Applicant M70/2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The proceeding before the Court was commenced in the High Court of Australia and was remitted to this Court on 7 February 2003. The draft order nisi sought the issue of constitutional writs directed to the second respondent in respect of its decision to affirm a decision of a delegate of the first respondent that the applicant was not entitled to a protection visa. 2 On 1 December 2003, the applicant's solicitor filed a document headed "Amended Application". The document purported to amend the draft order nisi and to seek identical relief to that sought in the draft order nisi, as amended, in reliance upon s 39B of the Judiciary Act 1903 (Cth). Earlier, on 26 September 2003, the applicant had filed an affidavit in which he set out the reasons why he believed he should be granted an extension of time within which to seek the orders contained in the draft order nisi. 3 On 2 December 2003, the applicant's solicitors filed the applicant's contentions of fact and law. Apart from matters going to explain the delay in bringing this proceeding in the High Court, those contentions raised two issues of substance going to the merits of the applicant's claim. It was those two issues that were the subject of oral argument this morning. Boiled down to their essence, those issues concerned whether the Refugee Review Tribunal ("the Tribunal") had failed to deal with two claims which were allegedly made before it by the applicant. 4 The first alleged relevant claim was that after the applicant's involvement in the pro-democracy movement in China in the late 1980s and early 1990s, he was required to report weekly to the authorities and lived under intensive supervision. At page 5 of its reasons for decision the Tribunal recorded the applicant's claims about having to make weekly reports to authorities and being subject to their continued surveillance from 1989 through to 1991. At page 9 of its reasons the Tribunal dealt with: "The possible interest of the Chinese authorities in the applicant as a consequence of his support for the pro-democracy movement." 5 The Tribunal considered country information dealing with the treatment of pro-democracy supporters, including low profile activists such as the applicant. At page 11 of its reasons the Tribunal said: "Although it is palpable that the Chinese government remains seriously in breach of fundamental human rights, it is also apparent from the evidence before the Tribunal that the pursuit of persons who are low profile activists in 1989 ceased some time ago." 6 Later in the same passage the Tribunal said that: "There is no material that would indicate, however, that persons having a profile or history of activity such as the applicant's, would now face a real chance of persecution at the hands of Chinese authorities." 7 In so finding, the Tribunal noted that: "The applicant was not denied access to normal educational facilities, nor were there serious restrictions on his right to earn a livelihood." 8 At pages 11 to 12 of its reasons the Tribunal accepted the majority of the applicant's claims about involvement in the pro-democracy movement. It did not reject a single claim of his on this issue, but in restating most of his claims and accepting them, it did not specifically refer to weekly reporting or constant surveillance. However, a fair reading of the Tribunal's reasons indicates that such activities would come within the type of activities recorded by the Tribunal at pages 11 to 12 of its reasons, where it accepted and recounted many of the applicant's actions in connection with the pro-democracy movement. Indeed, at page 12 of its reasons, the Tribunal did accept that the applicant was subjected to "intense questioning". 9 It is inherently unlikely, on a fair reading of the Tribunal's reasons, that the Tribunal failed to bear in mind the applicant's claims about surveillance and weekly reporting. They were, in reality, but aspects of the evidence raised in support of a broader claim that the applicant would be liable to persecution on account of his pro-democracy activities. 10 The Tribunal dealt with that broader claim and rejected it, when it said at page 12 of its reasons that: "The Tribunal does not accept that those activities would lead to the applicant coming to serious adverse attention of the authorities if he were returned to China." 11 In the same vein, after the reference to intense questioning, the Tribunal noted that: "The applicant was released (in 1989) due to a lack of evidence and has not been detained again since that time. Nor was he interrogated or demoted at work as a result of his pro-democracy activities between April and June 1989." 12 The Tribunal also found, at p 13, that the applicant's involvement in pro-democracy activities in Australia would not result in his persecution, should he return to China. In that regard it considered country information, including information about the lack of likelihood of harassment of the applicant's family, since his departure from China. 13 This brings the Court to the second alleged failure of the Tribunal to deal with the claim made by the applicant. The applicant contended that the Tribunal failed to deal with his claim that his wife was dismissed from her employment and that their son was denied the right of admission to school. The Tribunal recorded, at p 6 of its reasons, the applicant's claims to that effect under the umbrella of the topic of harassment of his family. It said that: "After "[the applicant]" arrived in Australia, the authorities harassed his family. His son was denied the right of admission to school and his wife was dismissed from her employment at the Shanghai transformer factory. His wife was also told that she should tell the applicant to return to China. The applicant claims that both his wife and son remained under surveillance." 14 As referred to earlier in these reasons, the Tribunal referred to country information concerning this claim. It said, at page 85: "In relation to the applicant's claim that his family had been harassed since his departure, Dr Adrian Chan, in RRT document number CX20614 on 4 October 1996 said - 'A visit by the PSB is a standard practice for a family member overseas. When someone goes overseas the PSB will visit the family and tell them that their son or daughter while overseas is like an ambassador for China. They ask the family to write to their son or daughter and advise that they should not become involved in any anti-PRC activities. The PSB visit does not mean anything special, nor that the family or the relative overseas has been targeted by the police. If the person overseas is involved in a political demonstration outside the Chinese Consulate or Embassy then, depending on the level of involvement in the demonstration, the PSB will visit the family again…The number of visits to the family depends on the number of challenges that a person here gives to the Chinese consular staff. The Chinese authorities are not interested in these people; they are considered just ordinary people of no special significance. This is true even if the person is involved in one of the pro-democracy groups, the Chinese Consulate is simply not that interested. Even I have demonstrated in front of the Chinese Consulate a number of times and have been allowed to enter China, conduct research and exit with no difficulties from the authorities.'" Later at page 15, after setting out that quote, the Tribunal said: "In light of this evidence, the applicant's experience and that of his family are normal in the circumstances and do not constitute a threat of persecution." 15 It is unfortunate that the Tribunal did not more specifically deal with all of the evidence advanced in relation to the claim it identified; that is, the claim that the applicant's family had been harassed since his departure. This would include, for example, why the Tribunal would consider the treatment alleged as "normal in the circumstances". The country information referred to in this aspect of the Tribunal's reasons does not touch upon the evidence provided by the applicant about the treatment of his wife and son. Although the Tribunal is not bound to deal with every piece of evidence submitted by an applicant, it would have been desirable for it to consider that evidence before deciding the claim about treatment of the applicant's family since his arrival in Australia. 16 The Tribunal's treatment of this issue may even be considered illogical, but that does not necessarily form a ground of review: see Re Minister for Immigration and Multicultural Affairs, Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 61, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 and NACB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 235 at [21]-[29]. The critical issue is whether a claim was made and dealt with. The claim was made that the applicant's family had been persecuted since he left China. That claim was rejected, albeit in circumstances where two pieces of evidence raised in support of it were not specifically the subject of any finding. However, in the circumstances, no jurisdictional error was committed. It cannot be said that the Tribunal did not deal with the broader claim about treatment of the applicant's family as a result of his departure to Australia, in relation to which the more specific claims about his son and wife were but aspects, or pieces of evidence in support of the broader claim. 17 For current purposes, I am prepared to assume that it is appropriate to permit the amended application to stand in lieu of the draft order nisi remitted from the High Court. However, it should be recorded that the appropriateness of doing so was not examined, and indeed, leave was not formally requested for the amendment to be made. But I will treat the matter as if leave had been sought and granted. Ultimately I consider, for the reasons outlined above, that the application should be dismissed for failure to disclose jurisdictional error. It is not necessary in those circumstances to also deal with whether an extension of time is required, given the applicant's reliance on s 39B of the Judiciary Act. If an extension of time was required, I would have refused it on the basis that, given no legal error has been disclosed, it would have been futile to do so. 18 The Court, accordingly, will order as follows: