FEDERAL COURT OF AUSTRALIA

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 363

MIGRATION – application for protection visa – applicant claimed “one-child” policy of Chinese Government amounted to persecution for Convention reason – whether Tribunal’s reasons for refusing application disclosed jurisdictional error – whether Tribunal failed to afford applicant procedural fairness – s 424A(1) of the Migration Act 1958 (Cth) – applicant given particulars of information which were part of reason for affirming decision under review – applicant invited to comment on information – particulars and invitation oral and not in writing as required by s 441A – whether relief should be granted in exercise of discretion – whether exception in s 424A(3)(a) engaged – whether information “not specifically about the applicant or another person” – whether information “just about a class of persons of which the applicant or other person is a member”

Migration Act 1958 (Cth) ss 424A, 441A and 474

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) s 422B

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 referred to

Plaintiff S157/2002 v The Commonwealth (2003) 195 ALR 24 referred to

Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60 referred to

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301 considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to

Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82 referred to

Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57 referred to

VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 referred to

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 applied

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 referred to

Applicant in V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 referred to

Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 referred to

VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 considered

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 857 referred to

Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380 referred to

Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 471 referred to

Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570 referred to

Hussein v Minister for Immigration and Multicultural Affairs [2001] FCA 1532 referred to

VDAU OF 2002 (AN INFANT) BY HER NEXT FRIEND v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENEOUS AFFAIRS

V365 of 2002

WEINBERG J

24 APRIL 2003

MELBOURNE

THE COURT ORDERS THAT:

1.             The application be dismissed.

2.             The next friend pay the respondent’s costs of and incidental to this proceeding.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application by an infant, brought by her father as her next friend, for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a refusal by a delegate of the respondent Minister to grant the applicant a protection visa. 

2                     The applicant’s parents, citizens of the Peoples’ Republic of China, arrived in Australia in early 2000.  The applicant was born in this country some months later, on 31 October 2000. 

3                     On 7 December 2000 the applicant lodged an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”) with the then Department of Immigration and Multicultural Affairs (“the Department”).  It was claimed on her behalf that she faced persecution on the basis that she was the second of two children, and was therefore born in contravention of the “one-child policy” of the Chinese Government. 

4                     On 6 March 2001, a delegate of the respondent refused her application for a protection visa.  On 1 April 2001 the applicant applied for review of that decision.  On 10 May 2002, the Tribunal affirmed the delegate’s decision.

The applicant’s claims before the Tribunal

5                     The applicant’s father claimed, on her behalf, that as a child born in breach of the one-child policy, his daughter would face problems in gaining access to education and employment in China.  He claimed that her birth had not yet been registered with the Chinese authorities. 

6                     He further claimed that he personally would face a fine, detention and the demolition of his house for having had a second child.  He also claimed that it would be difficult for him, and for his wife, to regain employment, and to re-establish themselves economically given that they had lost their former jobs. 

7                     He claimed that these difficulties would exacerbate the persecution which the applicant would, in any event, suffer.  He also claimed that her situation would be rendered worse by reason of the fact that he and his wife followed the tenets of Falun Gong.  Finally, he claimed that the Chinese authorities would likely infer that he and his wife had applied for refugee status in Australia.  This would further exacerbate their daughter’s difficulties. 

The Tribunal’s reasons for decision

8                     The Tribunal accepted that the applicant had been born outside China’s one-child policy.  It observed that this policy had “universal application” and was implemented at the local level by officials acting under provincial regulations.  It accepted that the Chinese Government had a sovereign right to institute family planning policies and that those policies were not “inherently persecutory”.  It also accepted, however, that there had been some cases of forced abortion and sterilisation which were clearly of a persecutory nature. 

9                     The Tribunal referred to a range of country information about the enforcement of the one-child policy.  That country information suggested that the policy was designed to restrict population growth, and not to function as a punitive measure of general application.  Such instances, as there had been, of forced abortion and sterilisation had been carried out by zealous family planning authorities, contrary to government policy.  According to Chinese officials these had occurred only in remote rural areas and the number had declined since the early 1980’s.  Disciplinary measures against those who violated the policy included fines, withholding of social services, demotion and other administrative penalties such as loss of employment. 

10                  The Tribunal referred specifically to a Statement issued by the Department of Policy, Legislation and Regulations, State Family Planning Commission on 26 May 1992 (“the Statement”).  The Statement suggested that overseas students were, in fact, exempt from the operation of the one-child policy.  It noted the difficulty that Chinese students, studying overseas, might have in gaining access to timely advice and free availability of contraceptives.  It instructed overseas students who gave birth to more than one child to report that fact to the local consular authorities, and to provide an explanation regarding their failure to comply with the policy.  The Statement went on to provide that, after their return to China, students who had given birth to more than one child could apply to have their children registered provided they produced a certificate issued by the Embassy or Consulate indicating that they had complied with the particular policy regarding overseas students. 

11                  Importantly, the Statement concluded that students who had more than one child overseas would not be punished, or charged fees for the extra births, provided that the process of certification outlined above had been followed.  There was, according to the Statement, to be no discrimination against any student who complied with these directions. 

12                  For reasons which are not immediately apparent, the Tribunal then went on to refer to a body of country information concerning the status of illegitimate children born in China.

13                  The Tribunal concluded that any sanctions that might be imposed upon the applicant’s parents for their non-compliance with the policy would be, at most, financial.  It noted, however, that this was not to deny the possibility that the applicant might face various forms of social discrimination. 

14                  The Tribunal indicated in its reasons that it had some recollection of having read that children born in breach of the one-child policy might be denied pre-school education.  However, information cited in the applicant’s submission, dated 6 December 2000, indicated that the penalty was in the nature of a denial of a “nursery subsidy”.  The Tribunal said it could find no material suggesting that there would be any other detriment in relation to education.

15                  The Tribunal concluded that it was apparent from the country information that the applicant could be registered with the appropriate Chinese authorities.  It noted that her parents were both Chinese nationals, and that she too would be so regarded.  She was not, as her father had claimed, effectively stateless. 

16                  The Tribunal then returned to the status of illegitimate children in China.  The Tribunal said that it was reasonable to assume that the applicant would encounter social discrimination similar to that which illegitimate children confronted in a conservative society.  There was no material, however, to support a finding that the applicant would encounter consequences amounting to persecution. 

17                  The Tribunal then made the following critical finding:

“In weighing all the available information the Tribunal concludes that the applicant could face some detriment in education and the provision of medical care until she attains the age of seven years.  There is no material to satisfy the Tribunal, however, that she would be denied a proper education or access to essential medical services.  The Tribunal finds that to the extent the applicant might face detriment as a consequence of having been born in breach of the one-child policy the possible consequences for her fall well short of a definition of persecution.”

18                  While the Tribunal accepted that the applicant’s parents had lost their former jobs, it found that this was the consequence of their long absence from China, and was not attributable to any contravention on their part of the one-child policy.  Although accepting that they might face setbacks in their careers for having breached that policy, it concluded that neither the applicant’s parents, nor the applicant, would face economic or other consequences amounting to persecution.  The parents’ claims that they would face detention, and that their house would be demolished, was at odds with the clear weight of country information.  The chance that any consequences of this type might flow from the fact that they had conceived a second child was regarded as “entirely remote”. 

19                  The Tribunal then considered and rejected the other claims made by the applicant’s father regarding the applicant’s parents’ observance of the practice of Falun Gong, and the risk that the Chinese authorities might infer that he and his wife had sought refugee status in Australia.  It is unnecessary to deal with the Tribunal’s reasons for rejecting these claims.  They are not the subject of any challenge in this application for review.

20                  The Tribunal expressed its final conclusions regarding the applicant’s claims in the following terms:

“The Tribunal concludes there is no real chance of the applicant suffering discriminatory treatment, beyond that which might normally apply to children born outside the one-child policy, or of her encountering any consequences amounting to persecution due to having been born outside China’s one-child policy, due to any allegiance by her parents to Falun Gong, due to the Chinese authorities knowing of their application for a protection visa, or for any other Convention reason.”

Legislative context

21                  The jurisdiction of this Court in relation to decisions under the Act derives primarily from s 39B of the Judiciary Act 1903 (Cth) which relevantly provides:

“39B(1)    Subject to subsections (1B) and (1C), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

39B(1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)              in which the Commonwealth is seeking an injunction or a declaration; or

(b)              arising under the Constitution, or involving its interpretation; or

(c)               arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.”

22                  The Act, following its most recent amendments, creates a class of decision described as “privative clause decision[s]”.  These are defined in s 474(2).  It is common ground that the decision of the Tribunal, which is the subject of judicial review in this case, is at least on its face, a “privative clause decision”.

23                  Section 474(1) provides:

“474 …

(1)       A privative clause decision:

(a)          is final and conclusive; and

(b)          must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c)          is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.”

24                  This provision was considered by a Full Court, comprising five judges of this Court, in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449.  In Plaintiff S157/2002 v The Commonwealth (2003) 195 ALR 24 (“S157”) the High Court effectively overruled that decision:  Minister for Immigration and Multicultural and Indigenous Affairs v WAAG [2003] FCAFC 60, per Heerey and Kiefel JJ at [5].

25                  It is now clear, having regard to S157, that s 474(1) of the Act (the so-called Hickman clause) does not protect administrative decisions which involve jurisdictional error.  That is because such decisions are regarded, in law, as no decisions at all.  Gaudron, McHugh, Gummow, Kirby and Hayne JJ made this clear in their joint judgment when their Honours said at [76]:

“This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”.  Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision  … made under the Act” and is, thus, not a “privative clause decision” as defined in s 474(2) and (3) of the Act.”

26                  In WAAG, Heerey and Kiefel JJ said in their joint judgment at [5]:

“In essence S157/2002 holds that where there is jurisdictional error a decision is not “a decision … under this Act” and therefore s 474 does not prevent judicial review.”

27                  Gleeson CJ also noted in S157, in a separate but concurring judgment, that the failure to observe some procedural or other requirement of the Act did not necessarily constitute an error which would result in a failure to exercise jurisdiction or in the decision-maker exceeding its jurisdiction.  The effect of s 474 was to require an examination of the limitations and restraints found in the Act, and to determine whether the decision of the Tribunal did, or did not, involve jurisdictional error.  If it did, it would not be a privative clause decision as defined in s 474(2).

28                  It is also necessary, for the purposes of this application, to refer to s 424A of the Act.  That section relevantly provides:

“(1)     Subject to subsection (3), the Tribunal must:

(a)          give the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)          ensure, as far is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)          invite the applicant to comment on it.

(2)       The information and invitation must be given to the applicant:

            (a)        …. by one of the methods specified in section 441A; …

(3)       This section does not apply to information:

(a)          that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; …”

29                  Section 441A sets out the methods by which the Tribunal is to give documents to a person other than the Secretary.  Its practical effect is to require the Tribunal, when providing the information to which reference is made in s 424A(1)(a), and the invitation to comment in s 424A(1)(c), to do so in writing. 

The applicant’s submissions

30                  The applicant’s submissions essentially fell into two broad categories.  The first related to what were said to have been a series of jurisdictional errors on the part of the Tribunal which were apparent from its reasons for decision.  Four specific errors were identified.  They were:

·               the Tribunal’s use of country information that related to persons in the position of the applicant’s parents, and not to persons in the position of the applicant;

·               its use of country information relating to the status of illegitimate children in China which was said to be wholly irrelevant;

·               its description of the one-child policy as a policy of “universal application”.  This was said to be in stark conflict with a passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301 in which their Honours said that laws or policies of this type were not properly to be described as laws and policies of general application; and

·               its disregard of an important item of evidence submitted by the applicant in support of her claim relating to reports of “many ‘above quota’ children hav[ing] been killed in hospitals or orphanages”.

31                  The second related to what was said to have been a denial of procedural fairness.  It was submitted that the Tribunal had failed to comply with the requirements of s 424A(1) of the Act in that it failed to provide particulars of the Statement regarding overseas students which was information that formed part of the reason for affirming the decision under review, and also failed to invite the applicant to comment upon that information.

The respondent’s submissions

32                  The respondent submitted in relation to the first category:

·               that the Tribunal acted correctly in having regard to the consequences which might befall the applicant’s parents by reason of their contravention of the one-child policy.  This was because the applicant would be affected by any such consequences;

·               the evidence relating to “illegitimacy” was discussed by way of analogy only, and was not relied upon by the Tribunal;

·               it was inaccurate to describe the Tribunal’s treatment of the “one-child policy” as though it regarded that policy as being “a law of general application”.  The Tribunal correctly considered the impact which a contravention of that policy would have upon the applicant;

·               it was not necessary for the Tribunal to deal specifically with every item of evidence placed before it.  In any event, the evidence regarding children having been killed in hospitals or orphanages had no relevance to the applicant’s claims. 

33                  The respondent initially submitted in relation to the applicant’s procedural claim that s 424A(1) had been engaged because the information in question fell within the terms of the exception contained in s 424A(3)(a).  In a supplementary submission filed after the hearing of this application, the respondent contended that there was another answer to the procedural claim, namely that the Tribunal had given the relevant information to the applicant at the hearing before it, and invited comment upon it. 

Conclusions

34                  I reject the submission that the Tribunal’s reasons for decision reveal any of the jurisdictional errors claimed by the applicant. 

35                  A careful reading of the reasons demonstrates that the Tribunal was acutely conscious of the distinction between the matters raised by the applicant’s father which might impact both upon himself and his wife, and those which might impact directly upon his daughter.  It was plainly relevant for the Tribunal to consider the possible consequences, including economic consequences, which might befall the applicant’s parents upon their return to China when considering whether the applicant herself would face persecution.  There is no substance in this submission. 

36                  It is true that the Tribunal twice referred to the status of illegitimate children in China.  It is clear that it did so only by way of analogy.  It was obviously aware that the applicant had not been born out of wedlock.  It did not regard her situation as being any less serious than might otherwise be the case, based upon any false equation with some other group.  

37                  There initially appeared to be more substance in the next matter raised on behalf of the applicant.  That submission was based upon the following passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai at 301:

“Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application.  Certainly, laws which target or impact adversely upon a particular class or group – for example, “black children”, as distinct from children generally – cannot properly be described in that way.  Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.”

38                  However, if one examines what the Tribunal said regarding the one-child policy as having “universal application” in context, it becomes clear that it did not fall into the error alleged.  It did not reason that because the policy had “universal application”, the applicant could not be a member of a “particular social group”.  It did not suggest that if the evidence showed that the applicant would be subjected to “serious harm”, in accordance with s 91R(1), she would not be able to make good her claim for a protection visa simply because she would be treated no differently to any other child who fell into the same class. 

39                  In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 the High Court held that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.  The applicant’s submissions require this principle to be ignored, and to read a single phrase, not in context, and in a manner that distorts the Tribunal’s reasons when read in their entirety.  I am not persuaded that anything said by the Tribunal was in conflict with the passage from the joint judgment set out above.

40                  The last of the jurisdictional errors identified in the Tribunal’s reasons was its failure to refer to a sentence which appeared in a document provided by the applicant on 6 December 2000 in support of her claims.  The sentence appeared in a magazine produced by Amnesty International in April 1996, and read as follows:

“Many ‘above-quota’ children have been killed in hospitals and orphanages.”

41                  It is true that the Tribunal did not refer to this sentence when it summarised the various claims made on behalf of the applicant.  It did, of course, refer in detail to a number of other claims, and addressed each of them specifically.  Counsel for the applicant submitted that the Tribunal’s failure to deal with the matters raised in this particular sentence amounted to a constructive failure to exercise jurisdiction.  That failure was said to constitute jurisdictional error. 

42                  The short answer to that submission seems to me to be that the sentence in question did not amount to a claim made on behalf of the applicant.  There was no suggestion that, in the ordinary course, she would find herself in a hospital, where she might be killed.  It was also clear that, unless something dire occurred, she would be unlikely to find herself in an orphanage.  In those circumstances, there was no obligation upon the Tribunal to address what was, in effect, little more than an observation of a non-specific nature inapplicable to the applicant’s specific situation.

43                  In relation to the applicant’s procedural complaint (the second category), the basis for that complaint was that the Tribunal supposedly relied upon information contained in the Statement concerning overseas students being exempt from the operation of the one-child policy without affording the applicant an opportunity to comment upon that information.  The applicant submitted that the Tribunal had not afforded her an opportunity to comment upon that information, and thereby contravened s 424A(1).  As noted earlier, the respondent initially contended merely that the subsection was not applicable to information of this type.  That was because the information fell within s 424A(3)(a), being information that was “not specifically about the applicant or another person”, and “just about a class of persons of which the applicant or other person” was a member. 

44                  It was conceded on behalf of the applicant that her procedural complaint relied entirely upon the allegation that there had been a breach of s 424A(1).  No attempt was made to rely on any residual principles of procedural fairness which might be applicable:  Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82, Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74.  It should be noted that the Tribunal’s decision was delivered prior to the introduction of s 422B, by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), on 3 July 2002. 

45                  At the hearing of this matter, when this issue was argued, the respondent was given leave to file additional material relating to the transcript of the hearing before the Tribunal on 15 April 2002.  That was because it was unclear from the Tribunal’s reasons whether the Statement to which it referred had been drawn to the applicant’s attention during the hearing on that date. 

46                  The position taken on behalf of the respondent in the hearing before me was that the Statement did not attract the requirements of s 424A(1) because it fell within s 424A(3)(a).  The respondent submitted that the relevant information was “not specifically about the applicant or another person” and that it was “just about a class of persons of which the applicant or other person is a member” – namely, either children of overseas students (a class of persons of which the applicant was a member) or overseas students (a class of persons of which the applicant’s parents were members). 

47                  The respondent submitted that, in broad terms, the purpose of s 424A(3)(a) was to confine the statutory obligation in s 424A(1) to information which was specific, and not general.  The fact that country information contained a reference to one or more named persons, as it often did, did not necessarily mean that it should be characterised as being “specifically about … another person” for the purposes of s 424A(3)(a). 

48                  The transcript of the proceedings before the Tribunal on 15 April 2003 was annexed to the supplementary submissions filed on behalf of the respondent.  That transcript demonstrates that there was specific reference made to the Statement by the Tribunal, and that it was clearly indicated that overseas students could apply for registration of their children simply by obtaining a certificate from local consular officials.  There was also reference to the fact that such students were not punished or charged fees for extra births after their return to China, and it was said that there was no question of their being discriminated against. 

49                  The Tribunal then specifically invited comment upon the Statement.  The applicant’s representative responded to that invitation by submitting that the Statement might “not reflect the reality on the ground”.  He also pointed to country information which suggested that there was at least the possibility of social discrimination against a child born in breach of the policy but took the matter no further. 

50                  In these circumstances, it is clear that even assuming that the respondent’s primary submission regarding s 424A(3)(a) was rejected, and that there was a failure to provide the relevant information to the applicant and invite comment upon it, in writing, as required by s 441A, that failure was at best a technical one only.  There is no difference in substance between handing a copy of the Statement to the applicant’s representative, and reading its contents aloud, albeit in summary form, which is what occurred in this case. 

51                  In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 Mansfield J found that there had been a failure to comply with s 424A but said:

“[46]  The respondent’s failure to comply with s 424A, in the circumstances, has not in fact deprived the applicant of the opportunity to learn of material adverse to her claim or to comment upon it.  In practical terms, she has had the opportunity which s 424A is intended to provide.  The breach of s 424A is, in my view, not one which affected or which might have affected the outcome of her claim.

…

[50]    In this matter, I do not consider that the Tribunal’s error is one in respect of which I would grant relief under s 39B of the Judiciary Act in any event. The grant of such relief is discretionary: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Zhang v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 384; Aala at 91-92.  I have found that, in substance, the objective of s 424A has been achieved.  That is, I have found that the applicant has been provided with the degree of procedural fairness which the legislature intended.  The only missing feature is that she was notified of the information adverse to her claim and given the opportunity to comment upon it in a manner different from that which s 424A prescribed.  But the objective of the manner of notification in s 424A is to ensure that that notice and that opportunity were given.  Where that objective has been fulfilled, I regard the complaint of the applicant as a technical one only so that the particular breach has not deprived her of any benefit which she was intended to receive.  In the circumstances, I would decline to make any order under s 39B of the Judiciary Act even if it were not necessary to address s 474(1) of the Act.”

52                  I respectfully agree with the approach taken by Mansfield J.  I conclude that the applicant has not been denied the degree of procedural fairness which the legislature intended in the present case and, were it necessary to consider whether to grant relief under s 39B, I would decline to do so in the exercise of my discretion.

53                  This makes it unnecessary to determine whether the respondent’s primary submission that the Statement falls within s 424A(3)(a) should be accepted.  However, as the matter was fully argued before me, I consider that I should deal with it. 

54                  I accept that the Statement constitutes “information” that the Tribunal considered to be part of the reason for affirming the decision under review.  I also accept that the information was not “specifically about the applicant or another person”.  The first element of s 424A(3)(a) is therefore satisfied.  The question which remains is whether the information is “just about a class of persons of which the applicant or [another] person is a member”. 

55                  In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, Merkel J (with whom Ryan and Conti JJ relevantly agreed) said at [38] that s 424A should be construed “purposively”.  Further, his Honour said at [41] that the section should be construed having regard to its beneficial purpose in affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the Tribunal proposes to act, the significance of which the applicant may be unaware.  His Honour said that it was consistent with that purpose to take a narrow, rather than a broad, view of the exceptions in s 424A(3). 

56                  Al Shamry was concerned with s 424A(3)(b), and not as in the present case with s 424A(3)(a).  Nonetheless, Merkel J’s observation about the need to construe the exceptions in s 424A(3) narrowly is of general application. 

57                  Approaching the task of construction purposively, and with a narrow, rather than broad, view of s 424A(3)(a), there is still some difficulty in giving proper scope to the second limb of that paragraph.  The authorities which bear upon that point are of some assistance.

58                  In Applicant in V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536, Ryan J dealt specifically with a claim on behalf of the Minister that s 424A(3)(a) excluded from the reach of the Tribunal’s obligation information which it had that it was a common practice for Muslim and Christian applicants to furnish a death certificate to establish the death of any person, and that the applicant’s failure to conform with that practice would be part of the reason for affirming the decision under review.  His Honour held that the information in question was “just about a class of person” of which the present applicant was a member, and that the respondent’s contention should therefore be accepted.  See also Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 per R D Nicholson J at [49]. 

59                  In VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 Marshall J was confronted with a submission that information about the ability of the Afghan Government in exile to issue passports to eligible persons ought to have been conveyed to the applicant so that he might comment upon it, in accordance with the requirements of s 424A(1).  His Honour considered a number of the relevant authorities in this area.  He said:

“[21]  In Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 857, Von Doussa J dealt with a submission that the RRT had failed to comply with s 424A by relying upon information contained in a newspaper article without notice to the applicant. At [24] to [26], his Honour said as follows:

“I accept that the tribunal treated information in The Hindu article as relevant to the review, and took that information into account as part of the reason for affirming the decision under review.  However, I consider that the information which was taken into account is information to which s 424A(1) does not apply because it is information of the kind which comes within s 424A(3)(a).  It is correct, as the applicant’s case emphasises, that The Hindu article refers to another person, namely Amar Singh.  However it is not that aspect of the article which was relevant to the issue being considered by the tribunal or which formed part of the tribunal’s reasoning.  What was relevant was that the article identified an organisation known by a name which incorporated Kamagatu Maru as being part of a terrorist alliance.  That was the information which the tribunal considered might be part of the reason.  Insofar as the article also referred by name to another person, Amar Singh, it did so only by identifying that person as a member of the class of persons whose existence might be of relevance to the tribunal’s decision.  Accordingly the information fell squarely within s 424A(3).”

In Tharairasa v Minister for Immigration and Multicultural Affairs [2000] FCA 520 at [15] and [16] Carr J said:

“In my opinion, the language of s 424A is clear. Section 424A(1) is expressed to be subject to subsection (3).  Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or other person and is just about a class of persons of which the applicant or other person is a member.

I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter.  The country information upon which the Tribunal relied was not specifically about the applicant or another person and it was just about a class of person of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna from other parts of Sri Lanka.  In those circumstances, I do not consider that s 424A required the Tribunal to give particulars of this information to the applicant. Accordingly, I reject the applicant’s first ground.”

In my opinion, the present case is of the same kind as that considered by Carr J. Here the relevant class of person of which Amar Singh was a member was the class comprising members of an organisation known by name which included Kamagata Maru."

[22]    In Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380, Gray J accepted a submission that the RRT failed to comply with s 424A of the Act.  In Baig, the RRT relied on material from Agence France Presse without affording the applicant an opportunity to comment upon it. At [33] his Honour said that:

“Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant’s claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member.  It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election”” (emphasis added)

[23]    In Al Saqaf v Minister for Immigration & Multicultural Affairs [2002] FCA 6, Carr J held at [31] that information about the arrest of other members of the applicant’s clan fell within s 424A(3)(a) of the Act.  His Honour said that " (i)t was just information about a class of persons of which the applicant is a member.”

60                  Marshall J concluded that the information in question in VAAC was “not specifically about the applicant or another person”.  His Honour went on to determine that the information was “just about a class of persons of which the applicant or another person is a member”. 

61                  Although his Honour’s decision was ultimately reversed on appeal (on a ground that had not been argued at first instance) his reasoning relating to s 424A(3)(a) was specifically endorsed by the Full Court:  VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [20].

62                  Returning to the facts of the present case, the Statement contained “country information”.  It was produced in 1992.  It plainly was “not specifically about the applicant or another person”.  Indeed, it did not refer, in terms, or otherwise, to the applicant, or to any other person.  So much was conceded by counsel for the applicant. 

63                  The more difficult question is whether the information contained in the Statement was “just about a class of persons of which the applicant or other person [was] a member”.  Counsel for the applicant submitted that it should not be so characterised.  That was because it concerned the position of overseas students who contravened the one-child policy, and not children born under that policy.  The expression “or other person” should be construed narrowly to mean, in effect, only persons in the same category as the applicant, namely so-called “black-children”. 

64                  It seems clear that the phrase “or other person” in the second limb s 424A(3)(a) is linked to the phrase “another person” within the earlier part of the same paragraph.  Nonetheless, the expression “the applicant or another person” is contained within a limb which is directed towards individuals, whereas the second requirement, that the information be about a “class of persons of which the applicant or other person is a member” is directed towards a class or classes of persons, and not individuals.  The information contained in the Statement regarding overseas students is, as the respondent submitted, information about “a class of persons”.  The applicant is not a member of that class.  However, her parents were at all relevant times overseas students.  It was accepted that the fact they had completed their studies by the time the Tribunal dealt with this matter did not alter that position.  The issue is whether, in those circumstances, the information regarding overseas students is “just about a class of persons” of which “another person” is a member. 

65                  A number of cases have touched upon this issue, although none seem to me to be directly in point.  In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 857 von Doussa J concluded that the mere fact that the article in question in that case referred to a particular person by name did not prevent s 424A(3) from operating on its terms.  That was because the reference to that particular person was in reality “as a member of the class of persons whose existence might be of relevance to the tribunal’s decision”. 

66                  On the other hand in Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380, Gray J concluded that the material upon which the Tribunal relied did not fall within the exclusion in s 424A(3)(a) because it was not just about a class of persons of which the applicant or any other person was a member.  It bore specifically upon the question of the applicant’s involvement in campaigning in a by-election. 

67                  Counsel for the applicant referred to Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 471, in support of his contention that the second limb of s 424A(3)(a) was not satisfied.  Although there is a reference to the expression “another person” in [24] of the reasons for judgment of O’Loughlin J, the decision sheds little light upon the question of construction to be determined in the present case.  The same may be said of the other cases relied upon by the applicant, namely Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570 and Hussein v Minister for Immigration and Multicultural Affairs [2001] FCA 1532 per R D Nicholson J.

68                  It seems to me that, contrary to the submission of counsel for the applicant, the information regarding overseas students was “just about a class of persons” of which “another person” was a member.  The expression “other person” in s 424A(3)(a) is obviously not intended to be read literally.  It would otherwise render the section meaningless, since any country information which included a reference to any other person, as a member of a class, would destroy the effect of the exception formulated in that paragraph.  On the other hand, the expression cannot be defined so narrowly as to limit its scope to persons who are in essentially the same position as the applicant.  If it were construed in that way, it would render the expression largely tautologous. 

69                  The true position seems to me to be that the meaning of the expression lies somewhere between the competing contentions of the parties.  The “other person” to which reference is made is a person whose position “might be of relevance”, in a direct sense, to the applicant’s claims.  There is some support for this interpretation of the expression in the approach taken by von Doussa J in Singh to which I have earlier referred.  The applicant’s parents are members of a class (overseas students who have more than one child) which is plainly of direct relevance to the applicant’s claims.  The information in question is “just” about that class.  It follows that it satisfies both elements of s 424A(3)(a) and falls within the exception contained therein.  Accordingly, there was no obligation on the part of the Tribunal to invite comment upon that information, although of course it did so. 

70                  For all of the reasons set out above the application for review must be dismissed.  It was acknowledged that in the event that this application failed the next friend would be liable to pay the respondent’s costs.  I therefore order that the next friend pay the respondent’s costs.

Associate:

Dated:              24 April 2003