SZMKY v Minister for Immigration and Citizenship
[2008] FCA 1924
•17 December 2008
FEDERAL COURT OF AUSTRALIA
SZMKY v Minister for Immigration & Citizenship [2008] FCA 1924
MIGRATION – administrative law – review of decision of Federal Magistrates Court affirming decision of the Refugee Review Tribunal – application for Protection (Class XA) Visa – appellant was previously subject to persecution by virtue of the PRC’s “one child policy” – appellant underwent forced abortion – whether the Refugee Review Tribunal erred by not considering the appellant to have a well founded fear of persecution for a Convention reason – held that the Tribunal afforded the appellant procedural fairness under the Migration Act – held that the Tribunal had applied the appropriate test according to authority – held that the Tribunal had not committed jurisdictional error
Migration Act 1958 (Cth) ss 417, 424A, 424AA
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied
SZMKY v Minister for Immigration and Citizenship & Anor [2008] FMCA 1338 affirmedSZMKY v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1562 of 2008
SPENDER J
17 DECEMBER 2008
BRISBANE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1562 of 2008
BETWEEN: SZMKY
AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
17 DECEMBER 2008
WHERE MADE:
BRISBANE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the costs of the first respondent, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1562 of 2008
BETWEEN: SZMKY
AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE:
17 DECEMBER 2008
PLACE:
BRISBANE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
This appeal is one of those rare cases, where the call for compassion stretches almost to breaking point the obligation to be faithful to the judicial oath to do justice according to law.
If there was a basis, any basis, on which I could allow this appeal while maintaining fidelity to that judicial obligation, I would. It grieves me to say that I have been unable to find such a basis.
The appellant (whose pseudonym is SZMKY) is a citizen of the People’s Republic of China who arrived in Australia in September 2007. She was born on 27 August 1964. On 25 October 2007, she lodged an application for a Protection (Class XA) Visa with the Department of Immigration & Citizenship. A delegate of the first respondent refused the application for a protection visa on 23 January 2008. On 25 February 2008, the appellant applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision. In a decision made on 4 May 2008 and handed down on 22 May 2008, the Tribunal dismissed the application for review.
The appellant applied to the Federal Magistrates Court on 20 June 2006, where she was unrepresented. Federal Magistrate Scarlett, in a judgment given ex tempore on 11 September 2008, dismissed the appellant’s appeal to the Federal Magistrates Court: see SZMKY v Minister for Immigration and Citizenship & Anor [2008] FMCA 1338.
The appellant filed a Notice of Appeal to the Federal Court on 2 October 2008.
Background to the Application
The appellant claimed, in her application for a protection visa and before the Tribunal, that she had been persecuted because of her violation of the “one-child” policy in force in China. She married her husband in 1988, and they had a child together in 1991, a daughter. Her husband wished to have a son, however, and she became pregnant again in 2002. Because a second birth was not permitted pursuant to the one-child policy, she had to hide in the homes of others to avoid officials. She said that she had been discovered in her seventh month of pregnancy by birth control officials and was detained and forced to have an abortion. Thereafter, she said that her house had been confiscated, that she had lost her employment, and, as a consequence of the forced abortion, her husband divorced her in 2003. She also claimed that the electricity and water supply were cut off to her home.
The delegate of the Minister, in refusing the appellant a protection visa, said:
All of the above considerations suggest that, while the applicant was subjected to persecutory treatment by local birth control officials in 2002, she was not subjected to any further harm between 2002 and 2007. Furthermore, I am mindful that evidence of past persecution does not give rise to a presumption that the applicant’s fear of persecution on return to their country of origin is well-founded (MIEA v Guo Wei Rong & Anor (1997) 191 CLR 559), and that the assessment of an applicant’s claims requires a decision-maker to determine whether their fear of persecution is well-founded in the reasonably foreseeable future (NAHI v MIMA [2004] FCAFC 10).
There is no evidence to suggest that, on her return to the PRC, the applicant would be subjected to any continuing punitive action on account of her pregnancy in 2002, and she does not state that she has any intention or desire to have any further children in the reasonably foreseeable future.
(Emphasis in original)It is clear from the reasons of the Tribunal that it was sensitive to the sad history of the appellant. In [19] of its reasons, the Tribunal said:
I explained to the applicant that I had to try to understand why these things had happened to her. I noted that she had said that she had breached the planned birth policy and I indicated to her that if what had happened to her was the result of the application of that policy, and it had been applied to her in the same way as it would have been to anyone else in China in the same situation, that would not bring her within the definition of a refugee because the Refugees Convention required that an applicant fear being persecuted for one or more of the five Convention reasons. I explained to the applicant that in asking whether she had been treated differently from anyone else who might have breached the one child policy I was therefore trying to find out whether she had been treated differently for one of the five Convention reasons.
Later, the Tribunal said, at [23]:
I noted that, as we had discussed, the Refugees Convention required that the applicant fear persecution for one of the five Convention reasons. She had told me that she believed that she had been treated differently from other people who had breached the planned birth policy but she had said that she could not tell me why she had been treated differently. I put to her that it would be difficult for me to find, on the basis of the evidence she had given at the hearing, that she had been singled out or treated differently for one of the five Convention reasons. I put to the applicant that if I did not accept that she had been singled out or treated differently for one of the five Convention reasons then I might conclude that she had simply been punished for her breach of the planned birth policy.
And later, at [24]:
… I noted that the applicant had said that she did not want to return to China because it was a sad place for her. The applicant said that she wished that I could give her an opportunity to stay in Australia permanently. She said that she had lost her family in China: she had nothing there at all.
At [26], the Tribunal said:
The applicant referred to the fact that she had had an induced abortion and that she had been hospitalised. She said that she had been returned to her home before she had fully recovered and the relationship between her and her husband had worsened. She said that all the time her husband had been hoping she could give birth to a boy but she had lost her baby and her husband had deserted her. The applicant repeated that she hoped that I could give her a chance to stay here because she did not want to return to China. She said that she had been persecuted so badly in China that she had wanted to die. She said that the only thing that had stopped her had been the need to look after her daughter, to raise her and to educate her. She said that Australia was a very nice place where people even received benefits for giving birth to children but you could not do that in China: you would be fined.
The Tribunal said, at [28]:
I consider that the applicant was commendably honest in her evidence at the hearing before me. I accept that when she became pregnant with her second child she was forced to undergo an abortion and that her husband subsequently divorced her. I accept that she does not want to return to China because it is a sad place for her. However, although the applicant said that she believed that she had been treated more harshly than others who had breached the ‘one child’ policy in China – in that others had merely been fined whereas she had been forced to undergo an abortion and shut up in a dark room – she said that she did not know why she had been treated more harshly than other people. She said that it was just the way of the country that they did not treat everybody alike. She said that she had not had problems with the authorities before that: she had just been a common citizen.
The Tribunal continued, at [29]:
Moreover, although I accept that the applicant was laid off by her employer because she had breached the ‘one child’ policy, she was employed from 2005 until she left China in 2007. Likewise, although she said that her house had been confiscated, as I put to her in the course of the hearing before me, she said that she had been living at a particular address in China before she left China. As I explained to her in the course of the hearing before me, the definition of a refugee looks to the future and, while I accept that the applicant has been badly persecuted in the past, and that she does not want to return to China because it is a sad place for her, she has not pointed to any harm which would amount to persecution which she fears she will suffer for one or more of the five Convention reasons if she returns to China.
The application to the Federal Magistrates Court was based on two grounds of appeal:
(1) the Tribunal failed to invite her to comment on adverse information in breach of s 424A of the Migration Act 1958 (Cth) (the Act);
(2) the Tribunal committed jurisdictional error by applying a wrong test of persecution. The Tribunal accepted that she had been mistreated because of her breach of the [one-child] policy; the Tribunal was wrong to find that this mistreatment had not been for a reason connected to the Convention.
The appellant also put before Scarlett FM compassionate grounds for allowing her to stay, including certain medical reasons. His Honour indicated that the Court did not have jurisdiction to issue any visa for such reasons, the Court’s role being limited to judicial review of the Tribunal’s decision. Scarlett FM said any compassionate grounds must be made to the Minister following the finalisation of the proceedings, if they were not favourable to her.
Scarlett FM rejected the claim made in reliance on s 424A of the Act, indicating that the Senior Member constituting the Tribunal had elected to comply with s 424AA. After reviewing the Senior Member’s decision, particularly [23] – [26], part of which I have set out above, his Honour held that the Member had clearly set out items of information that would be the reason, or part of the reason, for affirming the decision under review. His Honour held that the information would be covered, in any event, by s 424AA(3), but, further, the applicant had been given extra time to comment on or respond to the information if she wished, but she had declined. In Scarlett FM’s view, the Member had complied with s 424AA.
Scarlett FM held that the second ground advanced, namely, that the Tribunal had applied the wrong test for persecution, was “really a challenge to the Tribunal’s factual findings”. The Tribunal had in fact found that the applicant’s claims had no Convention nexus, and therefore, the applicant could not be classified as a person to whom Australia owed obligations under the Convention.
Scarlett FM concluded, at [43] of his Honour’s reasons:
The Court’s jurisdiction is confined to a consideration as to whether the Tribunal fell into jurisdictional error. As the Applicant’s second ground is, in effect, a challenge to the Tribunal’s factual finding, it amounts to what is known as a “merits review” or an “attempted merits review” which, unfortunately for the Applicant, is not open to a Court conducting judicial review.
Accordingly, the Federal Magistrate dismissed the application for review.
It seems to me that the Federal Magistrate did not consider the question raised by the applicant in her second ground of appeal. The complaint by the appellant to the Federal Magistrates Court concerned the characterisation of the persecution which the Senior Member constituting the Tribunal considered. Scarlett FM did not review the correctness of the test which the Tribunal had propounded and had applied, and did not dismiss the appellant’s appeal on the basis that the test the Tribunal applied was the correct test. Rather, he considered that the appellant was attacking only factual findings on persecution and dismissed the claim as merits review.
While, in my view, the Federal Magistrate was in error in this approach, a careful examination of the reasons of the Tribunal indicates that the Member was at pains to set out exactly the test he was using in coming to his conclusion that the persecution which the appellant fears she will suffer if she were to return to China was not for one or more of the five Convention reasons.
The appellant told this Court that if she was returned to China, she could have a further child only at the real risk of a further forced abortion. The real question is whether the Tribunal was obliged to conclude that fear of a forced abortion for breach of China’s one-child policy constituted a well-founded fear of persecution for a Convention reason, and that in failing so to conclude erred in the exercise of its jurisdiction by applying the wrong test.
The High Court (Dawson, McHugh and Gummow JJ, with Brennan CJ and Kirby J dissenting) in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Applicant A) held that such fear would not constitute persecution for a Convention reason.
In Applicant A, the Tribunal had accepted as a matter of fact that coercive measures were used in the implementation of China’s family planning policy, and that coercive measures ranged from forms of civil discrimination to fines and forced contraception, sterilisation and abortion: see at 251. The Tribunal defined the social group in question as “those who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised.”
The majority in the High Court held that persons who oppose China’s one child policy and feared sterilisation did not constitute a “particular social group”, because the uniting feature was a fear of persecution.
Dawson J said in his reasons, at 243:
In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large. It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it. Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention.
McHugh J said, at 269-270:
If, as is probably the case, the Tribunal meant by “those who … do not accept the limitations placed on them” those couples who believe that they should be able to have more than one child notwithstanding the government’s policy, there is nothing to link the couples so as to create a perception that they constitute a particular social group. There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future; and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as “a particular social group” is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood.
And Gummow J said, at 285:
I would assume, for the purposes of the determination of this appeal, that the PRC has a “one child policy”, infringement of which attracts, as a matter of governmental decision, the sanctions feared by the appellants. I assume therefore that there exists a policy which is being implemented in a fashion which engulfs a number of persons for whom the PRC is their country of nationality. On that footing, a disparate collection of parents, and those desiring to be parents, who do not accept and have difficulties in complying with a “one child policy” are at risk of the application of a general law of conduct required by the state and, on the assumptions I have made, brutally enforced. But they are not members of a particular social group with a fear of persecution by reason of membership thereof.
The only distinguishing feature between Applicant A and the present case is the form of persecution feared, namely, the appellant in the present case fears compulsory abortion as opposed to compulsory sterilisation.
Gummow J said, at 286, that “… the form the persecution takes should not ‘be inserted into the definition of the social group.’”
Consistent with the judgment of the High Court in Applicant A, the Tribunal, while accepting that “the applicant has been badly persecuted in the past”, concluded that the appellant had not pointed to any harm which would amount to persecution which she fears she will suffer for one or more of the five Convention reasons if she returns to China.
Similarly, before the Federal Magistrates Court, Scarlett FM records, in [29] of his Honour’s reasons:
Counsel for the Minister, Ms Sirtes, submitted that the Applicant, whilst she had made quite clear that she did not wish to return to China, had not demonstrated any jurisdictional error on the part of the Tribunal and submitted that the Applicant’s unfortunate circumstances did not provide any ground for remitting her application to the Tribunal.
Scarlett FM held that Ground 2 of the appellant’s appeal was “… really a challenge to the Tribunal’s factual findings”, and therefore no case of jurisdictional error on the part of the Tribunal had been made out.
This is not a challenge to a factual finding by the Tribunal. The Tribunal held, however, that mistreatment amounting to persecution for breach of the “one child” policy was not persecution because of membership of “a particular social group”, and therefore the appellant did not fall within the definition of a refugee.
The legal position is plain. The appeal to this Court from the Federal Magistrates Court has to be dismissed with costs.
I note that, given the various matters set out above, it is possible for the appellant to apply to the Minister pursuant to s 417 of the Migration Act for the exercise of the Minister’s personal discretion.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 17 December 2008
The Appellant appeared in person Counsel for the First Respondent: Ms V McWilliam Solicitor for the Respondents: DLA Phillips Fox
Date of Hearing: 28 November 2008 Date of Judgment: 17 December 2008
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