VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32

FEDERAL COURT OF AUSTRALIA

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 VDAU (AN INFANT) BY HER NEXT FRIEND V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 377 OF 2003 RYAN, LINDGREN AND SUNDBERG JJ MELBOURNE 20 FEBRUARY 2004

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 377 of 2003

On appeal from a Judge of the Federal Court of Australia

BETWEEN: VDAU (AN INFANT) BY HER NEXT FRIEND

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGES: RYAN, LINDGREN and SUNDBERG JJ

DATE OF ORDER: 20 FEBRUARY 2004

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant's next friend pay the respondent's costs of the appeal to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 377 of 2003

On appeal from a Judge of the Federal Court of Australia

BETWEEN: VDAU (AN INFANT) BY HER NEXT FRIEND

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGES: RYAN, LINDGREN and SUNDBERG JJ

DATE: 20 FEBRUARY 2004

PLACE: MELBOURNE

REASONS FOR JUDGMENT

THE COURT: 1 This is an appeal from a judgment of a single Judge of the Court declining to grant an application for review of a decision by the Refugee Review Tribunal ("the Tribunal") to affirm a refusal by the delegate of the respondent Minister to grant the appellant a protection visa. 2 The appellant is an infant born in Australia on 31 October 2000. On 7 December 2000, an application for a protection visa was lodged on behalf of the appellant claiming that she was the second of two children and would face persecution if returned to the People's Republic of China ("the PRC") because of that country's implementation of its "one-child" policy. The feared persecution was said to be restricted access to education and employment. As well, it was said that her father would face a fine, detention and the demolition of his house and that both parents would encounter difficulties in obtaining employment and in re-establishing themselves economically in the PRC. Moreover, the parents were adherents of the Falun Gong movement and would be viewed with disfavour because it would be inferred that they had applied for refugee status in Australia. All these apprehensions of adverse consequences for her parents were said to be likely to impinge detrimentally on the appellant if she were to return to the PRC. 3 The Tribunal reviewed a body of country information about the application of the one-child policy in the PRC and concluded that Chinese nationals studying overseas would not be fined or otherwise punished for the birth of a second or subsequent child if they had reported the birth to an Embassy or Consulate in the overseas country and had provided an explanation for their failure to comply with the policy. As the learned primary Judge noted, the Tribunal then, somewhat tangentially, referred to country information concerning the status of illegitimate children born in the PRC. 4 The Tribunal concluded that any sanctions which might be imposed on the appellant's parents as a result of her birth would be, at most, financial in the form of a denial of a "nursery subsidy", although it conceded the possibility that she might face various forms of social discrimination. It found that she would not suffer any other educational detriment and would not be denied Chinese nationality. After assuming that the appellant would encounter social discrimination similar to that suffered by illegitimate children in a conservative society, the Tribunal made this finding which the primary Judge described as "critical"; 'In weighing all the available information the Tribunal concludes that the applicant could face some detriment in education and the provision of medical care until she attains the age of seven years. There is no material to satisfy the Tribunal, however, that she would be denied a proper education or access to essential medical services. The Tribunal finds that to the extent the applicant might face detriment as a consequence of having been born in breach of the one-child policy the possible consequences for her fall well short of a definition of persecution.' 5 Although it accepted that the appellant's parents had lost their former jobs, the Tribunal found that to be due to their long absence from the PRC and not to their contravention of the one-child policy. It accepted that they might, because of their breach of the policy, "face setbacks in their careers", but found that they would not face "economic or other consequences amounting to persecution." It specifically rejected the claim that the appellant's parents were at any real risk of detention or of demolition of their house. 6 The possibility of adverse consequences due to the parents' adherence to Falun Gong and due to their having applied for refugee status in Australia was not considered by the learned primary Judge because those matters had not been relied on in the application to this Court for review of the Tribunal's decision. The Tribunal's conclusion in respect of the applicant was in these terms; 'The Tribunal concludes there is not a real chance of the applicant suffering discriminatory treatment, beyond that which might normally apply to children born outside the one-child policy, or of her encountering any consequences amounting to persecution due to having been born outside China's one-child policy, due to any allegiance by her parents to Falun Gong, due to the Chinese authorities knowing of their application for a protection visa, or for any other Convention reason.' 7 After noting that the Tribunal's decision was, on its face, a "privative clause" decision within the meaning of s 474 of the Migration Act 1958 (Cth) ("the Act"), his Honour applied Plaintiff S157/2002 v The Commonwealth (2003) 195 ALR 24 ("S157") in holding that s 474(1) does not protect an administrative decision which involves jurisdictional error and which, the High Court observed, is "regarded, in law, as no decision at all." After applying that principle, the learned primary Judge referred to s 424A of the Act and then rehearsed as follows the submissions advanced on behalf of the applicant; 'The applicant's submissions essentially fell into two broad categories. The first related to what were said to have been a series of jurisdictional errors on the part of the Tribunal which were apparent from its reasons for decision. Four specific errors were identified. They were: · the Tribunal's use of country information that related to persons in the position of the applicant's parents, and not to persons in the position of the applicant; · its use of country information relating to the status of illegitimate children in China which was said to be wholly irrelevant; · its description of the one-child policy as a policy of "universal application". This was said to be in stark conflict with a passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301 in which their Honours said that laws or policies of this type were not properly to be described as laws and policies of general application; and · its disregard of an important item of evidence submitted by the applicant in support of her claim relating to reports of "many 'above quota' children hav[ing] been killed in hospitals or orphanages". The second related to what was said to have been a denial of procedural fairness. It was submitted that the Tribunal had failed to comply with the requirements of s 424A(1) of the Act in that it failed to provide particulars of the Statement regarding overseas students which was information that formed part of the reason for affirming the decision under review, and also failed to invite the applicant to comment upon that information.' 8 After referring to the submissions advanced on behalf of the respondent, his Honour rejected the appellant's submission that the Tribunal's reasons revealed any of the jurisdictional errors which had been asserted on her behalf. In the first place he held that; 'A careful reading of the reasons demonstrates that the Tribunal was acutely conscious of the distinction between the matters raised by the applicant's father which might impact both upon himself and his wife, and those which might impact directly upon his daughter. It was plainly relevant for the Tribunal to consider the possible consequences, including economic consequences, which might befall the applicant's parents upon their return to China when considering whether the applicant herself would face persecution.' 9 His Honour also rejected the suggestion that the Tribunal had wrongly assimilated the appellant to an illegitimate child. He considered that the Tribunal's references to illegitimate children were by way of analogy only and did not betray any misapprehension that the appellant had been born out of wedlock. 10 On the issue of a law of general application, his Honour noted that Counsel had invoked this passage from the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301; 'Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group – for example, "black children", as distinct from children generally – cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.' 11 However, his Honour exonerated the Tribunal from falling into the error which Counsel for the appellant had suggested when relying on that passage. His Honour said that the Tribunal had not reasoned that, because the one-child policy was of general application, the appellant could not be a member of a particular social group. His Honour also considered that the Tribunal had left open the question of whether, if the evidence disclosed that the appellant would be subjected to "serious harm" within s 91R(1), the appellant would be entitled to a protection visa although she would be treated no differently from any other second or subsequent child. 12 The other jurisdictional error imputed to the Tribunal by Counsel for the appellant was said to be inherent in its failure to refer to a statement in an Amnesty International publication of April 1996 that "Many 'above quota' children have been killed in hospitals and orphanages." In his Honour's view, that sentence was not a claim made on behalf of the appellant. Because there was nothing to suggest that the appellant would be likely to find herself in an orphanage or hospital, there was no obligation on the Tribunal to refer to that extract. 13 The procedural complaint advanced on behalf of the appellant was that the Tribunal had relied on information about exemption of overseas students from the "one-child policy" without affording the appellant an opportunity to comment on that information. That was said to be a contravention of s 424A(1) of the Act. The information in question was a statement ("the 1992 Statement") issued on 26 May 1992 by the Department of Policy, Legislation and Regulations, State Family Planning Commission of the PRC. The 1992 Statement was set out in full by the Tribunal in its reasons and was in these terms; 'To control the population figures, improve the quality of population and carry out family planning is a basic state policy of China. It is an obligation for every citizen of the People's Republic of China to practise birth control according to law. Taking into account the fact that it would be difficult for the Chinese students to have the same access as they have in China to the timely advice and services, and to free availability of contraceptives, as well as all the inconveniences they could face in daily life and studies while they study overseas, the State Family Planning Commission and the State Education Commission of China clearly defined the rules, as early as 1989, in relation to the question of family planning of the Chinese students overseas. Main content of the rules follows: 1. It is the wish of the Government that the Chinese students overseas would also follow the Government policy, rules and regulations while they are abroad by not giving more births than the quota. If they give more births than the quota overseas, they should take the initiative to report for record purpose and explain the case to the Chinese Embassy or Consulate-General; 2. After their return to China, people who have given more births than the quota overseas are allowed to apply for residence registration for their children with the certificate issued by the Chinese Embassy or Consulate-General, and the Birth Certificate issued by the overseas country where they have been; 3. People who give more births than quota overseas will not be given punishment or charged fees for the extra births, after their return to China, by their work units, if certifying material issued by the Chinese Embassy or Consulate-General is provided to the work units. Judging from above, it is evident that on the question of family planning for Chinese students overseas, the Chinese Government has been fully aware of their specific difficulties overseas and have made appropriate rules in connection with questions relating to them after their return to China. There is absolutely no question at all of discrimination against and persecution of them. (Explanatory Notes on Chinese Family Planning Policy in Relation to Chinese Students Overseas, CISNET On-line Services CX230).' 14 The reference to that document in the course of the Tribunal hearing occurred after the Tribunal member had adverted to information suggesting that children "born outside the one-child policy might encounter social discrimination." This exchange then occurred: THE TRIBUNAL: 'But according to the Department of Policy Legislation and Regulations of the State Family Planning Commission people who have had children born outside the one-child policy quota can apply for residence registration of their children. They can get a certificate from the Chinese embassy or consulate in the country where they're residing before they return to China. They're not punished or charged fees for extra births after their return to China by their work units, providing they supply the material that they can get, the certification that they can get, to the work units. That concludes there's absolutely no question at all of discrimination against or persecution of them. Now, that goes somewhat further than some of the other information. But all of the other information would tend to indicate that at most what people face is a small fine and perhaps that their children are not given access to pre-school education. Apart from what you've already told me, is there anything else that you wanted to say about those matters?' MR LUCAS: 'That particular report the tribunal referred to is dated - what was the date of that?' [solicitor for the applicant] THE TRIBUNAL: '1992.' MR LUCAS: 'Right. I guess what could be said about that is along the lines of, you know, an official government issued document doesn't necessarily reflect the reality on the ground and whilst I don't have index or country information to support the contrary here I think that a range of the decisions seem to refer to country information that, you know, is at odds with that.'