SZLAW v Minister for Immigration and Citizenship

[2008] FCA 647

FEDERAL COURT OF AUSTRALIA

SZLAW v Minister for Immigration and Citizenship [2008] FCA 647

SZLAW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2491 OF 2007

RYAN J
12 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2491 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLAW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

12 MAY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant’s father pay the first respondent’s costs fixed in the sum of $2,765.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2491 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	RYAN J
DATE:	12 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders of Scarlett FM made on 5 December 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”);  see SZLAW v Minister for Immigration & Anor [2007] FMCA 1999. By a decision delivered on 14 June 2007, the Tribunal had affirmed a refusal of 20 December 2006 by a delegate of the then Minister for Immigration and Multicultural Affairs (“the Minister”) to grant a protection (class XA) visa to the appellant.

   Background

2. The appellant was born in Australia on 9 December 2000 to parents who are Chinese nationals.  His father acted as litigation guardian and gave evidence in the proceeding before the Federal Magistrate.

3. On 27 October 2006 the appellant, through his parents, filed an application for a protection visa with the Department of Immigration and Multicultural Affairs (as it was then known). On 20 December 2006 a delegate of the Minister refused the application for a protection visa.  On 23 February 2007 the appellant applied to the Tribunal for a review of that decision.

   The decision of the Tribunal

4. In his application to the Tribunal, the appellant claimed to be stateless.  He claimed that his parents were unmarried and for that reason he is unable to apply for a Chinese passport.  He further claimed that were he to return to China he would be denied official registration due to his illegitimacy and, accordingly, would be excluded from social services such as schooling, health care and other basic amenities.  The appellant therefore claimed a fear of persecution by reason of his membership of a social group of “unregistered or black children”. 

5. On 14 June 2007 the Tribunal delivered its reasons.  The Tribunal accepted that the appellant’s parents were Chinese nationals and that the appellant had not acquired another nationality at birth.  The Tribunal rejected the appellant’s claims of a well-founded fear of persecution.  It accepted that unregistered or “black” children in China constitute a particular social group in the Convention sense.  However, the Tribunal found that overseas-born children of unmarried Chinese parents are able to procure registration in China upon payment of an additional fee.  In the present circumstances, it was found, the appellant’s parents would be in a position to pay the additional fee thereby entitling the appellant to ordinary enjoyment of social services in China.  The Tribunal also noted that legislation existed within China which protected the legal rights of illegitimate children. 

6. The Tribunal found that the appellant would not suffer harm or persecution in China by reason of non-registration. Although it accepted that, if his parents remained unmarried, the appellant might for a short time suffer some teasing or bullying by other children, that would not constitute “serious harm” as defined by s 91R(2) of the Migration Act 1958 (Cth) (“the Act”). The Tribunal also rejected the appellant’s father’s claim that he would be unable to obtain a Chinese passport. That rejection was based on available country information and the perceived unreliability of the father’s evidence. The Tribunal, accordingly, dismissed the application.

   Application to the Federal Magistrates Court

7. On 10 July 2007 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision.  On 4 October 2007 the appellant filed an amended application in the Federal Magistrates Court, which contended that the Tribunal had committed jurisdictional error of law by applying an incorrect test of persecution, and sought an order, amongst others, that the matter be remitted to the Tribunal.  The appellant was represented by his father at the hearing before Scarlett FM and, through his father, it appears retained Counsel, Dr Aziz, to appear at that hearing which occurred on 17 October 2007. 

8. In his reasons, delivered on 5 December 2007, the learned Federal Magistrate held that the appellant’s claim amounted essentially to a request for the Court to review the merits of his case. His Honour was entirely satisfied that the Tribunal had adverted to the considerations set out in s 36(2) of the Act for determining whether a well-founded fear of persecution existed. It was therefore within the Tribunal’s fact-finding function for it to find that the apprehended teasing and bullying would not constitute the requisite degree of persecution. Accordingly, Scarlett FM found that the Tribunal’s decision was not infected with jurisdictional error, and ordered that the application be dismissed with costs.

   Proceedings before this Court

9. On 19 December 2007, the appellant filed a notice of appeal in this Court, seeking to appeal from the orders of Scarlett FM dated 5 December 2007.  The grounds of the appeal are listed in the notice of appeal as follows;

   ‘1.The Decision made by the Federal Magistrate Court is not acceptable.  The definition of “black child” and “overseas Chinese” are not interpreted correctly which led to a wrong decision by both Federal Court as well as RRT.’

10. The appellant seeks the following orders;

    ‘1.       Remit my application to RRT.

    2. Remove all the costs involved during this application and the application to the Federal Magistrate’s Court.

    3.        Any other costs judge may think appropriate.’

11. The application was accompanied by a supporting affidavit, sworn by the appellant’s mother on 19 December 2007.  In the affidavit his mother deposes to the following;

    ‘1.I am mother of the applicant Lin Feng Jeff Shi.  I am his legal custody in Australia.

    2.All the reasons for the appeal are listed in the application form.  All the information are true and correct from the best knowledge of mine.’

12. On 9 January 2008 Deputy District Registrar Farrell gave various procedural directions designed to ready this appeal for hearing.  Those directions included;

    ‘8.The appellant file and serve written submissions no later than five (5) clear working days before the hearing date.

    9.The respondent file and serve written submissions no later than two (2) clear working days before the hearing date, unless otherwise directed.

    10.The solicitors for the Minister notify each other party in writing of the date set down for the hearing of the appeal and of these directions.’

    Despite the requirement in [8] of the Deputy Registrar’s directions, no written submissions have been filed on behalf of the appellant.  The appellant’s father who appeared in person on behalf of the appellant explained that omission by saying that, apart from the most recent letter notifying him of today’s hearing, no correspondence since January this year has been brought to his attention. 

13. The appellant was given leave to rely on written submissions which were filed and served on Counsel for the Minister only today.  Those written submissions first take issue with the observation of the learned Federal Magistrate that “the applicant is a citizen of the People’s Republic of China”.  It is asserted in that context that, in fact, the applicant is a stateless person lacking any nationality despite the fact that his parents are Chinese.

14. It is further asserted in the written submission that the Chinese consulate in Australia refused to accept the appellant as a Chinese citizen.  The written submission then rehearsed submissions which had been made by Counsel for the appellant in the course of the hearing in the Federal Magistrate’s Court where it was pointed out that illegitimate children can constitute a particular social group in certain circumstances. 

15. Reliance was also placed on a submission advanced at first instance that, by reason of his being an illegitimate child, the appellant was capable of suffering harm amounting to persecution in the Convention sense and it was submitted, in this context, that the Tribunal should be regarded as having considered that the fear of harm in the sense of bullying or teasing by other children was capable of constituting such persecution. That finding, it seems, was said to be entailed by the Tribunal’s earlier conclusion and despite the legislation which may have been passed in China to protect the legal rights of illegitimate children. Accordingly, it was submitted that the Tribunal’s finding that the apprehended detriment to the appellant by reason of teasing or bullying did not amount to serious harm for the purposes of s 91R(2) of the Act had not been open to it.

16. The written submissions also went on to assert that the Tribunal’s finding that the appellant might, for a short time, suffer from teasing or bullying from other children, was no more than speculative comment and not a reasonable view and that itself was capable of constituting jurisdictional error.  It the same vein, it was contended that the Tribunal had failed properly to appreciate the concept of persecution or to consider all the relevant information, including the context in which the apprehended harm would take place.

17. The appellant’s written submissions also reminded the Court that in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, McHugh J had observed that the notion or persecution of which an applicant is required to have a well-founded fear, may involve selective harassment to the extent that even a single act of oppression may suffice to satisfy the test. The written submissions also rehearsed the submission of Counsel, apparently made to the Court below that the appellant had lived for his entire life in Australia and had become accustomed to the Australian way of life. That, as I understand it, was said to make the apprehended discrimination arising from his illegitimate status and lack of registration if returned to China more likely to inflict the degree of harm required by s 91R(2) of the Act.

18. Accordingly, the Court was invited to impute jurisdictional error to the Tribunal in its determination that the applicant would not suffer harm amounting to persecution by reason of his being the child of unmarried parents as well as the second child of his father. 

19. In written submissions filed on behalf of the Minister on 7 May 2008 it has been contended that both before the Federal Magistrate’s Court and on appeal to this Court, the appellant has failed to demonstrate that the Tribunal fell into “jurisdictional error” in the sense attributed to that expression by the High Court in Plaintiff S157 of 2002 v The Commonwealth (2003) 211 CLR 476, at 506 [76]. In the same written submissions it has been pointed out that the only ground of appeal articulated in the appellant’s notice is that the Tribunal misinterpreted the expressions “black child” and “overseas Chinese”.

20. Counsel for the Minister contended that, as Scarlett FM had recognised, no jurisdictional error is discernible in the reasons of the Tribunal. Rather, the Tribunal’s hearing had been properly conducted in accordance with s 425 of the Act. It had correctly applied the appropriate legal tests when it made the finding, which was open to it, that the appellant did not have a well-founded fear that he would be persecuted for a Convention reason if he were returned to China.

    Consideration

21. The expression “overseas Chinese” was used by the Tribunal at p 8 of its reasons where the Tribunal quoted from a 2001 report on family planning in China prepared for the United States Department of Justice, Immigration and Naturalisation Service.  That quotation included the statement:

    ‘Overseas Chinese, a term explained in chapter 6 under regionalism, have particularly broad latitude.  They can send their one child out of China to permanent residence abroad and bear another child to replace it.’

    The Tribunal went on, at p 9 of its reasons to observe;

    ‘The report explains later that the term “overseas Chinese” is not a general term, it refers to a special category of Chinese who reside and do business in overseas countries such as South East Asia but maintain ties to relatives in mainland China.’

22. The expression “black child” was used by the High Court in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293, to designate a child born outside the parameters of the “one child policy” of the People’s Republic of China and born of an unauthorised marriage. However, the Tribunal noted that the Department of Foreign Affairs and Trade had advised that a “black child” in China is an unregistered child whose birth may or may not have contravened the family planning regulations of the People’s Republic of China. The Tribunal assessed the claims of the appellant as a “black child” in that sense as, thereby, a member of a “particular social group” within the meaning of the Refugee’s Convention.

23. The Tribunal preferred the evidence constituted by various sources of country information to that of the appellant’s father, which it regarded as unreliable.  On the basis of the evidence which it preferred, that a child born overseas and out of wedlock to Chinese parents one of whom already had a child in China would not, if he or she were to return to China, be denied registration or any of its attendant benefits, the Tribunal drew a conclusion to that effect.  In my opinion, that finding does not stem from any jurisdictional error.  It is not to the point that this Court or the Federal Magistrate’s Court might have come to a different conclusion if required to find the facts for itself.  Reconsideration of the merits of an applicant’s case is not available on judicial review.

24. In my view, no jurisdictional error inheres in the statement by the learned Federal Magistrate that the appellant was a citizen of the People’s Republic of China.  Whether or not he presently holds that status is a question of Chinese law, which was a question of fact for the Tribunal.  As already noted, the Tribunal found that the appellant and his parents would be treated “pragmatically” if they were to return to China.  The Tribunal further found that, provided the appropriate “social compensation fee” were paid, neither the appellant nor his parents would be deprived of any social services or other benefit generally available from the State to citizens of the People’s Republic.  That finding, I consider, was likewise available to the Tribunal on the evidence before it. 

25. It follows that I, like the learned Federal Magistrate, have been unable to discern any jurisdictional error in the reasons for the Tribunal and the appeal must accordingly be dismissed with costs.  On reading the affidavit of Miriam Maffisanti, I am satisfied that it is appropriate to fix the first respondent’s costs of the appeal in the sum of $2765, which I do, and I shall direct that those costs be paid by the appellant’s father.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:        12 May 2008

The appellant appeared in person by his father as next friend.
Counsel for the First Respondent:	Ms T L Wong
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	12 May 2008
Date of Judgment:	12 May 2008