WZAOT v Minister for Immigration - [2012] FMCA 841

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAOT v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 841

MIGRATION – Child applies for protection visa on account of status of being a “black child” – delegate’s decision not to grant visa affirmed by RRT – judicial review whether failure to appoint self representation for child constituted jurisdictional error.

Migration Act 1958 (Cth), ss.353, 357, 360 420, 422B, 425, 427 & 476
Commonwealth Constitution, s.75(v)

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Craig v The State of South Australia [1995] HCA 58
Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83
Minister for Immigration and Citizenship v Li [2012] FCAFC 74
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
SZGUR v Minister for Immigration and Citizenship [2011] HCA 1
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 228 CLR 470
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Re: Woolley and Another [2004] HCA 49
Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
Re: Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Lam [2003] HCA 6
Minister for Immigration & Multicultural Affairs v SZFDE and Others [2006] FCAFC 142
Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

Applicant:

WZAOT

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

PEG 174 of 2011

Judgment of:

Lindsay FM

Hearing date:

6 June 2012

Date of Last Submission:

6 June 2012

Delivered at:

Adelaide by telephone

Delivered on:

14 September 2012

REPRESENTATION

Counsel for the Applicant:

Dr John Cameron

Counsel for the First Respondent:

Mr Smith

Solicitors for the First Respondent:

Sparke Helmore Lawyers

ORDERS

That the application filed on 29 June 2011 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 174 of 2011

WZAOT

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s. 476(1) of the Migration Act 1958 (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 20 June 2011. That decision affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa.
The applicant was born in Australia on 8 August 2008.
Her parents are Chinese nationals. The Tribunal found that the applicant is a Chinese national. No point was taken before me in relation to that finding.
Her parents applied for a protection visa in 2006. It was refused by the delegate. Their review to the Tribunal and then to this Court in relation to that refusal was refused; so too was an appeal to Finn J in the Federal Court. Special leave to appeal to the High Court was refused on the papers.
Other strategies adopted by the parents and which are unnecessary for me to detail in these Reasons to secure residency in Australia were unsuccessful. They were taken into immigration detention and then released on a form of community detention.
The application for a protection visa filed on behalf of this child was made on 25 March 2011. The mother says that the application was signed by the father. The delegate’s decision refusing the application was made on 15 April 2011. That led to the Tribunal decision which is the subject of the application to this Court.
On 25 July 2011 Lucev FM appointed the applicant’s mother as her litigation guardian. The father’s application to act in that capacity was refused.
Subsequently, the mother asked to be removed as the litigation guardian. Raphael FM refused that application on 7 October 2011. However, Lucev FM subsequently permitted the substitution of Ms Brenda Robbins, barrister and migration agent, as litigation guardian.
By this stage, the mother was asserting that the father had disappeared prior to the Tribunal hearing (he was not personally present to promote his application for litigation guardian before Lucev FM on 25 July 2011 – see [7] hereof).
The applicant is the second child of her parents. The Peoples Republic of China (hereinafter “China”) has a so-called “one-child policy”. The contention of the applicant is that if she is returned to China she will suffer persecution for Convention related reasons.
Pursuant to s. 476(1) of the Act this Court has the same jurisdiction as the High Court under paragraph 75(v) of the Commonwealth Constitution but only in relation to migration matters. Migration matters are strictly defined in the Act. They are, with minor exceptions not material to this case, privative clause decisions or purported privative clause decisions. Both of those terms are also defined in the Act. The decision of the Tribunal under review here is a purported privative clause decision. The Act says that such decisions are final and conclusive and are not to be the subject of challenge or review but as the High Court made plain in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 that prohibition will not effect the jurisdiction of the Court to review a decision that has been vitiated by jurisdictional error.
Jurisdictional error is a concept best explained by the High Court in the decision of Craig v The State of South Australia [1995] HCA 58.
The Amended Grounds of Review promote two grounds upon which the Court is asked to make a finding of jurisdictional error:
1. It failed to conduct the hearing according to substantial justice and in a manner which ensured that the best interests of the applicant child were a paramount consideration.
Particulars
1.1The applicant child had a reasonable expectation that her application for review would be conducted in accordance with Australia’s international obligations, in particular with the Convention on the Rights of the Child.
1.2The best interests of the child required that her application for review of the decision refusing her a protection visa be presented by an Independent person.
1.3Neither of the applicant’s parents met that requirement.
1.4The migration agent who represented the applicant at the Tribunal hearing was instructed by the applicant’s mother, and, in attempting to advance a case on behalf of the mother, diverted the Tribunal from the real issue, namely whether there was a real chance that the applicant, rather than her mother, would suffer persecution if returned to the Peoples Republic of China [“PRC”].
2. It failed to take into consideration the relevant real chance that the applicant would suffer persecution if her parents, even if they were able to do so, chose not to pay the social compensation charge, and in so doing exposed the applicant child to persecution.
Particulars
2.1 The applicant has an older brother.
2.2On the evidence it was unlikely that the parents if returned to the PRC would find themselves in circumstances where they could readily pay the social compensation charge, which, if paid, would shield the applicant from discrimination amounting to persecution, and there was a real chance that they would prefer to invest scarce financial resources in a male child, who would support them in their old age.
2.3If the parents returned together the mother would have to defer to her husband on the issue of payment of the social compensation charge.
2.4The father had deserted the family in Australia, and on the evidence there was a real chance that her father might refuse to pay the social compensation charge, which would expose the applicant child to persecution if she were returned to the PRC.
2.5If the applicant’s mother were to be returned without her husband there was a real chance that she would come under social pressure to invest her meagre resources in the education of her son, rather than in a female child such as the applicant, and would choose not to pay the social compensation charge, thereby exposing her to persecution in the form of the denial of social services such as the right to education and access to health services.
A third ground was articulated in the applicant’s written submissions. It was encapsulated at [50] of those submissions thus:
The parent’s financial resources, and how they may or may not be able to lessen the impact of the discrimination through provision of private education, health care and other services, is an irrelevant consideration when considering the existence, and effects of the probable persecution faced by the appellant.
Section 420 of the Act says:
(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
Section 425 of the Act says
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or
(b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or
(c) subsection 424C(1) or (2) applies to the applicant.
(3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.
The corresponding provisions of the Act relating to the conduct of reviews of the Migration Review Tribunal are ss.353 and 360 respectively.
Section 422B(3) of the Act should be noted, too, at this point (corresponding to s. 357A in matters that come before the Migration Review Tribunal):
(3) In applying this Division, the Tribunal must act in a way that is fair and just.
The Full Court of the Federal Court in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83 described those provisions as “exhortative” and as not creating rights of or grounds of review. The Full Court of the Federal Court in Minister for Immigration and Citizenship v Li [2012] FCAFC 74 disagreed. They did so after scrutinising the earlier High Court authority which had been relied upon by the Full Court in SZMOK, namely Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and determined that what was said there about s.420 needed to be understood in the light of its close interaction with s.476 of the Act as it then stood; more importantly perhaps, they did so after a consideration of the later High Court decision of SZGUR v Minister for Immigration and Citizenship [2011] HCA 1.
The plurality said at [10]:
As to that statutory framework, in SZGUR at [19] French CJ and Kiefel J, with whom Heydon and Crennan JJ agreed, described what is found in the RRT analogue of s 353, s 420, as a “requirement imposed on the Tribunal, in the discharge of its core function of reviewing Tribunal decisions” (emphasis added). The characterisation of s 420 and hence s 353 as a source of “requirements” is not ours but rather that of the plurality of the High Court. That becomes important when considering what was earlier said of s 420 by the Full Court in Minister for Immigration and Citizenship v SZMOK.
And at [20]:
A later Full Court of this Court should not lightly depart from an earlier judgment of the Full Court. However and with respect, the description of s 353 in SZMOK as “exhortative” gives insufficient attention to the context, referred to above, in which that description was given in the earlier authorities mentioned. It also fails to recognise that the section does contain what are, on any view, substantive requirements …
And at [21]:
The same conclusion necessarily follows in relation to the prescription of fairness found in s 357A(3) of the Act.
And at [22]:
Insofar as the Minister has, in supplementary written submissions permitted by the Court after the conclusion of oral argument and by reference principally to SZMOK, contended that s 353 and s 357A(3) are each but an exhortation we reject that submission. Though the Minister referred to SZGUR in those supplementary submissions, he failed in so doing to appreciate the language employed by the plurality in that case to describe the effect of the analogue of s 353, s 420.

So the sections (420 and 422B(3)) are not exhortative; they contain substantive requirements. Identifying the requirements the sections entail can be a difficult exercise. In Li the Full Court found that it required that the Tribunal (the MRT in that case) not unreasonably refused an adjournment (see [29] of the plurality judgment). A failure to observe that requirement will constitute a jurisdictional error.
But another High Court decision (not discussed in Li) may put that proposition in some doubt. In NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] 228 CLR 470 the procedural unfairness arose from an egregious delay by the RRT with respect to the conduct of the review and in the publication of its decision. The majority found the RRT’s decision was vitiated by jurisdictional error. Gummow J was in the minority in not so finding but had this to say on the statutory framework and s.420 in particular at [35] and [36]:
However, s 420 does not delimit boundaries of jurisdiction. In Minister for Immigration and Multicultural Affairs v Eshetu, Gleeson CJ and McHugh J said of s 420 and similar provisions:
"They are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals."
Other judgments in Eshetu construed s 420 in the same way.
In the face of the decision in Eshetu, it would be wrong (and the appellants did not advocate this) to fix upon the word "fair" in s 420(1) as marking a legislatively imposed criterion for the exercise of jurisdiction by the RRT, and then to reason that a decision made after delay is not "fair" and thus is infected with jurisdictional error.
Callinan and Heydon JJ refer with approval to Eshetu on this point.
“Requirements” entailed by s.420 manifestly do not delimit boundaries of jurisdiction.
In these circumstances, it is difficult to consider myself as obliged to follow Li on this point.
Ultimately, the differing factual situation here from that which was extant in Li probably renders the issue as of little significance. Li involved the refusal to adjourn a hearing. It is easier to regard the exercise of such a power as involving a requirement of fairness in the conduct of the core business of the Tribunal. Here the complaint is that in the circumstances of the case the Tribunal should have appointed a separate representative for the child. Neither of the parents were suitable, it is said; the migration agent who appeared for them distracted the Tribunal into a consideration of the parents’ fear of persecution arising from the one-child policy instead of a consideration of the child’s risk of persecution.
There is a clear power to adjourn the proceedings before the Tribunal in the Act (it is s.427(1)(b)). The “requirement” entailed as a matter of fairness by s.420 to appoint a separate representative for the child is not as easily transformed into the exercise of a power possessed by the Tribunal. There is no power to do so. Evaluating the fairness of the exercise or non-exercise of a non-existent power is a difficult task.
Of course, the invitation the Tribunal extends to an application under s.425 must not be empty or hollow. It must be objectively meaningful (see Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126).
In the context of this case, it is said, that required that the child be represented by a person capable of understanding and promoting the issues relevant to the claim for protection.
So much can be accepted in principle. The difficulty I have is in identifying any factor which made the mother (represented by a migration agent) unsuitable to fulfil that role.
The child could not speak for herself nor was she capable of forming the requisite “fear” of persecution to ground a Convention-based claim. If she were to return to China it would be in the company of her mother and under her mother’s protection. Her mother was uniquely placed to give evidence and make submissions about the difficulties that may be experienced by a second (and female) child in the predicament of this applicant. Furthermore, there was a confluence and not a conflict of interest between mother and daughter.
No point was or could be made in relation to the capacity of the parents or either of them to bring the application on behalf of the child. In Re: Woolley and Another [2004] HCA 49 McHugh J said this at [103]:
Parents in their capacity as guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision. Thus, where a child lacks capacity, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child's behalf. Parental authority diminishes as the child's legal competence emerges. The parent's authority is at an end when the child has sufficient intellectual and emotional maturity to make an informed choice.
The negative proposition established by the decision of the Full Court of the Federal Court in Odhiambo v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 29, that s.425 does not exclude a minor appearing for himself or herself before the Tribunal (a decisive proposition on the facts of that case) does not assist the applicant child here. The difficulty here is the identification of factors that required the child to be separately represented and made it inappropriate for the mother to advance the case on her behalf.
The argument in ground one is pitched in terms of a requirement of separate representation but in reality the contention is the same as a claim that the child ought to have had a litigation guardian appointed. Separate representation of a child of the age of the applicant effectively means that the legal representative will exercise the decision-making powers and make the judgment calls of a guardian. But as the Full Court say in Odhiambo at [101] :
The statute must be allowed to operate on its own terms. The Migration Act makes no provision for an applicant to proceed before the Tribunal by a next friend, tutor or guardian.
I agree with the respondent’s counsel that the use of the expression in ground one of “legitimate expectations” in relation to the Convention of the Rights of the Child is redolent of the argument advanced in cases such as Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, and that, as pointed out by the High Court in Re: Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Lam [2003] HCA 6, the opportunity for the advancement of such arguments is limited now that it is accepted that Tribunals must comply with the rules of procedural fairness. Such an argument may have even less relevance in the light of the existence of s. 422B of the Act.
But it is unnecessary for me to consider such matters in further detail.
There is nothing that arises from the circumstance of the mother having advanced the applicant’s case before the Tribunal which gives rise to legal error, jurisdictional or otherwise, or to any relevant incident of procedural unfairness. Underlying the complaint in ground one is a suggestion of professional incompetence on the part of the migration agent assisting the mother but that matter was not articulated as a ground and for good reason I think. The remarks of French J, as he then was, in Minister for Immigration & Multicultural Affairs v SZFDE and Others [2006] FCAFC 142 at [129] on this topic were referred to with approval by the High Court notwithstanding the success of the appeal from the Full Court:
There are sound policy reasons why a person, whose conduct before an administrative tribunal has been affected, to his or her detriment, by bad or negligent advice, should not be heard to complain that the detriment was unfair in any sense that would vitiate the decision made.

The application for review on the basis of ground one is refused.
The ground advanced in the submissions but not in the Amended Grounds of Review now needs to be considered. The ground is adumbrated at [45] to [50] of the Outline of Submissions and was developed in oral argument.
The submission is that the reviewer misunderstood or misapplied the decision of the High Court in Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19 and was wrong to apply the earlier High Court decision of Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225.
There is no doubting that Chen is authority for the proposition that “black children” as that expression is understood in the Chinese context can constitute a social group for Convention purposes in a way that the parents of such children could not because the one-child policy as it applied to them was a law of general application (Applicant A).
There is also no doubting that the error identified by the High Court in the Tribunal’s reasoning in Chen was the Tribunal’s findings on the question of causation: the Tribunal regarded the cause of the child’s persecution (in the form of denial of educational services in particular) as the inability of the parents to pay the social compensation fee rather than the one-child policy being applied to the child.
In relation to the law of general application as it related to the parents, the plurality in Chen said at [21]:
To say that, ordinarily, a law of general application is not discriminatory is not to deny that general laws, which are apparently non-discriminatory, may impact differently on different people and, thus, operate discriminatorily. Nor is it to overlook the possibility that selective enforcement of a law of general application may result in discrimination. As a general rule, however, a law of general application is not discriminatory. And Applicant A held that, merely because some people disagree with a law of that kind and fear the consequences of their failure to abide by that law, they do not, on that account, constitute a social group for the purposes of the Convention. set out 21.
In relation to the social group of “black children” they said at [32]:
Once it is accepted that "black children" are a social group for the purposes of the Convention, that they are treated differently from other children and that, in the case of the appellant, the different treatment he is likely to receive amounts to persecution, there is little scope for concluding that that treatment is for a reason other than his being a "black child". As a matter of common sense, that conclusion could only be reached if the appellant had some additional attribute or characteristic and the treatment he was likely to receive was referable solely to that other characteristic or attribute.
The problem with the Tribunal’s reasoning in Chen is identified at [36] of the plurality judgment:
Nor can it be said, as the Tribunal suggested, that the appellant faces a real risk of persecution in China, not because he is a "black child", but because of his parents' financial situation. To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment.
There was nothing inherently wrong with the Tribunal in that case examining the question of the capacity of the parents to pay the social compensation fee and neither is there in this case. Chen is not authority for any proposition that suggests error in doing so.
Here, at [106] to [110] the Tribunal discusses in detail the question of the capacity of the parents to pay the social compensation fee imposed because of the fact that the applicant has been born. The Tribunal came to the conclusion that the father would not return to China or at least proceeded on the basis of making that assumption in any event; it found that the mother will have the capacity to pay the fee within the three years allowed for the payment. These conclusions followed on from an analysis of the likely amount of the fee and of the mother’s likely financial circumstances.
If the fee is paid the child will be educated and this circumstance may well be determinative of the likelihood of the child being persecuted on this account or whether there is a real chance of such persecution. It is proper and rational to consider this aspect of the evidence. The conclusion that the Tribunal came to was on the evidence logically sustainable. I find no legal or jurisdictional error associated with the Tribunal’s scrutiny of this aspect of the evidence or of the conclusions reached in relation to it.
That leaves the second ground set forth in the Amended Grounds of Review.
It is said that the Tribunal failed to take into account the relevant real chance of the child suffering persecution if the parents, whilst able to pay the social compensation fee, declined to pay it. It is said that there are a number of factual matters suggestive of this possibility. For example, if we assume that the parents would return to China together and further assume that the mother would defer to the father on the issue of payment of the social compensation fee, there was a real chance that the father might refuse to pay it and would not permit the mother to pay it.
On the other hand, if the father did not return there was a real chance that the mother would come under social pressure to utilise her resources in the education of her son rather than of her daughter.
The Tribunal found, at [110], that the burden of meeting the social compensation fee would fall on the mother. It recognised the possibility that the father may return to China and voluntarily share the liability for the social compensation fee or may send money to China from overseas but it did not regard either of those outcomes as likely. Its findings in that regard were consonant with the case the mother was presenting at the Tribunal on behalf of her daughter.
Whilst couched in terms of a failure to exercise the jurisdiction I consider the advancement of the second ground to be an invitation to take a different view in relation to these factual matters than the Tribunal in fact did and I do not regard that as an appropriate function of this Court on judicial review. Ground two fails.
For the foregoing Reasons the application will be dismissed.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Date: 14 September 2012