FEDERAL COURT OF AUSTRALIA

SZJTQ v Minister for Immigration and Citizenship

[2008] FCA 1938

ADMINISTRATIVE LAW – MIGRATION – judicial review – whether tribunal erred because it did not base its decision on a consideration of most recent country information available to it – general principle that, in absence of legislation to contrary, administrative decision-maker is required to make decision on basis of most current material available to him or her at time decision is made – requirement that tribunal give proper, genuine and realistic consideration to merits of case

MIGRATION – refugee and humanitarian visas – husband, wife and child applied for protection visas on grounds that, among other things, parents in contravention of China’s one-child policy – child conceived in China, born in Australia, claimed to fear of persecution in China by reason of his membership of particular social group, namely, “black children”

ADMINISTRATIVE LAW – MIGRATION – judicial review – refugee and humanitarian visas – whether tribunal erred because it did not make findings in relation to amount of social compensation fee likely to be imposed on parents for breaches of one-child policy, or time that child would be a “black child” while fee remained unpaid – tribunal speculated about possibility that fee that may be imposed and possible scenarios as to how long it might take parents to pay it – tribunal did not make any finding regarding whether or not there was a real chance that any particular fee would be imposed or that a fee would be so large or time for payment of any fee would be so long that child had well-founded fear of persecution as “black child”, if returned to China, because he would remain unregistered until fee was paid

Held:  Appeal allowed

Migration Act 1958 (Cth), s 91R(1)

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

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 followed

Craig v South Australia (1995) 184 CLR 163 followed

Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 applied

Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 followed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

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

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 cited

NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 distinguished

Shi v Migration Agents Registration Authority (2008) 248 ALR 390 cited

Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 cited

SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006)228 CLR 152 cited

SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 cited

SZIGH v Minister for Immigration & Citizenship [2008] FCA 1885 distinguished

SZJTQ v Minister for Immigration [2008] FMCA 1188 reversed

Telstra Corporation Ltd v ACCC [2008] FCA 1758 cited

VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 distinguished

VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 followed

VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 cited

VTAO v Minister for Immigration and Multicultural Indigenous Affairs (2004) 81 ALD 332;  [2004] FCA 927 cited

VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 distinguished

SZJTQ, SZJTR and SZJTS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1417 of 2008

RARES J

19 DECEMBER 2008

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1. The appeal be allowed with costs.
2. The orders made by the Federal Magistrates Court on 28 August 2008 be set aside, and, in lieu thereof, the following orders be granted:

(1)               an order in nature of an order absolute in the first instance for a writ of certiorari to quash the decision of the second respondent signed on 19 October 2006 to affirm the decisions of the first respondent not to grant the applicants protection visas;

(2)               an order in the nature of a writ of mandamus directing the second respondent to hear and determine the applications for review according to law; and

(3)               the first respondent pay the applicants’ costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     The appellants are a husband and wife and their third child, a son, S.  They have appealed against the refusal of the Federal Magistrates Court to grant them constitutional writ relief against a decision of the Refugee Review Tribunal signed on 19 October 2006 affirming the decisions of delegates of the Minister to refuse them protection visas:  SZJTQ v Minister for Immigration [2008] FMCA 1188.  The appellants were represented by a counsel before her Honour, but, unfortunately, appeared before me unrepresented with the husband, in effect, making submissions for his wife and their young child.  The husband and wife are citizens of the People’s Republic of China.  Their son was born here on 1 May 2001.  He claimed to be stateless.

Backgkround

2                     The wife arrived in Australia on 9 December 2000, pregnant with S, and applied for a protection visa in January 2001.  The delegate refused that application in March 2001 and the tribunal affirmed that decision in July 2002.  In March 2006, a judge of the Court, by consent, allowed an appeal from the Federal Magistrates Court, quashed the tribunal’s decision and remitted the wife’s claim to the tribunal.  This was in consequence of a concession by the Minister that the provisions of s 424A(1) of the Migration Act 1958 (Cth) had not been complied with by the tribunal in arriving at its original decision as explained in the decision of the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 150 FCR 214.

3                     The husband arrived in Australia on 11 August 2002.  He claimed protection visas on behalf of all three appellants in September 2002.  The delegate refused that application in November 2002 and he sought that the tribunal review the decision.  The tribunal affirmed the delegate’s decision.  The Federal Magistrates Court set that decision aside in June 2006.

4                     Earlier, in March 2002, S had applied for a visa, by his mother.  That was refused and the tribunal affirmed the delegate’s decision in April 2004.  Again, the Federal Magistrates Court set that decision aside by consent in June 2006.  Ultimately, the tribunal, reconstituted, heard all three claims for protection visas together.

The appellants’ claims

5                     In essence, the husband and wife claimed to fear persecution in China because, first, they had breached China’s one child policy and, secondly, they were Christians.  S based his claim to fear persecution in China by reason of his membership of a particular social group namely, “black children”.  This claim was that a “black child” in China is treated differently in consequence of that country’s one child policy.  This is claimed to be because black children are the victims of systematic and serious persecution as citizens of China by being denied household registration, access to food, education and health care beyond a very basic level:  Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 at 303-304 [30]-[32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

6                     The husband and wife also claimed that they had had a third child while in China, so that S was their fourth child, but the tribunal rejected that claim.  It found that S was the couple’s third child.  The tribunal rejected the husband’s claim to be a Christian.  It concluded that he had fabricated that claim.  It disregarded his practice of Christianity in Australia pursuant to s 91R(3).  It also found that he had lied in attempting to explain his ability to leave China without difficulty and that he was not a credible witness.  The tribunal concluded that it was not satisfied that he had a well-founded fear of persecution for a Convention reason.  The tribunal found that the wife had lied to the department and an earlier tribunal hearing concerning her identity and was not credible.  While it accepted that the wife was a Christian and a member of an underground church in China, it concluded, on the basis of independent country information, that she did not have a well-founded fear of harm for the latter reason.  Those considerations may now be put to one side as not relevant to her Honour’s decision or the issues which arise on this appeal.

The issues on this appeal

7                     Two grounds were argued by counsel who then appeared for the appellants before her Honour.  Those grounds were in their further amended application and their notice of appeal, namely the tribunal made a jurisdictional error in:

1.         finding that the [appellants] did not face a real chance of persecution as a result of their breach of the one child policy in China;

2.         failing to determine the father’s claim that he would keep on having children, and thus continually breach the one child policy.

8                     Thus, the issues for consideration by the trial judge were confined and discrete.  The crux of the appeal focuses on the tribunal’s consideration of the appellants’ claims concerning the one child policy as it affected each of them.  The tribunal accepted that the husband and wife were in breach of that policy because they had had three children, including S, who had been conceived in China.  Their position of breach of the policy is not affected by the tribunal’s rejection of their claim that they had a fourth child.

The first ground:  Did the tribunal err in its approach to the application of the one child policy to each appellant?

9                     The tribunal’s decision occupied 49 pages of very small close typing.  It extracted a great deal of material, sometimes repetitiously.   The critical reasoning in its consideration of the one child policy was attacked on five bases below, which were repeated in the notice of appeal.  These bases are:

1.         The tribunal erred because it did not have regard to the most recent country information currently available to it.

2.         The tribunal erred in finding that if the appellants had to pay a social compensation fee under applicable Chinese law, that would not amount to persecution within the meaning of s 91R(1).

3.         The tribunal failed to enquire as to whether the social compensation fee was appropriate and adapted to a legitimate end so as to be a law of general application.  (The appellants relied on the decision of Merkel J in VTAO v Minister for Immigration and Multicultural Indigenous Affairs (2004) 81 ALD 332;  [2004] FCA 927 at [38]-[39].)

4.         The tribunal erred because it relied on the practice of authorities in Shandong Province as to payment of the social compensation fee identified in a Department of Foreign Affairs and Trade (DFAT) Report 404.  That report said that this practice accorded with the position that DFAT had found the previous year, 2004, in Fujian Province, whence the husband and wife came.

5.         The tribunal did not make findings in relation to the amount of the social compensation fee which was likely to be imposed on the parent appellants for their breaches of the one child policy, or the time that S would be a “black child” while any fee was unpaid.

The Tribunal’s reasons

10                  The tribunal accepted that S would have the status of a “black child” initially on his return to China.  However, it reasoned, on the basis of country information, that the status of a “black child” could be removed once the father paid a social compensation fee which would allow the child’s registration.  It accepted country information that all registered children were entitled to access to health and educational facilities, although a first child is given preference. 

11                  The tribunal concluded that it was satisfied that, like the general population in China, the parent appellants may suffer financial consequences for their breaches of the one child policy.  However, it concluded that “this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis” (emphasis added).

12                  The tribunal then went on to say that it was satisfied that it may not be unreasonable for the husband and wife to take steps to pay that social compensation fee that might be imposed in retrospect of their Australian born son, S, and any other children they had had in breach of the policy.  It said:

“While it may be that they may not be able to afford to do so immediately, general independent information accepted by the Tribunal suggests that postponement of the fee and the payment of it in instalments are possible (for example see DFAT report 404 … in regard to the Shandong Province Family Planning Regulations) and the Tribunal is satisfied that the chance you [sic] would face mistreatment [is] so serious and systematic to amount to persecution within the meaning of section 91R(1) of the Act is remote.”   (emphasis added)

13                  The reference to DFAT report 404 was significant, because it indicated that the tribunal actually had the report before it when it made its decision.  The detail of that report appears later in these reasons. 

14                  The tribunal went on to reason that it accepted other country information that it had put to the appellants in August 2006 in its letter under s 424A, written before the last hearing.  That information was that families with more than one child, for whatever reason, are common in China and that the objective of Chinese policies and regulations was to deter the high birth rate.  It accepted a DFAT assessment that once births had occurred “… our impression is that pragmatism would take precedence”.  It then said that:

“…the frequency of having two or more children and the shift away from the one child policy is widely known and is supported in other general independent country information (for example, the National Population and Family Planning Commission estimated the fertility rate is 1.8 births per woman in China, indicating that the majority of women in China are having two or more children (China Through the Lens dated 23 April 2004 accessed on 20 April 2005)).”

15                  The focus of much of the appellants’ attack before her Honour, and a matter which I raised with counsel for the Minister in the course of the appeal, was the next sentence in the tribunal’s reasons.  It was:

“The Tribunal also accepts independent information shows that there is a considerable relaxation of the one child policy in Fujian Province and almost one third of families in the four counties have three children or more children.”  (emphasis added)

16                  The tribunal gave no source for this assertion of a “considerable relaxation of the one child policy in Fujian Province”, but counsel for the Minister suggested to her Honour that it had come from a passage in the reasons of the delegate refusing the husband’s application for a protection visa on 28 November 2002.  The delegate there said:

“The most recent UK report noted that Fujian province is lax in implementing the birth control policies;  enforcement was less effective than elsewhere and enforcement of sanctions proved ineffective with one third of families having three children or more.  Although fines, to offset the social costs of extra “out of plan” children are high, extracting such fines from villages was difficult.”

The source given by the delegate was of a China country assessment made by the United Kingdom Home Office Country Information and Policy Unit in April 2002.

17                  Immediately after making its finding of a “considerable relaxation of the one child policy in Fujian province”, the tribunal continued with the following:

“Accordingly, and notwithstanding the arguments put forward by the [husband] including in his statement received by the Tribunal on 4 September 2006 about the claimed … operation of the population and birth control regulations in Fujian, and other claims and explanations of the [wife] … the Tribunal is satisfied that any claimed difficulties that the [appellants] may have because the [wife breached previously the one child policy on one occasion] … and the out-of-plan birth of the third named Applicant in Australia his parents had breached the one child policy in China is not a well well-founded fear of persecution would not be serious harm amounting to persecution for a Convention reason on this basis.  It follows from the abovementioned country information put to the Applicants in its submission [sic] of 10 August 2006 and accepted by the Tribunal that it does not accept that there is a real chance that [S] would be subjected to serious harm amounting to persecution for this or any other reason (including because he belongs to the particular social group called ‘black child’ or ‘black children’) if he goes to China or would not be able to be registered;  would be denied access to a national identity card and therefore he would not have access to a wide range of government and other jobs;  or he would be denied basis [sic] human rights, social service, demotion and access to free education and medical services sufficient to be serious harm amounting to persecution for a Convention related reason.”  (emphasis added)

18                  The “submission of 10 August 2006” is apparently a reference to a letter the tribunal sent to the appellants on that date pursuant to s 424A of the Act.

DFAT Report 404

19                  DFAT report 404 was released to the tribunal on 6 September 2005 in response to the tribunal’s request for information regarding the application of family planning regulations in Shandong Province.  The report was succinct, covering little more than one A4 page.  The department reported there, that the Shandong Province family planning regulations provided penalties for urban and rural residents who breached the one child policy.  The penalty was a “compensation fee” of either between half to ten times the previous year’s average per capita disposal income for respectively urban or rural residents in the province or of the person’s actual income in the previous year, whichever was higher (par A).  The size of the penalty depended on the nature of the case and the severity of the violation of the regulations.  The DFAT report 404 went on to say:

“B        The Shandong Family Planning Commission informed us that it strictly enforces family planning regulations in Shandong and it had no practice of waiving or reducing the compensation fee.  But if the families are under a certain income threshold, the compensation fee can be postponed or paid by instalment.  We have not been able to find any evidence or authorities waiving these penalties, but this does not rule out the possibility of waiver or reduction.

…

E          The child would be able to register for a residents permit (“hukou”), provided her parents paid the compensation fee outlined in paragraph A.  The Shandong Family Planning Commission told us that all births must be registered with the local public security authorities.

F          The regulations do not prescribe any penalty against children born out-of-plan.

G         China does not have a national medical health insurance system, thus registration is not relevant to accessing health care.  We understand unregistered children can attend school in most cases, but may face restrictions on which schools they can attend and must pay higher tuition fees.

H         This information accords with information we provided in 2004 regarding family planning regulations in Fujian Province ….”  (emphasis added)

Up-to-date information 

20                  The appellants argued that the tribunal had ignored or failed to consider DFAT report 404 because it gave no reasons or source for the finding that there had been a “considerable relaxation of the one child policy in Fujian Provence” when DFAT report 404 suggested that the policy was strictly enforced.  The tribunal was actually aware of that report since it referred to material in it for other purposes on the same page of its reasons.  Her Honour held that the tribunal’s finding of a “considerable relaxation” was consistent with the 2002 Home Office Country Report:  SZJTQ [2008] FMCA 1188 at [51].  The trial judge said that the tribunal was entitled to form its own views as to the accuracy and weight of country information, relying on NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at 440 [81] per Young J with whom Gyles and Stone JJ agreed.  Young J had said that it was not for the Court to reconsider the tribunal’s factual findings as to an applicant’s claims and what country information was relevant to the tribunal in determining whether those claims gave rise to a well-founded fear of persecution.

21                  Her Honour said that no authority had been cited to her in support of the proposition that the tribunal was under an obligation to make its decision on the basis of the most country information reasonably available to it.  She said that in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 Sundberg, Marshall and  Weinberg JJ had held that the tribunal had no obligation “to seek out or act upon more recent information” at [25].  The trial judge said that it was open to the tribunal to prefer particular country information in arriving at findings of fact and that no jurisdictional error would be established if it did so or gave different weight to various items, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 among other authorities. 

22                  Her Honour also noted that the tribunal also had information before it from an April 2005 UK Home Office Report on China:  SZJTQ [2008] FMCA 1188 at [58].  That report stated that actual implementation of China’s population control policy varied considerably throughout the country and “that some people in southern Fujian and Guangdong provinces had reported no problems in returning after having children abroad”.  The tribunal had also referred to information from DFAT, given in November 2000, that it was unaware of any difficulties for people who returned to China from overseas with more than one child and that “[o]nce births have occurred, our impression is that pragmatism would take precedence”.  Her Honour found that the contents of the 2002 and 2005 Home Office reports concerning the Fujian regulations were not necessarily inconsistent with the conclusion that the tribunal reached:  SZJTQ [2008] FMCA 1188 at [60].  She noted that the 2005 Home Office report dealt with the position of a second or later child born out of China.

23                  The tribunal also referred to a 2001 study produced for the US Immigration and Naturalisation Service by Susan Greenhalgh, a United States expert on Chinese family policies, and Edwin Winkler.  That study said that Chinese couples who had an unauthorised child while residing abroad would, in most cases, not face penalties, but continued:

“If the woman became pregnant before leaving the country, the couple must pay the out-of-plan birth fine.  However, if the woman became pregnant while abroad for ordinary reasons, the couple is not fined.”

24                  Her Honour reasoned that DFAT report 404 was not necessarily inconsistent with the tribunal’s conclusion of a considerable relaxation of the one child policy in Fujian province.  She pointed to the other evidence before the tribunal, to which I have referred, which pre-dated and post-dated the 2002 Home Office Report.  The trial judge followed what she understood to have been the reasoning in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [64]-[73] per Lander J with whom Kiefel J at [8] and, on this issue, Grey J at [7] agreed.  Lander J said that it was not possible to contend that the tribunal had failed to have regard to two pieces of country information when it sought and obtained that information and made direct reference to it in its reasons.

25                  Lander J held that, in expressing conclusions, the tribunal did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion, and thus rejected a submission that the tribunal had failed to have regard to the information (VWFW [2006] FCAFC 29 at [72]).  He distinguished the facts of that case from that of a decision-maker who failed to take into account a relevant consideration which the decision-maker was bound to take into account, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.  He then concluded that the appellant’s argument was, in truth, one that the tribunal had failed to give sufficient weight to the information contained in the two documents and that that submission had to fail:  VWFW [2006] FCAFC 29 at [73].

26                  The trial judge concluded that, here, the tribunal had comprehensively reviewed all of the evidence before it and had not simply relied on an out of date or less current piece of information.  Her Honour rejected the appellants’ argument characterising it as being that the tribunal had failed to give sufficient weight to information contained in other documents.  She concluded that that did not amount to jurisdictional error.

Consideration:  Does the tribunal have to make its decision on the most current information available to it?

27                  In Peko-Wallsend 162 CLR at 44-45, Mason J (with whom Gibbs CJ at 30 and Dawson J at 71 agreed on this issue) said that, once it was accepted that the subject-matter, scope and purpose of the Act in question there indicated that the detriment that may be occasioned by a proposed land grant was a factor vital to the exercise of the Minister’s discretion, it was but a short and logical step to conclude that a consideration of that factor “… must be based on the most recent and accurate information that the Minister has at hand”.

28                  Mason J observed that considerable time might elapse between completion of the earlier report of a Commissioner and the time at which the Minister had to make a decision, which in that case was well over a year and a half.  He said that the change of circumstances may mean that the previous comments were no longer an accurate guide.  He continued (Peko-Wallsend 162 CLR at 45):

“It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.  In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made.  But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.

This conclusion is all the more compelling when the decision in question is one which may adversely affect a party’s interests or legitimate expectations by exposing him to a new hazard or new jeopardy.”  (emphasis added)

29                  The principle identified by  Mason J requires a decision-maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made, unless the legislation under which the decision is made excludes this duty:  Darling Casino Ltd v NSW Casino Control Authority (1997) 191 CLR 602 at 624 per Gaudron and Gummow JJ with whom Brennan CJ, Dawson and Toohey JJ agreed on this issue at 609;  see also Shi v Migration Agents Registration Authority (2008) 248 ALR 390 at 400 [42] per Kirby J.

30                  Recently, Buchanan J referred to the need for a decision maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made.  He described this as an “expected practice”, but in the circumstances of the matter he was deciding, he said that it was not necessary for him to consider the “expected practice ... as one in the nature of a jurisdictional imperative”:  SZIGH v Minister for Immigration & Citizenship [2008] FCA 1885 at [34].  This was because the tribunal had disbelieved the applicant for review in that case on matters completely unrelated to the more recent country information, which could not possibly have been relevant to events claimed to have occurred many years before. 

31                   Buchanan J was thus dealing with a factual context in which the recent material had no bearing on the outcome, and so the tribunal’s error in failing to have regard to it did not affect its exercise of power in determining the review.  I do not understand that his Honour was seeking to qualify the principle;  rather he was explaining why it had no bearing on the ultimate exercise of power by the tribunal on the facts before him. 

32                   I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice.  But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully;  i.e. in the manner authorised by the Parliament:  SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006)228 CLR 152 at 160-161 [25]-[26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.  A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation.  However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present:  SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at 618 [28]-[29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

33                  In VEAL v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 225 CLR 88 at 96 [16] Gleeson, Gummow, Kirby Hayne and Heydon JJ said:

“Because principles of procedural fairness focus upon procedures rather than outcomes, it is evident that they are principles that govern what a decision-maker must do in the course of deciding how the particular power given to the decision-maker is to be exercised. They are to be applied to the processes by which a decision will be reached.”  (original emphasis)

34                  Ordinarily, but not invariably, a failure to follow the procedures mandated by law necessarily affects the exercise of an administrative decision-maker’s power, because the decision will be arrived at in a manner outside that authorising it;  hence the need to pay particular attention in judicial review proceedings to the formalities of procedure in the path leading to the challenged decision.

35                  The Minister argued that the appellants’ complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404.  He relied on the reasoning on VWFW [2006] FCAFC 29 at [73].  He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration:  see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27]-[29] per Jacobson J.

36                  However, those cases did not apply or qualify the principle identified by Mason J in Peko-Wallsend 162 CLR 44-45 that “… an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made” and that should be the most current material available to the decision-maker.  Indeed, in VWFW [2006] FCAFC 29 at [68]-[69], Lander J noted there that the first item of country information relied on suggested that the previous information was still current, and the second item of country information relied on was consistent with the tribunal’s findings.

37                  More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones:  Peko-Wallsend 162 CLR at 39-42.  In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision “on the basis of the most current material available to [it]”:  Peko-Wallsend 162 CLR at 45.

38                  In my opinion, the critical question for the tribunal to decide under s 36(2)(a) of the Act is whether, at the date of its decision, the applicant for a visa is a person to whom Australia has protection obligations under the Refugees Convention.  An adverse conclusion can result in an applicant for review being returned to his or her country of origin, despite his or her claim to have a well-founded fear of persecution were he or she to return there.  And, if that occurs, he or she might be exposed to the possibility that the fear was in fact well-founded.

39                  Often, circumstances can change radically in the applicant for review’s country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act.  In this time period, repressive governments may be toppled, democracies may suffer coups d’état and continuing governments may change their domestic policies to become more or less oppressive.

40                  If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information:  Peko-Wallsend 162 CLR at 45.  This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (i.e. before him or her) supports a conclusion of persecution of adherents of that religion in the applicant’s country of origin.  Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered.

41                  The claim of a black person that he or she would suffer persecution for reasons of his or her race, by being subjected to slavery if he or she returned to one of the Confederate States in North America, would be viewed through very different eyes in 1861 and today.  And the aphorism that a week is a long time in politics is not a merely local observation.  The trend of events throughout the world is one of constant charge.  A decision-maker charged with the important function of assessing whether Australia owes protection obligations to an applicant for a protection visa cannot ignore recent, up to date information actually before him or her and make a decision on earlier material which may be out of date.

42                  Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction.  The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information.  And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it.  The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility.  The recent material may not be cogent, full, accurate or satisfactory.  But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand:  Peko Wallsend 162 CLR at 45.

43                  Of course, the Court cannot turn a review of the administrative decision into a review of the merits of the decision:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.  Their Honours said that proceedings for judicial review should not over-zealously scrutinise the reasons of the decision-maker.  Those reasons are meant to inform.

44                  The tribunal was obliged to identify the evidence on which its finding of “considerable relaxation of the one child policy” was based pursuant to s 430(1)(d) of the Act.  It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based.  However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case:  Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J;  see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities.

45                  Here, the tribunal was actually aware of DFAT report 404 and used it to conclude that postponement of the compensation fee and payment of it by instalments was possible.  Thus, it relied on the report in assessing the position of the appellants, were they returned to Fujian Province, as the basis for its conclusion that the family planning laws would be enforced in a way which permitted S’s parents to pay the social compensation fee over time.  Yet, the very same report stated, in the same paragraph from which the information relied on by the tribunal was taken, that the Shandong authorities strictly enforced the family planning laws.  And the report stated that this accorded with DFAT’s 2004 information regarding family planning regulations in Fujian province.

46                  When the tribunal said that it accepted that “independent information shows that there is a considerable relaxation of the one child policy in Fujian Province”, it provided no source for that assertion.  Its attribution of relaxation appears to derive from what it said next, namely that one-third of families in the four counties of Fujian province had three children or more.  The tribunal gave no reason for putting to one side the recent contrary information in DFAT report 404 that the laws were strictly enforced in both Shadong and Fujian provinces.   And, the tribunal used part of that report itself, so it obviously regarded it as providing some reliable information.  Of course, a decision-maker is entitled to accept some and not accept other parts of evidence from the same source, be it a witness or a document.

47                  The material supporting “a considerable relaxation” identified by counsel and accepted by her Honour below was out of date compared to DFAT report 404.   The latter contained information from 2004 in relation to Fujian Province. That was more recent than the 2002 UK information which the Minister argued the tribunal appeared to have accepted.

48                  The tribunal used its finding of “considerable relaxation” to reject the husband’s submission to it of 4 September 2006 about the population and birth control law of Fujian.  There he wrote that that law had been published on 30 July 2002.  The tribunal gave no reasons for rejecting the submission’s references to the Fujian law dated July 2002 as the law that applied in that province.  The tribunal did not give any consideration in its reasons to that law.  If it existed, as claimed, it could not have been the Fujian law considered in the April 2002 UK Home Office report because that ante-dated July 2002.

49                  The tribunal was so impressed by its “submission” in its s 424A letter of 10 August 2006 that its reasons do not reveal that it gave, any, let alone, proper, genuine and realistic consideration to the merits of the appellants’ claims on the one child policy.  It did not even refer in its reasons to whether it had considered the law which the appellants expressly put to it before rejecting their claim on the unsourced basis that there had been “considerable relaxation” of the application of some unidentified Chinese laws.  Moreover, the appellants’ claims of strict enforcement were supported by up to date, as at 2004, material on the Fujian position in DFAT report 404.

50                  The tribunal failed to have regard to or give any reason for rejecting the recent country information in DFAT report 404 that the one child was strictly enforced in Fujian Province, contrary to its assertion that there was a “considerable relaxation” of that policy.      Yet it used the up to date information from the same source for the purposes of finding that the social compensation fee could be paid in instalments.  It did not give genuine, proper and realistic consideration to the merits of the appellants’ claims as to enforcement of family planning law in China.  Although the Minister argued that this was a matter either of weight or selection of evidence, I am satisfied that the tribunal ignored the most up to date and recent material available to it in DFAT report 404:  Peko-Wallsend 162 CLR at 45.  Accordingly, I am of opinion that the tribunal made a jurisdictional error and her Honour erred in failing so to find.

Other bases for challenging the Tribunal’s findings on the one child policy

51                  The appellants criticised the tribunal’s use of DFAT report 404 in relation to the practice in Shandong Province for payment of the social compensation fee.  For the reasons I have given, the tribunal was entitled to use this up to date information to the extent it did.  While it did not have to accept the information, it had to base its decision on it:  Peko-Wallsend 162 CLR at 45.  I reject this argument.

52                  The appellants also argued that the tribunal erred in failing to find that imposition of the fee would be persecutory of them.  I am of opinion that this ground is without substance.  The tribunal concluded that the fee was imposed by a law of general application.  Her Honour concluded that this argument was an attack on the merits of the tribunal’s decision.  I agree.

did the Tribunal make any findings on when the social compensation fee would be paid for “S”?

53                  The fifth basis on which the appellants challenged the tribunal’s rejection of their claims based on the one child policy was that it had not made findings about the level of fee that would be imposed on the appellant parents for their breach or how long S would remain unregistered.

54                  The tribunal accepted country information in many reports that stated that the Chinese authorities, first, applied the regulations dealing with the one child policy and, secondly, required payment of the social compensation fee (with the possible exception that the authorities might not apply the regulations and impose a social compensation fee in the case of a child conceived or, possibly, born out of China).  The tribunal found that such a fee would be likely to be imposed on the parents in respect of S, were they to return to China.  The Shandong regulations permitted a fee up to ten times the parents’ income to be imposed.  This may have required payment by instalments.  The tribunal did not make any assessment of the real chance of a fee of a particular amount being imposed, nor did it address the capacity of the parents to pay any social compensation fee, even by instalments, within any particular period of time.  As noted above, the tribunal discussed, at a high level of generality and speculation, the possible fee that may be imposed and possible scenarios as to how long it might take the appellant parents to pay it.  This process, however, did not result in the tribunal making any finding about these issues.

55                  There was nothing in the material before the tribunal or in its reasons to justify any conclusion that there was such a considerable relaxation of the enforcement of the Chinese family planning laws that the fee would not be required to be paid in full before S could be given household registration.  But, the tribunal did not address the question of what fee would be likely to be imposed and when the appellant parents would be likely to have paid it, so that S’s status as a “black child” would cease.  The function of the tribunal was to assess the real chance whether the fee would be so large and the time for payment of any fee imposed would be of such a lengthy period that S would suffer persecution, were he to return to China.  Until it addressed that question, it could not determine whether there was a real chance that S had a well-founded fear that he would be subjected to persecution as a “black child” because he would not be registered, were he to return to China:  Chen Shi Hai 201 CLR 293 at 303-304 [29]-[33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.

56                  Instead, the tribunal constructed a syllogism in its reasoning for rejecting S’s claim entirely.  First, it said that the status of a “black child” could be removed once the social compensation fee was paid.  Secondly, the authorities may impose a fee which the husband and wife may not be able to pay immediately, but they may be able to pay it by instalments.  Therefore, the tribunal asserted, there was no real chance that S would be treated as a “black child” because he would be able to be registered.

57                  The critical question which the tribunal avoided by its syllogism was whether there was a real chance that S’s household registration would not occur for a period of time sufficiently long, during which he would be denied access to State services ordinarily provided to children and citizens, so that he would suffer serious and systemic discrimination as a “black child”.  The tribunal made no finding at all about what the parents might be required to pay, let alone how long it would take them to pay that sum.  The tribunal did not make any finding that the family planning laws were not enforced in relation to the payment of the social compensation fee.  If there were a real chance that S would not be able to be registered for some substantial period due to the size of the fee and the time it would take for his parents to pay it in full, then it is difficult to understand how the tribunal could have come to the conclusion that S faced no real chance of being subjected to serious harm amounting to persecution.  This was because he would be a “black child” unless and until the fee was paid in full.

58                  All the tribunal did was to conclude that it was hypothetically possible that S might be registered, once the fee was paid.  That was not the issue for the tribunal.  It failed to consider the clearly articulated claim made by the appellants, in particular by the parents on behalf of S, that there was a real chance that S would not be registered at all or for some time because the parents had breached the one child policy with the consequence that S had a well-founded fear of persecution as a “black child” amounting to serious harm for a Convention reason.

59                  I am of opinion that her Honour erred in concluding that the tribunal did address the real chance test.  She accepted the Minister’s concession that the tribunal’s reasons suffered from verbal infelicity and looseness of language.  However, the tribunal’s reasons did not deal with the fundamental question which the tribunal was required to consider, namely whether S would be subjected to serious and systematic mistreatment amounting to persecution within the meaning of s 91R(1) of the Act because he would remain a “black child” whilever the fee was unpaid.  Her Honour said (at [86]):

“When the decision is read fairly and as a whole it is apparent that the Tribunal was finding that there was not a real chance that the [appellants] would be unable to pay the social compensation fee or would suffer serious harm if they did have to pay it.  Such a conclusion was consistent with the country information the Tribunal cited and no jurisdictional error is established on the basis contended for in relation to this aspect of the Tribunal [sic] reasons for decision.”

60                  Her Honour found, on her reading of its reasons, that the tribunal considered the impact of the possible obligation to pay the social compensation fee.  She said (at [97]) that the tribunal had regarded the imposition of a fee:

 “… as only a possibility in light of evidence that persons returning to China with more than one child may not necessarily face financial consequences.”

61                  I have been unable to identify any such finding in the tribunal’s reasons.  The tribunal said that it accepted country information in its “submission of 10 August 2006” about liability to penalties in respect of a child born abroad.  One of the specific statements quoted by the tribunal in its 10 August 2006 letter was that, “… the couple must pay the out-of-plan birth fine” for a child who had been conceived in China (my emphasis, see [23] above).  S was such a child.

62                  Her Honour also appears to have accepted that the tribunal made a finding “as to the ability of the [appellant] parents to pay the social compensation fee” (at [98]).  However, the tribunal made no such finding, nor could it have done so on its reasoning process.  This was because it only speculated by postulating the possibility that some unspecified fee may be payable, that that may be at a level which the parent appellants may not be able to afford immediately, and that it may be that they would then be given an instalment plan.  That non-sequitur did not justify the tribunal finding that there was no real chance that S would not be registered at all or within a reasonable time, having regard to whatever the fee or instalment period may be.  As Gleeson, Gaudron, Gummow and Hayne JJ said in Chen 201 CLR at 305 [36]:

“Nor can it be said, as the Tribunal suggested, that the appellant faces a real risk of persecution in China, not because he is a "black child", but because of his parents' financial situation. To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment. It may be that, if they had, the treatment in question could be viewed as appropriate and adapted to the implementation of China's "one-child policy" and not as persecution. However, that question is entirely hypothetical and need not be pursued in this case.”

63                  Here, the tribunal made no findings about the impact of any fee which might be imposed.  It therefore failed to pose or answer the correct question and committed a jurisdictional error:  Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.  Addressing that question may well have involved the tribunal dealing with the third basis on which the appellants argued it had erred.  That was that the tribunal had not enquired whether the fee was appropriate and adapted to a legitimate end so as to be a law of general application.  Her Honour rejected this argument finding that the tribunal had addressed the correct question in its speculation about what fee might be imposed.  It is not necessary to decide this issue.

The second ground:  Did the tribunal err by failing to deal with the father’s claim that he would continue to breach the one child policy?

64                  The second ground of appeal was that the husband would continue to breach the one child policy by having more children, were he to return to China.  The tribunal recorded that he had made such a claim during an earlier tribunal hearing.  Her Honour rejected this argument.  The tribunal did not expressly give separate attention to this claim but made a general finding that it was satisfied that the husband had manufactured his claims in order to make a claim for a protection visa and found that he was not a credible witness.    The trial judge held that, whether or not the tribunal addressed this matter as a separate claim, the tribunal dealt sufficiently with the possibility that the father might have further children in breach of the one child policy when it considered his other claims.  Ultimately, it concluded that it did not accept his claims and was satisfied that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason or that he would be persecuted for any Convention related reason if he returned to China now or in the reasonably foreseeable future.

65                  The trial judge noted that the tribunal had rejected the husband’s claim that he was of interest to the authorities in China, prior to his departure, by reason of his breaches of the one child policy and that it had found that the imposition of a social compensation fee, in accordance with the law generally applicable in China for breach of the one child policy, did not amount to mistreatment so serious and systematic as to satisfy the requirements of s 91R(1) of the Act.  Her Honour concluded that the tribunal’s findings sufficiently addressed the possibility that the appellant parents may have more children and that they would then suffer difficulties by reason of the application of the one child policy.  This ground was also advanced in the notice of appeal from her Honour.  I reject it for the reasons her Honour gave.

66                  Moreover, this claim was tied to the father’s claims of Christian beliefs which the tribunal rejected.  The mere fact that the husband might continue to breach the one child policy was not capable of making him a member of a particular social group:  Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225.  Thus, in my opinion, this claim could not have succeeded.  The only factual basis for the claim was that the father intended to continue to breach the one child policy and his Christian beliefs would not permit him or his wife to have abortions.  Once the father’s claim to be a Christian was rejected, his mere claim that he would have more children would not have been capable of making him a member of any particular social group identified by him in his claim.  For these additional reasons, I reject this claim.

Conclusion

67                  The appeal must be allowed.

Associate:

Dated:         19 December 2008