Jiang Wen v Minister for Immigration & Ethnic Affairs

[1997] FCA 244

CATCHWORDS

MIGRATION  -  refugee  -  review of decision by Refugee Review Tribunal  -  scope of grounds of review under Migration Act 1958 (Cth) s476.

Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958 (Cth)

Dai Xing Yao v Minister for Immigration and Multicultural Affairs, Unreported (Full Court, Federal Court of Australia, 18 September 1996)
Whim Creek Consolidated NL v Colgan, Unreported (Federal Court of Australia, 18 July 1989

JIANG WEN v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NO WAG143 OF 1995

LEE J
PERTH
11 APRIL 1997

IN THE FEDERAL COURT )
OF AUSTRALIA        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO WAG143 OF 1995

B E T W E E N:           JIANG WEN

Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:  LEE J

DATE OF ORDER:      11 APRIL 1997

WHERE MADE:         PERTH

THE COURT ORDERS THAT:

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        )
WESTERN AUSTRALIA    )
DISTRICT REGISTRY    )
GENERAL DIVISION     )    NO WAG143 OF 1995

B E T W E E N:           JIANG WEN

Applicant

and

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

CORAM:    LEE J
DATE :    11 APRIL 1997
PLACE:    PERTH

REASONS FOR JUDGMENT

This is an application for leave to amend an "Application for an Order of Review" ("the original application").

The parties were invited to file written submissions in respect of the application.  The application has been determined on those submissions.

The original application seeks to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 26 October 1995 refusing the grant of a Domestic Protection (Temporary) Entry Permit to the applicant under the Migration Act 1958 (Cth) ("the Act"). The applicant is a Chinese national, who arrived in Australia on a student visa on 3 August 1991 and sought protection as a refugee on 21 February
1994.

Since 1 September 1994 the jurisdiction of this Court to review a decision of the Tribunal is as provided by Parliament in Pt 8 of the Act. Jurisdiction to deal with such an application under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") has been removed. (See: Dai Xing Yao v Minister for Immigration and Multicultural Affairs, Unreported (Full Court, Federal Court of Australia, 18 September 1996.)

The grounds for review specified in the original application are grounds provided by the ADJR Act and not the grounds provided in s476 of Pt 8 of the Act.

In a minute of an amended application the applicant seeks to delete the original grounds and to insert new grounds as follows:

"4.The Tribunal misdirected itself at law as to what may constitute a well founded fear of persecution.

...

5.The Tribunal erred in law in reaching a conclusion that the Applicant did not have a well founded fear of persecution against the weight of the evidence.

...

6.The Tribunal erred in law in reaching a conclusion that the Applicant did not have a well founded fear of persecution contrary to the facts as found by the Tribunal.

...

7.The Tribunal...accepting that the Applicant would be denied the freedom of speech to express his pro-democracy political views if he returned to China, erred in law in failing to consider, or to find, that denial of freedom of speech was capable of amounting to, or leading to, persecution in accordance with the 1957 Convention Relating to the Status of Refugees."

The particulars recited in the minute for grounds 4, 5 and 6 were identical and were treated as findings of fact made by the Tribunal.  The same "findings" were repeated in ground 7 as the matters to which the Tribunal had regard in "accepting" that the applicant would be denied freedom to express political views if he returned to China.

On their face, grounds 4 and 7 of the minute rely on the ground of review set out in para476(1)(e) of the Act, namely, that the decision involved an error of law. Grounds 5 and 6 either rely upon the same ground of review in which case they add nothing to the application, or seek to rely on para476(1)(d) of the Act, namely, that there was an improper exercise of power by failing to give proper weight to appropriate matters. (See: Whim Creek Consolidated NL v Colgan, Unreported (Federal Court of Australia, 18 July 1989.)

With regard to proposed grounds 4 and 7 as drawn in the minute, the case sought to be made on those grounds is that the Tribunal erred in law by failing to reach the only conclusion that it was permitted to reach on facts as found.
There is no error of law if the conclusion formed by the Tribunal is available on the material.

The particulars recite matters the Tribunal would be obliged to take into account along with other matters but on their face those findings are not facts from which the only conclusion that may be drawn is that the fear of persecution held by the applicant was well-founded. If the particulars recited were findings of fact, the Tribunal may have found in the terms submitted by the applicant but its failure to so find does not reveal a conclusion that is contrary to proven facts and, therefore, an error of law.

I am not persuaded that any purpose would be served in permitting the application to be amended as sought in grounds 4 and 7.

With regard to proposed grounds 5 and 6, improper attribution of weight is not an element of the ground of review provided in para476(1)(d). Unlike the equivalent provisions in the ADJR Act where the concept of proper exercise of power may extend to improper attribution of weight, para476(3)(g) makes it clear that para476(1)(d)
provides a right of review only for the abuses of power that are "covered" by paras476(3)(a-c) and improper attribution of weight is not so "covered".  It follows that the application must be dismissed.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.

Associate:
              Date:

SUBMISSIONS IN WRITING

Solicitors for the Applicant: Dwyer Durack
Solicitors for the Respondent: Australian Government Solicitor

Date of Judgment :  11 April 1997