Zhuo v Minister for Immigration & Multicultural Affairs [1999] FCA 1729 (26 November 1999)

Last Updated: 14 December 1999

FEDERAL COURT OF AUSTRALIA

Zhuo v Minister for Immigration & Multicultural Affairs [1999] FCA 1729

MIGRATION - protection visa - application refused by Minister's delegate - refusal affirmed by Tribunal - no ground of review properly invoked by application to Federal Court.

Migration Act 1958 (Cth), Part 8, s 476(1)(d), s 476(1)(g), s 476(3), s 476(4).

Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577 (referred)

ZHUO FA GAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

AG 58 of 1998

FINN J

CANBERRA

26 NOVEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 58 OF 1998

BETWEEN:	ZHUO FA GAN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FINN J
DATE OF ORDER:	26 NOVEMBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. the application be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 58 OF 1998

BETWEEN:	ZHUO FA GAN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FINN J
DATE:	26 NOVEMBER 1999
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act"), to review a decision of the Refugee Review Tribunal ("the Tribunal") affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs that the applicant, Zhuo Fa Gan, not be granted a protection visa.

2 As stated in the application, the bases for challenging the Tribunal's decision are:

"(1) Procedures that were required by law to be observed in connection with the making of the decision were not observed.

(2) That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.

(3) That the decision involved an error of law, whether or not the error appears on the record of the decision.

(4) The decision was otherwise contrary to law."

3 This application was filed prior to the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577. The applicant's first ground cannot, in consequence of that decision, be relied upon to challenge the validity of the Tribunal's decision.

4 As to the remaining three stated grounds, the first as particularised would seem to invoke s 476(1)(d) of the Act, the second and third when considered in light of the particulars, s 476(1)(d) or (g).

5 Both of these provisions are quite restricted in their scope by the terms of the Act itself.

6 Section 476(1)(d) makes a judicially reviewable decision reviewable on the ground that:

"the decision was an improper exercise of the power conferred by this Act or the regulations."

Nonetheless, s 476(3) limits the scope of this ground in the following way:

"(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)."

Likewise, s 476(1)(g) makes a judicially reviewable decision reviewable on the ground that:

"there was no evidence or other material to justify the making of the decision."

But s 476(4) in turn limits the ground thus:

"(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

7 I refer to these provisions at the outset because, though they were relied by the applicant, he has not sought explicitly to indicate how they may properly be invoked against the present decision. I refer below to the omnibus manner in which his grounds are particularised.

The Factual Setting

8 I should preface what I have to say by observing that the well founded fear of persecution Mr Zhuo is said to entertain relates to his political activities in China between 1989 and 1994.

9 The applicant was born in China on 7 March 1972. He left China on 26 September 1994 on a Chinese passport arriving in Australia via Malaysia, Thailand and Singapore, by which time he was travelling on a false Malaysian passport. He entered Australia on a tourist visa on 29 December 1994. On 28 August 1995 he applied for protection visa.

10 The particular events upon which he relied fell within a fairly restricted compass.

11 The first matter of particular significance related to his activities as a high school student in 1989 when he claims to have participated in a student movement against the government. As the Tribunal said in its reasons:

"He claims that he began to express his political opinions at school in 1989 and that he was criticised and warned in July 1989 because of his enthusiasm for the pro-democracy movement. He had studied political ideas before 1989. In a statement accompanying his initial application, the applicant claimed that he took part in parades in 1989, that he spoke at them and that he visited other schools in the area to meet with other students supporting the reform movement. At the hearing, he said that in 1989 he had watched television reports, began to publish articles and that he set up and headed an organisation for students who supported the pro-democracy movement. The organisation was not a formal one but a group of like minded young people in his town. He said that he came to head the organisation because his views were mature, that he understood things, that people like him and because he had published articles. He said that an important activity was advocacy of the correctness of the student movement to other people.

In his initial submission to the Tribunal, the applicant claimed that he had been detained for ten days in August 1989 because he had spoken out in support of the student movement. Shortly before the hearing, the applicant's adviser provided a translation of two documents associated with what took place in 1989. The originals were submitted to the Tribunal at the hearing and, in view of the ambiguity and aspects of the wording of the translations, new translations were arranged by the Tribunal. The first document, dated 3 July 1989, was a Student Disciplinary Notice addressed to the applicant's parents. The notice indicated that due to his participation in 'social propaganda and activities' he was absent from school for 185 class hours and that his punishment was 'maintaining study at school but under surveillance'. The second document, dated 15 August 1989, is headed 'Public Security Bureau, County of Changle, Province of Fujian and Order for Punishment for Public Security Breach'. It punished the applicant to ten days in custody for disturbing the public order. At the hearing, the applicant first advised that he had been detained in his school for ten days and then said that the detention had taken place at the Public Security Bureau (PSB). He said that during detention he was criticised, threatened, questioned and warned."

12 At the Tribunal hearing under prompting from the Tribunal member the applicant referred to his political activities after 1989 and up until 1994.

"He claimed at the hearing that from 1989 until 1993, while still at school, his thoughts continued to mature and he continued his activities advocating change and criticising the government. He said that he became increasingly brave in putting his views, that he made more speeches and gathered more support amongst students. He claimed to have put counter-revolutionary slogans on walls in the town, that he wrote letters to government authorities and that he was between 1989 and 1992 warned by officers of the PSB that his activities were regarded as counter-revolutionary. He said at the hearing that the PSB had issued warnings by writing to the school complaining about what the applicant was doing. He said that he received a serious warning in 1992 that his views caused problems with the school's political education program. There was a record of this warning made at the school and he received a letter about his activities from the school. A notice of the warning was placed on a wall near the teachers' room at the school so everyone could see that he had been warned.

The applicant claimed at the hearing that after 1992 the school placed him under 'observation'. He became more and more brave in expressing his views by writing articles and pasting posters with slogans. ... His activities were regarded more seriously because he had already had a serious warning. After 1993 he began to fear that he could be arrested. He claimed at the hearing that all his activities were sufficient evidence for him to be arrested. At the hearing I asked the applicant what happened to make him fear arrest and he said then that his activities had been secret. He said that a friend had told him that his activities had been investigated. He claimed he went into hiding, fled to Guangxi where the passport was issued and left China, he claims on the same day the passport was issued."

He further claims that:

"his higher education entry mark was changed by the authorities to deny him the opportunity to undertake study as he wished. At the hearing he said that he knew that this had occurred because he had always been an outstanding student and that a sudden failure could not be explained otherwise."

Further, the applicant claimed that:

"there is a Public Security Bureau warrant for his arrest dated 5 April 1994. His adviser provided the original warrant at the hearing and a translation was provided before the hearing. A new translation was arranged and the Tribunal set out its heading which was a matter of concern. The document was headed 'Public Security Bureau, County of Changle' and arrest warrant, and stated that 'upon thorough investigation of the main criminal facts, the arrest of the applicant is hereby ordered'."

13 The applicant's adviser before the Tribunal submitted that the offence which led to this warrant should be assumed to relate to the applicant's political activities in the absence of any evidence confirming that it was not. The applicant, of course, has not been arrested. In his original claim he asserted as well that he had converted to Christianity on coming to Australia and that his opportunities to practise his religion in China would be limited. He disavowed such a conversion at the hearing and said that his then migration adviser had filled in the text of his original application.

14 The Tribunal had before it significant country information that dealt (inter alia) with the subsequent treatment of political activists who did not have a high dissident profile and significant influence when in China.

15 It also had before it advice from the Department of Foreign Affairs and Trade provided in 1995. Because of its significance I will refer to the Tribunal's treatment of it.

"Advice provided in 1995 by the Department of Foreign Affairs and Trade's post in Shanghai related to an official document (coincidentally also showing that it was issued from Changle) was that the Chinese government practice was that letterheads and seals on official documents 'should both refer to the province ... the municipality ... and then the county. Such seals and letterheads do not make such bald statements as Public Security Bureau of Changle County'. [reference omitted] This was put to the applicant at the hearing because of its importance to assessing whether the arrest warrant submitted by the applicant was genuine. The applicant's adviser cautioned against the Tribunal relying solely on the advice from the Department of Foreign Affairs and Trade. ... The Tribunal sought the assistance of the Department of Foreign Affairs and Trade in establishing whether its earlier advice remained accurate. The post was unable to obtain information to either confirm or vary its earlier advice about the form of official documents."

The Decision

16 The Tribunal's decision adverse to the applicant turns significantly on its view of his credibility. There clearly was material before it that could found that view.

17 In relation to his activities at school and up to 1994 the Tribunal found his accounts to be unconvincing and that his activities were not of a kind that could be seen by the authorities as effective opposition. Those findings are in the present circumstances not reviewable.

18 In relation to the warrant it had this to say:

"The applicant claims that it was his political activities which led to the arrest warrant which he left China to evade. The applicant's adviser has submitted that in the absence of any evidence to the contrary the criminal offence mentioned in the warrant should be taken to be an offence concerning the applicant's political activities. I do not accept that the applicant's political activities as he has described them to me are of such character which could lead to the issue of an arrest warrant. I am prepared to accept that it may be genuine but am not able to accept that it was issued against the applicant for reasons relating to the expression of his political opinion. If the warrant is genuine then the applicant may be arrested if he were to return to China and may face charges and a possible penalty, but from the evidence before me I do not consider that whatever he may face in this regard would be because of one of the reasons in the Refugee Convention."

19 The Tribunal was not satisfied concerning the alteration of his higher education entry mark. It concluded that the chance of his facing harm on return to China because of his political activities is remote and found that the real chance test had not been satisfied.

The Application

20 I have referred to the bases of the application. As particularised in the application they are:

"(1) The Tribunal relied crucially upon evidence received by it from the Department of Foreign Affairs and Trade in relation to the validity or otherwise of an arrest warrant. ...

(2) The applicant through his adviser at the Tribunal hearing cautioned against the Tribunal relying upon such advice. The Tribunal sought the assistance of the Department of Foreign Affairs and Trade in establishing whether its earlier advice remained accurate.

(3) The Department of Foreign Affairs and Trade was unable to obtain information to either confirm or vary its earlier advice about the form and hence validity of official documents tendered to the Tribunal, including the arrest warrant on which the applicant heavily relies. Thus there was no evidence before the Tribunal upon which it could form an opinion as to the validity of the arrest warrant.

(4) The Tribunal was in error in ascribing non-political significance to the arrest warrant as there was no evidence before it to support that opinion."

21 The short answer in relation to the Department of Foreign Affairs and Trade advice as it bore on the possibility invalidity of the warrant (and this was its burden) was that the Tribunal was prepared to accept that the warrant may be genuine. Accordingly, the Tribunal did not rely in a manner adverse to the applicant upon that advice.

22 Insofar as the Tribunal refused to accept the warrant related to political activities of Mr Zhuo such as would justify his being arrested, the essence of the finding relates both to its appreciation of what those activities were and to its view on his credibility. While Mr Zhuo has strongly denied that the warrant related to ordinary criminal activity, the finding made by the Tribunal was one that was open to it to make, given the material that was before it, given variations and inconsistencies in Mr Zhuo's evidence to which it referred and given its finding generally on his credibility.

23 Further and better particulars were provided of Mr Zhuo's claim almost all relating to the s 420 claim.

24 For present purposes all I need say is that none of the matters referred to are of such character as has the potential to invoke any of the grounds of review open to the applicant under the Migration Act.

25 What should be said is that insofar as the application relates to s 476(1)(d) - the improper exercise of power ground - no matter has been raised or is discernible in the material before me to suggest how that ground (as limited by s 476(3)) could be activated.

26 I would note, though, that it was suggested that the Tribunal ought to have inquired into the authenticity of the warrant but failed to do so. All I need say is to repeat that the Tribunal accepted the genuineness of the warrant. No need to inquire - let alone a duty to inquire - thus arose.

27 The essence of Mr Zhuo's application is that the Tribunal's decision was unfair, unreasonable and that his evidence to it was truthful. He emphasised these matters in some length before me in his oral presentation of his own case. In short, what he actually is seeking is in effect merits review in this Court - a review I am unable to provide as I explained to him during his address.

28 I dismiss the application.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 13 December 1999

The applicant appeared in person
Counsel for the Respondent:	Mr T Howe
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 November 1999
Date of Judgment:	26 November 1999