Liu v Minister for Immigration & Multicultural Affairs [1999] FCA 969 (2 July 1999)

Last Updated: 20 July 1999

No Question of Principle

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural Affairs

[1999] FCA 969

MIGRATION - application for review of a decision of the Refugee Review Tribunal - whether Tribunal erred in applying incorrect law to the facts by drawing inferences which were not rational and reasonable - whether Tribunal erred in not providing substantial justice by drawing inferences which were not rational and reasonable

Migration Act 1958 (Cth), ss 420, 476(1)(e), 476(1)(g), 476(2)

Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, followed

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

Li v Minister for Immigration and Multicultural Affairs [1999] FCA 870, cited

JUN LIU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NG1394 of 1998

GYLES J

SYDNEY

2 JULY 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG1394 OF 1998

BETWEEN:	JUN LIU Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	GYLES J
DATE OF ORDER:	2 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

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	NG1394 OF 1998

BETWEEN:	JUN LIU Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	GYLES J
DATE:	2 JULY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 The applicant, Jun Liu, applied for review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 19 November 1998 affirming the decision of the Minister for Immigration & Multicultural Affairs not to grant a protection visa.

2 The applicant, who is a citizen of the People's Republic of China, arrived in Australia on 22 January 1997. On 4 February 1997 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs under the Migration Act 1958 ("the Act"). On 18 December 1997, a delegate of the Minister refused to grant a protection visa and the application was thereafter made to the Tribunal.

3 The criterion under the Convention which was relied upon by the applicant was that owing to a well-founded fear of being persecuted for reasons of political opinion he was outside the country of his nationality and was unable or unwilling to avail himself of the protection of that country. That was based upon two matters which I will summarise shortly and broadly without purporting to set out the arguments in full.

4 The first was that the applicant had a well-founded fear of persecution because he had offended corrupt officials and might expect retribution. The second was that he had a well-founded fear of persecution because he had been involved in organising a strike and sit-downs and other activities by workers which might be seen as anti-State. The Tribunal rejected, on the facts, each of those claims by the applicant.

5 The Tribunal simply did not accept the applicant's case of his involvement with the corrupt official and held that there was, therefore, no well-founded fear based upon that. It was also not satisfied that the applicant was involved in organising strike activity or anything like it, and it held that even if he were, the charge for which he had been imprisoned adequately explained his imprisonment.

6 The applicant, before this Court, relies upon three grounds. The first was that the Tribunal erred in applying incorrect law to the facts by drawing inferences which were not rational and reasonable. This was said to be a breach of s 476(1)(e). The problem which the applicant faces in that regard is the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543, where their Honours held that illogicality did not constitute an error of law (see paragraphs 20-26 inclusive). I have had cited to me a number of decisions of the Court which, in one way or another, examine the circumstances under which, and the principles by which, judgment of credibility by the Tribunal may be assessed. Without having closely examined all of those authorities, a number of them will, I think, require reconsideration in the light of the decision of the Full Court in Epeabaka.

7 Furthermore, since Epeabaka was decided, the High Court has handed down its decision in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 162 ALR 577. One of the findings of the High Court in that case was that it was not open to an applicant in this Court to challenge a decision of the Tribunal on the ground that the decision was so unreasonable that no reasonable Tribunal could have reached it. It seems to me that that decision will also require re-examination of a number of the cases which were cited to me in this connection.

8 Section 476(1)(e) is in the following terms:

476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
...
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
...

Uninstructed by authority, I would have thought it reasonably plain that that ground had nothing to do with the way in which facts are found. Whether that be so or not, it seems to me that the decision in Epeabaka does preclude any argument concerning lack of rationality or logic in the findings. I see no distinction between inferences or factual findings being illogical on the one hand and not rational on the other.

9 Section 476(1)(g) deals with no evidence or other material to justify the making of the decision. That head was not relied upon by the applicant before me and I do not mean to suggest that it could have been. I refer to it to illustrate that that is the part of the section which would more naturally deal with an examination of the material which was before the Tribunal.

10 Counsel for the applicant very properly referred me to the recent decision of Branson J in Li v Minister for Immigration & Multicultural Affairs [1999] FCA 870. In that decision, her Honour rejected very much the same argument as has been put to me and said that, in her view, it involved a misunderstanding of s 476(1)(e). This is not the time for an endeavour to examine or rationalise all of the decisions in this field. That will be a matter, no doubt, for the Full Court in due course.

11 I should also add that having read the decision of the Tribunal, whilst I can see bases for argument as to the process it went through in making the findings it did, I can find no proper basis for taking the view that the inferences complained of were not rationally open upon the material which was before the Tribunal. I therefore reject the applicant's first ground.

12 The second ground is that the Tribunal erred in not providing substantial justice by drawing inferences which were not rational and reasonable. This ground depends upon the availability of s 420 to an applicant in proceedings in this Court. Counsel for the applicant submitted that Eshetu had in fact a very narrow application, limited to s 476(2) of the Act. I find it difficult to construe Eshetu so narrowly. It does, I think, in the passages referred to me by counsel for the respondent and, indeed, in other passages, make clear that so far as this Court is concerned, it is bound by and limited to the matters set forth in s 476 and s 420, and no appeal can be made to s 420 in proceedings here. That of course says nothing as to the significance of s 420 for any prerogative proceedings elsewhere. I find that I am bound by Eshetu to reject ground two.

13 The applicant's third ground is that the Tribunal erred in not regarding victimisation by an official as being persecution for a Convention purpose. Counsel for the applicant conceded that this ground was only relevant if he were able to displace the factual findings by the Tribunal which denied any such victimisation. As I have rejected grounds one and two, it follows that ground three is academic and I need not deal with it.

14 I therefore dismiss the application, with the applicant to pay the respondent's costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 19 July 1999

Counsel for the Applicant:	Mr P Segal
Solicitor for the Applicant:	Coelho & Coelho Solicitors
Counsel for the Respondent:	Mr JD Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	2 July 1999
Date of Judgment:	2 July 1999