Chen v Min for Immigration and Multicultural Affairs

[1999] HCATrans 349

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P41 of 1999

B e t w e e n -

CHEN SHI HAI (an infant) by his next friend CHEN REN BING

Appellant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

GLEESON CJ
GAUDRON J
GUMMOW J

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 20 OCTOBER 1999, AT 11.14 AM

Copyright in the High Court of Australia

MR R.E. LINDSAY:   May it please, your Honours, I appear with my learned friend, MR H.N.H. CHRISTIE, for the appellant.  (instructed by Mr Turnbull, Director of Legal Aid, Legal Aid Western Australia)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MR P.R. MACLIVER, for the respondent.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honours, the Refugee Review Tribunal held that there was a well‑founded fear of persecution on the one hand and the Refugee Review Tribunal also found that the appellant belonged to a particular social group of “black children”.  In that setting, perhaps I can go to the first ground of appeal.  This is at page 5 of my written submission and that is the submission that the majority of the Full Federal Court erred in finding that the appellant did not face persecution by reason of his membership of a social group of “black children”, but it would appear on a somewhat different basis from that found by the Refugee Review Tribunal.  The relevant passage of what their Honours said in the Full Court is at page 270 where at line 34 their Honours said:

In our opinion, in terms of causation, the respondent does not face persecution “by reason of” being a member of the social group of “black children”.  He faces such persecution by reason of his parents’ conduct (as Chinese nationals) in contravening the relevant laws of China.  Those laws fasten on that very conduct of causing a second or, in this case, a third child to be born.

On the other hand, Justice Nicholson took a different view at page 288.  His Honour said at line 18:

The Convention is to be applied to beings in existence.  The respondent is a person, albeit an infant.  The causal relationship is to be found between the persecutory conduct and the Convention reason in relation to him.  It seems to me to beg the question to say he is only subject to the persecutory conduct “by reason of” his parents having conceived him in the knowledge of the policies of the PRC.

In my submission, Justice Nicholson’s view is to be preferred.  No doubt, if one asks the question, “What was the cause of the feared persecution?”, it may admit of several answers.  But I submit if one asks the question whether it was by reason of the appellant being a “black child” that he, for reasons of that, the fear of persecution, I submit the answer would be yes, it was.  The evidence to support that – there is considerable evidence, bearing in mind that the essential nature of the apprehended persecution was deprivation of essential benefits.  There was significant evidence that this was targeted, as it were, against “black children”.

KIRBY J:   That was accepted by the Tribunal, was it not?

MR LINDSAY:   That was accepted by the Tribunal and in the Guangxi regulations referred to by the majority of the Full Court they refer to two particular regulations that are directed, in effect, against “black children” which deprives them of benefits, so I submit that there was substantial evidence upon which the Tribunal could make that finding.  What the Tribunal, of course, declined to do was to say that the nexus of “for reasons of” was established but the basis for the Tribunal so holding was the application by the Tribunal of a test in Amanyar that persecution needs to be based upon enmity, malice, malignity or other adverse intention and, in my submission, that was not the appropriate test to have applied.

When it came to the Full Court, their basis, as those passages demonstrate, I think, was somewhat different.  It is my submission that it is evident, both from what in said in Jahazi’s Case and other cases, that the ‑ ‑ ‑

KIRBY J:   Do not assume that I am familiar with all of these cases.  I mean, there are expert lawyers who live in the world of migration law.  I am not one of them.

MR LINDSAY:   As your Honour pleases, save that in Jahazi’s Case persecution is not found ‑ ‑ ‑

KIRBY J:   Is that a decision of the Federal Court?

MR LINDSAY:   That was a decision of single judge in the Federal Court, Justice French.

KIRBY J:   Please do not assume that I know what a single judge of the Federal Court has said in these matters.  I have enough to do without keeping up with all of that.  It is really unreasonable to expect that we know those things.

MR LINDSAY:   No.  Your Honour, there was also reference to the appropriate test in a recent House of Lords case of Shah v Islam and there several of the Law Lords couched the ‑ ‑ ‑

GLEESON CJ:   Could you give us a reference to that, please?

MR LINDSAY:   Certainly, Reg v IAT ex parte Shah (1999) 2 All ER 545.

GLEESON CJ:   Is it in the authorised reports?

MR LINDSAY:   No, your Honour, it is not in the Appeal Cases yet.

GLEESON CJ:   Or the Weekly Law Reports?

MR LINDSAY:   I believe it is in the Weekly Law Reports.

GLEESON CJ:   Get your junior to give us the reference to that in due course, thank you.  Go ahead.

MR LINDSAY:   Your Honour, the discussion in that case, Lord Hoffmann says that one – he deprecates the “but for” test but invokes common sense notions rather than mechanical rules.

GLEESON CJ:   Lord Hoffmann invokes common sense as a test of causation.

MR LINDSAY:   Common sense notions.  He says in applying for what “for reasons of” should mean, one should have regard to “common sense notions rather than mechanical rules”.

GLEESON CJ:   Where does he say that?

MR LINDSAY:   That is at page 565.

GUMMOW J:   He said something else in the Empress Car Case about the same time.

MR LINDSAY:   Yes.

GUMMOW J:   Yes, there it is, 565b.

MR LINDSAY:   And it is at h and j.  His Lordship said that he did not think that a “but for” test would be appropriate but his Lordship said that:

the answer involves the application of common sense notions rather than mechanical rules.

Several of their Lordships equate “for reasons of” with “because” so, in effect, if one asks the question in this case, “Was the appellant the victim of persecution because he was a ‘black child’?”, I submit the answer to that is yes.  It was because he was a “black child” that he had reason to fear persecution.

KIRBY J:   I do not want to take you off your track, Mr Lindsay, but you have sort of launched straight into cases and it would be of help to me - and I perhaps confess a personal weakness here.  We have so many cases that we are dealing with and the special leaves are about to come, though I have read your written submissions, could you outline what you say is the grand design of the errors of the Full Federal Court which we are now dealing with this appeal from so that I can put your submissions into their conceptual context before we go into the nuts and bolts of the opinions of the House of Lords.

MR LINDSAY:   Certainly, your Honour.  So far as the first ground of appeal is ‑ ‑ ‑

KIRBY J:   I take it you have really two big attacks on the decision.  The first is the attack that they equated the child to the parents and I rather take Mr Tracey to be, in a sense, not completely conceding that attack but saying it does not really matter.  The second attack is in relation to the test that was applied for the separate refugee claim of the child and I gather you are now dealing with the second point.

MR LINDSAY:   Yes, and I submit that the ‑ ‑ ‑

KIRBY J:   Could I just ask you would the first be enough to get up in the appeal alone, that is to say that the Full Federal Court equated the child to the refugee status of the parents?

MR LINDSAY:   I submit that if one was to hold that, then essentially that is it, yes, your Honour.

KIRBY J:   But what if you would then – and I do not want to take you out of your order, because you deal with it in your written submissions subsequently.  What if that meant nothing, that did not lead anywhere?

MR LINDSAY:   I must satisfy your Honours that it was - the causal nexus was made out between the fear of persecution, on the one hand, and the appellant belonging to a particular social group of “black children”, and, secondly, that “black children” is a social group and it is defined independent of the nature of the persecution apprehended.

KIRBY J:   I thought you succeeded on that point, that the Tribunal found that there was a social group called “black children”, that that is well established, that it exists separately from the laws of the People’s Republic of China and would survive even if the laws were abolished and that, therefore, that exists.  So you get to that point and then the next question is whether or not the real chance exists by reason of that fact.  Is that not a correct understanding?

MR LINDSAY:   It is certainly correct that the Refugee Review Tribunal found that group, “black children”, to be a group.  However, that was not accepted by the Full Court.

GUMMOW J:   Well, it was a finding of, I suppose, mixed fact and law, but a finding with a large factual element in it, was it not?

MR LINDSAY:   That is correct.

GUMMOW J:   How could it be departed from?

MR LINDSAY:   The majority held that in effect the mode of definition of “black children”, namely, children born outside the parameters of the one‑child policy, was defining the group by reference to the persecution apprehended.  It is certainly not my submission that that is so.  I submit that they have an independent existence which unites them as a group.

KIRBY J:   Do you raise a point of objection in your appeal to this Court that that was a finding of fact, that the Federal Court’s relationship with the Tribunal is only that of reviewing error of law and that there was no error of law in the finding of the Tribunal that the appellant was a member of a defined social group?

MR LINDSAY:   I submit that the Full Court were in error in contending that ‑ ‑ ‑

KIRBY J:   I see that you submit that now but is that an issue in the appeal before us?  Is that something that is raised in your notice of appeal?

MR LINDSAY:   Yes, it is. 

KIRBY J:   Which ground of appeal raises that point?

MR LINDSAY:   Ground 2.3, your Honour.

KIRBY J:   I see, “found as a fact”.  That is in paragraph (a).

MR LINDSAY:   Your Honour, if I can just come back to the first ground of appeal, being the basis upon which the Full Court held that the nexus was not made out between the fear of persecution and the particular social group, I submit that the evidence led showed that, essentially, the nature of the apprehended persecution was denial of benefits, that the denial of those benefits was specific to the social group of black children and, whether or not one characterised some penalties as being the products of a one‑child policy, the fact is the Tribunal found and made findings of fact based upon extensive evidence led in the case as to the nature of prejudice and discrimination which “black children” suffer, that that is, in fact, what occurred.

Your Honours, so far as the test to be applied, the Full Federal Court mention the single decision of Justice French who says that the words “for reasons of” denote something more than a mere causal nexus.  That is a comment which is also made by Justice Dawson in Applicant A but the persecution need not be the only cause in question.  In the House of Lords case their Lordships pose the question:  was it because the claimant was a member of a particular social group that the persecution was apprehended?  That was the test, and I submit that the appellant in this case would satisfy that test.

GUMMOW J:   Now, of course, the House of Lords decision postdates Applicant A.  Are there any relevant United States decisions which postdate Applicant A?

MR LINDSAY:   I am not aware of any, your Honour.  Your Honours, if I can then come to the second ground.  That is ground 2.2 at page 7 and that relates to comments made by the majority of the Full Federal Court when they say at page 275 of the appeal book, lines 16 to 20:

it must follow as a matter of logic, that if the parents cannot claim refugee status, then their child (who, in this particular case, is dependent upon their fears for his status) cannot succeed in a claim for refugee status.

I submit as a proposition of law, it is wrong to say that because the parents cannot succeed, that a child cannot succeed under the ‑ ‑ ‑

GUMMOW J:   Does not Mr Tracey more or less accept that in his submissions?

MR LINDSAY:   He appears to accept that broader proposition.

GUMMOW J:   Perhaps we should hear what he says, I suppose.

KIRBY J:   What is the practical consequence of it, though?  I mean, a child of very tender years cannot, de facto, live separately from a parent.  In that sense, human beings are very vulnerable and dependent in their early years, so what do you say is the correct approach of a court given that the parents have been refused refugee status and, therefore, by reason of that fact may be removed from Australia?  Does this give them a new leg‑in de facto or de jure or is that just not a matter of concern to the court?  The court just has to deal with the Tribunal and then the courts on review just have to deal with the claim of each individual for refugee status.

MR LINDSAY:   I would invite your Honours to deal with each individual claim on its merits because, after all, there may be situations where a child is divorced from its parents, it is an orphan ‑ ‑ ‑

GUMMOW J:   I know, but suppose this child at the relevant time was six months old and still being breastfed. What would happen?

MR LINDSAY:   The position is that the Minister under section 48B of the Migration Act may give permission in the public interest for an application to be made notwithstanding the application has previously been refused.

KIRBY J:   So, is it your submission that the correct legal approach is the child is a separate individual?  It is a human being with entitlements under our legislation.  Its entitlements must be dealt with separately.  The fact that the parents in their own separate claims have failed earlier is the end of that line but that if the child is entitled under our law to the protection of a visa in this country, then that will agitate new administrative entitlements which can be urged on behalf of the child but that is down the track and ought not to concern the Tribunal in reaching its conclusion on the status of the child.  Is that how you say it?

MR LINDSAY:   Yes, your Honour.

KIRBY J:   It sounds a little bit artificial.

MR LINDSAY:   I would submit that it would be highly persuasive if this Court were to say that this child fell within the terms of the Convention for the Minister not then to say, “In the public interest, we should think that this child, given its age and so forth, should have the benefit of its parents”.

KIRBY J:   Does that mean, de facto, that every “black child” of the People’s Republic of China who can get to Australia can thereby claim refugee status and Australia has refugee obligations not only to the “black child” but if the parents can get here, also to them?  It has a very large consequence, does it not?

MR LINDSAY:   I agree that within every case one would have to look at each case on its merits but in this case, as the Tribunal pointed out, this is the child who suffers doubly in a sense.  It is not just outside the one‑child policy.  It is the third child.  It is a child born out of wedlock and it is also, of course, a very young child.

GUMMOW J:   And born to parents who are too young in accordance with the policy.

MR LINDSAY:   Yes, parents who are too young.

GUMMOW J:   So it has three problems.

MR LINDSAY:   It is not every “black child”, by any means, who would fall within the Refugee Convention definition and that is made clear by the Tribunal.  In this case, if this Court was to hold that this child did, then I submit the Minister would clearly be heavily influenced by such a conclusion to hold that it is appropriate that he grant permission in the public interest.

GLEESON CJ:   The reason, correct me if I am wrong, the child was born out of wedlock was not that its parents chose not to get married.  It was that it was not lawful for them to marry because of their age.

MR LINDSAY:   Yes, that is right.  Yes, it was their age.

GUMMOW J:   Is not the effect of this to put pressure on the parents to take the child with them when they return to China?

MR LINDSAY:   Of course, the position is when they made the application, this child was not born.  Their application – and it is not a matter of evidence here, but their application was actually on a quite different basis.  It had nothing to do with the principles in Applicant A or anything else.  This child was born 15 months after their application had been refused.

Since it is conceded that - at any rate, the proposition of law - if the child qualifies the child may get in notwithstanding that the parents have been refused, by just referring your Honours to the comments made in the written submissions at pages 7 and 8 on those points, namely, that it is recognised in both the Schedule 2 of the migration legislation that there is a basis upon which a child can make a specific application as well as on a family unity basis, that if the child succeeds under the specific claims head then, of course, it would be open to the parents if the Minister gives the permission for them to come under the family unity.

KIRBY J:   This problem must have arisen.  I think your citations are of the United Nations handbook and of Goodwin‑Gill’s book.

MR LINDSAY:   Yes.

KIRBY J:   But is there case law on this?  This problem must have arisen in other jurisdictions, that is that the child is, for the purposes of the Refugee Convention and domestic law incorporating it, a separate person.

MR LINDSAY:   There is Regulation 866, the regulations which specifically deal with ‑ ‑ ‑

KIRBY J:   I realise that.  You have mentioned that but has this issue been addressed anywhere else in the world?  This must be quite a common problem of children of tender age who make a claim on their own behalf.

MR LINDSAY:   I am not aware of it.  It was raised in the case before a single judge of the Federal Court of Salem Subramaniam where it was accepted by Justice Davies that it was open to the Tribunal to find a well‑founded fear by the disabled son if the parents, who in their own right had slight claims, could establish that they had a well‑founded fear that their disabled son would suffer persecution.

KIRBY J:   It seems a fundamental principle that a baby is another human life and is a separate human being and separate person for the purpose of Australian legislation.

MR LINDSAY:   Yes.

KIRBY J:   But where does that lead to?  Assume you succeeded on that point but fail on everything else in the appeal.  I am keen to know whether that leads anywhere or is that just a mistake in the reasoning of the Full Court that does not affect its ultimate order and that we have to look at the more fundamental questions, or does it lead on to success for you that the matter has to ‑ ‑ ‑

MR LINDSAY:   Your Honour, I understand I really need to succeed on each of the three main grounds of appeal.  I need to succeed on the first, “for reasons of”, and if your Honours accept that it was not just for reasons of the fact that the parents had the child in contravention of policy I need to succeed on the basis, though it appears to be, perhaps, conceded that the child has a claim independent of the parents, and I need to succeed that the child’s social group has not been defined by the apprehended persecution.  Those are the three things which ‑ ‑ ‑

KIRBY J:   Would you remind me of the first point, again?  I am sorry, I did not hear it.

MR LINDSAY:   Yes.  The first point is that I need to succeed - that the apprehended persecution was by reason of the appellant belonging to a social group of “black children” because the Full Court has said that the “for reasons of” is not established but the real reason was the parents contravened the relevant Chinese laws.

KIRBY J:   And is that the point upon which the respondent says no, it is not because the child was a “black child” but because the parents were in breach of Chinese law?

MR LINDSAY:   Yes.

KIRBY J:   Why can it not be both?

MR LINDSAY:   Exactly.  It no doubt can admit a number of reasons why apprehended persecution occurs but I submit that it is quite ‑ ‑ ‑

KIRBY J:   Does the Act or Applicant A hypothesise that it is the duty of the Tribunal and of courts to assign one and one only cause?

MR LINDSAY:   No, your Honour, Applicant A does not suggest that.  As I mentioned earlier, the case of Jahazi which was a judgment of a single judge in the Federal Court, there the comment was made by Justice French.  It is number 3 on the list of authorities.  The comment was made in that case by Justice French that membership of a group may be a contributory cause and not the sole cause.

KIRBY J:   Now, I interrupted you.  Speaking for myself, it would have been helpful if you had said, “I have to prove three points and I am now going to deal with the first point”.  I interrupted you when, presumably, you were dealing with the first point by citing the House of Lords.

MR LINDSAY:   Yes.

KIRBY J:   Did you complete your citation of that?

MR LINDSAY:   Just in regard to the House of Lords judgments, again I submit that the test most of their Lordships use is to say ‑ ‑ ‑

GUMMOW J:   I think their Lordships are speaking inconsistently…..  You just cannot come here and say the House of Lords have said this.  Three cheers, let us take all that on board.  What Lord Millett said is probably closer to what ‑ ‑ ‑

MR LINDSAY:   There are various passages of the majority, in particular, Justice McHugh in Applicant A, were approved by the House of Lords.

KIRBY J:   But this is court of a foreign power.

MR LINDSAY:   I should say, were adopted by the House of Lords.

KIRBY J:   Why should we be looking at this with any particularity?

MR LINDSAY:   I do not understand that their Lordships are in any sense taking issue with what was said in Applicant A.

KIRBY J:   Is there something you want to particularly get out of this decision that is of guidance to us, or help to us in this problem?

MR LINDSAY:   There are no points additional to those which are referred to in my written submissions, that Lord Hoffmann uses the test, What was the persecution?  Because of membership in a particular group? – I submit that the appellant here would satisfy that particular test, and that for reasons of - was established in the House of Lords case on the basis that there was a case of discrimination against the claimants who were Pakistani women who suffered social discrimination which the State did not protect them against.  Therefore they helped – most of the Law Lords held that Pakistani women, by reason of the fact they were not protected by the State, could constitute a social group.

GUMMOW J:   That is half the population.

MR LINDSAY:   It is a very extensive ‑ ‑ ‑

GAUDRON J:   It seems to me, defining a social group by reference to legal disabilities, if not by persecution, which is what Applicant A said you could not do, or at least what Justice Dawson said you could not do in Applicant A.

MR LINDSAY:   The majority in Applicant A were acknowledging it, anyway – that a group may be very large; a group can be very extensive, indeed.  It may also be the case that not all members, of course, of that group are subject to discrimination, far less persecution.

GAUDRON J:   Of course, a social group can be, but to connect persecution with a very large social group in which not all members are persecuted seems to me to be going around in a circle.

MR LINDSAY:   There was not unanimity, as your Honour will be aware, on the test to be adopted.  There was a broader test which was, say, Pakistani women, in effect, who were not given protection by the State.  There was also a narrower definition given by some of their Lordships, namely women who transgressed the perceived social mores in Pakistan, being suspected of adultery, and who do not receive social protection.  So, the test was enunciated by different members of the court in different ways.

GAUDRON J:   How does this bear on this case so far as the social group is concerned, anyway?  It is a different sort of concept you are dealing with.

MR LINDSAY:   I respectfully agree.  Only in this sense, that the respondents have emphasised very much the issue of motivation, and they have laid emphasis on the fact they maintain that the motivation was not to strike at the “black child”, but really the motivation was to implement a general policy. 

I submit that motivation is not really something which one needs to have regard to, though I submit that on the evidence it is made out here, when one has regard to Shah’s Case, because Shah’s Case did not involve motivation on the part of the perpetrators of persecution at all.

KIRBY J:   Shah’s Case is this case in the House of Lords?

MR LINDSAY:   Yes.

KIRBY J:   Well, again, I remind you that is the court of a foreign power. It may be of some help to us, but it is not binding on us.  Would it be helpful to us to have a look at what the Tribunal found on this point, and what the Full Court found reversing them, and then have your brief submissions as to what the error of the Full Court’s finding was?

MR LINDSAY:   So far as what the Tribunal ‑ ‑ ‑

KIRBY J:   It is pretty hard to say that the “black children” so‑called, are not a recognised social group.  It would seem to me pretty hard - but in any case if a fact‑finding tribunal so finds, you have to have very good reasons to set it aside.  You have to show that they have misdirected themselves in law.

MR LINDSAY:   The findings by the Tribunal are on pages 22 and 23.  Page 22 line 35 to the bottom:

It cannot be said with any plausibility that the unfortunate consequences which may well befall Chen Shi Hai upon return to the PRC would result from any malignity, enmity or other adverse intention towards him on the part of the authorities there.  The evidence all suggest that the authorities intend to penalize those who have children outside the approved guidelines, i.e. the parents, not the children themselves.  Even in that case, their actions are arguably aimed at achieving the goal of a national population policy directed at what is a very real concern at the possible adverse effects of a burgeoning population, and any adverse motivation towards those who breach the policy may be a secondary phenomenon, if it exists at all.

Then he says:

I do not need to express a concluded view on this point.  It is enough to point out that while the actions of the Chinese authorities may well have the effect of producing long‑term consequences for Chen Shi Hai serious enough to be considered persecution, that will not, on any evidence known to me, be the motivation of those authorities.

KIRBY J:   But that is not on the point that I thought we were addressing, that is to say that they are a recognised social group with the coherence, the cohesion and a commonality of features that link them together and make them fall within that statutory and convention description.

MR LINDSAY:   Page 9 says at line 19:

A child is a “black child” irrespective of what persecution may or may not befall him or her.  If the PRC Government decided tomorrow to cease penalizing “black children” and their parents, they would nevertheless remain “black children”.  Identification as a “black child” precedes whatever persecution may follow.

KIRBY J:   They say at page 9 line 35:

identifiable (a matter of external perceptions…..distinct from a crowd lacking common identifiers or experience:

MR LINDSAY:   Yes.

KIRBY J:   Is it your understanding that the respondent asserts here that they are only defined by the persecution or the disadvantages which they suffer?

MR LINDSAY:   I understand that is the submission, yes.

KIRBY J:   But that is a challenge to the finding, which I take to be a finding of fact at page 9 line 20 that:

If the PRC Government decided tomorrow to cease penalizing “black children” and their parents, they would nevertheless remain “black children”.

MR LINDSAY:   That is correct.  If your Honours go to page 11, really from the top of the page there to line 21, that is the finding there.

KIRBY J:   The top of page 9 are you referring?

MR LINDSAY:   Page 11 now, your Honour, lines 1 to 16.

KIRBY J:   Yes.

MR LINDSAY:   And in fact, 19 and 21 were also formal finding that the appellant is a member of that group.

KIRBY J:   How did the Federal Court feel themselves able to override that decision?

MR LINDSAY:   They considered that the definition of the “black child” was by reference to the nature of the persecution apprehended, because the “black child” is a child born outside the parameters of the one‑child family regulations and policy in China.

KIRBY J:   Where do their Honours deal with this?

MR LINDSAY:   Page 6 lines 8 to 10:

I understand the term “black child”, in this context, to mean a child born otherwise than in accordance with applicable marriage and family planning laws of the PRC.

KIRBY J:   You are now reading from the Tribunal decision.

MR LINDSAY:   Yes.  I am sorry, you were asking for the Full Court.

KIRBY J:   I am saying where do the Full Court of the Federal Court, whom we are now dealing with on appeal, conclude that they were authorised to reverse the finding that you just read to us.

GUMMOW J:   Well, they did not, did they?  What they focused on was 264 line 25 to so‑called causal link between the membership of a group and persecution.

MR LINDSAY:   Yes.

GUMMOW J:   They said the so‑called causal link was not there.  I do not think they denied the finding.

MR LINDSAY:   Certainly, your Honour, the causal link was one of the matters.  Page 274 lines 24 to 29.

GAUDRON J:   I am having some difficulty in understanding the relevance at line 25 with the reference to the principles in Applicant A in the context of the present case.  Is the Full Court there suggesting that maybe these people are not a social group, or is it dealing with the question of causation, or by reason of?

GUMMOW J:   Causation, is it not?  Then, the paragraph at 271 commencing at line 10 going through to 31.

MR LINDSAY:   Certainly, page 271 is a causation matter.

GUMMOW J:   Line 28 seems to come back to Lord Hoffmann again in causation.

MR LINDSAY:   I read what their Honours are saying at page 274 to be saying that in this case, by defining the social group of “black children” as children born outside the parameters of the regulations the Tribunal was impermissibly defining the group by reference to the apprehended persecution.  That is how I read it, your Honour.  I would be pleased if that was not the case, but ‑ ‑ ‑

GAUDRON J:   That notion, as I understand it, comes from what was said by Justice Dawson in Applicant A.  I am not too sure that it is not a somewhat elliptical way of talking about causation anyway.  Not simply saying, you cannot define a persecuted group in terms of the persecution, and then say that they are persecuted by reason of being people who are persecuted.  I am not sure if what Justice Dawson was not doing was exposing a circularity of argument which related to causation rather than membership of the class, or perhaps related to both in that particular context.

MR LINDSAY:   Your Honour, I understood very much what was behind what the majority was saying in Applicant A, that they were concerned that this membership of a particular social group was in danger of becoming a safety net for applicants who did not fall within one of the other four convention ‑ ‑ ‑

GAUDRON J:   I think they were dealing with the words of the Convention, and trying to get them content in a particular context.  I do not think this Court was dealing with policy reasons at all; safety net considerations; it was dealing with the construction of the Convention.

MR LINDSAY:   But by having limited - the Convention by having limited to five convention attributes they were, as I understand it, putting parameters upon what a social group is; those parameters not allowing the, in effect, social group to just be driven by ‑ ‑ ‑

GAUDRON J:   The Court was not doing anything.  It was giving meaning to the words.  This Court does not put parameters on things in this context; it gives meaning to the words.

MR LINDSAY:   Putting a definition on the social group, and I understand that is what Justice Dawson was seeking to do, and that he was taking each of those terms, membership, particular social group, and defining them.  The point was made, I think both by Justice Dawson and by Justice McHugh, that that definition was not meant to be a safety net for matters which did not fall within one of the other four convention attributes.

GAUDRON J:   Yes, that is to say you did not define a class by reason that they were persecuted persons.

MR LINDSAY:   Yes; and it is my submission in this case, that the appellant is not in any sense defined by the nature of the persecution, because the Tribunal made the finding that the persecution was essentially based upon deprivation of benefits and ‑ ‑ ‑

KIRBY J:   The difficulty I have with that line of argument is one that was pointed out by Justice Hayne in the special leave application.  Before 1933 the Jewish citizens of Germany were perfectly ordinary citizens; many of them fought in the Great War and they were well‑respected members of the community, and along came the Nazi Government and the Nuremberg laws, and the laws reinforced the identity of the Jewish people as a particular social group who were in need of refugee protection.  So that I still have the difficulty which I expressed in Applicant A.  I mean, there is no application to revisit Applicant A, but sometimes the law can, if not define, at least reinforce the persecution and the discrimination and the prejudice.  That is sometimes its specific purpose as it was within Nuremberg laws.

MR LINDSAY:   Yes, a legislative instrument may, itself, be the instrument of persecution.

GAUDRON J:   There is a conceptual difficulty, but the shorter answer is that the Jewish people were a social group independently of the laws, and the discriminatory laws, the same as the case here with the “black children”.  Different questions arise where there is not something independent of the laws themselves.  The laws are of general application; there is no independent social group, or pre‑existing social group you can point to.  All you can point to are people who do not agree with the policy of the law.

MR LINDSAY:   Yes, and the Tribunal says this is not some convoluted definition of a group here.  It has various common features to it.  “Black children” are children born without permission, and they may take, as in this case, not the first child, in this case the third child, maybe children born out of wedlock.

KIRBY J:   You have a finding by the Tribunal in your favour on this point, and the Full Federal Court has felt able to disturb that.  It may be more efficient if we leave Mr Tracey to try to defend that disturbance, but that still leaves you with the so‑called causative question.  That is to say that it is by reason of their membership of this social group i.e. “black children”, that they apprehend persecution, or is it proper to classify it and categorise it as being by reason of their parents’ breach of the one‑child policy of the law of the People’s Republic of China?

MR LINDSAY:   Your Honour, in regard to that point, the evidence which was led before the Tribunal was evidence which went to show that in China a group called “black children” were the victim of discrimination and persecution.  That was the evidence led.  It was not like the cases which my friend mentioned in his list of authorities, Amanyar and Ram, where one was looking at particular claimant’s individualised experience of what occurred, and then trying to discern a motive at large as to why, on the part of the claimant, that person belongs to a particular social group.  In this case, there was extensive evidence led that there is a characterised group of “black children”, and it is for that reason that they are “black children”, that they are persecuted.  It is for that reason that they are persecuted.

If one looks at, for example, the Guangxi Regulations themselves, which are set out in the reasons of the majority at page 268, at line 16 there is Article 25 of the Family Planning Regulations, Guangxi Region, which is where the appellant comes from.  Article 25, in my submission, demonstrates clearly discrimination against someone who does not have an Only Child Preferential Card.  Under Article 31:

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.

The Tribunal took those considerations and others into account in saying because this child is a “black child” it will suffer persecution; will be deprived of these benefits; not, in fact, just up to the age of seven, but till well beyond.  It may not ever have an opportunity of employment, or be deprived of medical services, will be deprived of education.

KIRBY J:   Is this what was found to constitute persecution?

MR LINDSAY:   This was found to constitute persecution.  Page 18 of the Tribunal’s reasons, at line 14 onwards:

Although the denial of access to subsidized health and education would be the most prominent disadvantage to the child, the Guangxi Family Planning Regulations indicate that they would not be the only disadvantage.  I point out the phrase “shall not be entitled to any benefits” (emphasis added).  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.

Then we go to the next paragraph at line 31:

Chen Shi Hai will, 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 –

Then it goes on to deal with “the financial predicament of his parents”, that, in effect, they will not be able to alleviate that situation.  So, there is, in my submission, a clear nexus between being a “black child” suffering this kind of deprivation which the Tribunal has found amounts to persecution, and that it is for reasons of being a “black child” that he suffers this persecution.  There are also other extracts ‑ ‑ ‑

KIRBY J:   So you got up in the Federal Court on the two parts of the first proposition that you have to establish.  You succeeded.  You established that the “black child” was a recognised social group, and you established that the well‑founded fear of persecution was by reason of that fact.

MR LINDSAY:   Yes.

KIRBY J:   How did the Federal Court leave aside the first of that point, the “black child”, how did they feel entitled to reclassify the cause of the persecution?  What was the error they found; the error of law they found on the part of the primary decision maker?

MR LINDSAY:   Their Honours do not appear to have addressed so much an error of law, merely that they assert the conclusion that it was because the child who is born to parents in contravention of the one‑child policy, that this occurred.

KIRBY J:   This is a Judicial Review Act proceeding in the Federal Court, is it?

MR LINDSAY:   Yes.

KIRBY J:   It is not some special appeal right that I am not familiar with?  This is an AD(JR) application?

GAUDRON J:   The matter was on appeal to the Full Court, was it not?

MR LINDSAY:   Yes, the Migration Act.

GAUDRON J:   But the matter was on appeal to the Full Court from a single judge who had found error on the part of the Tribunal in requiring some sort of enmity or malignancy either to the individual or, perhaps, to the social group.

MR LINDSAY:   Yes.

GAUDRON J:   The trial judge had said that was wrong.

MR LINDSAY:   That is right.

GAUDRON J:   Then it came to the Full Court, and the Full Court allowed an appeal from the trial judge without dealing with that question, saying the decision was right because it was not on grounds of - it was not because of - they were not persecuted because of being “black children”, they were persecuted because they were simply having the sins of their parents visited upon them.

MR LINDSAY:   Yes, the Full Court did accept the reasoning of the single judge to the effect that the test applied by the Tribunal of enmity and malignity was not the correct test.  They accepted that, but they merely made the assertion, nonetheless, finding that the apprehended persecution was not because the appellant was a “black child”, but was contravention of the one-child policy.

GUMMOW J:   The jurisdiction of the Federal Court was founded in Part 8 of the Migration Act, surely?

MR LINDSAY:   Yes.

GUMMOW J:   What did Justice Nicholson do?

MR LINDSAY:   Justice Nicholson was for the matter going back, not allowing the appeal, but for the matter to go back before the Tribunal to consider whether the appellant belonged to ‑ ‑ ‑

GUMMOW J:   Yes, but on what basis?  On what basis would his Honour have allowed the appeal?  That is what I do not understand.  He still would have allowed the appeal.

GAUDRON J:   Yes, but I think he differed from the order and did not attach at first instance, wanted to send it back for a declaration, or something like a declaration, that the child is entitled to be treated as a refugee.

MR LINDSAY:   Yes. 

GUMMOW J:   At the bottom of 288, he would grant leave to add the new ground but the new ground would raise the question – the new ground appears at 285 – they are all about whether the primary judge should have held that the Tribunal could not find that this was “a particular social group”.

MR LINDSAY:   The grant he proposed is at the top of page 288, for the matter to go back:

The matter should then be remitted to the Tribunal to reconsider the question whether the respondent is a member of a particular social group in the light of the characterisation of the relevant laws by the Tribunal, the previous evidence and findings and other relevant matters including the view expressed by McHugh J at p264 of Applicant A –

GUMMOW J:   I do not understand that.

MR LINDSAY:   No, I have some difficulty in understanding what his Honour thought needed addressing there.  The fact of the matter was ‑ ‑ ‑

GAUDRON J:   He seems to be referring back to what he said - the passage that is extracted at page 286 at the bottom:

persecutory conduct cannot define the social group –

but –

the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.

That is what you say has happened here.

KIRBY J:   This is your third point in your propositions, is it not?

MR LINDSAY:   Yes, that is right.  He is saying one cannot necessarily say on the evidence that the social group is being defined by the persecution.  That is something which the Tribunal should consider.  I think that is what he saying, but how it is actually couched makes it appear more as if he is characterising in terms of the persecution.

GLEESON CJ:   Now, your objective is to uphold the decision of Justice French.

MR LINDSAY:   Yes, your Honour.

GLEESON CJ:   Have you put to us the principal arguments on which you wish to rely in that respect?

MR LINDSAY:   I submit that, just taking the three essential points, the Tribunal had made a finding that there was an apprehension of prosecution, they had made a finding that “black children” belonged to a social group, that the nexus was made out on what the Tribunal found, but the reason why they did not find that nexus was because they applied the wrong test in law.  That test in law which was wrong that they applied was the test in Amanyar of enmity and malignity, and it would appear that it was accepted both by all members of the Full Court and by Justice French that that was not the right test.  Indeed, Amanyar was not actually a case looking at the Convention.  It was looking at the definition of persecution ‑ ‑ ‑

GUMMOW J:   Yes, well, that led Justice French to say there had been an error of law on the part of the Tribunal.

MR LINDSAY:   Yes, he said there had been an error of law and he said that it was quite clear from the evidence reviewed by the Tribunal itself that the necessary nexus was established.

KIRBY J:   That would lead to an order that they reconsider it with the correct principle of law absent that error.

MR LINDSAY:   In fact, his Honour is of the view that it should go back on the basis that the applicant fell within the definition of “refugee”.

KIRBY J:   I saw that his Honour did that, but was that a correct view of the relationship between his Honour and the Tribunal?  Justice Gummow has pointed out that this was an application for an order of review under the Migration Act.

MR LINDSAY:   Yes.

KIRBY J:   That is at 25 in the appeal book.  It is expressed in terms of error of law so, presumably, that is the only warrant for the Federal Court to review the decision of the Tribunal.  Did Justice French hold that there was only one answer available in the facts of the case?

MR LINDSAY:   Yes, that is what he found.  He found, in effect, there was only one answer available.

GAUDRON J:   Then on the findings, the findings permitted of only one answer.

MR LINDSAY:   That is correct.

GLEESON CJ:   And you seek to support that?

MR LINDSAY:   Yes, indeed.  Because of the findings on persecution, because of the findings on the particular social group, there is only a question, if your Honour thinks on the findings and applying the correct test in law, the necessary nexus was established.

GLEESON CJ:   Now, have you covered the main arguments you wished to address to us in support of your application?

MR LINDSAY:   Yes, your Honour.  I will just say that that was the first point.  The second point appears to be conceded, namely, that the child can be a refugee, notwithstanding this ‑ ‑ ‑

KIRBY J:   But you say when it went up to the Full Court, they made a separate error of law of their own.

MR LINDSAY:   Yes, that was the second point.

KIRBY J:   In regard to the second point, and the third point?

MR LINDSAY:   The third point is that the social group of “black children” is not being defined by the apprehended persecution which would offend against what the majority was saying.

KIRBY J:   You say on the finding of fact of the Tribunal below, it pre‑existed and will last after the removal of any laws that define persecution?

MR LINDSAY:   That is correct, it can be defined independently.  It is not dependent upon the laws of proscription for its definition. 

GLEESON CJ:   Yes, thank you, Mr Lindsay.  Yes, Mr Tracey?

MR TRACEY:   If the Court pleases, can I deal with the matter of details first.  There was some discussion earlier about the relationship between the child appellant and the family and how that operated in the context of refugee law.  There is a principle in refugee law that has been described as the principle of family unity and the Court will find it dealt with in Goodwin‑Gill’s latest edition at 118 to 119.  What it is ‑ ‑ ‑

GUMMOW J:   What year is that edition, Mr Tracey?

MR TRACEY:   It is 1996, your Honour.  What it effectively holds is that a child may have the benefit of the relationship with the parents if the parents are recognised as refugees, but they do not get the detriment.  If the parents are not refugees, they can still make the claim as a child through their parents.

KIRBY J:   So, do I read your submissions correctly that you concede that in so far as the Full Court suggested that they simply have to be viewed as alter egos of their parents, that that is an error on the part of the Full Court?

MR TRACEY:   If the Full Court is interpreted as having stated a proposition that widely, yes.  It may be that in context – and your Honour will be conscious that the Full Court speaks of in the context of this case and the circumstances of this case – they may not be in error, but if they are understood to provide a wider proposition, then we do not seek to support it.  But that principle is reflected ‑ ‑ ‑

KIRBY J:   Could I ask you this then.  Assuming that is so, could not that approach have infected the entire reasoning of the Full Court, that they were not really looking at the separate entitlements of this child but looking at the entitlements of the child as a child of these particular parents?

MR TRACEY:   No, your Honour, they were doing it only in the context of one particular aspect and that was subjective fear, and they were saying that a child of those tender years could not have the necessary subjective fear of persecution, so one has to look at it through the mind of the parents who can hold that fear on behalf of the child.  Now, the proposition thus stated does not, as we would have it, apply necessarily in the same way to parents and child.  The parents, for example, might have a fear of return to China, of persecution by reason of some political opinion that they hold.  It is not inconsistent with that for them to hold a subjective fear on behalf of the child of persecution affected under laws relating to the one-child policy, so that we do not, for that reason, seek to support that passage on the last page of the joint judgment.

KIRBY J:   Is the “well-founded fear”, does that constitute a subjective feeling on the part of the subject of the fear, or does a court attribute to a person who is a child?

MR TRACEY:   It has to be both, your Honour, it has to be both.  It has to be subjectively held and it has to be objectively based.

KIRBY J:   So, where you have a child and you cannot expect the child to have the subjective element, how do you cope with that?

MR TRACEY:   Through the parents, your Honour.

GAUDRON J:   And in the case of an orphan?

GUMMOW J:   Why is this subjective/objective requirement which comes out of Chan’s Case, I think  ‑ ‑ ‑

MR TRACEY:   Yes, your Honour.

GUMMOW J:   Why is it applicable to infants of very tender years at all? Why was it not just objective?

GAUDRON J:   Yes, why would you not simply say a fear can be imputed to this child in these circumstances?

MR TRACEY:   We would not ‑ ‑ ‑

GUMMOW J:   Otherwise orphans are in real trouble.

MR TRACEY:   Yes, I understand that, your Honour, and we would not seek to suggest otherwise.  It is simply that in the context of this case, the subjective fear was the fear identified by the parents when they approached the Tribunal on behalf of the child.

GUMMOW J:   Yes.

KIRBY J:   I notice that the child is said not be a citizen of Australia.  Is there some provision in the Migration Act that deprives a person born in Australia of citizenship, or purports to do so?

MR TRACEY:   Your Honour, I am not sure whether it is the Migration Act or citizenship legislation, but it has been the case in Australia for some ten years now that children born of persons who are here unlawfully cannot, as they were enabled in earlier times, to assume Australian citizenship.

KIRBY J:   Has the constitutional validity of that question ever been passed on by this Court?

MR TRACEY:   Not that I aware of, your Honour, but  ‑ ‑ ‑

KIRBY J:   Anyway, it is not in issue in this case.  There are decisions in the United States about these issues.

MR TRACEY:   Yes.  Your Honour, we will, if it would assist, provide a reference to that legislation as soon as possible.  Can I just complete this ‑ ‑ ‑

GUMMOW J:   In other words, in constitutional terms, they are treated as aliens?

MR TRACEY:   Yes, your Honour.  They assume the same status as their parents, effectively.  Can I just draw the Court’s attention to the relevant part of the Migration Regulations which give effect in domestic law to that principle of family unity to which I have referred.  It is to be found in the criteria that are applied in determining whether someone gets a protection visa, and it is Regulation 866 which in substance says that if one member of a family is entitled to be recognised as a refugee, then that benefit extends to other members of the family without the need for independent proof on their part.

KIRBY J:   So you accept that the child is a separate person and has to be dealt with on its own merits, getting the benefits but not losing any benefits, getting disadvantages?

MR TRACEY:   Yes.

KIRBY J:   The fact that the parents have lost their application is not determinative.  You have to deal separately with the child, and if then the child separately is entitled to refugee status, then that will have consequences under these regulations automatically without the Minister’s decision, and that is just a different avenue by which the family unit gains the benefit.

MR TRACEY:   Yes, if this goes back to the Tribunal and the Tribunal determines that the child is a refugee, the parents have the benefit of that finding.

GUMMOW J:   Whereabouts specifically?

MR TRACEY:   It is 866.

GUMMOW J:   Decimal point?

MR TRACEY:   Point 222, your Honour.

GUMMOW J:   Yes, “the Minister is satisfied”.  What power or duty does the satisfaction of the Minister under 866.222 trigger?  It is not self‑supporting.  It triggers something else.

MR TRACEY:   No, your Honour, it is one of a number of criteria.

GUMMOW J:   Yes, but what section in the Act does it trigger?  It has to be attached to something else.

MR TRACEY:   Yes, your Honour, it comes out of the first part in section 36 which starts the process.

GUMMOW J:   Plus section 65, is it?

MR TRACEY:   Then, your Honour, section 31 provides for the prescription of classes of visas.

GUMMOW J:   Section 36, protection visa class.

MR TRACEY:   Yes, your Honour.

GUMMOW J:   Then you get to section 65, is it?

MR TRACEY:   Section 65 is the decision use that binds the Minister to find ‑ ‑ ‑

GUMMOW J:   That would oblige a grant upon satisfaction, would it not?

MR TRACEY:   Yes, your Honour.

GUMMOW J:   Thank you.

KIRBY J:   So that technically it still does require the Minister’s satisfaction  ‑ ‑ ‑

MR TRACEY:   Yes.

KIRBY J:    ‑ ‑ ‑ but by that round robin, he is obliged to have that satisfaction, is that the result?

MR TRACEY:   It was, effectively, yes, your Honour, and if satisfied there is no discretion, he has to grant the visa.  If the Court pleases, our ‑ ‑ ‑

KIRBY J:   Does that have the consequence – it is not determinative, of course, any more than in Applicant A the position was – that if any “black child” got to Australia and was entitled to a protection visa, that that would then pick up the entirety of the family of that “black child”?

MR TRACEY:   Your Honour, I do not want to give an off-the-cuff answer to that because there is a distinction drawn between applicants who make application whilst in Australia and in the migration zone and those who make it outside, and I am not sure that it can be applied to people who are not in Australia, but ‑ ‑ ‑

KIRBY J:   It has been pointed out that in this case, in any case, there are additional factors in the case of this particular child.  It is not just the “black child” factor, but ‑ ‑ ‑

MR TRACEY:   Yes, and the whole family is here – when I say the whole family, the older daughter is still in China, but the mother and father and this child and another child are here.

KIRBY J:   Obviously, if every “black child” who could get to Australia could have an entitlement to be treated as a refugee and then to attract entitlements to all members of that child’s family, at least potentially, that is a very large number of refugees as a class.

MR TRACEY:   Indeed, yes, your Honour.  Our principal submission, if the Court pleases, is that this particular case can be determined by an application of the principles determined by the Court in Applicant A, and the first and simplest way ‑ ‑ ‑

KIRBY J:   Could I just interrupt you to say, of course, in 1938 the number of Jews in Europe would have also been a very large number.

MR TRACEY:   Yes.

KIRBY J:   You cannot determine these questions of law, as Justice Gaudron pointed out, on consequences.  You have to determine it on the true meaning of the statute incorporating the international convention to which Australia has subscribed.

MR TRACEY:   Your Honour will, of course, understand that we are not agitating any adoption of any principle of that kind.

KIRBY J:   No.

MR TRACEY:   At its simplest, the respondent’s case is that there is a critical finding of fact made by the Tribunal which was open to it that any persecution which the appellant may face in China would not occur by reason of his membership of a particular social group.  That is a finding of fact and ‑ ‑ ‑

GUMMOW J:   Whereabouts is that?

GAUDRON J:   But it is a finding of fact which is brought about by reason of the notion that there must be some enmity, malignity, is it not?

MR TRACEY:   We say not, and may I demonstrate that.  Your Honour, the finding is at page 24, lines 16 to 18:

he does not face a real chance of persecution there –

in China –

“for reasons of” his membership of a particular social group as that phrase has received exposition in the Australian courts.

GAUDRON J:   It is “as that phrase has received exposition in the Australian courts”, takes you back, does it not?

MR TRACEY:   To “particular social group”, not to “for reasons of”.

GAUDRON J:   I am not too sure that, properly understood, the notions are discrete.

MR TRACEY:   With respect, your Honour, we submit that they are, and it is because – as Justice Dawson recognised amongst other members of the Court in Applicant A – you have to have the causal link.  You cannot just have the coincidence.

HAYNE J:   But how can you read it in the fashion you do, Mr Tracey, in light of the earlier clause in the very sentence?  You seek to attach “as that phrase has received exposition” to “particular social group”, do you not?

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   And you put inverted commas around the words “for reasons of”. 

MR TRACEY:   I understand that, your Honour, but it follows immediately after the phrase, “particular social group”, and throughout these reasons ‑ ‑ ‑

HAYNE J:   No, it does not.  It follows the expression:

I am bound to hold that although Chen Shi Hai faces a real chance because of (in strict causative sense)…..he does not face a real chance of persecution there “for reasons of” –

as understood.

MR TRACEY:   Your Honour, it may be that nothing turns on it.  The reason that it occurred to us that the reference to exposition in Australian courts was fastening on a particular social group is because the member of the Tribunal has referred earlier in these reasons more than once to the exposition of Australian courts as to what is meant by a particular social group.

GUMMOW J:   No, it was by reference to pages 21 and 22, centring on the notion, say, at about line 14, “They must act out of ill-will”.

MR TRACEY:   Yes.  Can I ‑ ‑ ‑

GUMMOW J:   As a component of “for reasons of”, it means malice, in effect, which no one defends, I do not think.

MR TRACEY:   Yes.  Your Honours, nothing may turn on this – in fact, we would submit it does not, and I am prepared to accept for the purposes of developing the respondent’s argument that the linkage is back to “for reasons of”.

GLEESON CJ:   Let us proceed on that assumption.

MR TRACEY:   Yes, I am happy to do that, your Honour.  One then goes back to pages 22 to 23, where the member of the Tribunal says that:

It cannot be said with any plausibility that the unfortunate consequences which may well befall Chen Shi Hai upon return to PRC would result from any malignity, enmity or other adverse intention towards him or 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.  Even in that case, their actions are arguably aimed at achieving the goal of a national population policy directed at what is a very real concern at the possible adverse effects of a burgeoning population, and any adverse motivation towards those who breach the policy may be a secondary phenomenon, if it exists at all.  However, I do not need to express a concluded view on this point.  It is enough to point out that while the actions of the Chinese authorities may well have the effect of producing long-term consequences for Chen Shi Hai serious enough to be considered persecution, that will not, on any evidence known to me, be the motivation of those authorities.

GLEESON CJ:   What was the point of the word “arguably” on the bottom of page 22?  What else might they be aimed at achieving?

MR TRACEY:   I do not know the answer to that, your Honour.  There would seem to be rationally no other basis.

GLEESON CJ:   Well, it just occurs to me that it might be possible to substitute for the word “arguably” the word “obviously”.

MR TRACEY:   Yes, indeed, but ‑ ‑ ‑

GAUDRON J:   Is this not the sort of reasoning that says, “I’m not hitting you to hurt you, I’m hitting you for your own good”?

MR TRACEY:   Your Honour, it is ‑ ‑ ‑

HAYNE J:   Much deployed in some schools some years ago.

GAUDRON J:   Yes, I mean, is that not what it comes to?  That is to say, that you can divorce, when you are looking at causation – “by reason of”, you can say, “Oh no, it didn’t cause it because that wasn’t my motive”?

GLEESON CJ:   Is it right, Mr Tracey, that everybody who has looked at this matter at all levels has accepted that there is persecution?

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   I am not suggesting that that is wrong.  I am just suggesting as a possibility that if there ever were any room for any argument, it might have been at that point.

MR TRACEY:   Yes, your Honour.  One of the reasons I suspect it has not happened was that the Tribunal found as a matter of fact that these disabilities and disadvantages constituted persecution in a relevant sense and no one sought to test it because, certainly in our case, there seemed to be better points.  But I understand what your Honour says.  It is the last sentence that is of critical importance in responding to your Honour Justice Gaudron’s earlier question because, in our submission, what it does make plain is that he has put aside enmity, malignity and things of that kind.

GAUDRON J:   Yes, but he is still talking about motivation.  It has been well understood, I think, at least in the area of discrimination that motivation has nothing to do with it.  In a context in which you talk about discrimination by reason of or on grounds of, it is well understood in that context that you do not look to the motivation.  You do not say the employer is not discriminating against women by reason that he will not employ pregnant women because he thinks it is for their own benefit that he does not.  You just do not look at motivation in that context.

MR TRACEY:   That jurisprudence has not carried over into construction of the Convention.

GAUDRON J:   Why not?  Where has the jurisprudence that inserts that into the Convention come from?

MR TRACEY:   Your Honour, it comes from a construction of the Convention that has been adopted by this Court.  Perhaps a convenient place to find it is, at page 21 of the appeal book you will see a long extract from the judgment of his Honour Justice Burchett, which was agreed to with two other members of the Federal Court in Ram and the linkage of the various elements of the definition of “refugee” are there drawn together and in a way that requires the reason of the discriminator to be one of the Convention reasons.

GAUDRON J:   Yes, well, let us test that.  That is to say we are talking in a country where there are distinct religious communities, or there are distinct religious minorities.  There is a majority religion which influences government and influences law and they say these minority people should be exterminated.  We are not doing it because we hate them, we are doing it because that is God’s law.  No motivation there either.  It is just a funny notion to bring into this area.  You could almost say, “I am not motivated to do it because I have a higher purpose”, or, “I am obeying God’s law”, or, “I am obeying military command or orders higher up”.  The whole Nuremberg trial would have disappeared if you could have escaped liability on the grounds that I was not motivated.

GLEESON CJ:   Or I plan to produce the result that the rest of the population will not starve.

HAYNE J:   Or is purer.

MR TRACEY:   Your Honours, if one looks at motivation in purely subjective terms, then it is very difficult to disagree with your Honour’s reasoning but we would submit that under this treaty, what is required is an objective assessment and it may well be ‑ ‑ ‑

GAUDRON J:   Then it may well be that the Jewish people would not have been classed as refugees if somebody could say, “No, we are not doing it because they are Jewish, we are doing it because we need their money”.

MR TRACEY:   Can I direct your Honour’s attention to the speech of Lord Millett in Shah at 574 to 575 where he grapples with just this problem and may we respectfully adopt, by way of response to your Honour’s proposition, what is said in his Lordship’s speech.

GAUDRON J:   Sorry, page?

MR TRACEY:   Bottom of 574, your Honour, starting between letters h and j.

HAYNE J:   What do you understand his Lordship to be meaning when at 575 letter b, his Lordship says:

Such persons are discriminated against because they are members of the social group in question;  but they are persecuted because they refuse to conform, not because they are members of the social group.

What is the distinction his Lordship is there drawing?

MR TRACEY:   Yes, your Honour, I have two reactions to that sentence.  The first was that there was possibly the word “not” left out of the first part but that does not seem unlikely ‑ ‑ ‑

HAYNE J:   His Lordship is seeming to draw some distinction between discrimination and persecution.

MR TRACEY:   The use of the word “but” in that way suggests as your Honour says, but it does not seem that the meaning would be any different if the conjunction “and” had been used instead of “but”.  It does not really seem to be drawing a distinction.

HAYNE J:   What is the distinction, if any, that you say is to be drawn between discrimination, in the context of which his Lordship speaks, and persecution?

MR TRACEY:   Well, it is a matter of degree, your Honour.  Discrimination is not necessarily persecutory.

HAYNE J:   Thus does it go back to the point his Honour the Chief Justice put to you that, perhaps, there may be an issue in this kind of case about whether the consequences, being the illegitimate born second or third, amount to persecution.

MR TRACEY:   Indeed it does, your Honour.

GAUDRON J:   You said that there was authority in this Court that said motivation was an element.

MR TRACEY:   Well, yes, I had referred you to Ram, and Ram was accepted by three members of the majority in as being the correct exposition.

GUMMOW J:   That is a bit of an overstatement, is it not?

GAUDRON J:   What exactly was said in Applicant A?

MR TRACEY:   It was not exactly disapproved, your Honour.

GAUDRON J:   Well, you seem to be retreating further and further by the minute.

MR TRACEY:   Well, I am not retreating.  In fact, I ‑ ‑ ‑

HAYNE J:   Simply advancing in a different direction, that is what the Army says, Mr Tracey.

KIRBY J:   What sounds like…..British battle strategy.

GUMMOW J:   I am looking at 284.  I accepted that proportion of Ram which indicated that what you were looking to was people being persecuted for something perceived about them or attributed to them by their persecutors, ie, the Jewish people as distinct from some isolated act of harm to ‑ ‑ ‑

MR TRACEY:   There was a less qualified acceptance of Ram in Justice Dawson’s reasons in Applicant A ‑ ‑ ‑

GUMMOW J:   In other words, they are being persecuted for something that is perceived about them, well, that seems just obvious.

MR TRACEY:   Indeed, your Honour, but could I just direct attention to 242 where Justice Dawson deals somewhat differently – and in a less narrow way, if I can put it that way – with Ram.  There is also reference in Justice McHugh’s reasons to Ram.

GAUDRON J:   At least in Justice Dawson’s judgment that is in a different context.  What he is there doing is exposing a circularity in reasoning and says, “Well, yes, there has to be something there, you cannot just say people are being persecuted because they are a group who have been – on a convention ground – when they are no more than a group who has been persecuted”.  You see, it seems to me once you accept that the words “by reason of” in other contexts does not require motivation or purpose, but relates to a reasoning process, or can include simply a reasoning process, why would it not be the same in this context?  What did they say overseas?

MR TRACEY:   Your Honour, the overseas decisions all require a causal nexus ‑ ‑ ‑

GAUDRON J:   Yes, nobody is getting rid of any causal nexus, it is a question of identifying whether the causal nexus requires malice, mens rea, if you like, in the criminal sense.

MR TRACEY:   Your Honour, we do not disagree with this.  Both the Full Court and Justice French have said one can pursue a purpose for a Convention reason in a way that involves no malice.

GAUDRON J:   Yes, I am doing it because I am acting on orders from higher up.  I bear no harm to these people.  My commanding officer has told me to do it.  I am not doing it because I want to hurt them.  Well, no malice there, is there?

MR TRACEY:   But viewed objectively, it is being done, albeit in a derivative way, in the case of the person taking orders, in pursuit of a reason which brings it within the concept of race, religion, or whatever.

HAYNE J:   Let me illustrate the difficulties into which you get.  A society with insufficient food for its whole population, the dominant ethnic group says, “We cannot feed everybody.  What we will do is we will rid the place of the minority ethnic group.  We will do it because that way we can feed the mothers and children of the dominant group”.  How does one attach a tag to that, malignity or ‑ ‑ ‑

MR TRACEY:   You do not.

HAYNE J:   You are making value judgments of a kind which are intensely difficult and not apt for this field of discourse.

MR TRACEY:   Your Honour, we are not here to assert that malignity and enmity are necessary parts of the definition.  They may be in a given case but it is not our case that they are necessary and for that reason we did not seek to, by notice of contention, challenge the Full Court’s decision in that regard.  What we submit, your Honour, is that on the facts of this case, and having regard to the findings of the Tribunal, one can put malignity and enmity to one side and one still gets to a finding of fact made by the Tribunal that there was no evidence to support the proposition that the application of these laws to the detriment of Chen would be by reason of his membership of the particular social group, namely “black children”.

GUMMOW J:   That comes down to your special pleading construction.

GAUDRON J:   Yes, and when you look at page 22, they said their finding of fact, as it seems to me, is that “It cannot be said” that it “would result from any malignity, enmity”, which you now say we can forget about, “or other adverse intention towards him”, the child.

MR TRACEY:   Yes, your Honour.

GAUDRON J:   So there has to be an “adverse intention” personal to the child.

MR TRACEY:   He is eliminating things one by one that might ‑ ‑ ‑

GAUDRON J:   But are you saying that there has to be ‑ ‑ ‑

MR TRACEY:   No, your Honour.

GAUDRON J:   Well, what do you say is necessary before you can get to this causal connection that is missing in this case?

MR TRACEY:   You have to find, objectively, that the cause of the imposition, or the apprehended imposition, of persecution is membership of the particular social group.  The Tribunal looked at all that, it eliminated ‑ ‑ ‑

GAUDRON J:   Why do you not define membership of the social group then as children of parents who did not comply with the approved guidelines about giving birth?  You would then still have the same problem, would you not?  It would not be sufficient in that circumstance to say, “Well, it is aimed at the parents, not the children”.

MR TRACEY:   Your Honour, we are conscious that the way our friend puts the second argument, namely, the way in which one defines the group of “black children” does involve an element of linkage to the persecution so that, in that sense, what your Honour said earlier, and to which in an indirect way your present question adverts, does tend to highlight that if one looks at it in that way, and there is overlap between the two concepts, that advantage from the point of view of our friend’s argument on the causation point operates as disadvantage when one comes to the definition of a particular social group.

GAUDRON J:   I am not too sure that we are not putting some elaborately sophisticated superstructure on the words of the Convention.

MR TRACEY:   Well, your Honour, on the contrary.  We submit that we are making it very straightforward in saying, as we do, that if it can be said objectively that the persecutor has acted for – by reason of a Convention reason – then an applicant will succeed.  Malignity, enmity, adverse intention all to one side.  Now, they may have a part to play in any given fact situation but it is not essential and it is not ‑ ‑ ‑

GAUDRON J:   Is it sufficient to say he will be subject to these adverse consequences because his parents did not obey the policies, or did not follow the Chinese policies with respect to giving birth to children?

MR TRACEY:   No, your Honour, because laws of general application ‑ ‑ ‑

GAUDRON J:   No, this is not a law of general application.  You see, there is a distinction clearly between this case and Applicant A.  The laws in question in Applicant A were of general application.  If you were to define a social group, it was really defined almost in terms of the people who did not agree with the policy of that law and who then broke that law and who suffered consequences.  This is not a law of general application – 31 – I forget what page it is, “I, child, who is not the sole child”.  It is no more of general application than the law that says redheads have to pay double tax.

MR TRACEY:   Your Honour, with respect, it is precisely the same laws that were being looked at in Applicant A.

GAUDRON J:   No, it is not.  Take me to this passage about what happens to the child?  It was read a little while ago from the - there are two ones.  One which says about the only children getting preferential treatment ‑ ‑ ‑

MR TRACEY:   Yes, your Honour, my friend took you to that.  It is extracted in the joint judgment in the Full Court as part of my friend’s submissions at 268, your Honour.

GAUDRON J:   “Any child”, I suppose that is really “a” child “born beyond the planned limit” - that is specific, that relates to children born beyond the planned limit.  It is like redheads, it is a class.  It is not a law of general application.

MR TRACEY:   It is, with respect, your Honour; it applies generally in China.  There are plenty of ‑ ‑ ‑

GAUDRON J:   So would an Australian law that said, “Redheads pay double taxation” would apply generally in Australia, but it would only bite on redheads.

MR TRACEY:   Yes, your Honour.

GAUDRON J:   Similarly, this one only bites on people of a particular class.

MR TRACEY:   Our criminal laws only bite on those who breach them.

KIRBY J:   This is like the point Justice Hayne made on the special leave application.  The Nuremberg laws were of general application, they just happened to only bite on Jewish people.

MR TRACEY:   But their operative criterion was race which is one of the ‑ ‑ ‑

KIRBY J:   Yes, but so is “recognised social group”.

MR TRACEY:   Yes, it is, and I have not yet come to dealing with the question of whether this child was a member of a particular social group.  It will be our submission that on the findings of the Tribunal, he was not.  Your Honour, I am conscious of the time.  I am happy to continue if that would assist the Court.

GLEESON CJ:   We are going to adjourn at 1 o’clock.  How long do you expect to require to complete your argument?

MR TRACEY:   Your Honour, subject to the usual caveats, I would expect to be finished within 10 to 15 minutes.

GLEESON CJ:   Well, we will adjourn till 2 pm.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.03 PM:

GLEESON CJ:   Yes, Mr Tracey.

MR TRACEY:   I undertook before lunch to provide the Court with a reference to the statutory provision that had the effect of preventing children, such as the appellant, obtaining Australian citizenship by virtue of being born here. It is section 10 of the Citizenship Act as amended in 1986.

KIRBY J:   Thank you, Mr Tracey.

MR TRACEY:   On the issues that were being debated immediately before lunch, may I draw the Court’s attention, without reading them, to a number of passages in Applicant A, starting with the judgment of his Honour Justice Dawson at page 240, the last paragraph starting on that page and going over to the top of page 241.

KIRBY J:   Is there a common theme in the majority in Applicant A on this point?

MR TRACEY:   Yes, your Honour, and I am going on to other judgments where we submit you will find, amongst the members of the majority, your Honour and the Chief Justice had a different view of the matter ‑ ‑ ‑

KIRBY J:   I remember it well.

MR TRACEY:   The judgment of his Honour Justice McHugh at page 256 on to 257.

GAUDRON J:   For what point are we reading these?  For causal connection?

MR TRACEY:   For motivation, your Honour.

GAUDRON J:   Motivation.

KIRBY J:   This is the motivation of the discriminators?

MR TRACEY:   Yes, as forging the link between the persecution and the convention reason.  At page 268, again in the judgment of Justice McHugh, in the second paragraph commencing on that page and two references, if I may, to the reasons of your Honour Justice Gummow at page 284 in the middle of the page and at page 285 in the first paragraph commencing on that page.  It is our submission that those passages all support the notion that the motivator of the persecutor, albeit objectively assessed, is relevant for the purpose of forging the link to which we referred.

Before passing from that first issue, can I just return very briefly as a result of something your Honour Justice Gummow said immediately before lunch, about the way we sought to construe the Tribunal’s reasons, at page 24?  Your Honour, our argument on this first point hinges not on whether one takes one view or the other of that passage on 24; the critical passage and the finding of fact on which we rely is the sentence starting on line 4 of page 23 and going through to the end of that paragraph.  Can I come then quickly to the ‑ ‑ ‑

GAUDRON J:   So you still concentrate on motivation as the relevant causal link, do you?

MR TRACEY:   Yes, your Honour.

GAUDRON J:   And you do not shy away from it?

MR TRACEY:   None at all, your Honour, no.

GAUDRON J:   So that it has to be, the purpose - what, the sole purpose, the dominant purpose -  of inflicting harm on the people concerned by reason of their membership of the class?

MR TRACEY:   Yes, your Honour; it does not have to be the sole purpose, so long as it is a substantial purpose motivating what occurs.

KIRBY J:   And how is that different from the enmity requirement that you seem to have withdrawn from?

MR TRACEY:   Well, your Honour, we have not withdrawn from it; all we say is that it is not essential.  If enmity is present, then it is very good evidence of motivation.  We are not resiling from that.  What we are saying is that, in this case, the Tribunal got where it got without relying on enmity or malignity.

KIRBY J:   And all of this must be read into those words “by reason of”?

MR TRACEY:   Yes, your Honour.

KIRBY J:   You were reading an awful lot of passion into those words when it can be enmity and has to be motivation, and all it says is “by reason of”.  That is all the statute and the Convention say.

MR TRACEY:   Your Honour, it is different from phrases like “based on”, which are typical in discrimination legislation in this country.  It does focus on the reason that the persecution occurs and we say that flows from the language.

KIRBY J:   Do not the anti-discrimination laws of Australia use the formula “by reason of” or words to that effect?

MR TRACEY:   No, your Honour, “based on”.

KIRBY J:   What do they use, “based on”, is it?

GAUDRON J:   That would seem to be no relevant difference, would it?

MR TRACEY:   Well, with respect, no, your Honour; the use of the word “reason”, we submit is significant; it means one has to identify a reason and, in context, we say it is the persecuted ‑ ‑ ‑

GAUDRON J:   The reason is that these are children whose parents did not comply with the one-child policy or the marriage policy or whatever ‑ ‑ ‑

MR TRACEY:   That was exactly what was in issue in Applicant A, your Honour, and the majority spoke in terms of motivation.

The second point in the case as it has developed relates to the categorisation of the children as “black children” and it is our submission that the Full Court was correct to hold that black children did not constitute a particular social group because it was defined, in part at least, by reference to the laws of general application which enforced the one-child policy in China and the penalties therein contained and the basis of that submission is two passages in the Tribunal’s reasons.  Our learned friends took you to the first of them, on which the Full Court specifically relied.  That appears at page 6 of the appeal book and it runs between lines 8 and 10, where the Tribunal member said that he understood:

the term “black child”, in this context, to mean a child born otherwise than in accordance with applicable marriage and family planning laws of the PRC.

So he linked it immediately to the particular laws that were the source of the apprehended persecution.

GAUDRON J:   The laws that are the source of the persecution are not the family planning laws as such, but the one that says that a child, who is not an only child, cannot have subsidised – is not entitled to any benefits including – if you were to define the group by reference to the terms of Article 31 set out at page 268, you would be straight in Applicant A territory, but the persecution does not come from the one-child policy – it does not come immediately from it – it comes from this law that says they cannot get any of these benefits, any subsidies, they cannot get medical care.

MR TRACEY:   Your Honour, with respect, is focussing on, as it were, one section of an Act ‑ ‑ ‑

GAUDRON J:   But we have to.

MR TRACEY:- - -which provides for one of the consequences of a breach ‑ ‑ ‑

GAUDRON J:   This three‑year‑old child, three years old, is not immediately worried about whether he can have one or a dozen children, I bet.  He is immediately worried – if we are to impute a fear to him – that he cannot get medical care.

MR TRACEY:   Well, there are two answers to that, your Honour:  the first is that that is a prescribed consequence of the act of his parents in breaching the laws; it does not stand independently; the second thing is, that only applies as a consequence of his parents’ inability to pay for those services.  It is not a provision that excludes children from medical treatment and says that children outside the policy cannot have medical treatment.  All it says is that the State will not pay for it.  Now, that is a consequence of the parents breaching the laws.

GAUDRON J:   It is also a consequence of the child having been born and surviving; you can deal with it at any level of generality or particularity you want.

MR TRACEY:   Yes, and, your Honour, we accept the logic of what your Honour says.  We submit, however, that the proper analysis for these purposes is, why are these penalties that are the persecutory acts, in ‑ ‑ ‑

GAUDRON J:   At the moment this is how you define the group; that was the argument upon which you were concentrating.  You can define it by reference to their parentage, at which stage, it seems to me, you are automatically out of Applicant A territory.

MR TRACEY:   The Tribunal, your Honour, as your Honour has seen at page 6, defines it by reference to the very laws that impose these penalties.  Now that is reinforced at 11, where the Tribunal at line 4, goes on:

It is a well-known term –

referring to “black children” –

appearing in numerous academic articles on Chinese society, and has a well-understood Chinese equivalent –

and there is a reference to authority for that.

The evidence to be cited below.....clearly establishes that the group “black children” is widely recognized both within and outside the PRC.  Its members may be identified by means of the household registration system, and it appears that they are in practice identified by ordinary Chinese apart from that.

And then this critical sentence, your Honour:

The group shares the characteristic of having been born outside officially approved parameters, a characteristic not shared by the general population.

Now, we submit that in saying that, the Tribunal has used, as part of the defining characteristics of the particular social group, the very laws that impose the penalties, and we ‑ ‑ ‑

HAYNE J:   But in Australian society at the turn of the century, would illegitimate children have been a distinct social group?

MR TRACEY:   Your Honour, they may or may not have been; it depends on the evidence that would have applied as to societal attitudes and things of that kind, but ‑ ‑ ‑

HAYNE J:   If they faced prejudice from the wider population?

MR TRACEY:   Yes, they may well have done, your Honour, but for these purposes that prejudice would have had to manifest itself in persecutory conduct.

HAYNE J:   There may then be a question whether there is persecution of that social group, that I understand.

MR TRACEY:   Yes, but they could well have been, depending on the evidence of societies attitudes and so on, a recognised social group within society, but the point we seek to make is that the principle in Applicant A means that the persecution can form no part in the definition or characterisation of the group.

GAUDRON J:   That is not what Justice McHugh said.

MR TRACEY:   Well, with respect, that is exactly what he said at page 263 ‑ ‑ ‑

GAUDRON J:   He said it may reinforce it.

MR TRACEY:   Could I take your Honour to page 263 and 269 in Applicant A.  If your Honour would look at the beginning of the last paragraph on that page ‑ ‑ ‑

GAUDRON J:   I am looking at the concept of persecution, not the law; he is talking about the concept of persecution.

MR TRACEY:   Yes, we may be at odds, your Honour; I was, I thought, responding to a question by your Honour that was questioning the proposition that I was putting that the persecution can ‑ ‑ ‑

GAUDRON J:   You cannot confine them ‑ ‑ ‑

MR TRACEY:- - -form no part of the definition of the group.

GAUDRON J:   I thought you were saying that the laws by reference to which the persecution is effected can form no part of the definition.

MR TRACEY:   No, I should have been more specific; those laws, of course, contain the provisions which are allegedly persecutory and could I just take your Honour quickly, in the first full paragraph on page 263, his Honour Justice McHugh said:

The concept of persecution can have no place in defining the term “a particular social group”.

And, without reading it, the first sentence of the next paragraph also supports that proposition and there is a similar passage on page 269.

GAUDRON J:   And at page 264:

the actions of the persecutors can serve to identify or even create “a particular social group” –

MR TRACEY:   Yes, your Honour, it may well have been theoretically possible, but it is not the evidence in this case, that the very act of persecution gave rise to a recognisable social group.  If the legislature suddenly fixes on red-headed men for whatever reason, then red-headed men may thereafter become a social group defined by reference to the fact that they had been persecuted.  Now, that would not be sufficient for Convention purposes, but if they rebelled against the discriminatory laws and were regularly seen demonstrating outside the legislature and were then persecuted by reason of their political opinion, they may well become such, and their original source of identification might well have been the persecutory laws, but, your Honour, that is not this case.

We submit that the Full Court did not err in determining that, on the material as found by the Tribunal, the Tribunal in defining the group had had regard and taken into account the characteristic that these children were subject to persecution under the laws that gave effect to the one-child policy and once one accepts that proposition, then Applicant A leads inevitably, we submit, to the conclusion to which the Full Court came, namely that the Tribunal was in error and accordingly that the appeal would be allowed on that ground.

Can I say something briefly about any orders that the Court may make in this matter?  The orders we plainly seek are orders dismissing the appeal, but if the Court were against us, we would submit that the appropriate order is not an order restoring the trial judge’s orders, but rather an order remitting the matter for hearing and determination by the Tribunal according to law.

KIRBY J:   I noticed that.  Justice French, as I raised earlier, at page 249, said that what ought to be done was that it be returned to the Tribunal with the direction that upon its findings of fact the applicant is entitled to refugee status.

MR TRACEY:   Yes.

KIRBY J:   Now, you have not filed a notice of contention protesting that and you have not – or a cross-appeal ‑ ‑ ‑

MR TRACEY:   Well, we have not needed to, your Honour; we appealed to the Full Court on that ground.  The Full Court did not need to deal with it because of the way it disposed of the rest of the matter, but we would submit that, as we did to the Full Court, consistently with this Court’s decision in Guo, the proper order is an order remitting for further hearing, not an order of the kind that his Honour made.

GAUDRON J:   Now if you accept, however, the findings of membership of a social group and persecution, then you say it has to go back because the causal link is missing?

MR TRACEY:   Well that, but also, your Honour - again, if, contrary to our submissions, it is found that the Tribunal erred by applying malignity and base motivation as a requirement, then it did not determine the proceeding, on the wider understanding of “by reason of” that his Honour Justice French found to be applicable and the Full Court found to be applicable.  Now the Tribunal ought to have the opportunity of applying the law thus stated ‑ ‑ ‑

GAUDRON J:   But do you say if you find persecution and membership of the social group, in the circumstances of this case, that a finding is still open that it was not be reason of the membership of the social group?

MR TRACEY:   Very certainly, yes, your Honour.

GAUDRON J:   And how does that come about if we are against you on the arguments you have put today?

MR TRACEY:   Well, first and foremost, your Honour, we submit that the Tribunal did not make a finding of fact that the persecution was by reason of membership of a particular social group.  In fact, we submit, that it found exactly the opposite.

HAYNE J:   What is the finding then at page 24 lines 15 and 16, if it is not 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 –

et cetera.

MR TRACEY:   Your Honour, that runs up against the bare causal connection argument; you have still got to get over the “by reason of”.

GAUDRON J:   Yes, well assume we are against you in the way you define “by reason of”, and motivation, as you put it, is not a constituent part of it, and you have got that finding against you.

MR TRACEY:   Well, if the Court were to find that there was no need to forge that link for convention purposes ‑ ‑ ‑

GAUDRON J:   Well, but the link is satisfied if that is one of the reasons why things happen, regardless of anybody’s motivation.  For example, if you say – and I think there are cases to this effect – women cannot work in a particular category of employment, and the reason why people take the view that they cannot work in that category of employment is because there are no female toilets, it does not matter what the thinking process is, it is still by reason of the fact that they are women that they cannot work.  Now, if that is the only link you need, why is it not satisfied here?

MR TRACEY:   Because it has to be judged objectively.  On one view of it ‑ ‑ ‑

GAUDRON J:   What has to be judged objectively?

MR TRACEY:   The reason that the persecution occurs.  Now there are competing possibilities here:  one is that there is some personal enmity or malignity or something of that kind, that is unlikely; the more likely cause is, as the Full Court said, that the laws of general application in China would be applied to the parents of this child in China.  Now the question arises as to whether, if that be the correct analysis, you can say, even as your Honour puts the proposition, that the linkage has been established.  If the true basis, the true reason, is the application ‑ ‑ ‑

GAUDRON J:   What about a reason?  Why do you keep saying - there is nothing true - nothing true about the definition; you are putting words in here to put a gloss on what the Convention says.  I asked you before, do you want sole or dominant?  No, you said substantial.  All the Convention says, is “by reason of”.

MR TRACEY:   Yes, I accept that, your Honour, and if the reason is, and we say it is open on these findings, that the persecution would occur for no reason other than the application of these laws, harsh though they may be thought to be, then the linkage has not been made good.

GAUDRON J:   And again, which laws are you talking about?

MR TRACEY:   The laws that impose the persecutions.

GAUDRON J:   Well then, why can one not say it is being done because their parents, or this child’s parents, did not obey the law?  Nothing that the child did.

MR TRACEY:   That could well be said, your Honour.

GAUDRON J:   And why would that not be sufficient to make it persecution by reason of and the particular social class being children whose parents broke the law?

MR TRACEY:   It may well be said, your Honour; the Tribunal has not had an opportunity to say it.

GAUDRON J:   No, but it said, “in a strict causative sense”.

MR TRACEY:   Yes.

KIRBY J:   Is your point that the donee of the statutory power is the Tribunal; that the relationship between the Tribunal and the Federal Court is one for correction of error of law, but that the donee of statutory power still holds the power and must be left to exercise it, with the instruction on the law that the Federal Court hear it.

MR TRACEY:   In substance, yes, your Honour; that is what we understand this Court to have held in Guo.

GUMMOW J:   Well, that is not quite right; in Guo the problem was that the Federal Court made a declaration that this person was entitled to refugee status; that is a rather different thing.  This debate really centres upon the powers of the Federal Court under section 481, does it not?

MR TRACEY:   Yes, your Honour.

KIRBY J:   Did not something like this come up in the case that you argued before the Court in X v The Commonwealth; there was some discussion in the Full Court of the Federal Court about the proper function of the Federal Court vis-a-vis the Human Rights Commission?  I think there were similar issues in that case, were there not?

MR TRACEY:   Yes, your Honour, and I cannot remember the name of the case off hand.

GUMMOW J:   What Justice French was doing was applying section 481(1)(b).

MR TRACEY:   Yes, your Honour.

GUMMOW J:   “Subject to such directions as the Court thinks fit”.

MR TRACEY:   Yes, your Honour.  We submit that means, in accordance with the law or in accordance with the law as exposed, not for further consideration and you will decide.

GUMMOW J:   There have been plenty of cases where that has happened, Mr Tracey ‑ ‑ ‑

MR TRACEY:   Your Honour, that is a mirror image of section 16(1)(d), I think in the Judicial Review Act ‑ ‑ ‑

GUMMOW J:   I know it is, and there are plenty of those cases under 16(1)(d).

MR TRACEY:   Well, all of which tend and support the proposition that we contend for, your Honour.

GUMMOW J:   No, they do not.

MR TRACEY:   Very, very few.

GUMMOW J:   Yes, it has to be a very clear case where, on the facts, the law permits only of one answer, and that is what Justice French did.

MR TRACEY:   Yes, and your Honour, the same principle was applied by the Court vis-a-vis the declaration that was in issue in Guo.

GUMMOW J:   No.

MR TRACEY:   That it was inappropriate to make a declaration of right where there were facts that remained to be decided.

GUMMOW J:   Of course, but the basis on which Justice French was acting is that there were not any such facts left.

MR TRACEY:   Indeed, and our contention ‑ ‑ ‑

GUMMOW J:   What is being put to you is, on that assumption, which is adverse to you I know, but on that assumption, and if that was the position established here, why would one then not reinstate what Justice French had done?

MR TRACEY:   Your Honour, the reason – and I have been responding, I hope, to those questions on that assumption that there are facts to be found.  Your Honour will recall that what Justice French found was that the Tribunal had misdirected itself in law when it applied the “by reason of” part of the test and did so by injecting notions of enmity and malignity into it.  Now, if that be right, and we have contended it is not, but if we are wrong about that, then the Tribunal has misdirected itself and has not applied the wider test that would be necessary, namely, finding any relevant reason, be it motivated by base considerations or others.  In that event, the Tribunal has not turned its mind to those wider questions and made necessary findings, and it is for that reason, we submit, that his Honour’s order ought not to be restored, but that it should go back to the Tribunal – it is the Tribunal that, under the legislation, is the trier of fact – to determine precisely what factual position is in relation to “by reason of”.

KIRBY J:   Justice French does not really give very much explanation of why he takes this exception,

MR TRACEY:   No, he does not, your Honour.

KIRBY J:   He just says, “in the circumstances”.

MR TRACEY:   Yes, he certainly does not say there was no other ‑ ‑ ‑

KIRBY J:   Well, what do you say are the other findings of fact that could be made by the Tribunal, with the benefit of the instruction or the kind of understanding of the law that Justice French gives?

MR TRACEY:   Your Honour, the Tribunal could find, as we say it did, and your Honour will understand that I am putting this on the basis that your Honours do not construe the Tribunal’s reasons in the manner for which we contend.

KIRBY J:   Yes, we are being invited to do.

MR TRACEY:   But, your Honour, the sentence on page 23 that we relied on:

It is enough to point out that while the actions of the Chinese authorities may well have the effect of producing long-term consequences for Chen Shi Hai serious enough to be considered persecution, that will not, on any evidence known to me, be the motivation of those authorities.

If that has been found against a background of a requirement of malignity or enmity then it fails.  If it has not, then we succeed on our principal submissions; but if we do not succeed, then it is open to the Tribunal on the evidence, we submit, to come to that finding putting enmity and malignity to one side, and it has not done that.  It has not turned its mind to it.

GAUDRON J:   No, because in a strict causative sense the persecution is because of – well, “because of” is actually stronger than “by reason of”, I would have thought.

MR TRACEY:   That sentence has to be read in context, and in particular in the context of the paragraph from which I have just read, and, with respect, the two do not sit very comfortably together.  That may also indicate a lack of focus by the Tribunal on the true legal test, but if that be the case then the Tribunal ought to be told what that test is and given the opportunity to find the necessary facts, and it has not done that.  If the Court pleases.

GUMMOW J:   Just before you sit down, Mr Tracey, to what extent does your reliance on Guo turn upon here - and the sections are now different - section 65, that is to say, there is a necessity for satisfaction of the Minister?

MR TRACEY:   Or the Tribunal standing in the shoes of the Minister.

GUMMOW J:   That is right.  Is not Justice French saying the Tribunal was bound to be satisfied?

MR TRACEY:   Essentially, yes, your Honour.  We read that into his Honour’s reasons.  His Honour is not very clear about ‑ ‑ ‑

GUMMOW J:   Yes, the cast of the legislation at the time of Guo is rather less rigid as to what flowed.

MR TRACEY:   Yes, that is so, your Honour.

GUMMOW J:   Yes.

MR TRACEY:   If the Court pleases.

GLEESON CJ:   Yes, Mr Lindsay.

MR LINDSAY:   Your Honour, only really a minor point.  In answer to his Honour Justice Kirby with regard to whether the Sex Discrimination Act used the words “for reason of” and my friend said that it used the words, “the grounds of”, in fact, it uses both.  If I can just read section 5:

For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against another person (in this subsection referred to as the “aggrieved person”) on the ground of the sex of the aggrieved person if, by reason of –

Then there are a number of subheadings:

the sex of the aggrieved person –

is one of those headings.  Your Honour, unless there are other points which ‑ ‑ ‑

GLEESON CJ:   Thank you, Mr Lindsay.  We will reserve our decision in this matter.  The Court will adjourn to reconstitute.

AT 2.38 PM THE MATTER WAS ADJOURNED