NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300 (27 September 2002)

Last Updated: 3 October 2002

FEDERAL COURT OF AUSTRALIA

NAAQ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 300

APPLICANT NAAQ of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 447 of 2002

SACKVILLE, ALLSOP & JACOBSON JJ

SYDNEY

27 SEPTEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 447 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAAQ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SACKVILLE, ALLSOP & JACOBSON JJ
DATE OF ORDER:	27 SEPTEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant 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	N 447 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPLICANT NAAQ OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	SACKVILLE, ALLSOP & JACOBSON JJ
DATE:	27 SEPTEMBER 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 This is an appeal from a judgment of a Judge of the Court, dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT"). The RRT had affirmed a decision of a delegate of the respondent ("the Minister") refusing to grant the appellant, a citizen of the People's Republic of China ("PRC"), a Protection (Class AZ) Visa.

2 The appellant arrived in Australia on 2 July 1998. His application for a protection visa was lodged on 28 July 1998 and refused by a delegate of the Minister on 16 May 2000. The appellant sought review of the delegate's decision in the RRT on 15 June 2000 and the RRT affirmed that decision on 20 December 2001. An application for review of the RRT's decision filed in this Court on 15 January 2002 was dismissed by the primary Judge on 1 May 2002.

BACKGROUND

3 The appellant was born on 13 August 1969 in the Liaoning Province of the PRC. He attended secondary school between 1976 and 1986 and obtained tertiary qualifications in law in 1990. He claimed that he had been prevented from working in the legal field immediately after his graduation because of his participation in the `pro-democracy' movement in 1989. Consequently, he had been employed at a plastics factory from 1990 to 1994. However, after further examinations, the appellant obtained employment in 1994 at Fushun Intermediate People's Court in 1994 as a bailiff. His duties in fulfilling this role were said to include the movement of prisoners in between the courts and jails and carrying out sentences of capital punishment on condemned persons.

4 The appellant claimed that in the course of his duties he became aware that the bodies of executed criminals were routinely dissected by PRC officials without the consent of the deceased or their families. The appellant himself claimed to have witnessed the dissection of the body of a person known to him. The appellant was aware that this person had been falsely accused. The appellant said that when ordered to carry out the execution he had fainted, but was carried to the place where the body was subsequently dissected.

5 After this experience, the appellant said that he was not able to carry out any further executions. He completed further examinations which rendered him eligible to work as a "primary judge" in the Fushun Intermediate People's Court.

6 From June 1996, the appellant conducted a personal investigation that was said to reveal, inter alia, that almost 100 per cent of the bodies of executed criminals were dissected for medical purposes without consent. The appellant presented his findings in a report, which he sent to the "Central Commission for Inspecting Discipline", the High Court of the PRC and the Liaoning Provincial Commission. The only result of this was that those three authorities established a committee to investigate the appellant's conduct. According to the appellant, the investigating committee made negative findings against him, leading to his dismissal from the Fushun Intermediate People's Court. The appellant claimed that he had been subjected to mistreatment, incarceration and torture at the hands of the authorities in consequence of his report. Nevertheless, this did not deter the appellant publishing and distributing in March 1997 a further petition concerning human rights. This led to another period of detention and torture by the Public Security Bureau which did not end until May of the same year.

7 With the assistance of a contact in the Provincial Public Security Department, the appellant left the PRC for Tonga on a Chinese passport in November of 1997. Even in Tonga the appellant maintained his fear of the PRC authorities and, for that reason, resolved to travel to Australia. As noted, he arrived in this country on 2 July 1998.

THE RRT'S REASONS

8 The RRT held a hearing on 10 April 2001, in which the appellant gave evidence. The RRT, in the course of the hearing expressed doubts about a number of aspects of the appellant's claims and about the authenticity of certain documents upon which he relied in support of his claims. The appellant provided the RRT with additional written submissions on 23 April 2001 addressing matters raised by the RRT including "the RRT's doubts about my position as a Junior Judge".

9 In its reasons, the RRT recounted in some detail the substance of its questioning of the appellant. In particular, it recounted the questions concerning the authenticity of what it described as a "census document" which the appellant said supported his claims. The RRT told the appellant that the tenor of its questions indicated that it had doubts about the authenticity of the document. Notwithstanding this, the appellant made no reference to the census document in his supplementary written submissions.

10 In its reasons, the RRT noted that the appellant claimed to be involved in pro-democracy activities in 1989. It found, however, that since he had subsequently been employed within China's legal system, he was no longer a person of interest to Chinese authorities as a result of any pro-democracy activities undertaken in 1989.

11 The RRT observed that the appellant's principal claims arose from what he said were his activities as a Judge in the Chinese legal system. The RRT accepted that prisoners had been executed in Liaoning Province by methods consistent with those referred to by the appellant and that body parts had been taken by the authorities for use in organ transplant operations.

12 The RRT said that it had strong doubts about other aspects of the appellant's evidence, in particular his claim that he was employed as a "primary judge" and his claim to have witnessed the dissection of the body of an executed person. It stated that it had found no record of the appellant's name among lists of judges appointed in Liaoning. The RRT was not satisfied that the census document was genuine. Nonetheless, the RRT accepted that the appellant had been employed in some capacity in the Fushun court system. It reached this conclusion partly because it was satisfied that the appellant's evidence about court procedures and executions came from firsthand knowledge. The RRT also further accepted that the appellant had been employed as a court bailiff and that carrying out executions had been one of his duties.

13 Despite these findings, the RRT did not accept the appellant's claim to have actually witnessed the dissection of the body of an executed criminal. It made this finding on the basis of what it said were inconsistencies in the appellant's evidence. The RRT specifically rejected the appellant's evidence that the dissection had been carried out in a mini bus. It did so on the ground that it was "not conceivable" that dissection of body organs for transportation purposes could have been carried out in conditions that were not medically sterile. The RRT also found it hard to accept that the authorities would have placed a person who had just failed to carry out an execution (as the appellant claimed) in a position where he could observe the dissection of the body of that same person.

14 The RRT then said this:

"the issues of the [appellant's] alleged observation of the dissection of the executed person's body, and of his later appointment as a primary judge are fundamental to the [appellant's] case. It was his claimed motivation arising from what he claimed he had seen, and his claimed capacity as a judge to initiate inquiries, which he said led to his production of a report to higher authorities, and all the consequent events. Having found that the [appellant] was not a witness to such a dissection, and given its lack of satisfaction about his claimed appointment as a judge, it follows that the Tribunal is not satisfied that any of the other claimed events took place.

...

It followed that the Tribunal is not satisfied that the [appellant] prepared a report on corruption, was dismissed from his job, was placed in a mental hospital, was detained in any other way [or] physically mistreated in China. Nor is it satisfied that he prepared a petition about his own human rights".

15 For these reasons, the RRT was not satisfied that the appellant had a well founded fear of persecution in the PRC.

THE PRIMARY JUDGE'S REASONS

16 The primary Judge, in an ex tempore judgment, pointed out that the appellant's application for review purported to invoke the repealed s 476 of the Migration Act 1958 (Cth) ("Migration Act"). His Honour, however, treated the application as having been brought pursuant to s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act").

17 The primary Judge observed that the jurisdiction conferred on the Court by s 39B of the Judiciary Act is "confined" by s 474 of the Migration Act which relevantly provides as follows:

"(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)."

18 His Honour considered that the appropriate course was to determine whether s 474 covered all the complaints made by the appellant about the RRT's decision. If no such claims fell outside the operation of s 474, that would be an end of the appellant's application to the Court.

19 The primary Judge took the view that the effect of s 474 of the Migration Act was that the only grounds of attack upon the decision of the RRT available to the appellant were those provided by the so-called Hickman line of authorities: that is, the cases following the analysis in R v Hickman: Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at 614-615, per Dixon J.

20 The primary Judge marked for identification a draft amended application that apparently had been prepared on behalf of the appellant by a practising barrister, although the barrister did not appear on behalf of the appellant at the hearing. The primary Judge summarised the appellant's contentions as follows:

"The first point which is argued is that the Tribunal incorrectly assumed that the [appellant] was claiming to be a primary judge in the sense of a full or senior judge, whereas in fact the [appellant] was claiming to be an assistant judge, and this confusion of the Tribunal led to it drawing wrong conclusions as to the failure by the Chinese authorities to list the [appellant] as a judge. The second point related to a finding by the Tribunal that it did not accept the [appellant's] claim to have actually witnessed the dissection of ´the body of an executed criminal, that being a very important aspect of the reasoning of the Tribunal in rejecting the [appellant's] case. The [appellant] says that there was no evidence to support that finding and that it was purely speculation on the part of the Tribunal. The third point related to the rejection by the Tribunal of the authenticity of a sealed document produced by the [appellant], as to his identity, which again was an important aspect of the Tribunal's reasoning in rejecting the [appellant's] case. The [appellant] argues that the Tribunal had no proper basis for rejecting the document as authentic or genuine and if there were doubts about it, those doubts should have been considered by experts rather than by the Tribunal, which has no expertise in that respect.

21 His Honour rejected the appellant's arguments, for these reasons:

"With one exception, which I will mention in a moment, all of these complaints relate to the reasoning of the Tribunal and to the facts that it found in the course of that reasoning. They do not fall within any of the exceptions to the operation of s 474 of the Act. The only possible exception to that conclusion was a contention (not made in either the application or the proposed amended application) that the Tribunal's assessment of the case involved a deliberate mistake or mistakes. If successful, that would fall within one of the exceptions to which I have referred as not a genuine attempt to exercise power. However, there is no material produced in support of that contention apart from the reasoning process of the Tribunal Member and the criticisms which have been made of it. It is rare indeed that a finding of lack of good faith would be made in relation to a member of this Tribunal, based purely upon the published reasons. Having read those reasons for myself, whilst I can understand that the applicant may have the complaints that he does about some of the reasons, that falls well short of establishing lack of good faith or bias."

22 For these reasons, the primary Judge dismissed the application.

REASONING

23 After the primary Judge handed down his judgment, a five member bench of this Court considered the effect of s 474(1) of the Migration Act in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. The five judgments delivered in that case have been analysed by Sackville J in Zahid v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1108. Broadly speaking, the effect of s 474(1) is to protect a decision of the RRT from challenge under s 39B(1) of the Judiciary Act provided that the three so-called Hickman conditions are satisfied and the RRT has not contravened an "inviolable statutory condition".

24 The primary Judge dealt with this case by applying s 474(1) of the Migration Act to the claims made by the appellant. It is, however, consistent with the approach taken by the Full Court in NAAV v Minister to address, independently of s 474(1), whether the RRT committed any jurisdictional error before considering the effect of s 474(1) on the RRT's decision.

25 The appellant essentially repeated to us the complaints that he had made to the primary Judge. The principal complaint was that the RRT should not have found that the census document was fabricated. But this was a factual issue for the RRT to resolve. It explained to the appellant, through its questioning, the concerns it had about the document and gave the appellant an opportunity to address those concerns. The RRT gave reasons for reaching its conclusion. Its approach discloses no error.

26 The appellant's other main complaint was that the RRT had misconstrued his evidence about his role as a judge and failed to distinguish between the position of a primary judge and that of a junior or assistant judge. As we understood the appellant's complaint, he suggested that the RRT had wrongly assumed that he was claiming to be a primary judge. But his written submissions described him as a "primary judge" and identified a certificate said to evidence his appointment to that position. The RRT was well aware that the appellant asserted at the hearing that he had been a junior judge, a stance he adopted when told that the RRT could not find any record of his appointment as a primary judge. An assessment of the credibility of the appellant in view of these claims was quintessentially a matter for the RRT.

27 As the primary Judge held, the complaints made by the appellant essentially relate to the merits of the factual findings made by the RRT. While not all decision-makers would necessarily have found, on the evidence before the RRT, that the appellant had not witnessed the dissection of the body of an executed prisoner, that is not to the point. Even if the RRT made factual errors, they do not, of themselves, constitute jurisdictional errors of the kind that would justify relief being granted to the appellant under s 39B(1) of the Judiciary Act.

28 In view of this conclusion, the appeal must fail regardless of the effect of s 474(1) of the Migration Act.

29 Nonetheless, we should record our agreement with the primary Judge's view that this is not a case where the RRT failed to comply with the so-called Hickman conditions. In particular, there is no basis for holding that the RRT did not make a bona fide attempt to discharge its statutory functions. The fact (if it be such) that the RRT's reasoning on some factual issues might be thought to be less than wholly convincing does not show that the RRT did not make an "honest attempt" to deal with the subject matter entrusted to it (R v Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, at 400, per Dixon J; NAAV v Minister, at [107], per Beaumont J) or that the RRT knowingly exercised its power for an improper purpose (Daihatsu Australia Pty Ltd v Federal Commissioner of Taxation [2001] FCA 588; (2001) 184 ALR 576, at 587, per Finn J). That being so, the effect of s 474(1) is to protect the RRT's decision from challenge on any grounds that otherwise might be available. In short, s 474(1) of the Migration Act provides a further reason why the appeal must fail.

30 The appeal must be dismissed. The appellant must pay the Minister's costs.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Sackville, Allsop & Jacobson JJ.

Associate:

Dated: 27 September 2002

The appellant was self represented.

Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 September 2002
Date of Judgment:	27 September 2002