SBTC v Minister for Immigration & Multicultural & Indigenous Affairs

(ii) Persecution and the One Child Policy 5 As noted above, the applicant has three "out of plan" children and she claimed that she had been advised that she must pay a penalty of 30,000 RMB for each of those births. These three children were born between 1985 and 1987. The 90,000 RMB aggregate fine was claimed by the applicant to be excessive and imposed because of her Christian faith. The Tribunal noted it had only her assertion that such was the case as also that she in fact had been advised verbally in 1987 that she had to pay this social compensation fee. No payment towards that fee had been made nor any further enquiry made as to whether it was required of her. From country information supplied by DFAT it was apparent that under family planning rules and regulations in Fujian province a social compensation fee was payable for out of plan births. Noting the "limited evidence available", the Tribunal was not satisfied that the amount applicable in the applicant's case was excessive or that a higher fee had been applied in her case because of her Christian religion. It was not satisfied on the evidence before it that the fees imposed on the applicant for breach of the family planning regulations were discriminatory.

(iii) Persecution and psychological harm 6 The applicant claimed that the persecution of her "black children" has caused and will cause the applicant serious psychological harm amounting to persecution. The alleged persecution of those children related primarily to their education and their alleged inability to obtain work because they are unregistered workers. The Tribunal accepted that the difficulties faced by her three children was a source of significant distress to her. Nonetheless, it concluded that as with the first child, the three black children did not receive any formal education because of the family's poverty rather than because of their status as black children. It equally noted on the evidence before it that registration, while preferable when seeking work, is no longer essential as more than 15 per cent of the province's population are unregistered workers. In consequence the Tribunal concluded on the evidence before it that any psychological harm suffered by the applicant in the past and likely to be experienced by her in the future on account of her black children, whilst it may represent serious harm to the applicant, was not for a Convention reason but was, and is essentially, significantly attributable to the family's poverty. The Tribunal added that on the basis of country information it was not satisfied that the children would be denied access to employment for the reason that they were unregistered.

(iv) Persecution as a failed asylum seeker 7 The applicant asserted that having made claims of asylum and having presented the Chinese authorities in a bad light would put her at risk of persecution in China. The Tribunal dismissed this claim saying anything that the applicant had presented in relation to her claims to protection would not come to the attention of the Chinese authorities and thus be the cause of persecution.

(v) Persecution and illegal departure from China 8 The Tribunal found that the applicant left China with the assistance of a people smuggler. Nonetheless she used a passport when so doing. The Tribunal found there was no evidence otherwise which satisfied it that she left China illegally, but accepted that if she departed China without exit permission she may face a penalty for a breach of the law but did not accept that such a penalty would be imposed on her for reason of an imputed political opinion. 9 Overall, the Tribunal was not satisfied the applicant was a person to whom Australia had protection obligations.

THE APPLICATION TO THIS COURT 10 The grounds of the application really do not articulate what are acceptable grounds of review. In essence, it asserts that the Tribunal should have found that she had a well-founded fear of persecution and had no basis for arriving at the conclusion it did. I should indicate immediately that, having considered carefully the Tribunal's decision and the reasons given for it, I am satisfied that on their face they betray no want or excess jurisdiction that would justify the grant of relief under s 39B of the Judiciary Act 1903 (Cth). It is clear and was made the moreso by the applicant's oral submissions on the hearing of this application that what she seeks is merits review. It may well be the case that she is wishing to remain in this country so as to be able to continue to provide financial support to her family. Be this as it may, the reasons themselves disclose no reviewable error. 11 Nonetheless, as is properly to be expected of the respondent Minister, a procedural fairness issue was drawn to my attention and it has provided the one potentially significant ground of challenge in this application. While ordinarily I would have adjourned this matter and sought pro bono assistance in the prosecution of this ground, I am satisfied, because it is doomed to fail in any event, that that course was unnecessary.

The procedural fairness ground 12 The genesis of this issue lay in a s 424A letter sent on behalf of the Tribunal to the applicant's representative on 23 August 2005. It stated: "The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection visa. The information is as follows: According to information contained in a report from the Department of Foreign Affairs and Trade (DFAT 2004, DFAT Report 287: RRT Information Request) in relation to Family Planning Laws in Fujian Province and the registration of 'out of plan' births advises that registration, whilst preferable when seeking work, is no longer essential in Fujian as more than 15% of Fujian's population are unregistered workers. This information is relevant because this independent information may be used by the Tribunal in coming to a finding about the psychological harm which you claim to suffer as a result of the non registration of three of your children and the impact of that non registration on them and consequently upon you. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by 30 August 2005. IF YOU DO NOT GIVE COMMENTS BY 30 August 2005 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE." 13 The last sentence of the above is of significance in this matter. 14 The following is drawn primarily from the respondent Minister's Contentions of Facts and Law. "After the hearing the Tribunal wrote to the applicant's solicitor inviting him to comment on a DFAT Report relating to the prospects of employment for unregistered workers in Fujian Province … Later that day the applicant's solicitor sent a facsimile to the Tribunal requesting a full copy of the DFAT report. On 24 August 2005 the Tribunal provided a full copy of the report to the applicant's representative. Later on 24 August the applicant's representative sent a further facsimile to the Tribunal seeking a copy of the request which had given rise to the DFAT Report. Some telephone contact ensued, as part of which the applicant's solicitor was advised that the due date for comment on the DFAT report remained close of business on 30 August 2005. On 29 August 2005 the applicant's solicitor was also advised that the DFAT report had been provided to him in full on 23 August 2005 and the date for a response remained close of business 30 August 2005 as originally advised. Subsequently however, the Tribunal agreed to provide a copy of the questions which gave rise to the DFAT report to the applicant's solicitor, which it did by facsimile on 31 August 2005. The Tribunal's decision was handed down on 31 August 2005 in the absence of any response from the applicant's solicitor to the substance of the DFAT report." 15 The contentions made by the respondent in relation to this matter are as follows: "17. It is apparent both from the text of the letter and the Tribunal's description of it in its decision that the Tribunal forwarded this letter to the applicant's solicitor in purported compliance with section 424A of the Migration Act. If the Tribunal's understanding in this regard had been correct, there would be an issue as to whether, in the above circumstances, section 424A had been complied with. However, it is apparent from sub-section (3)(a) of section 424A that the section does not apply to information 'that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member'. As the information in question did not relate specifically to the applicant, in the first respondent's submission the Tribunal was not in fact obliged, pursuant to section 424A, to provide the relevant information to the applicant. Therefore, no issue arises as to whether the Tribunal has failed to comply with the requirement imposed by section 424A. 18. As to any possible breach of procedural fairness under the general law, this could only amount to jurisdictional error if unfairness resulted to the applicant, or the alleged breach could potentially have affected the outcome before the Tribunal. However, there is nothing before the Court to indicate that, if given a better opportunity, the applicant would have put anything to the Tribunal in response to the Tribunal's letter which could have altered its conclusions. Further and more fundamentally, for the reasons set out below, the claim to which this information was directed was in any event misconceived. 19. It is clear that the information referred to in the Tribunal's letter of 23 August 2005, relating to employment opportunities for unregistered workers in the Fujian Province was relied upon by the Tribunal in relation to the applicant's claim of 'psychological harm' only. In the first respondent's submission, that claim could not properly have provided a basis for the applicant to be granted refugee status and for that reason, additional information taken into account in considering that claim, and any response to it, did not have the capacity properly to alter the Tribunal's decision. 20. Even if the Tribunal had accepted that the applicant's claim at its highest, rejected any contrary information and concluded that her three 'black' children were effectively denied employment in the Fujian Province, there was nothing before the Tribunal to suggest that this or any similar harm would be in any way affected by whether or not the applicant remained in Australia or returned to China. Consequently, within the terms of Article 1A(2) of the Refugees Convention, it could not be said that 'owing to' the fear of psychological harm consequent upon persecution of her children, the applicant was 'unable or unwilling' to return to China. Based on her own claims and evidence, the harm feared by the applicant, i.e. distress to her caused by persecution of her children, was likely to persist whether she remained in Australia or returned to China. Accordingly, on any view of the evidence, that fear was not one which could found a successful claim for refugee status under the Convention. 21. As the applicant's claim of psychological harm consequent upon harm to her children was misconceived and doomed to fail, any want of procedural fairness in relation to this issue did not result in unfairness to the applicant, could not have affected the outcome of the application and therefore did not invalidate the Tribunal's decision." 16 The respondent Minister also put on supplementary submissions dealing, first, with the question of whether any failure by the Tribunal to accord procedural fairness to the applicant could have affected the outcome of the matter before the Tribunal. The second matter canvassed related to the scope of s 422B of the Act which applied to the Tribunal's review of the delegate's decision. As to the first of these questions the respondent Minister accepted that persecution of one person can amount to persecution of another where there is a close relationship between the two: see NBCY v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 922. The Minister nonetheless points out that that proposition really does not have any salience in this matter. The reason for this is that the relevant harm, i.e. psychological distress to her secondary to the harm to her children, is not one which will be avoided by the applicant remaining in Australia. It will continue unabated regardless of whether she returns to the country of nationality so that it cannot be said that she is unable or unwilling owing to such fear to return to that country. In consequence it was submitted the applicant's claim to be at risk of "psychological harm" by reason of harm to her children did not provide a basis upon which her application to the Tribunal could have succeeded. 17 As to the second - the s 422B - matter, it was contended that as s 424A was not in fact invoked, it could not have been breached. It was further submitted that any obligation the Tribunal may have otherwise have had to accord procedural fairness to the applicant under the general law was displaced by s 422B. That section provides in subsection (1): "This division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". 18 There is a division of opinion in decisions of this court as to the ambit of that subsection. The conflict of opinion is crisply discussed by Branson J in SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493 ("SZBDF v MIMIA"). I need not repeat it. Her Honour there followed the views earlier expressed by Lindgren J and Hely J and concluded (at par 18): "As s 424A deals with the obligation of the Tribunal to provide particulars of information to an applicant, there is no scope for a wider obligation to provide particulars of information to be implied in the Tribunal's review process." 19 Her Honour's decision was subsequently followed in SZEGT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1514. For my own part, I agree with the construction of s 422B(1) adopted by Branson J in SZBDF v MIMIA and would follow it in any event as a matter of comity. 20 The applicant put in a supplementary response in which she contended that the psychological distress feared by her would be avoided by remaining in Australia because given the circumstances of her husband and children she will be able to support them thereby avoiding harm to them.

Conclusion on procedural fairness 21 My own view on this matter, as I foreshadowed, is that while it may be regrettable that the legal adviser did not respond by 30 August (or at any time thereafter) to the DFAT Report, the subject matter of the report was not information which the Minister was required to provide under s 424A because of the provisions of subs (3). The information was simply information about a class of persons, as is apparent from the terms of the letter of 23 August 2005 itself. Because of the provisions of s 422B of the Act, the Tribunal had no further responsibility to accord natural justice in relation to this matter.

CONCLUSION 22 Accordingly I am satisfied that in the events which happened no jurisdictional error has been disclosed. I will order that the application be dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn .

Associate: Dated: 20 March 2006 The Applicant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor