SZRTF v Minister for Immigration
[2013] FCCA 91
•31 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZRTF v MINISTER FOR IMMIGRATION & ANOR | [2013] FCCA 91 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicants claiming religious persecution in China and also persecution because of the Chinese one child policy – applicant claiming to be pregnant with a second child after the Tribunal hearing but before the Tribunal made its decision – Tribunal giving no weight to that claim – jurisdictional error established because of the failure of the Tribunal to investigate the claim. |
| Legislation: Migration Act 1958 (Cth), ss.36, 91R, 424, 425, 427 |
| Cases cited: Minister for Immigration v Jia (2001) 205 CLR 507 Minister for Immigration v SZIAI (2009) 259ALR 429, (2009) 83 ALJR 1123 NASJ v Minister for Immigration & Anor [2005] FMCA 124 Re Minister for Immigration; ex parte Applicant S154/ (2003) 77 ALJR 1909 SZMYO v Minister for Immigration (2011) 121 ALD 272 SZNTO v Minister for Immigration (2010) 114 ALD 129 V722 of 2000 v Minister for Immigration [2002] FCA 1059 |
| First Applicant: | SZRTF |
| Second Applicant: | SZRTG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1870 of 2012 |
| Judgment of: | Judge Driver |
| Hearing date: | 22 February 2013 |
| Date of last submissions: | 8 April 2013 |
| Delivered at: | Sydney |
| Delivered on: | 31 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Kinslor Prince Lawyers |
| Counsel for the Respondents: | Ms R Francois |
| Solicitors for the Respondents: | Minter Ellison |
ORDERS
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 7 August 2012 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1870 of 2012
| SZRTF |
First Applicant
SZRTG
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 7 August 2012. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. There are two applicants, who are a mother and daughter. References in this judgment to “the applicant” are references to the first applicant. I appointed the first applicant the litigation guardian of the second applicant for the purposes of these proceedings.
The first applicant, who is from Fujian province in China, made claims of religious persecution and also in relation to the Chinese one child policy.
I have found that the Tribunal fell into jurisdictional error by failing to investigate a claim by the first applicant that she was pregnant with a second child.
The following statement of background facts is derived from the submissions of the parties.
The first applicant is a citizen of the Peoples Republic of China, a native of Fuzhou, who first arrived in Australia on a student visa on 28 March 2008[1]. She left Australia on 2 December 2008[2] and returned on 12 February 2011[3]. The second applicant is her daughter, an infant born in Sydney on 8 November 2011[4].
[1] court book (CB) 118 read with CB 121
[2] CB 118
[3] CB 122
[4] CB 44
The applicant lodged an application for a protection visa on 18 October 2011[5]. Her then existing claims were set out in a statement attached to her visa application. They were, in summary[6]:
[5] CB 1ff
[6] CB 27-31
a)When she came to Australia she was not a religious person, and her family were hostile towards religion because her uncle had died in a labour camp where he had been sent because of his involvement in a local church.
b)After she arrived in Sydney her opinions gradually changed. In 2010, without informing her family, she attended a number of preaching conferences where she was “touched by the Holy Spirit”, and became a believer.
c)On a visit to China in December 2010 to February 2011 she carried CDs containing copies of the gospels at the request of several of her friends who belonged to an underground church organised on a local campus. The CDs became popular and the material on it was distributed widely.
d)The local police traced the religious material to the applicant and detained her for two days. She was released when her enraged family paid a fine. The family also paid money to, “get rid of [her] implications of the matter”.
e)She returned to Sydney on 10 February 2011. Not long after that she heard of the “Jasmine Revolution” and passed information on the demonstrations planned for Fuzhou to her friends in the city as news of the demonstrations was banned in the Chinese media. Her friends in Fuzhou were excited by the news and went to the protest venue for prayer and “Walk” (presumably a peaceful protest).
f)The applicant’s missionary activities were exposed when the organisers were arrested. Her family was investigated and harassed by the police. The applicant continued to spread the gospel to China by sending back Christian literature.
g)The applicant also revealed that she was now a single mother, the father of the baby being her then estranged boyfriend, whom she met after coming to Australia. He had difficulties accepting her religion and her pregnancy, and they had split up. She had not told her family about the baby.
h)She wrote that she had been looking for the right church since she came to Australia, but the only one that had touched her was the church of Jesus Christ of Latter Day Saints (Mormons).
i)Her family has no capacity to financially support her, especially since her father was involved in a car accident which affected the family situation. She feared religious persecution and social discrimination should she return to China, as well as family disapproval.
The Minister’s delegate invited the applicant to an interview to be held on 5 March 2012. At that interview the applicant gave evidence consistent with her statement[7], reaffirmed her adherence to the Mormon Church and claimed that she would not be permitted to evangelise in China but that she felt that it was her duty to do so[8]. She also expressed a fear of not being able to pay the fine levied on unauthorised births, with the result that she would be unable to register her child[9].
[7] CB 152-153
[8] CB 153 [35]
[9] CB 153 [36]
The applicant also produced a letter from the Mormons which advised her on how she should conduct herself if she were to return to China. The advice included that she should not attempt to proselytise in China, and that she should only take one copy of the scriptures for her personal use[10]. Also produced at the interview was her daughter’s birth certificate[11].
[10] CB 41
[11] CB 44
The application was rejected under cover of a letter dated 13 March 2013[12]. The delegate’s reasoning was that:
a)the applicant had genuinely adopted Mormonism, but in view of the country information, she would be able to practice her faith in China[13];
b)the applicant’s explanation for the delay in filing her application was not accepted, and the delegate found that she was not of adverse interest to the authorities[14];
c)the fine for giving birth out of wedlock is pursuant to a law of general application, and does not amount to Convention based persecution[15].
[12] CB 58-61
[13] CB 78.8
[14] CB 79.7
[15] CB 80.9 – 82
Proceedings before the Tribunal
The application to the Tribunal was lodged on 20 March 2012[16]. The applicant gave evidence at a hearing held on 13 June 2012, including that she and her boyfriend had reconciled and that he had become a Mormon[17]. She also reaffirmed her belief that she had to spread the faith if returned to China[18]. The Tribunal put to her that Article 12 of the Mormon Articles of Faith stated that Mormons believed in obeying the law of the land they were in, and those who made it, and that she would not have to proselytise to follow the teachings of her church if returned to China[19].
[16] CB 87
[17] CB 158 [67]
[18] CB 159 [171]
[19] CB 159 [72]
The applicant disagreed, saying that if a person is a genuine Christian she would want to spread the word. The Tribunal responded (rather curiously) with country information that there were 400,000 Seventh Day Adventists in China, and 4,000 Seventh Day Adventist congregations. The applicant herself responded that the Chinese government allows churches which submit to its control[20].
[20] CB 159-60 [73]-[75]
After the hearing, on 12 July 2012, the Tribunal gave the applicant an invitation to respond to adverse information to the effect that she had given inconsistent information as to whether and when her parents knew of her pregnancy, and about whether her parents could or would support her.
The applicant’s reply, faxed on 3 August 2012, included a confirmation that she no longer had her family’s financial support and that she feared the social opprobrium her daughter would face. She also claimed that in her home town the financial penalty for a first unauthorised birth is 50,000 yuan, and the second between 80,000 and 100,000 yuan which far exceeded national standards, and that if returned to China she may be forced to undergo a birth control operation (presumably an abortion or a hysterectomy). She also revealed that she was pregnant again, something that she learned the day before her reply[21]. She also sent a translation of an article which described a forced abortion in China[22].
[21] CB 131-2
[22] CB 136-143
The Tribunal obtained detailed information for itself about enforcement of the one child policy in Fujian. It noted that there were some reports of forced sterilisations and abortions in Fujian in the period 2007-2009[23]. It also reproduced a comprehensive table of social compensation fees imposed in Fujian between 1991 and 2011[24]. The Tribunal also obtained considerable information about the Mormon Church, its beliefs and its operations in China. This included information to the effect that not only are Chinese nationals of the Mormon faith not permitted to proselytise, but they are not permitted to attend religious meetings and must therefore practice their faith in private[25]. Other information, however, stated that Chinese Mormons were permitted to worship in congregations provided that they did not include foreigners[26].
[23] CB 165 [93]
[24] CB 166-7
[25] CB 169 [104], [107]; 171 [111]; 172.2
[26] CB 169 [107]
The Tribunal decision
The Tribunal did not believe the applicant’s claims as to her religious activities in Australia prior to her return to China in December 2010. Nor did it believe that she had taken religious material back to China, or that she had been detained in China, or that she had spread news about the Jasmine revolution to people in China[27]. It also found, contrary to the applicant’s claims, that there had not been a breakdown in her relationship with her parents, and that she was in regular contact with them[28].
[27] CB 174 [120] to 177 [138]
[28] CB 177 [139] – 178 [144]
Having so found, it accepted that the applicant had had a child out of wedlock, and that as such she and her partner had breached relevant family planning laws and would have to pay a social compensation fee. It found, however, that these were laws of general application and there was no evidence that they would be applied to the applicant in a discriminatory way[29], and that the child would enjoy the same rights as to registration as other Chinese children[30]. It rejected the applicant’s claim that she and her boyfriend would not be able to raise funds necessary to pay the social compensation fee for their daughter[31]. It continued[32]:
The Tribunal has taken into account the applicant’s claims that she is pregnant again. Apart from the sentence in the letter she sent to the Tribunal there is no other information which has been provided by the applicant in support of this claim. Accordingly the Tribunal does not place any weight on the statement.
[29] CB 179 [146]-[147]
[30] CB 179 [148]
[31] CB 180 [151] – 181 [158]
[32] at CB 181 [159]
The Tribunal accepted that the applicant was a genuine member of the Mormon Church, and that s.91R(3) of the Migration Act 1958 (Cth) (Migration Act) did not apply to her[33]. It found, however, that Chinese citizens who are Mormons are able to practice their religion and do not face the threat of arrest, persecution or serious harm[34]. It found that, as a genuine member of the Mormon Church, the applicant would follow the guidance of the leadership, including Article 12 of the “Articles of Faith” and that she would not proselytise if returned to China.
[33] CB 182 [164]
[34] CB 182 [166]
The Tribunal also found that s.36(2)(aa) of the Migration Act was not engaged.
The judicial review application
These proceedings began with a show cause application filed on 28 August 2012. The application has been amended several times since then. The applicant ultimately relied upon a second further amended application filed on 12 March 2013. The grounds in that application are:
1. The Tribunal breached section 425(1) of the Migration Act 1958.
Particulars
a. Failure to invite the first applicant to a hearing to give evidence and present arguments relating to her alleged second pregnancy and her fears resulting from it.
2. The Tribunal erred in finding that China’s family planning laws and regulations applied generally to the Chinese population, in circumstances where there was no evidence to support that finding, and where such evidence as there was was contrary to it.
3. The Tribunal failed to consider an issue that arose on the information before the Tribunal, and in its finding, as to whether the applicant would face a well founded fear of persecution, or a real risk that she would suffer significant harm as a result of the enforcement (whether lawfully or not) of family planning policies.
Particulars
a. Information before the Tribunal was to the effect that there had been “…some reports of forced sterilisations and abortions in Fujian Province in recent years”.
5. The Tribunal misconstrued the words, “persecution for reason of … religion” in Article 1A(2) of the Refugees Convention.
Particulars
a. Error in failing to construe those words as including a denial of a right to worship in the community.
6. Alternatively to Ground 5, the Tribunal failed to consider an issue (or claim) that clearly arose on the information before the Tribunal.
Particulars
a. Failure to consider whether a denial of a right to worship in community was persecutory of the first applicant.
7. The Tribunal committed a jurisdictional error in failing to seek evidence of the applicant’s pregnancy from her.
I have before me as evidence the court book filed on 20 September 2012.
Both parties made written and oral submissions.
Consideration
Ground 1 – Did the Tribunal breach s.425(1) of the Migration Act?
Section 425(1) of the Migration Act requires the Tribunal to:
... invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
I accept the applicant’s contention that, while the issues that arise in relation to the decision are to be identified by the Tribunal[35], they do not arise in a vacuum. Rather, of necessity they arise from the applicant’s claims and the information before the Tribunal[36]. The High Court in SZBEL said[37]:
... where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.
[35] SZBEL v Minister for Immigration (2006) 228 CLR 152 at [36]
[36] see eg Htun v Minister for Immigration (2001) 194 ALR 244 at [42]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [63]
[37] at [47]
In SZBEL the Court was considering the appellant’s claims which the Tribunal clearly thought was important to the decision. This case differs from SZBEL in that the current Tribunal dismissed the claim of a second pregnancy without deciding whether it was important. The applicants contend that the Tribunal’s duty stated in s.425 arises where a claim is made which may, considered objectively, be important to the decision. They contend that if the Tribunal is to comply with s.425, it must raise with the applicant the “issues arising in relation to the review”.
The applicant’s alleged second pregnancy was only discovered, so she claimed, after the hearing, and indeed the day before her reply to the Tribunal’s invitation to comment. She claimed that this discovery caused her to fear that she would be forced to undergo an operation which would have a contraceptive effect (an abortion or possibly a hysterectomy), and that this would be a breach of her human rights[38]. The article submitted with her response carried information about Chinese birth control officials acting arbitrarily to induce a late term abortion on a woman[39]. There was thus a new claim of serious harm which could not have been raised earlier. Moreover, if the claim were true, the social compensation fee payable on the birth of the second child would increase substantially according to the Tribunal’s own research[40]. Even if the applicant could, with assistance, pay the social compensation fee for one child (which on the Tribunal’s information is four to six times the “average local annual income”[41], it could not be assumed that she would be able to raise enough for two children, together with the fine or fines applicable for having children out of wedlock. It may be noted that the Tribunal’s information apparently did not extend to punishment for not paying a social compensation fee.
[38] see CB 132
[39] CB 136-143
[40] at CB 167
[41] CB 166 [97]
In these circumstances, the applicants contend that the Tribunal was obliged to invite the first applicant to a further hearing to give evidence and present arguments relating to the issue of her second pregnancy. The applicants contend that the Tribunal could not lawfully give “no weight” to a claim of a second pregnancy without a hearing.
I reject this ground and agree in substance with the Minister’s submissions.
This alleged error is misconceived. The identification of additional “issues” for the purpose of s.425(1) of the Migration Act is determined by reference to the issues which the Tribunal identified as dispositive of the application[42]. No new “issue” arose when the Tribunal considered the late and unverified allegation that, as at August 2012, the first applicant was pregnant again. Rather, the new allegation was a further particular to the extant issue of the first applicant’s fears arising from the application of China’s family planning laws[43].
[42] see SZBEL v Minister for Immigration (2006) 228 CLR 152 at [35]; SZNTO v Minister for Immigration (2010) 114 ALD 129 at [12] and [13]
[43] See Minister for Immigration v SZKTI (2009) 238 CLR 489 at [51]
Had the Tribunal determined the allegation of another pregnancy by reference to, say s.91R(3) of the Migration Act, then that might have been a new “issue” for the purpose of s.425(1) of the Migration Act. However, that was not this case.
The Tribunal was obliged to consider the new claim made by the first applicant but, because it was incidental to the applicant’s claims already dealt with at hearing, no further hearing opportunity was required.
Ground 2 – Did the Tribunal err in finding that the Chinese family planning laws and regulations were laws of general application?
At [147][44] the Tribunal found family planning policies and laws apply generally to the Chinese population. In the same paragraph it found itself unsatisfied that the Family Planning Regulations of Fujian Province would be applied in a discriminatory manner because the applicant’s child was born out of wedlock and the father was not of marriageable age.
[44] CB 179
The applicants make the following complaints about this aspect of the Tribunal’s reasons:
a)First, the Tribunal’s examination of family planning rules focussed on Fujian and not on China as a whole[45]. It cited variations in the enforcement of such rules. The delegate also referred to specific provisions of the Fujian “Population and Family Planning Regulations”, as well as a more general national law which stated a policy[46]. The applicants contend that there was no evidence that the specific laws which the applicant feared would apply to her were laws of general application. Making a finding for which there is no evidentiary basis is a jurisdictional error[47].
b)Secondly, whether or not the applicable family planning laws were of general application, the applicants submit that there was a real question, in view of the Tribunal’s own findings that there had been forced sterilisations and abortions in Fujian in the recent past, as to whether the implementation of the law would have a differential impact on the applicant or whether there was a real risk that the applicant would suffer significant harm within the meaning of s.36(2)(aa) of the Migration Act if returned to China. That was an issue that arose on the Tribunal’s own findings and the information before it, and thus had to be addressed[48].
[45] CB 165-167
[46] CB 80-81
[47] see SFGB v Minister for Immigration (2003) 77 ALD 402; SZJRU v Minister for Immigration (2009) 108 ALD 515
[48] NABE (2004) 144 FCR 1 at [61]-[62]; Senthilnathan Tharmalingamv Minister for Immigration [1998] FCA 537, page 22/24 per Lindgren J
I prefer the Minister’s submissions on this ground.
The second ground of review, alleging no evidence, is unsustainable in light of the broad acceptance that China’s one-child policy is a law of general application (even though local means of enforcement may differ)[49]. As Merkel J noted in VTAO v Minister for Immigration[50]:
It may be accepted that the family planning laws, in so far as they relate to parents, are laws of general application in the sense that, although they may vary from province to province, in general, they give effect to China’s one-child policy by penalising parents who have more than one child.
[49] Applicant A v Minister for Immigration (1997) 190 CLR 225 at 226 – 227, 238, 243 -244; Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 at [14]
[50] (2004) 81 ALD 332 at [38]
Whether a policy or law amounts to a law of general application is a finding of fact for the Tribunal[51].
[51] cf V722 of 2000 v Minister for Immigration [2002] FCA 1059
Accordingly, this ground of review cannot succeed given the notoriety of this fact and entitlement of the Tribunal to utilise its own expertise[52]. Further, the Tribunal did not fail to address whether the laws would be applied in a discriminatory manner, or whether the first applicant would suffer significant harm (for the purposes of the complementary protection criterion) because of that application. This is further discussed in relation to Ground 3 below.
Ground 3 – Did the Tribunal err in failing to consider whether the applicant would suffer harm as a result of the enforcement of China’s family planning policies?
[52] see eg Mansfield J in SAAQ v Minister for Immigration [2002] FCA 704 at [22]; North J in Minister for Immigration v Applicant S (2002) 124 FCR 256 at [48][52]; Gleeson CJ in Muin v Refugee Review Tribunal (2002) 190 ALR 601 at [7] & [24] and see also Callinan J at [291]; Hayne J in Minister for Immigration v Jia (2001) 205 CLR 507 at [180]
I accept the Minister’s submissions on this ground.
This ground of review proceeds on the basis that any allegation of serious harm for a non-Convention reason will fall for consideration under s.36(2)(aa) of the Migration Act. That is not so. Section 36(2B) limits the operation of s.36(2)(aa) as follows:
However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non-citizen to relocate to an area of the country where there would not be a real risk that the non-citizen will suffer significant harm; or
(b) the non-citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non-citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
In this case, by reason of s.36(2B)(c), the Tribunal’s finding that the laws were of general application and would not be applied in a discriminatory manner[53] meant that no issue, let alone an obvious issue, arose under s.36(2)(aa) of the Migration Act. That is sufficient to dispose of this ground.
[53] CB 179 [147]
Nonetheless, for completeness, in so far as the applicants’ written submission focus on the issue of forced sterilisation, the Tribunal’s reasons disclose that it did not make further specific findings in relation to the issue of forced sterilisation for two reasons: first, the first applicant, who had lived in Fujian, claimed no such fear[54]; and secondly, the independent country information indicated that the Fujian province had “one of the least coercive family planning regimes in China” where such enforcement had become “rarer”[55].
Grounds 5 and 6 – Did the Tribunal err in considering the applicant’s claim of religious persecution?
[54] CB 27 to 31, CB 152 [30] to [31], CB 153 [36], CB 154 [44] to [47] and see CB 178 [145]
[55] CB 165 [93]
This ground is based upon the following contentions:
a)Read fairly, the Tribunal’s findings were that Chinese Mormons are not permitted to attend religious meetings and must therefore practise their faith in private. This is most clear at [104][56] where the Tribunal made an apparent finding to that effect.
b)The supposed ban on communal worship by Mormons who were Chinese citizens, and the permitting of communal worship by Mormons who were not Chinese citizens created, in effect, two classes of Mormons in China. Chinese Mormons were being deprived of an opportunity of communal worship that was engaged in, and presumably valued, by Mormons in China who were not Chinese citizens.
c)In Wang v Minister for Immigration[57], Wilcox J at 550 at [5], [7]-[8], and Merkel J at 563-564 [69]-[73], found that the free practice of religion normally involves worship in community, and that a denial of an opportunity to worship in community can amount to persecution. The Tribunal, in apparently finding that Chinese Mormons would be denied a right to worship in company, and then finding that they are able to practise their religion without fear of persecution, failed to lawfully construe the term used in the Refugees Convention, “persecuted for reason of ... religion”. Alternatively, it failed to consider a claim that arose clearly on the information before it – that being whether the denial of an opportunity to worship in community would be persecutory of the applicant.
[56] CB 169
[57] (2001) 105 FCR 548
The Minister deals with these grounds by making the following contentions:
a)This ground of review is factually misconceived and is based upon the out of date country information recited by the Tribunal. The up to date country information demonstrated that the Chinese authorities do not prevent Mormons from worshipping in a community. Rather, the Mormon Church, as part of the implementation of its own beliefs which require it to follow the laws in China, does not allow its expatriate and Chinese national congregations to mix[58].
b)In any event, holding religious services as part of a community is not an integral part of the Mormon belief system. Accordingly, even if Chinese national Mormons were only allowed to practise their religion at home (which is not the case), such a restriction could not amount to persecution for a religious reason[59].
c)In addition, a further fundamental problem facing the applicants is that there was no evidence before the Tribunal of any Mormon having breached such restriction and, as a result, being subjected to any form of punishment that would amount to persecution. While an inability to gather freely might curtail a well-established civil right recognised in Australia, without something more, the prohibition of such gatherings cannot amount to persecution.
[58] CB 170 to 171 [107] to [111] and CB 173 [114] to [115] (although the latter reference is strangely and erroneously to the Seventh Day Adventist Church)
[59] NASJ v Minister for Immigration & Anor [2005] FMCA 124
I accept the Minister’s contention that, while the country information before the Tribunal was not consistent, the most recent country information supported the proposition that the Chinese authorities do not prevent Mormons from worshipping in a community. Rather, they require Chinese Mormons to worship separately from expatriates. It is certainly arguable that the Tribunal in its reasons did not make the distinction clear. It does not follow, however, that this possible defect in reasoning amounts to jurisdictional error. Even if it did, I would withhold relief in the exercise of discretion. If the Tribunal erred by failing to take into account the most recent and up to date country information, the applicant was advantaged. The applicant could not have achieved a better outcome if the Tribunal had paid proper regard to the most recent and up to date country information.
Ground 7 – Did the Tribunal err in failing to seek evidence of the applicant’s second pregnancy from her?
I invited post hearing submissions from the parties in relation to this issue. The issue arises in the following circumstances:
a)the applicant claimed in a submission sent to the Tribunal on 3 August 2012 that she was, “pregnant again” – that is for the second time[60];
b)she discovered this the day before the submission was sent; and
c)the Tribunal decision was made on 7 August 2012, and sent to the applicant on 8 August 2012[61].
[60] CB 132
[61] CB 144-145
The applicants note that there was very little time after the discovery of the pregnancy to submit evidence of it. They assert that in any event, a claim of pregnancy could not be expected to be questioned, given that it is a matter of fact, either provable or disprovable.
I accept the applicant’s submissions concerning the relevant legal principles bearing upon this ground. The starting point for consideration of the jurisdictional consequences of a failure to inquire is the judgment of a majority of the High Court in Minister for Immigration v SZIAI[62] at 1129 [25]:
Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. It is not necessary to explore these questions of principle in this case. (footnote omitted)
[62] (2009) 83 ALJR 1123
The “duty to inquire” has a dual provenance. In Prasad v Minister for Immigration[63], Wilcox J said:
The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the Court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the Court, on judicial review, should receive evidence as to the existence and nature of that information. (emphasis added)
[63] (1985) 6 FCR 155, 169-70
The observations of Wilcox J were applied in the Full Court of the Federal Court in Luu v Renevier[64]; in Tickner v Bropho[65], as well as in many judgments of single judges of the Federal Court. The principle expressed by Wilcox J was cited, with approval, by the High Court in Minister for Immigration v Teoh[66].
[64] (1989) 91 ALR 39, 46ff
[65] (1993) 40 FCR 183, 197-9 per Black CJ
[66] (1995) 183 CLR 273, 289-90 per Mason CJ & Deane J
The jurisdictional error resulting from a failure to inquire was characterised as a failure to conduct a fair proceeding in Applicant M164/2002 v Minister for Immigration[67]. Lee J said, at [76][68]:
If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s. 427(1)(d).
[67] [2006] FCAFC 16 [63]-[76]
[68] See also Tamberlin J at [118]. Dowsett J dissented
Gilmour J in SZMYO v Minister for Immigration[69] at [63] also found an unfairness in the Tribunal’s failure to make an obvious inquiry about a critical fact. His Honour held that the Tribunal in that case should have exercised its power under s.427(1)(d).
[69] (2011) 121 ALD 272
There is a well recognised principle that it is up to the applicant to advance whatever evidence or argument she wishes to advance, and for the Tribunal to decide whether her claim had been made out[70]. Moreover, counsel for the applicants could point to no case in which a Tribunal’s failure to inquire has been successfully pleaded involving a necessary inquiry of the applicant herself.
[70] Re Minister for Immigration; ex parte Applicant S154 of 2002 (2003) 77 ALJR 1909 at [57]; Abebe v Commonwealth (1999) 197 CLR 510, 576 [187]
Nevertheless, each case must depend upon its own facts. In the present case the posited inquiry would, in the applicant’s submission, have had to have been made pursuant to s.424(1) rather than s.427(1)(d). The applicants submit that the same principles apply. Each provision gives the Tribunal a discretion to conduct an inquiry, or to have one conducted. The only difference is as to who should undertake that inquiry.
The applicants contend that the question of whether the first applicant was indeed pregnant could have had a material bearing on the case. The need for further inquiry is obvious, and there was no impediment to the conduct of such an inquiry.
The Minister denies any jurisdictional error by the Tribunal in this regard.
The Minister accepts the applicants’ outline of the relevant legal principles[71]. However, the Minister cautions that it needs to be firmly kept in mind that the circumstances where a failure by an administrative decision maker to have made inquiries such that their decision will be vitiated by error, will only arise in the “rare” case[72] and the circumstances are “strictly limited”[73]. As Heydon J stated in Minister for Immigration v SZIAI[74] at [52]:
The question of whether the tribunal should have made further inquiries must be assessed bearing in mind that it was for the respondent to demonstrate that his claims were genuine; it was not for the tribunal to try to achieve a demonstration that he had failed to achieve.
[71] cf: Minister for Immigration v SZIAI (2009) 259ALR 429; Prasad v Minister for Immigration (1985) 6 FCR 155
[72] Foxtel Management Pty Ltd v ACCC (2000) 173 ALR 362 at 419 per Wilcox J
[73] Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at 298 per Greenwood J
[74] (2009) 259 ALR 429
In summary, in order to possibly establish this type of jurisdictional error the applicants must at least demonstrate that:
a)there was an “obvious” inquiry to be made;
b)in order to obtain material which was “readily available”;
c)in relation to a “critical fact”.
Obvious inquiry
There is a question about what obvious “inquiry” ought to have been made by the Tribunal. The applicants have not identified what particular type of inquiry or examination they say ought to have been undertaken in relation to the alleged pregnancy (possibilities might include a medical examination, a less formal pregnancy test or some other sort of inquiry). They do say that the inquiry should have been made pursuant to s.424(1) rather than s.427(1)(d). I have no evidence demonstrating the reliability of the various possible alternative tests or inquires, particularly having regard to the alleged stage of the pregnancy at the relevant point in time. It may well be that a definitive answer to the question of whether the applicant was pregnant might have necessitated delay in the Tribunal making its decision.
The Minister submits that in these circumstances, it could not be said that the applicants have established that there was an “obvious inquiry” which the Tribunal was obliged to undertake. My own view is that if the Tribunal was not minded to believe the simple assertion by the applicant, it could have asked for a statement from a medical practitioner about the outcome of a pregnancy test.
Material readily available
I have no evidence that the first applicant was actually pregnant at the time of her statement to the Tribunal dated 1 August 2012. If the first applicant was not pregnant at that time, the Tribunal would not have been acting unfairly in failing to investigate the alleged fact. The Tribunal cannot unfairly err in its conduct of a review of a decision in relation to an alleged matter which did not inform the decision the subject of the review, was not an issue in that review and which is false. However, it would not have been difficult for the Tribunal to resolve the question before making its decision. Material, in the form of a pregnancy test, would have been readily available.
Critical fact
The Minister complains that there is no analysis in the applicants' submissions as to why this pregnancy, which could only last for approximately nine months, was a “critical” fact. As said by the plurality in Minister for Immigration v SZIAI:
[i]t may be that a failure to make an obvious inquiry about a critical fact… could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. (emphasis added)
In this case, assuming the first applicant was pregnant prior to the Tribunal decision, by the time she was deported to China, she would probably have already given birth to the baby. Accordingly, the issue of a forced abortion would not arise in relation to this child. However, the issues of possible forced sterilisation, and the increased social compensation fee, did arise.
The Minister contends that as the fines payable in Fujian, which would increase by some amount, were found to be laws of general application not applied in a discriminatory manner[75], the additional child could not have been a “critical” fact with respect to the Tribunal’s consideration of those fines.
[75] CB 179 [146]–[147]
I disagree. The Tribunal’s assessment of the social compensation fee and its impact on the first applicant bore upon both criteria for a protection visa. As the fee increases, so it affects the capacity of a person to subsist, which may amount to significant harm for the purposes of the complementary protection criteria. Further, it might have been open to the first applicant to claim that multiple pregnancies expose a person to the discriminatory application of the policy. The Tribunal’s finding in that regard was based upon the fact of a single pregnancy.
In my view, in the unusual circumstances of this case, the Tribunal did fall into error by not inquiring about the applicant’s second pregnancy. First, the inquiry the Tribunal could have made was a simple one. The Tribunal could have asked the first applicant for a pregnancy test result or a statement from a medical practitioner. As a general rule, a pregnancy is not something that one can hide for any significant period or, for that matter, fabricate. Secondly, it was an obvious inquiry, in relation to the applicant’s claims of fear because of the Chinese one child policy. The applicant was either pregnant again or she was not. I am aware that it is relatively common for Chinese applicants seeking protection on the basis of the Chinese one child policy to raise repeated pregnancies during their stay in Australia as justification for that fear. That may be inconvenient, particularly where the Tribunal is about to make a decision, but the Tribunal cannot close its eyes to an obvious and material fact. Further, the applicant’s claim to be pregnant was not just an item of evidence to which the Tribunal could give no weight. As the Minister’s submissions acknowledge, it was at least a further particular of the applicant’s claimed fear arising from the Chinese one child policy. The claim needed to be considered, and that consideration (if the Tribunal was not minded to accept the applicant’s assertion) required some inquiry.
In my view, the fact of whether the first applicant was pregnant again was critical to the review. Although the Tribunal had found that the Chinese one child laws were laws of general application, it also had to consider whether they would be applied in a discriminatory fashion. The question of multiple pregnancies was relevant to that inquiry. Further, the question of multiple pregnancies bore on the assessment of the complementary protection criterion. It was, in my view, a jurisdictional error for the Tribunal simply to give no weight to the first applicant’s assertion of the second pregnancy, without making some further inquiry about it. This resulted in a constructive failure of jurisdiction because the Tribunal failed to meet its duty of review.
Conclusion
I find that the Tribunal erred in failing to inquire about the first applicant’s asserted second pregnancy. In view of that error, the applicants should receive the relief they seek.
I will hear the parties as to costs.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 31 May 2013
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