Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165 ; 198 ALR 59
Outcome: referred to
SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 ; (2003) 77 ALD 402 (" SFGB "), the Full Court of this Court suggested that an error consisting of the making of a finding of fact for which there is no evidence may well constitute a jurisdictional error, even if it cannot also be concluded that the decision-maker applied an incorrect test or failed to apply the correct test or took into account irrelevant considerations or failed to take into account relevant considerations. The Court said (at 407 [19]-[20]): "This argument, if it were made out, would be sufficient to establish that the tribunal had made a 'jurisdictional error' so as to found jurisdiction in this court to intervene. If the tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 355 7 [1990] HCA 33 ; ; 94 ALR 11 at 37 8 [1990] HCA 33 ; ; 21 ALD 1 at 23 4. If the decision of the tribunal was ' Wednesbury ' unreasonableness or if the material on which the tribunal relied was so inadequate that the only inference was that the tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 62, 67, 76, 90 91 [2003] HCA 30 ; ; 73 ALD 1 at 4, 8 9, 18, 31 3. ( S20 ). On the other hand, if there is sufficient evidence or other information before the tribunal on which it could reach the conclusion it did then it is for the tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 6; 93 ALR 1 at 24 5." The first respondent submitted that the principle identified in [53] above is inconsistent with the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 77 ALJR 1165 ; 198 ALR 59. I have examined that decision carefully and I do not think there is anything in the decision which is inconsistent with the principle identified by the Full Court. Leaving aside the question of whether, sitting as a single judge exercising the appellate jurisdiction of this Court, I could or should decline to follow a decision of the Full Court, I am not persuaded that the decision is clearly wrong and I think I should follow the principle identified by the Full Court. Issues on the appeal In this case, the appellant through her solicitors made a written submission to the Tribunal that she is a member of a particular group of people, namely, Chinese parents of black children and that the punishments she has suffered and might suffer are not appropriate and adapted to achieving a legitimate end. The appellant submitted that her breach of the one child policy had not come about as the result of any "sin" on her part, bearing in mind the pressures imposed by Chinese society to bear a male child. She submitted that she suffers and continues to suffer serious psychological harm as a result of the persecution of her black child. In this case, the Tribunal did not approach the matter by determining whether there was a particular social group of the type identified by the appellant, or, indeed, any other particular social group which might be reasonably arguable on the facts. The Tribunal approached the matter by considering whether the serious harm which the appellant feared, and which the Tribunal found, arose, or resulted from, the application of a law of general application. As I have said (at [50]), that is not necessarily an error. However, the appellant submitted that the Tribunal made an error in determining that an order requiring a sterilisation operation arose, or resulted from, the application of a law of general application. That submission is correct. I accept the first respondent's submission that there are limitations on the Tribunal's ability to determine with precision the provisions of China's family planning laws and that there would be a temptation to think, as the order that the appellant undergo a sterilisation operation followed "hard on the heels" of the termination of the appellant's third pregnancy, therefore it was part of a law of general application. However, when regard is had to the evidence the Tribunal referred to in relation to this question, it seems to me that there was no evidence that sterilisation was part of a law of general application. In fact, the evidence was to the contrary. In determining the parameters of China's population policy, the Tribunal relied on evidence from various sources. It referred to the one child policy launched by the Chinese Government in 1979. It referred to the fact that there is no national legislation, and family planning policy is left to provinces and municipalities to implement, and each province has drafted its own regulations in support of the policy. The Tribunal noted sources indicating that family planning policy varied widely across China and that penalties for contravening the one child policy can also vary across regions. The Tribunal noted a source suggesting that, in general, Fujian had one of the least coercive family planning regimes in China and that "some local governments enforce family planning rules more vigorously than others". This has created "a patchwork of different rules and enforcement across the province". In dealing with coercive measures, the Tribunal referred to the following: (1) A statement by the United States of America Department of State in 1999; (2) A Canadian report dated 2000; (3) Reports prepared by the Department of Foreign Affairs and Trade in 2004; (4) A news article, another Canadian report and other reports of the Department of Foreign Affairs and Trade. These sources suggested that government policy forbade forced sterilisations, although they occurred from time to time. They tended to result from the actions of overzealous officials and they were becoming rarer.