FEDERAL COURT OF AUSTRALIA Minister for Immigration and Citizenship v SZQXZ [2012] FCA 931 Citation: Minister for Immigration and Citizenship v SZQXZ [2012] FCA 931 Appeal from: SZQXZ v Minister for Immigration & Anor [2012] FMCA 356 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v SZQXZ and REFUGEE REVIEW TRIBUNAL File number: NSD 710 of 2012 Judge: BUCHANAN J Date of judgment: 30 August 2012 Catchwords: MIGRATION – jurisdictional error – whether the Tribunal's decision was illogical or irrational – whether there was no evidence reasonably capable of sustaining the Tribunal's findings Legislation: Australian Citizenship Act 2007 Migration Act 1958 (Cth) Cases cited: Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457; (2008) 68 ACSR 154 Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 Jones v Dunkel (1959) 101 CLR 298 Luxton v Vines (1952) 85 CLR 352 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Date of hearing: 15 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 32 Counsel for the Appellant: Mr J A C Potts Solicitor for the Appellant: Clayton Utz Counsel for the First Respondent: Ms M Tibbey Solicitor for the First Respondent: D'Ambra Murphy Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 710 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant AND: SZQXZ First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE OF ORDER: 30 AUGUST 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is upheld. 2. The orders of the Federal Magistrates Court of Australia made on 1 May 2012 are set aside and in lieu thereof it is ordered that: (a) The application to that Court be dismissed. (b) The applicant in that Court pay the costs of the first respondent to the application. 3. The first respondent pay the appellant's costs of the appeal. Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 710 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP Appellant AND: SZQXZ First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: BUCHANAN J DATE: 30 AUGUST 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The first respondent to this appeal is a two year old infant who was born in Australia on 8 April 2010. As both the first respondent's parents are citizens of the People's Republic of China ("China") but are not permanent residents of Australia, the first respondent is a citizen of China but not Australia (see Australian Citizenship Act 2007 s 12). The first respondent is represented in the present appeal by her mother who has been appointed as her litigation representative for that purpose. On 20 May 2011 the first respondent's mother lodged an application on the first respondent's behalf for a protection visa. On 5 July 2011 a delegate of the appellant refused to grant the first respondent a protection visa. On 21 November 2011 the Refugee Review Tribunal ("the RRT") affirmed that decision. 2 However the decision of the RRT was set aside by the Federal Magistrates Court of Australia ("the FMCA") on 1 May 2012 and the matter was remitted to the RRT for further consideration. The Minister has appealed from the decision of the FMCA. For the reasons which follow the appeal will be upheld. 3 The parents of the first respondent have another daughter who was born in March 2002. That child remains in China. The essence of the first respondent's claim for a protection visa was that, due to the "one child policy" in China, she would, if she went to China, receive "unfair treatment". The case made in writing by the first respondent's mother to that effect depended upon the proposition that she and her husband would not be able to pay the fines which would be imposed in China permitting the "registration" of the first respondent. It was said that this would lead to significant social disadvantage for the first respondent and prevent her from accessing social services, formal education and proper medical care. There were other expressions of concern and apprehension about the possible consequences for the first respondent of being raised in China, including the potential risk of the first respondent being abducted and sold for adoption; not being able to receive medical treatment if necessary without payment; and the possible risk of the first respondent's food being contaminated with melamine. 4 The delegate, in deciding to refuse a protection visa, referred to independent country information to the effect that: …the Chinese authorities impose penalties against people in breach of the Population and Family Planning Regulations in the form of a financial penalty. However, the social Contribution fee is part of a legitimate government objective, in part, to control the country's population growth as well as to find the additional resources required to [sic] education and health care services. and: There is nothing before the Department to indicate that the applicant's parents could not pay the fee and according to the FPFPC [Fujian Provincial Family Planning Committee], couples unable to pay the fee immediately are allowed to pay in instalments. 5 The delegate also found that independent country information established that the first respondent would not be denied adequate education or educational opportunities. 6 The decision of the RRT, on review from the delegate's decision, set out the written statement of the first respondent's mother in support of the grant of a protection visa and the relevant parts of the decision of the delegate referring to some of those matters. The RRT also took evidence and argument from the first respondent's mother directly. It is apparent that in her oral presentation the first respondent's mother referred again to matters that had been dealt with in the written statement. For example, the RRT recorded: 30. The Tribunal said that it had the Department files and the application for Protection isa [sic] form. It said that attached to that form were documents. The Tribunal asked the applicant's mother to explain the relevance of those documents. The applicant's mother stated that those documents are the source of her fear. She said the applicant will not be protected in China. The Tribunal asked why she would not be protected in China. She replied that the second child will have to pay a heavy fine. She said the child cannot get registration and citizenship and will not be provided with social welfare and vaccinations. She said that the applicant will not get an education. ... 35. The applicant's mother then indicated that her child will not be able to enjoy Medicare in China. She said that in China the hospital system is not like the system in Australia. She said the doctor will not treat you if you cannot pay first. She said that her husband was hit by a car in China and the doctor did not do anything until they provided some money. She stated that recently a small child was hit by a car and run over by several cars. She then referred to milk powder that was contaminated. She claimed she was concerned about "big head" babies. The Tribunal stated words to the effect that these were events that the authorities in China appeared to have acted upon. They have held inquiries and appear to take action. The Tribunal then stated that it was still unsure how they related to the applicant's fear of return to China. … 45. The Tribunal asked the applicant's mother if she had anything further she wanted to add. She said that she had read about Chinese officials taking away children who were over the birth limit. She claimed that she was scared her daughter would be put into an orphanage or sent overseas for adoption. The applicant's mother stated that in regard to Independent Information discussed she said that only a small amount of people are covered by the policy. She said that she had heard so many stories from China. … 59. The applicant's mother claims that the applicant, if she returns to China, will be denied registration in the Hukou system. She claims that when she had her first child she was fined as she was under the allowable age, at the hearing she claimed she was fined as she was not then married to the applicant's father. She claims they married in 2005 after the applicant's elder sibling was born. She claims they (the applicant's parents) would not be able to pay such a big fine again. She claims that as the applicant is a second out of plan child she will not be registered and the applicant will therefore be denied access to social services. She claims that she will receive no formal education and become illiterate. She claims she will be denied health care. 7 As presented by the first respondent's mother, the central premise upon which the claim that the first respondent would be persecuted in China rested was the contention that the first respondent's parents would be unable to pay any fine imposed and that, as a result, the first respondent would not be registered. That is clearly how the RRT understood the claim and the logical framework within which it assessed the claim. 8 Having regard to the way in which the claim on behalf of the first respondent was advanced – viz. that she would be persecuted in China as a second, unregistered child because her parents were unable to pay the fine – it would have been open to the RRT to assess whether it was satisfied that the facts asserted had been sufficiently established to make out a case of a well-founded fear of persecution by reason of membership of a particular social group. The RRT, however, did not approach its task that way. Rather, unlike the delegate, the RRT made explicit findings that the first respondent's parents would be able to pay any fine imposed. 9 The RRT assessed the likely fine as 200% to 300% of AUD$2,361.47 (i.e. between $4,722.94 and $7,084.41). It acknowledged that this is a significant amount in Chinese currency. It recorded statements by the first respondent's mother that the parents would not be able to pay such an amount, but found that they would be able to do so. It declared, moreover, that they "have the resources to pay any such fee". The facts upon which these conclusions were based were stated in the following way: - The applicant's parents had previously paid a fine for their first child … equal to $AUD455.89 at today's rate … - Since 2006 the applicant's father has been working in Australia. … - In his visa application in 2006 he was sponsored out to Australia by an employer on a total remuneration of $AUD45,000 … - The applicant's father is a skilled worker and the family has survived in Australia since 2006 … - The value of the Australian dollar against the Yuan is such that they will be able to pay any social compensation fee that may be assessed. … - The applicant's parents … paid it in the past for the applicant's elder sibling when they did not have access to the Australian dollar. - The applicant's mother gave evidence that her mother has been covering all tuition costs for her eldest child. … - They have a supportive family in China and have been earning money in Australia. 10 The RRT went on, based on these findings, and its conclusion that the first respondent's parents were able to pay any fine, to say: 64. The Tribunal does not therefore accept that there is a real chance that applicant will be an unregistered child, or a "black child" (see DFAT Country Information Report No.39/03), dated 27 February 2003, CX73769 which indicates that a "black child" is a child who is an unregistered child and that such children may be denied access to health, education and other social services), such that she will suffer harm amounting to persecution because she will not be able to obtain education, health care and other entitlements. and: 68. The Tribunal is satisfied that if the applicant's parents have to pay a social compensation fee any hardship would be the result of the non-discriminatory enforcement of a law of general application rather than a result of any discriminatory conduct. The Tribunal does not consider that any hardship associated with reorganising their finances in order to pay a fee would constitute serious harm. 11 The RRT concluded its deliberations by saying: 72. Having considered all the evidence and the claims both singularly and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for a Convention reason if she returns to China now or in the reasonably foreseeable future. 12 The first respondent made an application to the FMCA for judicial review of the decision of the RRT. The only ground in the application to the FMCA was: I was not given fair consideration. 13 In a judgment delivered on 1 May 2012 the FMCA found that the RRT had committed jurisdictional error (SZQXZ v Minister for Immigration & Anor [2012] FMCA 356). 14 The FMCA referred to the only stated ground for the application, and the submissions advanced to the FMCA on behalf of the first respondent, as follows: 47. The Applicant's mother confirmed that the Applicant relied on the ground contained the application filed on 8 December 2011 as follows: "I was not given fair consideration" 48. The ground was interpreted for the assistance of the Applicant and the Applicant was invited to make submissions in support of the ground and in support of the application generally. 49. The Applicant's mother said that she was concerned about the reference by the Tribunal to the country information from Canada that stated that returnees to China from overseas were treated more leniently in China. She said that the situation was different for a child born in Australia as opposed to a child born in Canada. 50. The Applicant's mother had nothing further to say in support of the claims. 15 Despite the limited nature of the ground stated by the application the FMCA, in its independent review of the material, was evidently concerned about two matters, which were raised with the representative of the Minister for attention. The first concerned the use by the RRT of independent country information from Canada. The FMCA referred to this issue in the following terms: 51. I raised with the solicitor for the respondent, Mr Jones, that the Canadian country information appeared to be confined to the situation in Canada. However, the Tribunal, after citing that information, stated that it did not accept that there is a real chance that the Applicant would be an unregistered child and suffer harm amounting to persecution accordingly. 52. A fair reading of the Tribunal's decision record makes clear that that finding by the Tribunal is based on the Canadian country information that stated, "in general people who return to China from abroad are actively welcomed back to the motherland, and children born outside China largely forgiven." 53. I am not persuaded that that information is evidence of lenient treatment in China of returnees from Australia. 16 With respect, in my view the FMCA took too narrow a view of the material referred to by the RRT and mistakenly criticised the use which the RRT made of it. That material was referred to by the RRT in connection with the concerns expressed by the first respondent's mother that she and her husband would be unable to pay any fine which was imposed on them. In that connection the Tribunal referred to the information from Canada, saying: 63. … Document CHN103033.E dated 29/01/09 from the Research Directorate Immigration and Refugee Board of Canada advises: Parents responsible for pregnancies or births without permission in China could face difficulties but Chinese couples living abroad are not bound to the One-Child-Policy. Chinese citizens studying or working in foreign countries can return with more than one child without any serious problem. In general, people who return to China from abroad are actively welcomed back to the motherland, and children born outside China largely forgiven. (Emphasis added.) 17 There is, in my view, no indication that the independent country information referred to by the RRT was confined to Chinese citizens returning from Canada or that it did not apply to Chinese citizens returning from Australia. On the contrary, it seems sufficiently clear that the information was not confined to persons returning from Canada. In my view the FMCA's concern about this issue was insufficient to sustain a finding of jurisdictional error. However, it is clear from the judgment of the FMCA that the finding of jurisdictional error did not ultimately depend upon this issue. The FMCA went on to say: 54. However, even if I was so persuaded, I do not accept Mr Jones' submission that the Tribunal's finding that the Applicant's parents had the capacity to pay a fine, if they were to return to China, was open to it on the evidence and material before it, let alone for the reasons it gave. It was that finding that predicated the Tribunal's conclusion that any harm suffered by the Applicant in China would not be serious or discriminatorily applied. (Emphasis added.) 18 In my view, the FMCA was correct to regard the finding by the RRT, that the first respondent's parents would be able to pay any fine, as central to its conclusion that no well-founded fear of persecution had been established. 19 However, the FMCA took the view that there was no evidence capable of sustaining the findings made by the RRT that the first respondent's parents could pay any fine saying: 72. To my mind, this is not a case where reasonable minds may differ on findings available on the evidence. I am not satisfied that any rational or logical decision maker could find that the Applicant's parents or their family in China had a capacity to pay a fine in China on the evidence before the Tribunal referred to in the decision record. 20 This conclusion appears to me to be the decisive matter which led the FMCA to find that jurisdictional error had been committed by the RRT. I have considered whether, despite its disclosed reasoning, the RRT ultimately also made a separate and independent finding that there would not be any persecution of the first respondent for a Convention reason (whether or not her parents pay the fine) because any fine would result from "the non-discriminatory enforcement of a law of general application rather than a result of any discriminatory conduct" (at [68] of the RRT's reasons, set out earlier). However, that statement was made in connection with possible harm to the first respondent's parents, and not with respect to the possibility of harm to the first respondent herself. I have come to the view, therefore, that the analysis by the FMCA of the path of the RRT's reasoning was the correct one – viz. the first respondent would not suffer persecution because her parents would pay any fine imposed. 21 The central question, then, is whether there was any evidence capable of supporting the RRT's conclusion that the first respondent's parents would be able to pay any fine imposed. There was no direct evidence of capacity to pay. A conclusion to that effect depended on inference. 22 Assessment of the merits of a claim for a protection visa is within the prerogative initially of the Minister, or the Minister's delegate. When a visa is refused by a delegate of the Minister, and an application is made to the RRT to review that decision, the RRT is obliged to make findings of fact and identify the evidence upon which those findings of fact are based (Migration Act 1958 (Cth) s 430). Unless the RRT makes a jurisdictional error in the process by which it makes its decision, findings of fact made by it in the course of its own assessment of the merits of a claim are not reviewable by a court. When a court does refer to a finding of fact, in the course of identifying jurisdictional error, it does not do so for the purpose of substituting a different finding. That is not its function. If jurisdictional error is identified the matter is returned to the RRT so the proper procedure can be followed. Again, any findings of fact are then a matter for the RRT. 23 However, the RRT is not at liberty to make findings of fact which are not available on the evidence. There must be some evidence capable of sustaining a relevant finding of fact and the RRT's assessment of the evidence must not be irrational or illogical. Provided those conditions are satisfied, concerns about the sufficiency of the evidence will not indicate jurisdictional error. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, Gummow and Hayne JJ said (at [38]): [38] The satisfaction of the criterion that the applicant is a non-citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error. (Citation omitted.) 24 Additionally, where the findings of fact made by the RRT arise from a process of inference, the use of that reasoning technique must be a legitimate one. The RRT may not simply fill in gaps in the factual material by guessing. In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, Spigelman CJ referred (at 274-276) to the distinction between permissible inference and conjecture (at [84]). His Honour quoted the following statement by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170: Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture. (See also Luxton v Vines (1952) 85 CLR 352 at 358; Jones v Dunkel (1959) 101 CLR 298 at 304-5; Bell IXL Investments Ltd v Life Therapeutics Ltd [2008] FCA 1457; (2008) 68 ACSR 154 at [14]). 25 In the present case the FMCA came to the view that the RRT had infringed the restrictions, and exceeded the limitations, on its statutory mandate to find the facts. It is evident that the FMCA did not regard the intermediate facts actually found by the RRT as ones which were capable, by any legitimate process of inferential reasoning, of sustaining its finding that the first respondent's parents had the financial capacity to pay any fine imposed on them in China by reason of the birth of the first respondent. The FMCA described the conclusion as irrational and illogical based on the material before the RRT. 26 In my respectful view, despite the force of the criticism made by the FMCA, the position is not as straightforward as that. 27 To the extent that illogicality or irrationality might provide a basis for concluding that a jurisdictional error has been committed, the test is a strict one, not admitting a simple dispute about sufficiency of evidence, as I pointed out earlier. In Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ said (at [130]-[131]): 130 In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case. 131 What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion. 28 As the High Court observed in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 (at [34]), even emphatic disagreement with the findings made by an administrative tribunal will not justify a finding of jurisdictional error unless the tribunal has moved beyond legitimate fact finding altogether. 29 In the present case, the material before the RRT was not confined to the factual elements referred to earlier, which were distilled principally from the evidence of the first respondent's mother. The first respondent's mother made a number of allegations, assertions and claims about the circumstances of her and her husband, about their family arrangements in China, and about their earlier treatment in China. The RRT developed, and expressed, doubts about her truthfulness in a number of respects. They were referred to in the decision. They were raised with the first respondent's mother so she could answer them. Her responses were amongst the matters contributing to the RRT's doubt about her truthfulness. 30 One of the matters about which the RRT disbelieved the first respondent's mother was her claim of incapacity to pay any fine. The factual material referred to earlier contributed to that disbelief, but it was obviously not the only foundation for it. 31 Once the RRT had concluded that the claim of incapacity to pay should not be believed, and should be rejected, it may not have been necessary for the RRT to positively find that any fine would be paid. On the other hand, in my view that was not, in the circumstances of the present case, an impermissible conclusion to express. Payment of the fine would avoid the possible consequences about which the first respondent's mother had expressed anxiety. Having regard to the stated apprehension of the first respondent's mother about the consequences for her daughter, and having rejected the claim of outright incapacity to pay, it was natural to conclude that the fine would be paid even if, as the RRT accepted, that might involve some hardship for the first respondent's parents. The possibility of such hardship did not sustain a claim for a protection visa for the first respondent in her own right. 32 In my view, the RRT did not move beyond its legitimate function of finding the facts in the present case. It did not commit jurisdictional error. It follows that the appeal must be upheld. There is no reason in principle why costs should not follow the event in the ordinary way, both in the present appeal and before the FMCA. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 30 August 2012