Jian, Chen Qua v Minister for Immigration and Multicultural Affairs

[1997] FCA 1566

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG446 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	CHEN QUA JIAN Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGES:	WILCOX, EINFELD AND FOSTER JJ
DATE:	25 NOVEMBER 1997
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:   This is an appeal against a decision of Davies J dismissing an application by Chen Qua Jian for review of a decision of the Refugee Review Tribunal refusing his application for recognition of status as a refugee.  When the matter was heard by the learned primary Judge, Mr Jian represented himself.  This must have limited the assistance his Honour was able to obtain.  His Honour dealt with the matter in a judgment in which he said the issues raised before him seemed to be entirely matters of fact.

Matters of fact are, of course, for the Tribunal to determine subject only to the grounds of review that are set out in s 476 of the Migration Act 1958. Upon the further appeal to this Court, we have had the benefit of an appearance for the appellant by Mr P King of counsel. He has been able to take us through the extensive documents generated concerning Mr Jian since his arrival in Australia. Mr King put to us a number of matters, raising three separate grounds under s 476.

One of those grounds was actual bias by the Tribunal member.  This was not pressed when it was pointed out by Mr Beech-Jones, counsel for the Minister, that the ground had not been raised at first instance and, if it had been raised, it would have been open to his client to call the member who constituted the Tribunal in order to rebut the suggestion of actual bias.  In fairness to the Tribunal member, I should say my own view is that there is no warrant for any suggestion of actual bias in the way she handled this case. 

There was a suggestion of error of law, but the primary attack made upon the Tribunal's decision was that it constituted a denial of substantial fairness.  It was not suggested there was any procedural irregularity, rather that the reasoning was so faulty it could properly be regarded as a decision no reasonable person could have made and, consequently, denied substantial fairness.

Section 476(2)(b) of the Act excludes manifest unreasonableness as an express ground of review. However, it seems to me consistent with the decision of the majority of the Full Court of this Court in Eshetu v Minister of Immigration & Multicultural Affairs (1997) 145 ALR 621, that if material emerges that would lead a reviewing court to a conclusion the Tribunal had acted so irrationally, or had been so remiss in obtaining readily available significant information, that the decision might be characterised as manifestly unreasonable, this may constitute a ground of invalidity under the rubric of denial of substantial fairness. I have approached the matter on that basis and have considered the matters put to the Court by Mr King. It would be tedious to deal with all the matters in detail. It is sufficient for me to say I am unpersuaded there is any unreasonableness adhering to the decision or any denial of substantial fairness. Criticisms can be made of some aspects of the Tribunal's expression of reasons, but I do not think any of these criticisms go to the heart of the decision.

The fact of the matter is that the Tribunal member who handled this case did not believe the critical claims made by the appellant.  The appellant claimed he feared persecution on the ground of his religious belief, if he was returned to the Peoples Republic of China.  The Tribunal member accepted persecution on the basis of religious belief does occur in the Peoples Republic of China.  That was not the issue.  The issue was whether the appellant had demonstrated his association with the “underground” Catholic Church, as it was called, might attract persecution to himself.  The Tribunal member was unpersuaded about this.  She had the advantage of hearing the appellant give evidence and being able to put questions to him and evaluate his responses.  We do not have that advantage but we have been taken to the relevant transcript.  Having read it, I see no reason for concluding the Tribunal member's lack of satisfaction of Mr Jian's truthfulness in regard to the critical matters stemmed from any unreasonable attitude, or involved any irrational thinking, on her part, nor do I see any basis for criticism about the investigations she carried out.

In short, I see the matter much as Davies J did:  the only issue in the case is whether the right factual conclusion was reached.  Despite the fact we have had the benefit of a much more expansive and professional argument I see no reason to differ from his Honour's conclusion in that regard.  I would dismiss the appeal.

EINFELD J:  Applications for refugee status must necessarily be given extremely close attention because of the possible consequences of a wrong decision.  In this particular case, it is being asserted that if the appellant is denied refugee status he will be subjected to persecution of an unstated kind upon his return by reason of his pursuit of the Catholic faith.  There seems to be some suggestion that two of the appellant’s colleagues who have participated in the establishment of some informal unapproved Catholic church institution have already been sentenced to long terms of imprisonment.  By inference it seems to be suggested that the same fate may befall the appellant if he is returned.

On my reading of the papers, there is no reason at all to suggest that the decision of the Tribunal, confirmed by the learned Trial Judge, that no fear of persecution can be upheld was erroneous.  The matter is, of course, essentially a question of fact and, as the learned Presiding Judge has said, those are questions for the Tribunal.  I agree with his Honour that should it be able to be established that the Tribunal in some way gave completely wrong or inadequate attention to important facts or misconceived crucial questions, the matter may be capable of remedy by the Court despite the very limited statutory basis for the Court's intervention.

But in my view, no such situation arises here.  I think it was right that the assertion of actual bias was withdrawn by counsel for the appellant for I also can see no basis for such an assertion.  To the contrary, as it seems to me, the Tribunal gave careful and detailed comprehensive attention to all the matters which the appellant was raising and dealt with them appropriately.  It is important to observe also that the appellant arrived in Australia on false identity papers from Hong Kong claiming to have been working in Hong Kong, having arrived there for the first time in 1992.

If any of those facts were correct, that is, if he had in fact been in Hong Kong for four years prior to his departure from Australia, and if he had in fact been working in Hong Kong during all that period, the claim of refugee status really can be seen to have absolutely no substance at all as he certainly clearly did not leave his last place of abode and come to Australia because of any fear of persecution by the Chinese authorities on the grounds of his religious belief.  We have not really been told what the facts are in this regard but merely that the appellant fears that he will be persecuted on the grounds of his religious faith.  He was asked by the Tribunal whether he had been in touch with his parents while he had been in Australia and he answered that he had been and that no trouble had befallen them, yet the case appears to at least to some extent, turn on the fact that his parents started the whole unregistered or unapproved Catholic Church operation in the first place.  If they, as the instigators of this activity, have not been adversely dealt with by the authorities, it does not seem at all likely that any worse fate will befall the appellant. 

I agree that the appeal must be dismissed.

FOSTER J:  Mr King has said everything that could possibly be said on behalf of his client.  However, I am persuaded that the appeal cannot succeed.  I agree with the orders proposed.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            25 November 1997

Counsel for the Applicant:	P E King
Solicitor for the Applicant:	David Bell & Associates
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 November 1997
Date of Judgment:	25 November 1997