FEDERAL COURT OF AUSTRALIA

SZWCR v Minister for Immigration and Border Protection [2017] FCA 472

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant’s mother be appointed pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) as the litigation representative of the Appellant.

2.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), compliance with such other rules relating to the appointment of the mother as the litigation representative be dispensed with.

3.    The appeal is dismissed.

4.    The Appellant’s mother, as the litigation representative of the Appellant, is to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The Appellant is an infant child who is now almost four years old. He was born in Australia to parents who are both citizens of China. He also has an older sister.

2    Protection visas have apparently been refused to the parents and sister.

3    The Appellant was refused a protection visa in May 2014. That decision was affirmed by the former Refugee Review Tribunal in January 2015.

4    Proceedings seeking review of the Tribunal’s decision were then commenced in the Federal Circuit Court of Australia. That Court summarily dismissed the application for review: SZWCR v Minister for Immigration & Anor [2015] FCCA 569. But that decision was set aside and the matter was remitted to the Federal Circuit Court to be determined according to law. Before that Court, the Appellant’s mother was appointed as the litigation guardian of the Appellant. The Court as reconstituted following the remittal proceeded in July 2016 to give reasons in support of its conclusion that the Tribunal had committed no jurisdictional error: SZWCR v Minister for Immigration & Anor (No 2) [2016] FCCA 2803. In a separate judgment, it was concluded that the application should be dismissed and that the mother as litigation guardian was to pay the costs of the Respondent Minister: SZWCR v Minister for Immigration & Anor [2016] FCCA 2385.

5    A Notice of Appeal was then filed in this Court.

6    The appeal was heard on 23 February 2017. The mother was again appointed as the litigation representative of her infant son, that order being made in this Court pursuant to Div 9.6 of the Federal Court Rules 2011 (Cth).

7    Before this Court the Respondent Minister was represented by a solicitor; the Appellant appeared by his mother, who was assisted by an interpreter. The Appellant’s mother took the opportunity to make oral submissions in support of the appeal.

The Grounds of Appeal

8    Albeit inelegantly expressed, it is respectfully considered that the Appellant seeks to advance four Grounds of Appeal. The first two grounds contend that the Tribunal erred in failing to give “proper and realistic consideration” to claims that:

    the Appellant would be subject to persecution in China if he could not obtain what was referred to as “hukou” or “Family Household Registration” because the child was born in contravention of China’s family planning laws – such children being referred to as “black children”; and

    if she returned to China, the Appellant’s mother would be forced to undergo “forcible sterilisation” before the child could obtain “hukou”.

It was also sought to be argued on appeal that there was a failure on the part of the Tribunal to give consideration to:

    how long the Appellant would have to remain as a “black child”.

There was a final claim that:

    there was a denial of procedural fairness on the part of the Tribunal.

9    The appeal is to be dismissed with costs. None of the Grounds of Appeal have been made out.

The failure to give proper consideration to claims made

10    Difficulties that have been repeatedly expressed in respect to the expression “proper, genuine and realistic consideration” giving rise to the temptation for a court considering whether jurisdictional error has been exposed to impermissibly descend into merits review can presently be left to one side: Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45], (2010) 6 ASTLR 339 at 351 to 352 per Basten JA (Allsop P agreeing); Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [67] per Basten JA (McColl JA and Simpson JA agreeing).

11    On any view of the Tribunal’s reasons it gave proper and adequate consideration to each of the claims now identified on behalf of the Appellant.

12    The manner in which the first challenge was sought to be advanced before this Court seemed to vacillate and be (with respect) inconsistent with findings made by the Tribunal.

13    The Tribunal found that:

    the parents would be able to obtain household registration for the child following the payment of a “social compensation fee”; and that

    it was not satisfied that there was any real chance that the Appellant would suffer serious harm by reason of being a member of a social group being “black children” or “children without a hukou”.

These findings, as set forth by the Tribunal in its reasons for decision, are expressed as follows:

[29]    The amount of the compensation fee, as discussed above, is determined on the basis of a number of factors. The Tribunal is satisfied that the Family planning laws from Fujian and the evidence in relation to its implementation indicate that when a child is born in breach of China’s family planning laws that a compensation fee will become payable. The Tribunal is satisfied that the evidence also indicates that upon payment of the compensation fee to the relevant authorities that a child is then issued with a hukou and included on the household registration of his family. The Tribunal finds, therefore, that the applicant’s parents will be able to obtain household registration for [the Applicant] following the payment of the social compensation fee. Accordingly, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm because he is unable to obtain a hukou. The Tribunal is not satisfied, therefore, having considered the applicant’s circumstances individually and cumulatively, that he will suffer serious harm as a result of the breach of China’s family planning laws. Therefore, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm for reasons of his particular social group of “black children” or “children without a hukou”, as posited by the representative, or any other formulation of particular social group.

14    Given the finding of the Tribunal that a “hukou” could be obtained and that there was no claim that the family did not have the resources to obtain one, the first Ground of Appeal (however expressed) is without substance. It is rejected.

15    Moreover, any challenge founded upon an inability to pay the “social compensation fee” did not sit comfortably with the fact that the Tribunal’s reasons record that the father “also confirmed that he and his wife are not claiming they will be unable to pay the fine”. The findings of the Tribunal are consistent with the evidence given.

16    Other than not reaching a finding favourable to the Appellant or his mother, it is difficult to see how the consideration in fact given by the Tribunal to the claims surrounding the need to obtain registration were not addressed and resolved. Attempts on the part of the Appellant, via his mother, to now seek to reargue facts going to the ability of the family to “try our very best to borrow money from others” and the effect upon the family “financially”, either seek to recant upon statements made to the Tribunal and the evidence given or seek to invite this Court to make findings not only different to those made by the Tribunal, but inconsistent with those findings. Such an approach forms no part of judicial review as opposed to merits review.

17    Nor is there any substance in the argument that there was a failure to give adequate and proper consideration to the claims advanced by the mother as to the prospect of her having to undergo “forcible sterilisation”.

18    This was an issue addressed in detail in the written submissions advanced on behalf of the Appellant both prior to and subsequent to the hearing before the Tribunal. After having considered those submissions and the evidence given during the course of the hearing, the Tribunal in its statement of reasons recorded its conclusions as follows:

[27]    The Tribunal has considered the applicant’s parent’s claim that his mother would have to undergo a sterilisation procedure upon her return to China. Although the law in China prohibits the use of physical coercion to force abortions, the Tribunal accepts that pressure on local birth planning officials to meet family planning targets has resulted in the use of physical coercion and “the abortion of certain pregnancies”. The Tribunal has had regard to the evidence provided by the representative, but considers that the evidence in relation to this issue is conflicting and variable across different parts of China. Although there is limited evidence of this occurring in Fujian province, and there has been some relaxation of family planning laws in China recently, the Tribunal accepts that there are examples of forced abortions and sterilisations occurring throughout China, and it is possible that the applicant’s mother may be required to at least have an IUD fitted or to undergo forcible sterilisation, or at worst, an abortion. However, as discussed during the hearing, the Tribunal is not considering whether the applicant’s mother faces a real chance of serious harm upon her return to China, but whether [the Applicant] will suffer serious harm for a Convention reason upon his return to China. When this was discussed with [the Applicant’s mother] and her husband during the hearing, they were unable to explain how the sterilisation of [the mother] or their inability to have another child or children would affect [the Applicant]. Nor were any submissions made in relation to the effect that the forcible imposition of family planning policies would have on [the Applicant]. The Tribunal is not satisfied that the imposition of contraceptive devices, sterilisation or even abortion which may be imposed forcibly on the applicant’s mother would result in a real chance that [the Applicant] would suffer serious harm for reasons of his race, religion, nationality, membership of a particular social group or his political opinion if he returned to China now or in the reasonably foreseeable future.

19    Such findings and reasons given by the Tribunal, it is concluded, adequately demonstrate that proper consideration was given to the claims made. There is no illogicality or irrationality in the manner in which the Tribunal resolved those claims. There is, in particular, no substance to an argument that there was any inconsistency between country information about China generally and the Fujian province in particular.

20    The second Ground of Appeal is also rejected.

The length of time as a “black child” – a claim not raised before the Tribunal

21    The Notice of Appeal was also understood as contending that the Tribunal had failed to give consideration to how long the Appellant would have to remain as a “black child”.

22    The Federal Circuit Court Judge rejected a like challenge upon the basis that “there was nothing said either in any of the applicant’s written submissions, or in the evidence given orally on his behalf at the Tribunal hearing that suggested that there would be any significant period between the time of return to China, and the registration of the applicant, such as might give rise to serious harm or significant harm”: [2016] FCCA 2803 at [15].

23    The only finding made by the Tribunal of any apparent relevance is its finding at para [29] that “upon payment of the compensation fee to the relevant authorities … a child is then issued with a hukou and included on the household registration of his family”.

24    There remains, however, no necessity on the part of the Tribunal to resolve a claim that was not made before it: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 at [61], (2004) 144 FCR 1 at 19 to 20 per Black CJ, French and Selway JJ.

25    In the absence of a claim to like effect having been advanced before the Tribunal, it was not open to run such an argument before the Federal Circuit Court Judge.

26    The argument was correctly rejected by that Court.

27    The third Ground of Appeal advanced in this Court is likewise rejected.

A denial of procedural fairness

28    The denial of procedural fairness Ground of Appeal focussed upon two contentions, namely:

    an alleged failure in not disclosing “its source of information” and not affording an opportunity to be heard in respect to the information relied upon by the Tribunal in reaching its findings in respect to “forced sterilisation”; and

    an allegation that the Tribunal had “predetermined our case before actually reading all of our claims and arguments”.

Neither contention prevails.

29    As to the former contention, considerable reservation was expressed during the course of the hearing of the appeal as to whether the Tribunal had adequately disclosed the substance of the information upon which it was proceeding. But it has ultimately been concluded that the Appellant was alive to the issues being considered by the Tribunal and which formed a factual foundation for its decision and that the Appellant was extended an adequate opportunity to be heard in respect to these issues.

30    At least some of the information relied upon was canvassed with the parents by the Tribunal Member during the hearing held on 19 January 2015. The exchange between the Tribunal Member and the mother relied upon by the Respondent Minister was the following:

Q.    The independent evidence I have, the evidence indicates that upon the payment of a fine, [the Applicant] would be able to obtain a hukou.

A:    INTERPRETER: Yes. In order to get [the Applicant’s] hukou registered, we need to pay a high amount of penalty payment, and I am facing the forced sterilisation. Then we can apply for the hukou to be registered.

Q.    Okay. You have to apply, but after that, after you’ve paid the fine and the forced sterilisation, how would that impact on [the Applicant]? There’s also very little evidence of that happening in either Fujian or Guangdong, and it’s actually illegal now.

A:    INTERPRETER: Possibly it hasn’t been reported. But according to the Communist laws, it doesn’t say that one has to be sterilised to get the hukou registered. However, when it gets to the local government, it is..(not transcribable)..

Q.    I don’t actually think that’s consistent with anything that I’ve looked at, people being forced to be sterilised before a hukou can be issued.

A:    INTERPRETER: Because among the local governments, it is already a hidden rule. Everyone accepts it. No need to publish it. It’s something you must do, you don’t have a choice. So not much publication on it.

Had the matter been left there, it may have been concluded that the Appellant had been denied procedural fairness. That which was disclosed by the questioning was within a limited compass.

31    The reservation expressed during the course of the hearing of the appeal focussed upon the Tribunal finding that “the most common form of penalty under China’s family planning laws for breaching China’s family planning laws is the levying of a social compensation fee”. A footnote to that finding referred to a number of Department of Foreign Affairs and Trade Reports and also said that it had been “frequently reported on” by the United States Department of State and the United Nations High Commissioner for Refugees. But none of those Reports had been disclosed to the Appellant. The above exchange during the course of the hearing could arguably fall short of disclosing the manner in which those Reports were used by the Tribunal. The footnote identified at least two factual propositions, namely:

    that upon payment of a “social compensation fee”, a “hukou” would be received; and

    that the imposition of a “compensation fee” was “the most common penalty for couples breaching China’s one child policy”.

That footnote also referred to a report which describes:

    the “process for children born overseas obtaining a hukou upon their return to China”.

There was no substantial question canvassed during the hearing before the Tribunal other than the varying rates at which a compensation fee was calculated. But reservation is expressed as to whether there was sufficiently canvassed during the hearing the issue as to a compensation fee being the “most common” penalty and the issue of the “process” to be followed. Accepting that the specific Report relied upon by the Tribunal need not be disclosed, the question remained whether there had been sufficient disclosure of the fact that the payment of the compensation fee was the “most common penalty.”

32    However, it has ultimately been concluded that such concerns, on the facts of the present case, were adequately addressed by:

    the detailed content of the submissions made on behalf of the Appellant prior to the hearing before the Tribunal; and

    the detailed submissions made after that hearing, those submissions (without alteration) addressing the “[r]isk of persecution of forcibly sterilization in relation to applicant’s mother” and “[p]roblems faced by Children without Hukou”.

It is also to be recorded that the concern advanced during the Tribunal hearing was more directed to the issue of the “forcible sterilisation” rather than the payment of any “compensation fee”.

33    The submissions made, it has nevertheless been concluded, demonstrate the fact that the Appellant was alive to the issues which needed to be addressed and that the opportunity was extended to the Appellant to make such submissions. Having had that opportunity, it thereafter remained for the Tribunal to consider the submissions made and to make the relevant finding of fact.

34    The concern of the law, it is to be recalled, is “to avoid practical injustice”: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [37], (2003) 214 CLR 1 at 14 per Gleeson CJ. Ultimately the question to be resolved is one of “fairness”: VHAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 82, (2004) 80 ALD 559 at 566 to 567. Allsop J (as his Honour then was) there concluded:

[27]    Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.

[28]    Natural justice is ultimately a question of fairness. The appellant here came to the tribunal armed with her material about her country of origin in order to persuade the tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.

[29]    The material to which we were taken was not such as to be required to be provided to the appellant. The appellant had an opportunity to persuade the tribunal of her claims. The tribunal raised with her issues of concern, which in the end were important. Fairness was afforded.

His Honour adhered to these views in SZBPM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 215 at [19]. See also: Applicants S1266 of 2003 v Minister for Immigration & Multicultural Affairs [2006] FCA 1771 at [34] per Bennett J.

35    No “practical injustice” or “unfairness”, it is considered, has been exposed in the present case by the information and sources of information that the Tribunal relied upon in its reasons for decision – even if it were to be assumed that the Reports upon which the Tribunal relied were not disclosed to the now-Appellant.

36    Such a conclusion, however, should not be construed as providing any encouragement to Tribunal Members not to more fully disclose the information it has to hand and the information upon which it questions a claimant. To fully disclose such information should only be encouraged where it is practicable to do so, especially in those circumstances where a claimant is given an opportunity after a hearing has concluded to file further submissions. Not only does it avoid the prospect of subsequent argument, it also encourages procedural fairness by administrative hearings being both fair and seen to be fair. Such encouragement to disclose more information rather than less must nevertheless always be considered in the statutory context where country information need not necessarily be disclosed pursuant to s 424A(3)(a) of the Migration Act 1958 (Cth): cf. SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46, (2009) 174 FCR 415. See also: SZNQS v Minister for Immigration and Border Protection [2016] FCA 637 at [8] to [9].

37    The “one-sided” nature of the information disclosed in the present case provides but an example of circumstances in which more fulsome disclosure on the part of the Tribunal should be encouraged. The submissions provided to the Tribunal on behalf of the Appellant both before and after the hearing set forth and annex the reports he relied upon and an identification of those paragraphs of those reports said to assume greater relevance. In contrast, there appears to have been comparative silence on the part of the Tribunal in similarly disclosing information it had to hand.

38    It is nevertheless also to be recalled that the opportunity to be heard is an opportunity to advance to the Tribunal such materials as the Appellant considers relevant to the claims advanced. The opportunity to be heard is not an opportunity to have the benefit of such findings and reasons as may thereafter be provided by the Tribunal and to thereafter carefully scrutinise and analyse what further evidence may potentially have addressed such adverse findings as have been made by the Tribunal. Opportunistic scrutiny of Tribunal findings and reasons with a view to discerning a perceived denial of procedural fairness should be discouraged.

39    As to the latter contention that the Tribunal had “predetermined” the claims made, there is no basis upon which that contention can be adequately founded. An allegation of a reasonable apprehension of bias is one which must be “distinctly made and clearly proved”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 at [69], (2001) 205 CLR 507 at 531. Gleeson CJ and Gummow J there further observed that what is required is that a decision-maker approach the claims being made with a mind “open to persuasion”: [2001] HCA 17 at [105], (2001) 205 CLR at 540. See also: McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [23], (2008) 72 NSWLR 504 at 509 per Spigelman CJ; Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporations [2011] FCA 370 at [82], (2011) 121 ALD 525 at 544.

40    Any allegation that the Tribunal Member “predetermined” the claims made or approached the resolution of those claims with a mind other than one “open to persuasion” is inconsistent with (inter alia) the extent to which issues were canvassed with the parents during the course of the hearing and the opportunity given to provide further submissions after the conclusion of the hearing.

CONCLUSIONS

41    The Federal Circuit Court Judge was correct to dismiss the application for review.

42    The appeal is to be dismissed with costs.

THE ORDERS OF THE COURT ARE:

1.    The Appellant’s mother be appointed pursuant to r 9.63 of the Federal Court Rules 2011 (Cth) as the litigation representative of the Appellant.

2.    Pursuant to r 1.34 of the Federal Court Rules 2011 (Cth), compliance with such other rules relating to the appointment of the mother as the litigation representative be dispensed with.

3.    The appeal is dismissed.

4.    The Appellant’s mother, as the litigation representative of the Appellant, is to pay the costs of the First Respondent.

Associate:

Dated:    10 May 2017