FEDERAL COURT OF AUSTRALIA

SZBPQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 568

MIGRATION – Appeal from decision of Refugee Review Tribunal – application on behalf of minor by his next friend for protection visa – application refused – place of the Convention on the Rights of the Child in determining the application –  membership of a particular social group – one child policy of People’s Republic of China – application of Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 – finding of fact by Refugee Review Tribunal that the financial burden facing the appellant’s parents in order to have him registered did not amount to persecution – whether Refugee Review Tribunal incorrectly focused on the situation of the appellant’s parents – appeal dismissed

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 36(2), 65(1)(a), 65(1)(b), 91R, 189, 196, 420(2)(b)

Australian Citizenship Act 1948 (Cth) s 10(2)

Convention on the Rights of the Child 20 November 1989 1577 UNTS 3 (entered into force 2 September 1990)

Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs  (2003) 216 CLR 473 cited

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 cited

Koroitamana v Commonwealth of Australia [2005] FCAFC 61 cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273 cited

SZBQJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 143 applied

Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 1160 cited

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 363 cited

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 cited

SZBPQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1988 OF 2004

HELY J

6 MAY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of Raphael FM delivered on 22 December 2004.  By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined by a single judge.

2                     His Honour’s decision dealt with two discrete questions.  The first question was whether a decision of the Refugee Review Tribunal (‘the RRT’) on 29 September 2003 affirming the decision of the Minister’s delegate not to grant the appellant a protection visa was affected by jurisdictional error, and liable to be quashed on that account.  His Honour answered that question in the negative.

3                     The second question was whether the appellant, having been born in Australia, is beyond the reach of the Migration Act 1958 (Cth) (‘the Act’).  It was argued before the Federal Magistrate that the appellant, by virtue of his Australian birth, is not an alien, and that s 10(2) of the Australian Citizenship Act 1948 (Cth) (‘the Australian Citizenship Act’), and ss 189 and 196 of the Act insofar as they were relied upon against the appellant, are beyond the power of the Commonwealth Parliament.  His Honour also determined this question adversely to the appellant.

4                     When this matter was before the Federal Magistrate, the appellant and his family were in immigration detention.  The relief sought included habeas corpus upon the basis that the appellant’s detention was unlawful as he was not an alien – hence the assertion of the invalidity of ss 189 and 196 of the Act.

5                     Two things have changed since the Federal Magistrate gave his decision.  First, I have been informed that the appellant and his family were released from immigration detention on the evening of 6 April 2005, hence the application for habeas corpus is no longer pressed.  Second, on 15 April 2005 the Full Court handed down its decision in Koroitamana v Commonwealth of Australia [2005] FCAFC 61.  Counsel for the appellant submitted, in order to preserve his client’s rights, that the Full Court’s decision is wrong.  However, counsel correctly accepted that I am bound by that decision with the result that the appellant’s claim for a declaration that he is not an alien and for a declaration of invalidity of s 10(2) of the Australian Citizenship Act in its application to the appellant must fail.  Thus, the only live issue on the appeal is whether the RRT’s decision was vitiated by jurisdictional error.  I note in passing that had the appellant succeeded in his claim that he is not an alien it would follow that he is also not a ‘non-citizen’ within the meaning of the Act, and he would not satisfy one of the criteria specified in s 36(2) of the Act for the grant of a protection visa.  But of course, if the appellant were an Australian citizen, he would not be liable to deportation.

Background

6                     The appellant is a male child born on 20 September 2002 in Australia.  His father is a national of the People’s Republic of China (‘the PRC’) who arrived in Australia on 21 November 1996.  His mother is an Indonesian national who arrived in Australia on 21 December 1996.  The appellant has an older sister born in Australia on 18 August 1999 and a younger sister born in Australia in April 2004.  His parents are not married to each other.  The appellant’s father has a wife in China, from whom he has not been divorced.

The RRT’s findings

7                     The RRT found that the appellant’s father could return to China.  The RRT did not accept that the appellant’s mother would be precluded from going to China with the appellant, or that she would be unable to stay with the appellant in some sort of long-stay arrangement in that country.  However, the RRT did accept that the appellant is the second child of his father (a ‘black child’) and that he may be susceptible to the ‘one-child’ policy of the PRC as a consequence.

8                     There is a certain lack of clarity in the RRT’s findings about what difficulties a second child may face as a result of the ‘one-child’ policy, and as to whether, and in what way, those difficulties may be overcome.  However, this is not a matter on which counsel for the appellant relied as vitiating the RRT’s decision.  Apparently, registration of a child is required if the child is to have access to medical and education services provided by the State.  The payment of what the RRT described as ‘some form of penalty’ may allow the registration of a second child and thus provide access to social welfare services.  The imposition of this penalty appears to differ from place to place in China, and country information suggested to the RRT that there may be ‘even more flexibility in approach’ in Shanghai, that being the place to which the appellant’s father claimed that he would be required to return.

9                     The RRT made the following specific findings:

‘88.      All this evidence tends to indicate to me that notwithstanding that the applicant is the illegitimate second child of the father, that the mother is not a PRC national and the applicant was born overseas, the applicant can obtain household registration and have access to such of the basic social welfare services provided by the local government of Shanghai.  Whether the applicant’s father is required to pay a penalty or not cannot be determined from the country information alone, just that he may be liable to such a payment.  In any case, if the father does not pay any penalty, the applicant may still have access to education, medical and other services by payment for them.

…

92.              In light of the evidence and findings, I accept that, while the applicant’s father may be required to pay some form of penalty to have the applicant registered as the second child of the family, this would not constitute significant economic hardship or a denial of access to basic services such as to threaten the applicant’s capacity to subsist.  While I accept that the imposition of a penalty may constitute discrimination, it would not be such serious harm to the applicant so as to constitute persecution.  Accordingly, I am unable to accept the applicant will face a real chance of persecution by reason of being a illegitimate “black child” born outside the “one-child” policy in China.

Summary

93.              … I am satisfied that if the applicant returns to China with his father, mother and sister, he will be classed as the second child of the family and may be subject to penalties arising from the “one-child” policy … I am satisfied that there may be some form of a sanction or penalty imposed on the applicant’s father under the “one-child” policy for the second child of the family, that is, for the applicant.  However, I am satisfied that the applicant can obtain house hold registration and access to such of the basic social welfare services provided by the local government with the payment of such sanction or penalty, if imposed.  I am satisfied that the applicant’s father can obtain employment and be able to deal with any such sanction or penalty without detriment to the applicant sufficient to constitute persecution.’

The decision of the Federal Magistrate

10                  The Federal Magistrate made the following findings in relation to the matters which remain in issue:

-                     there is nothing in the court book which contains any assertion concerning the Convention on the Rights of the Child (‘the CROC’);

-                     the only matter argued before him as a matter within the CROC was whether the refusal of a protection visa would result in the separation of the appellant from his mother.  The RRT found that there would be no such separation, hence whether or not the CROC was complied with is irrelevant;

-                     the RRT’s findings were consistent with the decision of the High Court in Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293.  In that case the majority said at 303:

‘Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education involves such a significant departure from the standards of the civilised world as to constitute persecution.’

Here, there would be no such denial because the appellant’s father was both willing and able either to pay ‘the capitation charge’ or pay for private education and medicine.

Grounds of appeal

11                  The ‘live’ grounds of appeal are as follows:

‘1.        The learned Magistrate erred in holding that the Refugee Review Tribunal had complied with s 420 of the Migration Act 1958 (Cth), acting in accordance with the substantial justice and merits of the case, in particular having regard to the Convention on the Rights of the Child.

2.                  The learned Magistrate wrongly held that the decision of the Refugee Review Tribunal was in accordance with the decision of the High Court in Chen Shi Hai (2000) CLR 293.

3.         The learned Magistrate wrongly held that the Refugee Review Tribunal had considered correctly the position of the applicant as opposed to his father.’

12                  Grounds 4, 5 and 6 relate to the ‘alien’ issue which, as I have said, was not pursued before me.

Ground 1: Section 420 and the CROC

13                  In the appellant’s submission, in determining the application for a protection visa, the RRT should prefer an interpretation of the Act consistent with the CROC, although counsel did not explain what that interpretation was, or how the adoption of it would have affected the outcome of the protection visa application.  The appellant also submitted that the RRT did not act in the best interests of the appellant as a primary consideration, contrary to the requirements of Article 3 of the CROC.  Reliance was also placed upon other articles of the CROC, such as Article 24, which obliges States Parties to recognise the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health; Article 26, which obliges State Parties to recognise the right of a child to benefit from social security; and Article 28, which obliges States Parties to recognise the right of the child to education.

14                  Section 420(2)(b) of the Act provides that the RRT must act according to substantial justice and the merits of the case.  The appellant submits that s 420 is a mandatory provision that required the RRT to prefer an interpretation consistent with the CROC in determining the appellant’s application for a protection visa.  In the appellant’s submission the ratification of the CROC gives rise to a legitimate expectation that the RRT will act in conformity with the CROC, and treat the best interests of the appellant as a primary consideration.

15                  It is neither necessary nor appropriate to call in aid the provisions of s 420 of the Act in support of the appellant’s contention that the RRT was guilty of jurisdictional error in failing to treat the best interests of the child as a primary consideration.  It is not appropriate to proceed in accordance with the appellant’s submission because s 420 of the Act is ‘facultative, not restrictive’ in its intent: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49].  Compliance with its provisions is not a precondition to lawful decision-making.

16                  Moreover, it is not necessary to proceed via s 420 of the Act.  If the appellant had a legitimate expectation that the RRT would give effect to the provisions of the CROC in determining his application for a protection visa, then a failure to do so without providing the appellant with the opportunity of presenting a case that the provisions of the CROC should be implemented would result in a failure to observe the requirements of procedural fairness: Minister for Immigration & Multicultural Affairs v Teoh (1995) 183 CLR 273.  Failure to observe those requirements involves jurisdictional error.

17                  However, the appellant’s reliance upon the CROC, and Teoh’s case, is misplaced.  That is because the RRT’s task was to determine whether it was satisfied that the appellant was a person to whom Australia had ‘protection obligations’ under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act.  If the RRT was so satisfied, then it was required to grant the visa: s 65(1)(a) of the Act.  If the RRT was not so satisfied, then it was required to refuse to grant the visa: s 65(1)(b) of the Act.  No element of discretion is involved in which the interests of the appellant as a child could be brought to bear as a ‘primary consideration’.  Hence, there was no scope for the application of principles derived from the reasoning of the majority in Teoh’s case, and no error on the part of the RRT in failing to take into account the provisions of the CROC in coming to its decision.

18                  The RRT was bound to apply the provisions of the Act (and in particular s 91R) and the Refugees Convention, rather than the provisions of the CROC.  The gravamen of the appellant’s complaint under ground 1 is that the RRT failed to give effect to what are said to be rights accruing to the child under the CROC.  It was no part of the RRT’s function to do so.

19                  Some support for this conclusion flows from the judgment of Madgwick J in Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 1160.  In that case his Honour rejected a contention that Teoh’s case and Australia’s obligations under the CROC mandated a reading of the relevant Migration Regulations such that they would be inapplicable to an applicant where their application would be adverse to the best interests of her children.

Ground 2: Chen Shi Hai

20                  The appellant submits that given the decision of the High Court in Chen Shi Hai, the RRT ought to have held that a denial of access to services, education and public sector employment, in the absence of payment of penalties, amounts to persecution.  The submission is that in a country where children generally have access to these services, to single out second and subsequent children and to deny them the same access is persecution.

21                  In Chen Shi Hai the RRT had determined that ‘black children’ were a particular social group for the purposes of the Convention definition of a refugee.  The majority of the High Court saw no error in that conclusion.  The RRT had also found that, if returned to China, the appellant (an infant) was likely to face discrimination amounting to persecution.  The issue in the case was whether the RRT was then entitled to conclude that such persecution was not for a Convention reason, on the basis that the discrimination which the child faced did not flow from any ‘enmity’ or ‘malignity’ on the part of the Chinese authorities; because the likely persecution flowed from his parents’ contravention of the policy; and because the immediate cause of his persecution was his parents’ inability to pay the penalties flowing from that contravention.  The majority rejected each of these lines of reasoning, holding (in effect) that none of them denied the existence of a direct causal link between the appellant’s status as a “black child” and the adverse treatment he would receive.

22                  In the present case, the findings of the RRT were different, as [92] of its reasons (quoted in [9] above) makes plain.  Here the RRT found that the appellant would be able to be registered and qualify for education, health and welfare services, at least if his parents paid a financial penalty.  His father had good employment prospects and would be able to pay such a penalty.  I accept the respondent’s submission that the RRT has found in substance, that the harm which the appellant faces as a result of his ‘black child’ status is the possible imposition of a financial penalty on his parents – a form of harm which, given their ability to pay the penalty, is not sufficiently serious to constitute persecution.

23                  The issue before the RRT was a factual one. The RRT came to the conclusion as a matter of fact (as did the RRT in VDAU v Minister for Immigration & Multicultural Affairs [2004] FCAFC 32) that the appellant would not be persecuted if returned to China, as his father was capable of putting himself in a financial position where he could pay any penalty which might be imposed in order to secure the registration of the appellant as a second child.

24                  This did not involve any reasoning inconsistent with the authority of Chen Shi Hai, as Raphael FM correctly held.

Ground 3: the position of the appellant himself

25                  The appellant submits that while most parents will do their best to overcome the effects of the one-child policy, it was the situation of the appellant to which the RRT was required to direct itself, rather than that of his parents.  In the appellant’s submission, both the RRT and the Federal Magistrate addressed the wrong question.  The right question is whether the appellant would face discrimination on his return to China, rather than whether his father would be able to overcome the effect of that discrimination.  Reliance was placed on the decision of the High Court in Appellant S395 of 2002 v Minister for Immigration & Multicultural Affairs  (2003) 216 CLR 473 where it was held that the capacity of homosexual men to protect themselves from harm in their country of origin by acting discreetly did not mean that they ceased to be persecuted.

26                  On the other hand, the respondent submits that the RRT did address the question of whether the appellant would suffer harm in consequence of his status as a ‘black child’.  Whilst it may be correct to observe that it did so under an assumption that the appellant’s parents would be prepared to pay, if they could, any financial penalties required to avoid the discrimination the appellant might otherwise suffer, that assumption was a reasonable one, as the case put to the RRT by the appellant’s father was not that he was unwilling to pay any penalties but that he would be unable to pay – a proposition which the RRT did not accept.  In the respondent’s submission the RRT did not fail to deal with the correct issue – namely, the nature and seriousness of the harm which the appellant would face in China as a consequence of being a ‘black child’.

27                  It is clear that when an infant makes his or her own application for a protection visa, he or she is entitled to have their own position assessed against the statutory criteria, and is not ‘for all purposes subsumed to the identity’ of his or her parents: Chen Shi Hai at [78] per Kirby J.  In Chen Shi Hai the RRT’s finding was that the infant appellant would suffer serious disadvantage amounting to persecution whereas that is not the case here.

28                  There is no question, as there was in Appellant S395 of 2002, of whether the appellant could or should modify the behaviour which generated the fear of persecution in the first place.  In this case, the RRT accepted that the appellant is a ‘black child’ but assessed whether there is a real chance of serious harm accruing to him on that account having regard to his own particular circumstances, including his membership of a family unit in which the father was willing and, on the RRT’s findings, likely to be able to pay any penalties imposed as the price of his registration.  Had the RRT found that the appellant’s parents were either unwilling or unable to pay any penalties, then, as the Federal Magistrate correctly recognised, the position may well have been different.

29                  SZBQJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 143 is a case in which the facts are similar to the present.  In that case, a similar argument was put that the RRT erred in focusing on the position of the appellant’s parents, and what they might do to avoid the effect of persecution, rather than on what was said to be the real issue, namely the position of the infant appellant.  Tamberlin J rejected the argument on the basis that it was open to the RRT to find that the discrimination to which the appellant was subjected would not ‘as a matter of fact and degree’ amount to persecution having regard to her parents’ financial position.  His Honour said (at [16]):

‘Clearly the courses of action open to the appellant’s parents in order to minimise the detriment to the child and the possibility of avoiding persecution are circumstances that are relevant to the position of the child if returned.  The ability of parents to avoid the effect of persecution of their children is a relevant and important matter to take into account.’

30                  I should follow the decision of Tamberlin J unless satisfied that it is clearly wrong.  I am not so satisfied.  The proposition that the position of the appellant should be considered without regard to his membership of the family unit on which he is in all other respects dependant is unpersuasive.  Whether the appellant faces a real chance of persecution by reason of his position as a ‘black child’ involves an assessment of all relevant facts, rather than of some only of those facts.  That was also the approach adopted by Weinberg J in VDAU v Minister for Immigration & Multicultural & Indigenous Affairs  [2003] FCA 363 (at first instance, see [35]); on appeal [2004] FCAFC 32.

31                  The appeal should be dismissed with costs.

Associate:

Dated:              6 May 2005