Choi v MIMA

[2003] HCATrans 573

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M56 of 2001

B e t w e e n -

PUN CHOI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 14 FEBRUARY 2003, AT 11.21 AM

Copyright in the High Court of Australia

MR P. CHOI appeared in person.

MR C.G. FAIRFIELD:   May it please the Court, I appear for the respondent.  (instructed by Australian Government Solicitor)

MS C. POON:   Your Honour, I am the Cantonese/English interpreter for Mr Choi.

McHUGH J:   Yes.  Well, you will have to be sworn then.

CATHERINE POON, sworn as interpreter:

McHUGH J:   Yes, Mr Choi.

MR CHOI:   Good morning, Judge.

McHUGH J:   Do you want to speak in English or do you want ‑ ‑ ‑

MR CHOI:   I want to use my interpreter, please.  Can I start now?

McHUGH J:   Yes, you commence.

MR CHOI:   Good morning the Judges, good morning for government workers, good morning for the Australia…..concerned my case.  Thank you.

MR CHOI (through interpreter):   First of all, I want to give a brief about important evidence in regards to my case.

McHUGH J:   Yes.

MR CHOI (through interpreter):   Can I submit something for your reference?

McHUGH J:   We will look at it and see what it is.  Thank you.  Yes, carry on.

MR CHOI (through interpreter):   And also, your Honour, I want to show you a map that will show you where the location of my shop and population within that county within which my shop was located.

McHUGH J:   Yes.  Mr Choi, what you have to understand is that we do not deal with questions of fact on this sort of application.  You have to show some error of law that would require the grant of special leave to appeal.

MR CHOI (through interpreter):   I fully understand that.  I want to show the error of law with regards to the Tribunal, because I actually did submit evidence for their reference, but they did not really look it through, and a second time, when it had gone to the Tribunal, they actually admitted their were mistakes but they did not actually show it forth.

McHUGH J:   Well, it is for the Tribunal to consider the evidence and say what weight is to be given to it.  But, anyway, proceed with your argument, please.

MR CHOI (through interpreter):   Thank you.  The first issue I want to contest is, it was said that I had never been back to China to open a shop.  According to the – the Tribunal has finally actually admitted that this is true and a second time the Tribunal actually did not bring forth these evidence which they admitted was true, instead, what they have actually brought forward was evidences that was not existing.  They use three reasons – they based three reasons to draw a conclusion that I had not gone back to China and these three reasons, what they call reasons, actually some of them are self‑conflicting, but some of them are non-existing.  I want to now list you the three reasons they gave me.

McHUGH J:   Yes, go ahead.

MR CHOI (through interpreter):   On page 19 of the monologue they gave, item 27, the three reasons they missed out that drew to their belief that I had never been back to China, was number first:

As discussed with the applicant at the hearing, it would have been necessary for him to obtain household registration (“hukou”).  The Tribunal notes the following information on the Chinese Household Registration System.

The next page, on 20, it was actually well established that the system had been abolished in 1984, but it was 1993 that I returned to China to help those people who are pro-democracy.  So this fact did not really exist.  The second reason they based was:

After 15 years absence, the Tribunal considers that the applicant’s return to his home town would have come to the attention of the authorities and he would have been required to obtain documentation in order to open and operate a shop.

This is a self-conflicting reason.  If I went back to China and opened a shop for my father, then they said that I would be in danger, at risk, but I was actually putting a notice, an advertisement, in a Chinese newspaper condemning the Chinese Government and also protest in front of the Chinese Ambassador.  The rationale is, because you – as a very ordinary citizen, you will not be in danger when you go back to China.

What really made me have an idea that they are self-conflicting because on one hand they said that if I went back to China, opened a shop for my father, I would be in danger.  On the other hand they said that I put in an advertisement in a Chinese newspaper or protest in front of the Chinese Ambassador, would not be in danger if I go back to China, because I am simply an ordinary citizen.

McHUGH J:   Yes, but, Mr Choi, what you have to understand is that we have no jurisdiction, no right to deal with findings of the Tribunal unless there is some error of law.  What you are talking about are what are called facts and it does not matter that the Tribunal got it wrong; that is not a sufficient ground for the Federal Court or this Court to interfere.

MR CHOI (through interpreter):   In such a democratic country everything should be based on facts, but then it is just up to your verbal argument or just your reasoning, that these facts are fabricated, then it will not be democratic in that sense.

McHUGH J:   Well, the Parliament has made the Tribunal the sole arbiter, the sole decision-maker on questions of fact and the courts have no authority, no right to interfere with those findings of fact of the Tribunal.

MR CHOI (through interpreter):   When the case first appeared in court, the judge did say that all these facts have been twisted simply because of the prejudice of the Tribunal, so the case has to be heard again in the Tribunal.  But, however, when the case was secondly heard in the Tribunal, all this evidence which should be shown was actually withdrawn so, in the Court of Appeal, would your Honour say that is really just?  Indeed, if I really had actually done these things and they said that it was all fabricated, and if I return back to China for myself, my family and my children, they are all very unfair.  All those who get involved – actually some of the people who work along with me in all these movements, actually have been imprisoned.  Well, now Hong Kong has been transferred back to China and if the Chinese Government really wanted to get me into gaol and I was actually going to be sent back to Hong Kong, then it is actually a…..to the democracy in Australia.

McHUGH J:   Well, the problem for you is that the Tribunal rejected your evidence; they did not accept what you said.

MR CHOI (through interpreter):   But all the reasons upon which they reject my application were non-existing.  But what do you mean by “law”?  Law is actually based on all the facts, but they did not conduct the procedure according to these facts, so what is the use of the law?  For example, a vascular ligation, they said it was all fabricated, but I had two certifications from two Australian doctors.  So if they just say that is fabrication all the way, so what is the truth?  For example, I have used all those pro-democracy people’s money to open a shop in the name of my father, I had not opened the shop myself, but then I can show them all the invoices issued from my father’s shop, but they said that they were not true.

Before all these facts and evidences and if they were not fabricated, that means that is the truth.  If that is the truth then, if I return back to China, will I be under prosecution?  I am already in my early 50s, all my hope has been put into my next generation, if now I need to be sent back to China, so that my whole family will be under prosecution.  It is a very key point in the whole life journey of myself in front of the Court today.  I really wish you to put your consideration in a more conscious manner, because I strongly believe that, as a matter of fact, Hong Kong has been transferred back to China, the Chinese Government, as soon as I return back to China I will be under prosecution because some of my co-workers had already been in gaol.  This is my final chance to appeal to your Honours, consider the whole process and the facts ‑ ‑ ‑

McHUGH J:   We understand that, Mr Choi, and this Court examines all refugee cases very, very carefully, because we know how important they are to persons such as yourself, but there are limits to what we can do by way of supervising the Tribunal.

MR CHOI (through interpreter):   But I have seen some cases say, for example, if some of the evidence has actually been withdrawn from the Tribunal hearings, would it be possible for the case to be heard again in a department, because that is unfair for the applicants?  Further, because the reasons they reject my application were actually non-existent and would it be possible for this case to be heard again from the very beginning?  If you give me some time, then I can actually prove to you that all the grounds upon which the Tribunal tried to reject my applications, all those three reasons they listed, were not existing.

McHUGH J:   Well, our role is to consider whether or not the Full Court of the Federal Court was in error.

MR CHOI (through interpreter):   But all the reasons they have listed out in the Full Court were non-existing.  Today I appeal in High Court for a matter of justice.  So today I really appeal to your Honours that if there is one piece of evidence that is not true, I will be very, very willing to submit to myself to punishment, but I find myself to be able to stand high to everybody, because that actually has been my experience and I actually

helped those pro-democracy people in China.  I strongly believe that Australians are by law pro-democratic and also respect all the facts as a country.

McHUGH J:   Yes, I am afraid your time is up, thank you, Mr Choi.  We need not hear you, Mr Fairfield.

The Court has carefully considered the written submissions and the oral argument of the applicant.  The Court is of the view that no error is shown in the reasons of the Full Court of the Federal Court.  Accordingly, this application for special leave to appeal must be refused with costs.

These documents that were handed up may be returned.  The Court will now adjourn to reconstitute.

AT 11.44 AM THE MATTER WAS CONCLUDED