Han v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1046

CORRIGENDUM

CHUAN MING HAN v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N29 of 2000

KATZ J

SYDNEY

2 AUGUST 2000

CORRIGENDUM

1.   Appearances are amended to read as follows:

Counsel for the Applicant: Ms M Bateman

Counsel for the Respondent: Ms V Hartstein

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 2 August 2000

Date of Judgment 2 August 2000

2.   The first line of paragraphs 9 and 11 is to be indented.

Jane McAdam

Associate to the Hon. Justice Katz

2 August 2000

FEDERAL COURT OF AUSTRALIA

Han v Minister for Immigration & Multicultural Affairs [2000] FCA 1046

MIGRATION - refugees - application for protection visa - review of decision by Refugee Review Tribunal - whether procedures required by the Migration Act to be observed in connection with the making of the decision were observed - whether Tribunal failed to set out its finding on a particular material question of fact.

Migration Act 1958 (Cth), ss 430(1) & 476(1)(a)

Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845

CHUAN MING HAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N29 of 2000

KATZ J

SYDNEY

2 AUGUST 2000

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the costs of the proceeding.

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

REASONS FOR JUDGMENT

1 There is before the Court an application for an order of review. That application invokes the jurisdiction conferred on this Court by s 486 of the Migration Act 1958 (Cth) ("the Act").

2 The application seeks review of a decision made by the Refugee Review Tribunal ("the Tribunal") on 17 December 1999. That decision affirmed an earlier decision by a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicant in the present proceeding.

3 The grounds of review available in a challenge in this Court to the lawfulness of a decision of the Tribunal are set out in subs 476(1) of the Act. The only ground relied on in the present proceeding is the ground set out in par (a), which is that procedures that were required by (relevantly) the Act to be observed in connection with the making of the decision were not observed.

4 Subsection 430(1) of the Act provides that where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that sets out certain things and refers to another thing. Among the things which must be set out are the findings on any material questions of fact: see par 430(1)(c) of the Act. It has been held that subs 430(1) of the Act prescribes a procedure required by the Act to be observed by the Tribunal in connection with the making of a decision by it: see the joint reasons for judgment of Black CJ and Sundberg, Katz and Hely JJ in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 (Black CJ and Kiefel, Sundberg, Katz and Hely JJ, 30 June 2000, unreported) at [43].

5 The only respect in which it has been alleged in the present proceeding that the Tribunal failed to observe procedures that were required by the Act to be observed in connection with the making by it of its decision is that it failed, contrary to par 430(1)(c) of the Act, to set out the finding on a particular material question of fact.

6 In order to deal with that allegation, it is necessary that I should first mention that the applicant is a citizen of the People's Republic of China ("the PRC") who claimed that, owing to well-founded fear of being persecuted for reasons of political opinion, he was both outside the PRC and unwilling to avail himself of the PRC's protection. Among his more specific claims was one that he had been imprisoned by the Chinese authorities for about three years, ending in November 1992, as a result of his pro-democracy activities. Further, according to the Tribunal,

"The applicant ... claims that following his release he was unable to find permanent or full-time work. He claims that he only obtained casual work thereafter. He claims that he often had to report to the police, was required to obtain their permission before being able to travel out of Shanghai, and his telephone was bugged and his mail intercepted. He said that he also had to withstand the suspicion of employees who did not understand why he had been sentenced....

He claims, however, that he still undertook pro-democracy activities in secret and that he formed a democratic salon that discussed democracy and gathered and disseminated information from overseas sources. He said that the authorities learned of the existence of the salon in April 1996. He had earlier described himself as the secretary-general of the salon and said that it was formed in early 1994 and that the activities of the organization had been discovered in late 1995. He said that he was also instrumental in forming a charter that would form the platform for a People's Party. He said that one or two members of the democratic salon were arrested before he left China and another four were arrested and given very lengthy sentences after he left. He claims that the authorities did not take action against him between April 1996 - when he ceased his political activities - and the time he left China[,] as he went to Jiangxi province to avoid official attention."

7 It was the applicant's submission before me that it was a material question of fact before the Tribunal whether "the authorities did not take action against him between April 1996 - when he ceased his political activities - and the time he left China[,] as he went to Jiangxi province to avoid official attention", but that the Tribunal had failed in its statement of findings and reasons to set out its finding on that question. Thus, it was submitted, the Tribunal had breached par 430(1)(c) of the Act, so that the ground of review under subs 476(1) of the Act had been made out.

8 Before dealing specifically with the submission which I have just set out, it may be convenient to make further reference to the joint reasons for judgment in Singh, in so far as those joint reasons deal specifically with the obligation imposed on the Tribunal by par 430(1)(c) of the Act. In particular, I draw attention to the following passages from those joint reasons:

"[48] The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. ...

...

[56] ... if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with....

[57] Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings.... A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.

....

[64] ... a failure to comply with s 430 is not made out by reason only of a failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue."

9 Dealing specifically now with the submission to which I referred above, I reject it.

10 In that part of its statement of findings and reasons headed "DISCUSSION OF EVIDENCE AND FINDINGS", the Tribunal stated,

"In relation to the applicant's claims that he engaged in pro-democracy activities even after 1992, with a democratic salon that aimed, inter alia, to form a political `people's' party, the Tribunal notes a discrepancy of at least five months in the applicant's evidence as to when the group was discovered. At the hearing he said that the authorities discovered it in April 1996 whereas in his statement of 3 September 1996 he said that it was discovered by police at the end of 1995. In the aforementioned statement he claimed it had hundreds of supporters which is incongruous with it coming to official attention only some two years later. In weighing those factors the Tribunal finds that the applicant was not a member of a democratic salon.

Although he claims to have had a prominent role in the group he was not, in any event, among those arrested when it was disbanded. While the applicant was later able to leave China, he claims that other colleagues were also arrested after his departure. His passport was issued after the group was disbanded. Even accepting that the applicant spent some time in Jiangxi shortly before he left China it is manifest from information cited below that he had to obtain clearance from several sources before being able to leave China.

The applicant's capacity to depart China legally indicates, in any event, that any problems faced by any friends prior to his departure do not hold a real chance of persecution of him for any Convention reason. Similarly, even if he had been a member of a democratic salon and other colleagues have been arrested since his departure, for the same reasons as others allegedly arrested prior to his departure, the Tribunal finds that the applicant, having himself satisfied the authorities that he was not of interest to them, does not now or in the foreseeable future face a real chance of persecution for any Convention reason. If the group actually existed and then became known about and its members targeted, it is manifest that the applicant came to the attention of authorities during the course of applying for travel documentation. The fact that no action was taken against him indicates he is not of interest to the authorities, and the Tribunal finds accordingly."

11 It is apparent from the extract from the Tribunal's statement of findings and reasons which I have just quoted that the Tribunal rejected the applicant's claim to have engaged in those political activities the discovery of which, on the applicant's account, would have led the authorities to take action against him, but for his going to Jiangxi province. In circumstances in which the Tribunal rejected that claim, it was obviously unnecessary for the Tribunal to make a finding on the question whether the applicant had, by going to Jiangxi province, avoided official attention as a result of such activities. To use the language from Singh which I have earlier quoted, the question whether the applicant had, by going to Jiangxi province, avoided official attention was neither objectively material nor one on which the Tribunal's decision turned, having regard to the process of reasoning which the Tribunal employed. It could not be said that the Tribunal's decision, in the practical circumstances of the present case, turned on the resolution of that question.

12 In the circumstances, the application for review will be dismissed with costs.