FEDERAL COURT OF AUSTRALIA

NBBO v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1132

MIGRATION – Refugee Review Tribunal – appeal from Federal Magistrates Court – whether Tribunal should have determined whether appellant member of social group – litigious persons in China or Beijing – procedural fairness – whether Tribunal obliged to put country information to appellant – appeal dismissed

Federal Court Act 1976 (Cth) s 25(1A)

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) s 422B

Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth)

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

Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 discussed

Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1411 discussed

Re Minister for Immigration & Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510 referred to

NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241 applied

NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264 cited

Muin v Refugee Review Tribunal (2002) 190 ALR 601 referred to

Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565 referred to

WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 referred to

NBBO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 500 OF 2005

CONTI J

16 AUGUST 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant is to pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant, a citizen of the People’s Republic of China, arrived in Australia in March 2002 and lodged an application for a protection (Class XA) visa one year later in March 2003.  On 23 May 2003 a delegate of the respondent Minister refused the appellant’s visa application; the second respondent (‘the Tribunal’) affirmed the delegate’s rejection of the appellant’s visa application in a decision handed down on 16 January 2004.  The appellant applied to the Federal Court for judicial review of the Tribunal’s decision.  The matter was remitted to the Federal Magistrates Court whereupon Barnes FM handed down judgment on 10 March 2005 dismissing the application.  The appellant now appeals from that decision.  The Chief Justice considered that it was appropriate for me to sit alone on the appeal from the Federal Magistrates Court in accordance with s 25(1A) of the Federal Court Act 1976 (Cth).

2                     Counsel for the appellant sought leave to file and serve an amended notice of appeal at the beginning of the hearing.  The Minister did not oppose this nor did the Minister oppose the grant of leave to the appellant to join the Tribunal as a respondent, as is necessary for the appellant to obtain the relief sought under s 39B of the Judiciary Act 1903 (Cth).  The amended notice of appeal contains two grounds of appeal which are the same as those pursued by the appellant before the Federal Magistrate (during which hearing the appellant was represented by the same counsel).  Those grounds are as follows:

‘1         The Tribunal found (at Court Book page 72.1) that even if the appellant were to return to China and be subjected to the same treatment he claimed to have faced before he left, there would be no Convention reason for that treatment.  The Tribunal fell into jurisdictional error in making this finding.  Specifically, the Tribunal failed to consider whether the appellant was a member of a particular social group in China or Beijing, for example litigious people, and was persecuted for reasons of membership of this group.  This point was argued before Federal Magistrate Barnes.  Her Honour rejected the argument.  Her Honour erred in rejecting the argument.

2.         The Tribunal, found (at CB 71.5) that based on certain country information, suing the government does not lead to the imputation of an anti-government political opinion for the vast majority of litigants.  The country information is set out at CB 71.1-71.5.  The Tribunal did not raise this country information with the appellant and give him an opportunity to comment.  In these circumstances, the appellant was denied procedural fairness, giving rise to jurisdictional error: see for example WAEJ v MIMIA (2003) 76 ALD 597.  This point was argued before Federal Magistrate Barnes.  Her Honour rejected the argument. Her Honour erred in rejecting the argument.’ 

3                     The two issues raised for consideration were therefore, first, whether the Tribunal had fallen into jurisdictional error by failing to consider whether the appellant was a member of a particular social group in China, being litigious persons, and was at risk of persecution for reasons for membership of that group (‘the social group issue’); second, whether the Tribunal denied the appellant procedural fairness by failing to raise certain country information with the appellant, thereby denying him an opportunity to comment on it (‘the procedural fairness issue’).  The Federal Magistrate dealt with those issues in considerable detail in her reasons for judgment.  The appellant contended that her Honour erred in her conclusions for each. 

The social group issue raised by the appellant

4                     The appellant submitted that the evidence and material accepted by the Tribunal raised questions of whether the appellant was a member of a particular social group in China being ‘litigious persons’ and whether he had suffered and was at risk of further suffering harm by reason of membership of that group.  The jurisdictional error was said to lie in the Tribunal’s failure to ask itself each of those questions. 

5                     The appellant relied upon the following extract at [58] of the reasons for judgment of Black CJ, French and Selway JJ in NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263:

‘The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J).  There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ).  By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing.’ 

6                     The appellant also relied upon the High Court’s decision in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 which effectively upheld the decision at first instance of Carr J that the Tribunal had in that case failed to consider whether the applicant was a member of a particular social group for the purposes of the Convention, being ‘able-bodied young Afghani men’, and furthermore whether the applicant would be persecuted by reason of his membership of that group.  The evidence in that case was that the appellant was a young man from Afghanistan, a country in the grip of civil war, and the Taliban were conscripting young able-bodied men at random by force or else ‘passing-over’ those nominated in exchange for a bribe.  The majority determined that the matter had to be remitted to the Tribunal for determination of the question whether the class of persons described as ‘young able-bodied men’ comprised a particular social group for the purposes of the Convention (at [50]).  The High Court did not by its decision in Applicant S, determine that membership of such a group could give rise to a well-founded fear of persecution.  The High Court endorsed Carr J’s positive answer to the question which his Honour posed at [26] of his reasons for judgment (Applicant S v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1411):

‘the appropriate test is whether in this matter it could fairly be said that sufficient facts were placed before the Tribunal as to require it to consider whether there existed a particular social group, being able-bodied Afghan men and whether the applicant, as a member of that particular social group, has a well-founded fear of persecution if he returned to Afghanistan.’

7                     The issue then is whether the evidence and claims raised by the appellant before the Tribunal required the latter to inquire further into country information or otherwise to determine whether there existed a ‘particular social group’, namely persons living in China or Beijing who were litigious against the State and others, and whether the appellant, as a member of that class, had a well-founded fear of persecution if he returned to China. 

8                     The appellant pointed to three factors which he submitted required the Tribunal in this case to consider whether litigious persons are a particular social group in China within the meaning of the Convention.  The first was that the Tribunal appeared to have accepted the appellant’s claims about the litigation in which he was involved; the second was that the Tribunal appeared to accept, or at least did not reject the applicant’s claims of harm which he claimed to have suffered, or anticipated suffering on his return; the third (and most contentious factor) was that the appellant had positively claimed that there was a link between the litigation in which he had been involved and the relevant harm. 

9                     Counsel for the appellant frankly acknowledged that the appellant’s claims were not presented with clarity to the Tribunal.  It was nevertheless the appellant’s submission that he had given evidence that on numerous occasions he had sued the ‘university’ and the ‘PSB’ for a variety of reasons, but that the Tribunal had failed to recognise the significance of that evidence.  The appellant referred to the various passages from the Tribunal’s reasons for decision which recorded the following claims or evidence before it:

(i)                  the appellant stated that in 1998 his family had ‘sued the university’ and that because of this, ‘people might take revenge’;

(ii)                the appellant stated that his ‘family had accused the university through the courts’;

(iii)               the appellant, when asked why his parent’s shop had been demolished and closed down in 2000 as he claimed, ‘responded that it was because he and his parents had adopted their right to sue people in court’;

(iv)              when asked why the Beijing City Education Committee, Haidian District Administration Office and the Haidian PSB had accused his family of ‘breach[ing]…social order’, the appellant said it was because his family ‘hated the CCP [Chinese Communist Party], although they had only used legal means against them;

(I interpolate to observe that immediately thereafter the Tribunal recorded that it had asked the appellant what he had done in particular, thereby indicating its interest in knowing what the appellant meant by ‘legal means’; the appellant referred however merely to having ‘chatted socially’ with his friends about not being happy with the government)

(v)                in response to the Tribunal’s leading question of whether ‘it was his assumption that the people he and his parents had sued had encouraged the police to harass him [as the appellant had claimed]’, the Tribunal recorded the appellant as having replied ‘this was part of the reason’;

(vi)              the ‘other reasons’ were that ‘his family had appealed repeatedly without success’; the Tribunal asked the appellant what it was his family had been appealing from, and received the response ‘everything…the PSB and the university’; the Tribunal elaborated on an example to which counsel for the appellant referred in his written submissions:

‘For example his family had asked the courts to make people apologise and pay a small amount of compensation, so through the courts he had received a lot of records of their actions.  However he and his family had never won a court case.  I asked him how many court cases he had been involved in, and he said “too many”.’

(I further interpolate to observe the following passage immediately following in the Tribunal’s reasons:

‘I [the Tribunal member] told him of my impression from his evidence that he and his family may have angered a lot of people by repeatedly taking them to court.  In response he conceded that he was sure the courts and the PSB considered his family to be “very hard and stubborn people”, so that was the reason the family had no income.’)

10                  The appellant then referred to the various claims made by the appellant of past harms inflicted on him or his family, and fears of future harm, including harassment, abuse and detention by the PSB, the demolition of his parent’s shop and its adjoining store room located on the university campus, and the possibility of ‘revenge’ by those sued by him or his family.  The appellant submitted that the appellant had claimed to have suffered or feared this harm at the hands of the Chinese authorities and others in the community as a result of the litigious activities detailed in the preceding paragraph. 

11                  The appellant contended that the Tribunal, in the course of its consideration of those claims of harm, did not reject the same, at least explicitly.  Similarly in considering the appellant’s claims of harm which he feared would ensue on his future return to China, the Tribunal was said by the appellant to have found only that the appellant was not at risk of arrest on his return to China, but otherwise had not rejected the possibility that he would continue to face other types of harm that he had experienced in the past.  According to the appellant’s interpretation of the Tribunal’s reasons for decision, the Tribunal, having for the most part either accepted (or not expressly rejected) the appellant’s claims of past and future harm, nevertheless found merely that that harm was not for reason of the appellant’s political opinion.  The Tribunal should have (but did not) consider the second possible Convention reason for that harm arising on the evidence before it, so the appellant further contended, namely whether that harm was suffered by reason of the appellant’s membership of a particular social group. 

12                  The Minister submitted that the Federal Magistrate’s reasons for rejection of this first ground of appeal were comprehensive and supported by authority.  The Minister articulated what it contended to be the three alternative bases for her Honour’s decision to reject this ground of appeal. 

13                  The Minister’s initial reason for rejecting the first ground of appeal was that the Tribunal did not have a duty to consider the issue of whether the appellant was a member of a particular social group because that issue was not clearly raised.  The Court was taken again to the Full Federal Court’s reasons for judgment in NABE at [58] where after reference to the passage in the Tribunal’s reasons relied upon by the appellant to sustain the first of those three bases, the Full Court proceeded to observe:

‘[i]t has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J.  The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.’

The emphasis appearing in non-italics in the final sentence was that of the Minister.  The Minister contended that this qualification to the circumstances in which the Tribunal’s obligation relevantly arises was of central importance to their Honour’s reasons for judgment in NABE, the Minister placing particular emphasis at [60], as follows:

‘This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant.  It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.’

The Minister referred to further references made by their Honours at [61] and [68] to the requirement that the claims must ‘clearly arise from the materials before [the Tribunal]’.  The Minister also emphasised that their Honours stated at [68] that ‘[a] judgment that the Tribunal has failed to consider a claim not expressly advanced is…not lightly to be made’.  No valid criticism of the Federal Magistrate’s reasons and approach thus far summarised is in my opinion reasonably open. 

14                  The Full Court’s dicta in NABE was contended by the Minister to be entirely consistent with the oft-cited passage from the reasons for judgment of Gummow and Hayne JJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510 at [187], as follows:

‘…The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor.  It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason.  The tribunal must then decide whether that claim is made out.’

Although their Honours were (together with Gaudron J) is dissent on the constitutional question raised in Abebe, the Minister submitted that those reasons of Gummow and Hayne JJ formed in substance and reality part of the basis of the High Court for its unanimous dismissal of the application for relief brought under s 75(v) of the Constitution.  The Minister further submitted in that regard that by virtue of the reasons of Gaudron J (at [90]) and Kirby J (at [212]), their Honours implicitly accepted the force of those I have extracted above from Abebe  [187].  That passage in any event, according to the Minister’s contention, constituted a since widely established statement of principle.

15                  The Minister sought to apply the principle thus said to arise from NABE to the present circumstances, that principle being framed to the effect that the claim, which the Tribunal is alleged by the appellant to have failed to consider, must arise clearly from the materials before the Tribunal.  Like the appellant, the Minister spent some time taking the Court to various passages in the appellant’s statements, applications and recorded testimony, which the Minister contended to demonstrate that there was nothing clearly articulated on the appellant’s part to the effect that he feared persecution by reason of membership of a group of litigious persons in China.  The Minister’s elaboration upon that submission may be summarised as follows:

(i)                  in relation to the appellant’s written statement which he submitted to the Department along with his application for a protection visa (and incidentally referred to in his application for review of the ministerial delegate’s decision), the Minister observed that it was far from clear from that document that the appellant claimed to be in fear of persecution by reason of his involvement in litigation, emphasising in particular the following passage therefrom:

‘From the ridiculous verdict handed down by the local court to the extremely questionable and incomplete statements given by the school authority and the police on the physical attacks of my family and property, targeting innocent people who are only trying to make a living such as ourselves…’;

upon that footing the Minister further submitted that so much suggested that the appellant’s claim was to the effect that the litigation taken against him in China was part of the persecution of him and his family, and that the harassment alleged was already entrenched, and did not turn on the litigation at all, the Minister further emphasised that the only apparent reason provided by the appellant for that course of harassment carried out by the university authority and the local police was ‘their claims that I had been threatening local government officials’;

(ii)                the appellant’s brief written answer to the question in his application for review stating his reasons for making that application was that he had a well-founded fear of persecution because he is an active falun gong practitioner’; that claim was later however abandoned at the Tribunal hearing;

(iii)               the further written statement provided by the appellant to the Tribunal stated that

‘during the proceedings of our lawsuit, we [the appellant and his family] obtained some evidence from the court.  For example in the “conference minutes”, they had already selected my family as a target of oppression...’

which material was contended by the Minister to suggest that irrespective of the litigation, the appellant and his family had already been selected as a target for persecution;

(iv)              in the translated minute headed ‘Central University for Ethnic Minorities’ provided by the appellant to the Tribunal, there was no mention at all of the appellant being ‘problematic’ for reasons of his litigious habits; all that was referred to in the minute was an alleged ‘Report Concerning the Threat to the Safety of our Students and Teachers Posed by the Acts of Armed Violence Carried Out by [NBBO] and his Accomplices on our Campus’, the italicised portion suggesting to the Minister that the real concern (accepting this minute to be genuine) was perhaps violent tendencies of the appellant;

(the Minister submitted therefore that up until the hearing there was nothing articulated at all, let alone clearly articulated, to sustain any possible suggestion that the appellant was a member of a social group of litigious Chinese who feared harm for that reason); 

(v)                the appellant’s answer to the Tribunal’s question about problems that he might face in China on his return, namely that ‘because of his family’s actions in 1998 when they had sued the university people might take revenge’, did not indicate persecution for the reason of membership of a group of litigious people, but merely that he and his family may be susceptible to persecution for personal reasons from specific participants in particular litigation; 

(vi)              a number of instances throughout the appellant’s testimony, as recorded in the Tribunal’s reasons for decision, were indicative of multiple suggested causes for the appellant’s alleged harassment and treatment; one instance was where the appellant said ‘they [the students who had put up a poster denouncing his family’s store] wanted to persecute and target us because we were making money and had a big business’; another was where he and his father had been allegedly involved in the June 4 democracy movement and protests in Tiananmen Square; another was allegedly where the reason provided by the appellant for his parents’ shop had been targeted and therefore closed down was because ‘he and his parents had adopted their right to sue people in court.  It was revenge’; the Minister characterised all that as another reference to particular persons involved in specific litigation taking action against the appellant for personal reasons.

The Minister thus concluded that the highest basis upon which the appellant’s claims could relevantly be put was that the litigation in China to which the appellant had been exposed at least in part had motivated specific individuals, who were already unhappy about a certain piece of litigation in which they may have been involved in relation to the appellant, to take action against the appellant for personal reasons. 

16                  The Minister concluded at that stage of the presentation of his case in the Tribunal that there was no other evidence before the Tribunal sufficient to raise squarely an issue as to the litigants having been targeted as members of a particular social group, and in particular there was no evidence in any event of any targeted class of persons in China such as litigious people.  The Tribunal was said by the Minister to have correctly enquired into relevant country information pertaining to litigants and to have found that ‘access to civil legal remedies against government in China was available…access was increasing’.  In these circumstances the Minister further submitted that the Federal Magistrate had correctly relied in turn upon NABE in concluding that the Tribunal was not under a duty to consider this presently postulated head of claim, both because it had not been ever explicitly advanced, nor was the same sufficiently apparent, at least with any clarity, upon the material before the Tribunal. 

17                  That last reference to the Tribunal’s consideration of country information lead to the Federal Magistrate’s third reason for its rejection of the primary ground for review, being that the Tribunal did in reality address in terms the questions whether or not persons who litigate against the Chinese government would be persecuted for reason of such activity, and whether any such finding was reasonably open to the Tribunal on the material placed before it for consideration.  The Minister referred in that regard to the following passage from the Tribunal’s reasons for decision in which relevant findings were made:

‘Given the above evidence that the government has facilitated access to the courts, enabling ordinary Chinese to sue in it, and that some have won their cases, I am satisfied that, for the vast majority of litigants, suing the government does not generally lead to the imputation of an anti-government political opinion.  As I have found above, there is nothing in [NBBO’s] evidence which indicates that he is an exception to this.  In light of the otherwise seemingly inexplicable ill-will towards [NBBO] by local people, one could infer from his evidence that he may be regarded in his community as litigious and that that is the real reason for the hostility towards him.’

18                  Hence the Minister disputed the appellant’s characterisation of the particular social group as litigants in general, as opposed to individual litigants involved in proceedings against the government, maintaining that ‘on the claims as raised and presented by the appellant to the Tribunal, the only identified litigation was at least in connection to some sort of suit against the university’.  I would add that possible litigation against the police (the PSB) was also intimated as a further conceivable characterisation, but however that did not appear to affect the thrust of the Minister’s submission in that regard.  In the result the Minister contended the appellant’s claims to be at their very highest an expression of fear that on his return to China, he would suffer harm by reason of his litigious behaviour against and in relation to the government and government authorities.  Viewed in that way and in contrast to the appellant’s submission, the Tribunal found against the existence of risk of any such harm being occasioned to the appellant, and had merely concluded that the harassment complained of was the result of personal enmity borne out of particular litigious events. 

19                  Further in the alternative, the Minister submitted that the Federal Magistrate was correct in having found that upon the application of existing principles of migration jurisprudence, a group described as litigious persons in China or Beijing could not constitute a particular social group for the purposes of the Convention, since people of that purported description did not have any identifiable unifying characteristic which would make them cognisable as a distinct group within that society.  Counsel referred me to numerous passages in Applicant S appearing in the majority judgment, and also in minority reasons for judgment of McHugh J, in support of her Honour’s conclusion in that regard.  The Minister also sought to distinguish the circumstances prevalent in Applicant S in any event from the present circumstances, upon the footing that whereas in Applicant S, the Tribunal was presented with and accepted testimonial evidence and country information detailing the Taliban’s practice of forcibly recruiting young able-bodied men for military service, in the present circumstances there was no sufficient material in evidence that litigious persons in general were persecuted or targeted, and indeed there was significant country information apparent to the contrary. 

The procedural fairness issue raised by the appellant

20                  The appellant’s second principal issue raised was that the Tribunal had failed to accord to him procedural fairness because it did not put certain country information to him, and as a consequence he was denied the opportunity to comment and make submissions upon the same.  That information was set out in some detail in the Tribunal’s reasons for decision, and related to recent government attempts to increase access to the courts, being a factor upon which the Tribunal relied in reaching its finding that ‘for the vast majority of litigants, suing the government does not generally lead to the imputation of anti-government political opinion’.  As in the case of the first ground of appeal, this second ground was also raised before the Federal Magistrate.

21                  Observing the appellant’s failure to produce either an affidavit attesting to his inability to respond relevantly to the information, or a copy of the transcript of the Tribunal hearing, the Federal Magistrate rejected that second ground of review because ‘the evidentiary basis for such a claim is not made out on the material’ and further ‘this is not a case in which it is appropriate to infer that the Tribunal did not raise either particular country information or the critical issues with the applicant in the course of the Tribunal hearing’, her Honour referring thereby to NAOA v Minister for Immigration & Multicultural Affairs [2004] FCAFC 241 at [21], and also to what was said to appear to similar effect in NAMW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 264 at [121]-[122]. 

22                  The appellant maintained however that ‘on a fair reading of the Tribunal’s reasons for decision, the Tribunal did not put the country information to the appellant’, nor ‘give him an opportunity to comment on it’.  That was said to constitute a jurisdictional error, the appellant citing Muin v Refugee Review Tribunal (2002) 190 ALR 601 as authority for that proposition.  Furthermore, the appellant maintained that contrary to what was said by the Full Court in NAOA at [21], it was appropriate in the present case for the Federal Magistrate to infer that the Tribunal did not raise country information with the appellant.  The relevant passage appearing in [21] of the reasons for judgment of Beaumont, Merkel and Hely JJ in NAOA reads as follows:

‘the appellant’s case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing.  However, his Honour did not make a finding in relation to this matter.  Driver FM observed that this “appeared” to be the case “from the record of the [Tribunal] decision”.  On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed.  His Honour had no transcript.  (As mentioned, the tape is before us and we refer to it below.)  The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised.  There was simply no basis upon which his Honour could properly have made this finding.  His reasons should not be read as if he did so.  In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.’

23                  The appellant submitted that the Full Court in NAOA was incorrect in holding that it was not permissible for the Court to draw inferences from a Tribunal’s reasons for decision as to what discussions took place before the Tribunal, in the absence of affidavit evidence from the review applicant or a copy of the transcript.  The appellant contended furthermore that the Full Court’s decision in NAOA was ‘palpably wrong’ and that therefore I should reject and not follow the same.  The appellant did not provide any explanation, either in his written submissions or in his submission, given orally, of any jurisdictional basis for the Full Court being ‘clearly mistaken’ in coming to the conclusion that it did.  The Minister submitted on the other hand that the Full Court’s decision was clearly correct, since ‘as a matter of logic and of evidence it must be correct that it is impossible to prove that something did not occur without a complete record of the relevant communications’. 

24                  The further hurdle confronting the appellant in pursuing this second theme of appeal resides in the provisions of s 422B of the Migration Act 1958 (Cth) (‘the Act’), which states that the provisions of Div 4 of Part 7 of the Act (entitled ‘Conduct of Review’) are ‘taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with’.  The Minister submitted that the application for review was lodged with the Tribunal after s 422B came into effect from 4 July 2002, that section having been inserted by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth) Sch 1 item 6.  The appellant’s application for review was lodged significantly later on 28 May 2003.  The Minister further submitted that the consequence of the amendment is that the requirements of procedural fairness at common law (as expostulated in Muin) are no longer applicable, and that in order to demonstrate jurisdictional error of that kind, the appellant was required to establish that the Tribunal failed to comply with one of the provisions of Div 4 of Part 7 of the Act.  Since the country information in question fell within the terms of the exemption contained in s 424A(3)(a), the Tribunal was not in breach of the s 424A requirement of providing to the appellant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review. 

25                  The appellant accepted that s 422B applied in relation to the present circumstances, but further submitted that ‘the appellant relies on the analysis of s 51A of the Act...by Gray J in Moradian v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 81 ALD 565.’  Section 51A of the Act is in similar terms to s 422B except that it applies to the provisions dealing with the treatment of visa applications by ministerial delegates.  In Moradian, Gray J held that s 51A was not effective to exclude the Minister’s obligation to observe the principles of procedural fairness in respect of the visa applicant, and found that the delegate’s failure to notify the applicant of certain information that it had obtained about the applicant’s employment conditions constituted a failure to observe those principles.  The Minister distinguished Moradian however on the ground that the information here utilised by the Tribunal was of a different nature – being generalised country information, not specifically about the appellant.  The Minister also referred to the following dictum of French J in WAID v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 220 at [57] of his reasons for judgment, where his Honour discussed the interaction of ss 422B and 424A of the Act as follows:

‘Section 422B, as appears from the Explanatory Memorandum and the Minister’s Second Reading Speech, was enacted specifically to overcome the effect of the decision in Miah not just in relation to the part of the Act with which that decision was concerned, but other parts of the Act containing like procedural requirements.  The section is not entirely without difficulty in its application.  It is a statement of legislative intention about the effect of Div 4 of Pt 7 of the Act as “… an exhaustive statement of the requirements of the natural justice hearing rule in relation to matters it deals with”.  That is to say the procedural requirements set out in Div 4 so far as they are referable to the requirements of procedural fairness in relation to the right to be heard are to be treated as exhaustive.  They are to be treated as exhaustive in relation to the matters with which Div 4 deals.  Division 4 is concerned generally with conduct of a review by the Tribunal.  One of the matters with which it deals, under that rubric, is the provision to an applicant of information that “… the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review…”.  That is to say it deals with the provision to the applicant of information, known to the Tribunal, which would be adverse to the applicant’s application.  When read with s 422B, in my opinion, s 424A is now to be treated as exhaustive of the requirements of procedural fairness relating to the applicant’s right to comment on adverse material which is known to and is to be relied upon by the Tribunal…’

It followed, on the Minister’s submission, that the Tribunal was not required to specifically notify the appellant of the country information, since it clearly was of a kind falling under the exception to s 424A contained in subs 424A(3)(a).

26                  Gray J did not consider WAID in detail in his reasons for judgment in Moradian, his only reference thereto emphasising French J’s dicta to the effect that the application of s 422B will require further examination.  In any event, the Minister submitted that there was no need for me to consider any s 422B issue at all, in the absence of evidence supporting the appellant’s contention that the Tribunal did not put the country information to the appellant.

Conclusions

27                  Despite the re-casting of the grounds of appeal and the pursuit of those amended grounds by the appellant before the Federal Magistrates Court, I am unable to accept that any jurisdictional, or any other conceivably appealable error, has been established by the appellant by reference to either of those (sole) grounds of appeal.  It therefore becomes strictly unnecessary for me to formally determine whether the amended grounds of appeal, which were belatedly tendered for consideration, should be permitted to be the subject of extensive debate.  Nevertheless I have given the same close consideration, along with the thoughtfully presented submissions of the appellant advanced in relation thereto.  The same are earlier re-produced in these reasons. 

28                  As to the first of those amended grounds of appeal, founded as it is upon the postulation of litigious persons in China, and Beijing in particular, and thereby purportedly fulfilling the Convention notion or description of membership of a particular social group, I am unable to accept that such ground of appeal is soundly conceived.  The propensity of many people to pursue litigious processes and solutions falls short in my opinion of a social group being constituted by them within a country, or a relevant part of a country, according to the principles and precepts established by case law authority in this country. 

29                  I would uphold the Minister’s re-grouped responses to the appellant’s grounds of appeal ultimately framed and pursued, and the reasons articulated by the Minister’s counsel referrable to those grounds.  In particular I agree that there was no evidence to which the Tribunal was referred, or which was otherwise placed before the Tribunal, as to any Government, or officially targeted class of persons such as so-called litigious people.  The inference open to be drawn as to modern day circumstances of facilitation of access of Chinese citizens to the courts of China further tended against the appellant’s case.  I express that conclusion, irrespective of whether or not the Tribunal was in truth required in all the circumstances of its review function, and in the circumstances of the case, to consider those claims in terms of any particular social group.

30                  I think that the Federal Magistrate was correct in her view that there was no or no sufficiently cogent, evidence tendered to the effect that persons who engage in litigation in China possess any characteristic which unites them relevantly as a cognisable group, nor was there evidence of any such persons being identifiable as a distinct social group.  I think it was sufficiently open to her Honour to have found, as she did, that the Tribunal did in any event address, and appropriately so, the issue whether persons who litigate against the Chinese Government are subjected relevantly to persecution.  For what it may matter, the somewhat conjectural finding of the Tribunal that ‘one would infer from his [the appellant’s] evidence that he may be regarded in his community as litigious and that that is the real reason for the hostility towards him’ was one which was not outside the scope of the material and information placed before the Tribunal.  I do not accept that the appellant’s claims and evidence tendered, such as they were, ‘squarely raised’ claims of persecution based on the appellant’s membership of the nebulous group of litigants which he postulated; the characterisation of the appellant’s evidence and Tribunal’s decision contained in the appellant’s submissions tends to be demonstrative of the sort of ‘constructive or creative activity’ censured by the Full Court in NABE. 

31                  As to the other basis articulated by counsel for the appellant by way of challenge to the Federal Magistrate’s decision, being that of denial of procedural fairness, I am not satisfied that the appellant has demonstrated any basis for his contention that the decision of the Full Court in NAOA was plainly wrong.  In light of that decision and the appellant’s failure to adduce a transcript of proceedings before the Tribunal, or even an affidavit testifying the Tribunal’s failure to put material to the appellant, I am unable to accept the appellant’s further submission that it was open to the Federal Magistrate to infer from the Tribunal’s reasons the said failure.  The second ground of appeal necessarily also fails.  It becomes unnecessary therefore for me to address the appellant’s contentions as to the interpretation of s 422B.  I would only add that the dicta of French J, which I have extracted above, appears to give proper effect to the intentions of the legislature in enacting s 422B of the Act. 

32                  In the result the appeal must be dismissed and the appellant must pay the Minister’s costs. 

Associate:

Dated:              16 August 2005