Case: Chen Shi Hai v Minister for Immigration &amp; Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293
Outcome: followed
In essence, the husband and wife claimed to fear persecution in China because, first, they had breached China's one child policy and, secondly, they were Christians. S based his claim to fear persecution in China by reason of his membership of a particular social group namely, "black children". This claim was that a "black child" in China is treated differently in consequence of that country's one child policy. This is claimed to be because black children are the victims of systematic and serious persecution as citizens of China by being denied household registration, access to food, education and health care beyond a very basic level: Chen Shi Hai v Minister for Immigration &amp; Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 at 303-304 [30] - [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 6 The husband and wife also claimed that they had had a third child while in China, so that S was their fourth child, but the tribunal rejected that claim. It found that S was the couple's third child. The tribunal rejected the husband's claim to be a Christian. It concluded that he had fabricated that claim. It disregarded his practice of Christianity in Australia pursuant to s 91R(3). It also found that he had lied in attempting to explain his ability to leave China without difficulty and that he was not a credible witness. The tribunal concluded that it was not satisfied that he had a well-founded fear of persecution for a Convention reason. The tribunal found that the wife had lied to the department and an earlier tribunal hearing concerning her identity and was not credible. While it accepted that the wife was a Christian and a member of an underground church in China, it concluded, on the basis of independent country information, that she did not have a well-founded fear of harm for the latter reason. Those considerations may now be put to one side as not relevant to her Honour's decision or the issues which arise on this appeal. 7 Two grounds were argued by counsel who then appeared for the appellants before her Honour. Those grounds were in their further amended application and their notice of appeal, namely the tribunal made a jurisdictional error in: 1. finding that the [appellants] did not face a real chance of persecution as a result of their breach of the one child policy in China; 2. failing to determine the father's claim that he would keep on having children, and thus continually breach the one child policy. 8 Thus, the issues for consideration by the trial judge were confined and discrete. The crux of the appeal focuses on the tribunal's consideration of the appellants' claims concerning the one child policy as it affected each of them. The tribunal accepted that the husband and wife were in breach of that policy because they had had three children, including S, who had been conceived in China. Their position of breach of the policy is not affected by the tribunal's rejection of their claim that they had a fourth child. 55 There was nothing in the material before the tribunal or in its reasons to justify any conclusion that there was such a considerable relaxation of the enforcement of the Chinese family planning laws that the fee would not be required to be paid in full before S could be given household registration. But, the tribunal did not address the question of what fee would be likely to be imposed and when the appellant parents would be likely to have paid it, so that S's status as a "black child" would cease. The function of the tribunal was to assess the real chance whether the fee would be so large and the time for payment of any fee imposed would be of such a lengthy period that S would suffer persecution, were he to return to China. Until it addressed that question, it could not determine whether there was a real chance that S had a well-founded fear that he would be subjected to persecution as a "black child" because he would not be registered, were he to return to China: Chen Shi Hai [2000] HCA 19 ; 201 CLR 293 at 303-304 [29] - [33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 56 Instead, the tribunal constructed a syllogism in its reasoning for rejecting S's claim entirely. First, it said that the status of a "black child" could be removed once the social compensation fee was paid. Secondly, the authorities may impose a fee which the husband and wife may not be able to pay immediately, but they may be able to pay it by instalments. Therefore, the tribunal asserted, there was no real chance that S would be treated as a "black child" because he would be able to be registered. 57 The critical question which the tribunal avoided by its syllogism was whether there was a real chance that S's household registration would not occur for a period of time sufficiently long, during which he would be denied access to State services ordinarily provided to children and citizens, so that he would suffer serious and systemic discrimination as a "black child". The tribunal made no finding at all about what the parents might be required to pay, let alone how long it would take them to pay that sum. The tribunal did not make any finding that the family planning laws were not enforced in relation to the payment of the social compensation fee. If there were a real chance that S would not be able to be registered for some substantial period due to the size of the fee and the time it would take for his parents to pay it in full, then it is difficult to understand how the tribunal could have come to the conclusion that S faced no real chance of being subjected to serious harm amounting to persecution. This was because he would be a "black child" unless and until the fee was paid in full. 62 Her Honour also appears to have accepted that the tribunal made a finding "as to the ability of the [appellant] parents to pay the social compensation fee" (at [98]). However, the tribunal made no such finding, nor could it have done so on its reasoning process. This was because it only speculated by postulating the possibility that some unspecified fee may be payable, that that may be at a level which the parent appellants may not be able to afford immediately, and that it may be that they would then be given an instalment plan. That non-sequitur did not justify the tribunal finding that there was no real chance that S would not be registered at all or within a reasonable time, having regard to whatever the fee or instalment period may be. As Gleeson, Gaudron, Gummow and Hayne JJ said in Chen 201 CLR at 305 [36]: "Nor can it be said, as the Tribunal suggested, that the appellant faces a real risk of persecution in China, not because he is a "black child", but because of his parents' financial situation. To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment. It may be that, if they had, the treatment in question could be viewed as appropriate and adapted to the implementation of China's "one-child policy" and not as persecution. However, that question is entirely hypothetical and need not be pursued in this case."