Chen v Minister for Immigration & Multicultural Affairs

The Tribunal's reasons 11 The Tribunal correctly identified the crucial issue for its determination as being whether the cancellation of the applicant's hukou and the consequences of its cancellation, in his particular circumstances, amounted to persecution under the Convention. 12 It addressed the appellant's complaints of conduct amounting to persecution in turn, and then considered their overall effect. It made findings of fact on those complaints. In doing so, whilst it accepted that the appellant was a truthful witness, it did not accept in its entirety his evidence on those matters. It was entitled to take that approach. Of the several complaints referred to above, the Tribunal concluded that those relating to employment, accommodation, travel within and outside China, and inability to marry and have a family could each or together constitute persecution, depending upon the particular facts. It rejected the complaints relating to the restrictions on property ownership, and relating to the lack of access to preferential food prices, as being capable of constituting persecution. There is no issue raised on this appeal as to that last-mentioned conclusion. 13 The Tribunal did not find that the appellant was excluded from employment in China. The fact that he had been able, with limited difficulty, to obtain relatively well paid employment in the private sector in China was taken as demonstrating that matter. The Tribunal also found that the loss of the appellant's hukou did not cause him serious problems in obtaining accommodation in China. Although officially it was necessary to produce hukou to be able to acquire or rent premises, private transactions "under the table" were apparently engaged in and had been engaged in by the applicant. He had demonstrated an ability to obtain accommodation of an acceptable standard between 1993 and 1995. The Tribunal also found, again evidenced by his movements within China and his ability to have procured a false passport to leave China, that the restrictions upon movement were not in his particular circumstances sufficient to amount to persecution. 14 The Tribunal accepted that without hukou the applicant was not able to marry, and that unless legally married he would not be able to obtain an official "one child birth permit". It also accepted that unless a couple held a "one child birth permit", a pregnant woman in China would be compelled to undergo an abortion. The forced abortion of his girlfriend demonstrated that. The Tribunal then said: "In my view, having regard to the above evidence as to the ease of circumventing hukou requirements and of having one's hukou restored, coupled with the evidence of his ability to circumvent these requirements in all other significant respects to date, he is in a position to overcome this difficulty as well if he chooses. Thus I consider that although if he were facing the inability to marry and found a family this would be a serious breach of fundamental human rights entitling him to refugee status, he is not in practice facing this, because it is open to him to avoid this consequence as apparently many others in China do." 15 It concluded that the applicant had not re-obtained hukou essentially because he was not suffering any significant hardship as a result of not having hukou. In other words, as one option to avoid the consequence which the Tribunal otherwise considered would constitute persecution, it regarded him as eligible to obtain official hukou without difficulty and thereby to overcome the restriction otherwise upon him of being unable to legally marry, and therefore of being unable to have a child with his girlfriend. It also appears that the Tribunal had in mind that he could obtain unofficial or black market hukou to avoid those consequences. It will be necessary to revert to that question. 16 The Tribunal also concluded that the applicant's political activities in Australia were not of such significance that they gave rise to a real chance that he would be recognised by the Chinese authorities, and so be vulnerable to persecution for those political opinions expressed whilst he was in Australia. 17 The Tribunal appropriately looked at what it called the practical realities of the applicant's case, rather than rely on generalisations about how the hukou system is intended to work. The applicant, despite his lack of hukou, was able to obtain and retain respectable employment, obtain and retain satisfactory accommodation, move within China, live in a continuous defacto relationship for some years, obtain a forged passport in his own name and leave the country without hindrance. It therefore concluded that the appellant was not suffering persecution. It noted that that history is consistent with much country information indicating that in practice it is relatively easy for persons to circumvent the hukou system.

Decision of Branson J 18 The appellant before Branson J principally challenged the conclusion of the Tribunal that he would not be unable to marry and have a child if he returned to China because, in effect, if he chose to do so he could within a reasonable time regain his hukou. He stressed the forced abortion of his child in June 1996 after his departure for Australia. 19 Branson J said: "In my view, that forced abortion, abhorrent as it was, could not of itself amount to persecution of the applicant for a Convention reason. The applicant has not suggested that he wished to marry his girlfriend. There is no reason to conclude that the reason why they were not married, and thus ineligible for a "one child birth permit", was the applicant's loss of hukou. Indeed, it would seem that at the time that his girlfriend became pregnant, the applicant had already determined to leave [China] without her and with no intention of returning." 20 Her Honour then addressed the challenge to the finding of the Tribunal that it would be easy for the applicant to recover hukou if he returned to China. She identified that finding as a finding of fact. She concluded that the ground of review provided by s 476(1)(g) of the Act, that there was no evidence or other material to justify the making of that finding, was not made out. The Tribunal had placed reliance upon information contained in a Report of the Second Australian Human Rights Delegation to China. Her Honour noted the conclusion of the Tribunal on this topic: "If even a person who has been imprisoned is able to have hukou restored after three years, it is hard to see why the present applicant, whose offence was far short of warranting imprisonment, would be unable to have his hukou restored after five years (which has now almost elapsed since the original cancellation)." 21 The applicant failed to persuade Branson J that there was a fact equivalent to a jurisdictional fact required to be established, and that there was no evidence or other material from which that fact could reasonably be established: s 476(4)(a), or that there was a particular fact on which the Tribunal's decision had been based and which did not exist: s 476(4)(b). 22 Her Honour then discussed the evidence to which the Tribunal referred that it would be open to the appellant to avoid the consequences of having no hukou "as apparently many others in China do" in any event. There was evidence before the Tribunal which referred to a "floating population" of persons in parts of China, who do not have local hukou. The Tribunal rejected a distinction put forward by the appellant between persons who have no hukou at all and those who do not have hukou for the place in which they live. Her Honour did not find it easy to work out why the Tribunal had rejected that distinction, but concluded nevertheless that it did not fall within the ground of review available under s 476(1)(g) as informed by s 476(4) of the Act. Her Honour concluded: "It can not be suggested that there was no evidence before the Tribunal of a fact equivalent to a jurisdictional fact. Nor has it been established that any fact on which the Tribunal's decision was based did not exist. In any event, the finding of the Tribunal that the applicant would be able to regain hukou should he return to [China] provided a second, and alternative, basis for its conclusion that there was no real chance that the applicant would suffer persecution by reason of having no hukou were he to return to [China]. The decision of the Tribunal would have been the same whatever view it took of the likely ability of the applicant to avoid the consequences of not having hukou." 23 Her Honour then addressed the challenge to the finding of the Tribunal that the deprivation of hukou did not have the consequence that the appellant would experience serious difficulties in obtaining accommodation in China. Her Honour concluded that there was evidence to justify that finding of the Tribunal. She added that, in any event, the fact that the Tribunal had concluded that the appellant could, if he wished, regain hukou if he returned to China was also significant in that regard. That ability was also regarded as significant to her Honour in relation to the appellant's complaint that he would be denied freedom of movement if he returned to China. Her Honour said that the finding of the Tribunal that it would be open to the appellant to regain hukou if he returned to China was an answer to that complaint. 24 The other matters raised by the appellant before Branson J were not the subject of contentions on this appeal and it is unnecessary to refer to them.

Contentions on Appeal 25 The appellant appeared in person. In those circumstances, his written outline of contentions is understandably discursive, and does not clearly identify matters of law in respect of which it is contended that the learned trial Judge fell into error. Much of that document, and his oral submissions, emerged as an attempt to reargue the merits of his application for the protection visa. 26 Having considered those general contentions, there is one matter only which emerged from submissions as potentially falling within a ground of review available under s 476(1) of the Act and in respect of which it was argued that Branson J had fallen into error. That matter concerns the Tribunal's conclusion that the inability of the appellant lawfully to marry in China, and therefore his inability to have a family, did not constitute persecution because he could obtain hukou if he returned to China, and also because he would have access to hukou through a black market and so "qualify" ostensibly to marry and have children. Branson J concluded that there was evidence available to support those findings, so that the ground of review under s 476(1)(g) was not made out. 27 In other respects, the matters raised by the appellant really amounted to attempts to review on the merits facts decided adversely to him. Those attempts did not, as Branson J found, fall within any available grounds of review. Nothing was shown to indicate that Her Honour's consideration of those matters was erroneous. 28 Before addressing that one identified matter, it is convenient to refer to a question which arose during the appeal. The appellant sought to tender a letter to him dated 14 May 1998 from a Legal Officer, of the High Commissioner for Refugees, United Nations. It provides information that the Chinese authorities appear to be tightening up their enforcement of hukou requirements. The ruling whether to accept that document as new evidence on the appeal was reserved. That material should not be received on this appeal. Of itself, it is not capable of proving the non-existence of a fact, but only of demonstrating that there is evidence that the hukou system is being policed and enforced. It is of the same general character as some other information before the Tribunal. It does not therefore fall within the categories of information which the Court will receive on appeal: Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313. 29 Section 476(1)(g) provides as a ground of review: "that there was no evidence or other material to justify the making of the decision." 30 This provision is explained, and limited in its operation by s 476(4) which provides: "The ground specified in paragraph (1)(g) is not to be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 31 Those provisions reflect the terms of ss 5(1)(h) and 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under that Act, those provisions have been found to have a limited role, complementary to the other powers of review in s 5: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 357; Szelagowicz v Stocker (1994) 35 ALD 16. 32 To invoke ss 476(1)(g) via (4)(a), it is necessary that there be a precondition in law to the making of the decision; Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, or at least a clear legislative intent that the making of the decision depends upon the establishment of a particular matter: Western Television Ltd v Australian Broadcasting Tribunal (1986) 12 FCR 414. That is what Branson J described in her reasons as "a jurisdictional fact". No "particular matter" has emerged of that character required by law to be established before the decision was reached. No contention was put that Branson J had erred in her consideration of those provisions. Accordingly, the appellant must fail on this appeal to the extent that he relies on those provisions. 33 In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, Black CJ with whom Spender and Gummow JJ agreed said at 220-221: "Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact." 34 Thus, the appellant must show that the decision of the Tribunal was based upon the existence of a particular fact, and that that particular fact did not exist if he is to invoke successfully ss 476(1)(g) and (4)(b). The particular fact is to be distinguished from the ultimate fact in issue, or a conclusion based upon a series of particular facts, although one of those particular facts may qualify under s 476(4)(b): Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193; Re Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1; Malik v Minister for Immigration and Ethnic Affairs (1997) 47 ALD 27; Adams v Minister for Immigration and Multicultural Affairs (1998) 70 FCR 591. 35 The appellant identified two particular facts which, he submitted, fell within s 476(4)(b). The respondent did not contend that they were each particular facts for the purposes of s 476(4)(b). Those facts were (1) that he could obtain hukou if he returned to China, and (2) that he could circumvent the consequence of the absence of hukou, presumably by obtaining hukou other than from official sources, so that he would then be able to marry and to start a family. 36 Those two facts were truly alternative findings along the path to the conclusion that he would not be ineligible to marry, and so be ineligible to start a family, and in turn to the conclusion that he would not be persecuted if he returned to China. Consequently, the decision of the Tribunal will have been based on them, only if each can be shown to fall within s 476(4)(b). Otherwise, the particular fact will be no more than a "parallel" link (to use the word of Black CJ in Curragh) so as not to be critical to the decision. 37 Branson J was not satisfied that it had been established that both, or either, of those facts did not exist, although she expressed herself as being "a little uneasy" with respect to the finding in (1) above, and was not persuaded that the Tribunal appropriately rejected the distinction between persons who have no hukou and those who have no hukou for the place in which they live. Her Honour regarded that distinction as a "not … illogical one". 38 The Court invited counsel for the respondent to identify any evidence or material before the Tribunal which could tend to show the existence of one or both of those facts. 39 In the course of the submissions on the appeal, it appeared as arguable that the finding (1) above was reached upon the hypothesis that the appellant had abandoned political beliefs which, when he refused state-enterprise employment because of them, led to his loss of hukou in the first place. If the fact was that the appellant had not abandoned those beliefs, then there may have been no basis for that finding. In relation to finding (2) above, it was accepted that there was no material identified by the Tribunal which indicated explicitly that the ease of circumventing hukou requirements enabled non-approved marriages or children out of wedlock. 40 The respondent focussed upon finding (2) above. Reference was made to the evidence before the Tribunal about the ease of circumventing hukou requirements generally and the evidence of the appellant's ability to circumvent hukou requirements in significant respects. That evidence came from the appellant's own account of his past, and the independent information concerning the contemporary operation of the hukou system. It was that material which, it was contended by the respondent, supported a finding that the fact that the appellant would be able to marry and have children without legally obtained hukou, or more accurately precluded the appellant from establishing that that particular fact did not exist. 41 That material may be capable of supporting the finding by inference that in respect of the ability to marry and have children, there are avenues available to the appellant outside the official hukou system to enable him to do so. Indeed there was a reference in a UNHCR background paper dated December 1996 (which had been before the Tribunal) to the difficulties those without hukou in the cities have in enrolling their children in school though, in context, this may be a reference to individuals who married and had children when living in the country and, at that time, had appropriate hukou. More importantly, however, there is no material establishing the contrary. That is, the material does not establish that, without hukou, a person cannot marry and have children. It must follow, therefore, that in respect of finding (2) above, the appellant has not made out the ground of review available under ss 476(1)(g) and (4)(b). It also follows, for the reasons given, that the respondent must fail generally on that ground of review. 42 It is not therefore necessary to consider in detail the respondent's contention that the finding (1) above is not a finding of a particular fact for the purposes of s 476(4)(b) because it is an opinion as to what will happen in the future itself formed on the basis of other facts: see eg Xiang Sheng Li at 204; Adams at 596-597. There are particular facts underlying that finding, including that the appellant has not altered his political views and that the appellant, if he were to apply for hukou to be restored, would still be refused by reason of those beliefs. That latter fact itself may require it to be established whether the appellant, upon applying for restoration of hukou, would be requested to work for a state enterprise - if that did not occur, the type of occasion which initially gave rise to his loss of hukou may not arise. Although it may be clear that the appellant's political beliefs remain, there is no material before the Tribunal from which it could be concluded that those other matters underlying the finding (1) above did not exist. Nor was there any evidence adduced before Branson J from which that conclusion could be reached, although Curragh at 223-224 contemplated that such evidence may be admissible. 43 For those reasons the appeal should be dismissed. The appellant should pay to the respondent costs of the appeal to be taxed. I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 3 February 1999 Applicant appears in person

Solicitors for the Respondent: Australian Government Solicitor