FEDERAL COURT OF AUSTRALIA

NABV v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1494

APPLICANT NABV OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 77 OF 2002

HILL J

29 NOVEMBER 2002

SYDNEY

THE COURT ORDERS THAT:

            (i)         the application be dismissed.

            (ii)        the applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     Before the Court is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) of 4 January 2002 which affirmed the decision of a delegate of the Minister refusing to grant the applicant a protection (Class XA) visa.  The application to this Court was made after 2 October 2001 and accordingly the application is one made under s 39B of the Judiciary Act 1903 (Cth) in respect of which the Court would have jurisdiction, but subject to s 474(2) of the Migration Act 1958 (Cth) (“the Act”) which provides that the decision of the Tribunal is a “privative clause decision” and the consequences that the Act prescribes where a decision of the Tribunal is such a privative clause decision. 

2                     The applicant is a minor.  She was not legally represented.  For the purpose of these proceedings her mother was appointed as her next friend and appeared with the child’s father and with he aid of an interpreter at the hearing.

Background

3                     The applicant’s mother (“the mother”) is an Indonesian citizen of what the Tribunal referred to as “purported Chinese ethnicity”.  The applicant’s father (“the father”) is a citizen of the Peoples Republic of China.  They arrived in Australia within a month of each other in November and December 1996 and both the mother and the father applied for protection visas.  The applications were unsuccessful. 

4                     The mother and father have been living together in a de facto relationship for more than four years. The applicant was born to them in August 1999 and an application for a protection (Class XA) visa was lodged on her behalf in February 2000.  The application was refused and an application was made to the Tribunal for review of that decision.  That application was likewise unsuccessful.  Accordingly judicial review is sought of the Tribunal’s decision.

5                     The case for the Applicant before the Tribunal was that she had a well-founded fear of persecution on a ground stipulated in Article 1(A)(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967.  The Convention and the Protocol are compendiously here referred to as “the Convention”.  It is a criterion for the granting of a protection visa that the applicant for the visa be a person towards whom Australia has protection obligations under the Convention.  Australia will have such protection obligations if the person falls within the definition of “refugee” in Article 1(A)(2) of the Convention.

6                     It was claimed that the applicant feared persecution on three grounds.

1.    That the applicant feared persecution because she was stateless.  In particular it was said that the applicant would be unable to obtain Chinese nationality, that her birth involved breach of the one child policy in that country and that because the father was still married to a woman in China and had a child with her, any marriage between the father and the mother would involve bigamy.  This was said to involve the consequence also that the child would not be accepted in Indonesia, that being an Islamic country and would be unable to obtain Indonesian citizenship.

2.      It was said that the applicant would suffer persecution on political grounds.  This was said to arise because Indonesia was an Islamic country and it was forbidden for a couple to live together unmarried.

3.      It was said that the applicant would suffer persecution because of her race.

7                     The Tribunal rejected the claim that the applicant was stateless.  It did so because under the law of Indonesia nationality follows the nationality of the father.  It followed from that, and also from the Chinese law that any person born abroad one of whose parents was Chinese had Chinese nationality, that the applicant was a Chinese national.

8                     The second aspect of the applicant’s case before the Tribunal turned on a claim that the father had a child in China from his Chinese wife.  The Tribunal said it was not satisfied that the father had a child in China.  This being the case the one-child policy could not affect the applicant. 

9                     The Tribunal’s explanation for not being satisfied that the father had a child in China was as follows:

“I accept that the … father was married in Shanghai in 1991 … However, in spite of being asked several times to produce evidence to substantiate his claim that he has a child living with this lawful wife in the PRC, he has not done so.  Neither has he given any reasonable explanation as to why he has been unable to provide such evidence, merely telling the Tribunal that the evidence was ‘kept by bureaucrats’.  Given that the Applicant’s father claims to have been in touch with his lawful wife since he departed the PRC, I do not consider it unreasonable to expect that he would have been able to produce some evidence of the existence of a child of his living in the PRC.  In the absence of such evidence, I am not satisfied that the Applicant’s father has a child living in the PRC.

10                  The Tribunal then expressed the view that even if it were wrong on the question of whether the father did have a child in China there was a real possibility that the father could obtain a divorce in China, with or without the consent of the wife.  And even if he did not divorce the mother and father could live together without marrying and would not then commit bigamy.  Finally the Tribunal said that once there was a divorce the one child policy would have no application, because the husband and wife would not have then more than one child.  (I might interpolate here that in the period from the time of the Tribunal’s decision until the hearing of the present application the mother has again given birth to a child.  This however can have no bearing on the correctness of the Tribunal’s decision, since the birth occurred after the Tribunal had handed down its decision.)  The Tribunal added that if the mother did face difficulties in obtaining residence in China, that would not be persecution but rather would arise from the operation of the Chinese migration law and would not be convention related.

11                  It seems that the father told the Tribunal that he had been told by the Consulate of the People’s Republic of China in Sydney that the applicant could not become a Chinese citizen because she was not born in China.  On this matter the Tribunal said:

“However, in the absence of any evidence that either the Applicant’s father visited the Consulate twelve months after the birth of his daughter, or of the purported advice received, I am not satisfied that the Applicant’s father has, to date, taken any real or meaningful steps to either assert the Applicant’s PRC citizenship rights or, by divorcing his lawful wife in the PRC, to provide a certain and non-discriminatory environment in which the Applicant could safely live in the PRC.  However, I am satisfied that the Applicant’s father can and will take the requisite steps and that there is therefore not a real chance that the Applicant will suffer persecution for a Convention-related reason if she lives with her father in her country of nationality.”

12                  The Tribunal therefore said that it was not satisfied that there was a real chance that the applicant would suffer persecution if she were to live with her father in China, that being her country of nationality.

13                  The question of persecution on the ground of “race” does not on its face seem to have received any discussion at all by the Tribunal, neither does the Tribunal in its reasons directly address persecution on political grounds.

14                  Before me the applicant’s father in particular was emotional.  He sought the Court’s assistance, as did the mother, on humanitarian grounds on the basis that the consequence of return to China in the light of the one child policy would be death to the child born since the Tribunal’s decision.  Even if this is the case it provides no ground upon which the Court can intervene.  In particular the Court has no power to require the Minister to grant a visa on humanitarian grounds.  Whether the Minister should do that is a matter for him, not the Court, and particularly where the matter before the Court is judicial review of a decision of the Tribunal arrived at without the need to consider what the situation would be if the mother gave birth to another child.

15                  The Minister submitted that the Court had no jurisdiction to grant relief under s 39B of the Judiciary Act because the Tribunal’s decision was a privative clause decision and accordingly in a case where none of the matters referred to in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 were satisfied, the Court should dismiss the application.  It was said that this was required by the decision of a full Court of this Court comprising five Judges of the Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228.  Applications for Leave to appeal to the High Court have been lodged against the decisions in at least three of the five cases which are the subject of the judgments reported under the name NAAV, but those applications have not yet been heard.

16                  In the particular circumstances of this case if I was of the view that the applicant did have a ground for relief under s 39B of the Judiciary Act I would defer decision until the applications for leave were determined or if determined in favour of the applicants until the appeals were decided.  There would be considerable hardship to the family if the applicant were removed from Australia in circumstances where the jurisdiction of the Court to determine cases is uncertain.  This would particularly be so where the full Court was divided on the principles to be applied and where there was no real ratio of the decision in NAAV. I say this without any disrespect for the decisions of the full Court in NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 and NAGT of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 319 which, if they were to stand, would clearly require that I dismiss the present application.

17                  I think that in these circumstances I should consider for myself whether there is any ground for relief under s 39B of the Judiciary Act.

18                  I might say that each of the two passages from the reasons for decision of the Tribunal which I have set out cause me disquiet.  Both can be read as suggesting that the oral evidence of the father was simply not “evidence” either of the birth of a child in China or of attending the Chinese Consulate and receiving advice there.  The Tribunal does not appear to have had any particular reason for disbelieving the applicant, particularly on the subject on the birth of a child to his Chinese wife, yet the Tribunal requested corroboration.  It is simply wrong in law to treat oral evidence as not being evidence and written or documentary evidence as the only evidence which can be relied upon.

19                  I am conscious of the need not to scrutinise reasons of Tribunals with “an eye attuned to error”.  It may perhaps be the case that the Tribunal having listened to the evidence of the father did not believe him and for that reason required corroboration.  If that was the case the Tribunal should have said so.  As it is the Tribunal’s comments on these matters leave much to be desired.  Indeed, if either of the two matters in question were really significant to the decision I would be inclined to the view that the Tribunal had fallen into legal error and had not exercised in any real way its jurisdiction.

20                  However, in the case of the matter involving the child in China the Tribunal did address the question of what the case would be if, contrary to its view, there had been a child in China and still concluded that there was no real chance that the applicant would suffer serious discrimination that would amount to persecution.  In other words, such error as the Tribunal made would not have affected the outcome of the case.  Likewise, the question whether or not the applicant did obtain advice from the Chinese Consulate was not really an issue in the case.  Whether or not the father had taken any real or meaningful steps to assert citizenship rights was not really relevant to the fact that there was evidence upon which the Tribunal could find that the child was entitled to citizenship in China.

21                  I have carefully read the decision of the Tribunal and subject to one matter I can not discern any ground upon which the Court could grant relief under s 39B of the Judiciary Act even if the Court did have jurisdiction under that Act to grant relief.  The one matter which does concern me is that the Tribunal at the outset of the reasons notes that in a submission to the Minister dated 14 March 2000 the father on behalf of the applicant had claimed that the applicant feared persecution because of her race and on political grounds.  Yet nowhere in its reasons does the Tribunal in any way appear to consider the question.  If there was a letter from the father to the Minister it has not been reproduced in the material before the Court.  However, there is in that material a letter of the same date which purports to be written by the applicant herself, but which no doubt was written either by the mother or the father and I would infer that this is the letter which the Tribunal refers to as written by the father.  That letter deals with the second and third claims as follows:

“          I fear that I will suffer prosecution due to political reasons as soon as I lose the Australian protection.

Because I am a girl, I should stay with my mother.  But Indonesia is a Islamic country where most of the residents are Muslims.  They believe in the Klan [sic] and regard it as the guide for their law and social conducts.  A couple living together or having a baby without getting married first is forbidden.  As a non-Muslin [sic] believer, if I go back with my mother to Indonesia and lose the protection from the Australian government, I will be in an extremely miserable situation: no dwelling place, no job, no income, no food, no medical care and no help.  I may even face the danger of being killed by some fanatic Muslims. I feel deep fear at this.

…

It is known that the anti-Chinese riot has been going on for a long time.  Whenever there is a political unease or economic downturn, Chinese are the first to be attacked.  In recent years it has become race slaughter.  They kill Chinese, burn Chinese people’s shops, rape Chinese women, rob Chinese people’s property, drive Chinese people away from their homes who have to escape into overseas countries.  Even the government military is involved in the planned and organized slaughtering of Chinese people.  As a one hundred Chinese child, going to Indonesia without the protection of the Australian government is equivalent to sending a sheep into the mouth of a tiger.  The danger of being prosecution [sic] is obvious.  I feel deep fear at this.”

22                  It will thus be noted that both clauses related to what might happen should the applicant be sent to Indonesia. 

23                  The Tribunal however dealt with what it concluded might happen if the applicant were returned to Indonesia in its reasons as follows:

“As I am satisfied that the Applicant is, by birthright, a citizen of the PRC, in the light of he [sic] country information referred to above, I accept that the Applicant is unlikely to be able to obtain Indonesian citizenship and this could create difficulties for her and her mother, although I have no evidence before me which satisfies me that such difficulties would be sufficiently serious to amount to persecution.  Moreover, as I am satisfied that the Applicant is a citizen of the PRC and could safely reside in that country with both of her parents …I do not consider it is necessary for me to further consider the Applicant’s claim by reference to Indonesia.”

24                  I would add that the duty of the Tribunal in any case is to consider the issue of persecution by reference to the country of nationality.  Since that was China, it could not properly have decided the issue of whether the applicant had a well-founded fear of persecution by reference to Indonesia.

25                  Since the claim of persecution on race was only in connection with Indonesia it can thus be said that the Tribunal did deal with the claim in the passage I have last set out, so that there was not, as there appeared to be, a constructive failure to exercise its jurisdiction by failing to address the applicant’s claims.

26                  It follows therefore that the applicant has shown no entitlement to relief under s 39B of the Judiciary Act with the consequence that the application must be dismissed with costs.

Associate:

Dated:              29 November 2002