Ram v Minister for Immigration and Ethnic Affairs

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".