SZFHO v Minister for Immigration & Multicultural Affairs [2006] FCA 290

FEDERAL COURT OF AUSTRALIA

SZFHO v Minister for Immigration & Multicultural Affairs [2006] FCA 290 SZFHO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS & ANOR NSD2621 OF 2005 EMMETT J 6 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD2621 OF 2005

On appeal from a magistrate of the Federal Magistrates Court of Australia

BETWEEN: SZFHO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 6 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant's litigation guardian pay the first respondent's costs of the appeal. 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 NSD2621 OF 2005

On appeal from a magistrate of the Federal Magistrates Court of Australia

BETWEEN: SZFHO

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 6 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court dismissing an application for judicial review of the decision of the second respondent, the Refugee Review Tribunal ('the Tribunal'), in which the Tribunal affirmed the decision of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), not to grant a protection visa to an infant child. 2 The appellant was born in Sydney on 28 May 2002. He appears by his father as next friend on the hearing of the appeal. The appellant's parents are both nationals of the Peoples Republic of China ('China'). The appellant's father arrived in Australia on 28 December 1996 and his mother arrived in Australia on 7 January 1998. The appellant has an older sister who was born in Sydney on 27 April 2000. The appellant's parents and his sister have apparently made unsuccessful applications for protection visas. Their applications are not presently before the Court. 3 On 8 June 2004, the appellant's parents lodged, on his behalf, an application for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 1 July 2004, a delegate of the Minister refused to grant a protection visa. On 30 July 2004, an application was made on behalf of the appellant to the Tribunal, for review of the delegate's decision. On 11 November 2004, the Tribunal affirmed the decision not to grant a protection visa. The Tribunal's reasons for that decision were published in early December 2004. 4 On 22 December 2004, a proceeding was commenced in this Court, seeking relief under s 39B of the Judiciary Act 1993 (Cth) in respect of the decision of the Tribunal. That proceeding appears to have been remitted to the Federal Magistrates Court. An amended application was filed in that Court on 1 March 2005. On 7 December 2005, the Federal Magistrates Court ordered that the application be dismissed with costs. A notice of appeal was filed on behalf of the appellant on 23 December 2005. The Court has previously ordered that the appellant's father be appointed to represent him for the purposes of the appeal. 5 The Tribunal accepted that the appellant would be regarded in China, for the purposes of its family planning laws, as a second excess child. The Tribunal accepted that, as a second excess child, sometimes referred to as a 'black child', the appellant is a member of a particular social group for the purposes of the Refugees Convention. 6 The Tribunal took note of the fact that the appellation 'black child' is derived from a term in Chinese that makes no reference to any deed or action on the part of the person so described. However, the Tribunal considered that, whether or not the appellant faces a real chance of persecution for reasons of his membership of that particular social group, is a different question. The Tribunal did not accept that the appellant's status as an excess child would cause him to be excluded from recognition as a national of China. Rather, the Tribunal found that the appellant is indeed entitled to be recognised as a National of that country. 7 The Tribunal concluded on the evidence before it that the appellant's nationality is not a matter of discretion. In its reasons, the Tribunal summarised in some detail the policy in China concerning excess children and the consequences of being an excess child. The Tribunal accepted that, under that system, the appellant would need to be registered and that the cost of registration would be 'steeper' than that of the cost of registering an earlier child, such as the appellant's sister. The Tribunal also accepted that that would mean a potentially great financial burden on the parents on the appellant, depending upon where they live. 8 However, the Tribunal did not accept that that burden would be aimed at persecuting the appellant or would even have an indirect effect of persecuting him. The Tribunal did not accept that the application of social compensation fees in China, in exchange for registration of excess children, or any other costs levied on parents of excess children, could rightly be regarded as persecution of the children themselves. The Tribunal accepted that imposts of that nature are applied under laws of general application and that their intention is to reduce the burden on the State of families having larger families. 9 The evidence before the Tribunal led it to conclude that the appellant would, one way or another, have access to basic human and social needs in China, including health care, education and employment, contrary to the contentions advanced on behalf of the appellant. The Tribunal also found that the appellant's family are residents of Shanghai, a place where the one child policy is far less strictly enforced than in some other parts of China. The Tribunal did not accept that the appellant would be unable to have access to health and education services if he remained unregistered. The Tribunal accepted country information, which it dealt with in some detail, indicating that the registration system in China is in decline and its relevance in terms of access to services is diminished. 10 The Tribunal accepted country information indicating that access to public health and educational services requires payment of fees and that those services are increasingly supplemented by private service providers. The Tribunal did not accept that the appellant would suffer harm in the form of psychological harassment or ostracism by other children by reason of his status as an excess child. The Tribunal considered that it was implausible, as was apparently suggested, that other children would be interested in the appellant's registration status let alone that they would ostracise him because of that. 11 The Tribunal also did not accept the claim that the appellant would be denied employment later in life if he remained unregistered. The Tribunal based that view on independent country information that indicates that, in light of economic changes, many State owned enterprises in China have been replaced by private enterprise. The Tribunal also based its conclusion on the fact that the move to a demand economy has created a demand labour market in China, requiring and allowing mobility between regions and provinces. 12 Those factors, combined with the general decline in the registration system, meant that registration does not have the significance that it once did relating to employment, which in the past was primarily limited to Government employment. The Tribunal was not satisfied, on the basis of the material before it, that the appellant faced a real chance of Convention related persecution in China, if he returned to China and, therefore, concluded that he is not a refugee within the meaning of the Refugees Convention. 13 In the amended application to the Federal Magistrates Court, the grounds of review were as follows. (1) The Tribunal, while accepting that there would be additional costs imposed on the appellant's family as a result of the appellant's status as a 'black child', found that the costs did not give rise to Convention based persecution and the Tribunal fell into jurisdictional error in making that finding. (2) The Tribunal found that the appellant would not face persecution if he remained unregistered in China and fell into jurisdictional error in making that finding.