FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural Affairs [1999] FCA 1464

IMMIGRATION – whether Tribunal failed to make findings on all material questions of fact – what constitutes a material question of fact

Migration Act 1958 (Cth)  s 430

De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1074 cited

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 referred to

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 1022 referred to

Emiantor v Minister for Immigration and Multicultural Affairs; Okah v Minister for Immigration and Multicultural Affairs [1998] FCA 1186 referred to

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 cited

FENG LIN WANG AND ANOR v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 625 OF 1999

HILL J

10 DECEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

The application be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicants (Mr Feng Lin Wang and Ms Mei Ling Wang) apply to the Court for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant to them protection visas.  The review is an application in the original jurisdiction of the Court under Part 8 of the Migration Act 1958 (“the Act”).  The grounds of such a review are limited by force of s 476 of the Act.  In the present application the applicants rely upon s 476(1)(a) as the only ground of review:

“that procedures were required by this Act or the regulations to be observed in connection with the making of the decision were not observed.”

2                     The procedures said not to have been observed in the present application are those to be found in s 430 of the Act which is in the following terms:

“(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 or any other material on which the findings of fact were based.”

3                     The submission is that the Tribunal had failed to set out its findings in regard to a claim which had been made on behalf of the applicants that Mr Wang had set up a dissident organisation within his work group which had led or might have led to his being subject to adverse attention from the authorities of the Peoples Republic of China.

The claim made by the applicants

4                     It was the applicants’ case before the Tribunal that Mr Wang had experienced a lot of misery in China.  His problems commenced upon his recruitment to the army following which, in 1975, he was sent to the countryside to be re-educated through manual labour for singing a song which had been written by a person regarded as having rightist sympathies.  (Mr Wang was a musician.)  He claimed that in January 1976, after being insulted, he had struck a local official and was then arrested and sentenced to three years heavy labour.  He was in fact released after two and a half years on a re-education farm and, after the cultural revolution concluded in 1980, returned to work in the Housing Bureau in Tianjin.

5                     Mr Wang said that in November 1996 he had helped establish the “Self-Right Protection Committee”.  On this matter his statement said:

“In the company where I worked, 800 people joined the Committee.  I became the person in charge of the Committee.  Between November 1996 and October 1997, we organised many assemblies.  Our slogan was we wanted Freedom and Democracy in China.  China should become a multi-party country so that we could elect the party which could protect the workers right.  This caused the attention of the company leaders.  Again and again they warned me.  In June 1997, I was once again arrested.  This was the period that I will never forget in the rest of life.  Upon the thought of it, I can feel the great fear.  In the detention center, I was threatened, beaten and insulted.  From ten o’clock in the morning till nine o’clock in the evening, I was interrogated, beaten and insulted.  I was not allowed to speak for myself, not allowed to drink or eat.  If there was any indication that I expressed my dissatisfaction, they would kick me and paunch (sic) me.  They wanted me to confess.  I did not confess till nine o’clock at night.  They put me in jail.  Disasters were waiting for me there.

The room I was put in was about 15 square meters with cement floor and walls.  There was a ‘toilet’ in the room.  In such a room, there were twenty ‘criminals’.  Twenty people were lying on the bunk beds.  There were all sorts of criminals in this room.  I was led to the room, and the guard told the people in the room to ‘educate’ me.  After the guard left, they began to kick me, paunch me.  Within minutes, I was covered with wounds and blood.  Blood was running down my nose.  I was not allowed to say anything.  Otherwise, I would get more trouble.  Later I got to know that hitting people was their only fun.  That night I did not sleep at all, I sat up the whole night.  Five o’clock in the morning, people get up and lined up waiting for their work.  Our work is to peel watermelon seeds, every day, 4 or 5 kilo for each person.  It would cost longer than one day to count them, let alone to peel them.  We were not allowed to sit, or talk or go to the toilet or rest when we were working.  You were not allowed to have lunch unless you have finished half of your work.  During the first two days, I could not have lunch until 3 in the afternoon and dinner at 10 at night.  After three days, my finger nails began to fall off.  My fingers were swollen like carrots.  I still had to do the same work.  The food we ate were like rubbish.  Everyday, we ate corn flour porridge without vegetables, or oil, or meat.  All of us were lack of nutrition.  The hygiene was horrible.  Twenty people living in one room.  The air was dirty.  Soon I got a skin disease.  I lost 35 kilos in weight.  Later, I got sick of the food.  I still got health problem till now.

I was dying owing to my poor health.  I could not eat.  The PSB did not allow me to get out on bail.

In March 1998, my family got the money, 300 thousand RMB and bailed me out.  I was sent to the Workers Hospital immediately after I came out.  I was diagnosed serious nervosa.  Doctor Cao in the Workers Hospital told the PSB officer that my condition was very serious and needed at least six to eight months to stay in hospital for treatment.  Even in this circumstance, the PSB did not leave me alone.  They watched me through the windows of the ward.”

6                     Mr Wang said that he subsequently obtained a passport and visa and arrived in Australia on 15 August 1998.  He said that his brother had subsequently been arrested.

The decision the subject of review

7                     The Tribunal after referring to the matters claimed by Mr Wang, albeit in rather a brief way, dealt with evidence given in the course of the hearing and then concentrated on the question of how Mr Wang had obtained a passport.  The Tribunal pointed out that independent evidence to which it referred suggested that a person who obtained a passport in his own name was not a person of adverse interest to the authorities in China.  With this proposition Mr Wang had disagreed.  The Tribunal held however that it was improbable that dissidents on wanted lists would be unable to exit on passports issued in their own name.

8                     Ultimately the Tribunal did not accept that Mr Wang was arrested and detained in 1976-78 as he had claimed.  It noted that even if he had been arrested, this arrest had come about because he had struck a local official in the face and that his detention had not been for Convention related reasons.  It noted that even on his own evidence he had subsequently after the cultural revolution had finished been able to find a job and been promoted and that nothing in fact thereafter had happened at least prior to 1997.

9                     The Tribunal said also that it did not accept Mr Wang’s claim that he had been arrested and gaoled in June 1997 or that he was on a wanted list and kept under surveillance after March 1998.  The Tribunal regarded these claims to be implausible.  The Tribunal continued:

“The applicant was issued with a passport in his own name on 5 May 1998, a privilege that is unlikely to have been granted to somebody on a PSB wanted list.  According to the independent evidence on passports and exit procedures in China, above, the fact that a person obtains a passport in his own name is an indication that he is not a person of adverse interest to the Chinese authorities.  I do not accept the applicant’s explanation that he obtained an exit permit from a different work unit, or that he used connections and/or paid bribes to get his travel documents.  Even if he did, the passport was issued in his name, with his photograph and other particulars, and, as he stated in his protection visa application, he departed from China legally, without difficulty.

Furthermore, the applicant obtained a visa to come to Australia on 16 July 1998 but did not leave China until 13 August 1998, and, as he stated in his protection visa application, he lived at the same address in Tianjin up until August 1998.  This is hardly the profile of a person who was allegedly on a PSB wanted list as of March 1998.

Because of the independent evidence on passports and exit procedures in China, and my problems with the applicant’s credibility, I am not satisfied that he has a well founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if he returns to China.”

The Tribunal concluded after, as it said, it had considered the evidence as a whole that it was not satisfied that Mr Wang was a person to whom Australia had protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (collectively here referred to as “the Convention”).

10                  Although the Tribunal had in discussing Mr Wang’s claims referred to the claim that he had helped establish the “Self-Right Protection Committee” and as the person in charge of it had organised assemblies demanding freedom and democracy for China, the Tribunal made no direct reference in its findings of fact to whether or not this had happened.

11                  I should note that Ms Wang’s claim stands or falls upon the success of that of her de facto husband.

The failure to make findings on any material question of fact

12                  It was common ground that a failure to comply with s 430(1) constituted a failure to observe procedures required by the Act:  “in connection with the making of the decision” and that, if Mr Wang demonstrated such a failure, the decision would be set aside.  The real dispute between the parties was whether the Tribunal’s failure to make a specific finding on Mr Wang’s relationship with the Self-Rights Protection Committee involved a failure to make a finding on a “material question of fact”.

13                  In De Silva v Minister for Immigration and Multicultural Affairs [1999] FCA 1074, Sackville J summarised the principles applicable to the requirement laid by s 430(1)(c) of the Act as follows:

“(i)      A failure by the RRT to comply with the requirement in s 430(1)(c) activates the ground of review provided for in s 476(1)(a) of the Migration Act: Muralidharanv Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 (FC), at 414-415, per Sackville J; Paramananthanv Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 (FC), at 37, per Lindgren J; at 63, per Merkel J; Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, 21 December 1998, unreported), at 13.

(ii)        Section 430(1)(c) does not require the RRT to make findings about every factual matter raised by the applicant.  Findings need only be stated in relation to questions material to the ultimate decision: that is, in relation to substantial issues on which the application turns: Paramananthan, at 27, per Wilcox J; Muralidharan, at 414.

(iii)       The reasoning and findings of the RRT are to be given a beneficial construction and are not to be scrutinised in an overly critical manner: Minister v Wu Shan Liang (1996), at 271-272.  The RRT’s reasons, read as a whole, may suggest that, although findings have not been made on a particular issue, they have nevertheless been made implicitly: A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 (FC), at 557.

(iv)       The purposes underlying provisions such as s 430(1)(c) include ensuring that the RRT’s reasoning process is disclosed and that an unsuccessful applicant understands why he or she failed: Muralidharan, at 414-415, Paramananthan, at 27.”

14                  As the second of the propositions stated by Sackville J makes clear, it is not necessary for the Tribunal to make findings on every factual matter which an applicant may raise at the hearing or in support of the application to the Tribunal.  It is only where the question of fact is “material” that it will be necessary for the Tribunal to make a finding and it is only where the Tribunal fails to do so that that an applicant will succeed in an application to set aside the Tribunal’s decision.  So, for example, if the Tribunal makes a finding that a fear on the part of an applicant would not be well-founded it will not be incumbent upon it to make findings as to whether the applicant actually has a subjective fear, for in such a case the question of subjective fear would not be material:  Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182 at 10-11;  Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 1022 at para 25 and Emiantor v Minister for Immigration and Multicultural Affairs; Okah v Minister for Immigration and Multicultural Affairs [1998] FCA 1186 at 3.  In Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 Wilcox J at 27 wrote of the need for the Tribunal to make a finding on what his Honour described as a “significant factual claim”.  Another way this may be put is that a factual matter will only be material in the relevant sense where a finding made with respect to it may affect the outcome favourably to the applicant.

15                  It is not necessary that a finding favourable to an applicant must affect the outcome although clearly in such a case the fact the subject of the failure would necessarily be material.  This is so because the issue whether the outcome would be affected in particular circumstances is a matter for the Tribunal and not for the Court.

16                  The issue in the present case is whether Mr Wang’s involvement with the Self-Right Protection Committee was a matter which, if found favourably to Mr Wang, might have affected the outcome of his application.

The Convention question

17                  Article 1A(2) of the Convention defines a refugee as being as person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

Australia has protection obligations under the Convention to a refugee.

18                  It is apparent from the extract from Mr Wang’s statement set out earlier in these reasons that he claimed the outcome of his involvement with the Self-Right Protection Committee to be that he was gaoled and mistreated while in gaol.  It was also his claim that his involvement with the Self-Right Protection Committee led to circumstances where the PSB placed him under surveillance.

19                  Mr Wang’s claim therefore was that his involvement in establishing and leading the committee both led to his persecution and to his being a person who was the subject of attention by the authorities.  Since the question of whether a person has a well-founded fear of persecution involves an element of prediction, which prediction can readily be based on past experience, there is no doubt that his claim to have been involved in the establishment and operation of the committee and the outcome of that activity was a relevant matter to his claim to have a well-founded fear of persecution.  It was relevant also to his claim that this well-founded fear of persecution arose for a Convention reason.  But it was not directly the fact that Mr Wang claimed to have been involved in the establishment and running of the committee that was important.  It was the outcome of that claim.

20                  As I have already noted, the Tribunal held that it did not accept that his arrest in 1997 was, as he claimed, the outcome of his involvement with the committee.  The Tribunal also rejected his claim that thereafter he was under surveillance from the PSB.  In fact the Tribunal found that these claims were inconsistent with his ability to obtain a passport in his own name.  It was the Tribunal’s view based upon the evidence before it that the fact that Mr Wang had obtained a passport and visa and had departed from China legally without difficulty indicated that he was not a person of adverse interest to the Chinese authorities.

21                  Given that the Tribunal had found that the outcomes which Mr Wang said flowed from his involvement with the Self-Right Protection Committee had not eventuated, it is difficult to see how a finding that he had been involved as he said in establishing and running in the committee could have affected the outcome favourably to Mr Wang.  Mere involvement in the committee itself, even an involvement as significant as establishing the committee or being the person in charge of it, could not directly lead to a conclusion in Mr Wang’s favour once the consequences that he claimed had arisen as a result of the activity, namely gaol and surveillance, were swept aside as untrue.

22                  For this reason, in my view, the question of whether or not Mr Wang had, as he said, established the committee and then taken charge of it was not of such significance that it was incumbent upon the Tribunal to make a finding with respect to it.

23                  It can of course readily be inferred from the Tribunal’s rejection of the outcome of his association with the committee that the Tribunal was probably of the view that Mr Wang’s claim to be involved with the committee was likewise not accepted by it.  But I would not base my decision on what may be implied from the Tribunal’s reasons.  If indeed the matter was material to the issue before the Tribunal, then it would have been incumbent upon the Tribunal to make a factual finding with respect to it directly rather than to leave the question open to implication.  It is important that the Tribunal make explicit findings of fact on material matters and expose the process of reasoning adopted by it in reaching its conclusion of lack of satisfaction that an applicant is a person to whom Australia owed protection obligations.  An applicant is entitled to know the basis upon which his application has been rejected and be in a position to assess whether the reasons of the Tribunal as exposed to him or her (including the findings of material facts upon which the reasoning is postulated) disclose an error which may be the subject of judicial review by this Court.

24                  The application should be dismissed with costs.

Associate:

Dated:              10 December 1999