XYZ v Minister for Immigration and Multicultural Affairs

[1998] FCA 291

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 145 of 1997

GENERAL DIVISION

BETWEEN:

XYZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CARR J
DATE:	11 MARCH 1998
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

INTRODUCTION

The applicant, who for reasons of confidentiality is referred to formally in these proceedings as Mr XYZ, applies for review of a decision of the Refugee Review Tribunal (“the RRT”) rejecting his claims for recognition of refugee status and the grant of a protection visa.  The applicant is 72 years of age.  Between 1951 and 1981 the applicant lived in Hong Kong.  He has the status of a “Hong Kong Special Administrative Region Chinese National with Overseas Right of Abode”.  He has a right to return and remain in Hong Kong, the right to work, the right to education and the right to go in and out of the country.  He also has the right to have a travel document and the right to social security in Hong Kong.  The applicant left his family in Hong Kong on 24 December 1981 and arrived in Australia the following day with a one-month visa in a Hong Kong passport issued on 22 June 1976, but which passport expired in 1986.  The applicant’s wife and one of his sons are now in Australia.  His other son is in Hong Kong.  The applicant applied for permanent residency on 31 October 1990.  That application was rejected on 7 September 1993.  The applicant then applied for refugee status on 15 November 1993.  That application was rejected by the respondent’s department on 4 February 1994 on the grounds that the applicant’s nationality was that of a citizen of the United Kingdom and Colonies and that he had made no claims relating to a fear of persecution by the United Kingdom.  That decision was reviewed by the RRT on 17 August 1994.  The Tribunal determined that the applicant’s fear of the PRC government, after it was to regain control of Hong Kong in 1997, was not well founded.  It affirmed the decision that the applicant was not a refugee.  The applicant then applied to this Court for review of that decision.  On 17 June 1996, by consent, the decision of 17 August 1994 was remitted to the Tribunal for reconsideration.  The Tribunal, differently constituted, conducted hearings on 19 November and 21 November 1996.  The applicant was assisted by a solicitor at the first hearing and by an interpreter in the Chinese language at both hearings.  The applicant’s wife also attended those hearings.  On 11 March 1997 the RRT affirmed the primary decision made by the delegate.  On 10 April 1997 the applicant applied to this Court for review of the RRT’s decision.

STATUTORY FRAMEWORK

The relevant criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act 1958 (“the Act”) and Clause 866 of Schedule 2 to the Migration Regulations. One basic criterion is that the respondent is satisfied that an applicant for such a visa is a person to whom Australia has protection obligations under the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The relevant part of Article 1 of the Convention defines a “refugee” as any person who:

“Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ...”.

It is important in cases of this type to keep in mind the Court’s function. The Court’s role is to examine the matters specified in the grounds of review. It is not the function of the Court to review the merits or decide the facts of the case. The facts are for the maker of the administrative decision, in this case the Refugee Review Tribunal. This Court’s function is to ascertain whether there was anything having the nature of an error of law in the Tribunal’s decision including any error in the approach which it took to deciding the questions before it. In particular (on the present state of the authorities) was there a failure to comply with the requirements of s 420 or any other section of the Act or does any matter otherwise arise under s 476 of the Act?

FACTUAL BACKGROUND

The following summary of the factual background of this matter is taken largely from the Tribunal’s reasons for decision.  The applicant joined the Chinese National Party (“the KMT”) in 1944 at the age of 18 years.  He was assigned to the Military Intelligence Information Unit to collect and analyse the activities of the Chinese Communist Party (“the CCP”) in Shanghai and Central China.  The applicant was transferred to another intelligence unit and, in 1947, was involved in an attack on Yen An, then the capital of the CCP.  In that attack the KMT captured 10,000 communist soldiers.  As one of ten KMT Intelligence Agents, the applicant was required to interrogate about 1,000 of the captives for military information.  The applicant said, and the Tribunal accepted, that he did not use violence in interrogating those captives.  The applicant was an ordinary soldier in the intelligence unit.  The questioning of the captured soldiers was done in large groups by four KMT officers and soldiers at a time.  The applicant was one of a group of four questioners, some of whom were of higher rank and some who were younger than the applicant.  The unimportant prisoners were released when they answered the questions and they went back to their homes.  Some of these returned to Shanghai.  As the important captives were sent to a higher authority to be dealt with, the applicant only finalised the questioning of unimportant soldiers.  In the middle of 1950 the applicant moved to southern China with his military leader, who later fled to Taiwan.  In 1951 the applicant moved back to Shanghai with instructions from the KMT to collect information on the activities of the new communist government.  The applicant lived in Shanghai at his uncle’s house.  He worked as a baker and continued to collect information for the KMT Intelligence Unit in relation to matters such as the bombing of Shanghai by Taiwanese planes in 1950 and 1951.  When the communists launched a campaign against KMT members in 1951, the applicant feared reprisals and requested permission to leave China.  He arrived in Hong Kong in the latter part of 1951.  Whilst in Hong Kong the applicant continued to support the KMT and its private enterprise principles.  He gave donations to the KMT and attended their annual commemorative celebrations at which he was photographed by Communist Party cadres.  In 1968 the applicant returned to China for three months to see his family.  He had no trouble obtaining an entry permit to mainland China when he applied for it at the border town and he did not experience any difficulties with the authorities on that trip.  After the 1967 riots in Hong Kong, the applicant felt fearful of the prospects of Communist Party rule and considered leaving Hong Kong.  However he felt that if he did so, he would be disadvantaged, as he used to work for the KMT.  In Hong Kong he continued to support the KMT by giving donations and attending KMT public activities such as 10 October celebrations.  However, he was not prominent in any part of the KMT organisation and did not develop a political reputation.  The applicant feared that if he returned to Hong Kong he would be under constant surveillance and be denied freedom of expression and democratic rights.  He feared that Beijing will not comply with its obligations to respect the human rights of Hong Kong citizens and that Hong Kong will be controlled by communists.  The applicant stated that he delayed submitting an application for refugee status as he was unaware that this was an option and he was fearful of revealing his background as he was an illegal entrant at the time.  In support of his claims the applicant’s solicitor made submissions, including a submission dated 11 March 1997, together with newspaper reports of the treatment of a named individual by the Chinese authorities on his return to China in the 1980s.  The applicant claimed that he faced persecution for his political opinions and for his membership of a particular social group, namely, former KMT Intelligence Officers. 

THE TRIBUNAL’S REASONS

The Tribunal noted that the applicant had lodged his application for refugee status in 1993 shortly after his application for permanent residency (made in 1990 whilst he was an illegal entrant) had been rejected by the respondent.  It also noted that both his applications for permanent residency and for refugee status were made with the assistance of a solicitor.  The Tribunal stated that the delay of 12 years between the applicant’s departure from Hong Kong and the lodgment of his application for refugee status appeared to indicate that he did not have a strong fear for his personal safety or future well-being when he left China.  The Tribunal stated that even if the applicant were unaware of the execution of the Memorandum of Agreement between the United Kingdom government and the Peoples Republic of China in 1984 until 1989, a period of four years had elapsed before he submitted an application for refugee status.  The Tribunal noted that these delays would appear to indicate that when the applicant left Hong Kong he did not fear for his safety and that, when he became aware of the anticipated 1997 Chinese takeover of Hong Kong, he was also not concerned for his safety.  In reaching that conclusion the Tribunal said that it was “reinforced” by the decision in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. The Tribunal expressed doubts as to the extent of the applicant’s fear when he left Hong Kong and at the time when he became aware of the plans to return Hong Kong to Chinese control, but accepted that the applicant may now feel fearful of returning to Hong Kong as (at the time the Tribunal gave its decision) Hong Kong would shortly be under Chinese control. The Tribunal accepted that the applicant felt fearful at the prospects of returning to Hong Kong and that the subjective element of the legal test for refugee status had been satisfied. It then proceeded to consider whether the applicant’s fears were well-founded in that he had a real chance that he would be persecuted for a Convention reason on return to Hong Kong. The Tribunal considered and rejected the possibility of the applicant being entitled to seek refuge in the United Kingdom. The Tribunal then proceeded to consider whether, as the applicant claimed, he faced persecution for his political opinions and for his membership of a particular social group, namely, former KMT Intelligence Officers. In particular the Tribunal considered whether the applicant’s history, as a former KMT Intelligence Officer, posed a real chance of persecution, recognising that this was also central to the Convention ground of political opinion. The Tribunal accepted that the applicant holds different political opinions from those of the PRC government. It acknowledged that this in itself did not constitute a Convention ground. The Tribunal referred to five government and non-government reports on the basis of which it accepted that many dissidents had been arrested or detained in China, that there are serious human rights abuses in that country and that human rights standards in China fall far below those of western democracies. In particular, the Tribunal accepted the opinion of the Department of Foreign Affairs and Trade October 1993 report to the Senate Standing Committee on Foreign Affairs, Defence and Trade that “internationally recognised principles of human rights get specific mention in the PRC’s Constitution, but are not honoured”. However, so the Tribunal noted, the existence of generalised human rights abuses does not in itself establish an applicant’s claim to refugee status. In that context the Tribunal turned its mind expressly to the specific question of whether there was a real chance that the applicant would suffer persecution for a Convention reason should he return to Hong Kong. The Tribunal looked at the general attitude of the Chinese authorities to KMT cadres and then considered whether the applicant’s particular role in the intelligence unit of the KMT army posed a real chance that he would be targeted by the Chinese authorities. This was in the context of his age at the time when he conducted the questioning referred to above, the absence of his promotion, his role as one of a group of questioners, and the fact that he did not deal with the important captives. The Tribunal said that it was satisfied that when the applicant was in the intelligence unit he was a young and low-ranking soldier. The Tribunal then re-examined the applicant’s experiences with the Chinese authorities after “liberation” i.e. after the Chinese Communist takeover of China. It noted that while the applicant continued his covert KMT activities and was questioned three times by the security authorities, he was never arrested or detained. The Tribunal said that it was satisfied that if the applicant was of any interest to the authorities at that time he would not have been released after questioning on three occasions. It said that it was satisfied that before his departure for Hong Kong the authorities were either unaware of the applicant’s role in the interrogation of the captives in Yen An or they regarded this as insignificant. The Tribunal also considered the applicant’s experiences with the Chinese authorities since that time. In particular it noted that the applicant returned to mainland China in 1968 for three months and had no trouble in entering China and no difficulties with the authorities whilst there. On that basis, the Tribunal was satisfied that the authorities had no interest in him in 1968. It noted that this was consistent with a report in the Beijing Review 1989. That report referred to the situation of former members of the KMT from Taiwan and other parts of the world returning to mainland China. The report indicated that such persons would not face persecution if their involvement with the KMT activities ended before the establishment of local governments in the province where they were stationed. In respect of an offence after that date the report referred to a statute of limitation of 20 years being imposed. The Tribunal observed that the applicant interrogated the captives before the establishment of the Peoples Republic of China and ceased his work for the KMT in 1951. He had returned to China 21 years after the interrogations. The failure of the authorities to take any action was, so the Tribunal observed, consistent with the views expressed in the Beijing Review. [The applicant mounted an attack (in the present proceedings) on the use of a 1989 publication in assessing what took place in 1968, some 21 years earlier, as indicating consistency. In my view there was nothing which precluded the tribunal from assessing what is reported about the official Chinese policy in 1989 and observing that that information was “consistent” with the failure of the authorities to take action in 1968 when the applicant visited China. Often matters which emerge years later in history may throw light on what happened in earlier times.] The Tribunal then considered the fact that the applicant’s brother had been a member of the Chinese Communist Party, but had been purged. The applicant had been unable to provide information on when his brother joined the CCP and the reasons for his purging were, so the Tribunal was told by the applicant’s solicitors and so the Tribunal said, not relevant to the present case. The Tribunal said that it could not make a finding in relation to the status of the applicant’s brother. However, the fact that his brother was at some time a member of the CCP was, so the Tribunal noted, consistent with other evidence that when the applicant returned to China in 1968 his (the applicant’s) profile was not regarded negatively by the authorities. The Tribunal then referred to newspaper reports which had been submitted to it on behalf of the applicant, concerning a KMT officer who returned after many years and was punished by the Chinese authorities. The Tribunal distinguished that case from the applicant’s case on the basis that the particular KMT officer was a high-profile dissident who had used a Chinese government plane to make his departure after “liberation”. The Tribunal then examined the applicant’s activities in Hong Kong. These included giving donations to the KMT and attending KMT commemorative celebrations. The applicant’s own submission stated that he was not prominent in any particular KMT organisations, nor did he acquire any pronounced reputation by virtue of his political support of the KMT and participation in pro-KMT activities. The Tribunal concluded that having regard to the nature of the applicant’s KMT activities, the fact that these ceased 17 years ago, his own assessment that he was not prominent in any organisation, it was satisfied that his low level involvement in KMT activities in Hong Kong did not pose a real chance that he would be targeted by the PRC authorities if he returned. The Tribunal said that it was satisfied that there was no more than a remote possibility that the applicant would be persecuted for his KMT political opinions or political opinions imputed to him from his background as a KMT soldier if he returned to Hong Kong in the reasonably foreseeable future. Finally, the Tribunal considered the applicant’s claims on a cumulative basis. It referred to the United Nations High Commission for Refugees Handbook on Procedures and Criteria for Determining Refugee Status at p 48 which emphasises the importance of not taking isolated incidents out of context and that sometimes where no single incident stands out above the others, a small incident may be the “last straw”. The Tribunal noted that the applicant is now an elderly man and said that it considered his age in assessing whether there was a real chance that he would be persecuted, when all his claims were taken together. It noted DFAT advice in a cable dated 23 November 1997 in relation to a 75 year old man that such an age meant it was likely that the authorities would take even less notice of him. The Tribunal concluded in the following terms:

“While the Tribunal accepts that the applicant feels fearful of returning to [the] Hong Kong it is satisfied that there is not a real chance of the applicant suffering persecution even if all of his claims are taken together.  Given his age, personal history and experiences in China and Hong Kong, whilst his fear of persecution may be genuinely felt, it is not well-founded. ...
As the applicant does not face a real chance of persecution if he returns to Hong Kong, the applicant is not a refugee within the meaning of the Convention.”

THE APPLICATION FOR JUDICIAL REVIEW

The applicant relied upon three grounds of review.  I deal in turn with each of those three matters.

1. That the Tribunal did not observe procedures required by the Act to be observed in connection with the making of the decision

This ground focused mainly on certain evidence obtained from Professor J Bruce Jacobs of the Department of Asian Language and Studies at Monash University on 12 December 1996. The advice concerned whether persons with KMT associations were at risk from the PRC authorities. The advice was also particular to the applicant. First the applicant complained that the Tribunal did not have power to obtain evidence other than by requiring the Secretary to arrange for the making of an investigation for the purposes of obtaining a report under s 427(1)(d) of the Act or by summonsing a person to appear to give evidence or produce documents. The applicant contended that the Tribunal was empowered to obtain the evidence of Professor Jacobs only by employing the powers provided by ss 426, 427 and 428 of the Act. It was said that such a limitation on the power was necessary to protect applicants from having their applications considered outside the context of the hearing which, by the terms of s 429, must be conducted in private.

The manner in which a Tribunal is to conduct a review is provided for by Division 4 of Part VII of the Act. Section 424 provides for review “on the papers” where the Tribunal is prepared to make the most favourable decision or recommendation so far as the applicant is concerned. Sections 425 to 429 deal with a review otherwise than “on the papers”. Section 425 in particular provides as follows:

“425(1)  Where section 424 does not apply, the Tribunal:

(a)must give the applicant an opportunity to appear before it to give evidence; and

(b)may obtain such other evidence as it considers necessary ...” (emphasis added).

Part of the applicant’s case was that the word “evidence”, referred to in section 425(1)(b) must be construed as meaning evidence at the hearing and that this was to be confined to evidence given at the hearing and obtained in accordance with sections 426-428. I do not accept that submission.

Section 425(1)(b) should be read with s 420 which provides as follows:

“420(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 a 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.”

It is true that s 427 confers power on the Tribunal to require the Secretary to make any investigation and to give a report of that investigation. The same section gives the Tribunal power to summon a person to appear before it to give evidence and produce documents. It is also true that hearing of an application must be in private. The applicant relies upon the requirement that the hearing be in private and also upon the structure of the act for this part of his submissions.

However, in my view sections 426, 427 and 428 are facultative. They too have to be read with s 420. There is nothing expressed in sections 426, 427 or 428 which limits the Tribunal’s power to obtain evidence from persons such as Professor Jacobs in the manner in which it did so. So far as s 429 is concerned, the adoption of the procedure complained of does not involve the hearing of an application otherwise than in private. In my view, section 425(1)(b) should be given its ordinary meaning. When one speaks of “obtaining” evidence, that expression does not suggest that such evidence is confined to evidence which is given at a hearing let alone evidence that is obtained in a particular way. Lots of evidence is obtained, but for one reason or another, not put before a Tribunal or a court. Even section 427(1)(d) itself contemplates evidence being obtained before the hearing.

No authority was cited on behalf of the applicant for the proposition that evidence of the type obtained from Professor Jacobs could only be obtained by employing the powers provided under ss 426, 427 and 428 of the Act. The procedure adopted is one of long standing. For the foregoing reasons I reject the submission that the Tribunal did not observe procedures required by the Act in relation to the obtaining of Professor Jacobs’ evidence. There was no need to require the Secretary to make an investigation for the purposes of obtaining a report from Professor Jacobs and nor was there any need to summon him to appear to give evidence or produce documents. I hold that view despite the applicant’s submission that these procedures should be employed where information is sought which is personal to the applicant. So to apply the relevant provisions of Division 4 would, in my opinion, be to fly in the face of Parliament’s command reflected in s 420.

Then it was contended that if the Tribunal was entitled to take Professor Jacobs’ report into account, its content demanded that the Tribunal consider making further enquiries in relation to KMT personnel who were involved in intelligence activities and who escaped from mainland China to Hong Kong in the 1950s.  It was contended that such enquiries were necessary because Professor Jacobs provided certain questions but failed to provide answers to those questions.  I return to that subject in a moment.  The authorities on this matter were recently reviewed by the Full Court in Minister for Immigration and Ethnic Affairs v Singh (1977) 144 ALR 284 at 289. In that case the Full Court noted that s 427(1)(d) empowers the Tribunal to require the Secretary to arrange for the making of any investigation which it thinks necessary and to furnish a report. It also noted that the circumstances in which the Tribunal could be found to be under an obligation to make a particular enquiry would “no doubt be rare”. In the present matter can it be said that the interests of fairness, justness and substantial justice referred to in s 420 required the Tribunal to make the further enquiry for which the applicant contends? I think the answer to that question is quite clearly no. This is because a copy of Professor Jacobs’ letter was immediately forwarded to the applicant’s solicitor for comment. The applicant’s solicitor took the opportunity to comment in a letter dated 4 January 1997 to the Tribunal. In those comments and submissions no request was made for further enquiries. Mr Niall, counsel for the applicant, submitted that the Tribunal, once it had obtained from the applicant’s solicitors the further information relevant to some of the questions raised in Professor Jacobs’ letter, (and in particular the nature of the applicant’s intelligence activities with the KMT and his political profile since 1951), should have put that further information to Professor Jacobs for further assessment.

I do not think that the Tribunal could have been criticised had it chosen to take that course.  In my opinion it was for the Tribunal to decide whether it felt that it had sufficient information to reach a decision in all the circumstances, particularly as it had put all the material to the applicant's solicitors and obtained their response, being a response which did not request the Tribunal to submit this further information to Professor Jacobs.  As Mr Downing, counsel for the applicant, submitted this morning, there was nothing to prevent the applicant’s solicitor putting this further information which they had gathered to Professor Jacobs and obtaining his views.  In my opinion the Tribunal was entitled to weigh up for itself the relatively unimportant role played by the applicant both in the KMT and in the political circles of Hong Kong.

In all the circumstances I do not consider that the Tribunal breached s 420 or committed any other error of law in not making the further enquiries which the applicant now says were “demanded” by the content of Professor Jacobs’ report. In view of the conclusions which I have just expressed, it is not necessary for me to consider the respondent’s submission that there was insufficient evidence before this court to infer that the Tribunal had obtained Professor Jacobs’ otherwise then pursuant to s 427(1)(d).

1. Error of Law Involving an Incorrect Interpretation of the Applicable Law

The applicant submitted that the Tribunal misinterpreted the law relating to the definition of “refugee”.  First the applicant complained that the Tribunal determined his application on the balance of probabilities.  It constructed this argument from a foundation which can perhaps be described as having two prongs.  The first prong was a list of factual findings made by the Tribunal which I have just summarised.  The second prong comprised a reference to information contained in four sources namely:

.the Canadian Refugee Board in response to information request 16 August 1989;

.the New York Times 3 January 1981;

.the Beijing Review 1989; and

.Professor Jacobs’ report of 12 December 1996.

The applicant submitted that only Professor Jacobs’ report provided evidence relevant to the applicant or was of any probative value in assessing the applicant’s case.  On the basis of that two-pronged foundation, it was submitted on behalf of the applicant that the Tribunal “... must have applied the wrong test.  The relevant evidence relied on by the Tribunal, at its highest, could only establish that persecution would probably not occur.” 

By way of a preliminary comment I should stress that the Tribunal drew on far more sources than those to which the applicant referred in his complaints.  The applicant’s written submission acknowledged this, by stating that the evidentiary basis on which the Tribunal reached its conclusion included those sources.  Counsel withdrew that word, i.e. the word “included”, in oral argument this morning and said that the use of the word “included” was misleading.  In my view, the applicant has not demonstrated that the Tribunal has incorrectly applied the law in the manner complained of.  In reality what the applicant is inviting the Court to do is to undertake a merits review of the application.  The applicant mounted an evidentiary attack.  It was submitted that the evidence before the Tribunal was unreliable in certain particular respects.  Then it was said that the nature of that evidence made it incumbent on the Tribunal to take into account the possibility that the Chinese authorities might have an adverse interest in the applicant.  It was submitted that the Tribunal was required to identify facts indicating the material change in the state of affairs in China in relation to people in the position of the applicant, to justify a conclusion that the fear held by him on his departure from China in 1951 no longer had a well-founded basis.  Then it was contended that the Tribunal failed in the following respects:

.to appreciate or consider the individual circumstances of the applicant who as a KMT soldier in the Intelligence Unit fled mainland China with the assistance of the KMT arriving in Hong Kong in 1951;

.to appreciate or consider the fact that information in relation to KMT supporters or their relatives who had remained in mainland China was of little or no relevance to the circumstances of the applicant;

.to appreciate or consider the circumstances in which the applicant’s brother joined the CCP; and

.to appreciate or consider the circumstances in which the applicant returned to China in 1968.

Further, so it was contended, the Tribunal was bound to consider whether the Chinese authorities would be aware of or become aware of the applicant’s role in the KMT and regard it as significant.

Even if these challenges to the Tribunal’s approach to the matter were permitted (which I do not consider is the case), a careful reading of the Tribunal’s reasons shows that it took into account all of these matters.  The Tribunal, as I have said, set out the relevant law and then proceeded to a what I consider to be a meticulous examination of the facts concerning the applicant’s history.  It considered that history in the context of the general information available and relevant to the applicant’s circumstances.  It took the trouble to obtain particular information concerning the applicant’s situation from Professor Jacobs. The applicant’s counsel pointed to the use of the word “probably” on at least three occasions in Professor Jacobs’ letter.  That is so, but the question is not how Professor Jacobs expressed his views but whether the Tribunal correctly applied the legal test and processes when it assessed whether the applicant was a refugee.  The applicant complained that Professor Jacobs’ report did not provide answers but posed questions.  In my view, a fair reading of Professor Jacobs’ letter is that it did both.  The Tribunal made fair use of it as part of the process whereby it came to the conclusion, to which I have referred earlier, that there was only a remote possibility that the applicant would be persecuted.

Mr Niall submitted that the tribunal's findings of fact were inherently unreliable and were not reached to a high degree of satisfaction. In my view the Tribunal’s reasons can fairly be described as being redolent with due process, procedural fairness and substantial justice. All the information which it received was put to the applicant for comment. Time and again in the Tribunal’s reasoning it pauses to take into account the particular circumstances of the applicant. For example at CB 198 it noted that the applicant was not merely an associate of the KMT but was in the KMT army and, more particularly, in the intelligence unit. At CB 199 it considers means of the applicant being identified other than by sight i.e. by records or other means. Without seeking to resort to sycophancy the Tribunal’s reasons are probably the most thorough and the fairest set of reasons that I have read. They disclose, in my view, no error of law and no contravention of s 420 of the Act.

1. No Evidence

The applicant submitted that the Tribunal was required by law to grant a protection visa if it was satisfied that the applicant had a well-founded fear of persecution.  It was required, so it was submitted, to reach the decision that it did only if it was established that the applicant’s fear was not well-founded.  The applicant’s submission was that there was no evidence or other material on which it could reasonably be satisfied that this matter was established.  In particular, so the applicant submitted, this was because there was no evidence as to whether there was a real chance that the applicant, as a person who was involved in KMT intelligences forces and who had fled to Hong Kong, would face persecution.

In my view, this ground is not made out.  In the end, the applicant’s submissions boil down to the assertion that the state of the evidence at its highest could only support a finding that the applicant would probably not be persecuted.  Even if this were a proper basis for judicial review, which I do not think it is, I reject the submission.  I have earlier referred to the evidence both general and particular upon which the tribunal based its reasons and conclusion.  There is no need to repeat that evidence which emerges when one reads the entire decision.

For the above reasons the application will be dismissed.  So much for the law.  I have noted that the applicant is 72 years of age.  He has been in Australia, albeit for some considerable time illegally, for over 17 years.  His wife and son are here in Australia.  There may be high policy reasons relating to deterrence or the like which motivate the respondent in denying him, that is the applicant, continued presence in Australia.  The respondent has been successful in these proceedings.  All I can do is to ask that the respondent consider whether this might be a case for the exercise of his residuary discretion.

CONCLUSION

For the above reasons the application will be dismissed.

I certify that this and the preceding
(15) fifteen pages are a true copy of
the Reasons for Judgment of Justice
Carr

Associate:

Date:              31 March 1998

Counsel for the applicant:  Mr R M Niall

Solicitors for the applicant:                   Jonathon Wong

Counsel for the respondent:                  Mr R Downing

Solicitors for the respondent:                Australian Government Solicitor

Date of hearing:  11 March 1998

Date of judgment:  11 March 1998