Dai Xing Yao v Minister for Immigration & Ethnic Affairs
[1997] FCA 255
•17 APRIL 1997
CATCHWORDS
IMMIGRATION - application for protection visa - whether the Tribunal's alleged failure to comply with the statutory duties imposed by s. 420 of the Migration Act 1958 (Cth) amounts to a reviewable error under ss. 476(1)(a) or 476(1)(e) - whether s. 420 places a duty on the Tribunal to comply with rules of natural justice - whether relief for a breach of natural justice available, having regard to s. 476(2)(a).
Migration Act 1958 (Cth), ss. 420, 425, 475(1), 476(1)(a), 476(1)(e), 476(2)(a).
Asrat v Minister for Immigration and Ethnic Affairs, 23 August 1996, O'Loughlin J, unreported.
Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233.
Century Metals and Mining NL v Yeomans (1989) 40 FCR 564.
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474.
Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100.
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322.
Singh v Minister for Immigration and Ethnic Affairs, 18 October 1996, Lockhart J, unreported.
Thanh Phat Ma v Billings (1996) 142 ALR 158.
Velmurugu v Minister for Immigration and Ethnic Affairs, 23 May 1996, Olney J, unreported.
Zakinov v Gibson, 26 July 1996, North J, unreported.
DAI XING YAO v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
VG 388 OF 1994
Sackville J
Sydney (Heard in Melbourne)
17 April, 1997
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) No. VG 388 of 1994
GENERAL DIVISION )
BETWEEN:
DAI XING YAO
Applicant
AND:
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY (HEARD IN MELBOURNE)
DATE: 17 APRIL, 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed, with costs (including reserved costs).
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIAN DISTRICT REGISTRY ) No. VG 388 of 1994
GENERAL DIVISION )
BETWEEN:
DAI XING YAO
Applicant
AND:
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
CORAM: SACKVILLE J.
PLACE: SYDNEY (HEARD IN MELBOURNE)
DATE: 17 APRIL, 1997
REASONS FOR JUDGMENT
The Proceedings
By a further amended application, the applicant seeks review of a determination made by the Refugee Review Tribunal ("RRT") on 4 October 1994. The RRT decided that the applicant was not a refugee to whom Australia has protection obligations under the Convention Relating to the Status of Refugees ("Convention"). Accordingly, the RRT affirmed the decision of the primary decision-maker to refuse a deemed application for a protection visa, a criterion for which is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention: Migration Act 1958 (Cth) ("Migration Act"), s.36(2).
The amended application, filed on 14 December 1994, sought review of the RRT's determination under Part 8 of the Migration Act, the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and s.39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). A claim for relief in this form gave rise to questions of construction of the Migration Reform Act 1992 (Cth), ("1992 Act"), the relevant portions of which came into force on 1 September 1994. The 1992 Act introduced provisions curtailing the jurisdiction of this Court in respect of (inter alia) decisions of the RRT: see now Migration Act, s.485; Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 (FCA/FC).
In Dai Xing Yao v Minister for Immigration and Ethnic Affairs, 18 September 1996, unreported, the Full Court held that the effect of the 1992 Act was that the RRT's determination was reviewable only under Part 8 of the Migration Act. The Full Court made a declaration to this effect, thus precluding the applicant from seeking review of the RRT's determination under either the ADJR Act or the Judiciary Act.
At the commencement of the hearing in the present case, the applicant's Counsel, Mr Clarke, applied for and was granted leave to file a further amended application which, in conformity with the Full Court's declaration, excised all references to the ADJR Act and the Judiciary Act. Pursuant to an order made by me, the further amended application also removed the RRT as the second respondent.
Although the further amended application specified a number of grounds for review of the RRT's determination, the applicant pressed only two related contentions.
•First, it was said that the RRT had relied on information adverse to the applicant's case, without affording him any or any adequate opportunity to comment on or respond to that information. It was submitted that this breached the procedures which s.420 of the Migration Act required the RRT to observe and that the RRT's decision is therefore reviewable under s.476(1)(a) of the Migration Act. It was also said that the RRT's failure to afford the applicant an adequate opportunity to comment on adverse information constitutes an error of law and that the decision is reviewable under s.476(1)(e) of the Migration Act.
•Secondly, the applicant contended that the RRT had represented at the hearing that, if there was further information or material which was adverse to the applicant's case, he would be given an opportunity to comment. Since the RRT had not given the applicant that opportunity, the determination was reviewable under both paras (a) and (e) of s.476(1) of the Migration Act.
The Legislation
The provisions of the Migration Act material to the present application are the following:
"420(1) The [RRT], in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2)The [RRT], in reviewing a decision;
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
425(1) ...the [RRT]:
(a)must give the applicant an opportunity to appear before it to give evidence; and
(b)may obtain such other evidence as it considers necessary.
(2)Subject to paragraph (1)(a), the [RRT] is not required to allow any person to address it orally about the issues arising in relation to the decision under review.
...
475(1) Subject to subsection (2), the following decisions are judicially-reviewable decisions:
(a)...
(b)decisions of the [RRT];
...
476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
...
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision.
...
476(2) The following are not grounds upon which an
application may be made under subsection (1):
(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b)...."
The Background
The applicant is a citizen of the People's Republic of China ("PRC"), and was born in 1947 in Shanghai. He lived and worked in Shanghai until he left for Australia on 11 April 1990. He worked as a technical school teacher in the PRC, teaching English.
The applicant entered Australia legally as a student on 15 April 1990. He was granted a temporary entry permit, which was subsequently extended. On 24 July 1991, the applicant applied for refugee status, and on 20 July 1993 he was granted a processing entry permit which allowed him to remain in Australia until his application was determined. On 17 September 1993, the applicant lodged a submission, just over three typed pages in length, in support of his application. He wrote the application himself in English, without assistance or legal advice.
On 22 October 1993, a delegate of the Minister rejected the applicant's application for refugee status. The decision record, giving reasons for the decision, is a typed document eight single-spaced pages in length. The delegate's record of reasons refers to several documents, such as advices from the Department of Foreign Affairs and Trade ("DFAT"), as supporting the conclusions reached by her. The record lists a number of DFAT cables and other documents which the delegate had before her. A copy of the record was sent to the applicant.
On 17 November 1993, the applicant lodged with the RRT an application for review of the delegate's decision. The application was supported by a further typed submission, just over seven single-spaced pages in length. The document is written clearly and presents the applicant's case under a number of headings, as follows:
"1.The political persecution against my family in China.
2.My personal experiences in China and my fear of being persecuted.
3.Details of my participation in the Shanghai pro-democracy movement in 1989 and the basis of my fear of being persecuted if I were to return to China.
4.It was under the fear of being arrested and with student help that I left China.
5.Applying for refugee status means treason."
The applicant's submission states that he had carefully read the delegate's reasons.
The RRT conducted an oral hearing in the presence of the applicant on 23 May 1994 and 2 June 1994. The member made a statement at the outset of the hearing on 23 May 1994, as follows:
"The role of the members of the tribunal is what we refer to as investigatory or inquisitorial role. That
is, the members have the power to gather together information or evidence from whatever sources may be necessary to arrive at the decision and this includes primarily taking evidence from you today and considering the material that has already been submitted by you which is contained on the file from the Department of Immigration as well as considering evidence from a wide range of sources which may include governmental and non-governmental sources such as the Department of Foreign Affairs and Trade or from academic works or from journals, magazines, media reporting.
If I have access to any information which you may not be able to access and which is adverse to your case [then] under the rules of natural justice I am required to put that information to you for your comment. So if there is any material of that kind which I may be using in my decision this afternoon I will put that to you for comment, but you should not infer from that that I am necessarily giving that information any more weight than any other information which may support your case. Of course I am not obliged to put to you any material which supports your case. So this is your opportunity, because your case is being reviewed anew, to put forward all the claims again that you wish to be considered by the tribunal." (Ts 2-3)
At the conclusion of the hearing, on 2 June 1994, the RRT made a further statement, as follows:
"Well, I have not arrived at a decision on your case, Mr Dai and it may still be a matter of some weeks before I do. If there [are] any further materials that I need to consult in arriving at my decision which may be adverse to you then I will send them to you for comment to allow you that opportunity. But if there are any matters that you should think of subsequent to this hearing or there is any other information that you would like to submit then you could use that opportunity in the next few weeks to present that to the tribunal." (Ts 54)
On 4 October 1994, the RRT gave detailed reasons for rejecting the applicant's claim. The RRT concluded that
"the Applicant does not face a real chance of
persecution for a Convention reason if he returns to China at this time or within the reasonably foreseeable future."
I shall make further reference to the RRT's reasons later.
The Court's Jurisdiction to Grant Relief
The respondent submitted that the effect of s.476(2)(a) of the Migration Act was that the Court had no jurisdiction to review the RRT's determination on the grounds advanced by the applicant. The reason was that the complaints made by the applicant were, in substance, that a breach of the rules of natural justice had occurred in connection with the making of the decision. Mr Cavanough QC, who appeared for the respondent, cited two recent decisions of single Judges of this Court to support the respondent's submission.
The first is the decision of Drummond J in Thanh Phat Ma v Billings, (1996) 142 ALR 158. In that case, the applicant complained that the RRT had taken into account a particular cable from the DFAT to support its finding that there was no evidence that the applicant or his family held known dissident views. The RRT's actions were said to constitute a failure to comply with the obligations imposed by ss.420 and 425 of the Migration Act. It followed, so it was said, that the applicant was entitled to have the decision reviewed as a failure to observe the required procedures (s.476(1)(a)) and as an error of law (s.476(1)(e)).
Drummond J found (at 162) that the information given to the applicant before the hearing was sufficient to draw his attention to the relevant question, namely whether he belonged to a "dissident family". Moreover, the applicant had specifically addressed this issue. Accordingly, he "ha[d] not suffered the slightest prejudice from not being given the cable" (at 163). Despite making this finding, his Honour said (at 163) that it was "necessary to consider whether the tribunal's failure to draw [the applicant's] attention to be cable amounts to reviewable error within either s.476(1)(a) or (e)".
Drummond J then held that s.476(2)(a) explicitly denies an applicant for refugee status any entitlement to challenge an RRT decision on the ground that a breach of the rules of natural justice had occurred in connection with the making of the decision. His Honour said this (at 163):
"If the alleged omission by the tribunal is characterised as a want of natural justice, in my opinion, s.476(2)[(a)] requires the expression `error of law' in the more general provision, s.476(1)(e), to be interpreted as not extending to denials of natural justice. No other basis for characterising the RRT's omission as an error of law was suggested."
Drummond J then turned to the applicant's contention that the RRT's omission constituted a reviewable error within s.476(1)(a) of the Migration Act. After considering the language used in s.420, his Honour concluded (at 164-165) that the statutory duty (under s.420)
"must, therefore, I think, be limited to a duty to make a determination whether the statutory criteria are satisfied in accordance with procedures that will ensure that the real issues relevant to the
determination are identified and considered."
His Honour continued as follows (at 165):
"I have difficulty in finding any distinction between such procedures and the requirements of natural justice. To so read s.420(2)(b) means that it adds little to the duty cast by s.420(1) on the tribunal in carrying out its functions under the Act to pursue the objective of providing a mechanism of review that is fair and just. But that seems to me to be the effect to be given to s.420(1) and (2)(b). I do not read s.425 as cutting down the obligation cast by s.420 on the tribunal to comply with the principles of natural justice or procedural fairness: rather does s.425 prescribe what has to be done in order to meet the inherently flexible requirements of procedural fairness or natural justice where the tribunal decides that it cannot dispose of the matter `on the papers' under s.424.
Since natural justice is `not concerned with the merits of a particular exercise of power but with the procedure that must be observed in its exercise' (Kioa v West, per Brennan J [(1985) 159 CLR 550] at 622), s.476(1)(a) would be apt to empower the Federal Court to review a judicially reviewable decision of the RRT on the ground that a breach of the rules of natural justice occurred in connection with the making of a tribunal decision; but s.476(2)(a) excludes a breach of the rules of natural justice as a ground of review of RRT decisions.
There thus appears to be a conflict between s.420, in so far as it imposes on the RRT an obligation to comply with the principles of natural justice or procedural fairness in carrying out its review functions, and s.476(2), which expressly denies to the Federal Court jurisdiction to review a decision of that tribunal on the grounds that a breach of the rules of natural justice have occurred in connection with the making of the tribunal decision."
Drummond J next referred to a number of cases which have discussed or referred to the operation of s.420, s.476(1)(a) and s.476(2)(a): Velmurugu v Minister for Immigration and Ethnic Affairs, 23 May 1996, Olney J, unreported; Zakinov v Gibson, 26 July 1996, North J, unreported; Singh v Minister for Immigration and Ethnic Affairs, 18 October 1996, Lockhart J, unreported; Asrat v Minister for Immigration and Ethnic Affairs, 23 August 1996, O'Loughlin J, unreported. Drummond J expressly declined to follow the opinion expressed by O'Loughlin J in Asrat that, if information adverse to the interests of the applicant comes to the notice of the RRT, but the RRT fails to give the applicant an opportunity to comment on it, the RRT's decision is open to review under s.476(1)(e), although not under s.476(1)(a). Drummond J considered (at 166) that it was
"not possible to avoid recognising that such a deficiency is nothing more nor less than a breach of one of the fundamental rules of natural justice and s.476(2)(a) precludes review on such a ground."
Drummond J noted that it was clear from the Explanatory Memorandum that the code of procedure, now contained in Subdivision AB of Division 3 of Part 2 of the Migration Act (ss.52 ff), is intended to displace entirely the rules of natural justice from the procedures involved in dealing with visa applications. He went on to observe that the drafter of the Explanatory Memorandum had mistakenly assumed that a failure to observe the code of procedure would provide a ground for judicial review in this Court. The assumption was mistaken because the code of procedure binds only the initial decision-maker, not the RRT, and the decision of the initial decision-maker is not itself judicially reviewable (see s.475(2)(d)). The decision of the RRT is judicially reviewable, but the RRT is not bound by the code.
Drummond J summarised (at 168) the resultant position as follows:
"Despite the belief of those responsible for the new provisions, s.476(1)(a) cannot provide a foundation for the judicial review of an RRT decision on the ground that the code of procedure has not been followed. But subject only to this particular failure of the 1992 amendments to give effect to the intentions of those responsible for their introduction, the parliament has, I think, imposed on the RRT an obligation to comply with the rules of natural justice but has denied any remedy to a party for a breach by the tribunal of those rules (unless, as is the case with s.425(1)(a), the Act or the regulations themselves specify a particular aspect of the rules of natural justice with which the tribunal must comply, in which case a failure to comply with that prescription would be reviewable under s.476(1)(a))".
I have set out the reasoning of Drummond J at some length because I consider, with respect, that the judgment carefully analyses the questions of construction to which the relevant provisions of the Migration Act give rise. To the extent that Drummond J's reasoning concerning the relationship between the relevant provisions (ss.420, 476(1)(a), 476(1)(e) and 476(2)(a)) forms part of the ratio decidendi of Thanh Phat Ma v Billings, I would follow the decision unless I thought it was clearly wrong (which I do not): see Bank of Western Australia Limited v Commissioner of Taxation (1994) 55 FCR 233, at 255, per Lindgren J and authorities cited there. While Drummond J disagreed with dicta of O'Loughlin J in Asrat, his Honour's analysis in Thanh Phat Ma v Billings is not inconsistent with any prior decision of the Court, in particular any of the decisions which are referred to in his Honour's judgment.
It is arguable whether, in view of Drummond J's findings that the applicant suffered no prejudice from not being given the cable,
his analysis forms part of the ratio decidendi of the case. I do not think that there is any need to resolve this question. In my opinion, Drummond J's conclusions on the construction question should be followed unless and until the Full Court or the High Court decides otherwise.
The second case on which the respondent relied, Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474, was somewhat different. The grounds relied on by the applicant to challenge the decision of the RRT (or at least those for which there was a factual basis) did not include anything that could be described as a breach of the rules of natural justice. Hill J made the following comment (at 485):
"The references, however, to fairness and justice in s.420 must be read subject to the provisions of s.476(2) so that, if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded, notwithstanding the terms of s.420. This so narrows the ambit of s.420 as to leave little scope for its operation, but that is not to say s.420 has no role at all."
While his Honour appears not to have been referred to Thanh Phat Ma v Billings, his comments lend support to the conclusion reached by Drummond J.
It follows from the analysis in Thanh Phat Ma v Billings that the applicant must fail in the present proceedings. The claim that the RRT took into account information adverse to the applicant's case without affording him an adequate opportunity to comment, is clearly an allegation that the RRT breached the rules of
natural justice. A similar allegation was so regarded by Drummond J in Thanh Phat Ma v Billings. Indeed, the particulars relied on by the applicant in the present case were originally pleaded as particulars to a claim that the RRT had breached the rules of natural justice in connection with the making of the decision.
In this connection, it does not matter whether the applicant seeks to invoke paragraphs (a) or (e) of s.476(1), or whether he relies on both provisions. If the ground relied on to challenge the decision is a breach of the rules of natural justice, s.476(2)(a) prevents the Court granting relief. The position may be different, as Drummond J accepted in Thanh Phat Ma v Billings, if the alleged breach is of a particular statutory requirement (such as s.425(1)(a)) with which the RRT must comply. But no allegation of this kind is made in the present case.
Mr Clarke, who appeared for the applicant, argued that this case is distinguishable from Thanh Phat Ma v Billings, because the RRT represented to the applicant that he would have an opportunity to comment on adverse information the RRT might take into account. In my view, the presence of this element in the case does not suffice to distinguish it from Thanh Phat Ma v Billings. If the allegations were to be made out, the consequence is that the RRT would be held to have breached the rules of natural justice. This is the way the authorities have treated such an allegation. For example, in Century Metals and Mining NL v Yeomans (1989) 40 FCR 564 (FCA/FC), the Court considered a claim
that a Ministerial promise, to carry out an independent, impartial and thorough assessment of certain proposals, had not been honoured. The consequences of the Minister's failure were dealt with under the heading "natural justice" and in the context of the principles relating to legitimate expectations: see at 588 ff, esp at 592-593. It is worth noting that, when Mr Clarke first sought to amend the application to plead the alleged failure of the RRT to honour its representations, the proposed amendment took the form of additional particulars to the claim that the RRT had breached the rules of natural justice.
In my view, it is not open to the applicant to seek relief under either s.476(1)(a) or s.476(1)(e) of the Migration Act on the grounds pressed on his behalf by Mr Clarke. Those grounds amount to claims that the RRT breached the rules of natural justice. Section 476(2)(a) of the Migration Act prevents the Court granting the relief sought by the applicant. His application must therefore be dismissed.
Was There A Breach of the Statutory Duty to Act Fairly?
In the event that this matter goes further, and a different view is taken of the statutory scheme, it is appropriate to consider briefly whether the applicant's claims are well-founded. On this hypothesis, the question is whether the RRT breached the obligations imposed on it by s.420. Mr Clarke did not suggest that the content of this statutory obligation was any different from the requirements of procedural fairness that would have applied to the RRT any event.
In the further amended application, the applicant identified a number of documents that were said to be adverse to the applicant, in respect of which he was not given an opportunity to comment. Mr Clarke conceded that several of the documents referred to in the pleadings had in fact been put to the applicant by the RRT. Nothing further need be said about these. However, Mr Clarke maintained the applicant's position in relation to several categories of documents.
The principles to be applied in a case such as this were considered by Wilcox J in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100. (His Honour's observations were not affected by the appeal: Taing and others v The Minister for Immigration and Ethnic Affairs, 22 December 1994, unreported). In that case, a claimant for refugee status complained about the non-disclosure of certain documents. Wilcox J said this (at 128-129):
"Counsel for the respondent accept that the obligations of natural justice applied to the process upon which the delegates were engaged. There is some question about the extent of those obligations. Counsel for the applicant rely on the words of Brennan J in Kioa v West (1985) 159 CLR 550 at 629:
`Nevertheless in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made.'
Mason J, at 587, expressed the relevant principle in narrower terms:
`But if in fact the decision-maker intends to reject the application by reference to some consideration personal to the applicant on the basis of information obtained from another source which has not been dealt with by the applicant in his application there may be a case for saying that procedural fairness requires that he be given an opportunity of responding to the matter.'
I do not read Mason J as necessarily disagreeing with Brennan J's formulation. As with any reasons for judgment, what was stated by his Honour must be read in the context of the case. The critical allegation withheld from Mr Kioa related to his personal behaviour; so it was natural for Mason J to refer to a `consideration personal to the applicant'. In another case the critical matter may not be personal to the affected person, but one which, in fairness, that person should be given an opportunity to address. In principle, as it seems to me, there is no reason to draw a distinction between information about the personal conduct or affairs of an affected person and other information that is pertinent to the decision, credible and significant. I leave aside information of public notoriety, of which the affected person may be taken to be aware."
I accept that this passage correctly states the principles to be applied.
The 1978 Meeting of the Eleventh Central Committee
The RRT accepted as credible the applicant's claims that he and his family suffered persecution in the past because of their background as perceived members of the "exploiting class". However, the RRT did not accept that these past difficulties, in themselves, indicated that the applicant would have a real chance of suffering persecutory treatment in a Convention sense. The RRT cited two sources to support the proposition that the Cultural Revolution and its associated policy of "class struggle" had been formally repudiated in 1978 at the Third Plenary Session of the Eleventh Central Committee of the Communist Party of China. The sources cited were DFAT, Country Profile - China (June 1994), at 28 and M. Goldman, Sowing the Seeds of Democracy:
Political Reform in the Deng Xiaoping Era (Harv. UP, 1994), at 28.
The applicant was, however, alerted to the need to address the effect of the 1978 proceedings of the Eleventh Central Committee. The delegate's report, of which the applicant received a copy, specifically stated that she gave weight to advice from the DFAT that the policies prosecuted during the Cultural Revolution were formally repudiated in 1978 by the Eleventh Central Committee. That the applicant understood he had to address the point is shown by his submissions of 16 November 1993. He disputed that the 1978 proceedings had produced the effect claimed by the delegate and he supported his case by reference to reports of Amnesty International and other documents.
It is clear that the applicant understood the point he had to meet and is equally clear that he availed himself of the opportunity to meet it. The fact that he was not provided with a copy of the two sources was not unfair and did not constitute a breach of s.420 of the Migration Act.
Educational Policies
The RRT reached the following conclusion about whether the applicant had been persecuted in his workplace at the time he left China:
"While I accept that the Applicant's advancement in his career may have been hindered due to discrimination on the grounds of his family background and political views, nevertheless, I am unable, on the evidence before the Tribunal, to find that such
discrimination constituted persecution at the time that he departed China. Although he had not attained a more senior level as a teacher despite his years in the profession, it is not unreasonable to regard his situation as adequate in view of his age, lack of professional qualifications, and the changes in China's educational policies which would have favoured younger and more highly-trained teachers."
Prior to reaching this conclusion, the RRT quoted from a research paper by Lin-nei Li and others, Studies in Comparative Education: The People's Republic of China (DEET, Research Paper No.5, 1991). The extracts referred to general work conditions and career prospects for school teachers in China.
The RRT found that the applicant worked as a teacher at a technical school in Shanghai until he left China in April 1990. There was evidence of his age and professional qualifications. The RRT accepted that his career advancement had been hindered because of discrimination associated with his family background and political views. The issue was whether the discrimination he had experienced constituted persecution at the time he left China. In these circumstances, the extracts from the research paper were by no means uniformly unfavourable to the applicant's case, and, in any event, were of marginal relevance to the conclusion reached by the RRT on this issue. I do not think that the extracts can be characterised as "adverse information that is credible, relevant and significant to the decision to be made".
Returning Dissidents
The RRT accepted the proposition that assurances given by the Chinese authorities, that returning students who had taken part in pro-democracy activities would not be punished, were to be treated cautiously and that not all persons who had engaged in pro-democracy activities could return with safety. However, the RRT relied on Australian Embassy and DFAT cables to support a finding that the Chinese authorities adopt a different approach to persons currently active in the pro-democracy movement, in contrast to their attitudes towards those who participated in the events of 1989. The applicant complained of this reliance.
I do not think the applicant's complaint is well-founded. In the course of the hearing, the RRT member specifically put to the applicant the text of a DFAT advice which suggested that the Chinese Government was taking a tough stand against those who actively dissent when they return to China. Moreover, the member expressly put to the applicant the distinction ultimately adopted in the RRT's reasons. The applicant gave his response at the hearing over about six pages of the transcript.
The precise point was, therefore, put to the applicant and he was given an opportunity to respond at the hearing. Indeed, the same point had been raised in substance by the delegate in her report, which identified the cables she had available to her on this issue. The cables and advices were all to the same effect. The applicant addressed the significance of his involvement in Shanghai's pro-democracy movement in 1989 at some length in his written submissions, and sought to explain that his involvement was likely to lead to persecution on his return to the PRC. In these circumstances, there was no unfairness to the applicant by reason of the RRT failing to provide him with copies of the text of all cables or advices on which it relied on this issue.
The Applicant's Profile
The applicant claimed before the RRT that, as an academic or intellectual, he was at greater risk of persecution than an ordinary citizen. The RRT cited a paper which warned that the Communist Party's fundamental attitude towards those who might influence the younger generation had never changed - that is, the official attitude was one of suspicion. The paper stressed that a harsh view might be taken of those who are seen to engage in manipulation of students, particularly academics or intellectuals who express critical opinions publicly. No complaint was made by the applicant about the use of this material, presumably because the paper was consistent with the case he presented to the RRT.
However, the applicant did complain about the RRT's use of a number of DFAT cables. In substance, these cables reinforced the point that the Chinese authorities were not concerned with mere participation in the 1989 pro-democracy movement, by intellectuals or others, but with whether returnees intended to oppose the government in an effective and organised way after their return to China. Several of the cables had been identified in the delegate's report. The delegate accepted the applicant's claim that he encouraged students to participate in pro-democracy demonstrations, but found that his subsequent treatment by the authorities indicated that he was at no risk of persecution. The delegate also specifically referred to DFAT advice that mere participation in pro-democracy activities did not normally lead to serious ramifications.
The applicant's case was that he had organised and led student demonstrations in 1989 and that he feared persecution as a result of those activities. One of the points he had to meet was that the authorities were not concerned with the many hundreds of thousands of people who had participated in demonstrations, unless they were likely to engage in organised activities on their return to China. That point was raised in the delegate's report and was again put squarely to the applicant at the oral hearing. He was given an opportunity to elaborate on his contentions.
In the result, the RRT found that, on the applicant's own account, the measures taken against him neither amounted to persecution, nor did they indicate that he was regarded as someone who had led public opinion. In my view, the substance of the material on which the RRT relied was made known to the applicant and he was given a fair opportunity to respond to it.
Mr Clarke also contended, as I understood him, that the distinction drawn in the China Country Profile, between "education through labour" (a form of re-education) and "reform through labour" (a more severe penalty reserved for serious offenders), was not put to the applicant. However, the distinction was clearly put to the applicant during the hearing and the applicant asked to comment on it. There was no unfairness to him in this respect.
Other Matters
The remaining complaints can be dealt with briefly. A complaint was made about the use of cables to show that the fact that an illegal deportee had applied for refugee status would not of itself lead to harsh treatment. Again, the point was put directly to the applicant, by reference to a DFAT submission, during the hearing. The issue had been addressed in some detail in the applicant's written submission.
The applicant complained about the use of a DFAT cable concerning the significance in China of resorting to bribes or use of personal contacts. But the DFAT advice had been specifically referred to by the delegate and had been addressed in the applicant's written submission. Similarly, the substance of material relating to the opening of mail in China had been referred to by the delegate in her report.
The Representations
In my view, the statements made by the RRT in the course of the hearing do not add anything to the applicant's case that he was denied procedural fairness. Of course, representations made by decision-makers, may give rise to legitimate expectations on the part of an applicant or claimant. If those representations are not fulfilled, the consequence is likely to be that the decision-maker has breached the requirements of procedural fairness.
However, it is necessary to construe what was said by the RRT in context. In his opening remarks, the RRT member made it clear that he was explaining or summarising the "rules of natural justice". He did not say that he would put to the applicant the text of each and every document on which he might ultimately rely. He said that "information" adverse to the applicant's case would be put to the applicant for comment. It is clear enough that he was referring to information derived from a variety of sources, not the sources themselves. I do not think that the statements made by the RRT member could reasonably be understood as conveying or intended to convey that the RRT would comply with more onerous requirements than those imposed by s.420 of the Migration Act or under the rules of natural justice. I have taken into account that the RRT member's brief closing comments were expressed a little more loosely, but they were clearly intended to refer back to what had already been said.
Conclusion
The application must be dismissed, with costs (including reserved costs).
I certify that this and the preceding 23 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.
Associate:
Dated: 17 April, 1997
Heard:2 April, 1997
Place: Sydney (Heard in Melbourne)
Decision:17 April, 1997
Appearances: Mr P.H. Clarke, instructed by Law Partners, Solicitors, appeared for the applicant.
Mr T. Cavanough QC, instructed by the Australian Government Solicitor, appeared for the respondent.
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