SZDAG v Minister for Immigration
[2006] FMCA 987
•13 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDAG v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 987 |
| MIGRATION – Refugee – “black child” – laws of general application – question of “serious harm” – Tribunal restricted its consideration of the elements relevant to what constitutes “serious harm” with reference only to s.91R(2) – jurisdictional error – matter remitted to the Tribunal for reconsideration. |
| Migration Act 1958, ss.91R, 91R(1), 91R(2) Federal Magistrates Court Rules 2001, Rule 11.08. |
| Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2001) 201 CLR 293 VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927 Applicant A & Anor vMinister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 |
| Applicant: | SZDAG |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 751 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 30 March 2006 |
| Date of Last Submission: | 30 March 2006 |
| Delivered at: | Sydney |
| Delivered on: | 13 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. Atkin |
| Solicitors for the Applicant: | Coroneos & Company |
| Counsel for the Respondent: | Mr. J. Smith |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
A writ of certiorari issue, quashing the decision of the second respondent.
A writ of mandamus issue, requiring the second respondent to redetermine the matter according to law.
The first respondent pay the applicant’s costs set in the amount $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 751 of 2004
| SZDAG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
This is an application filed in this Court on 17 March 2004 seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 January 2004 and handed down on 10 February 2004 which affirmed the decision of a delegate of the respondent Minister made on 25 March 2003 to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent in these proceedings.
The applicant was born in Australia on 19 December 1999 to parents who are both citizens of the People's Republic of China. As neither parent was an Australian citizen or permanent resident the applicant did not automatically take Australian citizenship, but obtained the citizenship of his parents. Ultimately, the Tribunal was satisfied that the applicant was a citizen of the People's Republic of China and assessed his claims against that country (Court Book (“CB”) 114.5).
This applicant’s matter was considered by the Tribunal at the same time as a similar application made by the applicant’s younger brother (Applicant SZDAI), and his parents. Their application for judicial review is also now before this Court (SZDAI & Ors).
At the time of making his application for a protection visa to the respondent Minister’s Department the applicant was just under three years of age. At that time the applicant was represented by solicitors (and migration agents) who continue to represent the applicant before this Court. The applicant’s claims to a protection visa (put on his behalf by his representatives and his parents) are reproduced in his application at CB 1 to CB 36, but were essentially set out in an attached statutory declaration by the applicant's father made on 13 November 2002 (CB 45 to CB 47). The application for review to the Tribunal, which the Tribunal received on 7 April 2003, is reproduced at CB 77 to CB 81. At CB 81 a number of complaints are set out about the delegate’s decision.
The applicant’s claims before the Tribunal were further put:
1)In a submission received by the Tribunal on 12 November 2003 from the applicant's representatives (CB 89 to CB 90).
2)In a statutory declaration made on 28 October 2003 by the applicant's father, reproduced at CB 91 to CB 93.
3)While the applicant appeared at a hearing before the Tribunal on 13 November 2003, as a child just under four years of age, he understandably, could not be expected to advance claims on his own behalf. The applicant’s representatives arranged with the Tribunal that the applicant's parents represent the applicant at the hearing (this was identical to the situation as it related to their younger child, Applicant SZDAI). The applicant’s migration adviser also attended at the hearing. The Tribunal’s account of what occurred at the hearing is set out in its decision record and reproduced at CB 109.5 to CB 111.7.
4)In further written submissions from the applicant's adviser received by the Tribunal on 10 December 2003 (CB 95 to CB 97).
The background to the applicant's case is that the applicant's parents were born in the People's Republic of China and arrived in Australia in December 1995. At that time their only child, a girl, remained in China. While in Australia the applicant’s parents had two more children, the applicant born some years later, and subsequently Applicant SZDAI born on 27 March 2002. On 21 November 2002 the applicant lodged an application for a protection visa, and on the same day his brother (Applicant SZDAI) also lodged an application (which as I have stated included their parents). Both subsequently made applications for review to the Tribunal on 7 April 2003 following refusal of the respective applications. While the matter was before the Tribunal, the applicant’s mother was expecting another child, which the Tribunal ascertained was due to be born in the near future, but nothing of relevance seems to have arisen from this (CB 109.9 to CB 110.1).
While the Tribunal heard both applications on the same day
(13 November 2003), and both young applicants were represented by their parents, and the migration adviser, the Tribunal handed down two separate decisions on 10 February 2004 affirming, in both cases, the delegate’s decisions to refuse protection visas.The applicant’s claims before the Tribunal (as put by his parents and adviser) were essentially based on the claim that the applicant (and his brother) were members of a particular social group in China (“heimin” – “black children”) and as a result would suffer discrimination, be denied access to household registration (“hukou”), entrance to state schools and access to health benefits. Further, this would, in the future, lead to him being denied employment in the government sector, including within the armed services and police force. The applicant and in particular the applicant’s adviser emphasised the long-term harm that would accrue to the applicant including among other things low self-esteem. The applicant's claims were that this treatment by Chinese authorities would amount to persecution if the applicant was required to go to China.
The Tribunal's “Findings and Reasons” in its decision record are set out at CB 114.4 to CB 119.5. The Tribunal found:
1)The applicant would need to be registered on the family's household registration record (“hukou”) in order to avail himself of all the rights of Chinese citizenship (CB 114.8).
2)That as the applicant was born without the approval of the local birth control office the question to be addressed by the Tribunal was whether the applicant's lack of “automatic registration” would result in treatment towards him that would cause him serious harm if he were to go to China (CB 114.9).
3)Based on independent country information (CB 114.9), that “it is by no means uncommon in Fujian [the province from which the applicant's parents came, and presumably to which the applicant would go] to have a family with more than one child” (CB 115.4).
4)That based on all the independent information available to it, it was “implausible” that the children in 60% of all Fujianese families [the number of children of families that had two or more children in Fujian] would be subjected to serious harm amounting to persecution because of the failure of their parents to comply with the national regulations (CB 115.6).
5)In considering whether the applicant could be registered, and the circumstances of that registration, that “out-of-plan children” could be registered upon the payment of a fine, or “a social subsidy fee” (CB 115.7). Also, based on independent country information available to it, the Tribunal noted that the applicant's parents had known, since the applicant’s birth over four years ago, that they would have to pay a fine in order to register the applicant if, and when, they return to China (CB 116.8). Further, that the applicant's parents had stated at the hearing before the Tribunal that they did not apply for refugee status for the applicant after his birth because they did not foresee any major problems as a result of the applicant’s birth. It was only with the birth of the subsequent child (Applicant SZDAI) that prompted them to apply for protection visas. The Tribunal noted that the passage of time since the birth even of the younger child (nearly two years), would have given the parents time to save in preparation for the fines that they knew must be paid.
6)That the parents’ claim that they would suffer serious harm was not accepted (CB 117.2).
7)That it was of the view that the family planning regulations in China were not discriminatory as they applied equally to all Chinese citizens and had been imposed with a “legitimate purpose” of slowing population growth (CB 117.4).
8)That it was necessary to make further inquiries beyond the independent information that it had already relied on and referred to more recent independent information relating to “black children”. Against all of the information available to it, it was not satisfied that the applicant would face discrimination, or harm, let alone harm of a type, or severity, that could be called persecution “in China for reason of his current status as an unregistered child” (CB 118.3).
9)In conclusion, that once the applicant is registered on the family's household registration in China then the harm that he feared, as set out in his submissions, would be “completely eradicated” (CB 118.5).
10)Even in the event that he were to live in China as an unregistered child, it was still not satisfied that the applicant would be denied access to basic services such as education and health care, because these were available to all as fee paying services (CB 118.6).
11)It was not satisfied that even with an ongoing lack of registration the applicant would suffer serious harm (CB 119.1) and even if this status were to continue into the future, it would not attract the “systematic and discriminatory conduct” which is a major element of persecution (CB 119.3).
12)That the applicant had not suffered harm amounting to persecution for reason of his membership of a particular social group in the past, because he had not lived in China, but was also satisfied that the chance of his suffering persecution in the reasonably foreseeable future was remote. The Tribunal was therefore not satisfied that the applicant had a well founded fear of persecution for a Convention reason (CB 119.5).
On 4 November 2004 the applicant filed an amended application drafted with the assistance of his legal representatives. At the hearing before me on 30 March 2005, leave was granted for the applicant to file in Court a further amended application, which contains essentially the same grounds as outlined in the amended applications.
At the hearing before me the applicant was represented by Mr. Atkin, and the respondents by Mr. Smith. Given, as Mr. Atkin submitted, that there was not any significant difference between the applications of SZDAG, and SZDAI and their parents, both matters were heard together. Mr. Atkin noted that there were some minor wording changes between the two relevant Tribunal decisions but that he would not be making any submission that distinguished the two. Mr. Smith made no objection to this course of action. [While the two matters were heard together and as it transpired the legal issues were identical (although Mr. Smith raised one specific additional reference to the decision relating to SZDAI and his parents) nonetheless two Judgments, with cross references, are given].
As a preliminary matter, Mr. Atkin sought that the Court make orders to appoint the applicant’s father as the litigation guardian pursuant to Rule 11.08 of the Federal Magistrates Court Rules 2001. I note relevantly that the applicant’s representatives filed a “Consent to Act as Tutor” in this Court on 17 March 2004. However, the Court was adjourned for a few moments to allow Mr. Atkin to explain to the applicant’s father his role as litigation guardian to act in the interests of the infant applicant, the responsibilities involved with this role, and also the liability as to costs when the matter comes to finality, in the event that an order may be made against the infant applicant. I subsequently made the orders appointing the applicant's father as litigation guardian in the both cases, SZDAG and SZDAI, noting that the applicant's father is also an applicant in the second matter.
I also have before me written submissions for the applicant filed on
23 March 2006, and written submissions for the respondent filed on
22 March 2006.The applicant’s further amended application (the relevant part) was in the following terms:
“5. The decision involved a jurisdictional error.
6.The decision maker failed to determine the application for review in accordance with the law.
7.The Tribunal fell into judicial error by failing to consider and determine whether the applicant would suffer serious harm in the event of going back to PR China.
8.The Tribunal found it “implausible” that children in sixty percent of Fujian families are subjected to serious harm, however the basis of this finding is no more that an assertion.
9.The Tribunal didn't consider the position of the child but sort to criticise the parents for not making proper arrangement whilst in Australia to pay the fines for the child.
10.The Tribunal in finding that the applicant child might still be entitled to basic services has failed to determine none the less whether the applicant child would be at risk of suffering harm.
11.In failing to consider child’s position the Tribunal did not apply the “Real Chance Test”.
12.The Tribunal did not look at the case of the applicant child.
13.The applicant is therefore aggrieved by the decision.”
Mr. Atkin raised two substantive issues for the applicants which, one way or another, he submitted, deal with each of the grounds in the further amended application:
1)The Tribunal's finding that the relevant law (regarding “black children”) was not discriminatory, but was a law of general application. The submission was that this amounted to a misunderstanding by the Tribunal of the requirements necessary for determining whether there was discrimination.
2)The Tribunal's approach to the question of “serious harm” arising under s.91R of the Migration Act 1958 (“the Act”). The submission here was that the Tribunal looked only at the circumstances specified in s.91R(2) as a way of fulfilling the obligation, arising from s.91R(1), of the consideration of “serious harm”. That the matters set out in s.91R(2) were not meant to be comprehensive, yet that was all the Tribunal considered in its analysis of whether, in the applicant’s circumstances, the persecution involved “serious harm”.
The applicant’s first substantive complaint is that the Tribunal found that the law regarding “black children” was not discriminatory because it was a law that was of general application. Mr. Atkin submitted that this amounts to a misunderstanding on the part of the Tribunal of the requirements for determining whether or not there is discrimination in these circumstances. While Mr. Atkin took the Court through the Tribunal's decision record, the critical parts of the Tribunal's decision record in its “Findings and Reasons”, that in Mr. Atkin’s view reveal error on the part of the Tribunal, are:
“The Tribunal is not of the view that the family planning regulations in China are discriminatory: they are applied equally to all Chinese citizens (with positive discrimination in favour of the small ethnic minorities) and had been imposed with the legitimate purpose of slowing the population growth of the most populous country on earth for sound ecological reasons. The effect of the family planning regulations is, as DFAT puts it, “to deter...a high birthrate”. However when this fails - as it has in the case of the applicant’s family, then the emphasis shifts not to punishing the extra children (like the applicant), but to ensuring that the family pays for the provision of the extra state services required to raise these children. The Tribunal is satisfied on this point after reading a broad range of country information.” (CB 117.3 to CB 117.4)
Essentially the submission was that as a result of this the Tribunal found:
“On the basis of information before it the Tribunal is not satisfied that the applicant will face discrimination or harm (let alone harm of a type or severity that could be called persecution) in China for reasons of his current status as an unregistered child. His status is not unchangeable although his parents will be required to pay a fine or fee.” (CB 118.3)
Mr. Atkin’s submission was that in its analysis and in reaching this conclusion the Tribunal did not apply the relevant principles as set out in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2001) 201 CLR 293 (“Chen’s case”), and that the Tribunal fell into the same error as found by Merkel J. in VTAO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 927 (“VTAO”).
Mr. Atkin submitted that Chen’s case deals with the question of discrimination and how discriminatory laws might arise, and critically with the central question of laws of a general application. Specifically he submitted:
1)That the relevant analysis of the majority Judgement in Chen’s case reveals, beginning in particular with its analysis at [16] and what follows, that as a general rule, a law of general application is not discriminatory. But further, with reference to Applicant A & Anor vMinister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 (“Applicant A”), that the disagreement of some people with such a law, and their fear of the consequences of a failure to abide by that law, could have the affect that those people constitute a “social group” for the purposes of the Convention.
2)The High Court also said that children born in contravention of China’s one child policy could constitute a particular social group for the purposes of the Refugees Convention.
3)That the High Court further said 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.”
The applicant’s complaint is that the Tribunal's finding at CB 117.3 (that the family planning regulations in China were not discriminatory because they applied equally to all Chinese citizens and are laws of general application) required the Tribunal, according to the High Court, to examine whether the laws impact differently on different people and therefore would be said to operate in a discriminatory fashion. The applicant’s submission was that the Tribunal did not look at the relevant question as set out by the High Court at all.
Mr. Atkin submitted that that question is also encapsulated at paragraphs [29] and [30] of Chen’s case:
“[29] Whether the different treatment of different individuals or groups 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 involve such a significant departure from the standards of the civilized 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.
[30] The fact that "black children" are treated differently in China in consequence of the "one-child policy", which is a policy of general application, is relevant to the question whether that treatment amounts to persecution. But if the conduct in question does amount to persecution, that consideration cannot then result in the conclusion that that persecution is not for the reason that they are "black children".”
Mr. Atkin also referred to the separate Judgement of Kirby J. in the same case at [72] where His Honour said:
“Care must, in any case, be taken against blindly assuming that because a law is one of general application it can play no part in identifying, consolidating and motivating a particular social group as one falling within the protection of the Convention. This is why McHugh J in Applicant A used the adverb "ordinarily" in his exposition of the point that ordinarily enforcement of the criminal law will not constitute persecution or classify those affected as a particular social group subject to persecution[74]. Discrimination may in particular circumstances fall most heavily on racial minorities[75], on women subjected to sexual abuse[76], on religious minorities accused of apostacy or on homosexuals. It may be reinforced by laws or practices of apparently general application[77]. The mere fact that the law is a criminal law or one of general application in a particular society does not withdraw from those who have a well-founded fear of being persecuted, the protection of the Convention definition.”
The applicant’s submission was that the Tribunal's misunderstanding of the elements and requirements of what constitutes persecution and discrimination can also be seen with reference to VTAO. Mr. Atkin submitted that the decision given by the Tribunal in the case before His Honour Merkel J. in VTAO, is very similar to the Tribunal decision before this Court. He submitted that in reviewing the decision in VTAO at [5] and [6], His Honour sets out passages from that Tribunal's decision which are very similar to the passages in the decision of the Tribunal currently before me. While acknowledging that what was before Merkel J. was a decision that in a substantial part dealt with the claims of the relevant parents, and that this can be distinguished from the case before me in that the parents did not put their application forward as primary applicants, nonetheless what Merkel J. said in relation to the Tribunal decision in VTAO is relevant to the critical question of whether the laws that apply in a discriminatory fashion, or not, can justify the conclusion that the law does not in any event discriminate. Mr. Atkin particularly referred to His Honour's Judgement at [22]:
“It is clear from their Honours’ analysis that Applicant A is not to be taken as deciding that the harm that is likely to be suffered by a group of persons by reason of their having contravened a law of general application cannot be relied upon as a factor, among others, that might identify those persons as, or cause them to become, a particular social group. Rather, Applicant A merely decided that the fear of harm resulting from a failure to abide by such a law cannot be relied upon alone as the defining or uniting characteristic of a particular social group. Further, as was pointed out by their Honours (in Chen) the fact that the law is one of general application is more relevant to whether the harm feared as a result of breaching the law constitutes persecution than it is to whether persons that have breached the law constitute a particular social group.”
Mr. Atkin carefully took me through His Honour's analysis in VTAO and as it related to the Tribunal's decision before me. He ultimately pointed to paragraph [55], particularly as it applied to the applicant child’s claims in the case before His Honour, and made the analogy to the applicant’s claims before me. Mr. Atkin sought to apply to the case before me relevantly, what His Honour found in relation to the applicant's parents in VTAO, and as those principles were applied to the applicant child in VTAO:
“The RRT’s reasoning process was difficult to analyse as it tended to state conclusions without explaining the basis for them. At [45] of its reasons the RRT stated that the family planning regulations are not "discriminatory but are applied equally to all Chinese citizens and are directed at a legitimate purpose". At [46] the RRT stated that it was not satisfied that the imposition of a fine on parents for breach of the family planning regulations is "discriminatory or persecutory to unregistered children as a particular social group". If, in arriving at those conclusions, the RRT was relying on the laws being of general application and serving a legitimate purpose, then as explained above, the reasoning in Chen make it clear that those matters do not result in the enforcement of the family planning laws not being discriminatory or persecutory of "black children"… The RRT appears to have misunderstood the distinction between a law that applies generally and a law, such as that applicable in the present case, that targets or impacts adversely upon "black children" by preventing their household registration, with the disabilities that attend that lack of status, until the "social subsidy fee" is paid (see especially Chen at 300-301 [18]-[19]). Thus, the RRT’s conclusion would have been based on a misunderstanding of the requirement of discriminatory and persecutory conduct in relation to the applicant child’s claims and, as a result of the misunderstanding, the RRT did not address the questions required to be addressed.”
The applicant's complaint therefore can be seen to be that the Tribunal's finding at CB 117.3 encapsulates the Tribunal's approach, that is, that it made a finding that the family planning regulations in China were not discriminatory and that the Tribunal did not go further than that in dealing with the applicant’s circumstances and therefore fell into error as set out in Chen’s case and in VTAO.
Mr. Smith for the respondents submitted that when the Tribunal's reasons are read as a whole, and by implication, rather than relying on certain select parts, it is clear that the Tribunal did what it was required to do. His submission was that the applicant asked the Tribunal to determine whether there was a well founded fear of persecution arising out of the fact that he was born outside the parameters of the one child policy in China, that is, that he was born “without permission”. The effect of that, as put forward by the applicant, was that he would not be registered automatically, and that he would not have rights, that would automatically accrue to those otherwise born to Chinese parents. The respondent’s submission was that the Tribunal's “Findings and Reasons” reveal that after having encapsulated the applicant’s claim (CB 114.5), the Tribunal at CB 114.9 posed the question that it needed to answer:
“However the question here is whether the applicant's lack of automatic registration will result in treatment towards him that would cause in a serious harm.”
The respondent's position was that a reading of the Tribunal’s decision record reveals that it addressed that question first by looking at the laws and their effect. For example it looked at the imposition of fines upon parents in order to obtain registration. The Tribunal then proceeds to determine the question by looking at the alternative to being registered, that is, what would happen if the applicant was not registered. It addresses the relevant issues in the context as put forward in the applicant’s claims, that is, that the applicant would not be able to obtain education and so forth. The critical submission in this regard, by the respondent, was that the Tribunal's assessment of the future possibilities was focused “through” the applicant’s claims as they had been made to the Tribunal. Having done that the Tribunal came to the conclusion that in respect of registration, and indeed in respect of the lack of registration, that the chance of serious harm was remote. In arriving at this, according to the respondent's submission, once the Tribunal posed for itself the question to be answered (and Mr. Smith noted that no issue had been taken with that question) the Tribunal then, as it said expressly, looked at independent country information with regard to these laws, the way in which they are applied, and the effect of that application upon the people in China and in particular the applicant’s relevant province. The Tribunal then looked at how the laws would impact on the applicant's parents, how the government generally treats these laws and applies them, and then looked at the imposition of the so-called social subsidy fees, and the impact on the applicant's parents having two children outside the policy.
The submission was that in its analysis the Tribunal looked (CB 116) relevantly in greater detail at the situation at the time of the making of its decision, and the “new approach to the laws after September 2002”. This analysis can specifically be seen to be a response to the applicant’s father’s claims that the imposition of the social compensation fee was not so strict in the past, but has become stricter by the time of the presentation of the applicant's case before the Tribunal. At CB 117 in its decision record the Tribunal dealt expressly with the way the parents would be treated when, or if, they returned to China, and expressly rejected the claim that they may be “locked up” if they could not pay the relevant fee. The submission was that clearly it was important for the Tribunal to deal with the situation that any impact on the parents would also impact on the applicant. Therefore, the Tribunal was required to deal with the financial impact on the parents in respect of the imposition of the fines or fee. The Tribunal's statement that the laws are applied equally to Chinese citizens is clearly put in the context of looking at the application of these laws to parents, and not to the children, and this is reinforced by the fact that the Tribunal made clear reference to the fact that the laws are designed as a deterrence from having large numbers of children. Further, that the reason for this deterrence is to slow the population growth of the “most populous country on earth for ecological reasons”. The Tribunal then proceeded to consider that once the deterrence does not work, and in those circumstances where it does not work, the emphasis shifts again not to punishing the “extra” children, but to ensuring that the family pays. So that when the Tribunal talks of the policies applying to everybody, it is clearly referring to adults in China because they are the ones who would need to be deterred. It looked at the impact upon the parents once the deterrence does not work, that is, once the policy is breached. While this still has an indirect affect upon any children, the submission relies, on reading the Tribunal’s decision, on the basis that by the time it arrived at its conclusion, at CB 118, the Tribunal had dealt with the first aspect of the applicant's claim, and had found that a person such as the applicant can be registered if a fine is paid. It was in this context that the Tribunal found that it could not be satisfied that the applicant faced discrimination or harm in China for reason of his current status as an unregistered child. The Tribunal specifically found:
“His status is not unchangeable although his parents will be required to pay a fine or fee.”
In essence therefore, the respondent's answer to the applicant's complaint is that the Tribunal dealt with that aspect of the applicant's claim that relates to registration, and that the Tribunal answered that relevant question by saying that the applicant can be registered (the Tribunal had already accepted evidence that relatives were easily able to pay the fine imposed on them). It then went on to consider the question of whether the imposition of the fine would impose, or cause, serious hardship. The Tribunal answered that question in the negative, that is, that it would not. But also it went on to consider the possibility that it would, in the circumstances where the applicant's parents could not pay the fine. It considered what would happen to the applicant in a circumstance where he was not therefore registered. The respondent submitted that the Tribunal’s consideration of the applicant's situation, if he were to live in China as an unregistered child, stands separate and apart from its clear finding that the applicant could be registered if he paid the fine and that in those circumstances the harm that he feared is “completely eradicated”.
Mr. Smith further submitted that the applicant's case before the Court, as it derived from VTAO and those aspects of Chen’s case relevant to that case, really went to the second substantive complaint now before the Court. That is, whether the Tribunal considered the “serious harm” issue in an exhaustive fashion as put forward by the applicant. Critically in this regard, while the question of the operation of the laws clearly has impact on the first part of the Tribunal’s reasons (where it considered the issue of the applicant’s registration) it did not have an affect on the next aspect of the Tribunal's reasoning where the Tribunal considered the applicant's situation in the alternate circumstances where the applicant were to remain as an unregistered child in China.
The applicant’s complaint is that the Tribunal found that the family planning laws in China were not discriminatory, but were laws of general application, and were directed to a legitimate purpose. The applicant complains that as a result of this finding the Tribunal concluded (CB 118.5) that the applicant would not suffer harm by reason of lack of registration if he were to go to China. The applicant’s complaint ultimately is that in reaching this conclusion the Tribunal failed to apply the principles as set out in Chen’s case in that in finding that the laws are not discriminatory or persecutory, it did not consider that the laws may apply differently on different people and therefore be discriminatory.
The enforcement of a generally applicable law does not in ordinary circumstances constitute persecution for the purposes of Refugees Convention (Applicant A per McHugh J. at 258). The accepted reason is that any enforcement of such a law does not ordinarily constitute discrimination (Chen’s case at [20]). Brennan CJ. explained this point in Applicant A at [223]:
“… the feared persecution must be discriminatory. The victims are persons selected by reference to a criterion consisting of, or criteria including, one of the prescribed categories of discrimination (race, religion, nationality, membership of a particular social group or political opinion) mentioned in Art 1A(2). The persecution must be "for reasons of" one of those categories. This qualification excludes indiscriminate persecution which is the product either of inhuman cruelty or of unreasoned antipathy by the persecutor towards the victim or victims of persecution. Persecution of that kind is a general, non-discriminatory denial of fundamental rights and freedoms. The qualification also excludes persecution which is no more than punishment of a non-discriminatory kind for contravention of a criminal law of general application. Such laws are not discriminatory and punishment that is non-discriminatory cannot stamp the contravener with the mark of "refugee". But the categories of discrimination mentioned in the definition are very broadly stated, especially the category of "membership of a particular social group".”
Applicant A is an example of circumstances where it was found to involve non-discriminatory enforcement of a generally applicable law and therefore was outside the scope of the Convention.
In Chen’s case the High Court upheld that the laws, or policies, which target or apply only to a particular section of the population, or impact adversely upon a particular or group, are not properly described as laws of general application. However, while confirming a general rule that a law of general application is not discriminatory the High Court said at [19]-[21] per Gleeson CJ., Gaudron, Gummow and Hayne JJ.:
“[19] Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group -- for example, "black children", as distinct from children generally -- cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.
[20] In Applicant A, McHugh J pointed out 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.
[21] In that context, his Honour also pointed out that "enforcement of a generally applicable criminal law does not ordinarily constitute persecution" [22]. That is because enforcement of a law of that kind does not ordinarily constitute discrimination.
[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 [23]. And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention.”
What can be drawn from this therefore is that even though China’s one child policy may be constituted in laws of general application (that set a limit on the number of children that parents may have), that does not mean that the laws, or practices, that apply to children born in contravention of that policy (as separately applied to children generally in China) are applied indiscriminately. The distinction is as between children generally in China, and children born in circumstances where they are seen to be in contravention of the one child policy. The issue however is that if this law were to be enforced selectively against the applicant then this may bring the applicant within the scope of the Convention, because the High Court also stated that children born in contravention of the “one child policy” could constitute a particular social group such that this can be attributed to a Convention ground. Further, depending upon the circumstances the imposition of severe penalties on parents of black children may amount to persecution for reasons of membership of a particular social group (VTAO).
In my view a reading of the Tribunal’s decision record reveals that the Tribunal did not express (ultimately) its relevant findings with reference to a law of general application. I accept Mr. Smith’s submission that what is set out at CB 117.3 needs to be seen and read in the context of the Tribunal’s decision and as a whole. Such a reading of the Tribunal’s “Findings and Reasons” shows that the Tribunal’s reasoning was that after reading a broad range of country information it was not of the view that relevant family planning regulations in China were discriminatory. The Tribunal found that the regulations applied equally to all Chinese citizens and were imposed with a legitimate purpose of slowing population growth of the most populous country on earth for relevant reasons. The Tribunal was particularly satisfied that the emphasis, once the relevant regulation (as to the number of children in each family) had been breached, shifted not to punishing the extra children (like the applicant) but to ensuring that the family pay for the provision of the extra services required to raise such children. This is the context for the expression of the Tribunal’s view at CB 117.3. But a plain reading of the Tribunal’s decision record reveals that this was clearly not the sole reason or extent of the Tribunal’s relevant analysis of the applicant’s claims. The Tribunal found, at CB 118 in particular, on the basis of the information before it, in the context not only of what it stated at CB 117.3, but in the context of all of the independent information available to it, and importantly the applicant’s circumstances as presented by his parents, that it was not satisfied that the applicant would face discrimination, let alone severe harm, for reasons of his current status as an unregistered child if he were to go to China. The Tribunal found that, as against independent evidence, on registration and payment of a social compensation fee, the child would no longer be regarded as “black” and that if the child is therefore registered then the harm that is feared is “completely eradicated”. Also importantly in this regard the Tribunal considered the parents’ claims relating to concerns over their ability to pay these fines (see CB 116.8 to CB 117.2 and CB 118.4). The Tribunal also plainly, and separately, looked at the adverse situation (if the applicant were to live in China as an unregistered child) and found that the applicant would not suffer serious harm in these circumstances.
In relation therefore to the applicant’s first complaint, I accept Mr. Smith’s submission that a reading of the Tribunal’s decision as a whole reveals that the Tribunal did address the issue of what was likely to happen if he were to go to China, given his current unregistered status, and found that he could be registered which would “completely eradicate” his fears. I agree with Mr. Smith that the Tribunal, in relation to the first complaint, dealt with the applicant’s case with reference to the circumstances as put forward by his parents. When read in this way the applicant’s first complaint as it derives from what the Tribunal said at CB 117.3 is not made out.
The applicant's second ground of complaint relates to the issue of serious harm pursuant to s.91R of the Act. This section provides, relevant to the applicant's complaint:
“SECT 91R Persecution
(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.”
The applicant contends that in considering whether the applicant would “suffer serious harm” amounting to persecution the Tribunal, in its application of s.91R, appears only to have applied the matters set out in s.91R(2), in that it seems to have only examined those specific matters set out s.91R(2), and it did not properly consider whether the persecution feared involved serious harm and systematic and discriminatory conduct as referred to s.91R(1). Mr. Atkin submitted that the Tribunal's consideration of this matter is in its decision record at CB 118.5, that the specific matters that the Tribunal looked at in this regard, are contained in its analysis at CB 118.8. He referred to Merkel J. in VTAO and relevantly, that His Honour set out that the Tribunal was required to consider whether the harm fell within s.91R(1), and that although s.91R(2) specifies instances of serious harm, it does so without limiting what must be considered pursuant to s.91R. In essence, that it did not provide an exhaustive statement of what amounts to serious harm nor did it lay down the criteria that must be satisfied before conduct can be said to involve serious harm. Further, the applicant contends that the Tribunal failed to consider the totality of the treatment that could be expected should the applicant go to China, and whether this would meet the legislative criteria of persecution involving serious harm. Both cases, in the applicant's submission, reveal jurisdictional error on the part of the Tribunal.
Mr. Smith's response was that the key to understanding properly what the Tribunal has done is, again, to view the context in which it has dealt with the applicant's actual claims as put, obviously, by the applicant's parents.
Mr. Smith referred to the applicant's claims and, in particular, as put forward by the applicant’s father. He referred to CB 46 and in particular paragraphs 20 to 22 of the declaration made by the applicant’s father. The respondent’s submission was that the specific matters raised on behalf of the applicant, particularly as to what would happen if the applicant was not registered, were that he could be deprived of an education and that he would not be entitled to receive health benefits such as immunisation. Further, that the parents did not have the skills to educate the applicant and that the applicant would not be able to obtain employment in the government sector and would grow up with little literacy skills or work skills. Mr. Smith’s submission was that in considering the applicant’s situation the Tribunal separately considered the circumstances that may arise if the applicant were to remain unregistered. It begins this consideration at CB 118.5 and makes specific references to a denial of access to basic services such as education and health care, and proceeds further in the same paragraph to consider employment, education, housing and medical care availability and that these were exactly the matters that was claimed, on his behalf, would not be available to him if he remained unregistered.
In essence, the submission was that the Tribunal set out the test for serious harm initially in its decision record at CB 107.3, and while it makes reference to instances set out in s.91R(2) these are given as examples of what serious harm may include. The Tribunal specifically says (at CB 107.3):
“The expression of serious harm includes for example…”
The submission was that it focused its findings on those matters as raised by the applicant (that is, by his parents on his behalf), and the Tribunal in that sense was not looking to s.91R(2) as an exhaustive statement. The Tribunal refers to the matters raised in that subsection, seen for example at CB 118.6:
“Even in the event that he lives in China as an unregistered child the Tribunal is not satisfied that the applicant would be denied access to basic services such as education and health care because these are available to all as fee-paying services.”
However, Mr. Smith submitted that the use of the words “such as” indicates that the Tribunal saw these as examples, and not as the exhaustive statement of what it needed to turn its mind to. This approach is also seen by its use of this phrase at CB 119.1, where it refers to serious harm “such as” economic hardship, denial of basic services or denial of capacity to earn a livelihood. The submission on this point concluded with a reference to the Tribunal’s setting out of the correct understanding of the law ultimately in its conclusion.
Mr. Smith also sought to distinguish the situation in the case before me from what was before His Honour Merkel J. in VTAO. At [7] in His Honour’s Judgement, where he made specific reference to the Tribunal’s treatment of the financial burden to be imposed on the relevant family:
“55. ... the financial burden which the applicant parents have attracted by reason of their family planning choices, although serious, does not amount to persecution within the meaning of the Convention or of s.91R(2) of the Act.”
Mr. Smith’s submission was that there were a number of important factors that decided the case in VTAO. He submitted that the Tribunal's specific reference to persecution within the meaning of s.91R(2) of the Act in VTAO is distinct and different from the situation in the case before me, where this Tribunal has made no such statement. Further, at [60] in VTAO His Honour said:
“The RRT’s references to s 91R(2) and to instances of harm described in s 91R(2)(c), (d) and (e) suggest that it was addressing the question of whether the harm feared fell within the instances set out in s 91R(2), rather than whether the harm feared constituted “serious harm”. That view is reinforced by the following matters. The RRT did not consider how the phrase “serious harm” is to be interpreted. In [49] the RRT referred to what s 91R(2) "required" and in [51] it found the harm did not amount to persecution “within the meaning of s 91R(2)”. In [46], [48] and [49] the RRT applied the language of the examples contained in s 91R(2)(c), (d) and (e) as if those examples represented the appropriate legislative test. Also, in its reasoning the RRT made a number of references to s 91R(2) but it did not refer to s 91(1) or 91R(1)(b).”
In essence therefore, Mr. Smith sought to distinguish the case before me from what was before His Honour in VTAO, on the basis that there was no reference to serious harm amounting to persecution specifically within the meaning of s.91R(2). In this regard he submitted that there was an absence of any express or particular reference to s.91(2) in its conclusions, when the Tribunal dealt with the applicant’s claims as put by him and that the Tribunal before me considered the claims in this context. Further, its use of the phrase “such as” goes to show that, unlike the Tribunal in VTAO, this Tribunal was well aware that s.91R(2) was not an exhaustive statement of what may constitute serious harm.
Mr. Atkin pressed that the matters that the Tribunal looked at, at CB 118 in relation to serious harm, were in fact only some of the matters raised by the applicant children as the areas in which they feared harm. His submission was that other matters were put before the Tribunal and that these were matters that do not specifically arise under s.91R(2) and that these were matters that deal with harm and yet the Tribunal did not deal with these matters in its consideration of the question of serious harm. Mr. Atkin made specific reference in his closing submissions to his recounting of the applicant's claims at the beginning of the hearing with specific reference to the matters raised at CB 45 to CB 47, being the applicant’s father’s statutory declaration. In particular he made reference (amongst others) to paragraph 29 of the applicant’s father’s statutory declaration at CB 46:
“Both our children run a real chance of suffering physiological problems thus resulting in them having low self-esteem.”
The submission was that the Tribunal did not address this issue. I note that the father’s reference to “physiological”, dealing with the normal functioning of an organism in the biological context, may indeed have been a mistaken reference to “psychological” dealing with mental states and processes, and human nature, and that this would be more consistent with the subsequent reference to “low self-esteem” (but this does not appear to detract from Mr. Atkin's submission in this regard in that the Tribunal decision makes no reference to either the “physiological” or “psychological” situation relating to the applicant). Further, the applicant's case specifically before the Tribunal was further supported by submissions from the applicant's solicitors (CB 89 to CB 90) where there is reference to the applicant as an unregistered child who would be:
“… singled out and look [sic] down upon as one who is not socially recognised by the community … and to be treated as a sub standard class of person.”
Mr. Atkin also referred to the adviser's letter, put to the Tribunal and dated 10 December 2003 (CB 95 to CB 97) where at CB 96 the adviser summarised the difficulties that the applicant would face with specific reference to being able to marry, to own property, and to have children.
The Tribunal clearly dealt with all of the applicant's claims as set out in his submissions (as it specifically said in relation to its findings that registration would completely “eradicate” all those fears). The matters specifically raised by Mr. Atkin as falling outside of its consideration of what serious harm may occur if the applicant were to remain as an unregistered child are at CB 45, particularly paragraphs 4, 8 and 10.
1)Paragraphs 8 and 10 in particular establish the background to the applicant's situation in that the applicant's parents obtained permission before conceiving their first child and that they have two children who were born without permission. However, beyond establishing that the applicant was born without permission, this cannot be seen as a direct instance of harm, whether serious or otherwise, that the applicant claims will occur should he go to China.
2)At CB 46, paragraph 19 relates to the applicant mother and that she would be ordered to “have a contraceptive device inserted”. There is nothing to show that this would directly relate to any harm feared by the applicant should he go to China. However, the matters set out at CB 46 at paragraphs 19 to 24, including education, employment etc are all specifically addressed by the Tribunal when it looks at the harm feared in the event that the applicant lives as an unregistered child in China.
3)The issues at paragraph 29 at CB 46, if taken as set out, may on a first reading raise a concern as to what exactly is meant. “Low self-esteem” resulting from “physiological problems” would on any normal understanding of that term, which the Macquarie Dictionary defines as:
“1. of or relating to physiology;
2.consistent with the normal functioning of an organism.”
with “physiology” defined as:
“The science of dealing with the functioning of living organisms or their parts.”
imply clearly that the “low self-esteem” arises from some abnormal internal functioning of the applicant, for example, some physical or mental abnormality. Nothing of this kind was put before the Tribunal. But when read in context, and in the context of subsequent submissions made by the applicant's advisers, for example, at CB 89:
“To be branded a child without ‘hukou’ is in fact statement by the authorities and the Chinese community alike that the child is be singled out and look down upon as one as one who is not socially recognised by the community or the Chinese authorities and to be treated as a sub standard class of person.”
And further at CB 96.7:
“Payment of fines does not necessarily mean that child would be registered and treated as an equal.”
then it is clear that what the applicant’s father and his representative were saying was that some social stigma would arise from the fact of remaining unregistered (if the applicant were to remain unregistered in China) and that this lack of social recognition would result in the applicant having low self-esteem.
In the Tribunal's view if the applicant is registered all of these matters are included in its finding that all his fears “in his submissions” would be “completely eradicated”. But in looking at the issue of what would happen to the applicant if he remained as an unregistered child in China, I cannot see that the Tribunal turned its mind to this specific claim as set out above. In looking at the situation, if the applicant were to remain unregistered in China, the Tribunal clearly addresses the factors of denial of access to basic services such as education and health care, employment and housing, or denial of capacity to earn a livelihood. While there is much strength in Mr. Smith's submission, I cannot accept that in looking at the situation of the applicant remaining in China as an unregistered child, that the Tribunal looked at all of the elements of concern put forward on behalf of the applicant. At least in one particular as set out above, as it relates to the applicant's “physiological” or perhaps better understood “psychological” state, the Tribunal did not deal with the claim that low esteem would result merely from the perception of the applicant as an unregistered child. An issue clearly highlighted by the applicant's representative specifically in submissions to the Tribunal. This issue in my view gives rise to a concern that the Tribunal restricted its consideration of the elements relevant to what constitutes serious harm pursuant to s.91R(1) of the Act with a reference only to those matters set out particularly in s.91R(2)(d), (e) and (f).
However, on balance it remains that an element relevant to the harm feared arising from continuing to be an unregistered child was not addressed by the Tribunal. Notwithstanding that the Tribunal set out the correct test at the beginning of its decision record, and used the phrase “such as”, which may as in Mr. Smith's submission imply “example”, equally, it is my view that the use of the phrase “such as”, where it appears at both parts of the Tribunal's decision record in relation to this issue, could equally be merely a conjunction between the Tribunal’s lack of satisfaction and the matters from which it derives such a lack of satisfaction. The doubt as to what it really meant by the use of the phrase “such as”, leaves its failure to address at least one relevant claim, in my view, as revealing jurisdictional error in the Tribunal’s decision.
In all therefore I agree with Mr. Atkin that the Tribunal did fail to address all of the relevant claims of harm that were feared. There is nothing in the Tribunal’s analysis (in its “Findings and Reasons”) to conclusively show that it did not confine itself only to those matters set out in s.91R(2). The Tribunal’s failure to deal directly with the low self-esteem issue (at least) when looking at the circumstances of the applicant remaining in China as an unregistered child, does in my view tip the balance in favour of the applicant, such as to say that on balance I do not accept the respondent’s argument that the Tribunal did not see the matters set out at s.91R(2) as exhaustive of what it was considering in s.91R(1). Therefore, the Tribunal fell into the same kind of error (notwithstanding the differences) as found in VTAO. But whether this instance presents as a failure to consider all relevant claims, or the failure to consider all relevant claims, in all the circumstances, it is indicative of an approach to the issue of serious harm which was confined to the matters set out in s.91R(2) makes little difference. Both reveal jurisdictional error on the part of the Tribunal. On this basis I find for the applicant, and will make orders accordingly returning this matter to the Tribunal for reconsideration.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate:
Date: 13 July 2006