S v Minister for Immigration & Multicultural Affairs

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FEDERAL COURT OF AUSTRALIA

S v Minister for Immigration & Multicultural  Affairs [2000] FCA 735

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – suggested “What if I am wrong?” test – referral to evidence – whether decision based on non-existent fact

WORDS AND PHRASES – “What if I am wrong?”

Migration Act 1958 (Cth) ss 430(1), 476(1)(a), (1)(g), 476(4)

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 followed
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 not followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied
R v Wainwright (1895) 13 Cox 171 mentioned
Attorney-General (South Australia) v Brown [1960] AC 432 at 454 mentioned
Lucas v The Queen (1970) 120 CLR 171 at 174 mentioned
Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 applied
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 55-57 mentioned
Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 followed
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220 applied

S v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NO. V 47 OF 2000

HEEREY J
6 JUNE 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 47 of 2000

BETWEEN:

S
Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULUTRAL AFFAIRS
Respondent

JUDGE:

HEEREY J

DATE OF ORDER:

6 JUNE 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with costs, including reserved costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V 47 of 2000

BETWEEN:

S
Applicant

AND:

THE MINISTER FOR IMMIGRATION AND MULTICULUTRAL AFFAIRS
Respondent

JUDGE:

HEEREY J

DATE:

6 JUNE 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. The applicant is a thirty-one year old male citizen of the People’s Republic of China.  He arrived in Australia on 31 May 1997.  He lodged application for a protection visa on 2 October 1997.  The application was refused and the delegate’s decision was confirmed by the Refugee Review Tribunal on 19 May 1999.  Following an order by consent for reconsideration the applicant’s application was reheard by the RRT differently constituted.  On 7 January 2000 the RRT again affirmed the decision not to grant a protection visa.

    The applicant’s case

  2. The only Convention ground relied on by the applicant was political opinion.

  3. The applicant came from an intellectual family, his father being a professor at Shanghai University and his mother a doctor.  His parents were criticised because of their background and were sent for re-education during the Cultural Revolution. 

  4. The applicant had no major involvement in political activities until the 1989 pro-democracy movement.  In 1989 the applicant had been a student at Shanghai University for three years.  On 18 May 1989 the university joined with several others to demonstrate against Communism.  The applicant made a speech as a representative of his university criticising…

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Details
Case
[2000] FCA 735
Decision Date

CaseChat Overview and Summary

The case of S v Minister for Immigration & Multicultural Affairs involved the applicant, a Chinese national, challenging a decision of the Refugee Review Tribunal (RRT) which had determined that he was not a refugee and therefore did not qualify for a protection visa. The dispute came before the Federal Court of Australia where the applicant sought judicial review of the RRT's decision.

The legal issues in the case centred on whether the RRT had failed to properly exercise its jurisdiction by not adequately considering all relevant issues in determining the applicant's claim. The applicant argued that the RRT had erred by not sufficiently exploring the possibility that he might be wrong in his assertions, and by not focusing on the factual core of his refugee claim. Another contention was that the RRT's decision was based on non-existent facts, specifically that the applicant had claimed to be a leader of the 1989 demonstrations when he had not.

The Federal Court rejected the applicant's arguments. The court found that the RRT had properly considered the evidence and provided sufficient reasoning for its decision. It was held that the RRT was not required to explore hypothetical scenarios such as "What if I am wrong?" and that the RRT's focus on the factual centrepiece of the claim was sufficient. Regarding the argument about non-existent facts, the court determined that the RRT's attribution of a leadership claim to the applicant was supported by the evidence. The court concluded that the RRT's decision-making process was lawful and that there were no jurisdictional errors.

The Federal Court dismissed the application for judicial review and ordered the applicant to pay costs, including reserved costs.

Orders

Orders of the court

The application is dismissed with costs, including reserved costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Counsel for the applicant contended that whether or not it is ultimately held in Singh or the High Court appeal in Yusuf that s 476(1)(a) applies to s 430(1) there is an independent obligation on the RRT. If the RRT does not apply itself to all the issues it is required to consider in determining the matter before it there will have been a purported, but not real, exercise of its functions and jurisdictions. In such circumstances there will have been a constructive failure by the RRT to exercise its jurisdiction: Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 55-57 per Merkel J. If that be a correct statement of the law, the argument advanced by the applicant in reliance on it was essentially the same as that to which I have already referred. In particular, argument was based on the failure to ask “What if I am wrong?”. It was said the RRT’s task was not confined to findings on “material questions of fact” but went to “the factual centrepiece of the claim”. However for the reasons already given this argument must be rejected.No evidence or other materials to justify the making of the decision: s 476(1)(g) This ground is qualified by s 476(4) which provides that the ground specified in par 1(g) is not taken to have been made out unless “(a)the person who made the decision was required by law to reach the decision only if a particular matter was established and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.” There were said to be two non-existent facts. The first is said to be relevant to the following passage in the RRT’s reasons:“The applicant initially suggested he was a leader of the demonstrations, but he was unaware that former Russian President Gorbachev had visited Shanghai on 18 May, a day on which the applicant claims he made a speech at a protest.If he had been a leader as he claimed, the Tribunal is satisfied that he would have been aware of such significant developments.In assessing the applicant’s claim in regard to the 1989 demonstrations, the Tribunal is satisfied he participated in a minor way and was interrogated. However, his participation was not in any leadership role and he was not a prominent protestor and the Tribunal finds the matter was finalised when his interrogation finished.” The non-existent fact is said to be the fact that the applicant claimed he was a leader of the demonstration, whereas he did not in fact make such a claim. It is not necessary to go into the detail of the evidence which counsel for the Minister, argued correctly in my opinion, provided a proper basis for the RRT attributing to the applicant a claim to have been a leader. There is a legal answer to the applicant’s argument to which I shall shortly refer.

Decision

Reasons for decision

HEEREY J
After his arrival in Australia the applicant tried unsuccessfully to contact his father in China by telephone. He had not been involved in political activities in Australia other than establishing a web page in early 1999 and publishing a political article there.Decision of the RRT After referring to the legislative framework and leading authorities in the High Court and this Court, the RRT noted the applicant’s evidence that he did not fear that he would be harmed now in China on account of his family’s background. The history of the family since the Cultural Revolution led to the conclusion that the family’s former classification was of no relevance now or in the foreseeable future, even if it was recorded on his personal file. The RRT accepted that the applicant participated in the 1989 pro-democracy movement and that he was detained. However the applicant’s release and return to university indicated that the authorities were satisfied he was of no further interest. After reviewing the evidence, including evidence of comprehensive tightening of security measures and a broad sweep of suspects and systematic searches for dissidents and political crackdown, the RRT concluded:“In assessing the applicant’s claims in regard to the 1989 demonstrations, the Tribunal is satisfied he participated in a minor way and was interrogated. However, his participation was not in any leadership role and he was not a prominent protestor and the Tribunal finds this matter was finalised when his interrogation finished.” The RRT did not accept that the applicant’s father’s contacts and payments of bribes facilitated his release. It was clear that the focus of the authorities was to terminate a dissident movement and it was inherently implausible that perceived enemies of the State would be able to escape punishment. It was unlikely that an official would take a bribe and still record the applicant’s alleged high profile dissidence on his personal file where other officials may see it. The RRT did not believe that the applicant would be released had he been perceived to be a threat. Nor did the RRT accept that he was denied employment in the government sector because he was a dissident. If the authorities wished to harass him for his political activities they could have refused him re-entry to university or graduation, or could have blocked or otherwise impeded his employment. The RRT did not accept that the applicant was twice refused a passport in later years because he was noted as a dissident on his personal file records. The RRT noted Department of Foreign Affairs and Trade Country Information Report No 64/98 to the effect that many dissidents had left China legally over the last three to four years, although many had served all or part of a prison or reform through labour term. The applicant had no real history of political activity apart from his interrogation and release after minor participation in the 1989 demonstrations and at the time he applied for a passport he was enjoying a successful career at his bank. There was no indication that he was questioned by officials in regard to his passport application, or of any ongoing official interest in him while, on the contrary, known dissidents were at that time permitted to travel outside the PRC. It seemed odd to the RRT that the bank would continue to employ him if, as he claimed, he was suspected by the authorities and was unable to complete the training the bank had scheduled for him in Hong Kong. In a passage which became the subject of argument on the application for review the RRT said:“In all of the circumstances, the Tribunal does not accept that the applicant was refused a passport for the reasons he has described and finds that if he was ever refused such a document it was for undisclosed reasons unrelated to his political opinions as he described them.”

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

Full text does not contain this section.