Bin Amiruddin v Minister for Immigration and Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant is a national of the People's Republic of China. He came to Australia in January 1998 on a forged Indonesian passport under an assumed name. A month later the applicant applied for a protection visa under s 36 of the Migration Act 1958 (Cth). The application was considered by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, and was refused. The applicant then applied to the Refugee Review Tribunal for review of the delegate's decision under s 412 of the Migration Act. The tribunal affirmed the delegate's decision. Pursuant to s 476 application is now made for review of the tribunal's decision. 2 A non-citizen is entitled to a protection visa if he or she is a refugee as defined in Article 1A(2) of the Convention relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees. Before the tribunal, the applicant argued that he had a well-founded fear of being persecuted for reason of imputed political opinion or because of membership of a particular social group. 3 The way the applicant put his case was as follows. The applicant was born in Jiangjing in the province of Fujian. He completed junior school in 1994 at the age of 16 and began work at a State-operated garment factory, first as an apprentice and, after two years, as an electrician. As a result of mismanagement, the theft of 1 million yuan by the manager and secretary, and the extortion of money from the factory by local government officials, the financial position of the factory suffered. By June 1996 workers were paid only a reduced wage, although the management were still paid in full. From May 1997 the factory could not pay any wages to the workers, yet they kept working in the hope that matters would improve. 4 In August 1997 the town authorities called a meeting of the workers and informed them of the factory's hopeless financial position, that the factory would be closed and that the building, plant and equipment would be sold to the private sector. The workers were told that the proceeds of sale would not be sufficient to pay the outstanding wages due to them. 5 After the meeting a number of the workers, including the applicant, decided to establish a "Gong Ren Zi Jou Hui", an organisation to "help the workers save themselves", with a view to sending representatives to Fuqing City, with a petition setting out the workers' demands. A petition was prepared. In it the workers made the following demands: payment of unpaid wages; protection from dismissal; an improved working environment; that there be exposure of the fact that factory employees and government officials had abused their power; and punishment for those who had abused their power. 6 Seven members of the new organisation, including the applicant, were appointed to submit the petition to government officials in Fuqing City. After some resistance to the acceptance of the petition, it was presented to a secretary-general of municipal government. He promised to provide a "satisfactory answer" within a week. 7 A week after the submission of the petition a new manager and secretary were appointed and the workers were paid one half of their outstanding wages. The workers were assured that the balance of their wages would be paid in September. 8 In November the applicant learnt that two former leaders of the Gong Ren Zi Jou Hui had been detained by police because they had "organised the underground union without approval and incited the turmoil". The applicant was also questioned by the police. He was "interrogated … about the detail [of his] joining the organisation and presenting [the] petition". The purpose of the "interrogation" was to discover "who was [the] controller behind [the applicant]". Late in November the applicant's "job was changed and [he] was forced to do cleaning work and other labour job". 9 Because the applicant's parents feared that he would be jailed at the behest of the Communist authorities, especially those whose corruption had been exposed by the applicant and the Gong Ren Zi Jou Hui, the applicant's parents arranged for his departure from China to Australia on a forged passport and, so it seems, a forged exit visa for which they were required to pay 200,000 yuan. 10 When in Australia the applicant was informed, presumably by his parents, that twelve members of the Gong Ren Zi Jou Hui had lost their job at the factory and five of them had been arrested and sent to a labour farm for periods of between three and five years. 11 In the hearing before the tribunal the applicant said that he had been informed of an "order for arrest" that had been issued by the Fuqing City Public Security Bureau. Later, a copy of the order for arrest was produced to the tribunal. It records that the applicant is to be arrested because "he set up a counter-revolutionary underground organisation without authorisation, disrupted social stability, created social upheaval and disturbance and ignored the law of the Communist Party". 12 The tribunal accepted the evidence of the applicant concerning the position at the factory, the establishment of the Gong Ren Zi Jou Hui, the presentation of the petition to the secretary-general and the applicant's involvement in those events. This notwithstanding, the tribunal found that the applicant did not have a well-founded fear of persecution for any Convention reason. 13 In this connection the tribunal was of the opinion that the government had no interest in the applicant. In its reasons the tribunal said: "It is apparent that since the authorities took no action against the applicant they did not regard his activities either individually or as a member of an organization as requiring State intervention to punish him. The fact that the applicant had no difficulty with the authorities indicated he was not of continuing interest to them". And later: "In assessing all the material before it the Tribunal finds that the applicant does not face any prospect of arrest for any Convention reason". The tribunal also said that any prospect of harm relating to the applicant's involvement in the exposure of the corruption of certain public officials would not be due to imputed political opinion. To adopt the language of the tribunal: "On the question of whether there is any link between any report of corruption and political opinion, such as would give rise to persecution, the Tribunal is not satisfied that such a nexus exists. In making a finding that the exposure of the corruption of certain public office holders and factory leaders does not disclose political opinion the Tribunal draws support from the decision … in … Wu Shan Liang v Minister for Immigration and Ethnic Affairs, unreported, 17 June 1994. … Any prospect of harm to the applicant in this case arises not from his political opinion or that imputed to him but from his exposure of alleged criminality by certain public office holders and factory leaders". 14 In relation to the order for arrest, the tribunal found that the document was a forgery. The tribunal explained: "In considering the lateness of the applicant's claim that he faces arrest, or any timely mention of it in submissions to the Tribunal; the applicant's demeanour at the hearing and the late allusion to any order for his arrest; his implausible evidence as to why his claim that an order for his arrest is in existence was made so belatedly[;] the absence of any precise charge and of any original document; the length of time he has spent out of China, and his lack of difficulty with the authorities prior to his departure, even though his activities were known about; and the comments of the [Document Examination Unit] going to the genuineness of the document, the Tribunal finds that the document is not genuine". 15 The first ground upon which the applicant relies to attack the decision of the tribunal is that it was in breach of the procedures laid down by s 430 which require the tribunal to give written reasons that set out findings on material questions of fact and refer to the evidence on which those findings were based. This was said to be a reviewable error under s 476(1)(a), which permits review if the tribunal failed to observe procedures required to be observed in connection with the making of the decision. 16 For the purposes of this application I am bound to accept that a failure to comply with s 430(1) gives rise to a ground of review under s 476(1)(a). This was the position taken by the majority in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, a decision of the Full Court comprising five judges, which was delivered after argument on this hearing concluded. The Minister submits that Singh was wrongly decided, and so it might be. Presently there are two appeals before the High Court where the authority of Singh is under challenge. The appeals are from the decisions of the Full Court in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 and Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649, which have been heard and judgment has been reserved. For reasons which will become apparent, I have not felt it necessary to await the outcome of those appeals before delivering judgment in this case. 17 According to Singh, s 430 requires the tribunal to record the actual reasons for arriving at its decision, the findings of fact that were actually made and the material on which those findings were based: Singh at [44]. In addition, the section requires the tribunal to make findings on objectively material questions of fact, that is those facts that are central to the case raised by the applicant and the evidence before it: Singh at [47] and [48]. 18 To make out his claim that the tribunal failed to comply with s 430, the applicant relies on two pieces of evidence which he says were material and in respect of which no findings were made. The evidence, first, was that the applicant had been "interrogated" on several occasions and, second, that he had been demoted from his position as an electrician in November 1997. 19 For the purpose of considering this submission I will proceed on the basis that (a) acts such as interrogation or demotion can amount to persecution, and (b) if such acts are engaged in because the person has been involved in the activities of an organisation, such as the Gong Ren Zi Jou Hui, which seems to be something like a trade union, or because the person has made complaint about the corrupt practices of government officials, that can amount to persecution for a Convention reason; persecution on account of membership of a social group in the case of involvement in the organisation and because of imputed political opinion in the case of complaint. 20 If an applicant for refugee status can show that before he left his country of nationality he had been subjected to persecution for a Convention reason, that will go a long way towards establishing that the applicant has a well-founded fear of persecution if he is required to return to that country. Thus if the applicant could establish that he had been demoted and that he had been interrogated (dependent upon precisely what he meant by that word) because of his interest in the Gong Ren Zi Jou Hui, he would have laid a good foundation for a successful application. In fact, however, the tribunal made no mention of the demotion. Nor did it refer to the applicant's interrogation. Did the tribunal err in this regard? Do those omissions amount to a failure by the tribunal to deal with the material issues put forward for its consideration? 21 The applicant raised both the interrogation issue and the demotion issue in his written statement that accompanied his application for a protection visa. The way the statement reads, the two events were connected, each arising from the applicant's involvement in the activities of the Gong Ren Zi Jou Hui. It is worth setting out the paragraph where these matters are dealt with. It will be remembered that the applicant explained that representatives of the Gong Ren Zi Jou Hui had been detained by police. He went on: "After a few days, I was questioned by the police. They interrogated me about the detail of my joining the organisation and presenting petition. They were keen to know who was controller behind me. I told them a truth. I said I did with my own will, no one ordered or encouraged me to do this. The police questioned me a quite a few times after that, but they didn't get wheat they wanted. In the end of November, my job was changed and I was forced to do a cleaning work and other labour job. I knew this was meant that they tried to make troubles to me. But I could not do anything facing their doing". 22 The alleged demotion was also the subject of oral evidence at the hearing before the tribunal. Here is an extract from the transcript: "Q You said to me today that you only ever worked as an electrician, but on an earlier occasion you had given different evidence about some of your work background. Is there anything you want to say about that? A Maybe there was a translation mistake or something. Q Well, is it correct that you only job in China was as an electrician? A Yes. At the beginning I was an apprentice. Q See, on at least one previous occasion, you said that you were at one stage demoted from your work as an electrician. A No." Earlier the applicant had given evidence that he had worked at the factory as an electrician until two months before he left for Australia. In that two-month period he said he was hiding at home. 23 As I have said, the tribunal found that the authorities took "no action" against the applicant and that he had "no difficulty" with them. This led the tribunal to conclude that the State had no intention of punishing the applicant for his involvement with the Gong Ren Zi Jou Hui and for his complaints about the corrupt activities of "factory leaders" and government officials. In reaching this conclusion the tribunal was not required in its reasons to deal with the alleged demotion or the "interrogation", and in my opinion its failure to mention that evidence does not amount to a breach of s 430. 24 I take the oral evidence given by the applicant at the hearing as amounting to a withdrawal of the allegation that he had been demoted as punishment for his union activities. Even if the applicant had not withdrawn that allegation (as I think he did) at least the tribunal was entitled to reach the conclusion that he had. Once the allegation of a demotion was no longer pursued, no occasion arose for the tribunal to deal with it. Thus the absence of any mention of the alleged demotion is understandable and is hardly a ground for complaint under s 430. 25 The failure to deal with the "interrogations" gives rise to a different issue. As the cases indicate (a number of the leading authorities, and the relevant extracts from them, are found in the tribunal's reasons), interrogation can amount to harassment that constitutes persecution, if undertaken for a Convention reason, or it might be evidence from which it may properly be inferred that there is a real chance that the person "interrogated" is likely to be persecuted. In the end, however, whether any of these possibilities are open depends very much on the nature of the alleged "interrogation". That is to say, there is interrogation and there is interrogation. 26 The only description of what occurred during his questioning is that given by the applicant in the earlier quoted passage from his statement. He did not expand on this in his oral testimony, although he was given every opportunity to explain his case. From the applicant's description, brief though it is, it was open for the tribunal to form the opinion that that which he had described as "interrogation" did not amount to harassment constituting persecution and that description could not form the basis for a finding that the applicant might in the future be at risk of persecution. Thus, even putting the case at its highest, it appears that the questions that were put to the applicant during the course of his "interrogations" were designed to obtain information about the activities of other people. Moreover, the sting of his complaint to a large extent dissipates when the applicant conceded that he was not demoted. 27 Two things follow, in my opinion. The first is that the tribunal was correct in its finding that there was "no action" taken against the applicant and that he faced "no difficulty" with the authorities, at least insofar as any "demotion" or "interrogation" were concerned, and no other facts were relied upon to indicate that the applicant had been relevantly harassed. Second, there is nothing about the nature of the questioning or "interrogation" that was required to be dealt with by the tribunal, bearing in mind its obligations under s 430. 28 It was also alleged that the tribunal failed to deal with material evidence in relation to the applicant's departure from China. On this issue the applicant had given evidence that his parents were able to obtain false papers which permitted him to travel to Australia. He said that his parents were required to pay 200,000 yuan to procure those papers. The tribunal considered the circumstances surrounding the applicant's departure. It found that "[s]ince the applicant did not encounter any difficulty from the authorities prior to his departure there is no basis for a conclusion that he was obliged to obtain false documentation in order to flee persecution for any Convention reason". And later: "[a]lthough the applicant may have obtained some false documentation, there is no material for the tribunal to indicate, in any event, that any denial of travel rights to him stemmed from any Convention ground." 29 The applicant says the tribunal was required to, but did not, refer to the fact that the applicant's family had to pay a substantial sum to obtain the false passport and exit visa for the applicant. This is the "material evidence" which the tribunal failed to consider, leading it into error, so it is alleged. 30 The short answer to this complaint is that the amount of money that was paid to obtain the false travel documents was of no significant relevance to the applicant's case. The fact that the applicant left China on false papers may be relevant to the question whether he faced persecution in that country. That issue was considered by the tribunal and its opinion was adverse to the applicant. But the applicant's case was not assisted in any material way by the cost to his parents of obtaining the false papers. The tribunal made no error in this regard. 31 It remains to mention on this aspect of the case that the applicant did not rely solely on s 430 as a source of the tribunal's obligations to determine the merits of his case by dealing with all of the material issues raised by the evidence. The applicant also alleged that a failure to deal with those issues would, in any event, amount to an error of law under s 476. The obligation springs from the nature of the functions and powers of the tribunal. It is an inquisitive body with the duty of deciding questions in a non-adversarial proceeding. Its constitution and powers have been said, in a number of cases, to impose an obligation to make findings on the questions which are central to the case raised by the material in evidence before it: see, eg Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Calado v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 59; Buljeta v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Katz J, 4 December 1998); Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182. But, for the reasons set out above, the tribunal has not failed to meet these obligations. 32 The next ground alleges that the decision of the tribunal was "an improper exercise of the powers conferred by the [Migration] Act", placing reliance on s 476(1)(d). Section 476(3)(c) provides that, for the purposes for the purposes of s 476(1)(d), an instance of improper exercise of power is where "a discretionary power [is exercised] in accordance with a rule or policy without regard to the merits of the particular case". 33 Here the applicant's complaint relates to the finding by the tribunal that the "order of arrest" was not a genuine document. As the passage quoted earlier discloses, the tribunal gave five reasons for that conclusion. One reason was "the lateness of the applicant's claim that he faces arrest". In this passage the tribunal was referring to the fact that it was not until late in the hearing, at least a minute or so before its conclusion, that the applicant made mention of the existence of the order for arrest. When the point was raised, the tribunal member said: "You would have known any such document was important to your case, and it is very difficult to believe that you would not make available to the department or the tribunal any genuine document in a timely fashion". 34 The applicant points to a factual error made by the tribunal, namely the finding that the applicant had made a late claim that he faced arrest. In fact this claim was first made in the written statement accompanying the application. Be that as it may, the applicant says that by acting on the basis of the lateness of an important allegation, as a reason for rejecting that allegation, the tribunal improperly exercised its powers, resulting in a reviewable error under s 476(3)(c). 35 The point has no substance. First, I do not see how a finding that a document is not genuine can lead to the conclusion that the tribunal's decision (its decision being to affirm the decision under review) was an improper exercise of the power conferred by the Migration Act. Second, in considering whether the order of arrest was genuine, the tribunal was not acting in exercise of a discretionary power. Third, nothing that was said by the tribunal suggests that it was following any particular policy or rule. The tribunal gave five reasons why it found the document not to be genuine. One reason was the late reference to the document. That is a proper matter to take into account when assessing the genuineness of the document and cannot be characterised as a "policy" or a "rule". 36 Next it is alleged that the decision of the tribunal involved an error of law, being an incorrect interpretation or application of the law, which is a ground of review under s 476(1)(e). The principal complaint here is the finding by the tribunal that there is no necessary nexus between a report of corruption to government authorities and political opinion or imputed political opinion such as would give rise to persecution for a Convention ground. 37 A fair reading of the tribunal's reasons suggests that the tribunal was indeed of opinion that, as a general proposition, punishment for the exposure of corruption of public officials could not amount to persecution for a Convention reason because the punishment would not be for any actual or imputed political opinion. I do not read the decision of the tribunal, as the respondent would have it, as a specific finding confined to the facts of this case, namely that if the applicant was at risk of punishment for having complained about the corruption of the factory leaders and government officials, that would be for some reason other than a Convention reason. One reason why I will not give this construction to the tribunal's reasons is that the evidence would not support such a finding. 38 It is clear enough, and was not suggested to the contrary, that the general proposition that I have attributed to the tribunal is wrong in law. For example, in V v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355, Hill J said (at 367): "The exposure of corruption itself is an act, not a belief. However it can be the outward manifestation of a belief. That belief can be political, that is to say a person who is opposed to corruption may be prepared to expose it, even if so to do may bring consequences, although the act may be in disregard of those consequences. If the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it, the risk of persecution can be said to be for reasons of political opinion". See also Minister for Immigration and Ethnic Affairs v Y (unreported, Federal Court of Australia, Davies J, 15 May 1998). However, the tribunal's error of law in this regard was not material. I accept the respondent's submission that, having concluded that the applicant was not of interest to the authorities for his activities in connection with the Gong Ren Zi Jou Hui, it was not necessary for the tribunal to consider whether the exposure of corruption would result in the imputation of an adverse political opinion by the authorities. Put another way, the tribunal's incorrect consideration of the nexus between acts of exposure of corruption in China and the imputation of political opinion did not affect the outcome of the application. 39 Two other alleged errors of law were relied upon. It was said that the tribunal wrongly applied a so-called "adverse interest" test rather than the "real chance of persecution" test laid down by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. To show that the tribunal had applied the wrong test, reliance was placed on the tribunal's alleged failure to make findings on material questions of fact, such as the applicant's interrogation by the authorities as claimed and the applicant's demotion from his position at work as claimed, its failure to discuss whether that conduct amounted to persecution and, if it did, its failure to consider whether that persecution was for a Convention reason. 40 I think it clear that the tribunal did not misunderstand the definition of "refugee" in the Convention or the "real chance" test as enunciated by the High Court. The tribunal described the correct test in its reasons and, so far as those reasons indicate, applied that test. In the end, once the applicant's complaint that the tribunal should have considered the alleged interrogation and the alleged demotion is found not to be valid, the underlying basis for the allegation that the tribunal applied a wrong test collapses. 41 The applicant also complains that the tribunal erred in concluding that punishment for illegal departure from China could not amount to persecution for reason of political opinion. He argues that if the laws of the country are applied in order to maintain an effectively dictatorial or totalitarian control, then punishment for illegal departure may well be persecution for political opinion or for membership of a particular social group. I should point out that the applicant does not go on to define or describe the particular social group to which reference is made. 42 In relation to the applicant's departure from China the tribunal made the following finding: "The evidence indicates that any obtaining of false documentation by the applicant does not in the circumstances of this case disclose a nexus with the Convention. Any use by him of false documentation may constitute a breach of administrative and/or criminal laws. The Tribunal finds that any resultant penalty of the applicant would occur due to a breach of such laws rather than by reason of any Convention ground. There is no material to indicate that persons who have departed China illegally may have a political opinion imputed to them which may cause a disproportionate penalty due to their breach of the administrative or criminal code. Even among highly publicised "boat people" there is no evidence that they attract disproportionate penalty of any kind upon return to China". 43 I agree with the respondent that there is no basis for the applicant's contention that the tribunal's treatment of this issue ignored the possibility of a person travelling on false documentation being persecuted for political opinion. The tribunal made a finding of fact in that regard, limited to the facts of the case. The tribunal found that there was no evidence that the applicant would be punished for a Convention reason. Whatever may be the merit of this finding of fact, it involves no error of law. 44 Finally, it is alleged that the decision was affected by actual bias. Section 476(1)(f) provides that a decision of the tribunal may be set aside if the decision was induced or affected by actual bias. 45 This allegation merits little attention. To establish bias the applicant must show that the tribunal had a "closed mind" to his case; that it was not open to persuasion. I have examined the transcript of the hearing before the tribunal, as well as its reasons, and can find no support whatsoever for the allegation. The transcript shows that the tribunal gave the applicant every opportunity to put forward his case. Nothing indicates that the tribunal had a predisposition, one way or the other, for a particular outcome. To the extent that the applicant relies upon the failure to deal with the alleged interrogations and the alleged demotion, and the manner in which the tribunal found against him on the order for arrest document, for reasons which will by now be apparent, those matters do not advance the applicant's case. 46 The application will be dismissed with costs. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.