Wzavq & Ors v Minister for Immigration & Anor
[2015] FCCA 2574
•14 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WZAVQ & ORS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 2574 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal (Migration and Refugees Division) – Protection (Class XA) visa – whether the Tribunal failed to take into account country information – whether the Tribunal failed to consider an integer of the applicants’ claims – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), s.476 |
| Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 Minister for Immigration and Border Protection v MZYTS [2013] FCA 114 |
| First Applicant: | WZAVQ |
| Second Applicant: | WZAVR |
| Third Applicant: | WZAVS |
| Fourth Applicant: | WZAVT |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 17 of 2015 |
| Judgment of: | Judge Street |
| Hearing date: | 14 September 2015 |
| Date of Last Submission: | 14 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 September 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr DV Blades |
| Solicitors for the Applicant: | Estrin Saul Lawyers |
| Solicitors for the Respondents: | Ms E Tattersall Sparke Helmore |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal and the filing of any further document in this regard is dispensed with.
The application be dismissed.
The applicant pay the first respondent’s costs fixed in the amount of $5800.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
PEG 17 of 2015
| WZAVQ |
First Applicant
| WZAVR |
Second Applicant
| WZAVS |
Third Applicant
| WZAVT |
Fourth Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application for a Constitutional writ within the Court’s jurisdiction under s.476 of the Migration Act 1958 (Cth) in respect to a decision of the Tribunal made on 18 December 2014. The first applicant was found to be a citizen of China and her claims are assessed against that country. The second applicant is her husband and the third and fourth applicants are children.
The first and second applicants entered Australia using fake Korean passports on 8 June 2004. The applicants remained living in Australia illegally until one applicant lodged a protection visa application on 13 October 2012. A further application was lodged on was lodged on 16 January 2013 The two grounds advanced in relation to the application are as follows:
1. The Second Respondent's decision was affected by jurisdictional error in that the Second Respondent failed to consider claims squarely raised by the Third and Fourth Applicants and/or clearly advanced in the materials, namely that as a result of the First Applicant's objection to undergoing an intrauterine device insertion or tubal ligation, they would be denied hukous
Particulars
a) The applicant made written and oral submissions that while women cannot be forced under law to undergo sterilisation or contraception they face immense pressure from authorities which results in an ultimatum of choosing either sterilisation or contraception in order to register children under hukous (CB 190-193. 210-213; annexure A to affidavit of Monique Julia Vaughan affirmed 8 June 2015 page 24-25; 'Transcript').
b) In its decision record dated 18 December 2014. the Second Respondent accepted that "significant pressure would be brought to bear one or the other of the applicant parents to voluntarily undergo sterilization or in the applicant mother's case, contraception." (CB 260(154)).
c) At the hearing the Second Respondent received oral submissions from the applicants' representative on whether the applicant children being denied hukous would constitute persecution (Transcript 27).
d) The Second Respondent accepted that if either child were unable to obtain a hukous they would form "a particular social group and the regulation they would face would likely be persecutory." (CB 259(143]).
e) The Second Respondent did not accept that "significant pressure and any threats of refusing to register the children. contrary to Jaw as they are. give rise to the level of being persecutory." (CB 260(154]).
f) In its decision record the Second Respondent also considered the likelihood of physically forced sterilisation or contraception (CB 260-261 (155-158]).
g) The Second Respondent found that there was no evidence that "physically coerced sterilisation or contraception has taken place in recent years in the Liaoning province or in relation to ethnic Koreans." (CB 260(156]).
h) The Second Respondent at CB260 made findings in relation to potential persecution suffered by the First and Second Applicants. but did not consider whether the potential denial of hukous to the Third and Fourth Applicants if the First Applicant refuses to undergo sterilisation or contraception could constitute persecution or significant harm.
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3. The Second Respondent made a jurisdictional error by failing to consider relevant material namely the decision of the UK Immigration and Asylum Chamber of the Upper Tribunal and material referred to by that Tribunal regarding an aspect of the applicant's claims for protection.
Particulars
a) At the hearing, the Transcript (page 21) shows that the Second Respondent stated, in reference to its own country information, that "our country information sucks".
b) Under the heading 'Country of origin information - child registration' at [95-1001 and 'Country of origin information - forced sterilisation/contraception' at [101-109], the Second Respondent had regard to the findings of the UKIAC and the expert report of Professor Fu Hualing prepared for that matter.
c) At [152-155], the Second Respondent appeared to accept that coerced sterilisation, contraception or interference with reproductive affairs could constitute persecutory state conduct.
d) At paragraphs 168 and 174 of the UKIAC decision, the UKIAC held that the family planning scheme in China is revisited every five years, last in 2010 and next due in 2015, and that in the leadup to this review a national campaign to return to authorized quotas occurs, resulting in 'vigorous (sometimes unlawful) crackdowns' which may lead to large-scale human rights abuses and forced sterilisations.
e) Further at paragraph 185, the UKIAC held that several scandals have occurred during recent 'crackdowns' where forced sterilisations occurred in large numbers, and that where a real risk of forcible sterilisation exists this would be persecutory and international protection would be engaged.
f) Further at paragraph 191 subparagraph 11 , the UKIAC held that
i. If a female returnee who has already had her permitted quota of children is being returned at a time where there is a 'crackdown' in her hukou area, such a returnee would be at real risk of unlawful practices such as forced sterilisation.
ii. Outside such times. a female returnee may also be able to show an individual risk where there is evidence that she or members of her family remaining in China have suffered adverse ill-treatment by reason of breach of the family planning scheme.
g) At paragraph 110, the UKIAC referred to the report of Fu Hualing that family planning enforcement had been stepped up against migrants with rural hukous working in cities, with discrimination faced by such migrants.
h) There was thus a large volume of country information before the Second Respondent, and which the Second Respondent by its repeated reference to this information throughout its decision demonstrably preferred, which was relevant to the parent applicants' case. strongly supported their claims. and was not considered or referred to by the Second Respondent.
I note that counsel for the applicants abandoned ground 2.
Mr Blades of counsel, on behalf of the applicant, argued that the first applicant’s claim of objection to undergoing an intrauterine device insertion or tubal ligation would give rise to the third and fourth applicants being denied hukous. This was a claim squarely raised on behalf of the third and fourth applicants and by the first applicant. Mr Blades of counsel took the Court to the transcript at page 27 where the following was said:
Representative: Just to get back to point, when we were talking about a law of general application, the other point I was going to raise is that - if we don't look at the claims by Ms <First Applicant>, but rather look at Applicant 4, as in the second child, or both of the children in this instance, that might be denied that - if she decides not to undergo sterilisation, not to have an IUD inserted, regardless of what reasons and regardless of the policy - the flow-on effect would be that one or both of the children would not get a hukou, therefore they would be subject to persecution. So we would ask that if you find that this is just an incidental factor - the fact that she doesn't undergo these processes and the child doesn't get a hukou – that <inaudible> would be prosecuted.
Tribunal: OK. All right. I'll look at that.
Mr Blades also took the Court to the post-hearing submission dated 20 October 2014 and in particular para.30 in the conclusion as follows:
30. In her application to the Department, the applicant wife claimed that she could not return to China because -
• in 2012 she became an active member and was baptised in the Korean Onnury Church in Western Australia;
• she will be persecuted in China because of her faith;
• having had two children, she and her husband will be in violation of China's one-child policy and her second son will not be able to be registered, thus becoming a black child, unless they pay a fine which they are unable to afford.
Mr Blades also drew attention to the annexure to that report, which was an expert report opining on forced sterilisations and forced IUD insertions and the authorities’ requirement for women to be sterilised and the risk that the second child will be denied any hukou, and alleged administrative bullying being a common way to make parents pay a social compensation fee for having children without permission or for the local government to force parents to be sterilised or accept an IUD.
Relevant in the report:
33. These issues of hukou denial are not applicable to everyone. Many women unquestioningly submit to IUD or sterilization, others find ways to bribe their way out of the situation. There is, however, a nationwide problem for women who refuse to submit to unwanted surgery (most women accept the IUD). I do believe it is reasonably likely, should Mrs. [WZAVQ] refuse to undergo tubal ligation surgery or accept an IUD, we will encounter difficulties registering her children with the hukou. This could mean she needs to pay a bribe to circumvent the problem, it could mean be required to pay an official fine – this is not the social compensation fee but a locally dictated fine. I should stress, however, that money cannot necessarily liberate a woman from the burden of carrying an IUD or being sterilized. As outlined above, there are cases where the child’s hukou is effectively held ransom to a woman accepting an IUD or sterilization.
Hukou for the children
34 When parents breach family planning policies they are often prevented from registering their child with the hukou until they have paid the social compensation fee.50 However, there are cases where parents are also prevented from registering their child with a hukou if they refused to submit to sterilization, as mentioned above. I believe this would also be the case if a women refuses to accept an IUD. This problem was highlighted in a December 2012 South China Morning Post report, which claimed that authorities in many Chinese cities refuse to give hukous to 'in-plan' newborns if their parents have not immediately implemented contraceptive measures following childbirth." These children are then called ‘hei haizi' - literally 'black children' - meaning illegal.
35. So common is the problem I will present a plethora of evidence to illustrate the ongoing problem of children denied the hukou.
The Tribunal referred to the post-hearing submissions, relevantly at paras.44 and 68. The Tribunal identified the expert’s report and took into account the expert’s report. Further, on the fair reading of the Tribunal’s reasons without a keen eye for error, the Tribunal correctly identified the applicants’ claims in para.111 as follows:
111. During the course of their application for protection and subsequent review, the applicants have made a number of claims of feared persecution if they return to China. In summary, these are:
• The applicant husband has made claims of persecution based on business harassment and has claimed to be a Christian convert. The evidence indicates that he may also fear returning to the attention of the authorities because of his illegal departure from China. By implication of the claims made by the applicant wife, I have also considered whether he would be liable to forced sterilisation.
• The applicant wife has made claims of persecution based on her Christian faith and her past involvement in Falun Gong. The evidence indicates that she may also fear returning to the attention of the authorities because of her illegal departure from China. She fears being subjected to forced sterilisation or forced contraception.
• The applicant daughter, through her parents, fears being un-registrable, as well as the implication of pollution and food hygiene on her health.
• The applicant son, through his parents, fears being un-registrable, as well as the implication of pollution and food hygiene on his health.
The Tribunal turned to potential consequences of the one-child policy in respect of the second and third applicants relevantly as follows:
143. The family planning regulations relating to China are often, wrongly, referred to as the onechild policy. The applicant wife feared that one or both of her children would be unable to be registered because of perceived violations of the family planning regulations. The Tribunal accepts that were either child to be refused registration and to be unable to obtain a hukou that they would form a particular social group and the regulation they would face would likely be persecutory.
144. The applicant mother feared that neither child would be able to be registered as they were born abroad. As outlined in the country information set out above and put in summary form to the applicant mother, this fear is not well-founded. Instead, the country information indicates that the family planning provisions do not apply to overseas-born children and as such, no sue is payable in relation to either.
145. The applicant mother feared that even if her daughter could be registered, her son, as a second child, would not be. Again, based on the country information outlined above and put in summary form to the applicant mother, this fear is not well-founded. The information set out above indicates that the applicant son would be an authorised second child due to the applicant mother's rural Liaoning hukou and the Korean ethnicity of both parents, meaning they are both members of a defined ethnic minority.
146. The applicant mother feared that even if both children could be registered, the applicant parents would have to pay a prohibitively expensive sue, which, they say, they could not afford.
147. As both children are 'authorised' within the province and under its laws and were born overseas, no SUC would be payable. However, if the applicant parents were liable to pay a SUC, it would be based on the average income of a rural Liaoning hukou holder and it could be paid in instalments. Given that the applicant parents have been living in Australia and
have generated a tax-free income over an eight year period, it is unlikely that a sue based on the average yearly income of a rural Liaoning person that could be paid in instalments would be represent significant harm to the applicants.
148. Related to this claim is the possible claim that the fact of the children's overseas births would lead to heightened scrutiny of the parents upon their return to China in relation to their other claims. While their mere birth, overseas or otherwise, may have implications on the applicant parents claims regarding forced sterilisation/contraception (discussed in more details below), the country information set out above indicates that children born to a very large Chinese diaspora overseas bring no heightened scrutiny to returning nationals.
149. Accordingly, I do not accept that there is a real chance that the applicant son and applicant daughter would face persecution now, or in the foreseeable future, based on their ability to be registered in China. Nor do I accept that they would face a real risk of significant harm on this basis for the purposes of complementary protection.
In my opinion, the Tribunal in para.149 made an adverse finding on the claims raised on behalf of the third and fourth applicants in respect of the first applicant refusing to undergo intrauterine device or the tubal ligation.
The Tribunal returned to consider the applicants’ claims under the heading Family planning regulation and forced contraception/sterilisation - applicant wife and Husband in paras.150 to 158 as follows:
150. While this claim was not specifically raised by the applicant husband in relation to his forced sterilisation, I have considered the claim may be applicable by implication of the applicant wife's claims.
151. I note that this claim was first raised in the pre-hearing submissions dated 17 September 2014 but could be inferred from earlier claims about the registration of the children.
152. The applicant wife (and by implication, the applicant husband) state that they fear forced sterilisation or forced contraception which would occur when they attempt to register their children. Although the children are authorised, they will have reached their quota of children and will be pressured to undertake sterilisation or contraception.
153. As stated by the Canadian court in the decision set out above, the more coercive or physically intrusive the authorities ' approach to enforce their policies, the more likely it is that the state's conduct will be seen to be persecutory.
154. I note that the registration of the children cannot be refused under law. I accept that significant pressure would be brought to bear on one or the other of the applicant parents to voluntarily undergo sterilization or in the applicant mother's case, contraception. However, based on the country information referred to above and put to the applicant parents in summary, as well as the country information and expert evidence of the applicants' expert witness, I do not accept that the significant pressure and any threats of refusing to register the children, contrary to law as they are, give rise to the level of being persecutory.
155. With respect to physical coercion or force, while I accept that this has occurred, I also accept that it is increasingly rare. I accept the expert evidence accepted by the UKIAC that there is country information explaining why such physical coercion has become increasingly rare.
156. I note there is no country information that physically coerced sterilisation or contraception has taken place in recent years in the Liaoning province or in relation to ethnic Koreans. Assertions to the contrary appear to be mere supposition. The witness evidence of Ms Gordon appeared to rely on generalisations on this point.
157. I note that the applicant wife's assertion that her mother underwent a forced abortion was first raised at hearing and I do not find the assertion to be credible, in light of the timing and my general concerns about the applicant wife's credibility.
158. I do not accept that there is a real chance that either the applicant mother or the applicant father would be subjected to forced sterilisation or forced contraception and therefore do not find that there is a real chance of their persecution on this basis. Similarly, I do not accept that there is a real risk that either would be subjected to forced sterilisation or forced contraception and therefore do not find that there is a real risk of significant harm on this basis for the purposes of complementary protection.
In my opinion, para.158 is an adverse finding in relation to the first applicant’s claims of undergoing intrauterine device insertion or tubal ligation. I do not accept that the Tribunal failed to consider the consequences of non‑registration or payment of hukous in relation to the third and fourth applicants and that on a fair reading of the Tribunal’s decision as a whole, the Tribunal properly addressed the claims advanced on behalf of the first applicant and on behalf of the third and fourth applicants.
I am not satisfied of any jurisdictional error as alleged in ground 1. In relation to ground 3, Mr Blades of counsel took the Court to a particular report dated 2012 referred to in footnote 23 and cited in the Tribunal in the context of identifying country information in para.97 relevantly provided as follows:
97. Expert evidence considered by the UK Asylum and Immigration Tribunal (UKIAC) noted that 200,000 children are born unauthorized each year.[23] In that decision, the UKIAC found that family planning officials are not entitled to refuse to register unauthorized children and there is no real risk of a refusal to register a child. Payment for a birth permits, for the registration of children, and the imposition of a SUC for unauthorized births are instead implemented. The UKIAC noted that family planning regulations attached to the wife's hukou and are governed by the provisions of that province.
98. The UKIAC found that upon a family having a second child, whether authorized or not, resulted in the loss of their "Certificate of Honour for Single-Child Parents", which entitles a family to a range of enhanced benefits from priority schooling, free medical treatment, longer parental leave, priority access to housing and enhanced pension provisions.
99. In relation to unauthorized children, a family will encounter additional penalties including workplace discipline and payment of the SUC. For persons who have lived overseas for a number of years, the SUC is calculated based on the average net per capita income for rural residents in the province. The UKIAC found that the SUC is payable with a down payment of 50% and three years to pay the balance. Payments to family planning officials are a significant source of revenue for those local authorities.
100. The UKIAC accepted the expert evidence that Chinese law did not permit civil judgments to be enforced so as to remove the basic conditions of living (home, food on the table, and schooling for the children), effectively restricting the sue enforcement in practice.
[23] Professor Fu Hualing, Expert Evidence Report in the matter of AX (family planning scheme) China CG [2012) UKUT 00097 (IAC).
In relation to ground 3, it is common ground that the relevant principles are identified in the Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24 at [44] to [45] as informed by Minister for Immigration and Border Protection v MZYTS [2013] FCA 114 at [73] to [77].
It is clear that the Tribunal in the present case did base its decision on country information included in the 2012 report. It is not the case, however, the Tribunal is bound by the 2012 report and it is a question for the Tribunal to determine what weight it gives to the country information. There is no failure by the Tribunal constituting a jurisdictional error by the findings made in relation to the applicants in the present case. The Court was taken to para.168 and 174 of the 2012 report which is as follows:
168. The statutory scheme is now revisited every five years, most recently in 2010. The present scheme will be reviewed again in 2015. In the period leading up to the 2005 and 2010 reviews, there was increased laxity in local areas, followed by a national campaign to return to the authorised quotas, which placed pressure on local officials. In each case, in a small number of provinces and areas, that resulted in human rights abuses, including large-scale forced sterilisations and termination of unauthorised pregnancies, even very close to term.
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174. From time to time, most recently in early 2010, national campaigns to reduce over-quota births lead to vigorous (sometimes unlawful) local 'crackdowns' on unauthorised pregnancies and couples who have not opted for sterilisation after the second child. The pressure on officials sometimes results in large scale unlawful family planning abuses in provinces or areas which are significantly over quota. During such crackdowns, human rights abuses can and do occur in some provinces and areas. We do not consider·that these large-scale abuses are likely to be under-reported: on the contrary, they attract widespread international attention and opprobrium·and may even result in international diplomatic intervention. However, these occurrences, appalling as they are, are exceptional.
It is clear that the expert report was referred to at para.155 in the Tribunal accepting the explanation as to why a physical coercion has become increasingly rare. To the extent that the applicant alleged a failure to have regard to the expert report annexed to the submissions, I note the Tribunal especially referred to that expert report at para.156 and the submissions that had been made in that regard. I also take into account in this regard what was said by the Tribunal at paras.102 to 104 and 106 to 109, as well as 154 and 158.
I am not satisfied that the Tribunal has engaged in any jurisdictional error as alleged in ground 3. I accept the first respondent’s submission that it is a matter for the Tribunal to assess the country information and to give the country information such weight as it thought fit. I find the Tribunal did have regard to the expert report and that the adverse findings by the Tribunal were open on the material before the Tribunal.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Street
Associate:
Date: 25 September 2015
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