Jie Sun v Minister for Immigration and Multicultural Affairs

[1999] FCA 1172

FEDERAL COURT OF AUSTRALIA

Jie Sun v Minister for Immigration & Multicultural Affairs [1999] FCA 1172

JIE SUN v
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1262 OF 1998

TAMBERLIN J

SYDNEY
30 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1262 OF 1998

BETWEEN:	JIE SUN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	TAMBERLIN
DATE OF ORDER:	30 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1262 OF 1998

BETWEEN:	JIE SUN Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN
DATE:	30 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant is a national of the Peoples Republic of China who arrived in Australia on 23 November 1996.  She was unsuccessful in obtaining a protection visa and on 12 January 1998 she sought review of the decision of the Minister’s delegate by the Refugee Review Tribunal (“the RRT”).  The hearing took place on 13 October 1998 and the decision was made on 22 October 1998 affirming the refusal.

2. The application to the court is based on two broad grounds. The first is there was a failure to observe the procedures required by s 430 of the Migration Act 1958 (Cth) (“the Act”), insofar as the RRT did not investigate a real possibility that the inconsistent claims by the applicant were the result of mental illness rather than untruthfulness. It is said that the RRT should have inquired to determine whether the admittedly contradictory statements arose from mental illness. The reasons are attacked because the RRT has, so it is said, without apparent foundation determined that mental illness or confinement for reasons of mental illness played no role in the applicant's difficulties. In developing this point it is further submitted there is a real possibility that the applicant has been persecuted by reason of her mental condition, though this was not originally raised. This is said to place her within a social group which is entitled to protection for a Conventional purpose. As I understand the argument, this latter matter was not pressed, the principal point being pressed in relation to this area was the failure to make an inquiry.

3. In aid of the submission, Mr Segal, who appears for the applicant, has pointed to the provisions also of section 427(1)(d) of the Act, which gives the RRT a discretion to require the secretary to arrange for the making of any investigation, or any medical examination, the RRT thinks necessary with respect for review, and to give to the RRT a report of that investigation or examination.

4. In relation to s 430, the argument turns on the provisions of subsection (1)(c) which requires the RRT, when making a decision on review, to prepare a written statement that sets out its findings on any material questions of fact. It is suggested that there was a failure to investigate and therefore make proper findings on the mental condition of the applicant.

5. In the course of its reasons for decision, the RRT pointed to contradictions in the applicant's evidence, which were considered significant, and then noted:

   “She claimed that she was confused and having mental problems but these explanations appeared to be improvised.”

6. It is also pointed out that under s 414 of the Act, the RRT is bound to review the decision and this means to conduct a review in accordance with law.

7. In my view, this ground has not been made out.  The RRT expressed the opinion that the applicant was evasive and misleading in her evidence and noted her claims that she was confused and having mental problems, but it nevertheless found that this difficulty arose from what it considered to be an improvisation of her position.  There was no independent evidence to the effect that there was any psychological confusion or difficulty or inability to present evidence.  Nothing appears in the written submissions that were before the RRT, nor is there anything apart from the claim recorded in the decision to indicate there was any kind of mental problem.  In order to assess whether there was a mental problem, it is obvious that the person having the advantage of direct observation and who is hearing the evidence being given is in a far better position to make an assessment than a court on judicial review.

8. It was, in my view, open to the decision-maker to form a view that the explanations were improvised and should not be accepted.  The question is one singularly for the decision-maker to make with the benefits of observation, which I have referred to above.  I do not consider that any obligation arose to seek medical examination or to conduct any inquiry into the mental state of the applicant.  There is no sufficient foundation in the evidence for coming to the view that there was any serious mental problem and there is an express finding to the contrary by the RRT member.

9. The second matter relied on concerned the well-known One Child Policy, which has been adopted and implemented by the People's Republic of China.  The applicant claims to have expressed vehement opposition to this policy, and it is said that this statement of opposition can amount to and should have been held to amount to an expression of political opinion.  It is also submitted that the evidence established that the applicant was dismissed from her job, and was unable to obtain employment, as a result of the position taken by her in relation to a court case and her general exposition of her position.

10. The RRT did not accept that the applicant was a credible witness in relation to this matter and indeed generally.  In the reasons for decision the RRT stated:

    “The applicant struck the Tribunal as being evasive and misleading.

    Nor did the applicant convince the Tribunal that her marriage broke down over the alleged court case.  This leaves the Tribunal concluding that, if the Applicant's claims as to the effects of the court case are so unreliable, the Tribunal should not necessarily rely on her word as to the terms of the case, its other outcomes or whether the case or its causes ever happened in the first place.”

11. The next paragraph continues:

    “The Tribunal considers itself justified to adopt this conclusion in view of the fact that the Applicant claims to have been strongly opposed to, and outspoken about the “One Child Policy” even before taking on the five year job of administrating its reportedly harshest features.”

12. This latter statement was considered by the RRT as being directly relevant to her credit and having rejected the applicant's claims as being factual there was no evidence that the outcomes suggested, namely the dismissal and the denial of employment, had been made out.  This being so, then the necessary element of persecution has not been made out.

13. It is true, as the cases have noted and as has been submitted in the written submissions, that a total denial of an opportunity to practice a profession or trade for which a person has been trained or educated can amount to persecution in some circumstances.  However, in the present case, in the light of the finding that there was no such denial, the applicant has failed on this ground of her application.

14. For the above reasons, I have reached the conclusion that the applicant has not established any reviewable ground.  The application should be dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             13 September 1999

Counsel for the Applicant:	Phillip Segal
Solicitor for the Applicant:	Coelho & Coelho
Counsel for the Respondent:	Justin Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 1999
Date of Judgment:	30 July 1999