FEDERAL COURT OF AUSTRALIA

MZZGE v Minister for Home Affairs [2019] FCAFC 72

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the first respondent’s costs of the appeal, to be fixed by way of a lump sum.

THE COURT DIRECTS THAT:

3.    Within 14 days, the parties file any agreed proposed minutes of orders fixing a lump sum in relation to the first respondent’s costs.

4.    In the absence of any agreement:

(a)    within 21 days, the first respondent file and serve an affidavit constituting a Costs Summary in accordance with paragraphs 4.10 to 4.12 of the Court’s Costs Practice Note (GPN-COSTS);

(b)    within a further 14 days, the appellants file and serve any Costs Response in accordance with paragraphs 4.13 to 4.14 of the Costs Practice Note (CPN-COSTS); and

(c)    in the absence of any agreement having been reached within a further 14 days, the matter of an appropriate lump sum figure for the first respondent’s costs be referred to a Registrar for determination.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

Introduction

1    The appellants are an unmarried couple and their daughter. They applied for a Protection (Class XA) visa on 21 November 2011, making a number of claims which revolved around the following facts:

(1)    the parents were “underage” according to Chinese Family Planning regulations when their daughter was born;

(2)    the first appellant was pregnant with a second child and would, if returned to China, be forced to have an abortion and be sterilised; and

(3)    the family would face various societal pressures in their hometown in Fujian province including because their daughter would be considered “early born” and a “black child”, resulting in no entitlement to social benefits or welfare.

2    A delegate of the Minister for Immigration and Citizenship refused the grant of a visa on 30 January 2012. The Refugee Review Tribunal affirmed that decision on 26 September 2012. By the time of the Tribunal’s decision, the mother’s second child had been born (on 17 June 2012). The appellants applied to the Federal Circuit Court of Australia for judicial review of the Tribunal’s decision. That application was dismissed on 5 December 2018.

3    The appellants appeal to this Court from the Federal Circuit Court’s order dismissing their application for judicial review. The sole ground of review attacks the failure by that court to conclude that the Tribunal erred in a way which went to jurisdiction in the manner in which it dealt with, and decided, the mother’s claim that she had a well-founded fear of persecution arising from a risk of being forcibly sterilised.

4    For the reasons which follow, the appeal must be dismissed.

The Tribunal and the Federal Circuit Court

5    In light of the narrow scope of the appeal, it is unnecessary and distracting to recount in detail the manner in which the Tribunal dealt with each of the claims made. It is not now contended that the Tribunal erred in dealing with the appellants’ claims, except the claim concerning the first appellant’s risk of forced sterilisation.

6    The Tribunal recorded at T[4] that a visa may be granted only if the decision-maker was satisfied that the prescribed criteria had been satisfied: s 65(1) of the Migration Act 1958 (Cth).

7    The Tribunal set out a lengthy review of relevant country information from T[78] to T[104]. This included a detailed analysis of “family planning policy” in China (T[79] to T[83]), “family planning in Fujian” (T[84] to T[90]), “black children” (T[91] and T[92]), “delayed marriage and childbearing” (T[93] to T[95]) and “children born out of wedlock” (T[96] and T[97]).

8    From T[98] to T[104], the Tribunal addressed “forced sterilisation and abortion”. It stated (footnotes omitted):

Forced Sterilisation and Abortion

[98]    Forced sterilizations allegedly continue to occur across China, but the prevalence of this is uneven. In April 2009, the Department of Foreign Affairs and Trade stated that “[t]here is little, if any, media reporting [in China] on this issue [of forced sterilization]”, and went on to state that “[a]lthough Post cannot discount the possibility of forced sterilization, Post has the impression that it is not a widespread practice”. Similarly, the 2010 Freedom in the World Report – China reports that the practice is less common than in the past, however the report goes on to state that “compulsory … sterilization … still occur[s] fairly frequently”. A more critical view is presented in the 2010 Chinese Human Rights Defenders report which states that forced/coerced sterilizations continue to occur but that this occurs unevenly:

[99]    Women and (less often) men are urged by family planning officials to be sterilized once they have reached their birth quota. Again, the application of forced sterilization is uneven across the country and is dependent upon the discretion of the particular family planning officials. In some cases, officials threaten to withhold a hukou for the couple’s child if the mother or father fails to submit to the sterilization procedure. Other times, couples are physically threatened if they refuse. Elsewhere, however, parents can get away with paying fines and bribing officials to avoid being sterilized. Others never have the request made of them at all. If a couple is considered particularly uncooperative, for example refusing to pay a fine or a bribe, or when they find themselves caught up in the local government’s campaign to crack down on violators of the policy, then sometimes they are forcibly taken away for the surgery.

[100]    The most significant report of systemic sterilisation in recent times comes from Puning City in Guangdong Province in April 2010. On 7 April 2010, family planning authorities in Puning launched a 20 day campaign, which aimed to complete 9,559 sterilisations. There is information available which indicates that thousands of sterilisations were successfully completed in Puning as a result of this campaign. The CECC stated that 5,601 sterilisations were completed during the initial two week sweep. The US Department of State referred to 8,916 sterilisation procedures being eventually completed.

[101]    There is conflicting information in the available reports regarding the specific group that was targeted by this campaign. For example, Amnesty International, in a report published on 22 April 2010, stated that the campaign had been commenced to “sterilize people who already have at least one child”. However, other reports of the Puning sterilisation campaign indicate that it was aimed at persons who had had more than one child. An explanation for this conflict in the various sources might be found in the information provided in a report by the Global Times, dated 16 April 2010. This article states that the persons targeted were those “not allowed to have a second or third child”. The report goes on to provide the further explanation that, under the rules in Puning, “farmers are allowed to have a second child if the first child was a girl”. In a report published on 17 April 2010, The Independent similarly stated that the campaign targeted persons “who are suspected of planning to have a second or third child”. This indicates that the persons targeted may either have had at least one child or two children previously, depending on their individual circumstances.

[102]    Information has been located which indicates that the nature and scale of this sterilisation program undertaken in Puning was highly unusual. There is also information indicating that the campaign was initiated in response to the particular conditions of Puning, where the enforcement of family planning policies had grown lax. The Marie Claire report states that the Puning sterilisation campaign “was unprecedented in recent Chinese history” and that, while forced sterilisation was an abuse associated with the one-child policy since its introduction in 1978, “this was a crackdown on an unusually large and draconian scale”. The same report also states that this campaign was launched because family planning in the Puning region had become lax due to strong economic development in the region, with Guangdong Province having a per capita income almost twice the national average.

[103]    The Population and Family Planning Regulation of Fujian Province does not explicitly state that mandatory abortion or sterilisation is required for out of plan births. Article 18 of the Regulations states that individuals who have unauthorised pregnancies should “take remedial measure in time” and that local committees “should urge them to take remedial measures in time”. The Regulations do not however provide further information as to what constitutes “remedial measures”.  As noted previously, the US Congressional Executive Commission on China’s Annual Report 2010 states that mandatory abortion is often referred to as “remedial measures” in government reports. In contrast, older DFAT advice from 2004 states that “Fujian’s provincial regulations on population and family planning do not impose compulsory abortion or sterilisation for people with a history of out-of-quota births, but rather observe that guidance on birth control methods and family planning should be available to all to prevent out-of-quota births”.

[104]    There have been some reports of incidents of forced sterilisations and abortions occurring in Fujian province in recent years (2007-2009). However, no recent information was found in the sources consulted on the prevalence of forced sterilisation and abortion within the province as a whole. According to 2004 DFAT advice, while forced abortions and sterilisations occurred in Fujian province at that time, such measures were much less common than in the 1980s.

9    As to the claim in relation to sterilisation, the Tribunal reasoned:

[114]    The first named applicant fears she will be forcibly sterilized because she has had more than one child. In assessing the applicant’s claim the Tribunal has had regard to the country information referred to above. The Tribunal finds that while independent information reveals that Family Planning regulations do not require compulsory sterilisation in Fujian for people who have out of plan children, the regulations do make reference to unspecified “remedial action” to enforce family planning laws.

[115]    The Tribunal notes that Amnesty International have reported in April 2010 on local authorities [sic] plans to sterilise up to 10,000 people in Puning City, Guangdong Province in southern China. The Tribunal notes that the sterilisation campaign was highly unusual and unprecedented in recent Chinese history and has been distinguished from other provinces in China.

[116]    The Tribunal accepts that there have been reports of forced sterilisations do occur [sic] in the Fujian Province in 2009. However, the country information accessed by the Tribunal does not suggest that forced sterilisation is a standard procedure within Fujian province. The Population and Family Planning Regulation of Fujian Province does not explicitly state that mandatory abortion or sterilisation is required for out of plan births and that needs to be distinguished from other parts of China. While accepting that forced sterilisations [do] occur, the Tribunal finds that based on the country information consulted no recent information was found on forced sterilisations occurring in Fujian province. Having regard to the country information, the Tribunal does not accept that there is a foreseeable chance the applicant will face sterilisation if she returns to Fujian province in China in the reasonably foreseeable future.

10    As mentioned, the Tribunal was not satisfied that Australia owed protection obligations on the basis of any of the other claims made and, accordingly, it affirmed the delegate’s decision.

11    The application for judicial review of the Tribunal’s decision was dismissed by the Federal Circuit Court. It is unnecessary to set out that court’s reasoning in circumstances where the appellants’ appeal is centred on the proposition that the Federal Circuit Court erred in failing to recognise jurisdictional error on the part of the Tribunal. The appellants do not raise on appeal any new basis for asserting the Tribunal did so err.

The Appeal

Summary of the appellants’ argument

12    The appellants’ case on appeal, as put in written submissions and refined during oral argument, was:

(1)    The Tribunal accepted that forced sterilisations did occur in Fujian.

(2)    The Tribunal concluded, however, that there was not a foreseeable chance that the mother would face a risk of forcible sterilisation if she returned to the Fujian Province.

(3)    In reaching that conclusion, the Tribunal gave the following three reasons, none of which was capable of rationally explaining why the first appellant would not face forcible sterilisation:

(a)    the country information accessed by the Tribunal did not suggest that forced sterilisation was a standard procedure within the Fujian province;

(b)    the Population and Family Planning Regulation of Fujian Province did not explicitly state that mandatory abortion or sterilisation is required; and

(c)    no recent information was found on forced sterilisations occurring in Fujian.

(4)    Accordingly, the Tribunal’s decision was relevantly “irrational”. The Tribunal failed properly to evaluate the relevant findings of fact and material before the Tribunal. The appellants submitted by way of example that the Tribunal needed to make findings as to what “cohort” of people faced a risk of sterilisation and determine whether the first appellant was within that cohort. Without evaluation of the country information and consequent findings of fact, there was no rational explanation as to how the Tribunal accepted that forcible sterilisation occurred in Fujian but at the same time found that there was no real chance that the first appellant would be subjected to such a procedure on return to Fujian.

Consideration

13    The appellants had to satisfy the Tribunal that the criteria for the grant of a visa were satisfied: ss 65(1) and 414 of the Act; Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 at [32] (Kenny, Griffiths and Mortimer JJ). If they did not, then the visa application had to be refused.

14    The appellants’ submission to the Tribunal in respect of the risk of forced sterilisation in Fujian had included:

… The country information tends to indicate that the authorities in Fujian province may be less likely than those in some other parts of the country to employ such coercive measures, but the information is not unequivocal. The information indicates that the pressures on officials are such that coercion may be exercised through imposition of fines, and the level of fines, even if there would be less prospect of physical coercion. Especially at her age and with her lack of support, therefore the applicant has a well-founded fear of harm in the form of “forced” abortion and sterilisation. Even if it is arguable that the process of abortion/sterilisation is legitimate law enforcement in China under family planning regulations, therefore people suffered forced abortion/sterilisation were not members of a particular social group for Convention purposes, as it is obvious a ‘Cruel or inhuman treatment or punishment’, the complementary protection should be offered to them.

15    The first appellant did not put a case that she was peculiarly at risk or that for some particular reason she was more likely than other women in Fujian with more than one child to suffer such treatment.

16    The Tribunal noted, at T[98] and T[99], that forced sterilisations occurred “unevenly” – that is, that the practice varied across China. The country information before the Tribunal did not suggest that forced sterilisations were a “standard procedure” in Fujian province. A report of “systemic sterilisation” in Puning City in Guangdong Province in April 2010 was “highly unusual and unprecedented” and was to be “distinguished from other provinces in China” and not relevant to the first appellant’s particular circumstances. The relevant family planning regulation in Fujian did not require or explicitly state that sterilisation was required for out of plan births which “need[ed] to be distinguished from other parts of China”. The Tribunal accepted that forced sterilisations occurred in Fujian in “recent years (2007-2009)” and that such procedures or events “do occur”, even though there was no more recent information in the sources consulted on the prevalence of forced sterilisation within the province as a whole. It accepted the 2004 DFAT advice that, whilst sterilisations occurred in Fujian at the time dealt with in the 2004 DFAT report, such measures were by then much less common than they had been in the 1980s.

17    The Tribunal was not satisfied on the material before it, which included material it had obtained and material furnished by the appellants, that the prevalence of forced sterilisation in Fujian in 2012, or in what was at that time the reasonably foreseeable future, was such that the first appellant faced a sufficient risk in that regard.

18    The Federal Circuit Court concluded at J[42]:

The country information, of course, also included that forced sterilisation was not a standard procedure within Fujian Province, nor that mandatory abortion or sterilisation was required for out-of-plan births and that this needed to be distinguished from other parts of China. I accept that the matter is one capable of being looked at in more than one way, but looking at the Tribunal’s decision fairly and as a whole, it seems to me that the Tribunal found that although sterilisations had occurred, and might still continue to occur, the applicant’s chance of being forced to undergo one did not amount to a real chance in the requisite sense. In substance, this was a factual finding that it was open to the Tribunal to make. It does not follow from the fact that a sterilisation or sterilisations had occurred in some indeterminate number in Fujian Province that it necessarily followed, without more and without qualification, that every person returned to Fujian Province faced a real chance of sterilisation.

19    The Federal Circuit Court did not err in so concluding.

20    The Tribunal did not fail to evaluate the material before it. It referred extensively to the material before it which was probative of the issue. Its conclusions were tolerably clear even if they could have been more clearly expressed.

21    The Tribunal was not obliged to have sought to identify particular “cohorts” of people who, in the past, had been forcibly sterilised in Fujian (less still in other parts of China) and assess whether or not the first appellant was within such a cohort. The Tribunal’s task was to address the claims made expressly and those which, even though not express, should have been obvious on the material before it. It was not contended on appeal that there were any claims in the latter category. The Tribunal dealt with the claim expressly made and did so in a manner which was not affected by jurisdictional error. It was not satisfied that the material before it established a sufficient risk to the first appellant.

22    A decision might be shown to be affected by jurisdictional error if:

(1)    no rational or logical decision-maker could have arrived at the decision on the same evidence; this cannot be made out if different minds might reach different conclusions: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [130], [131] (Crennan and Bell JJ);

(2)    there is no logical connection between the evidence and the inferences drawn: Fattah v Minister for Home Affairs [2019] FCAFC 31 at [45] (Perram, Farrell and Thawley JJ);

(3)    there is an irrational or illogical step in reasoning, at least where that faulty step can be shown to have affected a material conclusion: SZMDS at [132].

23    The appellants failed to satisfy the Tribunal that there was a sufficient risk of the first appellant being subjected to forced sterilisation in Fujian should she return. It was open to the Tribunal to conclude that, although forced sterilisations had occurred in Fujian in and before 2009 and “do occur”, the material before it was not such as to show that the occurrence of such treatment in Fujian was sufficiently prevalent as to expose the first appellant to the level of risk necessary to engage Australia’s protection obligations. The appellants expressly disavowed any ground of appeal to the effect that the Tribunal misunderstood the “real chance” test.

24    The Tribunal was not shown to have reached any irrational or illogical factual conclusion, or to have drawn an irrational inference, or to have reasoned in some irrational or illogical way in reaching the conclusion it was not satisfied there was a real chance or risk of the relevant event occurring.

Conclusion

25    The appeal must be dismissed with costs.

Associate:

Dated:    13 May 2019