C v Minister for Immigration & Ethnic Affairs & Anor [1995] FCA 184

IN THE FEDERAL COURT OF AUSTRALIA ) ) DARWIN DISTRICT REGISTRY ) ) GENERAL DIVISION ) No. DG 9 of 1994 B E T W E E N: C Applicant AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent - and - MR M W GERKENS Second Respondent No DG 10 of 1994 B E T W E E N: L Applicant AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent - and - MR M W GERKENS Second Respondent No DG 11 of 1994 B E T W E E N: J Applicant AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent - and -

MR M W GERKENS Second Respondent No DG 12 of 1992 B E T W E E N: Z Applicant AND MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS First Respondent - and - MR J VRACHNAS Second Respondent REASONS FOR JUDGMENT Coram: O'Loughlin J. 30 March 1995 This case deals with the so-called "one-child policy" of the Peoples Republic of China (PRC) and the sterilization and abortion of women against their will. It is claimed that these compulsory acts of sterilization and abortion are cause for granting the applicants refugee status in Australia. Each of these four matters is an application under s475 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal"). The first three decisions (being those in actions Nos DG 9, 10 and 11 of 1994) were dated 25 October 1994 and Mr M W Gerkens was the member constituting the Tribunal in each of those cases. The fourth decision (No DG 12 of 1994) was made on 24 October 1994 by Mr J Vrachnas. In each case the Tribunal had decided that the applicant was not a refugee and was not, therefore, entitled to a protection visa. On 28 February 1995, the court ordered that leave be granted to the Human Rights and Equal Opportunity Commission ("the Commission"), pursuant to par11(1)(0) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to file and serve written submissions in these matters. It was a condition of that leave that the submissions be limited to the issues that were, by virtue of the terms of the respective applications, relevant to the matters that were still to be determined. The Commission's submissions were received and distributed shortly prior to the commencement of the hearing. In all material respects they supported the case for the applicants, making particular reference to international conventions and the relevance of the international human rights instruments to a determination of refugee status. On the application of counsel for the applicants, counsel for the respondents not objecting, I made an order suppressing from publication the names of the applicants and any material that might tend to identify them: See s50 of the Federal Court of Australia Act 1976 (Cth) and the decisions on like applications of Lindgren J in A v Minister for Immigration and Ethnic Affairs (unreported: judgment delivered 5 December 1994) and of Sackville J in Minister for Immigration and Ethnic Affairs v Respondent A and Respondent B (unreported: judgment delivered 6 December 1994) I propose to accept counsel's suggestion that each applicant be referred to by use of an appropriate letter of the alphabet. When the matters were called on for hearing Mr Williams of counsel announced his appearance on behalf of Messrs Gerkens and Vrachnas; he informed the court that his clients were prepared to submit to the orders of the court, save only on questions of costs, but that he wished to submit, if necessary, argument on the issue of the immunity that is afforded his clients as members of the Refugee Review Tribunal under subs435(1) of the Act. Mr Williams submitted that the contents of an affidavit that had been filed on behalf of the applicants suggested that the applicants were proposing (in some impermissible way) to test the reasoning processes of the Tribunal members. Subsection 435(1) provides that: "A member has, in the performance of his or her duties as a member, the same protection and immunity as a member of the Administrative Appeals Tribunal." I adjourned the court to enable counsel to confer. On resumption, I was advised that the parties had resolved the issue. Mr Williams thereupon sought and was granted leave to withdraw. Each applicant is female and a citizen of the PRC. Each was born in Guangxi Province. They are presently aged 34, 30, 32 and 35 respectively. All are members of the Han ethnic group and all were accepted by the Tribunal for the purpose of their applications as Christians. They were part of a group which arrived by boat in Darwin on 13 July 1994; that boat was subsequently given the code name "Wombat". They had left the PRC unlawfully on 6 May 1994 and they arrived in Australia without appropriate documentation. Each applicant, together with her husband and their children, is presently detained at Point Cooke Immigration Reception and Processing Centre, Port Hedland, Western Australia. Shortly after arrival, each of the four applicants applied for refugee status for themselves, their husbands and their children. Those applications were all refused on 5 September 1994, and from that refusal, each applicant sought review by the Tribunal. Each application for review was unsuccessful but there are doubts about the date on which the applicants were notified of the Tribunal's adverse decisions. This issue is of material importance because of the rigid provisions of s478 of the Act; it only allows an applicant 28 days within which to lodge an application for review by the Federal Court and it denies the court any power to extend that time. Thus, an application for judicial review of a decision of the Tribunal must "be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision": par478(1)(b). Each of the applicants filed an affidavit that, in part, addressed the issue of the notification of the Tribunal's decision on her application; Richard John Douglas Sandilands also filed an affidavit that was directed to this issue. Mr Sandilands deposed that he had been employed as a legal practitioner by the Refugee Advice and Casework Service (Victoria) Inc. ("RACS") between June and November 1994 and that, in that period, he and up to 6 other lawyers had worked for RACS in Port Hedland representing "the refugee applicants from the vessel known as 'Wombat'". Mr Sandilands gave his understanding of the role of his employer in these terms:- "... RACS was at all material times under contract to the Commonwealth of Australia to provide legal and migration agent representation to all refugee applicants in immigration detention throughout Australia..." The original applications for orders of review were each filed in the Darwin Registry of the court on 30 November 1994. The case for the applicants was that they were "notified" of each decision, at the earliest, on 7 November; therefore the applications had been lodged within the 28 day period. The respondent Minister, on the other hand, claimed that the material that the applicants had placed before the court established that each applicant was "notified" of the decision on 31 October and that time therefore ran from that date. If that is correct, then the applications were lodged outside the 28 day period and, it not having been suggested that there is a discretionary residual power in the court to extend the time for filing an application, the court lacked jurisdiction to review any of the decisions. In each of the 4 cases, a document entitled "Decision and Reasons for Decision" was posted by the Registrar of the Tribunal to the applicant at Port Hedland under cover of a letter dated 26 October 1994. Each letter was in identical terms; it advised the applicant, amongst other things, that her application before the Tribunal had been unsuccessful and that any appeal must be lodged "within 28 days of notification of this decision". Each letter commenced with the words: "I enclose a copy of the Tribunal's decision...". I take that to constitute a reference to the document entitled "Decision and Reasons for Decision". The evidence of the respective applicants with respect to the subject of notification of the decision, as extrapolated from their affidavits, was as follows: The Applicant C (No DG9 of 1994) "The decision was given to me on or about 1 November 1994. One week later (on or about 7 November) the lawyer Richard explained the Refugee Review Tribunal Decision to me and my husband. At that time he handed me a copy of the document containing the Tribunal decision. I had not at any time previously been given a copy of the decision." (It may be assumed that the reference to "the lawyer Richard" is a reference to Mr Sandilands). The Applicant L (No DG 10 of 1994) "These reasons came with a transmission letter dated 26 October, 1994. On or about this date I was taken from my block at Port Hedland to the Camp Manager's office area with my husband and sister. We were told we had not been successful. I do not have a copy of the Refugee Review Tribunal decision and never have had, nor has my husband". The Applicant J (No DG 11 of 1994) "On or about 31 October, 1994 I was told by the manager of the Detention Centre to see him in his office. I went there with my child and my husband. There was an interpreter and two lawyers, Richard Sandilands and Nigel Dobbie. The Manager read the covering letter of rejection. He advised me that my lawyer, Nigel Dobbie would study the decision and inform me of the avenues of appeal. My lawyer told me he needed time to study the decision..." The Applicant Z (No DG 12 of 1994) "I was called into the office of the Detention Centre Manager, Mr Richardson, on about 31 October, 1994 and told that my application to the Refugee Review Tribunal for review of the decision to refuse my application for refugee status (sic). I was not handed a copy of the decision at that time or at any time since. I did meet with my lawyer Nigel about a week later and I recall that he explained the decision to me, although it was not read and translated word for word. But I was not given a copy." Mr Sandilands' recollection of the events of and following 31 October 1994 were set out in his affidavit of 14 February 1995. He deposed: "5. I have some personal recollection of the particular Applicants in the present proceedings and I personally represented one of them,... [the applicant C] ... throughout the refugee application and review process up to and including before the Refugee Review Tribunal ('RRT'). 6. I was present on or about 31 October, 1994 along with another RACS lawyer, Nigel Dobbie, when all the 'Wombat' applicants (including the Applicants herein) were given the results of their applications to the Refugee Review Tribunal. My best recollection of the process that took place is as follows. 7. The applicants were called into the office of the Detention Centre Manager, Mr Malcolm Richardson, in groups of three or four (usually, but not necessarily, family groups). Apart from myself, Mr Dobbie and Mr Richardson, an interpreter and the Detention Centre social worker, together with a couple of security guards, were also present in the office throughout. Mr Richardson spoke to each of them one by one. He gave each of them an oral summary of the transmission letter accompanying the Reasons for Decision, and may have read a part of it to some Applicants (although I do not have a clear memory of this). The summary was translated into Chinese. He then said to each of the Applicants words to the effect: 'Your lawyer (meaning either myself or Mr Dobbie) will now have a few words to say to you. He will be able to talk to you about any further options or avenues of appeal that may now be open to you'. 8. Either myself or Mr Dobbie (depending upon which of us had had the most to do with that particular small group) then gave a short address to each group. In my cases I said to each group words to the following effect: 'We will be getting together with each of you one by one over the next few days to explain the Tribunal decision to you in detail and to discuss and to advise you on what avenues of appeal or other options may now be open to you'. 9. It was not possible to have any of the reasons for decision (including those of the Applicants herein) read and translated for the applicants on that day i.e. 31 October, 1994. The process of reading and translating the detailed reasons for decision individually to each applicant, explaining them to the applicants and advising them of their legal rights and options, did not even begin until at least the following week. That process was a very long one and took several days. 10. None of the Applicants were given copies of the Reasons for Decision on the day Mr Richardson first advised them of the results of their RRT reviews. Both copies of the Reasons were retained by the lawyers (ie, myself and Mr Dobbie). In some cases a copy of the Reasons was later handed to the Applicant at the time the Reasons were explained in detail (ie on or after 7 November, 1994) while in other cases no copy was ever physically handed to the Applicant. 11. At no time did any of the Applicants herein provide either Mr Dobbie or myself with express authorisation (whether orally or in writing) to accept service of the RRT decision on their behalf. We took physical possession of both the Reasons and transmission letter in all cases purely as a matter of convenience , in that none of the Applicants could read or understand them until they were later explained to the Applicants by Mr Dobbie or myself and translated into Chinese." The argument that was advanced on behalf of the applicants was to the effect that the events of 31 October did not amount to a notification to them of the decision of the Tribunal. Nothing, so they claimed, short of personal receipt by them of the document entitled "Decision and Reasons for Decision" could amount to notification. In support of this proposition, counsel for the applicants pointed to Mr Sandilands assertion that neither he nor Mr Dobbie had been authorised by any of the applicants to accept service of or to take delivery of the Tribunal's decision on her behalf. For the respondent Minister it was submitted that the events of 31 October 1994 as deposed to by the applicants and Mr Sandilands amounted to each applicant "being notified of the decision" on that day. Furthermore, the Minister argued that s478 only referred to a notification of the decision; it was submitted on his behalf that notification should not be confused with delivery or service of a copy of the reasons for the decision. When the camp manager, Mr Richardson spoke to each applicant and gave her "an oral summary of the transmission letter" (see paragraph 7 of Mr Sandilands affidavit) each applicant was duly notified of the relevant decision. Finally, it was submitted on behalf of the Minister that each case was a clear case of the lawyer from RACS having implied authority to take delivery on behalf of each applicant of the letter of advice and the reasons for the decision and that such delivery amounted to proper notification of each decision. Before expressing my views on these competing arguments I should first state my findings of fact with respect to this issue:- 1. The Manager of the Detention Centre, Mr Richardson, met with each applicant in the presence of Mr Sandilands, Mr Dobbie, an interpreter, a social worker and some security guards in his office on 31 October 1994. 2. None of the applicants can read or speak English. 3. Each of the applicants had had a prior and continuing association with either Mr Sandilands or Mr Dobbie with respect to their applications for refugee status up to and including their applications to the Tribunal. 4. Mr Richardson handed the letter from the Tribunal and the copy of the Tribunal's reasons either to Mr Sandilands or to Mr Dobbie in the presence of each applicant and with the knowledge of each applicant. 5. No applicant sought to intercept those documents or to complain about Mr Richardson's conduct. 6. No applicant asked questions of or through the interpreter about the documents or her entitlement to the documents. Based on these findings of fact, I have no hesitation in concluding that each applicant had, by her conduct on and prior to 31 October 1994, given authority to Mr Sandilands or Mr Dobbie, as the case may be, to act for her generally in respect of her application for refugee status and, included in that authorisation, was the implied authority to receive on her behalf all communications from the Tribunal touching upon or concerning her application. I do not consider that any special or technical meaning need be given to the word "authority" or to its derivatives. In University of New South Wales v Moorhouse and Angus & Robertson (Publishers) Pty Ltd (1974-1975) 133 CLR 1 the High Court had to consider the meaning of the word "authorises" in s36(1) of the Copyright Act 1968 (Cth). That section provided that copyright is infringed when a person, not being the owner, without permission, does or authorises the doing of any act comprised in the copyright. Gibbs J, as he then was, commenced his consideration of the meaning of the word by saying at 12: "The word 'authorize', in legislation of similar intendment to s36 of the Act, has been held judicially to have its dictionary meaning of 'sanction, approve, countenance'." His Honour next referred to the decision in Corporation of the City of Adelaide v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 504 as authority for the proposition that even inactivity or indifference, exhibited by acts of commission or omission, may reach a degree from which an authorisation or permission may be inferred. Finally, his Honour said at the same page: "Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization." I see no reason why the word "authority" should not be given a like broad interpretation when considering the facts of these four applications. In my opinion, the events of 31 October amounted to an acquiescence on the part of each applicant. When the lawyers took the letter and reasons, telling the applicants "we will be getting together with each of you one by one over the next few days to explain the Tribunal decision... and to advise you on what avenues of appeal... may now be open to you", each applicant impliedly gave her consent to the lawyers conduct; perhaps her conduct did not amount to express authorisation as deposed to by Mr Sandilands, but it was implied authorisation to take delivery of the letter from the Tribunal and the enclosure to that letter which, as I have said, was entitled "Decisions and Reasons for Decision". The combination of the events that I have summarized, that is, the manager's advice that the Tribunal had rejected their applications, the lawyers' statement that "we will be getting together" and the lawyers' taking of the letter and reasons, amounted to a notification of the decision in each case to the respective applicants. The conclusion that the applicants had relevantly authorised the lawyers is supported by the fact that none of the applicants could speak English; they were wholly dependent on the lawyers and the interpreters to assist them in the pursuit of their applications. What would have happened, one might ask, if one of the applicants had demanded that the Tribunal's letter and reasons be given to her? One could reasonably expect that Mr Richardson would have handed them over. And if he did, that would have constituted service of the documents and notification of the decision. It would be incongruous then, in those circumstances to hold that, by standing back and remaining silent and permitting the lawyer to take the documents, the applicant would somehow be in a better position. I am fortified in reaching this conclusion by two additional factors; first, none of the applicants addressed the issue of authority in their respective affidavits: not one alleged that the lawyer had acted without authority. Secondly, Mr Sandilands affidavit was silent on the subject of implied authority; he merely said that there had been no "express authorisation". I am satisfied that the history of the relationship between the applicants and the lawyers from RACS and the events of 31 October 1994 make it abundantly clear that the lawyers were acting with the implied authority of each applicant when they took delivery of the letter and the reasons. That delivery was, in itself, a sufficient notification of the Tribunal's decision; and Mr Richardson's oral advice gives the added assurance that each applicant had actual knowledge of the adverse decision. The 28 day period for the lodgment of an application for review commenced to run as from 31 October. The last day for lodgment was 28 November; the applications were lodged 2 days late on 30 November and I have no power to grant an extension of time. This may seem a severe conclusion, but a court cannot confer jurisdiction on itself, even with the consent of the parties: Re Tooth & Co Ltd [1978] 34 FLR 112 at 115 per Bowen CJ. Jurisdiction in this sense means, as Black CJ explained in Australian Health Insurance Association Ltd v Esso Australia Ltd (1993) 41 FCR 450 at 460, "the authority a court has to decide a matter..." This conclusion means that it is unnecessary to consider the further argument of the Minister that the legislation draws a distinction between notification of a decision and supplying a copy of the reasons for the decision. But in case these matters should go further, I express the view that notification of a decision can only be effectuated by supplying to a party a copy of the reasons for the decision. I base this conclusion primarily on the provisions of subsections (1) and (2) of s430 of the Act. They provide: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. (2) The Tribunal must give the applicant and the Secretary a copy of the statement prepared under subsection (1) within 14 days after the decision concerned is made." Subsection (2) of s430 makes it clear that what must be supplied to the applicant (and to the Secretary) is "a copy of the statement" and when the applicant receives that statement she will find within it the matters that are identified in subs(1), the first of those being "the decision". In my opinion the use of the word "decision" in par478(1)(b) must take its meaning from the requirements of s430. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Mason CJ at 335 discussed the meaning of "decision" as it is used in the Administrative Decisions (Judicial Review) Act 1977 (Cth). His Honour noted that the word had a variety of potential meanings and referred to the observations of Deane J in Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590 that, in the context of judicial and administrative proceedings, it ordinarily refers to an announced or published ruling of adjudication. In my opinion, this reference to publication adds a measure of support to my conclusion that "notification" of the decision entails the supply or service of a copy of the reasons for the decision. Although my finding that I lack jurisdiction to hear these applications is sufficient to conclude these reasons, both counsel presented full argument on all substantive issues and both asked that I state my views on those issues so that, if the matter goes on appeal, the Full Court will have the better opportunity to consider all issues that are in dispute. As I agreed to do that, I turn now to a consideration of those further issues. Section 36 of the Act creates a class of visas to be known as protection visas. Subsection 36(2) lays down a criterion for a protection visa in that the applicant must be a "non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". The "Refugees Convention" means the Convention relating to the status of Refugees done at Geneva on 28 July 1951 and the "Refugees Protocol" means the Protocol relating to the Status of Refugees done at New York on 31 January 1967. References hereafter to "the Convention" will mean that Convention as amended by the Protocol. Additional criteria for the grant of protection visas are set out in sub-class 866 of Schedule 2 of the Migration Regulations, but it will not be necessary to make specific reference to them. The Refugees Convention, as amended by the Protocol defines a refugee as a person who: "... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." The critical matter that had to be resolved by the Tribunal in each of the four applications was whether the applicants were non-citizens in Australia to whom Australia had protection obligations under the Convention. Each had claimed that she had a well-founded fear of being persecuted for reasons of religion and for membership of a particular social group. And, although the particular facts and circumstances varied between the applicants in matters of detail, each rested her claims on the fact that whilst a resident in the PRC she had been sterilised against her will. The law in Australia on the subject of forced sterilization is found in the recent decision of the High Court in Secretary, Department of Health and Community Services v J W B and S M B (1992) 175 CLR 218. [Marion's case]. The parents of Marion, a fourteen year old mentally retarded girl, applied to the Family Court for an order authorising performance of a hysterectomy and an ovariectomy on her. A case was stated for the Full Court of the Family Court and, as amended by the court, the questions asked were (inter alia) whether the parents could lawfully authorise sterilization and, if not, whether the Family Court had jurisdiction to authorise the carrying out of such a procedure. The Full Court, by a majority, held that the parents had the requisite authority; the court also held that it had jurisdiction to make an order authorising the act of sterilization. On appeal however, the High Court came to the opposite conclusion, answering both issues in the negative (unless the justification for the act of sterilization was an incidental result of surgery performed to cure a disease or correct some malfunction). The greater value of the decision in Marion's case, for the purposes of this case lies in the views expressed by the members of the court with respect to the prospective effects of compulsory sterilization. For example, Deane J said at p296: "Irreversible sterilization involves the destruction of a natural human attribute and the removal of an integral part of complete human personality. Its eventual psychological consequences will commonly be unforeseeable. They may include emotional devastation, destruction of self-esteem and perceived deprivation of an essential element and purpose of life itself." McHugh J expressed similar concerns. He said: "Furthermore, sterilization involves invasive procedures resulting in the permanent deprivation of a person's right or liberty to reproduce, with the potentiality for psychological harm including the lowering - perhaps the destruction - of self-esteem..." (p320) Brennan J was even more forceful, expressing the view that he was unable to "postulate a case where it would be justifiable to authorise her sterilization" (p277). Finally, in their joint judgment, Mason CJ, Dawson, Toohey and Gaudron JJ said: "As will become clear, it is the very fact that sterilization implies more than medical, or surgical, treatment that is crucial to the central issue in this appeal." (p232) The so-called "one child policy" of the PRC, so far as it applied to the four applicants is contained in the Family Planning Regulations of the Guangxi Zhuang Autonomous Region which came into force on 1 January 1989 (Art 36). Article 8 of those regulations provides: "Child-bearing must be carried out according to a plan, and child bearing outside the plan must be prohibited. One couple can only have one child, except those who can meet the rules described below." There then follows a series of provisions that allow for formal applications to be lodged for permission to have a second child; the regulations allow for such permission, for example, as a result of the first child's disability or because one of the parents is an only child of a revolutionary martyr and so on. These provisions also vary between the agricultural and non-agricultural populations and between ethnic minority populations. The regulations do not give to any authority the power to enforce sterilization; in fact, Article 17 advocates "contraception as a main measure". Nevertheless, there are strong inducements; women who undergo "birth-control operations" are given leave with pay (Art 26) and those "whose pregnancy does not follow the plan must take remedy measures" or face the threat of some unspecified penalty (Art 29). Sterilization is also acknowledged in Article 19 in this manner: "After sterilisation child-bearing - age couples can restore their fertility later with approval of the family planning authorities at county or above levels." The regulations contain financial inducements to couples to declare themselves as having made a commitment to the one-child policy; they will receive a "childcare allowance" (Art 23) and a 5% pension increase (Art 24).They will also have priority in matters of schooling, medical treatment, employment and promotion (Art 25). The publication of the U.S. Government Printing office entitled "Country Reports on Human Rights Practices for 1993", a Report of the Department of State submitted to the Committee on Foreign Affairs U.S. House of Representatives and the Committee on Foreign Relations U.S. Senate, contains the following information on the PRC's one-child policy: "Physical compulsion to submit to abortion or sterilization is not authorized, but Chinese officials acknowledge privately that there are still instances of forced abortions and sterilizations in remote, rural areas. Officials maintain that, when discovered, abuses by local officials result in discipline or retraining. They admit, however, that stronger punishment is rare and have not documented any cases where punishment has occurred." (p609) John S Aird in his book "Slaughter of the Innocents - Coercive Birth Control in China" (AEI Press, Washington: 1990) at p88 paints a more general picture: "The Chinese family planning program is being carried out against the popular will by means of a variety of coercive measures. Despite official denials and intermittent efforts to discourage some of the more extreme manifestations, since the early 1970s if not before, coercion has been an integral part of the program. The central authorities intended only a slight relaxation of family planning policies in 1984. The additional categories of couples allowed a second child as a small gesture towards 'reasonableness' affected very few families. The rest were supposed to be held strictly to the one-child limit. Unauthorized second births were not to be allowed and third and higher order births were to be 'absolutely prohibited', as in 1983." In each of his three decisions, Mr Gerkens showed a consistent approach in reaching his conclusion that the respective applicants and their families were not entitled to the protection of refugee status. He found that each applicant had been forcibly sterilized and, in view of his general acceptance of the applicants' evidence and the contents of his reasons as a whole, it is implicit that he found that sterilization had occurred in each case as a consequence of a failure to comply with the Family Planning Regulations. He was prepared in each case to assume without finding that each applicant has a subjective fear of persecution should she be returned to PRC. He was further prepared to assume without finding that coerced sterilization was "persecution". He noted that each applicant had asserted that sterilization was against her Christian beliefs and that, by forcibly sterilizing her, the authorities had persecuted her for a religious reason. He rejected these assertions, however, concluding that the acts of sterilization had been engineered because of a desire on the part of the local authorities to advance the objectives of the one child policy or to satisfy their quota obligations to the central authorities under that policy. In his decision in action DG 11 of 1994, for example, he concluded that on the evidence: "... the motivation for the forced sterilization was enthusiastic enforcement of the family planning laws of the PRC." In arriving at this conclusion, Mr Gerkens rejected the assertion of each applicant that the forcible sterilization (and, in one case, a forcible abortion), being against the applicant's Christian beliefs, constituted persecution for a religious reason by the PRC authorities. He said in each of the three decisions: "To say that a person has been persecuted for reasons of religion is to say that the persecution was religiously motivated on the part of the persecutor. It follows that persecution for a reason unconnected with religion is not persecution for reasons of religion even if the act of persecution interferes with a religious belief of the applicant..." Mr Gerkens considered that these remarks were supported by dicta from the judgment of the Supreme Court of Canada in Re Attorney-General of Canada and Ward (1993) 103 DLR (4th) 1 (Ward's case). Mr Gerkens concluded that the matter was to be assessed only through the eyes of the alleged perpetrator of the persecution, ignoring the feelings and reactions of the victim. On this basis he came to the conclusion, in each of the three cases, that the forcible acts of abortion and sterilization did not constitute persecution "for reasons of religion in terms of the Convention definition of a 'refugee'." Mr Gerkens also rejected the argument that any of the three applicants had a "well founded fear of being persecuted for reasons of... membership of a particular social group..." In each case he came to the conclusion that,"for practical purposes", in the event of an applicant being returned to the PRC, "the virtual finality of sterilization means that there is not a real chance of further interference with the applicant's body." These two findings plus a statement, appearing in all three decisions, that: "On any view of the environmental and demographic future of the world, it is patently obvious that the philosophical basis of the PRC family planning laws is sound." were trenchantly criticised by Mr McDonald, counsel for the applicants. Mr Tracey QC, counsel for the Minister, sought to sweep aside Mr Gerkens views on the future of the world as a mere expression of opinion that was unnecessary for a final determination of the matter. But Mr McDonald would not let the matter rest, returning to the statement with emphasis time and again, claiming that it coloured each of the decisions because of an impermissible line of thinking. Having reflected on the matter, I have come to the conclusion that it was not necessary for Mr Gerkens to state his views about the philosophical basis of the PRC family planning laws. He had concluded that "persecution", in terms of the Convention, was to be approached through the perspective of the persecutor and he had concluded that because sterilization was an act of finality, there was no justifiable prospective fear of persecution in the event of the applicants being returned to the PRC. Those conclusions were sufficient for his decisions. That does not mean however, that Mr Gerkens thereby fell into error. The grounds upon which the court can review a decision of the Tribunal are limited to those set out in subs476(1) of the Act. They are: "(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision." Subsection 476(2) specifically excludes a breach of the rules of natural justice and unreasonableness based on the "Wednesbury" principle as grounds of review and subss(3) and (4) further restrict the operation of the grounds contained in pars476(1)(d) and (g). In particular, the reference to an improper exercise of a power in par(d) is not to be construed as including a reference to taking irrelevant considerations into account or failing to take relevant considerations into account in the exercise of a power. Mr Gerkens' view can be categorised as a statement of his personal opinion; issues of procedures, jurisdiction and authorisation to which pars(a) (b) and (c) of subs476(1) are directed can have no application therefore to his statement and any suggestion that his opinion constituted an "irrelevant consideration" is no longer to the point in a consideration of par(d). His expression of opinion is neither an error of law nor an incorrect application of the law to the facts and there was no suggestion that his decision was induced or affected by fraud or actual bias. There is therefore no room for the application of pars(e) and (f). Finally, there remains par(g). In my opinion, there was no evidence or other material before the decision-maker that justified him expressing himself in the manner in which he did. But that is not the test that is referred to in par(g). The lack of evidence must have a relationship to the decision - not to a matter which is incidental to or, as in this case, unnecessary for the decision. Furthermore, the operation of par(g) is further constrained by subs476(4). That subsection makes it clear that the ground in par(g) is not available in this case. It provides: "(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." In my opinion Mr Gerkens' statement of his personal opinion about the philosophical basis of the PRC family planning laws does not constitute a ground for review within the constraints of s476 of the Act and, even if, contrary to the conclusion that I have reached, it constituted an error of law, it would be an immaterial error that did not vitiate the decision: c.f. BTR PLC v Westinghouse Brake & Signal Co (Australia) Ltd (1992) 34 FCR 246 at 253-254 per Lockhart and Hill JJ; Waterscheid Australia Pty Ltd v Collector of Customs (1988) 7 AAR 555 at 566 per Davies J. The circumstances and findings of fact with respect to the applicant Z (Action No DG 12 of 1993) are materially different to those pertaining to the first three applicants. Although the applicant, Z, expressed a belief in Christianity and although she had undergone compulsory sterilization, the Tribunal made findings of fact, on the merits, that were adverse to her claim. On the subject of religion the Tribunal made the following findings: "The Applicant was vague about her church and religion, demonstrated minimal knowledge of Christianity and gave no indication that she had sought to practise in any way other than to be a good person. Whilst she may have been warned not to attend church after her first attendance some two or three years ago, she neither attempted to attend again nor expressed a desire to do so, although the church still exists and operates publicly. The Tribunal finds, in the circumstances, that the Applicant would be free to practise her religion in the way she has chosen should she return to China. If she wants to attend church, there was no evidence that she would be prevented from doing so, given the continued operation of the church. The Tribunal concludes that the warning the Applicant received was merely the view of a person who was associated with her husband's former work place and is not an indication that she faces persecution for reason of her religion." As to the vexed problem of sterilization the Tribunal found: "The Tribunal accepts that the Applicant was forcibly sterilised in 1988. This information was only provided at the hearing despite the Applicant having several opportunities to raise it previously. At the hearing she made no other comment than to relate the fact that it had occurred and expressed no opinion as to whether she considered her sterilisation constituted ongoing persecution because she could not, in the future, exercise her right to have more children... the applicant did not have a subjective fear of prospective persecution on this ground and therefore did not have a well-founded fear." Although Mr Vrachnas shared the view of Mr Gerkens that the act of sterilization was an act of finality such that "the claim that the former act constitutes on-going persecution is groundless", this observation was not necessary for his decision: he had concluded, on the evidence that was before the Tribunal that the applicant did not have "a subjective fear of prospective persecution... and therefore did not have a well founded fear". These findings, which were reasonably open to the Tribunal on the material that was before it, can not now be challenged in this court. None of the grounds of review, as set out in s476 of the Act is available to this applicant. Independently of any question of jurisdiction, I would have dismissed this application. I return to consider further, the other three applications. In my opinion, the authorities in Canada and Australia have now acknowledged that forced sterilization constitutes persecution. In Canada, in the decision of Re Cheung and Minister of Employment and Immigration (1993) 102 D.L.R. (4th) 214, (Cheung's case) Linden JA in delivering the judgment of the Federal Court of Appeal said: "There is a point at which cruel treatment becomes persecution regardless of whether it is sanctioned by law; the forced sterilization of women is so intrusive as to be beyond that point. This is not merely an 'economic affair' as the board suggested in its reasons, nor is it 'purely regulatory', as counsel for the Minister argued. The practice of forcing women to undergo sterilization is such an extreme violation of their basic human rights as to be persecutory, even though this was thought to advance the modernization of China." The decision in Cheung's case was subsequently referred to with approval by the Supreme Court of Canada in Ward's case. In Australia, in the case of Minister for Immigration and Ethnic Affairs v Respondent A (unreported: judgment delivered 6 December 1994) (Respondent A's case), the Refugee Review Tribunal had found that each respondent had a well-founded fear of future forcible sterilization if they were returned to the PRC. This finding was not challenged on appeal; rather the Minister contended (unsuccessfully) that the respondents could not be members of any appropriately defined "particular social group" so that any persecution feared by a respondent was not a Convention reason: (p11). In rejecting the Minister's arguments, Sackville J referred extensively to the decision in Cheung's case and relied on it (inter alia) for the proposition that "the particular sanctions or consequences faced by members of the group... could also establish the basis for a well-founded fear of persecution..." (p32). There are then the following further questions that must be answered. The first is whether the finding by Mr Gerkens that the issue of "persecution" is to be viewed through the eyes only of the persecutor is correct. The next question is whether the present applicants are to be distinguished (because they have already been sterilized) from the claimants in Respondent A's case? Is the so called "act of finality" conclusive of any future well-founded fear of being persecuted for a convention reason? In my opinion, Mr Gerkens erred in answering each of these questions. In concluding that the concept of motivation is to be assessed from the perspective of the persecutor he relied upon the following passage in Ward's case: "The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution." (p39) But the context in which this passage appears shows that it was not intended to be an exclusionary statement. Ward's case dealt with a former member of a terrorist organization in Northern Ireland. He had been sentenced to death by his organization but had escaped to Canada as a visitor. He then sought refugee status. In discussing whether "political opinion", as a convention reason, was available to him, La Forest J, who delivered the judgment of the court, noted that refugee protection extends to situations where the State is not an accomplice to the persecution, but is, nevertheless, unable to protect the claimant. In offering refinements to a categorization of "political opinion" his Honour went on to make the quoted comment in this context: "... the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs. The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution. The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant. Similar considerations would seem to apply to other bases of persecution." (p39) I do not consider that, by this statement, the court intended to remove from all consideration, the state of mind of the claimant. To do that would take away the subjective element that must be present in order to establish a fear. The High Court has held in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 that the term "well-founded fear of persecution" means that the applicant must have a subjective fear although there must be an objective justification or foundation for the fear. Furthermore, to suggest that for all purposes the perspective of the persecutor is the sole determiner is contrary to the existing writings on the subject. For example, the Canadian Federal Court pointed out that the intent of the persecutor might be ignored in some cases. It said in Cheung's case at p221: "Furthermore, if the punishment or treatment under a law of general application is so Draconian as to be completely disproportionate to the objective of the law, it may be viewed as persecutory. This is so regardless of whether the intent of the punishment or treatment is persecution. Cloaking persecution with a veneer of legality does not render it less persecutory. Brutality in furtherance of a legitimate end is still brutality." Sackville J in Respondent A's case referring to Cheung's case, put it succinctly when he said at 31: "The board had required a persecutory intent, but the authorities made it clear that a persecutory effect sufficed." Dr Hathaway in his book "The Law of Refugee Status" (Butterworths, Canada: 1992) p128 N224 quotes the following passage from P Hyndman: "The 1951 Convention Definition of Refugee" (1987), 9 Human Rts. Q.49, at 67: "Thus, if groups of citizens perpetrate acts of persecution against other groups, and if the government of the country is either unable or unwilling to provide protection to the victimized, the victims nonetheless will be considered to be the objects of persecution. The fact that the government wishes to provide protection will not alter this situation." He relies on that statement as authority for the proposition that "[i]ntention to harm on the part of the State is irrelevant". In my opinion, the Tribunal fell into error in actions DG 9, 10 and 11 of 1994 when it concluded that persecution for a reason unconnected with religion is not persecution for reasons of religion even if the act of persecution interferes with a religious belief of the applicant. That was, in the language of par476(1)(e) of the Act, "an error of law, being an error involving an incorrect interpretation of the applicable law..."; but for the lack of jurisdiction it would otherwise have entitled this court to set aside the decision and refer the matter back to the decision-maker for further consideration: s481. In each of these three cases, the Tribunal was prepared to assume without deciding that, the applicants had a subjective fear of persecution should they be returned to the PRC. The Tribunal was also prepared to assume that acts of forced sterilization and abortion constituted persecution for a Convention reason. The Tribunal then proceeded to postulate this question in each case: "... the issue becomes whether there is a real chance that she would be persecuted for such a reason upon return to China at this time or within the reasonably foreseeable future." In each case the Tribunal came to the conclusion that the motivation for the forced sterilization was enthusiastic enforcement of the family planning laws of the PRC. The Tribunal then said: "For practical purposes, the virtual finality of sterilization means that there is not a real chance of further interference with the applicant's body." But this conclusion overlooked a wealth of detail that was advanced by the applicants about other actions of the authorities against them and members of their family. For example, there was evidence of unreasonable and unexplained fines being imposed, assaults, loss of employment and work opportunities, denial of medical treatment and victimization of children at school. In addition, there are the provisions of the Family Planning Regulations. The Tribunal seems to have overlooked the likely continuation of this type of conduct should the applicants be returned to the PRC. The fear of persecution will be well-founded if there is a real chance that an applicant will be persecuted if she returns to the PRC: Chan's case at 389 per Mason CJ and at 429 per McHugh J; see also Minister for immigration Local Government and Ethnic Affairs v Mok Gek Bouy (unreported: judgment delivered 22 December 1994). Mr Tracey QC submitted that what has just been summarised would constitute an impermissible review of the Tribunal's decisions. It would be, so he claimed, an inquiry to determine whether the Tribunal had failed to take relevant considerations into account in the exercise of its powers and that was proscribed by the provisions of par476(3)(d) of the Act. While there is force in this submission, it is overborne, in my opinion, by the enormity of the omission. The Tribunal mistakenly assumed that, in the circumstances of each of these three cases, the word "persecution", as a matter of law, extended to - but only to - the act of sterilization. But that is not the correct test. The task that the Tribunal should have set itself was an assessment of the treatment that was likely to be meted out to these applicants as a consequence of them having breached the one child policy. That task, properly undertaken would have required a consideration of the Family Planning Regulations, findings about the applicants' evidence with respect to their treatment and their families' treatment by the authorities in the past and an assessment of the likely treatment that they might receive were they to be returned. In that exercise, a past act of forced sterilization would be only one of many matters to be taken into consideration. If it had been open to me, I would have ordered that each of these three applications be referred back to the Tribunal for further consideration. As I have found that I lack jurisdiction, however, each of the four claims must be dismissed with costs. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Mr. Justice O'Loughlin. Associate Dated: Counsel for the Appellants : Mr C McDonald, Ms Gearin Solicitor for the Appellants : Mr K Parish Counsel for the First Respondent: Mr R Tracey QC Solicitors for the First Respondent: Australian Government Solicitor Counsel for the Second Respondents: Mr N J Williams Solicitors for the Second Respondents : Australian Government Solicitor Written Submissions received from the Human Rights Commission. Hearing Dates : 7, 8 & 9 March 1995