FEDERAL COURT OF AUSTRALIA

Ou v Minister for Immigration & Multicultural Affairs

[2000] FCA 1152

MIGRATION – review of decision of Refugee Review Tribunal to refuse application for protection visa – whether reasons of Tribunal failed to set out findings on material questions of fact – whether Tribunal failed to give reasons as to why it preferred certain evidence on which it based its findings – whether applicant given genuine opportunity to be heard – whether Tribunal biased – whether Tribunal treated particular facts as “threshold criteria”.

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

Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506 referred to

Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 referred to

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 applied

Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 referred to

Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 referred to

Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379 referred to

Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-3 referred to

Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578 referred to

Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310 referred to

Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556 referred to

White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511 at 531 referred to

Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145 referred to

Choi v Minister for Immigration and Multicultural Affairs [1999] FCA 1278 referred to

OU HONG WEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V167 of 2000

WEINBERG J

23 AUGUST 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application under s 476 of the Migration Act 1958 (Cth) (“the Act”) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 14 March 2000 which affirmed a decision of a delegate of the respondent Minister not to grant to the applicant a protection visa. 

Background

2                     The applicant, whose country of nationality is the People’s Republic of China (“the PRC”), left that country and arrived in Australia on 28 January 1998.  He was permitted to enter Australia on a Tourist (Long Stay) Subclass 686 Visa.  He was taken into custody in October 1999 after that visa had expired.  On 9 November 1999 he was notified that he would be deported from Australia as an unlawful non-citizen.  On 19 November 1999 he made application for a protection visa.  That application was rejected by a delegate of the respondent on 3 February 2000.  An application for review of that decision was lodged on 9 February 2000 and, as indicated earlier, the Tribunal affirmed that decision on 14 March 2000.

The applicant’s claims

3                     The applicant was born on 29 May 1951 in Toi Shan in Guangdong Province.  After completing his schooling, he worked on his family’s allotment as a farm hand.  He grew vegetables and looked after the animals.

4                     The applicant claimed that his family had been discriminated against by the Communist Government because they had been land owners, and were therefore considered to be members of the landlord class.  He said that this discrimination had instilled in him a mistrust of the Communist system.  He said that over the years he had participated in many anti-government protests. 

5                     In 1977 the applicant commenced working at the Wah Kew power plant in Dai Lon Dong, in Guangdong.  His duty there was to operate floodgates for the purpose of irrigating land in the surrounding district.  He claimed that he had become involved in a number of protests concerning conditions of employment, and was seen by those in charge as a trouble maker.  He said that as a result of his behaviour he had been subjected to various forms of discipline.  He claimed, for example, that his wages had been docked. 

6                     The applicant said that in about 1988 his work unit had become unionised.  He claimed that during union meetings he was criticised as being anti-government.  He said he was threatened with loss of employment if he continued in his protest activities.  The applicant claimed that notwithstanding these threats, he continued to organise strikes and demonstrations.  He said that he was subjected to a form of detention for a period of five months, during which he was questioned daily, and beaten.  He was released some time in 1989 after a friend had interceded on his behalf. 

7                     The applicant said that after he was released from detention he was dismissed from his employment.  At that stage the student movement was becoming active.  He became involved, along with several friends, in student demonstrations.  He claimed that on one occasion, he, and two other friends, had set fire to two vans which were being used by the government as “propaganda vehicles”.  He said that he had managed to escape from the police, and sought to leave Guangdong.  However, he had been arrested by security forces while travelling on a train in Guangzhou. 

8                     The applicant said that he had been charged thereafter with being an anti-revolutionary, with having incited students to rebel, and with having caused criminal damage to the two vehicles.  He said that he was convicted and sentenced to a term of six years hard labour. 

9                     The applicant claimed that by about 1994 his conditions of imprisonment had improved, and he was even permitted on occasion to work outside the confines of the prison.  He claimed that one day, while unloading a lorry which brought supplies to the prison, he managed to escape by concealing himself inside that vehicle. 

10                  The applicant said that after his escape he adopted a false name and worked as a kind of middle man, buying and selling vegetables.  In 1996 he discovered that his friends were now in Canada.  He said that he had contacted them, and discovered how they had managed to leave the PRC.  He had been given the name of an individual who could arrange for him to escape.  That individual had told him that it was not possible for him to go to Canada, but that arrangements could be made for him to get to Australia. 

11                  The applicant said that he paid a substantial sum to this person to facilitate his departure.  He said that some of the money came from his friends in Canada.  Those friends had continued to support him after he arrived in Australia.  He said that he had not sought refugee status immediately upon his arrival in this country because he had not known how to go about doing so. 

The delegate’s decision

12                  The delegate who first considered this application found that the applicant genuinely held fears that he would be harmed or mistreated by reason of his political opinions if he were to return to the PRC.  He considered, however, that the applicant’s fear of persecution was not “well-founded”. 

13                  When the applicant was questioned by the delegate regarding the circumstances surrounding his supposed arrest in 1989, after the incident involving the damage to the two government vans, the applicant said that this incident had occurred in about September of that year.  He said that the police had taken no action against him at that time despite the fact that they were well aware of his involvement in the incident.  He said that he had not been arrested until about a month or so later.  He claimed that he had continued to work at the power plant in the period immediately after that incident, and prior to his arrest.  When the applicant was asked why he had continued to come to work each day during that period, and to provide an explanation as to how it was that he had not been arrested at once, the applicant could do no better than to say that he had not thought, at the time, that he would get into trouble.

14                  The delegate found that the applicant’s account of the events of 1989 was wholly implausible.  He did not consider the applicant to be a credible witness, saying that he found his evidence to be contrived.  He did not consider it plausible that the applicant could have secured his release from detention at the power plant by having a friend intercede with the authorities on his behalf.  He said that he also found it difficult to accept that the applicant had managed to reside for several years under an assumed name in the Shenzen “Special Economic Zone” after his escape from prison.

15                  The delegate noted that the applicant had travelled to Australia using a passport issued under his own name.  The passport was issued on 21 January 1997, approximately one year before the applicant left the PRC.  The applicant had also, despite being an escapee using an assumed name, managed to obtain both an exit permit and a tourist visa for travel to this country.  The delegate said that he was unable to give credence to the applicant’s account of how he had managed to achieve this feat.

16                  The delegate noted that the applicant had told compliance officers in October 1999, when he was first apprehended for having overstayed his visa, that he could return to the PRC at any time, but that he had not done so because he had borrowed money from friends and wanted to continue working in order to repay his debts.  It was not until some weeks later that the applicant first applied for a protection visa, and then gave a very different account of what might happen to him if he were required to go back.

17                  It is hardly surprising in the light of these findings that the delegate concluded that the applicant did not face a real chance of persecution for a Convention related reason if he were to return to the PRC.

The Tribunal’s decision

18                  After setting out the legislative framework governing the criteria for the grant of a protection visa, the Tribunal summarised the applicant’s background, and the various claims which he had advanced. 

19                  The Tribunal noted that the applicant had repeated before it, at least in broad terms, the claims which he had previously made when interviewed by the delegate.  He had added to those claims that he had been able to leave the PRC only as a result of bribes paid on his behalf by a friend, and that he would now face twenty years’ imprisonment if he were forced to return to that country.

20                  The Tribunal accepted that members of the applicant’s family had been punished during the period of the Cultural Revolution.  It found, however, that since about 1978 the policies of that period had been formally repudiated, and that the applicant’s background as a member of a land-owning family would not now be held against him.

21                  The Tribunal then considered a number of the specific claims made by the applicant.  While accepting that he might have faced occasional criticism for having expressed anti-government views, and might even have had his pay docked as an employee at the power plant, it concluded that these sanctions did not amount to persecution in any Convention related sense. The Tribunal noted that there were significant differences between the applicant’s earlier account of having been detained in 1989 at his place of work for five months, prior to the incident involving the burning of the vans, and what he had told the Tribunal about that issue.  In the hearing before the Tribunal he said merely that when he was first suspected of involvement in anti-government activities he was kept under observation for several months before he left his employment in October 1989.  He said that he was not arrested until October 1990.  The Tribunal also noted other, more minor, differences between what he had told the delegate, and what he said in the hearing before it. 

22                  The Tribunal observed:

“In weighing all the evidence before it the Tribunal finds that the applicant has fabricated his claims of denial of income, suspension from work and of incarceration and physical punishment.  It finds that he did not encounter any harm at work for any Convention reason.  It is not satisfied that the applicant was ever denied work or income for any Convention reason.

The Tribunal notes the vagueness of the applicant's evidence at the hearing concerning his alleged involvement in the pro-democracy movement in 1989.  It notes that the destruction of any government-owned vehicles, even if done for a political reason, retains the essential quality of a criminal act of arson and that any resultant punishment does not disclose a Convention reason.

The applicant’s significant delay in applying for asylum indicates to the Tribunal that he did not have a strong fear for his personal safety or future well-being when he left China.  Although the applicant claims to have been detained in 1991 after having been sentenced to six years imprisonment for arson and anti-government activity he made no timely claim to refugee status.  In that regard the Tribunal notes the comments of Heerey J. in the Federal Court matter of Velauther Selvadurai and The Minister for Immigration and Ethnic Affairs, 34 ALD 349 where His Honour states:

“(v) The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa.  In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution.”

In the present case the applicant delayed his application for asylum for almost two years after his arrival in Australia.  Indeed, he made no application for protection until the time of his detention by immigration officials.

The Tribunal does not accept that the applicant delayed seeking asylum for so long due to ignorance about how to apply or because he had received information that he could remain in Australia permanently, even without official permission, so long as he avoided criminality.  It was at least open to the applicant to make appropriate enquiries as to his right to residence and how he could apply for protection.  Any information that it is possible to remain permanently in Australia in the circumstances described by the applicant is palpably false; the Tribunal does not find it plausible that if such information were conveyed to the applicant he would give it creditworthiness and abandon any thoughts of applying for asylum.

Despite the length of the applicant’s alleged sentence in China his name does not appear on lists of those arrested for any anti-government activity.  The publication Detained in China and Tibet, Asia Watch, February 1994, “records thecases of dissidents arrested in the late 1970s and early 1980s andextends through arrests that took place as late as January 1994”.  The applicant’s name is not among those listed.

In considering the inconsistencies in the applicant’s evidence and the aforementioned material concerning lists of detainees the Tribunal finds that the applicant has fabricated his claims of arrest in 1989.  It finds that he was not of interest to the authorities for any Convention reason and that his claims of removal from his employment, arrest and detention, and mistreatment by the authorities for supporting industrial or political reform lack credibility.”

23                  The Tribunal then proceeded to consider information of what might be considered a more general nature regarding the treatment in 1989 of former members of the pro-democracy movement.  It noted that the applicant had never been a high profile dissident, and concluded that it was unlikely that any reprisals would now be taken against him for something which he had done so many years before. 

24                  The Tribunal then returned to the applicant’s claim that he was wanted by the authorities in the PRC.  It noted that he had left the PRC with a passport issued in his own name, having also obtained an exit permit from the Chinese authorities.  It noted the existence of stringent vetting procedures in that country which, in its opinion, would have ensured that the fact that he was planning to leave the country was known well in advance.  The Tribunal observed:

“While accepting the applicant’s evidence that he sought a friend’s help in obtaining documents necessary for travel, the Tribunal notes that the use of contacts and the payment of bribes for that purpose is common in China (see, for example, Corruption and Administrative Supervision, E.J.Epstein, Senior Lecturer in Law, University of Hong Kong, China News Analysis, 1 April 1992, No. 1457, pp. 1-8).  The Tribunal finds that the assistance provided to the applicant was in order to expedite the issue of travel documentation rather than out of any fear that his departure from China would be effectively blocked.

In making a finding that the applicant was not of interest to the authorities the Tribunal also notes comments provided by Dr. Adrian Chan, senior lecturer in Chinese politics at the University of New South Wales, regarding whether there is any prospect of persons who are wanted by the authorities in China being able to flee by soliciting the assistance of corrupt officials:

“…if a person got a passport and (exit) visa to leave China, then they are not people that the Chinese are interested in whatsoever.

... Everyone offers bribes in China, it means very little.  You offer $20 to the official processing the passport to move your application up the list from bottom to tenth.  If you were a really high profile dissident or wanted by the PSB there is no way an official would take a bribe to process your exit documents.  It simply isn’t worth the risk of being found out.  Even if you offered the person $100 they would not accept as the penalties for taking bribes and helping people leave the country if they are wanted or high profile dissidents is very serious”  [CX19980, Record of conversation between Dr. Adrian Chan and RRT, Sydney on 30 August 1995] (emphasis added).”

In light of the extent of vetting of persons wishing to depart China and considering the applicant’s capacity to depart on his own passport, the Tribunal does not find it credible that his departure was made possible only by the payment of bribes and some changes of personnel at his work unit.  The claim that the applicant, while still an escapee from prison, was able to obtain a passport in his own name, and later pass all security and other checks before leaving the country on his own passport, defies credulity.  The Tribunal finds that the applicant obtained official permission to depart China because he was not of any official interest.”

25                  The Tribunal concluded that the applicant did not have a well-founded fear of persecution for any Convention related reason.

The grounds for review

26                  By his amended application for an order of review the applicant relied upon six separate grounds of review.  A number of these grounds were formulated in somewhat elaborate terms.

27                  The applicant also filed with the Court detailed written contentions, supplementary contentions, and further supplementary contentions.  He filed, as well, two substantial court books which contained extracts from a number of articles and other reference works to which the Tribunal had referred in its reasons for decision.  His case was presented with commendable diligence and skill by his counsel who, incidentally, appeared pro bono on his behalf. 

28                  In summary, the principal contentions advanced on the applicant’s behalf were as follows:

Contention (a)

The Tribunal misconstrued various provisions of the Act, and subclause 886.211(a) of Pt 866 of Sch 2 to the Migration Regulations 1994 because it was not in a position to be satisfied that the applicant was not a person to whom Australia owed protection obligations.  The Tribunal failed to turn its mind to a series of issues which it was obliged to consider in order to reach that state of satisfaction.  Those issues included, for example:

·               the nature of the applicant’s political activities in 1989;

·               whether work units had security sections for the punishment of persons who engaged in unauthorised political activities;

·               whether the sentence of six years’ imprisonment imposed upon the applicant arising out of his convictions was excessive;

·               whether the “disciplining” of the applicant at the power plant constituted persecution;

·               whether his activities had led to adverse consequences for either his former wife and child, or his immediate family members; and

·               how the applicant had been able to arrange and pay for his departure from the PRC and his travel to Australia.

Contention (b)

The Tribunal misconstrued the definition of “refugee” contained in Art 1A(2) of the 1951 Convention Relating to the Status of Refugees by failing to give genuine and realistic consideration to the question whether the applicant had a well-founded fear of persecution. 

This error was said to have manifested itself in the Tribunal’s treatment of the applicant’s delay in having applied for a protection visa, and in its treatment of the issue of his low profile as a dissident and his non-appearance in lists of dissidents who had been arrested compiled by Asia Watch and Amnesty International.  The Tribunal was said to have treated these matters as threshold criteria for the existence of both a subjective and well-founded fear of persecution.  In addition, the Tribunal erred in basing its decision on information concerning the PRC which was out of date, referring to the situation in that country as it existed in 1990, and in 1993-4.

Contention (c)

The Tribunal erred in law under s 476(1)(a) of the Act because it failed to comply with the requirements of s 430(1)(c).  The Tribunal had been obliged to make findings upon a series of “material issues of fact” which the applicant claimed were essential to its determination.  These issues of fact were the same as those identified by the applicant as having been ignored by the Tribunal in his outline of submissions in support of contention (a).  In addition, the Tribunal had failed to make findings in relation to certain general information concerning the PRC to which it referred which, it was submitted, supported the applicant’s claim.

Contention (d)

The Tribunal, in breach of s 476(1)(c) of the Act, failed to provide the applicant with a genuine opportunity to be heard, as contemplated by s 425(1)(a).

Contention (e)

The Tribunal was affected by actual bias.

The applicant’s case

29                  In support of contention (a) the applicant submitted that the Tribunal had failed to make findings in relation to the issues set out under contention (a) above, all of which were said to involve aspects of his claim which went to the “core of materiality” and all of which the Tribunal had been obliged to consider. 

30                  In support of contention (c) it was submitted that the Tribunal was required to address these issues in its reasons for decision.  The applicant submitted that the Tribunal’s failure to deal with these matters amounted to a contravention of s 430(1)(c) of the Act, and therefore constituted a breach of procedure under s 476(1)(a).  Section 430(1)(c) provides:

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

…

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

…”

31                  Section 476(1)(a) provides:

“476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)               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;

…”

32                  The applicant relied, in support of contention (c), upon Minister for Immigration and Multicultural Affairs v Yusuf (1999) 95 FCR 506.  The applicant submitted that the contrary view expressed in Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 should be rejected.  It should be noted that the argument before me preceded the judgment of a specially constituted Full Court of five in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845.

33                  The applicant then submitted that the Tribunal had failed to comply with its obligations under s 430(1)(c) in the following way. It had referred, in its reasons for decision, to two separate articles, one by Mr Edward Epstein entitled “Corruption and Administrative Supervision” written in April 1992, and the second by Dr Adrian Chan, both of which dealt with the impact of corruption in the PRC.  Mr Epstein had concluded that corruption was endemic in the PRC, and that almost anything could be achieved for the right price.  Dr Chan had expressed a rather more circumspect view, accepting that corruption was rife, at least at the lower levels of government, but doubting that any major dissident could bribe his way out of the PRC.  The Tribunal had accepted Dr Chan’s opinion on this issue without giving any indication as to why it had rejected the contrary view, in breach of the requirements of s 430(1)(c). 

34                  In support of contention (b) the applicant noted, for example, that the Tribunal had placed considerable reliance upon a publication entitled “Detained in China and Tibet” published by Asia Watch in 1994.  The Tribunal reasoned that the applicant was of no interest to the Chinese authorities because his name was not amongst those located in that publication, or a like document, “Human Rights Violations Five Years After Tiananmen”, published in 1994 by Amnesty International.  It was submitted, however, that the Tribunal had significantly misstated the effect of these publications.  For example, they did not purport to cover all persons who were detained in the PRC.  Indeed, the Amnesty International report stated that the precise number detained was unknown.

35                  In support of contention (d) the applicant submitted that the Tribunal should have sought to clarify the confused or unclear responses given by the applicant during the course of the hearing.  The applicant submitted that it was obvious from a perusal of the transcript that the interpreter’s command of English was less than satisfactory. This issue was considered in Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6 where Kenny J held that the failure by the Tribunal to provide an interpreter of sufficient competence constituted a failure to observe the procedures required by the Act. 

36                  It was contended in the present case that there were obvious and confusing gaps in his evidence covering his political activities, and his capture by the authorities, which the Tribunal did not attempt to have clarified, as it should have done.  In several instances the applicant’s answers, as recorded, had borne no relationship whatever to the questions asked by the Tribunal.

37                  In support of contention (e) it was submitted by the applicant that the Tribunal’s failure to make any findings on material which supported the applicant’s claims [viz Mr Epstein’s article] raised a strong inference, at the very least, of subconscious bias or pre-judgment of his case.  In that regard the transcript of the hearing was said to demonstrate that the Tribunal had asked a series of cursory questions of the applicant, frequently cutting him off in mid sentence, and evincing no interest in what he had to say.

The respondent’s case

38                  The respondent relied upon the findings of fact made by the Tribunal.  It was submitted that the Tribunal had examined the applicant’s claims and noted a number of discrepancies between his initial account of the events of 1989, and the account which he later gave to the Tribunal.  The Tribunal found that the applicant had fabricated his claims of denial of income, suspension from work, detention at his place of employment, and physical punishment.  It also found that he was not of any present interest to the Chinese authorities and that he had fabricated his claim of having been arrested and imprisoned. 

39                  The respondent submitted that these conclusions were based on a range of factors including, for example, the lengthy delay between the applicant’s arrival in this country and his application for a protection visa, the fact that his name did not appear in any of the Asia Watch or Amnesty International lists of persons arrested for anti-government activities, the inconsistencies in his evidence, the evidence which suggested that low profile dissidents of a decade ago were not now the subject of reprisals, and the fact that he had been able to obtain a passport and exit permit despite stringent vetting procedures.

40                  The respondent submitted that the applicant’s contention (a) was, in reality, little more than an attempt on his part to argue that relevant considerations had not been taken into account.  The respondent submitted that that ground was expressly excluded from review under Pt 8 of the Act – see s 476(3)(e).

41                  The respondent submitted further that contention (a) sought to introduce a form of merits review into this application.  The Tribunal had not been required to address the issues identified by the applicant in contention (a), either during the course of the hearing, or in its reasons for decision.  A number of those issues which were supposedly essential for the Tribunal to have resolved were predicated upon the Tribunal having first accepted the applicant’s claims of having been arrested and imprisoned.  However, these were claims which the Tribunal had expressly rejected.  Other issues identified by the applicant as falling within the category of those which had to be resolved, such as the effect of his activities upon his former wife and child, or his immediate family, were irrelevant to his application for a protection visa.

42                  The respondent challenged the applicant’s contention (b) in so far as it was predicated upon the assumption that the Tribunal had treated certain factors which it considered relevant to the determination of the issues before it as “threshold criteria”.  It was submitted that his delay in having sought refugee status, his low profile as a dissident, and his absence from various lists of dissidents who had been arrested were all matters which the Tribunal was entitled to take into account, and to give such weight as it considered appropriate.

43                  Further in relation to contention (b), the respondent submitted that the Tribunal had been entitled to have regard to material which dealt with the position of dissidents in the PRC in 1990, and in 1993-4.  There was no reason to think that if the applicant was not on a list of those dissidents who had been arrested which was prepared in 1993 or 1994  that he would have been on any such list prepared at any later date.  It was hardly likely that the Chinese authorities would be interested in persons today in whom they had no interest in 1994.

44                  In response to contention (c) the respondent was prepared to assume, for the sake of argument, that a failure to comply with s 430(1)(c) of the Act affords a ground of review under Pt 8.  It was submitted, nonetheless, that s 430(1)(c) does not require the Tribunal to set out or refer to all of the evidence before it, but only such evidence as forms the basis for its finding on “material questions of fact” – Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 and Sivaram v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 379.  It was further submitted that the Tribunal was not required to include in its decision the reasons for rejecting evidence which was contrary to its findings - Re  Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 422-3, per McHugh J;  Minister for Immigration and Multicultural Affairs v Sameh [2000] FCA 578.

45                  The respondent submitted that the Tribunal had complied with the requirements of s 430(1)(c).  The reasons for decision set out the material findings of the Tribunal and the evidence on which those findings were based.  It was submitted that those reasons explained the basis for the decision.  The Tribunal had not been required to make specific findings about any, or all, of the issues canvassed by the applicant in his contention (a).  Nor was it required to make findings about material which might be viewed as supporting a contrary view.

46                  The respondent submitted in relation to the applicant’s contention (d) that there was no substance in the claim that the Tribunal had failed in its duty to attempt to clarify whether a series of confused responses given by the applicant during the course of the hearing were due to his having been evasive, or to the incompetence of the interpreter.  Neither the applicant nor his advisor had made any complaint to the Tribunal about the standard of interpretation.  The transcript of the hearing did not disclose any matter which indicated that the Tribunal was unable to receive answers to its questions in relation to any point of significance. 

47                  Finally the respondent submitted that there was no foundation for the applicant’s contention (e) that the Tribunal’s decision was induced or affected by actual bias within the meaning of s 476(1)(f) of the Act.  The respondent submitted that a person affected by a decision who asserts actual bias must make out a “substantial case” – Kaycliff Pty Ltd v Australian Broadcasting Tribunal (1989) 90 ALR 310; Jia v Minister for Immigration and Multicultural Affairs (1999) 93 FCR 556; and White v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 511 at 531.  The matters identified by the applicant merely took issue with the way in which the Tribunal had approached the evidence before it, and fell far short of any case of actual bias.

Post-hearing submissions

48                  Given that this application was heard prior to judgment being delivered by the Full Court in Singh (supra), each party was given leave to make further submissions in writing regarding the effect of that decision upon the issues in this case. 

49                  The applicant submitted that the decision in Singh supported his contention that the Tribunal had failed to comply with s 430(1)(c) of the Act.  Plainly Singh had approved of the reasoning adopted by the Full Court in Yusuf in preference to that of the Full Court in Xu. 

50                  The aspect of the Court’s decision in Singh upon which the applicant primarily relied was the discussion of the content of the statutory obligation imposed by s 430(1)(c).  The applicant submitted that the Court in Singh had determined that this subsection:

·                    did not impose an obligation on the Tribunal to come to a correct decision or to prepare a statement disclosing a satisfactory process of reasoning leading to the decision reached by it;

·                    merely required the Tribunal to record its decision, the reasons for coming to the decision, the findings of fact made and the material on which those findings were based;

·                    did not impose any specific requirement for the Tribunal to give reasons for rejecting or attaching no weight to evidence or other material which would tend to undermine any of its findings; and

·                    did not oblige the Tribunal to analyse material submitted by the applicant and to give reasons for not accepting any of it which was inconsistent with its conclusions.

51                  The applicant submitted, however, that the Court in Singh held that the various principles set out above were subject to an important qualification – namely that s 430(1)(c) of the Act did require the Tribunal to set out findings on material questions of fact so that if one of the reasons which actually induced the Tribunal to come to its decision was based on its decision to reject or place no weight on particular material, the Tribunal was obliged to disclose why it rejected that material.  It was further submitted that the Court had determined that the Tribunal was under a duty to make and set out findings on all matters of fact that were objectively material to the decision it was required to make, and that it was required to make findings on questions of fact which were central to the case raised by the material on the evidence before it.  Finally, it was submitted that Singh had determined that the issue of what was material was not the sole province of the Tribunal, so that if the Court determined that it had failed to make findings on a fact which the Court held to be material, there would be a failure to comply with s 430(1)(c).  That would be the case notwithstanding that the Tribunal had recorded findings on other facts which it regarded as material. 

52                  The applicant submitted that the effect of the decision in Singh was that where an applicant proposes certain facts as material, but the Tribunal’s decision does not depend on those facts, the Tribunal does not have to deal with those facts in its reasons for decision.  It has to deal only with facts upon which its ultimate decision is based.  In the present case, however, the evidence, and more particularly the country information relied upon by the Tribunal to support its findings against the applicant contained material which confirmed or supported several of his core claims.  The Tribunal had been obliged to state why it rejected such evidence when it came from essentially the same sources as those upon which the Tribunal relied in making findings against the applicant.  It was submitted that there was nothing in the reasoning of the Full Court in Singh which contradicted the reasoning of the Court in cases such as Kandiah v Minister for Immigration and Multicultural Affairs [1998] FCA 1145, and Choi v Minister for Immigration and Multicultural Affairs [1999] FCA 1278 in which Finkelstein J and North J respectively held that where the Tribunal accepted the veracity of particular evidence to make findings against the applicant, it was obliged by s 430(1)(c) to explain why the same evidence was not accepted when it confirmed or corroborated the applicant’s claims.

53                  The respondent submitted, albeit formally, that the obligation imposed on the Tribunal under s 430(1)(c) of the Act did not constitute an obligation to observe required procedures in connection with the making of the relevant decisions within s 476(1)(a).  The respondent noted that the High Court had granted special leave to appeal from the decision of the Full Court in Yusuf, and that this issue still awaits final determination.  The respondent accepted, however, that pending the determination by the High Court of the operation of s 430(1)(c), the decision of the Full Court in Singh binds me to follow Yusuf.

54                  The respondent identified the content of the obligation under s 430(1)(c) as stated in Singh as follows:

·                    there is no specific requirement in s 430 for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding unless a decision to reject or place no weight on particular material formed an element of the Tribunal’s actual reasoning process;

·                    s 430(1)(c) requires the Tribunal to set out its findings on material questions of fact.  A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists; and

·                    the test for “materiality” is an objective one, although regard is to be had to the process of reasoning employed by the Tribunal as the basis for its decision.

55                  The respondent submitted that the applicant made two principal complaints in relation to a potential breach of s 430(1)(c) in the present case:

·                    the Tribunal failed to make findings in relation to certain country information which allegedly corroborated the applicant’s claims; and

·                    the Tribunal failed to make findings in relation to certain matters set out in contention (a) of the applicant’s grounds of review.

56                  The respondent submitted that the short answer to the first complaint was that the Tribunal had not been obliged to give reasons for rejecting or attaching no weight to evidence or other material of the type referred to which might tend to undermine any finding it made.  Alternatively, the extracts relied upon were broadly consistent, in any event, with the findings made, and did not significantly “undermine” any such findings.

57                  The respondent submitted in relation to the second complaint that the Tribunal’s decision did not “turn upon” the matters set out in the applicant’s contention (a).  Rather, the Tribunal did not accept that the claimed detention of the applicant, or his subsequent arrest and imprisonment, had taken place at all.  It would therefore have been inappropriate for the Tribunal to have examined a number of the issues identified by the applicant as being essential to have been resolved.  Accordingly, Singh provided no support for the contention that a breach of s 430(1)(c) had taken place.

Findings

58                  In my opinion there is no substance in any of the applicant’s contentions (a), (b), (d) or (e). 

59                  As far as contention (a) is concerned, the matters identified by the applicant as lying at the heart of the decision the Tribunal was required to make are, in truth, no more than some of the factors which it might have gone on to consider had it been prepared to make the anterior finding necessary to make those matters relevant.  Putting the matter bluntly, the Tribunal did not believe what the applicant said in relation to the most fundamental aspects of his claim.  It did not accept that he had been detained in 1989 at his place of work.  Nor did it accept that he had ever been arrested, whether in 1989 or 1990, or imprisoned in 1991, as he claimed. 

60                  There were ample grounds upon which the Tribunal could have arrived at those conclusions.  These included:

·                    the discrepancies between the account of the events of 1989 which he gave to the delegate, and the account which he subsequently gave to the Tribunal;

·                    the statements which he made to the compliance officers in October 1999 when he was first apprehended;

·                    the inherent improbability of his having applied for and obtained a passport in his own name, after having escaped from prison in 1994, and having used a false name from then onwards;

·                    the delay in having made an application for a protection visa;

·                    the country information which suggested that low profile dissidents whose activities went back to 1989 were no longer at risk by the mid-1990s;

·                    the absence of any reference to the applicant in lists of dissidents who had been arrested; and

·                    the unsatisfactory answers given by the applicant to some of the questions put to him during the course of the hearing before the Tribunal.

61                  The applicant’s contention (b) is predicated upon the assumption that the Tribunal treated the matters which he identified as “threshold questions”.  I do not view the Tribunal’s reasons for decision in that way.  It seems to me that matters such as his delay in applying for a protection visa, and the absence of his name from the lists of dissidents who had been arrested, were treated by the Tribunal as factors which it was entitled to take into account, not as jurisdictional facts.

62                  There is no substance whatever in either of the applicant’s contentions (d) or (e).  There is nothing in the transcript of the hearing in the present case which indicates that difficulties of the type which were identified by Kenny J in Perera were present in anything like that form.  So far as the claim of actual bias is concerned, there is nothing in the material which I have read which gives the slightest support for that contention. 

63                  The applicant’s contention (c) does raise a question of substance for determination.  It is true that the Tribunal relied upon the views of Dr Chan, and not the views of Mr Epstein, in dealing with the prevalence of corruption in the PRC, and the levels at which such corruption is said to exist.  It would no doubt have been preferable had the Tribunal explained why it considered that Dr Chan’s views were more reliable in that regard than those of Mr Epstein.  I am not persuaded, however, that the judgment of the Full Court in Singh provides any basis for setting aside the Tribunal’s decision in the present case merely because it did not provide any such explanation.  Moreover, as the respondent submitted, a careful reading of Mr Epstein’s article demonstrates that the differences between his views, and those of Dr Chan, are not as great as one might otherwise suppose from the short summary which appears in the Tribunal’s reasons for decision.  I also do not regard this evidence as having been of sufficient importance, in the context of the case as a whole, to have rendered the Tribunal’s failure to explain why it chose one view, rather than the other, a contravention of s 430(1)(c).

64                  None of the grounds of review have been made good.  It follows that the application must be dismissed.  The applicant must pay the respondent’s costs.

Associate:

Dated:              23 August 2000