FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856

MIGRATION – Refugees – Refugee Review Tribunal misread visa application as claiming that applicant had continued to be employed until 1997, whereas her claim elsewhere in the application and before Tribunal was to have been dismissed from employment for reason of her political opinions in May 1995 – Tribunal found as a fact that she had continued in employment until 1997 – Tribunal disbelieved applicant’s account of persecution generally on bases that did not depend on her supposed claim in her visa application to have been employed until 1997 – whether Tribunal referred to evidence or other material on which its findings of fact were based for purposes of para 430(1)(d) – whether decision based on a particular fact that did not exist for purposes of s 476(4)(b) – whether there was evidence or other material to justify making of decision for purposes of s 476(1)(g)

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

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, applied

Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511, cited

Pat Tai Choi v Minister for Immigration and Multicultural Affairs [1998] FCA 1556, cited

Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271, cited

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

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v LI YUE

N 1281 OF 1999

HILL, MATHEWS AND LINDGREN JJ

27 JUNE 2000

SYDNEY

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be allowed.

2.                  The respondent pay the appellant’s costs of the appeal.

3.                  (a)  The orders made on 14 October 1999 in proceeding N 481 of 1999 be set aside; and

(b)   In place of them the application in that proceeding be dismissed and the applicant in that proceeding pay the costs of the respondent in that proceeding.

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

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE COURT:

Introduction

1                     The appellant (“the Minister”) appeals from the whole of a judgment of a Judge of the Court by which his Honour ordered that a decision of the Refugee Review Tribunal (“RRT”) be set aside, that the matter be remitted to the RRT for reconsideration, and that the Minister pay the costs of the present respondent (then applicant – “Ms Li”).  The RRT had affirmed a decision of a delegate of the Minister (“the Delegate”) not to grant a protection visa to Ms Li.

Procedural background

2                     Ms Li is a citizen of the People’s Republic of China (“PRC”).  She departed China on 11 January 1998 and arrived in Australia on 12 January 1998.  On 6 February 1998 she lodged an application for a protection visa.  On 30 April 1998, the Delegate refused to grant the visa.  On 1 June 1998 Ms Li applied to the RRT for review of that decision.  There was a hearing before the RRT on 12 April 1999.  Ms Li attended, but her adviser was not present.  Ms Li was assisted by an interpreter.  On 28 April 1999 the RRT affirmed the Delegate’s decision.  On 25 May 1999 Ms Li applied to this Court for review of the RRT’s decision.  Following a hearing on 29 July 1999, a Judge of the Court made the orders referred to earlier.

3                     Section 29 of the Migration Act 1958 (Cth) (“the Act”) provides that subject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

(a)                travel to and enter Australia;

(b)               remain in Australia.

It is not in dispute that the Minister delegated all necessary powers to the Delegate under s 496 of the Act. 

4                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).

5                     Article 1A(2) of the Convention provides that a refugee is any 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, is unable or, owing to such fear, is unwilling to return to it.”

6                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

7                     Ms Li’s case is that she is outside the country of her nationality, the PRC, and is unwilling to return to it because of a well-founded fear of being persecuted for reasons of political opinion.

Ms Li’s claims and evidence before the RRT

8                     Ms Li’s claims and evidence before the RRT were found in her application for the visa, a written statement by her addressed to the RRT dated 26 May 1998, her oral testimony before the RRT on 12 April 1999, and a subsequent letter from her to the RRT dated 15 April 1999.  Those claims and evidence were to the following general effect.

9                     Ms Li was born in Harbin, Heilongjiang Province, China on 26 December 1969.  She attended primary school from 1977 to 1982, Harbin No 55 Middle School from 1982 to 1985, Harbin No 4 Middle School from 1985 to 1988, and the Harbin Sport Institute from 1989 to 1993.  Ms Li referred to the Sport Institute as a “university”.  She graduated from it in 1993.  Then she went to work for the Heilongjiang Construction Engineering Institute from 1993 to 1995.  (Although there is some reference to this institution also as a “university”, we will call it “the Engineering Institute”.)  We will refer to this last date (1995) in more detail below.

10                  Ms Li had a strong interest in rhythmic gymnastics which she used to express her political views.  It was this that was to land her in trouble with the authorities.

11                  Ms Li designed a program of rhythmic gymnastics for a students’ competition at the University (Harbin Sport Institute) in May 1991.  The program was called “Seeking Freedom” and expressed Ms Li’s political opinions against what she saw as the Chinese dictatorship.  The associated music was “Elegant demeanour of blood” which had been the most popular song during the pro-democracy movement of 1989.  She said that although her program was supported by students and by some of the teachers, it was banned by the authorities.

12                  Ms Li aspired, upon graduating from the Harbin Sport Institute, to be employed by the “Heilongjiang Sports Committee” as a coach in rhythmic gymnastics, but owing to her previous “political mistake” she was sent to the Engineering Institute where she was to be employed as a teacher.  The level of income of a teacher was low but this did not trouble her and in fact her teaching position gave her the opportunity to spread her political views and to develop her art.  When she began working at the Engineering Institute, there was no specialist on the staff equipped to teach rhythmic gymnastics and traditional dance.  She began teaching these activities.

13                  In the summer school holiday of 1994 (she later gave the month as July) she established the Engineering Institute’s first rhythmic gymnastics and traditional dance team.  She devised special programs for the team which expressed her political opinions favouring democracy and freedom.  Although she was warned and questioned by the authorities several times, she did not give up her activity.  The team was invited by the students’ unions of other universities and even by some factories and companies to perform for them.  By the winter school holiday of 1995, membership of the team had increased from twenty to fifty members.  At that time, she also instituted a special “training class”.

14                  In early April 1995 the “Qingmin Festival” was held.  It is for mourning the dead.  As part of that festival, Ms Li’s team performed a program called “Life and Death”, written and directed by Ms Li.  The authorities denounced the performance as intended to commemorate the students who were killed in the Tiananmen Square massacre.  As a result Ms Li was regarded as a person who used her art to stir up “anti-government” sentiment.  The authorities isolated her for a month during which she was questioned many times by “the political officers” and was pressured to “confess”.  She refused and, on the contrary, “openly argued with those officers”.  As a result, she was dismissed by the Engineering Institute on 11 May 1995.

15                  Her case was transferred to “the local police station”.  She was not allowed to engage in any activities associated with rhythmic gymnastics or traditional dance and was required to report to “the local neighbourhood committee” once a week.

16                  At the hearing before the RRT, in response to questions by the presiding Member, Ms Li elaborated upon, and added substantially to, her written claims.  The fact that her claims developed when and to the extent that they did was a matter to which the RRT was to refer. 

17                  Ms Li told the RRT that she was arrested for the first time on 15 June 1995, was taken to the Public Security Bureau (“PSB”) office by a police woman who made her strip naked and searched her before windows open to the street so that passers-by laughed at her.  The police woman spat on her clothes and made her put them on one by one.  She said that she was taken to a dark room and questioned about her show and about articles she had written and was forced to admit that they were “anti-government” and was made to write a confession of what she had done.  She said that she was tortured, that her head was grabbed and bashed against a bed, that she was bleeding badly, that the police woman tramped on her feet with high heels and that later in the evening she was dragged out and it took her two hours instead of the normal twenty minutes to get home.  She was told that if she did not confess she would be charged and sentenced but still she would not confess.  The next day a police woman came but left her alone because the bruises on her face would have reflected badly on the PSB.  However, about a week later when the bruises had faded, she was taken to the police station and again mistreated.  She “blacked out” and while in that condition someone pressed her finger on a form at which she protested that this was “cheating”.

18                  Ms Li told the RRT that she had had to attend a correctional centre of the “District Security Commission” where she was treated even worse than she had been at the PSB office.  Her knees, elbow and feet were injured and she had scars as a result.  She indicated to the presiding Member a lump on her right elbow.  She said she was made to kneel and was injured so that she would never go back on the stage again.  She was also made to wash clothes in winter temperatures down to minus 30 degrees and had ice on her hands so that she could not use delicate dancing equipment any more.

19                  Ms Li said that for about a month before her dismissal, which she dated 11 May 1995, she had been under surveillance by the Art Surveillance Bureau and had been warned in January 1995 to correct the main elements of her show, but had not done so because art was important in her life. 

20                  Ms Li claimed that she had written three published art critiques and many other articles that were not allowed to be published.  She gave to the RRT titles to some of the articles.  She said that she had wanted to study western art at University but that when she attended the library she found the books under tight control.  She said that her dance equipment had been confiscated so she had commenced making her own.  In fact, she produced a star-shaped item made of cloth and demonstrated spinning movements with it before the RRT.

21                  Although Ms Li departed China on a passport issued in her own name on 10 November 1997, she said that this had been obtained through a supporter and not totally legally.  She said that she had not been in a position to go to the PSB herself to obtain a passport and had not paid any money for it because she had been earning no money since being dismissed by the Engineering Institute.

22                  She said that she had married in January 1995 but did not know where her husband was and was looking for him.  She said that perhaps he had left her because he did not want to be compromised, and that, in any event, she had had no contact with him since she had been arrested in June 1995.  As well, she said that she was not in touch with her family since any direct communication with them would be checked and her family would be visited by the authorities.

23                  Ms Li said that she had adopted a boy from a couple, but that the boy was taken away from her by another couple in May or June 1997.  She said that on 9 June 1997 she went to the PSB to seek permission to see her son but had been refused.  When she went to see him, the police came and the District Security office said that she was in contempt of it by visiting him without permission.

24                  Ms Li said that she was not permitted to go out of her house freely or to travel from her district to another. 

25                  The RRT questioned Ms Li as to why she had stayed in China so long before leaving on 11 January 1998 and she replied that she had been carefully planning her departure from February 1997 to January 1998, and that January was a good time to leave because “everybody was busy eating” on account of its being the Chinese New Year.  The RRT observed that in 1998 the Chinese New Year occurred after 12 January by the Western calendar, that is, the day after her departure.  Ms Li responded by saying that it was on 21 February but what she was saying was that people were celebrating the standard international New Year.

26                  At the RRT’s request, Ms Li again demonstrated the spinning of the cloth star and the RRT acknowledged that she appeared to have skills as an entertainer, presenter and artiste.

27                  In response to questioning, Ms Li said that she had been taken twice to the PSB for serious questioning but had had to go many times to the District Security Bureau because she was sent there to reform, and it was up to that Bureau to call her in two or three times a week from June 1995 to January 1998 when she left China.  She said that the two serious questionings were both in June 1995, the first on 15 June 1995, when her eye was bruised, her nose was bleeding and she was made to make a fingerprint; and the second time, about a week later, when she was again ill-treated and was shown the form that bore her fingerprint.  She said that on this occasion she had faced a very strong light as a result of which she was still afraid of strong light. 

28                  Ms Li also told the RRT that the District Security Bureau had asked her to clean a second floor window, which she had objected to doing, and that she had “fallen off” and fractured her foot and elbow.  She said she had been “made to stand guard” because she refused to go onto the roof to clear snow and that if she had slipped, the authorities would have said that she had taken her own life.  She said that she had been made to carry coal and was pushed downstairs with the coal which caused the bone fracture in her foot to worsen and caused a “protrusion problem” in her foot.

29                  In a post-hearing letter of 15 April 1999, Ms Li claimed that she had not been able to find jobs after being dismissed by the University in May 1995 and had been required to report regularly “to the local government”, which meant that her freedom was severely restricted.  She claimed that she was frequently questioned by the local government, with the result that her dissident opinions would have come to the attention of the Chinese Government.  She also claimed in the letter that she was not allowed to engage in rhythmic gymnastics and traditional dance, which meant that she was deprived of “the basic human rights to continue [her] art”.

Reasoning of the RRT

30                  The RRT accepted that Ms Li was a national of the PRC who had been in Australia since January 1998, having departed China legally to travel directly to Australia on 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.

31                  It is convenient now to note an error on which the primary Judge relied in setting aside the RRT’s decision.  In her visa application lodged on 6 February 1998, Ms Li stated in handwriting in answer to a question in the printed standard form, the period for which she had been employed at the Engineering Institute.  Her handwriting could be read as from 93 to “95” or from 93 to “97”.  The presiding Member read it as from 93 to “97”.  This is readily understandable.  Indeed, apparently no-one detected the problem until during the hearing before the primary Judge.  Since that time, there has been no dispute between the parties that the correct reading is from 93 to “95”.  That is, unlike many cases, the case is one in which the applicant has no difficulty in proving that a particular fact referred to by the decision-maker (the making of a claim to have been employed until 1997) did not exist.  It should be noted that in a narrative account of her reasons for leaving China contained in the same form Ms Li claimed that she had been dismissed by the Engineering Institute in May 1995 for reasons of her political opinions – the claim that she was later to maintain before the RRT.

32                  Read in the way that the presiding Member read it, the answer to the question was inconsistent with Ms Li’s account that she had been dismissed by the Engineering Institute in May 1995.  The RRT stated:

“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.” (emphasis supplied)

33                  (The reference to the “university” that dismissed Ms Li is clearly a reference to the Engineering Institute – in her application for the visa, Ms Li referred to each of the Sports Institute from which she had graduated and the Engineering Institute by which she was employed and dismissed as a “university”.)

34                  The RRT went on, without reference back to this inconsistency, to refer to other difficulties it found in Ms Li’s claims.  It referred, in particular, to the following:

·        Ms Li’s failure to produce any documentation to substantiate her education, employment, dismissal or cultural activities;

·        an inconsistency between her claim that she had lost contact with her husband and family and her statement in her application for the visa that she was in contact with relatives in China “by phones”;

·        the delay in Ms Li’s leaving China for some two and a half years after the events of May and June 1995 and six months after the last action by the authorities towards her;

·        the implausibility of Ms Li’s explanation of the timing and circumstances of her departure;

·        inconsistency between Ms Li’s being a known dissident and the lack of hindrance to her leaving China on a Chinese passport;

·        the progressive nature of the revelation of Ms Li’s alleged physical mistreatment and injuries;

·        inconsistency between Ms Li’s apparent dexterity and nimbleness as demonstrated before the presiding Member and her allegation of serious disabling injury;

·        inconsistency touching Ms Li’s account of the taking of her fingerprint;

·        inconsistency touching the alleged imposition of reported conditions;

·        the lateness of the claim that Ms Li had published articles critical of the Government.

After noting these matters, the RRT concluded as follows:

“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.”

It will be noted that in this passage the RRT does not refer to the inconsistency between what it had read as a handwritten answer in the form of application for a visa that Ms Li had been employed by the Engineering Institute until “97”, and her claim to have been dismissed by the Engineering Institute in May 1995.

Reasoning of the primary Judge

35                  Before his Honour, Ms Li relied upon the grounds of review provided for in paras 476(1)(a), (e) and (g) of the Act.  The ground on which his Honour set aside the decision was that provided for in para 476(1)(a), read in conjunction with s 430. He considered that the RRT had failed to comply with s 430’s requirement that it refer to the evidence or any other material on which its finding that Ms Li’s employment had been terminated in May 1995 was based.  After referring to authorities on the effect of s 430, his Honour stated as follows:

“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.” (emphasis supplied)

36                  Finally, his Honour said that in the light of his conclusion that the para 476(1)(a) ground was made out, it was not necessary for him to consider in detail the remaining grounds relied on.  However, he mentioned that although the RRT had relied on a fact that did not exist (he described that fact as being that Ms Li “had recorded in her application that her employment at the engineering institute concluded in 1997”), the RRT’s decision was not “based on” that non-existent fact, because there was other material concerning Ms Li’s credibility on which the RRT relied.  For this reason, his Honour expressed the opinion that the para 476(1)(g) ground was not made out.

Reasoning on the appeal

37                  The Minister relies on the following grounds of appeal:

“(a)     His Honour erred in law by holding that s 430 Migration Act 1958 creates a duty to explain the rejection of evidence of an applicant on a material question given either orally or in writing.

(b)       His Honour erred in law by holding that, in effect, an error of fact made by a Tribunal is a reviewable error of law because that error of fact is recorded in the written reasons of the Tribunal.”

38                  With leave, Ms Li filed a notice of contention on the hearing of the appeal seeking to maintain his Honour’s decision on the ground that he thought she had not made out, that is, that there was no evidence or other material to justify the making of the decision (s 476(1)(g)).

39                  The statutory provisions relevant to the appeal itself are para 476(1)(a) and subs 430(1).  The ground of review provided by para (a) of subs 476(1) is as follows:

“(a)     that procedures that were required by [the] Act or the regulations to be observed in connection with the making of the decision were not observed”.

Subsection 430(1) is as follows:

“430(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.”

40                  In view of our conclusion below, we need not consider the question whether subs 430(1) requires “procedures” to be observed for the purpose of para 476(1)(a).  This is a question on which different views have been expressed: see Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 and Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 per Whitlam and Gyles JJ.  It is currently the subject of consideration by a five-judge Bench in Minister for Immigration and Multicultural Affairs v Singh heard on 28 February 2000 (judgment reserved).  We note too that on 11 February 2000 the High Court granted the Minister special leave to appeal in Yusuf.

41                  The RRT did not believe Ms Li’s account of her dismissal in May 1995 or of other forms of persecution for her political opinions. A fair reading of the RRT’s reasons for decision shows that the grounds for its disbelief had nothing to do with Ms Li’s having claimed in her handwritten answer, as the RRT understood her to have done, that she had continued in employment until 1997.  In addition to the difficulties listed in para [34] above, the RRT expressly found that Ms Li’s account of having lost contact with her husband and her son was “disingenuous and unbelievable”; that her explanation of her delay in escaping was “implausible and flawed”; and that she “was creating and embroidering claims as she was questioned further”.

42                  The RRT had no confidence whatever in Ms Li as a witness.  The reason why it accepted that she had been employed until 1997 was not that it understood her to have made a claim to that effect in her visa application.  The fact is that there were before the RRT two competing dates of termination of her employment: May 1995 and 1997.  The former represented the date of her alleged dismissal for reasons of her political opinions and was an essential part of her claims of persecution.  The latter was associated with her departure from China – she obtained her passport in November 1997 and left the country on 11 January 1998, arriving in Australia on 12 January 1998.  In view of the RRT’s thorough rejection of Ms Li’s claims of persecution, there was no reason for it not to accept that she had continued to be employed until 1997.  In substance, what it accepted was that she continued in employment until she chose to leave China.  There was no evidence before the RRT of a more precise date than Ms Li’s handwritten “97” and no doubt it assumed that she had remained employed until late 1997.

43                  Against the above background, we think that the RRT complied with subs 430(1):

·        The RRT set out its decision on the review in that it affirmed the Delegate’s decision not to grant a protection visa.

·        The RRT set out its reasons for its decision that it was not satisfied that Ms Li had a well-founded fear of persecution by the Chinese authorities for reason of her political opinion: it did not accept her account of her dismissal, arrests, mistreatment, reporting conditions and restrictions on movement and was not satisfied that she had attracted the attention of the Chinese authorities.  In short, the RRT did not believe her account of persecutory acts.  The RRT’s statement of its reasons served its function of enabling Ms Li to understand the basis on which it had reached its decision.

·        We need not discuss the meaning of the expression “material questions of fact” because, construing that expression most expansively in favour of Ms Li, we think that the RRT set out all the relevant “findings” that could arguably be required: that Ms Li was claiming (found falsely) to have been dismissed in May 1995; that she had previously, in her visa application, claimed (found correctly) to have continued in employment until 1997; and that she had in fact continued in employment until 1997.

·        The RRT referred to the “evidence or any other material” on which those “findings” were based: as to the making of her claim (found to be false) of dismissal in May 1995, this was her visa application, her oral testimony before the RRT and her post-hearing letter of 16 April 1999; as to the making of her claim (accepted as true) of continuation in employment until 1997, it was her visa application; as to her having in fact continued in employment until 1997, it was the fact that she had not been dismissed from the Engineering Institute in May 1995 as alleged, had obtained a Chinese passport in November 1997 and departed China on 11 January 1998, and had (as the RRT thought) once claimed to have been employed by the Engineering Institute from 1993 to 1997.

44                  With respect, we think that the learned primary Judge erred in thinking that para 430(1)(d) required that the evidence or other material on which a finding of fact is based be capable of supporting it.  In our view, all that is required by para 430(1)(d) is that the RRT identify the evidence or other material on which it, the RRT, in fact based its findings on any material questions of fact.  Compliance by the RRT with para 430(1)(d) here (construed in the manner most favourable to Ms Li) served one of the provision’s purposes: it exposed an error. 

45                  We turn now to Ms Li’s notice of contention.  Relevant to her contention are para 476(1)(g) and para 476(4)(b).  Paragraph 476(1)(g) is as follows:

“(g)     That there was no evidence or other material to justify the making of the decision.”

Subsection 476(4) provides that the ground specified in para 476(1)(g) is not to be taken to have been made out unless, relevantly,

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

46                  Ms Li identifies the “particular fact” on which the RRT based its decision but which did not exist as the fact that she had claimed in her application for the visa to have been employed at the Engineering Institute from 1993 to 1997.

47                  We accept that:

·        the “decision” to which para 476(4)(b) refers is the decision to which para 476(1)(g) refers which is the judicially-reviewable decision to which the introductory words of subs 476(1) refer, in the present case, the RRT’s decision to affirm the Delegate’s decision;

·        the notion, “based on”, in para 476(4)(b), requires that the particular fact that did not exist be “critical to” the decision (Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 221 per Black CJ, with whom Spender and Gummow JJ agreed) or that the decision “depend upon” that particular fact (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-341 per Mason CJ) (Curragh and Bondwere decided under the comparable provisions (paras 5(1)(h) and 5(3)(b)) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”));

·        paragraph 476(4)(b) does not require that one particular fact, and no other, be identified as the particular fact on which the decision was based, and the paragraph may be satisfied where the decision was based on many particular facts, provided the one in question was critical, as by being a link in a chain (Curragh, above, at 220-221).

48                  As noted earlier, the RRT accepted that Ms Li arrived in Australia on 12 January, having left China on 11 January 1998 on a Chinese passport issued in November 1997.  It also accepted that she was employed from 1993 to 1997 at the Engineering Institute, as she had, according to the RRT’s understanding, alleged in her visa application.  The RRT “noted” the contradiction between such a claim and the claim she was making before it to have been dismissed by the Engineering Institute in May 1995.

49                  We observed earlier that the RRT rejected Ms Li as a credible witness for reasons that did not depend in any way on what it understood to be her claim in her visa application to have been employed until 1997.  The RRT correctly understood that the claim being advanced at the hearing was that she was dismissed in May 1995 and that most of the alleged persecutory acts occurred then and subsequently.  The RRT referred, without reference to her earlier supposed “1997 claim”, to various events that Ms Li said occurred between 11 May 1995 and 1997, including her alleged arrest on 15 June 1995 and associated mistreatment, her weekly reporting to the “local neighbourhood committee”, and her attendance at a correctional centre of the District Security Bureau.  The RRT pointed out that if she was dismissed in May 1995, as she claimed, she allowed a little over two and a half years to elapse from then until she departed China and the RRT thought that this told against her claims.

50                  Ms Li’s account of persecution advanced before the RRT is consistent with an 11 May 1995, not a 1997, termination of employment.  But this does not mean that it was the RRT’s erroneous understanding that Ms Li had written “97” that caused it to accept 1997 as the correct termination date and then to reject her allegations of persecution in the intervening period.  The substantial reason why the RRT accepted 1997 as the termination date was that it rejected her claims of dismissal on 11 May 1995 and of persecution from then to her departure coupled with the facts that she obtained her passport in November 1997 and departed China on 11 January 1998.  Ms Li’s supposed “1997 claim” was no more than a convenient basis to hand on which the RRT could give more precision to its view that she had not been dismissed from employment as she alleged.  Absent that claim, and given its rejection of her claim of dismissal in May 1995, the RRT would have assumed that Ms Li continued to be employed by the Engineering Institute until her departure from China or, if not, that the time and circumstances of any earlier cessation of that employment were irrelevant to her claims.

51                  The only “particular fact” that is shown not to have existed is that Ms Li made a claim in her visa application to have been employed until 1997.  A particular fact that is not shown not to have existed is that Ms Li was in fact employed until 1997.  The RRT made findings of fact to both effects.  It will be clear from what we have said above that we do not think that it based the latter finding on the former.  It is consistent with the RRT’s reasoning that it would have found that Ms Li continued to be employed by the Engineering Institute until she left China even if the RRT had understood (correctly) that she had written “95” rather than “97” in her form of application for the visa.

52                  Against the above background, we can apply the terms of paras 476(1)(g) and 476(4)(b) to the facts.  We do not think the “particular fact” of the supposed making of the claim in Ms Li’s application for a visa was one on which the RRT’s decision to affirm the Delegate’s decision was “based”.  That particular fact was not “critical” to the decision and was not a link in a chain having some or all of the other particular facts on which the decision was based as further links (cf Curragh, above, at 220-221).  Nor did the decision “depend on” the particular fact mentioned (cf Bond, above, at 340-341).  Our conclusion in the present respect may be compared with the similar conclusion reached by the Full Court in Chopra v Minister for Immigration and Multicultural Affairs [1999] FCA 480 on the facts of that case.

53                  This conclusion suffices to dispose of Ms Li’s contention.  But there is an alternative ground on which we would not sustain it.  “It is not, of course, enough to satisfy the requirements of s 5(3)(b) [of the ADJR Act; cf s 476(4)(b) of the Act] alone as to do so would ignore the language of the ground provided for by s 5(1)(h) [of the ADJR Act; cf s 476(1)(g) of the Act] itself”: Curragh at 221 per Black CJ with whom Spender and Gummow JJ agreed; and see, to the same effect Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 (Wilcox J) at 519-521; Pat Tai Choi v Minister for Immigration and Multicultural Affairs [1998] FCA 1556 (Lindgren J) at 9; Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271 (Carr J) at 12; T v Minister for Immigration and Multicultural Affairs [1999] FCA 878 (Moore J) at [49]-[51].

54                  It is not a straightforward matter to apply the terms of para 476(1)(g) where the decision-maker’s conclusion is that it is not satisfied that statutory criteria are met.  We do not propose to discuss the issues of construction that arise.  It is sufficient for us to say that if, contrary to our view, Ms Li’s supposedly having made a claim in her visa application that she had been employed by the Engineering Institute until 1997 was a particular fact on which the RRT’s decision to affirm the Delegate’s decision was “based” (in the sense discussed earlier), there was nonetheless other evidence or material before the RRT to justify that decision and, in particular, to justify the RRT’s finding that, contrary to her supposed claim, Ms Li had in fact continued in employment until 1997.  That other evidence or material, characterised by inconsistency and implausibility, caused, and was in law capable of causing, the RRT to disbelieve Ms Li’s account of earlier dismissal and other forms of persecution, and was independent of the supposed fact that she had claimed in her visa application to have been employed by the Engineering Institute until 1997.

Conclusion

55                  For the above reasons, the appeal should be allowed with costs, the orders of the learned primary Judge should be set aside, and it should be ordered in place of them that the application for review of the Delegate’s decision be dismissed and that Ms Li pay the Minister’s costs of that proceeding.

Associate:

Dated:              27 June 2000