Wang Bao Ying v Minister for Immigration & Multicultural Affairs [1997] FCA 1208 (10 November 1997)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Appeal from decision of Refugee Review Tribunal affirming decisions of Minister and previous Refugee Review Tribunal not to grant refugee status - whether sufficient elucidation of the facts of the case - whether failure to comply with the procedural requirements of s 420 of the Migration Act 1958 - application of s 416 of the Migration Act.

Migration Act (Cth) ss 416, 420, 476(1)(a), 476(1)(e)

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, appl

WANG BAO YING v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 770 of 1996

DAVIES J

SYDNEY

10 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 770 of 1996

BETWEEN:	WANG BAO YING Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
CORAM:	DAVIES j
DATE OF ORDER:	10 NOVEMBER 1997
WHERE MADE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal dated 15 August 1996 be set aside and the matter be remitted to the Refugee Review Tribunal differently constituted to be heard and decided again.

2. The respondent to pay the 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	ng 770 of 1996

BETWEEN:	WANG BAO YING Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

coram:	DAVIES j
DATE:	10 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application under s 476 of the Migration Act 1958 (Cth) ("the Act") seeks orders of review with respect to a decision of a Refugee Review Tribunal ("the 1996 Tribunal").

Relevant grounds of review appear in s 476 of the Act which provides inter alia:

" (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:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(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; ... ."

At the hearing in this Court, the applicant, Wang Bao Ying, who spoke through an interpreter at the Tribunal hearing, put the case that the hearing before the Tribunal had not been fair, because the interpreter, who had been provided by the Tribunal, misinterpreted parts of his evidence.

Because the applicant is unrepresented and is unable to speak or read the English language, I have felt it proper to look at the matter rather more widely than was put in his submissions. One cannot expect Mr Wang effectively to state his complaints within the structure of s 476 of the Act. I have come to the conclusion that the procedure which was adopted in the consideration of Mr Wang's claims was not fair and that this led to the substantial justice and merits of his case not being considered as they should have been. It is probable that problems with communication contributed to that.

The decision which is under review is a decision of the 1996 Tribunal given on 15 August 1996. However the matter did not commence there and it is necessary for me to discuss also the primary decision of a Delegate of the Minister for Immigration and Multicultural Affairs and a decision given by a Refugee Review Tribunal on 1 June 1995 ("the 1995 Tribunal").

The Act provides a basic structure for decision making by a Refugee Review Tribunal. Section 420 states:

" (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case."

As was explained in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, this section prescribes procedural elements and also the nature of the approach which a Refugee Review Tribunal ought to adopt. A tribunal should adopt procedures which are fair, just, economical, informal and quick and which enable it to get to the substantial justice and merits of the case and it should then make its decisions having regard to the justice and merits of the case.

The substance of the case put by Mr Wang to the 1995 Tribunal was that he was a citizen of The Peoples Republic of China, born in 1939, that in or about June 1966, near the beginning of the Cultural Revolution, he joined a rebelling group in Tianjin and was one of seven leaders of this group which drew support from the Public Security Bureau ("PSB"). The applicant said that the group had been formed in a struggle for power in the Tianjin Municipal Committee. The group lost the fight for control of the Municipal Committee due to the intervention of the central government. The group was declared counter-revolutionary and Mr Wang and other leaders of the group were detained by a Military Control Committee and sent to a remote area where he remained for 13 years. Mr Wang was not released until after the Cultural Revolution ended in 1978.

Mr Wang said that, following his release, he obtained work as a mechanic. He said that, in about 1986, he was given the position of chief engineer at the Toyota car repair centre in Tianjin. He said that, although he was subjected to close scrutiny, he maintained his position. Mr Wang said that, after the dismissal of Hu Yao Bang in 1987, he made a prediction that the Chinese Communist Party would meet a critical point in 1989 and that the Communist Party would be overthrown in 2016. As a result, his file was sent to the PSB. Mr Wang said that, when he was informed of this by a contact in the PSB, he decided to leave China.

Mr Wang told the Tribunal that he obtained his passport in November 1988, that it was easy to obtain a passport in China and that the difficulty was in passing a political clearance test which was necessary in order to leave the country. He said that it took two years for him to obtain his political clearance. Mr Wang informed the Tribunal that he left China in April 1990 and that he encountered problems at the airport when he did so. He said he was first stopped at Beijing airport and was told that his visa was unacceptable. He then tried to leave through Shanghai airport but the officials there were suspicious. Mr Wang and his wife went back to Beijing and, as a result of bribing officials, he and his wife boarded a plane just before it was due to take off.

Mr Wang said that he and his wife then went to Cyprus where he worked for some years. He said that, in 1992, he heard that Chinese citizens who had lived in another country for more than two years could apply for a Taiwanese passport. The applicant said that he forwarded a passport application to the Taiwanese office in Amman, Jordan. There is some ambiguity in the decisions of the primary decision maker, of the 1995 Tribunal and of the 1996 Tribunal with respect to this matter. All three decisions state that the applicant's evidence was that the application had not been received in the Jordanian office. However, it appears from the reasons for decision of the primary decision maker, a delegate of the Minister, that the applicant said that he had written a letter to the President of Taiwan and had received a reply. Accordingly, it is not clear what the precise sequence of events was alleged to be. In any event, the substance of the evidence given by Mr Wang was that he had been advised by the Jordanian office that it had not received his application, that he had checked with the post office which should have received it and that he had been told that the letter had been signed for. Mr Wang thought it to be likely that his application had been intercepted by the Chinese authorities.

Mr Wang believed that his affairs were then placed under watch by the Chinese authorities. Subsequently, he was not able to obtain authority for his parents to join him in Cyprus and, when he sought another extension of his passport, he had difficulty in obtaining the extension and was able to obtain an extension for one year only, and then only by paying a bribe.

At the end of 1992, Mr Wang was told by the immigration authorities in Cyprus that his visa would not be renewed and that he must leave. He believed that the Chinese authorities had put pressure on the Cyprus authorities not to renew his visa. Mr Wang gave evidence that, when he applied for a business visa in Egypt, his application was rejected and he was told to leave that country within one week. When asked for an explanation, he was told to contact the Chinese embassy. That was in 1993, by which time his passport had expired.

The story told by Mr Wang was a highly individual and complex story. It was not one of those stories which could readily be fabricated for the purposes of an application for refugee status. Mr Wang's story was specific and personal to him. In his version of events, there were two major elements which, while they could have been fabricated, would not readily have come to the mind of anyone who wished to fabricate a claim for refugee status. The first element was that the applicant had been held in detention for 13 years. The second element was that the applicant had applied in Amman, Jordan, for a Taiwanese passport.

It seems to me that the procedures adopted at all levels of decision making in this case were such that the decision makers did not give sufficient time to the elucidation of the facts of the case to enable a decision to be made on the substance and merits of the claim. In part, this was probably because of Mr Wang's inability to speak English and problems encountered in translation. However it was in part because of the failure of decision makers to obtain sufficient detail about the matter to be able to form a view as to whether Mr Wang's evidence of the facts so far as he knew them was correct.

For example, in the decision by the Delegate, the allegation of 13 years detention was dealt with in this short passage:

"The applicant was asked whether he had lived at the one address from 1954 to 1990.

34. The applicant said yes that's true.

The applicant was asked why he was claiming to have spent thirteen years in prison if he had been living at the one address all the time. This is consistent with the information on his application form, on which it is stated that he lived continually at the one address.

35. The applicant responded that in China, the residential registration does not indicate whether or not you're in prison. He said that the information he put on the application form does not reflect his jail sentence."

The Delegate did not make any finding as to whether Mr Wang had been detained as he alleged but said:

"I have considered the applicant's claim that he was imprisoned between 1966 and 1979. In assessing this claim, and those related to the Cultural Revolution, I give weight to the fact that the applicant obtained tertiary qualifications and at the end of the Cultural Revolution having been released from prison, went on to obtain a well paid, highly responsible position, as an engineer with large foreign trading company. ... Although he claims to have been criticised for expressing his political opinion, and made to write a self criticism, there is nothing in his claim which indicates that he was persecuted during this ten year period [after 1979]."

The 1995 Tribunal also failed to investigate this allegation as it ought to have done. In its reasons, the 1995 Tribunal merely expressed this finding:

"Be that as it may, the Tribunal accepts, albeit reluctantly, that the applicant was imprisoned because of his political activities during the Cultural Revolution."

The Tribunal made no finding as to the circumstances and nature of the detention.

Yet, it was impossible for these decision makers to form an informed view of Mr Wang's fear of persecution and as to the likelihood of persecution without their coming to an opinion, if they could, as to whether he had been of a sufficiently high profile to be held in custody for 13 years, and, if he had been held in custody, what the facts of the custody or detention were. This matter of his detention was at the crux of the fear which Mr Wang claimed.

The second element of Mr Wang's claim was given equally unsatisfactory treatment. The Delegate of the Minister rejected the claim that the applicant had lodged an application for a passport for this reason:

"I have considered advice from the Taipei Economic and Cultural Office in Sydney, that the Taiwanese government has never had a policy of granting citizenship and/or passports to Chinese nationals living abroad. I therefore find it implausible that the applicant lodged such an application."

Yet, the fact that Mr Wang was not entitled to a Taiwanese passport did not show that he had not lodged an application. As we know in this country, many applications are lodged under passport and migration laws seeking benefits to which the applicants are not entitled.

The 1995 Tribunal made a finding to like effect, giving two reasons:

"The Tribunal has been unable to locate any evidence which would support the applicant's claim that Chinese nationals who had permanent residence in another country could apply for a Taiwanese passport. In addition, the Taipei Economic and Cultural Office in Sydney has informed the Tribunal that there is no Taiwanese Consulate in Jordan (see RRT Research Advice TWN10488, 23 May 1995).

The Tribunal rejects the applicant's assertions that his documentation was intercepted by the Chinese authorities in either Jordan or Cyprus."

Acceptance of the fact that Mr Wang had lodged an application for a Taiwanese passport was crucial if he were to be granted refugee status. The matters which he put forward as to persecution whilst he was in China were, apart from the claim of detention, relatively slight. Indeed, the Delegate in his reasons for decision recorded this passage:

"The applicant responded that he is not saying that he was persecuted. He said that he was depressed because of a lack of political freedom."

Yet, neither the Delegate nor the first Tribunal gave sufficient attention to Mr Wang's case to be able to satisfy themselves that, probably, he had sent the application for a Taiwanese passport to Taiwan's Jordan office as he claimed.

By the time the matter came before the 1996 Tribunal, one essential fact of the matter had emerged. As the 1996 Tribunal said:

"However, it [the Tribunal] ascertained that there is a Taipei Economic and Cultural Office in Amman and that it operates similarly to the corresponding office in Sydney in handling passport and visa applications, respectively, for Taiwanese and others."

Thus, one of the reasons relied upon by the 1995 Tribunal was wrong. The 1996 Tribunal therefore went on to hold:

"... the presently-constituted Tribunal was prepared to accept that the Applicant might have been misinformed about the law he described and tried to avail himself of its benefits as claimed."

However, the 1996 Tribunal did not give enough time to the applicant's case to be able to form the view that probably Mr Wang had lodged an application for a Taiwanese passport. The Tribunal merely said that Mr Wang "might have" tried to seek such a passport.

It is essential that a decision maker give enough attention to elucidating the facts of an applicant's claim so as to enable views to be formed on the probabilities of the matter, if reasonably that can be done. In the present case, that did not occur. We are left with the begrudging concession of the 1995 Tribunal that the applicant was imprisoned, although in what manner was not stated, and the mere concession by the 1996 Tribunal that the applicant might have tried to obtain a Taiwanese passport.

Because the decision makers did not give sufficient time and consideration to the application, asking whatever questions were necessary to elicit the facts, the decision makers did not put themselves into a position where they could deal with the substantial justice and merits of the claim. Mr Wang was entitled to a sufficient investigation of his case to lead to findings on the probabilities of the matter, if they could reasonably be made, as to whether he had been detained for 13 years and how and whether, during his stay in Cyprus, he sent to Taiwan's office in Amman an application for a Taiwanese passport. Those matters were essential to Mr Wang's case.

It appears that the problems which the applicant had in communicating through an interpreter contributed to what occurred. For example, the 1996 Tribunal said:

"The Applicant said he had written three times to the Taipei office in Amman and not received any reply. He said he had also written to the Prime Minister of Taiwan to obtain proof that his letter to the office in Amman had been intercepted. He asked the Tribunal to await the Prime Minister's reply. The Tribunal, however, cannot envisage that the Applicant will receive a letter from Taipei, let alone from the Taiwanese Prime Minister that will suffice in eradicating the problems in his case and therefore proceeds to a decision."

One of the applicant's complaints in these proceedings is that, in his evidence, he did not speak of the Premier of Taiwan but of the President of Taiwan, a claim which would be consistent with the reference in the decision of the Delegate to the fact that the applicant had written to the President of Taiwan. Mr Wang claims that in this and other respects his evidence was not correctly interpreted. In an affidavit, Mr Wang has annexed a letter which has since been received by him from "The Public Affairs Section of the Office of President" of Taiwan, which letter appears to confirm that the applicant applied for citizenship of the Taiwanese Republic of China and that, "the President Office" sent him a reply on 17 February 1992, a fact consistent with the facts recorded in the decision of the Delegate.

For these reasons, I am satisfied that the procedures followed did not fulfil the requirements of s 420 of the Migration Act. The procedures adopted were not fair and just for there was an insufficient investigation of crucial elements of Mr Wang's claim to enable a decision of fact to be made with respect to crucial elements of the claim. Problems with interpretation seem to have contributed to this.

I should also add, although as the matter was not argued I would not make an order on this ground, that there may have been an error of law which affected the decision of the 1996 Tribunal. Section 416 of the Migration Act provides:

"If a non-citizen who has made:

(a) an application for review of an RRT-reviewable decision that has been determined by the Tribunal or the Administrative Appeals Tribunal; or

(b) applications for reviews of RRT-reviewable decisions that have been determined by the Tribunal or the Administrative Appeals Tribunal;

makes a further application for review of an RRT-reviewable decision, the Tribunal, in considering the further application:

(c) is not required to consider any information considered in the earlier application or an earlier application; and

(d) may have regard to, and take to be correct, any decision that the Tribunal or the Administrative Appeals Tribunal made about or because of that information."

In relation to this provision, the 1996 Tribunal said:

"In the context of this application, the Tribunal takes the foregoing to mean that it need not consider the totality of the Applicant's claims de novo where those claims have been dealt with in previous RRT decisions; and that it may agree with some or all of the conclusions of the previously-constituted Tribunal"

In applying this view, the 1996 Tribunal took into account views as to credit which the 1995 Tribunal expressed. Thus the 1996 Tribunal said inter alia:

"It is clear from shifting claims in a number of other areas of the Applicant's evidence that there was a serious credibility problem in the first application. ... the Tribunal notes that the Applicant is on record as lacking credibility in his claims about contacts in the government delivering him information and documents in the nick of time."

That approach can lead to unsound decision making. The 1996 Tribunal was entitled not to consider any information contained in the earlier application and it was entitled to have regard to the decision of the 1995 Tribunal. No doubt the words "any decision" ought to be read widely so as to encompass the decision and the reasoning process which led to the decision. Nevertheless, s 416 does not refer to "any reasoning" or "any findings". If a tribunal decides that, notwithstanding s 416, it will review a matter or a part of a matter because the reasoning leading to the earlier decision has been shown to incorrect, then the second tribunal should consider the matter for itself and should come to a view on the substantial justice and merits of the case.

In the present case, the 1996 Tribunal considered that the reasoning process of the 1995 Tribunal contained a flaw in that there had been a Taipei Economic and Cultural Office in Amman which dealt with Taiwanese passports and therefore that one of the matters on which the 1995 Tribunal had found the applicant to be untruthful was wrong. In this circumstance, the 1996 Tribunal correctly concluded that it ought not to take the decision of the 1995 Tribunal to be correct. The 1996 Tribunal should then have decided the matter for itself as a matter of substance. The Tribunal did not do so, because the Tribunal took into account findings on credit which had been influenced by the incorrect view of the 1995 Tribunal that the Taipei Office in Jordan did not exist. The 1996 Tribunal should have dealt with the substantial justice and merits of the claim in the light of the information that Taiwan did have a passport office in Jordan.

Because of the failure to comply with the procedural requirements of s 420 of the Act, I shall set aside the decision of the 1996 Tribunal and remit the matter to the Refugee Review Tribunal differently constituted to be heard and decided again. The respondent should pay the costs of the application.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 10 November 1997

	The applicant appeared in person.
Counsel for the Respondent:	G. Peek, solicitor
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 September 1997
Date of Judgment:	10 November 1997