FEDERAL MAGISTRATES COURT OF AUSTRALIA
SZQNA & ANOR v MINISTER FOR IMMIGRATION & ANOR	[2012] FMCA 481	

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.	

Migration Act 1958 (Cth), ss.414, 424AA, 424A, 425	

Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62
Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62
Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] FCA 622
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802
Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318
Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39
Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22
Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220; [1999] FCA 719
MZXTZ v Minister for Immigration and Citizenship and Another (2009) 110 ALD 577; [2009] FCA 888
MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263
Re Woolley and Another; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1; [2004] HCA 49
S v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 575; [2000] FCA 735
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26
SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172
SZLSM and Another v Minister for Immigration and Citizenship and Another (2009) 176 FCR 539; [2009] FCA 537
SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46
Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 868	

First Applicant:	SZQNA	

Second Applicant:	SZQNB	

First Respondent:	MINISTER FOR IMMIGRATION & CITIZENSHIP	

Second Respondent:	REFUGEE REVIEW TRIBUNAL	

File Number:	SYG 1723 of 2011	

Judgment of:	Barnes FM	

Hearing date:	13 March 2012	

Delivered at:	Sydney	

Delivered on:	8 June 2012	

REPRESENTATION
Solicitors for the Applicants:	Paul Guan & Associates	

Solicitors for the Respondents:	DLA Piper Australia	

ORDERS
(1)	The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY	
SYG 1723 of 2011
SZQNA & SZQNB	
Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP	
First Respondent

REFUGEE REVIEW TRIBUNAL	
Second Respondent

REASONS FOR JUDGMENT
Background
1.	This is an application for review of a decision of the Refugee Review Tribunal dated 11 July 2011 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
2.	The applicants are two children who were born in Australia (in 2007 and 2010) of Chinese national parents. On 23 November 2010 the older child lodged an application for protection visa in which his younger brother was named as a member of his family unit.  However the written statement attached to the protection visa application made it clear that both applicants claimed to fear persecution for a Convention reason.  Their claims were assessed on that basis.
3.	The applicants both claimed to be citizens of the Peoples Republic of China born in Australia.  The statement attached to the protection visa application recited that the applicants’ parents came to Australia in 1997 and 2004 respectively and that each had unsuccessfully applied for protection visas.  It was claimed that the applicants’ parents were not married and that under Chinese law both children were illegitimate and breached the family planning law and the “One family one Child” policy.  It was claimed that a “significant” financial penalty would be imposed on the parents and that as the family would have financial difficulties in paying the compensation fee the children would not be able to obtain household registration, would be regarded as “black children” and thus would not be entitled to social benefits and welfare such as public education and Medicare, that they would not be treated the same as other citizens and that they would be deprived of their “living rights”.  It was also claimed that the applicants would be prevented from accessing a normal life, subject to discrimination, a loss of self-esteem and that they would “fall into psychopathic and autism” (sic).
4.	It was claimed that the applicants’ parents had lost their farm land in China, that they did not own anything in China and that they would not be able to pay the compensation fee.  It was also claimed that the parents would suffer disadvantage and would have difficulty making a living on return to China.  In addition it was claimed that the Chinese government and police had never given up on investigation of the parents’ background, that the “parents’ relatives in China [we]re often harassed by the government” and that the parents were worried about the implications for their family if they were returned to China.
5.	The application was refused by a delegate of the first respondent.  The applicants sought review.  They were represented by their parents, who appeared before the Tribunal to give evidence and present arguments on 21 June 2011 and 27 June 2011.  Transcripts of the Tribunal hearings are in evidence before the Court.
Tribunal Decision
6.	In its findings and reasons the Tribunal addressed the claim that the applicants feared persecution because they would be regarded as “black children” and that they would be unable to obtain household registration or access education and health services and that their parents could not afford to pay the social compensation fee.  It recorded that it was also claimed that the applicants could not get Chinese passports, that their father did not have household registration, that they would have nowhere to live in China as their parents did not own property and that they would be poor in China.
7.	The Tribunal accepted that the applicants were born in Australia of Chinese national parents and had Chinese nationality under Chinese law which they could seek to have recognised by the Chinese authorities.  It accepted that the applicants’ parents had been in a relationship for about seven years and that they had not legally married.  It did not accept “that the applicants’ father was forced to marry an older woman in China when he was 20 years old” as had been claimed, having regard to Chinese law to the effect that “no marriage may be contracted before the man has reached 22 years of age”.  The Tribunal found that the father was too young to have been legally married and that he was not married to an older woman in China.
8.	The Tribunal addressed the claim that the applicants would both be “categorised in the Extra Birth category, as both were born outside wedlock” and that a liability to pay social compensation fees would arise for both the applicants.  It accepted that children who were not registered (known as “black children”) were a particular social group in China who discriminatorily may be denied access to education, health services and employment opportunities and that this may constitute persecution.  
9.	The Tribunal found that, notwithstanding that there was “some independent information indicating that the applicants might not be subject to the One Child Policy and hence the social compensation fee, because they were born overseas”, it could not “rule out the possibility that a liability [would] arise for both children if they were to return to China”.  It accepted that “the applicants’ parents might have to pay a fee in relation to the birth of both of their children because they [we]re ‘out of plan’ births”.  
10.	In that context, the Tribunal addressed the parents’ claim that they would have difficulty in paying the fees for the applicants, finding that the question was whether or not the “parents [we]re in a position to be able to pay the amount required to register the applicants, or alternatively pay for private schooling and health care, if the applicants and their parents were to return to China”.  
11.	The Tribunal concluded, for reasons which it gave, that it was “not satisfied that the applicants’ parents [could] not afford to pay any social compensation fee that might be imposed with respect to the applicants”.  It had regard to the manner in which such fees would be calculated, including the relevance of whether the family resided in a rural or urban region. The Tribunal found that it was not possible “to make a definite finding about the actual quantum of liability, as the rate [wa]s calculated according to the family’s income and a number of other factors”, but noted that “the liability for both of the applicants could be a minimum of about … A$4,900” or, (as it had suggested in the hearing) in the vicinity of about $9,500 for both children.  It observed that independent information indicated “that the authorities might be more lenient with respect to children born overseas”.
12.	The Tribunal had regard to the fact that the applicants’ parents had both been able to borrow “large sums of money” from relatives to travel to Australia.  While it had “asked the applicants’ father if he would be able to provide to the Tribunal bank statements and he [had] indicated he could” do so, the Tribunal received no such statements.  The Tribunal was “not satisfied it [could] make a finding about the applicants’ parents’ current savings”.  It had regard to the evidence of the applicants’ father that he had “been paid ‘cash in hand’ for much of his employment” in Australia over several years, so it was not possible to rely on a notice of assessment of income tax to make findings about his income in Australia.  The Tribunal accepted that the father had “been working in Australia since shortly after he arrived in 1997” and found that he had “earned sufficient income to support his family, purchase a car which he still own[ed], pay his medical and dental bills, [and] for childcare”.  He had also provided evidence that he sublet rooms in his home to tenants.  The Tribunal was satisfied that the applicants’ father had “the capacity to pay at least some, if not all, of the social compensation fee immediately if the family were to return to China”.
13.	In addition, the Tribunal had regard to country information indicating that the family could pay the fee by instalments over a three year period.  It found that there was “nothing preventing the applicants’ parents from undertaking employment in China”, albeit it accepted they “may not be able to secure employment immediately on their return” that “they might have to work at farming and their income might not be high”.  It noted that the social compensation fee was “calculated in part according to income”, so that if their income was low the fee would also be low.  The Tribunal found, having regard to “the family’s current capacity to pay their bills and day to day costs with cash, that they ha[d] financial resources”.  The Tribunal was satisfied that “the social compensation fee [could] be paid and the children [could] be registered and so have access to education and health services”.  In this respect, the Tribunal noted that the first applicant was three years old and not of school age, so that “if the family need[ed] to rely on paying the fee by instalment, he [would] not miss out on access to education in the next two years”.  Further, the Tribunal was of the view that “if the family ha[d] not paid the fees within two years with their own income they ha[d] extended family resources available to them”, as indicated by the fact they have been able to borrow from relatives in the past to travel abroad.  It also had regard to the fact that the second applicant was only one year old, so that his education would not be an issue for four years.  It was satisfied that “the applicants [would] not be deprived of access to education because they ha[d] not been registered”.
14.	The Tribunal addressed the submission of the applicants’ mother that she would “have to pay for health care in her area regardless of whether the children [we]re registered”, on the basis that this charge applied to “everyone in the area”.  The Tribunal was satisfied that such arrangement was not discriminatory and that it would “not be applied to the applicants in a discriminatory way because they [we]re considered ‘black children’”.  The Tribunal also had regard to country information referred to in the delegate’s decision “indicating that the fees for private clinics for unregistered children [we]re not excessive by Chinese standards”.  It was satisfied that “any fee for medical care imposed before the registration of the children [would] be affordable”.
15.	The Tribunal considered the contention of the applicants’ parents that they would not have anywhere to live if they returned to China and that “if they ha[d] to live with their respective families their standard of living [would] not be good”.  The Tribunal did “not accept that the applicants’ family [would] not have anywhere to live”, having regard to the parents’ evidence that they had remained in contact with their families and the fact that they had planned to return to China in 2007 but could not do so because of difficulties obtaining travel documents.  The Tribunal was “of the view that the applicants’ family [would] be able to live with either [parent’s] family”.  While the Tribunal acknowledged that “it might be the case that the children would enjoy a higher standard of living in Australia”, it found that “the likelihood that [their] standard of living [would] be lower does not amount to persecution”.
16.	The Tribunal also addressed the relevance of the father’s claim that he did not have household registration and that this was why he had had difficulties obtaining travel documents from the Chinese Embassy in 2007.  The Tribunal accepted that in 2007 there might have been “some tension about individuals returning to China in the lead up to the Olympics” and also that the applicants’ father “might have been deregistered in China after a long period abroad”.  However it was satisfied that the “applicants’ father [did] not have any ongoing difficulties with the Chinese authorities” and that he would not have any “difficulties re-registering on his return to China”.  Accordingly the Tribunal found that once the social compensation fees were paid for the children, they would be registrable at the household with which the family chose to live.
17.	The Tribunal also noted that the mother had a Chinese ID card and the father had evidence of his Chinese passport.  Based on the country information before it, the Tribunal was satisfied the applicants would “be able to obtain the documents required to have their Chinese nationality recognised” and was satisfied that the parents would “be able to obtain the assistance of the Chinese Embassy in having their travel documents prepared for their return to China”.  
18.	The Tribunal concluded (at [139] – [140]):
	The Tribunal does not, therefore, accept that there is a real chance that the applicants will be unable to obtain household registration in the reasonably foreseeable future because the applicants’ parents will be unable to pay the fee which will be imposed due to the fact that they had the children outside China’s family planning laws.  The Tribunal does not, therefore, accept that there is a real chance that the applicants will be unregistered children, or ‘black children’, such that they will suffer serious harm amounting to persecution because they will not be able to obtain education, health care and other entitlements.  Nor does it accept that the parents will experience barriers to seeking employment and career development.
	The Tribunal is satisfied that once the fee is paid the applicants will be able to be registered and be entitled to access health and educational facilities just like any other child.
19.	The Tribunal addressed the fact that the applicants’ parents had mentioned that the mother was an underground Christian and that was why she came to Australia.  It observed that it was not claimed that the children had a fear of persecution on this basis.  In addition, the Tribunal had regard to the fact that while at the hearing it had “asked the parents on at least two occasions if there were any other claims or information they wished to provide to the Tribunal”, they “did not mention any claim associated with the mother being a Christian”.  The Tribunal was satisfied that the applicant children had no fear of persecution associated with their mother being, or having been, a Christian.
20.	The Tribunal noted the applicants’ mother’s evidence that she had applied for a protection visa for herself in a false name and the father’s indication that he entered Australia on a false passport.  It did not rely on this information in making its findings as it did not consider it to be relevant to the decision or the reason or part of the reason for affirming the decision of the delegate.
21.	Finally, the Tribunal noted that the mother had “suggested that the Chinese authorities thought her partner was a Falun Gong practitioner”, although she denied he was a Falun Gong practitioner.  It observed that the father had not mentioned to the Tribunal that he was a Falun Gong practitioner, that the mother had “provided no further evidence about this suggestion and [that] no claim was made that this could cause the children serious harm”.  The Tribunal was “not satisfied that the applicants ha[d] a well-founded fear of persecution for this reason”.
22.	The Tribunal concluded that having considered the applicants’ claims individually and cumulatively, they did not have a well-founded fear of persecution for a Convention reason if they returned to China in the foreseeable future.  It affirmed the decision of the delegate.
23.	The applicants’ first ground in the amended application is as follows:
Real Chance Test
24.	The applicants sought review by application filed in this court on 8 August 2011.  Their father was appointed litigation guardian.  They rely on an amended application filed on 29 February 2012.  The first ground in the amended ground is as follows:
	The Second Respondent (“the RRT”) has committed a jurisdictional error by misapplying the “real chance” test in the applicants’ circumstances. 
	PARTICULARS:
	a.	The RRT made findings that the applicants belonged to a particular social group, being the “black children”.
	b.	The RRT’s finding as to whether the applicants would suffer harm and persecution if they returned to China was based on whether the applicants’ parents hade (sic) capacity to pay the Social Compensation Fee.
	c.	Satisfactory payment of the Social Compensation Fee required two elements to work:
	a)	The parents are able to register their marriage in Australia or China;
	b)	The parents are financially able to pay the Fee.
	d.	The RRT only made well grounded findings on the parents’ financial capability to minimise the applicants’ chance of suffering persecution but failed to make any well grounded findings on their ability to register their marriage, or their ability to obtain the relevant identity documents as required to register a marriage, thus crippling its findings of the lack of “real chance”.
25.	It was contended that the Tribunal had misapplied the “real chance” test in determining whether the applicants’ fear of being included in the social group of “black children” was well-founded.  It appears that this is intended to be a contention that the Tribunal erred in determining whether the applicants had a well-founded fear of persecution in China for a Convention reason being their membership of the particular social group of black children or children who are not registered.
26.	As the solicitor for the applicants submitted, in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 the High Court referred to a “real chance” as one that was not remote or insubstantial, “regardless of whether it [wa]s less or more than 50 per cent” (at [19] per Dawson J).  It was pointed out that an applicant “may have a well-founded fear of persecution even though there is only a 10 per cent chance” that he will be persecuted, as long as it is not “a far-fetched possibility of persecution” (see Chan at [35]).  The applicants submitted that the “real chance” test, when applied to minors, may be derived from the fear held by their parents (Chen Shi Hai (an infant) by his next friend Chen Ren Bing v Minister for Immigration & Multicultural Affairs [1998] FCA 622 per French J).  
27.	While the particulars to this ground do not take issue with the Tribunal’s consideration of the parent’s financial capacity to pay any social compensation fee, the written submissions for the applicants referred at length to the evidence given by the applicants’ parents at the Tribunal hearing about their financial difficulties and expectations in China as well as their claim that they would be unable to register their marriage due to an arranged marriage of the father in China so that the children would remain out of wedlock.  The parents were also said to have claimed that they had experienced difficulties in relation to their household registration with the Chinese Embassy in Sydney and in obtaining identity documents and travel documents to go back to China and that this would impede their own future household registration, let alone that of the children.  
28.	It was submitted that when assessing the subjective element of fear of persecution on the part of the applicants’ parents, the Tribunal had disregarded evidence of their financial status and also their evidence of their expected difficulties in China and that it had found “incorrectly” that the parents would have sufficient financial means to pay a social compensation fee upon their return to China.  
29.	Insofar as this ground takes issue with the Tribunal’s factual findings, whether in relation to their financial situation or their ability to obtain household registration for the children, it seeks impermissible merits review and does not establish jurisdictional error.  I also note that it was acknowledged in ground one that the Tribunal made “well grounded” findings about “the parents’ financial capability to minimise the applicants’ chance of suffering persecution”.  
30.	As to the claimed failure to make findings about the parents’ ability to register their marriage, the Tribunal accepted that the parents were not legally married, found that the mother had household registration, that the father would not have difficulty re-registering and that once the social compensation fees were paid for the children they would be registrable at the household with which the family chose to live.  
31.	In written submissions the applicants’ submitted that the “real chance” test had been misapplied on the basis that the Tribunal in this case was required to ask “what if I am wrong” if it had real doubt that its findings were correct, or if it found that an event was probable but there was some remaining doubt as to that finding (Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559; [1997] HCA 22, Minister for Immigration and Multicultural Affairs v Rajalingam and Others (1999) 93 FCR 220; [1999] FCA 719, S v Minister for Immigration and Multicultural Affairs (2000) 175 ALR 575; [2000] FCA 735 and Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 868).  The Tribunal’s failure to ask “what if I am wrong” throughout its considerations was said to be a failure to discharge its duty to make findings and to determine the “real chance” of a fear of persecution. 
32.	However in oral submissions the solicitor for the applicants conceded that, contrary to what was asserted in the written submissions, this was not a case in which the Tribunal was obliged to ask itself, “what if I am wrong?”  Mr Guan, for the applicants, stated that paragraphs 13 to 15 of the applicants’ written submissions (which address the “what if I am wrong?” issue) were not pressed.  
33.	Insofar as any issue remains in ground one in relation to the Tribunal’s approach to the law, the Tribunal set out the applicable law in uncontentious terms at the commencement of its decision.  In its findings and reasons it addressed the issue of whether there was a real chance that the applicants would be unable to obtain household registration in the reasonably foreseeable future because their parents would be unable to pay the fee that would be imposed because they had children outside of China’s family planning laws.  It did not accept that there was a real chance that the applicants would be unable to obtain household registration in the reasonably foreseeable future.  The Tribunal’s findings, both as to the applicants’ parents’ ability to pay any social compensation fee and their ability to obtain household registration, were made consistent with settled principles and were open to it for the reasons that it gave on the material before it.  The Tribunal did not disregard evidence of the parents’ financial status, but rather referred to such evidence in its reasons.  
34.	It appears from the applicants’ oral submissions that it was intended to be contended that the Tribunal not only erred in fact in relation to the parents’ ability to pay the social compensation fee but also that such an error of fact gave rise to Wednesbury unreasonableness (notwithstanding that there is no such ground in the amended application) (see Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223).  However it has not been established that the Tribunal’s decision was so unreasonable that no reasonable decision-maker could reach it.  Rather, the Tribunal relied on the evidence before it, including the parents’ evidence about their financial capacity, to find that they were in a position to pay any social compensation fee.
35.	Insofar as the applicants’ solicitor raised other factual matters in oral submissions that were apparently not raised with the Tribunal (such as a suggestion that it was possible that the relatives of the applicants might not let the family stay with them), such disagreement with the Tribunal’s findings does not establish jurisdictional error but rather seeks impermissible merits review.  I note in that respect that the Tribunal considered the parents’ submission that they would not have anywhere to live if they returned to China and that if they had to live with their respective families, their standard of living would not be good.  
36.	The remaining aspect of ground one in the amended application appears to depend on a submission that for the applicants’ parents to pay the social compensation fee they not only had to have the financial capacity to pay the fee, but also had to be able to register their marriage in Australia or China.  It was contended that the Tribunal did not deal with the parents’ ability to register their marriage.  However, apart from reciting that the parents had complained of procedural difficulties such as their inability to register a marriage (and also to obtain identity documents and travel documents impeding their own future household registration there and that of the children), the applicants’ written submissions did not clearly address this issue. 
37.	The applicants have not established that they claimed or that they suggested that their parents would be unable to marry in Australia or in China in connection with the applicants’ protection visa application or that it was a prerequisite to payment of the social compensation fee that  parents of the children in question should be married.  Nor is there evidence of any country information before the Tribunal suggesting that this was a requirement.  
38.	Insofar as the parents relied upon the fact that they did not have genuine identity documents at the time of the Tribunal hearing and claimed that there was a possible obstacle arising out of a past incident in China in which the father’s family wanted him to marry an older woman, the Tribunal considered such claims but found that the applicants’ parents would be able to obtain identity documents.  Further, it did not accept that the applicants’ father was married to an older woman.  No jurisdictional error has been established in this respect. 
39.	It has not been established that the Tribunal erred in the manner contended for in ground one of the application.
40.	In oral submissions, the solicitor for the applicant also appeared to suggest that the Tribunal had erred in basing its “whole decision” on the parents’ ability to pay the social compensation fee and in failing to consider whether the children might have a well-founded fear of persecution on some other basis, even if the fee was paid.  However, the Tribunal considered the applicants’ claims as made to it and as arose squarely on the material before it (see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263).  Such consideration does not demonstrate a misapplication of the real chance test.  Insofar as this appears to be a submission that the Tribunal failed to have regard to relevant considerations, it is addressed below in relation to ground two in the amended application.
41.	Ground one in the amended application is not made out.  
Relevant Considerations
42.	Ground two in the amended application is as follows:
	The RRT, in determining whether the applicants had a “real chance” of suffering harm and persecution if they returned to China, failed to take account of relevant considerations as supplied by the Applicants’ parents, which were inconsistent with “country information” that the RRT relied fully on.  
	PARTICULARS:
	e.	The applicants’ parents gave evidence as to their difficulty with the Chinese authorities to obtain travel or identity documents, their expected difficulty in having their household registration reinstated in China if they returned, their expected difficulty in employment or work in China if they returned with extra children, and their expected difficulty with applying their occupational skills in China which they honed in the past years in Australia.
	f.	These considerations could all determine whether the applicants themselves would suffer persecution if their parents could fail in any aspect to satisfactorily paying their Social Compensation Fee. (sic)
	g.	The RRT failed to discharge its statutory duties in determining fully whether the applicants’ have a real chance to suffer persecution.  (sic)
43.	Ground two involves a claim that the Tribunal failed to take into account relevant considerations. The applicants’ written submissions referred to aspects of the evidence of the applicants’ parents in relation to issues such as their difficulties with the Chinese authorities in obtaining travel or identity documents, expected difficulties with finding employment or work in China, and their claims that they would have difficulty finding employment using the occupational skills learnt in Australia in the Chinese context, particularly in a rural area.  It was contended that these factors affected their ability to pay the social compensation fee.  Insofar as ground two amounts to a contention that the Tribunal erred in giving weight to country information that was said to be inconsistent with such claims by the applicants’ parents, it is well established that the relevance of and weight to be given to items of country information is a matter for the Tribunal.  Otherwise the applicants’ submissions in this respect traverse factual matters and do not articulate any argument of a failure by the Tribunal to consider any mandatorily relevant consideration or integer of the applicants’ claims (see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802).  
44.	Beyond this, paragraphs (e) and (f) of the particulars to ground two in the amended application seek merits review.  As to paragraph (g), the Tribunal found that the parents would be in a position to pay the social compensation fee.  No failure by the Tribunal to discharge its statutory duties has been established.  
45.	The applicants did not address the court on the meaning of the concept “fail[ure] to take account of relevant considerations” in a context such as the present.   In any event, it has not been established that the Tribunal failed to have regard to an integer of the applicants’ factual claims in a manner constituting a failure to have regard to relevant considerations (see Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 and Htun).  
46.	In oral submissions the applicants’ solicitor addressed factors going to the merits of the Tribunal decision.  Insofar as issue was taken about whether the applicants’ father, and hence the applicants, could obtain household registration, the Tribunal specifically addressed this issue.  It found that the applicants’ father would not have any difficulties re-registering on his return to China and hence that once the social compensation fees were paid for the children they would be registrable at the household with which the family chose to live.  No failure to have regard to relevant considerations is established in this respect.
47.	It was also contended that the Tribunal should have had regard to the parents’ subjective fear and that by focusing on payment of the social compensation fee most of the parents’ subjective fears had not been fully explored or properly taken into account.  This was said to amount to a failure to have regard to relevant considerations.  
48.	Insofar as it was contended that the Tribunal erred in failing to have regard to subjective fears of the applicants’ parents, the Tribunal understood and considered the applicants’ claims based on the evidence of their parents that they would be regarded as “black children”, that they would not have access to certain benefits, that their parents would not be able to afford the social compensation fee and that they would have nowhere to live in China as their parents did not own property and that they would be poor in China.  No jurisdictional error is established in this respect.
49.	It has not been established that the Tribunal failed to have regard to a claim or an integer of the applicants’ claim that was expressly made or squarely raised on the material before it (see NABE (No2)).  Insofar as the solicitor for the applicants sought to suggest that the parents’ own protection claims were relevant to the applicants’ claimed fear of persecution and provided a basis on which they claimed to fear persecution, the Tribunal considered that possibility.  It noted that the parents had mentioned that the mother was an underground Christian and that was why she came to Australia, but also that the applicants did not make any claims to fear persecution with respect to this claim, notwithstanding the opportunities the parents were given on at least two occasions at the hearings to make any other claims or provide other information to the Tribunal.  On this basis the Tribunal was satisfied that the applicants had no fear of persecution associated with their mother being, or having been, a Christian.  Similarly, the Tribunal considered the possibility that the applicants intended to make a claim based on their father’s activities.  It noted that the mother had suggested that the Chinese authorities thought her partner was a Falun Gong practitioner although he was not, but also that he did not mention such a claim to the Tribunal, that no further evidence had been provided about this suggestion and that no claim was made that this could cause the children serious harm.  The Tribunal was not satisfied the applicants had a well-founded fear of persecution for this reason.  No jurisdictional error is established on this basis.
50.	The Tribunal considered the integers of the applicants’ claims.  It also addressed issues such as the possibility of a lower standard of living in China, the father’s concerns about whether he could be re-registered in China, the parents’ concerns about whether they and the children would be able to obtain travel documents, as well as the wider issue of their ability to pay the social compensation fee.  It addressed the parents’ claim that they would experience barriers to employment and career development, as well as the implications if they had to pay the social compensation fee by instalments.  Ground two in the amended application is not made out.
Whether the Tribunal erred in considering the “real chance” of persecution
51.	The third ground in the amended application is as follows:
	The RRT committed a jurisdictional error in unquestioningly accepting the mere payment of a Social Compensation Fee as the sole test on whether the applicants have a “real chance” of suffering persecution.  
52.	The particulars to this ground are:
	Particulars:
	h.	It relied fully and unquestioningly on country information despite the applicants’ parents’ evidence to the contrary, and despite certain country information that it relied on to the contrary.
	i.		It failed to distinguish the different natures of the Social Compensation Fee:  Whether it was operating as a law of general application or as a measure of discriminatory or oppressing nature in the applicants’ circumstances.
	j.	It also failed to give consideration of applicants’ circumstances in which their chance of escaping the “black children” status was totally dependent on their parents’ acts or capability to pay fees or bribes.
53.	As set out above, the Tribunal addressed the applicants’ claims as made to it.  The basis on which these claims were put was that the children feared persecution as “black children”.  The Tribunal found that payment of the social compensation fee would mean that the children would not be “black children”.  It has not been established that the Tribunal erred in the manner in which it addressed the claims in a manner constituting jurisdictional error.  Moreover the Tribunal considered but found that the parents’ residual submissions in relation to matters such as the standard of living in China did not raise Convention-related concerns.
54.	Further, contrary to particular (i), the Tribunal understood that “black children”, as distinct from children generally, were a particular social group in China who discriminatorily may be denied access to education, health services and employment that constituted persecution.  It considered the parents’ evidence about their capacity to pay the social compensation fees. It found that although the parents may have to pay a fee in relation to the birth of both children because they were out of plan births, they had financial resources such that the social compensation fee could be paid and the children could be registered and so have access to education and health services and also household registration.  Again, insofar as this ground (and the applicants’ submissions) took issue with the Tribunal’s reliance on country information that was said to be contrary to submissions made by the parents, the weight to be given to items of independent country information is a matter for the Tribunal.  The applicants’ submissions concerning whether the Tribunal was obliged to obtain further information about the situation seek impermissible merits review.  The Tribunal is under no general duty to inquire in the manner contended for by the applicant.  As discussed in relation to ground four, this is not a case in which the Tribunal was obliged to obtain further information.  It has not been established that the Tribunal erred in its application of the law or otherwise fell into jurisdictional error in the manner contended for in ground three.  Ground three is not made out.
Whether Tribunal obliged to obtain further information
55.	Ground four in the amended application is as follows:
	The RRT failed to obtain relevant information which is readily and conveniently available as it indicated it would obtain from the first respondent, thereby failed to discharge its statutory duties, leading to its findings that adversely affected the Applicants.
	PARTICULARS:
	k.	Particulars 1a-1d above apply;
	l.	The applicants’ parents have informed the RRT that they had difficulty obtaining Chinese travelling documents which affected their ability to minimise the applicants’ risks of being “black children” at their return to China;  The difficulties existed despite active involvement and assistance given by a delegate or delegates of the first respondent.
m.	The RRT had indicated at hearing that it would make enquiries with the first respondent as to the circumstances of the applicants’ parents’ dealings with the Chinese Consulate but failed to make such enquiries when the information was conveniently and readily available.
	(n)	Such a failure to inquire constituted a failure to discharge fully the RRTs statutory duty in testing the applicants’ “real chance” of suffering persecution.
56.	The applicants submitted that as the parents’ identity documents and travel documents were the pre-condition of the children being able to obtain household registration legally in China (after the parents registered their marriage and re-registered their household using identity and travel documents), it would be a crucially important factor to consider the documents’ availability from the Chinese Consulate in Sydney and that such information would be readily and conveniently available from the Minister’s delegate.
57.	In submissions it was contended for the applicants that the applicants’ parents had given evidence of the difficulties they had with Chinese authorities in Sydney in relation to obtaining identity and travel documents.  It was submitted that the genuineness of what they were said to have claimed could be supported by evidence from the Minister’s delegate(s) said to have been involved in assisting in the parents’ departure arrangements.  No reference was made to particular parts of the transcript of the Tribunal hearing.  However it was submitted that the Tribunal was aware of this issue, that it had indicated that it would make inquiries but that it had failed to do so or that there was no record of such inquiries being made.  This was said to amount to a failure to obtain “relevant information which is readily and conveniently available” and thus a failure by the Tribunal to discharge its statutory duty to review.  
58.	It was submitted that the failure to inquire into readily available information that was important information on a critical issue which the decision-maker knew or ought reasonably to have known was readily available could be characterised as so unreasonable that no reasonable decision-maker would have proceeded to make the decision without making the inquiry in the sense considered in Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151; [2007] FCA 1318 at [63] and MZXTZ v Minister for Immigration and Citizenship and Another (2009) 110 ALD 577; [2009] FCA 888 at [34].  It was contended that the information which the Tribunal ought to have sought was critically important in establishing whether the applicants had a real chance of suffering persecution if they were to return to China.
59.	Notwithstanding the generality of the applicants’ submissions, the solicitor for the Minister addressed a number of possibilities arising out of the applicants’ general contention that the Tribunal had erred in failing to obtain information or to make inquiries of the Department as to the circumstances of the parents’ dealings with the Chinese Consulate.
60.	There are two parts of the Tribunal hearings which warrant consideration in relation to this ground which were identified in the first respondent’s submissions.  First, the Tribunal asked the applicants’ mother why she and the applicants’ father could not marry in Australia (at p.86 of the transcript of the hearing on 27 June 2011).  The following exchange then occurred (at p.86, line 14 on):
	APPLICANTS’ MOTHER (THROUGH INTERPRETER):   But I can’t get married here.
	TRIBUNAL:   Why not?
	APPLICANTS’ MOTHER:   We don’t have identifications.
	TRIBUNAL:   Well, my understanding is that you would be able to get it because you’ve got your identification card.
	APPLICANTS’ MOTHER:   But I can’t get it.
	TRIBUNAL:   So if I obtain research from – if I get information – general information - not talking about a specific person – just general information from the embassy about whether somebody can get a passport if they have their ID card and the embassy says, “Yes, they can get a passport.”, is there anything you want to say about that?
	APPLICANTS’ MOTHER:   I – I applied in 2007 but I couldn’t get it.
61.	As the first respondent submitted, the Tribunal did not give a positive undertaking in the terms identified in the particulars to ground four of the applicants’ amended application the fulfilment of which could be said to be a condition on the Tribunal’s completion of its duty to review.  
62.	This extract from the Tribunal hearing does not disclose any undertaking by the Tribunal member of the nature now asserted.  Rather, the Tribunal invited the applicants’ mother to comment on a hypothetical situation in which the Tribunal was to obtain general information as to a person’s ability to obtain a passport if that person had an identity card.  If the Tribunal did obtain such information, it would be independent country information outside the obligation in s.424A of the Migration Act 1958 (Cth) by virtue of the exception in s.424A(3)(a) which provides that:
	(3) This section does not apply to information: 
	(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member…
63.	At p.100 of the transcript, there is a conversation between the Tribunal member and the applicants’ parents that is of more direct relevance to this ground.  That conversation occurred after there had been a number of references to the parents experiencing some difficulties in getting passports or travel documents from the Chinese Embassy or Consulate in Australia.  Relevantly, it followed a discussion about the fact that the applicants’ parents had an appointment in the Immigration Office to see about getting bridging visas (at transcript p.61).  Further, the Tribunal member had discussed with the applicants’ father his claim that his old passport had been confiscated by the Chinese Consulate in 2007, but that he had subsequently obtained it from the Department (at transcript p.89).  In that context he was asked (at transcript p.89, line 25) whether he had since asked the Department to help him get a new passport.  He advised that some six months earlier he had been asked to fill in a form and that “they” had said they would help him get documents for himself and for his partner to go back to China.  
64.	The Tribunal put to the applicants’ father country information indicating that even if a person in Australia applied for refugee status, Chinese embassies and Consulates abroad could not refuse to renew passports and that, under Chinese law, Chinese citizens could apply overseas for passports at the Embassy or Consulate (at transcript p.96).  It also put to the applicants’ father that if he was born in China, as long as he did not acquire another citizenship after 1980, he could get a new passport.  It was also put to him (presumably based on his earlier evidence) that the Department was working on getting him a new passport and that it seemed that the Department would know what it needed to do to assist him in getting such passport.  The applicants’ father indicated that he did not know about this and also that the Immigration Officer had said they could not help him get documents to go back to China.  At this point it was put to him that he had just told the Tribunal that they asked him to sign a form.  He acknowledged this, but then said he had asked them twice and he really wanted to go back, but he had to face a lot of problems.
65.	Subsequently, (at transcript p.99, line 20), the Tribunal asked the applicants’ father if there were any issues with him and the authorities in China.  He claimed he had a “big fight with people in [the] Chinese Consulate” in Australia and they could not get him the documents to go back to China.
66.	The Tribunal then again asked the applicants’ father about the fact that he had said the Department of Immigration had asked him to sign forms that he thought were to get new passports.  He said that about three months earlier they had said they could not help him.  The transcript continued (at p.100, line 26):
	TRIBUNAL:   So if I contact the department – did they write to you and say they couldn’t help you or did they tell you on the phone?
	APPLICANTS’ FATHER:   Verbally tell me.
	TRIBUNAL:   And was it the same officer that you saw on Friday for your bridging visa?
	APPLICANTS’ FATHER:   Yes.
	TRIBUNAL:   Okay.  So I will ask her why she can’t help you?
	APPLICANTS’ FATHER:   Okay.
	TRIBUNAL:   So when they say they can’t help you get your passport, what else did they say?
	APPLICANTS’ FATHER:   They said if you finish your hearing RT, if we – if we don’t – don’t want to go back then they have to deport – deport us.
	TRIBUNAL:   Well, they can only deport you if you have a passport or a travel document?
	APPLICANTS’ FATHER:   So I ask them, “You had better give us the documents of going back to China.”, and they said they can’t.  And they said, “If you finish your hearing RT then you have to go back by yourself.  If you don’t want to then we have to deport you.”
	TRIBUNAL:   Right.  Okay.  So maybe they do have the documents and they’re holding the documents?
	APPLICANTS’ FATHER:   I don’t know.
	TRIBUNAL:   Right.  Okay.  What was her name again, the woman you saw on Friday?
	APPLICANTS’ FATHER:   I don’t know.
67.	The Tribunal member then asked the applicants’ father for a copy of the letter inviting them to see the Department so that she could get the officer’s name which, it appears, he provided.  After the Tribunal put to the applicants’ parents that because they were both Chinese nationals, the children were Chinese nationals, the Tribunal then clarified (at transcript p.102, line 1):
	TRIBUNAL:   ... So the issue is how you get your documentation and I think that the department will continue to help you with that.
	APPLICANTS’ FATHER:   I just not sure.
	TRIBUNAL:   Okay.  I might have the tribunal contact Delara and see if she has been able to get those passports or if they’re still being processed?  Did your – sorry – did [applicants’ mother] sign forms as well?
	APPLICANTS’ FATHER:   Yes.
	TRIBUNAL:   She did.  So if you were able to get those passports and you would have your identity, would you and [applicants’ mother] marry?
	APPLICANTS’ FATHER:   Yes.
68.	In other words by this stage the Tribunal indicated that if she contacted the Department she will ask why the officer could not help them.  After seeing the letter from the Department (which is not evidence before the court) the Tribunal clarified that it “might” have the Tribunal (presumably a Tribunal officer) contact the Departmental officer.  The Tribunal then called back in the applicants’ mother and continued (at transcript p.102, line 29):
	TRIBUNAL:   I don’t think I need to get any more information from you, but I might have to write to you.  Now [applicants’ mother], I understand from [applicants’ father] that you’ve signed a form and the department is assisting you in obtaining Chinese passports and you haven’t heard anything back about that; is that right?  Okay.  Well, I need to consider all of the information that I’ve got from you today and last week.  I need to look at that information carefully before I make my decision and I will remind you both that what I am focussing on is the children’s fear of persecution in China.  I take into account any information that I have up to the date I make my decision.
	APPLICANTS’ MOTHER:   Thank you.
	TRIBUNAL:   I won’t be making my decision today because I need to spend some time looking at this very, very carefully.  So I can’t tell you today what day I will make my decision, but I will try and make it as soon as possible.  So thank you for coming to see me.  When I’ve made my decision, the documents will be sent to you with the decision by registered post.  Okay.  Now, before I close the hearing, is there anything else that you wanted to tell me?
69.	After the Tribunal member thanked the interpreter, the member stated (at transcript p.103, line 13):
	I will call Delara and see about the progress of those applications to the Chinese authorities for the passports.  If there’s an issue that comes out of that, I will write to you.  If it looks like those applications are proceeding and you’re going to get those passports, I will make my decision on that basis.  Thank you. 
70.	There is no mention in the Tribunal decision of any inquiry to or information from the Department about the progress of the parents’ applications to the Chinese authorities.  While the Tribunal member ultimately indicated that an inquiry would be made, the member also informed the applicants’ parents that it would only be if there was an issue that came out of that inquiry that the Tribunal would write to the applicants.  In its findings and reasons the Tribunal found, based on independent information, that it was satisfied that the father did not have any ongoing difficulties with the Chinese authorities and that he would not have difficulties re-registering on return to China.  Further, as the mother had her Chinese ID card and the father had evidence of his real Chinese passport, the Tribunal was satisfied, based on country information (which is clearly a reference to information summarised and referred to in the Tribunal hearing) that the applicants’ children would be able to have their Chinese nationality recognised.  The Tribunal observed that it was also satisfied that the applicants’ parents would be able to obtain the assistance of the Chinese Embassy in having their travel documents prepared for their return to China.
71.	There is no contention for the applicants that the Tribunal obtained information from the Department or Embassy which it was obliged to put to the applicants for comment.  Rather, it is contended, based on the Tribunal’s remarks at the hearing and absence of reference to any inquiry in the Tribunal’s reasons for decision, that the Tribunal failed to make inquiries of the Department as to the circumstances of the applicants’ parents dealings with the Chinese Consulate and that this amounted to a failure to discharge its statutory duties leading to findings that adversely affected the applicants.
72.	The matter the suggested inquiries related to was the parents’ applications for Chinese passports.  All that the Tribunal member indicated was that she would contact an officer within the Minister’s Department to find out the status of the parents’ applications for these documents in circumstances where the father had expressed a concern about their ability to obtain travel documents.  As the first respondent submitted, without travel documents provided by the Chinese authorities the family would probably not be amenable to removal from Australia.
73.	There were a number of matters in issue relevant to the applicants’ claims, including whether the children could seek to have their Chinese nationality recognised by the Chinese authorities, which the Tribunal found, based on information about Chinese law, was the case.  In addition it was relevant to determine whether the father would have difficulties re-registering on return to China, which the Tribunal found was not the case on the basis that he did not have any ongoing difficulties with the Chinese authorities.  The father’s somewhat varying and vague oral evidence about claimed difficulties in obtaining travel documents, in particular Chinese passports for himself and his partner, was not such as to oblige the Tribunal to make any inquiries of the Department in that respect, particularly when seen in light of his evidence that he had been warned by the Department of the prospect of deportation.
74.	Further, while the issue of the relevance of passports to the future marriage of the parents was canvassed in the hearing, the Tribunal’s findings did not turn on whether the applicants’ parents could or would marry.
75.	Insofar as ground four is intended to be a contention that there was an obvious inquiry that the Tribunal could have made and did not make about a critical fact the existence of which was easily ascertained in the sense considered by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123; [2009] HCA 39 at [20] – [25] the applicants have not established that there was a failure to make such an inquiry or that any failure to make inquiries could be characterised as so unreasonable that no reasonable decision-maker would have proceeded to make the decision without making such inquiry.  Administrative inquiries of the nature the Tribunal member suggested she would make have not been shown to have such connection to the outcome of the review or to the applicants’ material claims as to constitute a critical fact or to be such as to establish that the Tribunal’s suggested failure led to findings that adversely affected the applicants.  Nor was the Tribunal obliged more generally to make inquiries as to the circumstances of the parents’ dealings with the Chinese Consulate as contended in ground four.  
76.	Insofar as ground four may be seen as a general contention that there was a lack of procedural fairness in the Tribunal’s failure to make an inquiry, it has not been shown that there was any practical unfairness.  There is no evidence before the court as to whether any inquiries were made.  In any event, the suggested inquiries have not been shown to be critical to the disposition of the review (see Minister for Immigration and Citizenship v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83).  As it has not been shown that such inquiries would have been material to the applicants’ claims, it cannot be said that there was any practical unfairness.  
77.	Insofar as the applicants’ contention is, in effect, that the Tribunal constructively failed to exercise jurisdiction in that it failed to comply with the duty in s.414(1) to conduct a review and the duty under s.425(1) to hear from applicants, a fair reading of the transcript does not establish such an argument.
78.	The applicants did not frame their contentions in terms of Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2004) 221 CLR 1; [2004] HCA 62  and, in fact, the solicitor for the applicants stated that he was not familiar with that case and did not make an argument on that basis.  In any event the present circumstances are distinguishable from those considered by the High Court in NAFF.  In NAFF, Gummow, McHugh, Callinan and Heydon JJ found that a failure by the Tribunal to send promised questions on inconsistencies in the appellants’ statements to the appellants constituted a failure to complete the review process.  However in that case there had been a clear representation to the appellant that he would be given an opportunity to respond to inconsistencies in the evidence in writing.  Such stated procedure was then not followed (see NAFF at [11], [27] and [30] – [31]).  In contrast, in this case the Tribunal member indicated that she required no further information from the applicants or their parents, that she was in a position to make the decision and that it was only if a further issue emerged that she would get back to the applicants.  No clear and unconditional representation to that effect was given to the applicants’ parents.  No jurisdictional error had been established in circumstances where, by the end of the hearing, the applicants’ parents were on notice that the Tribunal had no further questions.  The statements about making inquiries were not such as to cause the parents to think the decision would be deferred until they had a subsequent opportunity to comment on information.
79.	Ground four is not made out.
Sections 424A and 424AA of the Migration Act.
80.	Ground five in the amended application is that the Tribunal:
	…has not discharged a statutory duty under s424AA of the Migration Act while it determined that the applicants did not have the real chance to suffer from persecution.
81.	The first particular to this ground repeats the wording of s.424AA of the Act while the second particular is that:
	At hearing, the RRT failed to advise the applicants’ parents that they might seek additional time to comment on or respond to adverse information, thus breaching s424AA(iii) and consequently s424AA(iv).
82.	In submissions (which refer to s.424AAA (sic)), the applicants contended that the Tribunal was obliged to put to the applicants for comment and give them additional time to comment on the reason it found a lack of a real chance of persecution, that being their ability to pay the social compensation fee.  Such a contention misconceives the application of s.424AA which, in any event, is only an alternative way of meeting the obligation in s.424A of the Act (see SZMCD v Minister for Immigration and Citizenship and Another (2009) 174 FCR 415; [2009] FCAFC 46 and MZYFH v Minister for Immigration and Citizenship and Another (2010) 188 FCR 151; [2010] FCA 559).  
83.	It has not been established that the Tribunal’s s.424A obligations were engaged.  The applicants have not identified anything in the parents’ oral evidence, or otherwise, giving rise to such obligations.  The parents’ evidence was within the exception in s.424A(3)(a) in its entirety, as evidence given for and on behalf of the minor applicants (see SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 and SZLSM and Another v Minister for Immigration and Citizenship and Another (2009) 176 FCR 539; [2009] FCA 537).  The applicants’ parents made the application and gave evidence on the applicants’ behalf as their representatives in the position of the applicants’ common law guardians (see SZLSM & Anor v Minister for Immigration & Anor [2008] FMCA 1172 at [47] citing Re Woolley and Another; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1; [2004] HCA 49.
84.	Insofar as the applicants’ contention is that the Tribunal was obliged to put its reasoning or conclusions to the applicants for comment in accordance with the procedure in s.424AA of the Act (or under s.424A), the Tribunal’s reasoning and conclusions do not constitute information to which the obligation in s.424A and hence the possibility of compliance by virtue of the method in s.424AA of the Act is applicable (see SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190; [2007] HCA 26).  Ground five in the amended application is not made out.
85.	As no grounds in the amended application are made out, the application must be dismissed.
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Barnes FM

Date:  8 June 2012