Chuang, Ming Tsung v Minister for Immigration and Multicultural Affairs

[1997] FCA 1448

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 511 of 1997

BETWEEN:

MING TSUNG CHUANG
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

MR LUKE HARDY, SITTING AS THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE(S):	HILL J
DATE:	16 DECEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Before the Court is an application by Mr Ming Tsung Chuang for a review of the decision of the Refugee Review Tribunal that he is not entitled to the grant of a protection visa since he has not, within the meaning of the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, satisfied the Tribunal that he is a person with a well-founded fear of persecution on one or other of the grounds there set out.

The applicant arrived in Australia on a Taiwanese passport.  It is one of his claims that the Tribunal erred in law by treating him as a Taiwanese citizen.  He says, and what he says is no doubt true, that the Peoples Republic of China does not recognise the status of the Republic of Taiwan as an independent entity so, he says, he should have been treated by the Tribunal as a citizen of the Peoples Republic of China and by failing to do that the Tribunal erred.

I should say at the outset that while Australia recognises the Taiwanese Republic as a separate independent country and that is the way the matter was treated by the Tribunal, its decision was not in any real way related to that question.

The applicant raised three grounds in his application.  The first was that the procedures that were required by law to be observed were not observed.  The second was that the decision involved errors of law.  The third was that the making of the decision was an improper exercise of power in that it failed to take into account relevant considerations.

The grounds of judicial review of a decision of the Tribunal are limited.  There is a particular difficulty in knowing whether a ground that procedures that were required by law to be observed were not observed encompasses the whole or only part of, and if so what part of the common law ground of natural justice.  I am prepared for present purposes to accept the decision of the full Court of this Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 at 631 as correctly stating the law and as permitting an applicant, under the rubric of procedures, to demonstrate matters which might otherwise fall within a natural justice ground. So I propose to accept, for the purposes of the present application, as available grounds to the applicant the grounds which are set out in his application and to deal with them so far as they have been argued. Mr Chuang was unrepresented but was assisted by an interpreter.

The application was filed in Court on 1 July 1997.  It came for directions before Tamberlin J on 8 August.  The applicant appeared at that time and, by consent, orders were made providing that the Minister should first file an affidavit of the evidence upon which the Minister proposed to rely on or before 29 August and that the applicant then file any evidence upon which he proposed to rely on or before 12 September 1997.  It is not unusual for this course to be adopted, particularly where a litigant is perhaps indigent or is not legally represented, for it enables there to be put before the Court all the material that was before the decision-maker at the time the decision was made to enable the Court to determine whether some error of law has been committed.  The applicant did not comply with the order in that he filed no evidence.  When the matter came before Tamberlin J on 18 September his Honour extended the time in which the applicant might file and serve any evidence until 30 October 1997.  I am unaware of the circumstances in which his Honour made that order.  It may well be that Mr Chuang requested his Honour for a further extension of time.  Certainly, his Honour was at some stage made aware that legal aid had been sought and this may well have been the catalyst for the extension.  At the same time his Honour granted the parties leave to approach the Registry for a hearing date not before 1 December 1997.  The applicant chose to adduce no evidence at all.  On the next occasion, when the matter came before me Mr Chuang did not appear.  I directed that he be advised that the matter was listed for hearing today.

Mr Chuang wishes to argue that the interpreter provided for him at the Tribunal wrongly interpreted material for the benefit of the learned member of the Tribunal.  It is said that Mr Chuang spoke for some time whereas the interpreter used but one sentence.  I do not know whether this is so or not, but if Mr Chuang wished to rely on that ground it was for him to file evidence in admissible form to enable the matter to be adjudged.  It is just not good enough to appear at the time of the hearing without any evidence at all and offer to go into the witness box presumably to say that there was a mistake in the interpretation.  Nothing to date has signalled this to be an issue.  But in any event, the only way it could be determined would be by reference to the tape and with the aid of an interpreter who could indicate whether or not the Tribunal member had been misled.  Mr Chuang says that he asked for a copy of the tape and has not received it from the Australian Government Solicitor.  That is denied.  I do not know where the truth lies.

If this was a matter which Mr Chuang wished to raise, then it was for him to raise it not the Australian Government Solicitor.  If he wished to get a copy of the tape it was open to him to do so by requesting a copy from the Tribunal.  He did not do so.

It is also said, as a separate ground, that at the hearing the Tribunal member did not advise Mr Chuang what evidence he had to adduce.  This demonstrates a lack of understanding about the Tribunal process, not surprisingly, perhaps, because Mr Chuang is not legally trained.  This is not the responsibility of the Tribunal.  It is the responsibility of Mr Chuang to decide what evidence he wishes to put before the Tribunal.

It is difficult, I know, when an applicant is not legally represented for that person to know what evidence to adduce, but that does not excuse him from putting whatever evidence he wished to put to the Tribunal.  Mr Chuang says also that he asked the Tribunal to tell him if it preferred some more “material evidence” to be given so that he could have time to collect that evidence.  There is no evidence before me that this happened and I would not likely infer that a member of the Tribunal, if asked to give an applicant time to adduce further evidence, would refuse to do so.  Indeed Mr Chuang has not really said that he did, he has only said that he asked the Tribunal somewhat conditionally if the Tribunal wanted further information.  Presumably the Tribunal did not respond, but it is not for the Tribunal to advise Mr Chuang what information to put before it.  It is for Mr Chuang to put his case to the Tribunal.

The next ground of complaint in the application was an alleged error of law on the part of the Tribunal.  Mr Chuang said that the Tribunal overlooked and did not recognise his just claims that he had a well-founded fear of persecution for religious reasons.  He says that many followers of the Taoist religion have been persecuted in the past and, while today less persons are being persecuted, there are still persons that are being persecuted but there are less reports of persecution.  He claimed also that he had been to mainland China, that he had been blackmailed by the authorities in that country and indeed been kidnapped, that his third daughter had complained of receiving life threatening phone calls.  He said in the last two or three years many of the Taoist followers had been imprisoned, kidnapped or disappeared.  He believed that the Chinese authorities had sent secret agents into Taiwan who had penetrated the region and that these matters all proved his case.

The problem with advancing these matters is that none of them involves a question of law.  One can hardly criticise Mr Chuang for not understanding the difference between matters of law and fact.  Lawyers have debated it for years.  But it is clear that none of the matters to which I have just referred involve matters of law.

Mr Chuang wants, and I can understand why, his case to be heard again before another Tribunal in the hope that the other Tribunal will deal with it differently.  But I have perused the reasons for decision given by the Tribunal.  The statement of law which the Tribunal advances is quite impeccable.  The Tribunal addresses the facts.  Apparently at the hearing the Tribunal put to the applicant that, given that he had been a Taoist for some 20 years, he had not suggested that he himself had been persecuted by the Taiwan Government.  No sensible answer appears to have been given to this question and, at the end of the day, it is clear from a reading of the Tribunal's reasons that it just did not accept that the applicant had a well-founded fear of persecution on religious grounds, as those words are used in the relevant Convention.  I stress again that the suggestion that the applicant is stateless, in that the Peoples Republic of China does not recognise Taiwan, resulted in no error of law. The Tribunal found the applicant's claims to be ill focused, exaggerated and frequently improvised.  It did not accept the evidence which Mr Chuang put to it.  It found the claims he made about his family to have no substance and other major claims to be "flimsy".

Based on the evidence which Mr Chuang chose to put to the Tribunal, the Tribunal expressed itself to be "absolutely satisfied that he did not face a real chance of persecution in Taiwan".  It is not for this Court to determine matters of fact, that is for the Tribunal.  There being no errors of law demonstrated there is no basis upon which this Court can intervene.

I would conclude by saying that Mr Chuang was given the opportunity by Tamberlin J to adduce any evidence he wished to adduce as to the procedures that were adopted by the Tribunal.  He is the author of his own misfortune if he ignored the opportunity that was given to him.

I would accordingly dismiss the appeal and direct that the applicant pay the Minister's costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:            18 December 1997

The applicant appeared in person (assisted by X Chen, Interpreter)
Counsel for the Respondent:	A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 December 1997
Date of Judgment:	16 December 1997