SZQGH v Minister for Immigration - [2011] FMCA 1031

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQGH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 1031

MIGRATION – Review of Refugee Review Tribunal decision – persecution – children born outside of one child policy – merits review.

PRACTICE AND PROCEDURE – Appointment of litigation guardian.

Applicant:

MR CF APPLICANT AS LITIGATION GUARDIAN OF SZQGH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1028 of 2011

Judgment of:

Raphael FM

Hearing date:

13 December 2011

Date of Last Submission:

13 December 2011

Delivered at:

Sydney

Delivered on:

13 December 2011

REPRESENTATION

For the Applicant:

In person

Solicitors for the Respondents:

Minter Ellison

ORDERS

Mr CF Applicant (father of SZQGH) be appointed Litigation Guardian for SZQGH, the Applicant in these proceedings.
Application dismissed.
Mr CF Applicant pay First Respondent’s costs assessed in the sum of $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1028 of 2011

MR CF APPLICANT AS LITIGATION GUARDIAN OF SZQGH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant is a young child born on 20 May 2010 in Australia. His parents are both Chinese citizens and he is for that reason considered to be a citizen of China himself. His parents remain in this country on bridging visas based upon his application made on 19 July 2010 for a protection (Class XA) visa.
His parents made similar applications which are dealt with in detail at [CB 173-176]. Essentially, they have been utilising all steps available to them to remain in this country since their arrival, in the case of the father on 19 June 2004, and the mother, on 9 June 2006. The child applicant’s application was considered by a delegate of the Minister who refused to grant a protection visa on 19 November 2010. On 7 December 2010 an application for review of the delegate’s decision was made on behalf of the applicant. The Tribunal interviewed the applicant’s parents and on 21 April 2011 determined to affirm the decision not to grant the applicant a protection visa.
The ground upon which the applicant claimed to be a person to whom Australia owed protection obligations was that of membership of a particular social group, namely “black children” or children born out of plan as the applicant tells that he has two sisters remaining in China. He says in a statement made accompanying his application:
I am applying for the refugee protection, because I am scared of the persecution and discrimination against me if I return to China, and my human rights will be challenged. The Family Planning Law of China lays rigid policies that restricting to only one child can be born in one family, (sic) and I am a child “out of plan.”
The applicant goes on to say that he will not be permitted to be registered as a child and therefore his parents will be required to make a heavy payment for such registration. If they do not register him he will be treated as a “black child” and will not be permitted the rights to education and health services or social welfare that are available to other children in the People’s Republic of China. He also made reference to the fact that his mother might be required to be sterilised should she return and that his family was experiencing a major financial crisis and that life had put an unbearable pressure upon his parents mentally and physically. He made reference to the fact that his sisters who remain in China and living with his grandparents have been discriminated against because of his parent’s history and have been harmed psychologically. The Tribunal relying upon independent country information accepted that in general terms registration is necessary to access education and medical treatment in Fujian province from where the applicant’s family comes but stated that the information also suggested that the problem of registration of children can be overcome by payment of a social compensation fee. The Tribunal acknowledged the applicant’s father’s claim that the family planning laws were administered corruptly and that the fine might vary but stated that it considered that the policies of the government were appropriate and adapted to achieving a legitimate national objective in the context of China’s need to control its overall population growth.
The Tribunal then turned to consider whether or not the parents would be able to pay the social compensation fee for this child if they returned to China immediately or in the foreseeable future and took into account the parent’s earning capacity. The Tribunal concluded that it was not beyond the parent’s ability to pay the fee on the basis of the evidence given by the father at the hearing as to the work that he had undertaken both in China and in Australia. It also did not accept the applicant’s father’s views of what the fee might be:
“[117]The Tribunal finds that the applicant’s father has exaggerated much of his evidence. The Tribunal does not accept that because of the hardship of the fee, the applicant’s father would have to let the applicant go and fend for himself and that the applicant as a consequence would become an orphan. The Tribunal finds this evidence to be exaggerated for the purposes of strengthening the applicant’s claims.” [CB 199]
The applicant’s father had given evidence about the two daughters, the first of whom was a child capable of being registered. The second daughter was also registered. The applicant claimed he had to pay 12,000 RMB to register the second daughter which the Tribunal took to represent the social compensation fee and not a fine as claimed by the applicant’s father.
The Tribunal also considered the applicant’s claim that his mother feared forced sterilisation should she return to the PRC. The applicant’s father had used the examples of certain relations and friends of theirs who had been forced to have sterilisation or had been threatened with it and escaped the country as a result. The Tribunal did not accept this evidence, neither did it accept that the mother was required to have her second child in a village because she was scared to go to a proper hospital and it did not accept that she was harmed mentally and physically as claimed. The Tribunal concluded that the applicant’s father’s evidence lacked credibility on this and other allegations.
The Tribunal did not accept the applicant’s claim that his two sisters in the PRC were suffering from infantile autism and the father was examined carefully about this:
“[128]The Tribunal notes the applicant’s parent’s immigration history. They have been living in Australia for a considerable period of time and away from their daughters and accept some hardship on the daughters’ well-being may arise as a result of their lack of parental care. However, the Tribunal does not accept the truth of this claim as the evidence before the Tribunal is that both daughters attend school, the older daughter is in Year 3 of junior high school and the younger daughter is in Year 6 of primary school. The Tribunal finds that the applicant’s father is not a witness of truth. The Tribunal finds the evidence to be a fabrication for the applicant’s father’s own purposes.” [CB 201].
In regard to the applicant’s claim to be a member of a particular social group the Tribunal noted:
“[129]The applicant’s father argued that China’s family planning laws were not democratic laws and he feared his child would be discriminated against if he returned to the PRC. The applicant argued that families such as his who had violated the family planning policy were a ‘particular social group’. The Tribunal does not accept this contention noting that it was the very argument rejected by the High Court in Applicant A, referred to above, where it was held that the characteristic or attribute common to all members of the posited ‘particular social group’ could not be the shared fear of persecution (see also Applicant S, referred to above, at [36] per Gleeson CJ, Gummow and Kirby JJ]).
On 20 May 2011 the applicant applied for review of the Tribunal’s decision from this court. On 26 August 2011 the applicant’s father filed an affidavit supporting an application to be made the applicant’s litigation guardian and the court will make such an order. In the application the orders sought by the applicant are actually just part of the grounds and no specific orders are requested. The court will assume that the applicant is seeking the usual constitutional writs. It is best that the orders sought and grounds of application are read together. These are:
“(1) I disagree with Immigration and RRT’s decision. They did not consider that I will be in big trouble and even a life challenged due to my parent’s background if I return.
(2) RRT did not consider that I will be discriminated and treated as a “black child” in society due to the sanction by Family Planning enforced in our rural area without humanitarian concern, especially our family’s inability to pay for social compensation fee. Our family currently suffers with financial difficulty and hard to collect money for the fine.
(3) RRT member made me upset and anxious at the hearing. The member also fails to give a good consideration to what my father explained to my parents previous applications in which they as victims have been taken advantages by others due to their lack of knowledge of law and language barrier.
(4) RRT should have given me a chance to express and reconsider our detailed explanation and the documents provided of hearing for making a fair decision.
“The Grounds of the Application:
(1) I am a Chinese citizen and Christian who will face the persecution and social discrimination due to Family Planning policy of China if returned.
(2) As Australian born child, I cannot go back to China since I have a strong fear to be harassed and ill-treated if returned.
(3) I will be deplored the equal right of living and not entitled for social welfare in China if my family cannot pay for the social compensation fee, however this is not fair and out of my control.
(4) I have great concern about being affected due to my parent’s background as they are under investigation of Chinese authority for their record.”
It will immediately be seen that none of these paragraphs seeks to debate the jurisdictional correctness of the Tribunal’s decision. They merely seek to rehearse arguments put before the Tribunal which constitutes a request for impermissible merits review. Insofar as these grounds hint that the Tribunal may not have given full consideration to the situation of his parents, there are two answers. The first is that both parents have made their own claims to be refugees and have failed in them and therefore strictly speaking the parents’ position is not relevant to that of the child. Second, my reading of the Tribunal’s decision indicates that the Tribunal did deal with those matters raised by the father in the hearing relating to his position and that of his wife, examples of which can be seen from the earlier part of these reasons.
The complaint that the member made the applicant upset and anxious at the hearing surely refers to his parents. In order to succeed in such an argument the applicant must do more than make an assertion such as is found in paragraph 3 of the orders sought. The applicant’s father appeared before me today. He told me that the Tribunal’s conclusion was not fair because it was not dealing with issues of the “black child” and it did not say much about his parents. He said that his parents are facing persecution if they go back to China. He said that this was the major issue. He said that he was not familiar with the law but the troubles of the parents would reflect upon the child, the child dare not go back to China because if he did so he would be harmed.
The father said that the RRT only talked about the child and did not mention what happened to his parents. I have already dealt with the position of the parents. To the extent that it was relevant it was dealt with by the Tribunal. It is not correct to say that the Tribunal only talked about the child and did not mention what had happened to the parents. It listened carefully to what the father had to say and came to a conclusion that he was not a man who could be believed. A decision of that type is for the Tribunal “par excellence.”
The court appreciates that the identification of a jurisdictional error in a matter such as this is not an easy thing to do. It is particularly difficult for persons who have no knowledge or very little knowledge of the English language or an understanding of the nature of judicial review. It is for that reason that this court looks carefully through the record of decisions in matters such as this to see whether or not it can identify an error that may not have been apparent to the applicant. However, in this case no such error appears. In all the circumstances, the only orders that the court can make are:
a)Mr CF Applicant (father of SZQGH) be appointed Litigation Guardian for SZQGH, the Applicant in these proceedings.
b)Application dismissed.
c)Mr CF Applicant pay First Respondent’s costs assessed in the sum of $5,000.00 taking into account the fact that this is the adjourned hearing of the original application.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 21 December 2011