Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of RRT Decision - protection visa.

VFAN v Minister for Immigration [2004] FMCA 727 (5 November 2004)

VFAN v Minister for Immigration [2004] FMCA 727 (5 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VFAN v MINISTER FOR IMMIGRATION
[2004] FMCA 727




MIGRATION - Review of RRT Decision - protection visa.




Migration Act 1958, s.424A, 427

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24

Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223

Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) HCA 19

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220

VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255

Applicant:
VFAN




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


MLG 633 of 2003




Delivered on:


5 November 2004




Delivered at:


Melbourne




Hearing Date:


14 October 2003




Judgment of:


McInnis FM




REPRESENTATION

Counsel for the Applicant:


Mr A Krohn




Solicitors for the Applicant:


MSC Legal Services




Counsel for the Respondent:


Mr C Fairfield




Solicitors for the Respondent:


Blake Dawson Waldron




FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE



MLG 633 of 2003

VFAN



Applicant

and

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. In this application the applicant seeks review of a decision of the Refugee Review Tribunal (the RRT) dated 12 June 2002, handed down on 2 July 2002.

2. The application was filed in the Federal Court on 29 July 2002. It was transferred to the Federal Magistrates Court on 6 June 2003. Both parties relied upon written submissions and specifically made submissions in some detail arising out of the High Court decision in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

Background

3. The applicant is an alien non-citizen of Australia and a national of the People's Republic of China. She arrived in Australia on or about 2 May 1998 and on 15 June 1998 made an application for a protection visa. On 8 December 1998 a delegate of the respondent refused the application and the applicant applied to the Refugee Review Tribunal (the RRT) for review of that decision. On 2 July 1999 the RRT affirmed the decision not to grant a protection visa.

4. The applicant then applied for judicial review to the Federal Court of Australia and the Honourable Ryan J allowed the application and set aside the decision of the RRT made on 2 July 1999 and by order made on 23 April 2001 his Honour remitted the matter to a differently constituted tribunal to be heard and determined according to law.

5. On 12 June 2002 the RRT constituted by a different member made the decision that "the tribunal affirms the decision not to grant a protection visa" (the decision).

6. The factual background is otherwise set out in the decision of the RRT under the heading "Claims and Evidence" (court book 87-103) and the respondent has agreed it appears to be adequately set out in the applicant's contentions paragraphs 4 to 18 which I shall attempt to paraphrase for convenience in this judgment.

7. The applicant set out her claims in her initial statement dated 15 June 1998 (CB18-21), her statement dated 5 March 1999 and a letter from her pastor dated 3 January 1999 sent under cover of a letter of her then migration agent dated 7 March 1999, her evidence given orally to the tribunal constituted by the first member on 7 July 1999, in her evidence to the second tribunal member at hearing on 31 October 2001 and in a supplementary submission or statement by the applicant dated 29 November 2001 (CB69-71). Transcript of the two hearings has been prepared and it is noted that in the application before this court a supplementary court book was relied upon which includes the transcript of the proceedings on 31 October 2001.

8. The applicant claimed that her true name was different from the name on the passport and ticket which she used to travel to Australia. She came from a devout Christian family, her parents and sisters being devout Christians. She was involved in a home church. In 1970 her grandfather had been declared a counter-revolutionary, arrested without judicial procedure, sentenced to 10 years imprisonment and died in prison in 1975. It is claimed that this deeply scarred the applicant.

9. The applicant said that in the early 1980s the Chinese Communist Party ("CCP") had some changes in policy in relation to religion, but remained determined that the bishop and believers of religion must be devoted to the CCP and churches must be controlled by the CCP's local government. The applicant said:

My family and I refused to join this kind of church as the believers there must follow the facial expression of CPP. It distorted our Christian doctrine and would lead the believers to wrong track. (CB18.9)

10. The applicant herself participated in Christian activities in the home church from her childhood. At school at about the age of 15 in her middle school she secretly spread Christian ideas and mobilised the students to join the home church (CB19.2).

11. The applicant claims that after the events of Tiananmen Square of 4 June 1989 the CCP became more dictatorial and corrupt and the local government officials reflected this. She stated:

The ordinary people lost their hope to CPP ... they transferred to place their spiritual hope on home church. (CB19.5)

12. The applicant was married but remained active in the home church. In December 1993 the bishop, Mr Chen, let the applicant and four other believers set up an underground printing workshop at a disused brick kiln outside the village. They used a few simple and crude printing machines to print pictures, bible stories and propaganda brochures. The applicant was in charge of cutting the stencils, purchasing articles, managing donations and expenditures. The printing workshop was illegal and so those who worked there took a great risk. They had to work at night intermittently to avoid trouble (CB19.5). The applicant states as follows:

In June 1997 the local government prohibited the believers from rebuilding Christian church in Jianging Town. The believers of Christian home church went on the street for petition and demonstration ... the just action was regarded as a great threat to the dictatorship of CCP ... 'anti-revolutionary turmoil' ... as I [the applicant] together with other believers, helped to print and distribute the petition and other leaflets, our 'illegal' printing workshop became a target to be mainly detected and hit. (CB19.8-20.1)

13. At midnight on 16 July 1997 while the applicant was cutting a stencil local police broke in and arrested her and three other believers. They searched the workshop and confiscated printing machines and religious propaganda materials. The applicant was detained and the following day sent to Fu Qing City police station. She was interrogated for the names of the bishop, priests and other activists. This continued for two days without sleep or drinking. She was given food which was claimed to be inedible. She refused to betray her friends. About two months later she was charged with illegally carrying out religious activities and anti-revolutionary propaganda and sent to reform through labour for three years. Her health deteriorated badly. In October 1997 she began to suffer from continuous haematuria. In two weeks her weight went down to 48 kilograms (CB20.6). Her husband bribed the manager and the doctor of the labour reform farm with gold and money and the applicant was released on bail and allowed to see a doctor outside.

14. By January 1998 the applicant's health had recovered through Chinese herbal medicine treatment from a traditional Chinese doctor. She decided "she would rather die than went back to that hell on earth" (CB20.8). Her husband borrowed money from relatives and friends and took out a loan in order to pay for her to leave China. On 31 January 1998 she left China passing through Laos, Vietnam and Malaysia where she stayed for over two months. Finally, she had a Hong Kong passport in a false name which had an Australian visitor visa. On 2 May 1998 she travelled on this document to Melbourne (CB20.8-21.1).

15. The applicant also claimed to have suffered persecution because of the CCP's family control policy. In 1996 her third child was born, but she was unable to register her third child who therefore did not have basic rights to education and other things. The family also had to pay a monthly penalty (CB21.2).

16. At the first hearing the applicant gave further detail in answer to questions from the tribunal. She gave details about difficulties experienced with the registration of all her children and her reasons for being unwilling and unable freely to practice her religious beliefs in the "three self patriotic church", the official registered Protestant church in China. The applicant also gave further detail in response to questions from the second tribunal member at the second hearing.

17. It is noted that the applicant appeared alone without a migration agent or adviser at each of the tribunal hearings.

18. On 29 November 2001 the applicant wrote a further letter to the tribunal enclosing supporting documents (CB69-82). The letter focused on the fact that in the initial application for protection visa the delegate decided the applicant's case without an interview. It further refers to a fine of RMB2000 imposed in April 1990 "for violation of birth control" (CB70.2, CB73). This letter of the applicant dated 29 November 2001 refers to the applicant's fear that she would be in danger because of publicity given to the success of her previous application to the Federal Court (CB69.8).

19. The applicant feared that this news might have got to the CPP. Finally, the same letter states that:

Soon after I left China the security people came to my home to threaten my husband to tell them my whereabouts ... last year ... some of the people who had been with me in the prison was detained again for questioning, they may be imprisoned again ... I am a wife and mother with three children. When I left China my son was only two years old. I miss them very much. If I were not facing the persecution from the Chinese Communist Party I would never leave my beloved husband and children ... (CB70.8-71.1)

20. In the same letter written after the second tribunal hearing the applicant included the question:

Do you need my personal ID card? If you need it, I would ask someone who is coming to Sydney during Christmas holidays. (CB70.2)

The tribunal's reasons for decision

21. In its "findings and reasons" (CB103.2-110.2) the RRT refers to the fact that when determining whether an applicant is entitled to protection it must make findings of facts on the claims made by the applicant and that this may involve an assessment of the credibility of the applicant. It correctly referred to the appropriate authorities in making that assessment. In dealing with the issue of nationality and identity, the RRT states the following:

(83) I accept that the applicant is Chinese. This is so because she speaks Mandarin. However, I have some serious doubts about the applicant's identity. The applicant claimed that she arrived in Australia from Malaysia on a Hong Kong passport in the name of ... The department's movement database confirms this travel indicating that the passport number was ... and confirming that the applicant arrived in Australia on 2 May 1998. The applicant was unable to provide the passport or a copy of the passport claiming that it was lost on 12 June 1998. I note that the date was just two days before the applicant signed her protection visa application. The department's movement database indicated that the passport has not been used since that time. The applicant also provided copies of an airline ticket and boarding pass from Malaysian Airlines in the name of ... which confirms the applicant travelled from Kuala Lumpur on 2 May 1998.

(84) The applicant claimed that she was not Ms ... of Fujian province in China and that she obtained the passport in Malaysia. She provided a copy of an identity card in that name as evidence to support her claim. However, the photocopy is poor and the photograph on the identity card does not show the same likeness as that of the applicant. In this respect I am unable to accept that the identity card is of the applicant and consequently I am unable to give it any weight in support of the applicant's contention as to her identity.

(85) In light of this evidence, I am unable to accept that the applicant is who she claims to be, that is, ... I accept that the applicant is in fact ... and that the applicant travelled to Australia on her own passport issued in Hong Kong. I am of the view that the applicant has claimed to be someone else so as to provide for herself the profile of a refugee.

22. In its findings the tribunal goes on to consider the issue of religion and the issue of the one child policy, both matters which were agitated by the applicant in support of her application. In general, it is clear that the RRT made adverse findings against the applicant in relation to both issues, finding that it was of the view that the applicant joined the church in Melbourne only to enhance her claims to being Christian in China and to provide for herself a profile of a refugee, and in relation to one child policy, made a finding that it was unable to accept that she had offended the "one child policy". It went on to say that it was of the view that the claim was a fabrication to enhance her profile of being a refugee.

Applicant's submissions

23. Detailed submissions were made for and on behalf of the applicant concerning jurisdictional error and what was described as being unreasonable about identity. It was claimed that the finding as to identity is unreasonable in the sense discussed in Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223 (Wednesbury). It was further claimed jurisdictional error occurred in circumstances where there was a denial of natural justice by not putting to the applicant for comment the issue of her identity in a way which made it plain that the identity card and the photograph on the card were problematic.

24. It was further argued that there had been a failure to comply with s.424A of the Act and hence jurisdictional error. It was argued that the RRT is obliged to discharge its functions in accordance with the provisions of Part VII of the Migration Act 1958 and that in the present case it was obligatory to provide to the applicant for her comment in writing information in which the RRT had relating to her identity which could have been part of the reason for making an adverse decision. The identity card was provided by the applicant to the respondent department and therefore the RRT was obliged to comply with the provisions of s.424A of the Act in relation to that card and that in the circumstances it was submitted it manifestly failed to do so.

25. It was otherwise submitted that there had been jurisdictional error on the basis that the decision was not open on the evidence and reference was made to the claim by the applicant that she was a Christian and suffered severe persecution in China for her Christianity, with the RRT making a significant number of errors which affected its assessment of the applicant's credit and the credibility of her claim. A detailed analysis was made of the RRT's reasoning and facts as found including an error when it stated that the applicant had initially claimed to have been arrested on 7 July 1997, when the statement dated 15 June 1998 referred to being arrested at midnight on 16 July 1997. It was claimed that this finding of fact affected the decision of the RRT to reject the claim of the applicant's Christianity, and on that basis the decision should be set aside. In general terms, it was submitted that a fair reading of the evidence before the RRT showed that it was not open to it to conclude that "the applicant was incapable of explaining her Christianity".

26. It was further argued that regarding contravention of s.424A the RRT failed to put to the applicant inconsistencies in relation to her Christianity. It was argued there had been a denial of natural justice and jurisdictional error in relation to the issue of the applicant joining the Christian church solely to enhance her application for refugee status as this was not put to her during the hearing. That was claimed to be a serious denial of natural justice and otherwise was a finding not open to the RRT on the evidence.

27. It was further argued that in breach of its obligation pursuant to s.424A of the Act the RRT failed to convey to the applicant inconsistencies which it was claimed amounted to adverse information in relation to whether the applicant had offended the one child policy.

28. Further criticism was made of the RRT's reliance upon the decision of the High Court in Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor (1997) 190 CLR 225. Though it was conceded the reference to that case was correct, it was argued that the RRT did not go far enough in that it failed to advert to another judgment of the High Court in the matter of Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) HCA 19 where it is claimed the court considered that ill-treatment of children could amount to persecution for a convention reason. It was argued that while initially persecution of an applicant for a reason of her own breach of the family planning rules may not following Applicant A amount to persecution for a convention reason, over a period of time discrimination amounting to persecution of her children will be persecuted of them for a convention reason. If that persecution imposes hardship on the applicant, then it is claimed there will come a time when the continuing persecution of the children by its consequences for their parent will amount to persecution of the parent in a way which is no longer punishment for breach of law of general application but persecution for a convention reason.

29. In relation to the issue of the alleged suffering of the applicant as a result of publication in Australia of her appeal in the Federal Court, it was argued that the RRT has power under s.427 of the Act to make inquiries or cause inquiries to be made and, as I understand it, it was claimed it should have done so rather than simply making the finding that it did. It was unable to accept the claim that the applicant would be adversely affected by such a report.

30. In relation to the claim by the applicant to be a Christian, the RRT stated it was unable to accept that the applicant was a Christian in China or that she became a Christian in Australia other than to enhance her claims to be a refugee. It was submitted that the RRT did accept the applicant had become a Christian and had then completely failed to consider and deal with the important question of whether the applicant would continue to practice Christianity should she return to China. That oversight it was submitted renders the whole decision by the RRT a failure to exercise jurisdiction.

Respondent's submissions

31. In relation to the unreasonableness about identity, it was submitted by the respondent that in reality the applicant now seeks to review the application on its merits. Reference was made to the High Court decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 where Gleeson CJ and McHugh J state the following:

Someone who disagrees strongly with someone else's process of reasoning on an issue of fact may express such disagreement by describing the reasoning as 'illogical' or 'unreasonable' or even 'so unreasonable that no reasonable person could adopt it'. If these are merely emphatic ways of saying that the reasoning is wrong, then they may have no particular legal consequence.

32. The court was further referred to the decision of Kenny J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at paragraph 146 where her Honour states:

146 The above observations concern the sufficiency of the Tribunal's explanation for its opinion about the circumstances in which Mr Rajalingam came to leave Sri Lanka. A concern of that kind can, however, rarely form the basis for a finding of error of law. A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu (unreported, Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, 13 May 1999) [1999] HCA 21 at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond (1990 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 (FC). In my view, the effect of his Honour's judgment was to turn what his Honour saw as doubtful fact-finding into an error of law. What his Honour did, I think, was erroneously attribute to the RRT the doubts his Honour had about the facts the RRT had found. Once that step was taken, his Honour treated the RRT's failure to address those doubts as indicative of a failure to take them into account in reaching its ultimate decision, as the decisions in Guo and Wu Shan Liang indicated it should have done. I agree with the remarks of Katz J in Zuway (unreported, 31 December 1998) [1998] FCA 1738 that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal

33. It was submitted therefore that the RRT's decision as to the identity of the applicant was largely one of credit and it was a matter of fact for the RRT to determine. It could not be claimed, according to the respondent's submissions, that the RRT's findings as to identity were so unreasonable that no reasonable decision-maker could have made it.

34. As to the suggestion of a denial of natural justice by failing to put to the applicant that it had doubts about her identity, it was submitted the RRT is not required to put every matter to an applicant, nor reveal its thought processes on matters going to credit.

35. Any suggestion that the decision was not open on the evidence raises an argument involving merits review and should not be entertained.

36. It was submitted that the RRT did comply with s.424A as it had made clear to the applicant at the hearing that it was concerned with changes in her account of claims and at one point stated:

I think your story is becoming more and more implausible as we go along.

37. The RRT is not required, according to the respondent's submissions, to put every apparent inconsistency to the applicant at the hearing, nor give formal written notice of such inconsistency. It had said at the outset that it considered the applicant's various applications and submissions provided to the respondent. The issues concerning the applicant's membership of the Christian church and whether or not the applicant offended against the one child policy were findings adverse to the applicant's credit and/or findings of fact reasonably open to the tribunal, according to the respondent's submissions. It was further argued that it had correctly applied the law in the High Court decision of Applicant A. Reference to the Chen Shi Hai case is misplaced as the applicant's children were in China and not part of the application before the RRT.

38. In considering the failure to exercise power under s.427 it was argued by the respondent that it was for the applicant to make out the case, not for the RRT. Given that the RRT did not accept that the applicant was a Christian in China or that she became a Christian in Australia other than to enhance her claims to be a refugee, it was submitted that it was then unnecessary for the RRT to consider whether contrary to its finding the applicant would continue to practice Christianity should she return to China, as suggested by the applicant.

Reasoning

39. In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 255 where the Court states:-

"16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57."

40. In my view, there is no substance in the argument that the RRT reached a decision which could be regarded as so unreasonable in relation to key facts that no reasonable decision-maker could have made the decision. The analysis of the issue of identity, whilst no doubt strongly disputed by the applicant, was nevertheless a matter which was reasonably open to the RRT and a finding of fact which could not be disturbed on the basis of any claimed jurisdictional error.

41. Likewise, the finding in relation to the applicant's Christian beliefs and/or her conduct in relation to the one child policy are clearly in my view matters open on the evidence and again relate to issues of credit or findings of fact reasonably open to the RRT.

42. I accept and apply the decisions referred to by the respondent, in particular the extracts from the Eshetu and Rajalingam cases set out above.

43. This is not a case where it could be properly argued that the applicant has somehow been lulled into a false sense of security as a result of favourable findings in an earlier tribunal compared with what might be described as significant adverse findings of a subsequent tribunal. It was clear from the outset, in my view, that the current RRT had considered, as it was bound to do, all the relevant facts and circumstances placed before it by the applicant. It is evident that at one stage it even disclosed to the applicant that it found her claim implausible. It is not appropriate for the RRT to then refer to each and every one of its reservations as part of its reasoning process, and nor does it have an obligation under the act to present in detail counter-arguments or reservations it may have about the applicant's claims.

44. It is the applicant's responsibility to present her case with all relevant details. Ultimately, it is a matter for the RRT to make a proper assessment according to law of the facts, and in particular, make an assessment of the credibility of the applicant in appropriate cases. I am satisfied the RRT in this application has discharged its responsibilities and that no jurisdictional error has occurred of a kind argued by the applicant.

45. Accordingly the application should be dismissed with costs.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM

Associate:

Date: 5 November 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia