Chen v Minister for Immigration and Multicultural Affairs

[2000] FCA 843

FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 843

XIANG LIN CHEN v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

N 163 OF 2000

MANSFIELD J
8 JUNE 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 163 OF 2000

BETWEEN:	XIANG LIN CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	8 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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 163 OF 2000

BETWEEN:	XIANG LIN CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE:	8 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 1 February 2000.  The Tribunal affirmed a decision of a delegate of the respondent given on 30 April 1998, refusing to grant to the applicant a protection visa which he had sought under the Migration Act 1958 (Cth) (“the Act”).

2. The applicant is a citizen of China.  He was born in 1966 and is now thirty-three years of age.  He lived until 1992 in the Shijiazhuang area where he completed his schooling, and then worked for a construction company between 1985 and 1989.  He then appears to have been unemployed for about three years.  In 1992, he moved to the Chenzen province and worked for a building materials company until he left for Australia in November 1997.  He obtained a passport, a Chinese passport on 8 July 1997 and left for Australia on 15 November 1997.  He applied for the protection visa soon after his arrival in Australia.

3. To qualify for a protection visa, it was necessary that the applicant satisfy the criterion specified in s 36(2) of the Act, namely that he be a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (“the Convention”). In practical terms that means that he had to satisfy the delegate of the respondent, and on review the Tribunal, that he was a refugee within the meaning of Article 1A(2) of the Convention.

4. The Tribunal recorded his claims to be a refugee at some length in its reasons for decision.  It is convenient, very briefly, to summarise those claims from the Tribunal’s description of them, as no complaint is made that it recorded his claims inaccurately.  Soon after he started working for the construction company in 1985, he became aware of what he called political corruption and he urged his friends to undertake a fight against that political corruption.  He progressively became more active in the development of pro-democratic ideology and propaganda.  In December 1986, he had reached the point where he organised a group to negotiate with the leaders of his employer company to confront the issue of corruption.  He said he was denounced and severely punished and, in his evidence to the Tribunal, that he was demoted as a result of that action.  He nevertheless continued to work for that company  until 1989.  He said that in 1988, he established a secret pro-democracy organisation which conducted meetings and issued publications.  In 1989, he was actively involved in the strong pro-democratic movement which then came to the fore.  He said that in May 1989, he organised public rallies on a number of occasions and issued hand bills and petitions and collected funds in support of the pro-democracy movement.  His evidence was that he then became a major target of the authorities.  He was arrested and imprisoned for a period of some six months, during which time he was severely mistreated.  He was dismissed from his employment and, at one point, he said that was because of injuries sustained during his treatment by the authorities.

5. After that time he found it hard to get work but in 1992 he was allowed to go Chenzen province where he started work for a building materials company and retained that employment until he left for Australia.  He then kept a relatively low profile for some years, but he said that in 1996 he set up a pro-democracy party and organised activities on its behalf and participated in 1997 in public calls for the release of political dissidents.  He then anticipated further trouble with the authorities and so decided to go overseas.  He said he procured a Chinese passport by paying a bribe.

6. In Australia, he spent some time without engaging in any significant activities in relation to his application but he said that in about the middle of 1999 he again became active in a protest and rallies against Chairman Jiang Zhe Min whilst he was visiting Australia and supporting an exiled dissident. That protest and those rallies took place over a considerable period of time. He therefore claims that he was actively and prominently involved in those demonstrations. The Tribunal understood that he was making a claim that, in addition to his activities whilst in China, those activities also rendered him a refugee for the purposes of the Convention.

7. Having identified the applicant’s claims, the Tribunal referred to information, which is commonly called independent country information, about China.  It also referred at some length to the applicant’s evidence given at the hearing, in which the Tribunal raised with the applicant a number of matters for his comment.  It is recorded in the Tribunal’s reasons that the applicant agreed that he was not a high profile protest leader in respect of his pro-democracy activities in China.  The Tribunal recorded his evidence in part in the following passage:

   “The applicant claimed that he really did get involved in pro-democracy activities whilst in China and Australia, but agreed that he was not a high profile protest leader.  He stated that the money he had collected as the head and organiser of the “3 big rallies” was $50 and that the executive manager had passed it through a “stone company” as a channel to support the student protest.  He stated that the army and police had been “friendly” to him as the result of his campaigning, although he also claimed that he had often been in trouble with the local police.”

8. The applicant also agreed with independent country information that the Chinese authorities have not treated harshly people who merely participated in demonstrations and rallies, signed petitions or collected money in support of protest activities.  He also agreed that with the content of that statement to the effect that there were at least one million people involved in such activities in Bejing alone in May and June of 1989 who had not been the subject of particular attention by the authorities.

9. The Tribunal also put to the applicant a further independent country information report provided by the Department of Foreign Affairs and Trade to the effect that:

   “The number of such people who might be of concern to the Chinese government if they are returned are few - they would only be those with an established high profile in China as process leaders.”

10. The Tribunal was told by the applicant that he had not had a high profile, although at the same time he referred to his involvement in the protests in 1989 to which I have referred.

11. Having considered that material, the Tribunal then turned to its findings and reasons.  It accepted that the applicant had been involved in discussions on pro-democratic ideals and that he may have been punished for organising meetings about corruption in 1986.  It also accepted that he may have set up a “pro-democratic saloon” in May 1989, that he may have helped organise rallies and demonstrations, and that he may have sent a petition to the Bejing government at about that time.  However, the Tribunal was not satisfied that the applicant had then been arrested and detained for a period of months or tortured and seriously mistreated during that detention.  That particular finding of the Tribunal is one which gives rise to one of the aspects of the grounds of review now raised.  In the light of those findings the Tribunal said that it was not satisfied that the applicant had been subject to persecution in the past in China nor that he was at any risk of persecution in the foreseeable future as a result of his activities in China should he return there.

12. The Tribunal then dealt with the claim that he was at risk of persecution because he had sought protection in Australia and because of his recent anti-Chinese government activities in 1989 in Australia.  It said:

    “I am not satisfied that the applicant is at any risk of persecution either because he has sought protection in Australia or due to his recently being involved in anti government activities.”

    That passage too, is the subject of an attack on this application for review.

13. The end result was that the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and therefore it affirmed the decision not to grant him a protection visa.

14. The amended application for review raises three particular grounds.

15. The first, which is tied to s 476(1)(a) of the Act, is that the Tribunal failed to observe procedures in connection with the making of the decision which it was required to do by the Act. It is submitted that s 476(1)(a) is made out because the Tribunal failed to carry out certain inquiries which it had indicated that it would carry out in the course of the hearing at which the applicant was present. The applicant relied upon certain passages in the transcript of that hearing which were before the Court on this application. They relate to the demonstrations and protests in 1999 in Australia to which I have referred. In the course of that evidence, the applicant produced certain photographs showing that he was present with a member of the New South Wales Parliament at the time those photographs were taken. The Tribunal made a particular focus of identifying who was that member of Parliament and indicated that it could speak to that parliamentarian to ask him if the photograph was taken on the day and on the occasion to which the applicant referred. It described the photographs as being very helpful. I do not think the transcript discloses that the Tribunal undertook to make inquiries of that person to confirm the applicant’s story. But the complaint is that the Tribunal did not make any such inquiry and has therefore in some way fallen into error.

16. In my judgment there is nothing in that ground of review.  The reason is that, as I read the Tribunal’s reasons, it accepted that the applicant was involved in the anti-Chinese government activities to which he referred in the course of his evidence.  Counsel for the applicant urged that the finding of the Tribunal was not that he had been so involved, or that he may have been involved to a lesser degree, and that the applicant was not able to know whether that had been the case.  However, in the passage concerning that finding to which I have referred, in my view, the Tribunal has accepted that the applicant was involved in those demonstrations or protests.  Its finding is that it was not satisfied that, because of those activities, the applicant was at any risk of persecution.  Its observation about being involved in anti-government activities immediately follows a reference to his claims that he had been involved in those activities.  I am unable to read its reasons as anything other than an acceptance of his claim in that regard, that is that he had been involved in the activities as he described them.  Upon that basis, it was not incumbent upon the Tribunal to seek confirmation of a fact which it was accepting in any event.  It is not shown to have been in error in not following up that inquiry.

17. The second ground of review is based upon s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision. Submissions indicated that reliance was placed upon s 476(4)(b) being one of the subsections of s 476 which explain the circumstances in which the ground specified in subs 1(g) can be taken to have been made out.

18. It is necessary for the applicant to show that the Tribunal made the decision based upon the existence of a particular fact and that particular fact did not exist.  The particular fact which has been identified by the applicant appears immediately following the Tribunal’s finding that it was not satisfied that the applicant was arrested and detained and imprisoned for a period of months during which time he was tortured and seriously mistreated.  The Tribunal then immediately said:

    “The applicant provided no evidence of these experiences.”

19. It is contended that that finding of the Tribunal is a particular fact and that it did not exist.  As a matter of the literal meaning of that sentence, the submission has merit.  There was evidence of those experiences given by the applicant.  However, I do not think that it is appropriate in the circumstances of this matter to apply to that sentence the literal meaning for which the applicant contends.  The Court is not to scrutinise the Tribunal’s reasons in an overcritical way, or with an eye keenly attuned to the perception of error:  Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259.It is abundantly clear that the Tribunal was aware that the applicant had given evidence himself of those experiences.  It referred in its reasons to his claims of having experienced those experiences in his written submissions, and it also referred to the applicant then having given oral evidence at which he discussed those events.  In those circumstances in my judgment, the sentence must be sensibly construed to mean that the applicant provided no corroborative evidence of the experiences to which he had referred.  Once the Tribunal’s finding in that regard is understood in that way, counsel for the applicant acknowledged that it would not then be shown to be a fact which did not exist.  For those reasons, I do not accept the second ground of review.

20. The third ground of review is also based upon s 476(1)(a). It complains of the inadequacy of the Tribunal’s reasons, having regard to its obligations under s 430 of the Act. As the parties acknowledge, there are conflicting decisions of Justices of the Court as to whether s 430 of the Act prescribes a procedure required by the Act to be observed in connection with the making of a decision of the Tribunal, and there are also conflicting decisions of Justices of the Court as to the extent of the obligation which s 430 imposes upon the Tribunal, assuming that it does prescribe a procedure of the type to which s 476(1)(a) refers. Those matters are presently the subject of review by a Full Court of this Court comprising five Justices which has heard that application and has reserved its judgment. I do not think it is either appropriate or necessary for me in those circumstances to revisit the issue. Were it necessary to do so, I would reserve my decision on this matter until the decision of the Full Court had been provided so that I could apply it in relation to the particular arguments before me.

21. Counsel for the respondent contended, however, that even taking the view of s 476(1)(a) and the content of the obligation imposed by s 430 of the Act, which is the most favourable for the applicant as contended by the applicant, this application must fail. I am prepared to proceed upon that basis. I have set out above, the two particular passages of the Tribunal’s reasons about which complaint is made of a failure to comply with s 430. I propose to measure the Tribunal’s reasons against that view of the content of s 430 which the applicant contends is the most favourable to him.

22. The first finding or conclusion of the Tribunal that is under attack is that the Tribunal was not satisfied that the applicant was arrested, detained for a period of months and tortured and mistreated in May 1989.  In fact, as the Tribunal’s findings and the applicant’s evidence indicate, after 1989 although he engaged in some political activities from 1996 onwards, he was of no particular interest to the authorities and he was not a high profile protest leader at the time he left China.  However, the Tribunal appears to have proceeded on the basis that the events to which he referred in May, 1989 and his subsequent arrest and detention was a material fact upon which it should make a finding.  Its finding was that it was not satisfied that those events had occurred, as the applicant alleged.  It said:

    “The applicant provided no evidence of these experiences; he was issued with a passport and allowed to leave China despite the introduction of a system designed to identify and prevent from leaving those of interest to the Chinese authorities for their involvement in the movement.  I note the comments in the above material as to the present attitude of the Chinese authorities to those involved in 1989 pro-democracy activities.

    I am not satisfied that the applicant was of interest to the authorities, nor that he had been regarded as being of a high profile.”

23. As I have indicated, the applicant in the course of his evidence before the Tribunal, acknowledged that in recent years until he left for Australia, he had not been of interest to the authorities, and that he had not been regarded as being of a high profile. The applicant’s complaint is that the Tribunal has not positively rejected his evidence on that material, and that it was necessary for the Tribunal to have done so, or to have accepted his evidence on that material. It is therefore contended that the Tribunal failed to comply with the obligation imposed by s 430(1)(c). I do not accept that submission.

24. In the course of its reasons, the Tribunal referred to his claims and to the independent country evidence.  It then, as an introductory part of its findings and reasons, referred to the issues of credibility and evidence.  It is plain that the Tribunal took the view (and a view which is not uncommonly taken) that it is not required to accept uncritically any or all of the allegations made by an applicant and that it is for the Tribunal to be satisfied of the elements which make out a particular visa application.  The Tribunal found that it was not satisfied as to those particular experiences.  It gave its reasons.  It said that there had been no corroborative evidence of those experiences.  It is unclear what corroborative evidence could reasonably have been produced by the applicant.  There is no hint of what the Tribunal expected.  That therefore may not be an entirely satisfactory reason, from a rational point of view, but it is not the function of the Court nor is it within the power of the Court to grant review of the decision simply because it is critical of quality of reasoning of the Tribunal.

25. The Tribunal further said that the applicant was allowed to leave China despite the introduction of a system designed to identify and prevent from leaving those of interest to the Chinese authorities for their involvement in the pro-democracy movement in 1989.  There was country information to which the Tribunal referred which would warrant that conclusion.  The Tribunal further referred to the general country information that the Chinese Government’s attitude to those involved in the June 1989 pro-democracy movement was that, for the vast majority of people caught up in those events, things are best forgotten.  The Chinese Government is not interested in bringing those matters up again except in respect of people which it regards as high profile activists.  In the case of such persons, there was country information that they would be on wanted lists and would be unable to exit China on passports issued in their own names.  Accordingly, in my judgment, the Tribunal has expressed its decision, set out its reasons for its decision, and in respect of those particular claimed experiences has set out findings on the material question of fact and referred to the evidence or other material on which the findings of fact were based.

1. It has not expressly said that it has found the applicant’s evidence in respect of those experiences to be unreliable, but it is clear that it has reached that view. On my view of the obligations imposed by s 430, I do not think it is necessary for the Tribunal positively to have said what is a matter of clear inference from its reasons. Nor do I accept that it was necessary, in the circumstances, for the Tribunal positively to have rejected that evidence. It was sufficient for the Tribunal to fulfil its statutory function to indicate that it was not satisfied, despite the applicant’s evidence, that those experiences had been suffered as he alleged.

2. The other aspect of the attack based upon the Tribunal’s reasons is its conclusion that the applicant is not at any risk of persecution because of the anti-government activities which he had undertaken in Australia in 1999. I acknowledge that, in this respect, the Tribunal’s reasons are, to use a kind word, laconic. One would hope that given the purpose of reasons which has been spelt out in many cases, the Tribunal’s reasons would be more fulsome than those that were proffered in this particular case. However, the Court’s function, even accepting the content of s 430, which is contended for, is to determine whether the Tribunal has satisfied that obligation. In my judgment the Tribunal’s reasons do satisfy that obligation.

3. Having accepted that the applicant was engaged in those anti-government activities, it is necessary to see whether the Tribunal has expressed its reasons for finding that the applicant is not at risk of persecution in respect of those activities, and has referred to the evidence or other material upon which that finding was based.  In the Tribunal’s reasons immediately preceding that particular finding, there is a summary by the Tribunal referring to the independent country information concerning persons who are now of interest to the Chinese authorities for their pro-democracy activities.  As I have indicated, if one then moves from the Tribunal’s particular findings and its reference to that material to its rehearsal of the independent country information there is clear independent country information, that the Chinese authorities are now interested only in what are called high profile activists.

4. It is apparent that the Tribunal, partly upon the basis of the applicant’s own evidence, but partly upon the basis of the nature of the protests and demonstrations which he participated in, took the view that he was not a high profile activist who would be of interest to the Chinese authorities even if he were returned to China.  Although one has to look hard to see those observations and references in the Tribunal’s reasons in relation to that particular finding, in my judgment they are there.  I reach that conclusion with some hesitation.  However, it is a conclusion which upon balance, I think, is the correct conclusion in the circumstances.

5. Accordingly, in my judgment none of the grounds of review now argued have been made out and this application must be dismissed.  In this matter, given the terms of the Tribunal’s reasons, one can well understand why the applicant made the complaints which he did about them.  I consider that that provides a special circumstance sufficient to warrant departure from the normal rule as to costs.  I make no order as to the costs of this application.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             22 June 2000

Counsel for the Applicant:	Mr R Killalea
Solicitors for the Applicant:	Coelho & Coelho
Counsel for the Respondent:	Ms S McNaughton
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 June 2000
Date of Judgment:	8 June 2000