FEDERAL COURT OF AUSTRALIA

WZAOT v Minister for Immigration and Citizenship [2013] FCA 136

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

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

REASONS FOR JUDGMENT

overview

1    The appellant, a child born in Australia of parents who are citizens of the People’s Republic of China (PRC or China) and in contravention of the family planning policies of the PRC, applied for a protection visa under the Migration Act 1958 (Cth) (Act) in early 2011. Her application was refused by the Minister’s delegate and on review by the Refugee Review Tribunal (Tribunal).

2    The appellant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia, but her application was dismissed.

3    She then appealed to the Federal Court of Australia claiming errors of law on the part of the Federal Magistrates Court in failing to find that the Tribunal had committed jurisdictional error in:

    allowing the appellant’s mother and the migration agent appointed by the mother to represent the appellant to present evidence and make submissions on behalf of the appellant, when it should have adopted some other course, such as appointing an independent representative for the appellant; and

    not addressing the question whether there was a real chance that a social compensation fee would not be paid, as a consequence of which discrimination amounting to persecution against the appellant would follow.

4    The Court does not consider that appellable error in the decision of the Federal Magistrates Court in relation to these issues is demonstrated and so dismisses the appeal.

protection visa application

5    By an application lodged on her behalf in early 2011, pursuant to the Act, the appellant sought a Protection (Class XA) Visa on the basis that she was a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (Refugees Convention or Convention).

6    At the time the application was lodged, the appellant was a little over two and a half years of age.

7    The circumstances in which the application was lodged may briefly be stated. In 2006 the parents of the appellant arrived in Australia and soon after sought protection visas as refugees.

8    While her parents remained in Australia the appellant was born.

9    Subsequently, in late 2008 the appellant was granted a Bridging E Visa. It however expired on 23 January 2009. The appellant and her parents were taken into immigration detention in early 2011.

10    Soon after that the protection visa application was lodged on behalf of the appellant.

11    The claims for protection made in the protection visa application were summarised by the Minister’s delegate as follows:

    The appellant’s brother was born before her parents were married in contravention of the PRC’s family planning laws. Her parents had to pay RMB 16,000 to get household registration for him.

    The appellant had also been born in contravention of the PRC’s family planning laws. She will need to be registered to obtain child care and attend school in the PRC. The appellant’s parents will be subject to litigation and a heavy fine after her registration.

    The appellant will live under constant threats from local government due to her parents’ breach of the one child policy.

12    The protection visa application was refused by the Minister’s delegate.

13    The delegate found that the appellant was a citizen of the PRC. The delegate had regard to country information that stated that under Chinese law a child born overseas to at least one parent who is a citizen of the PRC is considered a PRC citizen at birth. The delegate considered there was no evidence indicating the appellant was not a citizen of the PRC. The delegate did not accept the claim therefore that the appellant was “stateless”.

14    The delegate noted that the appellant claimed to fear harm as a child who is unregistered (commonly called a “black child”) and who was born outside the limitations of the PRC’s family planning policies.

15    The delegate found that the Refugee Convention ground of “membership of a particular social group” (“black children”) was the “essential and significant reason” for the harm feared as outlined in Div 3, Subdiv AL of the Act.

16    The delegate noted that the appellant fears that she will be unable to get child care and a normal education in the PRC and also fears being under constant threats from the local government due to her parents’ breach of the one child policy.

17    The delegate also noted the appellant fears that her parents will be harmed, subject to litigation and a heavy fine.

18    The delegate noted that the appellant had made a number of claims about harm that may befall her parents on return. The delegate stated that in considering whether the appellant fears serious harm, the delegate needed to consider any harm her parents may experience only in its “possible flow-on effect” on the appellant.

19    In this regard, the delegate noted that the appellant’s parents pursued their claims for protection to the High Court of Australia and were ultimately unsuccessful. Accordingly, the delegate was satisfied the appellant’s parents did not have a well founded fear of Convention-related persecution on return to the PRC.

20    The delegate noted that it was implied in the appellant’s claims that she may experience harm due to her parents’ payment of a social compensation fee that would be required if she were to be registered in the PRC in order to gain access to usual services available to children born in conformity with the PRC’s family planning policies. The delegate noted that the appellant’s parents claimed they previously paid a social compensation fee of RMB 16,000 (about AUD 2,332) to register their first child in China.

21    The delegate considered that during the time the parents had been living in Australia it was a “not unreasonable assumption” that they had acquired more economic resources and so was satisfied that they would have less difficulty paying a social compensation fee on return to PRC than they faced with their first child.

22    The delegate also noted country information that indicated that any fee or fine arising from the birth of the child overseas to parents from the province in which the parents lived, may be quite modest.

23    Accordingly, the delegate was satisfied that the payment of a social compensation fee or a fine, if applicable, was not beyond the means of the appellant’s parents and that such a payment would not cause them or the appellant serious harm.

24    The delegate was also not satisfied that the appellant’s parents would be subject to litigation and fines after they paid the social compensation fee.

25    The delegate considered that once the payment of the social compensation fee was made, the appellant would be entitled to receive the same treatment and government services as any other registered Chinese citizen and that there was no information that the appellant would face ongoing discrimination amounting to serious harm once a registration fee was paid.

26    Ultimately, the delegate found that the harm feared by the appellant did not involve serious harm and systematic and discriminatory conduct as outlined in Div 3, Subdiv AL of the Act and so the appellant did not have a well-founded fear of persecution.

27    It should also be noted at this point that the protection visa application lodged on behalf of the appellant was lodged by a migration agent based in Sydney, with whom the Department of Immigration and Citizenship communicated in relation to the delegate’s decision-making processes.

28    The father of the appellant was also mentioned in the protection visa application and, it is accepted by the parties, signed that application.

review in the refugee review tribunal

29    Soon after the delegate’s refusal of the protection visa application, an application for review of the decision was lodged with the Tribunal on behalf of the appellant by the Sydney based migration agent.

30    As in the case of the protection visa application, the appellant’s father was instrumental in causing the application for review to be lodged. It will be recalled at this point that both the father and the mother of the appellant and the appellant were in immigration detention. It appears from the mother’s evidence in the Tribunal that the father was largely responsible for handling the family’s various protection visa applications and related proceedings to this point.

31    It also appears that the family was then held in immigration detention in Perth, Western Australia. An invitation to appear before the Tribunal was then given to the appellant with a hearing scheduled for 20 May 2011.

32    At that point a migration agent based in Perth became responsible for the appellant’s review application in the Tribunal.

33    The new migration agent together with the appellant and her mother appeared before the Tribunal on 20 May 2011. It seems that just prior to hearing on 20 May 2011, the Tribunal received a one page submission from the appellant’s new Perth based migration agent, noting that they had been given short notice to act on the appellant’s behalf.

34    At the first hearing, as set out in the Tribunal’s subsequent decision record, the appellant’s mother began by providing some personal information to the Tribunal about why she considered the appellant could not go to China.

35    It became apparent that the appellant’s father had recently fled from immigration detention. The appellant’s mother said that he had “disowned the applicant and her mother”.

36    The mother informed the Tribunal that the application for the protection visa had been signed by the father.

37    In the circumstances the Tribunal adjourned the hearing for a week to enable the mother and the migration agent to properly prepare for the hearing.

38    The resumed hearing was held on 27 May 2011. The Tribunal noted in its decision record, at [34], that the appellant’s mother “spoke on behalf of the applicant”.

39    The Tribunal also noted the “representative’s oral submission” at [52] and following.

40    The Tribunal also noted in its decision record, at [56], that after the hearing the Tribunal received further written submissions from the appellant’s representative.

41    In each case the reference to the appellant’s “representative” was a reference to the Perth based migration agent.

42    Ultimately, the Tribunal found that the appellant was not “stateless”, as claimed on her protection visa application, but was a national of the PRC, as the delegate had found.

43    The Tribunal also found that the appellant did not have the present right to enter or reside in any third country.

44    The Tribunal noted, at [88], that, in summary, it was claimed that the appellant will suffer serious harm and discrimination amounting to persecution because she is a member of the “black children” if she is forced to travel to China. It was claimed that she cannot go to China because if she goes there she must get a household registration in order to go to school and to get a normal education. It was claimed her parents would be subject to litigation and a heavy fine. It was further claimed that there is much news on the internet that family planning officers in the province where the appellant would live have perpetrated violent and cruel action against people. It was also claimed that if the appellant is sent to China she will live under constant threats from the local government due to her parents’ breach of the one child policy.

45    The Tribunal accepted that the appellant was a young child, less than three years of age at the time of hearing, and for that reason the Tribunal said, at [93], that it had taken evidence from her mother. The Tribunal stated that in doing so it acknowledged that a well-founded fear in a subjective sense can be derived from the fear held by the appellant’s parents.

46    However, at [94], the Tribunal found that the appellant’s mother’s evidence was unreliable and lacking in credibility because, in addition to inconsistencies in important parts of the evidence, the “applicant” – plainly a reference to the appellant’s mother – was vague in her recollection or description of aspects of her evidence. The Tribunal did not consider them to be supported by independent country information. The Tribunal was also critical of the mother’s account of her husband’s escape from immigration detention, and her claim that he had made no contact with her – which the Tribunal considered to be most unlikely. In that regard the Tribunal noted the five year long campaign of the appellant’s mother and father to secure permanent residency in Australia. It considered that the mother had shown a propensity to overstate or exaggerate. An example given by the Tribunal was that the appellant’s mother claimed that the social compensation fee would be six times the average annual salary of the relevant rural or urban area when in fact the rate is calculated in multiples of two or three times the average annual salary in relation to a second child.

47    The Tribunal accepted evidence that the PRC authorities have implemented a program of birth control and noted provincial regulations on family planning. In that regard the Tribunal accepted information that indicated that in general terms registration is necessary to access education and medical treatment in the relevant province. However, the Tribunal added, at [98]:

The information suggests that the problem of registration of children can be overcome by payment of a social compensation fee.

48    The Tribunal also accepted that the appellant’s parents, should they return to the PRC, may be required to pay a social compensation fee to register the appellant under the family planning policies.

49    More generally the Tribunal noted the family planning law of the PRC which states that “Citizens have the right to have a child (shengyu, ‘give birth’) and also have a duty to practice birth planning according to the law”. The Tribunal found that this was a law of general application, because it applies to all citizens. The Tribunal then made reference to Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 190 CLR 225 (Applicant A) which had held that a generally applicable law does not ordinarily constitute persecution for the purposes of the Convention. The Tribunal expressed the view that in Applicant A the Court found that enforcement of the PRC’s one child policy as applied to parents having only one child involved the non-discriminatory enforcement of a generally applicable law and thus was outside the scope of the Convention.

50    The Tribunal considered, at [104], that the family planning laws of the PRC “are appropriate and adapted to achieving a legitimate national objective in the context of China’s need to control its overall population growth” (in that regard the Tribunal referred to Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [43]-[45]). The Tribunal also referred to what Dawson J said in Applicant A at 244, which it summarised as being that the issue is not whether the laws infringe internationally recognised human rights but whether the persecution which the appellant and her family fear is for one or more of the five Convention reasons.

51    Ultimately, at [105], the Tribunal accepted country information that the enforcement of family planning policies and laws is uneven in China, but was not satisfied that the evidence before it suggested that they would be implemented or enforced against the appellant in a discriminatory manner.

52    The Tribunal then addressed the question of the payment of the social compensation fee, noting that the mother claimed she will not be able to pay the fee if she returns to the PRC with the appellant. The Tribunal stated, at [106], that it found that the mother “appeared unwilling to seriously entertain the payment of the [fee] for the applicant, including appearing to have a closed mind on borrowing money to pay the [fee] and then repaying the loan”.

53    The Tribunal said it considered the representative’s submission that the appellant’s mother does not have the credibility to obtain and repay a loan but rejected the submission as it found the mother presented as a determined person who is likely to be able to borrow money or get a loan, and to get a job if she “sets her mind to do so”. In that regard, the Tribunal noted that the appellant’s mother and father had earlier borrowed the money to register the first son born in breach of the family planning laws in the PRC.

54    The Tribunal accepted, however, that the circumstances might now be changed if the appellant and her mother returned to China without the appellant’s father. However, the Tribunal did not rule out the possibility that the mother and father might reunite. But even on the assumption they do not, the Tribunal was not satisfied that it would be unreasonable or beyond the mother’s capacity to make arrangements to pay the fee by way of earnings from employment or a loan and by way of instalments, or by a combination of methods.

55    The Tribunal particularly rejected the mother’s claim that the social compensation fee would be in the order of RMB 82,000 to RMB 124,000. Based on country information the Tribunal considered it may be as low as RMB 39,154.

56    In the event, the Tribunal, at [109], stated that it was not satisfied that the payment of the social compensation fee will cause serious hardship such as threatening the appellant’s capacity to subsist, or the appellant’s mother’s capacity to subsist for that matter, or any other harm for the purposes of s 91R(1)(b) of the Act.

57    The Tribunal also noted, at [110], that in considering whether the parents will be able to pay the social compensation fee if they return to China now or in the reasonably foreseeable future, it had taken into account the parents’ earning capacity. In the course of so doing, the Tribunal noted that it had not completely discounted the possibility that the father may return to China of his own accord, or forcibly, and will ultimately share in the liability for the social compensation fee. Ultimately the Tribunal found that there was not a real chance of persecution of the appellant or the appellant’s mother for reasons of the mother’s inability to pay the social compensation fee by instalments within the requirement timeframe.

58    The Tribunal further considered and rejected the mother’s claim that the family planning laws would be applied to the appellant and to her in a discriminatory way. It considered there was no evidence to suggest that either or both will have the relevant laws applied to them in a way that is discriminatory that constitutes persecution.

59    The Tribunal was not persuaded by the evidence that there would be some added penalty or harm on the basis that the appellant’s parents have already paid a fee for their non-compliance in relation to the birth of the first child.

60    The Tribunal further rejected a claim that was made by the mother that the family planning laws would be applied in a discriminatory way because, amongst other things, the appellant was born overseas.

61    The Tribunal also rejected a claim that the appellant would somehow be seriously harmed if her mother and she travelled to China and the mother were required to find employment to support herself and two children and also pay the social compensation fee. The Tribunal noted that the appellant’s mother did not suggest that the grandparents (who presently looked after the appellant’s older brother) could not continue to take an active role in caring for the appellant and her brother while she found work.

62    Finally, the Tribunal rejected a claim that there was a real chance that the appellant herself might be forcibly sterilised now or in the reasonably foreseeable future if she enters China.

judicial review application

63    In light of the decision of the Tribunal refusing the protection visa application, the appellant applied to the Federal Magistrates Court for judicial review. Three grounds were finally articulated in the judicial review application and written submissions made on behalf of the appellant:

1.    The Tribunal failed to conduct its hearing according to substantial justice and in a manner which ensured that the best interests of the child were a paramount consideration. Particulars were provided.

2.    The Tribunal failed to take into consideration the relevant real chance that the “applicant” would suffer persecution if her parents, even if they were able to do so, chose not to pay the social compensation charge, and in so doing exposed the “applicant” child to persecution. Particulars were provided.

3.    The parent’s financial resources, and how they may or may not be able to lessen the impact of the discrimination through provision of private education, health care and other services, is an irrelevant consideration when considering the existence, and effects of the probable persecution faced by the appellant.

64    The Tribunal first noted the obligations of the Tribunal in relation to hearings created by s 420, s 425 and s 422B(3) of the Act. Those provisions variously require the Tribunal to act according to “substantial justice and the merits of the case” (s 420(2)(b)), invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review (s 425(1)), and to “act in a way that is fair and just” (s 422B(3)).

65    The Court noted that in Minister for Immigration and Citizenship v SZMOK [2009] FCAFC 83; (2009) 110 ALD 15 (SZMOK) these various provisions or their equivalents were described as “exhortative” and not creating rights of or grounds of review. His Honour then noted that in Minister for Immigration and Citizenship v Li [2012] FCAFC 74; (2012) 202 FCR 387 (Li) the Full Court disagreed with that view expressed by the earlier Full Court. The Court in Li came to its view after analysing High Court authority.

66    His Honour, at [24], of his judgment then appeared to accept that s 420 and s 422B(3) are not exhortative but contain substantive requirements. But his Honour then noted, at [25], that another decision of the High Court, not discussed in Li, may put that proposition in doubt. His Honour referred to NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77; (2005) 228 CLR 470 (NAIS) where Gummow J said of s 420, at [35] and [36], that it did not “delimit boundaries of jurisdiction” and said that it was intended to be “facultative, not restrictive”. In other words the purpose was to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law. While his Honour noted that Gummow J was in the minority in NAIS, his Honour plainly considered that these observations were of more general application. Relying on the dicta of Gummow J in NAIS, his Honour, at [26], considered that “requirements” entailed by s 420 “manifestly do not delimit boundaries of jurisdiction”. As a result, at [27], his Honour stated that “it is difficult to consider myself as obliged to follow Li on this point”.

67    All of this discussion was by way of dealing with the first ground of judicial review in the way that it was put on behalf of the appellant, namely, that the Tribunal, pursuant to the various requirements of the Act, should have appointed a separate representative for the child and should not have relied upon the parents or the migration agent to represent the child’s interests.

68    His Honour, at [31] and [32], said of the proposition that the child should be represented by a person capable of understanding and promoting the issues relevant to the claim for protection, that “So much can be accepted in principle”. His Honour’s difficulty was stated as being able to identify any factor which made the mother (who he said was “represented by a migration agent”) unsuitable to fulfil that role.

69    His Honour considered that the child could not speak for herself and was not capable of forming the requisite “fear” of persecution. If she were to return to China it would be in the company of her mother and under her mother’s protection. Her mother was uniquely placed to give evidence and make submissions about the difficulties that may be experienced by a second (and female) child in the predicament of the appellant. His Honour added:

Furthermore, there was a confluence and not a conflict of interest between mother and daughter.

70    His Honour also noted, at [34], that no point was or could be made in relation to the capacity of the parents or either of them to bring an application on behalf of a child, referring to Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 (Re Woolley) at [103] (McHugh J) and Odhiambo v Minister for Immigration and Multicultural Affairs [2002] FCAFC 194; (2002) 122 FCR 29 (Odhiambo) (the latter case recognising that a minor may appear before a tribunal).

71    His Honour gave short shrift to the argument that there was a “legitimate expectation” in respect of the separate representative of the child, suggesting at [37] that such arguments should be considered limited once it is accepted that a Tribunal must comply with the rules of procedural fairness and also in light of the existence of s 422B of the Act.

72    Consequently, his Honour was not satisfied that there was legal error, jurisdictional or otherwise as to the relevant claim of procedural unfairness.

73    As to the next ground of review, his Honour considered, by reference to Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; (2000) 201 CLR 293 (Chen Shi Hai) at [36] that there was nothing inherently wrong with the Tribunal examining the question of the capacity of the parents to pay the social compensation fee.

74    His Honour considered that the Tribunal, at [106]-[110], had discussed in detail the question of the capacity of the parents to pay that fee and noted that the Tribunal came to the conclusion that the father would not return to China or proceeded on the basis of making that assumption in any event. It found that the mother will have the capacity to pay the fee within three years allowed for the payment.

75    His Honour found no legal or jurisdictional error associated with the Tribunal’s scrutiny of this aspect of the evidence.

76    Finally, the Tribunal considered the second ground advanced, namely that the Tribunal failed to take into account the relevant real chance of the appellant suffering persecution if the parents, whilst able to pay the social compensation fee, declined to pay it.

77    His Honour noted that the Tribunal found, at [110], that the burden of meeting the social compensation fee would fall on the mother and that it recognised the possibility that the father may return and voluntarily share the liability for the fee or may send money to China for that purpose (although it did not regard either of those outcomes as likely). His Honour, at [55], stated:

Whilst couched in terms of a failure to exercise the jurisdiction I consider the advancement of the second ground to be an invitation to take a different view in relation to these factual matters than the Tribunal in fact did and I do not regard that as an appropriate function of this Court on judicial review.

appeal to this court

78    The appellant now appeals against the decision of the Federal Magistrates Court on the following grounds, namely that the learned primary judge erred when:

1.    He failed to find that the Tribunal fell into jurisdictional error when:

1.1.     It failed to consider that the appellant child had a reasonable expectation that the application for review filed on her behalf would be conducted in accordance with her rights under the United Nations Convention and the Rights of the Child; and

1.2.     It failed to consider whether the circumstances of the case, including appellant child’s best interests, required that she be represented by an independent person other than her mother; and

1.3.     having failed to consider that issue did not consider adjourning the hearing and requiring the Secretary to seek or appoint such independent representation;

1.4.     it found that the appellant child did not have a well-founded fear of persecution if her parents were able to pay the social compensation charge, that being in the circumstances an irrelevant consideration; and

1.5.     failed to consider the relevant consideration that the appellant child’s fear that, even if they were able to do, the parents might elect not to pay the social compensation charge, was well-founded if there were a real chance that they might not pay;

1.6.     had regard to irrelevant considerations relating to the claim of the appellant child’s mother, who was not a party to the application for review;

1.7.     made credibility findings adverse to the mother on issues that were irrelevant to determination of the appellant child’s claim for protection;

2.     Held that he was not bound by the ratio decidendi of the Full Court in Minister for Immigration and Citizenship v Li, and so failed appropriately to determine whether the procedure adopted by the Tribunal complied with the requirements of section 420 the Migration Act 1958 (Cth):

3.     Characterised the complaint in relation to 1.5 above as an invitation to the Court to undertake merits review rather than, as submitted on behalf of the appellant child as a failure to take into account a relevant consideration.

4.     Characterised criticism of the migration agent appointed by the mother as charging incompetence, when the charge was that the deficiencies of the mother, as representing the child, were transferred to the migration agent in pursuing her interests by raising issues, and making submissions, which were irrelevant to the individual claim of the child for a protection visa;

5.     Failed correctly to apply the ratio decidendi of the High Court in Chen Shi Hai v Minister for Immigration & Multicultural Affairs in holding that the ability of the appellant child’s parents’ ability to pay the social compensation charge was a relevant consideration to the issue whether she held a well-founded fear of persecution.

79    The appellant effectively grouped the grounds of appeal into two categories, those dealing with procedure and those dealing with persecution.

80    The grounds of appeal in 1.1, 1.2, 1.3, 2 and 4 seek to advance the appellant’s argument that the Court below failed to identify jurisdictional error in the procedure adopted by the Tribunal when it failed to require a separate representative – being neither the mother nor the migration agent – to represent the interests of the appellant child.

81    The remaining grounds of appeal – 1.4, 1.5, 1.6, 1.7, 3 and 5 – generally relate to the persecution contentions.

the procedural grounds – the separate representation of the child issue

82    So far as the collection of grounds of appeal in relation to the procedural issue is concerned, counsel for the appellant points to various statutory provisions or other international instruments to support a contention that the Tribunal was bound to adopt a procedure that accorded her procedural fairness and took her best interests into consideration when adapting a procedure to suit her needs as a small child. In short, on behalf of the appellant it is submitted that the Tribunal failed to meet its various obligations in this regard by allowing the appellant’s mother and the migration agent appointed by the mother to represent the appellant to present evidence and to make submissions on behalf of the appellant, when it should have adopted some other course, such as appointing an independent representative or referring the need for the appointment of an independent representative to the secretary of the department, for example pursuant to s 427(1)(d).

83    There is no doubt about the statutory obligations imposed on the Tribunal to accord procedural fairness and to conduct a fair hearing. The obligations to do so arise squarely under the Act and apply in all cases. For example, s 420(1) provides that the Tribunal in carrying out its functions is to pursue “the objective of providing a mechanism of review that is fair, just, economical, informal and quick”. Because the obligation under s 420(1) is to pursue objectives, some of which may be competing, one can understand the dicta of Gummow J in NAIS to the effect that s 420(1) may not delimit jurisdiction.

84    Section 420(2)(b), however, further provides that in reviewing a decision the Tribunal “must act according to substantial justice and the merits of the case”. The term “substantial justice” is concerned with the decision made on the issues raised in a case rather than the process of deciding them: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [178]-[179] (Callinan J).

85    Section 425 requires the Tribunal to invite an applicant to appear before the Tribunal to give evidence and present arguments. Section 425(1) expressly provides that:

The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

86    It may be argued that if the Tribunal asked some person other than the relevant applicant to appear in accordance with this provision then it will have failed to meet the obligation to invite the applicant and so to provide the applicant with the right to be heard.

87    In this case, a matter that will be considered further below, the appellant, being at material times a very young child, did not make the application personally but with the assistance of her father and the Sydney based migration agent and later with the assistance of the Perth based migration agent. It is a matter of fact, having regard to all the circumstances, whether or not s 425 was not complied with in this case.

88    Finally, s 422B(3) is also relevant as it provides that, “the Tribunal must act in a way that is fair and just”. What is “fair and just” must depend on the circumstances in which it is alleged that the Tribunal failed to meet this statutory obligation. Unlike s 420(1), this is a substantive requirement that is not meant merely to free the Tribunal from rules that usually govern courts. It has substantive application.

89    In the Court below his Honour discussed authorities touching upon the extent to which provisions such as those found in s 420 and s 422B(3) that require that fairness and justice are merely exhortative or provide substantive hearing standards. I consider there can be little doubt that s 422B(3), at best, is not a flourish and is not exhortative. To that extent, unlike his Honour in the Court below, I would prefer the views expressed in the Full Court in Li over those expressed in the earlier decision of the Full Court in SZMOK, at least in relation to a provision such as s 422B(3).

90    It should be recognised, however, that the debate about these provisions is a little arid, at least in the circumstances of this case, when one understands that s 422B(3) quite specifically requires the Tribunal to act “in a way that is fair and just”. That requirement cannot be described merely as facultative, as his Honour, Gummow J, said s 420 was. It has substantive application.

91    I should also note that counsel for the appellant seeks to draw some similar obligation to act fairly towards the appellant child and to protect her interests by reference to the terms of the Convention on the Rights of the Child, to which Australia is a party. The argument put here, is that having regard to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 (Teoh) and Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 (Lam), there should be considered to have been a reasonable expectation that the rights of a child, here the appellant, would be taken into account by the Tribunal in adopting an appropriate procedure concerning her representation that took into account her needs as a small child.

92    In that regard, the Convention on the Rights of the Child, to which Australia was a signatory at material times, by Art 3 provides as follows:

1.     In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2.     States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3.     States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

93    It is difficult to see, however, how in the circumstances of this case any particular thing said or done, arguably apart from Australia’s signing of the Convention, obliged either the Minister or the Tribunal standing in the Minister’s shoes to consider the appointment of a separate representative for the appellant child. In any event, all that Art 3(1) requires is that the best interests of the child shall be a primary consideration in all actions concerning children – assuming for the moment that the Tribunal would be or is affected by that Article. Like the general obligations arising under the Act for the Tribunal to conduct a fair hearing, the provision of Art 3(1) is at a certain state of generality. Demonstrating its breach or a failure to regard it is not easily done, though it possibly may be discerned from a careful analysis of impugned conduct or a decision made.

94    In the result, the question is whether the manner in which the Tribunal approached the hearing and conducted the hearing, so far as the representation of the appellant child was concerned, demonstrates any lack of fairness or justness or lack of regard to the interests of the appellant child as a separate legal personality with her own rights.

95    In my view, his Honour’s reasons at [28]-[32] of his judgment demonstrates that his Honour fully appreciated the need for the appellant child to be separately represented and he found that the Tribunal had a similar appreciation.

96    Where a child is involved in some official proceedings, whether of an administrative nature or a judicial nature, there is no general law or general statutory rule that a child cannot be an applicant, make representations or be a party to a proceeding. If a “person” has a right to apply for some thing, then on the face of it a child, as a person, may do so, unless some statutory provision limits their right to do so. Accordingly, a child might make an application for review to the Tribunal under the Act and as the Full Court observed in Odhiambo, s 425 does not exclude a minor from appearing for himself or herself before the Tribunal.

97    Of course, where a child is as young as the appellant was at material times here, the idea that the child might themselves make an application for review to the Tribunal and personally appear before the Tribunal and give evidence and make submissions, is self evidently unlikely. Apart from anything else a child of such young age is unlikely to be capable of preparing or presenting any relevant case. Thus, ordinarily one would expect that the parent or other guardian of an infant child would prepare and make the necessary representations. This was recognised by McHugh J in Re Woolley where, at [103], his Honour noted that the ordinary rules of the common law authorise the parent or guardian of a child to act on a child’s behalf.

98    In Australia, the capacity of a infant to maintain a proceeding in a court is usually tempered by a requirement that a formal representative be appointed to represent the interests of the child in that proceeding, precisely because of the recognition that ordinarily a child will not have the intellectual, physical or emotional capacity and maturity to do what is required in the conduct of litigation. Thus, under the Federal Magistrates Court Rules 2011 (Cth), in the judicial review application in the Court below, the appellant was represented by a litigation guardian, who instructed counsel in the proceeding, and in this Court, on the appeal, the appellant was represented by a litigation representative under the Federal Court Rules 2011 (Cth), who instructed counsel to appear.

99    However, at material times, there was no provision governing the conduct of the review proceedings in the Tribunal that provided for or required the appointment of a representative of the appellant child. In those circumstances, the question that remains is whether the child, as the applicant in the review proceeding in the Tribunal, was capable of being invited under s 425 to a hearing of the Tribunal and whether under the more general obligation arising under s 422B(3) it was open to the Tribunal to consider that it could meet its statutory obligations by conducting a hearing at which the mother of the child and the migration agent gave evidence and made representations on behalf of the child.

100    There may also be a further question whether, in the conduct of the hearing at which the mother and migration agent either gave evidence and/or made submissions the hearing ceased to be one conducted fairly and justly from the perspective of the appellant, because different and competing interests were in fact advanced either by the mother or the migration agent.

101    In my view, there is no automatic requirement for the Tribunal, when faced with an application brought on behalf of a very young child, to appoint a representative, not being either of the parents or other legal guardian of the child. While one can understand that a Tribunal, such as the Refugee Review Tribunal, may find it appropriate to develop protocols or guidelines or rules as to how members should deal with the question of representation of young children, that does not detract from the conclusion that I have reached that there was, in this case, no automatic obligation on the Tribunal to cause some “independent” person to represent the interests of the appellant child.

102    There is therefore no error disclosed by his Honour’s finding, at [33] of his judgment, that the mother of the appellant was “uniquely placed” to give evidence and make submissions about the difficulties that may be experienced by a second (and female) child in the predicament of the appellant.

103    Also, on the face of it, there was no obvious error in his Honour’s further finding that there was a “confluence and not a conflict of interest” between the mother and her daughter, the appellant.

104    It also appears to me to have been the case that, both at the time the protection visa application was lodged by the Sydney based migration agent, and when the subsequent review hearing was conducted in the Tribunal involving the Perth based migration agent, each migration agent fully appreciated they were engaged to represent the interests of the child – not the father or not the mother. No doubt the migration agent was dependent upon the father and mother, at material times, for the engagement and primary information, including as to such matters as the social compensation fee that might be payable in the province in the PRC from which they had come and presumably to which they would return if the appellant was not granted refugee status in Australia. But none of that suggests that the migration agent did not at material times purport to act only for the appellant child. To the extent therefore that his Honour referred, at [32] of his reasons, to the mother being “represented by a migration agent”, I do not put much weight on that observation.

105    The materials in the appeal book show that the Perth based migration agent engaged for the purposes of the review hearing in the Tribunal made a number of written submissions and was plainly aware of the need to make those submissions on the child’s behalf and did so.

106    There no doubt can be a danger, in conducting any review of a protection visa application made by a child, particularly a very young child such as the appellant, that the decision-maker will not properly focus on the interests of the relevant applicant – the child – but impermissibly treat the application as that of the relevant parent who has lodged the application or who may appear at an interview or a hearing in relation to the matter. But, in this case, there is no reasonable indication in the decision of the Tribunal or the procedures that led to the conduct of the Tribunal hearing, that the Tribunal misunderstood its function in this regard.

107    Rather, there are many instances in the Tribunal’s findings that emphasise that it understood its responsibilities in this regard, including the references made to Chen Shi Hai, in both the Federal Court and the High Court, where the need for making this distinction and understanding this point were made. At [93] of the Tribunal’s decision record, for example, the Tribunal accepted that the appellant was a young child of less than three years of age and for that reason had taken evidence from her mother. The Tribunal obviously recognised that in endeavouring to ascertain whether the appellant child had a well-founded fear in a subjective sense, it would be difficult, if not impossible, to do so without considering the evidence in that case of the parents.

108    Counsel for the appellant at the hearing pointed to various sentences in the Tribunal’s decision record where the Tribunal appears to have treated the appellant’s mother as the “applicant” before it. However, in my view, all of those references are merely misstatements. Nothing turns on them.

109    When one has regard to the way in which the hearing was conducted in the Tribunal, the fact that the appellant was represented by a migration agent at the hearing and made submissions through the migration agent, and also was assisted by her mother who made relevant submissions to the Tribunal, there is nothing to suggest that in the conduct of the hearing the appellant did not receive a fair and just hearing and that her independent rights as a child appellant were not fully regarded by the Tribunal at all times.

110    Nor is there anything in the evidence to suggest that the mother of the appellant was seeking to advance any case, having regard to her own interests, that conflicted with those of the appellant. The only qualification of that statement might be that the appellant’s mother made a claim that she could be subject to forced sterilisation upon return to China, but that claim was dismissed by the Tribunal. There is nothing in the nature of that claim to suggest that other evidence given by the mother of the appellant in submissions that she made to the Tribunal failed properly and directly to bear on her daughter’s position.

111    Similarly, as noted above, the Perth based migration agent, made a number of submissions, including after the hearing, that were directed to the appellant’s interests and her interests only.

112    To the extent that the appellant, on the appeal, points to evidence that her mother was distressed at the time of the hearing in the Tribunal and for that reason the Tribunal should not have pressed ahead with the hearing without appointing or arranging for the appellant’s separate representation, I put little weight on that evidence. It may be accepted that there will be many circumstances where the mother of a child appellant in proceedings in the Tribunal, or indeed many adult parties to a hearing in the Tribunal, will feel and be upset and distressed but, nonetheless, be able to properly give relevant evidence in an appropriate manner.

113    There is nothing in the circumstances of this case to suggest that the Tribunal erred by not requiring that some other, independent person, independent of the mother and the Perth based migration agent, should represent the interests of the appellant.

114    For those reasons I do not consider that his Honour erred in finding to similar effect.

115    For these reasons, no appellable error in the decision of his Honour in relation to those issues is demonstrated.

116    The appeal grounds that relate to the procedural argument concerning the representation of the appellant should therefore be dismissed.

the persecution grounds – the social compensation fee issue

117    The appellant by counsel notes that the Tribunal accepted that failure to pay the social compensation fee would lead to the appellant being denied education and health services and so would constitute persecution within s 91R of the Act. However, the Tribunal was satisfied that the appellant’s parents, either singularly or together, would, if returned to the PRC, have the ability to pay the charge and so avoid the persecutory effects of a failure to do so on the appellant.

118    The error the appellant claims the Tribunal committed, of a jurisdictional nature, was that it did not address the question whether there was a real chance that the fee would not be paid, as a consequence of which discrimination amounting to persecution against the appellant would follow.

119    The appellant by counsel puts the following proposition. Where persecution of A by B will follow as a consequence of C, a fear of persecution is well-founded, notwithstanding that C may be avoided by intervention D performed by E, where A, B and E are persons and D is an action of which A is incapable. Thus, in this case the ability of the parents to pay was irrelevant to the question of whether the appellant child’s fear of persecution was well-founded. In this regard, the appellant relies on Chen Shi Hai and says it is the appellant’s status as a “black child” that is causative of the persecution of which she has an imputed fear. The possible intervention of her parents is not relevant to that issue of causation. Whether or not they would choose to pay the fee could be relevant to the issue of whether the fear is well-founded, but was not considered by the Tribunal. In failing to take to that consideration into account, the Tribunal committed jurisdictional error and his Honour in the Court below also erred by failing to so hold.

120    Alternatively, on behalf of the appellant it is contended that if the intervention of a third party will prevent the persecution, the evidence must show that there is no real chance that the intervention would not occur and absent such evidence the fear of persecution is well-founded. The prospects of intervention may then be a relevant consideration, but here the Tribunal did not regard that consideration.

121    There is no dispute that under Australian law children in the position of the appellant in the PRC are considered to fall within a social group that is recognised as being likely to suffer discrimination and so persecution for a Convention related reason. In Chen Shi Hai the High Court considered the case of an applicant for a protection visa who, like the appellant here, was a Chinese national born in Australia to Chinese parents. He fell within the social group called “black children”. It was contended before the Court that by reason of the applicant’s membership of that social group, the applicant would suffer legal, social and economic disadvantages if he returned to China. The Court held:

(1)    That children born in contravention of China’s one child policy could constitute a particular social group for the purposes of Art 1A(2) of the Convention.

(2)    That persecution need not be motivated by malignity or enmity.

(3)    That s 36(2) of the Act stated an objective criterion for the granting of a protection visa and s 65(1) required a protection visa to be granted or refused if that criterion was or was not met.

122    In the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, their Honours, at [28], referred to what McHugh J had pointed out in Applicant A, at [18], to the effect that the question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason, ultimately depends on whether that treatment is “appropriate and adapted to achieving some legitimate object of the country [concerned]”. Their Honours also accepted that it was only in exceptional cases that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving some legitimate government object and not amount to persecution.

123    Their Honours, at [29], stated that whether the different treatment of different individuals or groups is appropriate and adapted to achieving some legitimate government object depends on the different treatment involved and, ultimately, whether it offends the standards of civil societies which seek to meet the calls of common humanity. Ordinarily, denial of access to food, shelter, medical treatment and, in the case of children, denial of an opportunity to obtain an education, involve such a significant departure from the standards of the civilized world as to constitute persecution. And that is so even if the different treatment involved is undertaken for the purpose of achieving some legitimate national objective.

124    Thus, their Honours stated, at [30], that the fact that “black children” are treated differently in China in consequence of the one child policy, which is a policy of general application, is relevant to the question whether that treatment amounts to persecution. Their Honours added, however, that if the conduct in question does amount to persecution, that consideration cannot then result in the conclusion that that persecution is not for the reason that they are “black children”.

125    Their Honours, at [31], then noted that the Tribunal in relation to the appellant in that case had found that, if returned to China, he was likely to face discrimination amounting to persecution because he would be treated differently from other children and was likely to be denied access to food, education and health care beyond a very basic level.

126    Their Honours, at [31], added:

And as already noted, it also found that, having regard to his parents’ financial situation, ‘when the benefits of subsidised education are withdrawn, [the appellant] will ... be unable to have an education’. Given those findings, it was clearly open to the Tribunal to find, as it did, that the treatment the appellant was likely to receive if returned to China amounted to persecution. And significantly for present purposes, that finding has not been challenged.

127    Their Honours, at [36], went on to observe that it could not 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. Their Honours said of that suggestion:

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.

128    It may be seen from this passage, at [36], that in their Honours’ view it was no answer, in the circumstances of the appellant in Chen Shi Hai, that the persecutory problems arose because the parents could not afford to alleviate the consequences of their child’s status. Thus, it was not appropriate to say that there was no persecution because of that status, only a problem because the parents lacked financial means – a non-Convention related consideration.

129    Their Honours, however, plainly left open the question whether, if the parents had the financial means to alleviate the consequences of the child’s status, the treatment could be viewed as appropriate and adapted to the implementation of the one child policy and so not as persecution.

130    Here it is accepted that in the PRC it is open to a parent of a “black child”, under a generally applicable appropriately adopted law, to seek to alleviate the discrimination that might otherwise befall that child by making a social compensation payment. In such circumstances, the question of a parent being able to pay the social compensation fee is, in my view, relevant to the Tribunal’s assessment of whether there is a real chance of discrimination and so persecution being visited on the child, should the child return to China. If, in the course of dealing with that question the evidence were to lead the Tribunal to conclude the fee would likely not be paid, then it might, as in Chen Shi Hai, decide that persecution was a real chance.

131    In this regard, I note that in VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927; (2004) 81 ALD 332 at [64], Merkel J also accepted that the means of parents to mitigate the consequences of their child’s adverse treatment is relevant to whether the treatment in question could be viewed as appropriate and adapted to the implementation of China’s one child policy and not as persecution. His Honour considered it may be that where parents have such means, there may be no real chance of the child suffering those consequences. His Honour did accept, however, that nonetheless for so long as the appellant child is unregistered and therefore a “black child” the identified apprehended harm is capable of being relevant to the claim.

132    In this case the Tribunal considered the means of the mother and the father to pay a social compensation fee in respect of the appellant and postulated circumstances that might exist should the mother and the father both return to China and support both of their children. The Tribunal considered those possibilities from all angles, and no point is taken on this appeal as to the merits of the analysis made. While the appellant might wish to argue with the merits of the conclusions reached by the Tribunal, there is no question of illogicality or irrationality raised by the appellant as to the decision-making process engaged in that might invalidate it. It is not suggested, therefore, that the conclusion reached by the Tribunal suffers from jurisdictional defect on that account.

133    What was not argued before the Tribunal on behalf of the appellant, by the mother in particular, was that the mother simply would not make the social compensation fee payment. Rather, the case presented was that, if she were to return to China with the appellant, “she will not be able to pay the SCF” (see [106] of the Tribunal’s decision record).

134    While at [106] the Tribunal said that it found that the mother “appeared unwilling to seriously entertain the payment of the SCF for the applicant, including appearing to have a closed mind on borrowing money to pay the SCF and then repaying the loan”, it is clear from the discussion in the reasons following at [106] and in the balance of the decision record that the reason for the mother’s unwillingness in this regard was all to do with her belief that she could not afford to make payment of such a fee. For example, the first issue raised in the context of the mother’s unwillingness at [106] was the question whether the mother was a person who would be able to borrow money or get a loan and get a job.

135    Thus, the substance of the case presented on behalf of the appellant and put by the mother as well, was not that the mother (in particular) would not make the payment, but that she could not afford to make the payment. Thus, the relevant inquiry was into the capacity in financial terms of the mother to make the payment of the fee. There was no occasion and no need for the Tribunal to consider the possible non-payment of the fee by reason of some other factual consideration. It was on that basis that the Tribunal considered the evidence of the mother as to why she could not afford to pay and rejected the various bases of her claim. Ultimately, at [110] of the Tribunal’s decision record, the Tribunal concluded that it was satisfied that the mother:

has employment and earning capacity in China and that she would be able to earn money to pay the SCF for the applicant within a period of up to 3 years allowed for such payment. The Tribunal finds that there is not a real chance of persecution of the applicant or the applicant’s mother for reasons of the applicant’s mother’s inability to pay the SCF by instalments within the requirement time frame.

136    In these circumstances there was no occasion for the Tribunal to ask the question that counsel agitates on the appeal as to what if the social compensation fee is not paid. The Tribunal reasonably proceeded on the assumption, from the way the appellant’s case was put, that the only reason the fee would not be paid would be a lack of capacity.

137    In those circumstances there was, in my opinion, no additional obligation on the Tribunal to ask the “What if?” question devoid of an appropriate factual setting. It will be appreciated that if there were such an obligation, then the answer to it would always be imponderable, regardless of the financial circumstances of a parent in question. That is because there is no doubt a large range of reasons why a fee might not be paid in any circumstance, including sheer obstinacy or wilfulness. Consequently, it is for the applicant to raise the issue of non-payment and reasons why a fee will not be paid, in the usual case, to make the issue relevant to the Tribunal’s consideration.

138    That is not to say that in a particular case, different from that which currently presents itself, a person in the position of the current appellant child might not submit that the social compensation fee will not be paid. It is not necessary for the Court, on this occasion, to envisage circumstances or evidence which might lead a tribunal to conclude that any such assertion made is supported by good grounds. If it were, one would assume that the Tribunal, as in Chen Shi Hai, would conclude that persecution is a real chance.

139    But, as I say, such a case is not the present case.

140    In those circumstances, the second group of appeal grounds concerning the relevance of the proposition that the social compensation fee might not be paid must fail.

conclusion and orders

141    For the reasons given above, the grounds of appeal advanced on behalf of the appellant fail. The appeal should be dismissed. The Minister has noted that if the appeal is to be dismissed there should be no order as to costs. Therefore the only order that is required to be made is that the appeal be dismissed.

Associate:

Dated:    27 February 2013