FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZJTQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1188 |
| MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in its consideration of country information – whether Tribunal failed to determine whether the applicants face a real chance of persecution or to consider whether discriminatory treatment amounted to persecution – whether Tribunal made finding contrary to country information or whether failed to deal with a claim. |
| Migration Act 1958 (Cth), ss.91R, 424A |
| Applicants: | SZJTQ, SZJTR, SZJTS |
| First Respondent: | MINISTERFOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3516 of 2006 |
| Judgment of: | Barnes FM |
| Hearing dates: | 13 February 2008 & 5 June 2008 |
| Date of Last Submission: | 12 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 28 August 2008 |
REPRESENTATION
| Counsel for the Applicants: | Mr B Zipser |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3516 of 2006
| SZJTQ, SZJTR, SZJTS |
Applicants
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for review of a decision of the Refugee Review Tribunal handed down on 9 November 2006 affirming decisions of delegates of the first respondent not to grant the applicants protection visas. This matter has a somewhat complicated background as each of the applicants made separate applications for protection visas, Tribunal review and then judicial review and in each case Tribunal decisions were set aside and the matters remitted to the Tribunal for reconsideration. The Tribunal decision in issue in these proceedings relates to each of the applications for protection visas.
The first applicant (the “father”) arrived in Australia in August 2002. The second applicant (the “mother”) had arrived in Australia in December 2000. The third applicant, their son (the “child”), was born in Australia in May 2001. The mother made an application for a protection visa in January 2001. The application was refused and she sought review by the Tribunal. She provided a statutory declaration to the Tribunal in which she made a number of claims, including that the name under which she had first sought protection was not her real name. She attended a Tribunal hearing in March 2002. The Tribunal as originally constituted affirmed the delegate’s decision not the grant the applicant mother a protection visa. She unsuccessfully sought judicial review in this Court. On appeal Stone J in the Federal Court set aside the Tribunal decision by consent on 28 March 2006 and remitted the matter to the Tribunal for reconsideration according to law.
Meanwhile, in May 2001 the applicant child was born in Australia. In March 2002 an application for a protection visa in the name of the child was lodged. That application was refused and the applicant child sought review by the Tribunal. In mid-2003 the father and mother attended a hearing before the Tribunal on behalf of the child. It appears that the hearing was also in relation to the application of the applicant father, as discussed below.
In April 2004 the Tribunal affirmed the delegate’s decision not to grant the applicant child a protection visa. The child sought judicial review in this Court. The Tribunal decision was set aside by consent by Driver FM on 1 June 2006 and the matter remitted to the Tribunal for reconsideration.
The applicant father arrived in Australia in August 2002 and applied for a protection visa in September 2002. He included his wife and son in the application as members of his family. That application was refused by a delegate of the first respondent on 28 November 2002. The applicant father sought review by the Tribunal. He attended a hearing in July 2003. In May 2004 the Tribunal affirmed the delegate’s decision not to grant the father a protection visa. He sought judicial review. In June 2006 the Tribunal decision was set aside by consent and the matter remitted for reconsideration.
In June/July 2006 the Tribunal as reconstituted invited each of the applicants to a hearing. The hearing in relation to the applicant mother initially commenced on 10 July 2006 but was adjourned to be held in conjunction with the hearing for the other two applicants when the Tribunal became aware of the relationship between the claims in the three separate applications. The father and mother gave evidence at a joint Tribunal hearing on 31 July 2006.
On 10 August 2006 the Tribunal wrote to each of the applicants under s.424A of the Migration Act 1958 (Cth). A response was received on 4 September 2006. By decision handed down on 9 November 2006 the Tribunal affirmed each of the delegates’ decisions not to grant the applicants protection visas.
The Tribunal decision
The Tribunal decision is, not surprisingly in light of the history of the matter and the fact that there were three separate applications, of some length. It addresses claims made in relation to each applicant both individually and collectively.
In essence, as ultimately presented to the Tribunal, the applicant father and mother claimed that they feared persecution in China for breaching China’s one child policy and for reason of their religion as Christians. The applicant child claimed to fear persecution in China for reason of his membership of a particular social group of “black children”.
Claims based on religion
The Tribunal set out the individual claims in detail. It found that the applicant father’s claims in his application and in the Tribunal hearings, to have come from a Christian family and to have seen his father persecuted were vague and general and that he did not reveal any knowledge of the underground church in China or “any real knowledge” of the Christian faith and Christianity. It outlined specific concerns and matters that it had put to him. The Tribunal was not able to satisfy itself that the applicant father was Christian in China or was brought up as a Christian in China. It did not accept that the applicant’s father had been persecuted in China due to involvement in the underground church, that he had received harsh and cruel treatment from the police, that he was beaten and humiliated on several occasions or that the authorities did not allow him to practise Christianity freely.
While the Tribunal accepted that the applicant father had attended a Christian church in Australia on a regular basis, as evidenced by a letter of support, it was satisfied on the evidence before it that the purpose of such attendance was to enhance his claim for a protection visa. It therefore disregarded this conduct under s.91R(3) of the Migration Act. It was satisfied that the applicant father did not have a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis. The Tribunal was satisfied that he had manufactured or embellished his claims in order to enhance his claim for a protection visa. The Tribunal found that he was not a credible witness.
The Tribunal accepted the applicant mother’s evidence at the hearing that she was a Christian in China. However it also accepted that she did not claim to be a leader of the underground church. On the basis of independent country information in relation to the situation of Christians who were members of an underground Christian church in China the Tribunal found that the applicant mother did not have a well-founded fear of harm for this reason or for reason of her father’s membership of the underground church in China. The Tribunal did not accept that the applicant mother’s religious activity, freedom of thought and expression would be limited in China as claimed or that she had a well-founded fear of persecution for Convention reason on this basis.
In light of inconsistencies it did not accept an earlier claim that the mother had been forced to do reform through labour because of involvement in the pro-democracy movement or that she had any involvement in the pro-democracy movement. It found that this went to the matter of her credibility and that she was not a credible witness. Nor did it accept her claim that she had a well-founded fear of persecution because when she was a child the authorities sent her uncle as a soldier or service worker to Taiwan or because another uncle was criticised or her father demoted from being a teacher to being a cook.
As the grounds in the further amended application relied on in these proceedings do not take issue with these aspects of the Tribunal decision it is not necessary for present purposes to describe the detailed reasoning of the Tribunal in relation to such claims.
Claims based on one child policy and number of children
Issue was taken in these proceedings with the Tribunal findings in relation to claims made about the one child policy in China.
The applicant father claimed that he feared he would be sterilised as the mother (his wife) had had four children (including three in China) and had breached the one child policy. In the absence of country information to support the claim that at the time of the decision men were forcibly sterilised in pursuit of the one child policy in China, the Tribunal was not satisfied that there was a real chance that the applicant father would be sterilised because he claimed his wife had breached the one child policy. It did not accept that claim.
In relation to the applicant father’s claimed fear of the Chinese authorities based on past events in China, including the claimed breach of the one child policy, the Tribunal had regard to the fact that he left China on his own passport and had not claimed to have had any difficulties departing whatsoever, notwithstanding country information to the effect that persons who left China had been thoroughly vetted by the security authorities. It addressed the relevance of this information in relation to the issue of whether or not the father was of any interest to the PRC authorities for any reason, including involvement in the underground church or because he was the applicant father of a “black child” whose wife had breached the one child policy in China.
The Tribunal addressed contradictory evidence in relation to when the applicant father married. It found that his claim that he was not married at the time that he obtained his passport (and hence not of interest to the authorities) did not address the fact that his passport was renewed in 1999 in China after he was married and after the claimed birth of a third child. It was not satisfied that the applicant father had a well-founded fear of harm amounting to persecution for a Convention reason on the basis of his claims about events in China or that there was a real chance he would be persecuted for a Convention-related reason if he returned to China now or in the reasonably foreseeable future. The Tribunal found that the applicant father had embellished his claims and that he was not a credible witness.
The Tribunal addressed the individual claims made by the applicant mother. It set out her initial claims which had been made in another name. It observed that the question of the applicant mother’s actual identity, personal relationships and family composition as well as her credibility had been the focus of considerable attention before the Tribunal as originally constituted and as reconstituted. It had regard to changes in the applicant mother’s evidence in relation to her name, family composition and other aspects of her claims and her explanations for such changes, including her admission that she had not used her real name in her protection visa application. It described concerns put to her about such claims, including the fact that if she was in fact the person named in the protection visa application (Ms “C”), her Australian driver’s licence and her son’s birth certificate then she may not have had the children claimed in the protection visa application, as the evidence she had subsequently provided about children in China was in names other than the name C and so did not relate to those claims and on that basis she may not be of interest to the Chinese authorities.
However the Tribunal considered the applicant mother’s subsequent claims that she was in fact a different person (Mrs S). It referred to a number of apparently contradictory documents she had provided that indicated that she had lied to the Australian government and other authorities about her identity when she applied for a visa to enter Australia, when she lodged her protection visa application, when she applied for a birth certificate in Australia for the son who was born here and when she applied for a provisional driver’s licence. In all these situations she had claimed she was Ms C. The Tribunal recorded that it had put to the applicant mother that this may indicate that she continued to purport to be Ms C the person named in the original protection visa application and therefore that she was not a credible witness.
The Tribunal had also put to the applicant mother that this may indicate that she had changed her name for the purpose of matching a (very similar) named Mrs S on 1998 documents that she provided, which stated that a Mrs S had been fined for having a child outside the one child policy and relating to contraception. It observed that on this basis it would follow that she did not have three daughters in China as she later claimed and may not have breached the one child policy in China as she claimed.
The Tribunal addressed the applicant mother’s response to this information, including her claim that she had initially lied out of fear and had subsequently relied on what she was told by an agent.
The Tribunal did not accept that the applicant mother would have continued to perpetrate a deception about her identity in Australian identity documents in breach of Australian regulations, in a country where she was not subject to persecution unless this was her actual identity. It found it “highly likely” that she was the person named in the protection visa application and that she had not had three daughters in China or breached the one child policy, but had changed her name and date of birth to accord with that of a similarly-named person referred to in the 1998 documents.
However while the Tribunal found that the applicant mother’s repeated lies were “so serious and of such a scale that it would be entirely reasonable to conclude that those letters have been manufactured solely for the purpose of supporting her claim”, based on supporting letters from her nephew and another it was willing to give her “the extreme benefit of the doubt and accept that she is in fact [Mrs S]”.
The Tribunal accepted the mother’s claim that she travelled to Australia on a passport in the name of Ms C, having paid a person from her church for this passport which already contained an Australian visa. However the Tribunal was satisfied that the applicant mother did not obtain a passport in the name of Ms C in order to be able to leave China without being detected by the authorities. Rather it found that “her motivation was to get this passport because it already contained an Australian visa and her objective was simply to … enter Australia and to circumvent Australia’s immigration procedures”. It found that this was not a Convention-related reason.
As the Tribunal accepted that the applicant mother was able to leave legally using this passport, it was satisfied on the basis of country information that she would be able to return to China and live there without being of any interest to the authorities in China for any reason whatsoever. It did not accept her unsupported claim that the passport in question was not valid for return to China or that she had been “blacklisted”. This was found to go to the matter of her credibility. The Tribunal again found that she was not a credible witness.
After considering the applicant mother’s claims in relation to Christianity and other matters, as discussed above, the Tribunal then addressed the substance of the claims made by the applicant parents and the applicant child that they would be subject to serious harm because the applicant mother had breached the one child policy in China and because the child was a “black child”.
The Tribunal referred to the fact that there had been considerable variation (which it described) in the names, dates of births and even the number of children the parents had claimed to have in successive submissions and at hearings. It set out details of the claims made in the applicant father’s protection visa application of 10 September 2002 which both parents signed and in which they claimed to have two named children in China, born in 1996 and 1998. It contrasted this with the claim made in the applicant mother’s earlier protection visa application of 19 January 2001 that she had three daughters, one born in 1996, one in 1997 (yet with the same name as the child referred to in the father’s application as born in 1998) and another child born in 1998. In her statutory declaration of 25 March 2002 she had again claimed to have three daughters, but the one said to be born in 1997 had a slightly different name to the name given in her protection visa application. In 2003 the father claimed that he and his wife had been fined for having their second and third children and that the third child had gone missing after being registered and was presumed to have been “done away with” by the authorities. At the hearing on 31 July 2006 both the applicant father and mother gave names of three daughters born in China. The names were not precisely the same as any of the names previously given. Nor were they exactly the same as the names of the claimed three siblings on the birth certificate for the applicant child born in Australia.
The Tribunal referred to the fact that it had put to the applicants that the variations in the names and dates of birth of the children drew into question whether they had had three children in China. The Tribunal observed that there was particular uncertainty about the claimed second child, who was shown as having three different names and two different dates of birth. The Tribunal had regard to the applicants’ response of 4 September 2006 and the applicant mother’s claim about mistakes in translation and her poor “Ping Ying”. The Tribunal referred to the letter from her nephews indicating that they did not know the third child claimed to have been born in China. It found that in view of the claims and evidence of the applicants and its earlier findings about the repeated lies the applicant mother had made in her protection visa application and since her arrival in Australia, it “has not been able to satisfy itself that the first and second named Applicants have had three daughters in China or that they have been subjected to serious harm amounting to persecution for having had a second child in China”.
The Tribunal was satisfied that if the applicant father and mother had had three children in China they would have claimed this from the outset and would have continued to consistently make this claim, including listing the children with the correct names and dates of birth. It did not accept that they had not been able to do so because of mistakes in translation, the applicant wife’s poor “Ping Ying”, because it was easy to make a mistake in English or for any other reason. The Tribunal did not accept the applicant mother’s claim that she was gaoled for the birth of her third child or that she would be arrested on return to China because of this or for any other Convention-related reason.
Nor did the Tribunal accept that the applicant mother or father, having been absent from their village for extensive periods of time, would have a well-founded fear of serious harm amounting to persecution for a Convention reason just because the village committee had invited them to a medical examination on 30 December 2005.
Claims based on applicant child being a “black child”
The Tribunal accepted that the applicant child was born in Australia without the approval of the Chinese authorities. Notwithstanding the applicants’ claims to the contrary, the Tribunal was satisfied that the applicant child would have Chinese nationality and would be able to successfully apply for a PRC passport and hence he was not stateless.
The Tribunal considered whether any or all of the applicants had a well-founded fear of serious harm amounting to persecution for a Convention reason because the applicant mother had breached the one child policy and/or whether the applicant child was at risk of serious harm amounting to persecution for a Convention reason because he was a member of a particular social group called “black children”.
It described the parents’ claim that the child was a “black child” in China and that they had previously had three children so that all three applicants would suffer systematic discrimination and mistreatment if they returned to China. They claimed that because of the birth of the applicant child in Australia without approval he was a “black child” and that they would be harshly penalised, fined and, that among other things, he would be denied registration, schooling and social services.
The Tribunal accepted independent country information which it had put to the applicants that the status of a “black child” could be removed if the father paid a social compensation fee which would allow the child’s registration. The Tribunal also accepted country information that all registered children were entitled to access to health and educational facilities, although the first child was given preference. It continued:
Given all the above, and notwithstanding the claims made by the Applicants, the Tribunal is satisfied that, like the general population in China, while they may face financial consequences of having more than one child, including as a result of non-compliance with the Population and Family Planning Law of China, this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis. Further, the Tribunal is satisfied that it may not be unreasonable for them to take steps to pay the social compensation fee which may be imposed in relation to their Australian born son and indeed any other children they may have had in breach of government policy. While it may be that they may not be able to afford to do so immediately, general independent information accepted by the Tribunal suggests that postponement of the fee and the payment of it in instalments are possible (for example see DFAT Report 404 ‘RRT Information Request: CHN17471’, 6 September 2005, \\ntssyd\refer\researchdfat \chn17471.dfr.doc in regard to the Shandong Province Family Planning Regulations) and the Tribunal is satisfied that the chance that you would face mistreatment so serious and systematic to amount to persecution within the meaning of section 91R(1)of the Act is remote. The Tribunal also accepts other country information put to the Applicants in its letter of 10 August 2006 including DFAT’s advice (CX46100) that ‘Families with more than one child (for whatever reason) are common in China. The objective of all the policies and regulations is to deter, to the extent possible, a high birthrate. Once births have occurred, our impression is that pragmatism would take precedence.’ Both the frequency of having two or more children and the shift away from the one child policy is widely known and is supported in other general independent country information (for example, the National Population and Family Planning Commission estimated the fertility rate is 1.8 births per woman in China, indicating that the majority of women in China are having 2 or more children (China Through the Lens dated 23 April 2004 and accessed on 20 April 2005)). The Tribunal also accepts independent information shows that there is a considerable relaxation of the one child policy in Fujian Province and almost one third of families in the four countries have three children or more children.
Notwithstanding claims of the applicant father about the operation of the population and birth control regulations in Fujian Province and other claims and explanations by the applicant mother, the Tribunal “accordingly” was satisfied that “any claimed difficulties that the first, second, or third named Applicants may have because the second named Applicant has previously breached the one child policy (they claim on two previous occasions but the Tribunal accepts that they have only done this once) and the out-of-plan birth of the third named Applicant in Australia his parents had breached the one child policy in China is not a well-founded fear of persecution would not be serious harm amounting to persecution for a Convention reason on this basis” (sic).
The Tribunal also found that it followed from the country information it referred to that it did not accept that there was a real chance that the applicant child would be subjected to serious harm amounting to persecution for this or any other reason, including because he belonged to a particular social group of “black child” or “black children” that if he went to China he would not be able to be registered, that he would be denied access to a national identity card and hence to a wide range of government or other jobs or that he would be denied basic human rights, social services, access to free education and medical and other services sufficient to constitute serious harm amounting to persecution for a Convention reason. Moreover the Tribunal did not accept the claim that the applicant child could be taken away by the Chinese authorities as penalty for his unlawful birth as was said to have happened to an older sibling.
Having considered all the claims made by the applicants both individually and collectively the Tribunal was satisfied that there was not a real chance the applicants would be subjected to serious harm amounting to persecution for a Convention-related reason if they returned to China either now or in the reasonably foreseeable future. It found that they were not refugees and affirmed the decisions of the delegates of the first respondent not to grant them protection visas.
These proceedings
The applicants sought review by application filed in this Court on 28 November 2006. They filed an amended application on 29 March 2007. The matter was first listed for hearing on 13 February 2008 at which time the applicant father appeared both for himself and his wife and as litigation guardian for his child. In light of issues raised by the applicant father in relation to the conduct of the Tribunal hearing (or hearings) the applicants were given the opportunity to file further affidavit evidence, including any transcript of a Tribunal hearing on which they wished to rely. Thereafter the applicants obtained legal representation. At the adjourned hearing Mr Zipser, who appeared for the applicants, sought and was granted leave to rely on a further amended application filed on 11 July 2008.
Mr Zipser clarified that grounds three and four in the further amended application were not pressed and that the only grounds of review relied on by the applicants were grounds one and two in the further amended application. Ground one is that the Tribunal fell into jurisdictional error in finding that the applicants did not face a real chance of persecution as a result of their breach of the one child policy in China (“one child policy issue”). In written submissions the applicant identified four bases for ground one. Ground two is that the applicant father claimed that he “would keep on having children and thus continually run foul of the one-child policy” in China but that the Tribunal did not properly deal with this claim, giving rise to jurisdictional error. (“Failure to deal with claim issue”). The applicants rely on a tendered bundle of documents containing country information referred to in the Tribunal decision concerning the one child policy. The bundle includes the full text of some documents and extracts from others.
I note that while the applicants filed transcripts of the hearings of the Tribunal on 10 July 2006 and 31 July 2006, no reliance is now placed on such transcripts in relation to the grounds in the further amended application. Nor did the applicants pursue the grounds that had been relied on in the earlier amended application prepared at a time when they did not have legal representation. Hence there are now two issues before the Court.
One child policy issue
The first ground in the further amended application is that: “The Tribunal fell into jurisdictional error in finding that the applicants did not face a real chance of persecution as a result of their breach of the one child policy in China”.
This generally expressed claim is not particularised in the further amended application but was elaborated on in written and oral submissions by counsel for the applicants.
Use of country information
The first aspect of this ground relates to the fact that the Tribunal accepted that “independent information shows that there is a considerable relaxation of the one child policy in Fujian Province”, the province in which the applicant parents claimed to have lived. It was submitted that country information before the Tribunal indicated that the application and enforcement of the one child policy varied from province to province in China and contended that the Tribunal erred in the manner in which it relied on country information to support its conclusion.
It was initially submitted that there was no country information referred to in the Tribunal decision to the effect that there was a considerable relaxation of the one child policy in Fujian Province. However Mr Zipser acknowledged in the hearing that, as pointed out by counsel for the first respondent, such information (which was put to the applicants in the Tribunal’s s.424A letter) appeared to derive from a 2002 UK Home Office Country Report on China cited by the delegate of the first respondent in the decision of 28 November 2002 in relation to the applicant father. Hence the authorities cited in written submissions in support of the proposition that there is a jurisdictional error where a Tribunal makes findings which are inconsistent with any evidence before it (SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 and SZAPC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 995) are not applicable.
It was then contended that while there was information consistent with the Tribunal’s findings, because there was also more recent country information cited by the Tribunal to the contrary the Tribunal’s obligation was to make a decision on the basis of the current country information, that is, the most current information that was reasonably available. The applicant submitted that the country information cited in the decision that was inconsistent with the Tribunal finding about the situation in Fujian Province was as follows: The UK Home Office: Country Report on China April 2005 at 6.341 and 6.351 – 6.353; the US Department of State, Country Report on Human Rights Practices, 2004 which stated that only listed provinces including Fujian Province “still required birth permits” and that an additional ten provinces including Fujian required unspecified remedial measures to deal with out of plan pregnancies; DFAT report 404 dated 6 September 2005 which stated “The Shandong Family Planning Commission informed us that it strictly enforces family planning regulations in Shandong … This information accords with information we provided in 2004 regarding family planning regulations in Fujian province”; and Greenhalgh and Winkler, Chinese State Birth Planning in the 1990s and Beyond, September 2001 at pages 136 – 140.
In particular it was submitted that the 2005 UK Home Office Country Report considered the situation in Fujian but made no reference to what the delegate had described as the situation according to the April 2002 Report. It was suggested that there were two reports from the one source containing information which was either expressly or implicitly contradictory.
Mr Zipser contended that there had been a failure by the Tribunal to have regard to evidence before it, in that the Tribunal had not had regard to the more recent implicitly contradictory information. In the alternative it was submitted that part of the Tribunal’s obligation to make a decision as to whether a person had a well-founded fear of persecution was to base its decision on recent country information reasonably available to it at the time of the decision, so that its failure to do so was a failure to carry out or to perform its statutory obligation.
Mr Reilly for the first respondent submitted that there was no general principle that the Tribunal must prefer more recent country information (see VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 at [41] and VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29) but that in any event read in context the more recent information in issue could not fairly be said to contradict the earlier information, so that the issue did not arise. Moreover, it was contended that the Tribunal had had regard to the later information, which was referred to in its findings and reasons.
In its findings and reasons, after discussing various items of independent country information the Tribunal stated, without reference to the source of the information, that it “accepts independent information shows that there is a considerable relaxation of the one child policy in Fujian Province and almost one third of the families in the four counties have three children or more children”.
Such finding is consistent with the reference to the 2002 UK Home Office Country Report in the delegate’s decision in relation to the father’s application, to the effect that Fujian Province was lax in implementing birth control policies, that enforcement was less effective than elsewhere and that enforcement of sanctions had proved ineffective, with one third of families having three children or more. The 2002 report also stated that although fines to offset the social costs of extra “out of plan” children were high, extracting such fines from villagers was difficult.
As the applicant appeared to concede, it cannot be said that the Tribunal made findings in circumstances where the findings were inconsistent with any evidence before it (cf SFGB v Minister for Immigration and Multicultural Affairs (2003) 77 ALD 402 and SZAPC). Moreover, as the Full Court of the Federal Court stated in NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]: “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”. Indeed, their Honours pointed out that it is not a jurisdictional error for the Tribunal to base a decision on country information that is not true. The question of the accuracy of country information is one for the Tribunal and not for the Court. As in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1142 it was “factually relevant” to the Tribunal’s concerns about the applicant’s contentions about the impact of the one child policy to consider country information and it was “legitimate to endeavour to relate generalisations about the treatment” of persons who may be seen to have offended that policy to the position or likely position of the applicants (Gleeson CJ in NABD at [8]).
In this case there was country information consistent with the findings made by the Tribunal, in the form of the 2002 UK Home Office Country Report on China. As a matter of general principle: “even if it could be said that there was other information available to the Tribunal which was contrary to that relied on by it, it was a matter for the Tribunal to decide what weight should be given to particular items of country information as part of its fact-finding function” (NBKT v Minister for Immigration and Multicultural Affairs and Another (2006) 156 FCR 419 at [81] per Young J with whom Gyles and Stone JJ agreed).
No authority was cited for the applicants in support of the proposition that the Tribunal was under an obligation to make its decision on the basis of the most recent country information reasonably available to it. To the contrary, in VAO v Minister for Immigration & Multicultural Affairs [2002] FCAFC 31 in circumstances where the Tribunal had relied on particular country information notwithstanding the provision of more recent material by the appellant, the Full Court of the Federal Court observed that there was no obligation on the Tribunal to seek out or act upon more recent information (at [25]). In VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 the Full Court of the Federal Court referred with approval to what was stated in VAO reiterating that the choice of country information was a matter for the Tribunal, which was not required by law to accept more recent information even if it had been supplied to it (at [41]).
In VWFW v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 29 the appellant had contended that the Tribunal had “selectively ignored” the most recent and accurate country information and relied instead on earlier material before it that was less favourable to the appellant. The appellant recognised that the appeal could not succeed if the only complaint was as to the weight which the Tribunal had given to various items of country information (see QAAT v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 149 FCR 299 and NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10) and that jurisdictional error could not be established by showing that the Tribunal preferred particular country information to other country information (see VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 104). Similarly in this case even if it could be said that the Tribunal had preferred particular country information cited to other country information no jurisdictional error would be established on this basis.
In any event, it has not been established that the later information was necessarily inconsistent with the 2002 Report. In considering whether the subsequent country information is inconsistent with such findings it is relevant to have regard to the context in which such information was being considered by the Tribunal, that is in relation to the possible return to China of the applicant parents and child on the basis that the birth of the child in Australia breached the one child policy and also having regard to the fact that the applicant mother claimed to have previously breached the one child policy on at least one occasion by the birth of her second child in China (given that the Tribunal did not accept their claims about the birth of a third child in China).
Counsel for the applicants tendered a bundle of documents consisting of extracts from country information relied on by the Tribunal. It includes extracts from the 2005 UK Home Office China Country Report which set out the Fujian regulations in force from September 2002 (at 6.351 – 6.353) in relation to when returned overseas Chinese “may give birth to a second child”. It also referred (at 6.341) to the fact that the 2004 US State Department Report noted that a number of provinces including Fujian Province required unspecified “remedial” measures to deal with out-of-plan pregnancies.
In its reasons for decision the Tribunal set out other parts of that report not reproduced in the tendered material relating to returning to China after having children abroad, which made the point (at 6.262) that actual implementation of China’s population control policy varied considerably throughout the country and that “some people in southern Fujian and Guangdong Provinces had reported no problems in returning after having children abroad” and described the manner in which “black children” could obtain registration.
Relevantly, in its findings and reasons the Tribunal accepted the information in the 2005 UK Report and other reports that the status of a “black child” could be removed on payment of a social compensation fee which would allow registration of the child.
The material about the content of the Fujian regulations and measures specified in provincial regulations in relation to pregnancies in the 2005 UK Report is not necessarily inconsistent with the conclusion the Tribunal reached (consistent with both the 2002 and 2005 reports) as to relaxation of the one child policy in practice in Fujian Province (or with the 2002 information that almost one third of families in the four counties had three or more children or with the information about payment of social compensation fee).
Similarly the information in the US Department of State 2004 Country Report (quoted in the UK Report) in relation to out of plan pregnancies is not necessarily inconsistent with the conclusions reached by the Tribunal. Nor is the information in that report about the fact that certain provinces (including Fujian) required birth permits, in the sense that the regulations provided that a couple were required to obtain government permission before the woman became pregnant. The Tribunal referred to the fact that this report also described a relaxation of requirements in some parts of China and variation in enforcement of the national law.
DFAT Report 404 described family planning regulations in Shandong Province and then stated generally that the information accorded with information provided in 2004 regarding family planning regulations in Fujian Province. Again this description of the regulations is not necessarily inconsistent with the Tribunal’s conclusion (based on information in relation to Fujian Province) that there had been a considerable relaxation of the one child policy in that province, notwithstanding that the DFAT report included the statement that the Shandong Family Planning Commission informed DFAT that it strictly enforced family planning regulations in Shandong. Indeed the Tribunal referred to this report in support of the proposition that payment of the social compensation fee may be postponed or paid by instalment.
Finally the applicant relied on information in a 2001 publication by Greenhalgh and Winkler, Chinese State Birth Planning in the 1990s and Beyond. The applicants acknowledged that this information predated the 2002 information but contended that it had to be considered in context. Mr Zipser referred to the description of targeted strict enforcement of birth planning in Fujian in the early 1990’s and the subsequent decrease in the birth rate and in “out of plan” births. However this information is not inconsistent with the later information relied on by the Tribunal. The Tribunal referred to a particular aspect of this information addressing the situation of Chinese citizens going in and out of China from Fujian and Guangdong Provinces, statements by officials that trying to control the behaviour of such travellers was neither feasible nor necessary, and an indication that generally speaking there was no fine or other punishment for extra births that occurred while students were studying abroad and that if a woman became pregnant while abroad for ordinary reasons the couple was not fined.
It is apparent that the Tribunal had regard to each of the items of information in issue – consisting of information it obtained. As in VWFW, it discussed such information and made positive references to it. It cannot be contended that it failed to have regard to such information. It was acknowledged in VWFW that the appellant needed to establish “at least” that the Tribunal had ignored recent country information and proceeded to decide the matter on outdated country information to demonstrate jurisdictional error. (See Lander J, with whom Gray and Keifel JJ agreed, at [64]). That has not been established.
As their Honours found in VWFW at [66] where the Tribunal sought and obtained information and made direct reference to it in its reasons it is not possible to contend that it failed to have regard to such information. As Lander J stated at [71]: “The RRT was entitled to identify the material upon which it relied for the purpose of expressing the general conclusions … In expressing those general conclusions, it did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion”.
Similarly in this case the Tribunal not only put to the applicant under s.424A of the Act aspects of each of the four items of information relied on under this ground but it also referred to aspects of that country information in its reasons for decision. Hence it cannot be said that the Tribunal failed to have regard to such information.
The Tribunal was not obliged to base its decision on the most recent country information, which in any event (as in VWFW) was not in fact necessarily inconsistent with what the Tribunal took from the 2002 Home Office Report.
This is not a case in which it can be said that the Tribunal simply relied on out of date or less current information rather than engaging in an enquiring or analytical approach to the question before it (see SZJRW v Minister for Immigration and Citizenship [2008] FCA 959 at [49] per Greenwood J). The Tribunal comprehensively reviewed all of the evidence before it. It had regard to the applicants’ claims about the operation of population and birth control regulations in Fujian as well as the country information in issue. It cannot be said to have failed to take into account a relevant consideration which it was bound to take into account. Insofar as the applicants’ argument amounts to an argument that the Tribunal failed to give sufficient weight to the information contained in other documents, such a contention does not establish jurisdictional error. No jurisdictional error is established on this basis.
Impact of the social compensation fee
The second way in which the applicants contended there was error under ground one in the further amended application took issue with the fact that, after finding that the applicant parents could pay the social compensation fee, the Tribunal had continued “Given all the above, and notwithstanding the claims made by the Applicants, the Tribunal is satisfied that, like the general population of China, while they may face financial consequences of having more than one child, including as a result of non-compliance with the Population and Family Planning law in China, this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis”.
It was acknowledged that the country information before the Tribunal indicated that parents in China who had a second or further child in breach of the one child policy could pay a social compensation fee in order to have the child registered. However it was said that where, as here, the applicant parents had complained that imposition of the fee on them would constitute persecution, the important question for the Tribunal was whether in the particular circumstances of the applicant parents imposition of the fee constituted persecution.
Reference was made to what was said in Merkel J in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332 at [38] – [39] as follows:
It may be accepted that the family planning laws, in so far as they relate to parents, are laws of general application in the sense that, although they may vary from province to province, in general, they give effect to China’s one-child policy by penalising parents who have more than one child. However, as was pointed out in Chen at [21] even general laws that are apparently non-discriminatory may impact differently on different people and, thus, operate discriminatorily. Also, the selective enforcement of such laws may result in discrimination. In the present case the country information accepted by the RRT stated:
· documents or administrative approvals can be obtained (or penalty avoided) through personal connections or payments of “incentives”;
· practice in relation to the laws “can vary considerably from place to place”;
· there is a considerable difference in enforcement of the laws between rural areas, where enforcement is lax, and in urban areas where it is stringently enforced.
The country information actually drawn upon by the RRT was scant and very general. That probably came about because it did not appreciate the complexity of the issues discussed in Chen and explained in Applicant S, which was handed down after the RRT’s decision. Plainly, the country information accepted by the RRT is to the effect that the one-child laws do operate or impact discriminatorily on certain groups. A question on any remitter will be whether there is a real chance of that occurring in relation to the applicant parents.
The applicants submitted that country information accepted by the Tribunal (in particular two DFAT reports and the 2004 US Department of State Country Report) supported similar conclusions in this case to those made in VTAO, that enforcement varied from place to place; that fees were assessed at widely varying levels, that most local authorities continued to levy fines and penalties as a deterrent (often in a fairly arbitrary manner), and that practice varied widely between different localities.
It was contended that the Tribunal finding set out above was unclear and/or unsatisfactory for two reasons. First it was said that the meaning of the word “this” in the finding that “this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis” (emphasis added) was unclear. It was contended that the Tribunal had not explained why the social compensation fee would not be applied on a differential or discriminatory basis to the applicants and thus had failed to address the question posed by Merkel J in VTAO as to whether there was a real chance of this occurring. It was suggested that the Court should be cautious to accept any argument that the use of the word “may” was a typographical error or mere looseness of language.
The second complaint about this finding was that the Tribunal did not find that the level to penalty to which the applicants would be exposed “would not” be applied on a differential and discriminatory basis, only that it “may” not be applied on such a basis.
It was contended that where the question before the Tribunal was whether the applicants faced a real chance of persecution, the tentative use of the word “may” was insufficient (see Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220). The applicants submitted that such a tentative statement did not address the question of whether they faced a real chance of persecution (see Rajalingam at [60] – [67] in which Sackville J noted the difference between the balance of probabilities test and the real chance test) and did not even satisfy a balance of probabilities test as the Tribunal did not even find that it was more likely than not that the social compensation fee would not be applied on a differential or discriminatory basis. The finding that it “may” not be applied on a differential or discriminatory basis was said to be well below the threshold of the real chance test.
In essence the applicants’ contention is that the Tribunal either failed to address the question of whether there was a real chance the one child policy and regulations would operate or impact in a discriminatory manner in relation to the applicants or that if it did address this question it erred in considering whether the applicants faced a real chance of persecution.
While the Tribunal set out the test correctly at the start of its decision and in its conclusion, the applicant contended that this would not suffice if the Tribunal erred in its consideration or in its application of the real chance test or any other aspect of the definition of refugee under the Refugees Convention as amended by the Refugees Protocol and having regard to the provisions of the Migration Act 1958 (Cth).
However, while, as counsel for the first respondent conceded, the Tribunal’s reasons suffer from “verbal infelicity” in this respect, when they are read fairly (Minister for Immigration and Ethnic Affairs v Wu Shan Liang and Others (1996) 185 CLR 259 at 271 – 272 and 291) it is apparent that the Tribunal finding was that there was not a real chance that the applicants would be unable to pay the social compensation fee if required to pay it or that they would suffer serious harm if they did pay it. The Tribunal set out the test correctly at the start of its decision. In its conclusion in relation to the applicant parents after the part of the findings and reasons in issue, the Tribunal referred to the fact that “it may be” that the parents may not be able to afford to pay the fee immediately, but that general information it accepted suggested that postponement of the fee and payment in instalments was possible. The Tribunal found that it was satisfied that the chance the applicants “would face mistreatment so serious and systematic to amount to persecution within the meaning of section 91R(1) of the Act is remote”.
When read fairly it cannot be said that there is in some way a qualified conclusion by the Tribunal. It addressed the real chance test. The Tribunal’s use of the word “may” is not such as to establish jurisdictional error. It is not such as to lead to an inference that the Tribunal did not in fact apply the law correctly, as opposed to not expressing itself particularly well. In effect the Tribunal found that none of the applicants would suffer serious harm by imposition of a fee. That was a factual judgment for the Tribunal to make which does not reveal jurisdictional error (see SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 at [23], SZBPQ v Minister for Immigration & Indigenous Affairs [2005] FCA 568 at [30] and VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [29]). Such a conclusion was consistent with the country information the Tribunal cited and the approach taken in decisions of the Federal Court such as VDAU, SZBQJ and SZBPQ.
It is apparent that while the Tribunal decision is in most respects detailed and reasoned, there is some unfortunate looseness of language in this part of the decision. Having said this however, I consider that it is clear from the context in which the finding in issue occurred, that when the Tribunal stated that “this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis” it was referring to its earlier acceptance in light of the country information that the status of a “black child” could be removed once a social compensation fee was paid which would allow registration of the child and that all registered children were entitled to access health and education facilities. In this context the Tribunal was of the view that “like the general population in China” the applicants “may” face financial consequences of having more than one child, but that if they did they would be subject to a law of general application and the information before the Tribunal supported the view that the level of the penalty to which they “may” be exposed on return to China (that is, if they were required to pay a fee given that there was evidence that fines were not necessarily imposed for extra births outside China) would not be applied on a differential or discriminatory basis. It also considered their arguments about an inability to pay such fee, accepted that they may not be able to do so immediately, but had regard to information suggesting postponement and payment by instalment was possible.
It is apparent from the whole of the decision that notwithstanding the use of the word “may” the Tribunal was of the view that even if the parents did have to pay the social compensation fee this would be “like the general population in China” and that the penalty to which they may be exposed as members of the general population (that is if required to pay a penalty) would not be applied on a differential or discriminatory basis.
That this is what the Tribunal intended is consistent with the extract in the decision from the s.424A letter in which the particular country information on which it relied was put to the applicants for comment as indicating that the status of a “black child” could be removed once the father paid a social compensation fee which would allow registration and that all registered children were entitled to access health and education facilities although the first child was given preference.
Such a view was open to the Tribunal on the information before it which the Tribunal referred to in relation to the applicants’ claim that they would suffer systematic discrimination if they returned to China with the child born in Australia. This information indicated that there were a range of responses to out-of-plan births throughout the country, ranging from an absence of difficulties for people returning from overseas with more than one child to information that indicated that upon payment of a social compensation fee a child could be registered and therefore cease to be classified as “black”.
It is apparent from what the Tribunal went on to say, that it considered the extent of the impact of any requirement that a social compensation fee be paid by the applicants. It was in that context that it stated that it was satisfied that it may not be unreasonable for them to take steps to pay a social compensation fee which may be imposed in relation to their Australian born son and any other children they may have had in breach of government policy, as may occur in relation to the general population in China. The Tribunal accepted that while they may not be able to afford to do so immediately, independent information suggested that postponement of the fee and payment of instalments were possible. Importantly, immediately thereafter it expressed its conclusion that it was satisfied that the chance the applicant would face mistreatment so serious and systematic to amount to persecution within the meaning of s.91R(1) of the Act was remote.
Hence the Tribunal considered the issue of whether there was a real chance that the applicants would be subjected to serious harm amounting to persecution for a Convention reason. It was mindful of the fact that they may be required to pay a social compensation fee. It had regard to country information suggesting that this was pursuant to a law of general application and that the information before it in relation to situations where such fee was imposed was such as to indicate that the level of the penalty would not be applied on a differential or discriminatory basis and hence found that it would not be unreasonable for the applicants to take steps to pay any such social compensation fee, albeit they may resort to postponement and payment of it by instalments.
Notwithstanding some unfortunate looseness of language in its expression of these reasons I am satisfied that, as the first respondent contended, the Tribunal considered the correct test and was satisfied that the chance that the applicants would face mistreatment so serious and systematic as to amount to persecution within the meaning of s.91R(1) was remote. When the decision is read fairly and as a whole it is apparent that the Tribunal was finding that there was not a real chance that the applicants would be unable to pay the social compensation fee or would suffer serious harm if they did have to pay it. Such a conclusion was consistent with the country information the Tribunal cited and no jurisdictional error is established on the basis contended for in relation to this aspect of the Tribunal reasons for decision.
Whether failure to enquire
The third contention by the applicant about the Tribunal’s finding in relation to the one child policy in China is that the Tribunal failed to make the necessary enquiry identified by Merkel J in VTAO at [40] – [41]. His Honour stated:
The second, and more fundamental, difficulty arises in relation to the observations by Gleeson CJ, Gummow and Kirby JJ in Applicant S (at ALR 253 – 4; ALD 552 -3 [43] – [45]):
“The criteria for the determination of whether a law or policy that results in discriminatory treatment actually amounts to persecution were articulated by McHugh J in Applicant A. His Honour said that the question of whether the discriminatory treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”. These criteria were accepted in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen …
In Applicant A, McHugh J went on to say that a legitimate object will ordinarily be an object the pursuit of which is required in order to protect or promote the general welfare of the state and its citizens …
The joint judgment in Chen expanded on these criteria:
“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 civilised world as to constitute persecution. And that is so even if the different treatment is undertaken for the purpose of achieving some legitimate national objective.” [Emphasis in original]
The RRT did not enquire whether the harm feared by the applicant parents was appropriate and adapted to achieving the legitimate object of population control. That issue is to be determined by reference to “the standards of civil societies which seek to meet the calls of common humanity”: see Chen at CLR 303; ALR 560; ALD 328 [29] … A law of general application mandating the imposition of severe penalties on the mother irrespective of her personal circumstances may be regarded as a measure that, according to the standards of civil societies, is not appropriately adapted to achieving a legitimate object.
It was submitted that the Tribunal had failed to enquire as to whether the harm feared by the applicant parents, that is the application of the social compensation fee, was appropriate and adapted to achieving the legitimate object of population control determined by reference to the standards of civil societies which seek to meet the calls of common humanity.
As counsel for the first respondent submitted, in VTAO Merkel J was addressing a Tribunal decision in which it had been held that the existence of penalties under laws of general application precluded those suffering such penalties from being members of a particular social group (see VTAO at [34]). In contrast in this case the Tribunal had found that neither the applicant parents nor the applicant child would suffer serious harm because of breach of the one child policy. On this basis it was contended that their membership of a particular social group (or whether there was any other Convention nexus) was irrelevant and that the issue identified in VTAO did not arise.
The first respondent submitted that the enquiry referred to in VTAO as to whether the imposition of a fee was appropriately adapted to a legitimate object was only relevant if what was in issue was whether its imposition was for a Convention reason and that was only relevant if the issue as to whether the imposition of the fee would constitute persecution had been accepted or had not been decided. It was contended that such an enquiry was not relevant if the Tribunal simply found that the imposition of a fee would not constitute persecution, as the enquiry could stop there.
In support of this proposition counsel for the first respondent referred to the decision of the Full Court of the Federal Court in VDAU at [11], in which the Court referred with apparent approval to the statement by the judge at first instance that the Tribunal “had not reasoned that, because the one-child policy was of general application, the appellant could not be a member of a particular social group” and left open the question of whether, if the evidence had disclosed that the appellant would be subjected to serious harm within s.91R(1) of the Act, she would be entitled to a protection visa although treated no differently from any other second or subsequent child.
It was also pointed out that such an approach was taken by Tamberlin J in SZBQJ in circumstances not dissimilar to those before the Court in this instance.
In SZBQJ, as Tamberlin J observed (at [14]), the gravamen of the Tribunal decision was whether there was a real chance of serious harm amounting to persecution. It was contended that the Tribunal had erred in that it sought to justify disadvantages on the basis that they were directed to a legitimate purpose. However Tamberlin J found that the decision was based on the conclusion reached by the Tribunal as to the nature and extent of the disadvantages and not on the legitimacy or otherwise of the purpose (at [14]). The same may be said in this case. The Tribunal considered the possible consequences of breach of the one child policy and resulting disadvantages to the applicant parents and child but was not satisfied that there was a real chance that they would face mistreatment sufficiently serious to amount to persecution.
In SZBQJ the appellant had also sought to rely on the reasoning of the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, in particular the observation by Gleeson CJ, Gaudron, Gummow and Hayne JJ at [29] that ordinarily denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education, involved such a significant departure from the standards of the civilised world as to constitute persecution, even if the different treatment involved was undertaken for the purpose of achieving some legitimate national objective.
As Tamberlin J noted at [18] and as observed in Chen at [25], the question of whether a law or policy was imposed for a Convention reason cannot be segregated from the question of whether the conduct amounted to persecution (see McHugh J in Applicant A and Another v Minister for Immigration and Ethnic Affairs and Another (1997) 190 CLR 225 at 258 to 259). In Chen the Tribunal had found that the appellant in that case was likely to face discrimination which constituted persecution in that he would be denied access to very basic services and that having regard to his parents’ financial position would be unable to have an education in any real sense. However in SZBQJ, as in this case, the Tribunal had found that any discrimination would not, as a matter of fact and degree, amount to persecution.
Relevantly, Tamberlin J warned that factual findings as to the persecutory effect of the one child policy and law could not be transposed from Chen and applied to another case as a binding determination of the facts. As his Honour stated at [21] “the impact and circumstances surrounding the application of a national policy may impact differently on different persons so that in one instance the impact may constitute persecution but in other cases the impact may not be so substantial as to amount to Convention persecution”.
Similarly in this case the Tribunal was satisfied that the chance the applicants would face mistreatment so serious and systematic as to amount to persecution within the meaning of s.91R(1) of the Act was remote. In reaching this decision it had regard to the application of the family planning laws of China to the general population of China. It observed that the objectives of such policies and regulations were to deter to the extent possible a high birth rate. It considered the impact of a possible obligation to pay a social compensation fee (which it regarded as only a possibility in light of evidence that persons returning to China with more than one child may not necessarily face financial consequences). It clearly had regard to the impact of this fee on the applicant parents in accepting that they may not be able to afford the fee immediately, but finding that postponement of the fee and payment by instalments was possible. The Tribunal also considered the arguments of the applicants in relation to other disadvantages that might be experienced by the parents or child and in that respect considered whether children such as the applicant child would be denied basic needs. However on the basis of country information before it relating not only to the considerable relaxation of the one child policy and to the possibility of obtaining registration after payment of the social compensation fee but also to the impact if a child were not to be registered, the Tribunal did not accept that there was a real chance that the applicant child would be denied access to basic human rights and services sufficient to constitute serious harm amounting to persecution.
In contrast to the position in VTAO, the Tribunal did not base its conclusion on a finding that the existence of the penalties in issue under laws of general application precluded those suffering such penalties from doing so as members of a particular social group (VTAO at [34]). In these circumstances it was not necessary for the Tribunal to address specifically whether the treatment of persons in the position of any of the applicants offended the basic standards of civil societies which seek to meet the needs of common humanity in the manner contended by the applicants. Consistent with the reasoning of Hely J in SZBPQ v Minister for Immigration & Indigenous Affairs [2005] FCA 568, the Tribunal’s conclusion that the harm that the applicants faced as a result of the failure to comply with the one child policy and the child’s “black child” status was not sufficiently serious to constitute persecution was not inconsistent with the authority of Chen, given the Tribunal findings in this case (as in SZBPQ ) as to the ability of the applicant parents to pay the social compensation fee and that such obligation was not sufficiently serious as to amount to persecution.
The Tribunal also was not satisfied that the consequences for the child (including as a member of a particular social group) if he was not registered would amount to serious harm constituting persecution. In contrast to the Tribunal findings in Chen, in this case the Tribunal did not accept on the evidence before it that there was a real chance that the child would be denied access to basic human rights, education and medical services (cf Chen at [29]) such as to amount to persecution. As the different treatment in question was found not to be sufficiently serious to amount to persecution (cf Chen) it was not necessary for the Tribunal to have regard to whether differential treatment of members of a particular social group was an appropriate means for achieving some legitimate government object and hence not persecution as considered in Applicant A at [258] – [259] per McHugh J and discussed in Chen at [303] and VTAO. No jurisdictional error is made out in the manner contended for by the applicants.
Social compensation fee findings
The final aspect of this ground takes issue with the Tribunal finding that: “While it may be that [the applicant parents] may not be able to afford to [pay the social compensation fee] immediately, general independent information accepted by the Tribunal suggests that postponement of the fee and the payment of it in instalments are possible (for example see DFAT report 404 … in regard to Shandong Province Family Planning Regulations)”.
The applicants first took issue with the fact that the Tribunal relied on the practice in Shandong Province in support of a finding as to what might happen to the applicants should they be required to return to Fujian Province. It was noted that country information accepted by the Tribunal recorded that the application and enforcement of the population and family planning law in China varied from province to province and contended that in those circumstances the Tribunal’s reasoning process was contrary to the country information on which it purported to rely. It was suggested that Merkel J appeared to have accepted in VTAO that one needed to be careful relying on country information from different provinces, suggesting that the application of rules or regulations varied from province to province.
It was also submitted that the Tribunal did not find that should the compensation fee be applied to the parents they “would” be able to postpone the fee or pay it by instalments but rather that country information “suggests” that postponement of the fee and the payment of it by instalments “are possible”. Again the applicants took issue with the tentative nature of this fact-finding, suggesting that it was not consistent with and did not support the Tribunal’s subsequent conclusion that the applicants did not have a well-founded fear of persecution as a result of breaching the one child policy (see Rajalingam). It was acknowledged that one should not read the reasons with an eye too finely attuned to error, but submitted that it was nonetheless appropriate to see how the Tribunal came to such a finding and to work out whether it was just looseness of language. It was suggested that in the present case the matters on which the Tribunal relied indicated the finding was tentative because it was relying on what happened in Shandong Province.
However, as the first respondent contended, insofar as it was submitted that the statement in question may not apply to Fujian Province as it derived from information concerning Shandong Province and that it did not support the Tribunal’s ultimate conclusion, such complaints are no more than a disagreement with the Tribunal’s reasoning process and seek impermissible merits review. The applicant’s submissions do not establish that a jurisdictional error resulted from what is said to be an unsatisfactory use by the Tribunal of information from Shandong Province in relation to Fujian Province. Indeed, elsewhere in submissions the applicants relied on the information about Shandong Province as relevant to the situation in Fujian Province. The Tribunal was entitled to have regard to that information and its reasoning concerning it, whether right or wrong, was a factual matter for the Tribunal. As discussed above, the Tribunal’s interpretation of factual information is a matter for it (see NAHI, Applicant WABD of 2002 and NBKT).
The contention about the “tentative” nature of the findings has been addressed above. It does not establish jurisdictional error.
Failure to deal with a claim issue
The second ground in the further amended application is:
The applicant father claims that he “would keep on having children and thus continually run foul of the one-child policy”: in China. The Tribunal did not properly deal with this claim, giving rise to jurisdictional error.
It was contended that the Tribunal did not make a finding which dealt with this claim. Reference was made to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55] and [63] in which the Full Court of the Federal Court stated:
Where the Tribunal fails to make a finding on “… a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction …
and at [63]:
… a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error.
It was submitted that the Tribunal failed to make an express finding on a substantial and clearly articulated claim, that it did not implicitly deal with this claim and that there was no other finding that subsumed this claim.
It was contended for the first respondent that the manner in which this claim was put indicated that it was not a separate claim in the way that that would be understood based on authorities such as NABE, but rather just part of the claim to fear harm under the one child policy but that in any event it was sufficiently addressed by the Tribunal.
As the Full Court of the Federal Court stated in WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47] an inference that the Tribunal has failed to consider an issue “is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point”. Whether or not it was a separate claim, the possibility that the applicant father might continue to keep having children and run foul of the one child policy was sufficiently dealt with by the Tribunal. It rejected the applicant father’s claim to fear persecution for breaching the one child policy in the past, finding that he was not of any interest to the PRC authorities in China prior to his departure because he was the father of a “black child” and his wife had breached the one child policy. It made this finding notwithstanding that it accepted that the applicant mother had previously breached the one child policy in China on one occasion. The applicant father’s claim about the future was identified and the Tribunal recorded that it was discussed at a hearing, as was his claim that he could not afford to pay another social compensation fee. In those circumstances the Tribunal’s findings that the imposition of a social compensation fee would not be mistreatment so serious and systematic as to amount to persecution within s.91R(1) was sufficiently general to cover any future imposition of such a fee. The Tribunal did not confine its considerations in this respect to any fee payable in respect of the Australian born son. The Tribunal’s findings addressed the possibility that they may face financial consequences of having more than one child and also more generally rejected the claim that the parents would suffer difficulties because of breach of the one child policy that constituted serious harm amounting to persecution.
Hence the possibility of the applicant father having further children in breach of the one child policy was sufficiently addressed by its findings in relation to the impact and relaxation of the one child policy. This ground is not made out.
As no jurisdictional error has been established on any of the bases contended for by the applicants the application must be dismissed.
I certify that the preceding one-hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 28 August 2008
- AGLC
- SZJTQ v Minister for Immigration [2008] FMCA 1188
- Case
- [2008] FMCA 1188
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether the Minister's decision was legally sound and whether the appropriate considerations were taken into account. Specifically, the court had to assess whether the Minister had properly balanced the statutory criteria under section 501 of the Migration Act 1958, which allows for visa cancellation on character grounds, against the applicant's personal and family circumstances. The court also needed to consider whether the Minister's decision was unreasonable in the sense that no reasonable decision-maker could have made it.
The court found that the Minister had indeed considered the relevant factors and that the decision to cancel the visa was not unreasonable. The court emphasised that while the applicant's personal and family circumstances were significant, they did not outweigh the statutory criteria which pointed towards visa cancellation. The court concluded that the Minister's decision was a lawful one, given the evidence and the statutory framework. The applicant's appeal was therefore dismissed.
Orders
Orders of the court
1.
That the application be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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