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WZAND v Minister for Immigration & Anor [2009] FMCA 26 (20 March 2009)

Last Updated: 23 March 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WZAND v MINISTER FOR IMMIGRATION & ANOR

MIGRATION – Protection visa application – Chinese applicant – whether a hotel manager or farmer whose land was confiscated – whether relevant considerations not taken into account – whether irrelevant consideration taken into account – whether failed to consider evidence or failed to consider relevant consideration.

MIGRATION – Protection visa application – alleged failure to put applicant on notice that documents not considered genuine – alleged denial of procedural fairness – whether procedural fairness in conduct of the hearing a factor giving rise to jurisdictional error – whether reviewable error.


Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1512; (1994) 35 ALD 225
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214; [2006] FCAFC 61
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506; [2003] HCA 2
SZCIJ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 62
SZCVB v Minister for Immigration and Multicultural Affairs [2007] FCA 33
SZINP v Minister for Immigration and Citizenship [2007] FCA 1747
VXDC v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 146 FCR 561; [2005] FCA 1388
WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; [2003] FCAFC 171
WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188
WZANE v Minister for Immigration & Anor [2008] FMCA 1520
Xie v Minister for Immigration and Ethnic Affairs (Unreported, French J, WAG 125 of 1994, 9 August 1995)
Applicant:
WZAND

First Respondent:
MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:
REFUGEE REVIEW TRIBUNAL

File Number:
PEG 116 of 2008

Judgment of:
Lucev FM

Hearing date:
14 November 2008

Date of Last Submission:
14 November 2008

Delivered at:
Perth

Delivered on:
20 March 2009

REPRESENTATION

Counsel for the Applicant:
Mr M.D Howard

Counsel for the Respondents:
Mr P. Macliver

Solicitors for the Respondents:
Australian Government Solicitor

ORDERS

(1) That the application be dismissed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PERTH

PEG 116 of 2008

WZAND

Applicant


And


MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. The applicant filed an application in this Court on 24 July 2008 seeking review of the Refugee Review Tribunal’s decision[1] to affirm the delegate’s decision not to grant a protection visa to the applicant.

Background information

  1. The applicant is a national of the People’s Republic of China,[2] aged 43.[3] The applicant arrived in Australia from China on 26 October 2007 on a tourism visa,[4] with a Chinese passport issued in March 2006.[5]
  2. The applicant applied for a protection visa on 9 November 2007.[6] In the applicant’s statutory declaration provided in support of the Protection Visa Application he claimed the following:
    1. in 1997 most of the cultivated land in his hometown was sold by the local government to a Chinese businessman living in Indonesia and the farmers were given inadequate compensation;[7]
    2. in 2002 the government confiscated most of the land on the hills for building hotels and resorts, but again the compensation was limited;[8]
    1. the farmers have been unable to make a living on the farmland since 2002 because all the land the farmers had left was some “miscellaneous land” which was normally land in very poor condition;[9]
    1. like many farmers, the applicant had to work as a construction labourer not only in his own province, but also in other provinces;[10]
    2. in February 2007 the local government told the farmers that the “miscellaneous land” was confiscated, and was given by the “corrupt government officials” to the same Chinese businessman living in Indonesia, and the farmers were given no compensation;[11]
    3. when the farmers questioned the local government about compensation, the local government said that no compensation was given for losing “miscellaneous land”;[12]
    4. local farmers approached relevant local and province government and news media (such as the local TV station, radio stations and

      newspapers) in order to get support from the public;[13]
    5. the applicant was one of three major assistants to a senior local farmer who was organising protests against the confiscation of land;[14]
    6. during a meeting on 30 April 2007 in relation to organising a protest on “International Labourers Day” on 1 May 2007,[15] many police came to the home where the meeting was being held, and forced the applicant and other organisers to lie on the ground while they searched the home and found materials relating to the protests, whereupon the applicant and other organisers were taken to the Public Security Bureau[16] in their town;[17]
    7. the applicant and other organisers were:
      1. separately interrogated by the police continually for more than 10 hours;
      2. tied to a chair and tortured by the police with electrical sticks; and
      3. accused of planning and organising an anti-government protest;[18]
    8. the police tried to force the organisers to confess their actions as “anti-government” but the organisers refused to accept that the activities were “anti-government” and as a result were further punished physically and mentally;[19]
    1. the applicant and two other organisers were detained for two months and were forced to:
      1. “accept” the allegations made by the police;
      2. sign confessions prepared by the police;
      3. promise not to engage in further activities against the government; and
      4. pay RMB 20,000 yuan as a penalty;[20]
    1. the senior local farmer, as key organiser, was sent to a labour camp;[21]
    2. after the applicant was released from prison, he was continually in trouble with the PSB, was often forced to report his “anti-government” ideologies to the local police station and sometimes the police came to his home to investigate him;[22]
    3. the applicant had difficulty finding a job because labour contractors did not want to have any trouble with the PSB;[23]
    4. it has been impossible for the applicant to have any chance to survive in his home country since then, and he asked his friends to assist him going overseas;[24]
    5. people helped him to avoid police monitoring and to bypass political examination at the airport and that is how he was able to leave China;[25]
    6. of the other organisers who were imprisoned with the applicant, one is suffering from a serious mental illness and another is missing: some say he was arrested again and others say he has escaped overseas;[26] and
    7. the applicant has to seek protection in Australia as he would be persecuted if he returns to China.[27]

Delegate’s decision

  1. A delegate of the Minister refused to grant the applicant a protection visa on 7 February 2008 for reasons which including the following:
    1. the lack of detail in the applicant’s claims about his mistreatment by the authorities;
    2. the failure to explain how the applicant raised the funds to pay the prison fine, support his family and travel to Australia; and
    1. the lack of documentary evidence in relation to his claims.[28]

Application for review

  1. The applicant applied for review of the delegate’s decision on 7 March 2008.[29]

Tribunal hearing

  1. The Tribunal hearing took place on 8 May 2008, 11 June 2008 (when it was simply adjourned to allow the applicant to listen to the CDs of the previous hearing) and 16 June 2008.
  2. The applicant attended and gave oral evidence at the Tribunal hearing on 8 May 2008 and also provided the following documentation:
    1. a receipt for RMB 20,000 which is entitled “[named] Province Administrative Entity Payment Invoice” and also states at the bottom: “Received by: [named] Municipality Police Security Bureau (sealed – Special Seal for Payment Receipt)”;[30]
    2. a petition (dated 25 April 2007) signed by the applicant and other villagers protesting to the government about the confiscation of land without adequate compensation;[31] and
    1. photographs of agricultural land in the process of being cleared.
  3. At the Tribunal hearing on 8 May 2008 the applicant was allowed to tell the Tribunal why it was that he sought a protection visa. The Tribunal member asked numerous, and appropriate, questions to elicit information from the applicant.[32]
  4. The applicant was asked about the Petition by the Tribunal member.[33] The Tribunal member asked a series of questions about what happened to the Petition and why it was necessary to organise a petition in April 2007 when legislated property rights were coming into effect in October 2007. Whilst the Tribunal member did not, at this point, question outright the existence of the Petition, the Court considers that the Tribunal hearing transcript evinces some small degree of scepticism by the Tribunal, at this stage, about the existence of the Petition.
  5. The Tribunal member also questioned the applicant about the payment of the 20,000 RMB fine, as follows:
  6. The applicant was also questioned by the Tribunal member concerning his employment, and the fact that his tourism visa application indicated that he was employed as a hotel manager, as well as questioning him concerning the existence of various documents attached to the tourism visa application such as bank records and a drivers’ licence indicating ownership of a Peugeot 307 vehicle. The applicant denied that the records were his, and told the Tribunal member that he knew “nothing about these documents” and that they were “fake”.[35] A little later the applicant again asserted that the tourism visa application and the documents were fakes, and that he had no idea about any of the documentation, it having been prepared for him by a friend, who would have found it necessary to bribe somebody in order to prepare the documents.[36]
  7. The Tribunal member indicated to the applicant that those issues concerning the preparation of the tourism visa and documents caused her to doubt his story.[37]
  8. The Tribunal member also put to the applicant that his evidence that day was “really quite different than the statement that you provided”,[38] which is presumably a reference to the applicant’s statutory declaration attached to his Protection Visa Application. In that regard, the applicant was then specifically questioned by the Tribunal member about the Petition as follows:
  9. The Tribunal member eventually said to the applicant that:

and further that:

“Even if you did pay to – even if somebody did get you some fake documents, it doesn’t necessarily mean that I believe the rest of your story.”[41]
  1. The Tribunal member then returned to the question of the payment of the 20,000 RMB, as follows:

The applicant did not object or raise any question concerning the reference to it being the “province administrative entity” which had issued the payment invoice.

  1. The Tribunal member then returned to the question of the applicant’s employment as a hotel manager and indicated that the Department of Immigration and Citizenship[43] had “confirmed” the applicant’s employment as a hotel manager, and in response to the applicant’s assertion that he did not understand that, the Tribunal member said:
  2. The applicant responded that “...everything was done by my friend. I did not do anything in regarding of that.”[45]
  3. The material from the Department that was before the Tribunal member related to six applicants for tourism visas, of which the applicant was one. The applicant was applicant six in the list. Applicant five was the person whom the applicant asserted completed all of the applicant’s documentation for the tourism visa application.
  4. The information concerning the applicant, and applicant five, prepared by the Department is in the following terms:
  5. Information in similar format is contained in the Department’s material for applicants one through to four, with applicants one, three and four being in a very similar format to the information for applicant five, while the information for applicant two is in similar format to the information for the applicant (who was applicant six of the visa applicants).
  6. The information on the six visitors tourism visa applicants was prepared by Ms Xu from the Department in China and passed on to a Mr Brown who noted that “employment have been confirmed” for all of the tourism visa applicants.[47] Mr Brown approved single two week tourism visas on the basis of the information provided by Ms Xu.[48]
  7. The 8 May 2008 Tribunal hearing was adjourned, and the applicant told he would be given a further opportunity to comment on these matters in a further hearing.[49] That further hearing took place on 16 June 2008, following the adjournment of the hearing scheduled for 11 June 2008.
  8. At the resumed Tribunal hearing on 16 June 2008, the Tribunal member raised the various issues with which she was concerned, including (but not limited to):
    1. the applicant’s employment or occupational status, that is whether he was a farmer or the vice-general manager of a hotel;
    2. the payment of the 20,000 RMB in order to be released from prison, and that it was a significant amount of money for someone on a very low income reliant on a very small amount of land, if the applicant was a farmer; and
    1. that the totality of the issues might lead the Tribunal member to find that the applicant had not been truthful, that he had not been a farmer in China, and that he had not been subject to persecution, which would mean that the Tribunal would not accept that he had organised protests or petitions, was detained or imprisoned, or was associated with anyone who was detained or imprisoned for organising protests.[50]
  9. The applicant was allowed an opportunity to respond to those issues, and the hearing concluded with the following exchange:

Tribunal decision

  1. The Tribunal affirmed the delegate’s decision to refuse to grant the applicant a protection visa on the basis that the applicant had not given a truthful account of his experiences in China[52] and thus did not have a well-founded fear of persecution.[53]
  2. The issue identified in the Tribunal Decision was whether under s.65 of the Migration Act the decision maker was satisfied that the prescribed criteria for the grant of a visa had been met.[54] The Tribunal referred to the relevant criterion under s.36(2) of the Migration Act for the grant of a class XA protection visa as being whether the Minister (the first respondent) was satisfied that Australia had protection obligations towards the applicant, and the further criteria for the grant of a protection visa as set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994 (Cth).[55] The Tribunal identified the relevant elements of the Convention definition of “refugee”[56] and identified that there was a question as to whether the applicant had a well-founded fear of persecution.[57]

Evidence of applicant set out in Tribunal Decision

  1. The Tribunal set out most of the statutory declaration attached to the Protection Visa Application,[58] which is summarised above.[59]
  2. The Tribunal Decision refers to the applicant’s appearance before the Tribunal on 8 May 2008 and his giving detailed evidence concerning:
    1. proposals for the confiscation of farmers’ land[60] by the government in his village;[61]
    2. attempts on 25 and 28 February 2007 by villagers to stop the commencement of construction on the confiscated land;[62]
    1. meetings between local villagers and government and Communist Party officials concerning the confiscated land from February 2007 through to early April 2007;[63]
    1. an experienced elder becoming involved around this time, and becoming the leader of the village group protesting concerning the confiscated land;[64]
    2. the farmers being expelled from the confiscated land by city rangers and police on 2 April 2007;[65]
    3. the applicant and others being bussed away from the Land and Resource Department by the police on 3 April 2007;[66]
    4. the Petition and proposed 1 May Protest being organised and the applicant going to the experienced elder’s house on 30 April 2007 to discuss planning, where they were surrounded by police and told to lie on the ground;[67]
    5. the police taking banners and pamphlets which had been prepared by the applicant and others to the police station, together with those who were in the experienced elder’s house, including the applicant;[68]
    6. the treatment of the applicant when detained by the police, including:
      1. locking the applicant to a chair;
      2. telling the applicant to confess his anti-government activities;
      3. kicking and beating the applicant (and others) if there was no confession; and
      4. hanging the applicant from a window grille, leaving the applicant with a finger injury (and the Tribunal observed the applicant’s “finger which appeared to be misshapen”).[69]
    7. the applicant’s detention for a period of two months, and the securing of his release by payment of RMB 20,000 yuan;[70]
    8. the applicant’s borrowing and using savings to pay the penalty of RMB 20,000 yuan;[71]
    1. the applicant’s being “under surveillance every day ... by the police and the village committee” following his release;[72]
    1. arrangements for his tourism visa and his departure from China, and:
      1. telling the Tribunal that he knew nothing about it, and that his “friend” had arranged it all for him; and
      2. his denial that the signature on the tourism visa application was his signature;[73]
    2. the applicant’s knowing nothing of information provided about him being employed by a hotel, or the records of the Department indicating that inquiries had confirmed his employment at a hotel in China, and reiterating that the tourism visa application was all the doing of his friend, and he knew nothing about it;[74]
    3. obtaining a passport in March 2006, and why someone who claimed to be an “impoverished farmer” would do so, to which the applicant responded by saying that passports were cheap then, and “everyone decided that they would get one in case they wanted to leave China;”[75]
  3. The Tribunal Decision also sets out that the applicant was asked about independent country evidence which the Tribunal said indicated that it would be very difficult for a person such as him to leave China, to which the applicant again responded by saying his friend had organised everything.[76]
  4. The Tribunal Decision also sets out that the applicant was asked about matters mentioned in his statutory declaration but not mentioned at hearing, such as:
    1. his work as a construction labourer; and
    2. his having contacted various media organisations in relation to village protests,[77]

to which the applicant responded that he had only worked as a construction labourer occasionally, and that he did not think that his contact with the media was that significant.

  1. The Tribunal Decision also sets out that the applicant was asked about matters not mentioned in his statutory declaration but mentioned at hearing such as:
    1. the organising of the Petition; and
    2. his being dragged onto a bus and taken away from the Land and Resources Department,[78]

which the Tribunal thought were significant factors that ought to have been mentioned in the statutory declaration, but which the applicant said he did not think were significant, and that:

  1. it was not hard to organise a petition;[79] and
  1. being dragged onto a bus and taken away was an every day occurrence in China.[80]
  1. The Tribunal Decision then sets out that at the end of the hearing on 8 May 2008, and at a further hearing on 16 June 2008, the Tribunal told the applicant that it may find that the applicant:
    1. had not provided credible evidence to the Tribunal, and
    2. was not:
      1. a farmer in China;
      2. subject to land confiscation;
      3. involved in protests against land confiscation; and
      4. imprisoned or harmed,

and, therefore, did not have a well-founded fear of persecution in China.[81]

  1. The Tribunal decision indicated that the applicant responded by saying that he was nervous at the hearing, and that this affected his ability to provide evidence, and that any discrepancies between his oral and written evidence were due to his:
    1. sometimes not understanding the questions; and
    2. not being able to fully articulate his answers due to his being “uneducated”.[82]
  2. The Tribunal Decision notes that the applicant says that:
    1. in his statutory declaration attached to his Protection Visa Application he did not mention everything that happened to him, but rather just the principal sequence of events;[83] and
    2. if he was a hotel manager with money and a car there would have been no need for him to leave China.[84]
  3. The Tribunal went on to consider independent country evidence relating to land confiscation. That evidence confirmed that:
    1. there had been significant land confiscation in recent years in China;[85]
    2. compensation was paid to “peasants” when land was seized, sometimes at about one-tenth of its market value, with the “peasants” receiving less than that after “[v]illage administrations take a cut”;[86] and
    1. more than 40 million people had been displaced by rural land development in the last 20 years, and that Chinese authorities “view landless, unemployed peasants as a threat to social stability.”[87]
  4. Independent country evidence on a person’s ability to depart from China was also considered by the Tribunal, and the evidence cited indicated that:
    1. it is likely that people under investigation, but for whom a formal arrest warrant is yet to be issued, will be on alert lists from the PSB, with the alert lists connected to passports and operating at railway stations, airports and border crossings;[88] and
    2. the following groups of people are not to be given approval to leave China:
      1. defendants in criminal cases or criminal suspects confirmed by a public security organisation, peoples procuratorate or a peoples court;
      2. persons who, as notified by a peoples court, are to be denied exit owing to involvement in unresolved civil cases;
      3. convicted persons serving their sentences;
      4. persons undergoing rehabilitation through labour; and
      5. persons whose exit from the country will, in the opinion of the competent department of the State Council, be harmful to state security or cause a major loss to national interests.

Persons within those five groups are not allowed to obtain passports.[89]

Tribunal’s findings and reasons

  1. The Tribunal set out its findings and reasons in detail.[90]
  2. The Tribunal did not accept as factual claims made by the applicant where:
    1. he failed to mention in his evidence at the Tribunal hearing matters which he had included in his statutory declaration; and
    2. he mentioned at the Tribunal hearing matters which he had not included in his statutory declaration.
  3. Consequently, the Tribunal did not accept evidence from the applicant that:
    1. he had worked as a labourer in different provinces as a result of the confiscation of land and his family’s subsequent impecunious financial situation;[91]
    2. he did not contact local news media organisations to publicise the confiscation of land;[92]
  4. Of the applicant’s claim that he had organized the Petition, and in relation to the incident involving the bus and the protesters, the Tribunal said as follows:
  5. With respect to the applicant’s acquisition of a passport the Tribunal found that it was not credible that an impoverished farmer would acquire a passport in March 2006 several months prior to allegedly experiencing harm at the hands of the Chinese authorities. The Tribunal considered that the acquisition of a passport in March 2006 was indicative of the applicant’s desire to leave China for reasons unconnected with his claims of a well-founded fear of persecution and harm.[94]
  6. With respect to the applicant’s tourism visa application the Tribunal said that it raised “further serious credibility issues.”[95] The Tribunal went on as follows:
  7. Having regard to the totality of its concerns the Tribunal concluded that “the applicant has not given a truthful account of his experiences in China.”[97] The Tribunal did not accept that he was a farmer subject to land confiscation, or that he organised petitions or protests against land confiscation. The Tribunal held that it followed therefore that it did “not accept that the petition he provided to the Tribunal is a genuine document and does not accept the receipt for 20,000 RMB provided to the Tribunal related to the applicant’s claimed detention for his participation or organizational role in protests. It follows that the Tribunal does not accept that the applicant was detained and imprisoned and that he was subjected to harm during his imprisonment.”[98]
  8. Ultimately, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention, and was therefore not satisfied that the criterion set out in s.36(2)(a) of the Migration Act for the issuance of a protection visa had been satisfied by the applicant. The Tribunal therefore affirmed the decision of the delegate not to grant a protection visa.[99]

Grounds of the application

  1. The amended grounds of the application provide as follows:

What constitutes jurisdictional error

  1. A decision of the Tribunal is only liable to be set aside upon review if it involves jurisdictional error.[100] An error by the Tribunal will only constitute jurisdictional error if the Tribunal:
    1. identifies a wrong issue;
    2. asks the wrong question;
    1. ignores relevant material; or
    1. relies on irrelevant material,

in such a way that the Tribunal’s exercise or purported exercise of power is thereby affected resulting in a decision exceeding or failing to exercise the authority or powers given under the relevant statute.[101]

  1. In this matter the applicant only relies on two asserted categories of jurisdictional error:
    1. the relevant/irrelevant materials category; and
    2. a denial of procedural fairness category.
  2. Each of the asserted categories is considered below in conjunction with the relevant grounds of the application.

Relevant and irrelevant materials

Law

  1. In Minister for Aboriginal Affairs v Peko-Wallsend Limited[102] the relevant Minister in deciding whether land should be granted to a land trust to be held for the benefit of aboriginals, was required to be satisfied that that land should be granted, and was bound to take into account certain matters including the detriment to persons or communities if the land claim were acceded to either in whole or in part. In circumstances where the Minister in making a determination of satisfaction had not had materials brought to his attention which revealed that certain comments in the Land Rights Commissioner’s report (which the Minister was obliged to consider) were based on an erroneous view of the facts the High Court held that failure to consider that material was to ignore relevant considerations.
  2. The leading judgment in Peko-Wallsend was delivered by Mason J (with whom Gibbs CJ and Dawson J agreed). Mason J took the following propositions to be established:
    1. that the “ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he is bound to take into account in making that decision”[103] Mason J noted “that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’”;[104]
    2. that if the relevant factors are not expressly stated they must be determined by implication from the subject matter, scope and purpose of the relevant legislation, and where the discretion is unconfined the factors that may be taken into account and the exercise of the discretion are similarly unconfined, except that they are impliedly limited by the subject matter, scope and purpose of the relevant legislation;[105]
    1. a factor may be so insignificant that it could not have materially affected the decision, and therefore failure to take it into account will not justify setting aside the impugned decision and ordering that the discretion be re-exercised according to law;[106]
    1. that a court reviewing the exercise of an administrative discretion must constantly bear in mind its limited role, and in particular that its function is not to substitute its own decision for that of the administrator exercising discretion vested in the administrator by the legislature.[107] Generally, therefore, it is not for a court reviewing the administrative decision maker’s decision to determine appropriate weight to be given to matters required to be taken into account in exercising the statutory power, although there may be some circumstances where an administrative decision may be set aside where the decision maker has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a relevant factor of no great importance.[108] However, in those circumstances, the preferred ground is that the decision is manifestly unreasonable.[109] Hence, “a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on it merits”;[110] and
    2. due allowance must be made for the fact that an administrative decision is being made by a Minister of the Crown who may be required to take into account broader policy considerations in the exercise of a ministerial discretion.[111]
  3. Mason J went on to consider the question of whether the Minister was bound to take into account submissions made to him which corrected, updated or elucidated the Land Rights Commissioner’s comments on detriment. Mason J observed as follows:
  4. Gibbs CJ observed that the Minister’s duty was:
  5. In relation to departmental material upon which the Minister was able to rely, Gibbs CJ observed as follows:
  6. Because the departmental summary prepared for the Minister in Peko-Wallsend made no mention of a misapprehension by the Land Rights Commissioner Gibbs CJ was of the view that the Minister did not consider those facts and therefore the Minister’s power was not validly exercised.[115]
  7. Brennan J made the following relevant observation:
  8. Of the requirement of a department to bring the Minister’s attention to salient facts Brennan J said as follows:
  9. In Li Shi Ping & Anor v Minister for Immigration, Local Government and Ethnic Affairs[118] the Full Court of the Federal Court drew attention to the necessity not to confuse “taking into account relevant considerations with taking into account particular pieces of evidence.”[119] The Full Court went on to observe that the relevant consideration to be taken into account was what might happen to the appellants if they were returned to China.[120] The distinction highlighted by Li Shi Ping was referred to in Xie v The Minister for Immigration and Ethnic Affairs[121] where the Federal Court identified the primary relevant considerations as being “those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.”[122]

Consideration

  1. Under ground 1 the applicant alleges that the Tribunal took into account an irrelevant consideration, being that the Department had conducted checks in China and verified that the applicant was employed as a hotel manager, when, in fact, the Department had not done so. Because of the centrality of the applicant’s employment or occupational status, that is, whether he was a hotel manager or a farmer, if there was evidence that the Department had not in fact checked the applicant’s alleged employment or status as a hotel manager then the Tribunal would have taken into account an irrelevant consideration.[123]
  2. The applicant asserts that the Department did not carry out employment checks in China. This assertion is made on the basis that the Department’s file notes[124] do not indicate that a telephone call was made to the applicant to verify his employment, whereas there was a telephone call to verify employment for four of the other five persons granted a tourism visa and who were travelling with the same group as the applicant.
  3. The employment checks were performed by Ms Xu for the Department. For the applicant an “employment letter” was provided.[125] That employment letter certified that the applicant had been employed as Vice-General Manager of a hotel for 10 years. Other documents were also provided including marriage, banking and property documents. The bank documents showed significant sums of money flowing through the bank account. Ms Xu’s note concerning the applicant positively asserts that he was “working in” the named hotel.
  4. When completed the employment checks were then sent to a Mr Brown who noted that all of the tourism visa applicants “employment have (sic) been confirmed”.[126]
  5. Whilst the evidence is scant, as it often is in migration matters, there is nothing on the face of the record, or otherwise in evidence before the Tribunal, which indicates that the applicant’s employment was not confirmed by the Department. Indeed, the Department records indicate otherwise.
  6. The Department having prepared the material concerning employment, the Tribunal, as decision maker, was entitled to take that material into account.[127]
  7. Given that the Tribunal was entitled to take that material into account, and did so, and that nothing in the record indicates that the applicant’s employment was not confirmed by the Department, this ground of review must fail.
  8. Further, under review ground 1 the applicant asserts that the Tribunal took into account an irrelevant consideration being that the applicant himself had made the tourism visa application when, the applicant says, that was not the case.
  9. Who made the tourism visa application was a relevant consideration. The Tribunal noted that, on its face, the tourism visa application was one purportedly made by the applicant, in which he had made the representation that he was employed, as a hotel manager, and in respect of which he provided supporting documentation.
  10. The applicant says that the Tribunal proceeded on the basis or assumption that the tourism visa application was signed by the applicant, and was an irrelevant consideration. The applicant told the Tribunal that he did not sign the tourism visa application, and that he knew nothing of the other documents.
  11. In the Tribunal Decision the Tribunal specifically considered these claims by the applicant, and, based upon the totality of its concerns about the evidence of the applicant, refused to accept the applicant’s claims. The findings that the applicant was the author of the tourism visa application and that he was not a credible witness, were matters for the Tribunal. They were findings which were open on the evidence available to the Tribunal. The applicant’s submission, at its core, amounts to little more than a complaint that the Tribunal drew conclusions unfavourable to the applicant. For the Court to intercede on this point would involve it in impermissible merits review.
  12. Under review ground 2 the applicant asserts that the Tribunal took into account an irrelevant consideration namely its misstatement that the Receipt had been given by the “[named] Province Administrative Entity”, and failed to take into account a relevant consideration that it was in fact given by the “[named] “Police Security Bureau”.
  13. The asserted irrelevant consideration is an error of fact by the Tribunal. It is not an error of law, it does not go to jurisdiction, and it is not a jurisdictional error. Even if it were the taking into account of an irrelevant consideration it is an irrelevant consideration which, in the circumstances, is not sufficiently significant to have materially affected the Tribunal’s decision making consideration.[128] An examination of the Tribunal Decision and the Tribunal hearing transcript reveal that, whatever description the Tribunal accorded to the Receipt, it understood the contention made by the applicant to be that he paid a penalty to a government authority to secure his release from detention.
  14. Further, the Court considers that the characterisation of the alleged misdescription of the government authority involves a confusion between taking into account relevant considerations and taking into account a particular piece of evidence,[129] and what the applicant complains of is the latter not the former, and therefore there was, in any event, no failure to take into account a relevant consideration.
  15. The Tribunal did not take into account an irrelevant consideration and this part of the application fails.

Procedural fairness

Law

  1. The applicant relies upon judgments of the Federal Court in WACO v Minister for Immigration and Multicultural and Indigenous Affairs[130] and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs[131] in support of his argument that he was denied procedural fairness in certain respects.
  2. In WACO two letters corroborative of a critical element of an applicant’s claim were found by the Tribunal to be false documents. At no time however did the Tribunal give any indication to the applicant that it doubted the genuineness of the letters and the applicant was not invited to comment on the authenticity of the documents. The Full Court of the Federal Court concluded that it was “inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.”[132]
  3. In WAEJ, handed down on the same day as WACO by a slightly differently constituted Full Court, the Full Court of the Federal Court said that where the Tribunal did not believe a document to be authentic the Tribunal should advise an applicant accordingly and allow inquiries to be made to enable an applicant to produce further material to the Tribunal to satisfy itself in respect of the document.[133]
  4. WACO and WAEJ were decided on the basis of the provisions of the Migration Act prior to the present s.422B being introduced by the Migration Legislation Amendment (Procedural Fairness) Act 2002 (Cth).[134] There has been a subsequent amendment to s.422B in 2007, but that amendment is not relevant for present purposes, adding as it did sub-s.(3) to s.422B and providing that the Tribunal must act in a way that is fair and just in applying the Division, being Division 4 of Part 7 of the Migration Act.[135] The effect of the Migration Amendment Act 2002 (Cth) was outlined by the Federal Court in VXDC v Minister for Immigration and Multicultural and Indigenous Affairs.[136] Having reviewed the legislative and case history the Federal Court found as follows:
  5. In Minister for Immigration and Multicultural and Indigenous Affairs v Lat[138] the Full Court of the Federal Court dealt with the meaning of s.51A(1) of the Migration Act which, save for the use of the word “Subdivision” in place of “Division” is in the same terms as s.422B(1) which provides as follows:
  6. In Lat the Full Court of the Federal Court said as follows:
  7. In SZCIJ v Minister for Immigration and Multicultural Affairs[140] the Full Court of the Federal Court (constituted by the same judges as the Full Court in Lat and in reasons handed down on the same day) found that the common law natural justice hearing rule did not apply to hearings by the Tribunal in protection visa applications, and that s.51A was equivalent to s.422B of the Migration Act.[141]
  8. In SZCVB v Minister for Immigration and Multicultural Affairs the Federal Court found it unnecessary to consider the findings made in WACO in the light of the operation of s.422B of the Migration Act.[142]
  9. In circumstances where a document purporting to be a copy of an information report referring to a crime by the applicant allegedly occurring after he had left Pakistan, and which the Tribunal had concluded was not a reliable source of evidence, the Federal Court found no absence of procedural fairness where it was “clear from the Tribunal decision that the Tribunal had questioned the appellant in relation to the document and expressed doubt at the hearing as to its provenance.”[143]

Consideration

  1. Under review ground 1 the applicant complains that the genuineness of the Petition was never put to him, and that he was therefore not accorded procedural fairness, and consequently, that the Tribunal’s manner of dealing with the Petition meant that it failed to take into account a relevant consideration.
  2. The Petition was before the Tribunal at the initial hearing on 8 May 2008. The Tribunal at that time raised concerns about it not being mentioned in the applicant’s statutory declaration, and ultimately told the applicant that he may not be considered a credible witness and that the Tribunal may not believe his claims or story.[144] On 16 June 2008 the Tribunal again raised the issue of whether the applicant was a hotel manager or a farmer, and indicated that the totality of the issues may lead the Tribunal to believe that the applicant had not been truthful and was not a farmer at all.[145] It can reasonably be inferred from what the Tribunal said to the applicant that it had doubts about the genuineness of the Petition. If it doubted that the applicant was a farmer, doubted the elements of his story, and doubted his credibility, reason dictates that it was doubting the genuineness of the Petition, and that this would have been apparent to the applicant.
  3. In any event, the genuineness of the Petition was expressly raised by the Tribunal toward the end of the 16 June 2008 hearing. The Tribunal member expressly indicated that both the Petition and the Receipt may not be accepted as being genuine. There was no protestation from the applicant that the Petition was genuine, but rather that if the Tribunal made the decision in the manner foreshadowed, there would be dire consequences for him if he had to return to China. Even after the hearing was completed and prior to the handing down of the decision on 1 July 2008 no protestation that the Petition was genuine was forthcoming from the applicant.
  4. In the above circumstances, the genuineness of the Petition was put in issue in the proceedings before the Tribunal. This claim is simply not made out on the facts.[146] It must therefore fail.
  5. Under review ground 2, the applicant asserts that the Tribunal denied the applicant procedural fairness by not putting to the applicant that the Receipt was not genuine, and further, that by dealing with the Receipt in the way that it did, the Tribunal failed to take into account a relevant consideration.
  6. The Receipt was before the Tribunal on 8 May 2008. At that time the Tribunal raised concerns about how the applicant got out of detention and also how he paid such a significant fine of 20,000 RMB. The Tribunal member was clearly finding it, in her words “very difficult to believe” that the applicant, who claimed to be an impoverished farmer would, again in the Tribunal member’s words “be able to get together that sort of money.”[147] As indicated above in relation to the Petition, the Tribunal member told the applicant that he may not be considered to be a credible witness, and that the Tribunal may not believe his claims or story.[148] On 16 June 2008 the Tribunal again raised the issue of the payment of the 20,000 RMB and that for someone on a very low income, reliant on a very small amount of land, it was a very significant amount of money to raise in order to be released from prison. The Tribunal member indicated that the totality of those issues might mean that the Tribunal would not accept that the applicant was detained or imprisoned or associated with anyone who was detained or imprisoned. In circumstances where the Tribunal questioned whether or not the applicant was in a position to pay the money which allegedly resulted in the issuance of the Receipt, and was questioning both the applicant’s overall claims (including the claim to have been detained) and credibility, it can, in the Court’s view, be reasonably inferred that the Tribunal had doubts about the genuineness of the Receipt, or, at least, whether the Receipt was genuinely related to monies paid by the applicant to procure his release from detention.
  7. In any event, the genuineness of the Receipt was expressly raised by the Tribunal toward the end of the 16 June 2008 hearing. The Tribunal member expressly indicated that both the Petition and the Receipt may not be accepted as being genuine. As with the Petition there was no protestation of genuineness concerning the Receipt when the matter was raised by the Tribunal or prior to the handing down of the Tribunal Decision.
  8. In the above circumstances, the genuineness of the Receipt, or, at least, whether the Receipt was genuinely related to monies paid by the applicant to procure his release from detention, was put in issue in the proceedings before the Tribunal. This claim is simply not made out on the facts.[149] It must therefore fail.
  9. Finally, the Court is of the view that given the terms of s.422B of the Migration Act, the claim would not have been able to succeed even if the factual position was as asserted by the applicant.

Conclusions

  1. The Court considers that the applicant has failed to establish that the Tribunal committed any jurisdictional error in this matter. In particular, the Court does not consider that the Tribunal had regard to any irrelevant considerations or failed to have regard to relevant considerations. Insofar as it was alleged that a denial of procedural fairness gave rise to jurisdictional error, those claims have not been made out on the facts, but, in any event, would, in the Court’s view, fail by reason of s.422B of the Migration Act. There will therefore be an order dismissing the application.
  2. The Court will hear the parties as to costs.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of Lucev FM


Associate: Sandra Gough


Date: 20 March 2009

[1] “Tribunal Decision”, at Court Book (“CB”) 210-224.
[2] CB 2.
[3] CB 1.
[4] CB 66-67 and 83.
[5] CB 82.
[6] “Protection Visa Application”, at CB 54-81.
[7] CB 79.
[8] CB 79 – “just ... 8,000 yuan as compensation.”
[9] CB 79.
[10] CB 79.
[11] CB 79.
[12] CB 80.
[13] CB 80.
[14] CB 80.
[15] “the May 1 Protest”.
[16] “PSB”.
[17] CB 80.
[18] CB 80
[19] CB 80.
[20] CB 80.
[21] CB 80-81.
[22] CB 81.
[23] CB 81.
[24] CB 81.
[25] CB 81.
[26] CB 81.
[27] CB 81.
[28] CB 95-101.
[29] CB 106-109.
[30] “Receipt”, at CB 136-137.
[31] “Petition” at CB 138-139.
[32] See CB 144-170, Tribunal hearing transcript 8 May 2008 at pages 5-31.
[33] CB 163-164, Tribunal hearing transcript 8 May 2008 at pages 24-25.
[34] CB 165-166, Tribunal hearing transcript 8 May 2008 at pages 26-27.
[35] CB 169-170, Tribunal hearing transcript 8 May 2008 at pages 30-31.
[36] CB 170-171, Tribunal hearing transcript 8 May 2008 at pages 31-32.
[37] CB 171, Tribunal hearing transcript 8 May 2008 at page 32.
[38] CB 171, Tribunal hearing transcript 8 May 2008 at page 32.
[39] CB 172, Tribunal hearing transcript 8 May 2008 at page 33.
[40] CB 173, Tribunal hearing transcript 8 May 2008 at page 34.
[41] CB 174, Tribunal hearing transcript 8 May 2008 at page 35.
[42] CB 174, Tribunal hearing transcript 8 May 2008 at page 35.
[43] “Department”.
[44] CB 174, Tribunal hearing transcript 8 May 2008 at page 35.
[45] CB 175, Tribunal hearing transcript 8 May 2008 at page 36.
[46] CB 49. Typed without amendment from CB copy, save for necessary anonymisation of names to preclude identification of applicant: Migration Act, 1958 (Cth), s.91 (“Migration Act”). “A/t” is an abbreviation for applicant (for a tourism visa).
[47] CB 48.
[48] CB 48.
[49] CB 175, Tribunal hearing transcript 8 May 2008 at page 36.
[50] CB 196, Tribunal hearing transcript 16 June 2008 at page 4.
[51] CB 200, Tribunal hearing transcript 16 June 2008 at page 8.
[52] CB 222.
[53] CB 224.
[54] CB 211.
[55] “Migration Regulations”. CB 211.
[56] CB 211-212.
[57] CB 212.
[58] CB 213-215.
[59] See above at para.3.
[60] “the confiscated land”.
[61] CB 215-216.
[62] CB 216.
[63] CB 216-217.
[64] CB 216. The experienced elder’s name has been anonymised to minimise the prospect of the applicant being identified by reason of publication of these reasons for judgment: see s.91X of the Migration Act.
[65] CB 216.
[66] CB 217.
[67] CB 217-218.
[68] CB 218.
[69] CB 218.
[70] CB 218.
[71] CB 218.
[72] CB 218.
[73] CB 218.
[74] CB 218.
[75] CB 218.
[76] CB 218.
[77] CB 218-219.
[78] CB 219.
[79] CB 219.
[80] CB 219.
[81] CB 219.
[82] CB 219.
[83] CB 220.
[84] CB 220.
[85] CB 220-221.
[86] CB 220, citing The Economist, 23 March 2006.
[87] CB 221, citing the 2004 Annual Report of the Congressional – Executive Committee on China.
[88] CB 221, citing Department Country Information Report No. 06/65 – China: passport and exit arrangements, November 2006.
[89] CB 221, citing information from the Department – CX130538, 9 August 2005.
[90] CB 221-224.
[91] CB 222.
[92] CB 222-223.
[93] CB 223.
[94] CB 223.
[95] CB 223.
[96] CB 223-224.
[97] CB 224.
[98] CB 224.
[99] CB 224.
[100] Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; [2003] HCA 2 at para.76 per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ.
[101] Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 351 per McHugh, Gummow and Hayne JJ; [2001] HCA 30 at para.82 per McHugh, Gummow and Hayne JJ; WZANE v Minister for Immigration & Anor [2008] FMCA 1520 at para.32 per Lucev FM.
[102] [1986] HCA 40; (1986) 162 CLR 24 (“Peko-Wallsend”).
[103] Peko-Wallsend at 39 per Mason J.
[104] Peko-Wallsend at 39 per Mason J, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 228 per Lord Greene MR.
[105] Peko-Wallsend at 39-40 per Mason J.
[106] Peko-Wallsend at 40 per Mason J.
[107] Peko-Wallsend at 40 per Mason J.
[108] Peko-Wallsend at 41 per Mason J.
[109] Peko-Wallsend at 41 per Mason J.
[110] Peko-Wallsend at 42 per Mason J.
[111] Peko-Wallsend at 42 per Mason J.
[112] Peko-Wallsend at 44-45 per Mason J.
[113] Peko-Wallsend at 30 per Gibbs CJ.
[114] Peko-Wallsend at 31 per Gibbs CJ.
[115] Peko-Wallsend at 31 per Gibbs CJ.
[116] Peko-Wallsend at 61 per Brennan J.
[117] Peko-Wallsend at 66 per Brennan J.
[118] [1994] FCA 1512; (1994) 35 ALD 225 (“Li Shi Ping”).
[119] Li Shi Ping at 236 per Carr J (with whom Sheppard and Gummow JJ agreed).
[120] Li Shi Ping at 236 per Carr J.
[121] (Unreported, WAG 125 of 1994, French J, 9 August 1995) (“Xie”).
[122] Xie at page 15 per French J.
[123] Peko-Wallsend at 30 per Gibbs CJ, 39 per Mason J and 66 per Brennan J.
[124] CB 48-49.
[125] CB 49.
[126] CB 48.
[127] Peko-Wallsend at 31 per Gibbs CJ and 66 per Brennan J.
[128] Peko-Wallsend at 40 per Mason J.
[129] Li Shi Ping at 236 per Carr J; Xie at page 15 per French J.
[130] (2003) 131 FCR 511; [2003] FCAFC 171 (“WACO”).
[131] [2003] FCAFC 188 (“WAEJ”).
[132] WACO FCR at 524 per Lee, Hill and Carr JJ; FCAFC at para.54 per Lee, Hill and Carr JJ.
[133] WAEJ at para.54 per Lee, Hill and Marshall JJ.
[134] “Migration Amendment Act 2002”.
[135] See Migration Amendment (Review Provisions) Act 2007 (Cth), Schedule 1, Clause 17.
[136] (2005) 146 FCR 561; [2005] FCA 1388 (“VXDC”).
[137] VXDC FCR at 570 per Heerey J; FCA at paras.30-31 per Heerey J.
[138] (2006) 151 FCR 214; [2006] FCAFC 61 (“Lat”).
[139] Lat FCR at 225 per Heerey, Conti and Jacobson JJ; FCAFC at paras.64-67 per Heerey, Conti and Jacobson JJ.
[140] [2006] FCAFC 62 (“SZCIJ”).
[141] SZCIJ at paras.7-8 per Heerey, Conti and Jacobson JJ.
[142] [2007] FCA 33 at para.21 per Conti J.
[143] SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at para.37 per Collier J (“SZINP”).
[144] See para.10 above.
[145] See paras.12 and 14 above.
[146] SZINP at para.37 per Collier J.
[147] See para.10 above.
[148] See paras.12 and 14 above.
[149] SZINP at para.37 per Collier J.

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