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1 This is an appeal from a judgment of a single Judge of the Court declining to grant an application for review of a decision by the Refugee Review Tribunal ("the Tribunal") to affirm a refusal by the delegate of the respondent Minister to grant the appellant a protection visa.

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

VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 (20 February 2004)
Last Updated: 20 February 2004

FEDERAL COURT OF AUSTRALIA


VDAU v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 32


















VDAU (AN INFANT) BY HER NEXT FRIEND V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 377 OF 2003




RYAN, LINDGREN AND SUNDBERG JJ
MELBOURNE
20 FEBRUARY 2004



IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 377 of 2003



On appeal from a Judge of the Federal Court of Australia



BETWEEN: VDAU (AN INFANT) BY HER NEXT FRIEND
Appellant


AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent


JUDGES: RYAN, LINDGREN and SUNDBERG JJ
DATE OF ORDER: 20 FEBRUARY 2004
WHERE MADE: MELBOURNE




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant�s next friend pay the respondent�s costs of the appeal to be taxed in default of agreement.





Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 377 of 2003


On appeal from a Judge of the Federal Court of Australia


BETWEEN: VDAU (AN INFANT) BY HER NEXT FRIEND
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
Respondent


JUDGES: RYAN, LINDGREN and SUNDBERG JJ
DATE: 20 FEBRUARY 2004
PLACE: MELBOURNE


REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of a single Judge of the Court declining to grant an application for review of a decision by the Refugee Review Tribunal ("the Tribunal") to affirm a refusal by the delegate of the respondent Minister to grant the appellant a protection visa.

2 The appellant is an infant born in Australia on 31 October 2000. On 7 December 2000, an application for a protection visa was lodged on behalf of the appellant claiming that she was the second of two children and would face persecution if returned to the People�s Republic of China ("the PRC") because of that country�s implementation of its "one-child" policy. The feared persecution was said to be restricted access to education and employment. As well, it was said that her father would face a fine, detention and the demolition of his house and that both parents would encounter difficulties in obtaining employment and in re-establishing themselves economically in the PRC. Moreover, the parents were adherents of the Falun Gong movement and would be viewed with disfavour because it would be inferred that they had applied for refugee status in Australia. All these apprehensions of adverse consequences for her parents were said to be likely to impinge detrimentally on the appellant if she were to return to the PRC.

3 The Tribunal reviewed a body of country information about the application of the one-child policy in the PRC and concluded that Chinese nationals studying overseas would not be fined or otherwise punished for the birth of a second or subsequent child if they had reported the birth to an Embassy or Consulate in the overseas country and had provided an explanation for their failure to comply with the policy. As the learned primary Judge noted, the Tribunal then, somewhat tangentially, referred to country information concerning the status of illegitimate children born in the PRC.

4 The Tribunal concluded that any sanctions which might be imposed on the appellant�s parents as a result of her birth would be, at most, financial in the form of a denial of a "nursery subsidy", although it conceded the possibility that she might face various forms of social discrimination. It found that she would not suffer any other educational detriment and would not be denied Chinese nationality. After assuming that the appellant would encounter social discrimination similar to that suffered by illegitimate children in a conservative society, the Tribunal made this finding which the primary Judge described as "critical";

�In weighing all the available information the Tribunal concludes that the applicant could face some detriment in education and the provision of medical care until she attains the age of seven years. There is no material to satisfy the Tribunal, however, that she would be denied a proper education or access to essential medical services. The Tribunal finds that to the extent the applicant might face detriment as a consequence of having been born in breach of the one-child policy the possible consequences for her fall well short of a definition of persecution.�

5 Although it accepted that the appellant�s parents had lost their former jobs, the Tribunal found that to be due to their long absence from the PRC and not to their contravention of the one-child policy. It accepted that they might, because of their breach of the policy, "face setbacks in their careers", but found that they would not face "economic or other consequences amounting to persecution." It specifically rejected the claim that the appellant�s parents were at any real risk of detention or of demolition of their house.

6 The possibility of adverse consequences due to the parents� adherence to Falun Gong and due to their having applied for refugee status in Australia was not considered by the learned primary Judge because those matters had not been relied on in the application to this Court for review of the Tribunal�s decision. The Tribunal�s conclusion in respect of the applicant was in these terms;

�The Tribunal concludes there is not a real chance of the applicant suffering discriminatory treatment, beyond that which might normally apply to children born outside the one-child policy, or of her encountering any consequences amounting to persecution due to having been born outside China�s one-child policy, due to any allegiance by her parents to Falun Gong, due to the Chinese authorities knowing of their application for a protection visa, or for any other Convention reason.�

7 After noting that the Tribunal�s decision was, on its face, a "privative clause" decision within the meaning of s 474 of the Migration Act 1958 (Cth) ("the Act"), his Honour applied Plaintiff S157/2002 v The Commonwealth (2003) 195 ALR 24 ("S157") in holding that s 474(1) does not protect an administrative decision which involves jurisdictional error and which, the High Court observed, is "regarded, in law, as no decision at all." After applying that principle, the learned primary Judge referred to s 424A of the Act and then rehearsed as follows the submissions advanced on behalf of the applicant;

�The applicant�s submissions essentially fell into two broad categories. The first related to what were said to have been a series of jurisdictional errors on the part of the Tribunal which were apparent from its reasons for decision. Four specific errors were identified. They were:

� the Tribunal�s use of country information that related to persons in the position of the applicant�s parents, and not to persons in the position of the applicant;

� its use of country information relating to the status of illegitimate children in China which was said to be wholly irrelevant;

� its description of the one-child policy as a policy of "universal application". This was said to be in stark conflict with a passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301 in which their Honours said that laws or policies of this type were not properly to be described as laws and policies of general application; and

� its disregard of an important item of evidence submitted by the applicant in support of her claim relating to reports of "many �above quota� children hav[ing] been killed in hospitals or orphanages".


The second related to what was said to have been a denial of procedural fairness. It was submitted that the Tribunal had failed to comply with the requirements of s 424A(1) of the Act in that it failed to provide particulars of the Statement regarding overseas students which was information that formed part of the reason for affirming the decision under review, and also failed to invite the applicant to comment upon that information.�

8 After referring to the submissions advanced on behalf of the respondent, his Honour rejected the appellant�s submission that the Tribunal�s reasons revealed any of the jurisdictional errors which had been asserted on her behalf. In the first place he held that;

�A careful reading of the reasons demonstrates that the Tribunal was acutely conscious of the distinction between the matters raised by the applicant�s father which might impact both upon himself and his wife, and those which might impact directly upon his daughter. It was plainly relevant for the Tribunal to consider the possible consequences, including economic consequences, which might befall the applicant�s parents upon their return to China when considering whether the applicant herself would face persecution.�

9 His Honour also rejected the suggestion that the Tribunal had wrongly assimilated the appellant to an illegitimate child. He considered that the Tribunal�s references to illegitimate children were by way of analogy only and did not betray any misapprehension that the appellant had been born out of wedlock.

10 On the issue of a law of general application, his Honour noted that Counsel had invoked this passage from the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at 301;

�Laws or policies which target or apply only to a particular section of the population are not properly described as laws or policies of general application. Certainly, laws which target or impact adversely upon a particular class or group � for example, "black children", as distinct from children generally � cannot properly be described in that way. Further and notwithstanding what was said by Dawson J in Applicant A, the fact that laws are of general application is more directly relevant to the question of persecution than to the question whether a person is a member of a particular social group.�

11 However, his Honour exonerated the Tribunal from falling into the error which Counsel for the appellant had suggested when relying on that passage. His Honour said that the Tribunal had not reasoned that, because the one-child policy was of general application, the appellant could not be a member of a particular social group. His Honour also considered that the Tribunal had left open the question of whether, if the evidence disclosed that the appellant would be subjected to "serious harm" within s 91R(1), the appellant would be entitled to a protection visa although she would be treated no differently from any other second or subsequent child.

12 The other jurisdictional error imputed to the Tribunal by Counsel for the appellant was said to be inherent in its failure to refer to a statement in an Amnesty International publication of April 1996 that "Many �above quota� children have been killed in hospitals and orphanages." In his Honour�s view, that sentence was not a claim made on behalf of the appellant. Because there was nothing to suggest that the appellant would be likely to find herself in an orphanage or hospital, there was no obligation on the Tribunal to refer to that extract.

13 The procedural complaint advanced on behalf of the appellant was that the Tribunal had relied on information about exemption of overseas students from the "one-child policy" without affording the appellant an opportunity to comment on that information. That was said to be a contravention of s 424A(1) of the Act. The information in question was a statement ("the 1992 Statement") issued on 26 May 1992 by the Department of Policy, Legislation and Regulations, State Family Planning Commission of the PRC. The 1992 Statement was set out in full by the Tribunal in its reasons and was in these terms;

�To control the population figures, improve the quality of population and carry out family planning is a basic state policy of China. It is an obligation for every citizen of the People's Republic of China to practise birth control according to law. Taking into account the fact that it would be difficult for the Chinese students to have the same access as they have in China to the timely advice and services, and to free availability of contraceptives, as well as all the inconveniences they could face in daily life and studies while they study overseas, the State Family Planning Commission and the State Education Commission of China clearly defined the rules, as early as 1989, in relation to the question of family planning of the Chinese students overseas. Main content of the rules follows:

1. It is the wish of the Government that the Chinese students overseas would also follow the Government policy, rules and regulations while they are abroad by not giving more births than the quota. If they give more births than the quota overseas, they should take the initiative to report for record purpose and explain the case to the Chinese Embassy or Consulate-General;

2. After their return to China, people who have given more births than the quota overseas are allowed to apply for residence registration for their children with the certificate issued by the Chinese Embassy or Consulate-General, and the Birth Certificate issued by the overseas country where they have been;

3. People who give more births than quota overseas will not be given punishment or charged fees for the extra births, after their return to China, by their work units, if certifying material issued by the Chinese Embassy or Consulate-General is provided to the work units.

Judging from above, it is evident that on the question of family planning for Chinese students overseas, the Chinese Government has been fully aware of their specific difficulties overseas and have made appropriate rules in connection with questions relating to them after their return to China. There is absolutely no question at all of discrimination against and persecution of them. (Explanatory Notes on Chinese Family Planning Policy in Relation to Chinese Students Overseas, CISNET On-line Services CX230).�

14 The reference to that document in the course of the Tribunal hearing occurred after the Tribunal member had adverted to information suggesting that children "born outside the one-child policy might encounter social discrimination." This exchange then occurred:

THE TRIBUNAL: �But according to the Department of Policy Legislation and Regulations of the State Family Planning Commission people who have had children born outside the one-child policy quota can apply for residence registration of their children. They can get a certificate from the Chinese embassy or consulate in the country where they�re residing before they return to China. They�re not punished or charged fees for extra births after their return to China by their work units, providing they supply the material that they can get, the certification that they can get, to the work units. That concludes there�s absolutely no question at all of discrimination against or persecution of them.
Now, that goes somewhat further than some of the other information. But all of the other information would tend to indicate that at most what people face is a small fine and perhaps that their children are not given access to pre-school education. Apart from what you�ve already told me, is there anything else that you wanted to say about those matters?�
MR LUCAS:
[solicitor for the applicant] �That particular report the tribunal referred to is dated - what was the date of that?�
THE TRIBUNAL: �1992.�
MR LUCAS: �Right. I guess what could be said about that is along the lines of, you know, an official government issued document doesn�t necessarily reflect the reality on the ground and whilst I don�t have index or country information to support the contrary here I think that a range of the decisions seem to refer to country information that, you know, is at odds with that.�


15 At first instance, the contest between the parties was as to whether the information about a second or subsequent child conceived by overseas students was "just about a class of persons" to which the appellant or her parents belonged. However, before ruling on that issue, the primary Judge found that any failure by the Tribunal to provide the relevant information to the appellant and invite comment upon it, in writing, was "at best a technical one only." Applying the reasoning of Mansfield J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577, his Honour concluded that;

�......the applicant has not been denied the degree of procedural fairness which the legislature intended in the present case and, were it necessary to consider whether to grant relief under s 39B, I would decline to do so in the exercise of my discretion.�

16 Out of deference to the submissions addressed to him, the learned primary Judge, after accepting that the information in the 1992 Statement was not "specifically about the applicant or another person", went on to consider whether the information was "just about a class of persons of which the applicant or [another] person is a member." Although prepared to construe s 424A(3)(a) purposively and to take a narrow, rather than a broad, view of its reach, his Honour still acknowledged some difficulty in discerning the proper scope of the second limb of that paragraph. Several authorities in this Court were then reviewed, including Applicant in V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536 and VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573.

17 After noting that the 1992 Statement had been accepted on both sides as "not specifically about the applicant or another person", his Honour proceeded to consider what he called "the more difficult question". That was whether the information in the 1992 Statement was "just about a class of persons of which the applicant or other person [was] a member." It was contended at first instance on behalf of the appellant that the 1992 Statement was about overseas students who contravened the "one-child policy", and not about the class of persons of which the appellant was a member, namely, children conceived in contravention of the policy. To overcome the difficulty presented by the presence in s 424A(3)(a) of the phrase "or another person" it was contended that the phrase should be construed as confined to other persons in the same category as the applicant, ie members of the same postulated class.

18 The learned primary Judge acknowledged that, of the decided cases which had touched on the issue, none was directly in point. He then concluded;

�It seems to me that, contrary to the submission of counsel for the applicant, the information regarding overseas students was "just about a class of persons" of which "another person" was a member. The expression "other person" in s 424A(3)(a) is obviously not intended to be read literally. It would otherwise render the section meaningless, since any country information which included a reference to any other person, as a member of a class, would destroy the effect of the exception formulated in that paragraph. On the other hand, the expression cannot be defined so narrowly as to limit its scope to persons who are in essentially the same position as the applicant. If it were construed in that way, it would render the expression largely tautologous.

The true position seems to me to be that the meaning of the expression lies somewhere between the competing contentions of the parties. The "other person" to which reference is made is a person whose position "might be of relevance", in a direct sense, to the applicant�s claims. There is some support for this interpretation of the expression in the approach taken by von Doussa J in Singh to which I have earlier referred. The applicant�s parents are members of a class (overseas students who have more than one child) which is plainly of direct relevance to the applicant�s claims. The information in question is "just" about that class. It follows that it satisfies both elements of s 424A(3)(a) and falls within the exception contained therein. Accordingly, there was no obligation on the part of the Tribunal to invite comment upon that information, although of course it did so.�

The grounds of appeal

(i) The concept of persecution.

19 By her amended notice of appeal filed at the outset of the hearing of the appeal, the appellant contended, first, that the Tribunal had misconstrued and misapplied the definition of "persecution" in Art. 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1968 (collectively called "the Convention"). In fact, the Convention does not, in terms, define "persecution". Rather, the relevant part of Art. 1A provides;

�... the term �refugee� shall apply to any person who:

...

(2) 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.�

20 The concept of "being persecuted" in that context has been explained in these terms by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258;

�Persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee.

Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular race, religion or nationality or social group. Thus, a law providing for the detention of the members of a particular race engaged in a civil war may not amount to persecution even though that law affects only members of that race.� [footnotes omitted]

21 As the Tribunal noted in relation to the present appellant, the application of Art.1A(2) for the purposes of the Migration Act 1958 ("the Act") is governed by s 91R of the Act, subss (1) and (2) of which provide:

�Persecution

(1) For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a) that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and

(b) the persecution involves serious harm to the person; and

(c) the persecution involves systematic and discriminatory conduct.
(2) Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person's life or liberty;

(b) significant physical harassment of the person;

(c) significant physical ill-treatment of the person;

(d) significant economic hardship that threatens the person's capacity to subsist;

(e) denial of access to basic services, where the denial threatens the person's capacity to subsist;

(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.�

22 The Tribunal was prepared to assume that the appellant, if returned to the PRC, would encounter "social discrimination" similar to that suffered by illegitimate children in that country. However, it went on to observe;

�There is no material, however, to support a finding that she would encounter consequences amounting to persecution.�

(There then followed the passage set out at [4] above.)

23 It is significant that this ground of attack on the Tribunal�s conclusion was not pressed at the hearing before the learned primary Judge. There is, therefore, much force in the respondent�s contention that the appellant should not be permitted to raise the point on appeal; see H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43, where Branson and Katz JJ observed, at 45;

�As Gibbs CJ, Wilson, Brennan and Dawson JJ observed in Coulton v Holcombe at 7:

"It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish."

In our view, the readiness with which appeal courts have in the past been satisfied that it is expedient in the interests of justice to allow a fresh point to be argued and determined on appeal is unlikely to continue into the future. The volume and complexity of the cases presently required to be heard and determined by the intermediate appellate courts of Australia is such that it is increasingly important that such courts are able to devote their time to the genuine review of first instance decisions. It is becoming increasingly difficult, in our view, to establish that it is expedient in the interests of justice that the time of three or more judges should be spent giving original consideration to issues that ought to have been raised before the primary judge. The interests of justice in this sense extend beyond the interests of the parties to the appeal to encompass the interests of other litigants whose appeals require hearing and determination, and the broad public interest in efficient judicial administration.�

24 However, we have been unable to discern in the Tribunal�s reasons any misunderstanding of what is capable, as a matter of law, of amounting to "being persecuted" within Art. 1A(2) as qualified by s 91R of the Act. Whether particular conduct of which an applicant is shown to have a well-founded fear would constitute persecution properly understood is a question of fact. As is shown by its reference to the treatment of third or fourth "black children" in the PRC, as well as to the special position of Chinese students overseas and the 1992 Statement, the Tribunal understood that different answers might be given to that question according to the circumstances of different cases. We can detect no error of law in its assessment of how, on its finding, the appellant was likely to be treated if returned to the PRC. Accordingly, this first, new, ground on which the appellant seeks to set aside the Tribunal�s decision must be rejected.

(ii) No material to support a finding of limited detriment.

25 The second, fourth and fifth grounds of appeal are related to the first. They raise the contention in various forms that the learned primary Judge should have held that it was not open to the Tribunal to find that children born in breach of the one-child policy would suffer no other detriment than denial of a "nursery subsidy" or some other medical or educational disadvantage up to their attaining the age of seven years.

26 What the Tribunal said in this context was;

�The Tribunal indicated at the hearing that it had some recollection of having read that those children who are born in breach of the one-child policy might be denied pre-school education. Information cited in the submission of 6 December 2000 indicates, however, that the penalty is in fact a denial of a "nursery subsidy" and some other benefits. It has been unable to find any material indicating any other detriment in relation to education.�

27 The submission of 6 December 2000 was made on behalf of the appellant to the Department of Immigration and Multicultural Affairs and quoted extensively from an unreported judgment of French J in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (1998) FCA 622 (5 June 1997). In that judgment his Honour noted that in the case before him (which concerned a child who was both the third child of its parents and illegitimate) the Tribunal had:

"... also mentioned Article 31 of the Guangzi Zhuang Autonomous Region �Family Planning Regulations of August 1991 stating in part:

Any child born beyond the planned limit shall not be entitled to any benefits including nursery subsidy, family comprehensive medical care, or medical care covered by any labour insurance, until the age of seven.�

28 In the light of that passage and the Tribunal�s lack of knowledge of any continuing detriment inflicted, as a matter of policy, on second children after attaining the age of seven years, it was open to the Tribunal to infer that the extent of any likely detriment to the applicant was limited in the way the Tribunal indicated. It cannot avail the appellant that members of this Court or other individual judges, if required to decide the matter for themselves, might have declined to draw that inference. The second, fourth and fifth grounds of appeal therefore cannot be sustained.

(iii) Was it open to the Tribunal to find that the appellant could be registered with the appropriate Chinese authorities?
29 The third ground in the amended notice of appeal contends that the primary Judge should have answered this question in the negative. Like the first ground discussed above, this ground raises a point which was not taken at first instance. The reason for that is obvious as the second criticism alleging denial of procedural fairness identified by his Honour in the passage quoted at [7] above, was that particulars of the 1992 Statement had not been provided to the appellant�s advisers who were not invited to comment on it. The relevant effect of the 1992 Statement, which is quoted at [13] above, was that if the appellant�s parents were to apply for, and obtain from, the Chinese Embassy in Australia, a certificate related to the birth of the appellant, they would be entitled to apply for residence registration of the appellant after their return to the PRC. Accordingly, this ground of appeal cannot be pursued consistently with the complaint made at first instance which is discussed at [36] to [42] of these reasons.

(iv) Failure to consider cumulatively the chance of persecution for parents� adherence to Falun Gong and by reason of their application for protection visas.
30 This is yet another ground of attack on the Tribunal�s reasoning which was not mounted at first instance. However, it manifestly fails irrespective of the policy considerations to which Branson an Katz JJ adverted in H v Minister for Immigration and Multicultural Affairs (supra). That is because the passage from the Tribunal�s reasons quoted at [6] above makes clear that the Tribunal expressly found that there was no well-founded fear of persecution for all or any of the reasons identified in that passage including the two reasons identified in Ground 2.6 of the amended notice of appeal. In our view, the Tribunal considered, but declined to find, a real chance that the adherence by the appellant�s parents to Falun Gong and their application for protection visas would operate cumulatively on the minds of the Chinese authorities so as to attract persecutory attention to them and the appellant.

(v) Was it open to the Tribunal to find that there was not a real chance of the appellant�s suffering discrimination beyond what might normally be encountered by children born in contravention of the one-child policy?
31 This finding, which is described in par 2.7 of the amended grounds of appeal as "the major conclusion of the Tribunal" is quoted at [6] above. As we have just noted in relation to ground 2.6, that paragraph of the Tribunal�s reasons "rolls up" its consideration of three reasons for which it was proposed the appellant might suffer persecution if she returned to the PRC. The particular form of persecution identified by the Tribunal was "discriminatory treatment beyond that which might normally apply" to second or subsequent children. It was submitted in the course of oral argument on the appeal that the Tribunal had failed to consider whether a second or subsequent child born in the PRC to parents who had not been overseas students could, or would, suffer discrimination. However, the Tribunal, before articulating the reason quoted at [6] above, referred to evidence of great variations between local areas and wide local discretions in the enforcement of the one-child policy and a suggestion that "rigid enforcement" of the policy was confined to "employees of the government and state enterprises." The Tribunal also noted correspondence from the Deputy Regional UNHCR Representative in Australia advising that the Birth Control Policy regulations of each province in the PRC "do not mention �refusals to register a child� as a sanction for having breached the family planning policy", and that the Representative had no information that the authorities would actually refuse registration.

32 In the light of that evidence, as we have already observed, it was open to the Tribunal to find, as it did, that generally a second child would suffer, in the PRC, no more than social discrimination of the kind attracted by illegitimate children in that country. Moreover, the evidence recounted by the Tribunal supports the conclusion that a second or subsequent child born to overseas students would be treated, if anything, more favourably than a similar child born to parents who had remained in the PRC. That policy was explained by the Principal Migration Officer at the Australian Embassy in Beijing as being designed "to avert a brain drain of badly needed skills in China."

33 That evidence, we consider, provides ample support for the conclusion impugned by par 2.7 of the amended notice of appeal.

(vi) Was it open to the Tribunal to take account of the 1992 Statement in assessing whether the appellant had a well-founded fear of persecution?
34 The effect of the 1992 Statement, set out in full at [13] of these reasons, is that the one-child policy could be relaxed in its application to a second or subsequent child born to Chinese nationals while they were studying overseas. Although there was evidence that the appellant�s father�s three year student visa had expired in March 1999, it was, we consider, open to the Tribunal to conclude that the Chinese Embassy in Australia would regard both the appellant�s parents as overseas students for the purposes of the 1992 Statement. That conclusion was capable of being reinforced by the absence of evidence that the parents had applied for a certificate under the 1992 Statement but had been refused. That being the state of the evidence, the Tribunal was entitled to conclude that it was still open to the appellant�s parents to invoke the 1992 Statement to protect the appellant and themselves from discrimination or persecution by reason of the contravention of the one-child policy .

35 Ground 2.8 of the amended notice of appeal raised a further or alternative contention that the Tribunal had erred in not considering whether the 1992 Statement applied to the appellant. However, the Statement was framed expressly to accommodate Chinese students who conceived or produced a child or children overseas. Apart from the fact that the appellant�s father had not actually been a student for some three years before the Tribunal hearing, there is nothing to suggest that the 1992 Statement did not apply, prima facie, to the appellant. In our view, the Tribunal was correct in assuming that it did.

(vii) Was the primary Judge entitled to conclude that the Tribunal�s failure to refer the appellant�s advisers in writing to the 1992 Statement was only a technical non-compliance with the Act without enquiring whether the contents of the Statement had been accurately represented to the appellant�s advisers?
36 The learned primary Judge�s explanation for concluding that any failure by the Tribunal to comply with ss 424A and 441A of the Act in respect of the 1992 Statement was merely technical was set out in this passage from his reasons;

�The transcript of the proceedings before the Tribunal on 15 April 2003 was annexed to the supplementary submissions filed on behalf of the respondent. That transcript demonstrates that there was specific reference made to the Statement by the Tribunal, and that it was clearly indicated that overseas students could apply for registration of their children simply by obtaining a certificate from local consular officials. There was also reference to the fact that such students were not punished or charged fees for extra births after their return to China, and it was said that there was no question of their being discriminated against.

The Tribunal then specifically invited comment upon the Statement. The applicant�s representative responded to that invitation by submitting that the Statement might "not reflect the reality on the ground". He also pointed to country information which suggested that there was at least the possibility of social discrimination against a child born in breach of the policy but took the matter no further.

In these circumstances, it is clear that even assuming that the respondent�s primary submission regarding s 424A(3)(a) was rejected, and that there was a failure to provide the relevant information to the applicant and invite comment upon it, in writing, as required by s 441A, that failure was at best a technical one only. There is no difference in substance between handing a copy of the Statement to the applicant�s representative, and reading its contents aloud, albeit in summary form, which is what occurred in this case.�

37 Reference was then made to SAAP v Minister for Immigration and Multicultural Affairs [2002] FCA 577 where Mansfield J regarded a non-compliance with ss 424A and 441A as merely technical because the applicant had been given notice of the adverse information, albeit not in the manner prescribed. Accordingly, it was held that the applicant had not been deprived of any benefit which she was entitled to receive.

38 The substance of the criticism of his Honour�s reasoning made on behalf of the appellant, as we understood it, was that it was not made clear to the appellant�s advisers that the 1992 Statement was solely concerned with providing a measure of relief from the one-child policy for Chinese students who were overseas when the second or subsequent child was conceived or born. The appellant�s submission on this point implies that, had her advisers been apprised of the limited ambit of the 1992 Statement, they would have demonstrated that it had no application to the present case because the appellant�s father, at least, had not been a student for some time.

39 However, that implication flies in the face of the clear acceptance by Counsel for the appellant at first instance in this Court that the 1992 Statement drew a distinction favourable to overseas Chinese students between them and other parents of second or subsequent children who had remained in the PRC. That acceptance is made clear by this exchange between Counsel (who did not appear on the appeal) and his Honour;

HIS HONOUR: .... �So you say this document issued by the relevant department in China draws a clear distinction between Chinese citizens in China and Chinese citizens who are overseas students. Does the material disclose whether the parents were overseas students?�
MR GIBSON �Had earlier been students, on my instructions, your Honour, and then applied for a protection visa.�
HIS HONOUR: �They�re quite mature people, aren�t they?�
MR GIBSON: �Yes.�
HIS HONOUR: �So when were they overseas students?�
MR GIBSON: �Immediately prior to their application for protection visas and going on to a bridging visa, so I�m instructed.�
HIS HONOUR: �So the parents were overseas students and here�s an extract in which the Tribunal has regard to Chinese policy which says:

"Overseas students are not subjected to the kinds of discrimination, punishment ... provided they go through this process of obtaining certifying material" -

et cetera.�


40 The stance on behalf of the appellant at first instance was consistent with the way in which her application for a protection visa had been considered initially by the delegate of the respondent Minister. The delegate had regard to country information furnished by the Department of Foreign Affairs and Trade in response to, amongst others, the following questions;

�IF RETURNING TO CHINA TODAY, WOULD BLACK CHILDREN BORN OVERSEAS EXPERIENCE THE SAME STATUS AND TREATMENT AS BLACK CHILDREN BORN IN CHINA? WILL IT MAKE ANY DIFFERENCE WHETHER THEY ARE BORN TO CHINESE NATIONALS WHO HAVE GONE ABROAD TO STUDY, OR TO CHINESE NATIONALS WHO HAVE LEFT CHINA ILLEGALLY AND/OR ARE FAILED ASYLUM SEEKERS?�

41 Although the description given by the Tribunal of the 1992 Statement in the exchange quoted at [14] above did not explicitly indicate that it was confined to overseas students, it did make clear that it applied to Chinese residents overseas because the Tribunal expressly said, "They can get a certificate from the Chinese embassy or consulate in the country where they�re residing before they return to China." It is significant that, at the time of that exchange, Mr Lucas, an experienced Legal Aid solicitor who then appeared for the present appellant, did not ask to see a copy of the 1992 Statement but merely asked for the date on which it had been issued. Nor was any attempt made then or at first instance in this Court to demonstrate that the 1992 Statement did not apply to the appellant because either or both of her parents had not been, or would not be regarded, as overseas students; cf Re Minister for Immigration and Multicultural Affairs Ex parte "A" (2001) 185 ALR 489 where Kirby J observed, at 501 [54];

�Thirdly, the applicant has not placed before this court a clear indication of the type of evidence or material that he would have placed before the tribunal if he had known of the country information made available to it. In default of some indication of the nature of the opportunity which the applicant says he was denied (and the presentation of evidence or material that would constitute an arguable case that might result in a different outcome) any omission by the tribunal to disclose the country information to the applicant (assuming such disclosure to be obligatory) was not shown to be material in this case.�

42 For all of these reasons, we consider that the learned primary Judge was correct in regarding as merely technical any non-compliance by the Tribunal with a statutory requirement in respect of its use of the 1992 Statement. This conclusion does not signify that in all cases there is no difference in substance between compliance with ss 424A and 441A on the one hand and reading a document�s contents aloud. Nor do we read the final sentence of his Honour�s set out at [36] above as lending support to such a general proposition. All the circumstances of the particular case must be taken into account, including the length of the document, whether the applicant is represented, and the discussion of the matter between the Tribunal and the applicant or the applicant�s representative.

(viii) Should the primary Judge have held that the exception embodied in s 424A(3)(a) of the Act was rendered inoperative by the Convention or was inconsistent with the requirement to act fairly imposed by s 420 of the Act?
43 As we understand it from the written submissions filed on behalf of the appellant, the first part of par 2.10 of the amended grounds of appeal was intended to support a construction of s 424A(3)(a) which gives effect to the obligations assumed by Australia when it ratified the Convention. In support of that proposition, reference was made to Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 where Gleeson CJ observed, at [29] (footnotes omitted);

�First, where legislation has been enacted pursuant to, or in contemplation of, the assumption of international obligations under a treaty or international convention, in cases of ambiguity a court should favour a construction which accords with Australia�s obligations.�

44 The appellant�s argument in support of this last ground of appeal accepts the correctness of the learned primary Judge�s conclusion that the 1992 Statement was "just about a class of persons" of which the appellant or other person (her parents) is a member. However, it is said that s 424A, and, in particular, the exception in subs (3)(a) should not be regarded as an exhaustive code governing the Tribunal�s treatment of the 1992 Statement. Rather, so the argument went, the Court has to consider also whether the Tribunal had observed the residual requirements attending its common law duty to accord procedural fairness to the appellant; see Re Minister for Immigration and Multicultural Affairs Ex parte "A" (supra) where Kirby J speculated, at 499 [48];

�One possible argument available to the applicant is that s 424A is not a code, as the Minister claimed, excluding the fundamental principle of procedural fairness but a provision enacted to make clear a procedure for affording relevant information to a person affected by information supplied to the tribunal. On this footing, the exemptions in s 424A (3) would apply only in respect of the explicit statutory duty. They would not qualify the residual common law requirements that remain in the background to the Act and are assumed to supplement its provisions. Another argument might be that the restriction in s 424A (3) (a) of the Act would be strictly construed and confined to information about a "class of persons" and not extended to information which, as such, referred to the social and political conditions of the country concerned, including any alleged change in the conditions in that country said to disentitle an applicant for refugee status.�

45 Assuming that the "possible argument" to which his Honour there adverted can be invoked in some cases where information is caught by s 424A(3)(a), we are not persuaded that it can avail the present appellant. The reasons explained under sub-heading (vii) above for holding that it was open to the primary Judge to regard any non-compliance with s 424A as merely technical apply with equal force to the non-observance imputed to the Tribunal of some residual common law requirement of procedural fairness. We doubt that any such requirement obliged the Tribunal to make clear to the appellant�s advisers that the 1992 Statement applied only to overseas Chinese who were students. However, if there was any such requirement, for the reasons given by the learned primary Judge as amplified above, we consider that it would be a proper exercise of the Court�s discretion not to set aside the Tribunal�s decision in the course of granting statutory review or prerogative relief. We are also satisfied that the information contained in the 1992 Statement was "just about a class of persons." It did not refer generally to social or political conditions in the PRC which were susceptible of change so as to make available the second possible argument to which Kirby J adverted in the passage quoted at [44] of these reasons.

Conclusion

46 It will be apparent from the examination undertaken above of each of the grounds in the amended notice of appeal as illuminated by Counsel�s written outline of submissions and oral argument, that none of those grounds has succeeded. Accordingly, the appeal must be dismissed. We see no reason for making any different order as to costs from that made below. Accordingly, we shall order that the appellant�s next friend should pay the respondent�s costs of the appeal.


I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.



Associate:

Dated: 20 February 2004



Counsel for the Appellant: Mr J R Hamilton (pro bono)



Counsel for the Respondent: Mr C Horan



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 5 November 2003



Date of Judgment: 20 February 2004
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