FEDERAL COURT OF AUSTRALIA

Chen Shao Hui v Minister for Immigration & Multicultural Affairs

[2000] FCA 597

MIGRATION – protection visa – whether primary judge erred in holding that Refugee Review Tribunal had complied with obligations imposed by s 430 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth), s 430, s 430(1), s 430(1)(b), s 430(1)(c), s 430(1)(d), s 476(1)

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 referred

Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407 applied

Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 followed

Yelda v Minister for Immigration and Multicultural Affairs [1999] FCA 1841 referred

Collector of Customs v Pozzolanic (1993) 43 FCR 280 referred

CHEN SHAO HUI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 223 of 2000

MOORE, FINN & DOWSETT JJ

12 MAY 2000

SYDNEY

On appeal from a single judge of the Federal Court of Australia

THE COURT ORDERS THAT:

            1.         the appeal be dismissed.

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

On appeal from a single judge of the Federal Court of Australia

REASONS FOR JUDGMENT

THE COURT:

1                     The question raised in this appeal is whether the primary judge, Lehane J, erred in law in holding that the Refugee Review Tribunal (“the Tribunal”) in determining not to grant the present appellant a protection visa complied with its obligation to prepare a statement of reasons complying with s 430(1) of the Migration Act 1958 (Cth).

2                     Insofar as presently relevant that section provides:

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

(a)               …

(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 appellant’s submissions have challenged his Honour’s decision in one, narrow respect.  For this reason it is necessary to refer only briefly both to matters of factual background and to the reasons of the Tribunal.

Factual Settings and the Tribunal’s Decision

4                     Ms Hui, a national of the People’s Republic of China, arrived in Australia in November 1996.  She travelled using a passport issued in the name of Liu Shu Fang.  The same passport had been used for a prior trip to Australia earlier in 1996.  In documents submitted to the Department of Immigration and Multicultural Affairs in response to a request from that Department, she sought to establish her true identity as Chen Shao Hui.  That documentation was described as:

“     .    Employee’s identification card issued by the Beijing Applied Physics & Calculating Mathematics Institute [her alleged employer].

       .    Employee’s identification card issued by the Beijing No 9 Institute.

       .    Residential identification card issued by the Haidian Branch of the Beijing Public Security Bureau.

       .    Driver’s licence issued by the Administrative Section of the Beijing Public Transportation Management Bureau.

       .    Certain photographs.”

5                     In the process of rejecting her application, the Minister’s delegate concluded that the appellant’s real name was that on her passport, not that on the “identity” documents she had produced.  Her claim to refugee status was premised on her having the identity she asserted.  Responding to the delegate’s conclusion on the documents, her written statement to the Tribunal insisted on their authenticity.  It stated:

“C.6    As I mentioned in my original application, Beijing No 9 Institute (also called ‘Beijing Applied Physics & Calculating Mathematics Institute’) ‘was actually a part of the army.  It had military organization structure, and it was directly supervised by the State Council and the Science & Technology Commission of the National Defense (STCND).  The institute was belonged to top-secret unit which had been strictly protected by the armed-policemen of Beijing Garrison Command.’  It is impossible for anyone to get any false certificates from such a top-secret military organisation.  It is a common sense.  The Australian relevant authorities, I believe, could easily verify this fact:  emphasis added.

C.7      On the contrary, getting a passport with a different identity in China is much easier.  Even the Country Profile on China written by the Australian Department of Foreign Affairs and Trade and Document #CX4533 illustrate the fact that China is one of the most corrupt nations on earth and the embezzlement, fraudulent use and illegal purchase of identification documents is running unchecked in mainland China.”

6                     In affirming the delegate’s decision the Tribunal dealt with the issue of identity in the following way.  First, it noted a 1994 report that stated:

“Since September 15, 1989, when China officially implemented the system of using resident ID cards, the embezzlement, fraudulent use, borrowing picking up and illegal purchase of other’s ID cards to engage in illegal activities has already reached the point in society where it is running unchecked … .”

It then concluded:

“In view of the stringency of checks of persons departing China;  the belated submission of the applicant’s documentation purporting to demonstrate an identity different from that on the passport and airline ticket she used for travel;  and bearing in mind how widespread is the use of forged documentation in China, the Tribunal finds that the applicant is the person whose name appears on the passport she twice used to exit China and that the documentation she has furnished to indicate a different identity has been fraudulently produced.”

The Application to the Primary Judge

7                     The manner in which the Tribunal arrived at this conclusion in its statement of reasons was challenged before Lehane J on the basis that the reasons did not refer to material on which the Tribunal (a) based its findings that the identity documents were fraudulently produced;  and (b) based its rejection of the appellant’s evidence contained in her written statement to the Tribunal that, in relation to the employment documents she produced, “it is impossible for anyone to get false certificates from such a top-secret military organisation”.

8                     His Honour acknowledged that, faced with the passport on the one hand and the identity documents on the other, the Tribunal needed to make a finding as to which was “false”.  In his view “[the Tribunal] found the [identity] documents were ‘false’ and indicated why it did so.  There was … no failure to comply with s 430”.  Though accepting that the Tribunal did not explicitly refer to the appellant’s statement that it was impossible to get false certificates from a top-secret organisation, the Tribunal had in the paragraphs set out earlier in these reasons indicated the basis of its finding that the documents were “fraudulently produced”.  At best the appellant’s complaint was that the Tribunal incorrectly found the facts.

The Present Appeal

9                     It should be stated at the outset that, because of the view we take of this matter it is unnecessary for us either to express a view on the current conflict in decisions of the Full Court on whether non-compliance with s 430 is itself capable of providing a ground of review under s 476(1) of the Migration Act.  On the view most favourable to the appellant - that in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 - she must fail.

10                  Her submissions to us are in the alternative.  The first repeats the submission made to Lehane J noted above and involves the proposition that the Tribunal must have rejected the appellant’s evidence in her written statement to it.  Therefore it was obliged to set out its reason or reasons for rejecting that evidence as required by s 430(1)(b) of the Migration Act.

11                  The alternate submission is that if the finding that the identity documents were “fraudulently produced” is interpreted to mean they were forged, as it is said Lehane J appears to have interpreted the finding, then both s 430(1)(c) and (d) will not have been complied with – s 430(1)(c), because in its finding the Tribunal did not use the term “forged”;  s 430(1)(d), because the illegal practices involving ID cards to which the Tribunal referred did not mention forgery as such.

12                  The short answer to the first alternative is that the Tribunal has complied with the obligation imposed on it by s 430(1)(b).  As Lehane J indicated, the falsity of either the identity documents or the passport was a material issue in the proceeding.  It made a finding that the identity documents were false and indicated why it did so in the paragraphs quoted earlier in these reasons.  The conclusion of falsity necessarily involved a rejection of the evidence in favour of their veracity.  As such it was of itself sufficient as a “reason” to comply with the requirements of s 430(1)(b):  see Re Minister for Immigration and Multicultural Affairs;  Ex parte Durairajasingham (2000) 168 ALR 407 at 422-423.  In such circumstances, the subsection requires the fact of rejection of the evidence, not the reasons for that rejection, to be sufficiently stated in its reasons:  Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740 at [4]–[5].  The finding that the identity documents were fraudulently produced satisfied that requirement.  Furthermore the statement of reasons in its treatment of the issue of falsity so discloses the Tribunal’s reasoning process that the appellant ought properly be able to understand why she failed:  Yelda v Minister for Immigration and Multicultural Affairs [1999] FCA 1841 at [29].

13                  The alternative (“the forgery”) submission requires an over-critical view to be taken both of the Tribunal’s reasons:  see Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287;  and of Lehane J’s account of them.  When the Tribunal referred to the “widespread use of forged documentation”, it cannot reasonably be taken as doing more than paraphrasing the practices set out in the 1994 document to which it had just previously referred.  The Tribunal’s actual finding was that the identity documents were “fraudulently produced”.  It did not, and did not need to, make a finding as to how they were obtained or generated.  His Honour likewise did not treat the Tribunal as having so found.  The issue as put by Lehane J was whether the documents were false - it was not with the means by which they were made so.  In consequence there is simply no basis for alleging a non-compliance with s 430(1) in this regard.  The Tribunal did not make, and could not reasonably be taken to have made, a forgery finding as such.

14                  The appeal should be dismissed.

Associate:

Dated:              12 May 2000