APPEAL TO THIS COURT
42 The two grounds of appeal in the appellants' notice of appeal filed 6 October 2015, largely replicate those in their application for judicial review to the Federal Circuit Court and are as follows:
1. The primary judge erred by failing to find that the Second Respondent's decision was affected by jurisdictional error in that the Second Respondent failed to consider claims squarely raised by the Third and Fourth Appellants and/or clearly advanced in the materials, namely that as a result of the First Appellant's objection to undergoing an intrauterine device insertion or tubal ligation, they would be denied hukous.
Particulars
a) The First Appellant made written and oral submissions that while women cannot be forced under law to undergo sterilisation or contraception they face immense pressure from authorities which results in an ultimatum of choosing either sterilisation or contraception in order to register children under hukous (CB 190-193, 210-213; annexure A to affidavit of Monique Julia Vaughan affirmed 8 June 2015 page 24-25; 'Transcript').
b) In its decision record dated 18 December 2014, the Second Respondent accepted that 'significant pressure would be brought to bear one or the other of the applicant parents to voluntarily undergo sterilization or in the applicant mother's case, contraception.' (CB 260 [154]).
c) At the hearing the Second Respondent received oral submissions from the Appellants' representative on whether the applicant children being denied hukous would constitute persecution (Transcript 27).
d) The Second Respondent accepted that if either child were unable to obtain a hukou they would form 'a particular social group and the regulation they would face would be persecutory.' (CB 259 [143]).
e) The Second Respondent did not accept that 'significant pressure and any threats of refusing to register the children, contrary to law as they are, give rise to the level of being persecutory.' (CB 260 [154]).
f) In its decision record the Second Respondent also considered the likelihood of physically forced sterilisation or contraception (CB 260-261 [155-158]).
g) The Second Respondent found that there was no evidence that 'physically coerced sterilisation or contraception has taken place in recent years in the Liaoning province or in relation to ethnic Koreans.' (CB 260 [156]).
h) The Second Respondent at CB260 made findings in relation to potential persecution suffered by the First and Second Appellants, but did not consider whether the potential denial of hukous to the Third and Fourth Appellants if the First Appellant refuses to undergo sterilisation or contraception could constitute persecution or significant harm.
2. The primary judge erred by failing to find that the Second Respondent made a jurisdictional error by failing to consider relevant material, namely the decision of the UK Immigration and Asylum Chamber of the Upper Tribunal and material referred to by that Tribunal, regarding an aspect of the Appellants' claims for protection.
Particulars
a) At the hearing, the Transcript (page 21) shows that the Second Respondent stated, in reference to its own country information, that 'our country information sucks'.
b) Under the heading 'Country of origin information - child registration' at [95-100] and 'Country of origin information - forced sterilisation/contraception' at [101-109], the Second Respondent had regard to the findings of the UKIAC and the expert report of Professor Fu Hualing prepared for that matter.
c) At [152-155], the Second Respondent appeared to accept that coerced sterilisation, contraception or interference with reproductive affairs could constitute persecutory state conduct.
d) At paragraphs 168 and 174 of the UKIAC decision, the UKIAC held that the family planning scheme in China is revisited every five years, last in 2010 and next due in 2015, and that in the leadup to this review a national campaign to return to authorized quotas occurs, resulting in 'vigorous (sometimes unlawful) crackdowns' which may lead to large-scale human rights abuses and forced sterilisations.
e) Further at paragraph 185, the UKIAC held that several scandals have occurred during recent 'crackdowns' where forced sterilisations occurred in large numbers, and that where a real risk of forcible sterilisation exists this would be persecutory and international protection would be engaged.
f) Further at paragraph 191 subparagraph 11, the UKIAC held that
i. If a female returnee who has already had her permitted quota of children is hukou area, such a returnee would be at real risk of unlawful practices such as forced sterilisation.
ii. Outside such times, a female returnee may also be able to show an individual risk where there is evidence that she or members of her family remaining in China have suffered adverse ill-treatment by reason of breach of the family planning scheme.
2. At paragraph 110, the UKIAC referred to the report of Fu Hualing that family planning enforcement had been stepped up against migrants with rural hukous working in cities, with discrimination faced by such migrants.
3. There was thus a large volume of country information before the Second Respondent, and which the Second Respondent by its repeated reference to this information throughout its decision demonstrably preferred, which was relevant to the case, strongly supported their claims, and was not considered or referred to by the Second Respondent.
43 The appellants submit the primary judge erred in finding ground 1 was not made out. They cite the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 73 ALD 321 at 326, 340; [2003] HCA 26, and that of Allsop J in Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 at 152; [2001] FCA 1802, in support of the principle that failure to consider a "substantial, clearly articulated" issue can constitute jurisdictional error. They further cite the Full Court of this Court's decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641; [2003] FCAFC 184 as follows:
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point… Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
44 In this regard, the appellants note the children's denial of hukous claims were raised in their pre-hearing submissions to the Tribunal dated 17 September 2014, oral submissions at the Tribunal hearing, and in post-hearing submissions dated 20 October 2014, particularly the report of PhD candidate Stephanie Gordon, which provided that:
I do not know of any example of a woman with two children in China who is not required to accepted either an IUD insertion or sterilisation.
…
I do believe it is reasonably likely, should [the appellant wife] refuse to undergo tubal ligation surgery or accept an IUD, she will encounter difficulties registering her children with the hukou.
45 Having recited the Tribunal's findings contained in the particulars of ground 1 of the notice of appeal, the appellants submit these findings focused on the avenues of enforcement of sterilisation or contraception by the Chinese authorities, finding that the pressure exerted by officials did not amount to persecution and finding that actual physical coercion would be unlikely. The appellants contend the Tribunal did not, however, consider whether the potential consequences of the denial of hukous to the children, if the appellant wife refused to undergo sterilisation and/or contraception, could constitute persecution or significant harm under the Act.
46 The appellants further submit the Tribunal's failure to deal with the children's denial of hukous claims in its reasons, supports an inference that these claims were overlooked.
47 The Minister submits there was no appealable error by the primary judge in concluding he was not satisfied of any jurisdictional error as alleged in ground 1.
48 In order for the appellants to make out ground 1, the Minister submits that they must demonstrate that, having regard to all of the evidence and other material before the court, it would be appropriate to draw that inference; that is, the appellants must demonstrate on the balance of probabilities that the Tribunal did not consider the children's denial of hukous claims. See SZDXZ v Minister for Immigration and Citizenship [2008] FCAFC 109 at [25].
49 The Minister notes the various points at which the primary judge referred to the Tribunal's consideration of the children's denial of hukous claims and contends there was no appealable error in his Honour's conclusion that, on a fair reading of the Tribunal's decision as a whole, the Tribunal had properly addressed the claims advanced on behalf of the children. The Minister submits that his Honour was correct in considering ground 1 on the basis that the Tribunal's reasons had to be read fairly and as a whole. See Minister for Immigration and Border Protection v Tran (2015) 232 FCR 540; [2015] FCA 546 at [24].
50 Accordingly, the Minister submits, this led to the primary judge's conclusion that he was not satisfied of any jurisdictional error as alleged in ground 1, which does not involve any appealable error.
51 In my view, ground 1 of the appeal should be upheld having regard to supporting particulars (a) to (h) in the notice of appeal.
52 The precise submission made by the representative of the appellants at the hearing in the Tribunal, was that:
If we don't look at the claims by [the appellant wife] but rather look at [the son] … or both of the children in this instance, that might be denied that - if she decides not to undergo sterilisation, not to have an IUD inserted, regardless of what reasons and regardless of the policy - the flow-on effect would be that one or both of the children would not get a hukou, therefore they would be subject to persecution. So we would ask that if you find that this is just an incidental factor - the fact that she doesn't undergo these processes and the child doesn't get a hukou - that … would be prosecuted.
53 For the record, the transcript shows that the Tribunal member said she would "look at that".
54 In my view, that very precise submission was not in fact looked at, despite the submission made on behalf of the Minister that the inference that the appellants asked the Court to make should not be drawn and that, on a fair reading of the Tribunal's decision as a whole, that specific claim was addressed and answered.
55 There is no doubt that a Tribunal's reasons should be read as a whole and fairly, as indeed should most, if not all, reasons given by decision-makers, tribunals and courts. In that regard, what Jagot J said in Tran at [24] is not to be doubted. First, reasons are to be read as a whole. Second, reasons are to be read fairly. Third, reasons are not to be read as if each paragraph is self-contained and necessarily sequential. But, having so stated, it will always be a question of construction as to what a decision-maker actually did decide in a particular case, and for what reason. In a case such as the present, the question is whether the very particular submission made was in effect covered off by the Tribunal's reasons when appropriately construed in accordance with those principles.
56 Between [143] and [149] of its reasons, the Tribunal dealt with the question of family planning regulation and the "registerability" of the appellant daughter and son. The Tribunal made a number of specific findings or drew a number of conclusions that are not now challenged:
That were either child to be refused registration and to be unable to obtain a hukou, they would form a particular social group and the regulation they would face would likely be persecutory.
The appellant wife's fear that neither child would be able to be registered as they were born abroad was not well-founded and, instead, country information indicated that the family planning provisions do not apply to overseas born children and, as such, no SUC payment was payable in relation to either.
The fear of the appellant wife that, even if her daughter could be registered, her son, as a second child, would not be, was not well-founded, as the son would be an authorised second child, due to the appellant wife's rural Liaoning hukou and the Korean ethnicity of the appellant wife and husband, meaning they are both members of a defined ethnic minority under the relevant domestic law.
No SUC would be payable in any event and, even if it were, the appellant wife and husband could pay it.
57 The Tribunal then stated, at [148]:
Related to this claim is the possible claim that the fact of the children's overseas births would lead to heightened scrutiny of the parents upon their return to China in relation to their other claims. While their mere birth, overseas or otherwise, may have implications on the applicant parents claims regarding forced sterilisation/contraception (discussed in more details below), the country information set out above indicates that children born to a very large Chinese diaspora overseas bring no heightened scrutiny to returning nationals.
58 The Tribunal then concluded, at [149]:
Accordingly, I do not accept that there is a real chance that the applicant son and applicant daughter would face persecution now, or in the foreseeable future, based on their ability to be registered in China. Nor do I accept that they would face a real risk of significant harm on this basis for the purposes of complementary protection.
59 Nothing in those paragraphs, in my view, justifies the view, which the primary judge, at [12] of his reasons for decision adopted, that on a fair reading of the Tribunal's decision as a whole, the Tribunal addressed the claims advanced on behalf of the appellant wife and on behalf of the daughter and son, concerning the Tribunal's failure to consider the specific submission made that if the appellant wife did not undergo the IUD procedure there would be consequences for the children's registration.
60 In my view, on a reading of the Tribunal's reasons as a whole and on a fair reading of those reasons, the question whether the actual refusal by the appellant wife to undertake the IUD procedure would carry consequences such that her children would not obtain hukous was not considered.
61 The Tribunal went on to deal with the specific question of the forced contraception and/or sterilisation of the appellant wife (and husband) between [150] and [158] of its reasons.
62 The Tribunal, at [154], expressly did not accept that the significant pressure and any threats of refusing to register the children, contrary to law as they would be, gave rise to the level of being persecutory. That finding is not challenged on this appeal.
63 At [155], the Tribunal said that, with respect to physical coercion or force, while it accepted that this had occurred, the Tribunal also accepted that it was increasingly rare and accepted the explanation as to why.
64 At [156], the Tribunal noted there was no country information that physically coerced sterilisation or contraception had taken place in recent years in Liaoning province or in relation to ethnic Koreans and assertions to the contrary appeared to be mere supposition and the report of Ms Stephanie Gordon, provided by the appellants following the hearing in the Tribunal, appeared to rely on generalisations on that point.
65 At [158], the Tribunal did not accept that there was a real chance that either the appellant wife or the appellant husband would be subjected to forced sterilisation or forced contraception and therefore did not find there was a real chance of their persecution on that basis, or that there was a real risk of significant harm on that basis for the purposes of complementary protection.
66 The appellants make the submission, however, that the evidence showed that, while physical coercion or force in that regard might be rare, there would be real psychological pressure placed on the appellant wife to undertake the IUD procedure.
67 Thus, the question squarely put by the representative of the appellants, before the Tribunal, concerning what the consequences for the possible grant of hukous to the children would be if the appellant wife failed or refused to succumb to such pressures, was not addressed.
68 In my view, that submission is correct.
69 The Court appreciates that Tribunal decision-making in this area is often complex. Certainly in this case it was, with the appellant wife and husband each making claims which were to a large extent interdependent of each other, but not entirely; and the claims of the two children each being separate, but also being related to some of the grounds advanced by the appellant wife and husband, particularly the appellant wife, concerning forced, or pressured contraception in light of the fact that she and her husband, if returned to China, already had two children who had been born outside of China.
70 In my view, there was an issue of precisely the sort that the representative put to the Tribunal which was not squarely answered and was not, in my view of the reasons, otherwise covered off on reading the reasons for decision of the Tribunal both as a whole and on giving them a fair reading.
71 The fact that this issue was raised in intelligible terms but not responded to directly, in the particular circumstances of this case, in my view, means that the relevant issue was not responded to.
72 In these circumstances, the appeal succeeds on ground 1.
73 With regard to ground 2, the appellants submit the Tribunal failed to consider relevant material, being the UKIAC decision and the expert report regarding the material issue of forced sterilisation of the appellant wife and husband if returned to China.
74 The appellants note the Tribunal relied on the UKIAC decision and the expert report for country of origin information in regards to child registration and forced sterilisation and/or contraception in China. They further note the Tribunal accepted that coerced sterilisation or forced contraception could constitute persecutory state conduct, as well as the explanation in the expert report as to why such physical coercion had become increasingly rare. The appellants submit the Tribunal did not, however, accept there was a real chance that the appellant wife or husband would be subjected to forced sterilisation and/or contraception and therefore found there was not a real chance of persecution.
75 Having recited UKIAC's findings contained in (d), (f) and (2) of the particulars of ground 2 of the notice of appeal, the appellants state there was a large volume of country information before the Tribunal to consider in assessing the appellant wife and husband's claims regarding forced sterilisation and/or contraception, in particular the likelihood of a "crackdown" during 2015. As noted by UKIAC, if a returnee already had her permitted quota of children and was returned during a crackdown, she would be at real risk of forced sterilisation.
76 The appellants submit, as the appellant wife already had her quota of two children allowed by her rural hukous, the UKIAC findings were relevant to the Tribunal's consideration of whether there was a real risk of forced sterilisation. The appellants submit that such information was nonetheless not considered by the Tribunal when assessing the claims of forced sterilisation and/or contraception.
77 Consequently, the appellants submit the Tribunal fell into jurisdictional error and the primary judge erred in not so finding.
78 The Minister, however, notes the primary judge's references to the country information considered by the Tribunal in its reasons. The Minister submits his Honour was correct in concluding that the Tribunal did base its decision on country information in the expert report, but was not bound by that report, and it was a question for the Tribunal to determine what weight it gave the country information. See NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [11]-[13].
79 Consequently, the Minister contends that the following conclusions made by his Honour were reasonably open and did not demonstrate any appealable error by reason of a failure to make a finding of jurisdictional error on the part of the Tribunal, as alleged by ground 2:
not being satisfied the Tribunal had engaged in any jurisdictional error as alleged in ground 2;
accepting the Minister's submission that it was a matter for the Tribunal to assess the country information and to give the country information such weight as it thought fit; and
finding the Tribunal did have regard to the expert report, and that the adverse findings by the Tribunal were open on the material before it.
80 Ultimately, the Minister submits the appeal should be dismissed with costs.
81 In considering ground 2, the essential issue raised is whether the Tribunal failed to consider certain paragraphs of the UKIAC decision said to be significant, particularly [168] and [174], to the effect that the family planning scheme in China is revisited every five years and was last reviewed in 2010 with the next review due in 2015, 2015 being the time at which the Tribunal decision was being considered.
82 Paragraph [168] of the UKIAC decision, which appears under the heading "Country guidance findings" stated that:
The statutory scheme is now revisited every five years, most recently in 2010. The present scheme will be reviewed again in 2015. In the period leading up to the 2005 and 2010 reviews, there was an increased laxity in local areas, followed by a national campaign to return to the authorised quotas, which placed pressure on local officials. In each case, in a small number of provinces and areas, that resulted in human rights abuses, including large-scale forced sterilisations and termination of unauthorised pregnancies, even very close to term.
83 Paragraph [174], in that same section of the decision, stated:
From time to time, most recently in early 2010, national campaigns to reduce over-quota births led to vigorous (sometimes unlawful) local 'crackdowns' on unauthorised pregnancies and couples who have not opted for sterilisation after the second child. The pressure on officials sometimes results in large scale unlawful family planning abuses in provinces or areas which are significantly over quota. During such crackdowns, human rights abuses can and do occur in some provinces and areas. We do not consider that these large-scale abuses are likely to be under-reported, on the contrary, they attract widespread international attention and opprobrium and may even result in international diplomatic intervention. However, these occurrences, appalling as they are, are exceptional.
84 Ground 2 also refers to [185] of the decision, which appears under the heading "Forcible sterilisation" and states:
Where there exists a real risk of forcible sterilisation of either partner, that would be persecutory and international protection would be engaged. On the extensive evidence before us, we are not satisfied that in general there is a real risk of forcible sterilisation of either partner, although we recognise that there have been three modern scandals during birth regulation crackdowns, where such sterilisations occurred in large numbers. We recognise also that some of the international reports state that forcible sterilisation occurs 'fairly frequently'; however, the overwhelming evidence, and the evidence of Professor Fu (which we accept and prefer on this point) is that the occurrence is limited and therefore, in our judgement, it does not amount to a real risk.
85 The appellants also refer to [191], which is under the heading "Country guidance summary", which stated that if a female returnee, who has already had her permitted quota of children, is in a hukou area, she would be at real risk of unlawful practices such as forced sterilisation.
86 The appellants submit that these provisions were disregarded by the Tribunal altogether.
87 By contrast, the Minister notes, as did the primary judge, that the Tribunal referred to this decision by name and its other content in a number of places, was not bound by the decision, and was entitled to give what weight it considered appropriate to the country information.
88 The authorities, including NAHI, are not to be doubted. It is for the Tribunal ultimately to determine what weight it wishes to give to country information before it. But if a Tribunal having identified relevant country information were, as a matter of fact, not to consider it at all, then it would be open to conclude that the Tribunal failed to consider relevant material. Such a case would not be one where the Tribunal simply did not feel bound by it, or did not give it appropriate or any weight.
89 In this case, on the one hand, the UKIAC decision was referred to, as the primary judge held, and the Minister submits, in various places, for example in the reasons at [101] to [109]; and the findings made by the Tribunal at [154] to [156], concerning forced sterilisation being rare and the like, explicitly rely on that decision.
90 On that basis, it may be argued, and is by the Minister, that the failure of the Tribunal in its reasons to make any express reference to the evidence concerning possible "crackdowns" in 2015 is not significant and there is no reason to think, reading the reasons as a whole and fairly, that those parts of the decision were ignored.
91 Furthermore, there is an observation to be made that the information about possible "crackdowns" in 2015 is limited in both temporal terms and the places in which the crackdowns might occur. The appellants do not draw attention to other evidence which suggests that the crackdowns have happened in the past in the provinces in which the appellant wife and husband have their hukous, for example. Ms Gordon's report, provided to the Tribunal, did not suggest this was an issue.
92 On the other hand, the fact there is no specific reference to the "crackdown" evidence suggests perhaps it was not responded to at all.
93 In the result, I consider that the reasons of the Tribunal, when read, in relevant parts, as a whole and not with an eye attuned for error, discloses that the Tribunal did not disregard the UKIAC decision and expert report, including the paragraphs referred to by the appellants.
94 The Tribunal's detailed discussion of country information, including by reference to various reports, including the UKIAC decision, and Ms Gordon's detailed report, is a fair and suitably comprehensive account of relevant country issues. There is no reason to infer the Tribunal was not alert to the information the appellants note was not discussed in the Tribunal's reasons. It should, rather, be inferred the Tribunal chose not to ascribe to it the significance the appellants were seeking to give it. In all of those circumstances, the inference that possible "crackdowns" information was not considered by the Tribunal at all, should be rejected.
95 For these reasons I do not consider that the primary judge erred when, at [17] of his reasons, his Honour found that the Tribunal did regard the expert report as contained in the UKIAC decision.
96 Accordingly, ground 2 fails.