FEDERAL COURT OF AUSTRALIA

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695

MIGRATION – analysis of claims as put – circumstances where an unarticulated claim must be dealt with by the Tribunal.

NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263   discussed

Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389   discussed

Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112   discussed

NAVK v Minister for Immigration and Multicultural and Indigenous Affairs

NSD 1620 of 2004

ALLSOP J

22 DECEMBER 2004

SYDNEY

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 39B of the Judiciary Act 1903 (Cth) in respect of the fourth decision of the Refugee Review Tribunal (the “Tribunal”) dealing with the applicant’s claim for a protection visa. 

2                     With the permission of the parties, I do not propose to set out the background to these proceedings or the applicant’s history.  These are set out adequately in earlier judgments of the Court:  see for example NAFQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 473 and NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 160.

3                     The amended application raised two issues which, though not entirely unrelated, were distinct.

The first issue – an asserted lack of probative evidence for a central finding

4                     The first ground was expressed in the amended application as follows:

1.                  The Tribunal committed jurisdictional error of law in that its findings of facts, that the applicant would be treated no differently to others facing criminal charges in China, and would not be persecuted because of her claims for refugee status or the publicity given to them, were unsupported by probative material.

Particulars

(a)             The information in the Department of Foreign Affairs and Trade cables utilised by the Tribunal to support its conclusion did not address the circumstances of the applicant, being that of a person whose case has been widely reported and who had claimed that she was an innocent victim of a political vendetta in that country.

5                     The applicant argued that, through her counsel at the Tribunal and in her evidence to the Tribunal, she had put the claim that she feared persecution not so much because the Chinese authorities would become or had become aware, by the publicity in the Australian and United States Chinese language newspapers, of her claims of feared persecution, but because the Chinese authorities would become or had become aware that there was publicity about the complaints that she made about the Chinese authorities.  Thus, it was argued, her expressed claims were as to the treatment she would receive on return to China because of the offence or slight that the publicity of her claims would cause to what one document in the material referred to as China’s “honour and national interest”. 

6                     The importance of this enunciation or framing of the claim arises from how the Tribunal dealt with it in its reasons.  On pages 30 and 31 of the its reasons the Tribunal stated:

As referred to above, the Applicant’s representatives have produced copies and translations of three articles which appeared in the Australian Chinese-language newspaper, Singtao Daily, on 20 May 2003, 21 June 2004 and 5 August 2004 respectively and an article which appeared in the US edition of the Singtao Daily dated 21 June 2004.  As I noted in the course of the hearing before me, it is apparent that the information in the articles has been taken from the decisions of the Federal Court in relation to the Applicant’s case and other information that is on the public record.  The Applicant’s representative, Mr Poynder, noted that the articles stated that the Applicant had claimed that the allegations against her were based on political problems and he submitted that this might lead to her being perceived as politically opposed to the Chinese Government.  He and the Applicant suggested that the fact that it had been published in the newspapers that the Applicant had applied for refugee status in Australia would result in her being treated unfairly if she were to return to China.

As I put to the Applicant, the Australian Department of Foreign Affairs and Trade advised in 1995 that it was not aware of any substantiated claims of mistreatment of failed refugee claimants who had returned to China.  It advised that the Chinese authorities appeared to take the view that such claimants were seeking to take advantage of an opportunity presented by Western legal systems, and therefore paid little or no attention to the claims (DFAT cable BJ501313, dated 12 December 1995, CX12783).  In advice in January 2003 the Australian Department of Foreign Affairs and Trade said that applying for refugee status would not of itself necessarily expose an applicant to persecution on return to China.  It said that ongoing interest would largely depend on whether the applicant engaged in illegal activities on return (DFAT Report 00221, ‘RRT Information Request CHN14995’, 13 January 2003).

The Applicant sought to distinguish her situation on the basis that other people who had applied for refugee status had not had their details published in the newspaper as she had.  She said that the Chinese authorities not only knew that she had applied for refugee status in Australia but that she had been here illegally because her visa had expired.  She said that the newspapers had published her story several times and she was afraid for this reason.  However, having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that the Applicant will be treated unfairly or otherwise persecuted by reason of any political opinion imputed to her on the basis of the Chinese Government’s knowledge of the fact that she has applied for refugee status or the claims she has made as set out in the articles produced by her representatives.  I do not accept, in particular, that there is a real chance that the Applicant will be treated differently from other persons facing criminal charges in China by reason of any political opinion imputed to her on the basis of the fact that she has applied for refugee status or the claims she has made in support of her application.

7                     The two documents from the Department of Foreign Affairs and Trade (‘DFAT’) dealt with (as the treatment of them by the Tribunal suggests) the attitude of the Chinese authorities to people who return to China having made asylum claims in Australia, to the knowledge of the Chinese authorities.  They did not concern, at least directly or expressly, the question of the circumstances (if any) in which the Chinese authorities will view public criticism of them by the publication of asylum claims as offending the national honour or interest.  This being so, it was asserted that the Tribunal had committed a jurisdictional error in drawing a central, indeed basal, factual conclusion to this part of the claim, without probative material.  Reference was made to what was said by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 232, at [25], Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 327 and the Privy Council in Mahon v Air New Zealand [1984] AC 808, 820-21.

8                     If the enunciation of the claim was as put forward by the appellant, a difficult question would arise as to whether or not the Tribunal, by relying on the DFAT material, committed a jurisdictional error in rejecting this part of the claim.  It is arguable that the DFAT material does not go at all to the question of how the Chinese authorities would view the return of someone whose publicised claims were an embarrassment or affront to national honour.  Though, as was submitted on behalf of the Minister, the DFAT material dealt generally with asylum claims and some asylum claims could be understood to have been the subject of publicity. 

9                     The answer, though, in my view, to this first argument lies in a proper appreciation of what was put to the Tribunal, or, more accurately, what the Tribunal could reasonably take to be put to it.  Reading the transcript of the hearing before the Tribunal, I am clearly of the view that the Tribunal was entitled to understand that the significance of the publicity in the Singtao newspapers was that the Chinese authorities would learn of the applicant’s claims.  That most clearly comes from what the applicant herself said to the Tribunal.  Whilst the formulation of the claim as put in argument on behalf of the applicant is open, in particular by reference to what counsel then appearing for the applicant said to the Tribunal, a fair reading of the whole of the transcript leads me to understand that the relevance of the publicity that was asserted to the Tribunal was as a vehicle for carriage of the knowledge of the applicant’s claims to the Chinese authorities.

10                  Looking at the Tribunal’s reasons, it is evident that the Tribunal viewed the claim about the publicity in the way I have assessed it.  In so doing, it did not misunderstand nor misconstrue the claim.  Thus understood, the DFAT material was a direct answer to the claim.  Thus, there can be no argument that there was jurisdictional error in the Tribunal concluding as it did in this regard. 

The second issue – a way of putting the claim not articulated by the applicant allegedly not dealt with by the Tribunal

11                  It was submitted that there was a claim (accepted not to have been articulated by or on behalf of the applicant) that was thrown up by the material that should have been dealt with by the Tribunal. 

12                  The claim in question was expressed in the second ground of the application as follows:

2.                  The Tribunal failed to determine an issue raised by the information and material before it, that being whether the applicant faced sanctions under Chinese law because of the nature of and the publicity given to her claims.

13                  This way of putting the claim was said to arise out of one of the two pieces of DFAT material earlier referred to.  This document contained the formal advice of the Chinese Ministry of Foreign Affairs as follows:

China has stable politics and United National Peoples and Chinese People live in peace and contentment.  There is no reason to give rise to refugees, therefore the issue of so called ‘Chinese citizens becoming refugees’ does not exist.

According to relevant Chinese law, all Chinese citizens overseas can apply for passport renewal at Chinese Embassies and Consulates.  For that small minority of persons who take part in activities which jeopardise national security, honour and national interest, Chinese Embassies and Consulates will not extend their passports, if they correct their mistakes, stop the activities listed above and perform the duties of citizens, they can still obtain permission to have their passports renewed or extended.

[emphasis added]

14                  It was argued that the Chinese authorities thereby admitted that in the dealing with passports they deal more harshly with people who jeopardise, amongst other things, national honour.  Thus, it was said, it could be concluded that the law would not be applied fairly to such persons.  This way of putting the claim was not addressed by the Tribunal.

15                  The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]–[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated.  See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112.  From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61].  As the Full Court said at [63] much depends on the circumstances.  Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence.  A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 

16                  Here, the context and circumstances included the following factors:  the applicant was an intelligent businesswoman familiar with China, the applicant was represented at the Tribunal hearing and has been represented for some time in Australia, and this was the fourth Tribunal hearing at which her claims were propounded.  In that context in particular, I do not think that this way of putting her claims arises tolerably clearly from the material.  Once articulated, it has an internal coherence, which enables it to be said that it is one way of enunciating a fear.  However, with respect to counsel, it is an argument reflecting careful thought having been given, after the fact, to the record.  It did not appear to those putting the applicant’s case and to the applicant.  As I said, it does not arise tolerably clearly from the material.

17                  The Tribunal did not fail to complete its statutory task by not dealing with the point.

18                  For these reasons the application should be dismissed with costs. 

19                  I am grateful for the care, clarity and succinctness with which both counsel developed their arguments.

Associate:

Dated:              22 December 2004