Li v Minister for Immigration and Multicultural Affairs

[1999] FCA 870

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs [1999] FCA 870

JIAN LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 1407 of 1998

BRANSON J
SYDNEY
25 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1407 of 1998

BETWEEN:	JIAN LI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	BRANSON J
DATE OF ORDER:	25 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The decision of the Refugee Review Tribunal be affirmed 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 1407 of 1998

BETWEEN:	JIAN LI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	BRANSON J
DATE:	25 JUNE 1999
PLACE:	SYDNEY

EX-TEMPORE REASONS FOR JUDGMENT

1. The applicant has sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate of the respondent to refuse the applicant a protection visa.

2. The applicant is a citizen of the People’s Republic of China (“the PRC”).  He is married and his wife and child remain in the PRC.  The applicant’s claim before the Tribunal to be entitled to a protection visa was based principally on his alleged activities in support of the independence of the Ningxia Hui Autonomous Region.  He also claimed that he feared persecution in the PRC because he is a Muslim.

3. The Tribunal, despite lengthy searches, was unable to find any evidence to support the applicant’s claim that there is an organised movement for the independence of Ningxia.  It was also unable to find any evidence to support the applicant’s claim that Muslims are persecuted in the PRC or prevented from practising their religion there.  Indeed, the Tribunal found considerable evidence to suggest to the contrary, and concluded that although there is, no doubt, official surveillance and some official control over Muslim affairs in the PRC, this falls well short of persecution and does not prevent Muslims in China from freely practising their religion.  On these bases alone the Tribunal was probably entitled to conclude that it was not satisfied that the applicant has a well-founded fear of persecution should he return to the PRC.

4. However, the Tribunal’s reasons for decision go further.  The Tribunal formed an adverse view of the applicant’s credibility based partly on his demeanour at the hearing before the Tribunal and partly on what it found to be the false and contradictory nature of some of his evidence.  The Tribunal member said:

   “The applicant’s credibility was so poor and the contradictions in his account so many that I am satisfied that his claims are not true, and I so find.”

   The Tribunal concluded that there is no real chance that the applicant will be persecuted in the PRC at the present time or in the foreseeable future for any Convention reason or reasons.  That is, it was not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to the PRC.

5. The decision of the Tribunal in these regards was sought to be challenged on this application on four bases.  First, that the Tribunal erroneously made adverse findings of credit upon which it based its decision.  Secondly, that the Tribunal did not apply an appropriate standard of proof in making adverse findings of fact or credit against the applicant.  Thirdly, that the Tribunal erred in failing to find that official surveillance and control over the practice of religion is capable of amounting to ‘persecution’ for the purposes of the Refugees Convention; and finally, that the Tribunal was actually biased against the applicant.

6. As to the first and second of these grounds, which were said to be grounds advanced under s 476(1)(e) of the Migration Act 1958 (Cth) (“the Act”), I am satisfied that the Tribunal’s adverse finding concerning the applicant’s credibility was reasonably open to it having regard to the evidence and other material before it. The applicant by his counsel contended that the Tribunal’s decision involved an error of law being an incorrect interpretation of the applicable law. The applicable law was identified as the common law rule that inferences should not be drawn that are not reasonably open. This submission, in my view, involves a misunderstanding of the s 476(1)(e) of the Act. In any event, I find that the material to which the Tribunal gave consideration was relevant and logically probative of the applicant’s credibility. It is not appropriate in this regard to examine each matter on which the Tribunal placed weight in isolation from the others for the purpose of determining whether viewed alone it would justify an adverse finding on credibility. The relevant criterion for the grant of a protection visa is the satisfaction of the relevant decision-maker. In determining whether it was satisfied that the applicant has a well-founded fear of persecution should he return to the PRC the Tribunal was obliged to have regard to all of the evidence and material before it.

7. As to the second ground, I do not accept that the reasons for decision of the Tribunal suggest that the Tribunal placed the applicant in the position of having to prove his assertions to the criminal standard or that the Tribunal’s use of the phrase “benefit of the doubt” suggests that it invoked a standard of proof of beyond reasonable doubt.  The expression “benefit of the doubt”, is commonly used by the Tribunal and reflects the fact that hearings before the Tribunal are not part of an adversarial process, and commonly, evidence in support of, or contradictory to, an applicant’s claim are not available to the Tribunal.

8. As to the third ground, I see no reason to conclude that the Tribunal acted on the basis that official surveillance and control over the practice of religion is incapable of amounting to persecution within the meaning of the Refugees Convention.  The Tribunal considered information from a wide range of independent sources as to the attitude of authorities in the PRC to the Muslim religion, and noted that neither the relevant Asia Watch reports, nor those emanating from Amnesty International, allege persecution or religious repression of Muslims in the PRC.  It found that Muslims in China are not prevented from freely practising their religion. This finding was plainly open to the Tribunal.

9. Turning to the fourth ground, there is no evidence at all to suggest that the Tribunal was actually biased against the respondent.  The allegation, in my view, should not have been made, and having been made, should not have been pressed in submissions.

10. In my view this is a case in which the applicant in reality seeks nothing more than review on the merits of the decision of the Tribunal. This Court is not entitled to undertake merits review of decisions of the Tribunal. I do not consider that any ground of review under s 476(1) of the Act has been identified in this case.

11. The decision of the Tribunal will be affirmed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             28 June 1999

Counsel for the Applicant:	Mr P. Segal
Solicitor for the Applicant:	Coelho & Coelho Solicitors
Counsel for the Respondent:	Ms F. Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 June 1999
Date of Judgment:	25 June 1999