BY (China) v A Refugee and Protection Officer
[2016] NZHC 2244
•23 September 2016
NOTE: THE CONFIDENTIALITY OF THE NAME OR IDENTIFYING PARTICULARS OF THE APPLICANTS AND OF THEIR CLAIMS OR STATUS MUST BE MAINTAINED PURSUANT TO S 151 OF THE IMMIGRATION ACT 2009.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-000264 [2016] NZHC 2244
BETWEEN BY (CHINA)
Applicants
AND
A REFUGEE AND PROTECTION OFFICER
Respondent
CIV-2016-404-000248
BETWEEN BY (CHINA) Applicants
ANDTHE IMMIGRATION AND PROTECTION TRIBUNAL First Respondent
A REFUGEE AND PROTECTION OFFICER
Second Respondent
Hearing: 24 August 2016 Appearances:
C Curtis and TG Zohs for the Applicants
O M Klaasen for the RespondentsJudgment:
23 September 2016
JUDGMENT OF MUIR J
This judgment was delivered by me on Friday 23 September at 10.00 am
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:………………………
BY (CHINA) v A REFUGEE AND PROTECTION OFFICER [2016] NZHC 2244 [23 September 2016]
Introduction
[1] The applicants (husband and wife and two of their three children, all four of whom are Chinese nationals) seek leave to appeal a decision of the Immigration and Protection Tribunal (the Tribunal) under s 245 of the Immigration Act 2009 (the Act), or alternatively seek leave to bring judicial review proceedings under s 249 of the Act.
[2] They claim that the wife will be forcibly sterilised or be subject to forcible insertion of an inter-uterine device (IUD) if returned to China1 and that the Tribunal erred in various ways in not recognising their claims to a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” and thus to refugee status under the terms of Article
1A(2) of the Refugee Convention 1951 (the Convention).2
Background
[3] The husband first travelled to New Zealand in 2003 where he studied English from April 2003 until August 2004. In October 2010 the husband and the wife and their first child (five months old at the time) arrived in the country on visitors’ visas.
[4] In January 2011 the husband was granted a student visa to study cookery and the wife was issued a work visa. In April 2011 the family briefly returned to China to sell a property so that they could then buy a house in New Zealand.
[5] In May 2011 the family arrived back in New Zealand and purchased a house on the North Shore of Auckland. In 2011 the couple made applications for further visas to allow them to remain in New Zealand. Immigration (New Zealand) had concerns as to the husband’s application and wrote to him identifying potentially
prejudicial information.
1 Or the husband subject to forced vasoligation, although this was not at the forefront of the
applicants’ arguments.
2 As amended by Article 1(2) of the Protocol Relating to the Status of Refugees of 31 January
1967.
[6] In late 2011 the husband returned to China with the first child and the wife followed shortly after. A further pregnancy followed with the couple giving birth to a second child in October 2012.
[7] In August 2013 the husband and wife applied for visitors’ visas to travel to New Zealand again. While these applications were being processed the wife became pregnant for a third time. The family arrived in New Zealand on 15 April 2014. On
24 April 2014 the husband, wife and their first two children lodged claims for refugee status. That application was declined by a refugee and protection officer in September 2014. Two appeals followed to the Tribunal being:
(a) An appeal against the RPO’s refugee decision under s 194(1)(c) of the
Act (the Refugee appeal); and
(b)An appeal against liability for deportation on humanitarian grounds under s 206 of the Act (the Humanitarian appeal).
[8] Both appeals were dismissed. Only the refugee appeal features in the present proceedings.
The Tribunal decision
[9] At the outset of its decision the Tribunal defined the issue before it in the following terms:3
[3] The husband and wife each claim to have a well-founded fear of being forcibly sterilised or otherwise forced to undergo other medical procedures to prevent further pregnancies on account of their having three children, this being one more than they are legally permitted to have under the relevant family planning regulations in China. There is no doubt that the couple have three children. The central issue to be determined is whether their fears are well founded.
3 BY (China) v A Refugee and Protection Officer [2016] NZIPT 800770-773 [the Tribunal
Decision], at [3].
[10] The Tribunal then went on to outline extensively the evidence of the husband and wife at the appeal hearing4 and the material and submissions received from them.5
[11] Before addressing the legislative framework in China and relevant country information, the Tribunal made a number of significant findings of fact including that:
(a) the husband and wife had sought to portray decisions made “for a multiplicity of reasons” as decisions “principally undertaken and driven by their opposition to” China’s family planning policies.6
(b)they had embellished the degree to which family planning authorities had been attempting to contact them in China.7
(c) it did not accept that the couple would refuse to pay the social maintenance fees levied by Chinese authorities on couples with more than two children and that this was simply a “convenient assertion from a distance”.8
(d)it did nevertheless accept that following the birth of each of their first two children in China “the couple were occasionally contacted by the Family Planning authorities in the relevant area [Fujian Province] by letter and telephone regarding their undertaking medical procedures to prevent any further pregnancies”.9
[12] Turning then to the assessment of the claim for refugee status, the Tribunal firstly identified the principal issues as being:10
4 At [5] – [31].
5 At [32] – [36]
6 At [41].
7 At [42] – [44].
8 At [45].
9 At [46].
10 At [52].
(a) Objectively, on the facts as found, is there a real chance of the appellants being persecuted if returned to the country of nationality?
(b) If the answer is yes, is there a Convention reason for that persecution?
[13] In doing so it adopted the test set out Refugee Appeal 70074/9611 as approved by the Court of Appeal in Teitiota v Chief Executive of Ministry of Business, Innovation and Employment.12
[14] In terms of the meaning to be attributed to the phrase “being persecuted”, the Tribunal adopted what is commonly referred to as the Human Rights approach derived from Refugee Appeal 74665/03, namely an inquiry whether there is evidence of:13
… the sustained or systemic violation of core human rights demonstrative of a failure of state protection.
[15] In terms of the meaning of “well founded” in Article 1A(2), it then adopted the approach in Chan v Minister of Immigration and Ethnic Affairs14 where it was held that a fear of being persecuted could be regarded as well founded when there was a “real as opposed to remote or speculative chance of it occurring”.15 It noted that the standard was entirely objective. That test is now summarised in the “real chance” phraseology of Refugee Appeal No 70074/96.16
[16] The Tribunal then noted that the question of the availability of refugee status on the basis of China’s family planning laws had been extensively considered by the Refugee Status Appeal Authority in one of its early decisions, Refugee Appeal No
3/91 (Re ZWD).17 It noted that in that case the Tribunal’s conclusions on persecution
were in terms:
11 Refugee Appeal 70074/96, Refugee Status Appeal Authority, 7 September 1996.
12 Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2014] NZCA
173, [2014] NZRA 688.
13 Refugee Appeal 74665/03, Refugee Status Appeal Authority,7 July 2004.
14 Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 (HCA).
15 Chan v Minister of Immigration and Ethnic Affairs, at 54.
16 Refugee Appeal No 70074/96, above n 11.
17 Refugee Appeal No 3/91 (Re ZWD) Refugee Status Appeal Authority, 20 October 1992.
1. China’s birth control policy is applied to the general population;
2. That policy is not inherently or on its face persecutive;
3.However, forced or involuntary sterilisation and abortion constitute human rights abuses and may amount to persecution.
4.Persons in fear of such persecution are only protected by the Refugee Convention if the persecution is “for reasons of race, religion, nationality, membership of a particular social group or political opinion”; and
5.In both [Matter of Chang Int.Dec.3107 (BIA 12 May 1989); Interpreter Releases, 10 July 1989 and [Zhou v Canada (Minister of Employment and Immigration) (1989) 9 ImLR 2d 216] it was held that the consequences of violating family planning policies per se did not constitute persecution for a Convention reason.
[17] Because this decision was one of some maturity and China’s national family planning laws had, in the interim, changed to provide for the lawful birth of two children in a variety of specified circumstances,18 the Tribunal decided, however, that a fresh analysis of the relevant legislation and country information was warranted.
[18] It then reviewed at length the provisions of the PRC Population and the Family Planning Law 2001 and the Population and Family Planning Regulation of the Fujian Province, where the appellants had previously resided, concluding that neither the national nor local laws provided any authority for family planning officials to conduct forcible sterilisations or perform other invasive medical
procedures on an involuntary basis.19
18 Tribunal decision at [58].
19 Tribunal decision at [73].
[19] Nevertheless, the Tribunal accepted that, despite the absence of legislative imprimatur, country information indicated that forcible sterilisation or other involuntary procedures “can occur”.20
[20] Reviewing that information, it found that many of the examples cited to it did not relate to Fujian Province and were specific to non-urban areas. Noting that “no black and white dividing line exists in terms of risk and that there were also reports of forced measures taking place in urban areas” it concluded:21
… the country information available to the Tribunal suggests that implementation is uneven and that rural and migrant populations may in some context be more exposed to such practices than their urban counterparts.
[21] While allowing for a degree of under-reporting, the Tribunal therefore concluded that the evidence of coercive implementation submitted to it suffered from “over generality”.22
[22] Applying these findings to the facts of the case, the Tribunal concluded:23
(a) That in breach of relevant legislation forcible sterilisations and other involuntary and invasive medical procedures can occur.
(b) Such may amount to persecution.
(c) The evidence did not, however, establish that the husband or wife were “at risk of having such measures applied to them at the “real chance” level.
[23] The Tribunal’s reasons for the last of these conclusions were summarised at
[85] in terms:
They are urban residents not rural or migrants, and hail from a city in respect of which there is no evidence of any current crack down by the family planning authorities. Nor is any crackdown predicted there in the
20 At [73].
21 Tribunal decision at [79] citing the 2012 CIRB report.
22 Tribunal decision at [74].
23 At [83]-[85] and [94].
foreseeable future. The husband has private income available and works in the commercial sector in private employment. The wife does not work. The couple have the means to pay any social maintenance fee levied against them under the family planning regulations.
[24] The Tribunal therefore found that the applicants were not refugees within the meaning of the Convention nor protected persons.
Relevant principles – leave to appeal and leave to bring review proceedings
Leave to appeal
[25] This is governed by s 245 of the Act which relevantly provides:
245 Appeal to High Court on point of law by leave
(1) Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(3) In determining whether to grant leave to appeal under this section,
the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
(4) On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—
(a) confirm the decision in respect of which the appeal has been brought; or
(b) remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or
(c) make such other orders in relation to the matter as it thinks fit.
(5) Subject to subsection (2), every appeal under this section must
be dealt with in accordance with the rules of the court, with any modifications necessary to reflect the provisions of this Act,
including any ancillary general practices and procedures developed under section 260.
[26] Accordingly, an applicant for leave to appeal must satisfy the Court both that the appeal involves:24
(a) An error by the Tribunal that amounts to a seriously arguable question of law; and
(b)A question of law which is of general or public importance or for some other reason ought to be submitted to the High Court.
[27] As Duffy J stated in LMN v Immigration and Protection Tribunal,25 this two stage test means that:
Factual errors or legal errors that are no more than are a misapplication of existing legal principles to the particular facts of the case will not qualify. The effect of s 245 is to grant the Tribunal authority to misapply settled law to the facts of the case before it. Only if the legal errors have a wider significance that extends beyond the applicant will the Court have jurisdiction to grant leave to appeal. The key issue for determination therefore is whether the applicant has identified legal errors on the part of the Tribunal that extend beyond the individual case. Consideration also needs to be given to whether the applicant falls into the remaining category of providing “any other reason” for his appeal to be submitted to this Court for determination”.
[28] Where the alleged error of law is premised on a challenge to factual findings, the Court of Appeal in Taafi v Minister of Immigration described applicants as facing a “triple hurdle” namely:26
(a) First, the applicant will need to show a seriously arguable case that factual findings by the Tribunal are actually incorrect. An appeal Court will not interfere where there is an available evidential basis for the Court’s finding.
(b) Secondly, the applicant will need to show that the factual errors are, in combination and in the context of the whole decision, so grave as to constitute an error of law. That is, it is seriously arguable that:
24 This two stage test has been accepted by the Supreme Court in Guo v Minister of Immigration [2015] NZSC 132, [2016] 1 NZLR 248 and Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2015] NZSC 107.
25 LMN v Immigration and Protection Tribunal [2013] NZHC 2077 at [2].
26 Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at 19.
(i) The Tribunal has made a finding of fact which is based on no evidence, based on evidence inconsistent with or contradictory of another finding of fact, or contradictory of the only reasonable conclusion of fact available on the evidence; and
(ii) The errors of fact are so significant and extensive that a properly-directed Tribunal may well have reached a different decision overall on the application to quash the deportation order.
(c) Thirdly, the applicant must show that the question of law (here based on alleged fundamental errors of fact) is one of general or public importance, or for some other reason ought to be considered on appeal. The former is a hard ask in the case of factual errors, no matter how profound….
Section 249 leave to bring review proceedings
[29] Section 249 of the Act relevantly provides:
249 Restriction on judicial review of matters within Tribunal’s
jurisdiction
…
(3) Review proceedings may then only be brought in respect of a decision or matter described in subsection (1) or (2) if the High Court has granted leave to bring the proceedings or, if the High court has refused to do so, the Court of Appeal has granted leave.
…
(6) In determining whether to grant leave for the purposes of this section, the court to which the application for leave is made must have regard to –
(a) whether review proceedings would involve issues that could not be adequately dealt with in an appeal against the final determination of the Tribunal; and
(b) if paragraph (a) applies, whether those issues are, by reason of their general or public importance or for any other reason, issues that ought to be submitted to the High Court for review.
[30] In Allada v Immigration and Protection Tribunal27 Asher J held that while s 249 does not prohibit the High Court granting leave in a proceeding which involves issues which could have been dealt with on an appeal or which are not of general or
27 Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880.
public importance, this “would be a rare circumstance given the emphasis on these two criteria”.28
[31] Likewise in SK v Immigration and Protection Tribunal Faire J noted that the introduction of the leave requirement in s 249 “indicates a deliberate intention to limit the scope of judicial review from immigration decisions”.29
[32] In relation to whether the issues raised could be dealt with on appeal, I accept the submission of the respondent that the clear legislative direction is that appeal, not review, is to be the primary mechanism by which Tribunal’s decisions are challenged where possible. That said, such policy must always, as Heath J observed in Hu v
Immigration Protection Tribunal:30
… be considered against the important role that the remedy of judicial review plays within New Zealand’s constitutional structure. It is the means by which citizens can challenge executive decisions on grounds of illegality or irrationality.31
[33] Classic instances where leave to review will obviously be available include where a decision is arguably unreasonable in an administrative law sense (as, for example, in Hu itself where Heath J found the Tribunal’s decision to issue only a temporary visa was arguably inconsistent with the primary findings it had earlier made).
Issue of general public importance
[34] In respect of both ss 245 and 249 applications, the Court must have regard to whether the issues raised are of general or public importance or for any other reason ought to be submitted to the High Court. This test was considered by the Court of Appeal in Minister of Immigration v Jooste.32 The Court found that the “test is
similar to that applying to second appeals to this Court under s 67 of the Judicature
28 Allada v Immigration and Protection Tribunal, at [32].
29 SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5].
30 Hu v Immigration Protection Tribunal [2016] NZHC 1661 at [11].
31 For example, see Mangawhai Ratepayers’ and Residents’ Association Inc v Kaipara District
Council [2014] 3 NZLR 85 (HC) at [74] and [75].
32 Minister of Immigration v Jooste [2014] NZCA 23.
Act 1908”.33 That test was, in turn, described by the Court of Appeal in Waller v
Hider in the following terms:34
Upon a second appeal this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and determine whether it has been properly construed and applied by the court below. It is not every alleged error of law that is of such importance either generally or to the parties as to justify further pursuit of litigation which has already been twice considered and ruled upon by a court.
[35] An issue will not be of sufficient importance to justify further litigation where it is fact specific, of concern to the parties only, where the law is well settled or where there is little prospect of success.
[36] In the s 245 context, Duffy J held in LMN v Immigration Protection Tribunal that the issues raised must “go beyond the particular circumstances of the applicant” or “raise an issue that suggests the existing law should be revisited by the Court”.35
[37] The misapplication by the Tribunal of existing law to the particular facts will not qualify36 and where an applicant attempts to prove a Tribunal’s factual findings are so incorrect as to constitute an error of law a very high threshold applies.37
These principles have been applied or affirmed in numerous recent High Court decisions.38
[38] In respect of the “any other reason” ground, the Court of Appeal has confirmed that, in a s 245 context, it would only be in an exceptional case involving individual injustice to such an extent that the Court simply could not countenance the Tribunal’s decision standing, that this alternative requirement could be met.
[39] The Court of Appeal has not yet considered whether the test involving “some other reason” should be interpreted in the same way in a judicial review context. At
High Court level there is some divergence of opinion in this respect. In SK v
33 At [5].
34 Waller v Hider [1998] 1 NZLR 412.
35 LMN v Immigration Protection Tribunal, above n 25, at [32].
36 At [2].
37 At [27].
38 Including Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [58]-[59], JS v Immigration and Protection Tribunal [2015] NZHC 2832 at [51] and SK v Immigration and Protection Tribunal, above n 29, at [6]-[7].
Immigration and Protection Tribunal39 Faire J held that the test should be interpreted identically. However, in RM v Immigration and Protection Tribunal,40 Hu v Immigration and Protection Tribunal41 and Kumar v Minister of Immigration,42 a less stringent test has been applied in the s 249 context. Heath J succinctly stated the reasons for this in Hu where he said:43
[18] In my view, the Court’s gate-keeping role under s 249 of the Act should be interpreted in a manner that best accords with the rights and freedoms affirmed by the New Zealand Bill of Rights Act 1990. While Parliament has (lawfully) placed constraints around the ability to seek judicial review in an immigration context, the fact remains that a general right to seek remedy of judicial review is affirmed by s 27(2) of the Bill of Rights. The test for granting leave should be determined in lights (sic) of that guaranteed right. If after balancing countervailing circumstances the interests of justice require that the applicants be given the opportunity to challenge a decision through the judicial review procedure leave should be granted.
[40] In that case his Honour found that the significant impact on the family if deportation were to proceed qualified as sufficient “other reason”. To the extent relevant to this appeal, I adopt the reasoning of Heath J in Hu. Although, as he observed, the reasons for an elevated test on an application to bring a second appeal are self-evident, the same justification does not arise in a first instance judicial review context. In practise I suspect the distinction is, however, likely to be more notional than real. A court which identifies an arguable case of administrative law irrationality is unlikely to “countenance” a result which denies exploration of that point on review.
The appeal – grounds
[41] In their application for leave to appeal the appellants identify their grounds as being that the Tribunal:
(a) erred in law by not correctly assessing the “being persecuted” element
of the appeal.
39 SK v Immigration and Protection Tribunal, above n 29.
40 RM v Immigration and Protection Tribunal [2016] NZHC 735 at [42].
41 Hu v Immigration Protection Tribunal, above n 30, at [17].
42 Kumar v Minister of Immigration [2016] NZHC 1593 at [39].
43 Hu v Immigration Protection Tribunal, above n 30.
(b) erred in law by not correctly assessing the “well-founded fear”
element of the appeal.
(c) did not have regard to independent evidence lodged with it in reaching its determination that the second applicant in particular did not establish a real fear of persecution on returning to China with the children.
Analysis
First and second alleged errors of law – assessment of “being persecuted” and
“well-founded fear”
[42] In written and oral submissions the second ground was not specifically relied on. However, the arguments advanced in relation to the first ground were wide- ranging and incorporated elements potentially related to the second. Those arguments were in terms:
(a) The Tribunal failed specifically to examine the core human rights engaged by the appellants.
(b) The “being persecuted” analysis was deficient.
(c) Proper focus from a human rights perspective would have anticipated harm to the mother.
(d)The Tribunal failed to “closely read” the Chinese legislation and did not undertake the necessary “being persecuted” analysis of the relevant Chinese law, focusing instead on the provisions for the payment of social maintenance fees.
(e) The Tribunal did not refer to the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) or a report of the
relevant CEDAW committee at its 59th session on 20 October – 7
November 2014.44
[43] I do not accept that the Tribunal erred in its assessment of the “being persecuted” element of Article 1A(2).
[44] It commenced its analysis by reciting the two step inquiry endorsed in Teitiota45 and set out in [12] above, commencing with an assessment of whether objectively there was a real chance of the claimant being persecuted if returned.
[45] Although the appellants criticise the Tribunal for saying that the “central issue to be determined is whether [the appellants’] fears are well founded”,46 relying on Tribunal authority that “the inquiry in New Zealand starts with the assessment of the “being persecuted” element not the “well-founded” element,47 nothing in my view turns on the point, given that the Tribunal did identify as a potential form of persecution the compulsory sterilisation which the appellants claimed to fear. It then proceeded to analyse whether there was a real chance of that occurring. In practice this will inevitably give rise to a seamless inquiry into whether there is a “real chance of the claimant being persecuted” in the manner relied on, as foreshadowed in the first limb of the two step test.
[46] Nor do I accept that there was a failure on the part of the Tribunal to recognise the human rights approach now seen as necessary in the context of the “being persecuted” analysis.
[47] Such approach was summarised by Priestley J in the High Court decision in
Teitiota in the following terms:48
New Zealand has adopted James Hathaway’s “human rights” approach to the definition of persecution, which defines persecution as the sustained or systemic violation of basic human rights demonstrative of a failure of state protection.
44 Report of the CEDAW, CEDAW/C/2014/III/CRP, 20 October – 7 November 2014.
45 Teitiota v Chief Executive of Ministry of Business, Innovation and Employment, above n 12.
46 At [3].
47 DS (Iran) [2016] NZIPT 800788.
48 Teitiota v Chief Executive of Ministry of Business, Innovation and Employment [2013] NZHC
3125, [2014] NZAR 162 at [8].
[48] This is almost verbatim the test which the Tribunal adopted at [53] of its decision citing Refugee Appeal No 74665/03.49
[49] I accept counsel for the respondent’s submissions that the human rights approach underpins the first limb of the relevant test but it is not a stand-alone assessment as the appellants contend.
[50] Turning then to whether the human rights approach was applied by the Tribunal, it adopted the observations in Re ZWG50 that “forced or involuntary sterilisation and abortion constitute human rights abuses and may amount to persecution”.51 It then specifically identified that, despite the absence of legislative authority, forcible sterilisation and other involuntary and invasive procedures “can occur”52 and that PRC family planning policies:
… can on occasion be implemented in a manner which amounts to a breach of Article 7 of the 1966 International Covenant on Civil and Political Rights which prohibits cruel, inhuman or degrading treatment or punishment result in serious harm and can thereby constitute being persecuted.
[51] I can identify no error of law in this respect. The Tribunal’s approach was orthodox and correct. It recognised the potential for persecution on the basis of violation of basic human rights (of which forced sterilisation was an accepted example). It then turned its attention to the question of whether, objectively, there was a real chance that persecution of this kind would be inflicted on either the husband, or more particularly, the wife.
[52] It is at this point which in my view the application for leave to appeal faces real difficulties because the assessment of whether something represents a “real” as opposed to “remote or speculative” chance is a question of fact (accepted as such by Ms Curtis) and one which the specialist Tribunal from which leave to appeal is sought is particularly qualified to answer. In that context all the injunctions
identified by Kos J (as he then was) in Taafi apply.53
49 Refugee Appeal No 74665/03, above n 13.
50 Refugee Appeal No 3/91 (Re ZWD), above n 17.
51 At [56].
52 At [76].
53 Taafi v Minister of Immigration, above n 26.
[53] Can the Tribunal’s assessment in this case be said to fall foul of these
stringent requirements? In my view the answer must be in the negative.
[54] The Tribunal started with an examination of the legislative and regulatory framework in China. I cannot accept Ms Curtis’ submission that this itself gives legal sanction to compulsory sterilisation or other involuntary procedures.54
[55] In terms of the PRC Population and Family Planning Law the most relevant provisions are Articles 17-22 and 41-44 in terms:
Article 17 Citizens have the right to reproduction as well as the responsibility for practising family planning according to law. Husbands and wives bear equal responsibility for family planning.
Article 18 The State shall maintain its current fertility policy encouraging late marriage and childbearing and advocating one child per couple; arrangements for a second child, if requested, being subject to law and Regulation. Specific measures shall be enacted by the People’s Congress or its standing committee in each Province, autonomous region, and municipality. Ethnic minorities shall also practice family planning. Specific measures shall be enacted by the people’s Congress or its standing committee in each Province, autonomous region, and municipality.
Article 19 In implementing family planning, the primary emphasis shall be on contraception. The State shall create conditions conducive to individuals being assured of an informed choice of safe, effective, and appropriate contraceptive methods. Safety of recipients of birth control procedures must be ensured.
Article 20 Couples of reproductive age shall be conscientious in adopting contraceptive methods and in accepting the guidance of family planning technical services. Incidences of unwanted pregnancies shall be prevented and reduced.
Article 21 Couples of reproductive age who practise family planning shall be able to obtain technical services free of charge under the basic items as specified by the State.
The cost of the aforesaid services shall be itemized and public appropriations made in accordance with applicable State Regulations or be guaranteed by social insurance plans.
Article 22 Discrimination against and mistreatment of women who give birth to female children or who suffer from infertility are prohibited. Discrimination against, mistreatment, and abandonment of female infants are prohibited.
54 Had it misinterpreted the legislation I accept this could have given rise to a stand-alone error of law which could be considered outside the Taafi framework.
…
Article 41 Citizens who give birth not in accordance with the stipulations in Article 18 shall pay a social compensation fee prescribed by this law. Those failing to pay the full amount before the due date shall be levied a late payment penalty specified in applicable State Regulations. Those who persist in non-payment shall be sued for payment in People’s Court by the family planning administrative departments that levied the social compensation fee.
Article 42 The state employees levied the social compensation fee described in Article 41 shall be subject to additional administrative penalties, according to law. Others levied such a fee shall be subject to additional disciplinary measures imposed by their employing units.
Article 43 Those who resist or hinder family planning administrative departments and staff in the performance of their legitimate duties shall be subject to criticism and ordered to amend their conduct by the family planning administrative departments involved. Conduct breaching public security Regulations shall be subject to public security penalties. Acts constituting a crime shall be referred for criminal prosecution.
Article 44 Citizens, entities treated as legal persons or other organizations deeming that an administrative organ has infringed on their legitimate rights and interests while implementing family planning policy may appeal for review or sue for redress.
[56] Within Fujian province the relevant Regulations materially provide for a range of incentives directed at both couples and family planning officials alike. Those couples who comply are entitled to various technical services free of charge55 including “medical inspection on the placing and removing of contraceptive devices in and from the womb”, “on artificial and induced abortion technique” and “on vasoligation and tubal ligation”. I do not accept Ms Curtis’ submission that this provides legislative cover for compulsory sterilisation. In its terms it is a statement of rights relating to the medical services available to couples of reproductive age.
[57] Article 18 of the Regulations in turn provides:
Article 18 The State shall maintain its current fertility policy encouraging late marriage and childbearing and advocating one child per couple; arrangements for a second child, if requested, being subject to law and Regulation. Specific measures shall be enacted by the People’s Congress or its standing committee in each Province, autonomous region, and municipality. Ethnic minorities shall also practice family planning. Specific measures shall be enacted by the people’s Congress or its standing committee in each Province, autonomous region, and municipality.
55 Article 19.
[58] Chapter 6 of the Regulations is entitled “Legal Liability”. It provides for a graduated series of fines, termed “social compensation fees” depending upon the extent to which the unauthorised birth exceeds the maximum number of children permitted to the couple under the Regulations. Relevantly, Article 39 provides:
Article 39 Anyone who violates this Regulation by one of the acts listed below shall be ordered to pay the corresponding number of times of the average annual disposable income of the urban residents or the net average annual income of the rural peasants of the county in the previous year when the child is born in violation of this regulation as social compensation fee by family planning administrative department of the county or by township people’s government or urban neighbourhood office appointed by such administrative department:
(1) A social compensation of zero point six to one time shall be imposed on those who give birth to a child ahead of schedule;
(2) A social compensation of two to three times shall be imposed on those who give birth to the first additional child. A social compensation of four to six times shall be imposed on those who give birth to the second additional child.
A much more heavy social compensation fee shall be imposed on those who give birth to the third or more additional child.
…
If the actual annual income of the parties concerned exceeds the average annual disposable income of the urban residents or the net average annual income of the rural peasants of the county in the previous year, the actual income shall be used as the base to calculate the number of the social compensation fees.
The decision in writing to impose social compensation fee shall be made by the family planning administrative department of the county. Such department may appoint the people’s government of town ship or town or the urban neighbourhood office to make such decisions.
[59] Whereas up until 2013 the object of these laws was to limit couples to one child (albeit that exceptions were recognised in cases where both parents were themselves from 1 child families), that position was relaxed at the Third Plenum of the 18th Party Congress Central Committee in November 2013 to allow a second child to couples where one only of the parents was a single child. All provincial
jurisdictions have amended their laws accordingly.56
56 In Fujian Province this was pursuant to the Fujian Province Population and Family Planning
Regulations (effective 31 March 2014).
[60] Since both the husband and the wife are only children no issue arises as to their entitlement to have a second child.
[61] In respect of their third child, however, they will be liable for the payment of social maintenance fees. The Tribunal found them in a position to do so and there is no basis to disturb that finding of fact. It likewise found that because the husband was not reliant on public sector employment and the couple had available “a sizeable asset base which provides them with income” and had accommodation in China other forms of discrimination potentially available to authorities would not impact on
them.57
[62] Although the overall legislative framework is, by reference to pressure which villagers committees are urged to exert58 and the graduated fines payable for births outside allowable limits, coercive and in that sense anathema to prevailing attitudes in liberal democracies, the Tribunal was clearly correct in concluding that the framework itself did not condone the compulsory sterilisation the appellants claim to fear.59
[63] The Tribunal then reviewed extensive country information in its assessment of whether, despite the absence of legislative sanction, there was, objectively, a real chance of the appellant’s fears being realised. It considered in detail the United States Department of State Country Reports on Human Rights Practices 2014: China (25 June 2015) and the 2015 United States Congressional Executive Commission on China Annual Report. It noted and accepted that abusive practices did “in some
instances”60 occur, but emphasised that China is a large and regionally diverse
country with “significant distinctions drawn between urban and rural and migrant populations in terms of social policy”.61
57 Tribunal decision, at [82] and [85].
58 Which the Tribunal found the husband and wife were “occasionally” themselves subject to (at
[46]).
59 At [73].
60 At [73].
61 At [77].
[64] In doing so it drew particularly on observations in the Canadian Immigration and Refugee Board report of 2012, which, in relation to Fujian Province stated:62
According to the Legal consultant, both internal government documents and significant anecdotal evidence indicate that the enforcement of family planning law is ‘generally coercive’ in the rural areas of Fujian, due in part to the pressure on officials to meet population targets or birth quotas (7 Sept. 2012). Examples of coercive tactics include women being abducted and transported to a hospital by groups of local enforcers, as well as women being forced to sign their consent to an operation (Legal consultant 7 Sept. 2012).
…
A 2010 document produced by the Lian Jian County Population and Family Planning Leadership Group announces a ‘massive cleanup campaign’ during the 2011 New Year and Spring Festival season to
‘stop the extra births beyond the quota’ (Lian Jian 24 Dec. 2010,
580). The document instructs officials to visit individual homes to
‘motivate citizens to undergo the “double check-ups” and “four surgeries” and to ‘[t]ake every measure possible to raise the [compliance] rate’(ibid., 581). The document also calls on officials to focus on migrant workers in particular (ibid, 580).”63
(Emphasis added)
[65] The Tribunal’s conclusions in respect of county information were expressed at [84] in terms:
“The county information reveals that the picture painted in Re ZWD remains just as true now as it was then. Such coercive practices do occur, albeit in breach of national family planning laws and in far-from-uniform circumstances.
[66] That finding of fact underpinned its further and critical finding that the evidence did not establish that the husband or wife were at risk of having such measures applied to them at the real chance level because they were urban residents hailing from a city where there was no evidence of a current or intended crackdown.
[67] I can identify nothing in these findings of fact (even if they were in error),64
which would elevate them to the errors of law necessary to engage s 245. Clearly there was at least some evidence on which the Tribunal could base its conclusions
62 At [80].
63 It also referred extensively to United States Department of State and Congressional Executive
Commission Reports and to the 2012 Canadian Immigration and Refugee Board Report.
64 Which I am not satisfied they arguably are.
and nor could such conclusions be described as contrary to the “only reasonable conclusion of fact available on the evidence”. Nor are there internal contradictions in the Tribunal’s findings. It was engaged in an evaluative exercise of a large body of country information from a wide variety of sources. Its conclusion that, although the applicants would be subject to financial penalties for having had a third child (and no doubt significant social pressures not to have more), there was no real
chance of them being forcibly sterilised was one I consider open to it.65
[68] An interrelated criticism is that the Tribunal did not consider the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) or its
2014 Committee Report.
[69] Article 12 of CEDAW provides:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning.
2. Notwithstanding the provisions of paragraph I of this article, States Parties shall ensure to women appropriate services in connection with pregnancy, confinement and the post-natal period, granting free services where necessary, as well as adequate nutrition during pregnancy and lactation.
[70] Article 16 in turn provides:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
(a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
65 A similar conclusion was reached by the United States Court of Appeals 11th Circuit in the 2009 decision of Huang v United States Attorney General 346 F 463 (11th Cir 2009). Huang was likewise a resident of Fujian Province. The Court quoted a 2004 United States Department of State Country Conditions Report in terms: “US diplomats in China are not aware of any cases where returnees from the United States were forced to undergo sterilisation procedures on their return”.
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and adoption of children, or similar institutions where these concepts exist in national legislation; in all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name, a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action, including legislation, shall be taken to specify a minimum age for marriage and to make the registration of marriages in an official registry compulsory.
[71] These Articles are directed primarily to issues related to the equality of the sexes, including with respect to decisions relating to the number and spacing of children. That follows particularly from repetition of the phrase “the same rights” in each of the subparagraphs of Article 16. I do not therefore consider the fact that such articles were not discussed in the Tribunal’s decision material. Moreover, I accept Ms Klaassen’s submission that given the Tribunal accepted that family planning policies can, on occasion, be implemented in China in a manner which amounts to a breach of Article 7 of the 1966 International Covenant on Civil and Political Rights, the point is otiose.
[72] In relation to the CEDAW Committee Report, this was never filed with the Tribunal by the appellants. Section 198(5) of the Act accordingly applies. It is in terms:
5.To avoid doubt, nothing in subsection (i) requires the Tribunal to seek any information, evidence or submissions further to those provided by the appellant.
[73] In any event, the Committee Report was summarised in the Congressional- Executive Commission on China Annual Report 2015 which was extensively reviewed by the Tribunal.66
[74] Again I can identify no relevant error of law on the Tribunal’s part.
Third alleged error of law – Matas Report
[75] The appellants notice of appeal and written submissions next assert an error of law by the Tribunal in “not [having] regard to independent and objective evidence placed before it” in the form of a letter dated 1 December 2015 from Canadian lawyer Mr David Matas.
[76] Contrary to the proposition that the Tribunal did not have regard to Mr Matras’ views, its decision refers to his correspondence on a number of occasions. At [32](d) it noted that it had received:
a document called “Expert Opinion” dated 1 December 2015 for David Matas, an academic and barrister and solicitor from Canada, giving his opinion on the reasoning of the Refugee Status Branch (RSB) in declining the claim.
[77] At [55] it referred to the Matas letter and its focus on the earlier reasoning of the RSB which it said was misdirected given the de novo hearing before the Tribunal.
[78] Significantly at [76], it acknowledge Mr Matas’ point about under-reporting of compulsory sterilisation but still concluded that “the available country information still paints a more nuanced picture than that set out in counsel’s more
generalised submissions”.
66 It summarises the Committees report in terms:
“Following its October 2014 review of China the Committee noted its concern over “illegal
practices such as forced abortion and sterilisation””.
[79] The weight that the Tribunal placed on this correspondence was a matter for it. As the Court of Appeal observed in JO v Chief Executive of Ministry of Business, Innovation and Employment.67
It seems JO may be under the misapprehension that the RPO and Tribunal were obliged to accept the evidence he placed before them and erred in law in rejecting it. That is not at all the position. The correct position was explained with admirable clarity by Fisher J in Auckland City Council v Wotherspoon:
A Court may not make factual findings without any evidentiary foundation but that notion does not operate in reverse. A Court can always reject evidence. It can decline to find that facts have been affirmatively established, having regard to credibility, weight and permissible inferences. … But it is not possible for the prosecution to demonstrate to an appellate Court as a question of law that the Court at first instance was deficient in declining to accept primary facts alleged by the prosecution merely on the ground that the Court had before it evidence which, had the Court chosen to accept it, would have supported those facts. There is in law no answer to the point that the Court at first instance had the power to reject that evidence. The Court cannot conjure up evidence which is not there but it can not be forced to accept the evidence put before it.
[80] No error of law is in my view made out in the Tribunal’s consideration of the Matas correspondence. Mr Matas was engaged by the appellants to provide an opinion. He was no doubt approached because of views expressed in his extensive academic and professional writings. It was open to the Tribunal to give greater weight to other materials before it and, on the basis of those materials, reach the factual conclusions it did.
Conclusion on application for leave to appeal
[81] It follows that the appellants have not satisfied me that the Tribunal’s
decision was erroneous in point of law within the terms of s 245(1).
[82] On that basis it is not necessary for me to consider whether the intended appeal satisfies the additional criteria in s 245(3). As recognised in Taafi,68
establishing that an appeal based on alleged factual error raises a matter of general or
67 JO v Chief Executive of Ministry of Business, Innovation and Employment [2015] NZCA 482 at
[19].
68 Taafi v Minister of Immigration, above n 26, at [19].
public importance in a “hard ask” no matter “how profound” such errors are said to
be.
[83] The position in relation to China’s family planning policies is, as the Tribunal found, fluid (on account of recognition of the increasing demographic challenges posed by an aging population) and uneven in terms of regional and urban/rural application. The appellants’ appeal raises matters which are fact specific to their family size, city of residence, timing of return and financial circumstances (which the Tribunal found facilitated payment of social maintenance fees leaving the
prospect of any “more draconian measures …. entirely speculative”).69
[84] Had it been necessary to decide the point, I would have inclined therefore to find that the appeal did not raise a matter of general or public importance. Furthermore, the finding that there is no real chance of forced sterilisation or similar procedures gives context to any claim of individual injustice sufficient that the Court “could not countenance the Tribunal’s decision standing”.
[85] Nor as a result of my decision am I required to decide the issue, likewise not addressed by the Tribunal, of whether China’s family planning policies, if persecutory, are so for a Convention reason.70
The application for review
[86] In oral submissions the appellants did not raise any issues particular to their application under s 249 and their written submission largely echoed the material advanced in the context of the s 245 application for leave to appeal.
[87] The specific grounds on which leave to bring review proceedings is sought
are that the Tribunal erred “procedurally” in:
69 At [88].
70 For a recent discussion of this issue, departing from the approach adopted in Re ZWD (refer [16] above), see SJL and LRC v Refugee Appeals Tribunal [2016] IECA 47 (Court of Appeal of Ireland)
(a) Not taking into full account the absence of specific data and statistics concerning the coercive interference with women by the State in order to control the birth process.
(b)Overlooking country information of systemic conduct regarding coercive birth control practices in the PRC.
(c) Overlooking the evidence of Mr Matas.
[88] It is further said that the alleged procedural errors raise matters of a
significance extending beyond the appellant’s individual case.
[89] I do not consider the sections of the country information on which the appellants rely in their written submissions go beyond the point (accepted by the Tribunal) that China’s family planning policies can, on occasion, be implemented in a way which breaches Article 7 of the 1966 Covenant and which may therefore establish persecution. However, the Tribunal found that such information suffered from over generality. It gave as a specific example the observation in the United States Department of State Country Report on Human Rights Practices 2014: China (25 June 2015) that in the case of families who already have two children one parent is “often pressured to undergo sterilisation”. However, the Tribunal correctly went on to note that:
It does not say that, having refused the pressure, they are typically or even sometimes forcibly subjected to such harsh measures.
[90] It further noted that, despite the lack of reliable data, and even making allowance for under-reporting, many of the examples of alleged forced sterilisation in the country information did not relate to Fujian province and the one publication with specific observations about that province 71 provided few examples of persecutory implementation there.72
[91] I accept the respondent’s submission that what in effect the appellants allege
is that the country information should have been interpreted in a different way by the
71 The CIRB 2012 Report.
72 At [78].
Tribunal and/or the additional weight should have been placed on the Matas correspondence. That is not a proper basis for an application for review.
[92] As Priestley J said in GA v Refugee Status Appeals Authority and Attorney
General:73
[A] judicial review application cannot possibly be used as a guise to invite this Court to reassess credibility issues and the weight given to evidence.74
[93] These arguments are in substance an invitation to revisit the appellants’ appeal point that the Tribunal erred in its assessment of a well-founded fear of persecution. As such, they could be dealt with adequately in the context of the s 245 application. I do not therefore consider a grant of leave to review appropriate.75
[94] However, if I am incorrect in that conclusion, I would again find the issues raised sufficiently fact specific that the “general or public importance” criteria in s 249(6)(b) was not engaged.
[95] To the extent the appellants argue that the alleged “procedural errors” identified in their leave application constitute a breach of natural justice I am similarly unpersuaded. The Tribunal received and reviewed all submissions, evidence and documents filed. It heard extensive evidence from both the husband and the wife. Comprehensive submissions were made on their behalf. Again, the argument is, in substance, that the Tribunal should have interpreted the information before it in a different way, or placed more or less weight on individual components of the evidence assessed. To the extent such arguments could be advanced at all,
they are properly appeal points and do not engage the review jurisdiction.
73 GA v Refugee Status Appeals Authority HC Auckland CIV- 2005-404-1520, 1 March 2006 at
[37].
74 See also Faavae v Minister of Immigration HC Auckland M1434/96, 9 May 1997 at 12 and
Berryman v Solicitor General [2008] 2 NZLR 772 (HC) at [84].
75 See also SJL and LRC v Refugee Appeals Tribunal [2016] IECA 47 where the Irish Court of
Appeal held (at [54]);
I do not think it appropriate for the Court in a judicial review application to search through the materials for some piece of information which might be considered to have had an impact on the decision, but which it can be demonstrated the Tribunal did not expressly refer to in its determination.
Result
[96] I dismiss the applicants’ applications under ss 245 and 249 of the Act.
[97] I award costs to the respondent on a 2B basis. If any issue arises as to calculation, memoranda may be filed. They are to be exchanged in advance to limit areas of difference.
[98] I thank counsel for their comprehensive submissions.
Muir J
Counsel/Solicitors:
C Curtis, Marshall Bird & Curtis, Auckland
T G Zohs, Marshall Bird & Curtis, Auckland
O M Klaassen, Meredith Connell, Auckland
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