CATCHWORDS

IMMIGRATION - refugee status - protection visa - whether Tribunal in error of law in refusing visa - whether took into account irrelevant considerations - whether failed to take into account relevant considerations - whether decision unreasonable - whether decision unsupported by evidence - whether no foundation for Tribunal not accepting subjective evidence because of inconsistency with objective evidence

Migration Act 1958

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155

CHEN XIN HE v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

NO. WAG 124 of 1994

JUSTICE R D NICHOLSON

PERTH

23 NOVEMBER 1995

IN THE FEDERAL COURT OF AUSTRALIA   )

WESTERN AUSTRALIA DISTRICT REGISTRY)

GENERAL DIVISION                    )    NO. WAG 124 OF 1994

B E T W E E N:               CHEN XIN HE

                             Applicant

                             and

                             THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                             Respondent

                       MINUTE OF ORDER

JUDGE MAKING ORDER:     JUSTICE R D NICHOLSON

DATE OF ORDER:          23 NOVEMBER 1995

WHERE MADE:             PERTH

THE COURT ORDERS THAT:

     (1)  The application be dismissed.

     (2)  The applicant 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   )

WESTERN AUSTRALIA DISTRICT REGISTRY)

GENERAL DIVISION                    )    NO. WAG 124 OF 1994

B E T W E E N                CHEN XIN HE

                             Applicant

                             and

                             THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

                             Respondent

CORAM:    JUSTICE R D NICHOLSON

DATE:     23 NOVEMBER 1995

PLACE:    PERTH

                    REASONS FOR JUDGMENT

R D NICHOLSON J:

The applicant seeks review of a decision by the Refugee Review Tribunal made on 4 October 1994 in which the Tribunal affirmed the decision under review to the effect that a protection visa not be granted to the applicant.

The appeal arises pursuant to the Migration Act 1958 and it is not disputed that it is properly brought.  The grounds of appeal, as will be seen, are directed to the manner in which the Tribunal dealt with the evidence before it.  It is therefore appropriate to recount the facts as found by the Tribunal. 

The applicant, a national of the People's Republic of China ("PRC"), arrived in Australia by boat on 28 May 1994.  On arrival he was taken from the boat into custody as an unprocessed person under the provisions of Div4A of PtII of the Migration Act 1958 as in force before 1 September 1994.  He was not granted an entry permit and, under the provisions then pertaining, was taken not to have entered Australia.  He remains in custody.

The applicant sought protection as a refugee by applications made to the Department of Immigration and Ethnic Affairs on 13 June 1994.  The decisions were made on 6 July 1994.  The applicant was notified by letter of the same date.  He applied for a review on 15 July 1994.  He appeared at a hearing before the Tribunal on 22 August 1994 and was accompanied by his representative, Mr Thami Nqayi of the Refugee Advice and Casework Service. 

The applicant was born in 1960 in the PRC and lived in Nanning in Guangxi Province.  After completing his education he obtained work as a Technician in a government factory in 1981.  He is a qualified mechanic.

In relation to the applicant's evidence the Tribunal stated:

     "The applicant told the Tribunal that in 1989 he joined the pro-democracy movement.  He said that some demonstrations occurred in Nanning but he did not take part in them.  He said, however, that he was involved in writing leaflets and banners for use in the demonstrations.  He did not have time to attend the demonstrations.

     The applicant said that on the morning of 5 June 1989 he and others caught a train from Nanning to Shanghai.  They intended to go to Shanghai to learn more about the pro‑democracy movement.  He later told the Tribunal that the original intention of the group was to go to Beijing.  At the time they set out on the journey they had not heard about what had happened in Beijing on 4 June.  They found out about this on the way and so decided to stop in Shanghai. 

     The train arrived in Shanghai early in the morning on 7 June.  There were no difficulties at the railway station nor had there been any undue delays in getting to Shanghai.  The applicant and others took a public bus from the train station to Waitan.  The trip took about two hours as the bus stopped frequently for passengers to alight.  He said that people got on the bus to go to a demonstration in Waitan.  The bus did not encounter any difficulties in getting to Waitan.

     The applicant said that the demonstration at Waitan was attended by several thousand people.  He said
that officers from the Public Security Bureau (PSB) came and he was arrested whilst handing out leaflets.  He had written these leaflets himself and had brought photocopies of them with him from Nanning.  Other people who were handing out leaflets and shouting slogans were also arrested.  About 50 people who had travelled on the train with the applicant from Nanning were arrested."

The applicant's evidence before the Tribunal continued by describing how he was taken by the PSB to a detention centre where he was questioned.  Three days later he was sentenced, having been charged with being a "political criminal".  He was sentenced to imprisonment for 3 years.

His evidence further stated that after completing his sentence in June 1992 he was unable to find a job.  He established his own repair business, which was successful.  His evidence was that because of his success his former factory leader became jealous and brought about the closure of his business by using connections in government departments to have the applicant's business confiscated.  On the applicant's account, the reason given for the closure of business was that he (the applicant) was a political criminal and should not be permitted to operate a business.

After the confiscation of his property which this entailed, the applicant was unable to find a permanent job.  He sometimes obtained casual labouring work.  He then developed the idea of going overseas.  He said that he did not have to pay for his passage on the boat on which he arrived in Australia because he was responsible for the mechanical repair of the boat's engines. 

The applicant testified finally that, should he return to the PRC, he would be sentenced to imprisonment.  He claimed that his punishment, as a person who had departed the PRC illegally, would be greater than that received by others because of his past political background and because he was in charge of looking after the engine on the boat. 

The Tribunal also had before it certain accounts of the events in Shanghai on 6-7 June 1989.  The Tribunal described those accounts as follows:

     "In Tian'anmen 1989: The View from Shanghai, Documentation and Research Centre for Contemporary China, Leiden, John H Maier states at p10:

       "When the students and the people of Shanghai learned of the events surrounding the PLA occupation of Tian'anmen Square on 4 June, the reaction was swift.  Despite torrential rain, students threw up barricades at intersections and bus drivers went on strike.  At one point 103 intersections were barricaded, and 65 out of 105 urban bus routes were suspended.  Posters stating `Beijing has become a sea of blood' went up.  Over the next three days the disorder reached such a level that the authorities told the people that Shanghai would be without food if the disturbances did not stop."

     Shelly Warner in "Shanghai's Response to the Deluge" in Jonathan Unger (ed) The Pro-democracy Protests in China: Reports from the Provinces 1991, Allen & Unwin states that on 5 June the barricades brought the city to a complete standstill.  On the night of 6 June worker militia teams pushed the barricades aside long enough for food supplies to get through.  However, by early on the morning of 7 June the barricades were back in place and were not finally removed until 9 June (see pp222-228).

     Furthermore, an incident occurred on the night of 6 June which affected train movements in to and out of Shanghai.  Shelly Warner (op cit, pp225-226) states that this incident occurred when a train ploughed into a crowd that had been blocking a level crossing on the main line into Shanghai.  The train's mail van was set alight and several carriages were burned.  The train burning incident suspended operations on the line, resulting in huge revenue losses (see FBIS-CHI-89-111, 12 June 1989)."

The full passage in Warner reads as follows:

     "On the night of 6 June, worker militia teams, unarmed and with white armbands, dragged or pushed aside the metal railings and trolley buses which had been blocking the streets.  Although by early the next morning, 7 June, the barricades were back, they
had been moved aside long enough for vital supplies of foodstuffs to get through. 

     Any possible easing of tensions was countered, however, by a tragic event that same night, when a train ploughed into a crowd that had been blocking a level crossing on the main line into Shanghai.  There have been various explanations about this incident, but none are really satisfactory.  Some people claimed that the government instigated the incident so as to justify taking tougher action to deal with the students and rebel workers in Shanghai; others claimed that it was intended to demonstrate that counter-revolutionaries were everywhere and the violent suppression in Beijing was justified.  According to one account, the train involved had arrived in Beijing from Shanghai on 4 June.  Met with reports of the massacre and military control of the city, all passengers decided to remain on board and to return to Shanghai.  Students in Beijing, according to this account, placed in the train's mail van, videos and photographs of the military's brutality.  It was this documentary evidence that the students in Shanghai reportedly wanted to get their hands on and the Shanghai authorities were equally anxious that they should not.  Whatever the real explanation, after the train ploughed into the crowd the mail van was set alight and several other carriages also.  A Hong Kong newspaper reported that eight people died and thirty were injured.

     The level of violence associated with the incident inevitably contributed to an escalation of tension: this and unconfirmed reports of isolated incidents of fighting between worker militia and student groups in different parts of the city, leading to the deaths of at least three people, made the situation appear increasingly unpredictable."

Earlier Warner had described the events of 5 June as follows:

     "On Monday, 5 June, the student's barricades brought the city of Shanghai to a complete standstill.  There appeared to be absolutely no public transport; the Shanghai media reported that 123 intersections were blocked.  Regardless, many people walked to work.  Others were on the streets trying to find out what was happening, what news there was from Beijing or about the situation in Shanghai.  The number of posters had multiplied, their tone had become more fierce, and calls for a national strike also appeared more frequently."

In Maier's account it was also stated at 11 that:

     "[a]fter demonstrators blocked railway tracks on 7 June, and all trains through Shanghai were suspended until 9 June, the authorities essentially appealed to patriotism and a Shanghai sense of civic responsibility."

In the light of what was stated by Maier and Warner, the Tribunal chose to disbelieve the evidence of the applicant.  It did so in the following terms:

     "The Tribunal does not accept the applicant's account of his participation in a pro-democracy demonstration in Shanghai on 7 June 1989 and his subsequent arrest and detention.  The applicant said that he arrived at the main railway station in Shanghai on the morning of 7 June 1989 and encountered no difficulties either at the station or on the bus journey to Waitan.  Information available about the situation in Shanghai at that time indicates that the city was in a state of virtual chaos.

     .....

     In the light of this information, it would seem that at the very least the applicant would have experienced some difficulty both in entering Shanghai by train and in moving about by bus.  When this issue was raised with the applicant by the Tribunal, he responded that these sorts of things had only happened in Beijing and not Shanghai.  After further questioning he then said that only the major streets were barricaded and public transport was available, depending on which route was taken.  The Tribunal does not accept the applicant's explanations as they are contrary to independent information about the situation pertaining in Shanghai in the time.  It should also be noted that Waitan is located in the central area of Shanghai.

     In the light of the information available the Tribunal does not accept that the applicant was in Shanghai on the day in question nor that he was arrested in the manner described.

     The applicant has claimed that a number of events flowed from his imprisonment for offences committed during the pro-democracy movement.  As the Tribunal has not accepted that the applicant was in fact imprisoned for any such offence, the Tribunal does
not accept that any of the subsequent events which may have occurred, that is his being sacked from his employment and the closure of the business, were for reasons associated with his political opinion."

The grounds of the application attack this use of evidence in a number of ways.  In the first place it is said that the Tribunal's decision was an improper exercise of power in that the Tribunal took into account irrelevant considerations and failed to take into account relevant considerations.  The irrelevant considerations are said to be the Tribunal's conclusion that there was no public transport in Shanghai at the time of the applicant's alleged visit; that the applicant would necessarily have experienced difficulty in entering Shanghai by train; and that his account was inconsistent with the independent evidence before the Tribunal.  The relevant considerations are said to be that Warner's account shows that the temporary dismantling of the barricades on the night of 6 June to allow food supplies through, coincided with the evidence of the applicant that he arrived at approximately 3.00am; the applicant's evidence that he went by a bus from a train station to Waitan, which was not very far, but it took the bus 2 hours to arrive there; the account of Maier that at one point 65 out of 105 urban bus routes were suspended meant that a substantial portion of bus routes in Shanghai remained in operation and further that his account did not identify the point in time at which the barricades affected 103 intersections and such barricades even then would only have involved a small number of intersections.  It is also contended by particulars that the Tribunal failed to take into account the applicant's evidence in relation to the accounts of Maier and Warner.

These accounts were put to him.  Notes of evidence were made by Mr Nqayi and were not challenged on behalf of the respondent.  They show the following exchange of questions and answers to the applicant:

     "You did not really go to Shanghai Mr Chen

     I did

     You went on the morning of June 7th

     Yes - at 3.00 am in the morning

     The train station was not main station you said you saw nothing unusual on the road

     I had never been to Shanghai before all I notice was that had more

     Q    On the 7th June in Shanghai all major roads were barricaded and there was no public transport

     A    That only happened in Beijing and not in Shanghai

     Q    Information that I have is that mainstreet were barricaded until 8 June

     A    You only main streets

     Q    That there was no public transport

     Yes there was, depending on the route."

It is contended for the applicant that the relevant considerations arising from this evidence for him is that only the major streets were barricaded and that some public transport was available so that it was not open to the Tribunal to find his evidence was inconsistent with the independent evidence in the accounts of Maier and Warner.

The first difficulty with these two grounds is that they meticulously address pieces of evidence.  The ground of failure to take relevant considerations into account can only be made out if a decision-maker fails to take into account a consideration which he or she is bound to take into account.  What factors so qualify is determined by construction of the statute conferring the discretion.  If the relevant factors are not expressly stated they must be determined by implication from the subject-matter, scope and purpose of the relevant Act.  A court will not find that a decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject‑matter, scope and purpose of the Act.  Authority for these propositions is found in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.  In Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225, Carr J, in referring to a submission in that case, said that it confused the taking into account of relevant considerations with the taking into account of particular pieces of evidence.  He said at 237:

     "The appellants' submission boils down to the proposition that there was an obligation on the respondent's part to review all of the DFAT cables received, to select from them the four cables upon which the appellants rely and to prefer the contents of those cables to the cable upon which Mr Barnsley in fact relied.  His Honour held that there was no such burden on Mr Barnsley to seek out this further information and that it was up to him to decide what other information might aid him in his task.  I agree with his Honour's conclusion and his reasons for reaching that conclusion.  To hold otherwise would be to conduct a review on the merits and usurp the administrator's function: Minister for Aboriginal Affairs v Peko-Wallsend Ltd per Mason J at CLR 40-1"

In my opinion the first two grounds of appeal fall into the same error.  They invite this Court by way of review to conduct a review on the merits and to usurp the administrator's function. 

In any event I am unpersuaded that there was no possible foundation for the Tribunal to find inconsistency between the independent evidence in the accounts of Maier and Warner, on the one hand, and the evidence of the applicant on the other.  Both the accounts refer to the highest level of civil disorder.  The applicant's answer to the Tribunal in the first place said that such disruption in the form of barricading of major roads and the absence of public transport "only happened in Beijing".  When it was put to him that the main street was
barricaded till 8 June he immediately affirmed that, apparently as the way out of the conflict with that evidence produced by his immediately preceding response.  On the accounts, the city was in the highest state of disorder and the applicant's evidence did not reflect this.

The applicant's evidence had been that he arrived at the main station in Shanghai and, following the people who had been to Shanghai before, went to Waitan.  He said that was not very far from the station but it took 2 hours to arrive there in a large bus which stopped frequently because people were getting on and off.  It is not in dispute that Waitan is located in the central area of Shanghai so that it may have been anticipated that the applicant's account would have referred to matters, the subject of the independent accounts, as the cause for slow progress rather than the frequent stopping of the bus.

There was the further point of the availability of public transport.  From the account of Maier it is clear that "bus drivers went on strike" and that "at one [unidentified] point 103 intersections were barricaded, and 65 out of 105 urban bus routes were suspended".  In this context, which was in a city the subject of major disorder, the applicant claimed to have ridden on a bus from the main rail station.

For the Tribunal to have accepted the applicant's account it would have had to also accept that, despite his evidence confining major disorder to Beijing and despite any references to the high level of civil disorder in his evidence, the applicant had been able to find a bus which was being driven and which at some point after 3.00am went through streets over a period of 2 hours, all of which had had the barricades removed to allow food supplies to get through.  In my opinion, the evidence before the Tribunal did not support a conclusion that the applicant's account was more probable than not even if, despite his evidence confining barricading of major roads
and absence of public transport to Beijing, his evidence had been accepted as creditable.  It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal.  Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective.  This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible.

In my opinion the first two grounds cannot succeed because they address the manner in which the Tribunal dealt with particular pieces of evidence and, in any event, the inconsistency on which the grounds are based is not made out. The third ground of appeal, however, contends that the decision was unreasonable because, there being no inconsistency between the applicant's evidence and the independent evidence, the Tribunal had no evidentiary foundation for its conclusions.  I have already said enough to demonstrate that I consider this is not the case.  It cannot therefore be said the decision of the Tribunal was unreasonable at law: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155.  The same is true of the fourth ground which also alleges an absence of evidence.

My conclusion is that none of the grounds of review is made out.  The application should therefore be dismissed.

       I certify that this and the preceding 10 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

       Associate:

       Date:

                         APPEARANCES

Counsel for the Applicant:        Mrs V Moss

Solicitors for the Applicant:       Legal Aid

Counsel for the Respondent:       Mr P MacLiver

Solicitors for the Respondent:    Australian Government Solicitor

Date of Hearing:   27 October 1995

Date of Judgment:  23 November 1995