Chen Shao Hui v Minister for Immigration and Multicultural Affairs
[1999] FCA 1564
•11 NOVEMBER 1999
FEDERAL COURT OF AUSTRALIA
Chen Shao Hui v Minister for Immigration & Multicultural Affairs
[1999] FCA 1564
MIGRATION – judicial review of decision of Refugee Review Tribunal affirming decision to refuse applicant protection visa – whether decision based on particular facts which did not exist – whether failure to refer to material on which findings of fact and credit were based
Migration Act 1958 (Cth) ss 430, 476(1)(a), 476(1)(e), 476(1)(g), 476(4)(b)
Curragh Queensland Mining Ltd v Daniel (1992) 35 FCR 212 applied
Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 cited
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 referred toCHEN SHAO HUI also known as LIU SHU FANG v
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 792 OF 1999
LEHANE J
11 NOVEMBER 1999
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 792 OF 1999
BETWEEN:
CHEN SHAO HUI also known as LIU SHU FANG
Applicant
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
LEHANE J
DATE OF ORDER:
11 NOVEMBER 1999
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application be dismissed.
2. The applicant pay the respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 792 OF 1999
BETWEEN:
CHEN SHAO HUI also known as LIU SHU FANG
Applicant
AND:
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE:
LEHANE J
DATE:
11 NOVEMBER 1999
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks review, under Pt 8 of the Migration Act 1958 (Cth), of a decision of the Refugee Review Tribunal dated 16 July 1999. By its decision the Tribunal affirmed the decision of a delegate of the Minister not to grant a protection visa to the applicant.
Applicant’s evidence and claims before the Tribunal
The following account is based on that given by the Tribunal in the reasons for its decision.
The applicant is a national of the People’s Republic of China. She is aged 39. She claimed that her father worked on the development of nuclear weapons. In 1991, however, he expressed views about such weapons of which the authorities disapproved and he was compelled to retire. He died shortly afterwards; the applicant said that she thought that he was killed by the authorities. The applicant gave evidence that she herself was employed in a research institute in Beijing involved in the nuclear development programme. The work unit in which she was employed was involved in top security operations. In 1992 she was transferred to another area (though apparently with the same work unit) where she no longer had access to highly confidential information with which she had previously been entrusted. She attributed her transfer to difficulties encountered by her father.
The applicant claimed that she later met a person known as Feng Libin who disagreed with the nuclear testing programme. She and he formed a small group to oppose it. They called it the Peace Committee. The group printed and secretly distributed pamphlets opposing nuclear testing. That happened in June 1995. In early 1996 the group learned of a planned nuclear test. By then the group had expanded somewhat. The applicant and other members of the group organised protests at a place on the way to the test site.
The applicant claimed that an investigation was undertaken at the institute for which she worked to determine who was behind the distribution of the leaflets. She arranged to obtain a passport belonging to someone else and her own photograph was then placed on it. She left China using that passport and spent two weeks in Australia. While here, she heard from Feng Libin that the investigation had ceased and she returned to China. Shortly afterwards, she said, she was approached by security personnel and told that she must confess to having encouraged a local uprising against the nuclear testing programme. She said that she was detained for a period of a month to two months. She was then released, subject to reporting conditions. She escaped to Australia using the same passport as before. She said that Feng Libin was arrested shortly after she arrived in Australia for the second time and that other people, including members of her family, had encountered serious problems with the authorities. She claimed also that her daughter had been discriminated against and in 1997 was accused of being involved with an anti‑communist and was taken away from home.
The applicant arrived in Australia in November 1996. The passport she carried was endorsed with a visitor’s visa. She made her application for a protection visa on 10 March 1997. The application was refused on 30 April 1998 and she applied for review by the Tribunal. The decision of the Tribunal on that review is the subject of the present application to the Court.
The passport on which the applicant travelled to Australia was issued in the name of Liu Shu Fang. She provided to the Department a number of documents by which she sought to establish her true identity as Chen Shao Hui. They were described as:
· Employee’s identification card issued by the Beijing Applied Physics & Calculating Mathematics Institute.
· Employee’s identification card issued by the Beijing No. 9 Institute.
· Residential identification card issued by the Haidian Branch of the Beijing Public Security Bureau.
· Driver’s licence issued by the Administrative Section of the Beijing Public Transportation Management Bureau.
· Certain photographs.
She relied also, before the Tribunal, on certain diary notes which she claimed to have made and which, she said, confirmed that she was employed in a work unit concerned with the development of nuclear tests; she said that they also demonstrated her true identity.
Tribunal’s findings
The Tribunal did not accept the applicant’s claims. It found that the documentation she had furnished to establish an identity different from that indicated on the passport she carried had been “fraudulently produced”. The Tribunal proceeded:
“The Tribunal finds the applicant’s clams of involvement in anti‑nuclear group and of consequent problems to be far‑fetched and not credible. In assessing all the material before it the Tribunal finds the applicant’s claims that she was involved in anti‑government activity that caused her or colleagues or family members to come to the serious adverse attention of the authorities lack credibility. It rejects her claim that she was detained shortly after her voluntary return to China. In line with information contained on the applicant’s passport it finds that she was a vendor in China and not involved in the nuclear industry. The Tribunal finds that the applicant was twice able to leave China because she was not on either occasion of any interest to the authorities.
In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well‑founded fear of persecution for any Convention reason.”
The Tribunal pointed to a number of aspects of the evidence as supporting its conclusion. It referred to what it regarded as the “general” nature of the applicant’s evidence about her work; the fact that she was unaware of the history of the operation of the various bodies for which she claimed to have worked; and her evidence that she was removed from a sensitive post due to views held about her father, but (on her evidence before the Tribunal) remained in the same work unit. The Tribunal then referred to her claim that she helped to form a group actively opposing the nuclear programme after a “chance meeting” with another person opposed to it, even though she remained with the same work unit responsible for the programme. It referred to her ability to leave China despite her claim that the authorities in her work place were aware of certain activities of the group and carried out an intensive investigation and to the circumstance that, although she fled China to come to Australia on the first occasion to “escape severe penalty”, she voluntarily returned very soon afterwards on the basis merely of a colleague’s opinion that the investigation into the group’s activities had been abandoned.
Other matters on which the Tribunal relied included:
· Its view that the applicant’s evidence was uncertain as to the period of her alleged detention upon her return to China.
· The substantial “vetting” which material before the Tribunal indicated took place before a Chinese national was granted the two successive exit visas required in order lawfully to leave China and what the Tribunal regarded, consequently, as the improbability that the applicant would have been able to evade the authorities and leave using another person’s passport.
· Material indicating that the “embezzlement, fraudulent use, borrowing picking up and illegal purchase of other’s ID cards” was “running unchecked” in China, suggesting (the Tribunal inferred) that it was not difficult to obtain false documents of various kinds, not only identity cards.
· What the Tribunal regarded as late submission of the documentary evidence of what the applicant claimed was her real identity.
Grounds of application; submissions and reasoning
The grounds stated in the application were those specified in s 476(1)(a), (e) and (g) of the Migration Act but the application provides no particulars nor, despite a direction that particulars be given, have particulars been supplied of any of the grounds. At the hearing the grounds relied upon by counsel for the applicant were that procedures that were required by the Act or the regulations to be observed in connection with the making of the Tribunal’s decision were not observed (s 476(a)) and that there was no evidence or other material to justify the making of the decision (s 476(1)(g)) in the sense that (s 476(4)(b)) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. The particular procedures which, it was said, the Tribunal failed to observe were among those required by s 430:
“430(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
…
(c)sets out the findings on any material questions of fact; and
(d)refers to the evidence or any other material on which the findings of fact were based.”
I shall consider first the “no evidence” ground. Counsel for the applicant submitted that each of a number of findings essential to the chain of reasoning leading to the Tribunal’s decision was based on a particular fact which did not exist. First, the finding that documentation furnished had been fraudulently produced was based on evidence about “embezzlement, fraudulent use, borrowing picking up and illegal purchase” of identification cards, having nothing directly to do with the forging of documents of the particular kinds produced by the applicant. Thus the particular fact relied on for the conclusion that the documents produced by the applicant were forged did not exist. Secondly, the Tribunal found that the applicant would not have voluntarily returned to China so shortly after having fled persecution: this finding also was based on a fact which did not exist, namely that the applicant fled persecution (the evidence was that she had not been the subject of actual persecution when she left China the first time). Thirdly, the Tribunal did not find it credible that the applicant would have been able to evade the authorities while under official scrutiny by the use of another person’s documentation – again, this finding was based on a fact which did not exist, it was said, that is, that the applicant was under official scrutiny. Fourthly, the Tribunal found that the applicant was not of interest to the authorities because she was able to leave China despite the “vetting” procedures: but that was based, it was said, on a fact which did not exist, namely that the checking was conducted in relation to the person named in the passport, who was not of interest to the authorities, rather than the applicant, who was. Fifthly, the Tribunal found that documents purportedly establishing identity had been belatedly submitted whereas the fact was that in her original application for a protection visa the applicant had indicated that she would submit documents at an interview with the Department (in fact, an interview was not granted).
These submissions encounter two difficulties. The first is that in several cases they are not soundly based, in my view, on what the Tribunal actually found. For example, in saying that the applicant fled persecution when she first left China, plainly, in context, the Tribunal did not suggest that she fled actual persecution which had occurred or was then occurring but persecution which she feared on the basis of activities in which she claimed to have been involved and an investigation which she said was in progress. It is not correct to say that there was no evidence to support that finding, properly understood. Likewise, the Tribunal’s reasoning about “belated” submission of documents was expressed as follows:
“She submitted no documentary evidence of what she claims is her real identity until after the Department wrote to her on 20 November 1997 requiring her to submit such evidence.”
For all that appears, that statement is true. It is also true that the applicant’s original application for a protection visa stated both the name given in the passport and what she claimed to be her true name, asserted that she left China “with false documents” and informed the Department that, while a copy of the passport was enclosed, “I will provide my evidences [that is, presumably, additional documents] at the interview”. But it does not follow that the “particular fact” on which the Tribunal based its finding did not exist. Similar comments may be made equally about the Tribunal’s findings about the range of checks on persons intending to depart China, as indicating that the applicant was not of interest. It could hardly be said that the fact on which the Tribunal based its finding did not exist.
If it is said that the Tribunal’s reasoning assumes that which is to be proved (that is that the applicant was not the person named in the passport) then the submission, like others made on the “no evidence” ground, encounters a second difficulty. It is that the requirement that a decision (or a finding forming an essential link in the chain of reasoning leading to a decision) is not based on a fact which did not exist merely because there was no evidence before the decision maker of the existence of the fact: s 476(4)(b) is enlivened only if it is established that the fact did not exist “by admissible evidence in Court”: Curragh Queensland Mining Ltd v Daniel (1992) 35 FCR 212 at 224, as to which the applicant bears the onus of proof. See also Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 34 at par 42. The applicant in this case failed to meet that requirement not only in relation to the matter relating to the applicant’s identity but also in relation to the question whether forged documents of the kind produced by the applicant were readily obtainable and whether the applicant was subject to official scrutiny before her departure (in any event, unless one takes a rather limited view of what is meant by “official scrutiny”, I think the applicant’s evidence of the investigations which she claimed were taking place into activities in which she claimed to have been involved justified the Tribunal’s characterisation of the circumstances).
For that combination of reasons, the “no evidence” ground in my view is not made out.
In relation to s 430, the applicant relied on the following passage in the judgment of Wilcox J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 27:
“I accept the submission of counsel for the minister that [s 430] does not impose on the Tribunal an obligation to make findings about every factual matter mentioned in an applicant’s claim. Paragraph (c) of subs (1) refers to ‘findings on any material questions of fact’. Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the Tribunal does make should not be construed in an over‑critical way, ‘with an eye keenly attuned to the perception of error’: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; 115 ALR 1, adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2; 136 ALR 481. On the other hand it is important that a reader be able to discern what conclusions the Tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the Tribunal must say so and indicate the factual material on which the adverse finding was based.”
The applicant submitted that the Tribunal had failed to perform that duty in two respects. First, it had not referred to the factual material on the basis of which it found that the applicant’s claims of involvement in an anti‑nuclear group and of consequent problems were far‑fetched and not credible. Secondly, it did not refer to material on which it based its finding that the documents produced by the applicant were fraudulently produced and its rejection of the applicant’s evidence (in a written statement submitted to the Tribunal) that, in relation to the employment documents she produced, “it is impossible for anyone to get false certificates from such a top-secret military organization”.
Again, in my view neither of those submissions is made out. In relation to the former, two matters which formed the basis of the Tribunal’s conclusion (referred to in par 9 above) appear in the following passage in the Tribunal’s reasons:
“The Tribunal does not accept, given the seriousness of the consequences the applicant feared, that she would have voluntarily returned to China so soon after having fled persecution merely on the basis of a colleague’s opinion that the alleged investigation into her and the group’s activities had been abandoned. Additionally, it does not find it credible that she would have been able to evade the authorities while under official scrutiny by the use of another person’s documentation.”
The Tribunal then referred to matters concerning “exit procedures” in China which assisted it in making the latter finding. Thus, the Tribunal referred to two aspects of the factual material before it in reaching its conclusion that the applicant’s story was far-fetched and not credible.
As for the second matter, certainly it is true that the Tribunal did not explicitly refer to the applicant’s statement in her submission that it was impossible to get false certificates from a top‑secret military organisation. But the Tribunal did refer to material which indicated that the fraudulent use of resident identification cards was widespread and, in its view, more generally, that the use of fraudulent documentation in China was widespread. To say that one cannot get false documents from a top-secret military institution, even if that is understood to refer to the impossibility of forging documents of which, because of their top-secret nature, one has no knowledge, is to say nothing about the possibility of obtaining such documents legitimately belonging to other people or forgery by means of documents obtained in that way.
In other words, the Tribunal indicated the basis of its finding that the applicant’s documents were false: forged documents were readily obtained; and the applicant had not, with her original application, produced her documents or copies of them, merely indicating that they would be produced at the interview (there being no interview, they were produced subsequently when requested in a letter from the Department). Counsel for the Minister submitted, correctly in my view, that the Tribunal was faced with a passport which suggested one identity, and other documents which suggested a different identity. It needed to make a finding as to whether the passport or the other documents were “false”. It found that the other documents were “false” and indicated why it did so. There was, I think, no failure to comply with s 430.
The substance of the applicant’s complaint about the decision of the Tribunal is that the Tribunal incorrectly found the facts. The finding of fact is, of course, a matter for the Tribunal, not the Court. The grounds on which the Court is empowered to review a decision of the Tribunal are limited. In my view none of those grounds is made out.
Conclusion
It follows that the application will be dismissed. No reason appears why in this case costs should not follow the event. Accordingly, the orders of the Court will be that the application is dismissed and that the applicant is to pay the respondent’s costs.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane. Associate:
Dated: 11 November 1999
Counsel for the Applicant: Ms M T Bateman Counsel for the Respondent: Mr P S Braham Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 3 November 1999 Date of Judgment: 11 November 1999
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