Chen v Minister for Immigration & Multicultural Affairs

[1999] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P21 of 1999

B e t w e e n -

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

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 AUGUST 1999, AT 2.11 PM

Copyright in the High Court of Australia

MR H.N.H. CHRISTIE:   May it please the Court, I appear on behalf of the applicant. (instructed by Legal Aid Commission of Western Australia)

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

KIRBY J:   This is a new transmogrification of the team.

HAYNE J:   It makes it hard for the junior to tug at the gown, Mr Christie.

KIRBY J:   Yes, very well, you press on, Mr Christie.

MR CHRISTIE:   Yes.  By way of background to this application:  the applicant was born at the Port Hedland Detention Centre in Western Australia.  His parents were unmarried and were Chinese nationals whose own previous claim for a protection visa had failed.  The applicant was their third child.  The applicant applied for a protection visa in his own right.  When the matter came before the Refugee Review Tribunal, the Tribunal found that the applicant was a member of a social group comprising and described as “black children”, namely children born outside China’s marriage and family planning laws.  The social group of “black children” existed independently of the persecution suffered by them and that the disadvantage is likely to be faced by the applicant, as a “black child”, would, in total amount to persecution. 

However, the Tribunal considered it was a necessary element of a successful claim under the convention that the disadvantages sustained by the applicant or the conduct directed against the applicant be motivated by enmity or were directed against the applicant as a member of the group of “black children”.  They found that there was no evidence of adverse intention on the part of the authorities and accordingly the claim must fail.

On application for review his Honour Justice French found that it was unnecessary for the applicant to show enmity on the part of the Chinese authorities.  Justice French reviewed the findings of the Tribunal and found that the Tribunal was in error in failing to conclude the necessary connection between the persecution and the child’s membership of a particular social group.

On appeal by the present respondent to the Full Court, all members of the court agreed that it was unnecessary to show enmity directed towards the applicant.  However, the majority judgment allowed the appeal on three alternative grounds:  firstly that the applicant did not face persecution by reason of being a member of a social group comprising “black children”, by reason of his parents conduct in having a child outside the policy; secondly that where the applicant was dependant on his parents fear to establish such objective fear of persecution, the applicant could not succeed unless the parents had a claim in their own right; and, thirdly, although the majority accepted the Tribunal’s finding that “black children” were a social group, they held that such children could not be said to be a social group for purposes of the Convention, because the group was defined by the persecutory conduct liable to be suffered by its members.

Each of those findings is challenged by the applicant.  As to the first of those findings, the majority’s reasoning appears at paragraph 21 on page 62 of the application book.  In particular, line 30 the majority stated:

Similarly but for his parents’ decision, with full knowledge of all the circumstances, to bring him into the world he would not face persecution.

And then further down at line 40 stated:

In like vein, we consider that the predicament in which he finds himself must be assessed in the light of choices made by his parents.  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.  Their conduct is the relevant cause of the respondent’s sad predicament.

It is submitted that the majority’s reasoning ‑ ‑ ‑

KIRBY J:   But that seems to accept that there is a sad predicament that attaches to the child.

MR CHRISTIE:   Yes, your Honour.  And it is submitted that the majority’s reasoning is flawed in two ways:  firstly, as was stated by his Honour Mr Justice Nicholson at paragraph 65 of his judgment, which is found at page 80 of the application book commencing at approximately line 26.  His Honour states:

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.

His Honour went on to point out that it could not be assumed that the parents had made a deliberate choice in relation to conception.

Secondly, it is submitted that the findings of the Tribunal, as to whether the disadvantages feared by the applicant amounted to persecution were substantially based on the Tribunal’s research of the country information as to the treatment of “black children” in China.  If that evidence is examined, there is a causative link between being a “black child” and the persecution.

Your Honours, the evidence is detailed by the Tribunal at pages 13 to 15 of the application book.  In summary, that evidence shows that there are some elements of disadvantage which are directed against the parents and would only impact on the child indirectly.  For instance, there may be fines on the parents’ loss of work points.  That is found at page 14 lines 10 and page 13 at line 37.  However, many of the disadvantages are directed specifically against the child, although obviously they would incidentally impact on the parents, if the parents take up the financial burden.  For instance, at page 14 of the application book at lines 37 and 38, it is noted that:

the child is usually denied free health care and education.

There is a provision at line 28 that the child has:

no grain coupons and no prospect of education.

There is a reference to Article 31 of the Family Planning Regulations which provides:

Any child born beyond the planned limit shall not be entitled to any benefits including –

et cetera.  That is found at application book page 15.

In addition to those matters, your Honours, an implication can be drawn that the disadvantages directed against the child may impact only on the child without any necessary effect on the parents, as they may indeed be absent or dead.  For instance, the evidence includes the following reference, which is to be found in application book page 14, at line 23, where it is stated:

Many “above-quota” children had been killed in hospitals and orphanages.

KIRBY J:   Can the propositions you are advancing live with the holding of the Court in Applicant A?  I realise that that was a case concerning adults, but are the propositions you are advancing to the Court consistent with the reasoning of the Court in Applicant A, concerning how you define a social group?

MR CHRISTIE:   Your Honour, I would submit that the key distinction between Applicant A and the present case is that the Tribunal found, as a fact, that the group “black children” existed independently of the persecution suffered by them and that was a finding which was accepted by both the trial judge and by the Full Court and, in fact, leave to appeal that finding was rejected by the Full Court - a late application for leave to appeal of that finding was rejected by the Full Court. 

In Applicant A the applicants were found that they must never to fail an application because they were unable to establish that a social group existed independently of the persecution; that they were members of the social group which existed independently of the persecution feared by them and, in my submission, that is the key distinction between the two cases and it is the key to this case that the finding of the Tribunal, based on considerable evidence, that the social group “black children” existed independently of the persecution feared by the children.

KIRBY J:   In your written argument you refer to the opinion of Justice McHugh in Applicant A.  Do I understand that what you are seeking to do is to come to the Court to say that the court below did not apply the principle in Applicant A accurately or are you coming to the Court to have clarified what was said by the Court in Applicant A by reference to an opinion expressed by Justice McHugh, who was part of the majority?

MR CHRISTIE:   Your Honour, that ground arises in relation to the third of the three findings on which the Full Court allowed the appeal, namely, it accepted that there was merit in another late amendment by the present respondent to its Full Court appeal that if “black children” were a particular social group they were so defined by reference to the persecutory conduct liable to be suffered by their members and that by reason of the decision in Applicant A, they could not be a particular social group for the purposes of the Refugees Convention.  Your Honour, I would say that that is contrary to the important passage in Justice McHugh’s judgment in Applicant A and, in particular, the quotation referred to by your Honour stated at page 264:

Nevertheless, while persecutory conduct cannot define the social group, the actions of the persecutors may serve to identify or even cause the creation of a particular social group in society.

In my submission, the majority of the Full Court has failed to properly interpret and accept what was said by Justice McHugh in Applicant A and, for that reason, the third finding is in error in that the Tribunal, having found was a fact and accepted by the Full Court that the “black children” were a social group, which existed independently of persecution sustained by them, then it follows that it is a social group on which the applicant can rely.  Given my earlier submissions that it is clear on the evidence before the Tribunal that the persecution feared by the applicant was directed specifically to “black children” or children born outside the regulations or outside the policy, then it must be accepted that the necessary causative link can be shown by the applicant.

KIRBY J:   Mr Christie, we might interrupt you at this stage to call on Mr Tracey, and we may come back to you.  We will watch where your clock was when we stopped you.

MR CHRISTIE:   Thank you, your Honour.

KIRBY J:   Mr Tracey, there seems to be at least two matters of importance here:  one is clarifying what is said to be a nuance of difference, but not an insignificant one, between what the majority held in Applicant A and what Justice McHugh held; can you use the persecutory conduct, ultimately based upon law, to, as it were, reinforce social attitudes that already exist on other grounds?  And, secondly, the question of the separate existence and identity of the child, distinct from the parents, which would seem to be the correct construction of the statute.  So they are the two matters which, at least, I think, at the moment may attract special leave.  Perhaps you might address them.

MR TRACEY:   Well, as your Honour has already noted, the dictum of Justice McHugh was not a position that commended itself to the majority of the Court.

KIRBY J:   Not in terms.  Justice McHugh’s reasons in Applicant A have been followed, and I do not know whether on this point, by the House of Lords, since the decision of this Court was handed down, so if there is a difference within the Court, it may be desirable that that be clarified.

MR TRACEY:   But, your Honour, in any event, we would submit that this is not the vehicle to test that point, because the Tribunal found that the characteristics that set apart the people who formed this particular social group were characteristics that were created, not by societal attitudes, but by the laws of general application that applied in China in order to give effect to the “one child policy” and restrict population growth.

HAYNE J:   How would that differ from the Nuremberg laws?

MR TRACEY:  I am not sure what your Honour is getting at, I am sorry.

HAYNE J:   Well, the laws in Germany of the 1930’s were laws of general application, since that they applied throughout the country and they applied to the convert to Judaism as much as they applied to the person who was born a Jew.

MR TRACEY:   Yes.  Your Honour, they were laws that had, as their underpinning motivation, racial discrimination.  The laws that apply in China that seek to enforce the “one child policy” are laws designed to achieve what many would regard as entirely legitimate social goals, namely trying to maintain reasonable population levels in a country that is already heavily overpopulated.

HAYNE J:   Then the criterion of reference is not general applicability; the criterion of reference is classification of the goal to be achieved by those laws, a shift which seems to me to be quite large in that it would invite this country to pass upon the desirability of social goals in other countries.

MR TRACEY:   Well, your Honour, this Court, of course, had to grapple with those very laws in Applicant A.

HAYNE J:   In the case of the parent.

MR TRACEY:   Indeed, but, for the purposes of your Honour’s question, we would say there is no material distinction between parent and child.

HAYNE J:   Am I right in thinking that the social group part of the instrument was directed to persecution of people like the Kulaks of Russia?

MR TRACEY:   Precisely, your Honour.

HAYNE J:   And, what distinguishes those who are affected by the “one child policy” provisions and those who were affected by some of the laws of the Stalinist regime, who were seen as the middle class that needed to be dealt with?

MR TRACEY:   Your Honour, it has to do with the means adopted in the internal legislation in order to achieve the particular objectives.  The means adopted by the Chinese Government to deal with the population problem have been to place restrictions on who may have children, how many children married couples may have and so on, but ‑ ‑ ‑

HAYNE J:   And denial of economic results.

MR TRACEY:   Yes, that is the only effect.

HAYNE J:   But so too, with the Kulak’s, was it not, that they were dealt with economically as well as by other much more extraordinary means.

MR TRACEY:   Yes.  Your Honour, the focus of the laws to which your Honour is referring was a race.

HAYNE J:   No, the Kulaks were not; the Kulaks were the middle class of Russia; the landholders.

MR TRACEY:   Yes, an economic group, your Honour.

HAYNE J:   Just so.

MR TRACEY:   Whereas these laws are more truly able to be described as laws of general application, because they apply to anybody in the community who are of child-bearing age.

HAYNE J:   And who has a child, just as the hypothesised laws of the Stalinist time were directed to those who owned land.

MR TRACEY:   Yes, but, your Honour, these laws are directed to people who may be considering having children and may not have any.

HAYNE J:   Yes.  The example I raise, Mr Tracey, to try to identify what is the criterion of operation that is being given in the persecution on account of social class decision that we find reflected in Applicant A and whether that criterion of operation is one that therefore applies to the child as it applies to the parent.

MR TRACEY:   Yes.  Your Honour, it is principally directed at the parents.  In so far as a child is affected, it is as to consequences, and there may not be any consequences.  As the Full Court pointed out here, if the parents have the financial resources, then any problems that might be visited on the child, as a result of the parents’ breach of the policy, will be negligible or non-existent, because the parents will be able to pay for the schooling, the parents will be able to pay for the health care, and so on, so that there is no certain outcome, vis-a-vis the child, of the parents breaching this policy, as reflected in the law.  Whereas, clearly, if there is a breach, then the parents will be affected, certainly, because of the terms of the law.  But, again, the extent to which they are affected may well depend on their economic circumstances.

HAYNE J:   But is then the criterion that is being applied a mixed one, general applicability of the law throughout China.

MR TRACEY:   Yes.

HAYNE J:   What?  Nature of the effect on the child, is it?  It is that I am grasping for and I am having difficulty with, Mr Tracey, and perhaps these are points that would need to be debated were leave to be granted on an appeal, but that is the kind of difficulty which gives me cause to pause and wonder whether these are not issues that should be agitated in the context of the child’s position rather than the context of the parents’ position, as was dealt with in Applicant A.

MR TRACEY:   Well, your Honour, for the reasons that I have just advanced, we would submit that given that, in Applicant A, this Court was not prepared to go, as it were, behind the Chinese laws and engage in this sort of exercise where the parents were concerned.  It is less appropriate, we would submit, to do so in a case involving the children because, whereas these laws would have an effect, definitely, one way or another on the parents, they may not have any effect on the child, depending on the economic circumstances of the parents.

KIRBY J:   Yes, but as Justice Nicholson said in the court below, the child is a definite separate human entity and entitled as such to the protection of our law and just some of the language in the Full Court rather suggests that there was an amalgamation of the child with the personality of the parents.

MR TRACEY:   Yes, and, your Honour, the Full Court may well have put it a little too broadly, but, in the context of this case, the position adopted by the Full Court, we would submit, was entirely correct because it was precisely the same laws that the parents were concerned about in so far as they were alleging persecution when they sought to be recognised as refugees and that they were relying on, on behalf of their child, when the child made the application.  So there was no separate element; it was not as if there was a separate law or a separate conduct feared in China.

KIRBY J:   We do not have the parents before us and, as I understood Mr Christie’s submission, he is not seeking to completely reopen Applicant A; he is just simply saying that the position of the child is separate, that it did not get proper consideration because it was subsumed to the parent and, in any case, there is a nuance in the reasoning of Justice McHugh, which, in a sense, softens the application of the principle laid down in Applicant A, at least in the case of a child or for the case of a child.  Especially if you think that the Full Court erred in the way that it treated the child as subsumed to the parent, and I gather you are prepared to concede that some of the language there ‑ ‑ ‑

MR TRACEY:   No, your Honour; what I was conceding was that the proposition at the very end of the reasons, where the Full Court said that it, as a matter of logic, could not be the position that the fear of the parents which did not avail them in their refugee application, being the same fear that was relied on for the child meant that the same outcome must always flow in relation to the child, may have been too broadly stated, but was right in the context of this case, because it was the same law.  In theory, one could imagine circumstances in which the subjective fear of the parents was of a different form of persecution from the subjective fear that they bore for their child, because there was some other basis on which the child might be persecuted.  And so, to that extent, the proposition advanced by the Full Court is too broad.  But, in the context of this case, it is not, because it was precisely the same law.

HAYNE J:   But the laws application.  The law of theft has rather different applications to the thief and the person whose property is stolen; it is the same law.  The fact that there is here an application to a parent and an application to a child, without more, does not tell you that the application is identical.  One must first consider the precise application.

MR TRACEY:   And, your Honour here, the parent and child are both thieves; they are both the people ‑ ‑ ‑

HAYNE J:   I knew I should not have started the analogy; it was going to lead us astray at once.

MR TRACEY:   But your Honour, more substantially, one does have to look to the law and one has to ask the question, “What is the prohibition that the law contains and what are the consequences of breach?”  Now, the prohibition is on having more than one child and the prohibition is against having a child out of wedlock.  The consequences are that, in respect of the second, third or whatever child it may be, certain benefits that are available to other children within society:  free education, free medical attention, and things of that kind, are not available.  Now that, as I say, may or may not have an effect ‑ ‑ ‑

HAYNE J:   But the application will be very different.  The parent might be out of its pocket in meeting the medical bill.  The child may be out of medical attention.

MR TRACEY:   Well, your Honour, it may bear more heavily on the parents in the sense that they have got to find the funds, but the child gets looked after.

KIRBY J:   If they can.

MR TRACEY:   If they can, that is true.

KIRBY J:   And in a society which, as I understand the evidence, treats them, in a sense, as outcasts, not just because of the fact that they have breached the “one child policy” but because, in this case, the child is illegitimate, so there is a dual reason.

HAYNE J:   Do you not have to confront directly the fact that there was an adverse factual finding by the Tribunal, namely that there was a distinct social group?

MR TRACEY:   Yes I do have to confront that, your Honour, and it is important to note, in our submission - and this appears at application book page 10 - that although the Tribunal did, as your Honour says, say that this group operated independently, at line 17, where the Tribunal turns its attention, as it had to do, to identify the characteristics that enabled you to identify who is a member of the group, the characteristics, as the Tribunal says, are being:

born outside officially approved parameters –

so it is a reference straight back to the law and that is exactly what was held in Applicant A, was an impermissible way of defining the particular social group.

KIRBY J:   But if Justice McHugh, who was part of the majority, is supported by the Court, then you can have a separate basis of prejudice which reinforces a group, which is, as it were, enhanced or helped to be defined, by legal specificity, but their prejudice is still there; people who are anti-social, people who are anti-social in respect of their marital relations, in respect of their children.  May that not be an important question?

MR TRACEY:   If you start out left handed and there is a general community up-serge against left-handed people that is then reflected in laws, then, what his Honour says may well be right, although we say, as we said originally, that did not commend itself as a view to the majority, but, even if that be right, in this case there is no evidence that the “one child policy” laws grew out of any such social view or approach, so that the laws are not reinforcing some societal prejudice that was already there; they are there to achieve a social object.

KIRBY J:   No, but what Justice McHugh is suggesting is that the law may have a symbiotic relationship with deep felt pressures of orthodoxy and attitudes to society which are of themselves sufficient to define a social group, but which are then reinforced by legal imperatives, and that, it seems to me, although I was in the minority in Applicant A, is an important nuance, as I have described it, that it might be as well as clarified, starting from the basis that Applicant A is the authority of the Court.

MR TRACEY:   Your Honour, it would be very difficult it for it to be able to be satisfied or clarified in this case, because there is no finding of the Tribunal that suggests the pre-existing underlying prejudice of the kind to which your Honour has referred.  Now, it may be that in another case it exists, but it is not apparent in this case.

KIRBY J:   I thought there was some material about illegitimacy, as it used to be called.

MR TRACEY:   Your Honour, the closest it comes is a reference by the Tribunal to the position that might have existed in this country in the 50s or 60s, but it does not go any further than that.

KIRBY J:   Yes.

MR TRACEY:   And, most importantly, there is nothing to suggest that the population control legislation grew out of any such prejudice or societal feeling.

KIRBY J:   No, I do not think that can be suggested, no, but it may tap into and take advantage of it.

MR TRACEY:   Well, even Justice McHugh does not go that far.  He seems to be suggesting in his left-handed person example that it is that that informed the legislation, the prejudice informs the legislation and reinforces it, and that, we submit, is a different issue.

KIRBY J:   Yes.  Anything else, Mr Tracey.

MR TRACEY:   No, thank you, your Honour.

KIRBY J:   Thank you very much.  The Court does not need your further assistance, Mr Christie.  There will be a grant of special leave to appeal in this application.  Is this a matter that would take less than a day?  Can you help us with that, Mr Tracey?

MR TRACEY:   Your Honour, it was done in half a day before the Full Court and it would be certain that it would not take any longer before this Court.

KIRBY J:   Would you agree with that, Mr Christie?  Half a day has been estimated.

MR CHRISTIE:   Yes, I would agree.

KIRBY J:   And would it be convenient, there being, I think, some desirability that the matter should be disposed of by way of hearing as quickly as the Court can do so, to have the matter heard in the October sittings of the Court in Perth?

MR CHRISTIE:   I am much obliged to your Honour, we would be asking for that.

KIRBY J:   Would that be appropriate?  That is what you would be asking?

MR CHRISTIE:   Yes, from the applicants’ point of view.

MR TRACEY:   It is not a view that we would express any opposition to, your Honour.

KIRBY J:   No.  Very well, if there is space in the October list of the Court in Perth, the Court notes that the hearing would probably take of the order of half a day and the matter will be listed, if there is a space, in the October sittings in Perth.

AT 2.45 PM THE MATTER WAS CONCLUDED