Chen Hua Jian v Minister for Immigration & Multicultural Affairs

[1997] FCA 511

CHEN HUA JIAN v. MINISTER FOR IMMIGRATION & MULTICULTURAL
AFFAIRS
No. NG1012 of 1996
FED No. 511/97
Number of pages -
2
Immigration

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

DAVIES J

Immigration - Protection visas - application for review of decision of Refugee Review Tribunal that the applicant was not a refugee - whether breach of procedures required to be observed - whether error of law - jurisdiction of Federal Court in reviewing decision of Tribunal.

Migration Act 1958 (Cth) ss 476(1)(a), (e)

SYDNEY, 23 May 1997 (hearing), 23 May 1997 (decision)

#DATE 23:5:1997

#ADD 18:6:1997

The Applicant appeared in person

Solicitor for the respondent: S. Mancell instructed by

the Australian Government Solicitor

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DAVIES J

1. This is an application under s.476 of the Migration Act 1958 (Cth). Section 476 provides two relevant grounds on which application may be made for review by the Federal Court of a judicially reviewable decision. One is that the procedures required by the Act were not observed (s.476(1)(a)) and the other is that the decision involved an error law being an error involving an incorrect interpretation of the law or an incorrect application of the law to the facts as found by the decision-maker (s.476(1)(e)). The Court's jurisdiction is limited to reviewing the decision on those grounds. The Court cannot investigate the facts for itself. If the Refugee Review Tribunal made an error of fact, that is not a ground of review.

2. The Tribunal dismissed the application. It held that Mr Chen, who was a 21 year old single man from Fujian Province, had arrived on a forged Hong Kong Certificate of Identity and that he had used aliases. At the airport, Mr Chen escaped from custody but applied for a protection visa after he was again detained some days later. The Tribunal said that Mr Chen claimed to be a Catholic and that he claimed that he left China because there was no equality or human rights or real freedom in that country. The Tribunal recorded that Mr Chen said that he had not included details of the persecution in his written application but that he had given evidence to the Tribunal that, in addition to problems at school, in 1995 he, a friend and business partner and a priest had organised the church. The Tribunal recorded that Mr Chen claimed that, in 1995, the local police had questioned Mr Chen and the others and had detained them for some several days. The Tribunal recorded that the priest and the church-goer were arrested in 1996 and that thereafter the group could not practise their religion. The Tribunal recorded that Mr Chen claimed that he had not been arrested as he had left the city on business and that he had thereafter been told that the authorities wished to arrest him and had a warrant for his arrest. The Tribunal recorded that Mr Chen said that he left China because he feared arrest and because of lack of religious freedom and human rights in China. After the first hearing the Tribunal was supplied with a document purporting to be a copy of an arrest warrant certificate together with a translation.

3. These facts, if accepted, would no doubt have founded a claim for refugee status. However, the Tribunal did not accept the evidence which Mr Chen gave to it. The Tribunal held that the applicant was not a credible witness, that his claims had escalated significantly at each stage and that much of his evidence was contradictory, implausible or fabricated.

4. The Tribunal also said in its reasons for decision that the information available to it showed that, although the Catholic Church was not encouraged in China, it was, in general, tolerated. The Tribunal said that the evidence before it showed that the authorities in China tolerated the existence of unofficial Christian churches as long as they remained small and discreet. The Tribunal also referred in particular to the fact that the government had sanctioned the Catholic Church of Fuzhou and, in 1993 in Fuzhou, had helped build a church for a large unregistered Catholic community.

5. These conclusions of the Tribunal were arrived at after a hearing in which Mr Chen gave evidence. There was no breach of fair procedures for the Tribunal gave to Mr Chen a lengthy hearing of his claim. Moreover, I have not identified any error of law in the approach taken by the Tribunal. In particular, the Tribunal was entitled to rely upon the lack of evidence supporting Mr Chen's story and the fact that in his written application for refugee status Mr Chen did not set out the serious facts which later he raised before the Tribunal. If there was any error in dealing with the application it was an error of fact. I do not suggest that there was any error. However, the determination of questions of refugee status is often a very difficult task. A tribunal must do the best it can after giving a fair opportunity to applicants to put their case.

6. The Tribunal rejected the arrest warrant as being a valid document. That was one of the difficult questions of fact with which the Tribunal had to deal. Not all documents presented to tribunals are valid.

7. The decision of fact was a decision for the Tribunal. I am satisfied that there was no error in the procedures adopted or in the approach taken by the Tribunal. The application must therefore be dismissed with costs.