FEDERAL COURT OF AUSTRALIA

VXDC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1388

MIGRATION – Refugee Review Tribunal – whether finding of jurisdictional fact based on probative evidence – whether Div 4 of Pt 7 of Migration Act exhausts common law natural justice hearing rules, or only some of them

Migration Act 1958 (Cth), Div 4 of Pt 7, s 422B(1)

Acts Interpretation Act 1901 (Cth), s 15AB(1)(b)(i), (2)(e) and (f)

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

Australian Broadcasting Corporation v Bond (1990) 170 CLR 321 at 356 applied

Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 applied

Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28] applied

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

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443 applied

Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 applied

Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 at [25]-[26] cited

MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14] cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [36]-[40], [128], [181] discussed

NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [59] cited

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 applied

“Exploring the Limits of Jurisdictional Error” Justice P A Keane (2005)

VXDC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

VID 842 of 2005

HEEREY J

28 SEPTEMBER 2005

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a child now aged two years and seven months. He was born in Australia of parents who were citizens of the People’s Republic of China. His mother has resided in Australia since April 1995. His father came to Australia in December 1994 but died in January 2004.

2                     An application made on the applicant’s behalf for a protection visa was refused by a delegate of the Minister and that refusal was affirmed by the Refugee Review Tribunal. Review of the Tribunal’s decision is sought under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth).

3                     The applicant was the third child of his parents. As such he is regarded in China as a “black child”, that is to say an unregistered child whose birth contravened that country’s one child family policy. The Tribunal found that black children in China were a particular social group within the meaning of the Refugee Convention. However, the Tribunal found there was no real chance that the applicant would face persecution by reason of membership of that social group if he returned to China. An important element in the Tribunal’s reasoning was that the applicant’s mother would not be denied employment on return to China and thus would be able to support him. In coming to that conclusion, the Tribunal found, amongst other things, that the applicant’s mother had been able to work in China after the birth of her second child.

4                     The last-mentioned finding is said by counsel for the applicant to constitute jurisdictional error because

·        it was not based on probative evidence; and/or

·        the Tribunal denied the applicant procedural fairness.

Evidence before the Tribunal

5                     The parents of the applicant had their first child in 1985. In May 1993 they went to live in the United Arab Emirates. While living there they had a second child born on 24 June 1994.

6                     On 28 August 1994 the parents returned to China. In evidence before the Tribunal the following exchange took place between the Tribunal and the applicant’s mother, through an interpreter:

“Q Now where did you live in China before you came to Australia, Mrs [X]?

A Chen Chen [sic, presumably Tianjin] City.

Q Did you ever work in China and what was the sort of work that you performed?

A I finished my job or ceased to work in 1994.

Q Do you recall what month in 1994?

A In August I worked at a factory at the time my name has been removed. September.

Q Who were you working for?

A An electrical motors company.

Q What sort of work did you do?

A I worked in the factory kitchen.

…

Q How long did you work at that factory Mrs [X]?

A About five to six years.”

Findings of the Tribunal

7                     The Tribunal accepted that persons who do not comply with the population and family planning laws in China are subject to financial penalties in the form of “social compensation” fees for children born outside those laws. Such penalties could be substantial although there was evidence that parents might be exempt from paying them in cases of severe financial hardship. The applicant’s mother, returning to China with a child born abroad and her husband having died, would possibly be in severe hardship and it could be that she may be exempt from paying fees, as stated in the independent country information. The Tribunal also noted that Dr Susan Greenhalgh, a US expert on Chinese family planning policies, suggested that Chinese parents who have children born abroad do not face penalties on return to China.

8                     However, the Tribunal accepted that the applicant’s mother may be subject to the family planning laws. The Tribunal continued:

“The Tribunal does not accept that the applicant’s mother would be denied employment on return to China or be denied the capacity to earn a livelihood because of any Convention reason. It does not accept that she would be denied employment because she breached the one child policy, because she worked in the past in China after her second child was born (black child). In making this finding the Tribunal notes the applicant’s mother’s evidence that after her second daughter was born in the United Arab Emirates, the family returned to China and she worked in China until 1994, prior to coming to Australia, in a state owned organisation notwithstanding the fact that her daughter was not registered in China until 2003, when she and her husband sent money back to China for her registration. The applicant [sic] advised that she paid the higher private education expenses for her second daughter prior to her daughter’s registration many years later. The applicant’s mother’s employment was therefore not affected in China by the fact that she had her second child, her daughter born in the United Arab Emirates, who was a black child or by the fact that she breached the one child policy. Also the independent country information CX 71821 would confirm this. The applicant’s mother is a healthy 44 year old woman who worked in the public sector in China after having one black child, and if this did not stop her working for the state owned enterprise last time it would not stop her working now on return to China. There is no reason the applicant’s mother cannot work if she returns to China like she did in the past. The fact that she is semi skilled did not in the past nor would it in the future prevent her from working. The Tribunal does not accept that opportunities for a single mother to work in China would be rare. The Tribunal therefore finds that the applicant’s mother could find work in Tianjin, a coastal city, to support herself and the children, if not in a state owned enterprise, in a privately owned enterprise (DFAT advice 25 October 1999).

The Tribunal finds that the status of the applicant as a ‘black child’ can be removed once his mother pays a social compensation fee, which would allow his registration. The Tribunal accepts country information (CX71821: DFAT Advice, 9 January 2003) that all registered children are entitled to access health and educational facilities, although only-children are given preference.”

9                     The Tribunal went on to find that the applicant’s mother may face financial consequences such as the imposition of the social compensation fee. However, the Tribunal found that she could obtain employment and pay the fee. The mother would then be able to obtain household registration and access to basic social welfare services. In any case, if the mother did not pay the compensation fee the applicant could still access education, medical and other services by payment as had been the case with his sister. The Tribunal found this would not threaten the applicant's capacity to subsist. The Tribunal found that the imposition of the fee would not pose such serious harm to the applicant so as to constitute persecution and that the applicant’s mother would be able to meet all the expenses from her employment income.

The no evidence ground

10                  It is sufficient if there is some basis in the evidence for a finding, even though it may be arrived at by illogical reasoning: Australian Broadcasting Corporation v Bond (1990) 170 CLR 321 at 356. Indeed, unless the relevant fact can be identified as a “jurisdictional” fact there is no error of law, let alone a jurisdictional error, in making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36.

11                  In the present case, as counsel for the Minister submitted, a finding of fact would be critical, and thus jurisdictional, if it was essential to the reasoning by which the Tribunal came to the ultimate fact of satisfaction or non-satisfaction as to visa criteria under s 65 of the Migration Act: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28].

12                  Black children in China would be members of a particular social group (Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293) even though parents or would-be parents of such children would not (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225). Part of the applicant’s case was that he would suffer hardship, amounting to persecution, by reason of his membership of that group because his mother, as the mother of a black child, would be unable to obtain employment and thus would be unable to support him adequately. (There were other contentions, such as fear of being bullied by other children, which are not relevant for present purposes.)

13                  Accordingly, as was accepted by counsel for the Minister, the employability of the applicant’s mother on return to China was a critical, jurisdictional fact. This is the fact to which the “no evidence” test must be applied. In a paper delivered to the Federal Court Judges Workshop in August 2005 Justice Keane of the Queensland Court of Appeal observed that in conceptual terms our jurisprudence on the definition of jurisdictional fact

“…has not improved upon the distinction drawn by the Privy Council in Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443 between a fact that is ‘an essential preliminary to the decision-making process’ and a ‘fact to be adjudicated upon in the course of the inquiry’.”

14                  One of the reasons which the Tribunal relied on in coming to its finding as to the employability of the applicant’s mother was a subsidiary, or second Willan category,fact, namely that the mother had worked in the past in China after her second child, another black child, was born. This was not the only subsidiary fact, although it was an important one. There were others, such as the country information CX 71821. So it cannot be said that there was a finding of jurisdictional fact made without evidence.

15                  But even if the fact that the applicant’s mother had worked in China in the past despite being the mother of a black child was a jurisdictional fact, there was evidence to support the Tribunal’s finding. The passage from the evidence quoted above shows that the applicant’s mother had worked in China after her return from the UAR, albeit for a short time. The mother does not suggest that she was dismissed because she had a black child. As a fact finder the Tribunal could reasonably expect that, had the mother been dismissed for this reason, she would have seen such an event as directly relevant to her future fears for the applicant in China and would have said so. The applicant and his mother were represented by a migration agent. The Tribunal’s findings were not irrational or illogical.

Natural justice

16                  The same factual finding based this claim. The relevant ground of the application for review was that

“in finding that the applicant’s mother had worked in China after the birth of her second child the Tribunal denied the applicant procedural fairness by failing to indicate that the Tribunal proposed to make such a finding and giving the applicant through his mother an opportunity to respond.”

I will deal with this ground on the assumption that, in the context of a procedural fairness or natural justice claim, it does not matter whether or not the finding in question was one of jurisdictional fact.

17                  The rule of natural justice allegedly breached is the second of those identified by the Full Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592. The first is the right to rebut or comment on adverse material from other sources. The second is the obligation on the decision-maker

“to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.”

However, their Honours pointed out that a decision-maker is not obliged to

“expose his or her mental processes or provisional views to comment before making the decision in question.”

18                  Provisions of the Migration Act bear on this issue. Division 4 of Pt 7 is headed “Conduct of Review” (ie review by the Refugee Review Tribunal of protection visa decisions under Pt 7). Division 4 commences with s 422B which relevantly provides:

“(1) This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”

19                  The provisions of Div 4 of Pt 7 are:

·        s 423 – the applicant and the Secretary of the Department may give the Tribunal written arguments;

·        s 424 – the Tribunal may seek additional information;

·        s 424A – the Tribunal must give to the applicant particulars of “any information” which could provide a reason for affirming the decision under review, ensure the applicant understands why it is relevant and invite the applicant to comment on it. By subs (3) this obligation does not apply to information which is not specifically about the applicant or which the applicant gave for the purpose of the application;

·        s 424B – deals with the way in which the invitation to provide additional information or comment is to be given to the applicant;

·        s 424C – if the applicant does not provide comment within the time specified the Tribunal may make a decision without further action;

·        s 425 – the Tribunal must invite the applicant to appear before it to give evidence and present arguments;

·        s 425A – deals with the form of the notice of invitation to appear;

·        s 426 – the applicant may request the Tribunal to call witnesses;

·        s 426A – the Tribunal may make a decision if the applicant does not appear;

·        s 427 – the Tribunal may take evidence on oath or affirmation, adjourn hearings, summon witnesses, require medical examinations etc;

·        s 428 – the Tribunal may authorise another person to take evidence;

·        s 429 – the hearing is to be in private;

·        s 429A – evidence may be given by telephone or closed circuit television.

20                  The complaint of lack of procedural fairness or natural justice in the present case does not fall within any of the specific sections in Div 4. In particular, the Tribunal’s finding that the applicant’s mother had worked in China in 1994 was a conclusion (whether correct or not) on the available evidence; it was not “information” within the meaning of s 424A, a concept which imports the notion of some positive factual material: Tran v Minister for Immigration and Multicultural Affairs [2002] FCA 1522 at [25]-[26], MZWPK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1256 at [14].

21                  Accordingly, the following questions arise:

·        Can the applicant rely on residual common law bases of natural justice, and in particular the Alphaone identification of critical issue requirement?

·        If so, has there been a breach of that requirement in the present case?

Have common law natural justice hearing rules survived Div 4 of Pt 7?

22                  The first question turns on the meaning to be given to the words “in relation to the matters (Div 4 of Pt 7) deals with” in s 422B(1). Do they mean only the matters, insofar as they concern natural justice, covered by the subsequent specific provisions of Pt 4? Or do they mean all procedural aspects of the conduct of reviews? Many first instance decisions of this Court have considered these questions. Different conclusions have been reached. The provision can be considered at least ambiguous, perhaps also obscure. Consideration may therefore be given to material not forming part of the Act, including the Explanatory Memorandum and Minister’s Second Reading Speech: Acts Interpretation Act 1901 (Cth), s 15AB(1)(b)(i), (2)(e) and (f). (Note that sub-par (b)(i) of s 15AB(1), in contrast to par (a) and sub-par(b)(ii), does not require the Court to first ascertain “the ordinary meaning conveyed by the text” – understandably so, since by definition what is being considered is something which is ambiguous or obscure.)

23                  In the present case an enquiry into these extrinsic materials best takes a narrative form, commencing with the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.

24                  At the time of Miah the Migration Act contained subdiv AB of Pt 2, Div 3 headed “Code of procedure for dealing fairly, efficiently and quickly with visa applications”. The details of that subdivision are summarised by Gleeson CJ and Hayne J in their dissenting judgment at [36]-[40]. The subdivision contained much in the way of detailed prescription about providing information to visa applicants and related matters. But the actual words “natural justice” or “procedural fairness” did not appear. The majority (Gaudron, McHugh and Kirby JJ) held that the common law rules of natural justice had not been excluded. McHugh J said at [128]:

“It is highly improbable that the legislature intended to exclude all the common law requirements of natural justice from subdiv AB. There are no clear words to that effect….The subdivision sets out various formal procedures which the Minister may or must follow to ensure fairness to applicants. But subdiv AB does not declare that they exhaustively define the content of fair procedure.”

Likewise Kirby J said at [181]:

“It would require much clearer words than exist in Subdiv AB to convince me that the provisions of the Code exhaust the applicable rules of natural justice, although not mentioned and however important such requirements might be in the particular case.”

25                  The present Div 4 of Pt 7 and, as will be seen, provisions relating to other procedures under the Migration Act, were introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth). In par 1 of the Explanatory Memorandum accompanying the Bill for that Act it was said that it amended the Migration Act

“…to provide a clear legislative statement that specified ‘codes of procedure’ in the Act are an exhaustive statement of the requirements of the natural justice hearing rule.”

After referring to Miah, the Statement said that the codes were “an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with” which were the “codes of procedure relating to” various subject matters. Those different codes of procedure dealt with a number of decision-making functions in the Migration Act:

·        Visa applications at the primary decision-making stage: s 51A et seq;

·        Cancellation of visas based on incorrect information: s 97A et seq;

·        Cancellation of visas on certain grounds under s 116 such as being a risk to health, safety or good order of the Australian community: s 118A et seq;

·        Cancellation of visas of people outside Australia: s 127A et seq;

·        Review of decisions by Migration Review Tribunal: s 357A et seq;

·        Review of decisions by Refugee Review Tribunal: s 422B et seq.

26                  The Minister’s Second Reading speech referred to the introduction of codes of procedure into the Migration Act and continued:

“The purpose of each of these codes is to enable decision makers to deal with visa applications and cancellations fairly, efficiently and quickly.

It was also intended that they would replace the uncertain common law requirements of the natural justice ‘hearing rule’, in particular, which had previously applied to decision makers.

However, last year in the Miah case, the High Court found that the code of procedure relating to visa applications had not clearly and explicitly excluded common law natural justice requirements.

This means that, even where a decision maker has followed the code in every single respect, there could still be a breach of the common law requirements of the natural justice hearing rule.

A further consequence of the High Court’s decision is that there is legal uncertainty about the procedures which decision makers are required to follow to make a lawful decision.

The majority of the court emphasised that parliament’s intention to exclude natural justice must be made unmistakably clear.

It concluded that this intention was not made apparent in relation to the code of procedure for dealing with visa applications.

Therefore, the purpose of this bill is to make it expressly clear that particular codes in the Migration Act do exhaustively state the requirements of the natural justice or procedural fairness hearing rule.

This will have the effect that common law requirements relating to the natural justice or procedural fairness hearing rule are effectively excluded, as was originally intended.”

27                  Turning to the text of s 422B, one reading which, at the lowest, is open, is that “the matters” in subs (1) are procedural matters arising in the conduct of hearings by the RRT when it reviews “RRT-reviewable decisions” (see s 411(1)) under Pt 7. Division 4 is headed “Conduct of Review”. Its subject matter, what it deals with, is procedure, just as other divisions of Pt 7 deal with other aspects of RRT reviews. So s 422B(1) is saying that Div 4 is dealing with procedures and that the reader will find in the division all the law about the natural justice hearing rule (that being a procedural matter) in the conduct of such reviews (although nothing about other aspects of natural justice such as the bias rule: cf Miah at [43]). This meaning presents itself as plausible once one accepts, in the words of Lindgren J in NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456 at [59], that it is

“inconceivable that the legislature meant the displacement of the natural justice hearing rule to be co-extensive with, and not to go beyond, the precise text of the express protections of a procedural fairness kind…”

28                  But even if the construction advanced above is not the most literal one, departure from a literal construction in favour of one perhaps syntactically and grammatically less obvious can be legitimate. This is so even if the literal construction does not merit the opprobrious labels of absurd, extraordinary, capricious, irrational or absurd: Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ. Their Honours go on to say that the propriety of such departure

“…extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.”

29                  Cooper Brookes was decided before s 15AB was inserted in the Acts Interpretation Act in 1984. Since then the matters which can be relied on to ascertain legislative intent include Explanatory Memoranda and Second Reading Speeches.

30                  In the present case it is not easy to see how the drafters of the Explanatory Statement and the Minister could have made it any plainer that the intent of the 2002 amendments was to reverse the result of Miah and provide comprehensive procedural codes which made detailed provision for procedural fairness but excluded the common law natural justice hearing rule. Astute readers will notice the term “exhaust” is picked up from the majority judgments and included in the Statement and Speech, as well as in the amendments themselves.

31                  Moreover, essentially the same procedural codes were introduced for a wide range of administrative decision-making functions under the Migration Act, in many cases no doubt made by officers who are not legally qualified. Parliament cannot have intended that the uncertainties of the common law rules were, in some unspecified way and to some unspecified extent, to survive

If the rules survive, has there been a breach?

32                  In any event, there was no breach. Objectively considered, the employability of the applicant’s mother bore most directly on the prospects for the applicant in China and was open on the known material.

Orders

33                  The application will be dismissed with costs, including reserved costs.

Associate:

Dated: 28 September 2005