NACM v Minister for Immigration

[2003] FMCA 170

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NACM & ORS v MINISTER FOR IMMIGRATION [2003] FMCA 170

MIGRATION – Review of decision of Refugee Review Tribunal – no lack of procedural fairness – no breach of s.424A – no jurisdictional error.

Migration Act 1958 (Cth)
Migration Legislation Amendment (Procedural Fairness) Act 2002

NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Stead v State Government Insurance Commission (1986) 161 CLR 141
Re Refugee Review Tribunal; Ex parte Aala (2000) 24 CLR 82
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2002) 195 ALR 502
Kioa v West (1985) 159 CLR 550
Kanda v Government of Malaya [1962] AC 322
Muin v Refugee Review Tribunal [2002] HCA 30
ReMinister for Immigration & Multicultural Affairs; Ex parte A (2001) 185 ALR 489
WAAJ v Minister for Immigration Multicultural & Indigenous Affairs [2002] FCAFC 409
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74
WAID v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCA 220
Lobo v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCA 144
VBAC v Minister for Immigration Multicultural & Indigenous Affairs [2003] FCA 205

Applicants: NACM, NACN & NACO

Respondent: THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SZ1194 of 2002

Delivered on: 15 May 2003

Delivered at: Sydney

Hearing Date: 10 April 2003

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicants: Ms C. Salsone

Solicitors for the Applicants: Coelho & Coelho Solicitors

Counsel for the Respondent: Mr G. Kennett

Solicitors for the Respondent: Clayton Utz Lawyers

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1194 of 2002

NACM, NACN & NACO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision made by the Refugee Review Tribunal on 29 August 2002 and handed down on 19 September 2002 in which the Tribunal affirmed a decision of a delegate of the respondent to refuse to grant protection visas to the applicants. 

2. The applicants are wife, husband and son who claim to be citizens of the Peoples Republic of China.  They arrived in Australia on 23 September 2000.  On 31 October 2000 they lodged an application for protection (class XA) visas.  On 10 January 2001 a delegate of the respondent refused to grant protection visas and on 6 February 2001 the applicants applied to the Tribunal for review of that decision.  The applicants claim to be at risk of persecution because they have twice breached China’s one child policy and for reasons of their religion.  The applicant husband and wife stated that after the birth of their first child (the applicant son born in 1989) they had a daughter in 1997 in breach of China’s one child policy.  It was claimed that their daughter remained in China.  They had a further child born in Australia in October 2001. 

3. The applicant wife claimed that if she returned to China she would lose her job, be unemployed and be disciplined and punished because she had breached the one child policy.  She was concerned that the family’s household registration would be cancelled and that they would be sent to the countryside.  She claimed that the family planning commissioner had told her that the registration of her son (the first child) that would be cancelled, that he would not be able to go to school and she would have to pay a fine as she had taken a bonus for having only one child.  It was claimed that her son would also lose the other benefits that are available upon registration, such as access to health care.  She produced a notice from her employer dated 7 January 1998 which stated that she was to be expelled from her national employment position, that she would be watched (on probation) for a period of three years, that she would have to work as a cleaner and that she would lose all annual bonuses.  The applicants also claimed that notwithstanding recent relaxation of the one child policy in Shanghai, they would still be persecuted because of their inability to pay the fines that would be imposed by the officials who enforced the policy or the bribes required by corrupt officials who were willing to turn a blind eye to enforcement of the policy.  They claimed that, notwithstanding the relaxation of policy, in practice they would not be able to secure registration or have available to them the benefits associated with registration for their two children born in breach of the policy.  The applicant husband also claimed that he would lose his job if he returned to China because his wife had breached the one child policy.

4. The Tribunal accepted that the applicants were Chinese nationals from Shanghai and that they feared they would be persecuted because they had breached the one child policy and because of the religion (Catholic) of the applicant husband.  While the Tribunal found much of the applicants’ evidence regarding the birth of their second child inconsistent and unconvincing, ‘giving them the benefit of some doubt’ the Tribunal was satisfied that the applicant mother gave birth to a second child in 1997 which was discovered by her work unit in 1998 and that the applicant mother was penalised for this breach. 

5. The Tribunal referred to independent evidence, in particular a number of DFAT country information reports: CX42750 of 16 June 2000; CX43140 of 27 June 2000;  CX46100 of 7 November 2000 and CX46615 of 21 November 2000 as well as a DFAT submission on the one child policy which in turn referred to and quoted passages from country information reports.  (The applicant claims that the DFAT submission refers to “large passages from country information report CIR number 297/99, CX36797,” but in fact the reports quoted are those referred to above and report CX36797 which is reproduced at page 123 of the Court Book is a country information report dated 12 August 1999 from DFAT dealing with refugee claims relating to treatment of Catholics in southern China which is also discussed by the Tribunal in its reasons for decision).  The Tribunal findings and reasons are based largely on this independent evidence.  Hence the Tribunal noted that while country information indicated that many people had been seriously affected by the one child policy, it also indicated that application of the policy varied from place to place.  Evidence as to the situation in Shanghai, the home of the applicants, was considered.  The Tribunal referred to Shanghai’s relaxation of the one child policy enabling second children to register for permanent residence thus entitling them to official access to public health care, education and work.  It also referred to information suggesting that there was an absence of concrete policy or legislative change in areas under Shanghai’s jurisdiction in relation to family planning regulations.  The Tribunal noted evidence that parents sometimes have difficulty registering their child if they fail to pay outstanding fines, that this can mean that unregistered children may have difficulty accessing medical and educational services but that this is rarely a serious problem if parents can afford to pay for these services.  It referred to evidence that in Shanghai the municipal authorities had recently decided to take responsibility for education and basic health of children born to parents not registered in Shanghai. 

6. The Tribunal suggested that the applicants’ claims (that they would face serious penalties for breach of the one child policy, would be unemployed denied household registration, may be forced to the countryside and that the applicant son would be denied access to education and health) would seem to be at odds with the information described.  In particular the Tribunal noted that the applicant son is a first child and was registered.  Hence he is not and would not be considered to be a “black child”.  The claims were also found to be at odds with the applicants having been issued with passports in 2000 and being allowed to travel to Australia.  Further, in relation to the claimed fear of unemployment, the Tribunal noted that the 1998 notice from the applicant’s employer, while stating that she had lost her job, continued that she would be on probation and would be demoted to cleaning duties.  The Tribunal also noted DFAT advice that it was unaware of difficulties arising for people returning from overseas with more than one child.  This was relevant as the applicant wife has given birth to a third child in Australia.  The Tribunal concluded that it was not satisfied that there was a real chance that the applicants had been or will be denied household registration or access to employment education and health care as a result of their breach of the one child policy should they return to China.  It was not satisfied that any fear of persecution was well founded.  The claim based on religion was rejected.  The Tribunal noted that the applicant husband did not claim to be Catholic and did not press any claim that he feared persecution for reasons of his religion.  It was not satisfied that the applicants would be persecuted if they returned to China or that any fear of persecution was well founded. 

The application

1. The ground relied upon by the applicants in these proceedings was that the Tribunal’s decision was affected by a failure to afford procedural fairness. It was claimed that the Tribunal in reaching its decision had relied upon information contained in the reports referred to and that none of this “independent evidence” had been brought to the notice of the applicants either prior to or during the hearing before the Tribunal, that such independent evidence was critical to the Tribunal’s decision and that the applicants were effectively denied the opportunity of responding to the information contained in that material and addressing the matters which the Tribunal relied upon in reaching its decision. It was submitted that this amounted to a breach of the rules of natural justice being procedural unfairness. It was also submitted that section 424A of the Migration Act 1958 (Cth) is not a rigid code which excludes the common law principle of procedural fairness and that in any event the exceptions in section 424A(3) did not apply and the section was breached. It was claimed that the information relied on by the Tribunal was of relatively recent origin and contained an element of surprise which invited a specific response from the applicants (relating to their specific contention that notwithstanding the apparent relaxation of the one child policy in China they would not benefit from any such relaxation because they did not have the means to either pay the heavy fines imposed by the officials who enforced the policy or to bribe those officials who were willing not to enforce it). It was said that they were denied the opportunity of being able to call upon evidence in relation to the practical realities of the apparent relaxation in policy.

2. It was submitted that the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 meant that as the Tribunal decision involved jurisdictional error it was not a decision that was valid and protected from judicial review because of section 474 of the Act.

3. The respondent argued that section 424A was intended to be a complete statement of the Tribunal’s duty to place potentially adverse material before an applicant, and that in light of section 424A, procedural fairness did not require that an applicant’s attention be drawn to specific items of “country information”. Furthermore it was said that there was no contravention of section 424A. The respondent also addressed more generally the general principles of procedural fairness and submitted that those principles did not require that the information in the particular country reports be specifically drawn to the applicant’s attention.

The issues and relevant law

1. As Mr Kennett, Counsel for the respondent, submitted, there are essentially four questions to be addressed in this case. First was the Tribunal subject to common law rules of procedural fairness or only to the duties imposed by section 424A of the Act? Second, if the common law rules applied were they breached? Third, if only the statutory duties in section 424A applied were they breached, and fourth, if there was any breach did the error go to jurisdiction particularly in light of section 474? In light of the way in which the arguments were presented it is appropriate to consider first whether it has been established that the applicants were denied procedural fairness in that the Tribunal failed to bring to the applicants’ attention, either before or during the hearing, material and information contained in newspaper articles, country information reports and DFAT cables and a departmental submission.

2. As Lindgren and Stone JJ suggested in NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 52 it is necessary to determine the scope and content of the requirements of natural justice in the particular factual circumstances of the case and whether those requirements were met. In determining the scope of the requirements of natural justice in NAFF, the Court adopted principles from earlier cases that what must be demonstrated is “unfairness” and that the concern of the law is to avoid “practical injustice”.  (See Stead v State Government Insurance Commission (1986) 161 CLR 141, Re Refugee Review Tribunal;  ex parte Aala (2000) 24 CLR 82 and the observations of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs;  ex parte Lam (2002) 195 ALR 502 at 34 and 37.) Procedural fairness in the present context requires not only that the applicants be given a reasonable opportunity to present their case to the Tribunal but also that they be given a reasonable opportunity “to deal with matters adverse to [their] interests that the repository of the power proposes to take into account in exercising the power”. (Kioa v West (1985) 159 CLR 550 at 628 per Brennan J citing Kanda v Government of Malaya [1962] AC 322 at 337). However as McHugh J pointed out in Muin v Refugee Review Tribunal [2002] HCA 30 at 123:

   “This does not mean that the source and nature of all material that comes before the decision maker must be disclosed but “in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made” (Kioa v West (1985) 159 CLR590 at [629] per Brennan J in relation to adverse information that related to the applicants personally)

3. According to McHugh J what is required to discharge this duty depends on the circumstances of the particular case (at para [123]).  Similarly Kirby J in Muin at 231 indicated that the “substance of the material” should be conveyed to the applicant.

4. In this case the Tribunal relied on independent information and other considerations (such as the issue of passports and the ability of the applicants to travel) to reject the claims of the applicants that they would face certain more extreme types of treatment, such as denial of household registration or access to employment, education and health care.  The independent information was relied upon in support of the conclusion that the adverse effects of a breach of the one child policy would be no greater than a difficulty in registering the second child and that those adverse effects could be avoided by the payment of fines and penalties.  No transcript of the hearing was submitted but it is apparent from the Tribunal’s description of matters put to the applicant wife in the course of the hearing, that the points that the Tribunal took from the country information were raised with the applicants (see Court Book 90-91).  For example, it was put to the applicants that the Tribunal could find no evidence that punishment such as cancellation of household registration and being sent to the countryside would be imposed on those who breach the one child policy.  The applicant wife was given an opportunity to comment.  She expressed her worries that this would happen.  Similarly it was put to the applicant wife that the Tribunal could find no evidence that the first child would lose registration as claimed by the applicant wife.  This was in response to a claim by her that her son’s registration would be cancelled and that she would have to pay a fine.  This claim by the applicant wife indicates that she was at that stage aware of the issue of imposition of fines.  It was also specifically put to the applicant wife that a second child could be registered by paying fines for breaching the policy.  The applicant wife stated that this would take money.  The Tribunal also put to the applicant husband that he could avoid losing household registration by paying a fine.  He responded by suggesting that they would be fined heavily. 

5. In the absence of a transcript and based on the Tribunal reasons for decision, it is apparent that the Tribunal alerted the applicant wife to the fact that it was not inclined to accept certain aspects of her claims, in particular aspects on which the country information provided contrary material.  It has not been established that the Tribunal failed to put any critical issues to the applicant.  In these circumstances I am not satisfied that a failure to specifically draw to the attention of the applicant the actual country information relied upon constitutes a failure of procedural fairness. 

6. The applicants were told the substance of the adverse information that was credible, relevant and significant to the decision to be made and were given an opportunity to comment on such information.  This is not a case where the applicant has been deprived of the chance to put a case because a new development or issue not previously canvassed has not been disclosed such as to allow an applicant to deal with such material (cf Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 179 ALR 238 and Muin).  There was no such element of novelty in this case in relation to the relevant issues.  The information relied on by the Tribunal predated the Tribunal hearing (the report CX42750 was dated before the applicants arrived in Australia and lodged their application, the report CX46615 dated 21 November 2000 was after the initial visa application but before the application to the Tribunal and the report CX46100, while dated 7 November 2000, described conditions at around the time the applicants left China and applied for visas.  The press release referred to (CX43140) was from June 2000 and the DFAT submission on the one child policy quoted country information reports and other information from August to November 2000).  It was conceded for the applicants that the actual relaxation in government policy would not have caught the applicants by surprise but suggested that what was new was the assumption by the Tribunal that the relaxation of policy meant that there would be no discrimination or persecution of anyone who breached the one child policy.  However even if such an assumption were made by the Tribunal this would be an aspect of the Tribunal thought processes rather than something identifiable in material which the Tribunal should have brought to the attention of the applicants. 

7. Nor is this a case where an application was decided on the basis of material other than that relating to the case put by the applicants (cf that part of the judgment of Gaudron J in Miah relied on by the applicant (at [77] to [86]). There was not in this case any failure to consider the substance of the applicants’ claims. The real complaint is that the Tribunal did not accept what the applicants said about their ability to pay fines or penalties. This does not establish that there was a denial of procedural fairness. It concerns the fact-finding process of the Tribunal. Further, the applicants knew the claims they were making and were aware of the concerns raised by the Tribunal. There was no obligation on the Tribunal to give the applicants particular documents just to ensure that they were in a position to address the relevant issues provided they were made aware of the substance of adverse matters. The cases relied on by the applicants do not support this claim. While the High Court confirmed in Miah that procedural unfairness can constitute jurisdictional error, in that case the material in question was totally new (the visa having been refused not because the applicant’s factual claims were rejected but because of a change of government in his country of origin which occurred after his visa application).  The applicant in Miah had not been informed of the decision-maker’s intention to rely on the new material and he had not been given a chance to respond to it.  Hence he did not have an opportunity to put a case by reference to the new circumstances.  (See [99] per Gaudron J and [142] per McHugh J.  Such new material was regarded in that case as decisive, (see [142] per McHugh J and [193] per Kirby J) and arguably the change of government did not negate the sources of the fear of persecution claimed by the applicant, (see [97] to [98] per McHugh J and [194] per Kirby J).  None of these circumstances apply in the present case. 

1. The decision in Muin involved material which related to developments in the applicant’s home country which had taken place after he applied for a visa (which the Tribunal regarded as relevant to the question of whether the applicant would be provided with adequate State protection).  The novelty of the adverse material (not merely the specific reports but the issue with which they dealt) was, at least for three members of the majority, central to the majority conclusion that the Tribunal was obliged to give the applicant a chance to respond to such information (see [28] to [29] per Gleeson CJ, [130] and [137] per McHugh J and [235] – [236] per Kirby J).  Further, three members of the Court held that procedural fairness had not been denied in this respect, essentially because the plaintiff would have been aware that the issue of State protection was a live issue ([265] per Hayne J with whom Gummow J agreed and [301] per Callinan J).  In other words whilst the High Court was divided as to whether the material should be seen as raising a novel issue, the majority of the Court was satisfied that the issue of novelty was central. 

2. The applicant also relied on the decision of Kirby J in ReMIMA; Ex parte A (2001) 185 ALR 489. However in that case His Honour held that there was no arguable case of a breach of natural justice, in part because the material which had not been provided to the applicant did not deal with anything new, there was no element of novelty or surprise that necessitated or invited a specific response (at (52)).

3. In this case it was known that there had been a relaxation of the one child policy in China.  The fact and ramifications of that relaxation were drawn to the attention of the applicants in the hearing, albeit not in the form of provision of copies of the relevant country information and other reports.  None of the reports referred to in these proceedings raise any new issue as far as the applicants’ case was concerned.  The applicants must be taken to have known from the outset that they needed to convince the Tribunal that the one child policy as administered in Shanghai would result in them suffering persecution, as they were from Shanghai and this was the basis for their claim of persecution.  The developments which the Tribunal took into account had occurred, or were at least under way, by the time the applicants made their visa application (cf Muin). There was no element of surprise in the Tribunal taking these developments into account. The Tribunal was not obliged to construct a case for the applicants by telling everything it knew about the policy and inviting their comment. (see Hayne J at [266] in Muin and Kirby J at [196] in Miah).

4. Further, questions as to weight and the conclusions to be drawn from the material in issue were for the Tribunal.  No issue of procedural fairness is raised by what may be seen as the arguably equivocal nature of aspects of the material relied on.  No element of surprise arises from the fact that some of the material relied on the ability to pay fines as a solution to problems arising from the policy whereas the applicants had identified the difficulty of paying fines as one element of the hardship they feared. 

5. There is no evidence (or agreed facts as in Muin) as to how the applicants might have responded if the country information had been drawn to their attention.  Towards the end of oral submissions Ms Salsone, Counsel for the applicants, sought to tender an affidavit sworn by the applicant wife which was said to set out information which the applicant would have put before the Tribunal had the country information been drawn to her attention.  No notification of the applicant’s attention to tender such an affidavit had been provided to the Court or to the respondent and there was no interpreter requested or  available.  Nor was the applicant wife present at the time, although it was suggested that she could be available for cross-examination by Counsel for the respondent later in the day.  After some discussion, Ms Salsone proposed that, rather than pressing the tender of the affidavit during the hearing (to which Counsel for the respondent objected), it should be left to the Court to consider whether, if the Court were to be satisfied that the other elements which would lead to a finding of a lack of procedural fairness had been established, it was appropriate to allow an opportunity to the applicants to present an affidavit and make the applicant wife available for cross-examination.  However in this case it has not been established that other elements necessary to establish a denial of procedural fairness have been met.  Accordingly, I consider it unnecessary to allow the applicant wife an opportunity to indicate how she might have responded if copies of the country information had been drawn to her attention.  The substance of the material relied on in the country information was drawn to her attention in the hearing and she had the opportunity at that time to respond.  Further, the applicant’s migration agent had the opportunity to make, and did make, post-hearing submissions in November 2001. 

6. As I am not satisfied that there has been a lack of procedural fairness it is not necessary to determine whether the common law rules apply in full or have been modified or replaced by section 424A of the Act.

   
   

   I note however the suggestion by the Full Court of the Federal Court in WAAJ v MIMIA [2002] FCAFC 409 at [36] that section 424A must be treated as an exhaustive statement of the Tribunal’s obligation to bring information to the attention of a visa applicant “overriding any wider common law obligation”, and compare the decision of a differently constituted Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 in which it was held that a failure to disclose information to the applicant which fell within the s424A(3)(a) exception was a denial of procedural fairness.

7. Whether section 424A is an exhaustive statement of the Tribunal’s obligation or is in addition to common law rules about natural justice,

   
   

   I am satisfied that it has been complied with by the Tribunal.  In WAAJ the Full Court of the Federal Court held that the obligation imposed by subsection 424A(1) did not apply to a DFAT report which it was said the Tribunal took into account, because the information referred to was information that came within subsection 3(a) of section 424A. That report was about a general issue as to whether converts from Islam to Christianity (as the applicant was) were generally tolerated in Iran.

   
   

   I consider that the view of the Full Court in WAAJ in relation to s.424A(3) is authoritative and correct and is applicable to the circumstances of the present case. It should be followed, notwithstanding the remarks of Kirby J in Re Minister for Immigration & Multicultural Affairs; Ex parte A. That decision involved an application for an order nisi for constitutional writs and other relief in a migration matter concerning a person who claimed to be entitled to a protection visa. Kirby J refused the application for an order nisi on other grounds. It is true that in the course of his judgment His Honour considered possible arguments in relation to the interpretation of section 424A, and in particular whether information in country reports would fall within the disqualifications in section 424A(3). However he did not reach a conclusion on the possible views he posed in relation to the interpretation of section 424A(3) (in particular the concept ‘class of persons’ in section 424A(3)(a)). In these circumstances I consider that I should follow the approach of the Full Court in WAAJ and find that the information in question, which is of similar level of generality in nature as the information in that case, is within subsection 3(a) of section 424A. Hence, the s.424A obligation does not apply to the information in question. I note that the line between information strictly confined to a “class of persons” and information referring to social and political conditions of the country concerned may be difficult to draw in some cases. However the information in this case concerned the application of the one child policy in China. In contrast with, for example, information about a change in government in a country (such as was in issue Miah), the information in this case is more clearly information about a class of persons of which the applicant is a member (those breaching the one-child policy).

8. It has not been established that there was any denial of procedural fairness or breach of section 424A. No other possible jurisdictional error is alleged. Hence it is not necessary to consider the respondent’s submission that it does not follow from the decision of the High Court in Plaintiff S157 that any breach of the rules of procedural fairness by the Tribunal is an error going to jurisdiction (see Lobo v MIMIA [2003] FCA 144 per Gyles J and VBAC v MIMIA [2003] FCA 205 per Ryan J and compare NAFF at [31] per Lindgren and Stone JJ).

9. As no reviewable error has been established the application must be dismissed.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  Thursday 15 May 2003.