SZDNI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 253

FEDERAL COURT OF AUSTRALIA

SZDNI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 253 MIGRATION – protection visa – applicant claimed persecution on basis of being born in Australia in breach of Chinese one child policy – whether Tribunal erred in finding applicant would not form part of "black child" social group on return to China – finding based on one sentence in one piece of independent country evidence – inference not reasonably open – constructive failure to exercise jurisdiction MIGRATION – whether Tribunal erred in finding applicant would not suffer persecution as an unregistered child – no jurisdictional error disclosed

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) ss 36(2), 65

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 cited Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 cited R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 cited Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 cited Ex parte Hepburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 cited "VAS" v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 cited Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited SZDNI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 214 of 2004 FINN J ADELAIDE 22 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 214 OF 2004

BETWEEN: SZDNI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 22 MARCH 2005

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 214 OF 2004

BETWEEN: SZDNI

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 22 MARCH 2005

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 China's "one child" policy again provides the setting for this application under s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal ("the Tribunal") adverse to the visa applicant. 2 The applicant was born in Sydney on 29 October 2001. Her parents, who are nationals of the People's Republic of China, and her brother (born in 1989) arrived in Australia on 23 September 2000. Prior to the applicant's birth her parents and brother applied unsuccessfully for protection visas. Her own claim for such a visa was made on 10 April 2002. That claim was based on the persecution it was said she would suffer if forced to reside in China, she being a "black child" born in contravention of China's Family Planning Laws and unable therefore to be registered in China.

THE SETTING AND THE TRIBUNAL'S DECISION 3 After having their own son in China in 1989, the applicant's parents then had their first daughter while still residing in China. This child still resides in China with relatives; she is unregistered with the Chinese authorities; and it is claimed by the applicant's parents that she has already suffered persecutory discrimination in consequence in relation to access to kindergarten. 4 The applicant's claims are, for present purposes, sufficiently encapsulated in the following description given by the Tribunal in its reasons: "The applicant's claims are that she will suffer discrimination and persecution in the PRC as a result of being a 'black baby'; that is, a child born in contravention of the PRC's Family Planning Laws (one-child policy) and as a result, she would not be able to be registered. She would have no entitlements. She would not even be able to obtain a job as a labourer. She would have to pay five to six times as much for medical treatment. She does not have a nationality and will not be able to obtain a passport or travel document in Australia to travel to the PRC. She will have no right to enter school and if she did, it would be after a fine or extra payment. She will not have the same working rights or opportunities to develop as do others. There will also be increased social and financial pressure which may lead to 'mental hurt and depressed mood.' The situation will be bad for her 'life, health and psychiatric well-being.' The applicant's parents' employment and financial situation will be affected and without this financial support, the applicant and her brother will not be able to grow up healthy and happy in a good environment. The applicant and her family would not have a 'safe and stable living status,' and they would live under a 'scare mood.' The family does not have the financial resources to attempt to rectify the applicant's 'black baby status' through the payment of punitive bribes and/or fines." 5 The Tribunal accepted that "black" or "unregistered" children constituted a "particular social group" for the purposes of the Refugees Convention in that they are considered to be different from other children, with different entitlements. They become "black children" because of a policy on the State's part to exclude them from registration. Nonetheless, it considered that whether a particular black child faced treatment amounting to persecution was "a separate question to be determined on a case-by-case basis". 6 The Tribunal accepted that the applicant was born in Australia without the permission of the Chinese authorities. It referred to the "Policies and Rules of Birth Control" which outlines the rules regarding family planning in Shanghai and the regime of punishment for persons who contravened the Rules. It noted that country information had commented on a reversal of attitude in the Shanghai authorities to discouraging second children and it accepted that the Rules "are no longer enforced rigorously". 7 The Tribunal went on: "More relevantly, the evidence from DFAT ["the Department of Foreign Affairs and Trade"] is that DFAT is not aware of any difficulties arising for people returning from overseas with more than one child. That DFAT evidence (CX46100) continues, 'Families with more than one child (for whatever reason) are common in China. The objective of all the policies and regulations is to deter, to the extent possible, a high birthrate. Once births have occurred, our impression is that pragmatism would take precedence.' The applicant's mother did not directly contest this information at the hearing, although it was contested in the later submission received on 22 December 2003 and elsewhere. From its context, this paragraph from CX46100 refers to the family and is not exclusively referable to the parents returning from overseas. It states that DFAT is not aware of any difficulties arising for those people returning from overseas. I accept this evidence. Accordingly, I find that the applicant will not be discriminated against or persecuted upon her return to the PRC: emphasis added. I also find that this DFAT information applies regardless of the applicant having a 'secret' sister living in the PRC. This is because the DFAT material states that a pragmatic approach is taken by the PRC authorities to children as such. Further, it does not attempt to make any distinction between the number of children involved. It is therefore not limited to the second child as it refers to 'more than one child'. As a result, it applies equally to the third child, as is the situation in this case, and subsequent children. The DFAT information is limited to people returning from overseas. As a result, the applicant (third child) is in a different position to the secret child (second child) who was born in the PRC and has remained in the PRC. It is therefore not relevant to consider the secret child's experiences or circumstances as a benchmark against which the applicant may be considered, if she were to return to the PRC. As to whether the applicant can obtain a passport to travel to the PRC, I accept the independent evidence provided by Article 4 of the 'Nationality Law of the People's Republic of China' (CX4489) and the Canadian IRB information (IRB 1993 – CHN14970) that the applicant would have Chinese nationality by virtue of her parents' nationality. I prefer this evidence to that provided by the applicant in the submission received from her on 22 December 2003 as that evidence is based on incomplete enquiries and conjecture. In this regard it is relevant to note that I have read the decision in RRT NO2/44136 referred to me by the applicant and I am satisfied that it does not assist the applicant's claims. I find that there is no impediment to the applicant receiving a passport or a Certificate of Identity from DFAT to travel to China. In this regard I rely on the independent evidence (DFAT Report 00221) that applying for refugee status abroad does not expose the applicant or the applicant's parents to persecution on return, it being dependent on whether the applicant's parents engaged in illegal activities on return. Further, the same independent evidence indicates that the PRC Consulate may issue travel permits to those who do not fulfil the requirements for issue of a passport and also that DFAT may issue a Certificate of Identity to the applicant if the PRC Consular Representative refuses to issue a passport. I prefer this independent evidence to the applicant's submissions and find that the applicant's parents would not be able to provide the necessary documents to obtain a passport for the applicant, without suffering the adverse attention of the PRC authorities: emphasis added. As a result of the independent evidence, I find that the applicant daughter would not be considered a 'black baby' and would not form part of that particular social group. I find that there would not be any impediment to her being registered, being recognized as a national of the PRC, or to her obtaining a passport or travel document. I find that the applicant would not suffer any of her claimed potential discrimination. I further find that the applicant mother's present pregnancy does not affect my decision because the pregnancy does not affect the applicant's position as a child in a family returning from overseas, as discussed above": emphasis added. 8 Notwithstanding the above the Tribunal went on: "However, if I am wrong about the aspect of CS 46100 about unregistered children returning to the PRC, then nevertheless the independent evidence relating to children whose births are not officially registered (i.e. irrespective of whether they are returning to the PRC) is that DFAT states the children are unlikely to suffer ostracism or ill-treatment (CS46855) and that it is not sure whether there is a meaningful distinction between those who are registered and those who are not in relation to education, health care and employment (other than possibly public sector employment)(CS46100). The possible exclusion of the applicant from public sector employment does not exclude her from private employment or employment in rural areas (see CX46100). In this regard, I accept the independent evidence (CS 81256) that the non-state sector continues to prosper at the expense of state-owned enterprises and that the non-state sector in 2002 accounted for more than 70 per cent of China's gross industrial output. I prefer this independent evidence to the applicant's recent unsourced submissions, to the applicant mother's oral evidence and the further written evidence submitted on behalf of the applicant. Further, I am not satisfied that if the applicant were to be excluded from public sector employment this would amount to a denial of her capacity to earn a livelihood of any kind such that it would threaten her capacity to subsist, as required by 91R(2). As such, I find that it does not amount to persecution." 9 The Tribunal, in consequence, was not satisfied that there was a real chance in the future of the applicant being targeted for persecution for reasons of her membership of a particular social group.

THE PRESENT APPLICATION 10 As it has evolved, the challenge made to the Tribunal's decision has raised two issues. The first is whether the Tribunal actually considered the claim made by the applicant, the challenge here being to its finding that she "would not be considered a 'black baby' and would not form part of that particular social group". The second challenge addresses the alternative basis for the Tribunal's decision which proceeds on the premise that she could be a black baby. The criticism here is that the Tribunal's findings did not address the integers of her claim. 11 It is fair to say that the Tribunal's reasoning is by no means easy to unravel. It correctly identified that there were two questions: (i) was there a particular social group of which the applicant was a member (i.e. black or unregistered children)? and (ii) would the applicant be persecuted for reasons of membership of that group? 12 The manner in which the Tribunal dealt with the first of these questions would appear to be premised on the evidence of DFAT that it was "unaware of any difficulties arising for people returning from overseas with more than one child". The Tribunal accepted that evidence and found in consequence that (i) the applicant would not be persecuted on her return to the PRC; (ii) she was in a different position from a person born in China and who has remained there (i.e. her sister); (iii) she would be able to obtain either a Chinese passport or travel permit, or else a Certificate of Identity from DFAT, to travel to China; (iv) she would not be considered a black baby; (v) there would be no impediment to her being registered, being recognised as a national, or obtaining a passport; and (vi) she would not suffer any potential discrimination. 13 All of this is based upon one sentence in one DFAT document, CX46100. 14 This was a short document prepared apparently to provide responses to a number of general questions concerning black children. The sole question concerning children born overseas was: "If returning to China today, would black children born overseas experience the same status and treatment as black children born in China? Will it make any difference whether they are born to Chinese nationals who have gone abroad to study, or to Chinese nationals who have left China illegally and/or are failed asylum seekers?" The only answer referring to overseas-born black children, though clearly not responsive to the question asked, was:

"We are unaware of any difficulties arising for people returning from overseas with more than one child. Families with more than one child (for whatever reason) are common in China. The objective of all the policies and regulations is to deter, to the extent possible, a high birthrate. Once births have occurred, our impression is that pragmatism would take precedence." 15 It is difficult to determine the significance that the Tribunal attributed to the various findings I listed above. Comments made earlier in the Tribunal's reasons could be taken as suggesting it accepted that unregistered or black children were a particular social group, that the applicant was an unregistered child and that the question to be addressed was whether she had a real chance of being persecuted as such a child. 16 The findings themselves, though, seem ultimately to be directed to the anterior question whether the applicant was a member of the social group "black children". This, in my view, is how they ought be read. So read, the Tribunal's conclusion that she would not be considered to be such a member is founded only on the answer I have quoted above. It cannot be derived otherwise from the evidence and particularly not from the fact that the applicant may be able to obtain appropriate documentation to travel to China. 17 The DFAT answer cannot do the work sought of it. The particular social group in question – that of black children – was defined by the Tribunal by reference to the lack of registration of the birth of such children and the reason for it (i.e. non-compliance with the one child policy). Nothing in the DFAT answer addresses the question of registration at all. To rely upon it for that purpose is not to draw an inference that is reasonably open from a finding that was itself inferred from DFAT's not being aware of any difficulties for returning persons: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; rather, it is to engage in an exercise of intuition: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 328 at [135]; or of imagining. 18 The finding that the applicant would not be considered a "black baby" was no more than an assertion devoid of a process of reasoning at all. The objection to it is not simply one of inadequacy of evidence to support a conclusion of fact, or of illogicality. The finding related to what in this matter was one of the pre-conditions (or constituent elements in the "state of affairs": Re Minister for Immigration & Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 198 ALR 59 at [36]) upon which depended the Minister's duty to grant a protection visa (i.e. satisfaction that the applicant was a member of a "particular social group" for Convention purposes): s 36(2) and s 65 of the Migration Act 1958 (Cth). And it was devoid of foundation: cf R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 118. Accordingly the Tribunal could not have attained its satisfaction reasonably in relying upon there being no impediment to the applicant being registered and hence not being a member of the particular social group: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [73]. In so relying upon it, the Tribunal constructively left the jurisdiction entrusted to it unexercised: Ex parte Hepburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420. However, this is not sufficient of itself to invalidate the Tribunal's decision. 19 The Tribunal's own lack of certainty as to the import of CX46100 led it to consider the applicant's claim on the seeming basis that she would on returning to China be treated as an unregistered child. After noting (a) DFAT's view that children who are unregistered – and I note DFAT was referring to unregistered for whatever reason – are unlikely to suffer ostracism or ill-treatment and (b) that DFAT was not sure whether there is a meaningful distinction between registered and unregistered children in relation to education, health care and employment (other than possibly public sector employment), the Tribunal concluded it was not satisfied that the applicant's exclusion from public sector employment would amount to persecution as it would not threaten her capacity to subsist for the purposes of s 91R(2) of the Migration Act. 20 Earlier in its reasons the Tribunal had indicated that the question whether a particular black child would face treatment amounting to persecution is one "to be determined on a case-by-case basis". The above reasoning of the Tribunal on this question hardly satisfies this description. It makes only one explicit finding personal to the applicant (i.e. that relating to public sector employment). Nonetheless the Minister asks me to infer that the Tribunal made other relevant and necessary findings in consequence of its apparent adoption of DFAT's qualified views (whatever the actual significance of those views to an evaluation of the applicant's claims). 21 The DFAT views were not the only independent material before the Tribunal dealing with the consequences of non-compliance with the one child policy: there was, as the Minister concedes, conflicting evidence on this and other matters. Additionally, the two views expressed are qualified generalisations – "as far as we are aware, individuals … are unlikely"; "we are not sure that …" – and, in the case of the "ostracism/ill-treatment" view, quite unspecific to children born in contravention of the one-child policy. Yet they apparently were intended by the Tribunal to express its satisfaction that the applicant as a "not officially registered" child did not face a real chance of persecution for reasons of her membership of the black children group (other than possibly in relation to public sector employment with which the Tribunal dealt separately). 22 To say that this lacks persuasiveness is to suggest it has a cogency it lacks. Nonetheless, given the DFAT documents, I cannot say that the implicit conclusions arrived at lacked any support in the material before the Tribunal: cf "VAS" v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 at [19]. And while I consider that the Tribunal's reasoning on this matter is far from satisfying, I cannot say that the satisfaction at which it arrived and which is implicit in its reasons was not reasonably attained: Jia Legeng at [73]: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130]-[137]. Neither can I say it was irrational or illogical: Ex parte S20/2002 at [34] ff. 23 I am compelled to order that the application be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate: Dated: 22 March 2005

Counsel for the Applicant: Ms G Brown

Solicitor for the Applicant: Refugee Advocacy Service of South Australia

Counsel for the Respondent: Mr M Roder

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 14 March 2005

Date of Judgment: 22 March 2005