VXDC v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a child now aged two years and seven months. He was born in Australia of parents who were citizens of the People's Republic of China. His mother has resided in Australia since April 1995. His father came to Australia in December 1994 but died in January 2004. 2 An application made on the applicant's behalf for a protection visa was refused by a delegate of the Minister and that refusal was affirmed by the Refugee Review Tribunal. Review of the Tribunal's decision is sought under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth). 3 The applicant was the third child of his parents. As such he is regarded in China as a "black child", that is to say an unregistered child whose birth contravened that country's one child family policy. The Tribunal found that black children in China were a particular social group within the meaning of the Refugee Convention. However, the Tribunal found there was no real chance that the applicant would face persecution by reason of membership of that social group if he returned to China. An important element in the Tribunal's reasoning was that the applicant's mother would not be denied employment on return to China and thus would be able to support him. In coming to that conclusion, the Tribunal found, amongst other things, that the applicant's mother had been able to work in China after the birth of her second child. 4 The last-mentioned finding is said by counsel for the applicant to constitute jurisdictional error because · it was not based on probative evidence; and/or · the Tribunal denied the applicant procedural fairness. Evidence before the Tribunal 5 The parents of the applicant had their first child in 1985. In May 1993 they went to live in the United Arab Emirates. While living there they had a second child born on 24 June 1994. 6 On 28 August 1994 the parents returned to China. In evidence before the Tribunal the following exchange took place between the Tribunal and the applicant's mother, through an interpreter: "Q Now where did you live in China before you came to Australia, Mrs [X]? A Chen Chen [sic, presumably Tianjin] City. Q Did you ever work in China and what was the sort of work that you performed? A I finished my job or ceased to work in 1994. Q Do you recall what month in 1994? A In August I worked at a factory at the time my name has been removed. September. Q Who were you working for? A An electrical motors company. Q What sort of work did you do? A I worked in the factory kitchen. … Q How long did you work at that factory Mrs [X]? A About five to six years." Findings of the Tribunal 7 The Tribunal accepted that persons who do not comply with the population and family planning laws in China are subject to financial penalties in the form of "social compensation" fees for children born outside those laws. Such penalties could be substantial although there was evidence that parents might be exempt from paying them in cases of severe financial hardship. The applicant's mother, returning to China with a child born abroad and her husband having died, would possibly be in severe hardship and it could be that she may be exempt from paying fees, as stated in the independent country information. The Tribunal also noted that Dr Susan Greenhalgh, a US expert on Chinese family planning policies, suggested that Chinese parents who have children born abroad do not face penalties on return to China. 8 However, the Tribunal accepted that the applicant's mother may be subject to the family planning laws. The Tribunal continued: "The Tribunal does not accept that the applicant's mother would be denied employment on return to China or be denied the capacity to earn a livelihood because of any Convention reason. It does not accept that she would be denied employment because she breached the one child policy, because she worked in the past in China after her second child was born (black child). In making this finding the Tribunal notes the applicant's mother's evidence that after her second daughter was born in the United Arab Emirates, the family returned to China and she worked in China until 1994, prior to coming to Australia, in a state owned organisation notwithstanding the fact that her daughter was not registered in China until 2003, when she and her husband sent money back to China for her registration. The applicant [sic] advised that she paid the higher private education expenses for her second daughter prior to her daughter's registration many years later. The applicant's mother's employment was therefore not affected in China by the fact that she had her second child, her daughter born in the United Arab Emirates, who was a black child or by the fact that she breached the one child policy. Also the independent country information CX 71821 would confirm this. The applicant's mother is a healthy 44 year old woman who worked in the public sector in China after having one black child, and if this did not stop her working for the state owned enterprise last time it would not stop her working now on return to China. There is no reason the applicant's mother cannot work if she returns to China like she did in the past. The fact that she is semi skilled did not in the past nor would it in the future prevent her from working. The Tribunal does not accept that opportunities for a single mother to work in China would be rare. The Tribunal therefore finds that the applicant's mother could find work in Tianjin, a coastal city, to support herself and the children, if not in a state owned enterprise, in a privately owned enterprise (DFAT advice 25 October 1999). The Tribunal finds that the status of the applicant as a 'black child' can be removed once his mother pays a social compensation fee, which would allow his registration. The Tribunal accepts country information (CX71821: DFAT Advice, 9 January 2003) that all registered children are entitled to access health and educational facilities, although only-children are given preference." 9 The Tribunal went on to find that the applicant's mother may face financial consequences such as the imposition of the social compensation fee. However, the Tribunal found that she could obtain employment and pay the fee. The mother would then be able to obtain household registration and access to basic social welfare services. In any case, if the mother did not pay the compensation fee the applicant could still access education, medical and other services by payment as had been the case with his sister. The Tribunal found this would not threaten the applicant's capacity to subsist. The Tribunal found that the imposition of the fee would not pose such serious harm to the applicant so as to constitute persecution and that the applicant's mother would be able to meet all the expenses from her employment income. The no evidence ground 10 It is sufficient if there is some basis in the evidence for a finding, even though it may be arrived at by illogical reasoning: Australian Broadcasting Corporation v Bond (1990) 170 CLR 321 at 356. Indeed, unless the relevant fact can be identified as a "jurisdictional" fact there is no error of law, let alone a jurisdictional error, in making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. 11 In the present case, as counsel for the Minister submitted, a finding of fact would be critical, and thus jurisdictional, if it was essential to the reasoning by which the Tribunal came to the ultimate fact of satisfaction or non-satisfaction as to visa criteria under s 65 of the Migration Act: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28]. 12 Black children in China would be members of a particular social group (Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293) even though parents or would-be parents of such children would not (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225). Part of the applicant's case was that he would suffer hardship, amounting to persecution, by reason of his membership of that group because his mother, as the mother of a black child, would be unable to obtain employment and thus would be unable to support him adequately. (There were other contentions, such as fear of being bullied by other children, which are not relevant for present purposes.) 13 Accordingly, as was accepted by counsel for the Minister, the employability of the applicant's mother on return to China was a critical, jurisdictional fact. This is the fact to which the "no evidence" test must be applied. In a paper delivered to the Federal Court Judges Workshop in August 2005 Justice Keane of the Queensland Court of Appeal observed that in conceptual terms our jurisprudence on the definition of jurisdictional fact "…has not improved upon the distinction drawn by the Privy Council in Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443 between a fact that is 'an essential preliminary to the decision-making process' and a 'fact to be adjudicated upon in the course of the inquiry'." 14 One of the reasons which the Tribunal relied on in coming to its finding as to the employability of the applicant's mother was a subsidiary, or second Willan category,fact, namely that the mother had worked in the past in China after her second child, another black child, was born. This was not the only subsidiary fact, although it was an important one. There were others, such as the country information CX 71821. So it cannot be said that there was a finding of jurisdictional fact made without evidence. 15 But even if the fact that the applicant's mother had worked in China in the past despite being the mother of a black child was a jurisdictional fact, there was evidence to support the Tribunal's finding. The passage from the evidence quoted above shows that the applicant's mother had worked in China after her return from the UAR, albeit for a short time. The mother does not suggest that she was dismissed because she had a black child. As a fact finder the Tribunal could reasonably expect that, had the mother been dismissed for this reason, she would have seen such an event as directly relevant to her future fears for the applicant in China and would have said so. The applicant and his mother were represented by a migration agent. The Tribunal's findings were not irrational or illogical.