SZVKA v Minister for Immigration
[2017] FCCA 1199
•16 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZVKA v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 1199 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant a child claiming a fear of harm in China due to the one child policy – fears found not to be well-founded and factual claims made by the applicant’s mother rejected – earlier claims by the applicant’s parents and sister rejected separately – a document dealing with that history withheld pursuant to a purported s.438 certificate – jurisdictional error established. |
| Legislation: Migration Act 1958 (Cth), ss.375A, 418, 424A, 424AA, 438 |
| Cases cited: Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 AVO15 v Minister for Immigration [2017] FCA 566 BEG15 v Minister for Immigration& Anor [2016] FCCA 2778 BZV15 v Minister for Immigration & Anor [2017] FCCA 981 CKG15 v Minister for Immigration & Anor [2017] FCCA 938 |
| Applicant: | SZVKA |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 3027 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 5 June 2017 |
| Delivered at: | Sydney |
| Delivered on: | 16 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr P Reynolds |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr T Reilly |
| Solicitors for the Respondents: | DLA Piper |
ORDERS
A writ of certiorari shall issue removing the record of the former Refugee Review Tribunal decision made on 26 September 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Administrative Appeals Tribunal to redetermine the review application according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3027 of 2014
| SZVKA |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
The applicant is a child born on 17 June 2012[1]. He seeks judicial review of a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal) made on 26 September 2014. The Tribunal affirmed a decision of a delegate of the Minister (delegate) not to grant the applicant a protection visa.
[1] The applicant’s birth date is incorrectly stated at [2] of the Tribunal decision but is correctly stated at [36]
Given the applicant’s age, his claims were made on his behalf by his mother who, along with her husband and their daughter, had earlier been refused protection visas. In these proceedings, the applicant’s mother was appointed the litigation guardian of the applicant.
Background facts in this matter are otherwise derived from the applicant’s first outline of legal submissions filed on 25 May 2017.
On 14 February 2013, the applicant lodged an application for a protection visa[2]. His claims are set out on his behalf at CB 19–21. Essentially, he claimed to fear discrimination as a member of the particular social group of unregistered children in China. He was born in breach of the one child policy because his mother was not married when he and his sister were conceived. He feared discrimination and denial of access to education and health services.
[2] Court Book (CB) 1-56
On 2 May 2013, the applicant’s representatives sent the delegate a statutory declaration made by the applicant’s mother[3]. The mother:
a)refers to an incident in 2008 – 2009 whereby her father had been implicated in violence at a construction site, was arrested by the Fujian authorities, and was charged and fined. This led to financial hardship;
b)claimed that in January 2010, she became pregnant with her first child, who would be treated as an illegitimate child in China because she and the father were unmarried and underage. She also feared that her family’s troubles with the authorities would also adversely impact on them;
c)claimed that she became pregnant with the applicant in September or October 2011. This would compound the seriousness of the harm in China because the second child would be born in breach of the one child policy. She would be forced to pay an exorbitant family planning fine (social compensation fee), which she was not in a financial position to pay, and be exposed to forcible sterilisation. She would also be unable to legally register her children on the household registration system, referred to as “Hukou”, resulting in the children being regarded as “black children” and being denied access to government services (including public education and medical care);
d)claimed that the applicant feared (at the hands of the Chinese authorities and the general public) a threat to his life or liberty, significant physical harassment, significant physical ill treatment, and significant hardship affecting his capacity to subsist. He also feared harm due to his imputed political opinion and as a failed asylum seeker.
[3] CB 84-89
On 26 September 2012, the mother’s own protection visa application was refused by the Tribunal[4].
[4] CB 94–123
On 28 June 2013, the applicant’s representatives sent to the delegate a letter concerning the ability of the mother and the maternal grandparents to pay the costs associated with household registration, with supporting documents[5].
[5] CB 128–144
On 5 July 2013, the delegate refused the application[6].
[6] CB 147–163
On 12 August 2013, the applicant applied to the Tribunal for review of the delegate’s decision[7].
[7] CB 165–188
The applicant was subsequently invited to appear before the Tribunal at a hearing on 12 November 2013[8].
[8] CB 196–200
On 6 November 2013, the applicant’s representatives sent the Tribunal written submissions[9].
[9] CB 204–219
On 2 May 2014, the Tribunal sent the applicant an invitation to comment on or respond to certain information[10].
[10] CB 253–256
On 16 May 2014, the applicant’s representatives responded to the invitation to comment[11].
[11] CB 258–264
On 26 September 2014, the Tribunal refused the application[12].
[12] CB 272–283
Tribunal decision
The Tribunal did not accept the claims of the applicant’s mother based on its concerns as to her credibility[13].
[13] at [14]
The Tribunal noted that the mother provided notarial certificates concerning the imprisonment of her father dated 24 November 2009 on 17 August 2012, and it recounted the evidence she gave to the Tribunal and the delegate as to her father’s prosecution[14]. It then referred to the mother having stated that documents submitted by her in relation to her initial student visa application were fraudulent, and it noted that it casted doubt on her “imprisonment” documents[15]. After referring to the applicant’s submissions on this issue[16], the Tribunal then concluded that it did not find her explanations for the delay convincing[17] and concluded that the “imprisonment” documents were fraudulent[18]. It then concluded that her claims in relation to her and the applicant’s situation were therefore untrue[19].
[14] at [14] – [19]
[15] at [20]
[16] at [23]-[28]
[17] at [29] – [31]
[18] at [32] – [33]
[19] at [34]
The Tribunal then stated it would proceed on the following basis[20]:
[W]hilst I accept from the Australian birth certificate that the applicant was born to parents who were not married, is the second child of his mother and would be subject to the social compensation fee, these are the only facts I can accept of the applicant’s and his families claimed circumstances. I find that the applicant’s grandfather was not charged, imprisoned or punished in any way, that he is still employed in a well-paying job and that he will assist the applicant’s mother to pay the social compensation fee, meaning the applicant will be able to be registered and received a Hukou.
[20] at [34]
In relation to the Fujian family planning laws, the Tribunal referred to Articles 14 and 39 of the Population and Planning Regulation for Fujian Province and accepted that[21]:
the applicant was born out of wedlock, that is, born before the stipulated time, and that a social compensation fee will be payable in order for him to be registered in China.
[21] at [39]
It then reasoned that “the clear intent of the Chinese legislation is that there is no discernible official negative treatment or opprobrium if the social compensation fee is paid in these situations” and rejected a claim as to there being a 30 day limit on paying the fee and the mother’s claims as to what would happen to people who fell outside the family planning laws[22].
[22] at [40]
The Tribunal, however, accepted the mother’s evidence that she would have to pay the social compensation fee for both of her children and that this would amount to approximately 214,000 Yuan or AUD38,883[23]. However, it rejected her evidence that she had no prospect of earning a decent wage in China to pay this fee or that her parents could not help her pay it[24]. It did not accept that her evidence as to her bank account statements was a true and complete representation of her financial situation or that of her father, and found that her father continued to be employed as the supervisor of a construction site in which he earned 20,000 to 70,000 Yuan per project, that he owned an apartment, and that he had paid 170,000 Yuan for the mother’s schooling fees in Australia plus travel and living expenses[25]. The Tribunal concluded that[26]:
If the applicant’s grandfather continues to be employed, as the Tribunal considers he is, and if the applicant’s grandparents had sufficient funds to send the applicant’s mother to study in Australia, I find that the applicant’s grandparents will be able to assist the applicant’s mother to pay the social compensation fees and would not face hardship by paying these fees.
[23] at [41]
[24] at [42]
[25] at [43]
[26] at [43]
The Tribunal then referred to the ability to pay the social compensation fee by instalments and further concluded that it did not accept that payment of the fee constituted serious or significant harm. It considered that the fee would be paid and the applicant would be registered[27].
[27] at [44]–[46]
The Tribunal went on to accept that the applicant might, as the son of an unmarried single mother, suffer teasing and be regarded with pity and disdain, but did not consider that this amounted to serious or significant harm[28].
[28] at [47]
The Tribunal also rejected the applicant’s claims pertaining to imputed political opinion or as a failed asylum seeker[29].
[29] at [50]–[56]
The present proceedings
These proceedings began with a show cause application filed on 31 October 2014. The applicant now relies upon a further amended application filed on 29 May 2017. There are four grounds in that application:
1. The Tribunal’s Decision is vitiated by jurisdiction error because the Tribunal failed to ask itself the right questions, made critical findings on the basis of assumptions in the absence of evidence or findings capable of supporting them, or it failed to deal with the applicant’s claim.
Particulars
a. The Tribunal found that the applicant’s mother would be able to pay the social compensation fee of approximately AUD 38,883 that she would be required to pay as a consequence of her children being born out of wedlock and the applicant being her second child (Tribunal’s Decision, [43]).
b. The finding in paragraph (a) was dependent upon the assumption that the applicant’s grandfather would continue to be employed until the social compensation fee had been paid. However, the Tribunal did not ask itself whether it was possible that the applicant’s grandfather would not continue to be employed for this period and, accordingly, the possibility that he would not have the requisite funds to assist the applicant’s mother pay the social compensation fee.
c. Further and in the alternative, the finding in paragraph (a) was dependent upon an unstated assumption that, if the applicant’s grandfather had sufficient funds, he would give the money to the applicant’s mother for payment of the said fee. However, the Tribunal did not ask itself whether it was possible that the applicant’s grandfather would not give the money to the applicant’s mother for payment of the said fee.
d. In the circumstances, the Tribunal did not ask itself the right questions, viz:
i. whether it was possible that the applicant’s grandfather would not be employed until the social compensation fee had been paid and, if so, whether the applicant faced a well-founded fear of persecution as a consequence;
ii. whether it was possible that, even if the applicant’s grandfather had the money to pay the social compensation fee, he would not give the money to the applicant’s mother and, if so, whether the applicant faced a well-founded fear of persecution as a consequence;
e. Further and in the alternative, the Tribunal made the finding in para (a) in the absence of evidence or findings capable of supporting it.
f. Further and in the alternative, the Tribunal failed to lawfully deal with the applicant’s claim to fear persecution by reason of being an unregistered illegitimate second child or black child. Absent the Tribunal finding without any real doubt that the grandfather would remain employed until the social compensation fee had been paid and that the grandfather would give the money to the applicant, it was obligated to deal with the applicant’s claims against the scenario that the social compensation fee would not be paid and he would be an unregistered illegitimate second child or black child.
2. The Tribunal engaged in jurisdictional error by failing to consider a component integer of a claim or a relevant consideration.
Particulars
a. It was claimed on behalf of the applicant that local governments in China may refuse to register unsanctioned births in order to meet family planning objectives (CB212[61]).
b. The Tribunal failed to consider the matter identified in paragraph (a), being a claim, component integer or otherwise a relevant consideration that it was obliged to take into account, thereby engaging in jurisdictional error.
c. Further and in the alternative, the applicant (through his representatives) identified to the Tribunal content of a report at CB212 footnote 33 to the effect that local governments in China may refuse to register unsanctioned births in order to meet family planning objectives;
d. The Tribunal failed to take into account the content of the report referred to in paragraph (c), being a mandatory relevant consideration, thereby engaging in jurisdictional error.
3. The Tribunal engaged in jurisdictional error in respect of its finding that it was the clear intent of the Chinese legislation that there was no discernible official negative treatment or opprobrium if the social compensation fee was paid for children born out of wedlock (CB279[40]).
Particulars
a. The Tribunal found that it was the clear intent of the Chinese legislation that there was no discernible official negative treatment or opprobrium if the social compensation fee was paid for children born out of wedlock (CB279[40]).
b. The finding referred to in (a) was a finding made in the absence of evidence.
c. Further and in the alternative, the finding referred to in (a) was contrary to the content of the report identified by the applicant at CB212 footnote 33, being a report identified by the applicant’s representatives and being a relevant consideration which the Tribunal was obliged to take into account.
d. Further and in the alternative, the finding referred to in (a) was a finding that was manifestly unreasonable.
e. Further and in the alternative, despite finding that the Chinese legislation did not intend for the occurrence of any “discernible official negative treatment or opprobrium” upon payment of the fee, the Tribunal failed to ask itself whether there was in practice negative treatment or opprobrium.
4. The Tribunal engaged in jurisdictional error in respect of the certificate issued pursuant to s 438(1)(a) of the Act and/or the subject matter thereof in that: (i) it failed to disclose the existence of the certificate to the applicant; or (ii) the certificate was invalid, whereas:
a. The Tribunal acted on the validity of the certificate thereby following a procedure contrary to law, or the invalid certificate infected the process or procedure adopted by the Tribunal; or
b. The Tribunal did not properly turn its mind to whether it ought to have made disclosure of the subject matter of the certificate under s 424AA or s 424A, or the Tribunal failed to disclose information that it was obliged to disclose under these provisions; or
c. The Tribunal did not consider whether the documents the subject of the certificate supported the applicant’s visa application and should have been disclosed to the applicant.
(errors in original)
In addition to the court book filed on 9 December 2014, I have before me as evidence the following affidavits:
a)the affidavit of Farid Varess made on 26 August 2015, to which is annexed a copy of an article by Yingying Zhou entitled, “Uncovering Children in Marginalisation: Explaining Unregistered Children in China”;
b)the affidavit of Chloe Ann Hillary made on 26 May 2017, to which is annexed a notification and purported certificate regarding the disclosure of certain information under s.438 of the Migration Act 1958 (Cth) (Migration Act) and two documents purportedly covered by that certificate;
c)the affidavit of Amelia Whalley-Routley made on 1 June 2017, to which is also annexed the purported certificate and the two documents purportedly covered by the certificate, being folios 48 and 61 from the file of the Minister’s Department concerning the visa application; and
d)the affidavit of Shelli Frankel made on 1 June 2017 also annexing the purported certificate and the documents purportedly covered by it and deposing as to the non disclosure of the certificate and the documents.
Both the applicant and the Minister made pre-trial written submissions and also made oral submissions at the trial of this matter on 5 June 2017. I have been assisted by those submissions.
Consideration
Futility
At the outset of the hearing on 5 June 2017, I confirmed with counsel for the Minister that the Minister makes no assertion that it would be futile to remit this case to the Tribunal for further consideration, having regard to the current status of the Chinese one child policy. That concession was made notwithstanding that it is a matter of public record that the Chinese Communist Party abandoned the one child policy as a policy on or about 29 October 2015 and the consequential legislative changes became effective on 1 January 2016 following their passage in the Standing Committee of the National People’s Congress on 27 December 2015. It is a matter of pure speculation what claims for protection the applicant could now make.
Ground 1 – did the Tribunal fall into error in considering the capacity of the applicant’s mother to pay the estimated social compensation fee with the support of the applicant’s grandfather?
Applicant’s contentions
A significant aspect of the Tribunal’s reasoning was that the grandfather would be able to assist in paying the social compensation fee that it accepted the mother would have to pay[30].
[30] see CB 278–280 at [34], [39] and [43]
However, it is said to be evident from the finding in the last sentence at [43] that this finding was based upon the hypothetical scenario or the contingency that the grandfather would continue to be employed. The Tribunal stated[31]:
If the applicant’s grandfather continues to be employed, as the Tribunal considers he is, and if the applicant’s grandparents had sufficient funds to send the applicant’s mother to study in Australia, I find that the applicant’s grandparents will be able to assist the applicant’s mother to pay the social compensation fees and would not face hardship by paying these fees.
(emphasis added)
[31] at [43], last sentence
The problem with the reasoning is said to be that the assistance as to the payment of the social compensation fee was premised on a contingency or a hypothetical scenario (the grandfather’s continued employment), and the Tribunal did not make a finding or ask itself whether the contingency or the hypothetical scenario would in fact arise. Given the reasoning that the Tribunal adopted, it was essential that it address this question.
The social compensation fee was no small amount of money. The grandfather’s earnings for each construction project was found to be 20,000 – 70,000 Yuan, whereas the social compensation fee was 214,000 Yuan. In the circumstances, it is evident, as the Tribunal found, that the grandfather could pay the social compensation fee if he continued to be employed. It, however, failed to make findings or otherwise deal with whether in fact that requirement would be satisfied or, more accurately, whether there was a real risk it would not be satisfied.
The applicant submits that this was an erroneous approach because, in not asking itself this question, the Tribunal failed to deal with the claim before it. It did not resolve whether the applicant had a well-founded fear of persecution by reason of non-payment of the social compensation fee.
Put another way, in resolving the claims before it, it is well established that the Tribunal “must not foreclose reasonable speculation about the chances of the hypothetical future event occurring”[32] or, in the present case, reasonable speculation about the chances of the hypothetical future event not occurring.
[32] Minister for Immigration v Rajalingam (1999) 93 FCR 220 at [60] per Sackville J
Further, in circumstances where the Tribunal is uncertain about a matter or considers that it is possible, although improbable, a failure to consider the possibility that it could occur might constitute a failure to undertake the required reasonable speculation in deciding whether there is a real substantial basis for the applicant's claimed fear of persecution[33].
[33] Rajalingam at [62] per Sackville J
The applicant submits that, in this case, the Tribunal did not address the possibility that the grandfather might not be employed at all, let alone make findings as to its probability and proceed accordingly. It cannot be said, therefore, that the Tribunal had no real doubt that that grandfather might not be employed so as to preclude any need to consider the alternative scenario. It simply identified a contingency that, if met, meant that the grandfather would be able to assist with the social compensation fee, and did not consider whether it would occur or how likely it was.
Minister’s contentions
The Minister submits that the Tribunal did not fall into error in the manner alleged by the applicant.
As explained in the applicant’s submissions the ground concerns the Tribunal’s finding at [43][34] that the applicant’s mother would be able to pay the social compensation fee. The Tribunal found that the applicant’s grandparents could assist her in doing so. The complaint made is that the Tribunal in so finding states “[i]f the applicant’s grandfather continues to be employed, as the Tribunal considers he is…” without making a definitive finding that he will be so employed. However this is said to be just a quibble about the Tribunal’s wording of one sentence in its reasons, as it is clear from the context that the Tribunal is not simply posing a hypothetical question, as alleged by the applicant, but referring to its previous finding that the grandfather continues to be employed as the supervisor of a construction site. On a fair reading consistent with Minister for Immigration v Wu Shan Liang[35] at 271-272, the Tribunal at [34][36], [43][37], [45][38], [51][39] finds that the grandfather will continue to be employed for at least long enough to allow him to assist in payment of the social compensation fee. The Minister submits that any other reading of the Tribunal’s reasons does not make sense. Contrary to the applicant’s submissions the Tribunal’s reasons do not indicate any real doubt about this finding, so it did not need to consider the possibility that it might be wrong[40]. It follows that the Tribunal has addressed the claim that the applicant’s mother could not pay the social compensation fee.
[34] CB 280
[35] (1996) 185 CLR 259
[36] CB 278
[37] 280
[38] 281
[39] 282
[40] Rajalingam at [67] per Sackville J, North J agreeing at [129]
Resolution
I accept the Minister’s submissions on this ground. First, the Tribunal emphatically rejected the claims of the applicant’s mother concerning the circumstances of the applicant’s grandfather[41].
[41] CB 275-278
The Tribunal made the following material factual findings at [34][42]:
On the basis of this finding I find that the information in these documents and in the applicant’s mother’s claims in relation to her and the applicant are not true. I find that the applicant’s mother has provided fraudulent documents, and also lied and misled the Tribunal about what she said to the Department and her reasons for not providing these documents earlier, and that therefore she is not a witness of truth, and that none of her claims about her situation, her families situation, or the applicant’s situation on return to China are true. This leads me to the conclusion that whilst I accept form the Australian birth certificate that the applicant was born to parents who were not married, is the second child of his mother and would be subject to the social compensation fee, these are the only facts I can accept fo the applicant’s and his families claimed circumstances. I find that the applicant’s grandfather was not charged, imprisoned or punished in any way, that he is still employed in a well-paying job and that he will assist the applicant’s mother to pay the social compensation fee, meaning the applicant will be able to be registered and received a Hukou. In making these findings I have had regard to the excerpted provisions of the MRT-RRT Guidelines on credibility provided in the post-hearing submission, but in find that the failure to provide these documents earlier is not explained by the excerpted provisions.
[42] CB 278
There is no doubt attending the Tribunal’s finding that the applicant’s grandfather has the financial capacity to assist the applicant’s mother to pay the social compensation fee. Further, at [43][43] the Tribunal said:
In determining that the applicant’s mother will be able to pay the fine I make the following observations. I accept that the applicant’s mother has financial assistance from the Red Cross in Australia, and that in the Commonwealth bank account details she has disclosed she has little money, and on this basis has been provided CAS support, but given my credibility findings above I do not accept that this is a true and complete representation of her financial situation. More significantly, I have rejected the claim that the applicant’s grandfather has been accused and imprisoned and lost his job. I have made findings above which lead me to place no weight on the documents provided of the claimed bank accounts for the applicant’s grandfather and grandmother. I therefore do not accept that these documents set out the true financial situation of the applicant’s grandparents. I find that the applicant’s grandfather continues to be employed as the supervisor of a construction site in which, on the applicant mother’s evidence, he earns 20,000 to 80,000 Yuan per project, that he owns an apartment, and that the applicant mother’s family were able to pay, on the applicant mother’s evidence at hearing, 170,000 Yuan to the agent for her schooling fees in Australia, plus travel and living expenses. If the applicant’s grandfather continues to be employed, as the Tribunal considers he is, and if the applicant’s grandparents had sufficient funds to send the applicant’s mother to study in Australia, I find that the applicant’s grandparents will be able to assist the applicant’s mother to pay the social compensation fees and would not face hardship by paying these fees.
[43] CB 280
The applicant focuses on the word “if” twice appearing in the final sentence of that paragraph. In my view, this is simply an example of somewhat loose phraseology. In the same sentence the Tribunal reiterated that it considered the applicant’s grandfather continued to be employed. The Tribunal exhibited less certainty about the financial arrangements under which the applicant first came to Australia as a student but, in my view, any lingering uncertainty about the capacity of the applicant’s mother (with the assistance of her father) to pay the social compensation fee is removed by the further reasoning of the Tribunal at [44]-[46][44].
[44] CB 280-281
I reject Ground 1.
Ground 2 – did the Tribunal fail to consider a component or integer of the applicant’s claim that local governments in China may refuse to register unsanctioned births, whether the social compensation fee was or could be paid, in order to meet family planning objectives?
Applicant’s contentions
A fair reading of the Tribunal’s decision would suggest that it proceeded on the basis that the social compensation fee would be paid by the mother with the assistance of the grandfather and, accordingly, the harm said to flow from being unregistered would not come to pass[45]. The issue insofar as the Tribunal was concerned was whether the applicant’s family had the means to ability to pay the social compensation fee.
[45] CB 278–9 at see [36]–[46]
However, a component integer of the claim before the Tribunal was that local governments might refuse to register unsanctioned births in order to meet family planning objectives. That is to say, the registration might be refused by the local government irrespective. This was expressly put by the applicant’s representatives in written submission. At [61][46], they claimed that in addition to parents themselves refusing to register unsanctioned births:
[L]ocal governments [in China] may refuse to register unsanctioned births in order to meet family planning objectives.
[46] CB 212
It is well established that the Tribunal is obliged to consider claims and component integers thereof raised expressly or squarely in the material before it[47].
[47] Htun v Minister for Immigration (2001) 194 ALR 244 per Allsop J (with whom Spender and Merkel JJ agreed) at [42]; Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [22]-[24], [27] per Gummow and Callinan JJ, [88]-[89] per Kirby J; [95] per Hayne J; NABE v Minister for Immigration(No 2) (2004) 144 FCR 1 at [58] to [61] per Black CJ, French and Selway JJ); MZWDG v Minister for Immigration [2006] FCA 497 at [39] per Young J)
The applicant submits that the claim that the relevant local authority might refuse to register the applicant’s birth to meet family planning objectives, irrespective of whether the mother had the means to pay the social compensation fee, was thus a component integer of a claim that had to be considered. The written submission to the Tribunal plainly alluded to officials refusing to register unsanctioned births for their own reasons and this either was sufficiently clear so as to amount to an expressly raised component integer of the applicant’s claim or it was squarely raised by the material before the Tribunal.
The applicant submits that it is also clear that the Tribunal did not in fact consider this. As stated above, a fair reading of the relevant passages[48] assume that the only obstacle to registration was the applicant’s family’s means to pay the fine. The Tribunal does at [40] discuss claims made pertaining to how the fee operates, however, this is limited to a claim that there was a 30 day limit to paying the fee and the consequences of non-payment of the fee, not the barriers (apart from having the funds to pay the fee), particularly local official conduct, to accepting the registration.
[48] especially [36]–[46]
Minister’s contentions
While there is a sentence to the effect that the Chinese authorities might refuse to register unsanctioned births to meet family planning policies in the applicant’s submissions to the Tribunal at [61][49], this was in the context of a general discussion of family planning policies in China. It was nowhere stated that the applicant feared that this would happen to him. The claimed basis of his fear was that his mother would not be able to afford the social compensation fee[50]. In the absence of a transcript it appears nothing was said at the Tribunal hearing to indicate a fear that the applicant might not be registered even if he paid the social compensation fee. The Minister submits that, there was in the circumstances no “substantial, clearly articulated argument relying on established facts”[51] that the applicant feared being unregistered even if he paid the fee. In any case, the Tribunal’s findings at [46] and [48][52] make clear that the Tribunal finds that the applicant will be registered. That finding is necessarily a rejection of the possibility that the applicant may be refused registration “to meet family planning policies”, so even if there was such a claim the Tribunal’s findings deal with it by making findings of greater generality or rejecting a factual premise on which it is based[53].
[49] CB 212
[50] CB 213 at [69]
[51] Dranichnikov v Minister for Immigration (2003) 77 ALJR 1088 at [24]
[52] CB 281
[53] Applicant WAEE v Minister for Immigration (2003) 236 FCR 593 (FC) at [47]
Resolution
The article annexed to Mr Varess’ affidavit draws attention to the problem of unregistered births in China in the context of the former one child policy. For the most part, the article focussed on the problem of non registration as a tactic by parents in order to avoid payment of the social compensation fee or other punishment. However, the article did also refer to the possibility that local government authorities might refuse to register a birth in pursuit of family planning objectives. It was left unclear whether such refusal might be made notwithstanding payment of the social compensation fee or whether payment of the fee in such circumstances would be rejected. The general proposition was deployed in submissions prepared by the applicant’s legal advisors and given to the Tribunal. There was no further explanation in those submissions of the proposition.
It is debatable whether the assertion in the submission amounts to a clearly articulated claim squarely raised. If it was then, in my view, it was squarely addressed by the Tribunal at [46] of its reasons where the Tribunal said:
The Tribunal does not accept that the applicant’s mother would not be able to pay for the applicant or his sister to be registered in China. The Tribunal finds that the requirement to pay the fee does not constitute serious harm or significant harm. The Tribunal finds that there is no real chance or real risk of harm to the applicant because he will not be registered in China, including any restrictions in access to health services and education, because the Tribunal finds that the social compensation fee will be paid and the applicant will obtain registration. (emphasis added)
The Tribunal’s broad conclusion in the final sentence of that paragraph that the applicant will obtain registration encompasses the assertion that in some unspecified circumstances, local government authorities might refuse to register a child, even though the required fee was proffered.
Ground 3 – did the Tribunal fail to ask itself whether the applicant might in reality, or practice, suffer official negative treatment amount to persecution, even if there was no such legislative intent underlying the relevant legislation?
Applicant’s contentions
This ground concerns the finding of the Tribunal at [40] that[54]:
I find that the clear intent of the Chinese legislation is that there is no discernible official negative treatment or opprobrium if the social compensation fee is paid in these situations.
[54] CB 279
The applicant submits, however, that the determination of the intent of the Chinese legislation is not a complete answer to the question the Tribunal was statutorily tasked to deal with, namely, whether it was satisfied that the applicant faced a well-founded fear of persecution now or in the reasonably foreseeable future upon return to China. The finding amounted to a finding that the Chinese legislation itself bore no discernible official intent to ill treat payees of the social compensation fee, but this does not quite answer the correct question, which requires focus on what might actually happen. To answer the correct question, the Tribunal needed to go further than discerning the official intent of the legislation and ask itself whether as a matter of reality or practice there was official negative treatment or opprobrium so as to give rise to a well-founded fear of persecution.
It is correct to note that the Tribunal addressed[55] a claim that the applicant faced persecution in the form of teasing and the like. However, read fairly, this paragraph addresses claimed persecution that the applicant might suffer from unofficial sources, such as children in the community with whom the applicant might have to interact, rather than persecution from an official source. It does not, fairly read, amount to consideration of the type required as identified in the preceding paragraph.
[55] CB 281 at [47]
Minister’s contentions
The Minister rejects the applicant’s complaint about the Tribunal’s finding at [40][56] that the “clear intent” of Fujian family planning laws “is that there is no discernible official negative treatment or opprobrium if the social compensation fee is paid in these situations”. The ground claims that this finding was made without evidence or was contrary to evidence or was unreasonable, but the applicant’s submissions do not address these complaints and instead state that the Tribunal’s finding was not a complete answer to the applicant’s claims. However the Tribunal does not suggest that it is. The Tribunal’s findings at [46]-[49][57] make perfectly clear that the Tribunal does not accept that there is a real chance that the applicant will suffer serious harm or significant harm as a result of breaching China’s family planning laws. That addresses the claim he made.
[56] CB 279
[57] CB 281-282
Resolution
I accept the Minister’s submissions. The Tribunal clearly dealt with the risk of community discrimination at [47][58] of its reasons.
[58] CB 281
In my view, the risk of any official sanction following registration is clearly dealt with by the Tribunal at [48][59] where the Tribunal stated:
Specifically, I find that the applicant will not be seriously or significantly harmed as an unregistered illegitimate second child or ‘black child’, because I have found that he will be registered. I find the applicant will not be seriously or significantly harmed because he is the son of an individual who has breached China’s family planning laws because the social compensation fee will be paid by the applicant’s mother and I do not accept that there will be any further sanction or effect from the breach of the family planning laws. Whilst I accept that he would continue, socially, to be considered the child of an unmarried mother, I have not accepted above that this would lead to a real chance of him being seriously or significantly harmed.
[59] CB 281-282
I reject Ground 3.
Ground 4 – did the Tribunal fall into error by failing to disclose to the applicant the purported certificate or the documents to which it related?
I accept that the following facts bear upon the consideration of this ground.
The certificate, addressed to the Tribunal, states:
I certify that paragraph 438(1)(a) of the Migration Act 1958 applies to the information in folios 48 and 61 of file number CLF2013/32101. The disclosure of this information would be contrary to the public interest because it refers to internal working documents and business affairs. (emphasis added)
File number CLF2013/32101 is the Department’s file relating to the applicant[60]. The subject of the certificate is folios 48 and 61 of that file.
[60] CB 151.3, 272.4
I infer that folios 48 and 61 were included in the information sent to the Tribunal. In the ordinary course of things, the departmental file is sent to the Tribunal pursuant to s.418(3) of the Migration Act, which on its face is relevant to the review. Further, the certificate is addressed to the Tribunal and it would only serve a purpose if the information the subject of the certificate was included in the documents sent to the Tribunal.
I accept from the affidavits of Ms Frankel and Ms Whalley-Routley that the Tribunal did not disclose folios 48 and 61 to the applicant. There is nothing in the court book which suggests that the Tribunal did so, and the Minister does not contend that the Tribunal did so.
However, the Tribunal did disclose the issue of the visa status of the applicant’s mother, which was related to that of the applicant (as referred to in folio 48) in a letter written pursuant to s.424A of the Migration Act on 2 May 2014 which relevantly stated[61]:
[61] CB 255
Second set of information – delay in your mother seeking protection
I. Departmental records indicate that your mother became unlawful when her student visa ceased in March 2010 and she remained unlawful until she applied for protection in November 2011, a year and a half later.
II. Information provided by your mother indicates that her daughter, your sister, was born in September 2010.
III. However, she applied for protection a year later, she claimed when she found out about her pregnancy with you
IV. Your mother has claimed that she feared your sister would be persecuted in China because your sister was also born out of wedlock and would be considered ‘early born’ and would not be registered without a social compensation fee which your mother said neither she nor her family could pay, yet your mother waited a year before applying for protection after your sister’s birth.
This information is relevant because the delay in your mother applying for protection may indicate that she does not fear return for herself, your sister or you for the reasons your mother has claimed and may indicate the lack of immediacy and gravity of her fears of return for any of you. It may, subject to any comment or response you make, lead the Tribunal to further find that your mother is not credible or a witness of truth. This may lead the Tribunal to find that everything she has claimed about her circumstances, your family’s circumstances, and what may happen to you on return is not true. This, subject to any comment or response you make, would be the reason, or a part of the reason for affirming the decision that is under review.
You are invited to give comments on or respond to the above information in writing.
Applicant’s contentions
MZAFZ v Minister for Immigration (2016) 243 FCR 1 per Beach J
In MZAFZ, the Federal Court identified four potential jurisdictional errors that can flow from the usage of such certificates.
The first three errors identified by the Court flow from the certificate being invalid.
In that case the certificate was invalid because the face of the certificate did not identify a reason for non-disclosure that could form the basis of a claim for Crown privilege, this being the relevant touchstone that engages the right to issue a certificate pursuant to s.438(1)(a)[62].
[62] MZAFZ at [35]–[37]
The consequences of invalidity were:
a)first, as stated in MZAFZ at [40], “if the Tribunal acted on the invalid certificate it followed a procedure contrary to law” and “the purported issue of an invalid certificate by the delegate of the Minister infected the process or procedure adopted by the Tribunal in relation to such documents”. On the question of reliance, the Court reasoned that “[i]n the absence of evidence to the contrary, I am entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate in relation to the documents the subject thereof in its possession...” and therefore proceeded on that basis;
b)secondly, the Court in MZAFZ at [41]–[42] stated that, in acting on an invalid certificate, it was open to infer that the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s.424AA or s.424A;
c)thirdly, the Court in MZAFZ at [43] stated that, if the Tribunal had realised that the certificate was invalid, it would have, in contrast to the conditions triggering s.424AA or s.424A, had to have considered whether the documents supported the applicant’s visa application and should have been disclosed to the applicant.
In these three separate respects the Court in MZAFZ concluded at [44] that “for the Tribunal to have proceeded or acted on an invalid certificate was not a process according to law and of itself constituted jurisdictional error”.
Fourthly, the Court in MZAFZ then went on to conclude at [45]–[66] that non-disclosure of the certificate amounted to a denial of procedural fairness and jurisdictional error (even if the certificate was valid).
Minister for Immigration v Singh (2016) 243 FCR 1
This case was a decision of the Full Court of the Federal Court, which involved the Minister’s appeal from a decision in which this Court applied the principles in MZAFZ by analogy to s.375A of the Migration Act (being the equivalent provision for the Migration Review Tribunal).
This Court found in Singh v Minister for Immigration[63] that the certificate was invalid and, in any event, had it been valid the non-disclosure of the certificate was a denial of procedural fairness.
[63] (2016) 313 FLR 1
On appeal the Minister does not appear to have challenged the finding that the certificate was invalid but argued that it did not have any relevant legal consequence and that there was no denial of procedural fairness in not disclosing the existence of the certificate. The Full Court rejected these arguments and, in a detailed analysis, concluded that the failure to disclose the certificate amounted to jurisdictional error.
The Minister’s application for special leave to appeal from the decision of the Full Court was recently refused on the basis that it did not enjoy sufficient prospects of success[64].
[64] Minister for Immigration & Anor v Singh [2017] HCATrans 107
The applicant submits that, in applying these principles to the facts of this case, it is evident that the Tribunal engaged in jurisdictional error in all or any of the four respects identified in MZAFZ.
First, whether or not the certificate was invalid, the Tribunal failed to disclose its existence to the applicant. Both MZAFZ and Singh are to the effect that the Tribunal has an obligation to disclose the existence of the certificate and a failure to do so will amount to jurisdictional error. For this reason alone, the application should be upheld.
Secondly, the applicant submits that it is also evident that any or all of the three additional errors relating to invalid certificates identified by Beach J in MZAFZ are applicable. The certificate in the present case gives the reason for non-disclosure as being that the information the subject of the certificate “refers to internal working documents and business affairs.” This does not on its face identify a reason that could sustain a claim for Crown privilege and therefore, as with the certificate in MZAFZ, it is invalid. Further:
a)as with MZAFZ, the Court is entitled to assume that the Tribunal acted in some unspecified way on the invalid certificate and, accordingly, conclude that it infected the process adopted by the Tribunal or that it acted on the invalid certificate so as to follow a procedure contrary to law;
b)additionally or alternatively, as with MZAFZ, the Court should infer that the Tribunal may not have properly turned its mind to whether it ought to have made disclosure under s.424AA or s.424A; and
c)further or in the alternative, as with MZAFZ, the Court should also infer that the Tribunal did not realise that the certificate was invalid and consider whether the documents supported the applicant’s application and should have been disclosed.
Minister’s submissions
The Minister has led evidence as to this certificate and the documents it refers to. That distinguishes the case from MZAFZ (Beach J) and Minister for Immigration v Singh[65], referred to in the applicant’s submissions.
[65] [2016] FCAFC 183
The Minister submits that, as neither the certificate nor the documents to which it refers are mentioned by the Tribunal and appear to have no obvious relevance to its decision, it can be inferred that they were not considered relevant by the Tribunal. In those circumstances no jurisdictional error can be made out by the non-disclosure of either the certificate or the documents, regardless of whether the certificate was invalid[66].
[66] AVO15 v Minister for Immigration [2017] FCA 566 (Barker J) at [84]-[91]; see also BEG15 v Minister for Immigration& Anor [2016] FCCA 2778 (Judge Smith) at [64]-[68]; CKG15 v Minister for Immigration & Anor [2017] FCCA 938 (Judge Manousaridis) at [74]-[108]
The ground also suggests a possible breach of s.424A(1) of the Migration Act, but does not identify what “information” is said to fall within s.424A(1).
Resolution
In my view, the visa status of the applicant at a particular point of time, as referred to in folio 48 was of no importance to the review and hence no issue arises in relation to that document. The visa status of the applicant’s mother was relevant to the review but that information was disclosed in the s.424A letter.
There is an issue in relation to folio 61 which is an email apparently between two officers of the Minister’s Department on 15 March 2013[67]. Relevantly, the email states:
[67] There is no need to name the officers concerned
Just wanted to flag this application for protection with you. [The applicant] is a baby born onshore whose parents and sister have already had PV applications refused based on the same claims to protection (China’s one-child policy). They were found not to be owed Australia’s protection. The original case officer’s decision record was very well done, and the RRT’s decision record affirmed the officer’s findings.
The client’s mother and sister are now appealing the RRT’s decision to the Federal [Magistrates] [C]ourt. They are being permitted to stay onshore in Australia whilst they access judicial review and await the outcome of [the applicant’s] PV application. They were previously supported on ASAS payments, and Case management have found they have little choice but to keep supporting the so-stated now single mother of 2 on CAS payments.
Given the three family members were found not to be owed protection and much of the work has already been done by OPV in assessing the family’s claims, I wanted to make you aware of this case to save any unnecessary work from your end.
I am the CRO overseeing the family’s case. Please feel free to contact me regarding this matter.
I infer that the recipient of the email had some role in the consideration of the applicant’s protection claims in the Minister’s Department. The recipient was not the delegate whose decision was made on 5 July 2013 but it is possible that the email had some impact upon the delegate’s decision. At its highest, the email could be viewed as an expression of opinion that the applicant’s protection claims were weak and did not require deep consideration, given that essentially the same claims had already been rejected when made by other family members. Had the email been sent to anyone in the Tribunal during the course of the review I would have been bound to find, consistently with the decisions in MZAFZ and Singh that the established failure to disclose either the purported certificate or the material document to which it relates was procedurally unfair. However, the email was not directed to anyone in the Tribunal (although I infer that it remained on the Departmental file that was sent to the Tribunal). The question is, could internal Departmental chatter about a protection visa application have any impact upon the review of a delegate’s decision following that delegate’s decision? If there was no conceivable impact then, I would be bound to find, consistently with the decision in AVO15 that there was no procedural unfairness.
This is not an easy question to resolve but I do so in the following manner. First, consistently with my recent decision in BZV15 v Minister for Immigration & Anor[68] I find that the purported certificate in this case was invalidly issued.
[68] [2017] FCCA 981
What is the consequence of that invalidity? A consequence is that the email was not non disclosable information under s.424A(3)(c) of the Migration Act, but the email was nevertheless not required to be disclosed pursuant to that section because it was simply an example of the expression of the mental processes of an officer of the Minister’s Department which preceded the decision of the delegate. I find that the email was not required to be disclosed pursuant to s.424A.
Nevertheless, it can be inferred that the Tribunal had regard to the document[69] and, consistently with the decisions in MZAFZ and Singh, the certificate should have been disclosed if the Tribunal treated it as valid. The failure to do so was procedurally unfair because it could not be said that the content of the email was irrelevant to the review. That is because the email bore upon the merits of the applicant’s claims. Secondly, even though the email preceded the decision of the delegate, it is hypothetically possible that access to it might have assisted the applicant in making submissions about the delegate’s decision. Thirdly, it is fundamentally important to the integrity of the review process that the applicant be made aware if anything bearing on the merits of his or her application is withheld pursuant to a Ministerial certificate or purported certificate. Disclosure of a purported certificate in this case would have given the applicant the opportunity to seek disclosure of the email in issue and to make submissions about it to the Tribunal. For its part, the Tribunal could have made clear, in response to such a request, that the email would have no impact on its consideration of the review. Those opportunities were lost because of the non-disclosure of the purported certificate and, in conformity with the decisions of the Federal Court in MZAFZ and Singh, I find that the Tribunal fell into error in failing to disclose the purported certificate.
[69] I have found that the Department’s file was before the Tribunal and that the purported certificate and the affected documents were on it
Conclusion
The applicant has established that the decision of the Tribunal is affected by jurisdictional error. I will grant the relief sought in the further amended application.
I will hear the parties as to costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 16 June 2017
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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