SZRFQ v Minister for Immigration

[2012] FMCA 772

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZRFQ & ORS v MINISTER FOR IMMIGRATION & ANOR [2012] FMCA 772

MIGRATION – RRT decision – Chinese applicants – failure to address refugee claim concerning one-child policies – no evidence supporting finding that claim was abandoned at hearing – procedural unfairness in not raising issue – jurisdictional error found – matter remitted.

Migration Act 1958 (Cth), ss.36, 425(1), 427(6), 476

Chen Shi Hai v Minister for Immigration& Multicultural Affairs (2000) 201 CLR 293
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No.2) (2004) 144 FCR 1
Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82
SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798
SZHUG v Minister for Immigration & Citizenship [2007] FMCA 1010

First Applicant: SZRFQ

Second Applicant: SZRFR

Third Applicant: SZRFS

Fourth Applicant: SZRFT

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 503 of 2012

Judgment of: Smith FM

Hearing date: 22 August 2012

Delivered at: Sydney

Delivered on: 11 October 2012

REPRESENTATION

Counsel for the Applicant: First and Second Applicants in Person and on Behalf of Third and Fourth Applicants

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: Minter Ellison

ORDERS

1. A writ of certiorari issue directed to the second respondent, to quash the decision of the second respondent made on 14 February 2012.

2. A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 4 August 2011.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 503 of 2012

SZRFQ

First Applicant

SZRFR

Second Applicant

SZRFS

Third Applicant

SZRFT

Fourth Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicants are four members of a family who have resided in Australia since 2000 on a series of short and long stay business visas.  The husband made return visits to their country of nationality, China, until April 2001, but since that time none of the family have left Australia.  On 9 May 2011, they applied for protection visas, without any assistance.  Their applications were refused by a delegate on 4 August 2011, and this decision was affirmed by the Tribunal on 14 February 2012. 

2. They now seek orders remitting the matter for further consideration of their refugee claims.  I have power to order this only if I am satisfied that the Tribunal’s decision was affected by jurisdictional error.  I do not have power myself to decide whether they qualify for any permission to reside in Australia. 

3. The applicants were not legally represented in the proceedings in this Court, but were referred for free advice to a barrister, who has provided a possible reformulation of one of their grounds of review.  As I shall explain, I consider that this ground has substance, and should be upheld.  It concerns only one element in the reasons put forward by the family for seeking protection in Australia.  This was an expressly raised concern about the application of China’s ‘one-child’ policies in relation to their second daughter, who was born in Australia in 2002.  The Tribunal said that it did not deal with this concern, because it found that “the applicant has abandoned this applicant of his claims on behalf of the younger daughter” (sic).  As I shall explain, I have concluded that this finding was not open to the Tribunal on the evidence which was before it, and that it involved a denial of procedural fairness.  I have concluded that the whole matter should be remitted for further consideration by the Tribunal.

4. My conclusions in relation to this issue mean that I can address shortly the applicant’s complaints about other parts of the Tribunal’s reasoning.  In particular, its reasons for finding that the applicant father and his family did not face a real chance of persecution for his perceived political hostility or defiance of the government.  He claimed that this would occur as a result of his involvement in pro-democracy activities in 1989 and 1996, and for employing his brother and other Falun Gong practitioners in his business in China between 1999 and 2001.  He claimed that he had been tortured in 1996, that his brother had been detained in 2001 and had died in 2007 as a result of his experiences, and that his Chinese business and assets which were being managed by his brother had been confiscated.  He claimed that he had resettled his family in Australia in 2000 as a result of apprehensions that persecution might occur, and that since 2001 the whole family had feared returning to China as a result of these events, even for important family gatherings. 

5. These claims were largely uncorroborated, except by the wife’s testimony.  In its “Statement of Decision and Reasons”, the Tribunal performed a close examination of the applicants’ evidence, and concluded that the claimed events did not occur.  The applicants’ grounds and submissions to the Court criticise this reasoning, and maintain the truth of their fears. However, I do not consider that they have raised concerns amounting to more than a possibility that another Tribunal member might have assessed the evidence differently.  One of their complaints is that the Tribunal never expressly weighed a very pertinent point made several times by the applicants (see, for example, paragraph 70 of the Tribunal’s Reasons).  This was that there was no reasonable explanation, other than the genuineness of their fears, which could account for their self-imposed exile and restraint from visiting China over many years, even for very important family reasons.  This complaint does raise a concern about the Tribunal’s reasoning.  However, I accept the Minister’s submissions that the Tribunal was bound by law only to set out its reasons for making adverse findings against the applicants, and that its adverse findings were open to it as a matter of law on the evidence before it.  I would therefore not have upheld any ground of review other than Ground 3.

6. This ground was expressed in the original application in a manner which obviously was not formulated with legal assistance:

   3.The tribunal failed to refer to the facts of the applicant’s younger daughter. The tribunal noted “this issue (China’s one child policy) was not raised by the applicant when interviewed by the delegate nor the tribunal hearing” and “the tribunal is satisfied that the applicant has abandoned this applicant of his claims on behalf of the younger daughter” (paragraph 150, pg. 31). However, this issue was attempted to be raised during both interviews, but were reverted by both the delegate and tribunal hearing. And is therefore their fault in failing to consider the one child policy, which was already addressed within the original application.

7. It was explained in an affidavit filed with the application:

   10.There is an error in the judiciary regarding the reference of the one child policy in relation to the applicant’s younger daughter. The applicant referred to the universally known china’s one child policy, during his original statement of claims. Then the tribunal believes the applicant neglected to raise this issue whilst being interview by the delegate and Tribunal hearing; hence satisfying the tribunal’s “belief that the applicant has abandoned this applicant of his claims on behalf of the younger daughter.”

   11.The applicant did not in fact abandon this claim, nor choose to neglect raising this issue. During interviews with the delegate and tribunal reviews, the applicant was required to answer yes/no answers and to add only additional new information to the hearing. Therefore not having an opportunity to emphasis on the one child policy in china, and what harmful affect it would cast upon her, such as not receiving an education and social unacceptance.

   12.Thus, it wasn’t at all the neglectful nature of the applicant, nor choice of abandoning this factor, but majorly due to the lack of opportunity to speak this thought.

8. The ground was reformulated by the free legal advisor in an amended application:

   That the decision of the second respondent was affected by jurisdictional error in that:

   1.The second respondent (the Tribunal) constructively failed to exercise its jurisdiction by failing to consider or make a finding on the applicants’ claim of fear of persecution arising from the breach of the one child policy occasioned by the birth (of) the fourth applicant.

   Particulars

   The claim was made in the original application for protection and was not subsequently abandoned or withdrawn;

   The first applicant maintained the claim that his daughter would be unable to return to China because of the risk of persecution by the Communist Party.

9. The ground has its foundation in a statement in the applicant husband’s visa application statement, which was in a paragraph which outlined all of the hardships which would face their second daughter if the family were forced to return to China.  I shall extract the whole paragraph, highlighting the relevant sentences:

   My younger daughter [fourth applicant], 9 this year, is Australian. Born here and raised here, she has never left the country and through her subjective naïve views, Australia is home, the only place which she is comfortable. An extravert playful child, she is a valued member of her school community; excelling successfully in school, she receives presentation day awards yearly, is part of the SRC and beloved by friends. Having be raised and educated with Australian cultures and influences from the first day in preschool till now, for her to leave her home and be sent to a completely strange world, where kids her age have no siblings and all that matters is school and tutoring, she will not adapt. She will not adjust. And she will no longer be the happy, playful child that we love. Being sent to China, not only will persecution be priority of the government, [fourth applicant] will be in contradiction to the withstanding law of one child per family. [Fourth applicant] will not be part of the censorship register, therefore not being able to attend any school or have the normal childhood which she deserves. To disadvantage her in sending her from home is also disadvantaging the future of Australia. Working hard at school, growing up so fast, she will be into the workforce and starting a life. With all knowledge and information given to her through school, she will then return such valuable knowledge through her work; she will be a provider to the Australian future, be a provider to the Australian economy, and a future to Australia on a multicultural basis.

10. Clearly these concerns were presented by applicants who not only had difficulty expressing themselves in English, but also did not differentiate feared harms which might attract Australia’s protection obligations under the Refugees Convention, from those which would not.  However, it was the task of the decision-makers to perform that analysis, and to ensure that they properly addressed the claims which raised Refugees Convention issues. 

11. Counsel for the Minister conceded that the highlighted sentences ‘clearly raised’ a Convention ground of persecution faced by the second daughter, by reason of her membership of a particular social group constituted by children born outside the Chinese family planning policies, and who might face discriminatory treatment in their access to generally available social benefits, including education, and might suffer other harms as a ‘black child’ (cf. Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293). Counsel for the Minister did not dispute that, unless the Tribunal was properly satisfied that this Convention claim had been withdrawn on behalf of the daughter, the Tribunal had a jurisdictional obligation to consider the claim on its merits, and not to affirm the delegate’s decision without making pertinent findings (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60] and [63], citing Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389).

12. I consider that the applicants’ expressed concern about the effects of family planning restrictions and penalties in relation to the second daughter also raised for consideration whether they might also adversely affect her parents at a level amounting to ‘persecution’, by reason of a ‘selective’ enforcement of the laws for a Convention reason (cf. Chen (supra) at [21]). Although such a claim was not ‘articulated’ in the applicants’ visa statement by reference to the parents, the decision-makers should have been aware of the well-established High Court jurisprudence relevant to considering refugee claims relating to the application of one-child policies in China. I consider that these potential refugee claims of the parents also arose for determination on a proper analysis of the informal terms in which the applicants had presented their applications for protection.

13. My above discussion accepts that it is possible for a refugee claimant in the course of the proceedings subsequent to the lodgement of a visa application to withdraw a refugee claim from consideration, thereby absolving the decision-makers from their duty to address it on its merits. 

14. In SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798, a complaint was made that the Tribunal had failed to address a claim of political persecution which was made in the visa application. The claimants’ case before Tribunal did not touch on this claim, but was clearly articulated to the Tribunal by their solicitor in different terms. On appeal from this Court, Bennett J said:

    12.In considering the Minister’s submission that the applicants had abandoned their claim of persecution for reasons of political affiliation, her Honour referred to the transcript where the solicitor stated that the bases of the applicants’ claims ‘really are a recital of a general fear of crime and breakdown in law and order’ (at [49]). Her Honour noted that the answers to questions accompanying the application for a protection visa referred to victimisation for political activity (at [50]). However, a subsequent letter from the applicants’ solicitor to the Department of 13 November 2002 referred to that application and stated that the claims related to the lease of the land. The letter referred to the claims based on race but made no reference to political activity (at [51]).

    13.Federal Magistrate Emmett gave detailed consideration to the progress of the claim to persecution on the grounds of political activity or opinion. Her Honour acknowledged that that claim had been made in the application for a protection visa and was referred to by the Delegate in his decision. Her Honour summarised the status of that claim before the Tribunal at [55]:

    ‘In the case before this Court, the Applicants have been legally represented by the same advisor in relation to their protection visa application, their review application and at the Tribunal hearing. Other than the bare assertions made in his protection visa application, there was no other evidence, material, or information provided by the First Applicant, or his legal advisor, supporting that claim. Moreover, there is no reference in the transcript of the Tribunal hearing, to any claim by the First Applicant of a fear of persecution by reason of his political opinion or imputed political opinion by any of the First Applicant, the Second Applicant or the legal advisor, all of whom participated in the hearing. Indeed, the Applicants’ solicitor’s submissions before the Tribunal conceded that the application was likely to fail, by reason of the absence of a Convention nexus.’

    14.Her Honour did not accept that the claim was made before the Tribunal in any circumstance that would have required the Tribunal to consider it. Her Honour concluded that any such claim was abandoned (at [57] to [58]).

15. Bennett J upheld the opinion of Emmett FM.  She said:

    28.The Tribunal is conducting an administrative review, a rehearing of the application for a protection visa. The question is whether the Tribunal is obliged to consider claims made to the Delegate and not made, or abandoned, in the Tribunal. The claim to persecution for political opinion did not arise from the material before the Tribunal and was not raised in response to direct questioning by the Tribunal. There is no dispute that the Tribunal gave the applicants the opportunity to present their claims.

    29.The High Court discussed the task of the Tribunal in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [70]–[75]. The task of the Tribunal is to review the decisions of the Minister or the Delegate. The Tribunal may affirm, vary or remit the decision, or set it aside and substitute a new decision (s 415(2) of the Act). As pointed out by McHugh, Gummow and Hayne JJ at [73], the duty of the Tribunal is to take account of all relevant considerations, as identified by the Act.

    30.The absence of a finding of a relevant fact may amount to jurisdictional error (NABE at [55]). A failure to make a finding on a substantial, clearly articulated argument relying on established facts can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction (NABE at [55] citing Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] and [95]). The task of the Tribunal and the way in which it discharges that function flow from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word "review" (NABE at [56]). That includes a requirement to consider all of the claims of the applicants (NABE at [57] approving Allsop J, with whom Spender J agreed, in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]).

    31.The Tribunal is required to deal with ‘the case raised by the material or evidence before it’ (NABE at [58] citing Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157). The Tribunal is not limited to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated. A claim ‘not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal’ (NABE at [58]) (emphasis added). At [59], the Full Court discussed whether the Tribunal is required to consider a claim not expressly raised and observed that there is no general rule that the Tribunal can disregard a claim which arises clearly from materials before it: ‘[t]he Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it’ (at [61]).

    32.The Court in NABE approved the reference by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [17] to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’ and of the Full Court in Dranichnikov v Minister for Immigration and Multicultural Affairs [2000] FCA 1801 at [49] that the Tribunal ‘can only deal with the claims actually made’. The Court at [60] also approved the statement of Selway J at [18] that the question ultimately is ‘whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it’.

    33.If the Tribunal makes an error in misunderstanding or misconstruing a claim advanced by the applicant, that can amount to jurisdictional error because of a failure to consider a claim. The claim must, however, ‘emerge clearly from the materials before the Tribunal’ (NABE at [68]). There was no suggestion that the Tribunal is required to consider a claim not made or abandoned before the Tribunal.

    34.A claim made to the Department and referred to in the Delegate’s decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate’s decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.

    35.The conclusion by Emmett FM that the claim to persecution on the ground of political opinion or imputed political opinion was abandoned and that the Tribunal was not obliged to consider it has not been shown to be in error. This ground is rejected.

1. However, in my opinion, SZEIV (supra) provides no authority that it is open to the Tribunal to conclude that a refugee claim potentially within the Convention, and which has been clearly raised in the visa application, had been ‘abandoned’ by a visa claimant without clear evidence of an intention to withdraw that element of the visa application.  Particularly, where the claimant is an infant who is unable to participate in the proceedings, and where his or her Convention claim might appear secondary or subordinate to other refugee claims which have been addressed in the course of the proceedings.  In this area, as in other areas of law and administration, inferences of abandonment drawn from what was not said by an applicant at a Tribunal hearing need to be drawn only with caution and confidence. 

2. This is a point which I explained and applied in SZHUG v Minister for Immigration & Citizenship [2007] FMCA 1010 at [28]-[29]:

   28.Counsel for the Minister submitted that the applicant at this point, and at earlier points, had been given an opportunity to present further explanations and evidence concerning his claimed police harassment on perceived ethnic grounds, and that the absence of his volunteering such further information indicated to the Tribunal an abandonment of that claim.  However, I do not accept that submission. 

   29.The procedures followed by the Tribunal at a hearing have been described as “inquisitorial”, and in a situation where the Tribunal is obliged itself to ask questions to explore the claims which had been brought on a review before it, that is an appropriate description.  However, this procedure has the consequence that many, if not most, applicants who are not assisted at a hearing by a professional representative may not perceive a need to repeat or embellish claims which they are aware have already been presented to the Department, and which they believe are before the Tribunal.  An applicant’s passive responsiveness to questioning by the Tribunal which did not explore all the claims made to the Department cannot, without more, be taken by a Tribunal as amounting to an abandonment of the claims which were not addressed.  I do not accept that, on the evidence before me, there was any basis for the Tribunal to have concluded or assumed that the applicant had withdrawn or abandoned his claim that he suffered police harassment which was significantly attributable to racial prejudice as well as his anti‑government political opinions. 

3. Moreover, even the presence of an advisor at a Refugee Review Tribunal hearing does not allow the Tribunal to draw an inference of withdrawal of a clearly raised Convention claim, in the absence of the issue being expressly raised for clarification by the Tribunal, or being clearly withdrawn expressly or by implication in the submissions of a solicitor or agent acting on apparent instructions. In refugee matters, the claimant has no right to be represented at hearings, and any attending agent is debarred by law and usual practice from eliciting or presenting the claimant’s case (see s.427(6) of the Migration Act 1958 (Cth)). The usual manner in which the applicant’s case is presented to the Tribunal at its hearing is by the Tribunal conscientiously and fairly framing questions which explore the elements of a previously articulated refugee case in all respects where the Tribunal might be in doubt. In this situation, procedural fairness may require the Tribunal, rather than the applicant, expressly to clarify whether a previously articulated claim is withdrawn.

4. In my opinion, for the reasons which follow, this did not occur in the present case in relation to the applicants’ Chen claim.  Neither the applicant father nor his solicitor were given a fair opportunity to anticipate and meet the proposition that a Chen claim for protection previously raised on behalf of the second daughter in the visa statement had been knowingly and intentional abandoned by her parents on her behalf in the course of the hearing before the Tribunal.  I also conclude that, in the absence a warning or of specific questioning on the issue, the Tribunal had no evidence capable of supporting a conclusion that this claim had been abandoned.

5. I have noted above that it is not disputed by the Minister that the Chen claim was made to the Department of Immigration, and was required to be addressed by the delegate.  Unfortunately, it appears to have been overlooked by the delegate, both during her interview with the applicant father on 24 June 2011, and when making her decision.  There is no transcript of the interview, but the delegate gives a summary, and the Tribunal’s “Statement of Decision and Reasons” provides a longer summary “not set out in strict chronological order”.  It shows that an interpreter assisted at the interview, and that the applicant was not represented or assisted at that stage by any agent or solicitor.  Understandably, both the delegate and the applicant focused upon his claims of past political persecution, and the events which he claimed had caused his family to seek refuge in Australia.  However, there is nothing in the evidence of the interview which would support a conclusion that the applicant father withdrew the Chen claim made on behalf of his youngest daughter and the family in the visa statement. 

6. In my opinion, the material which reached the Tribunal from the Department contained no evidence which would allow a conclusion that the applicants had abandoned the Chen claim in the course of the proceedings before the delegate.  The material showed no more than that the delegate had overlooked the claim when making her decision.  The Tribunal should have perceived this oversight, and expressly explored the issue at the hearing if it had doubts that such a claim was still being maintained.

7. By the time that he made his decision, the Tribunal member was clearly aware of the relevant statement in the visa application, and that it raised a Convention-related fear of persecution.  In his “Statement of Decision and Reasons”, he summarised this part of the visa statement:

   32.The applicant spoke about the fact that his daughters were growing up in Australia.  He said that, if they were to return to China they would be affected negatively because they would not be able to handle the “strict censorship and minimum freedom.” He said that, because they have not grown up in China and a lacked the necessary education and cultural understanding to live in that country. In addition, he said that his younger child, being a second child born in contravention of China’s one child policy would not be able to attend school.

8. He then dealt with the claim at the end of his “Statement of Decision and Reasons”:

   150.The Tribunal notes that, in his original statement of claims, the applicant referred to the fact that his younger child, being a second child born in contravention of China’s one child policy would be unable to attend school. However, this issue was not raised by the applicant when interviewed by the delegate nor the Tribunal hearing, although he was given the opportunity to raise other issues at the hearing (see paragraphs 84, 115 and 116). The Tribunal is satisfied that the applicant has abandoned this applicant of his claims on behalf of the younger daughter.

9. However, as with the delegate, the Chen claim appears to have escaped the attention of the Tribunal member when preparing for and conducting the hearing.  I conclude this, because he made no explicit reference to it at any point in the hearing.  In particular, at the start of the hearing, when:

   83.The applicant confirmed that someone had translated the questions in the application forms for him, and had he had written everything down in Chinese. Then someone had translated what he had written, and his wife and child typed it out. They had checked everything out with him before it was submitted.  He was satisfied that, with the exception he had just mentioned the information he had submitted was a complete and accurate account of the circumstances which had prompted him to seek protection. He also confirmed that, when interviewed by the Department in June 2011, he had been truthful. 

   84.To confirm its understanding of the key elements of the applicant’s claims, the Tribunal read out the following précis of them: 

   You were involved in the pro-democracy movement in the 1980s. As a result of your activities at that time you were dismissed from your position in the Shenyang taxation office and you were kept under surveillance by police and other local authorities. On one occasion, you were taken to a local police station, questioned about your activities and physically assaulted.  This was the incident in which your finger was broken and you were beaten around the ribs.

   Later, when the government started to suppress the Falun Gong movement, you employed your brother because he and his wife, who were Falun Gong practitioners, had been dismissed from their jobs. Later, your brother introduced you to other Falun Gong practitioners who had also lost their jobs, and you employed them as well.

   When police found out that you were employing Falun Gong practitioners, you were concerned for your safety and for that of your family, so you arranged for your wife and daughter to come to Australia. You had previously been to Australia in connection with your business. You later returned to China but, after the Falun Gong practitioners working for you were arrested, you decided to leave again.

   You fear that, if you were to return to China would be arrested and might be killed. You also claim that your daughters would have a difficult time if they were to return to China because they have spent so long in Australia and would not be familiar with the Chinese culture.

   The applicant accepted this as fair summary of his situation and claims.  He said that he had no claims other than those summarised above.

10. I do not accept the Minister’s submission that this part of the hearing provided evidence sufficient to allow the Tribunal to conclude that the applicant father had abandoned his daughter’s Chen claim at this stage of the hearing or earlier.  In the circumstances of the applicants at the hearing, and in which the Tribunal’s précis of the visa statement was put to the applicant father, his acceptance that it provided ‘a fair summary of his situation and claims’ did not allow that conclusion.  Particularly, where the father had affirmed the truth and relevance of the entirety of the contents of the visa statement, including its Chen claim. 

11. If, contrary to my inference, the Tribunal was conscious at the hearing of the Chen claim raised by the visa statement, and had doubts at the start of the hearing – or at the end – whether the family still had concerns arising from the one-child policy in its application to their second daughter, this should have been clearly put to them.  Not only in fairness, but also because in the context of their other claims for protection, the absence of a volunteered additional reference to this concern in the course of the hearing could not reasonably allow an inference of a knowing and intentional abandonment of a potential refugee claim.  The only reasonable inferences from the exchange at the start of the hearing were that the applicant father probably did not differentiate the Chen claim from the family’s other, non-Convention, concerns about his daughters’ situations back in China, and that he probably did not appreciated the subtlety of a complex question which appeared to roll-up all these concerns together with his concerns about political persecution, and that he thought that they would all be addressed by the Tribunal, and that neither the applicant father nor anyone else at the hearing contemplated the possibility that the Tribunal might construe his response to the Tribunal’s précis as showing abandonment of this claim concerning his daughter.

12. According to the Tribunal’s summary of the hearing, the family’s concerns about their daughters’ situation if the family returned to China were not again touched upon in the Tribunal’s questions, until the end of the hearing.  It said:

    115.The Tribunal said it had noted the applicant’s claims on behalf of his daughters that they would find it difficult to return to China because they had spent a number of years in Australia, and were unable to write in Chinese. The Tribunal asked if there was any other reason, apart from his own claims about him being persecuted, why his daughters would be unable to return to China. 

    116.The applicant said that his major concern was the risk of persecution by the Communist party. He said it was possible that his children could be used as a means of getting at him.  The issue of culture was another issue. His eldest daughter would soon go to university, and if she were to return to China she would effectively have to go back to school to be educated there in the Chinese context. He said that her children were used to life in Australia and that it would be very difficult for them if they were to return to China alone. The Tribunal said that it was unlikely that that latter situation would arise. As they were a family, either they would all remain in Australia or they would all return to China. The applicant’s daughter indicated that she would be doing her final year of high school in 2012, and she did not want to have to re-do her education. 

    117.The hearing was concluded on the understanding that the review would be adjourned until 20 January 2012, by which time the applicant was to make his responses to the matters raised under s.424AA of the Act. The Tribunal said that the applicant would be welcome to make any further written submissions he wished the Tribunal to consider.

13. I do not accept the Minister’s submission that this exchange reveals that the applicants had consciously and intentionally abandoned their Chen claim.  As with the Tribunal’s opening observations, its closing invitation made no attempt, whether through oversight or intention, to openly and fairly focus the applicants’ attention on the presence of this claim in the visa statement, and to clarify whether the family still maintained a concern arising from China’s family planning policies.  The applicants’ responses naturally addressed their concerns of political persecution and the immediate problems which they contemplated would be encountered by the daughters, and the fact that they did so allows no inference that, if squarely asked, they would also have indicated no concerns relating to the one-child policy. 

14. Yet the Chen claim was the only element in the family’s concerns about the daughters’ position which raised a potential residual Convention ground which could survive the Tribunal’s doubts about the family’s political claims.  In my opinion, fairness required that the issue should be squarely, rather than obliquely or not at all, clarified by the Tribunal, if the Tribunal proposed to find that this claim had been abandoned in the course of the hearing.  In my opinion, the Tribunal denied procedural fairness by failing to do this.  Moreover, in the absence of clear evidence on the issue, the Tribunal had no evidence allowing it to infer that the claim had been abandoned.

15. I therefore consider that Ground 3 of the applicants’ application for judicial review should be upheld, as reformulated in the amended application.  I find that the Tribunal made a jurisdictional error of the Dranichnikov (supra) type, by failing to address the merits of the applicants’ claim that the second daughter and other members of the family might suffer persecution covered by the Refugees Convention in the course of being subjected to the requirements and penalties under the Chinese one-child policies.

16. My findings have also examined the fairness of the procedures leading to the Tribunal’s finding that this claim had been abandoned.  Concerns about fairness were raised in the applicants’ originally formulated grounds of review and his affidavit, although they were not picked up in the amended application.  However, I canvassed the issues of fairness in the course of my exchanges with the Minister’s counsel. For reasons explained above, it appears to me that the applicants are also entitled to relief on the ground that the Tribunal’s finding of abandonment of this claim was not one which “would obviously be open on the known material”, and therefore should have been explicitly drawn to the applicants’ attention (cf. SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at [29]-[33]). A jurisdictional failure to follow a procedure required under s.425(1) of the Act also occurred.

17. The Minister’s counsel submitted that, even if jurisdictional error arose in relation to the Tribunal’s finding of abandonment of a Chen claim, any relief should be refused on the ground that it would be futile to remit the matter, or any part of it, for further consideration by the Tribunal. He submitted that this was because there was evidence that during the pendency of the proceedings in the Court the fourth applicant had acquired Australian citizenship by birth. He submitted that the Tribunal would therefore be bound to find that she had ceased to be qualified for a protection visa, since she was no longer a ‘non-citizen’ for the purposes of s.36 of the Migration Act, and would be bound to refuse her application for a protection visa.

18. However, I do not accept that this circumstance should cause me to refuse to quash the Tribunal’s decision on the ground of jurisdictional error.  I doubt whether it is permissible or appropriate for a court on judicial review to take into account this piece of extrinsic evidence for that purpose (cf. Minister for Immigration & Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343). The situation is distinguishable from the refusal of relief on the ground that independent and unflawed findings of the Tribunal have rendered immaterial the error identified by the Court (see SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [28], [55]-[59], [91]). I therefore doubt whether the refusal of relief would be consistent with principles of judicial review (cf. Re Refugee Review Tribunal and Another; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [51]-[56]).

19. More confidently, I do not accept that, even if the second daughter would be found herself not to be qualified for a visa, it would necessarily be irrelevant for the Tribunal to consider the implications of the Chinese one-family policies for the future resettlement of the family in China.  There is no evidence showing, and the Minister did not contend, that if protection visas were refused to the other members of the family, they would not be forced to take their second daughter with them back to China.  She is now aged 10, and it is to be assumed otherwise.  It is not the function of the Court now to predict how the Tribunal might assess the protection claims of the other members of the family arising from that circumstance, particularly since the remitter will require a different Tribunal member to address one-child policy issues in the light of a reconsideration of the applicants’ political claims.

20. Taking into account all of the circumstances of the matter, I am not persuaded to exercise my discretion to refuse to order relief under s.476 of the Migration Act. Since I am satisfied that the Tribunal’s decision was affected by jurisdictional error, and is not a ‘privative clause decision’, I consider that the usual orders should be made without any qualification. I recommend that the Tribunal should be reconstituted for the rehearing.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Smith FM

Date:  11 October 2012