Wala v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1784
•9 DECEMBER 2005
FEDERAL COURT OF AUSTRALIA
WALA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS [2005] FCA 1784
MIGRATION – protection visa – whether Tribunal complied with obligations under s 424A of the Migration Act 1958 (Cth)
Migration Act 1958 (Cth), s 424A(1), s 424A(3)(a)
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied
VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 cited
VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178 cited
VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 cited
Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 citedWALA, WALB, WALC, WALD, WALE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL
WAD 215 OF 2004SIOPIS J
9 DECEMBER 2005
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 215 OF 2004
BETWEEN:
WALA
WALB
WALC
WALD
WALE
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
SIOPIS J
DATE OF ORDER:
9 DECEMBER 2005
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1 The Refugee Review Tribunal be joined as the second respondent.
2There be an order in the nature of certiorari to quash the decision of the second respondent made on 14 July 2004.
3There be an order in the nature of mandamus requiring the second respondent to review according to law the decision made by the delegate for the first respondent to refuse the protection visas sought by the applicants.
4The first respondent is to pay the applicants’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD 215 OF 2004
BETWEEN:
WALA
WALB
WALC
WALD
WALE
APPLICANTSAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
SIOPIS J
DATE:
9 DECEMBER 2005
PLACE:
PERTH
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 14 July 2004 which affirmed the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs [‘the delegate’] to refuse the applicants’ application for a protection visa.
For the reasons which are set out below, the application succeeds.
Background
The applicants are a family. The first and second named applicants are husband and wife. The third, fourth and fifth named applicants are their children. The first named applicant was born in Fangcheng, Guangxi Province in the People’s Republic of China (‘China’) on 22 September 1957 and is a Chinese citizen. The second named applicant was also born in China and is a Chinese citizen. The third named applicant was born in Nanning, Guangxi Province in China on 31 July 1986. The fourth and fifth named applicants were born in Australia on 14 June 2000 and 20 January 2003 respectively.
In July 1999 the first named applicant’s brother was resident in Australia. On 28 July 1999, the first, second and third named applicants came to Australia from China on a Business Long Stay (Subclass 457) Visa. The first named applicant worked for the Nanning Enterprise Industrial Trade Co an agency of the Guangxi State Farms and was sent to Australia to investigate the use of bone powder for fertilizer. After his arrival in Australia, the first named applicant also became involved in running a restaurant in Willetton, Western Australia which he and his brother had bought.
After the first and second named applicants arrived in Australia they became Christians. In November 1999 the second named applicant discovered that she was pregnant which was unexpected, as she had had an IUD fitted in China to prevent pregnancy. The second named applicant did not want to terminate the pregnancy because of her Christian faith. She did not believe in abortion. During the pregnancy it was discovered that the fourth named applicant had a lump on his lung. In September 2001 he had an operation to have the lump removed.
On 24 August 2001, the first, second, third and fourth named applicants filed an application for a Protection (Class XA) Visa. In a statement supporting the visa application the first named applicant stated that his family was applying for a protection visa because his family feared returning to China because his second son, the fourth named applicant, was born outside China’s ‘one child policy’. He stated that he feared the whole family would suffer as a result. He said that the way that the ‘one child policy’ is carried out varies from harsh to lenient depending on the region. Guangxi Province was a province where the policy was more rigorously enforced than in other provinces. He said that in his region any child born outside the ‘one child policy’ is refused household registration by the Department of Public Security. He said an unregistered child is illegal and not accepted by society. The child is treated as a ‘black child’. Unregistered children are not entitled to health care or education and will have difficulty gaining employment and suffer from low self esteem. The parents of an unregistered child must pay for all of that child’s medical treatment and schooling.
The first named applicant also stated that his wife, the second named applicant, would be forced to have a sterilisation operation, that he would have to pay a large fine and they would both lose their jobs and would not be allowed a licence to run their own business and be unemployable because they would no longer have a ‘one child certificate’. He also said that a main concern of his was that as a parent, his son, the fourth named applicant, would not be able to get adequate treatment for his medical condition.
The second named applicant also made a statement in which she made similar claims as to the potential impact on her of the ‘one child policy’ as was outlined in the first named applicant’s statement.
In 2001, when the application for the protection visa was made the third named applicant was a student aged 15 years. He did not formally make claims to be a refugee in his own right, but relied on his membership of his parents’ family unit.
The fourth named applicant was born in Australia in June 2000. The fourth named applicant made an application for a protection visa in his own right. He essentially relied on the claims made by his parents to show that he would face persecution as a ‘black child’ if he was required to go to China.
An application for a protection visa for the fifth named applicant, who was born on 20 January 2003, was lodged in June 2003. She made an application for a protection visa in her own right. The fifth named applicant claimed that she faced persecution because she was born in contravention of the Chinese government’s ‘one child policy’ and was a member of a particular social group known as ‘black children’. She claimed she would face persecution if she was compelled to accompany her parents and siblings to China as she would be denied access to preferential benefits, her parents would face fines for breaching the ‘one child policy’ and face loss of employment which would impact upon their own, and her wellbeing. She also claimed a risk of physical harm from the authorities.
The first and second named applicants also relied upon other grounds to claim that they had a well founded fear of persecution, but they are not relevant to this appeal.
The delegate’s decision
All the visa applications were refused by the delegate on 21 July 2003.
The delegate provided written reasons for his decision. Under the heading ‘Part B: Evidence before me’ the delegate said that evidence used in making his decision was to be found in certain listed documents. These documents included various reports containing country information including the following documents:
‘…
11REFQUEST [sic] – China – June 1999 China One Child Policy Update.
12CX71821 One child policy.
…’
The document referred to as ‘CX71821 One child policy’ was a document entitled ‘Country Information Report’ prepared by the Department of Foreign Affairs and Trade (‘DFAT’) on 9 January 2003. The delegate set out the Country Information Report CX 71821 in his reasons for decision. The report reads:
‘One child policy
COUNTRY INFORMATION REPORT NO.07/03
SOURCE: DFAT
DATE: 07/01/03
TITLE: ONE CHILD POLICY
CIR Preparation Date: 09/01/03
…
BACKGROUND
China has a one child policy which appears to have been relaxed in recent times and is also applied inconsistently in various regions. CISNET China Database CX 46100, CX 46855, and CX 46615 refer to a situation where birth control was practised but failed.
Applicant claims:
A couple were employed by a State agency in Guanxi [sic] Province and came to Australia on a 457 Business visa. The woman had been fitted with an IUD in China however after arrival in Australia they found she was pregnant and consequently lodged a PV in their names and the name of the second child. Both parents in this case have siblings still resident in China.
Questions: [19/12/02]
Q.1 Would a child resulting from a failed birth control as described above be considered as being incapable of registration?
Q.2 Would this child be regarded as a “black child” or would the reported relaxed approach accept the status of the child as other than ‘black’?
Q.3 What is known about the current application of the policy in Guanxi [sic] Province. It was mentioned in the UK Home Office assessment that the Province is experimenting with a relaxation of the policy. Can you specify any variations from the official central policy?
Q.4 Would the applicants be able to pay a fine to overcome the lack of access to normal facilities?
Q.5 If they returned to China, would the mother be compelled to undergo a tubal ligation, hysterectomy [sic] or other form of permanent birth control?
Answers: [07/01/03]
A.1 No. In the lead up to the 2000 National Census, Chinese authorities stated that all children (resulting from failed contraception or otherwise) are eligible for registration. Registration of the child is not dependent on the country of birth. However, registration of an unlawful “out of plan” child leaves the parents liable to pay a “social compensation fee”.
A.2 A “black child” is an unregistered one, not necessarily a second or “out of plan” child. On the facts given, it is unclear whether the child in this case would indeed be regarded as a “black child”. Provincial Family Planning Regulations often permit second children in certain circumstances (eg. if the parents are from an ethnic minority, or they live in rural areas and the first child is a girl). Where a second child is not permitted, parents must pay a “social compensation fee”. On registration and payment of the social compensation fee, the child would no longer be regarded as “black”.
A.3 We are unable to comment specifically on the application of family planning policies in the Guangxi autonomous region. Article 41 of the National Population and Family Planning Law stipulates that a couple giving birth to a child in violation of applicable regulations is liable to pay a social compensation fee. Article 44 of the Guangxi Autonomous Regional Planning Regulations mirrors this provision. We are not aware of any major variations between Guangxi policies and central government policy.
A.4 Yes. Following payment of the social compensation fee, all registered children are entitled to access health and educational facilities, although only children are given preference. In cases of severe financial hardship, parents may be exempt from paying the social compensation fee. Failure of contraception is not an exempting circumstance.
A.5 Family planning regulations generally provide that, after the birth of a second or third child, at least one parent is strongly encouraged or required to undergo some form of permanent birth control.
End’.
The delegate accepted that the first and second named applicants faced a real possibility of administrative or pecuniary penalty for having children outside the ‘one child policy’. However, the delegate said that this was a consequence of the first and second named applicants breaching laws of general application which aim at legitimate State objectives. Further, the delegate found that the first named applicant was a man of substantial means. His resources included two separate personal accounts with balances of USD159 996.19 and Renminbi 420 000 respectively. The delegate also noted that the first named applicant was currently in gainful employment as a restaurant owner/manager. The delegate went on to say that the disadvantage that the first and second named applicants and their children would suffer would not amount to persecution especially given the relative wealth of the first named applicant.
In relation to the claims made by the fourth and fifth named applicants, the delegate said:
‘… I accept that there will be some hardships, and that “only children” will (by comparison) have some advantages in terms of access to cheaper health care and education. This does not amount to persecution. The position of the Central Government’s Planning Committee, the only body in the PRC with the legal or competence to enforce the “one child policy” is, in effect, that parents can have as many children as they please, but (leaving aside special waivers for rural families who first bear daughters) the law says that above and beyond the first one, the parents have to bear the cost of everything. That is not persecution. Meanwhile, given the relative wealth of their family, the applicants may grow up enjoying many advantages unavailable to most children in the PRC, rather than having to suffer relative deprivation.’
Proceedings before the Tribunal
On 1 August 2003 the applicants lodged an application with the Tribunal for a review of the delegate’s decision. The hearing first took place on 4 February 2004 and was adjourned to 2 March 2004.
At the hearing on 4 February 2004, the first named applicant gave evidence. He said that if he and his family were returned to China he would be unable to find work. He said that he had been dismissed by his employer because he breached the ‘one child policy’. He also said that he had received a letter of termination from his employer in December 2002. The applicants’ representative said the letter was being translated into English and that she anticipated being able to provide the Tribunal with the translation of the original letter within one to two weeks.
The first named applicant also referred to his concern that on return to China his second and third children could not be registered because they are unauthorised. These children would, therefore, face difficulty getting education and employment. The first named applicant acknowledged that he was aware that it was possible for parents who have more than one child to obtain registration for those additional children by paying a ‘social compensation fee’. The first named applicant said that penalties were high and that because people in China fear being penalised, they just ‘throw children away’ to avoid a penalty.
At the hearing on 4 February 2004, the applicants’ representative also told the Tribunal that she had approached Dr J Aird, an expert on Chinese population policies. He was resident in the United States of America.
The application was adjourned part heard. Prior to the next hearing, as foreshadowed by the applicants’ representative, the Tribunal received a report dated 7 February 2004 from Dr J Aird. The material sent to the Tribunal by the applicants’ representative also included the letter of instruction from the applicants’ representative to Dr Aird. The letter requesting that Dr Aird provide a report, contained abbreviated extracts from the Country Information Report CX 71821.
The Tribunal also received further submissions from the applicants which included copies of letters said to be received by the first and second named applicants from their employer, the Nanning Enterprise Industrial Trade Co (dated 25 January 2003); and their Neighbourhood Committee (dated 17 February 2003) along with certified English translations of those letters. Each of the letters refers to a breach by the applicants of the ‘one child policy’ by ‘having two more children than the Family Planning Policy stipulated’. Those letters also referred to Family Planning By‑laws of the Guangxi Province from which the applicants came and the financial penalties said to be applicable for breaching the Family Planning Law by having additional children. The penalty was described as being between RMB2 000 Yuan and RMB50 000 Yuan in one letter, and between RMB2 000 Yuan and RMB100 000 Yuan in the second letter for an additional child. Both letters also referred to potential penalties of twice that level for two or more children beyond the number regulated by the Family Planning Law.
At the adjourned hearing which took place on 2 March 2004, the first named applicant continued his evidence. The Tribunal expressed its concerns to the first named applicant as to the authenticity of the letters which the applicants had produced from the first and second named applicant’s employer and their Neighbourhood Committee. The Tribunal observed that the youngest child was not born until 20 January 2003, but noted that the letters responded to a letter from the applicants dated 20 December 2002, which was prior to the date of the birth of the third child. The Tribunal noted that the letters from China, however, stated that the first and second named applicants had ‘seriously violated the law on population and family planning of the People’s Republic of China by having two more children than the Family Planning Policy stipulated’. The Tribunal also expressed doubts as to the authenticity of the letters on the grounds that each of the letters was almost in identical language and content even though one was said to be written by the employer on 25 January 2003 whilst the other was said to be written by the Tangshanlu Jianxing Neighbourhood Committee on 17 February 2003.
The second named applicant also gave evidence. She confirmed the evidence of the first named applicant that their employment had been terminated and they had been sent a letter from their employer saying that it was because they had breached the ‘one child policy’. She said that if she returned to China she feared she would face forced sterilisation, and such things happened all the time in China. She also said she and her husband would be fined. If they could not afford to pay they would be put in gaol. She said neither she nor her husband would be able to work because of their extra children. She said that her children would suffer by not being able to get medical treatment or education, because they were ‘black’ and not registered. The Tribunal put to her country information which suggested that such children could gain registration. She said that she had also been told this by a departmental officer, but was unsure whether this was the case.
The Tribunal also put to the second named applicant the concerns it had as to the authenticity of the letters.
The Tribunal also heard evidence from the first named applicant’s younger brother who lived in Perth, as to the financial circumstances of the first named applicant and his wife, the second named applicant. The first named applicant’s brother gave evidence that the first named applicant had been a partner with him in the running of a restaurant business, that the restaurant business had been sold and the proceeds of AUD25 000 had been paid to the first named applicant. The first named applicant owned a house in Western Australia.
During the closing submissions of the applicants’ representative before the Tribunal, the Tribunal presiding member said:
‘In the meantime I think that the issue of the financial position of your clients probably is of relevance, and I know that you said that you didn’t have any instruction at this stage of the overall financial position, there have been snippets of information that have been given it might be worthwhile if you could turn your mind to the particular issue and provide some evidence as to what their financial position is, including as I raised with [the first named applicant’s brother]…as to the value of the house, I didn’t ask your client that question, but I think…his brother said that it might be worth around $160,000 when it was purchased, and there was about an $80,000 mortgage, so what equity your clients have might be an issue that is of relevance.’
In response to the Tribunal’s request, after the hearing the applicants’ representative wrote to the Tribunal enclosing evidence as to the financial position of the applicants in Australia. The evidence showed that the first and second named applicants owned an unencumbered house in Willetton, Western Australia which on 8 March 2004 was valued at between AUD200 000 to AUD 220 000 and they had approximately AUD3 000 in their bank account. The letter from the applicants’ representative said that the first named applicant and his brother had incurred a debt of USD197 000 to Nanning Enterprise Industrial Trade Co of which USD70 000 had been repaid. The letter went on to say:
‘… We understand from our clients that the remaining US127,000 is still owing, although no further demands have been received from Nanning State Enterprises. …’
The applicants’ representative’s letter also stated that the first and second named applicants owed approximately AUD71 500 to various friends and family ‑ being amounts that had been borrowed between August 2000 and August 2002 to assist the applicants to repay their mortgage loan amongst other things.
The Tribunal’s decision
On 14 July 2004 the Tribunal affirmed the decision of the delegate not to grant the protection visas to the applicants. The Tribunal rejected those of the applicants’ claims which were made on grounds which were not related to the ‘one child policy’. No challenge is made in these proceedings to the Tribunal’s decisions insofar as it rejected those claims. The Tribunal also rejected the claims which related to the ‘one child policy’. It is the rejection of those claims which is under challenge.
In its decision the Tribunal acknowledged the common basis upon which the applicants relied, namely that the first and second named applicants had two children in excess of the ‘one child policy’ applicable in China, and that the whole family will be subjected to harm and persecution should they return there.
The Tribunal first considered the position of the first and second named applicants. The Tribunal also did not accept claims by the first and second named applicants that they had already been dismissed from their employment because of their breach of the ‘one child policy’. The Tribunal did not accept that the documents relied upon were credible. The Tribunal did, however, accept that the ‘one child policy’ has been more rigorously enforced in some locations (including Guangxi Province) more than others. The Tribunal accepted that persons who do not comply with population and family planning are subject to financial penalties for non compliance in the form of ‘social compensation fees’ for children born outside the Family Planning Law.
The Tribunal went on to say:
‘[The Tribunal] accepts such penalties can be substantial in terms of the amount, although it notes evidence that parents may be exempt from paying the social compensation in cases of severe financial hardship (CX 71821: DFAT Advice 9 January 2003). The Tribunal nevertheless accepts the applicants may be subject to that law, and hence face administrative punishment in the form of the social compensation because they had two children outside that law.’
The Tribunal found that the imposition of such administrative penalties would arise as a consequence of the general application of the law in China. This did not constitute persecution for a Convention reason. The Tribunal was also satisfied that the level of penalty that would be imposed upon them on return to China would not be applied on a differential or discriminatory basis because of any one or more Convention grounds.
The Tribunal also rejected the claim by the first and second named applicants that on return to China the second named applicant faces the prospect of forcible sterilisation. The Tribunal accepted that there was a divergence in the evidence on this issue, with Dr Aird, on the one hand, saying that such a consequence would almost certainly be part of the their punishment, whilst the United States of America Department of State ‘Human Rights Report’, on the other hand, saying that the central government policy formally prohibits the use of physical coercion to submit to abortion or sterilisation, and that officials who flout the policy are punished. The Tribunal preferred the views expressed in the US Department of State report, and accepted that whilst the authorities continued to regulate birth control by a variety of means, forced sterilisation is not part of the current program of regulation.
The Tribunal also rejected the claim that the three children would face a real prospect of being physically harmed as a result of being part of a family with children born in excess of the ‘one child policy’.
The Tribunal also accepted that the fourth and fifth named applicants having been born overseas were presently unregistered in China and that non registration carries adverse practical consequences in terms of access to benefits and services in China, including health and education. It recognised and accepted that these two children formed part of a group which is officially referred to as ‘black children’ and that such a group is capable of recognition as a ‘particular social group’ under the Convention. The Tribunal went on to say:
‘The Tribunal also finds however, the status of the [fourth and fifth] named applicant’s children (sic) as “black children” can be removed once their parents pay the social compensation fee, which will allow their registration. Once done, the Tribunal accepts country information above, (CX 71821: DFAT advice, 9 January 2003) that all registered children are entitled to access health and education facilities, although “only children” are given preference. The Tribunal is also satisfied based on financial material provided in the post hearing submissions, that the first and second named applicants have financial resources available to them in Australia on which they could draw in order to meet any social compensation fee associated with their extra children.’
As to the third named applicant, namely the eldest child of the first and second named applicants, who was born in China, the Tribunal said:
‘… Whilst it accepts, based on country information above (CX 71821) that there may be some disadvantage to him, because he is no longer an “only child” and only children receive preference, it does not accept this amounts to “serious harm” under s 91R sufficient to constitute persecution in the case of the third named applicant.’
The grounds of the application for review
At the hearing, counsel for the applicants was granted leave to amend the application for review. The applicants relied only on the grounds particularised at pars 3(c), (d) and (e) of the amended application as follows:
‘3.…
The decision made was made without jurisdiction and was not authorised by the Migration Act and is accordingly void and of no effect and was not a privative clause decision pursuant to s 474 of the Migration Act.
PARTICULARS
…
c.The Tribunal failed to address the question, namely the persecution that the Applicants would be likely to suffer if they returned to their previous home area of China by reference to China’s one child policy as practised in that area, but rather considered the persecution that might be suffered in China generally.
d.The Tribunal failed to address the right question, namely whether there was a real chance that the 1st and 2nd named Applicants would not be able to pay (or would not pay) the social compensation fee that would be imposed in relation to the 4th and 5th named Applicants and that without payment of such fee, there was a real chance that the 4th and 5th named Applicants would remain unregistered and subject to penalties relating to heath and education as well as other penalties which together amounted to persecution and that the 4th and 5th named Applicants were therefore refugees. The Tribunal, to the extent that it considered and determined this issue at all, determined the same on balance of probabilities.
e.The Tribunal relied on the material contained in the DFAT Report CX 71821 as part of its reasons for affirming the decision under review without complying with its obligations under s424A(1) of the Migration Act.’
The applicants’ submissions
In support of ground 3(c) of the application, the applicants submitted that the Tribunal erred because, having accepted that the ‘one child policy’ was more vigorously applied in Guangxi Province than in other parts of China, it thereafter relied on country information, which supported a more lenient application of the policy, rather than a strict application of the policy. Counsel referred specifically to the statement in the CX 71821 report that parents may be exempt from payment of fines in cases of severe hardship.
In support of ground 3(d) of the application, the applicants submitted that once the Tribunal accepted that the fourth and fifth named applicants were part of a social group, namely, unregistered or ‘black children’, who may suffer persecution should they return to China, the Tribunal ought to have asked whether there was a real chance that the children would remain unregistered. The applicants submitted further that for the Tribunal to have answered that question it would have needed to have addressed several factors including the size of the fines to be paid, the risk that the first and second named applicants would become unemployed and not be permitted to obtain other employment or a licence. The finding by the Tribunal that the first and second named applicants had funds which they could use to meet fines, simply did not address the question it ought to have asked. The Tribunal ought to have assessed whether there was a real chance that the first and second named applicants might be unable to pay the fines. If the first and second named applicants were unable to get employment then their funds would be needed to survive and could not be used to pay the fines. The Tribunal did not consider whether the first and second named applicants may have had to submit to any other requirements of the State in order to register their children.
The applicants submitted that the failure of the Tribunal to ask whether there was a real chance that the children might remain unregistered and, therefore, be subject to persecution, was an error of law going to jurisdiction.
In support of ground 3(e) of the application, the applicants submitted that the Tribunal relied on material contained in the Country Information Report CX 71821 as part of the reasons for affirming the decision of the delegate. The applicants submitted that the information in the report was specifically about the applicants and that it was necessary therefore for the Tribunal to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) (‘the Act’) by giving the applicants written notice of particulars of the information, ensuring that as far as is reasonably practicable the applicants understood why it is relevant to the review, and inviting the applicants to comment on the information. The Tribunal had failed to do so and thereby committed jurisdictional error. A failure by the Tribunal to comply with its obligations under the mandatory terms in s 424A(1) of the Act amounted to jurisdictional error. The applicants relied upon the case of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 (‘SAAP’).
The applicants also submitted that because the report was about the applicants specifically it is possible that the report was given more weight by the Tribunal than other country information, including the US State Department report, the UK report and the opinion of Dr Aird. Had the applicants been aware that such weight was being put on the CX 71821 report, they could have made further submissions including highlighting the information in the US State Department report. The US State Department report contained information supporting the applicants’ claim that the fines in respect of breaches of the ‘one child policy’ are generally extremely high and there are additional punishments including withholding social services, high school tuition, job loss or demotion and other administrative punishments including destruction of property. The penalties sometimes left women little practical choice but to undergo abortion or sterilisation.
The respondent’s submissions
As to the matters raised in ground 3(c) of the application, counsel for the first respondent submitted that the Tribunal accepted that the applicants may be subjected to a substantial penalty for breaching the law. It specifically referred to the ‘one child policy’ being more vigorously enforced in Guangxi Province and accepted the evidence of stricter enforcement in Guangxi Province.
As to ground 3(d) of the application, the first respondent submitted that, when considering the extent of the social compensation fee, financial resources and the abilities of the applicants to pay, the Tribunal addressed whether there was a real chance of persecution by reason of the first and second named applicants being unable to pay social compensation. There were no claims made to the Tribunal that the first and second named applicants would refuse to pay any penalties or social compensation. Whilst the Tribunal did not expose its chain of reasoning in the sense of making express findings as to the amount of the fines that may be payable by the first and second named applicants, and the amount that may be available to the first and second named applicants, it was not necessary for the Tribunal to do so. The fact that the Tribunal did not do so did not lead to the inference that it had not asked whether there was a real chance that the fourth and fifth named applicants would remain unregistered children or ‘black children’. Further, the first respondent submitted that the findings were not illogical.
As to the argument in respect of ground 3(e) of the application the first respondent accepted that information in the CX 71821 report was part of the reason for the Tribunal’s decision. The first respondent, also, accepted that the Tribunal did not provide the applicants with written particulars of the information in the CX 71821 report under s 424A(1) of the Act prior to making its decision. However, the first respondent submitted that the Tribunal was not obliged to do so because whilst the questions in the CX 71821 report were expressed to be about the applicants specifically, it was the answers which the Tribunal had used, and the answers were not specifically about the applicants. Therefore, it was submitted that the information in the CX 71821 report was information to which s 424A(3)(a) of the Act applied because the information was just about a class of persons of which the applicants were members.
Reasoning
I deal with the question of whether the Tribunal failed to act in accordance with its statutory obligation under s 424A(1) of the Act.
Section 424A of the Act relevantly provides:
‘(1) Subject to subsection (3), the Tribunal must:
(a)give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c)invite the applicant to comment on it.
(2)The information and invitation must be given to the applicant:
(a)except where paragraph (b) applies – by one of the methods specified in section 441A; or
(b) …
(3)This section does not apply to information;
(a)that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b)…
(c)…’
The object of s 424A of the Act was considered by the High Court in the SAAP case. At 175, at [50] McHugh J, referring to s 424A of the Act, said:
‘The obligation on the tribunal to give the invitation and to invite comment on the information is expressed in broad and general terms. The obligation does not apply to information that the applicant gives, regardless of when that information is given: see s 424A(3)(b). It applies to information received by the tribunal from sources other than the applicant. It also does not apply to all information that the tribunal receives. It only applies to information that the tribunal considers “would form part of its reason for refusing the application for review”. Nevertheless, the object of the section must be to provide procedural fairness to the applicant by alerting the applicant to material that the tribunal considers to be adverse to the applicant’s case and affording the applicant the opportunity to comment on it.[footnotes omitted]’ (See also Gummow J at 191, at [118].)
In SAAP McHugh J at 176‑177, at [56] said that s 424A of the Act was only enlivened at the point when the Tribunal has information and determined that it would be the reason or a part of the reason for the decision, and that this could occur after the applicant has appeared at a hearing.
Before, during and after the hearing, the Tribunal had before it information in the CX 71821 report. The question, therefore, is whether there was an obligation on the Tribunal under s 424A of the Act to invite the applicants to comment on this information as part of a statutory process to accord the applicants’ procedural fairness enacted in s 424A of the Act. This raises two issues.
The first issue is whether s 424A of the Act applied to the information in the CX 71821 report. This in turn depends on whether the information was information to which s 424A(3)(a) of the Act applied. The test to determine whether the information is within s 424A(3)(a) of the Act was considered by the Full Court in the case of VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82 (‘VHAP’) and recently followed in VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178. In these cases the Full Court held that the test is not a dual limb test only exempting information which is not about the applicant specifically; and is also not just about the class of persons of which the applicant is a member.
In VHAP the Full Court at [14] said that the reference in s 424A(3)(a) of the Act to information that was ‘just about the class of persons of which the applicant or other person was a member’ was:
‘…not another criterion to be met. It is designed to underline the specificity required by precluding any argument that reference to a class would be taken as reference to all individuals falling within it.’
In my view, the information in the CX 71821 report was not information which fell within the exception in s 424A(3)(a) of the Act. The information in the CX 71821 report was information which was generated by DFAT to provide specific advice to the first respondent in relation to the position of the applicants themselves. The questions that were asked of DFAT related to the very circumstances of the applicants. The response of DFAT was to address the very position of the applicants – even going to the extent of providing ‘yes’ and ‘no’ answers.
An example is to be seen in respect of a question and answer which assumed significance in the decision‑making process of the Tribunal:
‘Questions: [19/12/02]
…
Q.4Would the applicants be able to pay a fine to overcome the lack of access to normal facilities?
…
Answers:[07/01/03]
…
A.4Yes. Following payment of the social compensation fee, all registered children are entitled to access health and educational facilities, although only children are given preference. In cases of severe financial hardship, parents may be exempt from paying the social compensation fee. Failure of contraception is not an exempting circumstance.
…’
In formulating its response to the questions asked of it, DFAT referred to and used its knowledge of the state of affairs in China in relation to a class of persons of which the applicants were members, but it is the application of that knowledge to the specific position of the applicants that distinguishes the information in the CX 71821 report from a country information report that is just about a class of persons. The information in the CX 71821 report was, therefore, information which was specifically about the applicants and not just about the class of persons of which they were members, although information about the class of persons of which the applicants were members was referred to and applied in generating the specific answers about the applicants.
In my view this construction of s 424A(3)(a) of the Act is consistent with the object of s 424A of the Act as identified by McHugh J in SAAP because it recognises that that specific information which has been generated by reference to the circumstances of an individual applicant has the potential to carry more weight with the Tribunal than the information which is at the more general level; with the consequence that fairness would require that an applicant be advised of, and have an opportunity to comment on, that information.
The second issue is whether the information in the CX 71821 report was sufficiently important to the decision‑making process then being undertaken by the Tribunal such that it ‘would be the reason or a part of the reason’ for the decision for the purpose of s 424A(1) of the Act.
The importance of the information to the Tribunal’s decision‑making process is assessed, with the benefit of hindsight and by reference to the reasons which are subsequently published by the Tribunal (VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123 at [29]). On some occasions reaching conclusions as to whether information was sufficiently important to the decision‑making process as to enliven s 424A(1) of the Act may not be straight forward, and may require what Allsop J has referred to as an unbundling of the reasons (Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at 428, at [99].
In this case, however, the importance of the information in the CX 71821 report to the decision‑making process of the Tribunal is clear. A perusal of the reasons reveals that the information in the CX 71821 report dealt with matters which turned out to be highly significant to the ultimate decision made by the Tribunal. Firstly, the information in the CX 71821 report dealt with the question of whether it would be open to the first and second named applicants on their return to Guangxi Province to pay a social compensation fee as a means of obtaining registration for the fourth and fifth named applicants, thereby removing from those applicants the disadvantageous status of ‘black children’; and secondly, whether the third named applicant, having lost his status as an only child, would be subject to any discrimination.
In my view, therefore, the information in the CX 71821 report was of sufficient importance to the decision‑making process as to comprise information that ‘would be the reason for the decision or a part of the reason for the decision’ within the meaning of s 424A(1) of the Act. This was accepted by the first respondent.
It follows that at a time before the Tribunal made its decision, an obligation under s 424A(1) of the Act had crystallised requiring the Tribunal to advise the applicants in writing of the importance of the information in the CX 71821 report to the decision‑making process in which it was then engaged, and to invite the applicants to comment on that information. It is accepted by the first respondent that the Tribunal did not engage in that process.
It also follows that I do not accept the argument of the first respondent that because the Tribunal referred in its reasons to only part of the information in the CX 71821 report – namely, that part which referred only to the class of persons of which the applicants were members – that the information in the CX 71821 report is to be characterised for the purposes of s 424A(3)(a) of the Act as information which is just about a class of persons of which the applicants are members. The obligation under s 424A(1) of the Act crystallised at a time prior to the recording of the Tribunal’s reasons for decision. The legislative object of s 424A of the Act would require that the character of the information be assessed at a time prior to the making of the Tribunal decision. It was the specific application of country information to the position of the applicants and its attendant propensity to influence the decision of the Tribunal which characterised the information in the CX 71821 report. In my view, the fact that the Tribunal included in its reasons only part of the answers provided by DFAT in the CX 71821 report which related to the class of persons of which the applicants were members, did not, for the purpose of s 424A(3)(a) of the Act, alter the characterisation of the information in the CX 71821 report which had to be assessed at an earlier point in time and by reference to its potential adversely to affect the interests of the applicants in the Tribunal’s decision‑making process.
It follows that in failing to give to the applicants written particulars of the information in the CX 71821 report and in otherwise, failing to comply with the provisions of s 424A(1) of the Act in relation to that information, before deciding to affirm the delegate’s decision, the Tribunal failed to comply with its mandatory statutory obligations and committed jurisdictional error.
The first respondent did not submit that in the event that it was found that the Tribunal had failed to comply with its obligations under s 424A(1) of the Act there were any discretionary considerations which would preclude me from granting relief.
In light of my findings in relation to the applicants’ ground of review in relation to s 424A(1) of the Act, it is unnecessary for me to consider the other grounds for review relied upon by the applicants.
Accordingly, the application succeeds and the first respondent is to pay the applicants’ costs.
I certify that the preceding sixty‑nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate:
Dated: 9 December 2005
Counsel for the Applicants: Mr H N H Christie Solicitor for the Applicants: Henry Christie Counsel for the First Respondent: Mr J D Allanson Solicitor for the First Respondent: Australian Government Solicitor Date of Hearing: 28 April 2005 Date of Final Written Submissions: 20 October 2005 Date of Judgment: 9 December 2005
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