SZBXV v Minister for Immigration and Citizenship

Background 5 The factual background, based on the claims of the applicant's parents before the Tribunal, is as follows. The applicant's parents married in May 1996 in the PRC, where they had lived in Shandong province. In April 1997, the applicant's father came to Australia on a student visa. However, he had been unable to complete his studies and needed to work once his wife became pregnant. 6 The applicant's mother came to Australia in May 1998, with the intention of relieving the financial burden on her husband so that he could concentrate on his studies. Some time after, she became pregnant with the applicant's elder brother. She returned to the PRC to seek permission to have the child, but was refused permission and told the child could not be registered. She returned to Australia. The applicant's brother was then born in August 1999. 7 Some time later, the applicant's mother became pregnant with the applicant. She said that she had attended the consulate in Sydney to ask for a birth permit, and was told she would have to go back to Shandong province, where they had lived, to resolve the problem. She attended the consulate on subsequent occasions to ask about regularising the status of both children, and was again told she would need to go back to Shandong. 8 The applicant's mother said that because the applicant's father already had a child from a previous marriage, the family planning regulations in Shandong province meant that she had to wait until she was 30 to obtain consent to have a child. She had become pregnant twice in the PRC in 1996 but had to terminate both pregnancies because she did not have permission and would have lost her job. 9 The applicant's parents said that they no longer held a household registration in the PRC as this had been cancelled when they departed. To get household registration and identity cards, they would need to return to Shandong province, but that given that they were in breach of the "one child" policy, their chance of having household registration restored and obtaining identity cards was uncertain. They would first have to pay substantial social compensation fees. Until the fines were paid, the applicant would be denied access to basis services such as health care and education. He would be a "black child", which, the applicant's father explained, was a child who was not registered by the Chinese Government and who did not have an identity card or "hukou". 10 The applicant's parents said that because the applicant was born without a birth permit, he would be denied household registration and would be denied access to education, social welfare and employment. The applicant would be ill-treated and would face discrimination by authorities and the people in Shandong province, who strictly adhered to the "one child" policy. He would be denied a wide range of opportunities and rights including the right to serve in military forces, the right to work in a government job, the right to own property and the right to vote. He would not be able to register for marriage or have a child of his own. He would be discriminated against and socially ostracised.

The Tribunal's decision 11 The Tribunal noted that the applicant's parents and brother were included in the application for review, but they had not been included in the delegate's decision. The Tribunal concluded it only had jurisdiction in relation to the applicant. 12 The Tribunal member referred to independent evidence regarding the Nationality Law of the PRC and found that the applicant was a national of the PRC. The applicant's citizenship has not been put in issue. 13 The Tribunal accepted that the applicant was born in breach of the family planning regulations because he was the second child of the parent's relationship. However, it referred to country information from the Department of Foreign Affairs and Trade ("DFAT") which included a translation of a circular issued by the State Family Planning Commission and the State Education Commission ("the circular"). The circular was dated 18 November 1989 and stated that regulations had been approved by the State Council about the issue of births outside the plan for Chinese people studying abroad. It stated that after people who had given birth in excess of the plan returned to China, they should be allowed to obtain household registration for their children by presenting a certificate issued by the embassy (or consulate) and the birth certificate issued in the country of birth. People who had given birth in excess of the plan who returned to China were not to be punished or fined by their work units. 14 Before the Tribunal, the applicant's representatives submitted that the regulation referred to in the circular only applied to students sent abroad to study by government instrumentalities. The Tribunal rejected this argument on the basis that the circular did not indicate any such restriction, nor did the DFAT advice which accompanied the circular. The Tribunal noted further that the circular had referred specifically to the situation of people outside China applying for refugee status on the basis that they would be punished for having given birth in excess of the plan, and that the regulations had been introduced to resolve this issue. Although the circular did set out the advice to be given to students sent abroad to study by government instrumentalities, this had not meant that the regulations did not apply equally to other students, even if the applicant's parents were not told of the regulation. 15 The applicant's representatives also submitted that the regulations only applied to those who returned to the PRC as students and therefore was not applicable to the applicant's parents who no longer held students visas. The Tribunal member found that again no such restriction was indicated by the circular or the DFAT advice. 16 The applicant's representatives also relied on the evidence of the applicant's mother about having approached the consulate in Sydney and been denied her request to register the applicant, to demonstrate that the regulation was not applicable or would not be applied to the applicant's situation. The Tribunal did not accept the applicant's mother's evidence in this regard, based on its adverse view of her credibility. The Tribunal stated that there was no reason to believe that the regulations would not be applied to the applicant's case. It also rejected an argument that the regulations would not be applied by local offices in Shandong because they would instead adhere to local practices. It noted that the regulations were made by the State Family Planning Commission with approval of the State Council and there had been no suggestion in the circular or the DFAT advice of any local variation. 17 The Tribunal's adverse view of the applicant's mother's credibility was based on perceived inconsistencies in the accounts given about her experiences. In an undated statement she had made to the Tribunal, she had claimed that she had terminated two pregnancies in the PRC because she would have lost her job if her work unit had become aware she was pregnant. However, in later submissions to the Tribunal, the applicant's representatives said that after her second termination, she had been named and criticised at a family planning rally organised by her work unit. It appears that what the Tribunal took from the second account that her work unit knew she had been pregnant and yet she had not been fired, as she claimed to fear she would be. When questioned by the Tribunal, she explained that what she had initially meant was that she would have been dismissed from her employment if she had not had an abortion, rather than if they knew she was pregnant. The Tribunal concluded that the mother had changed her evidence in a way she believed would be to the applicant's advantage. 18 The other perceived inconsistency relied upon by the Tribunal was the explanation the applicant's mother had given about what she was told when she returned to the PRC to seek permission to have her first child. The applicant's mother had claimed that she had been refused permission because she had been under 30 and the applicant's father already had a child. The Tribunal member put to the applicant's parents that the regulation in force in Shandong at the time required that she be over 25 to obtain permission in such circumstances. The applicant's mother had then said that she had to be aged 25 or over but also had to apply for permission before becoming pregnant, which she had not done. The Tribunal concluded that the applicant's mother had again changed her evidence to benefit the applicant's case. The Tribunal did not accept that the applicant's mother would have been in breach of the family planning regulations in relation to the first child, as they permitted her to have a child once she had reached 25. 19 In the original application for a protection visa, the applicant's father claimed to have been involved in the pro-democracy demonstrations in the PRC in 1989 and to have been involved in Falun Gong whilst in Australia. The applicant's father explained at the hearing that he had been involved in Falun Gong in the past but was no longer involved. The Tribunal gave the applicant's father further time to obtain evidence of his involvement. No evidence was provided. The Tribunal that the applicant's father was currently involved in Falun Gong or that he would wish to be in the foreseeable future. There was nothing to suggest that the authorities in the PRC were aware of any past involvement in Falun Gong in Australia. Further, the Tribunal did not accept that his involvement in pro-democracy demonstrations would adversely affect him now if he was to return to the PRC. 20 The applicant's father had expressed concern at the hearing that their household registration might be rejected in the PRC if the Government knew they had applied for refugee status in Australia. The Tribunal referred to DFAT advice that it was not aware of any substantiated claims if mistreatment by failed refugee claimants who returned to the PRC, and that the Chinese authorities did not take much notice of such claims because it viewed the claimants as seeking to take advantage of the Western legal system. The Tribunal therefore did not accept that the parents would be denied household registration because of any imputed political opinion. 21 Based on the regulations referred to in the circular, the Tribunal did not accept that the applicant's parents would be punished or fined, nor that the application would be denied household registration. It therefore did not accept that there was a real chance that the applicant would suffer the social, legal and economic disadvantages said to attend children who were denied household registration. 22 The Tribunal went on to consider the meaning of the term "black child". On the basis of independent evidence, it found that a black child was an unregistered child whose birth might or might not violate family planning regulations. By contrast, the Federal Magistrate determining the application for review of the first Tribunal decision had suggested that a black child actually referred to a child born in breach of the one child policy and that absence of registration was merely a consequence of being a black child. The Tribunal concluded that the Federal Magistrate's view was contrary to the evidence. It found, based on the independent evidence, that some children born in breach of family planning regulations could still be registered and conversely, that some children who are unregistered are considered black children even though their lack of registration had nothing to do with any breach of the family planning regulations. 23 The Tribunal went on to accept that the applicant could face social ostracism, even though it did not accept that he would be denied household registration (and therefore would not be a "black child"). The Tribunal accepted that he might face some discrimination and prejudice from having been born in breach of the one child policy. However, it did not accept that any social ostracism he might face would amount to serious harm. 24 The Tribunal also accepted that the applicant would not get the benefits conferred by Government policy on only children. However, if found that it was possible for governments to have policies benefiting certain people, provided that they were of general application and appropriate and adapted to achieving legitimate national objectives. The Tribunal did not accept that the denial of certain benefits would amount to serious harm. 25 The Tribunal also accepted that there was a real chance the applicant would be denied government employment. However, it did not accept that he would be denied employment in the private sector or that he would suffer discrimination from private sector employers that was so serious as to amount to persecution involving serious harm. Although employers might know he was not the only child in the family, they would not be able to tell if he was born in breach of family planning policy, since not all second children were born in breach of the regulations. 26 The Tribunal went on to consider whether the cumulative effect of the problems it accepted, and was not satisfied that the applicant had a well founded fear of persecution for a Convention reason.

The proceedings in the Federal Magistrates Court 27 The applicant was represented by counsel in the Court below. The application for review filed on 22 June 2006 identified three grounds, which are set out in full at [15] of the Federal Magistrate's reasons. 28 As the Federal Magistrate noted, the underlying ground of review related to the alleged inconsistency between the Tribunal's finding that the applicant would not suffer social, legal and economic disadvantages, and the later finding that the application would suffer discrimination and prejudice and would be denied the benefits conferred by Government policy on only children. The Federal Magistrate found no inconsistency in the Tribunal's decision. Her Honour found that the Tribunal had made two separate findings. First, it had found that the applicant would not suffer the social, legal and economic disadvantages that were said to attend children who were not registered, because the applicant would be able to be registered. The Tribunal had there been referring to disadvantages which came about as a consequence of not being able to obtain household registration. Secondly, the Tribunal had gone on to find that the applicant might still suffer some discrimination and prejudice, but this was as a result of being born in breach of the one child policy. The Tribunal did not accept that this would amount to persecution. The Tribunal had also expressly addressed the issue of whether the cumulative effects amounted to persecution, and found that they did not. 29 The Federal Magistrate accepted that implicit in the Tribunal's earlier findings was an assumption that the parents would be willing and able to register the applicant. However, her Honour found that this assumption was reasonable based on the evidence. The Tribunal had addressed the issue of whether the parents would be punished or fined, and also the specific issue of whether the applicant would be denied registration because he was born in excess of the plan. 30 The Federal Magistrate did not accept that the Tribunal had failed to consider the nature and extent of the social ostracism the applicant might face. The only evidence of claims of this nature before the Tribunal was that the applicant's father had said that his peer group, friends and colleagues would "look at you with different eyes" if you were born in excess of the plan. In accepting that the applicant might suffer some discrimination and prejudice, it was to this evidence that the Tribunal had referred and had found that it did not amount to serious harm. Nothing broader than social ostracism had been claimed. 31 The Federal Magistrate considered that one of the reasons the Tribunal had found that denial of certain benefits did not amount to persecution was that they were conferred under laws of general application which the Tribunal saw as appropriate and adapted to meet a legitimate national objective. The Federal Magistrate did not accept the argument that the Tribunal had here been referring to the denial of equal access to education, medical treatment or the denial of other rights. Her Honour found that the Tribunal had drawn a distinction between the conferral of benefits on only children, such as financial incentives to parents, and the denial of basic rights, and had found that the former did not amount to persecution.

Application for extension of time 32 On 23 March 2007, the applicant filed an extension of time to file and serve notice of appeal. The applicant explained that his reason for delay was that his previous solicitor had advised him that he had 28 days to make the application (whereas in fact he had 21 days, which expired on 15 March 2007). He had tried to file a notice of appeal on 19 March 2007 but was informed that he was out of time. 33 The applicant was not legally represented at the hearing in this Court. The applicant's father filed written submissions and made oral submissions at the hearing. 34 The draft notice of appeal raised four grounds: 1. The Tribunal erred in finding, and the Federal Magistrate Court in accepting, that the applicant was the second child of the family. 2. The Federal Magistrate Court erred in finding that social ostracism was not a denial of basic rights and did not constitute persecution. 3. The Federal Magistrate Court erred in finding that the applicant would obtain household registration upon return to China. 4. "In failing to find the matter before it the Federal Magistrate Court fell into jurisdictional error". 35 The Minister's position was that he was prepared to accept that the explanation for the delay would support an extension of time provided the case was one of substance, which, according to the Minister, it was not. 36 The applicant's father appeared at the hearing and made oral submissions on the applicant's behalf. At the hearing, the solicitor appearing for the Minister requested that the applicant's father be a formally appointed as a tutor to act on behalf of the applicant. That order should be made.

The applicant's submissions 37 The written submissions filed on behalf of the applicant raised a number of issues. They do not expressly address the grounds identified in the draft notice of appeal. The written submissions were supplemented by brief oral submissions at the hearing. 38 The first contention advanced on behalf of the applicant was that the Tribunal had wrongly characterised the applicant as the second child, or simply treated him as a child in excess of the plan, whereas under the family planning regulations, he was a third child. It was said that under the family planning regulations, under no circumstances was a third child to be born. As an example of where the Tribunal had proceeded on the premise that the applicant was a second child, reference was made to that part of the Tribunal's reasons in which the Tribunal recorded its discussion with the applicant's parents regarding the applicant's prospects of gaining private sector employment. A key issue for the Tribunal had been whether an employer would know that the applicant was born in excess of the plan. The Tribunal concluded in effect that employers would not be able to tell because a second child was not necessarily born in breach of the family planning regulations. 39 A focus of the applicant's father's submissions was a contention that the effect that the regulations referred to in the circular would not enable the applicant to obtain household registration. Three main submissions were advanced. Firstly, it was said that the applicant's parents were not "students" to which the regulations would apply, because they were not "studying abroad" but rather had ceased studying abroad. Secondly, according to the circular, in order to obtain household registration, the applicant's parents would need to provide a certificate from an embassy or consulate. The applicant's father submitted that they were unable to obtain such a certificate because it required a diploma of study in Australia to be produced, and they did not have one. 40 The applicant's father also repeated the submission made before the Tribunal that the regulations referred to in the circular would be more strictly implemented in Shandong province. It was submitted that the wording of the regulations left enough room for local family planning authorities to implement the regulation more severely, requiring that both parents of the child have diplomas from an overseas institution. 41 The written submission also addressed the Tribunal's findings regarding the applicant's mother's credibility. It was submitted that the matters in relation to which adverse credibility findings were made were irrelevant to the matters in issue in the application, and should have been given no weight. They concerned the applicant's brother's circumstances and not the applicant's circumstances. The Tribunal had concluded that the applicant's mother had changed her evidence in way she viewed as being to the applicant's advantage, yet the applicant's father questioned how the evidence she gave could possibly advantage the applicant. The applicant's father also submitted that the mother's evidence about what had occurred when she went to the consulate was consistent with the circular, which stated that they would have to go back to the PRC to register the child. 42 It was submitted that the Tribunal's conclusions about the mother's credibility arose from a lack of knowledge on the part of the Tribunal about how a work unit in Shandong would treat a woman whose pregnancy had not been approved. The relevant regulations provided that a woman shall not fall pregnant without approval, and in the case of unapproved pregnancies, they must report in a timely manner to the director of the family planning department of the work unit to have an abortion under the supervision of the director. The applicant's father submitted that what the applicant's mother had meant when said she would be fired if her work unit knew she was pregnant was that she would have been fired if she did not have the terminations in a timely manner, as required by the regulations. As to what the applicant's mother said she had been told when she sought permission to have her first child, the applicant's father accepted that the regulations which applied at the time, as a result of 1996 amendments, meant that the applicant's mother only had to be over 25. However, the applicant's father said that notwithstanding this, the applicant's mother had been told that she had to be over 30 and the local family planning authority had not applied the 1996 amendments. 43 The applicant's father also contended that the Tribunal had failed to consider whether the applicant would be able to obtain household registration in view of the approach to family planning in the capital city of Shandong province. The written submissions set out some matters to illustrate the severity of the family planning policy and the way it was implemented in Shandong. 44 The applicant's father also repeated the submission made in the Court below that the Tribunal failed to evaluate the extent of harm as a result of the social discrimination the applicant would face as a child born in excess of the plan, even if he was registered. He would be judged by others and treated differently which, for a child, would mean enormous physical and psychological harm and might even be fatal.

The Minister's submissions 45 In relation to the affidavit explaining the reason for the delay in filing a notice of appeal, the Minister referred to the fact that it purported to have been sworn by the applicant himself, despite the fact that he is six years of age. The Minister submitted that the applicant was not competent to swear the affidavit. Nonetheless, the Minister consented to the Court deciding the application on the facts asserted in the affidavit. However, it was submitted that even if those facts constitute special reasons for granting an extension of time pursuant to O 52 r 15(2) of the Federal Court Rules, the Court should exercise its discretion to refuse an extension of time as the proposed appeal had no prospects of success. 46 The Minister's written submissions addressed each of the grounds contained in the draft notice of appeal as well as the written submissions but only so far as they were thought to relate to the grounds in the draft notice of appeal. The Minister submitted that in large part, the written submissions had merely sought to challenge the merits of the Tribunal's decision. 47 The Minister submitted that the first ground, which related to the Tribunal's characterisation of the child as the second child in the family, was a new ground not raised in the Court below. It was submitted that leave to raise this ground should be refused on the basis that there were insufficient prospects of success, and the applicant had not provided any explanation for failing to raise it in the Court below. Further, it was submitted that the ground was misconceived. The Tribunal clearly understood that the applicant's father had a child from a previous relationship. The Tribunal had found that, based on the family planning regulations, the applicant's older brother was not treated as a breach of the regulations, and this conclusion had been open to the Tribunal on the evidence. 48 The Minister submitted that both the second and third grounds in the draft notice of appeal were misconceived. In relation to the second ground, the Minister submitted that the Federal Magistrate had correctly concluded that the Tribunal had properly considered the nature and extent of social ostracism. There had been no jurisdictional error by the Tribunal in failing to accept, on the evidence, that there was a real chance that any social ostracism would amount to persecution involving serious harm. In relation to the third ground, it was submitted that the Federal Magistrate had not found that the applicant would be able to obtain household registration, but rather that the Tribunal's findings in this regard were reasonable on the evidence. 49 In relation to the fourth ground, which was an unparticularised allegation of jurisdiction error, the Minister submitted that her Honour had been correct to dismiss the application for the reasons her Honour gave.

Consideration 50 The issues that potentially arise in this matter concern:

The adverse credibility findings made by the Tribunal in relation to the applicant's mother;

The use to which those adverse credibility findings were put by the Tribunal;

The conclusions which the Tribunal made based on the translation of the circular referring to the new regulation and the accompanying the DFAT advice;

The Tribunal proceeding on the basis that the applicant was a second child;

The Tribunal's conclusion that the applicant might suffer some harm in the PRC but not such as would amount to persecution.

51 Turning to the first issue, there is some force in the applicant father's criticisms of the adverse view which the Tribunal took of the applicant's mother's evidence. However that finding was one of the Tribunal was authorised to make. It is not for this Court to evaluate the evidence for itself and form a view about the mother's credibility even when exercising appellate jurisdiction. 52 The next issue concerns the use which the Tribunal made of the adverse credibility findings it made of the applicant's mother. The Tribunal did not accept the applicant's mother's evidence about having gone to the consulate in Sydney or what she had been told by its officers, namely that she had to go back to Shandong to resolve the issue. This is important because what the applicant's mother's evidence could also have shown was that she was never told about the regulations applying to students studying abroad. The significance of this is that, based at least on the applicant's father's view of the circular, it appears the applicant's parents would have to first obtain a certificate from the consulate in order to register the applicant under the regulations. 53 Give that the Tribunal was entitled to make the adverse credibility findings it did about the applicant's mother, it was equally entitled to use those findings as a reason for rejecting the applicant's application. In particular, was it entitled to use those findings to reject the evidence about having gone to the consulate. 54 The third issue concerns the DFAT advice and the circular. This was the central evidence upon which the Tribunal relied in concluding that the applicant would not be denied household registration on return to the PRC. What is clear is that the Tribunal found that the regulations referred to in the circular would apply to the applicant and enable him to be registered. The applicant's father contended that the applicant would not be able to avail himself of the benefit of the regulations referred to in the circular. As to the argument that the local authorities in Shandong would not apply the regulations so as to enable the applicant to be registered, the Tribunal rejected these arguments on the basis that there was no support for them in the independent evidence, as it was entitled to do. An argument that the applicant's parents were not students to which the regulations would apply was made before the Tribunal and rejected, and the Tribunal was entitled to make these findings, based on the evidence before it. No basis has been shown for the assertion that the applicant's parents would first have to present a diploma in order to obtain a certificate from the embassy or consulate and in any event, it appears to be a fresh point not raised below. Again, any support which the applicant's mother's evidence may have provided for any of these matters was not available, because of the Tribunal's adverse credibility finding. 55 As the Minister has pointed out, the grounds before the Federal Magistrate did not specifically address the Tribunal's conclusion that the applicant would be able to be registered on his return, nor did the Federal Magistrate make a finding as such. However, the Federal Magistrate did give consideration to the issue, and accepted the contention put forward by counsel for the applicant that the Tribunal had proceeded on the assumption that the applicant's parents would be willing and able to register the applicant. Her Honour found that the Tribunal's assumption or conclusion was reasonable. I would prefer to put it on the footing that it was a conclusion the Tribunal was authorised to reach. 56 Similarly, whether the applicant was a second or third child and whether any harm he might suffer could amount to persecution were again matters peculiarly within the province of the Tribunal. 57 As to the Tribunal's conclusion that any social ostracism would not amount to persecution, the Tribunal properly considered the nature and extent of the harm the applicant might experience in this regard. Neither can any error be discerned in the approach of the Federal Magistrate to this issue. 58 It is not apparent to me that the Federal Magistrate erred in dismissing the applicant's application. I think, in the circumstances, the preferable course is to extend time but dismiss the appeal. I should add that, by way of a concluding observation, that there are several curious aspects to this case. One is whether the applicant was legally competent to make the application for the protection visa: see Soondur v Minister for Immigration and Multicultural Affairs [2002] FCAFC 324; (2002) 122 FCR 578 and Re Woolley; ex parte Applicants M276/2003 by their next friend GS [2004] HCA 49; (2004) 210 ALR 369. Another might be whether the Refugees Convention and the relevant provisions of the Act can found a claim to asylum and a protection visa in circumstances where the asylum seeker has never resided in the country of nationality. Specifically, is it essential that the applicant for a protection visa be outside the country of nationality owing to a well-founded fear of being persecuted: see Minister for Immigration and Multicultural Affairs v Savvin (2000) 98 FCR 168 at 175 and if so, could that be said of a person in the position of the applicant? However these issues were not raised in these proceedings and nothing further need be said. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate: Dated: 22 August 2007 The Applicant's father appeared as the applicant's tutor

Solicitor for the Respondent: Blake Dawson Waldron