FEDERAL COURT OF AUSTRALIA

S v Minister for Immigration & Multicultural  Affairs [2000] FCA 735

MIGRATION – protection visa – review of decision of Refugee Review Tribunal – suggested “What if I am wrong?” test – referral to evidence – whether decision based on non-existent fact

WORDS AND PHRASES – “What if I am wrong?”

Migration Act 1958 (Cth) ss 430(1), 476(1)(a), (1)(g), 476(4)

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

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 not followed

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 applied

R v Wainwright (1895) 13 Cox 171 mentioned

Attorney-General (South Australia) v Brown [1960] AC 432 at 454 mentioned

Lucas v The Queen (1970) 120 CLR 171 at 174 mentioned

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 applied

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 55-57 mentioned

Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 followed

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220 applied

S v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. V 47 OF 2000

HEEREY J

6 JUNE 2000

MELBOURNE

THE COURT ORDERS THAT:

The application is dismissed with costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant is a thirty-one year old male citizen of the People’s Republic of China.  He arrived in Australia on 31 May 1997.  He lodged application for a protection visa on 2 October 1997.  The application was refused and the delegate’s decision was confirmed by the Refugee Review Tribunal on 19 May 1999.  Following an order by consent for reconsideration the applicant’s application was reheard by the RRT differently constituted.  On 7 January 2000 the RRT again affirmed the decision not to grant a protection visa.

The applicant’s case

2                     The only Convention ground relied on by the applicant was political opinion.

3                     The applicant came from an intellectual family, his father being a professor at Shanghai University and his mother a doctor.  His parents were criticised because of their background and were sent for re-education during the Cultural Revolution. 

4                     The applicant had no major involvement in political activities until the 1989 pro-democracy movement.  In 1989 the applicant had been a student at Shanghai University for three years.  On 18 May 1989 the university joined with several others to demonstrate against Communism.  The applicant made a speech as a representative of his university criticising the government’s intention to crush the student pro-democracy movement.  He collected money to support students on a hunger strike in Beijing and printed and distributed pamphlets.  He helped set up a broadcasting station.  Following news of the Tiananmen Square massacre on 4 June 1989 the students in Shanghai demonstrated and incited citizens to strike.  One or two weeks afterwards the applicant and other student leaders were questioned by police.  Subsequently the applicant was detained and interrogated about his participation at student demonstrations.  His detention continued for three months.  He was physically mistreated.  He was only released because his father paid a bribe.  The police recorded his dissident activities and detention on his public file.

5                     After his return to university he graduated but the university did not find him employment, as it did for most graduates.  However he found a job with the Hong Kong-owned Bank of East Asia.  He was unable to go to train in Hong Kong because police twice refused to issue him a passport on the basis of his political activities and his 1989 arrest.  He was unable to gain government employment.

6                     About mid 1991 he resumed political activities.  In December of that year he formed the illegal Liberal Democracy Party (“LDP”) with twelve others including some former student colleagues.  He became party Chairman and Chief Editor of the party’s publication in which he published articles under a pseudonym.

7                     In September 1995 he left the bank because of limited promotion opportunities and commenced work in real estate.  He installed two satellite television channels at his home to obtain information from abroad and continued to publish articles in the LDP’s illegal magazine. 

8                     After the death of Deng Xiao Ping in February 1997 the LDP became more active.  In March of that year a member of the party received a banned video of the Tiananmen Square massacre and duplicated and circulated it.  Two cable television stations rejected the video so the applicant gave it to shops, including a shop near his former residence.  Later the applicant heard that that shopkeeper had been raided and detained and forced to name the applicant as the supplier. 

9                     On 3 May 1997 the Vice President of the LDP was followed home after handing out copies of the party’s magazines in the city.  He was arrested the following day.  Another member of the party warned the applicant not to return home or he would also be arrested.  The applicant’s father also warned him not to come home because someone was at their home looking for him.  The applicant hid with a friend.  The friend went to the applicant’s home and was told over the intercom not to come inside because the house had been searched.  On hearing this the applicant feared that the police would have found the computer discs which contained his political writings and would provide evidence of his writing under a pseudonym.  He remained in hiding and arrangements were made for him to stow away on a ship to Hong Kong.  However when the ship arrived in Hong Kong the person who had agreed to meet the applicant at the dock did not appear.  As there was no opportunity for him to disembark safely he had no alternative but to continue on to the ship’s final destination, which was Melbourne.

10                  As it happened, the applicant had a former school friend in Melbourne who had been sending information to the LDP.  The applicant arranged for a friend in Hong Kong to contact his friend in Melbourne and the latter met him when the ship docked and helped him leave.

11                  After his arrival in Australia the applicant tried unsuccessfully to contact his father in China by telephone.  He had not been involved in political activities in Australia other than establishing a web page in early 1999 and publishing a political article there.

Decision of the RRT

12                  After referring to the legislative framework and leading authorities in the High Court and this Court, the RRT noted the applicant’s evidence that he did not fear that he would be harmed now in China on account of his family’s background.  The history of the family since the Cultural Revolution led to the conclusion that the family’s former classification was of no relevance now or in the foreseeable future, even if it was recorded on his personal file.  The RRT accepted that the applicant participated in the 1989 pro-democracy movement and that he was detained.  However the applicant’s release and return to university indicated that the authorities were satisfied he was of no further interest.  After reviewing the evidence, including evidence of comprehensive tightening of security measures and a broad sweep of suspects and systematic searches for dissidents and political crackdown, the RRT concluded:

“In assessing the applicant’s claims in regard to the 1989 demonstrations, the Tribunal is satisfied he participated in a minor way and was interrogated.  However, his participation was not in any leadership role and he was not a prominent protestor and the Tribunal finds this matter was finalised when his interrogation finished.”

13                  The RRT did not accept that the applicant’s father’s contacts and payments of bribes facilitated his release.  It was clear that the focus of the authorities was to terminate a dissident movement and it was inherently implausible that perceived enemies of the State would be able to escape punishment.  It was unlikely that an official would take a bribe and still record the applicant’s alleged high profile dissidence on his personal file where other officials may see it.  The RRT did not believe that the applicant would be released had he been perceived to be a threat.  Nor did the RRT accept that he was denied employment in the government sector because he was a dissident.  If the authorities wished to harass him for his political activities they could have refused him re-entry to university or graduation, or could have blocked or otherwise impeded his employment. 

14                  The RRT did not accept that the applicant was twice refused a passport in later years because he was noted as a dissident on his personal file records.  The RRT noted Department of Foreign Affairs and Trade Country Information Report No 64/98 to the effect that many dissidents had left China legally over the last three to four years, although many had served all or part of a prison or reform through labour term.  The applicant had no real history of political activity apart from his interrogation and release after minor participation in the 1989 demonstrations and at the time he applied for a passport he was enjoying a successful career at his bank.  There was no indication that he was questioned by officials in regard to his passport application, or of any ongoing official interest in him while, on the contrary, known dissidents were at that time permitted to travel outside the PRC.  It seemed odd to the RRT that the bank would continue to employ him if, as he claimed, he was suspected by the authorities and was unable to complete the training the bank had scheduled for him in Hong Kong.  In a passage which became the subject of argument on the application for review the RRT said:

“In all of the circumstances, the Tribunal does not accept that the applicant was refused a passport for the reasons he has described and finds that if he was ever refused such a document it was for undisclosed reasons unrelated to his political opinions as he described them.”

15                  The RRT thought that, the applicant having kept a low profile after the 1989 demonstrations, it was not credible that he would then suddenly develop in 1991 the skills to establish a political party, become its chairman, and produce and distribute a magazine and other printed materials.  It was implausible that he was publishing and distributing materials every month or two but nobody in his party was intercepted between 1991 and 1997, even though he said he was followed. 

16                  The RRT made a finding that the applicant was not involved with a group named the LDP or any other dissident political group and did not write dissident articles.  The RRT gave a number of reasons for that finding, including the improbability of him writing articles under a pseudonym yet leaving computer discs at his house that contained information which identified him, and making no arrangements to remove them.  In considering the aspect of his claim relating to dissident materials and storing them at home the RRT made a finding that he contrived such claims.  As to the video, after reviewing the evidence the RRT noted discrepancies in the applicant’s evidence.  At one stage the applicant said the owner informed on him.  Later he said the shop was closed in a pornography raid and he did not know if the owner had informed.  This incident occurred in April 1997 but the applicant was not questioned, even though he continued to live and work at the same places until the following month.  The RRT concluded that if the applicant supplied a banned video tape such activity was not disclosed or, if it was, the authorities had no interest in pursuing the applicant. 

17                  The RRT noted that, despite the applicant’s claim to be an active risk-taking political leader passionately opposed to the PRC regime, he undertook no political activities after his arrival in Australia in May 1997.  His inability to enunciate some key aspects of an article he claimed to have written indicated that he did not write the article, and the RRT found accordingly.  In all, it did not accept the applicant’s claims about being involved in dissident activities between 1991 and 1997. 

18                  As already mentioned, the RRT did not accept that the applicant was refused a passport because of his political opinions.  It thought to be “far-fetched” his account of being smuggled to Hong Kong, and being unable to disembark and then continuing to Melbourne where, coincidentally, there was a friend who was able to accompany him off the ship in broad daylight.  But even if that story were true, it did not indicate that the applicant faced a real chance of persecution on account of his political opinion or family background or any other reason that might come within the Convention definition.  The RRT concluded that there was not a real chance of persecution being visited on the applicant for a Convention reason.

Failure to observe procedures

19                  Section 476(1)(a) of the Migration Act 1958 (Cth) makes it a ground of review by the Federal Court of a decision of the AAT “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”. 

20                  Section 430(1) provides:

“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;

(b)       sets out the reasons for the decision;

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

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

21                  In Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 a Full Court held that the requirements of s 430 were “procedures” within the meaning of s 476(1)(a).  This question is being considered by a five member Full Court in Singh v Minister for Immigration and Multicultural Affairs.  Argument was heard on 28 February 2000.  Judgment has not yet been delivered.

22                  Yusuf itself is the subject of an appeal to the High Court for which special leave has been granted.  However at the time of the present decision I consider that Yusuf is binding on a single judge of this Court and I shall follow it, notwithstanding the decision of a subsequent Full Court in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741.

Alleged failure to make findings on the question of what were “undisclosed reasons unrelated to his political opinion” for refusal of a passport

23                  The passage in the RRT’s reasons which founds this argument has already been quoted (see par 14 above).  The second part of that passage commencing with the word “finds” is probably not a finding in the legal sense used in s 430(1)(c).  In substance, the RRT has made a finding that the applicant was not refused a passport for reasons of his dissident political activity.  This was a factual issue and the RRT declined to accept the applicant’s case.  It is not suggested that there was no basis on which the Tribunal could have made that finding, or that it failed to refer to the evidence on which that finding was based.  In particular, as already noted, the RRT referred to a DFAT Country Information Report.  The applicant’s contention on this issue was a composite one, namely refusal of a passport because of political activity.  The RRT were quite satisfied that the second element was not established, which would be sufficient to dispose of that part of the case.  Refusal of a passport in itself is not a Convention ground, nor necessarily even relevant to a Convention ground. 

24                  The RRT then goes on to express some doubt whether the first element of the contention was made out.  The final observation that, if there was such refusal, it was for reasons unrelated to his political opinion, is no more than a comment.  Plainly the applicant did not disclose such reasons – his case advanced another reason which the Tribunal rejected, finding it did not exist.  If the true reason was undisclosed, I do not see how the Tribunal could be expected to make findings on facts which, ex hypothese, were unknown to it. 

Failure to ask “What is I am wrong?” in relation to this point

25                  The “What if I am wrong?” test does not, as far as I am aware, appear in the discourse of any other area of administrative or judicial decision-making, however serious the consequences of such decisions may be for the persons involved.  For example in criminal trials neither judge nor counsel should tell the jury of the possible consequences of its verdict:  R v Wainwright (1895) 13 Cox 171, Attorney-General (South Australia) v Brown [1960] AC 432 at 454, Lucas v The Queen (1970) 120 CLR 171 at 174.  The suggested place of the “What if I am wrong?” test in the determination of refugee status is inconsistent with the decision of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559.  Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ referred to one of the judgments in the Full Court (1996) 64 FCR 151 at 179 where it was said:

“… no consideration was given by the Tribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related.”

26                  In the High Court their Honours said (at 575):

“With respect to his Honour, this criticism of the Tribunal’s reasons is wrong.  For the reasons that we have given, the Tribunal was entitled to weigh the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well-founded.’  Moreover, given the strength of some of the Tribunal’s findings – for example, ‘the treatment the Applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials’, ‘the Applicant’s illegal departure in 1993 will not result in an imputed political profile’, ‘these matters will not result in persecution to the Applicant for Convention reasons if returned to China’ – the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.

It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.

In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the Tribunal reached that conclusion, a finding that nevertheless  Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

27                  In Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 Sackville J, with whom North J agreed, engaged in a detailed analysis of the authorities concerning the nature of the RRT’s fact finding task in assessing the real chance of future persecution where there is uncertainty as to the occurrence of past events:  see pars 32 – 66.  The passage is too lengthy to quote here and I incorporate it by reference.  The essence of what the majority said is in my respectful opinion encapsulated in the judgment of the other member of the Court (Kenny J) who said (at par 140):

“There is, however, nothing in the judgments of the majority in Guo or [Minister for Immigration and Ethnic Affairs v] Wu Shan Liang [(1996)185 CLR 259] to require the RRT to address the specific question ‘What if I am wrong?’ after it has made findings of fact and in the course of determining whether it is satisfied that the applicant has a well-founded fear of persecution.  Indeed, I doubt that Kirby J intended to be understood as requiring that:  see Wu Shan Liang at 293.  In deciding whether it has a relevant satisfaction for grant of a protection visa, the Tribunal is required to bear in mind the totality of the case.  That, as we have seen, includes any relevant uncertainty that it entertains as to whether claimed events in the applicant’s past may ground a fear of persecution for a Convention reason.  In that respect, the Tribunal is required to do no more than to satisfy itself in accordance with commonsense and the ordinary experience of mankind.”

28                  The foregoing authorities make it clear beyond argument that a decision as to the likelihood of future persecution may, in appropriate circumstances, be based on considerably less than a fifty-one per cent satisfaction that a particular past event has occurred.  So the risk of error is allowed for, and built in to, the approach mandated by the authorities.

29                  When the RRT approaches its task in accordance with the law as laid down in those authorities, there is no room for the application of a further doubt-generating test such as “What if I am wrong?”.  Being human, the RRT may err, as may any decision-maker, or judge, or jury.  But dwelling on the consequences of error is at best an irrelevant exercise and at worst calculated to distort the decision making process.  In any case, the decision in question involves an assessment of the likelihood of a future occurrence.  Nobody can predict the future with absolute certainty.  If the future event does occur, that does not in itself mean that the decision-maker was “wrong” in making an assessment that it would not.

30                  In the present case the RRT expressed its findings of fact in confident terms.  Its conclusions were supported by evidentiary material and rational reasoning.  No error has been demonstrated.

Failure to refer to evidence for concluding that refusal of passport would be for reasons unrelated to political opinions

31                  This is sufficiently dealt with above.  The reasons read as a whole do not involve a positive finding as to some actual reason unrelated to political opinion.  If there were such reasons, those reasons were irrelevant for the purposes of establishing fear of persecution on a Convention ground, given the context of this case where no Convention grounds other than political opinion were suggested.

Failure to make finding on material question of fact whether well-founded fear of prosecution for illegal departure from China was for Convention reason

32                  The RRT’s conclusion that there would be no real chance of persecution on the ground of political opinion logically excluded any persecution whether it took the form of politically motivated prosecution for illegal departure, or any other form.

Error of law in interpreting or applying s 430

33                  Counsel for the applicant contended that whether or not it is ultimately held in Singh or the High Court appeal in Yusuf that s 476(1)(a) applies to s 430(1) there is an independent obligation on the RRT.  If the RRT does not apply itself to all the issues it is required to consider in determining the matter before it there will have been a purported, but not real, exercise of its functions and jurisdictions.  In such circumstances there will have been a constructive failure by the RRT to exercise its jurisdiction:  Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 55-57 per Merkel J.  If that be a correct statement of the law, the argument advanced by the applicant in reliance on it was essentially the same as that to which I have already referred.  In particular, argument was based on the failure to ask “What if I am wrong?”.  It was said the RRT’s task was not confined to findings on “material questions of fact” but went to “the factual centrepiece of the claim”.  However for the reasons already given this argument must be rejected.

No evidence or other materials to justify the making of the decision:  s 476(1)(g)

34                  This ground is qualified by s 476(4) which provides that the ground specified in par 1(g) is not taken to have been made out unless

“(a)  the person who made the decision was required by law to reach the decision only if a particular matter was established and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)       the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

35                  There were said to be two non-existent facts.  The first is said to be relevant to the following passage in the RRT’s reasons:

“The applicant initially suggested he was a leader of the demonstrations, but he was unaware that former Russian President Gorbachev had visited Shanghai on 18 May, a day on which the applicant claims he made a speech at a protest.

If he had been a leader as he claimed, the Tribunal is satisfied that he would have been aware of such significant developments.

In assessing the applicant’s claim in regard to the 1989 demonstrations, the Tribunal is satisfied he participated in a minor way and was interrogated.  However, his participation was not in any leadership role and he was not a prominent protestor and the Tribunal finds the matter was finalised when his interrogation finished.”

36                  The non-existent fact is said to be the fact that the applicant claimed he was a leader of the demonstration, whereas he did not in fact make such a claim.  It is not necessary to go into the detail of the evidence which counsel for the Minister, argued correctly in my opinion, provided a proper basis for the RRT attributing to the applicant a claim to have been a leader.  There is a legal answer to the applicant’s argument to which I shall shortly refer. 

37                  The second non-existent fact was related to the video incident.  The RRT said:

“In earlier submissions he said the shop was raided and a friend informed on him.  Later he said the shop was closed in a pornography raid and he did not know if the owner had informed.” 

38                  It was said that this fact was non-existent because he did not say that the friend had “informed on him”.

39                  Neither matters could fall within s 476(4)(a), which speaks of statutory pre-conditions, not the ultimate conclusion.  Obviously enough, neither alleged non-existent fact was in the nature of a condition upon which the exercise of the decision-making power depended:  Marshood v Minister for Immigration and Multicultural Affairs [1999] FCA 1415 at par 21.  Nor was s 476(4)(b) satisfied.  The decision was not “based on” such findings in the sense of being critical to the making of the decision:  Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220. 

Conclusion

40                  The application will be dismissed with costs, including reserved costs.

Associate:

Dated:              6 June 2000