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MIGRATION - Review of RRT decision - application for protection visa - fear of persecution for reasons of membership of a political organisation - whether Tribunal acted bona fides - credibility of applicant's evidence - whether it was open to the Tribunal to come to the decision it made in light of the facts - improbable corroborative written evidence - whether there was an error in law by not taking this evidence into account - whether there had been a breach of an inviolable precondition of the exercise of jurisdiction.

NANX v Minister for Immigration [2002] FMCA 300 (6 December 2002)

NANX v Minister for Immigration [2002] FMCA 300 (6 December 2002)
Last Updated: 17 December 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NANX v MINISTER FOR IMMIGRATION
[2002] FMCA 300



MIGRATION - Review of RRT decision - application for protection visa - fear of persecution for reasons of membership of a political organisation - whether Tribunal acted bona fides - credibility of applicant's evidence - whether it was open to the Tribunal to come to the decision it made in light of the facts - improbable corroborative written evidence - whether there was an error in law by not taking this evidence into account - whether there had been a breach of an inviolable precondition of the exercise of jurisdiction.



Migration Act 1958 (Cth) ss.65, 474, 476

R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR 616

Kan v Minister for Immigration [2002] FCA 923

SAGG v Minister for Immigration [2002] FCA 547

Gamaethige v Minister for Immigration [2001] FCA 565

NAAV v Minister for Immigration [2002] FCA 1108

NAOS v Minister for Immigration [2002] FMCA 265

NAAG v Minister for Immigration [2002] FCA 713

SBAU v Minister for Immigration [2002] FCA 1076

Applicant:
NANX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 690 of 2002



Delivered on:


6 December 2002



Delivered at:


Sydney



Hearing Date:


18 November 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Mr Ray Turner of Yandell Wright Stell



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 690 of 2002

NANX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of the People's Republic of China who arrived in Australia on 7 January 2001. On 18 January 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958. On 16 May 2001 a delegate of the Minister refused to grant a protection visa and on 13 June 2001 the applicant applied to the Refugee Review Tribunal for a review of that decision. The review was carried out on 22 May 2002; the decision made on

30 May 2002 and handed down on 20 June 2002. It is in respect of that decision that review is sought from this court.

2. The applicant's claim to a well founded fear of persecution for convention reasons arose out of his membership of the Falun Gong in both his home city in China and in Australia since his arrival. The applicant claimed to have commenced following Falun Gong in about October 1996 and to have become a leader in his local organisation in about December of that year. He claims to have participated in a series of demonstrations, sit ins and petitions and to have been arrested and detained for a period of approximately two days in September 2000. The applicant feared that if he was returned to China he would be placed under arrest for what he had done including his active participation in the movement whilst in Australia.

3. Although the Tribunal accepted that the applicant was currently a Falun Gong follower it was not prepared to accept that he had ever been a leader or organiser or prominent practitioner of Falun Gong in China. The Tribunal also came to a conclusion unfavourable to the applicant in relation to a claim made by him that he had paid a bribe to obtain his passport in order to leave China and in relation to the claim that he had lost his job as a result of his Falun Gong activities. The Tribunal came to the view that because he did not have a Falun Gong profile of the sort which would attract adverse attention of the authorities, he would not be in any real danger in returning to China. On this basis the Tribunal affirmed the decision of the delegate not to grant a protection visa.

4. It is the applicant's case that the Tribunal did not act bona fide in coming to the conclusions to which it came. If this submission was made out the decision of the Tribunal would not be protected by s.474 of the Migration Act, R v Hickman; ex-parte Fox and Clinton (1945) 70 CLR at 616.

5. The way in which the applicant set out to establish his case was to examine the adverse findings, indicate why he believed they were not justified and then to argue that together they evidenced the lack of bona fides discussed in Kan v Minister for Immigration [2002] FCA 923 at [14] and SAGG v Minister for Immigration [2002] FCA 547.

6. At CB [70] the Tribunal under the heading "FINDINGS AND REASONS" said:

"At virtually every state of his application, the applicant has declared the truth or completeness of his claim (a reference to forms completed by the applicant and utilised by the delegate and the Tribunal). Yet even the applicant's original claims of January 2001 contain inconsistencies which undercut their credibility. And at his DIMIA interview and RRT hearing he varied his claims in ways which undercut fatally the credibility of the totality."

7. One of the areas of concern raised by the Tribunal was that the applicant changed his story from claiming that he became a Falun Gong organiser in October 1996, only a month after he had joined, to December 1996. If this is one of the matters which undercuts the consistency of the applicant's claims then I accept that it is evidence (to my mind not very convincing evidence) in support of the Tribunal's position.

8. The next point raised by the Tribunal was its non acceptance that the applicant was detained for two days in September 2000, mistreated, released and sacked. He shortly afterwards left the country legally with a passport he had obtained without difficulty in July 2000. Relying on country information, the Tribunal was of the view that if he was a key organiser of such a demonstration he would not have been treated so leniently. It follows from this conclusion that either the applicant was exaggerating his role or not being entirely truthful about the arrest. Either of these matters could give rise to doubts about his credibility.

9. The Tribunal then examined the question of the bribe paid to obtain the passport. The Tribunal pointed out to the applicant that one could pay a bribe to speed up a process that was going to occur in any event or pay a bribe to effect a result which might otherwise not occur. The Tribunal indicated that if the applicant was alleging the second then it did not understand why he had responded in his questionnaire negatively to the question as to whether or not he experienced any difficulty in leaving the country. The applicant's submission was that he didn't experience any difficulty because he had paid the bribe. That was not quite what he answered the Tribunal. On my reading of the Court Book and the papers, he appeared to attempt to persuade the Tribunal that he had been required to pay the bribe in order to obtain the passport, not to facilitate it. I certainly have some doubt as to what the bribe was intended for. If I was deciding the facts of this case(which I am not) I would tend to the view that the bribe was paid to get on to the businessman's tour which brought the applicant to Australia. It is to be remembered that by this time he had severed his employment contract and he could hardly be said to be a person who would benefit from a study tour of businesses in Australia.

10. The Tribunal was critical of the applicant for his apparent lack of knowledge of basic facts concerning the Falun Gong. The Tribunal called upon the applicant's responses to the delegate in this regard as well as his responses to the Tribunal itself. It was certainly open to the Tribunal to come to a conclusion unfavourable to the applicant on this basis.

11. The final matter upon which the Tribunal made comment was in respect of three documents provided by the applicant in support of his claims. These documents are found at CB [26-31]. They consist of a detention notice, being a decision to give the applicant two days detention from 13 to 14 September 2000 and an arrest warrant dated 11 February 2001. The reason for the arrest given is "the participation of Falun Gong (heretic organisation)." The third document is entitled "Application for Dissolution of Labour Contract". This seems to be a document emanating from the applicant who confesses to participating in Falun Gong activities since October 1996 and organising Falun Gong studies. The document is dated 16 September 2000 and has been approved under the seal of the Chikan District Hardware and Electrical Appliance Company.

12. The Tribunal in its findings and reasons says about these documents:

"I attach no weight to the three documents submitted after the DIMIA interview (see para 20) because, having heard the applicant's DIMIA's interview tape and having had the opportunity to question him myself in relation to his claims, I do not accept that he has come to the adverse attention of the authorities in respect of Falun Gong or for any other convention related reason and I do not believe there is a convention related arrest warrant issued for him."

13. A similar situation to that before me arose in Gamaethige v Minister for Immigration [2001] FCA 565. This was an appeal to the Full Bench of the Federal Court from a decision of Branson J. Her Honour had found a number of matters of concern in the manner in which the Tribunal came to its decision but concluded, with some regret, that there was no ground upon which the court was able to set aside the decision. One of the areas of concern related to the treatment of written evidence corroborative of the applicant's statement. This part of the decision of Branson J. was considered by both Finkelstein J and Stone J. Her Honour at [76] noted that the Tribunal's reasons for its decision were unsatisfactory in a number of ways, the most striking of which was the way in which it approached the evidence the appellant put before it. At [77] she appears to agree with the remarks made by Branson J concerning the treatment by the Tribunal of the documents.

14. Justice Finkelstein dealt with the matter at [54] and his remarks are worth repeating:

"Put another way, the Tribunal's approach to the task of finding facts was floored. The Tribunal was required to determine whether the facts asserted by Mr Gamaethige were true or probable (note the danger identified by the High Court in Wu Shan Liang v Minister for Immigration (1996) 185 CLR 259 at 282-283 of stating the requirement in terms of "balance of probabilities"). It was not required to accept his evidence in that regard because that evidence may have been discredited in various ways. For example, if the evidence was inherently improbable, or if it was inconsistent with more reliable evidence, or if it was given in a manner which appeared to suggest that Mr Gamaethige should not be believed, the asserted facts can be discounted. However, in deciding whether or not the asserted facts are true or probable, the Tribunal was required to take into account the corroborative evidence because that evidence had a tendency to make it more likely that the asserted facts were true or probable. This is not to say that the Tribunal was required to accept the corroborative evidence as true or probable. As is the evidence given by Mr Gamaethige, the corroborative evidence may be impeached. But unless it were impeached, it could not be ignored. Importantly, in the process of reasoning, the Tribunal was not entitled to pay no regard to the corroborative evidence in the course of deciding whether the evidence of Mr Gamaethige was true or probable and then use its conclusion on that evidence (that it was untrue) to impeach the corroborative evidence. This is what the Tribunal did, to some extent in the case of the two medical reports, and completely in the case of Mr Kadigamuwa."

15. I think there is a striking similarity between what occurred in Gamaethige and what occurred in this case. However, Gamaethige was a case decided under the old s.476. The court came to the conclusion by a majority that the appeal should be dismissed. Hill J finding that a decision of the Tribunal which was the product of illogical reasoning did not fall within the grounds of review permitted by s.476 which he considered to be a code. Stone J considered that what was being argued was a question of Wednesbury unreasonableness and that was not a ground of review under s.476. Her Honour did also consider the question of bias and came to the view that actual bias had not been established. Finkelstein J would have allowed the appeal saying at [41]:

"There is little difficulty in fitting into s 476 a decision based on flawed logic that a non-citizen is not a convention refugee."

And at [33]:

"Section 476(2)(b) would not take a case of flawed logic outside s.476(1), s.476(2)(b) is concerned solely with Wednesbury unreasonableness... Moreover, it is concerned only with discretionary decisions, and decisions made by the Tribunal are not of that character."

16. As the law stands since the introduction of s.474 to the Migration Act and the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 288 as explained by Sackville J in Zahid v Minister for Immigration [2002] FCA 1108. The only grounds that would avail this applicant in seeking review are that an inviolable precondition of the exercise of jurisdiction has been breached or that the decision itself was made with a lack of bona fides. Given the very restricted views of a majority of the Full Bench (Black CJ, Beaumont, von Doussa JJ) as to what might constitute an inviolable limitation I am satisfied that such a case has not been made out here.

17. The final matter raised by the applicant was the submission that the Tribunal had erred in law when it suggested at CB [72]:

"The applicant's RRT application presented no rebuttal of the DIMIA decision record."

18. The applicant used this phrase as evidence that the Tribunal considered that it was his responsibility to rebut the delegate's decision as if what was occurring before the Review Tribunal was a true appeal and not a rehearing for the purposes of satisfying the Tribunal under s.65 of the Migration Act. It is clear from the decision in NAAV that such an error of law would not be reviewable because of the privative clause but in any event I am not satisfied that the Tribunal did proceed on the basis alleged by the applicant. The full quotation from that paragraph is as follows:

"The applicant's RRT application presented no rebuttal of the DIMIA decision record and no new claims and again declared that the information supplied was complete, correct and up to date in every detail."

19. My reading of the decision is that this paragraph was inserted into the Tribunal's reasons as part of the Tribunal's general attack on the applicant's credit arising out of the differences between his statements before the Tribunal and the delegate and the manner in which the forms had been completed.

20. I considered the general question of bona fides in NAOS v Minister for Immigration [2002] FMCA 265 at [18-20] and [33-35]. I indicated that a lack of bona fides had to be distinguished from a catalogue of errors described by Allsop J in NAAG of 2002 v Minister for Immigration [2002] FCA 713 at [13] but I accepted that those faults could, together or in isolation, demonstrate or tend to demonstrate a lack of good faith on the part of the Tribunal. I noted the decision of Mansfield J in SBAU v Minister for Immigration [2002] FCA 1076 at [31-32] that the decision on this type of matter was one of fact for the court to make.

21. I would also note the warnings expressed by the High Court and the Federal Court as to the seriousness of a finding of lack of bona fides which must always be in the forefront of the court's mind. Having considered the Tribunal's reasons for decision in detail including the evidence submitted by the applicant at the hearing, (a transcript of the interview with the delegate), I am not prepared to find that the Tribunal acted with a closed mind or proceeded on the basis that it was seeking reasons to decide against the applicant rather than considering on the basis of all the evidence put before it whether or not it could be satisfied of the applicant's claims of a well founded fear of persecution. I am concerned that what appears to be a clear error of law in relation to the findings concerning the documents has occurred, but at present the Tribunal's powers have been widened to such an extent that it is entitled to make errors of law of this type without its decision being the subject of judicial review.

22. I must dismiss the application. I am grateful for the assistance provided by both advocates. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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