Fu Yu Xia v Minister for Immigration & Multicultural Affairs [1998] FCA 36 (3 February 1998)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 925 of 1996

BETWEEN:	fu yu xiA Applicant
AND:	minister for immigration and multicultural affairs Respondent
JUDGE:	WHITLAM J
DATE OF ORDER:	3 february 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 925 of 1996

BETWEEN:	fu yu xia Applicant
AND:	minister for immigration and multicultural affairs Respondent

JUDGE:	WHITLAM J
DATE:	3 february 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 24 October 1996. The applicant is a national of the People's Republic of China. She asserted before the Tribunal that she was entitled to protection under the Refugees Convention and Refugees Protocol on basis that she had a well-founded fear of persecution for reasons of political opinion. The Tribunal was not satisfied that the applicant was a refugee and affirmed the decision of the respondent's delegate not to grant a protection visa.

In its reasons for decision the Tribunal summarized the applicant's claims as follows:

"The applicant claims that she was a prominent political campaigner with the pro-democracy movement and that in her home area she organized student demonstrations of up to a few thousand people. She said that she put up posters and personally informed students of the forthcoming demonstrations.

She claims that she was arrested in June 1989 and detained for two months. She said that during her detention she was beaten and made to kneel. She said that she was asked about her role in the pro-democracy movement; how she organized demonstrations; and who was her leader.

In September 1989 she was transferred to a job that she described in her initial application as "assistant manager" in a foreign trading company. She claimed at the hearing that she was made to do menial tasks such as cleaning in her new job and that the company never had direct contact with foreigners. She also claims that the housing she had been allocated as a kindergarten teacher was withdrawn from her.

. . .

The applicant claims that she was able to obtain a passport, after first being refused, only because she was helped by friends and because she used a country village as the location of her household registration.

She claims that while residing in Thailand she organized several demonstrations and that her organization of a pro-democracy group there was instrumental in the breakdown of her marriage.

The applicant claims that since residing in Australia she has joined the Alliance for a Democratic China (ADC) and has participated in several demonstrations and political discussions held under its auspices.

She also claims that a couple of months ago her mother informed her that the Public Security Bureau (PSB) had visited the family and required her to attend their offices. She claims that her mother was told to dissuade her from engaging in political activity abroad, and was told that she would be in serious strife upon return if she continued with her political activity in Australia. The applicant claims that she will continue with her political activity if she is returned to China." (pp 6-7)

The applicant's first ground of challenge rests upon specific findings made by the Tribunal in respect of certain of those claims. The Tribunal's relevant findings were expressed this way:

(1) "In assessing all the information before it the Tribunal concludes that the applicant has dramatically overstated her involvement in the pro-democracy movement in China and the consequences of her support of the movement. The Tribunal is not satisfied that she had a leadership role in the pro-democracy movement or that she was detained as she has claimed." (pp 8-9)

(2) " . . the Tribunal does not find it plausible that there is any continuing adverse interest in her. Despite the existence of stringent vetting procedures, in order to check for pro-democracy activists in whom the authorities had an interest, the applicant was able to leave legally. The fact that the applicant's plans to leave China were widely known and that she was provided with all necessary documentation before departing China legally would indicate that the authorities satisfied themselves that she was not of any interest to them, and the Tribunal so finds. Even if she was questioned and briefly detained after the events of June 1989, it is apparent that she did not remain of interest to the authorities.

While accepting the applicant's evidence that she enlisted the assistance of well-placed friends in obtaining some of her travel documentation, the Tribunal notes that the use of contacts and the payment of bribes for that purpose is common in China . . . The Tribunal finds that the assistance provided by the applicant's friends was in order to expedite the issue of her travel documentation rather than out of any fear that her departure from China would be effectively blocked." (pp 10-11)

(3) "In assessing the material before it the Tribunal finds that any visits by the PSB to the applicant's family do not, in the circumstances of this case, indicate a real chance of persecution of the applicant." (p 15)

The finding I have numbered (1) is said to reflect the Tribunal's view that the applicant's claim to have been detained and tortured required independent corroboration. It is also said that that finding was reached without it ever being "put" to the applicant that there was any doubt as to the credibility of her claim in relation to detention and torture and without adverse material upon which the finding was based having been brought to the applicant's attention. In those respects the applicant submits that, contrary to s 420(2)(b) of the Migration Act 1958 ("the Act"), the Tribunal failed to "act according to substantial justice and the merits of the case".

The Tribunal's "observations" on the applicant's "claim that she was detained for two months in June 1989 due to her role in student demonstrations" are set out at p 8 of its decision. I need not repeat them.

The decision record of the respondent's delegate is in evidence. Relevantly it records a finding in these terms:

"Although Ms Fu helped organise protests by distributing pamphlets and meeting with a student from Hainan University, I do not consider she played a key role in the protests. She was detained and questioned for two months and then released without further adverse treatment from the PSB. She was able to gain her second exit permit and depart China in March 1991 indicating the authorities had no further interest in her. She maintained employment until February 1991 and departed China in March 1991. I find that the applicant would not face adverse treatment on return to the PRC because of her political activities during 1989."

In her subsequent submission to the Tribunal dated 10 August 1996 the applicant wrongly stated that the respondent's delegate had accepted that she "suffered torture during detention". The applicant put her claim to have been "detained by the PSB for two months" and "tortured in detention" at the forefront of her application for review by the Tribunal. A transcript of the hearing conducted by the Tribunal is in evidence. The Tribunal member asked the applicant about her claims of detention and torture. The questions do not suggest any view about the credibility of those claims.

Following the hearing the Tribunal forwarded to the applicant five pages from an Asia Watch report. (That material referred to a list in the report containing details of more than 1,000 persons arrested or sentenced on charges of "counterrevolution" who had been released from prison since June 1989.) The applicant was invited to make a submission based on the material forwarded to her, and she did so.

In its reasons the Tribunal does not say that it required independent corroboration of the applicant's claims about detention and torture. Nor do I think that it may be fairly inferred from what it did say that it adopted such an approach. For example, the Tribunal referred at the outset to the absence of any reports of demonstrations such as those the applicant claimed to have organized. This would have been a most relevant matter in concluding whether the applicant was "detained as she has claimed". It does not suggest that the Tribunal required independent corroboration of the applicant's actual detention and torture. The Tribunal also politely, if somewhat circumspectly, expressed a view of the applicant's successive accounts to Australian authorities of her workplace treatment after the alleged detention. This reflected an assessment of her credit which was obviously regarded as relevant to finding (1).

As I have mentioned, the Tribunal member asked the applicant about her claims to have been detained and tortured. There is no obligation upon the Tribunal to "put" any doubts about credibility to a witness. Indeed, there is nothing to suggest that at the time of the hearing the Tribunal had formed even the most tentative views on this question. The hearing is not an adversarial process. If, when the Tribunal comes to assess all the material before it, it reaches an adverse view on an applicant's credit, it is not required to give the applicant an opportunity once more to convince it of the veracity of her claims.

Again, so far as the use made of the Asia Watch report is concerned, this was only part of the evidence or material upon which the Tribunal based its finding. In her further submissions to the Tribunal the applicant did not address the fact that her name was not among those listed. Having drawn the report to the attention of the applicant, it overstates any concept of "substantial justice" to suggest that the Tribunal must draw specific attention to every statement in the report.

The position before the Tribunal was that the applicant had to make out her own case that she had been detained and tortured. The respondent's delegate had, in fact, not accepted that claim. If the applicant had deluded herself otherwise, the evidence before me does not suggest that the Tribunal would have been aware of such a state of affairs. Certainly the Tribunal said nothing to the applicant that could tend to mislead her on this issue. On the contrary, its last act prior to making its decision was to invite her comments on the Asia Watch report.

The applicant submits, in respect of the finding that I have numbered (2), that this basic claim on a matter of critical importance was not "properly dealt with". In fact, the Tribunal devoted two pages of its reasons to "the question of the applicant's departure from China". The Tribunal is not required to refer to every item of evidence before it. The submission invites the Court to review the merits of the decision by examining material before the Tribunal and arriving at a different finding. This submission is rejected.

Finding (3), as numbered above, is said to have been made in breach of the Tribunal's obligation to consider whether it wished to obtain further material concerning the applicant's claim of the PSB's visit to her family. I confess that I find this submission difficult to follow. The applicant did not herself suggest any further lines of inquiry to the Tribunal. The matter had arisen since the decision of the respondent's delegate, and the Tribunal plainly had regard to what the applicant said. The Tribunal dealt with the issue by looking as well at other material about the significance of such visits by the PSB. It refers to this material in its decision. The significance of the claim was one to be assessed by the Tribunal in the light of all the material before it.

Accordingly, assuming for the sake of argument that s 420(2)(b) stipulates a procedure required by the Act within the meaning of s 476(1)(a) of the Act, I am unable to discern any failure by the Tribunal to "act according to substantial justice and the merits of the case" in the manner alleged by the applicant. The first ground of challenge is thus rejected.

Next, the applicant submits that the Tribunal erred in law by applying the incorrect test to determine whether she was a refugee. This submission rests on what the majority of the High Court said in Minister for Immigration and Ethnic Affairs v Guo (1997) 91 ALJR 743 at 749 about using the "real chance" test as a substitute for the Convention term "well-founded fear".

In the present case the Tribunal, having made its findings about which of the applicant's claims were credible, went on to conclude that she did "not . . . face a real chance of persecution due to any dissident activities in which she has been engaged". It did so having regard to information furnished from the Australian diplomatic post in Beijing on 1 June 1993. (It should be borne in mind that, although the applicant arrived in Australia on 19 May 1994, she had left China on 4 March 1991.) In making this finding the Tribunal avoided the vice subsequently identified in Guo of merely assuming a basis for some fear of persecution. Here the Tribunal had looked at the evidence to see whether it indicated a real ground for believing that the applicant was at risk of persecution. The Tribunal then carefully assessed the "country information", to which it referred in the following three pages of its reasons for decision, to see if the applicant faced "a real chance of persecution for a Convention reason if she were returned to China". Nothing in those reasons indicates that the Tribunal did not bear in mind that a fear of persecution may be well-founded "notwithstanding that there is a less than 50 per cent chance of persecution occurring." The Tribunal had earlier referred to that important excerpt from the judgment of Mason CJ in Chan [1989] HCA 62; (1989) 169 CLR 379 at 389. Accordingly, the ground specified in s 476(1)(e) of the Act is also not made out.

Finally, the applicant relies on s 476(1)(g), or more specifically s 476(4)(b), of the Act. For this purpose the applicant identifies two alleged "facts" found by the Tribunal. The first is the finding in the last sentence numbered (3) above. That conclusion was plainly open on the material before the Tribunal, to which it referred in its reasons, and nothing more need be said about it.

The other fact is a statement at p 14 of the Tribunal's reasons that "there is no evidence of the authorities continuing to punish persons with a `low profile' who actively supported the pro-democracy movement." This is said to misstate the effect of the material before the Tribunal which included the applicant's written assertion that the Chinese Communist Party brainwashed certain people (which was evidently meant to be read as including persons in the applicant's situation). Accepting for the sake of argument that that is so and, further in favour of the applicant that the finding was critical to the Tribunal's decision, the argument still cannot succeed. As Black CJ explained in Curragh Queensland Mining Limited v Daniel [1992] FCA 44; (1992) 34 FCR 212 at 221, to make out a ground such as that available under s 476(1)(g) there must be an absence of evidence or other material of a particular fact upon which the decision was based. In the present case, the Tribunal expressly relied upon evidence before it which supported the impugned statement. This ground of challenge fails too.

This application is dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated: 3 February 1998

Mr S P Mitchell of Stewart Levitt & Company, solicitors, appeared for the applicant.

Lucy McCallum of counsel, instructed by the Australian Government Solicitor,

appeared for the respondent.

Date of hearing: 5 August 1997

Date of judgment: 3 February 1998