Xin Xu v Minister for Immigration and Multicultural Affairs

[1997] FCA 1173

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - application for refugee status - finding by Refugee Review Tribunal that part of testimony of applicant inconceivable - finding of credit - applicant accordingly disbelieved - no failure to give reasons nor reliance on material not in evidence or not referred to in reasons - no reviewable error.

Migration Act 1958 (Cth), ss 430, 476, 485

Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322, applied.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, referred to.

XIN XU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 513 of 1997

HILL J
SYDNEY
5 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 513  of   1997

BETWEEN:	XIN XU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		HILL J
DATE OF ORDER:		5 NOVEMBER 1997
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant to pay the respondent’s 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	NG 513 of 1997

BETWEEN:	XIN XU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	HILL J
DATE:	5 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant, Mr Xin Xu, seeks judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) determining that it was not satisfied that he met the requirements of the definition of a refugee in the 1951 United Nations Convention Relating the Status of Refugees as amended by the 1967 Protocol (“the Convention”) and thus affirming the decision of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) not to grant to him a Protection Visa.

As a result of s 485 of the Migration Act 1958 (Cth) (“the Act”) the grounds of judicial review are limited to those set out in s 476(1) of the Act: Minister for Immigration and Ethnic Affairs v Ozmanian (1996) 141 ALR 322 at 346-7. The grounds which the applicant upon which the applicant relies are those set out in pars (a), (e) and (g) of s 476(1) being:

“(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;

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

...

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

Irrespective of the paragraph of s 476(1) relied upon, the gravamen of the applicant’s complaint is either that the Tribunal did not, in accordance with its obligations so to do in s 430(1)(a) set out its reasons, at least sufficiently to enable them to be understood, or it based itself on material not formally in evidence before it. By way of summary of these grounds, rather than as a separate ground, it is submitted that the Tribunal really did not decide the issue which it was obliged to decide, namely, whether the applicant had, within the meaning of the Convention, a well-founded fear of being persecuted for reasons of his political opinion.

The applicant is a national of the Peoples Republic of China.  It was his case that since 1993 he had attempted to expose the corruption of leaders in his work unit by writing letters to senior government and Party officials.  This brought about the result that he was dismissed from his work unit.  However, he continued to write letters to senior officials protesting against corruption until, he says, he was sent in 1994 to a mental hospital to be checked and was kept there for two and a half months following which he was released.  He claimed that he had continued to write letters on his release and in August 1995 had been detained by the Public Security Bureau and sent to a psychiatric institution controlled by that body.  There a psychiatrist who had examined him told him that he did not believe he had a psychiatric problem but that if he found that he did not have a psychiatric illness the applicant would be sentenced.  In the result, the psychiatrist apparently reported that the applicant had psychiatric problems as a result of his childhood and the persecution of his mother.  He was released from the institution in November 1995.

At this point the applicant said he decided to leave China and enlisted the help of a friend who ran a tourism business to help him.  He said that at the end of November 1995 his friend had obtained a passport for him “through back door methods”, providing the applicant with a certificate from his work unit and using that to obtain a security clearance for the applicant to obtain a passport an exit permit.

The Tribunal’s Reasons for Decision note that the applicant gave evidence that to get a passport it was necessary to have a certificate from a work unit to have an invitation issued from the foreign country, in this case Australia, and to pass a political examination.  The Tribunal asked the applicant how he could have passed any political examination given that he had stated that he had just been released from a psychiatric institution and was under investigation for psychiatric illness associated with his political opinions.  According to the Tribunal’s reasons, the applicant stated that he was not the only person who had avoided checks on their political activity in the Peoples Republic of China, that his papers had been returned from his work unit in 1993, that his personal file had been returned from the work unit to the neighbourhood committee in 1993 when he was dismissed from the work unit, and that the people within the Public Security Bureau who issued him with the passport failed to check with his neighbourhood bureau which, inferentially, would have had the file.  The applicant claimed that such a lack of checking happened sometimes in China.

It was the applicant’s case that he feared that if he returned to China he would be persecuted.  He also claimed to fear persecution because of his family background, a matter on which the Tribunal found adversely against him and which is not challenged in the present appeal.

The Tribunal, after setting out some material concerning the cultural revolution which led it to its conclusion that there was no real chance that the applicant would suffer persecution as a result of his family background, continued:

“The Tribunal further notes that the Applicant claimed he had been imprisoned in a psychiatric institution in the PRC for reasons of his political opinions; and that, although he was released from that institution in November 1995, he was the subject of continuing investigation and that he therefore fears that if he returns to the PRC he will again be imprisoned in a psychiatric institution.

The Applicant claims that despite that, with the assistance of his friend ‘X’, he was able to pass a political examination to obtain a passport and come to Australia.  The Tribunal is not satisfied that the above is true.  It is inconceivable that the Applicant could have passed a political examination whilst under active investigation by the PSB.  The Tribunal notes the explanation, that the Applicant’s personal files were held at the neighbourhood committee and that, with the assistance of a false work unit certificate, he was able to pass the political clearance.  For the Tribunal to accept that the Applicant would be granted a political clearance without a check with the neighbourhood PSB requires the Tribunal to accept a staggering degree of incompetence on the part of the PRC authorities.  The Tribunal is not satisfied that there is any basis for it to come to that conclusion.

The Tribunal is not satisfied, on the evidence available to it, that the Applicant has been imprisoned in a psychiatric institution for reasons of his political opinion, or that there is any real chance that he will be in the future.

The Tribunal notes that the Applicant claimed that he left China through an indirect method by travelling overland before flying out, but does not find that that is relevant to this application.

The Tribunal is not satisfied that there is a real chance that the persecution the Applicant fears will occur.”

Counsel for the applicant seizes upon that part of the Tribunal’s reasons where it expressed the view that it was inconceivable that the applicant could have passed a political examination whilst under active investigation by the Bureau.  It is submitted that it may well be that there was material known to the Tribunal upon which it could have based this conclusion but that if this was so it was the obligation of the Tribunal to identify the material which it took into account.  The Tribunal’s reasons were criticised also on the basis that the Tribunal must have taken into account in coming to the conclusions it did, material that was not formally in evidence before it.  It may be noted that the Tribunal outlined the evidence which it would consider, in addition to any oral evidence which the applicant might choose to give.  The information consisted of material concerning the cultural revolution and pro-democracy activities, some short material about “stringent vetting procedures” for a second exit permit which could be refused if the authorities had an interest in the applicant so that generally speaking persons permitted to leave China were “thoroughly vetted” and other information including material which suggested that while bribes were regularly given to obtain passports, officials would not take bribes to process exit documents in respect of high profile dissidents or those wanted by the PSB.

It is of course correct to say that there will be circumstances where a failure to comply with the obligations in s 430(1)(a) of the Act might constitute an error of law, although whether the terms of s 476(1)(e) would apply to such an error may be doubted. Failure to give reasons would, however, fall within s 476(1)(a) being a failure to comply with procedures required by the Act in s 430 to be observed in connection with the making of the decision. Section 430(1) provides:

“Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)      sets out the decision of the Tribunal on the review; and
(b)      sets out the reasons for the decision; and
(c)       sets out the findings on any material questions of fact; and

(d)refers to the evidence or any other material on which the findings of fact were based.”

However, it is important to bear in mind the cautionary admonition contained in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, by reference to what had been earlier said by a Full Court of this Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, namely that a court should not be:

“‘concerned with looseness in the language ... nor with unhappy phrasing’ of the reasons of an administrative decision-maker ... ‘T he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error’.”

It is not difficult to understand the course which the Tribunal took.  It formed the view that the applicant’s testimony about being committed to a mental institution because of his political beliefs was inherently improbable, having regard to the fact that he had passed a political examination conducted by the Public Security Bureau who would have had access ordinarily to his files which would have indicated his political activities.  The Tribunal expressed this in terms of inconceivability.  It might perhaps have been better had the Tribunal referred to it as being improbable or unlikely.  But that of itself could hardly be said to be a ground of appeal.

Having formed the view that the applicant’s story in this respect was inherently unbelievable, it rejected the applicant’s evidence so far as was relevant to his claim of a well-founded fear of persecution for political reasons on the basis of credit.

With respect to the careful submission put on behalf of the applicant, the present is neither a case where the Tribunal failed in its obligations to give reasons or one where the Tribunal had regard to matters not before it. All the Tribunal did was form a view on the credit of the applicant by reference to the inherent probability of his testimony. This is done day after day in tribunals and courts throughout the country. It involves no error of a kind referred to in s 476(1) of the Act.

It follows that the application must be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:             5 November 1997

Counsel for the Applicant:	J M Atkin
Solicitor for the Applicant:	Coroneous & Company
Counsel for the Respondent:	A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 October 1997
Date of Judgment:	5 November 1997