VDAU (An Infant) by her Next Friend v MIMIA

[2005] HCATrans 54

[2005] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M95 of 2004

B e t w e e n -

VDAU (AN INFANT) BY HER NEXT FRIEND

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 FEBRUARY 2005, AT 11.24 AM

Copyright in the High Court of Australia

MR J.R. HAMILTON:   Your Honour, I appear for the applicant.  (instructed by Holding Redlich)

MR S.P. DONAGHUE:   Your Honour, I appear for the respondent.  (instructed by Australian Government Solicitor)

GUMMOW J:   Is an extension of time required here?

MR HAMILTON:   I was not aware that was an issue, your Honour.

KIRBY J:   Yes, the affidavit at page 58 of Andrew James Giles – that is an affidavit in this Court, rather suggesting that you got out of time.  Is that not correct?

MR HAMILTON:   I was not aware of that, your Honour, but I am told by my colleague that that is an issue.

KIRBY J:   It is in the application book.  If we pick it up, you should pick it up.

MR HAMILTON:   Your Honour, I am having a look at 58 of the book ‑ ‑ ‑

GUMMOW J:   Let us get on.  Let us ask Mr Donaghue what the attitude of the other side is.

MR DONAGHUE:   It is several months out of time, your Honours.  The attitude of the respondent is not ‑ ‑ ‑

KIRBY J:   But I think it was a long vacation problem, was it not?

MR DONAGHUE:   No, your Honour, the decision of the Full Court was on 20 February 2004 and the application was not filed until May 2004, so there was not that difficulty.  The page that your Honour mentioned of the affidavit on page 58 purports to give an explanation.  It says that the applicant’s next friend was aware of the time limits, but decided not to institute the proceeding because of a concern that he might be taken into detention.  So, in my submission, that constitutes, in effect, a recognition of a decision not to ‑ ‑ ‑

KIRBY J:   I understand that.  I agree with Justice Gummow that we should get on with the substance and sometimes the substance indicates that one should cure the faults of a couple of weeks.  Courts, in this respect, are sometimes a little bit more flexible than…..

MR DONAGHUE:   Yes, your Honour.

GUMMOW J:   Yes, Mr Hamilton.

MR HAMILTON:   Your Honour, the case is in two areas.  Basically, there was a finding that, on the evidence available to the Tribunal, it was not persecution, there was nothing other than a nursery subsidy that may affect people up to seven years of age.  The finding is on page 7 of the application book, and there is nothing else in the finding to show that any other piece of country information is relied on.  At the fourth paragraph, which has 15 in the margin, it specifically says: 

[The Tribunal] has been unable to find any material indicating any other detriment in relation to education. 

And in the final paragraph: 

In weighing all the available [country] information –

it is only nursery subsidy up to the age of seven that can be found, and there is no evidence: 

that she would be denied a proper education or access to essential medical services.

KIRBY J:   Now, tell me this, that country information related to information of the 1992 policy.  What was the most up to date information that was available of what is actually happening on the ground?

MR HAMILTON:   Your Honour, that does not concern the 1992.  That was the second issue, that being that even were it found that privation could amount to persecution, there was an exemption ‑ ‑ ‑

KIRBY J:   I realise that, but I am, as it were, trying to find out what was the age of the country information that was relied on on issue 1, because the 1992 policy is now a bit long in the tooth and lots of things have happened in China since 1992.

MR HAMILTON:   Your Honour, the only information that the Tribunal apparently relied on was that referred to in the 6 December 2000 submission, a submission I note ‑ ‑ ‑

KIRBY J:   What page is that?

MR HAMILTON:   Sorry, your Honour, that is on page 7, it refers to the 6 December 2000 submission, and that is specifically referenced in the decision of the Full Court at page 43.

KIRBY J:   What date is that submission?

MR HAMILTON:   The submission is 6 December 2000.

KIRBY J:   And is that up to date?  There is no suggestion that that is out of date information from China?

MR HAMILTON:   No, your Honour.

KIRBY J:   So this is an application brought on behalf of the child.  The child is the applicant.

MR HAMILTON:   The child is the applicant.

KIRBY J:   You say that as at the information provided in 2000, which we assume is roughly contemporaneous, if the child were returned to China, she would suffer a number of deprivations, including lack of access to schooling, lack of support.

MR HAMILTON:   Yes, your Honour.  The Tribunal has found nothing more than the subsidy up to seven years and has actually found that in the submission put forward by the applicant.  It refers to the 6 December 2000 applications having been made on behalf of the appellant.

KIRBY J:   But did not the Tribunal find that children of students born overseas were not subject to the same rigours of the one child policy, and is that not a decision that was open to the Tribunal within the material that was before them?

MR HAMILTON:   Your Honour, the Tribunal did bring up that 1992 statement, but it relied a lot less on the force of that than did the subsequent Federal Court and Full Federal Court.  The only weight the Tribunal gave that statement is recorded in its decision on page 10.  In the third paragraph, it concludes:

there is not a real chance of the applicant suffering discriminatory treatment, beyond that which might normally apply to children born outside the one‑child policy –

So it has more or less accepted ‑ ‑ ‑

KIRBY J:   Born outside China’s one‑child policy.

MR HAMILTON:   The courts after that have taken the decision further.  They have looked at it and said, “Well, even if you may be subject to the one child policy, this may exempt you”.  Well, that was not what the Tribunal said.  Your Honour Justice Kirby did not make a decision on whether or not – Chen Shi Hai was the case for the applicant at all stages.  It is noted in the decision of the Tribunal that the High Court ruling in that was available to the Tribunal.  That case is noted at page 2 in the second last line.  Chen Shi Hai is something that has been looked at.

KIRBY J:   The Court was unanimous in that case, was it not?

MR HAMILTON:   Your Honour, that did not look at whether ‑ ‑ ‑

KIRBY J:   That was the so‑called “black child”.

MR HAMILTON:   That is correct, your Honour.  It did not make a decision on whether or not the privations were sufficient to amount to persecution, it was a different issue involved.  That was not looked at.  What was looked at was whether or not the “black children” were a social group to which the refugee policy applied, and that was the only issue involved.  However, your Honour did make a statement, obiter, a strong observation at paragraph 53 of that decision, that said when you look at the material before the Tribunal and the Federal Court, it shows serious privations – I can read to your Honour from it, paragraph 55:

The severe disadvantages in terms of deprivation of primary education, basis medical and other civil rights are described at length in the earlier decision of the Tribunal and of the Federal Court.  I will not repeat them.  They are extremely burdensome.

KIRBY J:   There does not seem to be the same material before this Tribunal.

MR HAMILTON:   Yes, it is, your Honour, and we say that the Tribunal was put on notice, Chen Shi Hai.  You stated in that decision you “will not repeat them”, but a copy of the decision at first instance of the Federal Court has been copied – I do not know whether your Honours have a copy that.

KIRBY J:   Yes, but we are here dealing with a question of whether there is an error of jurisdiction.  That focuses our attention very precisely on what was the material before the Tribunal on the basis of which it was entitled to come to the conclusion that it did or not.  Therefore, our focus is not on evidence that has been given in other tribunals, other federal courts, it is on this case. 

MR HAMILTON:   Your Honour, at 43 of the application book, it is stated: 

The submission of 6 December 2000 was made on behalf of the appellant to the Department of Immigration and Multicultural Affairs and quoted extensively from an unreported judgment of French J in Chen Shi Hai –

It quotes one of the matters referenced, and one of the matters referenced is at line 40, Article 31 of a particular region Family Planning Regulations.  That is where it is taken ‑ ‑ ‑

KIRBY J:   Yes, but the point I am asking is, was the same material tendered and before the Tribunal in this case?

MR HAMILTON:   Yes, it was, your Honour.

KIRBY J:   Did they refer to it in their decision?

MR HAMILTON:   No, your Honour.  The Tribunal makes reference to the lack of family subsidy up to seven years, but everything else that is stated in that earlier decision – it sets out what the Tribunal noted in its country information, houses being burnt down, et cetera, et cetera – I can take you to them – and yet absolutely no reference is made to that.  The Tribunal makes a positive finding that it has never found any country information that suggested anything other than a lack of subsidy up to seven years of age.

GUMMOW J:   Was the mother ever a student?

MR HAMILTON:   No evidence was ever adduced to that, your Honour, nothing at all. 

KIRBY J:   She came to a conference.

MR HAMILTON:   She came on a short term visit for a conference.

GUMMOW J:   And the father had ceased to be a student for three years?

MR HAMILTON:   Your Honour, the father’s student visa had expired in March 1999.  The child was conceived on or about the end of January 2000 ‑ ‑ ‑

KIRBY J:   But is not the question not whether we would regard them as students in Australia, but whether, under the Chinese law or policy, they would be treated as students in China?

MR HAMILTON:   Your Honour, yes.

GUMMOW J:   What was the result of that question?  What was the answer to that question?  In particular, did they fall within the 1992 statement?  It seemed to be assumed that they did, page 45, paragraph [35]. 

MR HAMILTON:   Yes.  One of the problems for the applicant in this matter is that at the Federal Court of first instance, they were asked – and I will take your Honours to that – “Were the parents students at any stage?”  And it said one of them came out on a student visa.  “When did they cease being students?”  And Mr Gibson of counsel said, “Just prior to making their application for a protection visa, so I am instructed”.  Strictly speaking, that shows that the instructions were not as they should have been for the applicant.  I note in this regard, your Honour, instructions given by her next friend, the father, and at page 4 of the application book, lines 10 and 11, it is noted:

The applicant’s father gave evidence at the hearing and was assisted in that regard by an interpreter in the Mandarin language.

The father, who gave instructions to the lawyers in this matter, was not fluent in English at all.

GUMMOW J:   What does your case come down to?

MR HAMILTON:   Your Honour, it comes down to the one child policy.  There was so much country information put before the Tribunal and it ignored it for no reason at all.  It had a responsibility to address information put before it and it did not do it.  But there is this second aspect, all right, even if that was not correctly done, would the exemption granted children born of students overseas be sufficient such that they would not be affected?  Effectively, whether or not it would be granted – and if I could take you to page 6 of the application book at the fourth last paragraph, it says:

The Principal Migration Officer in the Australian Embassy, Beijing, advises that the PRC Government’s rationale for treating overseas students differently is “to avert a brain drain of badly needed skills in China” –

Now, your Honour, if someone has come out on a student visa and has never studied – there was never any evidence adduced to the fact that any studies were ever undertaken, let alone completed, and that ‑ ‑ ‑

GUMMOW J:   Unfortunately, it seems to be left at a rather conjectural level as to what was likely to happen in China.

MR HAMILTON:   It suggests that if you had completed studies – the strict policy says, if you are a student and you are studying and you have a child, as long as you register, it will not be a problem. 

GUMMOW J:   Well, these people had not registered, had they?

MR HAMILTON:   No, they had not registered, and, not only that, they had ceased to be – the courts above looked at it and said, “Look, if you’ve ceased to be a student and you become pregnant while in the country, that may only be a technical matter.  How would the Chinese people treat it any differently?”  But what never came through on the instructions was that there had never been a real student situation.  Certainly, no course was ever completed.

KIRBY J:   Well, Mr Hamilton, you put the case very persuasively, and, as in the last case, I am extremely sympathetic to the position you put.  But we have to comply with the law, and the law says we only intervene in these cases where there is an error that has taken the Tribunal outside its jurisdiction.  These seem to be complaints about the way the Tribunal has evaluated such imperfect materials as were put before it, and evaluated the facts and merits of the case, rather than a case where the Tribunal has misdirected itself or has not performed its function according to law, which is the basis of intervention.  Now, correct me if that is a wrong impression.

MR HAMILTON:   Your Honour, the two issues I would raise in this area for the special leave that I am seeking for the applicant are:  if the instructions cannot be properly given, if there are strong grounds to believe they are not able to be given adequately, should that be held against the applicant?  The second point I make, and maybe the strongest, the courts looked very much at the issue of whether the 1992 statement was correctly given at the hearing.  The courts have found that maybe it was not, because it was not given in writing, but the general feeling was, it was a technical breach.

GUMMOW J:   Was there any suggestion that the 1992 statement has been superseded?

MR HAMILTON:   No, your Honour.

GUMMOW J:   So it was treated as still being current.

MR HAMILTON:   It was treated as still being current, but if there was a technical breach, if it can later be shown that information on which the court – if it had been in writing, would that have put the counsel of that time on some sort of notice to get different instructions from his client?  Would he have sought an interpreter to simply say, “I need an answer to this”?  This is the policy on the ground, he may research whether or not it is still applicable, but the point that he was not instructed on went to the fact of whether there was a student or not for the purposes of the rationale ‑ ‑ ‑

KIRBY J:   My problem with that, as I have tried to indicate to you, is that a determination of whether the parents of the applicant were students or not students for Chinese purposes is the sort of evaluation that is left, under the law, to the Tribunal.  It is not decided by courts.  It is an evaluative matter, and, if they make a mistake, it is a mistake in jurisdiction, in exercising, as distinct from a mistake that takes them out of their jurisdiction.

MR HAMILTON:   Your Honour, I will take you back then to the finding of the Tribunal, which was, despite the 1992 statement, it still was prepared to hold and find, notwithstanding that statement, that there was no real chance of persecution outside that would be suffered by breaches of the one child policy.  The Tribunal did not take that particular statement any further than that, and, on that basis, if it said that the issue of whether or not the one child – where the country information showed that there was a real risk of persecution, then it is submitted that the applicant should succeed.  That was the only basis on which the Tribunal made its finding, considering country information ‑ ‑ ‑

KIRBY J:   Why is that not an error in the exercise of jurisdiction as distinct from an error that shows they misunderstood their jurisdiction, they displayed procedural unfairness, they did not act as the Parliament intends them to act, it takes them outside their jurisdiction.  I realise…..is elusive and I have said so in a number of cases, but it is the authority of the court…..

MR HAMILTON:   The only finding against the applicant was that there was no country information whatsoever to show that privation for the one child policy amounted to persecution.

KIRBY J:   Well, that was because of the hurdle your client had to get over, that the one child policy is apparently applied differentially in respect of children of Chinese nationals who return from being students overseas.

MR HAMILTON:   Your Honour, the decision would seem to suggest that they took that statement into account and still felt that they could still have privations suffered by children born overseas in breach of that policy.

KIRBY J:   That is an evaluative factual matter that is not the province of the courts, but of the Tribunal, is it not?

MR HAMILTON:   That is a decision to which the Tribunal came in its decision‑making process, but ‑ ‑ ‑

KIRBY J:   That is its exercise of jurisdiction as distinct from a mistake of procedural fairness or a misconception of its jurisdiction or something of that kind, which is, on the authorities, the only matters that the Court can deal with.  What was the mistake of the Federal Court?

MR HAMILTON:   The Federal Court looked again at the decision of the Tribunal and re‑evaluated the effect of what it considered the 1992 statement to be and went considerably further than the Tribunal did.  The Tribunal looked at that statement and said, “All right, you may be able to register”.  The only thing that the Tribunal saw the statement as providing is that you will not be a non‑citizen, you will be allowed to register, but everything else that may apply to children in breach may well apply to you.  And, on that basis, the applicant makes its case.

GUMMOW J:   Yes, thank you, Mr Hamilton.  We do not need to call on you, Mr Donaghue. 

The Court grants the necessary extension of time, but, having heard all that has been said by Mr Hamilton, we are not satisfied that there are sufficient prospects of success in demonstrating any error on the part of the Federal Court in its treatment of the review of the decision of the Tribunal in this matter.  Accordingly, special leave is refused with costs. 

The Court will adjourn to reconstitute. 

AT 11.46 AM THE MATTER WAS CONCLUDED