SZOXS v Minister for Immigration

[2011] FMCA 396

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOXS & ORS v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 396

MIGRATION – Application for review of RRT decision – merits review – policy on children born out of wedlock to underage parents.

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

First Applicant: SZOXS

Second Applicant: SZOXT

Third Applicant: SZOXU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 36 of 2011

Judgment of: Raphael FM

Hearing date: 4 May 2011

Date of Last Submission: 4 May 2011

Delivered at: Sydney

Delivered on: 4 May 2011

REPRESENTATION

For the Applicant: In person

Counsel for the Respondents: L Clegg

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. Application dismissed.

2. Applicant to pay the First Respondent’s costs assessed in the sum of $4,650.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 36 of 2011

SZOXS

First Applicant

SZOXT

Second Applicant

SZOXU

Third Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants in this matter are a young woman, her de facto partner, and a young baby. The young woman arrived in Australia on 30 May 2007 and her partner arrived on 2 March 2008. They appeared to be persons who were in possession of student visas. The young baby was born on 26 April 2010. On 11 June 2010 they all applied for protection visas. On 8 September 2010 a delegate of the Minister refused to grant protection visas. All three applicants applied to the Refugee Review Tribunal for review of that decision on 15 September 2010. The Tribunal interviewed the young woman and her partner in relation to their claims. On 17 December 2010 it determined to affirm the decision not to grant them protection visas and handed that decision down on 20 December. Because the young woman is a primary claimant I shall refer to her in this decision as “the applicant”.

2. The applicant told that while she lived in China she attended a family Catholic church at the instigation of her grandmother.  She told that in 2007 the family church was raided by police and she was detained for two days.  She was accused of being involved in an illegal gathering due to her loyalty to the leadership of the Pope of the Roman Catholic Church.  She was threatened with being sent for re-education but was eventually bailed out through family assistance.  Before the Tribunal the applicant said that she and about 10 others were arrested at the end of February 2007 because they were reported for reading the Bible.  They were reported by someone in the Patriotic Association and the police came and took them by car to a police station.  She claimed they were placed in different cells and asked questions about the underground church.  She was asked to sign a letter of guarantee and was kept in detention for two days after which her parents paid the fine and forced her to write the letter of guarantee [73] [CB 132].

3. The applicant told the Tribunal that she was still required to report to the police after this incident and she did so, but then she organised to come to Australia on a student visa.  Whilst in Australia the applicant said she attended a Catholic Church at Flemington where Mandarin services were conducted on Sundays.  The applicant claimed that she had been baptised in China in 2006 and had arranged for her daughter to be baptised in November 2010.

4. The applicant also told that she feared returning to China because of the nature of her relationship with her partner and the birth of her child.  She stated that neither she nor her partner were married and that both had commenced their association under the Chinese legal age for marriage, which is 22 for males and 20 for females.  She told that the birth of a child outside marriage is not approved in China and indicated that the children of such liaisons are not automatically registered and provided with the standard benefits that other children born of married parents receive in China.  She considered that the child would be a “black child” similar to that of a child born of married parents in breach of the one child policy.

5. The applicant also told the Tribunal that her relationship with her partner had not been approved by either hers or his parents and that those persons had made it clear to both of them that they will not give them any support and, indeed, encouraged her to break off the relationship.  Thus, she was reluctant to return to China because she had no funds of her own and did not expect to receive any assistance from her parents or her partner’s parents. 

6. The Tribunal questioned the applicant, firstly upon her association with the Catholic Church in China and also sought from her an indication of the extent of her knowledge of Catholic doctrine. The applicant responded to the questions of the Tribunal in a way that it considered to be vague and inconsistent. The Tribunal concluded at [CB 141] that it could not accept that she became involved in 2006 because of her grandmother:

   “[135] During the Tribunal hearing she first stated that she had lived as a boarder at her senior high school in Fuqing City 2005 and 2006, however, later stated that she had actually lived at home in 2006 and travelled to school each day.  I consider she changed her evidence during the hearing because she realised that her residence at school did [sic] was not consistent with evidence regarding her religious activities in 2006.  Further the applicant’s description of underground church gatherings and services was limited, vague, and lacking in relevant detail.  Her description of her baptism ceremony and the preceding classes was lacking in direct and relevant detail.”

7. The Tribunal accepted that the applicant may have what it described as “some passing familiarity with the Catholic Church in China” but it did not accept that she was an active member of any underground church.  The Tribunal, therefore, did not accept that she had been arrested at the end of February 2007 for reasons expressed at [137] [CB 142].  It also supported its findings by noting that the applicant had not applied for a protection visa until the expiry of her previous visa in June 2010.  The Tribunal concluded the applicant did not have a convention fear arising out of her religious activity.

8. The partner also gave evidence and he also indicated some connection with the Catholic Church whilst in Australia.  The Tribunal found at [141] [CB 142]:

   “…I do not consider that he has attended Church other than on a very few occasions and I do not accept that he has had any serious or meaningful involvement in Catholic activities which would put him at any risk of harm if he returned to China.  He appeared at hearing to have very little or no interest or knowledge in the Catholic practices and beliefs and I do not consider he would attend an underground Catholic Church in China if he returned to China.”

9. The Tribunal then turned to the concerns addressed by the applicant arising out of the birth of her baby daughter should she return to China. The Tribunal noted the applicant’s claims concerning household registration and the effect that this would have if it was not obtained, particularly in relation to schooling and health. However, it was able to obtain independent country information from Post, dated 8 November 2010, on the registration of children born to single mothers, unwed parents and underage parents in the applicant’s home province. The responses from Post at [127] [CB 139]) indicate a similarity with the situation pertaining to children born in excess of the one child policy, namely the payment of a social compensation fee which, if made, allows the child to be registered and to receive the usual benefits. Post indicated that registration could occur even though the parents were below marriageable age.

10. The applicant had told the Tribunal that she would not be able to afford the registration fee and Tribunal noted that the information from Post indicated that this could be paid over an extended period. There was discussion between the Tribunal and the applicant as to whether her parents or her partner’s parents would assist in paying the fee. My reading of the record would indicate that both felt this was highly unlikely, notwithstanding which the Tribunal, in what I would describe as “a possible leap of faith”, came to the conclusion [145] [CB 143] that:

    “…the applicants and their families will pay any outstanding fee and that the applicant child will be able to be registered.”

11. The Tribunal’s conclusion in relation to the child question was that the applicant’s fears were not convention related.  Although it described the penalties that will be faced by them in a way that indicated a conflation of this policy and that of the one child policy, I do no think that it was mistaken in concluding that any penalties that might be imposed upon this baby and its parents were imposed by virtue of laws of general application and were not imposed because of the applicant’s connection with or adherence to her religious beliefs or any other convention nexus.  Ms Clegg, in her helpful written submissions, quotes extensively from the view of McHugh J in Applicant A v The Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at [257 - 258] (henceforth Applicant A) where his Honour explains that discrimination aimed at a person as an individual and not for a convention reason is not within the convention definition of a refugee.  The Tribunal concluded in those circumstances that the applicants were not persons to whom Australia owed protection obligations.

12. On 12 January 2011 the applicant lodged an application for review of the Tribunal’s decision with this court.  The application contained six grounds, the first three of which appeared to me to be merely narrative.  The fourth indicated that the Tribunal did not verify her evidence and that the Tribunal was wrong when it came to a conclusion concerning her completion of an academic course.  The fifth ground indicated that the Tribunal did not give proper consideration to the applicant’s family situation and the interest of her unborn child.  The sixth, whilst difficult to comprehend, seems to me to have been a suggestion that the Tribunal was in some way biased.  I have dealt with these matters in short order because on 28 March 2011 the applicant filed an amended application which contained only one ground.  That was:

    “The Tribunal erred in finding that the punishment which the applicants might suffer in China as a result of having had a child born out of wedlock would be as a result of the application of a law of general application.

    Particulars
    
    The Tribunal confused Chinese laws giving effect to what is commonly referred to as the “One-Child Policy” with laws that treat unmarried parents and their children in a way that may amount to persecution for reason of membership of a particular social group.  These laws, or the application of more general laws to this social group, are not laws of general application.”

13. Regrettably, I have not had the benefit of any argument from the person who drafted this document. It appears to have been done pursuant to the RRT legal advice scheme and for that assistance the court is grateful. But if parents of children born out of wedlock are to be considered members of a particular social group just because their children can only be registered on payment of a fee then it seems to me that the definition is one that is exclusive to the persecution that the members will suffer and thus does not constitute a particular social group for the purposes of consideration in these matters; Applicant A per Dawson J at [242 - 243]. For this reason the application as amended must fail.

14. The applicant appeared before me in person and told me that she had attended church as soon as she arrived in Australia and also that her baby will be seriously discriminated against should she return to China.  She told me that she and her partner would have great difficulty in paying the fine, that they certainly could not afford the private education and private health services that the baby would have to utilise if the fine was not paid and that the baby’s health was not good.  The court understands and sympathises with the plight of all three applicants but these are not matters which go to the question before it, namely, did the Tribunal make an error of law amounting to a jurisdictional error in the manner in which it reached its decision?

15. The applicant, at the conclusion of her statement, indicated that she felt that the Tribunal was biased and had already determined to refuse her application. An accusation of bias is a matter which must be specifically pleaded and more importantly, it must be specifically proved; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J. The court cannot entertain such an allegation made without more. It would be very rare that an allegation of bias could be found to be established from reading the decision record alone but in this case the decision record reveals nothing that would indicate that the Tribunal has done anything but listen carefully to the claims made by the applicant and come to a decision upon them in a proper manner with the benefit of both applicants’ evidence and the assistance of independent country information.

16. For these reasons, I am unable to assist the applicant in securing a remittal of this matter to the Tribunal.  The application is dismissed.  The applicant must pay the first respondent’s cost which I assess in the sum of $4,650.00.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  27 May 2011