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[1998] FCA 622
Federal Court of Australia
1997-06-05
French J
Original judgment source is linked above.
REASONS FOR JUDGMENT Background to these Proceedings Chen Ren Bing and Tang de Ting (the applicant's parents) are Chinese nationals from Guangxi Province. In July 1989 at the ages of twenty and nineteen respectively they applied for, but were denied, permission to marry as they were below the marriageable ages of twenty five for men and twenty three for women. They lived as man and wife nevertheless and on 10 May 1990 had their first child, a son Chen Shi Qing. Their second child, a daughter, Chen San San, was born on 12 February 1992. Neither of these births was authorised under Chinese law. In November 1994 the applicant's parents left China illegally with their son. Their daughter remained in China. They arrived in Australia's northern waters in November 1994 on a boat called "Cockatoo". They were detained with other Chinese from the boat at Port Hedland. On 18 December 1994 a charter flight was arranged by the Department to take sixty seven of the arrivals back to China. The Chinese authorities had agreed to accept their return. In the meantime however, the applicant's parents had been asked to be treated as refugees and applied for protection visas. They did not therefore return to China with their compatriots at that time. Their applications for visas were refused and applications for review of the refusals were dismissed by the Refugee Review Tribunal on 4 April 1995. Those decisions are not under challenge here. There followed a lengthy delay in arrangements for their return to the Peoples Republic of China. The Tribunal in the decision now under challenge, thought it a reasonable inference from the material before it "that there must have been some reluctance and possibly even a refusal by the PRC Government to allow the family to return to their country". On 11 July 1996, the couple gave birth to a child at the Immigration Detention Centre at Port Hedland. That child is Chen Shi Hai, the applicant in these proceedings. On 20 February 1997 the applicant's father lodged an incomplete application on his behalf for a protection visa. This was treated as an application received on 23 May 1997. On 24 June 1997, a delegate of the Minister refused the application noting that: "No claims, information, submissions or evidence has been received to date establishing or indicating that the applicant has claims under the Refugee Convention." On 27 June 1997 an application for review of the decision by the Refugee Review Tribunal was lodged on behalf of the applicant by an organisation called the "Independent Council for Refugee Advocacy". On 24 July a detailed submission was lodged in support of the application for review. On 3 September 1997 the Tribunal affirmed the decision not to grant a visa. The Tribunal's Reasons for Decision It was not in dispute that the applicant, although born in Australia, is a citizen of the Peoples Republic of China. Further, the Tribunal found that whatever the earlier attitude of the PRC to the return of the family there was no impediment to their return to that country. The claim for a protection visa failed to the extent that it was based upon an alleged refusal by Chinese authorities to accept a return of the family. The principal ground for the application to the Tribunal and the basis for the subsequent application to this Court is based on the contention that the applicant was entitled to refugee status as one who had "a well founded fear of being persecuted" by reason of his membership of a particular social group. The particular social group was said to be "black children". The term "black child" has a well understood Chinese equivalent (Hei Haizi) and, according to the Tribunal's findings, is widely recognised both within and outside the PRC. The Tribunal described the "black children" as a group which "shares the characteristic of having been born outside officially approved parameters, a characteristic not shared by the general population". The Tribunal found that the applicant was a "black child" not merely because he was born outside the parameters of China's One Child Policy but "also, and perhaps primarily because he was born of an unauthorised marriage and accordingly is illegitimate". The Tribunal found that the applicant is by virtue of his status as a "black child" a member of a particular social group for the purposes of the Refugee Convention. Evidence as to the persecution of "black children" was considered by the Tribunal. It was not satisfied that a black child would necessarily face exclusion from the household register. And while many Chinese parents chose not to register the birth of a "black child" in order to avoid sanctions, it would be unlikely that this option would be open to the applicant's parents. It would be obvious to the PRC authorities upon the family's return that they have more than one child. The Tribunal took into account that the applicant was not only born outside Chinese family planning guidelines but is also illegitimate. Moreover he is a third child: "These factors make it likely that the family's situation will be regarded extremely seriously and that the penalties imposed on him and on his parents will be at the heavier end of the scale." Overall the Tribunal concluded that the applicant would, if returned to China: "...face denial of access to subsidized food, health and education and all other welfare benefits for many years, probably beyond the time when he turns seven. Owing to the financial predicament of his parents, this will mean, in effect, that he will be denied access to food, education and to health care beyond a very basic level. He will also probably face social discrimination and some prejudice and ostracism." The Tribunal further concluded that in the future the applicant would probably be severely disadvantaged in terms of being able to find employment and so to support himself economically to maintain adequate health and nutrition and to function as a normal member of Chinese society. While accepting that every violation of fundamental human rights is a form of persecution, the Tribunal noted that persecution must be considered in a cumulative sense. It went on: "Taking into account that several violations of important human rights are potentially involved, that the violations would represent a systematic course of conduct persisting over at least several years, and that there would be a serious continuing, perhaps lifelong effect on the child, I conclude that the actions which would be taken against him by the PRC authorities would in total amount to persecution." The Tribunal moved on to consider whether the apprehended persecution of the applicant could be said to be "for reasons of" his being a "black child". That is to say, was the nature of the connection between the probable persecution and his membership of a particular social group such as to bring him within the protection of the Refugee Convention. On this point, the Tribunal applied a test which required that the persecution feared be motivated by or involve some element of "enmity and malignity" towards its subject. This test was derived, inter alia, from dicta in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565; Jahazi v Minister for Immigration and Ethnic Affairs (1995) 133 ALR 437; Amanyar v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 194; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. The Tribunal was of opinion that it could not be said the unfortunate consequences which might befall the applicant on his return to China would result from any animus towards him on the part of the authorities there: "The evidence all suggests that the authorities intend to penalize those who have children outside the approved guidelines, i.e. the parents, not the children themselves." The disadvantages which could accrue to the applicant would not, in the Tribunal's view, result primarily from the direct action of the authorities but would be an indirect consequence of the financial situation of his parents. In summing up, the Tribunal felt "bound to hold" that: ...although Chen Shi Hai faces a real chance of persecution in the PRC because of (in a strict causative sense) his membership of a particular social group, he does not face a real chance of persecution there "for reasons of" his membership of a particular social group as that phrase has received exposition in the Australian courts." The Tribunal concluded that while the applicant faces a real chance of persecution in the PRC in the foreseeable future that persecution would not be for a Convention reason. The Grounds for Review The application for an order of review is brought pursuant to s 476 of the Migration Act 1958 (Cth). The single ground of review may be set out in full: "The grounds of the application are that: the Tribunal, having found that: (a) The infant Applicant was a member of a particular social group comprising a group described as "Black Children" (namely children born outside China's one-child family policy). (b) By reason of being a "Black Child" the infant Applicant faced a real chance of being denied subsidised food, medical care, education and other benefits continuing after the age of 7 years and as a result of such denial of benefits, the infant Applicant would probably be severely disadvantaged in terms of being able to find employment and thus to support himself economically, to maintain adequate health and nutrition and to function as a normal member of Chinese society. (c) That such course of action directed against the infant Applicant having regard to its likely life-long effect upon him, would in total amount to persecution. The Tribunal erred in law in determining that the infant Applicant did not come within the scope of the Refugees Convention unless it was also shown that those who might inflict the persecution on the infant Applicant were motivated to do so by malignity or enmity or other adverse intention directed at the infant Applicant as a member of the social group comprising "Black Children".
Statutory Framework The grant of visas is authorised by s.29 of the Migration Act 1958, which provides, in part: "29(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia." The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s.31). Section 36 specifies a class of visa known as "protection visas" in the following terms: "36(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances (s.40). Regulation 2.04 of the Migration Regulations provides that for the purposes of s.40, and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part. Schedule 2 sets out various sub-classes of visa. Subclass 866 is the Protection (Residence) visa. Clause 866.211 of subclass 866 specifies the following criteria for the grant of such a visa: "866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention; or (b) claims to be a member of the same family unit as a person who: (i) has made specific claims under the Refugees Convention; and (ii) is an applicant for a Protection (Class AZ) visa." It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221). The Refugee Convention is the Convention Relating to the Status of Refugees 1954 which is to be read with the Protocol Relating to the Status of Refugees 1973. Article 1 of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions: "...owing to 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Section 411 of the Act sets out a class of decisions designated as "RRT-Reviewable Decisions". The class of decisions so designated includes a decision to refuse to grant a protection visa (s.411(1)(c)). An application for review of an RRT-Reviewable Decision is made to the Refugee Review Tribunal (s.412(1)). Where a valid application is made for review of an RRT-Reviewable Decision, the Tribunal is required to review the decision (s.414(1)). The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act 1958 on the person who made the decision (s.415(1)). The Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new decision (s.415(2)). Part 8 of the Act provides for the review of decisions by the Federal Court and in s.475 sets out a class of decisions known as "judicially-reviewable decisions". This includes decisions of the Refugee Review Tribunal (s.475(1)(b)). An application for review by the Federal Court of a judicially-reviewable decision is limited to one or more of the following grounds: "(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision." "Being Persecuted for Reasons of...." The protection of the Refugee Convention is accorded to members of a particular social group who have a well founded fear "of being persecuted for reasons of..." that membership and who satisfy the other conditions of Article 1. That the fear must relate to persecution "for reasons of " membership of the relevant group imports a requirement for a causal connection between the apprehended persecution and that membership. As in so many areas of the law, the judgment to be made about causal connection is not satisfied by demonstration of purely logical causality. The courts in developing the common law and in the construction of statutes which give rise to questions about causation have often selected some one or more out of an infinite number of conditions to be treated as the legally relevant cause. "In making those selections the law is moved by considerations of policy, not simply of logic" - Elna Australia Pty Ltd v International Computers (Australia) Pty Ltd (1987) 16 FCR 410 at 418 (Gummow J). Questions of causal connection in the law have been described as ultimately a matter of commonsense not susceptible of reduction to a satisfactory formula - March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 at 515-516 (Mason CJ). These discussions have generally arisen when the question of causation is linked to a legal liability such as, for example, damages in tort or under statute. There is however no reason why the same approach should not be applied to determining whether an apprehended persecution is "for reasons of..." one of the specified attributes to which Article 1 of the Convention refers. Mere application of a "but for" test to satisfy the connection could take the scope of Convention protection well beyond that which it was intended to secure. To recognise the necessity for some form of selection principle to operate in this way is not to encourage the development of rules and principles which will constrict the protection of the Convention. As Burchett J observed in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 567-568: "The general language must be allowed freedom of application, so far as it reasonably extends, in order not to shut out inadvertently victims of the as yet unforeseeable forms of oppression that future despotism, fanaticism, cruelty and intolerance may invent. The Convention was intended to give hope to all fugitives fairly encompassed by its language. It seems to me that those who framed the provision wisely chose broad expressions, which it is not the Court's task to constrict." The composite term "persecution for reasons of..." involves two concepts, that of persecution and that of a causal connection to the relevant characteristic of the person persecuted. In the case of a person identified as a member of a particular social group the membership of the group must provide the reason for the persecution. That does not mean that a bare causal connection is sufficient. As I said in Jahazi v Minister for Immigration Ethnic Affairs (1995) 133 ALR 437 at 443: "The question whether a particular causal connection between persecution and membership of a group attracts Convention Protection will be resolved not merely by the logic of causality but as a matter of evaluation which has regard to the policy of the Convention. While it is not necessary that the fear of persecution be solely attributable to membership of a relevant social group, a decision-maker can have regard to the extent to which membership of the relevant group is a factor in the risk of persecution." The interaction between the concept of persecution and the necessary connection with membership of a particular social group was addressed by Burchett J (O'Loughlin and Nicholson JJ agreeing) in Lamb v Minister for Immigration (1995) 57 FCR 565 at 568 when his Honour said: "In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group, which should always be kept firmly in mind. That concept flows through the separate elements of the definition. The well- founded fear of which it speaks is a fear of "being persecuted". Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word "persecuted", the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is "membership of a particular social group". And further: "The link between the key word "persecuted" and the phrase descriptive of the position of the refugee, "membership of a particular social group", is provided by the words "for reasons of" - the membership of the social group must provide the reason. There is thus a common thread which links the expressions "persecuted", "for reasons of", and "membership of a particular social group". That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase "for reasons of", and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group." The question for determination by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, was whether parents of only one child, nationals of the Peoples Republic of China, who did not accept the Chinese government's one child policy and might suffer adverse consequences as a result were members of "a particular social group" for the purpose of the Convention. As Dawson J said in his judgment in the case, at 339, it was by reference to the persecution which the appellants feared that the particular social group to which they were said to belong was defined. That appeal decided that such an approach exhibited error. The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. But although the words "enmity" and "malignity" appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group. Motivation connecting persecution to the relevant attribute is sufficient. Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects. There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as "enmity" and "malignity" to governments and institutions risks a fictitious personification of the abstract and the impersonal. In the present case the Tribunal found that the applicant is a member of a particular social group and because of his membership of that group he would suffer adverse consequences at the hands of the PRC authorities which would in total amount to persecution. The respondent did not challenge the Tribunal's finding that the applicant is a member of a particular social group. He did seek to characterise the finding that the applicant would suffer persecution as a finding of persecution in a general or abstract sense, not necessarily persecution in the Convention sense. But the Tribunal found in respect of the applicant that "the action which would be taken against him by the PRC authorities would in total amount to persecution". As a matter of fact it characterised the long term deprivation and disadvantage imposed upon the applicant as action taken against him by the PRC authorities. It also found that "the penalties imposed upon him and his parents will be at the heavier end of the scale". This in my opinion answered the description of persecution in the Convention sense. This is reinforced by other findings and evidence referred to by the Tribunal in the course of its reasons. Thus at p 11 of the Reasons for Decision it said of the group known as "black children": "The group receives markedly different treatment at the hands of the authorities, as well as facing prejudice from the wider Chinese population. It seems reasonable to compare it, as Mr Egan did, to illegitimate children in Australia some decades ago, when they faced significant legal and social disabilities." At p 14 of its Reasons the Tribunal referred to a cable from the Australian Consulate in Shanghai dated 14 February 1994: "Parents who have a second child after pledging to have only one lose all stipend and work points they received for the pledge (in urban areas, this stipend can account for between five and eight per cent of the average worker's wage until the child turns fourteen; in rural areas, it can mean an annual addition of one monthly work point until the child turns fourteen). For a third child, the parents will, in addition to this, lose ten per cent of their wage and will not be allocated additional housing. They will be liable for the cost of medical expenses and for the cost of the extra child's grain ration. In Guangzhou, those who violate the birth control norms are barred from job promotion, wage increases, production awards and entry into workers' competitions for three years." And at p 15 reference was made to a book, Policing and Punishment in China by Michael Dutton, which said, inter alia, that: "The penalties [for children born outside the family planning guidelines] include fines, career set backs, poorer education of the child(ren) and substandard medical care for the child(ren). And according to Amnesty International's Alert magazine of April 1996, also quoted by the Tribunal: "Those who fail to conform to China's One Child Policy face harassment and worse...Their houses are sometimes demolished. Many "above-quota" children have been killed in hospitals and orphanages." In addition the Tribunal referred to a report in 1992 which referred to the "black child" as having no household registration, no grain coupons and no prospect of education. The Tribunal also mentioned Article 31 of the Guangzi Zhuang Autonomous Region Family Planning Regulations of August 1991 stating in part: "Any child born beyond the planned limit shall not be entitled to any benefits including nursery subsidy, family comprehensive medical care, or medical care covered by any labour insurance, until the age of seven." And as to that regulation the Tribunal further commented at p 18: "The Regulations indicate that the disadvantages cease when the child reaches seven years of age. But on the other hand, they are dealing specifically with penalties imposed on children born "beyond the planned limit". They do not necessarily mean that the situation of a child who is also a third child and an illegitimate child may not be worse. The passage quoted above from Michael Dutton indicates that parents may well be penalized until the child turns fourteen, even in the case of legitimate child who is the second-born. The Department of Foreign Affairs and Trade's Country Profile: China (June 1994, p 12) also refers to a time limit of fourteen years for the continuation of sanctions. In these circumstances, I think I cannot reasonably find that this child's disadvantages, even the official disadvantages imposed by the authorities, will cease when he turns seven." (emphasis added) In the light of these findings and their evidentiary setting, in my opinion, the Tribunal was in error in failing to conclude that the necessary connection between the persecution and the child's membership of a particular social group was made out. It may be that the persecution so found is collateral to or supportive of a policy directed to penalising parents in support of a general population control policy. That does not prevent its dual characterisation as a policy which penalises parents by penalising their children or penalises children by penalising their parents. And although the Tribunal said towards the end of its reasons that the disadvantages accruing to the applicant would "not result primarily from the direct action of the authorities but will be an indirect consequence of the financial situation of his parents" this as a broad conclusion cannot detract from the findings of fact made in the earlier part of its reasons to which I have referred. It is indeed somewhat difficult to reconcile the findings in this regard, especially having regard to the conclusion that the applicant faces persecution on his return to China and that official disadvantages imposed by the authorities will not cease even after he turns seven. In the circumstances I propose to remit the matter to the Tribunal and direct that upon its findings of fact to which I have referred the applicant is entitled to refugee status. I should add that a contention was advanced for the respondent that the applicant would not qualify for refugee status because being a young child it lacked the awareness to have a well founded fear of persecution. In my opinion that very literal construction of the words of the Convention should be rejected. Although a well founded fear in a subjective sense is necessary, it can, in the case of a child, in my opinion, be derived from the fear held for the child by his or her parents. To conclude otherwise is to exclude from the protection of the Convention those who might in some cases be most in need of its protection including young children and the intellectually disabled. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French
Solicitor for the Applicant: Legal Aid Western Australia
Solicitor for the Respondent: Australian Government Solicitor
Ram
Minister for Immigration and Ethnic Affairs
(1995) 57 FCR 565
(1995) 133 ALR 437
(1995) 63 FCR 194
(1997) 142 ALR 331
(1987) 16 FCR 410
(1991) 171 CLR 506