SZFHO v Minister for Immigration
[2005] FMCA 1794
•7 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFHO v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1794 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – Application for review of RRT decision affirming decision of a delegate of the Minister not to grant a protection visa – Applicant a citizen of China – where Applicant is a child born in Australia – one child policy – consideration of the cumulative effect of two “excess” children – no reviewable error. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.474, 475A
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 followed
VTAO v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 332
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242
SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995
Eshetu v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 197 CLR 611
SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568
SZBQJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 143
| Applicant: | SZFHO |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File No: | SYG 3715 of 2004 |
| Delivered on: | 7 December 2005 |
| Delivered at: | Sydney |
| Hearing date: | 12 September 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Benjamin Zipser |
| Counsel for the Respondent: | Mr Timothy Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
Leave granted to join the Refugee Review Tribunal as Second Respondent
The Applicant’s father is appointed as his litigation guardian.
The Application is dismissed.
The parties are to pay their own costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3715 of 2004
| SZFHO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
This is an application for review of a decision of the Refugee Review Tribunal made on 11th November 2004 and handed down on 9th December 2004. The decision of the Tribunal was to affirm a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the Applicant a protection visa.
Background
The Applicant is a child who was born on 28th May 2002. His parents are both citizens of the People’s Republic of China. The Applicant’s father arrived in Australia on 28th December 1996 and the Applicant’s mother arrived in Australia on 7th January 1998. There are two other children of the marriage, a little girl who was born in Australia on 27th April 2000 and an older boy who was born in China in 1989. The parents and sister have previously applied unsuccessfully for protection visas.
The Applicant’s parents lodged an application for a protection visa on his behalf on 8th June 2004, which was refused on 1st July 2004. The parents sought a review of that decision on the Applicant’s behalf on 30th July 2004. The Applicant and his parents attended a hearing of the Refugee Review Tribunal on 20th October 2004, where the parents gave oral evidence.
The Applicant’s case is that he is the third child of his parents and will suffer cumulative discrimination amounting to persecution if he has to return to China, because he is a child born in excess of the People’s Republic of China Family Planning (One Child) Policy. The disadvantage it is claimed that he will suffer is greater because he is a third child, which makes him a “second excess child”. As a result, his parents will have to pay incrementally higher penalties than those that would have to be paid for a second child.
After considering a great deal of independent country information, the Tribunal considered the Applicant’s parents evidence. The Tribunal member put a number of propositions from the country evidence to the Applicant’s father.
The Tribunal’s Findings and Reasons
The Tribunal accepted that the Applicant would be regarded for the purposes of the Family Planning laws as a second excess child, and that this would make him a member of a particular social group for the purposes of the Refugees Convention (Court Book pp 112-3). The Tribunal also accepted that the cost of registering the Applicant child would be “steeper” than that of registering his sister, who is the parents’ first “excess child” (Court Book p. 113). Excess children are also known as “black” children in China.
The Tribunal did not accept that the application of what are called “social compensation fees” in exchange for registering excess children, or any other costs levied on parents of such children, could rightly be regarded as persecution of the children themselves, “either directly or through their parents” (CB 113). The costs are statutory and are evidently applied under laws of general application, intended to reduce the burden on limited state and social resources of larger families. The Tribunal did not accept that it amounted to persecution of a third child that the cost of registering him or her might be incrementally greater than the cost of registering a second child (CB 114).
The Tribunal also found from the evidence that:
(a) The evidence of the breakdown of the ‘One Child’ policy and the evidence of geographical and economic ways of getting around it, even if a family is not legally exempt, leads the Tribunal to the view that the Applicant would one way or another have access to basic human and social needs in the PRC including health care, education and employment.
(b) The applicant’s family being residents of Shanghai are from a place where the ‘One Child’ policy is far less strictly enforced than in some other parts of the PRC.
The Tribunal did not accept that:
a)The Applicant child would be unable to access health and education services if he remained unregistered.
b)The Applicant would suffer harm in the form of psychological harassment or ostracism by other children for reasons of his ‘black’ child status.
c)The Applicant would be denied employment later in life if he remained unregistered.
In summary, the Tribunal was not satisfied that the Applicant child faced a real chance of convention-related persecution in the People’s Republic.
The amended application
The Applicant, or his advisers, filed an Amended Application on
1st March 2005. The Amended Application seeks a writ of certiorari quashing the Refugee Review Tribunal decision and a writ of mandamus compelling the Tribunal to rehear and re-determine the matter according to law.
The grounds of the application are that the Tribunal fell into jurisdictional error in making the following findings:
a)While accepting that there would be additional costs imposed on the Applicant’s family as a result of the Applicant’s status as a “black” child, that those costs did not give rise to Convention-based persecution; and
b)That the Applicant would not face persecution if he remained unregistered in China.
The applicant’s submissions
The Applicant’s counsel, Mr Zipser, submitted that the Tribunal fell into jurisdictional error in making those findings for a number of reasons. First, a basis for the finding by the Tribunal that application of social compensation fees in exchange for registration of “excess children”, or any other costs levied on parents of excess children, could not be rightly regarded as persecution of the children,[1] was that the social compensation fees were applied under laws of general application. However, he submitted that just because a burden is imposed on an applicant under a law of general application does not mean that it does not constitute persecution.
[1] See at Court Book page 113.
He submitted that in VTAO v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 332, where the Refugee Review Tribunal had rejected the applicant’s claim of Convention-based persecution based on breach of China’s one child policy, Merkel J noted at [37]:
The RRT, in its reasons for rejecting the claims of the applicant child, also relied upon its view that the family planning laws were laws of general application, are not discriminatory, are applied equally to all Chinese citizens and are directed at a legitimate purpose.
His Honour then found that, primarily based on the High Court’s decision in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242, the Tribunal had fallen into jurisdictional error in making this finding (see at [37]-[41]. In his view, the Tribunal fell into jurisdictional error on the same basis.
Second, in relation to that finding, the Tribunal did not consider whether the cumulative effect of the social compensation fee for two children would constitute persecution. In this regard, there have been many decisions of the Federal Court that have emphasized that the Tribunal, in determining whether an applicant might suffer persecution on returning to his or her country of nationality, must consider the cumulative effect of all forms of harms which on the Tribunal’s findings of fact the applicant might suffer e.g. VTAO v Minister for Immigration & Multicultural & Indigenous Affairs (supra at [62]-[66]. There was country information that the Tribunal did not dispute that showed that the social compensation fees were very heavy and parents could lose their jobs.
By failing to consider the cumulative effect of the social compensation fee, the Tribunal fell into jurisdictional error, he submitted. He further submitted that the Tribunal did not consider whether, in the case that there were two excess children in a family, whether the children would be able to access health and education services. That was also a jurisdictional error.
Finally, in relation to the Tribunal’s finding that, even if the Applicant were to remain unregistered, he would be able to access health and education services[2], Mr Zipser submitted that the basis for the finding was that Shanghai was a place where the one child policy was far less strictly enforced than in some other parts of China.[3] He submitted that the relevant country information, set out at pages 104 to 106 of the Court Book, did not support the Tribunal’s finding. Where the Tribunal makes an important finding without evidence to support it, the Tribunal falls into jurisdictional error. (See SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995 at [45]-[70]).
[2] See Court Book page 114
[3] See Court Book page 114
The respondent’s submissions
For the Respondent Minister, Mr Reilly of counsel submitted that whether conduct is sufficiently serious to constitute persecution is an issue of fact and degree for the Tribunal alone. (See Prahastono v Minister for Immigration & Multicultural Affairs (1997) 77 FCR 260 at 269, 271; Minister for Immigration v Kord (2002) 125 FCR 68; Minister for Immigration & Multicultural Affairs v SZANS [2005] FCAFC 41 at [50]-[53] and others).
In response to the Applicant’s first claim that the Tribunal erred in finding that the additional costs imposed on the Applicant’s family did not amount to persecution, Mr Reilly agreed that a burden imposed by a law of general application can still constitute persecution. He sought to distinguish the decision in VTAO v MIMIA (supra) because Merkel J at [37] was addressing the apparent belief that the existence of penalties under laws of general application precluded those suffering those penalties from being members of a particular social group (at [34]). In this case, he submitted, the Tribunal had accepted that the Applicant is a member of a particular social group.
He took issue with the claim that the Tribunal did not consider the cumulative effect of the social compensation fee. The Tribunal had accepted that the Applicant was his parents’ third child[4] and accepted a claim that his social compensation fee would be higher as a result.[5] The Tribunal specifically found that it was no persecutory of the Applicant that the cost of registering him might be greater than the cost of registering a second child.[6] This is a factual matter for the Tribunal.
[4] See Court Book page 109
[5] See Court Book pages 112 and 113.
[6] See Court Book page 114.
Finally, the submission that the Tribunal’s finding was wrong and unsupported by country information could not be sustained because it is trite law that a wrong finding of fact is not a jurisdictional error. The passages in SZAPC v MIMIA (supra) concerned whether a wrong factual finding may contribute to the decision being held unreasonable in the sense discussed in Eshetu v Minister for Immigration & Multicultural & Indigenous Affairs (1999) 197 CLR 611 at [45] as not being based on probative material or logical grounds. Illogicality is not a basis to find jurisdictional error.
Conclusions
I am satisfied that whether or not conduct constitutes persecution is a matter of fact and degree. It is a matter for the Tribunal. The plight of excess or “black” children has been considered in a number of decisions, and it has been held that they constitute a particular social group for the purposes of the Convention: SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568. In the case before me, the Tribunal did not accept that the applicant would be unable to access health and education services if he remained unregistered. The Tribunal found that access to public health and educational services required payment of fees and this form of harm was not sufficiently serious to amount to persecution (see also SZBQJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 143).
It is clear that the Tribunal did recognise in its Findings and Reasons that the Applicant is a second excess child:
The Tribunal accepts that the Applicant would be regarded in the PRC, for the purposes of its Family Planning laws, an excess child and a second excess child, at that.[7]
[7] See Court Book page 112.
The Tribunal noted that the Applicant’s parents had asked the Tribunal to take into account that the social compensation fee for the Applicant would be steeper than for his sister[8] and accepted that fact in the Findings and Reasons:
The Tribunal accepts that the cost of registering the Applicant will be steeper than that of registering his sister. The Tribunal accepts that this would mean a potentially great financial burden on his parents, depending on where they live, but the Tribunal; does not accept that this burden would be aimed at persecuting the Applicant or would have even the indirect effect of persecuting him.[9]
[8] See Court Book page 112
[9] See Court Book page 113.
In short, I am not satisfied that any jurisdictional error is revealed in the Tribunal’s decision. There is no reviewable error. The decision is a privative clause decision within s.474 of the Migration Act.
The Application will be dismissed. As the Applicant is a child, I believe that the parties can pay their own costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: Virginia Lee
Date: 2 December 2005
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