NANY of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCAFC 428

FEDERAL COURT OF AUSTRALIA

NANY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 428

MIGRATION – application for protection visa refused – application for extension of time to file and serve notice of appeal – unsuccessful application to obtain review of the merits and factual findings of the RRT.

Migration Act 1958 (Cth)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed

NANY OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1234 OF 2002

BLACK CJ, BEAUMONT & MADGWICK JJ
20 DECEMBER 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1234 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NANY OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	BLACK CJ, BEAUMONT & MADGWICK JJ
DATE OF ORDER:	20 DECEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to file and serve a notice of appeal be allowed.

2.The draft notice of appeal dated 17 November 2002 be treated as the appellant’s notice of appeal.

3.The appeal be 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	N 1234 OF 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	NANY OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	BLACK CJ, BEAUMONT & MADGWICK JJ
DATE:	20 DECEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

INTRODUCTION

1. The appellant is a citizen of the People’s Republic of China.  In evidence before the Refugee Review Tribunal (“the Tribunal”) the appellant claimed in essence, that he is entitled to claim protection because he has practised Falun Gong since 1997 and, accordingly, is on the “wanted” list and, he fears, will be placed in a labour camp and will be otherwise persecuted by the Chinese authorities if he were returned to China.

2. The appellant applied to the Court on 9 July 2002 for judicial review of a decision of the Tribunal made on 30 May 2002, affirming a decision of the Minister’s delegate not to grant a protection visa.

3. In his application for judicial review, the appellant’s complaints about the Tribunal’s decision were stated as follows:

   “1.The RRT found that the applicant had fabricated his identity as [name as claimed provided] from China and of his continuing problems with the authorities due to his association with Falun Dafa.  In making this finding, the RRT ignored parts of the applicant’s claims in the statement attached to his application for a protection visa submitted on 23 April 2001, and in his oral hearing with the RRT on 9 May 2002.  In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is [name as in passport provided] rather than [name as claimed provided] and give [sic] rise to jurisdictional error.

   2.The RRT has failed to accept the applicant’s claim that he is a genuine Falun Gong practitioner since May 1997.  The RRT’s finding that any prospect of adverse attention from the authorities on the basis of this activity was remote was vitiated by jurisdictional error.”

4. A Judge of the Court dismissed the application ([2002] FCA 1347) on 28 October 2002.

5. On 19 November 2002 (that is, one day after the twenty-one day period for filing a notice of appeal had expired), the appellant filed and served an application for an extension of the time to appeal.

6. The grounds for the extension application are, in essence, that although the primary Judge’s reasons were given orally on 28 October 2002, the appellant had to rely on a brief explanation of them by an interpreter and that the appellant needed to see the Judge’s written reasons “to prepare a thorough submission for appeal”.

7. The Minister opposes the extension application contending, inter alia, that the discretion whether to extend time should be exercised adversely to the appellant on the ground (at least) that any appeal would not have any reasonable prospect of succeeding.

8. In order to understand the Minister’s contention, it will be necessary to summarise both the Tribunal’s and the primary Judge’s reasons and then to explain the proposed grounds of the appellant’s intended appeal.

   THE TRIBUNAL’S REASONS

9. In the course of describing the appellant’s claims and evidence, the Tribunal said:

   “Personal and travel details

   The applicant, [name in passport] is a 43-year old citizen of China.  He was born in Fuchuan city in Guang Xi Province.  The applicant underwent twelve years of education [from 1967-1979] and then from 1995-2001 was a technician at a landscaping company.  He travelled to Australia on a passport issued by the People’s Republic of China on 27 April 2000 and valid until 26 April 2005.  The applicant resided at the same residential address from birth until April 2001 [when he departed for Australia].  The applicant travelled on a Temporary Business visa.”

10. In the course of describing its hearing, the Tribunal said:

    “The Tribunal asked the applicant if the details in his applications both to the Department and to this Tribunal are true and correct to the best of his knowledge and belief.  The applicant stated that they are true and correct.

    The Tribunal asked the applicant if he has any identity documents supporting his claim to be [name as claimed]?  The applicant stated that he does not have any documents at the present time.

    The Tribunal asked the applicant why he made no mention of his claimed ‘true identity’ in his application to the Department of Immigration?  The applicant stated that he was using the passport but he did tell the agent.  He stated that maybe the agent did something wrong.

    The Tribunal observed that according to his application for refugee status he obtained his passport legally and now he is claiming that he obtained it illegally.  The Tribunal asked the applicant if he can explain this inconsistency?  The applicant stated it was illegal because he could not use his real name.  The Tribunal asked the applicant why he lied to the Department of Immigration?  The applicant stated that he has a passport which he used to apply for refugee status.  He stated that his [sic] did provide his real name and date of birth.  The Tribunal noted that the details in his application form are the same as the passport and there is nothing to suggest that he is no-one other than [name in passport].  He stated that he was put on the wanted list.  He stated that he obtained a passport through a friend.

    The Tribunal asked the applicant to state his residential address in China.  The applicant stated that his address was Ping He Country, in Fujian province, Jui Feng town, Xia Pin Village number 14.  The applicant stated that it was his place of birth.  The Tribunal asked where he actually lived?  The applicant lived in Unit 602, Yikang Apartments in Longtian town, Fujian City from 1988-1997.  He sta[y]ed there occasionally.”

11. The Tribunal went on to describe an exchange of correspondence between the Tribunal and the appellant in May 2002 (referred to in the trial judge’s reasons at [13] – [17]) in which the Tribunal sought clarification of several aspects of the appellant’s claims, including his identity.

12. In expressing its findings and reasons on the appellant’s credibility, the Tribunal said:

    “The Tribunal is not satisfied with the applicant’s credibility.  There are significant inconsistencies between his claims to the Department of Immigration and the Tribunal and further inconsistencies arose at his Tribunal hearing.  The Tribunal finds ...  the applicant to be an unreliable witness, who has fabricated his claims with a view to promoting a claim for refugee status.  The Tribunal cannot give weight to the applicant’s claims or evidence.”

13. On the question of the appellant’s identity, the Tribunal said:

    “The [applicant] has claimed to the Tribunal that his true identify is not [name in passport], but rather he is ‘[name as claimed]’.

    The applicant made no mention of his ‘true identity’ in his application to the Department of Immigration. The applicant’s explanation for this significant omission of providing his ‘true’ identity are to the effect that he had no identity documents to prove his ‘true’ identity [[name as claimed]] and yet to date the applicant has still not provided any official identity documents to support this claim.  This is a serious claim to make and in the absence of any identity documents to support this claim the Tribunal cannot accept the applicant’s unsupported allegation, nor is the Tribunal satisfied that the applicant’s explanation for this most significant of inconsistencies is reasonable.

    The Tribunal is satisfied on the evidence before it that the applicant is [name in passport].  The applicant submitted a copy of the identity page of his passport in the name of [name in passport], in which a photograph of the applicant appears.  It also notes that according to his application for a protection visa the applicant obtained his passport legally and in the normal manner.  The Tribunal cannot be satisfied that the applicant is indeed ‘[name as claimed]’ and further notes that in a letter submitted from his wife to the Tribunal it is addressed to [name in passport].  The Tribunal does not accept that the applicant used a false identity to depart the country.  The Tribunal finds that the applicant has raised this claim – of using a false identity to leave the country – as a means to enhance his claim to be a refugee.  It gives this claim no weight.”

14. In rejecting the appellant’s claim, the Tribunal provided the following “summation”:

    “At the conclusion of the hearing (9 May 2002) the Tribunal pointed out to the applicant that there were numerous contradictions in his claims at various stages in the refugee process, and noted the overall implausibility of his claims and their lack of consistency.  The applicant was given the opportunity to clarify the contradictions regarding the various claims in a letter to him on 9 May 2002, and did so through his adviser in a letter dated 22 May 2002.  The Tribunal has given careful consideration to these responses, but cannot be satisfied that ... they have clarified the significant and numerous contradictions and implausibilities in any meaningful way.

    Considering the applicant’s mendacity on not only the essential elements of his claim, but other aspects of his claims discussed above, as well as ... the numerous inconsistencies in his claims and evidence, the Tribunal finds that the claims of harm, and threats of harm, by the Chinese authorities to be a fabrication.  Given the significant adverse findings on credibility in relation to the applicant, the Tribunal cannot be satisfied that the applicant has a real chance of being persecuted for a convention reason in China in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded.”  (Tribunal’s emphasis)

    THE PRIMARY JUDGE’S REASONS

15. The primary judge noted (at [3]) that the essence of the appellant’s complaint was that the Tribunal found that the appellant was in fact the person identified in a passport under which he entered Australia, notwithstanding that at the Tribunal hearing the appellant claimed to be somebody else.

16. His Honour also noted that the appellant complained that the Tribunal had ignored material which he had placed before it and that this failure amounted to a “jurisdictional error”.

17. His Honour, having listened to the taped record of the Tribunal hearing, at which the appellant, through an interpreter, gave evidence, found that the Tribunal, in its reasons, had described the course of the hearing with substantial accuracy, and said (at [8] and [9]):

    “The applicant said to the Tribunal that he was able to obtain this passport illegally by the payment of a bribe and the payment of other moneys.  The Tribunal noted that the applicant had not raised this identity question in his original claim.  It was said by the Tribunal to be an important consideration that the applicant now appeared to be changing his story.  The Tribunal, early in the hearing, asked the applicant if he had any identity documents supporting his claim to be the person other than the person identified in the passport.  The applicant told the Tribunal that he did not have any documents which the Tribunal took, I think, and fairly so, to be an answer that he did not have any documents with him in Australia.  The applicant did say that he had told his agent, previously acting for him, that he was not the person identified in the passport. 

    There were other matters which concerned the Tribunal in connection with the consistency of what the Tribunal was being told with the information previously provided to the Department.  It is unnecessary for me to deal with these matters in detail.  It is sufficient to say that the Tribunal made findings of credit in the matter not accepting the evidence of the applicant in significant respects.  However, it is fair to say that the question of identity was crucial to the case and the findings by the Tribunal.”

18. The Judge went on to remark that by letter dated 9 May 2002, written pursuant to s 424A of the Migration Act 1958 (Cth) (“the Act”), the Tribunal sought information from the appellant concerning a number of possible inconsistencies in information previously provided by him. On 22 May 2002, an immigration agent sent a response in the form of a typed statement signed by the appellant.

19. The Judge (at [20]) said:

    “Factual findings and the ultimate decision as to whether Australia owed protection obligations to the applicant are matters for the Tribunal hearing the matter afresh.  The role of this Court is strictly one of review for legal error.  It is not the role of this Court to hear again the matter afresh.  The application for review can only be made, and I take it to have been made, under s 39B of the Judiciary Act 1903 (Cth) which permits this Court to deal with the matter and, in effect, set the decision aside if the Tribunal has made what is termed a jurisdictional error.”

20. After explaining the concept of “jurisdictional error”, his Honour explained how s 474 had effect. His Honour said (at [25] and [26]):

    “The effect of widening the authority of the Tribunal is that, subject to constitutional limitations and subject to other provisions in the Act so important in their interpretation as to prevail over s 474, the decision maker is in fact authorised by a law of the Parliament to deal with the subject matter, making such mistakes as may occur as long as he or she approaches the task in good faith. Thus, using this framework of analysis, the decision maker is authorised by an Act of Parliament to misunderstand the issues and to commit other legal and factual errors as long as he or she acts in good faith.

    With the introduction of the clause in question, that is s 474, what previously may have been seen to be error no longer is error because of this widening of authority. Thus, in a case such as the present, which simply depends upon the acceptance of the applicant's version of events, the only real basis for attack on the decision will be an assertion that the Tribunal was not bona fide.”

21. Having listened to the tape recording, the Judge concluded that any allegation of a lack of good faith could not be made out and that the appellant was attempting, impermissibly, to invite the Court to re-hear the facts.  Accordingly, his Honour dismissed the proceeding.

    THE APPLICATION FOR EXTENSION OF TIME

22. Since the appellant is unrepresented, was only one day out of time and has explained why he was out of time, and in the absence of any apparent prejudice to the Minster, we would allow an extension in this case. 

23. We turn then to the appeal itself.

    THE GROUNDS OF APPEAL

24. The grounds stated in the draft notice of appeal (apparently referring to the Tribunal’s decision) are:

    “(1)The procedures that were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

    (2)The decision involves errors of law.”

25. These grounds were elaborated in the affidavit of the appellant sworn on 17 November 2002, as follows:

    “...

    4.However, I believe that the decision of the RRT is infected by error in the following ways:

    (a)The RRT found that I had fabricated my claims with my continuing problems with the authorities due to my association with anti-government organizations.  In making this finding, the RRT ignored parts of ... my claims in the statement attached to my application for a protection visa submitted to the Department of Immigration.  In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that I am not entitled to a protection visa and give rise to jurisdictional error.

    (b)The RRT has failed to accept my claim that I am a genuine anti-government practitioner in the People’s Republic of China.  The RRT’s finding that any prospect of adverse attention from the authorities on the basis of this activity was remote was vitiated by jurisdictional errors.

    (c)The above jurisdiction errors [sic] affected the exercise of power of the RRT.”

26. The appellant restated his contentions in support of the appeal in his written submission dated 6 December 2002 as follows:

    “1.The Refugee Review tribunal has ignored my true identity as [name as claimed] instead of the [name in passport] identified in my passport.  I obtained the faked passport illegally by the payment of a bribe and the payment of other moneys.  In the faked passport, my place of birth is identified as ‘Guangxi’.  In fact, I am a native of Fujian.  I have strong accent of Fujian dialect which can uniquely prove my identity as a Fujian native.  The strong accent of my hometown dialect can never change.  So if I am interviewed by an expert in Chinese dialects, I will be definitely identified as a Fujian native.  As the question of identity is crucial to my case, I have to make it clear that I am not the person identified in the passport.

    2.I have been prevented from access of legal assistance and, due to my inexperience of law, have been in difficulty to understand the reasoning and decision on my application.  All I have known is that my claim[] was again refused by the Federal Court.  Because the recognition of identity has yet not been corrected, I believe the decision is incorrect.  Hence I claim that my case shall be reopened and my true identity be recognized as [name as claimed].”

    CONCLUSIONS ON THE APPEAL

27. The grounds of appeal set out in the draft notice of appeal relate to the decision of the Tribunal, and not to that of the primary judge.  We assume, however, that the appellant intended to argue that the primary judge erred in failing to find that the exercise of the Tribunal’s power was vitiated by jurisdictional errors in the manner alleged.

28. In essence, the appellant alleges that the Tribunal erred in failing to consider relevant material placed before it and reached a decision that it could not have reasonably reached.  Specifically, the appellant refuted the findings of the Tribunal with respect to his identity.  The proposed grounds of appeal essentially replicate those considered by the primary judge.

29. The appellant did not appear before the Full Court and no further submissions were therefore made in support of this appeal.

1. We see no reason to disturb the conclusions of the primary judge.  His Honour appropriately identified the role of the Court as one of review for legal error by the decision-maker, and made it plain the Court was not able to consider the matter afresh (at [20] and [29]).  The appellant’s submissions before both the primary judge and the Full Court requested essentially a re-consideration of the merits of the case.  It is not open to us, as it was not open to the primary judge, to disturb the findings of the Tribunal in this respect: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and at 291 – 292.

2. Moreover, the primary judge correctly identified the effect of s 474 of the Act (at [23] – [26]) such that the only possible basis for disturbing the Tribunal’s decision in this matter would be that it did not exercise its power in good faith. The appellant makes no such claim and, in any case, we see no reason to disturb the primary judge’s finding (at [27]) that it was not shown that the decision was reached by way of an exercise of power that was not bona fide.

3. The orders of the Court are:

   1.The application for extension of time to file and serve a notice of appeal be allowed.

   2.The draft notice of appeal dated 17 November 2002 be treated as the appellant’s notice of appeal.

   3.The appeal be dismissed, with costs.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated:             20 December 2002

Counsel for the Appellant:	The Appellant did not appear.
Solicitor for the Respondent:	A Markus, Australian Government Solicitor
Date of Hearing:	13 December 2002
Date of Judgment:	20 December 2002