FEDERAL COURT OF AUSTRALIA

Yue v Minister for Immigration & Multicultural Affairs [1999]  FCA 1404 

MIGRATION - application for judicial review of Refugee Review Tribunal decision refusing a protection visa - applicant citizen of People's Republic of China (PRC) who claimed fear of persecution on the basis of her political opinion - applicant had been regarded by authorities in the PRC as using dance and rhythmic gymnastics to express anti-government sentiments - Tribunal did not accept the applicant's account of her past experiences - Tribunal misunderstood a handwritten answer on the applicant's primary application and rejected her evidence as contradictory on this basis - whether this error of the Tribunal established a ground of review under s 476 of the Migration Act 1958 (Cth) - whether the Tribunal failed to make findings on material questions of fact as required by s 430 - whether the Tribunal failed to fulfil its duty to make such findings where no material existed to found the finding it made and no explanation was provided for rejecting the applicant's account.

Migration Act 1958 (Cth) ss 430, 476(1)(a)

Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348, considered

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940, considered

Baljit Kaur Singh & Ors v Minister for Immigration and Multicultural Affairs

[1999] FCA 1126, followed

T v Minister for Immigration and Multicultural Affairs [1999] FCA 878, cited

LI YUE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 481 of 1999

MOORE J

SYDNEY

14 OCTOBER 1999

THE COURT ORDERS THAT:

1.         The decision of the Tribunal is set aside.

2.         The matter is remitted to the Tribunal for reconsideration.

3.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application by Li Yue (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 28 April 1999.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs on 30 April 1998 to refuse to grant the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”). 

2                     The applicant entered Australia on 12 January 1998.  She is a citizen of the People’s Republic of China and was born in Heilongjiang Province in 1969.  The account she gave to the departmental officer and later to the Tribunal may be briefly summarised.  In 1989 the applicant commenced studying at the Harman Sports Institute (“the university”) which was a sports university in Heilongjiang Province.  She undertook special training in rhythmic gymnastics, body building gymnastics and traditional Chinese dances.  She designed a programme of rhythmic gymnastics for a student competition held at the university in May 1991.  Both the programme and the music expressed her political views which were critical of the authorities in China.  In 1993 she graduated from the university.  She failed to gain employment with the Heilongjiang Sports Committee because of her political views.  However she did gain employment with the Heilongjiang Construction Engineering Institute (“the engineering institute”) as a teacher.  While teaching at the engineering institute she trained a team of rhythmic gymnasts who, in April 1995, performed a programme she had designed called ‘Life and Death’.  It was taken by the authorities as an attempt to resurrect the memory of students killed in the Tiananmen Square massacre.  The applicant was then regarded as a person who used art to foment anti-government activities and was investigated by the authorities over a period of a month.  During that period she was asked to “make (a) confession” which she refused to do.  That led to her dismissal from the engineering institute in May 1995.  The applicant said she was arrested on 15 June 1995 and subjected to mistreatment and was arrested again a week later.  She said that after that she suffered serious “mental and psychological persecution”. 

3                     To understand the issues in this application it is necessary to set out a lengthy passage of the Tribunal’s reasons in which it considered the applicant’s account of her past experiences in China.   The Tribunal said:

“FINDINGS AND REASONS

The Tribunal finds that the applicant is a national of the People’s Republic of China who has been in Australia since January 1998, having departed China legally to travel directly to Australia; she used a Chinese passport issued in her own name in November 1997 in Heilongjiang, where she had been born, had her home address and had been employed.  Her visa for Australia was issued in Beijing at the end of November 1998.  The Tribunal accepts that the applicant was a graduate of a sport institute and that she was employed as a teacher from 1993 to 1997 at a construction and engineering institute, as she indicated in answer to Questions 32‑34 of Form C of her primary application. The Tribunal understands that the sport institute is referred to by the applicant as a university.

The Tribunal has strong doubts about the integrity of the applicant's claims to have been persecuted because of political content of dance activities and the circumstances of her departure from China. The Tribunal notes a contradiction at the outset between the applicant's claim to have been employed at the institute during 1993‑97 and to have been dismissed by the "university" in May 1995, after which she claims she was unable to practise her art of rhythmic gymnastics and dance and could not find jobs to maintain her life.

The applicant did not produce any documentation to substantiate her education, employment or dismissal or her cultural activities. Her claim that her dance programs, tapes and equipment were confiscated would explain some inability to document her cultural activities; nevertheless, the Tribunal found her claims at the hearing to have lost contact with her husband, to have lost custody of her son and to have not had contact with her family to be disingenuous and unbelievable and to be inadequate as an explanation of her inability to obtain and provide personal documents. These claims at the hearing were also at variance with her answer to Q53 of Form C that she was in contact with relatives in her home country “by phones”.

The applicant was at pains to explain the long delay between events which were claimed to be persecutory and her departure from China. She claimed to have been dismissed from her work in May 1995 and to have been arrested, mistreated and humiliated in June 1995 and, following that, to have been seriously mistreated and injured, restricted in her movements and activities and subjected to ongoing reporting requirements by the District Security Commission. Her last brush with the authorities, as related at the hearing, was the imposition of movement restrictions by District Security for visiting her son without permission, in June 1997.  It was some two and a half years after her arrest, and some six months after the authorities’ last acti6n towards her, that she left China.  She claimed to have been planning her departure from February 1997 to January 1998.

The Tribunal found her explanation of delay in escaping to be implausible and flawed: she related her choice of departure date to official slackness during the New Year celebrations. When it was pointed out by the Tribunal that Chinese New Year had been well after her departure date, she claimed, speciously, that she had been referring to the standard international New Year. She also claimed that Customs, at the airport, would not have information from the PSB about her dissident status. This is at variance with the Tribunal's understanding that operational immigration controls at exit points such as Beijing, from where the applicant departed for Australia, are comprehensive and effective and have direct PSB involvement ‑ the Ministry of Public Security is in charge of border entry and exit inspection at border inspection stations, including airports (Regulations Governing Border Entry and ExitInspection, 1 September 1995, Articles 2‑3, BBC Summary of World Broadcasts, sourced from Xinhua News Agency Domestic Service, 12 August 1995, CISNET CX 11815; DFAT cables CF76591 1 of 2.12.97 and BJ 15671 of 12.2.98, China: passport and exit permit issuing procedures: CIS request CHN‑AA858).  The Tribunal notes advice from the Department of Foreign Affairs and Trade that it is most unlikely that Chinese officials‑would take bribes to process exit documents of high profile dissidents or those wanted by the PSB (Record of Telephone Conversation on 30 August 1995 Between Dr Adrian Chan and the Research Unit, Refugee Review Tribunal, in Sydney (CISNET, China, CX19980)).

The Tribunal notes also that in 1995 the United States Department of State assessed that:

‘Generally speaking, individuals who have obtained Chinese passports and exit permits to leave China after the Tiananmen Square violence of 1989 have been thoroughly vetted by the security authorities and they would normally not be on any "wanted" list if they were to return to China. (China Profile ‑ U.S. Bureau of Democracy, Human Rights and Labor ‑ December 11, 1995).’

Having regard to the independent evidence and to the Tribunal's difficulties with the applicant's statements, the Tribunal is not satisfied that the applicant obtained her passport by irregular means and finds that she was not wanted by the Chinese authorities at the time of her departure from China.

The applicant claimed to have been injured so that she could not dance again.  The Tribunal has difficulties reconciling her claims in this regard.  In her written statements prior to the hearing, the applicant made no claims to have been physically injured. She first claimed at hearing that her foot was injured during brief detention after her first arrest in June 1995, when the policewoman stamped on her foot with high heels, so that, because of this and other injuries, she took two hours instead of a normal 20 minutes to make her way home.  She then stated that when she was passed to the District Security Commission her knees, elbow and feet were injured, causing scars; she was made to kneel and was damaged so that she would never go back on stage anymore; she was made to wash clothes in minus 30 degree conditions so that she had ice on her hands and could not now use delicate dancing equipment. Later in the hearing she said that District Security made her clean second floor windows and when she fell off she sustained bone fractures in her foot and elbow; the bone fracture was made worse when she was pushed downstairs while carrying coal.  While there was no outright inconsistency between one set of statements and another, the progressive revelation of injuries and their causes created a strong impression in the Tribunal that the applicant was creating and embroidering claims as she was questioned further.

The applicant exhibited to the Tribunal only an obvious bump on her right elbow.  She made no attempt to exhibit the result of any other injuries and did not produce any medical report on her condition.  As noted above, the applicant demonstrated twice during the hearing with a cloth star which she spun like a top with her right hand; she appeared to be dexterous and nimble in doing so and the Tribunal detected no disability in this or in other of her movements.  The applicant's present physical condition appeared to the Tribunal to be inconsistent with her claims to have been seriously injured to the extent of being unable to perform dance or be a dance teacher.

The applicant gave an inconsistent account of being fingerprinted after arrest.  At the hearing she said first that when she was arrested the second time by the PSB in June 1995 she was forcibly fingerprinted while blacked out.  When, later in the hearing, she was questioned further by the Tribunal about the arrests, the applicant said that when she was assaulted in detention after the first arrest in June 1995 she was forced to make a fingerprint; when arrested the second time she was shown a form with the fingerprint on it.

The Tribunal considers it implausible that the applicant was subjected to reporting conditions as claimed.  At the hearing she claimed that she was called in to report to the District Security Commission once, twice or three times per week from June 1995 to January 1998.  This contrasts with the claim in her written statement of 26.5.1998 that she was even asked to report to the local neighbourhood committee once a week.  The Tribunal does not give weight to the claim that the applicant was subjected to reporting conditions.

The applicant claimed to have published articles about art containing political content critical of the government. This was a new claim introduced only at the hearing.  The applicant named titles of published articles but otherwise her claims to have published were unsubstantiated.  When questioned about her studies in relation to an article on the differences between Chinese and western art, her replies indicated that she had not studied western art and did not have access to library materials on it.  The Tribunal is not satisfied that the applicant wrote and published articles or art critiques with political content.

Overall, the Tribunal found the applicant's evidence of arrests, mistreatment, injuries, reporting conditions and restrictions on activities and movement to be implausible and unconvincing and does not give it weight.  The Tribunal is not satisfied that the applicant attracted the attention of the authorities because of political content in dance performances or in art critiques or articles, nor that she was sanctioned by the authorities for anti-government activity.

Taking the whole of the evidence into consideration, the Tribunal is satisfied that there is not a real chance of the applicant’s being persecuted in China for reasons of her political opinion or for any other Convention reason.

The Tribunal finds that the applicant’s fear of persecution in China is not well-founded.” (Emphasis added)

4                     It can be seen from these reasons that the Tribunal did not accept the applicant’s account of her past experiences in China as it did not view her as credible.  In this application for judicial review counsel for the applicant relied on three grounds identified in s 476 of the Act.  Counsel submitted:

(i)         The Tribunal contrary to s 430 of the Act, failed to make findings on material questions and also failed to set out material on which findings were based.  That failure was said to establish a ground identified in s 476(1)(a) that procedures required by the Act had not been observed as well as the ground identified in s 476(1)(e) in the sense that the Tribunal incorrectly interpreted the applicable law which was s 430.  That is, the Tribunal had misunderstood and misinterpreted s 430. 

(ii)        The Tribunal based its decision on a fact which did not exist: see s 476(1)(g) together with s 476(4).  The relevant fact that was said not to exist was the fact that the applicant had signified in answers to questions 33-34 that her employment with the engineering institute concluded in 1997. 

(iii)       The approach of the Tribunal to its task of fact finding and the way in which its observations or conclusions concerning matters of fact were expressed, manifests a misunderstanding of what is comprehended by the notion of a well-founded fear of persecution.  There was evident in the Tribunal’s decision, an incorrect interpretation of the applicable law: see s 476(1)(e). 

5                     I first deal with the submission of counsel for the applicant that the Tribunal had failed to make findings of fact on a range of material questions of fact.  Section 430 provides:

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

(a)       sets out the decision of the Tribunal on the review; and       

(b)       sets out the reasons for the decision; and

(c)        sets out the findings on any material questions of fact; and

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

6                     It is unnecessary to repeat the fifteen factual questions or issues which counsel contended were not addressed by the Tribunal.  In my opinion the highlighted first sentence in the third last paragraph of the quoted passage from the Tribunal’s reasons constitutes a finding in relation to each of the matters referred to in the preceding paragraphs of the Tribunal’s decision which might be comprehended by the description of the evidence of “arrests, mistreatment, injuries, reporting conditions and restriction on activities and movement”.  The Tribunal said that the applicant’s evidence on these matters was implausible and unconvincing.  It went on to say that it did not give the evidence weight.  While it has dealt with the evidence of the applicant in a rolled up and compendious way, its intimation that it gave the evidence no weight is to be taken, in my opinion, to be an indication that it rejected the evidence.  What the Tribunal was doing was saying that it rejected each factual assertion of the applicant and was making a finding of fact at least in the sense that it was refusing to make the findings that the applicant was, in substance, inviting it to make. 

7                     However even accepting that the general obligation of the Tribunal to make findings on material questions of fact was discharged in the way just discussed, which has entailed a fairly benevolent approach to the Tribunal’s reasons, it is nonetheless necessary to consider one further aspect of the approach the Tribunal took to the factual issues raised by the applicant.  It can be seen in the first paragraph in the quoted passage from the Tribunal’s decision that the Tribunal addressed the applicant’s period of employment with the engineering institute.  In saying that it accepted she was employed as a teacher from 1993 to 1997, the Tribunal was making a finding to that effect.  It based this finding solely on a written answer the applicant had provided, when completing the standard printed application form, to a question seeking particulars of past employment.  The question asked “from” when the employment commenced and “to” when it continued.  In response to that question the applicant recorded in handwriting “93” and “95”.  Plainly the Tribunal misread the handwritten notation “95” as “97”.   It was conceded by counsel for the Minister, and in my opinion properly conceded, that the handwritten entry was “95” and not “97”.  In a typewritten statement accompanying the completed standard form printed application, the applicant stated, unambiguously, she was dismissed by the engineering institute in May 1995.

8                     Earlier in its reasons the Tribunal had noted that in her primary application the applicant had claimed she was dismissed in May 1995.  This was a reference to the typewritten statement.  At the hearing the Tribunal asked questions about this matter and recorded in its reasons for decision that the applicant said she had been dismissed from her teaching position on 11 May 1995.  It is plain that the Tribunal took the approach that what it understood to be the handwritten answer to the question of when her employment with the engineering institute ceased was to be preferred to her account in the typewritten statement accompanying her application and the oral account she gave at the hearing.  Not only did the Tribunal misunderstand what the handwritten answer said but it provided no rational basis for preferring one account given by the applicant over another.  It simply preferred one and then pointed to the perceived inconsistency and identified it as “a contradiction”.  This analysis by the Tribunal of this material is plainly unsatisfactory.

9                     The critical question for present purposes, however, is whether this deficiency in the Tribunal’s reasons establishes a ground of review identified in s 476.  The content of the obligation imposed by s 430 has been considered by a number of recent Full Court decisions of this Court.  One was Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.  Another decided a little less than a month later was Borsa v Minister for Immigration and Multicultural Affairs [1999] FCA 348.  In a joint judgment of Lee, Carr and Merkel JJ the following is said of s 368 of the Act.  That section is in similar terms to s 430 though concerns decisions of the Immigration Review Tribunal.  The Court said:

“Here, it was the Tribunal’s duty, if it intended to reject or give no weight to that evidence, to refer to it and explain why it rejected or gave no weight to the evidence. As Sackville J observed (with the concurrence of Davies and Beasley JJ) in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414, the predecessor of s 368(1) did not require a Tribunal to prepare lengthy reasons dealing with every aspect of the evidence.  It was enough that the findings and reasons deal with the substantial issues on which the case turned; See also Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, Federal Court of Australia, 21 December 1998 at p 13 and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56 and 63 (another Full Court decision of this court).  In Paramananthan (which involved a relevantly identical provision of the Act) Wilcox J said (at 27):

‘One of the purposes [of s 430] is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based’.

It is common ground that the Tribunal had no obligation to make findings about every factual matter raised by the appellant.  However, the factual circumstances of the appellant’s relationship with Mr Borsa as at 24 January 1994 and as at the date of the Tribunal’s decision were at the very core of materiality.  In our opinion, it was not open to the Tribunal to take the course which it did and say that “ …the decision-making pendulum remained in equilibrium” when it had not placed all this other evidence onto the balance or rejected it as incredible, or as having no weight and made findings in accordance with s 368(1) to that effect.  We accept the appellant’s submission, in oral argument, that the Tribunal moved too quickly to its ‘state of uncertainty’ conclusion.  It had not completed its task of finding the primary facts.”

This approach to the task imposed by a provision such as s 430 is to be contrasted with what was said by a Full Court in Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940.  In that case a Full Court constituted by Spender, O’Connor and Emmett JJ said:

“The reasons of an administrative decision-maker are meant to inform, and it would have been preferable for the decision-maker to deal directly with the evidence wholly inconsistent with his conclusion on the Appellant’s membership of the Biyomal sub-clan rather than leave that rejection to be a matter of necessary inference, and without the giving of any reasons for that rejection.

Nonetheless, in giving the reasons that it did, the Tribunal committed no error of law.  Section 430(1) does not impose an obligation to do anything more than refer to the evidence on which the findings of fact are based.  Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made.  Accordingly, there was no failure to comply with section 430(1) of the Act.” (emphasis in original)

10                  Many of the authorities on this issue have comparatively recently been considered by Drummond J in Baljit Kaur Singh & Ors v Minister for Immigration and Multicultural Affairs [1999] FCA 1126 and Mansfield J in Harbhajan Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1234.  While Drummond J did not refer to Addo, his Honour did refer to Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 which was to similar effect.  After reviewing the authorities, Drummond J described the contents of the duty imposed by s 430 as being that:

“Apart from the majority’s reasons in Ahmed, the line of authority commencing with Paramananthan to which I have referred speaks, in my opinion, with one voice in requiring the Tribunal to explain why it has rejected apparently probative material relevant to a material issue even though there may be sufficient or indeed even an abundance of material the other way to support the conclusion on that issue that the Tribunal, in fact, reached.  Even if, by reason of the majority decision in Ahmed, it may, in theory, be open to me to decline to follow the other Full Court decisions explaining s 430, I think that I should follow such a clear approach, repeatedly stated by a number of Full Courts.  Further, they, and Branson J’s dissent in Ahmed, in my respectful opinion, correctly identify the role s 430 plays in the particular scheme contained in the Migration Act 1958 (Cth).

These authorities show that s 430, in requiring the Tribunal to set out its findings on material matters, is not directed to matters which the Tribunal considers material:  it is directed instead, to matters that are objectively material to whether a person is in truth a refugee.  They also show that s 430 imposes a more stringent fetter on the Tribunal’s freedom of decision-making than does the existence of error of law constituted by a want of evidence to support the decision, as a ground for review.  This only exposes an administrative decision to review if there is no evidence to support a critical finding:  see Collins v Minister for Immigration (1981) 58 FLR 407 at 410 - 411.  These authorities also show that, while it is not permissible to subject the Tribunal’s reasons to over meticulous scrutiny for possible error, once an issue favouring an applicant for refugee status is identified as a material one, the Tribunal must explain why it finds against the applicant on that issue, if it is not to breach s 430.  In such a case, the Tribunal’s decision cannot be supported on appeal because there is material, even an abundance of material, which the Tribunal was entitled to accept and which is sufficient to justify the decision against the applicant.”

11                  I am content to adopt this formulation.

12                  The applicant’s account that she had been dismissed in May 1995, the reasons for her dismissal and the consequences of her dismissal were plainly central to her account of her experiences in China supportive of her contention that she had a well-founded fear of persecution were she to return.  It may be accepted that, as a matter of general law, an administrative tribunal or decision-maker can make wrong findings of fact and a wrong finding is immune from review if it is based on some probative material.  However, in my opinion there was no basis for the Tribunal to make the specific finding that the employment did not come to an end until 1997, rather than in May 1995 as consistently stated by the applicant.  Moreover the apparent or perceived contradiction in the applicant’s account was no contradiction at all.  Section 430 creates a duty to make findings, to refer to evidence or material on which any material finding of fact is based and to explain the rejection of evidence of the applicant on material question given either orally or in writing.  If, as was the case here, there was no material to found the finding and no explanation for rejecting the applicant’s written and oral account of her dismissal from the engineering institute, the duty was not fulfilled.

13                  In view of this conclusion it is unnecessary to consider in detail the remaining grounds relied on by the applicant.  However I should mention that although the Tribunal relied on a fact that did not exist (the fact being the applicant had recorded in her application that her employment at the engineering institute concluded in 1997) the Tribunal’s decision was not based on that non existent fact.  That is because there was other material concerning the credibility of the applicant which the Tribunal relied on (whether it was entitled to do so or not is presently immaterial) and because there was reliance on this other material, for reasons I gave in T v Minister for Immigration and Multicultural Affairs [1999] FCA 878, the ground in s 476(1)(g) is not made out.

14                  I set aside the decision of the Tribunal and remit the matter to the Tribunal for further hearing.

Associate:

Dated:              14 October 1999