Xu v Minister for Immigration and Multicultural Affairs

[1999] FCA 1090

FEDERAL COURT OF AUSTRALIA

Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1090

HUI ZHONG XU v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG 1236 of 1998

TAMBERLIN J
SYDNEY
30 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1236 OF 1998

BETWEEN:	HUI ZHONG XU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	TAMBERLIN J
DATE OF ORDER:	30 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for review is dismissed with costs.

2.        The decision below is affirmed.

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	1236 OF 1998

BETWEEN:	HUI ZHONG XU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	30 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-tempore Judgment

1. When this matter came on for hearing this morning, Mr Xu, the applicant, indicated to me that in substance he wished to obtain a lawyer and implicit in that was a suggestion that he wished to obtain an adjournment.  In support of this application he handed to the Court a letter from the New South Wales Bar Association, of 26 July 1999, noting that it was unable to assist any further in the matter.  It appears from the letter that in February 1999 the applicant spoke with the New South Wales Bar Association, but there is no indication that this application was pursued or pressed in any way, and indeed the letter indicates that the Bar Association had not heard from Mr Xu since February 1999.

2. In the circumstances, and having regard to the record and history of the matter, I am satisfied that there was ample opportunity for Mr Xu to exhaust all the possibilities of obtaining legal assistance, and I am not prepared to grant an adjournment of the application.  I think it must be determined today.

3. The applicant is a citizen of the Peoples’ Republic of China who arrived in Australia on 12 September 1994.  On 14 March of the following year, he lodged an application for a protection visa.  This was refused by a delegate of the Minister for Immigration and Multicultural Affairs on 29 March 1996.  On 26 April the applicant sought review of that decision.  The RRT affirmed the delegate's decision on 7 November 1997.  The applicant then sought review by the Federal Court on 2 June 1998.  This was successful, and the Court set aside the decision and remitted the matter back to the RRT to be determined according to law.  On 10 November 1998 the RRT affirmed the decision not to grant a protection visa.

4. In its decision, the RRT noted that the Department of Immigration and Multicultural Affairs and the Tribunal had both received a number of letters over the period February 1995 to October 1998 about the applicant, which claimed that he was using his application for a protection visa to obtain permanent residence, and that he was not telling the truth about his claims.  These allegations are set out in the decision, and the material indicates that the allegations were put specifically in substance to Mr Xu.  The RRT noted, however, that it was conscious of the fact that the author of the letters did not want his or her identity disclosed on the basis that that person was afraid of the applicant.

5. The substance of the applicant's complaint in the application for review of the RRT decision is that the RRT did not give him a fair decision, because the allegations in the letters examined by the RRT were made by a person with a grudge against the applicant, and the RRT erred in using those letters.  The applicant says that the person writing the letters told lies about him and did not know what he was talking about.  He also says that another party with whom he consulted said that the letters should not be given any effect or weight.

6. In his findings, the decision-maker said this:

   “The Tribunal has noted the letters it and the Department have received from someone alleging that Mr Xu is endeavouring to obtain a protection visa by using false information.  The Tribunal accepts that the letters are obviously written by someone with a grudge against Mr Xu.  It is also clear, from Mr Xu’s evidence, that at least in some respects the author has a good knowledge of Mr Xu's situation in China and in Australia.  The letters add to the very real doubt the Tribunal has about Mr Xu's credibility.”

7. The material indicates that the allegations were put to Mr Xu and that he had an opportunity to meet the substance of them.  The identity of the writer was not disclosed but this was clearly for the purpose of protecting the author.

8. This is a case where the decision-maker has made a number of specific findings in relation to particular matters alleged by the applicant.  In many instances the matters advanced by Mr Xu were not believed and reflected, apart from the letters, a very real doubt in the mind of the decision-maker as to the credibility of Mr Xu.  The specific phrase used by the decision-maker, to the effect that the letters added to the very real doubt he had about Mr Xu's credibility, indicates that apart from the letters the decision-maker did have a very real doubt, and that credibility was clearly a critical issue in the mind of the decision-maker.

9. Credibility was of course central if not the critical issue in the reasons for decision in relation to the issues in this case.  However I am not satisfied that there was any procedural unfairness in the way in which the Tribunal approached the matter.  The reasons indicate that the RRT approached the letters with caution, and with a full appreciation they were written by someone with a bias or grudge against Mr Xu.  The weight to be given to such letters is a question of fact and degree for the decision-maker.  In the present case, I am not persuaded that any incremental doubt engendered in the mind of the RRT by the letters as to the credibility of Mr Xu materially affected the outcome of the decision.  In any event, I consider that the RRT was entitled, approaching the letters was due circumspection, to give such weight to them as it thought fit.  It has done so. 

10. In this hearing, a number of other matters were raised by Mr Xu.  None of them in my view have any real substance.  I will briefly instance the matters which were raised.  The first matter which was raised concerned an interview with an immigration officer.  It seems to me that what was said in relation to this matter did not have any bearing on the decision of the Tribunal and I do not think it is significant.  In any event, the interview records were before the decision-maker and there is no indication that these were misread or misapplied in any way.

11. Another matter which was mentioned by Mr Xu, was that a factory which was found not to exist by the decision-maker, in fact did exist, and that the finding indicated that the decision-maker did not understand the situation in Shanghai in relation to factories.  There were in fact, he says, 32 textile factories like this in Shanghai.  Again, it seems to me that this finding was not central to the decision or important to the decision in any significant respect, and accordingly this ground does not carry any relevant weight.

12. One matter which could have been of some significance but which, on further investigation, I find was not, was a statement alleged to have been made by the decision-maker towards the close of the hearing before the RRT to the effect that, "Do you know you've got your residency?"  An examination of the transcript makes no reference to this having been said.  Indeed, it seems highly likely that it was not said, having regard to the ultimate decision of the Tribunal and also having regard to the statement at the close of the hearing to the effect that the decision-maker would post a decision out to the applicant as soon as a decision was made.  Such a statement goes quite contrary to any suggestion that the decision-maker would have made any commitment to the effect that Mr Xu had secured his residency and satisfied the requirements. 

13. There were further references in the suggestions by Mr Xu to the fact that investigations had been carried out by the Tribunal and that in some way these were unfair.  There is nothing in the material before me to indicate that this was so.  I do not accept this submission.

14. Having regard to the above considerations, I am satisfied that the decision of the Tribunal below ought to be affirmed and that the applicant ought to bear the costs of the application.  But before making any order as to costs, I will invite the applicant to make submissions on that question.

15. There is a suggestion that the transcript of the proceedings before the RRT sent to the Bar Association for consideration, was different from that which has been produced in the course of the hearing today on the question of whether any assurance or statement had been made by the RRT member.  I do not see that this is of any relevance to the matters which have been put before me.  The transcript was tendered for the purpose of indicating whether there was anything said or any assurance given by the member.  That transcript disclosed that nothing was said and I have so found. 

16. In the circumstances, then, I think it is appropriate that an order be made that the applicant pay the costs of the respondent and I make that order, together with the order that the application for review is dismissed and the decision below is affirmed.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:        

Dated:             30 July 1999

The Applicant:	The applicant appeared in person
Interpreter:	Mrs Spicer
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 1999
Date of Judgment:	30 July 1999