SZLAW v Minister for Immigration
[2007] FMCA 1999
•5 December 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAW v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1999 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of RRT decision affirming a decision of a delegate of the Minister refusing to grant a protection visa – applicant is a child – China’s “one child” policy – no reviewable error. |
| Migration Act 1958 (Cth), ss.36(2), 65, 91R(2), 424A |
| SZGGN v Minister for Immigration & Multicultural Affairs [2006] FMCA 1803 SZDTN v Minister for Immigration & Multicultural Affairs [2006] FCA 188 NBFP v Minister for Immigration & Multicultural Affairs [2005] FCA 287 Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 VBAO v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 234 ALR 544 |
| Applicant: | SZLAW |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2134 of 2007 |
| Judgment of: | Scarlett FM |
| Hearing date: | 17 October 2007 |
| Date of Last Submission: | 17 October 2007 |
| Delivered at: | Sydney |
| Delivered on: | 5 December 2007 |
REPRESENTATION
| Counsel for the Applicant: | Dr Azzi |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondents: | Mr Cleary |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs fixed in the sum of $4,850.00 and I allow four months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2134 of 2007
| SZLAW |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Application
The applicant is a citizen of the Peoples Republic of China. He is a child born on 9th December 2000. His parents are Chinese nationals. He asks the Court through his litigation guardian, who is his father, for a review of the decision of the Refugee Review Tribunal, signed on
5th June and handed down on 14th June 2007. The Tribunal affirmed the decision of the delegate Minister not to grant the applicant protection of (Class XA) visa.
The background of this matter is that the applicant was born in Australia. He applied for a protection (Class XA) visa on 27th October 2006. A delegate of the Minister refused the application for a visa on 20th December 2006. The applicant then applied to the Refugee Review Tribunal for review of the delegate's decision. The Tribunal invited the applicant to attend a hearing by means of a letter, dated
4th April 2007. The hearing was scheduled 7th May 2007.
The applicant's father attended the hearing and gave evidence and presented arguments on the applicant's behalf. The applicant was present as was his mother, although she did not give any evidence.
The basis of the applicant's claim is that the father was born in Fujian Province in China. The father has another child, an older child who lives with his grandmother in China. The applicant's father was divorced in 1995 and has formed a relationship with the applicant's mother.The difficulty for the applicant is that in China there is a one child policy and there would be some difficulties for the applicant upon his return to China because of the existence of the father's earlier child. After the hearing on 8th May 2007, the Tribunal wrote to the applicant's migration agent under the provisions of s.424A of the Migration Act. That letter told the applicant that the Tribunal had information it would, subject to any comments that the applicant might make, be the reason or part of the reason for deciding that the applicant was not entitled to a protection visa.
The letter then set out three pieces of information. First, that at the hearing the day before the applicant's father provided a document to the Tribunal which he said was a warrant for his arrest. It was issued in January 1992. The applicant's father's evidence was that the warrant related to an earlier application for protection of the father made in March 1995.
He gave evidence that the warrant was not available at an earlier Tribunal hearing. The Tribunal letter referred to advice from the Department of Foreign Affairs and Trade which said:
Any official document can be either bought or forged in China. Irregular or improper issue of documentation is widespread. Thus, we would suggest little evidentiary weight can be placed on any official Chinese document.[1]
[1] See Court Book page 100
The Tribunal also pointed out to the applicant that while it was not bound by the previous Tribunal decision, 16th August 1995, in respect of the evidence of the applicant's father, in the absence of any additional evidence that decision would be highly persuasive. The letter told the applicant that without any comment that information might lead the Tribunal to reject the applicant's father's claim that he was at risk of arrest if he were to return to China.
The second piece of information related to evidence, again given by the applicant's father, at the hearing. The evidence related to the father's claim in connection with his earlier claim for protection about industrial action by way of a strike in which he was involved in relation to a work injury. The Tribunal then referred to evidence given by the applicant's father at the Tribunal hearing in August 1995, relating to his own claim, where he gave different reason for a particular strike that was organised and the Tribunal said:
This information may be adverse because the applicant's father has given inconsistent evidence to the Tribunal at his hearing for protection visa in August 1995 and at the hearing presently before the Tribunal. This may cause the Tribunal to doubt the applicant's father's credit as a witness.[2]
[2] See Court Book page 101
The third piece of information on which the Tribunal sought comment related to inconsistencies of the father's evidence about his occupation and the occupation of the applicant's mother. The Tribunal invited the applicant to comment on the information in writing in English by
22nd May 2007.
The applicant did reply through his migration agent. The Tribunal summarised the reply as follows:
(1)The evidence was given at the hearing and was the same, that the applicant's father's mother found the warrant when she was packing up her house for a move to Yunnan province and sent it to the applicant's father in Australia;
(2)The applicant's father stated that he did not think the evidence was inconsistent;
(3) The applicant's father stated that a friend filled out the birth certificate for his son and put down the friend's occupation and his wife's occupation as the applicant parents' profession.[3]
[3] See pages 114 to 115 of the Court Book
The applicant's father also provided the following two photocopies of documents:
a)A translation of the document which he alleges was a notice of land reallocation from Fuqing National Land Resources Department;
b)A photocopy of what appears to be a passport of the applicant's father's brother.
The applicant's father in his reply to the Tribunal stated that he included a copy of his brother's passport and protection visa which was issued to him by the German government.
The Tribunal handed down its decision on 14th June 2007. A copy of the Tribunal decision record can be found at pages 108 through to 123 of the Court Book. The applicant commenced proceedings of judicial review in this Court by means of an application and an affidavit filed on 10th July 2007. The applicant filed an amended application on
4th October 2007.
In that amended application the applicant seeks the following:
(1)A writ of certiorari quashing the decision of the second respondent the Refugee Review Tribunal;
(2)A writ of mandamus compelling the second respondent to rehear the matter;
(3)A writ of prohibition issue to the first respondent preventing them from taking any steps to implement the decision of the delegate of the first respondent that was affirmed by the second respondent;
(4)That the matter be remitted to the second respondent for consideration in accordance with orders and decision of this Court;
(5)Costs; and
(6)Any other orders the Court deems fit.
The applicant relies on the following grounds:
(1)The Tribunal committed jurisdictional error of law by failing to apply the correct test of persecution in the circumstances of the case.
a) The Tribunal accepted that if the applicant remains the child of unmarried parents he may for a short time suffer some teasing or bullying that "any teasing or bullying by children does not amount to serious harm.[4]
b) Whether the applicant child can claim a well-founded fear of persecution was not considered by the Tribunal in perspective of the child.
[4] See Court Book page 121
The applicant was represented at the hearing by Dr Azzi of counsel. The applicant filed his outline of submissions prepared by counsel on 4th October 2007. In those submissions counsel pointed out that the applicant claimed to fear harm from Chinese authorities and the community by reason of his being an illegitimate child. Counsel referred the Court to the decision of Raphael FM in SZGGN v Minister for Immigration & Multicultural Affairs[5] where his Honour said that illegitimate children can form a particular social group in certain circumstances.
[5] [2006] FMCA 1803 at [14]
He submitted that the harm found likely to be suffered by the applicant is based on the specific social attributes or characteristics of the applicant that is by reason of his being an illegitimate child.
The Tribunal acknowledged as much in its findings and reasons and it is irrelevant whether the reason for the action, such as bullying or teasing, is disapproval or resentment of that particular characteristic. Counsel referred the Court to the decision of SZDTN v Minister for Immigration & Multicultural Affairs[6].
[6] [2006] FCA 188 at [37]-[38]
Counsel further submitted that whilst it may be acknowledged that it was open to the Tribunal to find that the Chinese authorities do not discriminate against illegitimate children, nevertheless, the Tribunal accepted that illegitimate children may be subject to bullying or teasing at school. In this regard, it was submitted, that it may be inferred that the Tribunal considered the fear of harm by reason of illegitimacy was well founded.
However, the Tribunal found that the harm did not constitute convention based persecution because it was not sufficiently serious to amount to serious harm as required by s. 91R(2) of the Migration Act. Counsel referred to the Court to the decision of Emmett J in NBFP v Minister for Immigration & Multicultural Affairs[7], where his Honour said:
Section 91R(2) does not, itself, contain a definition of the term persecution or, indeed, the term serious harm. It makes it clear in the preamble that it is not intended to be an exhaustive statement of anything, rather it simply gives instances of what must be taken as serious harm without limiting what is meant by serious harm.
[7] [2005] FCA 287 at [48]
Counsel submitted that Emmett Js observations were in accordance with statement of McHugh J in Applicant A v Minister for Immigration & Multicultural Affairs[8], where his Honour has said:
Persecution for a Convention reason may take an infinite variety of forms from death, torture, to the deprivation of opportunities, to compete on equal terms with other members of the relevant society.
[8] (1997) 190 CLR 225 at [258]
Counsel for the applicant submitted that the Tribunal had accepted that the applicant might, for a short time, suffer some teasing or bullying but went onto submit that the Tribunal's findings that China has passed legislation to protect the legal rights of illegitimate children, does not the fact that the applicant would be likely to suffer from teasing or bullying by reason of belonging to a particular social group. In any event, the Tribunal stated that any teasing or bullying by children does not amount to serious harm as defined by s.91R(2).
Counsel for the applicant submitted that the Tribunal had erred in finding that in particular circumstances this case of teasing or bullying did not amount to serious harm for the purposes of s. 91R(2).
He went onto submit that the Tribunal's finding that the applicant might for a short time suffer from teasing or bullying was no more than speculative comment and not a reasonable view which, of itself, would be a jurisdictional error.
He submitted that the Tribunal committed jurisdictional error in finding that teasing or bullying did not amount of serious harm for s.91R(2) purposes either because the Tribunal failed to properly appreciate the test of persecution or to consider all the relevant information of the case including the context in which the harm has taken place.
In particular, he referred the Court to decision of Chan v Minister for Immigration & Ethnic Affairs[9], where McHugh J observed that the notional persecution involved selective harassment and even a single act of oppression may suffice.
[9] (1989) 169 CLR 379 at [429]-[430]
Counsel for the applicant went on to submit that the fact that the applicant had lived for his entire life in Australia and has become accustomed to the Australian way of life, and the fact that he would be likely to be targeted for being illegitimate and unregistered was sufficiently relevant issue that it was incumbent on the Tribunal to consider them before making a finding of harm likely to be suffered.
It was not sufficiently serious to constitute convention based persecution.Accordingly, he submitted that the Tribunal found a jurisdictional error by determining that the applicant would not suffer harm amounting to persecution by reason of his being the child of unmarried parents.
Counsel for the respondent Minister, Mr Cleary, submitted that the applicant's claim should be rejected. He pointed out to the Court that the Tribunal, whilst accepting the notion of "black children" were a particular social group for the purposes of the Refugees' Convention, it did not accept that the applicant would be persecuted if he were to return to China because the Tribunal member accepted the independent country information from the Department of Foreign Affairs & Trade and once registered in China, children borne out of wedlock or contrary to the one child policy were entitled to access, health and education facilities.
He submitted that the Tribunal had noted from independent country research that if the applicant remained the child of an unmarried couple he might, for a short time, suffer teasing or bullying, but the Tribunal concluded that this did not amount to serious harm. He went on to submit that this finding was open to the Tribunal and referred the Court to the decision of VBAO v Minister for Immigration & Multicultural & Indigenous Affairs[10].
[10] (2006) 231 ALR 544
The Tribunal also made findings which supported its conclusion that in bullying or teasing did not amount to serious harm. The Tribunal found that the applicant's father planned to marry the applicant's mother, and that the applicant's parents were dedicated to the applicant's care and would be able to provide protection in China to the applicant. Those were findings of fact that cannot be challenged by the Court.
The Tribunal found the applicant would not suffer harm or persecution because his parents were unmarried or because he was unregistered. The Tribunal rejected the evidence of the applicant's father that such children would be discriminated against, and the Tribunal accepted the advice from the Department of Foreign Affairs & Trade about Chinese provincial planning regulations on the question of whether the applicant could be registered in China.
The applicant's father's evidence was that the applicant could not be registered but the Tribunal did not accept that evidence. Mr Cleary submitted that this decision was open to the Tribunal on the material before it.
In considering this matter it is important that the Court does not fall into the error of embarking on merits review. The factual matters are entirely a matter for the Tribunal. It is, of course, glaringly obvious, as I commented at the hearing, that one solution for the applicant's purported problems in being an illegitimate child was for his parents to do what they told the Tribunal that they planned to do, and actually married. There was no evidence presented to the Tribunal showing that there was any impediment to the applicant's parents marrying, which what the applicant's father told the Tribunal they intended to do.
That said, however, this Court does not conduct merits review because factual matters and judgments arising from factual matters are specifically a matter for the administrative decision maker, in this case, the Refugee Review Tribunal.
I make these comments about merits review because I am satisfied that the applicant's claim amounts to no more than an application to the Court to conduct a merits review of the Tribunal decision.
As Mr Cleary, of counsel, pointed out the applicant made no objection to the way in which the process of the review is conducted by the Refugee Review Tribunal. I am satisfied that the Tribunal did have regard to the legal tests set out in s.36(2) of the Migration Act and I note that at pages 109 and 110 of the Court Book the Tribunal considered the requirements of ss.65 and 36(2) of the Act. I am satisfied that the Tribunal applied the appropriate test.
It was entirely within the Tribunal's role as finder of fact to make a finding that the harm alleged to be suffered or which would be claimed to be suffered by the applicant upon his return to China, namely, teasing or bullying as a result of being an illegitimate child, was not sufficient to constitute serious harm for the purpose of s.91R(2) of the Migration Act. That is a decision reached by the Tribunal on consideration the factual material before it.
The Tribunal considered the facts and then made its judgment on the facts as to whether the harm claimed would be sufficient to qualify as serious harm for the purpose of s.91R(2). The Tribunal was not so satisfied and, in my view, the evidence before the Tribunal was sufficient to enable the Tribunal to reach that conclusion.
There is no jurisdictional error. The Tribunal decision is a privative clause decision as defined by s 474(2) of the Migration Act. The application will be dismissed.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: S.Polley
Date: 26 November 2007