FEDERAL COURT OF AUSTRALIA Xia v Minister for Immigration & Multicultural Affairs [2001] FCA 1550 ALICE XIA BY HER NEXT FRIEND CHUANG YING XIA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1147 of 2001 HILL J 5 NOVEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1147 OF 2001 BETWEEN: ALICE XIA BY HER NEXT FRIEND CHUANG YING XIA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL J DATE OF ORDER: 5 NOVEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent Minister's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1147 OF 2001 BETWEEN: ALICE XIA BY HER NEXT FRIEND CHUANG YING XIA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HILL J DATE: 5 NOVEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a two-year-old child born in Australia on 31 May 1999. She is a national of the People's Republic of China. She applied for a Protection (Class XA) Visa, a criterion of which is that she is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). Her application was unsuccessful. An application was then made to the Refugee Review Tribunal ("the Tribunal") to review the decision of the delegate of the Minister. She was unsuccessful before the Tribunal and now applies to the Court for judicial review of the Tribunal's decision pursuant to s 476 of the Migration Act 1958 (Cth)("the Act"). 2 The amended application for an order of review referred to nine grounds upon which the applicant relied. Those grounds reduced before me effectively to two. The first ground was that there was no evidence or other material before the Tribunal upon which a finding said to have been made by it that certain fines could be afforded by the applicant's immediate family could be made. The ground was said to be that in s 476(1)(e). So far as it was more appropriate the applicant relied as well upon s 476(1)(g) of the Act which specifically refers to there being no evidence. 3 The second ground, also based upon s 476(1)(e), was that the Tribunal had erred in law in finding that any possible persecution which the applicant might suffer could be avoided by the family of the applicant moving to a part of China other than Guangdong province. The complaint is that the Tribunal did not consider whether it was likely that this could occur or what location or province it was likely the family could reside in. 4 Australia has protection obligations, generally speaking, under the Convention to a person who is, within the meaning of the expression in the Convention, a refugee. A person will be a refugee if that person: "… owing to 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it." 5 The applicant's claim to be considered a refugee turned upon the fact that she was the second child of her parents. Her mother did not have permission of the authorities of the People's Republic of China to have a second child. She claimed that by virtue of what is often referred to as the "one child policy" she would not be able to be registered in the "Hukou" Family Registration Book and as such would be deprived of an education, would not be able to attend a state school, would not be entitled to health benefits such as immunisation or to receive discounted food. In consequence it was said that she would grow up without communication skills, would not be literate, would have difficulty maintaining herself and any family she might have, would suffer harassment from the authorities, would be unable to gain employment in the government sector or apply for an identity card. It was also claimed that a consequence of her parents breaching the one child policy, a consequence the effects of which would be visited upon her, was that there would be a need for her parents to pay a fine, sometimes called in the Tribunal's reasons an "incentive" or "bribe", which could bring about registration and thereby avoid the consequences that would follow if she grew up unregistered. 6 The Tribunal accepted that the applicant would not have household registration were she to return to China and would experience difficulties as an unregistered person. It noted that the difficulties she would likely encounter flowed from her being unregistered rather than from having been born outside the one child policy. One ground of review originally raised was that the Tribunal had determined that the applicant did not satisfy the definition of refugee because her problems came not from membership of a particular social group, namely children born outside the one child policy, but from inability to obtain registration. However, it was accepted in the course of argument that this was not what the Tribunal meant. Rather it had decided, because the difficulties arose from lack of registration, that it should concentrate on the question whether it was possible for the applicant to gain that registration. To the extent the Tribunal looked at the issue of the applicant's ability to be registered I do not think that the Tribunal erred in law. 7 The question was, as indeed the Tribunal acknowledged, whether there was a real chance that the feared persecution to which I have referred might occur, those matters stemming from her inability to be registered because she was the second child of her parents. 8 The Tribunal said it was satisfied that there was only a remote chance that the applicant would face persecution as a result of the denial of registration because it was of the view that the applicant's parents and extended family would take the necessary steps to ensure that she would obtain household registration or otherwise mitigate the effects of non-registration on her so that she would not have to face persecution. The Tribunal said: "If the family decides to return to Guangdong province, the evidence from DFAT indicates that it is open to them to pay the fine and thus obtain household registration for Alice. The recent evidence from DFAT, which appears to be unequivocal and authoritative and on which I place significant weight, is that unregistered children can be registered 'on payment of a fine' (DFAT 2000 CX46100). That evidence, coupled with the evidence from the same source that the objective of all policies and regulations is to deter a high birthrate, thus, once births have occurred, 'pragmatism takes precedence', and that DFAT (2000 CX46100) are unaware of 'any difficulties' arising for people returning from abroad with more than one child, leads me to infer that the payment of the fine is the most that would be required for Alice to be registered. The issue then arises whether, if the family have to pay a fine in order to make Alice eligible for household registration, the effect on the family, and thus on Alice, might in itself amount to persecution. I have noted that not every threat of harm or interference with a person's rights for a Convention reason constitutes 'being persecuted', and that in Chan's case Mason CJ referred to persecution as requiring 'some serious punishment or penalty or some significant detriment or disadvantage' (my emphasis). I am satisfied that the size of the fine is unlikely to be large, given the independent evidence that the level of such fines is based on the income of one of the parents (DFAT 2000). In this case Alice's parents' income in the PRC appears to have been very low. Ms Su gave evidence that she worked only occasionally, and then on a casual basis in the private sector (she earned no income in the PRC after 1985, according to her own application for the protection visa (DIMA file 97/004614, Protection Visa form C at question 34)), while Mr Xia also only worked on a casual basis in the private sector. Further, Ms Su and Alice's sister (Kitty) have been supported by Ms Su's parents here in Australia for some eight years, and Alice's father has been supported by them for some three years. Neither of Alice's parents has earned any income while in Australia. Alice has been supported by her grandparents since her birth over two years ago. Mr Su's willingness to give oral evidence to this Tribunal illustrated his concern for Alice's welfare. I infer from the totality of this evidence that Ms Su's parents have willingly spent a very considerable sum supporting Alice's immediate family over the years, and that they both care about their daughter and her children, including Alice, and have the financial means to support them. Ms Su agreed that this was so. I am therefore satisfied that the extended family has the resources to pay the fine which will enable Alice to obtain household registration, and that they would use them to do this. For these reasons I am not satisfied that the payment of the fine in this case could be characterised as a 'serious' penalty, nor that it might be significantly detrimental or disadvantageous to the family and thus to Alice. The obligation to pay the fine would not amount to persecution." 9 Having concluded that the applicant's extended family had the resources to pay the fine to enable the applicant to obtain household registration and that the extended family would do so, the Tribunal held that the payment of the fine and indeed the need to register could be avoided altogether if the family did not return to Guangdong but, like millions of other Chinese, travelled to other parts of the country where work was available. It noted that there were whole families which moved outside their area of registration thereby foregoing the benefits of registration (which the Tribunal found were limited to locality). On this point the Tribunal said: "Alice's parents are not obliged to return to either of their places of household registration in Guangdong province. They have both worked only in China's private sector in the past and, given that they have both felt able to resettle in Australia and adapt to entirely new circumstances here, I am satisfied that they have the personal qualities which would enable them to resettle in some other part of the PRC and find employment there. … I am satisfied that the lack of registration in Alice's case, if she were not residing in Guangdong, would not give rise to circumstances which could be characterised as persecution." 10 This Court in undertaking judicial review of a decision of the Tribunal is limited to consideration of the grounds in s 476 of the Act. One such ground (s 476(1)(e)) is that the decision involve 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;" 11 Another ground is that in s 476(1)(g) which is in the following terms: "[T]hat there was no evidence or other material to justify the making of the decision." 12 Section 476(1)(g) must be read together with s 476(4) which relevantly requires that the ground stipulated in paragraph 1(g) is not to be taken to have been made out unless: "… (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 13 There is some overlap at least within the grounds of review stipulated in s 476. So it can be said that an administrative decision made without evidence would involve an error of law: Smith v General Motor Cab Co Limited [1911] AC 188 at 190. It might also involve a failure to afford natural justice: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 per Deane J at 67-8, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 356-7. However, it will be noted that the ground of error of law in s 476(1)(e) does not encompass all occasions where an error of law may be committed. So too, the no evidence ground does not encompass every case where no evidence or other material may justify the decision. 14 There is a difficulty in applying the error of law ground in s 476(1)(e) to a case where it is claimed that there was no evidence upon which the Tribunal could base its decision. If the no evidence ground can at all fit within the error of law ground in s 476(1)(e) it will only be because the error of law (the lack of an evidential basis) would involve an incorrect application of the law to the facts as found by the decision-maker. But if it be assumed that the error of law ground in s 476(1)(e) is wide enough to encompass the no evidence ground, it is my view as a matter of construction that the no evidence ground is not authorised to be dealt with under the error of law ground for so to do would be to render totally nugatory the qualification on the no evidence ground to be found in s 476(4). If on every occasion the no evidence ground can be dealt with as involving an error of law, the qualification to the no evidence ground relevant here, namely that the person who made the decision based it upon the existence of a particular fact that did not exist, can never have any application. It seems to me to follow as a matter of construction of s 476 that the only ground on which a no evidence argument can be raised is s 476(1)(g), qualified as it is by s 476(4). Counsel for the applicant appeared during the course of argument to accept that this view was correct and accordingly did not press his argument that s 476(1)(e) was applicable. 15 However, it is unnecessary to decide the question for the purposes of the present case because I am unable to find that the applicant has made out a case of no evidence or other material justifying the making of the decision even if the provisions of s 476(4) are left out of consideration. 16 The question whether there was evidence or other material to justify the making of a decision requires the Court exercising judicial review to have before it all of the evidence that was before the decision maker except in a case where it is agreed between the parties that there was no relevant evidence. However, there is not before me the transcript of evidence heard by the Tribunal and upon which its decision was based. This is so notwithstanding that it is clear that the question of the quantum of fine, incentive or bribe was the subject of discussion in oral evidence and that at least in part the Tribunal's decision that the extended family could afford to and would pay it was derived from a consideration of that evidence. That suffices to dispose of the no evidence ground whether it arises under s 476(1)(e) or (g). 17 Counsel for the applicant took the Court to a report sourced from DFAT dated 3 November 2000 entitled "China – Treatment of 'Black Children'". It was submitted that a glance at the background material on page 1 of that report made it clear that the information which followed did not apply to Guangdong. The background material stated "[w]hile as full a picture of the situation for black children in China as a whole would be ideal, we appreciate the difficulties that this might entail. If necessary, information on the situation in regard to at least Fujian, Guangdong and Guangxi provinces would be welcomed". 18 It is far from clear that the inference claimed to be capable of being drawn from this sentence leads to the conclusion that the report does not concern itself with Guangdong province. It rather suggests that because Guangdong is a heavily populated province continuing information on the situation there would be appreciated. 19 The report on its fourth page reads as follows: "Couples having children outside the regulations are meant to pay fines before the children can be registered. These fines vary from place to place but appear to be substantial. There are conflicting reports about how effectively these fines are applied in practice. Officials have told us that rural families are unswayed by the fines, regarding them simply as one of the necessary costs of having a large family; others have said the fines are rarely applied, or are applied only in a token fashion (eg. choosing to use the mother's income as a basis for determining the level of the fine, because the mother has no permanent job, and thus a much lower income than the father)." 20 The passage quoted above was said to lead to the conclusion that at least outside Guangdong fines are substantial. 21 Counsel for the Minister submitted, first, that the material did not exclude the situation in Guangdong and second that it indicated that the fines were often not enforced and that in any event that where the father (as here) came from a rural area and the mother (as here) had but a nominal income, the fine would be so low as to permit a finding to be made that the extended family could easily afford payment of it. 22 It is possible that there was no evidence concerning the means of members of the applicant's family not being the mother and father which would enable one to draw a conclusion one way or the other as to the ability to pay the fine. Although the matter is arguable, I think there is much to be said for the view that if the only evidence were the DFAT report, it would be difficult for a Tribunal property exercising its jurisdiction to reach the finding the Tribunal did. However, as I have indicated, it is clear there was other evidence. The Tribunal's reasons refer to evidence given by the applicant's grandfather who resides in Australia and who had apparently for some years looked after the applicant's parents and the applicant as well as other members of the family. Evidence was also given by Alice's mother concerning not merely her income and that of her husband but also what various members of the family who lived in Australia did. Without access to the transcript of the oral evidence I am unable to say whether there would be evidence to support the findings which the Tribunal made. 23 I suggested to counsel for the applicant that he might consider seeking an adjournment in order that a copy of the transcript of evidence could be obtained and put before me. He has indicated now to me that his client does not wish to seek an adjournment for that purpose. 24 In case it should be thought that I have overlooked the matter, I should say that the content of s 476(4) does not provide a dictionary of what is meant by there being no evidence or other material to justify the making of the decision. Indeed it has been held that the proper way of approaching a case based upon the no evidence ground is to demonstrate (the order in which this may be done is not material) that there was no evidence or other material to justify the making of the decision and also to demonstrate that the decision was based on the existence of a particular fact, showing by admissible evidence that the fact did not exist: see Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [26] to [28]. 25 The qualification to s 476(1)(g) in s 476(4)(b) provides yet another reason why the application cannot be successful. It is no doubt true to say that the Tribunal based its decision both on the quantum of the fine, incentive or bribe that would need to be paid and the ability and willingness of the applicant's extended family to pay it. There was no evidence before me in admissible form of any of these matters. Just as I offered counsel for the applicant the opportunity to seek an adjournment to obtain a copy of the transcript and tender it in evidence, so I offered counsel the ability to seek an adjournment on the basis that he would lead evidence in admissible form going to the quantum of the fine, incentive or bribe that needed to be paid as well as the ability and willingness of the extended family to pay it. Again, I was advised by counsel that his clients did not wish to seek an adjournment to put before the Court evidence on the matters needed to be demonstrated to satisfy the qualification on the no evidence ground to be found in s 476(4). 26 As earlier noted, counsel for the applicant sought to argue that in looking at the question of relocation, the Tribunal had erred in law, inter alia, by not taking into account the reasonableness of the family relocating to a province other than Guangdong. It was also submitted that it was necessary that the Tribunal make a finding on precisely which province it would be reasonable for the family to relocate to. While I think it is true that the Tribunal erred in law in failing to consider the issue of reasonableness of relocation, that is no assistance to the applicant here in obtaining an order from the Court that the Tribunal's decision be set aside. The issue of relocation and whether or not such a relocation would be reasonable is an issue which arises only if the applicant has established that he or she falls within the definition of refugee in the Convention. If an applicant does fall within that definition Australia will still have no protection obligations to the applicant if reasonable relocation is possible so as to militate against future persecution. If the applicant is not a refugee then the issue of relocation simply does not arise. 27 For these reasons I would dismiss the application and order the applicant to pay the respondent Minister's costs of it. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill. Associate: Dated: 5 November 2001 Counsel for the Applicant: J Atkin Solicitor for the Applicant: Coroneos & Company Counsel for the Respondent: D Jordan Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 11 October 2001 Date of Judgment: 5 November 2001