SZQDM v Minister for Immigration

[2011] FMCA 551

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQDM & ANOR v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 551

MIGRATION – Review of RRT decision – persecution – refusal to grant protection visa – membership of a religious or particular social group – one child policy – so called “black children” – where social fee may be imposed upon parents of “black children” to avoid contravention of policy and discrimination of children – where Tribunal considered effect of social fee – whether requirement upon parents to pay social fee constitutes persecution of children – whether Tribunal need consider possibility that social fee would be paid for newborn child leaving second child a “black child” – point of question not raised by applicant before Tribunal – whether Wednesbury unreasonableness – whether Tribunal need consider the prospect of return to China prior to birth of third child and potential consequences.

SZJTQ v Minister for Immigration& Anor (2008) 172 FCR 563
SZBPQ v Minister for Immigration & Indigenous Affairs [2005] FCA 568
SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143
SZMIP v Minister for Immigration and Citizenship [2009] FCA 217
Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1

First Applicant: SZQDM

Second Applicant: SZQDN

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 694 of 2011

Judgment of: Raphael FM

Hearing date: 6 July 2011

Date of Last Submission: 6 July 2011

Delivered at: Sydney

Delivered on: 6 July 2011

REPRESENTATION

For the Applicants: In person

Counsel for the Respondents: Mr H Bevan

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. Application dismissed.

2. The Applicants’ litigation guardian appointed by this court on 5 May 2011 shall pay the First Respondent’s costs assessed in the sum of $5,200.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 694 of 2011

SZQDM

First Applicant

SZQDN

Second Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are two children of Chinese parents who entered this country illegally in 1998 and 1999, and who, it would appear, made their own applications for protection which were refused. In the case of the father this was on 28 October 1998. Neither those representing the Minister nor the court, have been advised of why these people had not been deported from Australia some time prior to their making the applications on behalf of their two children with which the court is dealing today.

2. The two children were born on 24 August 2005 and 20 June 2008 respectively.  They applied to the Department of Immigration & Citizenship for protection (class XA) visas on 23 March 2010.  On 28 September 2010 a delegate of the Minister refused to grant protection visas and the children applied for a review of that decision from the Refugee Review Tribunal on 20 October 2010.  Both the children and their parents attended a hearing before the Tribunal at which the elder child spoke.  On 18 March 2011 the Tribunal determined to affirm the decision not to grant the protection visas and handed that decision down on the same day.

3. The grounds upon which the applicants claim to be persons to whom Australia owe protection obligations arose out of their association with their parents and much of the Tribunal’s lengthy decision record is taken up with both the delegate’s and then the Tribunal’s discussions with the parents and independent country information relating to the parents claims.  Those claims can be categorised in three ways.  The first was a claim about membership of a religious or particular social group.  The second was a claim arising out of an alleged land conflict with the local government and the third was a claim relating to the requirement to pay the social charge in respect of the younger child should the family be returned to China.

4. This was later augmented by a claim that the mother was pregnant and that this would involve a higher social charge or alternatively a forced termination of her pregnancy. The Tribunal dealt with each of these claims and questioned the parents upon them. In regard to the religion/particular social group claim the parents alleged that particularly the father and to a lesser extent the mother had an association with a group known as Yi Guan Dao which the independent country information produced by the Tribunal indicates is a proscribed secret religious society:

   “Yi Guan Dao remains illegal in PRC as it was outlawed in the 1950s by the Communist Government.  The PRC Government carried out campaigns in the 1950’s and 1980’s to suppress the Yi Guan Dao religion and during these campaigns believers and leaders were arrested and even executed. 

   Since the 1980’s, Yi Guan Dao has gradually been re-establishing itself as an underground movement through the efforts of missionaries from outside the mainland, and in particular from Taiwan.  In the face of widespread government crackdowns on unauthorised religious activities, these missionary endeavours are conducted in great secrecy and it is not clear how large a following the sect has regained in the PRC as there has been little information on the active existence of Yi Guan Dao in China.”  [96 – 97] [CB 148-149]

5. The applicants’ parents told that following their coming to Australia they ceased significant activity with Yi Guan Dao and turned to Christianity in the form of the Bread of Life Church into which they were baptized in September 2009. The parents contended that should they return to China they had a reasonable fear that they would be persecuted because of their association with these organisations and that this would redound against their children because of some imputed opinion on the part of the Chinese authorities, though they also suggested that should they be arrested for these activities then the children would suffer. The claim concerning the land dispute arose in respect of something which occurred in about 1995. The father told that he was detained and mistreated because of the dispute between 1995 and 1997. The father alleged that should he return his children might be imputed with an adverse political opinion because of his association with the land dispute and again suggested that should he arrested the children would suffer.

6. After the Tribunal hearing but before the decision was handed down, there was faxed to the Tribunal information that the mother was pregnant by one and a half months and it was suggested that in these circumstances there would be an extra charge made under the provisions that exist in the PRC for dealing with children born outside the one child policy.  There had already been discussion within the hearing about the requirement to pay the social fee and it had been suggested by the parents that they could not afford to pay a very high fee in respect of their second child and that this would involve the second child being known as a “black child” and suffering a disadvantage.  I have paraphrased these matters in short compass because the Tribunal rejected each and every one of them. 

7. The Tribunal rejected the claim of association with Yi Guan Dao in China as being not truthful and having been fabricated because of very significant inconsistencies in the evidence of the parents regarding the claimed association with that group:

   “When attempting to explain these inconsistencies, Mr L provided further evidence which the Tribunal found it not possible to believe.  He indicated that his wife was mistaken and that he had only taken her to a famous temple for those contemplating marriage for the purpose of fortune telling and had only written material out for this purpose also.  He could not explain how his wife would have been unaware of these facts.” [127] [CB 159]

8. During the course of the interview the mother told the Tribunal that she was suffering from a depressive illness and the Tribunal went to some considerable pains in the course of its decision record to consider whether or not this depression in some way affected the evidence she was able to give. It came to the conclusion that it did not.  In regard to the parents’ claims that they had some association with Yi Guan Dao in Australia the Tribunal said:

   “The Tribunal accepts that they have attended some gatherings.  Given the lack of truthfulness about events in China, the Tribunal does not believe that this was anything other than an attempt to bolster their applications, and is now being relied on in respect of this application.  This view is reinforced by the apparent abandoning of practice in recent years by both Ms C and Mr L.”  [132 CB 160]

9. In regard to the land claim the Tribunal concluded that it could not accept that either of the applicant children held a well-founded fear of being persecuted on the basis of being imputed with an adverse political opinion by the Chinese authorities:

   “In the Tribunal’s view, this is another example of a fabricated claim about past harms which has no basis in reality.  In the Tribunal’s view the claim that the applicants’ father was detained and mistreated for this between 1995 and 1997 is simply not true.  In the first place, the account of Mr L’s detention is extremely implausible, given the claim that he was permitted out of detention for the purpose of his marriage in 1997.  His initial evidence to the Tribunal indicated that while held in detention he was not allowed visitors, but later when asked about his marriage he indicated by 1997 circumstances had changed such that he was able to get married and ultimately be released later that year. 

   It was also difficult to believe the claims of current fears in this regard for Mr L and resultant harm to his family, given his release in 1997.  Asked about his release he indicated that he and his brothers were released when land was taken over in May 1997.  When asked why he now feared further difficulties in this regard, given that his brothers had not experienced any such harms, he then relied upon his association with Yi Guan Dao as the reason there would be continuing interest in him.  Ms C, when asked about the issue raised the possibility that because they had left China with false passports there would be additional interest in this.” [134-135] [CB 160-161]

10. At this point I would add that an additional claim was made by the applicants that they would be discriminated against because their parents had utilised false passports in coming to Australia and might be arrested on their return to China.  The Tribunal dealt with this claim at [145] [CB 163].  Whilst it accepted that they had used false documentation and that this could involve a criminal offence in China, the Tribunal did not believe that this would result in persecution of the applicants by those authorities.  The Tribunal did not accept that either the applicants or their parents were of interest to Chinese authorities for a convention reason in this regard. 

11. The Tribunal was of the view that any potential prosecution that might be taken against the applicants’ parents for using fraudulent documentation would only amount to the ordinary application of criminal penalties for unlawful action which has no convention nexus.  The Tribunal considered the claim that if the father was sent to gaol because of his use of false documentation the children might grow up without a father which would cause social difficulties for them. Because the Tribunal came to the view that the father would not be gaoled because of past activism or religious faith it did not believe that this would arise from a relevant convention characteristic:

    “…nor by being directed at the applicants parents it could be considered persecution of the applicants.” [147] [CB 164]

12. In regard to the third ground of application I would say at this point that the question of the forced termination did not arise before the Tribunal, but has arisen in the amended application filed in this matter by the applicants. The Tribunal was concerned only with the payment of the social charge both for the second child and the third child.  Mr Bevan in his helpful written submissions referred to: SZJTQ v Minister for Immigration & Anor (2008) 172 FCR 563. In that case, the Tribunal failed to consider the impact of the imposition of any social fee on parents for having more than one child and thus was found to have fallen into jurisdictional error. That is not the situation in the present case, wherein the Tribunal considered the effect of the social fee on the applicants’ parents and had its doubts as to whether there would be any problem in paying the social fee, in any event, given the abilities of the father which had been evidenced before the Tribunal in the form of a letter from his current employer ([140]-[141]) CB 162). There is considerable authority to the effect that where such considerations are taken into account by the Tribunal, it will not fall into jurisdictional error in the sense of SZJTQ: see SZBPQ v Minister for Immigration & Indigenous Affairs [2005] FCA 568, SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143. I am satisfied that the Tribunal did not fall into jurisdictional error on this ground.

13. On 12 April 2011 the applicants filed an application for review of the Tribunal’s decision in this court.  On 15 June 2011 there was filed on their behalf an amended application.  This application was clearly drawn by someone with both fluency in the English language and a knowledge of the law but we are not privileged to know who that person was.  The application commences with six paragraphs which really set out some history and evidence relating to compensation fees payable to the government in respect of “black children”.  At paragraph 7 the application proper is articulated:

    “The Tribunal erred in failing to have regard to the impact of a third child in the family on the prospects of the parents paying the “social compensation fee” for the second applicant.”

14. The gravamen of this ground is that the Tribunal did not consider whether or not the parents might decide to pay the social compensation fee for the so far unborn child in place of the second child. And having failed to have regard to that possibility, whether that would give rise to significant harm by reason of the second applicant remaining a “black child”, a critical question was not dealt with; SZJTQ at [57-59]. The first concern I have with this ground is that it relates to a matter that was not raised by the applicants before the Tribunal. The applicants certainly raised the question of the social compensation fee but did not raise it in the manner now articulated. It is only possible for a Tribunal to deal with the case that is made or one that can be clearly seen to be available on the evidence presented to it: SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 per Flick J at [37], Applicant S214/2003 v Refugee Review Tribunal [2006] FCAFC 166 per Allsop, Jacobson and Graham JJ at [26], and NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 per Black CJ, French and Selway JJ at [61]-[62]. This claim, which is, to my mind, merely speculative, is not one that the Tribunal could be expected to deal with in the absence of it being specifically raised.

15. The ground goes on to suggest at [11]:

    “…the Tribunal’s determination that there was no potential for impact on the second applicant was unreasonable in the Wednesbury sense, for the reasons given above.”

    The reasons given above were that there should not have been any assumption that the parents would apply the available funds to their second-born child and that there was a real risk for the second applicant that her parents might apply any available funds to pay the compensation fee for the newborn younger sibling. To my mind the invocation of Wednesbury unreasonableness does nothing to alleviate the problems with the ground that I have adumbrated in my earlier paragraphs.

16. Ground 3 is described as “failure to deal with an integer of the claim”.  At [13 - 14] the author says:

    “The Tribunal failed to deal with an integer of the applicants’ claim, which ought to have been clear on the evidence even if not made expressly by the applicant children or their parents, that if they return to China while their mother was pregnant there was a risk that she may be forced to have an abortion and that the applicants may be subject to harm by reason of the trauma to the mother. 

    It is clear from the Tribunal’s reasoning that the Tribunal assumed that the third child would be born before the family returned to China. However, there was a real risk that the family would be forced to return before the birth of the third child and the Tribunal failed to have regard to this risk.”

17. The Tribunal was informed of the applicant’s mother’s pregnancy in February 2011 at which time it was stated that she was one and a half months pregnant.  We are now in July 2011, she is at least six months pregnant.  The applicant has a right to appeal any decision of this court and it is a right that I have no doubt she will exercise.  The prospects of her being deported from this country prior to the birth of her child are non-existent (particularly given the length of time the authorities allowed her to remain in the country after the original decision to refuse her or her husband’s own protection claims).  In this regard, even if the Tribunal was held to have fallen into jurisdictional error by ignoring the possibility, this court would not grant the constitutional writs on that ground because there would be no utility in the matter going back before a Tribunal to reconsider a nonexistent possibility.

18. For the reasons given above, I am unable to find that the Tribunal fell into jurisdictional error in the manner in which it reached its decision regarding these two children.  I dismiss the application.  I order that the Applicants’ litigation guardian, appointed by this court on 5 May 2011, shall pay the First Respondent’s costs assessed in the sum of $5,200.00.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  19 July 2011