SZEAM v Minister for Immigration
[2005] FMCA 1367
•20 September 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEAM v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1367 |
| MIGRATION – Refugee – "one child policy" – "black child" – statelessness – membership of a particular social group. |
| Migration Act 1958, ss.48A, 424A(1), 424A(2), 424A(3)(a) Federal Magistrates Court Rules 2001, r.21.02(2)(a) |
| Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 |
| Applicant: | SZEAM |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2283 of 2004 |
| Judgment of: | Nicholls FM |
| Hearing date: | 20 September 2005 |
| Date of Last Submission: | 19 September 2005 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2005 |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Mr. T. Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Refugee Review Tribunal to be joined as the second respondent in these proceedings.
The applicant is dismissed.
The litigation guardian of the applicant to pay the first respondent’s costs set in the amount of $4000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2283 of 2004
| SZEAM |
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 20 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 19 May 2004 and handed down on 10 June 2004 to affirm the decision of a delegate of the respondent Minister to refuse a protection visa to the applicant. The Tribunal is joined as the second respondent to the proceedings.
The applicant is an infant who was born in Australia on 2 December 2002 to parents neither of whom are Australian citizens or permanent residents. The applicant mother has been appointed as her litigation guardian in these proceedings. The applicant’s mother applied for a protection visa on the applicant’s behalf on 22 September 2003. The original application purported to include the applicant’s mother and elder brother as members of the applicant’s family unit. As the applicant mother and applicant's brother had previously applied unsuccessfully for protection visas they were barred by s.48A of the Migration Act from making any further application for a protection visa. The Tribunal noted in its decision record Court Book 83.4 that they had been so informed by letter dated 3 October 2003 and the Tribunal noted that the decision under review related only to the applicant and in these circumstances the Tribunal only had jurisdiction in relation to the decision to refuse to grant the applicant a protection visa.
The applicant's application for a protection visa is at CB 1 to CB 24. The applicant's specific claims were submitted on her behalf by her mother (see CB 25 to CB 28). The application to the Tribunal is at CB 58 to CB 61, and the applicant was represented by a migration agent (CB 59). In answer to the question in the application form as to why the applicant should be considered to be a refugee, the answer submitted for the applicant was, “please refer to my Departmental files”. The applicant's mother appeared with the infant applicant at a hearing before the Tribunal and gave evidence on the applicant's behalf on 15 April 2004 and subsequently the applicant's mother made written submissions (see CB 71 to CB 72). The applicant's claims to fear persecution in China, as presented by her mother, and her then migration adviser were, that the applicant claimed to fear persecution in China because as she had been born outside the parameters of China's one child policy she would be considered a “black child”. The applicant's claim was that as a member of this group of “black children” she would not be given residential registration and would be denied access to food, education and health care beyond a very basic level and that she would face social discrimination, prejudice and ostracism.
The applicant was born in Australia to parents and who were not citizens or permanent residents of Australia and who were nationals of the People's Republic of China. The Tribunal's decision record shows at CB 87 that it discussed with the applicant's mother the issue of the applicant's nationality and the mother's claim that the child was not a national of China. In relying on independent country information the Tribunal dealt with the applicant not as stateless, but as a national of China. In all the circumstances this was of benefit to the applicant because had the Tribunal dealt with the applicant as stateless pursuant to the definition of Refugee in the Refugees Convention it would have led to the applicant's claims being assessed against the applicant's country of “former habitual residence”. As the applicant had been born in Australia and had not lived outside of Australia, this would have meant that the applicant's claims could not succeed. The Tribunal's decision therefore, to treat the applicant as a national of China, meant that her claims of fear of persecution, if she were to go to China, would be investigated.
With reference to the High Court decision in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, the Tribunal found that “black children” were a particular social group for the purposes of the Refugees Convention and in relying on independent information from the Australian Department of Foreign Affairs and Trade noted that a “black child” is actually an unregistered child whose birth may or may not violate family planning regulations in China. The Tribunal relied on independent country information generally concerning “black children” in China and information that is specifically about the enforcement of the one child policy in the applicant mother's home county in the province of Fujian from where she came. The Tribunal also preferred information from the Australia Department of Foreign Affairs and Trade which had reported that it was not aware of any difficulties for people returning to China from overseas with more than one child. The Tribunal's decision record shows that it discussed the substance of this information with the applicant's mother at the hearing that it conducted with her and also took into account a subsequent letter dated 19 April 2004 (CB 71 to CB 72) submitted by the applicant's mother after the hearing. The Tribunal found, on the basis of the independent evidence available to it, that there was not a real chance that if the applicant's parents were to return to China with their children that they would face such financially crippling fines for the breaches of the one child policy that they would be unable to provide for the education, health and welfare of the applicant. Further, the Tribunal at CB 98 found that even if the applicant remained unregistered it did not accept on the basis of the evidence before it that there would be a real chance that she would be denied access to health and welfare services, education or employment or that she would be socially ostracised or mistreated for reasons of her being unregistered, that is for reasons of the membership of the particular social group of black children in China. The Tribunal was therefore not satisfied that the applicant had a well founded fear of being persecuted for a Convention reason if she were to return to China.
The application for review filed in this Court on 20 July 2004 asserts two grounds:
1.“The Tribunal found that the reason of the applicant and her mother or their membership of any particular social group was not the essential and significant reason for the persecution they fear as required by s.91R(1)(a) of Migration Act. The Tribunal fell into jurisdictional error in making this finding.
2.The Tribunal found that there was no discriminatory failure on the part of the Chinese authorities to protect the Chinese people who are found in breach of family planning policy as a particular social group. The Tribunal fell into jurisdictional error in making this finding.”
No particulars are provided. An amended application filed on
17 November 2004 by the applicant's mother, refers only to another person who was not a party to the proceedings before me. A document headed amended application and dated 28 February 2005, which a Registrar of this Court did not accept for filing was produced at the hearing and I granted leave for the applicant to submit this document as a further amended application. I note however, that this document is drafted by the applicant's mother as if she is the applicant, and refers to her and her application. However, the following complaints on behalf of the applicant may be discerned:1.That the Tribunal was biased. In support the applicant's mother refers to the hearing that the Tribunal conducted with her on the applicant's behalf and says that the Tribunal kept quoting country information without giving her opportunities to comment on that information, and that the Tribunal did not accept the country information which she had referred to. The applicant's mother claims that the Tribunal had not provided a fair chance for the applicant's mother to explain the situation, and again the reference was to what would happen to her as opposed to what would happen to the applicant on return.
2.The applicant's mother claims that the Tribunal did not look thoroughly at all the information contained in the country information and only quoted that information which was ‘against her’.
3.That the applicant's mother needs more time to search relevant information published in the Australian Chinese newspaper on the 15 April 2004.
4.Again the applicant's mother, focusing on her own situation as opposed to her child’s, asserts that if she were to return to China a series of harm would befall her at the hands of the Chinese authorities. The only complaint directly relevant to the applicant before me is that as one of her four children the applicant would be denied access to health, welfare, education and employment in the future.
Mr. Reilly for the respondents submitted that the Tribunal's decision was open to it on the material before it and the Tribunal gives reasons. Essentially he submits that in relying on independent country information available to it the Tribunal found that the applicant, whether registered or unregistered in China, would not face a real chance of persecution if she were to return to China. The independent country information relied on by the Tribunal, which formed the basis of the its decision, was fully discussed with reference to the Tribunal's record of the hearing that it conducted with the applicant's mother on the applicant's behalf. The applicant’s mother’s complaint now, that the Tribunal did not give her the opportunity to comment on this information, is contradicted by the Tribunal's account of what occurred at the hearing. I also note that the applicant was represented by a migration adviser, and that neither the adviser nor the applicant's mother made any such complaint to the Tribunal subsequent to the hearing in the period of nearly two months between the hearing and the date of the handing down of the Tribunal's decision. In any event the applicant's mother did make subsequent written submissions to the Tribunal addressing the issue of independent country information on which the Tribunal had referred at the hearing with the applicant's mother, challenging some of that information. The Tribunal took this submission into account (see CB 96.2). Further, even in the relevant statutory context the information relied on by the Tribunal clearly falls within that the exception provided for in s.424A(3)(a) from the requirement of putting this information to the applicant pursuant to s.424A(1) in the manner set out in s.424A(2) (Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264). I also took the view that information provided by the applicant's mother to the Tribunal was information provided by the applicant as the mother was clearly acting on behalf of a two-year-old child who would have been clearly incapable of conducting the application on her own before the Tribunal. It was open to the Tribunal to make the findings that it did. Its choice and assessment of country information is a matter for the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]:
“By s 420(2)(a) of the Migration Act, the Tribunal is not bound by the rules of evidence. By s 424(1), in conducting a review, the Tribunal may get any information that it considers relevant. There can be no objection in principle to the Tribunal relying on ‘country information’. The weight that it gives to such information is a matter for the Tribunal itself, as part of its fact-finding function.”
The applicant mother's complaint that the Tribunal relied selectively on independent country information cannot in the circumstances of this case succeed. For the most part, the applicant's mother has put matters which clearly seek impermissible merits review of the Tribunal's decision: Minister for Immigration and Ethnic Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272.
The applicant's complaint of bias cannot be made out in circumstances where the applicant’s mother’s complaint of bias is based on the assertion that the Tribunal “kept on quoting” the country information without giving an opportunity to comment. Clearly the Tribunal's record, and subsequent opportunity to put in written submissions, and the absence of any subsequent complaint to the Tribunal shows that the claim cannot be made out. The applicant’s mother's claim that she now wants more time to search for relevant information cannot lead to establishing jurisdictional error on the part of the Tribunal. The applicant’s mother had ample opportunity to put before the Tribunal whatever she chose to put before it, and in any event I note that the newspaper article referred to now by the applicant's mother was put before the Tribunal by the applicant’s adviser (see CB 68 to CB 69).
References to other similar cases, as the applicant's mother has put it, where other “black children” were permitted to remain in Australia, does not assist this applicant in circumstances where the Tribunal specifically looked at this claim made by the applicant's mother, and at CB 97 properly found that each case before the Tribunal turns on its own facts and proceeded to make findings and reach its conclusion in this case on the facts and materials that were before it.
Finally, the Tribunal did deal with the one claim in the further amended application, at paragraph 4, which relates to the applicant before me and that was the issue of access to health, welfare, education and employment in the future. The Tribunal clearly turned its mind to these issues even in the event that the applicant remained unregistered and made findings which were open to it on the material before it.
It is clear that in the case before me the Tribunal looked at all of the applicant's claims as presented by the applicant's mother and the migration adviser on her behalf, and in looking at independent country information which was discussed with the applicant's mother at a hearing with the Tribunal found that it could not be satisfied that the applicant was a person to whom Australia owed protection obligations. The Tribunal's findings were open to it for the reasons that it gave.
I can see no jurisdictional error in the Tribunal's decision. This is a privative clause decision within the meaning of s.474 of the Act. The application is dismissed.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Nicholls FM.
Associate: Wagma Aziza
Date: 20 September 2005
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