Conclusions
34 I reject the submission that the Tribunal's reasons for decision reveal any of the jurisdictional errors claimed by the applicant.
35 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. There is no substance in this submission.
36 It is true that the Tribunal twice referred to the status of illegitimate children in China. It is clear that it did so only by way of analogy. It was obviously aware that the applicant had not been born out of wedlock. It did not regard her situation as being any less serious than might otherwise be the case, based upon any false equation with some other group.
37 There initially appeared to be more substance in the next matter raised on behalf of the applicant. That submission was based upon the following passage in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Chen Shi Hai 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."
38 However, if one examines what the Tribunal said regarding the one-child policy as having "universal application" in context, it becomes clear that it did not fall into the error alleged. It did not reason that because the policy had "universal application", the applicant could not be a member of a "particular social group". It did not suggest that if the evidence showed that the applicant would be subjected to "serious harm", in accordance with s 91R(1), she would not be able to make good her claim for a protection visa simply because she would be treated no differently to any other child who fell into the same class.
39 In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 the High Court held that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The applicant's submissions require this principle to be ignored, and to read a single phrase, not in context, and in a manner that distorts the Tribunal's reasons when read in their entirety. I am not persuaded that anything said by the Tribunal was in conflict with the passage from the joint judgment set out above.
40 The last of the jurisdictional errors identified in the Tribunal's reasons was its failure to refer to a sentence which appeared in a document provided by the applicant on 6 December 2000 in support of her claims. The sentence appeared in a magazine produced by Amnesty International in April 1996, and read as follows:
"Many 'above-quota' children have been killed in hospitals and orphanages."
41 It is true that the Tribunal did not refer to this sentence when it summarised the various claims made on behalf of the applicant. It did, of course, refer in detail to a number of other claims, and addressed each of them specifically. Counsel for the applicant submitted that the Tribunal's failure to deal with the matters raised in this particular sentence amounted to a constructive failure to exercise jurisdiction. That failure was said to constitute jurisdictional error.
42 The short answer to that submission seems to me to be that the sentence in question did not amount to a claim made on behalf of the applicant. There was no suggestion that, in the ordinary course, she would find herself in a hospital, where she might be killed. It was also clear that, unless something dire occurred, she would be unlikely to find herself in an orphanage. In those circumstances, there was no obligation upon the Tribunal to address what was, in effect, little more than an observation of a non-specific nature inapplicable to the applicant's specific situation.
43 In relation to the applicant's procedural complaint (the second category), the basis for that complaint was that the Tribunal supposedly relied upon information contained in the Statement concerning overseas students being exempt from the operation of the one-child policy without affording the applicant an opportunity to comment upon that information. The applicant submitted that the Tribunal had not afforded her an opportunity to comment upon that information, and thereby contravened s 424A(1). As noted earlier, the respondent initially contended merely that the subsection was not applicable to information of this type. That was because the information fell within s 424A(3)(a), being information that was "not specifically about the applicant or another person", and "just about a class of persons of which the applicant or other person" was a member.
44 It was conceded on behalf of the applicant that her procedural complaint relied entirely upon the allegation that there had been a breach of s 424A(1). No attempt was made to rely on any residual principles of procedural fairness which might be applicable: Re Refugee Review Tribunal: Ex parte Aala (2000) 204 CLR 82, Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57 and VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74. It should be noted that the Tribunal's decision was delivered prior to the introduction of s 422B, by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth), on 3 July 2002.
45 At the hearing of this matter, when this issue was argued, the respondent was given leave to file additional material relating to the transcript of the hearing before the Tribunal on 15 April 2002. That was because it was unclear from the Tribunal's reasons whether the Statement to which it referred had been drawn to the applicant's attention during the hearing on that date.
46 The position taken on behalf of the respondent in the hearing before me was that the Statement did not attract the requirements of s 424A(1) because it fell within s 424A(3)(a). The respondent submitted that the relevant information was "not specifically about the applicant or another person" and that it was "just about a class of persons of which the applicant or other person is a member" - namely, either children of overseas students (a class of persons of which the applicant was a member) or overseas students (a class of persons of which the applicant's parents were members).
47 The respondent submitted that, in broad terms, the purpose of s 424A(3)(a) was to confine the statutory obligation in s 424A(1) to information which was specific, and not general. The fact that country information contained a reference to one or more named persons, as it often did, did not necessarily mean that it should be characterised as being "specifically about … another person" for the purposes of s 424A(3)(a).
48 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.
49 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.
50 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.
51 In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 Mansfield J found that there had been a failure to comply with s 424A but said:
"[46] The respondent's failure to comply with s 424A, in the circumstances, has not in fact deprived the applicant of the opportunity to learn of material adverse to her claim or to comment upon it. In practical terms, she has had the opportunity which s 424A is intended to provide. The breach of s 424A is, in my view, not one which affected or which might have affected the outcome of her claim.
…
[50] In this matter, I do not consider that the Tribunal's error is one in respect of which I would grant relief under s 39B of the Judiciary Act in any event. The grant of such relief is discretionary: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; Zhang v Minister for Immigration Local Government and Ethnic Affairs (1993) 45 FCR 384; Aala at 91-92. I have found that, in substance, the objective of s 424A has been achieved. That is, I have found that the applicant has been provided with the degree of procedural fairness which the legislature intended. The only missing feature is that she was notified of the information adverse to her claim and given the opportunity to comment upon it in a manner different from that which s 424A prescribed. But the objective of the manner of notification in s 424A is to ensure that that notice and that opportunity were given. Where that objective has been fulfilled, I regard the complaint of the applicant as a technical one only so that the particular breach has not deprived her of any benefit which she was intended to receive. In the circumstances, I would decline to make any order under s 39B of the Judiciary Act even if it were not necessary to address s 474(1) of the Act."
52 I respectfully agree with the approach taken by Mansfield J. I conclude 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.
53 This makes it unnecessary to determine whether the respondent's primary submission that the Statement falls within s 424A(3)(a) should be accepted. However, as the matter was fully argued before me, I consider that I should deal with it.
54 I accept that the Statement constitutes "information" that the Tribunal considered to be part of the reason for affirming the decision under review. I also accept that the information was not "specifically about the applicant or another person". The first element of s 424A(3)(a) is therefore satisfied. The question which remains is whether the information is "just about a class of persons of which the applicant or [another] person is a member".
55 In Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27, Merkel J (with whom Ryan and Conti JJ relevantly agreed) said at [38] that s 424A should be construed "purposively". Further, his Honour said at [41] that the section should be construed having regard to its beneficial purpose in affording an applicant with the opportunity to respond to the gravamen or substance of any adverse information upon which the Tribunal proposes to act, the significance of which the applicant may be unaware. His Honour said that it was consistent with that purpose to take a narrow, rather than a broad, view of the exceptions in s 424A(3).
56 Al Shamry was concerned with s 424A(3)(b), and not as in the present case with s 424A(3)(a). Nonetheless, Merkel J's observation about the need to construe the exceptions in s 424A(3) narrowly is of general application.
57 Approaching the task of construction purposively, and with a narrow, rather than broad, view of s 424A(3)(a), there is still some difficulty in giving proper scope to the second limb of that paragraph. The authorities which bear upon that point are of some assistance.
58 In Applicant in V346 of 2000 v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 536, Ryan J dealt specifically with a claim on behalf of the Minister that s 424A(3)(a) excluded from the reach of the Tribunal's obligation information which it had that it was a common practice for Muslim and Christian applicants to furnish a death certificate to establish the death of any person, and that the applicant's failure to conform with that practice would be part of the reason for affirming the decision under review. His Honour held that the information in question was "just about a class of person" of which the present applicant was a member, and that the respondent's contention should therefore be accepted. See also Islam v Minister for Immigration and Multicultural Affairs [2001] FCA 430 per R D Nicholson J at [49].
59 In VAAC v Minister for Immigration and Multicultural Affairs [2002] FCA 573 Marshall J was confronted with a submission that information about the ability of the Afghan Government in exile to issue passports to eligible persons ought to have been conveyed to the applicant so that he might comment upon it, in accordance with the requirements of s 424A(1). His Honour considered a number of the relevant authorities in this area. He said:
"[21] In Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 857, Von Doussa J dealt with a submission that the RRT had failed to comply with s 424A by relying upon information contained in a newspaper article without notice to the applicant. At [24] to [26], his Honour said as follows:
"I accept that the tribunal treated information in The Hindu article as relevant to the review, and took that information into account as part of the reason for affirming the decision under review. However, I consider that the information which was taken into account is information to which s 424A(1) does not apply because it is information of the kind which comes within s 424A(3)(a). It is correct, as the applicant's case emphasises, that The Hindu article refers to another person, namely Amar Singh. However it is not that aspect of the article which was relevant to the issue being considered by the tribunal or which formed part of the tribunal's reasoning. What was relevant was that the article identified an organisation known by a name which incorporated Kamagatu Maru as being part of a terrorist alliance. That was the information which the tribunal considered might be part of the reason. Insofar as the article also referred by name to another person, Amar Singh, it did so only by identifying that person as a member of the class of persons whose existence might be of relevance to the tribunal's decision. Accordingly the information fell squarely within s 424A(3)."
In Tharairasa v Minister for Immigration and Multicultural Affairs [2000] FCA 520 at [15] and [16] Carr J said:
"In my opinion, the language of s 424A is clear. Section 424A(1) is expressed to be subject to subsection (3). Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or other person and is just about a class of persons of which the applicant or other person is a member.
I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter. The country information upon which the Tribunal relied was not specifically about the applicant or another person and it was just about a class of person of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna from other parts of Sri Lanka. In those circumstances, I do not consider that s 424A required the Tribunal to give particulars of this information to the applicant. Accordingly, I reject the applicant's first ground."
In my opinion, the present case is of the same kind as that considered by Carr J. Here the relevant class of person of which Amar Singh was a member was the class comprising members of an organisation known by name which included Kamagata Maru."
[22] In Baig v Minister for Immigration & Multicultural Affairs [2002] FCA 380, Gray J accepted a submission that the RRT failed to comply with s 424A of the Act. In Baig, the RRT relied on material from Agence France Presse without affording the applicant an opportunity to comment upon it. At [33] his Honour said that:
"Once the Tribunal reached the state of mind that it considered that the Agence France Presse items could be relied on to refute the applicant's claim that he had campaigned in a by-election that took place on 15 April, it was obliged to follow the procedure in s 424A(1). The material did not fall within the exclusion in s 424A(3)(a), because it was not about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant's involvement in campaigning in a by-election"" (emphasis added)
[23] In Al Saqaf v Minister for Immigration & Multicultural Affairs [2002] FCA 6, Carr J held at [31] that information about the arrest of other members of the applicant's clan fell within s 424A(3)(a) of the Act. His Honour said that " (i)t was just information about a class of persons of which the applicant is a member."
60 Marshall J concluded that the information in question in VAAC was "not specifically about the applicant or another person". His Honour went on to determine that the information was "just about a class of persons of which the applicant or another person is a member".
61 Although his Honour's decision was ultimately reversed on appeal (on a ground that had not been argued at first instance) his reasoning relating to s 424A(3)(a) was specifically endorsed by the Full Court: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at [20].
62 Returning to the facts of the present case, the Statement contained "country information". It was produced in 1992. It plainly was "not specifically about the applicant or another person". Indeed, it did not refer, in terms, or otherwise, to the applicant, or to any other person. So much was conceded by counsel for the applicant.
63 The more difficult question is whether the information contained in the Statement was "just about a class of persons of which the applicant or other person [was] a member". Counsel for the applicant submitted that it should not be so characterised. That was because it concerned the position of overseas students who contravened the one-child policy, and not children born under that policy. The expression "or other person" should be construed narrowly to mean, in effect, only persons in the same category as the applicant, namely so-called "black-children".
64 It seems clear that the phrase "or other person" in the second limb s 424A(3)(a) is linked to the phrase "another person" within the earlier part of the same paragraph. Nonetheless, the expression "the applicant or another person" is contained within a limb which is directed towards individuals, whereas the second requirement, that the information be about a "class of persons of which the applicant or other person is a member" is directed towards a class or classes of persons, and not individuals. The information contained in the Statement regarding overseas students is, as the respondent submitted, information about "a class of persons". The applicant is not a member of that class. However, her parents were at all relevant times overseas students. It was accepted that the fact they had completed their studies by the time the Tribunal dealt with this matter did not alter that position. The issue is whether, in those circumstances, the information regarding overseas students is "just about a class of persons" of which "another person" is a member.
65 A number of cases have touched upon this issue, although none seem to me to be directly in point. In Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 857 von Doussa J concluded that the mere fact that the article in question in that case referred to a particular person by name did not prevent s 424A(3) from operating on its terms. That was because the reference to that particular person was in reality "as a member of the class of persons whose existence might be of relevance to the tribunal's decision".
66 On the other hand in Baig v Minister for Immigration and Multicultural Affairs [2002] FCA 380, Gray J concluded that the material upon which the Tribunal relied did not fall within the exclusion in s 424A(3)(a) because it was not just about a class of persons of which the applicant or any other person was a member. It bore specifically upon the question of the applicant's involvement in campaigning in a by-election.
67 Counsel for the applicant referred to Schwallie v Minister for Immigration and Multicultural Affairs [2001] FCA 471, in support of his contention that the second limb of s 424A(3)(a) was not satisfied. Although there is a reference to the expression "another person" in [24] of the reasons for judgment of O'Loughlin J, the decision sheds little light upon the question of construction to be determined in the present case. The same may be said of the other cases relied upon by the applicant, namely Pannasara v Minister for Immigration and Multicultural Affairs [2001] FCA 570 and Hussein v Minister for Immigration and Multicultural Affairs [2001] FCA 1532 per R D Nicholson J.
68 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.
69 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.
70 For all of the reasons set out above the application for review must be dismissed. It was acknowledged that in the event that this application failed the next friend would be liable to pay the respondent's costs. I therefore order that the next friend pay the respondent's costs.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.