Xiang Sheng Li v Refugee Review Tribunal

[1996] FCA 1049

CATCHWORDS

IMMIGRATION - review of decision of Refugee Review Tribunal not to grant applicant protection visa - Tribunal did not call witnesses nominated by the applicant - whether breached duty to pay regard to applicant's wishes under Migration Act, 1958 (Cth), s 426(3).

ADMINISTRATIVE LAW - review of decision of Refugee Review Tribunal not to grant applicant protection visa - whether failure by Tribunal to make inquiries of witnesses nominated pursuant to Migration Act, s 426(3) constituted breach of rules of natural justice pursuant to Administration Decisions (Judicial Review) Act 1977 (Cth), ss 5(1)(a), 6(1)(a).

ADMINISTRATIVE LAW - conclusion of Refugee Review Tribunal that applicant not subject to real chance of persecution in country of origin - whether reviewable on grounds of "no evidence" under Migration Act, ss 476(1)(g), (4)(b); ADJR Act, ss 5(1)(h), (3)(b) - discussion of principles of review on grounds of no evidence.

Administrative Decisions (Judicial Review) 1977 (Cth) ss 5(1)(a), (1)(h), (3)(b), 6(1)(a)

Migration Act 1958 (Cth), ss 426(3), 476(1)(a),(g), (2), (4), 485

Migration Reform Act 1992 (Cth)

Curragh v Daniel (1992) 34 FCR 212
Luu v Renvier (1989) 91 ALR 39
Mahboob v Minister for Immigration & Ethnic Affairs (1996) 135 ALR 693
Mahboob v Minister for Immigration & Ethnic Affairs (No.2) (Unreported, FCA/Lehane J., 15 April 1996)
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Szelagwicz v Stocker (1994) 35 ALD 16

XIANG SHENG LI v REFUGEE REVIEW TRIBUNAL & ANOR
NG 718 of 1995

Sackville J.
Sydney
23 August, 1996

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )    No. NG 718 of 1995
GENERAL DIVISION                 )

BETWEEN:

XIANG SHENG LI
  Applicant

AND:

KAY RANSOME, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

Coram:    Sackville J.
Place:    Sydney

Date:23 August, 1996

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application for review 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 )    No. NG 718 of 1995
GENERAL DIVISION                 )

BETWEEN:

XIANG SHENG LI
  Applicant

AND:

KAY RANSOME, CONSTITUTING THE REFUGEE REVIEW TRIBUNAL

First Respondent

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Second Respondent

Coram:    Sackville J.
Place:    Sydney
Date:     23 August, 1996

REASONS FOR JUDGMENT

Introduction
The applicant is a national of the People's Republic of China, now aged 41.  He entered Australia as a student in 1990 and appears to have remained in this country since that time.  He applies to this Court for review of a decision made by the Refugee Review Tribunal (the "RRT") on 28 August 1995. 

The RRT found that the applicant was not a refugee, on the ground that the evidence did not suggest that there was a real chance that he would face persecution for a reason specified in the Convention relating to the Status of Refugees signed at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees signed at New York on 31 January 1967 ("the Convention"), if he were now to return to China.   For that reason, the RRT decided to refuse the applicant a
protection visa, the criterion for which is that the applicant is a non-citizen in Australia to whom Australia owes protection obligations under the Convention: Migration Act 1958 (Cth) (the "Migration Act"), s.36.  (Section 36 was inserted by the Migration Reform Act 1992 (Cth) (the "Reform Act"), which took effect as from 1 September 1994: see s.39 of the Reform Act for the transitional provisions.)

This is not the first occasion on which the applicant has sought relief from the Federal Court.  He first applied for refugee status on 30 January 1991.  His application at that stage was deemed to be for a Domestic Protection (Temporary) Entry Permit ("DPTEP").  On 12 July 1993, a delegate of the Minister determined that the applicant was not a refugee and refused to issue a DPTEP.  An application for review of the delegate's decision was lodged with the RRT, which affirmed the delegate's decision on 19 January 1994.

On 14 December 1994, Moore J. set aside the decision of the RRT and ordered that the matter should be remitted to the RRT to be determine according to law by a differently constituted tribunal.  His Honour did so on the ground that the decision was vitiated by a breach of the rules of natural justice, in that the RRT did not allow the applicant an appropriate opportunity to obtain legal assistance and thus denied him the opportunity to put his case properly to the RRT: Xiang Sheng Li v Refugee Review Tribunal (1994) 36 ALD 273. Following the decision of Moore J., the application was considered by a differently constituted RRT, which, as I have said, made its decision on 28 August 1995.

Background
The RRT, despite not being convinced that the applicant was a truthful witness, gave him the benefit of the doubt and accepted his account of events before he left China.  There is therefore no dispute as to the background facts.  The following brief account is substantially taken from the reasons of the RRT.

The applicant joined the armed services in China as an enlisted soldier in 1973.  He attended a military training college from 1978 to 1979.  In 1980, after marrying his present wife, who was then a naval doctor, he took an administrative position in a naval hospital.  He attained the rank of Lieutenant Commander.

In 1985, the applicant visited a southern province of China to co-ordinate the purchase of equipment.  Upon his return, he gave an oral report at a meeting, expressing the view that the reason for progress in the southern province was that the western economic system had been adopted there.  Faced with this unorthodoxy, the chairman of the Communist Party Committee at the applicant's workplace ordered the applicant to undertake self-criticism.  The applicant refused.

In late 1985, the applicant was jailed for 35 days on suspicion of using public moneys to buy consumer items.  He escaped and returned to his home and workplace until about April 1986.

In 1986 the applicant was again arrested, this time on corruption charges.  These charges were apparently fabricated by the Committee chairman.   The applicant was detained in custody and then sentenced to imprisonment for one year in a navy military gaol.  He was mistreated in prison, but was released in early 1987 and returned home.  His membership of the Communist Party was cancelled and his wife was suspended from her employment.  Both continued to receive "basic" salaries.

The applicant appealed to a higher court against his conviction.  In June 1989, the court overturned his conviction and directed that he be reinstated in his position at the hospital.  The court also directed that he be compensated for lost salary and that his Communist Party membership be reinstated.  In fact, the applicant did not return to work prior to leaving China in July 1990, although his Party membership was reinstated in about April 1990.  He did not return to work because of delays in implementing the court's directions.  However, the applicant's expectation at the time he left China was that the court's directions would ultimately be implemented.

The applicant decided to leave China while in prison in 1986, although he did not apply to study in Australia until 1989.  In his evidence to the RRT, he said that he had lost faith in the Communist Party and felt that he had no future in the Navy.  He regarded the armed forces as a tool of the Communist dictatorship.  However, it would have taken a long time to resign officially from the Navy and, as he wanted to leave China as soon as possible, he did not resign from his position.

The applicant obtained his passport and an exit permit illegally, by forging documents to support his application.  He took this course because the regulations stipulated that an officer in the armed forces was not entitled to travel overseas privately.  He used official Navy letterhead to obtain his passport and also bribed the chief of the naval research unit to assist him.

Later, the applicant approached the Public Security Bureau for a second exit permit, which was required by the Chinese authorities.  There were no difficulties in obtaining this permit.  Nor did he have to cancel his household registration, because he and his wife lived in accommodation provided by the Navy.

The applicant claimed in his evidence that he was afraid that, if he returned to China, he would be persecuted because of his illegal departure.  He said that, in 1991, after his departure from China, the Navy transferred him to a civilian position because they had discovered he had left China illegally.  He said that because he is now a civilian, the Public Security Bureau would have jurisdiction to arrest him upon his return and that the Bureau would know that he had left China illegally.  He also claimed that he would be treated as a political criminal who had deserted his country, because he had been in the military at the time of his departure.  Moreover, if he returned to China, he would suffer persecution because his leaving China would have been seen as a counter-revolutionary crime.

Correspondence Prior to the Hearing
Because of certain submissions made on behalf of the applicant, to which I shall return, it is necessary to refer to some correspondence between the RRT and the applicant and his solicitor.  This correspondence took place after Moore J. ordered the RRT to rehear the matter, but before the scheduled date for any rehearing. 

By a letter dated 24 May 1995, the RRT advised the applicant that he was entitled to attend an oral hearing, which had been scheduled for 26 June 1996, and to give evidence.  The letter contained the following paragraph:

"You may also name any person you would like to give evidence to the Tribunal about your case.  If you do this, you must also complete on the reverse side of the enclosed form a written statement outlining the evidence which the witness intends to give.  The Tribunal will consider this statement but it does not have to take evidence from any of the witnesses named by you."

The terms of this paragraph reflect the provisions of s.426 of the Migration Act, to which I shall refer later.

The applicant's solicitor wrote to the Deputy Registrar of the RRT on 6 June 1995.  The letter included the following passages:

"We also enclose a list of potential witnesses capable of corroborating the circumstances of Mr Li's imprisonment and the consequences thereof for our client.  You will see that all the nominated persons live in China and therefore when contacting those persons you should add the appropriate international phone code.  We note that with the exception of Mr Li's wife all the other nominated persons have had no contact whatsoever with Mr Li for about five years.  We further note that almost all the witnesses are high ranked Navy personnel; indeed the person heading the list compiled by our client is the second highest ranked officer in the Chinese Navy structure.  Mr Li instructs that the names preceded by a blue asterisk should be given preference as they are likely to be easier to contact from Australia.

In view of the above, and having regard to the potentially catastrophic consequences for Mr Li's family in China, our client urges the Tribunal to exercise utmost care when examining the nominated witnesses.  Most important, our client requests that the fact that he is seeking refugee (sic) in Australia should not be disclosed under any circumstances."

Mr Li also requests that similar care be taken when discussing matter with Mrs Li as Mr Li believes that his home phone number has been taped by the Chinese authorities.

Mr Li regrets that the Tribunal has to be inconvenienced in its facts gathering process, however, our client submits that he is extremely confident that the evidence to be obtained from China will put his case beyond dispute."

The letter attached a list of 12 names.

The Hearing
The hearing before the RRT took place on 26 June 1995.  The applicant was represented by his solicitor.  Towards the end of the applicant's evidence, the following exchange took place between the RRT member and the solicitor appearing for the applicant:

"MEMBER:In relation to these witnesses, I do not see any benefit in the Tribunal contacting them.

SOLICITOR:In my perspective, Miss, the alternative aspect of obtaining corroboration of his situation, his claim, in respect of people that he had no contact with them in several years could be crucial, because it could affect the credibility of the claim as well as the conceptual basis of his fears could be enlarged.

MEMBER:The difficulty Mr Urquiji, is that it is not for the Tribunal to make out Mr Li's case.  I mean, if he wants information from these people, we consider that he should have put that information in.

SOLICITOR:We would agree other than for the fact that these are proceedings in...(indistinct)...therefore the obtaining of information for example from the Australian Secret Service which constituted part of the document before the tribunal and which went some way against the claim of my client, should also be as it were disregarded because it would be prior to the fact gathering process of the Tribunal.  We submit that information from those witnesses, submitted in total candour and which I ask the client if he had any contact with them to as it were influence or prove them, should form part of the fact gathering process of the Tribunal and indeed of the decision making process.

MEMBER:I will take what you said into account."

The Tribunal's Reasons
Having regard to the course of argument, a relatively brief summary of the RRT's reasons is all that is necessary.  As I have indicated, although expressing some doubts about the applicant's veracity, the RRT accepted his account of events before his departure from China in 1990.

After stating the facts, the RRT noted that the applicant, through his solicitor, had provided a list of names of people in China who could be contacted as witnesses.  The RRT continued:

"It is said that these witnesses, many of whom are either current or former military personnel, could corroborate the circumstances of the applicant's imprisonment in 1986.  The applicant's solicitor urged the Tribunal to take evidence from these witnesses by telephone.  The Tribunal has declined to do so.  The applicant has provided to the Tribunal no more than a list of names and has given no indication of the substance of each person's evidence.  In providing procedural fairness, a decision-maker is not obliged to make the case for the applicant (Luu v Renevier (1989) 91 ALR 39) and the Tribunal is not prepared to go through a costly exercise for what may be a minimal return. In any event, the Tribunal is not convinced that the witnesses could add anything of substance to the applicant's case."

The RRT then referred to the meaning of the phrase "well-founded fear of persecution" found in Article 1 of the Convention, as explained by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The RRT pointed out that the matters concerning which the applicant had given evidence had to a large extent been redressed before he had left China. Consequently, at the time the applicant left China, the chance that he would suffer persecution arising out of his political views expressed in 1985, was remote.

The RRT accepted that the applicant might face punishment on a number of counts if he were to return to China.

"First, he may be punished because he deserted the navy.  Secondly, he may be punished because he engaged in forgery and, thirdly, he may be punished because he departed China illegally.  In the view of the Tribunal neither the first nor second matter bring the applicant's claims within the ambit of the Refugees Convention.  As already stated, punishment for desertion is a legitimate exercise of state power.  The same may be said of punishment for engaging in fraudulent conduct."

The RRT concluded that, on balance, it could not be said that the applicant had a political motivation in leaving China.  His statement that he had "lost faith in the Communist system", having regard to the false accusation made against him, was insufficient to give his departure "a political hue".  Nor was there material giving any indication that the Chinese authorities would regard the applicant's departure for Australia as having a political motivation.  Similarly, there was nothing to suggest that those who have applied for refugee status are punished upon return to China.

The Tribunal concluded as follows:

"In summary, the Tribunal finds that at the time he left China in 1990 the applicant was not a refugee.  None of the events which have occurred since then, that is, his departure by irregular means and his applications to stay in Australia, including a Federal Court case, have meant that there is a real chance he would face persecution for a Convention reason if he were now to return to China.  Accordingly, the Tribunal finds that the applicant is not a refugee."

The Legislation
Part 8, Division 2 of the Migration Act now governs applications for review of "judicially reviewable decisions". This term is defined to include decisions of the RRT: s.475(1)(b).

The available grounds for review of a judicially reviewable decision are specified in s.476(1).  They include the following:

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(g)that there was no evidence or other material to justify the making of the decision."

Section 476(2) excludes certain grounds of review that otherwise would or might be available:

"(2) The following are not grounds upon which an application may be made under subsection (1):

(a)that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power."

Section 476(4) elucidates the ground specified in s.476(1)(g):

"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a)the person who made the decision was required by law to reach that 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."

The jurisdiction of the Federal Court to grant relief under laws other than the Migration Act is removed by s.485(1):

"(1) In spite of any other law, including section 39B of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of judicially-reviewable decisions or decisions covered by subsection 475(2), other than the jurisdiction provided by this Part or by section 44 of the Judiciary Act 1903."

Section 44 of the Judiciary Act 1903 (Cth) is not relevant to this case.

The Migration Act specifies the way in which the RRT is to carry out its functions. Section 420 provides as follows:

"(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)The Tribunal, in reviewing decision:

(a)is not bound by technicalities, legal forms or rules of evidence; and

(b)must act according to substantial justice and the merits of the case."

Section 426 provides for a procedure which enables an applicant to request the RRT to call witnesses:

"(1) ...the Tribunal must notify the applicant:

(a)that he or she is entitled to appear before the Tribunal to give evidence; and

(b)of the effect of subsection (2) of this section.

(2)The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice."

Does Part 8 Division 2 Apply?
As I have noted, the applicant initially sought review of the delegate's decision on 27 July 1993. In its first decision on 19 January 1994, the RRT refused the application for review. Following the setting aside of that decision by this Court, the RRT again affirmed the delegate's decision on 28 August 1995. Thus the second RRT decision was made after 1 September 1994, the date Part 8, Division 2 of the Migration Act came into force.

There is a consistent line of authority in this Court holding that, in these circumstances, Part 8, Division 2 of the Migration Act applies to the review of the RRT decision and that, accordingly, s.485(1) of the Act prevents an application for review of the decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act"). The cases include the following: Mahboob v Minister for Immigration and Ethnic Affairs (FCA/Lehane J.) (1996) 135 ALR 693; Mahboob v Minister for Immigration and Ethnic Affairs (No.2) (unreported, 15 April 1996, Lehane J.); Su Wen Jian v Minister for Immigration and Ethnic Affairs (unreported, 24 April 1996, Carr J.); Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996, Olney J.).

Ms Bateman, who appeared for the applicant, did not suggest that I should do otherwise than follow this line of authority. However, she submitted that, in order to take account of the possibility of the Full Court taking a different view of the transitional provisions contained in the Reform Act, I should address any grounds of review that might be available under the ADJR Act, should this line of authority be overturned. (I was informed that an appeal raising the effect of the transitional provisions had been heard by the Full Court but not yet determined.)

In the circumstances, I think this is the appropriate course. However, as will be seen, I do not think that the ADJR Act adds anything to the grounds upon which Ms Bateman ultimately relied.

The Applicant's Submissions
The amended application and written submissions filed on behalf of the applicant raised a number of issues.  In the end Ms Bateman abandoned several contentions foreshadowed in the amended application and the written submissions.

Ms Bateman abandoned the claim that the RRT had committed an error of law, by failing correctly to apply the principles for determining refugee status stated by the High Court in Chan v Minister.  Whether this course was adopted because of the High Court's recent decision in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481, was not made clear. In any event, the point was not pursued and it is not necessary for me to deal with it.

Ms Bateman also abandoned a claim pleaded in the amended application that the RRT had failed to observe the procedures laid down by s.420 of the Migration Act. She took this course, as I understood her, because she accepted that the decision in Minister v Velmurugu precluded the applicant from arguing that a breach of s.420 of the Migration Act constituted a failure to observe "procedures" in connection with the making of the decision, within the meaning of s.476(1)(a) of the Migration Act.

Nor did Ms Bateman proceed with a foreshadowed contention that the RRT had misled the applicant or his solicitor in relation to obtaining evidence for the nominated persons in China.  No evidence to support such a contention was adduced and no submissions were made in support of it.  Similarly, although the written submissions raised an issue of unreasonableness in the Wednesbury sense (ADJR Act, s.5(1)(e), s.5(2)(g)), this issue was not pressed in the oral argument.

The grounds on which Ms Bateman ultimately relied were these:

1. The RRT had not complied with the requirement in s.426(3) of the Migration Act to have regard to the applicant's wishes that evidence be obtained from the nominated witnesses in China. The RRT had been notified by the applicant that he wanted the RRT to obtain evidence from 12 named persons. The RRT had not only declined to obtain the evidence, but had failed to pay regard to the applicant's wishes as s.426(3) requires. Moreover, the RRT was obliged actively to pursue the named witnesses and to make inquiries of them. The failure to do so was a breach of the rules of natural justice and review was available under s.5(1)(a) or, alternatively, s.6(1)(a) of the ADJR Act.

1. There was an inconsistency in the RRT's reasoning.  It had accepted the applicant's account of events before he left China.  Yet the RRT had not accepted the applicant's statement that there was a regulation preventing military personnel leaving China.  (This contention was not raised in the written submissions and it was not entirely clear why it was said to give rise to an available ground of review.  However, Mr Beech-Jones did not object to it being raised, and responded to the argument.

1. The RRT's conclusion that there was no real chance that the applicant would suffer persecution for a Convention reason upon his return to China gave rise to a ground of review under s.476(1)(g) and s.476(4)(b) of the Migration Act. This was because the decision was based on the existence of a particular fact and that fact did not exist.

I shall deal with each of these grounds in turn.

The RRT's Failure to Call the Chinese Witnesses
The letter of 6 June 1995, written on behalf of the applicant, may not have been sent or received within the 7 day period specified in s.426(2) of the Migration Act (that is, within 7 days after the notification contained in the letter of 24 May 1995 sent by the RRT to the applicant). Mr Beech-Jones for the Minister specifically disclaimed any reliance on the possibility that the notice requesting that evidence be obtained from the nominated witnesses may have been given by the applicant outside the 7 day period. I therefore do not need to consider an argument raised by Ms Bateman, that the 7 day period specified in s.426(2) should be classified as directory rather than mandatory.

It follows that the RRT was duly notified of the applicant's desire to obtain evidence from the 12 named witnesses. However, s.426(3) specifically provides that the RRT is not required to call or obtain evidence from the nominated witnesses. Ms Bateman accepted that this was so, but submitted that the RRT had failed to comply with its statutory obligation to have regard to the applicant's wishes. Her argument assumed that a breach of the RRT's duty to have regard to the applicant's wishes was capable of amounting to a failure to comply with "procedures" required to be observed, within the meaning of s.476(1)(a) of the Migration Act.

The principal difficulty facing the submission is that the evidence does not warrant a finding that the RRT failed to have regard to the applicant's wishes in reaching its conclusion that it should not attempt to contact the nominated witnesses.  The exchange that took place between the RRT member and the applicant's solicitor during the course of the hearing shows that the RRT was not only aware of the applicant's request, but that the member would take it into account.  There was nothing in the evidence to contradict this statement by the RRT member or to suggest that it did not accurately reflect the position.

Moreover, the reasons given by the RRT specifically address why it was thought inappropriate to take the matter further by attempting to contact the witnesses.  These reasons included the failure of the applicant to address the substance of the likely evidence of each witness, and the fact that the RRT had formed a judgment that the exercise could be a costly one for a "minimal return".  The RRT was also not convinced that the witnesses could add anything of substance to the applicant's case.  This view was no doubt influenced by the RRT's finding that the applicant's account of events in China should be accepted.

These reasons demonstrate that the RRT did not accede to the applicant's request. However, they equally demonstrate (in the absence of any other evidence) that the RRT paid regard to the applicant's wishes and made a considered decision, as contemplated by s.426(3) of the Migration Act, that it would not obtain evidence from the witnesses nominated by the applicant.

Ms Bateman contended that the RRT was under an obligation, in order to comply with the duty imposed by s.426(3), to undertake inquiries to ascertain the nature of evidence that might be given by each of the proposed witnesses. I am prepared to assume, without deciding, that there might be circumstances in which the RRT could pay due regard to an applicant's wishes, as required by s.426(3), only by undertaking further inquiries to clarify the nature of the evidence on which the applicant intends to rely. Such a case conceivably might arise, for example, where an unrepresented applicant fails to explain how a nominated witness could help his or her application. In the circumstances, if the RRT is aware that the applicant is unrepresented, it might be said not to have paid "regard to the applicant's wishes" without obtaining an explanation of the significance of the evidence. I emphasise that I am not to be taken as expressing a view on this question. The general principle, as Davies J. has recently reiterated in Dharam Raj v Minister for Immigration and Ethnic Affairs (unreported, 18 July 1996), is that the RRT is not required to make its own inquiries under the Migration Act.

In the present case, the request to obtain oral evidence from the nominated persons in China was made in a letter sent by the applicant's solicitor.  It was clear enough from the letter that the principal, if not the only, purpose of the evidence was to corroborate the circumstances of the applicant's imprisonment.  At the hearing, the solicitor said the purpose of the evidence was to corroborate the applicant's "situation" and the "conceptual basis of his fears".  The applicant had ample opportunity to provide details of the substance of the evidence and to explain how it might assist his application otherwise than by merely corroborating his account of events.  Indeed, as Mr Beech-Jones pointed out, even now no evidence has been provided as to how the proposed witnesses might have assisted the applicant's case.  In these circumstances, in my opinion, the RRT was well able to understand the nature of the applicant's wishes and to make a decision having regard to those wishes.  It was under no obligation to make further inquiries to ascertain the nature of the oral evidence on which the applicant wished to rely.

Ms Bateman submitted that, independently of s.426(3) of the Migration Act, the RRT had breached the requirements of procedural fairness by failing actively to pursue the evidence of the nominated witnesses. This submission, of course, presupposes the availability of the grounds of relief under s.5(1)(a) and s.6(1)(a) of the ADJR Act. That assumption will be correct only if the line of authority to which I have referred is overturned.

Ms Bateman contended that the evidence of the Chinese witnesses was critical to the decision and should have been followed up by the RRT on its own initiative. This submission, as I followed it, was not linked to an argument that the RRT's decision was so unreasonable that no reasonable person could have reached it: ADJR Act, s.5(1)(e), s.5(2)(g); compare Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 (FCA/Wilcox J.) at 167-170. Rather, it seemed to be put on the basis that procedural fairness required the RRT to undertake the investigations on its own initiative.

The general principle, as I have already said, is that the RRT is not obliged to make the case for the applicant: Luu v Renevier (1989) 91 ALR 39 (FCA/FC), at 45 and cases cited there. However, there may be circumstances in which a decision may be set aside for failure to make inquiries. The principle was stated by Wilcox J. in Prasad v Minister (at 169-170):

"The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited.  It is no part of the duty of the decision-maker to make the applicant's case for him.  It is not enough that the courts find that the sounder course would have been to make inquiries.  But, in a case where it is obvious that material is readily available which is centrally relevant to the decision being made, it seems to me to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have exercised it.  It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information."

That statement of the law has subsequently been applied: Luu v Renevier, at 49-50; Tickner v Bropho (1993) 40 FCR 183 (FCA/FC), at 197-198, per Black CJ; see also Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, at 289-290, per Mason CJ and Deane J.

In my opinion, there is no basis for the application of this principle in the present case.  There is nothing in the evidence to suggest that the evidence that the nominated witnesses could have provided was "centrally relevant" to the decision.  The correspondence put the principal reason for requesting the evidence as being to corroborate the applicant's account of events.  Since the RRT ultimately accepted that account, the evidence (as the RRT said in its reasons), even if it supported the applicant, could not materially have advanced his case.  As I have said, even now, there is no material to indicate the manner in which "readily available" evidence could have assisted the applicant.

Ms Bateman also submitted, albeit faintly, that the applicant had a legitimate expectation that inquiries would be made of potential witnesses by the RRT and that the failure to do so therefore breached the obligation to accord procedural fairness. Ms Bateman did not explain how the legitimate expectation arose, other than to say that it emerged from the RRT's "inquisitorial procedures". Nor did she explain how the expectation was consistent with the express terms of s.426(3) of the Migration Act. In the absence of an evidentiary foundation for the argument it cannot be sustained.

The Alleged Inconsistency
Ms Bateman contended that there was an inconsistency in the reasoning of the RRT. It had accepted the veracity of the applicant's account, yet had declined to accept his evidence that there was a regulation which prevented military personnel from leaving China. It is not clear how any such inconsistency, even if it were to be established, could constitute a ground for review, either under the Migration Act or the ADJR Act.

In any event, there is no such inconsistency.  The RRT gave the applicant "the benefit of the doubt" in accepting the "veracity of his statements as to what occurred before he left China".  That finding does not mean that the RRT was prepared to accept everything the applicant said.  In particular, it does not mean that the RRT was bound to accept the applicant's evidence as to what would or might occur on his return to China and as to whether any regulations prevented military personnel from leaving China.  These were matters on which the RRT was entitled to consider all the material before it, including (as it did) information relating to the military laws of China.

No Evidence of a Particular Fact
Ms Bateman submitted that the RRT had made its decision on the basis of the "fact" that there was no real chance of the applicant being persecuted on his return to China. She also submitted that this fact did not exist. Thus the ground in s.476(1)(g) of the Migration Act, as elucidated and limited by s.476(4)(b), had been made out. It should be noted that these subsections are in the same terms as s.5(1)(h) and s.5(3)(b) of the ADJR Act.

The operation of s.5(1)(h) and s.5(3)(b) of the ADJR Act has been considered in a number of cases: see, for example, Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 (FCA/Wilcox J.), at 519-521;  Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at 357-358, per Mason CJ; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (FCA/FC) at 220-224, per Black CJ. In Szelagowicz v Stocker (1994) 35 ALD 16 (FCA/FC), Davies and Einfeld JJ. explained the operation of s.5(1)(h) and s.5(3)(b) of the ADJR Act as follows (at 22):

"Subsections (1)(h) and (3)(b) of s.5 extend to a very limited degree the remedies available under s.5(1)(e) and (f). As we have mentioned, all the usual challenges to decisions by reference to the evidence or material are challenges which fall under s.5(1)(e) or (f). These challenges are determined by comparing the decision and the reasons for the decision with the material which was before the decision-maker. They encompass challenges that the decision was perverse, was not such as could be reached by any reasonable decision-maker and so on. Section 5(1)(h) and (3)(b) deal with the circumstance where such a ground is not available. They provide a ground of review where there was before the decision-maker no evidence of a fact, the decision was based on the existence of that fact and the fact did not exist. On this ground, a decision may be challenged, but only if evidence is called which positively establishes that the fact did not exist. They do not permit evidence to be adduced to contradict either evidence or material which was before the decision-maker or an inference which was available to be drawn from that evidence or material."

As their Honours remarked (at 19), s.5(3) does not allow aggrieved persons to adduce additional evidence, so that the court determines for itself issues of fact in dispute before the decision-maker.

Section 5(3)(b) of the ADJR Act applies to any particular finding of fact that is critical to the making of a decision, even if that finding is not the only link in the chain of reasoning: Curragh v Daniel, at 220-221. It is necessary, of course, for the applicant to show that the particular fact does not exist. For this purpose the applicant may adduce admissible evidence in the court proceedings: Curragh v Daniel, at 224.

But s.5(3)(b) of the ADJR Act and s.476(4)(b) of the Migration Act) apply only to a case where the decision is based "on the existence of a particular fact". The finding that Ms Bateman sought to impugn was the ultimate conclusion reached by the RRT, namely, that there was no real chance that the applicant would face persecution for a Convention reason if he were to return to China. This was not a particular fact the existence of which provided the basis for the RRT's decision. It was a conclusion as to future possibilities based on a series of factual findings, none of which was challenged on the ground specified in s.476(4)(b) of the Migration Act.

The finding by the RRT was a negative one - that is, that the

applicant did not have a real chance of suffering persecution in the relevant sense. Mr Beech-Jones submitted that s.476(4)(b) of the Migration Act could not apply to a finding that a particular fact or state of affairs did not exist. Having regard to the conclusion I have reached, it is not necessary to decide this question.

Conclusion
The application for review should be dismissed, with costs.

I certify that this and the preceding 26 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville.

Associate:

Dated:23 August, 1996

Heard:16 August, 1996

Place:            Sydney

Decision:23 August, 1996

Appearances:      Ms M.T. Bateman, instructed by Partners in Law, Solicitors, appeared for the Applicant.

Mr R.J. Beech-Jones, instructed by the Australian Government Solicitor, appeared for the Respondent.