Choi v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION - review of decision of Refugee Review Tribunal to refuse a protection visa - whether the Tribunal failed to consider a material question of fact.

Migration Act 1958 (Cth) s 430(1)(c) and (d)

Thevendram v The Minister [1999] FCA 182 at 34 cited

Kandiah v The Minister (Finn J, 3 September 1998, unreported) cited

Logenthiran v The Minister (Wilcox, Lindgren & Merkel JJ, 21 December 1998, unreported) cited

VG 694 OF 1999

NORTH J

8 SEPTEMBER 1999

MELBOURNE

THE COURT ORDERS THAT:

1.   The decision of the Tribunal made in respect of Pun Choi is set aside, but is otherwise affirmed. The matter is referred to the Tribunal, insofar as it affects Pun Choi, for further consideration.

2.   The respondent pay the applicant's costs of the application and of the hearing on 7 September 1999, but that each side pay their own costs of the hearing on 8 September 1999.

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 for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 November 1998. The Tribunal affirmed the decision of the delegate of the Minister for Immigration and Multicultural Affairs, the respondent, to refuse a protection visa to the first-named applicant, Pun Choi (the applicant), his ex-wife and his children.

2 The applicant is a 50-year-old citizen of the People's Republic of China (PRC) who arrived in Australia on 25 July 1996, with his then wife and three children. He lodged an application for a protection visa on 14 July 1997, and it was refused on 31 July 1997. The applicant applied for a review of the delegate's decision on 26 August 1997, and on 21 October 1998, the Tribunal conducted a hearing at which the applicant gave evidence.

3 The applicant's father was a teacher who was punished for expressing dissatisfaction with the Chinese Communist Party. The applicant married in 1973. His first child was born in 1974. A second child was due in 1974. The applicant was pressured to agree that his wife have an abortion, and the applicant was required to have a vasectomy. He was mistreated at work as a result, and tried to escape to Hong Kong. He was caught, and jailed for three years. On release he could not find a job. He escaped to Macau and lived there from 1979 to 1988. In this time he returned to Guangdong once or twice every year.

4 He came to Australia in 1988 for three years. He then returned to Macau, and finally migrated to Hong Kong. From Hong Kong he continued to visit his father in Guangdong, without difficulty. In Hong Kong he claimed to have met pro-democracy activists and joined a Hong Kong "April 5" group. He claims to have set up a shoe shop in Guangdong as a front for smuggling pro-democracy activists out of the PRC. From 1993 he lived in Guangdong. He claimed to have helped smuggle 17 dissidents from the PRC to Hong Kong.

5 He claimed that in January 1995 the Public Security Bureau raided his shop and arrested him and a female dissident. They were detained overnight. The woman lied to police that she was a prostitute. Both were fined and released. He claimed that the Public Security Bureau continued to monitor his shop for two to three months. In April 1995 he claimed that upon the advice of the leaders of the group in Hong Kong, he returned to Hong Kong. As the handover of Hong Kong to the PRC was imminent, he left for Australia. However, he did not apply for a protection visa until one year later; the reason, he claimed, was that he believed he should wait until Hong Kong reverted to PRC control. The applicant claimed that a colleague engaged in the people smuggling activities had been jailed for five years in February 1997 as a result of that involvement.

6 The Tribunal dealt with the case in two parts. The Tribunal's conclusion in respect of the first part is demonstrated by the following passage from the Tribunal's reasons:

"The fact that the Applicant has been a regular visitor to Guangdong since he escaped to Macau in the 1970's and established a business there in 1993 which he ran for a lengthy period without difficulty, indicates that his concerns about being harmed on account of his family background, his attempted escape to Hong Kong, his subsequent escape to Macau and his opposition to the family planning policies have become largely irrelevant with the passing of time. The Tribunal is satisfied that he does not have a genuine fear of persecution for those reasons, otherwise he would not have voluntarily made repeated return visits to the place he believed he may be persecuted."

7 A number of arguments were addressed by the applicant to the conclusion reached by the Tribunal in this first part of the case. I shall return to these matters later in these reasons.

8 The second part of the case concerned the applicant's claim that he feared persecution if he returned to the PRC as a result of his involvement in the people smuggling activities, and from the fact that a colleague who had been engaged in those same activities had been sentenced to five years jail in February 1997. The Tribunal rejected the applicant's claim on the basis of the following reasoning. It did not accept that the applicant had met with high profile political figures in Hong Kong to discuss the illegal movement of dissidents from the PRC. The Tribunal found it unlikely that a person such as the applicant, with so little experience of the PRC, would be recruited for the task. The applicant produced a document headed "Hong Kong Fifth of April Action Group" dated 31 May 1993 and signed by Tek Kueng, purporting to record a transfer to the applicant of a cheque for HK$759,000 and one thousand dollars in cash:

"To be used to assist those Chinese dissidents in the June 4 Democratic Movement to escape from the mainland to Hong Kong, and open shops in China to cover their identification."

9 The Tribunal found:

"... it is implausible that three people would sign a document that implicates them in serious criminal activity and that they would leave a paper trail that could lead the authorities to them if the document fell into the wrong hands."

10 The Tribunal concluded:

"The Tribunal finds that the letter submitted by the Applicant was fabricated so as to enhance his claims to be a refugee."

11 The Tribunal then referred to a letter from De Qiang upon which the applicant relied. I will return to that issue in due course. The Tribunal observed that the applicant had been under surveillance for several months before he returned to Hong Kong, but that nothing had happened to him as a result.

12 The Tribunal then considered the explanation provided by the applicant for the delay in lodging his application for a protection visa from his arrival in July 1996 until July 1997. The Tribunal stated:

"He explained he was not in danger until Hong Kong was handed back to China. The Tribunal notes that the letter from De Qiang states that a mutual colleague had been imprisoned for five years in February 1997. The information was not included in the initial application made in mid-1997, and the Tribunal was informed of it in February 1998. The Applicant explained that he had little contact with people in Hong Kong and only found out his friend had been arrested in December 1997. He said that De Qiang did not know the colleague had been imprisoned, although he changed his mind when the Tribunal pointed out that De Qiang had mentioned five years imprisonment in his letter. The Tribunal does not accept that the Applicant would have taken as long as he has claimed to find out an accomplice in a sophisticated people-moving business had been detained and later imprisoned. His evidence was that the organisers of the plan were very careful and kept a close watch on how it was proceeding. It is not credible that he would not be given a timely warning not to return to the PRC where he was in danger of imprisonment and, more significantly, may have disclosed information about others involved in the scheme. That aspect of his reasons for lodging a late application is not accepted."

13 It is not entirely clear what relevance the Tribunal saw in its exploration of the reasons for delay in lodgment of the application. Perhaps the issue was seen as having a bearing on the credit of the applicant generally. In particular, as was suggested by Mr Murphy who appeared as counsel for the respondent, the reference may have been directed to an evaluation of the existence of the subjective fear of persecution held by the applicant. On the same issue, the Tribunal then rejected the applicant's further explanation of the delay, namely that he did not realise that Australia had protection obligations, until he saw a reference to the subject in the media.

14 What is significant about this reference to the letter from De Qiang is that the Tribunal accepted that the information contained therein, namely that a mutual colleague was jailed for five years in February 1997, was correct. It was the failure of the applicant to be advised of that fact earlier than the letter of December 1997 which founded the Tribunal's conclusion that the applicant had given an unconvincing explanation for the delay.

15 The Tribunal then dealt with a translated version of a court verdict relating to a colleague of the applicant. The Tribunal said:

"The Applicant provided a translated version of the verdict related to his colleague. It is entitles [sic] "Court Verdict", has no letterhead and paraphrases the Applicant's claims. It states, among other things, that the accused "...has adopted a hostile attitude towards our socialist system for a long time. He collaborated with a handful of counter-revolutionary political organisations in Hong Kong, helped the counter-revolutionary activists in China escape to Hong Kong and attempted to subvert the People's Government of China." It goes on the [sic] state he was punished "...in accordance with the Constitution of our country" although it does not mention any articles of the Constitution that have been breached or under which he was sentenced. The Applicant was unable to produce the original document as he had followed De Qiang's instructions that "...when you have done everything, you'd better post it back to Hong Kong as soon as possible so that it can be given to his family as soon as possible." Despite the Applicant's claims that the Chinese authorities have no set format in drafting legal documents, the Tribunal finds that the Court Verdict provided in regard to his colleague is not a genuine document."

16 The Tribunal then observed that the applicant had delayed making his application for a protection visa, and did not disclose substantial information until after the delegate made the initial decision. The Tribunal continued:

"When he finally made substantive claims, he purported to support them with various documents and letters. For the reasons discussed above, the Tribunal has no real doubt that the documents related to "security" for assisting activists and the "verdict" regarding the Applicant's colleague are not genuine. It is in no doubt that they have been contrived to shore up the claim by the applicant that he was involved in smuggling pro-democracy activists out of China."

17 The Tribunal then observed that the applicant had visited Guangdong from Macau and Hong Kong, and had lived there for several years without being harassed. It continued:

"His claims about being involved in people smuggling have been embellished and altered, apparently according to the stage at which his protection visa application has reached. Those claims have also been supported with documentation which the Tribunal has no real doubt is false. The Tribunal does not accept those claims."

18 The letter from De Qiang referred to earlier in these reasons reads, in the English translation, as follows:

"Dear Choi Pun,

It has been a long time since we last wrote to each other. Hong Kong is currently experiencing a political tightening up, with a continuous contact between officials of Chinese and Hong Kong governments. In order to survive, many newspapers, critics correspondents and political parties are trying to apply self-restrictions, and some migrants are somehow turning to the Chinese government.

Mr Liangyong Li, who once worked with us after the June the Fourth in 1989 in smuggling out pro-democracy activists for whose arrest warrants had been issued in mainland China, has been arrested himself by CCP secret agents faking illegal migrants. Following a large-scale search, some of the people who had helped to smuggle out the pro-democracy activists were also arrested. After being tortured under detention, Mr Li was forced to confess to the fact that he had helped those activists to escape from Chine, and was finally sentenced to five years' imprisonment.

We originally planned to exert pressure on the Chinese government through US human rights organisations, but Mr Liangyong Li and his family are firmly opposed to it on the ground that to make the matter international will only make things worse for them. Moreover, Hong Kong is now under the communist rule, so after taking into consideration all sorts of factors, we feel that we cannot do anything more.

At present the communist agents are still closely watching and following former supporters of June the Fourth Pro-democracy Movement. Worried about the safety of their family, many such people no longer mention these things.

When you receive the court verdict about Liangyong Li, and when you have done everything, you'd better post it back to Hong Kong as soon as possible so that it can be given to his family as soon as possible.

Best wishes for a Happy New Year.

De Qiang"

19 It was contended by counsel for the applicant that the decision of the Tribunal should be set aside because the Tribunal failed to comply with a procedure required by the Migration Act 1958 (Cth) (the Act) to be observed in connection with the making of the decision: s 476(1)(a). The procedure with which the Tribunal did not comply, it was argued, is contained in s 430(1)(c) and (d) which provides:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

...

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

(d) refers to the evidence or other material on which the findings of fact were based."

20 It was contended by the applicant that the centrepiece of his claim to a protection visa was that he was involved in smuggling dissidents to Hong Kong, and that a colleague similarly involved had been sentenced to five years' jail for such involvement. The letter from De Qiang was fundamental to the establishment of both propositions. The applicant argued that it was a matter upon which the Tribunal was bound to make a finding and it had failed to make any such finding.

21 Counsel for the Minister contended that the Tribunal was not bound to make a finding on the contents of the letter. Alternatively, it was submitted, the Tribunal had explicitly or implicitly rejected the matters referred to in the letter. It was clear that the Tribunal did not accept the truth of the contents of the letter, so it was argued, because the Tribunal rejected the court verdict relating to the applicant's colleague, which was sent with the letter, because it rejected the genuineness of the receipt for moneys and rejected other aspects of the applicant's evidence.

22 In my view a finding on the contents of the letter was capable of supporting in a fundamental way the applicant's claim of feared persecution and thus was a material question of fact for the purpose of s 430(1)(c): see Thevendram v The Minister [1999] FCA 182 at 34, Kandiah v The Minister (Finn J, 3 September 1998, unreported) at 9 to 13. In Logenthiran v The Minister (Wilcox, Lindgren and Merkel JJ, 21 December 1998, unreported) the Full Court said at paragraph 35:

"Whilst it may have been open to the RRT as a tribunal of fact to reject material which was directly relevant to the issue of whether a fear was well-founded it was not open to it to do so without setting out its own findings in respect of the matters the subject of the material."

23 Counsel for the Minister relied on two passages in the Tribunal's reasons as express findings relating to the letter from De Qiang. The first was at page 13:

"When he finally made substantive claims, he purported to support them with various documents and letters. For the reasons discussed above, the Tribunal has no real doubt that the documents related to `security' for assisting activists and the `verdict' regarding the Applicant's colleague are not genuine."

24 And at page 14:

"Those claims have also been supported with documentation which the Tribunal has no real doubt are false."

25 In the context of the decision these references relate only to the receipt and the court verdict documents. This is very clear in relation to the first reference. Even if it were not so in relation to the second reference, the mere conclusion that the letter was "false" would not refer to the evidence on which the finding was based as required by s 430(1)(d). Both references amount to a summary conclusion of the extended treatment of the genuineness of the receipt and the court verdict. By contrast there is no treatment of the genuineness of the De Qiang letter. On the contrary, as I earlier remarked, the Tribunal relied on the contents of the letter to reject the applicant's explanation for delay in making his application. The only other reference to the letter is in the sentence:

"He also produced another letter from De Qiang, which said that the people helped to go to Hong Kong were the subject of arrest warrants in the PRC."

26 This reference simply commences a discussion not concerning the veracity of the letter, but the veracity of further evidence of the applicant on the question whether the persons he assisted were the subject of arrest warrants in the PRC. Even if it were seen as an analysis of part of the letter from De Qiang, it would totally fail to satisfy the requirements of s 430(1)(d). This is so because the letter from De Qiang is detailed and elaborate in relation to its description of the events surrounding the arrest of the colleague, Mr Li. It refers to the techniques used by secret agents to make the arrest. It refers to the torture of Mr Li and a confession by him. It then provides information in relation to Mr Li's family and its opposition to publicise the case internationally. Finally, the letter reports on the risks in the PRC to people who supported the pro-democracy movement.

27 It follows from these reasons that the decision of the RRT in relation to the applicant must be set aside. The applicant raised a number of other arguments. For instance, he contended that the decision was affected by actual bias. It is not necessary for me to determine that argument because the matter will now be returned to the Tribunal and will be reconsidered by another member of the Tribunal. The applicant also contended that the Tribunal failed to make enquiries as to the authenticity of the documents relied upon by the applicant. This argument was not developed in sufficient detail for me to make any helpful observations. It will be a matter for the member of the Tribunal rehearing the matter to consider the extent, if any, to which such enquiries should be made.

28 The applicant also contended that the Tribunal erred in holding that the applicant would not suffer persecution as the result of infringing the one-child policy. Such a finding, it was argued, failed to take account of the totality of the applicant's circumstances, such as his ill-treatment at work resulting from his resistance to his wife's abortion. In my view, this challenge to the decision is not made out. The Tribunal expressly took into account all the events relating to the applicant's objection to the one-child policy and held that the events were so long past that they did not ground a fear of persecution now.

29 There has been no argument that the Tribunal erred in rejecting the claims to a protection visa other than in respect of the applicant. Thus the order of the court is that:

30.1.    The decision of the Tribunal made in respect of Pun Choi is set aside, but is otherwise affirmed. The matter is referred to the Tribunal, in so far as it affects Pun Choi, for further consideration.

31.2.    The respondent pay the applicant's costs of the application and of the hearing on 7 September 1999, but that each side pay their own costs of the hearing on 8 September 1999.