VWHX v Minister for Immigration
[2005] FMCA 1775
•2 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWHX v MINISTER FOR IMMIGRATION & ANOR | [2005] FMCA 1775 |
| MIGRATION – Protection visa – whether first or second sur place claims considered – whether denial of procedural fairness – failure to corroborate claim – right to have individual claim considered – social group. PRACTICE AND PROCEDURE – Order dispensing with compliance with Rules – litigation guardian – Division 11.2 of Federal Magistrates Court Rules. |
| Judiciary Act 1903, s.39B Migration Act 1958, s.475A |
| X v The Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 995 Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) (2004) FCAFC 263 SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259 |
| Applicant: | VWHX |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 868 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 31 March 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 2 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. de Ferrari |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondent: | Mr W.S. Mosley |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 18 March 2004.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
Liberty to apply is granted to the parties in relation to the issue of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 868 of 2004
| VWHX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In this application the applicant seeks to review a decision of the Refugee Review Tribunal (the RRT) made on 18 March 2004 which had affirmed a decision of the delegate of the first respondent not to grant the applicant a protection visa.
The applicant is a male citizen of the People's Republic of China. He was born on 23 February 1987. He arrived in Australia on 18 July 2002 as the holder of a visitor visa issued in Beijing. He was travelling on a People's Republic of China passport issued to him on 21 May 2002. It should be noted that the application in this matter was filed on 19 May 2004.
Preliminary issue
It is common ground that as at that date the applicant was under the age of 18 years. As a preliminary issue, counsel for the respondent properly raised with the court the question of whether or not Division 11.2 of the Federal Magistrates Court Rules 2001 (the Rules) applies and whether or not a litigation guardian should be appointed. The relevant rules provide:
“Division 11.2 Litigation guardian
11.08 Person who needs a litigation guardian
(1) For these Rules, a person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding.
(2) Unless the Court otherwise orders, a minor in a proceeding (other than a proceeding under the Family Law Act) is taken to need a litigation guardian in relation to the proceeding.
11.09 Starting, continuing, defending or inclusion in proceeding
(1) A person who needs a litigation guardian may start, continue, respond to or seek to be included as a party to a proceeding only by his or her litigation guardian.
…”
It is clear from Division 11.2 of the Rules that prima facie the applicant in this application, unless the court otherwise orders, would be taken to need a litigation guardian. That would appear to be the case despite the fact that it is common ground in this application that the first respondent is the legal guardian, or at least has been until the applicant turned 18 years of age and achieved his majority. The significance of the first respondent being the legal guardian was dealt with by North J in the matter of X v The Minister for Immigration and Multicultural and Indigenous Affairs [1999] FCA 995. In the present application, despite the fact that the applicant as at the date the application was filed was under the age of 18 years and was then a minor, it is clear to me that in the circumstances where at the hearing the applicant, who is represented and who has now attained the age of 18 years, should not be the subject of any order under Division 11.2.
Out of an abundance of caution, however, and in order to regularise the proceedings lest it be thought that there is some defect by reason of the fact that a litigation guardian was not appointed at or prior to the time the application was filed, I had indicated to the parties that it was my intention to make orders, which I shall make in the present case, in the following terms:
i)That so much of the rules be dispensed with pursuant to Rule 1.06 of the Federal Magistrates Court Rules 2001 that would otherwise prevent the court from hearing and determining the application.
ii)Further, in the alternative, the court orders pursuant to Rule 11.08(2) nunc pro tunc that the applicant does not require a litigation guardian to commence and/or continue the proceedings.
Background
Having dealt with that preliminary issue, it is appropriate to otherwise set out in some further detail the factual background. Both parties have set out a summary of the factual background and there does not seem to be any significant dispute in relation to that summary. Specifically, the respondent's facts and contentions set out a brief summary of the way in which the claim had been presented to the RRT.
The further factual background includes
·That the applicant was 15 when he travelled to Australia with an organised visit for a group of students. He had arrived on 18 July 2002.
·On 11 August 2002, shortly prior to the applicant returning to China, he absconded and it is claimed when he thought it was safe.
·On 23 August 2002 he applied for asylum by lodging an application for a protection visa.
·He claimed to fear persecution by reason of political opinion.
·The applicant claimed that he had a well‑founded fear of persecution in China due to his political opinion, either actual or imputed.
·He claimed that he had spoken out at school about the treatment of Falun Gong supporters and had copied a Falun Gong video and shown it to friends, distributed a leaflet and spoke at school that Falun Gong was not bad.
·He claimed he had been detained by the police and mistreated and only released on payment of a bribe.
·He claimed he was, inter alia, excluded from further education.
·He also claimed his schoolteacher parents were politically active and that they had been labelled dangerous people by the police.
·He had joined a march organised by his father for retrenched workers at a local factory.
·He claimed the authorities were aware of his protection visa application and this would lead to his detention on return to the PRC.
The claims were further summarised and set out fully by the RRT (see court book pp.133‑146).
Of significance in the present case is that after the delegate had refused the application on 25 March 2003, the Department received a statement on 5 September 2002 from T.T. Co, the company which had arranged the passport for the applicant and which had his passport in custody while the applicant was on the study tour organised by that company in Australia. It is relevant in this application to set out in full the contents of that statement for reasons which will become evident when considering the submissions made by the parties in this matter. The statement, which appears at pages 91‑92 of the court book, provides as follows:
“An Explanation about the Situation
To: The Department of Immigration and Multicultural Affairs (DIMIA), T.T. Co. is a legal institute working as an agency for overseas studying approved by the Education Department, Public Security Department and Municipal Education Commission of the People's Republic of China. It always undertakes the business of overseas study legally. On July 17, 2002 we organized the students to learn English for a short period in the International Pacific College in Melbourne of Australia. The tour members' documents for the visa application are all provided by the students themselves and their parents. The materials of one of the students (VWHX) (which is false name and is aware now) are all original copies. So we had not suspected the authenticity of his materials. On August 11, 2002 (VWHX) said that he has an appointment in the evening and later we knew that he left the tour on purpose in order to stay abroad and not to return. We have reported the situation of this affair to the Visa Office of Australian Embassy in China on August 16, 2002.
Our company devoted much attention to this affair and it will damage the company's reputation if it can not be clarified. In order to clarify this affair we tried to find out the truth through many ways and now we are sure that (VWHX) is his false name. His passport is obtained in the deceiving way by borrowing the legal credential of others and his true name is (WT). He had ever obtain a passport in his true identity in the name of (WT), whose ID card number is ... on March 29, 2001. This passport number is G ... (WT) himself had ever handled process for passport missing once and for the changing of the reason for exiting once. The intended country is France and Austria in order.
Basing on the situation mentioned above we have the reason to confirm that WT himself obtained the valid credentials in the deceiving way in order to stay in Australia. He had directly damaged our company's reputation and damaged other kind people by his behaviour. We hope that DIMIA would investigate the situation and give our company and the related friends a fair result.
Thank you.
T.T. Co., Ltd.
September 5, 2002 (sic)”
It is evident from the document set out above in full as it appears in the court book has certain errors. Nevertheless, it is clear from that document that a significant allegation had been made by that company which has connections with and/or approval from relevant government departments in China. The allegations against the applicant in effect claim that he was not who he said he was but rather another person, namely, a 24‑year‑old man named WT, and that the company's researchers had discovered this. It is clear and I accept that that assertion by the company is incorrect and at the very least misleading.
One might be tempted to conclude it is also mischievous as a simple examination of the annexed passport with that statement reveals that the first page of the document appearing at court book page 96 depicts a name and date of birth which is not that of the applicant, but perhaps more importantly a different passport number to the second page also attached to the statement appearing at court book page 97 which has the correct passport number of the applicant and would appear to be a page which is accurately taken from the applicant's own passport.
A cross‑reference can be made of the two documents by comparing what is reproduced in the court book at pages 97 and 98 to what appears to be and has been conceded by the respondent to be the actual passport of the applicant appearing at pages 28 and 29.
I note in passing the configuration of the photocopy appearing at page 29 in the court book is different to the configuration of the identical page appearing at page 97, though it is clear it is the same page albeit without the passport number. It is conceded by the respondent that that is the same page and it would appear to be now conceded by the respondent that the document, at least the first page of the document forwarded by the company was of another person and is not the passport that had been proffered by the applicant at any time.
The issue of the identity of the applicant was pursued by the Department. Department officers in China were provided with a photocopy of the incorrect passport. It would appear from the court book that upon receipt of that material the Department sought to further investigate what would appear on the face of the material to be a case of false identity or at the very least the assertion by the applicant that he was an 18‑year‑old person of a different name to that which appeared on the passport allegedly in the possession of the company.
A file note appears in the court book which recites part of the history referred to earlier in this decision. It is relevant, however, to refer to an extract from that file note prepared by an officer of the first respondent and dated 19 March 2003 (court book 98‑99) where the author states the following:
“In order to try and verify this information I forwarded the information to the Peter Coyne at our Shanghi post. I asked if he could pursue this matter for me as I was considering cancellation of (VWHX's) bridging visa under s109. ... I explained to Peter that cancelling (VWHX's) visa based solely on a photocopied (PPT) didn't sit well with me, particularly when the allegations were coming from a company that had a lot to lose if members of their groups were not returning as planned.
Over the past 5 months I have forwarded numerous messages to Peter and his colleagues but have not received any indication from them or evidence that would provide conclusive evidence in order for me to consider cancellation. They too were only shown a photocopy (same as what I have on file).
The only alternative I had in order to move forward with this information was to present the evidence/information to (VWHX) himself.
I did this on the 19th March 2003. His reaction was one of total dismay. He claimed never to have heard of anyone by the name of (WT). He vehemently denied he was 24 yrs old even offering to have this medically proven if he had to.
He claimed that this organisation was well known for doing things like this, accusing them of having done the same thing on previous occasions when members of other travelling groups had failed to return to China. He also commented that he now knew why his parents had since been placed in to a re‑education facility back in China.
I explained to him that at the very least I would have to forward this information to the onshore protection unit in which case it may be that (OPV) request he medically prove his age. He accepted this and in fact again offered to do this even if it wasn't a requirement.
In weighing up my decision not to commence cancellation proceedings I had to consider a number of things not least the evidence or lack of it.
I also feel that his behaviour thus far has not been one that would be consistent with what I would expect from a 24‑year‑old PRC national who gained entry into Australia through deceptive means. Rather then be enrolled and studying year 12, I would expect he would be out working.
His legal guardian advised (VWHX) participates in what would normally be activities expected of person within his age group and does so with persons in his age group. This is not something I would expect to be the normal behaviour of a 24 yr old.
I will revisit the issue of cancellation if further evidence comes to hand.”
It should be further noted that in fact a bone age test was undertaken and the result of that test, which appears at court book page 112, undertaken on the applicant reveals that the sample is consistent with a person of approximately 17 or 18 years with a standard deviation of 13 months. It is perhaps also useful to note in the context of this issue that the RRT itself concluded that "the applicant is who he says he is" (court book p.152).
The Tribunal's findings
It is clear that the RRT was not satisfied the applicant had a well‑founded fear of persecution as a consequence of any of his claims. A summary of the findings appears to be adequately set out in the facts and contentions of the respondent as follows:
(i)It did not accept he was involved in any activities which attracted adverse interest from the authorities, or that he expressed unacceptable political opinions openly, or that he had been persecuted by the authorities because of such opinions, including his claims as to his Falun Gong activities and claimed consequential detention;
(ii)It did not accept he was of any interest to the authorities when he departed and he would not have been issued with a passport or permitted to legally depart if he had been;
(iii)It did not accept his parent’s had any political profile or had ever been of any adverse interest to the authorities, or had been placed in re‑education camps;
(iv)It accepted that his name may be on an official database because he absconded from a student tour to Australia, and that he may be questioned in this regard, however it did not accept that he would be at risk of serious harm as a consequence;
(v)It did not accept that even if the authorities knew he had applied for asylum in Australia, that he would be subject to serious harm amounting to persecution on return;
(vi)It did not accept that the applicant was at risk of serious harm, even if the authorities were keen to see him return.
In considering the issue of whether the applicant would suffer harm for a Convention reason if he returned to China, the RRT states the following:
“In summary, while the Tribunal accepts the Chinese authorities are likely aware of the applicant and the fact that he did not return to China with his tour group based on the DFAT country information outlined above concerning overstaying and returnees respectively and its earlier findings in relation to the applicant and his parents, it does not accept that if the applicant returns to China he faces a real chance of serious harm amounting to persecution by Chinese authorities for any reason. The Tribunal finds that considered in combination, his overstaying in Australia and applying for asylum here will not give rise to a real chance of persecution if he returns to China. In making this finding the Tribunal notes that as neither the applicant nor his parents have faced serious harm from Chinese authorities in the past or have been of adverse interest to them in the past and there is no evidence to suggest that the applicant or his parents would engage in conduct which would attract adverse interest from the authorities in the future, the applicant does not face a real chance of serious harm amounting to persecution now or in the reasonably foreseeable future.
Taking into account the applicant's claims individually and cumulatively, the Tribunal finds that if he was to return to China now or in the reasonably foreseeable future, there is not a real chance he would be persecuted for reason of his political opinion, a political opinion imputed to him or for any other convention reason. The Tribunal finds that the applicant's fear of persecution for a convention reason is not well founded.”
It is also relevant to set out an earlier finding of the RRT where after analysing the various claims it states at court book page 151 the following:
“The Tribunal has considered what would happen to the applicant if he returned to China. In this regard it notes his evidence in the hearing that he name would be on a computer of Chinese customs authorities and that he would be gaoled. Whilst the Tribunal accepts that the applicant’s name may be on an official database because he absconded from a student tour to Australia, and that he may questioned in this regard, based on the country information referred to earlier in this decision and again below, it does not accept that because of this the applicant faces a real chance of serious harm for a Convention reason. Based on its previous findings in relation to the applicant, which do not indicate that Chinese authorities have an adverse interest in him, the Tribunal also does not accept that if he returns to China he faces any chance of being gaoled by Chinese authorities for any reason, Convention-related or otherwise.
Based on its previous findings, the Tribunal does not accept that if he returned to China the applicant would be excluded from the education system, detained in a re‑education camp or prison and possibly killed, regardless of the applicant's concerns about the fairness of the Chinese legal system. ...
In making this finding the Tribunal has considered if Chinese authorities might know that he has applied for asylum in Australia. In this regard it refers to the relevant DFAT country information outlined in the country information section of this decision concerning Chinese nationals overstaying abroad (CX54236) and regarding the treatment of returnees (CX54236) and its advice to the applicant that this information did not suggest he would face serious problems if he returned to China, even if Chinese authorities knew he had sought asylum in this country. The Tribunal finds that while the applicant may be questioned by Chinese authorities on his return to China, any such questioning would not constitute serious harm amounting to persecution.
Also the Tribunal has considered the evidence provided by the witness that Chinese authorities appeared keen to have the applicant returned to China. In considering this evidence the Tribunal finds that the applicant is who he says he is. However based on its previous findings the Tribunal finds that even if Chinese authorities are keen to see the applicant return to China, this does not mean he is at risk of serious harm by them. On the contrary it may be the case that they simply wish to see a Chinese national minor returned to the care of his parents in China.”
The Applicant’s submissions
The applicant relied upon an amended application seeking relief pursuant to s.39B of the Judiciary Act 1903 and s.475A of the Migration Act 1958. That amended application was filed on 13 January 2005. It seeks orders in the nature of certiorari quashing or setting aside the decision dated 18 March 2004, an order in the nature of mandamus remitting the matter to the second respondent differently constituted for determination according to law and other orders in relation to costs. The grounds of the application are as follows:
“1.In affirming the decision of a delegate of the first respondent not to grant the applicant a protection visa (Class XA), the second respondent constructively failed to exercise its jurisdiction.
Particulars
i) The second respondent failed to deal with a claim by the applicant.
ii)The second respondent failed to consider the real question it had to decide, whether the applicant had a well‑founded fear of persecution, instead considering the generalised case of absconded people who seek protection.”
In submissions before the court and in the written submissions filed on behalf of the applicant, it was argued that the RRT had failed to consider and deal with the two sur place claims. The first obviously related to the issue of absconding and the result and impact upon that event upon the applicant should he return to China. Although there was some challenge to the general finding in that respect and the reliance upon country information, I did not take the applicant's counsel to assert that it was not considered at all. Rather, emphasis was placed upon a second sur place claim which it was said involved an element that the Chinese authorities were taking what might be claimed to be rather unusual and even extreme steps to secure his return after becoming aware that he had absconded and sought asylum.
It was argued that the Tribunal relied upon the country information apparently in the belief that this answered the case put by the Applicant. During the course of submissions the Applicant’s Counsel relied upon the following extract from the High Court decision in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 203 ALR 112 where McHugh and Kirby JJ state the following:-
“[58] … Whether members of a particular social group are regularly or often persecuted usually assists in determining whether a real chance exists that a particular member of that class will be persecuted. Similarly, whether a particular individual has been persecuted in the past usually assists in determining whether that person is likely to be persecuted in the future.24 But neither the persecution of members of a particular social group nor the past persecution of the individual is decisive. History is a guide, not a determinant. Moreover, helpful as the history of the social group may be in determining whether an applicant for a protection visa is a refugee for the purpose of the Convention, its use involves a reasoning process that can lead to erroneous conclusions. It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a “well-founded fear of being persecuted for reasons of … membership of a particular social group”.
[59] … An applicant claiming refugee status is asserting an individual right and is entitled to have his or her claim considered as an individual, not as the undifferentiated member of a group.”
It was argued in the present case that the delegate only considered the first sur place claim namely that because the Applicant had absconded and had made a refugee application the Chinese authorities would know about it and when he went back he would be questioned. It was submitted that because of what had happened and activities by the organisation referred to earlier which was before the Tribunal that there is a new sur place claim that arises from the circumstances of the Chinese authorities clearly concerning the individual applicant not just as an absentee from China afar who has a failed refugee application but that they are so keen to have him return that they go to the extent of forging the document and putting to the Department. Reference was made to the documentation referred to earlier in this judgment received by the Department. In circumstances where a document produced to the Department was inaccurate and misleading as to the identity and age of the Applicant, the Applicant’s submissions sought to establish that the Tribunal ought to have considered that as a second sur place claim in determining why the document was produced and whether or not the production of the documents demonstrates a level of interest in this Applicant which might be different from general conclusions which the Tribunal might otherwise draw based upon country information.
In general terms it was submitted that a great deal of the reasoning of the Tribunal related to the general question of what might happen to an asylum seeker upon return to China. Hence the criticism is the Tribunal focused on what might be described as the generic position of someone who absconds or the generic position of a failed asylum seeker and the treatment that person might get upon return to China.
The extracts from the Tribunal’s decision set out earlier in this judgment where it considers the evidence provided by the witness that “Chinese authorities appeared keen to have the Applicant return to China” was submitted to relate to the first sur place claim.
The Applicant otherwise relied upon the authority of the Full Court of the Federal Court decision in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 in support of the submission that there has been a failure of the Tribunal to deal with a claim or failure to deal with an integer of a claim. Particular reference was made to paragraph 42 of that decision where Allsop J states:-
“42.…. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. … It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54,57, 65, 414, 415,423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. …”
Otherwise the Applicant’s Counsel referred to what is described as a summary of cases dealing with the failure to deal with the claim and relied upon the decision of the Federal Court in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No2) (2004) FCAFC 263 at [55]. Further reliance was placed upon the decision of the Federal Court in SAAD v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 65.
The material from the witness is referred to in the RRT decision in the following terms under the heading "Evidence from witness" at court book page 145:
“The Tribunal heard evidence from Mr K.R., the former partner at P, the applicant's foster father who has been a foster parent previously. Mr R explained that Anglicare had placed the applicant with him in August 2002. He described the applicant as being of the highest integrity, honest, reliable, strong‑willed and opinionated. He stated that it was important for the applicant to express his views even when they were not popular. He noted that the applicant had revealed more information over time and that his claims were consistent and not embellished. He stated that Chinese authorities had gone out of their way to say the applicant was someone else (the Tribunal notes that Folio 14 of the Department's file refers). Such action indicated they were keen to have the applicant returned to China. In Mr R's view, this could be the only reason why false statements and passports had been lodged with the Department.”
Reliance was placed upon the false and misleading information forwarded by the company referred to in detail earlier in this judgment. It was claimed that the RRT failed to deal with the applicant's claim that he was absconding from a tour organised by a company belonging to the Chinese police and seeking asylum after that tour. Those events led the authorities to take what is described as an unusual step of seeking to undermine his asylum claim by provision of the false documentation meant that the applicant did have a well‑founded fear of persecution by reason of political opinion or imputed opinion. It was argued that the extract from the Tribunal's reasoning referred to earlier in this judgment demonstrated the Tribunal's failure to particularise the claim of the applicant and especially the second sur place claim. It was argued that the other findings in relation to what might happen to the applicant upon return, having absconded and sought asylum, and reliance upon country information was a general finding which in this case relied upon country information identical to the information available to the delegate.
The Respondent’s submissions
The Respondent submitted that the challenge to the Tribunal’s decision is an attempt to re-agitate the merits and an invitation to re-visit factual findings that the Tribunal made rejecting the Applicant’s claims. It is argued the Tribunal unequivocally rejected the Applicant’s credit and rejected the entirety of the Applicant’s substantive claims. It dealt specifically with the issue of whether the authorities were keen to see the Applicant returned and found that did not mean he was at risk of serious harm. It was noted in the Respondent’s submissions the Tribunal had considered what would happen to the Applicant in the light of his rejected asylum claim and departure from the tour and even accepted that the Applicant’s name may be on a database because he absconded from a tour. It further found that he may be questioned about these matters.
It was conceded by the Respondent that it is not disputed that the Tribunal is required to consider the claim advanced as an individual and not as an undifferentiated member of a group. It was submitted in this case that the Tribunal proceeded on a correct understanding of the law and in its decision demonstrates that it weighed the evidence and material before it and ultimately concluded it was not satisfied that the Applicant had a well founded fear of persecution.
It was submitted that any question concerning the finding of a well-founded fear of persecution based on a claim that authorities appeared keen to see the Applicant return was one for the Tribunal to decide on the facts. The Respondent noted that the Court should not be over zealous in judicial review and in undertaking review it should make a fair reading of the Tribunal’s reasons with an eye not too attuned to error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 186 CLR 259 at 272).
Counsel for the First Respondent strongly submitted that in this case the Tribunal had utterly rejected the Applicant’s credibility “in every claim that he made other than he comes from China and a few basic details” and went on to say that “In reality he has in essence no political profile at all and all claims are rejected.”
It was further argued the Tribunal had explored the issue of the documents and the apparent pursuit of the Applicant. The Tribunal’s reference to the background material including that the organiser of the student trip “as angry that the Applicant applied for refugee status in Australia” demonstrates, it was submitted, that the Tribunal had considered the issue and it was noted reference was made to that factor in the statutory declaration of the Applicant dated 19 March where the Applicant states:-
“I believe that the organiser of the student trip, Mr A, was angry that I applied for refugee in Australia. I would think he would get into terrible trouble with the Chinese authorities because I did not return to China. I think that he presented this photo to immigration to try to ensure my forced return to China. This way he would not be in so much trouble with the Chinese authorities.” (Court Book p.101)
The Respondent made other references to material before the Tribunal. It was argued that when the Tribunal referred to the evidence that the authorities appeared “keen to have the Applicant return to China” it had effectively dealt in context with the claim.
Reasoning
In my view a proper reading of the Tribunal’s decision and one which is undertaken in a way that could not be regarded as over zealous leads to the conclusion that the precise and discrete claim which has been referred to as the second sur place claim was not considered precisely by the Tribunal.
Whilst it is true that the Tribunal referred to some of the evidence, it did not then proceed as it should have to make a finding of fact in relation to the second sur place claim which included an analysis of the forged documents and that the use of those documents may provide a further basis, albeit it a discrete basis, upon which this individual applicant could claim to have a reasonable fear of persecution.
The reference by the Tribunal to general country information and what may happen to asylum seekers who fail to obtain protection visas upon return to China only deals with the generic part of this application.
In this case there is clear evidence arising from the examination of the documents referred to earlier in this judgment which would justify departure from reaching conclusions based solely on country information. Although the Tribunal does make findings in relation to the suggestion that the authorities are “keen to have the Applicant return to China”, the extract from the decision in my view reveals that in rejecting that as a factor to take into account the Tribunal refers to its “previous findings” and then concludes that although the Chinese authorities might be keen to see the Applicant returned this does “not mean he is at risk of serious harm by them”. It then goes on to find, “on the contrary it may be the case that they simply wish to see a Chinese National minor returned to the care of his parents in China”. That somewhat innocuous conclusion underlines the total failure in my view of the Tribunal to address as an integer of this claim, namely the use of the forged documents in order to undermine any asylum claim of the Applicant and further at least an attempt to assess those documents and the motive for the use of those documents. Further, the Tribunal does not appear to analyse the source of that material and to consider the link between the company and the government. All of those factual matters could and should have been explored as part of the Tribunal’s investigation into what I regard and find as an essential claim in this case and/or a component or integer of the claim. Hence I am satisfied applying the authorities referred to and relied upon by the Applicant that in this case that amounts to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction of the kind that would lead me to conclude that there is indeed jurisdictional error.
Whilst I accept as submitted by the Respondent that in this case there has been significant adverse findings as to the Applicant’s credibility that does not in this instance relieve the Tribunal of its obligation to deal with what I have found to be a discrete claim and/or an integer of that claim which has been generally referred to throughout as the second sur place claim.
For those reasons it follows that orders should be made setting aside the decision of the Tribunal and that the First Respondent pay the Applicant’s costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 2 December 2005
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