SZERA v Minister for Immigration
[2005] FMCA 358
•15 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZERA v MINISTER FOR IMMIGRATION | [2005] FMCA 358 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – review of a decision of the Refugee Review Tribunal not to grant a protection visa – applicant a child – appointment of litigation guardian – applicant born in Australia – parents non-citizens of Australia. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958, s.475 Australian Citizenship Act 1948, s.10 |
| Applicant: | SZERA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG3278 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 15 March 2005 |
| Date of Last Submission: | 15 March 2005 |
| Delivered at: | Sydney |
| Delivered on: | 15 March 2005 |
REPRESENTATION
| Solicitors for the Applicant: | In person by his Litigation Guardian |
| Counsel for the Respondent: | Ms Clegg |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application is dismissed.
Parties are to pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3278 of 2004
| SZERA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application for review of a decision of the Refugee Review Tribunal made on 29 October 2004. It appears to have been handed down that same day. The decision of the tribunal was to affirm the decision of a delegate of the Minister not to grant a protection visa to the applicant.
The applicant is a little boy aged 3. He conducts these proceedings by means of his litigation guardian who is his mother. The Registrar at the directions hearing made an order appointing the applicant's mother his litigation guardian for the purpose of these proceedings.
The case is different from many cases of this nature in that the applicant was born in Australia. He has a younger sister who was also born in Australia. Their parents are citizens of the Peoples Republic of China. The parents have made their own applications for visas which have been unsuccessful. Those applications I understand have run their course and there are no current proceedings regarding the parents. There is no application on foot for the applicant's little sister.
The applicant is entitled to the protection of s 91X of the Migration Act 1958 in that his name will not be published and the names of his parents will not be published either.
I note that the applicant's little sister who was born on 8 June 2004 is not the subject of an application for a visa, nevertheless she will not be referred to by name and her name will not be published.
The application for this child, the applicant in these proceedings, seeks an order that the decision of the Refugee Review Tribunal of 29 October 2004 should be set aside plus an order for costs. There are three grounds given for the application. These are the grounds:
a)The tribunal relied crucially upon advice received by it from the Department of Foreign Affairs and Trade.
b)The applicant through his adviser at the tribunal hearing cautioned against the tribunal relying on such advice. The tribunal sought the assistance of the Department of Foreign Affairs and Trade in establishing whether its earlier advice remained accurate.
c)The Department of Foreign Affairs and Trade was unable to obtain information to either confirm or vary its earlier advice about the form and hence the validity of official documents tendered to the tribunal.
d)The tribunal was in error of law in that decision as there was no evidence before it to support that opinion.
The applicant and his little sister were both born in Australia. Nevertheless, they are not Australian citizens because of the operation of s 10 of the Australian Citizenship Act 1948. For either one of them to be an Australian citizen by being born in Australia one or other parent would have had to have been an Australian citizen or a permanent resident or the child would have had to have been ordinarily resident in Australia for a period of 10 years. Neither of those situations apply.
The applicant's parents are concerned that on their return to China the applicant will be disadvantaged. The applicant's mother says that the marriage between her husband and herself will not be recognised in China. That marriage took place in Australia. If their marriage will not be recognised by the government in China they will not be able to register the applicant's birth or obtain household registration. She said that this means that the applicant would not be entitled to benefits such as health services or education. He would not be entitled to an identity card. Without that card he would not be able to apply for jobs or a driver's licence or a passport or a bank account or even apply to get married. Basically, she said, he would have no rights. She said that even if she and her husband did apply for a marriage permit to be married in China she felt it was unlikely the government would process the request.
The applicant's mother and father appeared at the hearing of the Refugee Review Tribunal that took place on Tuesday 15 June 2004. I note that the applicant's mother has told me today that her second child, the applicant's younger sister, was born a week earlier on 8 June 2004.
The tribunal considered a considerable amount of documentary information. The applicant's adviser made a further submission and produced documents on 18 June 2004 and a request was made to the Department of Foreign Affairs and Trade on 4 August. A reply was received on 2 September and the tribunal sent a letter to the applicant or the applicant's parents on 3 September. A reply was received on 13 September and a further letter was sent back to the applicant that same day. A response was received on 15 September and a further response received on the 20th. Correspondence continued until 22 October 2004. This explains why it is that oral evidence was taken on 15 June but the decision was not handed down until 29 October.
The tribunal in the decision summarised the applicant's claims, accepted that he was what is referred to as:
A black child -
meaning that he was not presently registered. The Tribunal considered the evidence relating to documentation in Fujian province and looked at the requirement for a birth permit to be obtained by a mother before giving birth to a child. That comes with a fee.
The Tribunal considered documentation generally including country information and a report from the Department of Foreign Affairs and Trade. After considering the evidence the tribunal was not satisfied that there was a real chance that the applicant would be persecuted on return to the Peoples Republic of China.
The application as I said set out four grounds. They criticise the reliance placed by the Refugee Review Tribunal on information provided by the Department of Foreign Affairs and Trade. Three of the grounds refer to that point. Those grounds whilst they express the concerns of the applicant's mother do no more than canvass the merits of the case which was considered by the Refugee Review Tribunal. There is no reason why the tribunal should not have relied on that evidence provided that it considered all of the relevant evidence that was before it.
The applicant's litigation guardian said that she and her husband gave oral evidence and provided documentary evidence and there is clear evidence and indication in the decision that the Tribunal considered the documentary evidence. The applicant's mother does not believe that the Tribunal gave much, if any, weight to their documentary evidence as opposed to the general information from the Department of Foreign Affairs and Trade. That is because the decision was not in the applicant's favour.
There is no evidence that the Tribunal did not consider the material submitted by the applicant's parents or did not consider their oral evidence. However, the Tribunal chose to accept the contentions in the Department of Foreign Affairs and Trade documents which did not support the applicant's case. That is a course that is open to the Tribunal as the tribunal is the body that considers the facts.
The fourth ground was that the tribunal made an error of law in that there was no evidence to support the findings that it reached. In my view, there was evidence upon which the tribunal could be satisfied. The tribunal considered the evidence and there was evidence there that allowed the conclusions to be drawn. It is unfortunate for the applicant and his parents that the tribunal chose not to find their evidence compelling but that was always a function of the Tribunal and there is no reviewable error.
Before the matter proceeds further I express the Court's concern about the fact that the applicant and his younger sister are in immigration detention. I hasten to add there has no complaint whatsoever about the standard of treatment received by this family whilst they have been in the immigration detention centre at Villawood. Indeed, the escorts for the applicant and his mother and sister have spent some time looking after the applicant and his sister who are only little and have dealt with them in a kindly way.
Nevertheless, whilst it is not the function of a Court to make comments on government policy, it is a function of a Court to raise concerns about the way people, whether they are citizens or non citizens, are treated. I have heard from the applicant or the applicant's mother that she and her husband and the two children do have an area to live in inside the detention centre as a family. Nevertheless it is a source of some concern that young children such as this should be in immigration detention at all, although I am not saying for a moment that they should be taken from their parents.
I see nothing in the documentation before me which would indicate that either the applicant or his little sister or the mother pose any threat to the Australian community, or have any history or pose any threat of flight. It seems unfortunate that they should be held in detention and indeed the parents have been in detention for 19 months, as has the applicant. Any parent would express some concern about a child, non citizen or not, who had spent more than half of his life time in a detention centre.
I should make it quite clear that the applicant and his family have not been charged with any offence and indeed the applicant and his younger sister could not be charged with any offence under our law. It is not for this Court to suggest to the government a reversal of government policy. That is a task for the legislature. It is however open to the Court to raise concerns about the welfare of children because the task of the Court in other jurisdictions is consider the best interests of the children as a paramount consideration.
In my view the respondent minister should give serious consideration to dealing with this case as a matter of priority. I accept the fact that there is a right of appeal which the applicant through his litigation guardian could choose to exercise and that there is a time for that appeal to be lodged. I accept the fact that if an appeal is lodged another Court would have the duty of deciding on that appeal. I have no doubt that if that were the case that the Full Court of the Federal Court would have no hesitation in seeing the importance of giving this case priority.
What I do consider is that respondent Minister should see that this matter is given priority. If the ultimate answer is that the applicant and his parents and his sister should be removed from Australia and returned to China then that should happen as quickly as possible as soon as the law allows.
If it were open to the Minister for arrangements to be made so that the applicant and his mother and sister could be housed somewhere outside a detention centre but under the supervision of the Department of Immigration and Multicultural and Indigenous Affairs, in my view for the time that they were in Australia that would be more in the best interests of the children than they remaining in immigration detention. I do not consider on any evidence before me that the applicant and his little sister if they were to remain in the care of their mother would pose any threat to the Australian community or any risk of flight.
I require a transcript of my reasons for this decision and I would ask the respondent's legal advisers to bring my concerns to the attention of the minister at an early date.
The applicant is a child aged 3 and he is bringing the proceedings through his litigation guardian who is his mother. I am not disposed to make an order for costs against the litigation guardian, let alone the three year old applicant. The parties can pay their own costs.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 29 March 2005
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