SZEUQ v Minister for Immigration

[2005] FMCA 1341

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEUQ & ANOR v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1341

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in the PRC as a member of a particular social group, namely, ‘black children’ born in contravention of the one child policy – serious harm – discriminatory conduct – membership of particular social group.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S

VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Chen Shi Hai v Minister for Immigration and Multicultural and Indigenous Affairs [2000] HCA 19
Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 25

First Applicant: SZEUQ

Second Applicant: SZEUR

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 1834 of 2004

Judgment of: Emmett FM

Hearing date: 31 August 2005

Date of Last Submission: 31 August 2005

Delivered at: Sydney

Delivered on: 15 September 2005

REPRESENTATION

Counsel for the Applicant: Mr Eyeson-Annan

Counsel for the Respondent: Mr T. Reilly

Solicitors for the Respondent: Ms A. Radich, Blake Dawson Waldron

ORDERS

1. That the applications before this Court are dismissed.

2. That the Applicant pay the Respondent’s costs in an amount of $5000.00.

3. That the Applicant pay the costs in accordance with Order 2 within 28 days unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1834 of 2004

SZEUQ

First Applicant

SZEUR

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the Applicant.

2. The second applicant is the father of the applicant child, being a second child, and is included in the application for a visa as a member of the applicant child’s family unit. For the purposes of this judgment the applicant child will be referred to as the Applicant.

3. The Applicant was born in Sydney Australia on 7 March 2001.

4. The Applicant’s father claims to be born as a Chinese citizen and claims to remain a Chinese citizen.

5. The Applicant’s father was born in Qingdao, Peoples Republic of China (“the PRC”) on 21 June 1958.

6. The Applicant’s father and mother arrived in Australia on 15 August 1999.

7. On 14 March 2002, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Migration Act 1958 (Cth) (“the Act).

8. The Applicant claimed that if she returned to the PRC she would face discrimination and would be disadvantaged through her life.

9. On 19 June 2003, a delegate of the Minister refused to grant a protection visa on the basis that the Applicant is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.

10. On 17 July 2003, the Applicant filed an application for review before the Tribunal. On 11 March 2004, the Tribunal affirmed the decision of the delegate not to grant a protection visa.

11. On 16 June 2003, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

12. On 29 October 2004, pursuant to directions made on September 2004, the Applicant filed an amended application (“the Amended Application”).

13. In her Amended Application, the Applicant sought relief on the following grounds:

    “The Refugee Review Tribunal failed to exercise its jurisdiction.

    Particulars

    (a)The Refugee Review tribunal misconstrued the term “refugee” in that it failed to consider whether the family planning policies of the Chinese government impact adversely on the applicant child by preventing her household registration until the “social compensation fee” is paid.

    (b)The Refugee Review Tribunal failed to consider a claim made by the applicant, namely that the family planning policies of the Chinese government constituted discriminatory and persecutory conduct in relation to the applicant child’s claims.”

14. The Applicant submitted that the Tribunal did not make a clear finding on the particular social group issue, in that, the finding was ambiguous.

15. The Applicant submitted that the Tribunal did not address or consider if the harm feared amounted to persecution under s.91R and whether the fear was well founded. The Tribunal’s conclusion was based on the misunderstanding of discriminatory conduct and as a result the Tribunal did not address the questions required to be answered.

16. Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met.

17. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.

18. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

    “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

19. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

20. The Applicant submitted that it is the duty of the Tribunal to determine whether the Applicant is entitled to protection and the Tribunal is under a duty to characterise the claims by the Applicant and then determine those claims.

21. The Applicant submitted that the Tribunal did not accurately set out the matters referred to in s.91R(1) nor its relationship to s.91R(2). The Applicant submitted the Tribunal did not apply s.91R(1) in its findings and only applied s.91R(2). The Applicant contended that, in order to apply s.91R(1), the Tribunal must consider if the claims of the child cumulatively amount to serious harm. In other words, it is the Tribunal’s duty to consider the totality of the case on the material before the Tribunal.

22. The Applicant referred to VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 (“VTAO”) and the harm identified by Merkel J at [63]:

    “deprivation of access to China’s free education and medical services;

    deprivation of ability to acquire public sector employment in adulthood;

    denial of official registration with its consequential ramifications; and

    imposition of a significant financial penalty on the applicant parents in order to remove or mitigate the above forms of harm.”

23. The Applicant submitted that the Tribunal had a duty to consider all of the various matters identified at [63] and whether the Applicant child’s fear of that conduct is well founded and amounts to serious harm.

24. The Applicant submitted that if the Tribunal had applied s.91R(1)(b) rather then s.91R(2), then the Tribunal would have had to consider if the conduct, claimed to be persecution, involved serious harm to the Applicant and, pursuant to s.91R(c), if the persecution involved systematic and discriminatory conduct.

25. The First Respondent submitted that Merkel J, in VTAO, held that the Tribunal had erred in holding that the definition in s.91R was exhaustive. The First Respondent submitted that the Tribunal, in the case before this Court, did not fall into such error and that there is no basis to suggest that the Tribunal was not aware that s.91R(2) was not exhaustive in seeking to provide instances of serious harm for the purposes of s.91R(1)(b).

    Ground 1(a), that the Tribunal failed to consider whether the family planning policies of the Chinese government impact adversely on the Applicant child by preventing her household registration until the social compensation fee is paid.

26. The Tribunal specifically considered the issue in its decision as follows:

    “In the event that the applicant child’s parents do not pay the social compensation fee or fines imposed and the applicant child lives in China an unregistered child, I am not satisfied that the applicant child will be denies access to basic services such as education and health care because these are available to all as fee paying services.”

27. The Tribunal found, that whilst the financial burden to pay the compensation fee may be onerous, it was not satisfied that such a burden constituted serious harm amounting to persecution in the sense explained in s.91R(2) of the Act. The Applicant contends that this finding is indicative of the Tribunal having confined its consideration of serious harm to those matters only referred to in s.91R(2).

28. The Tribunal considered whether the Applicant child if she were to return to the PRC, would suffer serious harm such as significant financial hardship or denial of basic services or denial of capacity to earn a living. It concluded, on the material before it including DFAT material, that it was satisfied that the Applicant’s status as an unregistered child, even if it was to continue into the future, would not involve systematic or discriminatory conduct as required by s.91R(1)(c) of the Act.

29. In reviewing the reasons of the Tribunal, the Court is to give a beneficial, commonsense and realistic construction to the reasons. Looseness of language ought to be overlooked on the basis that the reasons of an administrative decision maker are meant to inform and not be scrutinized by overzealous judicial review with an eye keenly attuned to error (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at [46–47], particularly at [47])

30. In context, a fair reading of the Tribunal’s reasons are that it was using s.91R(2) as a reference point in considering and evaluating the harm claimed by the Applicant and not seeking to confine its consideration of serious harm only to those matters referred to in s. 91R(2).

31. The Tribunal considered the claim and made its findings on the material before it. Those findings were open to it. Those findings are findings of fact.

32. Accordingly this Court has no jurisdiction to interfere and this ground is rejected.

    Ground 1(b), that the Tribunal failed to consider a claim made by the Applicant that the family planning policies of the Applicant constituted discriminatory and persecutory conduct in relation to the Applicant’s claims.

33. This ground was expanded upon by the Applicant, in oral submissions before this Court by his legal representative, to include a contention that the Tribunal did not make a clear finding that the Applicant is not a member of a particular social group. The Applicant referred to Chen Shi Hai v Minister for Immigration and Multicultural and Indigenous Affairs [2000] HCA 1, as applied in Applicant S v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 25, and submitted that the Tribunal did not make clear and conclusive findings on whether black children were capable of being members of a particular social group thereby constructively failing to exercise its consideration of s.91R.

34. The First Respondent submitted that the Tribunal accepted, in the Applicant’s favour, that there was a Convention nexus in that the Applicant child may be a member of a particular social group, however was not satisfied that the harm that the Applicant child may suffer as a member of that group was sufficiently serious as to amount to persecution. For those reasons, the First Respondent submitted that it was not necessary to determine whether the persecution involved systematic and discriminatory conduct in light if that finding.

35. The Tribunal made a specific finding in the following terms:

    “In any event for the reasons which follow, I am not satisfied that the applicant child faces a real chance of suffering harm amounting to persecution for reason of her membership of a particular social group.”

36. In making that finding, the Tribunal had regard to independent country information and expressed the view that “out of plan children”, or “black children” do not face serious harm amounting to persecution. The Tribunal had particular regard to the status of black children as unregistered children and noted that it is not an unchangeable status and can be remedied by the payment of a social compensation fee. Further, even in the case of the children who are never registered, the Tribunal observed that the independent country information indicated that those children can access a range of fee paying services that are in some cases no different to those used by fee paying children. The Tribunal further noted that the independent country information indicated that there are many children raised in China without household registration for one reason or another.

37. The Tribunal found that family planning regulations in the PRC are not discriminatory and are applied equally to all Chinese and have been imposed with the legitimate purpose of slowing the population growth of “the most populous country on earth for sound ecological reasons.” The Tribunal found that the compensation fee or fine that is required is to ensure that the family who has out of plan children pays for the provision of extra state services needed to raise those children.

38. In recognising that the financial burden that may be imposed on such families, the Tribunal plainly considered whether or not that burden constituted serious harm and was satisfied that it did not.

39. The Tribunal, further, was not satisfied, on the evidence before it, that the Applicant’s father’s general concerns about his ability to support his children constituted persecution of the Applicant child for a Convention reason.

40. The Tribunal observed that the Applicant’s father did not specifically point to the scope of the social discrimination and ostracism he believed the Applicant child would face.

41. The Tribunal also considered the Applicant father’s claim that his previous work with COSCO would have a detrimental effect on the severity of penalties imposed, but noted that the Applicant father’s oral evidence did not support the contention. Accordingly, the Tribunal was not satisfied, on the evidence, that the Applicant father’s former employment with COSCO would have any impact on the severity of the penalties.

42. The Tribunal concluded that it was not satisfied that the Applicant child faces a real chance of serious harm amounting to persecution for reason of her membership of a particular social group in the reasonably foreseeable future. At the heart of the Tribunal’s decision was that any harm that the Applicant child may suffer as a result of being a member of a particular social group was not harm that amounted to serious harm capable of amounting to persecution in the circumstances.

43. Accordingly, this ground is rejected.

Conclusion

1. The Tribunal’s decision is not affected by jurisdictional error. Accordingly, it is a privative clause decision and, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

2. The applications before this Court in respect of each of the applicants are dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S Riddle

Date:  14 September 2005