Huang v Minister for Immigration & Multicultural Affairs [2000] FCA 820

FEDERAL COURT OF AUSTRALIA

Huang v Minister for Immigration & Multicultural Affairs [2000] FCA 820 IMMIGRATION – Refugees – whether Tribunal erred in failing to find that applicants were members of a particular social group – whether that failure affected finding that applicants' fear of persecution was not "well-founded" Migration Act 1958 (Cth), s.36(2) Migration Legislation Amendment Act 1994 (Cth) Migration Reform Act 1992 (Cth), s.39 Migration Regulations 1994 (Cth), reg 2.08(1)

Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225, applied. Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553, considered. Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559, applied. WEI WEN HUANG & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1422 of 1999 SACKVILLE J 20 JUNE 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1422 OF 1999

BETWEEN: WEI WEN HUANG

FIRST APPLICANT

YI MIN HUANG

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 20 JUNE 2000

PLACE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicants 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

NEW SOUTH WALES DISTRICT REGISTRY N 1422 OF 1999

BETWEEN: WEI WEN HUANG

FIRST APPLICANT

YI MIN HUANG

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 20 JUNE 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT

The Proceedings 1 The applicants are citizens of the People's Republic of China ("PRC"). They are husband and wife. They arrived in Australia on 15 November 1993, and appear to have remained in this country ever since. They have twin daughters, born in the PRC in 1990. The twins have remained in that country. A third child, a son named Michael, was born to the applicants in Australia on 13 October 1995. Michael is now four and a half years old and has lived in Australia all his life. 2 The applicants seek review of a decision of the Refugee Review Tribunal ("RRT") made on 17 November 1999. The RRT affirmed a decision of the Minister's delegate made on 25 October 1994. The delegate decided that neither applicant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees (the "Convention") and, accordingly, neither was entitled to the grant of a protection visa. The RRT did not consider whether Michael, in his own right, was entitled to a protection visa. No explanation was given by the RRT for what appears to have been an extraordinary delay, exceeding five years, between the date of the delegate's decision and that given by the RRT. 3 The male applicant (to whom I refer as "the husband") lodged his application for refugee status on 14 March 1994. The application included the female applicant (to whom I refer as "the wife"). The application was lodged prior to the commencement of the Migration Legislation Amendment Act 1994 (Cth) which amended the Migration Act 1958 (Cth) ("Migration Act") and came into force on 1 September 1994. It is common ground that the effect of s 39 of the Migration Reform Act 1992 (Cth) was that, as from 1 September 1994, the applicants were to be treated as having made claims for protection visas under the Migration Act as it stood on that date. 4 Section 36(2) of the Migration Act provided that a criterion for a protection visa was that the applicant was a non-citizen in Australia to whom Australia had protection obligations under the Convention. Article 1A(2) of the Conventiondefines a refugee as any person who "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 5 The application filed in this Court named only the husband as an applicant. The husband appears not to have been legally represented at the time the application was lodged. Not surprisingly, the application gave no clear indication of the grounds of review intended to be advanced. Nor did the husband comply with a direction requiring written submissions to be filed in advance of the hearing. 6 At the hearing, the applicants were represented by Mr Benson of counsel, who was briefed after the date for written submissions had passed. Mr Benson did not apply to amend the application, except to add the wife as the second applicant. (That amendment was not opposed by Mr Jordan, who appeared for the Minister, and was duly made.) Mr Benson, however, handed up an outline of submissions at the commencement of the hearing. The grounds of review identified in the submissions were these: (i) The RRT erred in law in failing to find that the applicants were members of a "particular social group" for the purposes of the Convention, namely that section of the population of the PRC that had actively participated in the pro-democracy movement of the late 1980s. It was said that an absence of such a finding led the RRT to the erroneous conclusion that the applicants did not have a well-founded fear of persecution for a Conventionreason. (ii) The RRT had erroneously stated the test for determining whether an applicant has a "well-founded fear of being persecuted" for a Conventionreason. (iii) The RRT had erred by failing to consider or make any findings in relation to what was said to be the deemed application for a protection visa by the applicant's son, Michael. It was submitted that the effect of Migration Regulations 1994 (Cth), reg 2.08(1), was that Michael was deemed to have applied for a protection visa at the time he was born. It was therefore an error of law for the RRT simply to ignore the application deemed to have been made by Michael and the matter should be remitted to enable Michael's application to be considered on its merits. Withdrawal of the Third Argument 7 Before Mr Benson commenced his argument Mr Jordan, without objection, read an affidavit which annexed copies of applications for protection visas that had been lodged on 29 October 1999 (that is, shortly before the RRT's decision in the present case was published). The applications included one lodged on behalf of Michael. This application claims that Michael has a well-founded fear of persecution in the PRC in his own right, for several Conventionreasons. In particular, it is said that Michael, as the third child in the family and as a child born without a birth permit, would suffer harm as a "member of a social group" if he were to be returned to the PRC. 8 Michael's separate application for a protection visa was refused by a delegate of the Minister on 2 March 2000. On 6 April 2000, an application for review of the delegate's decision was lodged with the RRT on Michael's behalf. That application has not yet been determined. I was informed from the bar table that the Minister took the view that there was no impediment to the RRT considering Michael's application on its merits. 9 On 13 April 2000, shortly after the delegate's decision, the High Court delivered judgment in Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553. The Court held that so-called "black children" in the PRC (that is, broadly speaking, children born outside the parameters of the one-child policy and outside an authorised marriage) could constitute a "particular social group" for the purposes of the Convention. To the extent that those acting on Michael's behalf seek to take advantage of the decision in Chen, the RRT doubtless will consider any evidence and submissions they wish to put forward in support of any such contention. Mr Jordan indicated that the Minister had no objection to that course being followed. 10 In these circumstances, there was some discussion with and between counsel as to the practical utility of the applicants proceeding with the third argument outlined in Mr Benson's submissions. In the event, the applicants elected not to pursue the third argument. Accordingly, it is only the first and second contentions put forward on behalf of the applicants that need be considered in these proceedings.