reason of" their membership of a particular social group ... [it was] not satisfied that such harm would be of sufficient seriousness as to amount to persecution as defined in s.91R(1).
There was no error in the Tribunal asking the first or the second questions as these reflected the claims which were brought by the applicants and the law under which the Tribunal operated.
The correctness of the questions which the Tribunal asked is revealed by the answers which it gave in the summary of its decision already quoted in these reasons, namely, that, firstly, the children would not face persecution in China but, even if they did face discrimination, this would not amount to serious harm within the meaning of s.91R(1). Consequently no jurisdictional error is demonstrated in respect of the third asserted ground of review.
Conclusion
As jurisdictional error on the part of the Tribunal has not been demonstrated, the application will be dismissed.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Cameron FM.
Associate:
Date: 31 May 2007
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