Qui, Sun Zhan v Minister for Immigration & Ethnic Affairs

[1996] FCA 1192

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 346 of 1996

BETWEEN:	SUN ZHAN QUI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	5 JUNE 1996
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(rulings on evidence)
(ex tempore)

The applicant tenders documents and seeks to read three affidavits.  The documents are: (1) a notice to produce dated 20 May 1996 (served on 21 May 1996) and a response to it in the form of a computer print-out; and (2) a more recent notice to produce dated and served on 28 May 1996 and a response to it.

The first notice to produce seeks, in par 1, production of records, stored, as at the date of the notice, in databases maintained by the Department of Immigration and Ethnic Affairs (“the Department”)

“relating to:

(i)          Sun Jugu;

(ii)         Jugu Sun;

(iii)        Sun Jiang;

(iv)        Jiang Sun; or

(v)         Sun Zhan Qui.

including but not limited to records relating to any visa application by a person with the name ‘Sun Jugu’ or ‘Jugu Sun’”.

The second notice to produce seeks, in par 2, the following:

“Any list of visitor visas issued at Port Moresby during the period 16 October 1993 to 16 December 1993.”

In response to the second notice to produce, a computer print-out was produced comprising some 83 or so pages on 30 May 1996, that is to say, two days after the notice was given.

The three affidavits themselves fall into two categories. The first category comprises an affidavit of Thomas Flynn, sworn 31 May 1996, and, related to it, an affidavit of the applicant's solicitor, Peter Alan Jackson, sworn 23 May 1996. Both affidavits relate to an issue of the maximum score attainable in the Guangdong Province in the People’s Republic of China (“China”) in the year 1988 for national tertiary entrance purposes. The third affidavit is one made by the applicant sworn 30 May 1996.  It goes to the question whether, at the relevant time, his parents resided at an address which he had previously supplied to the Department, namely, 159 Hai Zhou Road, Guangzhou in Guangdong Province.

The argument on the admissibility of the documents and the admissibility of the evidence in the affidavits has been extensive.  What I propose to do is to give, in effect, “outline reasons” and these can be elaborated upon in more detail if either party requests written reasons.

The application relates to a decision of the Refugee Review Tribunal (“the Tribunal”) constituted by Ms R. Smidt given on 1 April 1996. One of the grounds which is pertinent to the present argument is that set out in par 6 of the amended application, namely, that the decision was affected by actual bias. Subsection 476 (1) of the Migration Act 1958 (Cth) provides that application may be made for review by this Court of a “judicially-reviewable decision” (including a decision of the Tribunal) on one or more of the grounds set out in pars (a) to (g) of that subsection. Paragraph (f) is “that the decision was induced or affected by fraud or by actual bias.” Subsection 476(2) provides, however, that certain grounds there specified are not grounds upon which an application
may be made under subs (1).  One of the grounds referred to in subs 476(2) is “that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.” 

The Minister submits that the test of the relevance of the documents and affidavit material is nothing less than its relevance to the issue of actual bias on the part of Ms Smidt. For his part, the applicant relies upon two grounds to support the admissibility of the material.  One is actual bias as a ground of review. The other is to be found in the relief sought in par 2 of the heads of relief specified in the application. That paragraph is:

“2.  An order declaring that the Applicant is a refugee within the meaning of the Refugee Convention and has a right to be processed on the basis that he is a refugee.”

The applicant relies upon the actual bias ground to support the admissibility of both the documents and the content of the three affidavits. He relies upon par 2 of the heads of relief to support the admissibility of the content of the three affidavits.

As I indicated earlier, the submissions have been extensive and it would take considerable time to address the detail of them.  I will first refer to the affidavits in so far as they are said to be supported by reference to the declaratory relief sought. As I understand this case, it is difficult to think that it is one in which I would grant relief in the form of the declaration sought in par 2 of the heads of relief.  It may prove to be appropriate to refer the matter back to the Tribunal, but it seems to me that there are many matters which would have to be considered before it would be possible for me to decide “that the [a]pplicant is a refugee within the meaning of the Refugee Convention and has a right to be processed on the basis that he is a refugee”. Only two matters are dealt with in the three affidavits:

1. whether the relevant tertiary entrance score was indeed 900 at the relevant time; and

1. whether the address at 159 Hai Zhou Road, Guangzhou was indeed the applicant's parents' address at the relevant time.

But there are additional factual matters which would remain to be resolved even if those two issues were resolved in favour of the applicant. There would be the question of the participation by the applicant in the rally at Tiananmen Square and the question of the status which he has come to occupy, or may have come to occupy, in consequence;  the weight to be given to the respective elements in his case for recognition as a refugee; the weight to be given to certain cables of the Department of Foreign Affairs and Trade and their content; developments in China since 1989 and, indeed, since this matter was last before the Court; and the question whether the applicant possessed an Australian visa.

Mr Rofe QC submits that the question whether declaratory relief should be granted by the Court is not to be determined at this stage.  Putting the matter differently, he submits that I could exclude the three affidavits only if I decided finally at this stage that I would not grant the declaratory relief sought.  I appreciate the force of that submission.  I think, however, that the appropriate course is not to allow any of the three affidavits to be read at this stage. In the event, which at present I think is unlikely, that I come to the view that the case is an appropriate one for the grant of declaratory relief as distinct from making an order referring the matter back, the opportunity could then be given for the factual issues dealt with by these affidavits to be resolved.

In other words, if I come to the view, contrary to my present expectation, that the case is at least potentially an appropriate one for this Court to resolve finally in favour of the applicant, the parties will be advised of this so that the affidavits can be read and the deponents cross-examined if this is required. As I see it, this will occur only if I become satisfied that in all other respects it is appropriate for me to grant declaratory relief and the only outstanding factual issues to be resolved are those addressed in the three affidavits.

In the result, I do not accept that par 2 of the heads of relief entitles the applicant to read the affidavits at this time.

I turn now to the question of actual bias.  In relation to both the documents and the affidavits, what is put for the applicant is that the evidence reveals that there were lines of inquiry which it was practicable for the Tribunal to undertake and  which, if undertaken, would have revealed answers on the subject matter of those inquiries within quite a short time.

In par 6 of the amended application some particulars are given in relation to the Tribunal's alleged failure to undertake appropriate investigations as to the identity of the applicant and as to the maximum national tertiary entrance mark.  In relation to the first of the notices to produce, it is, as I understand it, common ground that the records sought in par 1 of that notice were able to be produced without difficulty or delay. Perhaps then, there is to be no ongoing issue to which the first notice to produce and the response to it are relevant. There is, however, no reason why those documents should not be admitted into evidence for the purpose of establishing that it was always possible for the documents referred to in par 1 of the notice to be produced quickly and without difficulty.  Accordingly, that notice to produce (dated 20 May 1996) and the computer print-out produced in response to it will become an exhibit.

In relation to the second notice to produce, the position is, as I see it, very generally similar. In relation to both notices to produce and the documents referred to in them, the critical matter on which the applicant relies is the period of time which was required in order to respond.  I should make it clear that in relation to both notices I do not determine finally any question of relevance. 

In relation to the second notice, however, there is this difficulty: apparently the documents in question were able to be produced readily only because of the advance notice of the requirement for production which the Minister had received in the form of par 3 of the first notice to produce. Paragraph 3 of the first notice to produce was as follows:

“3.Any list of visitor visa applications issued at Port Moresby, PNG, to all Chinese, Taiwanese and Hong Kong male nationals during the period 16 October to 16 December 1993.”

Accordingly, it is not necessarily and without qualification to be inferred that the documents referred to in the notice to produce dated 28 May were able to be generated within a mere couple of days, as might otherwise have been indicated by the production of them on 30 May.  I think that the appropriate course is not to admit at this stage the notice to produce dated 28 May 1996 and the documents produced in response to it because those documents would not, without more, give rise to an inference that the information was readily available.

I reserve leave, however, to the applicant to seek to supplement, if he so sees fit, the second notice to produce and the response to it, by way of affidavit evidence. It does seem, however, that the probative value of the notice to produce and response to it may be slight. But this preliminary view of mine would be a matter for the applicant's legal advisers to consider.  I would not, at this stage, admit the second notice to produce or the response to it as relevant to the issue of actual bias.

I come finally to the three affidavits in so far as their admissibility is sought to be supported as relevant to the issue of actual bias.  I will deal, first, with the affidavit of Mr Sun. The affidavit annexes a letter from, he says, his mother which purports to have been written by, or on behalf of, his parents at and from 3rd Floor, 159 Hai Zhou South Road, Guangzhou. Mr Sun submits that the affidavit establishes that a simple inquiry would have satisfied the Tribunal that his parents did live, at the relevant time, at an address which was, in substance, that which he had supplied.

On 29 February 1996 the Tribunal caused an inquiry to be instigated of the "Australian Post in Guangdong" - that is, the Australian Consulate in the City of Guangzhou - to ascertain whether Mr Sun's parents lived at the address in question or had lived there prior to early 1993.  On or about 13 March 1996 the Tribunal apparently decided not to pursue the inquiry.

The affidavit of the applicant is sought to be read to establish that if the inquiry had been pursued  by the Tribunal rather than terminated, it would have been a simple matter for the Consulate to determine whether Mr Sun's parents did indeed live at the address in question.  I do not, however, think that the letter would establish that fact.  I think that the Minister’s submission should be accepted that the mere fact, without more, that the applicant had no difficulty in receiving a letter from his mother from that address would not itself establish that it was a simple matter for the Australian authorities in Guangdong to elicit the same information.  But even if this is wrong, the evidence would not be probative on the issue of actual bias on the part of Ms Smidt.  Accordingly, the applicant's affidavit sworn 30 May 1996 should not be allowed to be read.

I come to the remaining two affidavits, that is, those of Messrs Flynn and Jackson, relating to the tertiary entrance score. The background is that the applicant said that he qualified in 1988 for entrance to tertiary education in China with a score of 819, yet there was evidence to suggest that this was an impossibility in 1988. The Tribunal also instigated an inquiry into this question. On 13 October 1995, it caused a summons to produce documents to be issued.  On 11 January 1996 it wrote to the “Education, Assessment and Research Section” of the “National Office of Overseas Skills Recognition”, within the Department of Employment, Education and Training, seeking information with a view to clarifying the maximum score attainable in 1988. A reply dated the same day, 11 January, included the following sentence:

“Recently other methods have been used, such as percentile ranking on a scale of 900 in Guangdong Province.”

Shortly, the applicant submits that this would have raised a query as to whether the word "recently" extended back as far as to 1988 so as to make it incumbent upon an unbiased decision-maker to pursue the question whether the maximum score of 900 was operative in that year.

The affidavits of Mr Flynn and of Mr Jackson, in summary, are to the effect that if that matter had been pursued, indeed, it would have been revealed that at least in Guangdong Province in 1988 the maximum score attainable was 900.  I have great difficulty, however, in seeing how this intelligence which would have come to light if the inquiry had been pursued can be relevant to the question of actual bias.

It may well be that a submission is open that the failure to pursue the inquiry at all is an indication of actual bias. No doubt that submission will be made at the end of the day and it will be necessary to consider what the Tribunal understood or should have understood from the reference to "recently".  But neither the results which further inquiry would in fact have elicited nor the fact that they could be obtained are probative of actual bias.  Accordingly, I do not think that the content of the Flynn and Jackson affidavits is admissible and those affidavits will not be permitted to be read either.

I certify that this and the preceding  six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:            18  September 1997

Counsel for the Applicant:	Mr D F Rofe QC with Mr M J Lawler
Solicitor for the Applicant:	Jackson Smith
Counsel for the Respondent:	Mr M H Tobias QC with Mr N J Williams
Solicitor for the Respondent:	The Australian Government Solicitor
Date of Hearing:	3, 4, 5 June, 2 August 1996
Date of Judgment (rulings on evidence):	5 June 1996