Chan v Minister for Immigration, Local Government and Ethnic Affairs

[1992] FCA 392

3c12 92

JUDGMENT NO. ........ ...... l ........ . ...

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) NO NG 66 of 1992

GENERAL DIVISION ) NO NG 92 of 1992

BETWEEN CHUN-MU1 CHAN
Applicant

AND MINISTER FOR IMMIGRATION, LOCAI. GOVERNMENT AND ETHNIC AFFAIRS & ORS

Respondents

EINFELD J SYDNEY 11 MAY 1992

The applicant is now the holder of a People's Republic of China temporary entry permit provided for in Migration Regulation 119H. This particular regulation was introduced in very special circumstances following upon the infamous tragic massacre of a number of Chinese people in Tienanmen Square, Beijing in June 1989, and provides for special entry permits for citizens of the People's Republic of China who were in Australia at the time of those events. Although the individual permits no doubt expire on the date stated in them, the present form of the regulation provides that such permits do not have currency beyond 30 June 1994.

Australia. It is not now necessary to relate the details but	they arose following upon the refusal on 14 February 1992 (the
decision) of an application for a regulation 119H permit made by the applicant on 30 January, and the consequent decision to deport her. Were it not for these proceedings and various orders made by Judges in relation to them, it seems that the applicant would have been deported before there was an opportunity to provide her with the permit which she now has been given. As the decision was set aside by consent on 17 March, after the purpose of the proceedings had been achieved administratively, her deportation would have caused a significant injustice.
On 7 February 1992, a week prior to the decision, the applicant's solicitor transmitted to the Bankstown office of the department a facsimile of material supporting the applicant's claim, as a person born in China, to Chinese nationality. Among the things sent at the time were quotations from two articles of the relevant Chinese law. No doubt the nationality law of the People's Republic of China was well known to officers of the department in any event, but
had obtained the extract concerned so that his assertions the applicant's solicitor quoted the references from which he
could be confirmed.
The applicant now seeks costs of the two sets of proceedings commenced in the Court. The evidence establishes that the relevant history of this matter commenced on 17 February 1992. The solicitor for the applicant then asked the regional manager of the Bankstown office of the respondent's department
(the regional manager) by telephone to avoid the costs of an application to the Court by reconsidering the decision to refuse the regulation 119H permit or referring it to the department's legal section. The issue stated by the decision- maker in his refusal of the entry permit was whether the applicant was a citizen of the People's Republic of China. As will be seen, because Chinese law bestows citizenship on most people born in China, the real issue in the case was whether the applicant was born in China.
In the telephone conversation on 17 February deposed to by the applicant's solicitor in his affidavit of 8 April 1992, and not contradicted or criticised by any other evidence, the regional manager was told that the applicant had expert evidence to support her contention that she was a citizen of China as she was born there. Later in the same day, the person who made the decision to refuse the temporary entry permit, who was not the regional manager, telephoned the applicant's solicitor. In reply to the earlier proposal that
department, the decision-maker told the solicitor: "We won't the application be referred to the legal section of the
be sending it to our legal branch. We are sticking to the decision." He was then told by the solicitor: "This is ridiculous, we will have to go to court and it will cost money, we will be seeking an order for costs." To which the reply was : "Okay".
The decision of 17 February 1992 was based upon some suggested discrepancies in materials submitted by the applicant to the department upon her arrival in Australia. It is said that MS Chan claimed in her Incoming Passenger Card to be stateless and on other occasions to be a Hong Kong Chinese or just a Chinese person. It is agreed that the applicant does not read or write English, so it is not clear to me, because there is no evidence to establish, to what extent she can be held to account for such variations. She apparently arrived in Australia on a Hong Kong Certificate of Identity which, according to the record of decision, said that it was:

There were until 17 March 1992 two proceedings before the Court in connection with the status of the applicant in

.... i s s u e d f o r t h e s o l e purpose o f p r o v i d i n g t h e

h o l d e r w i t h i d e n t i t y papers i n l i e u o f a n a t i o n a l

p a s s p o r t . . . . and i n no way a f f e c t s t h e n a t i o n a l

s t a t u s o f t h e h o l d e r .

The document stated the place of birth of the applicant as China. The decision-maker rightly concluded that this was not evidence that she was a citizen of the People's Republic of

China, as the Hong Kong government could not authenticate

citizenship of another country. But this did not convert its
certificate into evidence that she was not a Chinese citizen.

This applicant, who had been living in Hong Kong for some time prior to her arrival in Australia, would obviously have produced, upon request, whatever material about her place of birth that she had available at the time. She would hardly have travelled on a Certificate of Identity of the Hong Kong government if she had been entitled to Hong Kong citizenship or a Hong Kong passport. Yet there are not a large number of other sensible options to exclude in the exercise of confirming or denying her Chinese origins. There was no suggestion that she might have been born in or entitled to citizenship of Singapore, Taiwan, Tibet, Outer or Inner Mongolia or any other place with significant ethnic Chinese populations. It would easily have been ascertainable from a conversation with her in her own language that she was of Chinese ethnic origin.

The decision-maker, in my opinion, read incorrectly the Hong Kong government's entry on her Certificate of Identity. The Hong Kong government was providing papers to enable the applicant to have identity for the purpose of overseas travel. Although it was obviously true that Hong Kong could not, or is unlikely to have been able to, state authoritatively that she was a citizen of China, and the statement in the document that the applicant's place of birth was China could not itself be definitive proof of her birth, the fact is that had the

would not have been supplied at all. Hence the Hong Kong	applicant been entitled to Hong Kong citizenship this document
government's statement put the matter of her Chinese citizenship, at worst, in a completely neutral position, leaving the Australian government with the applicant's claims to Chinese birth and the disqualification of Hong Kong as one of her potential alternative citizenships.
The fact that a person claims to have been born in a particular country is certainly evidence that they were born in that country. It may not in all cases be the final word on the subject but a person's statement of a fact is as much evidence of the fact as anything else. People are not entitled to be disbelieved merely because they do not have documentation, especially in relation to a country from which definitive documentation might have been difficult if not impossible to obtain.
Although the decision-maker concluded that MS Chan "may well have been born in China", he was not satisfied that she had produced evidence of her citizenship of that country. What he meant was that she had not produced evidence that she was born there. Yet at the time the decision was made, there was no doubt that the applicant was Chinese and spoke only Chinese. There was her claim to have been born in China and no evidence to the contrary. There was undisputed evidence that she was not born in Hong Kong and no suggestion that she was born in
her was widely spoken. The applicable Chinese law, submitted any other country where one of the Chinese languages known to
to the department by the applicant's solicitor a week before the decision, meant that if she was born in China, the applicant was a Chinese citizen. There was therefore not a strong basis for denying her the entry permit, and quite powerful reasons to grant it. In a situation like this where the decision-maker was in doubt about the matter, the applicant's offer of expert evidence and other co-operation ought to have been attractive.
Section 178 of the Migration Act permits a decision-maker to exercise his or her powers on the basis of information contained in the applications of persons seeking relief. On the sole or principal issue of the applicant's place of birth, that information in this case, although not extensive, was all one way. The section also makes provision that the decision- maker may, if desired, obtain and have regard to other relevant information for the purpose of exercising the power. This provision was no doubt inserted because of the Parliament's belief that administrative decisions, especially at this grade of importance, should not be made on the basis of some form of legalistic application of an onus of proof. I agree.
Arbitrary powers about important entitlements should also not be exercised on the basis of the failure of a person, especially if without a facility in English, to supply information of a kind which, by the definition of the facts applicable to that person, it is unlikely that she would have
or be able to obtain.
By the time of the telephone conversations with the applicant's solicitor on 17 February, three days after the decision, when expert corroboration for her Chinese citizenship was offered by him to the decision-maker, there was further cause to pause before final rejection of her claim and a decision to deport. It seems to me unarguable that consideration should have been given to this material. The solicitor concerned would have been known to the regional manager and the decision-maker, or one or more of their colleagues, as a lawyer with expertise in this area. It should not have been assumed that his attitude on this occasion was empty or irresponsible, and not even worthy of attention. This was an application for a permit under a regulation which was the product of compassionate and humanitarian considerations by the government of the day. While such permits continue to exist, the considerations which impelled their creation should govern their administration.
It is significant that the return telephone call to the solicitor did not come from the regional manager but from the decision-maker himself. If, as would normally be done in this department, the merits of the matter were being dispassionately considered, it might have been decided that someone other than the original decision-maker should consider the material which the solicitor had to offer as a means of determining whether perhaps the decision ought to be reviewed
or referred to the legal department.
The evidence shows that before the decision the issue was citizenship. If the application was to be refused on the grounds that the applicant's claim to Chinese birth was disbelieved, the applicant or her solicitor should have been informed before the decision was made so that any further evidence or submissions on this matter could have been presented. In fact, to have disbelieved the applicant's claim
to have been born in China, the decision-maker would have needed to be satisfied that her claim in this regard was or was probably false. Yet even today not a single suggestion is made on behalf of the respondent as to how such a conclusion was or could fairly have been drawn.
As it turns out, the material supplied by the expert for these proceedings to reverse the decision, was contained in an affidavit of Mr Thomas Chor Wing Chiu of the Law School of the University of Technology in Sydney of 10 March 1992. Mr Chiu, who is expecting to finish his PhD at the end of 1992, claims, with apparently good reason, to be an expert on Chinese law. His well-documented expertise is not challenged. His opinion is that the applicant is a Chinese citizen under Chinese law. No contrary evidence has been placed before the Court. There is no reason for not accepting his evidence. Obviously it was subsequently accepted by the respondent because about a month after the decision the relevant permit was issued.
in this matter were brought about by the decision on the part In my opinion these facts establish that the legal proceedings
of the relevant persons not to ldentify precisely the relevant question before the decision, and not to review and reconsider the material offered by the applicant after the decision, before the proceedings were commenced on 2 March 1992. Had these matters been considered and the department's customary flexibility and understanding in dealing with compassionate and humanitarian matters been shown, the decision of 14

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February would, in my opinion, either not have been made or would have been reversed before the proceedings were commenced, just as was so fulsomely and creditably done on or about 17 March 1992 after the proceedings were commenced.

The proceedings would then have been avoided and the costs involved would not have been incurred. This makes it inevitable that the respondent must pay the applicant's costs of the proceedings numbers NG66 and NG92 of 1992.

Rerssns is: Jirognlent tlers8n of Pls Honour '

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