Zheng v Minister for Immigration and Ethnic Affairs

[1996] FCA 1012

CATCHWORDS

IMMIGRATION LAW - Refusal of refugee status - Judicial review - Error of law - Whether Tribunal incorrectly interpreted or applied meaning of “well-founded” fear - Whether Tribunal incorrectly interpreted or applied meaning of “persecution” - Failure to act in accordance with the merits of the case - Whether a procedure required by the Act - Whether improper exercise of power

Migration Act 1958 ss 420, 476
Explanatory Memorandum, Migration Reform Bill 1992

Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Olney J, 23 May 1996)

Zakinov v Gibson (unreported, Federal Court of Australia, North J, 26 July 1996)

ZHENG v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
VG 521 of 1995

Before:           NORTH J
Place:             MELBOURNE
Date:              21 NOVEMBER 1996                   

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 521 of 1995

B E T W E E N :

CHANG XIONG ZHENG
Applicant

AND

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

Respondent

MINUTES OF ORDER

BEFORE:     North J
PLACE:        Melbourne
DATE:          21 November 1996

THE COURT ORDERS THAT:

The application is dismissed with costs.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION

VG 521 of 1995

B E T W E E N :

CHANG XIONG ZHENG
Applicant

AND

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
First Respondent

BEFORE:     North J
PLACE:        Melbourne
DATE:          21 November 1996

REASONS FOR JUDGMENT

BACKGROUND

The applicant, Chang Xiong Zheng, is a 25-year old citizen of the People’s Republic of China. He is single and his parents and brother are in China. He entered Australia on 7 June 1990 on a student visa. On 13 November 1990, he applied for refugee status and was deemed to have applied for the relevant entry permits. On 22 June 1994, a delegate of the first respondent, the Minister for Immigration & Ethnic Affairs, refused the applications. By operation of s 39 of the Migrant Reform Act 1992, which came into effect on 1 September 1994, these refusals have effect
as a refusal to grant a protection visa under s 36 of the Migration Act 1958 (the Act). The applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of the decision of the delegate. On 28 March 1995, the Tribunal affirmed the decision of the delegate. On 2 May 1995, the applicant applied to the Court under s 475(1)(b) of the Act for judicial review of the decision of the Tribunal. At the commencement of the hearing, Mr Niall, who appeared as counsel for the applicant, consented to an order that the Refugee Review Tribunal, which was then named as the second respondent, be struck out as a party to the review by reason of the provisions of s 480 of the Act. It provides that the proper respondent in a review such as this is the first respondent.

THE QUESTIONS RAISED IN THE REVIEW

Section 36(2) of the Act provides:

“A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

In refusing the application, the Tribunal determined that the applicant was not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (adopted in Geneva on 28 July 1951) (the Convention) as amended by the Protocol relating to the Status of Refugees (adopted in New York on 31 January 1967) (the Protocol): as defined in s.5 of the Act. A “refugee” is defined as a person who:

“owing to a 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”.

Mr Niall contended that the decision of the Tribunal involved errors of law concerning the meaning of both “a well-founded fear” and of “persecution”, referred to in the definition. This contention relied on s 476(1)(e) of the Act, which provides for a review on the ground:

“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”.

He also put a number of arguments to the general effect that the Tribunal had not dealt with the applicant’s case on its merits. I will return to these arguments later, but it is convenient to set out the statutory provisions on which the arguments are based. The first is s 476(1)(a), which provides for a review on the ground:

“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”.

The relevant procedures were said to be set out in s 420(2)(b), which reads:

“(2) The Tribunal, in reviewing a decision:

......

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

The next provision is s 476(1)(d) which provides for a review on the ground:

“that the decision was an improper exercise of the power conferred by this Act or the regulations”.

And s 476(3)(c) provides that:

“(3)  The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

......

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;”.

THE DECISION OF THE TRIBUNAL

The decision of the Tribunal is divided into sections. The three consecutive sections which are relevant to this review are headed “The Law”, “Claims and Evidence” and “Discussions and Findings”. I will outline the Tribunal’s approach in each section as far as is relevant to this review.

“The Law”
       In the section headed “The Law”, the Tribunal discussed the meaning of “well-founded fear” in the following terms:

“Secondly, an applicant must have a ‘well-founded fear’ of being persecuted. The term ‘well-founded fear’ was the subject of comment in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379 (Chan’s case). It was observed that the term contains both a subjective and an objective requirement. Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality. The Court held that a fear of persecution is well-founded if there is a ‘real chance’ that the applicant will be persecuted if he or she is returned to the
country of nationality (at 389 and 398, 407 and 429). It was observed that a real chance is one that is substantial as distinct from remote and it may exist notwithstanding that there is less than a 50 per cent chance of persecution occurring.

A further issue to be considered in assessing whether there is a real chance of persecution is that relating to the period of time to be taken into account. In MILGEA & Malcolm Peterson v Mok Gek Bouy (1993) (unreported judgment of the Full Federal Court on 22 December 1994, No VG508 of 1994), Sheppard J observed (at 53) that in assessing whether there was a real chance of persecution, the delegate was required to consider the matter:

.... in relation to the immediately foreseeable future.

Whether or not a person is a refugee in terms of Article 1, A(2) of the Convention is to be determined upon the facts existing at the time of the determination. However, the circumstances in which an applicant has left his or her country of nationality remain relevant and these are ordinarily the starting point in ascertaining the applicant’s present status (see Chan at 387-387, 399, 405-406 and also Lek v The Minister for Immigration Local Government and Ethnic Affairs (1993) 117 ALR 455, at 458-463).”

The Tribunal then referred to the law on what amounts to persecution. It said:

“Thirdly, an applicant must fear ‘persecution’. The word ‘persecution’ is not defined in the Convention, but not every form of harm will constitute persecution for Convention purposes. At 430-1 of Chan, McHugh J observed:

.... persecution .... has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.

These remarks, which largely accord with views expressed by Mason CJ in the same case, reflect a considerable liberalization of
the concept of persecution. Dawson, Toohey and Gaudron JJ found it unnecessary to canvass this issue. However, as Mason CJ observed at 388:

.... some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution .... the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns .... The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.”

“Claims and Evidence”
       In a three-page section headed “Claims and Evidence”, the Tribunal set out the claims made by the applicant and the evidence upon which the claims were based. In summary, his case as set out by the Tribunal was that the applicant started to attend seminars and discussions on social reform in China in 1988. He organised and spoke at large pro-democracy gatherings on New Year’s Day 1989. He joined a discussion group of about 20 young people at his work which was banned in March 1989, but resumed in May 1989 as the Youth Saloon. This group was organised by a Mr Chen Tian-ming. At the request of Mr Chen, the applicant collected money for Beijing students on hunger strike in May 1989. On 17 and 18 May 1989, the applicant attended and spoke at a sit-in outside the Fujian provincial government compound in Fuzhou. About 20-30 speeches were made, including one by the applicant. On 20 May 1989, the applicant organised some workmates to attend a protest against the imposition of martial law in Beijing. On 29-30 May 1989, at the request of Mr Chen, the applicant organised young people to print and distribute leaflets. On 4
and 5 June 1989, he met with Mr Chen and other members of the Youth Saloon, attended a rally and distributed leaflets to protest against the Tiananmen massacre. On 8 June 1989, he obtained photos of the massacre and returned to Fuqing, where he and other workmates made nearly 2,000 copies which they distributed.

He was detained and interrogated by the Public Security Bureau from 28 June to 23 July 1989 as leader of the Fuqing branch of the Youth Saloon. He was released under supervision of his work unit security office. Although the Public Security Bureau did not have the evidence to charge him with distributing the photographs he was suspected of so doing. As a result, he was placed in a “brain-washing” class from early August until late September 1989. Seven or eight workmates who had participated in the demonstrations were also in the class. He was demoted to a cleaning position and was required to report to the security office weekly. Between October 1989 and May 1990, he was questioned seven times by the Public Security Bureau. He obtained a passport in mid November 1989 after bribing an official at work for a clearance paper and documents necessary from his employer. He claimed that the Public Security Bureau did not know he was going abroad. He did not agree with the US report that, after 1989, everyone who obtained passports was thoroughly vetted.

In May 1990, his friend, Wang You Qing, with whom he had participated in the pro-democracy activities, was arrested after a raid on his house because he had photographs of the Beijing massacre. Wang’s sister advised him to leave China. Using forged papers, he left China fearing that Wang might inform on him.

A couple of days later, the police questioned his father, who was detained for two days and then released. His father was told by the police that Wang had confirmed that the applicant was the main protest organiser in their county. Wang was sentenced to two years’ education through labour. He received a lenient sentence because he informed on the applicant. He did not inform on anybody else.

The applicant feared persecution on return to China because Wang informed on him. Those who participated with him in pro-democratic activities were having a hard time. The applicant contended that, if he returned to China, he would be tried for counter-revolutionary crimes. Activists were arrested even after 1990 and even if they were not leaders. Many were still in prison. His family had been badly treated and had been denied pay rises because of his offence and illegal departure. He also relied on reports from Amnesty International that hundreds of protesters had been arrested and thousands subjected to investigation and interrogation since the Beijing massacre in 1989.

“Discussion and findings”
       In the third relevant section of the decision, the Tribunal analysed the evidence led by the applicant, considered additional material, and made findings. This exercise was done in six steps mostly following a chronological order. It is convenient to consider the decision by reference to each of the steps taken by the Tribunal, albeit in an abbreviated form, to focus on the issues relevant to this review.

“1989 Activities”
       The Tribunal found that the applicant was an active and consistent participant in the 1989 activities. The Tribunal rejected his contention that his role was at a very high level. The Tribunal then held that millions of Chinese were engaged in the type of activities in which the applicant participated, and that a very small proportion of such people were detained. Further, the protest movement in Fujian was very mild.

“Punishment”
       In light of one of the arguments put on behalf of the applicant, it is desirable to set out the beginning of this section in full:

“I accept the applicant’s claims that he was detained for 25 days and questioned by the PSB [Public Security Bureau] and that he was later subjected to questioning and ‘brainwashing’ by the authorities of his work unit. As pointed out in the Immigration and Refugee Board Documentation Centre (IRBDC) publication The Hunt for Dissidents in China, this was a common occurrence at the time:

This reaction [to the demonstrations] entailed a regular combing out of the Chinese population which was subjected to self-criticism, political education (the vigorous reinstatement of ideological education classes) and tighter social control (the reinforced application of residence cards, work units and neighbourhood committees) ....

Following the events of April, May and June 1989, Chinese authorities bolstered the practice of self-criticism in order to assess the ideological position of the Chinese population .... (pp.1-2).”

The Tribunal rejected the applicant’s contention that none of his colleagues had been questioned before he left China. The Tribunal then found that the “brainwashing” and demotion to cleaner was punishment
for the activities which the applicant had admitted to the Public Security Bureau, and that the demotion did not constitute persecution.

“Departure”
       The Tribunal rejected the applicant’s contention that, by obtaining a passport by bribery and forgery, the applicant’s departure was without official approval. Rather, it relied on US State Department advice that persons who obtained Chinese passports at this time were thoroughly vetted by the security authorities.

“Copying/Distribution of Photographs”
       The Tribunal rejected the applicant’s contention that Mr Wang had implicated him in the copying and distribution of photographs. In so doing, the Tribunal said:

“One difficulty I have with this claim is that, if his evidence is to be accepted, the PSB from the start suspected the applicant of involvement in this activity, yet, in neither his comprehensive statement to DORS [Decision of Refugee Status Committee] or at his DORS interview does he state that the PSB searched his home. In his application to the Tribunal he states: ‘.... in 1990, when the PRC [People’s Republic of China] authorities launched a campaign against pornography some PSB officers purposely made a raid on Wang’s residence. Similar raids also happened to some other friends of mine’. Again there is no mention of a raid on his home. He was asked about this at the hearing and replied that the PSB did search his house around May 1990 but found nothing and he therefore did not think this was important and had not mentioned it. I do not accept this explanation since the applicant would be aware that a raid on his house obviously lends weight to his argument that he was under suspicion and because it is improbable that he would mention raids on his friends’ homes but not think it worth mentioning that there was also a raid on his own home. Further, Q.75 of the Department’s
application form (Have the security forces of your country (army, police etc) ever come to your home?) was ticked ‘No’ and the applicant claims to have gone through his application form before making his comprehensive submission to DORS when, it is reasonable to assume, he would have corrected this just as he corrected the agent’s other errors and omissions. I do not therefore accept that the applicant’s home was searched for documents. Even if I were to accept the applicant’s claim that Wang was arrested because of the photographs, I do not therefore accept that Wang accused the applicant of being the organiser, since it is inconceivable that the applicant’s home would not also have been searched for proof. In fact, if, as he claims, the applicant was under suspicion and repeatedly questioned about the photographs in August 1989, I have difficulty accepting that his home was not searched at the time. This, therefore, raises further doubts about this claim.”

The Tribunal, then, contrary to the finding it had made, assumed in the applicant’s favour that Mr Wang did inform on the applicant. On this assumption, it found that there were good reasons why the Public Security Bureau would not accept the accusation, and there was not evidence which satisfied the Tribunal that it had accepted the accusation.

The Tribunal then turned to the question of the punishment which the applicant was likely to experience if he returned to China. It made two findings on this issue. The first was expressed thus:

“In contrast to his statement to DORS dated 7 June 1994 which states that Wang did not inform on other activists, the applicant’s statement to the Tribunal dated 6 January 1995 claims that other employees were demoted or sent to remote regions of the country to work after Wang had accused them. If I were to accept this statement, I see no reason to suppose that had the applicant been in China at the time his punishment would not have been similar. However, after an absence of nearly five years the applicant is unlikely to have a job to go back to at the bank and even if he did have and was demoted or transferred I would not regard such punishment as persecutory.”

Immediately after this passage, the Tribunal spent almost a page analysing evidence which led it to conclude that the Chinese authorities were not, in 1995, interested in pursuing people, except a few high profile leaders, in relation to 1989 pro-democracy activities.

“Applicant’s Family”
       The Tribunal concluded that the release of the applicant’s father indicated, in the absence of any other evidence, the police were satisfied that he had done nothing wrong. It also found that the denial of pay rises to the applicant’s family was not persecutory.

“Human Rights”
       Under the final heading “Human Rights”, the Tribunal said:

“However, the existence of generalised human rights abuses does not, in itself, establish an applicant’s claim to refugee status; the specific question which the Tribunal must address is whether there is a real chance as defined by the High Court in Chan that the applicant would suffer persecution for a Convention reason if he returns to China. Having regard to all the evidence, I am satisfied there is not.”

I now turn to the specific grounds of challenge to the decision.

SECTION 476(1)(e) - ERROR OF LAW - REAL CHANCE TEST

In relation to the existence of a well-founded fear of persecution, Mr Niall argued that the Tribunal had made an error of law within the meaning of s 476(1)(e) of the Act, either by incorrectly interpreting the notion of a well-founded fear of persecution, formulated as a real chance
test by the High Court in Chan, or by incorrectly applying the law to the facts found. He contended that it was central to the applicant’s case that Mr Wang had informed on the applicant. It was on this basis the applicant’s fear of punishment arose. Mr Niall contended that the Tribunal erred in law in finding that Mr Wang did not inform on the applicant because the Tribunal based that conclusion on the absence of a search of the applicant’s house. It was argued that there was other evidence which the Tribunal accepted which must have demonstrated a real chance of persecution arising from the possibility that Mr Wang had informed on the applicant. The failure to make that finding, it was argued, led to the inevitable conclusion that the Tribunal incorrectly interpreted the law on what constituted a well-founded fear of persecution, or incorrectly applied the law to the facts found. An alternative formulation of the argument was that the Tribunal failed to examine all the facts and possibilities relating to this issue. Had it done so, it could not have failed to find that there was a real chance of persecution. Rather, it determined individual factual matters on the balance of probabilities and, then, where the determination was against the applicant, took those factors out of contention in its overall assessment. It thereby failed to speculate and explore the possibility of persecution on the whole of the evidence. The evidence which, it was argued, should have led the Tribunal to conclude that Mr Wang informed on the applicant was: the likelihood that Mr Wang was forced to inform while in custody; the discount in Mr Wang’s sentence; the arbitrary detention of the applicant’s father; denial of pay rises to the applicant’s family; warnings received by the applicant from his relatives; the interrogation of colleagues of the applicant after the arrest of Mr Wang.

In essence, the applicant’s complaint on this issue is that the Tribunal rejected his case on the facts. His case was that the authorities had been told by Mr Wang that the applicant was a high level organiser of the copying and distribution of the photographs. There was no error of law in the Tribunal’s rejection of the applicant’s case. Rather, there was a factual determination against the applicant. Earlier in these reasons, I set out the passage from the Tribunal’s decision under the heading “The Law” in which the Tribunal examined the notion of a “well-founded fear” as interpreted by the High Court in Chan. No criticism was made of the terms of this passage. The Tribunal directed itself properly as to the law concerning a well-founded fear. The opening sentence of the next section of the decision, headed “Claims and Evidence”, reads:

“In assessing the applicant’s case the Tribunal considered the evidence of the applicant given at a hearing conducted by the Tribunal on 15 March 1995 and material on his Department file and Tribunal file V94/02399.”

There is nothing in the decision which causes me to doubt that the Tribunal did in fact consider the totality of the evidence. The Tribunal set out the facts at length. The purpose for doing so was to record that the facts had been examined. When the Tribunal came to consider the copying and distribution of photographs issue, the Tribunal dealt with the absence of search because this was the most influential factor in determining against the applicant that Mr Wang had not informed on him. The Tribunal had discussed a number of other factors relating to the real chance of persecution. For instance, it had found that the authorities would have vetted a person who obtained a passport. Hence, the fact that the applicant obtained a passport suggested the authorities were not interested in him. The Tribunal did not make any error of law in respect
of the test on the issue of a real chance of persecution. It weighed the facts on either side and finally made a determination against the applicant on the facts.

SECTION 476(1)(e) - ERROR OF LAW - PERSECUTION

Again, in reliance on s 476(1)(e), the applicant argued that the Tribunal had made an error of law in relation to the meaning of persecution. It had omitted from the quotation from the judgment of Mason CJ in Chan, after the word “returns” in the fourth line of the extract which is reproduced earlier in these reasons, the following sentence:

“Obviously harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason.”

This omission, it was argued, disclosed a failure to place sufficient importance on selective harassment as a form of persecution. In its decision, the Tribunal accepted the applicant’s claims of punishment comprising 25 days’ detention, interrogation, attendance at “brainwashing” classes and further interrogation. However, it came to the conclusion that the treatment of the applicant was a “common occurrence at the time” and that the applicant’s activities were no different to millions of other Chinese. Mr Niall contended that the punishment suffered by the applicant should have been found to have constituted selective harassment and, hence, persecution, and the Tribunal’s conclusion otherwise could not have been arrived at without an error in understanding the meaning of persecution.

However, the way the Tribunal approached the application did not require it to determine whether the applicant was persecuted in China before he left. It found there was no real chance of persecution at the date of determination because the Chinese authorities were no longer interested in punishing people such as the applicant. This approach required the Tribunal to assess the level of activism of the applicant. It looked at his activities and the punishment he received for them. On this basis, it determined that he was no different to millions of other activists and that his punishment was a common occurrence. This characterisation gave the Tribunal the basis to find that the applicant no longer faced a real chance of persecution at the time of determination. Thus, there was no error in not making a finding that the applicant was persecuted in China by reason of detention, interrogation and brainwashing. Such a finding was unnecessary in 1995 because, by then, the chance of persecution, even if it existed previously, no longer existed. Where there is no real chance of persecution at the time of determination, there is no requirement to determine whether there was persecution at the time of departure although that may often be the starting point of any assessment of refugee status: Chan, at 388 per Mason CJ; at 399 per Dawson J; at 406 per Toohey J; at 413-415 per Gaudron J; and at 432‑433 per McHugh J.

The conclusion that there was no real chance of persecution at the date of determination rests on the finding that the applicant was not a high profile activist. This conclusion was said to be the result of an error of law concerning the proper approach to the meaning of “persecution”. But again, in essence, the challenge is a complaint about the Tribunal’s
findings of fact.  The applicant’s case was that he was a high profile activist and that his punishment demonstrated that fact. The Tribunal rejected the argument, based on other evidence, such as the evidence that the applicant would not have obtained a passport if he was wanted by the authorities. There is no error of law in that process.

SECTIONS 476(1)(a) AND 420, 476(1)(d) AND 476(3)(c) -
FAILURE TO ACT IN ACCORDANCE WITH THE MERITS OF

THE CASE

The applicant’s profile as an activist
       Before the Tribunal, the applicant attempted to show that he faced a special threat of punishment because the authorities believed he had taken a leading role as a pro-democracy activist. He argued that there was a real chance that people who engaged in such level of activity would be punished on return to China. It was important for him to show that he was not an ordinary participant, but rather a person with a prominent organising role.

The Tribunal analysed the activities in which the applicant had been engaged in China. It then evaluated the evidence as to the action taken by the authorities against persons who had engaged in those types of acts. It rejected the case put by the applicant that he was a participant whose activities were of a sufficiently high level to give rise to a real chance of punishment.

Before the Court, Mr Niall submitted that in finding that the activities of the applicant were just like millions of other Chinese, and that the punishment that he had received was a common occurrence, the
Tribunal erred in failing to have regard to the totality of the applicant’s case and it “misunderstood the applicant’s case”. This argument is rather elusive. As I understand it, it starts with the proposition that the Tribunal accepted that the applicant was detained for 25 days, was interrogated, was compelled to attend “brainwashing” classes, was demoted, was further interrogated and was required to report weekly to his work security office. Having accepted the applicant’s claims of punishment, the Tribunal should have found that the applicant was in real danger of persecution on return as a particularly active protester, because his treatment before departure had been out of the ordinary. Thus, it is said, its failure to make this finding demonstrates a failure to properly assess the merits of the applicant’s case. 

Mr Niall contended that this aspect of the Tribunal’s decision came within ss 476(1)(a) and 476(1)(d) of the Act. Section 476(1)(a) provides for a review where procedures required by the Act to be observed in connection with the making of the decision were not observed. The “procedure” relied on was the requirement in s 420(2)(b) that the Tribunal must act according to the merits of the case. Section 476(1)(a) does not, however, give a right to a full merits review of a decision: Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Olney J, 23 May 1996); Zakinov v Gibson (unreported, Federal Court of Australia, North J, 26 July 1996). Section 476(1)(a) is directed to a failure to observe procedures. Provisions which govern the proceedings before the Refugee Review Tribunal, such as the requirement that an applicant be given an opportunity to appear before the Tribunal (s 360(1)(a)) and the requirement that the Tribunal give written reasons (s 368(1)(b)), are procedures required by the Act to be
observed for the purposes of s 476(1)(a). The explanatory memorandum for the Migration Reform Bill 1992, which inserted s 476(1)(a) (then numbered as s 166LB) into the Act, explained the purpose of the section as follows:

“This ground of review is complementary to the new sub-section 166LB(2)(a) [now s 476(2)(a)], which provides that an application for judicial review of a decision may not be made for a breach of the rules of natural justice, or as it is now called, procedural fairness. The Scheme of decision-making under the amendments made in this Bill will set out with greater certainty the procedural requirements to be followed to ensure that applicants are provided with the protection necessary to receive a fair consideration when decisions are made affecting their right to enter or remain in Australia. The procedural requirements under the existing regime have been governed by the common law rules of natural justice and these rules have not provided the certainty needed for effective administration of the migration program. Accordingly, these common law rules will be replaced by a codified set of procedures which will afford the same level of protection to individuals but will have the additional advantage of greater certainty in the decision-making process. For example, at common law prior notice of an adverse decision is required. Under the procedures established in this Bill, new section 26Y [now s 57] requires the Minister to give the applicant information, if that information would be the reason or part of the reason for refusing the application for a visa. The Minister is to invite the applicant to comment on it and under new section 26ZE [now s 63], the Minister is not to refuse an application until the applicant has responded, has indicated that he or she will not be responding or the time for responding has passed. The Bill provides for an application for review of a decision where procedures such as these are not observed.”

Mr Cavanough, counsel for the respondent, also pointed generally to subdivision AB of the current Act, entitled “Code of Procedure for dealing fairly, efficiently and quickly with visa applications”, as containing those procedures the failure of which to observe could be the subject of review under s 476(1)(a).

Even if a failure to comply with the requirements of s 420(2)(b) can give rise to a complaint under s 476(1)(a), the failure must be a failure to observe specified procedures. In this case, the complaint is that the Tribunal took a different view of the merits of the case to the view propounded by the applicant. No error in observance of required procedures has therefore been identified.

Mr Niall then contended that the complaint fell within ss 476(1)(d) and 476(3)(c). Again, he focused on the words “without regard to the merits of the particular case” in s 476(3)(c) and sought to argue that they, in effect, permitted a full merits review of the decision. But the section is much more confined than this. Section 476(3)(d) requires that the decision under review be an exercise of a discretionary power and that it be in accordance with a rule or policy without regard to the merits of the particular case. Counsel did not seek to show, nor does the decision reveal, any indication that it was made in accordance with a rule or policy. Thus, s 476(1)(d) does not apply.

Demotion and transfer of the applicant’s colleagues
Again in reliance on ss 476(1)(a) and 420(2)(b), and ss 476(1)(d) and 476(3)(c), Mr Niall argued that the Tribunal had erred in misunderstanding the evidence and failing to deal with the case on the merits in respect of the evidence concerning the demotion and transfer of the applicant’s colleagues. The Tribunal said:

“In contrast to his statement to DORS dated 7 June 1994 which states that Wang did not inform on other activists, the applicant’s statement to the Tribunal dated 6 January 1995 claims that other employees were demoted or sent to remote regions of the country to
work after Wang had accused them. If I were to accept this statement, I see no reason to suppose that had the applicant been in China at the time his punishment would not have been similar. However, after an absence of nearly five years the applicant is unlikely to have a job to go back to at the bank and even if he did have and was demoted or transferred I would not regard such punishment as persecutory.” (emphasis added)

The essence of the applicant’s case was that he was in a particularly vulnerable position because Mr Wang had informed on him. In this passage the Tribunal concluded that the applicant would be treated in the same way as his colleagues. The Tribunal proceeded to this conclusion partly because it regarded the punishment of the applicant’s colleagues as occurring “after Wang had accused them”. Mr Niall contended that the applicant’s statement to the Tribunal dated 6 January 1995, upon which the Tribunal relied, did not say that Mr Wang accused the applicant’s colleagues. Thus, it was argued that the Tribunal’s assumption that Mr Wang accused the applicant’s colleagues “misstates the nature of the applicant’s case and fails to have regard to the merits of the case”. In fact, it was central to the applicant’s case that he alone had been informed on by Mr Wang and that this distinguished his situation from that of his fellow activists so that it was likely to lead to different consequences for him.

In relation to the claim under ss 476(1)(d) and 476(3)(c) of the Act, the applicant alleges that the Tribunal decision did not give proper, genuine or realistic consideration to the merits of the case. The submission was based on Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472. This was an application for judicial review of a decision of the delegate of the Minister for Immigration & Ethnic Affairs to refuse the applicant permanent resident status. The applicant
was a priest who was a citizen of the United States. One ground for refusal was that the applicant had two brothers in Texas able to assist him. In his application, the applicant had said that his family in the United States was unable to support him. In allowing the application, Gummow J said, at 483:

“The hardship alleged by the applicant that would face him upon his return to the United States was a matter of importance in the case put by him. The applicant had said that there were no family members with whom he could reside and who could support him and, in the context, that plainly included his parents and all of his brothers. The applicant’s case would not be given a proper genuine and realistic consideration upon the merits if that case was treated as lacking an assertion upon an important matter which was in fact made as part of that case: see Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-13. This is what happened. The result, in my view, was that the making by the delegate of her decision was an improper exercise of power within the meaning of s 5(1)(e) of the ADJR Act, together with s 5(2)(f), (j): cf Minister for Immigration and Ethnic Affairs v Pashmforoosh at pp 12-13.

The present is not a case of an alleged error as to a finding of primary fact; rather, the complaint is that the delegate has insufficiently comprehended the content of the case put forward, thereby disabling herself from reaching a decision upon the merits of the particular case.”

However, the present case is very different from Broussard. There is no doubt that in this case the Tribunal comprehended that the applicant’s case was that Mr Wang had informed on him and that he was thereby different from his colleagues. Indeed, the Tribunal had concluded in the paragraph immediately preceding the passage being criticised that Mr Wang did not accuse the applicant. This conclusion followed a very lengthy analysis of evidence concerning the alleged accusation. Further, the reference to the statement of 6 January 1995 is non-determinative.

The Tribunal was dealing with the subject of the applicant’s chance of punishment upon return to China. In relation to the 6 January 1995 statement, it commenced the discussion with the words “If I were to accept the statement”, and went on to say that the applicant would be treated as his fellow employees had been treated. This discussion is limited to eight lines, and is hypothetical. Immediately following is a discussion of about one page concerning the government’s policy of punishment for conduct of the type in which the Tribunal had found the applicant to have engaged. The discussion proceeds on the basis that the applicant was not informed on by Mr Wang, because that was the finding of the Tribunal. The reference to the 6 January 1995 statement is made inconsequentially and in passing. Thus, even if the Broussard reasoning applies to ss 476(1)(d) and 476(3)(c), it would not result in the establishment of error in the present case. Not only did the Tribunal comprehend the applicant’s case, it dealt with the main contentions extensively.

However, I doubt that the Broussard reasoning does apply to ss 476(1)(d) and 476(3)(c) in a case such as the present, where there is no decision made in accordance with a rule or policy. The requirement for a proper, genuine and realistic consideration upon the merits was held to derive from ss 5(1)(e), 5(2)(f) and 5(2)(j) of the Administrative Decisions (Judicial Review) Act 1977. Those sections read as follows:

“5. (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:-

......

(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

......

(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:

......

(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

......

(j)any other exercise of a power in a way that constitutes abuse of the power.”

The requirement for a proper, genuine and realistic consideration upon the merits falls easily within s 5(1)(e) together with s 5(2)(j). But not only does s 476(3) not contain an equivalent of s 5(2)(j), it expressly excludes the consideration. Section 476(3) relevantly provides:

“476 (3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)an exercise of a personal discretionary power at the direction or behest of another person; and

(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

......

(g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).”

Thus, Broussard is not applicable to the present case.

It remains to consider the submission under s 476(1)(a) of the Act in relation to the complaint that the Tribunal mistook the meaning of the applicant’s statement made on 6 January 1995. Mr Niall argued that the requirement to give proper, genuine and realistic consideration to the applicant’s case referred to in Broussard was contained in s 476(1)(a) together with s 420(2)(b). I doubt that this is the case, because s 476(1)(a) is limited to procedural errors. I have earlier referred to some relevant sections of the Act and the explanatory memorandum for the Migration Reform Bill to illustrate the type of errors with which the section is concerned. To mistake the facts is not such an error. But assuming that the Broussard reasoning applied under s 476(1)(a) together with s 420(2)(b), the Tribunal did not fail to give proper, genuine and realistic consideration to the applicant’s case for the reasons I have just outlined in this section of the judgment.

Consequently, the application is dismissed with costs.

I certify that this and the preceding
twentyfour (24) pages are a true copy of the reasons
for judgment of his Honour Justice North.

Associate:
Dated:            21 November 1996

APPEARANCES

Counsel appearing for the applicant:            R. Niall
Solicitors for the applicant:  Baker & Armstrong

Counsel appearing for the respondent:        A. Cavanough
Solicitors for the respondent:  Australian Government Solicitor

Date of hearing:  8 October 1996
Date of judgment:  21 November 1996