Chan Yee Kim v Minister for Immigration and Ethnic Affairs

In relation to the applicant's asserted fears arising from events during the Cultural Revolution the Delegate made the following comments and finding:- "I acknowledge that the applicant and his family may have experienced hardship such as interrogation and mistreatment during the Cultural Revolution. However, the Department of Foreign Affairs and Trade has advised that at the Third Plenary Session of the 11th Central Committee of the Communist Party of China, adopted on 22 December 1978, formally repudiated the policies which characterised the Cultural Revolution. There is no suggestion that the current political leadership (which includes many political figures who suffered during the period 1966-78) has any intention of reactivating or returning to the kind of repressive policies prosecuted during the Cultural Revolution. In the context of these policy changes I do not accept that, because of hardship suffered during the Cultural Revolution, the applicant would be subjected to persecution if he were now to return to the PRC."

Mr Li's assertions that he would suffer persecution on religious grounds did not impress the Delegate. The Delegate said that he had "serious difficulties with the veracity of the applicant's claims" in this regard. He noted that the applicant appeared to be claiming that he was both a practising Christian and a practising Buddhist. In any event, official information obtained from a US Senate Report of February 1991 and a US State Department 1990 Country Report satisfied him that any persecution on grounds of religion affected only leaders and members of the clergy, not the congregation. In relation to the applicant's participation in pro-democracy demonstrations, the Delegate made the following comments:- "I acknowledge that the applicant may have taken part in pro-democracy demonstrations in the PRC and Australia and that he may have made financial contributions to the movement. He has not, however, established that his level of political activity would result in a real chance of him being subjected to persecution on return to the PRC. In reaching this conclusion I give weight to advice received from the Australian Embassy in Beijing that participation in demonstrations does not normally, by itself, lead to serious ramifications."

The Delegate also was of the view that the alleged monitoring of mail and telephone conversations in China should not be seen as being out of the ordinary and were not capable of founding the relevant fear. He also noted that the applicant had joined the organisation known as the Federation for a Democratic China on 4 June 1991. In relation to this fact he made the following comments and findings:- "I accept that the applicant could have joined the FDC on 4 June 1991, but I do not find plausible his claimed fear that membership of an overseas pro-democracy organisation would attract the prospect of persecution on return to the PRC. I am satisfied with advice from the Australian Embassy in Beijing which indicates that a clear distinction has been drawn by the PRC authorities between those who play leadership roles in overseas opposition organisations and those who are members only. Upon return to the PRC a person who merely participated in protest activities may not be penalised at all and if there were a penalty, it would be unlikely to go beyond an adverse note on their personal file or a self-criticism session. In so far as the applicant may have been a member of FDC, I do not consider that this is sufficient grounds to give rise to a well-founded fear of persecution in terms of the 1951 UN Convention."

Additionally, the Delegate indicated some concerns as to the credibility of the applicant saying that it was open to him "to draw the inference that his joining of the FDC was done to enhance his claim". He found that Mr Li did not have a real chance of persecution for a Convention based reason should he return to China and accordingly he was not a refugee within the meaning of the Convention. On 17 February 1992 Mr Li applied for review of the Delegate's decision by the Refugee Status Review Committee. Before his application could be considered that body was abolished on 1 July 1993 and replaced by the Tribunal, which on 11 June 1996 affirmed the Delegate's decision. This is the decision in respect of which review is sought in this application. Accordingly, it is necessary to consider the course of proceedings before the Tribunal and the Tribunal's reasons for the rejection of Mr Li's application. THE CASE BEFORE THE TRIBUNAL On 31 August 1993 the Tribunal advised the applicant that he should forward any documents or written arguments to it for its consideration. In response to this, on 1 September 1993, the applicant sent supplementary material to the Tribunal concerning his involvement in an organisation known as the Lao Gai Research Foundation ("the Foundation"). On 23 July 1994, 9 July 1995 and in January 1996 Mr Li sent the Tribunal additional material relating to his involvement with this organisation. It appears from the evidence that the Foundation is an organisation formed in the United States of America and led by a Mr Harry Wu. The Australian branch was established in early 1993 after Mr Wu had visited Australia. The organisation is involved in identifying products allegedly made in forced labour camps in China which are then exported overseas for sale. The Australian branch was involved in identifying such products which were being sold retail in Australia. The material forwarded to the Tribunal had not been before the Delegate as, at the time of the earlier hearing, the applicant had not been involved with this organisation. The material presented on 1 September 1993 was, for the most part, directed to his involvement with the Foundation in Australia. In a statement forwarded to the Tribunal Mr Li spoke of his being introduced to the work of the Foundation by a friend Mr Zhao Bang Huang in February of 1993. It spoke of the applicant's having done a lot of work in investigation and research in 1993, work which had been brought to the attention of the Australian Government. He detailed work in April and May 1993 in the investigation of "dumping of products in Queensland market which was made in labour camps in China". Photographs of the allegedly dumped products were provided. Reference was also made to activities in May and June undertaken by the applicant in relation to the visit to Australia of Mr Wu. Photographic evidence of this event was also provided. In August and September the applicant was involved in the organisation of photographic exhibitions in Brisbane and the Gold Coast and at Darling harbour, Sydney, under the title of "Lao Gai - The Chinese Gulag". There was news coverage of these exhibitions in a Gold Coast newspaper on 16 August. Evidence was also furnished of Mr Li's donations to the funds of the Australian branch and of representations made by the Foundation to a Parliamentary Committee on Foreign Affairs and Trade at Canberra on 27 February 1995. Finally, there was before the Tribunal a letter from Mr Wu to the applicant thanking him for his work and advising him that he, Mr Wu, had been arrested by the Chinese Government when in China in 1995 because he "investigated and did research on forced labour issue". The letter indicated that Mr Wu had been sentenced to 15 years in prison and then expelled from China. The letter advised Mr Li to be cautious if returning to China and spoke of "Communist China's intransigent attitude towards the forced labour issue". The need for caution in this regard was further emphasised by a letter from Mr Huang which spoke of the care that should be taken by members of the Foundation to avoid "retaliation from the Chinese Communist Regime". On 29 May 1996 the Tribunal held a hearing in relation to Mr Li's application. At that hearing the applicant gave evidence and was supported by the oral testimony of Mr Huang. In his evidence, given through an interpreter, Mr Li, in answer to the question "why is it that you don't wish to return to China?", said "I have actually been engaged in a lot of activities which the Chinese Government would deem to be harmful to them". In further evidence he explained that he joined the Foundation about February 1993 when the Australian branch was established. Mr Huang had played a part in his joining the organisation. He referred to the organisation having its headquarters in the United States of America and said that Mr Harry Wu was its head. Mr Li went on to indicate that the Australian branch had investigated the volume of "labour reform prison products" which were actually in Australia and provided brand names for particular items of equipment on sale in this country. He said the information was passed on to the Australian Government, the Customs Department and the Human Rights Commission. He said that there were not more than 10 members of the Foundation in Australia under the leadership of Mr Huang and that the meetings were held irregularly and only when instructions were received from headquarters. The last meeting was at the time Mr Harry Wu visited Sydney, about March or April of 1995. The hearing then moved on to other topics such as the applicant's religious concerns and the problems that he and his family had experienced during the period of the Cultural Revolution. These matters covered the same ground as those considered by the Delegate. There is no need to refer to them in detail. Mr Huang then gave evidence. He described the Foundation and its branch activities in Australia in a manner generally corroborative of what the applicant had said. He described it as being "a human rights organisation". The branch did not have regular meetings, the meetings taking place only when he summoned the members to attend. He said "our major task in Australia is actually to disclose China's labour reform prisoners' products sold in Australia, and to promote Australia and United Nations to ban the products from being imported into Australia". Reference was made to the formal report in 1995 submitted by the organisation to "the Foreign affairs Committee in the Australian Government". He also mentioned that Mr Wu had advised them that they should not go back to China. During a short adjournment Mr Li was given for consideration material in the possession of the Tribunal indicating that "at least since mid-1992 the Chinese Government has not been pursuing pro-democracy activists with a profile similar to yours and that while the authorities have taken action against some very prominent pro-democracy activists even with them, as was the case with Mr Wu, their preferred method of dealing with them has been to send them into exile rather than to punish them in China". Upon resumption Mr Li was asked whether he wished to make any comment about those matters. Mr Li, in reply, re-emphasised the work done by the Foundation in Australia and stated that it had led to a lot of resistance to the purchase of Chinese exported products made in the labour camps. He said that as a result China "has suffered enormous economic loss". He asserted that the damage done by his organisation in political and economic areas actually far exceeded "any work that had been done by any other pro-democracy activists". He said, finally:- "Ever since Mr Harry Wu's arrest, sentencing and subsequent expulsion from China Mr Wu has actually instructed us to keep a very low profile, not to return to China and also avoid conducting any exhibitions or displays of out research materials. Then I realise the seriousness of this problem if I ever return to China. It is not that I don't want to return to China, but the time has not come - the time I am talking about China would be in a condition where the permission for real expression of opinion, that there would be tolerance or political dissent and different political beliefs and that religious freedom would be allowed. By then I would return to China."

The Tribunal reserved its decision. On 11 June 1996, as already indicated, the application was rejected and the decision of the Delegate not to grant a protection visa to the applicant was affirmed. It is necessary to consider the reasons given by the Tribunal for this decision. REASONS OF THE TRIBUNAL The Tribunal set out in some detail the relevant legal principles to be applied by it in the determination of whether Mr Li qualified for "refugee status". Under the heading of "Background and Claims", the Tribunal, after making reference to the applicant's concerns during the period of the Cultural Revolution, referred to his claims in relation to the Foundation as follows:- "He said that he fears the consequences of returning to China, primarily because of his involvement in a pro-democracy group in Australia which is a branch of the Laogai Research Foundation formed in the United States of America and led by Mr. Harry Wu. He explained that an Australian branch was established in early 1993 following a visit by Harry Wu and that he has since been involved in identifying which products that are made in forced labour camps in China are retailed in Australia. He said that the group consists of no more than 10 members and meets irregularly. He added that it last met in the first half of 1995. He said that information about those products has been conveyed by letter to the former Minister for Foreign Affairs and Trade, to the Customs Department and to the Human Rights Commission."

Reference was also made to Mr Huang's evidence as follows:- "The leader of the group of which the applicant is a member generally corroborated the applicant's evidence concerning the purpose and activities of the group, its size, and its frequency of meeting. He showed the Tribunal several photographs of products with which the group was concerned and submitted a letter stating essentially that Harry Wu had advised the group's members to be cautious in their activities. He said that they had heeded that advice in that they did not publicise their activities or display any of their research evidence. He said, however, that the Chinese government had condemned their exposure of the existence of forced labour camps."

Under the heading "Discussion of Evidence and Findings" the Tribunal indicated that it accepted "that members of the applicant's family were persecuted during the time of the Cultural revolution in ways he has claimed". It then considered material from a large number of sources which it dealt with compendiously by saying that:- "All the available information concerning whether treatment meted out to Chinese citizens nowadays is influenced by judgments that were made about them or their families during the Cultural Revolution point in the same direction, namely, that there is no link."

It finally made the following finding as to this aspect of the applicant's claim:- "While it is conceivable that acrimony, or even discrimination, may persist in some quarters as a result of actions that were taken during the period of the Cultural Revolution, the Tribunal finds that any lingering fear of persecution as a consequence of the policies of that period, or their implementation, is not well-founded."

In relation to the specific case presented by the applicant as to fears of persecution based upon his activities on behalf of the Foundation, the Tribunal made only the following findings:- "The Tribunal is satisfied that the applicant has undertaken work in Australia in conjunction with a group concerned with drawing attention to conditions in forced labour camps and with lobbying to block trade in goods manufactured in such camps. In that regard it notes, however, that the group is small and, on the applicant's evidence, has not met for about a year. Its activities are discreet and not publicised. While accepting that the applicant is sincere in his efforts to fulfil the aims of the group it is apparent that his role is occasional, private and that his work on behalf of the group is carried out under the instructions of others."

It is to be noted, at this stage, that the Tribunal has made no findings on what might properly be called the major issues raised by this part of the applicant's case. These were that the lobbying activities had been effective and had caused considerable economic harm to China's export trade and that the leader of the organisation had been arrested on a visit to China and sentenced to 15 years detention in China because of his activities. He was not required to serve this sentence because, apparently, so the evidence goes, he was expelled instead. The claim was also made by the applicant and supported by some documentary material, that Mr Wu, as a result of his treatment in China, had issued a warning to other members of the organisation to maintain a low profile in the countries in which they were resident and also to avoid return to China. No findings were made by the Tribunal on these factual claims. Moreover, no findings were made as to the apparently quite public nature of the Australian group's activities before the warning was received from Mr Wu. These activities consisted of exhibitions of photographs, written slogans, arguments and dissertations in public places and in newspapers. No finding has been made as to the likelihood of these earlier non-private activities having attracted the adverse attention of the Chinese authorities. Nor was any finding made adverse to the credibility of Mr Li and Mr Huang on these aspects of the case. The Tribunal then continues in its reasons to consider "what flows from the pro-democracy activities of the applicant". Reference is made to a cablegram of 1 June 1993 from the Department of Foreign Affairs and Trade which stated that:- "Students and others who did not have a high dissident profile and significant influence in China at the time of the Tiananmen incident, even if they are now office bearers of overseas pro-democracy organizations, would have only a remote chance of facing administrative or criminal sanctions by the Chinese authorities unless, after their return, they initiated organised activities opposing the government in an effective way..."

Apparently based upon this information, the Tribunal made the following findings:- "The Tribunal finds that the applicant has not had a dissident profile in China. His claims are based on his activities in Australia. There is no indication before the Tribunal that he would effectively organize opposition to the government if he were to return to China. It follows that he does not, therefore, face a real chance of persecution due to any dissident activities in which he has engaged."

After consideration of further material relating to the treatment of dissidents in China, the Tribunal made what appears to be its final appraisal of whether the applicant could be regarded as a refugee on the basis of a well-founded fear of persecution on the grounds of political opinion. The Tribunal was, of course, clearly applying the "real chance" test enunciated in Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. It stated as follows:- "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 were low profile activists in 1989 ceased some time ago. While some persons who were arrested at that time continue to suffer harsh penalties and inhumane conditions there is no evidence of the authorities continuing to punish persons with a `low profile' who actively supported the pro-democracy movement. Recent commentaries on the political situation in China and lists of persons who have recently been subjected to arbitrary arrest demonstrate that those who are regarded as leaders and/or high profile activists with potential to generate effective opposition to the regime in China may face a prospect of adverse consequences, including arrest. Those with a lengthy history of dissent in China seem especially at risk of arrest. 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 the Chinese authorities. In assessing the information available to it, in the light of the applicant's own profile, the Tribunal finds there is not a real chance that he would encounter serious harm in China due to his support of the pro-democracy movement."

Other asserted fears on different Convention grounds were rejected by the Tribunal. They were not the subject of appeal and, accordingly, no reference need be made to them. I turn then to the questions argued on the appeal to this Court from the Tribunal's decision. As the scope of that appeal has been severely limited by the current legislation it is necessary to set out the relevant sections of the Migration Act 1958 ("the Act"). THE LEGISLATION The relevant sections relating to the operation and powers of the Tribunal are as follows:- "420. (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. ... 425. (1) Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary. (2) Subject to paragraph (1)(a), the Tribunal is not required to allow any person to address it orally about the issues arising in relation to the decision under review. ... 427. (1) For the purposes of the review of a decision, the Tribunal may: ... (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.

... 430. (1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based. ..."

The relevant provisions relating to review of decisions by the Federal Court are as follows:- "476. (1) Subject to subsection (2), the 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; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (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; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision. (2) The following are not grounds upon which an application may be made under subsection (1): (a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power. (3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to: (a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and (b) an exercise of a personal discretionary power at the direction or behest of another person; and (c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; but not as including a reference to: (d) taking an irrelevant consideration into account in the exercise of a power; or (e) failing to take a relevant consideration into account in the exercise of a power; or (f) an exercise of a discretionary power in bad faith; or (g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c). (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

Portions of this legislation have been the subject of prior judicial consideration, particularly as to what role should be played by the provision in s 420(2)(b) that the Tribunal "must act according to substantial justice ...". Before turning to those cases, however, it is necessary to set out the grounds upon which the applicant seeks review of the Tribunal's decision. They are as follows:-

"1. The Tribunal, in reviewing the decision, did not act according to substantial justice and the merits of the case. Particulars (a) The Tribunal did not specifically consider the position of a person in the position of the applicant, as a person who had worked for the Laogai Research Foundation. (b) The Tribunal failed to make adequate enquiry into the Laogai Research Foundation and into the objective basis of the applicant's fear of persecution as a member of this or a similar group. 2. The Tribunal erred in law, being an error in the interpretation of the law, in neglecting to make its own enquiries into the Laogai Research Foundation and into the objective basis of the applicant's fear of persecution as a member of this or a similar group. 3. The Tribunal based the decision on the existence of particular facts and those facts did not exist. Particulars (a) The Tribunal, in making its decision impliedly found that people associated with the Laogai Research Foundation would be treated by the government of the Peoples Republic of China as having been involved in ordinary pro democracy activities and would not be persecuted, and there is no evidence to support this finding. (b) The Tribunal found that the activities of the Laogai Research Foundation in Australia are discreet and not publicised' and there is no evidence to support this finding. (c) The Tribunal found that the applicant's role in the Laogai Research Foundation was ...private...' and there is no evidence to support this finding. 4. The Tribunal failed to consider by reference to the applicant's activities with the Laogai Research Foundation, whether the applicant faces a real chance of persecution should he return to the Peoples Republic of China. Particulars see particulars under grounds 1 and 3 above 5. The Tribunal did not consider material placed before it which it was bound by law to consider. Particulars (a) Photographs of the applicant on the Tribunal's file, now exhibited at Annexure B' at folios B5 to B16 and B43-46 inclusive of the affidavit of Justin John McDonnell affirmed on 18 September 1996." All these grounds were relied upon and developed in argument on behalf of the applicant. Their existence was denied by the respondent who asserted that they were either not available on the facts before the Tribunal or were expressly excluded by the limiting provisions of the legislation. In my view, there is some overlapping between the grounds. Particular 1(b) and ground 2 raise the question of failure on the part of the Tribunal to make adequate inquiries and can reasonably be considered together. Also, ground 4 would appear to be subsumed in ground 1 insofar as it alleges that the Tribunal did not, in fact, decide a major issue involved in the application. Grounds 3 and 5 each have an independent existence. It is convenient to deal with them first. Ground 5 may be disposed of shortly. It relates to an alleged failure of the Tribunal to consider certain photographs. There is nothing in the material that establishes that the Tribunal did not in fact consider this evidence. In my view, the ground really amounts to an allegation that the Tribunal did not give sufficient weight to the photographs. The attribution of weight lies in the area of factual determination which is not susceptible to review by this Court. The existence of the photographs may be of significance in relation to other grounds but they do not provide any basis for this separate ground. Moreover, insofar as their consideration was "a relevant consideration", s 476(3)(e) prevents this Court from taking them into account as a ground for review of the Tribunal's decision. Ground 3 relies upon ss 476(1)(g) and 476(4)(b). Sections identical in their terms in the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") were considered by a Full Court of this Court in Curragh Queensland Mining Limited v Daniel & Ors (1992) 34 FCR 212. It is sufficient, for present purposes, to refer to that portion of the headnote which deals with the construction of the sections. It reads as follows:- "Section 5(1)h of the Act provided for a ground of review on the basis that there was no evidence or other material to justify the making of the decision'. Section 5(3) provided that `the ground specified in paragraph 1(h) shall not be taken to be made out unless ... (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist'. Held, in allowing the appeal: (1) There was no evidence or other material to support a critical finding made by the decision-maker.

(2) Section 5(3) of the Act does not require the identification of some single particular fact as being the foundation for a decision. A decision may be based upon the existence of many particular facts, each one of which is critical to the making of the decision, and the non-existence of which is sufficient to flaw the decision. ... (3) It is not sufficient for the person challenging a decision under s 5(3)b of the Act to show that there was no evidence before the decision-maker of the fact found, or assumed, as the basis for the decision. The applicant must positively show that the fact, or the assumption, did not exist. The appellant may establish this by admissible evidence before the court making the review and is not limited to material that was before the decision-maker."

It should be noted that no evidence was called before the Court by the applicant in support of this ground. It was submitted that the evidence before the Tribunal was sufficient to establish the particular matters relied upon. As to particular 3(a), a reading of the Tribunal's reasons leaves me quite unsatisfied that the Tribunal made the implied finding relied upon. Indeed, I am left satisfied that the Tribunal did not in fact make any finding as to how the government of China would treat persons involved in the activities of the Foundation. Accordingly, I find that ground 3 is not established in this regard. Particulars 3(b) and 3(c) depend upon a certain construction being given to passages from the Tribunal's reasons which are set out earlier in this judgment. On that construction the Tribunal's findings that the activities of the Foundation in Australia "are discreet and not publicised" and that the applicant's role in the Foundation was "private" are said necessarily to apply to the whole of the relevant activities and not merely to those occurring after Mr Wu's warning. If that were so then it would be undoubtedly arguable that those factual findings were critical to the Tribunal's decision and that the facts did not exist. Other unchallenged material before the Tribunal would, clearly enough, indicate that earlier activities of the Foundation and the applicant's role in those activities were not discreet, unpublicised or private. However, I am satisfied that the Tribunal's findings are not intended to relate to those earlier periods. It has simply failed to make any findings in that area. Accordingly, ground 3 is not made out. I come, then, to the questions whether relevant error has been disclosed through the failure of the Tribunal to make any inquiries of its own into the operations of the Foundation and whether the attitude of the Chinese authorities to those operations could result in the applicant's facing a real chance of persecution should he return to China. It should be remembered that the material, oral and documentary, in relation to the Foundation and the applicant's role in it was not before the Delegate as the applicant did not become involved in the organisation until some 12 months after the Delegate's decision. Consequently, there were no specific Departmental inquiries in this area undertaken in aid of the Delegate's decision. In such circumstances, it seems plain that the Tribunal would have been aware that this material was being proffered for consideration for the first time in the proceedings before it. The alleged effect of the Foundation's operations upon Chinese exports and the reaction of the Chinese authorities to the presence of Mr Wu in China depended upon the testimony of Mr Li and Mr Huang. The reasons of the Tribunal provide no indication that that testimony was not fully accepted. That being so, the material before the Tribunal indicated that the leader of the Foundation, because of its activities, had been sentenced to 15 years imprisonment but that he was expelled from his native country instead of being required to serve the sentence. It was submitted on behalf of the applicant that the activities of the Foundation in which he was involved were different in kind and extent from what might properly be described as "pro-democracy" activities which involved protests as to the form of government in China but did not involve attacks on its economy. In this context it was further submitted that the Tribunal's reliance upon materials which tended to demonstrate the immunity of low-level overseas dissidents from persecutory activity in China, provided that such dissidents did not engage in overt anti-government activity upon their return, was demonstrably inadequate as a counter to the applicant's evidence. This was especially so when the material relied upon originated no later than mid-1994. On this basis it was submitted that the Tribunals' failure to make further inquiries as to the possible effect of involvement in the operations of the Foundation amounted to reviewable error. The point was also made that the restrictions upon the making of oral addresses to the Tribunal by s 425(2) increased the need for the Tribunal, in the interest of justice, to make relevant inquiries. Although these arguments have some attraction, there are impediments to their acceptance. In the first place, of course, there is no general rule of administrative law that an administrative decision-maker is obliged to make or cause to be made inquiries in areas which have been opened up by materials placed before him on behalf of an applicant. It has been frequently held that the concept of onus of proof is not appropriate to administrative inquiries and decision-making (see e.g. McDonald v Director General of Social Security (1984) 1 FCR 354 at 358-9 per Woodward J, 368-9 per Jenkinson J; Nagalingan v Minister for Immigration (1992) 38 FCR 191). Whether the absence of further inquiries is indicative of reviewable error is entirely dependent upon the facts and circumstances of the individual case. Examples of cases where further inquiry was seen as being required are given by McHugh J in Minister for Immigration and Ethnic Affairs v Teoh (1994-95) 183 CLR 273 at 321 in the following passage:- "In a number of cases, the Federal Court has found that a failure to make further inquiries constituted an improper exercise of the power granted by the statute or a failure to take into account a relevant consideration in exercising that power. In those cases, the Federal Court has held that further inquiries should have been made because (1) a specific matter was raised by an applicant or was within the knowledge of the Minister and that matter could not be properly considered without further inquiry (eg, Lek v Minister for Immigration, Local Government and Ethnic Affairs [No 2] (1993) 45 FCR 418; Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363; cf Singh v Minister for Immigration and Ethnic Affairs (1987) 15 FCR 4), (2) the information before the Minister was not up to date (eg, Tickner v Bropho (1993) 40 FCR 183) or (3) the absence of information before the Minister resulted from the Minister's officers misleading the applicant (eg, Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167)."

A major question in the present case, however, is whether the considerations which might lead to a determination that the decision-maker was required to make further inquiries are not foreclosed by the present legislation. The requirement for further investigation does not, as it were, stand alone. It would seem that it finds its origin either in the broad concept of natural justice or in unreasonableness principles in the sense that the circumstances may be such that no reasonable decision-maker could forego the making of further inquiry (see e.g. Teoh at 289-290 per Mason CJ and Deane J). This being so, a failure to make further inquiry would not provide grounds for review by this Court because of the application of ss 476(2)(a) and (b). I am, accordingly, satisfied that the grounds based upon failure to make further inquiries are not made out. However, there is an aspect of the general question of inquiry which needs consideration in this case to which I shall now refer.

It will be observed that s 425(1)(b) of the Act empowers the Tribunal to "obtain such other evidence as it considers necessary" and that s 427(1)(d) provides it with the ancillary power of requiring "the Secretary to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review ...". The legislation, therefore, in my view, imposes upon the Tribunal (at least where circumstances so dictate) an obligation to consider whether it is necessary to obtain further evidence for the proper conduct of the review. A failure to enter upon this consideration would be reviewable error. It may be, and I express no concluded view, that the section does not impose the obligation of consideration in all circumstances. However, in a case such as the present, where information of obvious significance is provided for the first time to the Tribunal then, in my view, the statutory obligation arises. The Tribunal must consider whether it wishes to obtain further relevant material. The decision either to seek or not to seek such further material is probably not a reviewable decision for the reasons I have already given. However, a failure to consider the question, at least where consideration was obviously called for, would, in my opinion, be an error capable of vitiating the review process and would be reviewable by this Court under s 476(1)(a) of the Act. This matter was not argued before me and I do not make it the basis of my present decision. However, as it is my view that the matter must be returned to the decision-maker in any event, it is appropriate that I express my opinion on this topic in the manner that I have. I come then to the first ground of appeal. It is based upon an alleged failure of the Tribunal to "act according to substantial justice" as required by s 420(2)(b). Such a failure is, it is submitted, reviewable under s 476(1)(a) as being the non-observance of a procedure prescribed by the Act in connection with the making of the decision. It is further submitted that it would be reviewable under s 476(1)(e) as involving "an error of law" within the meaning of that section. The question whether ss 420 and 476 can have this combined operation has been the subject of conflicting responses in this Court. I shall refer, briefly, to the decisions which have been given. In Asrat v Vrachnas & Anor (Unreported, 23 August 1996) O'Loughlin J said, obiter, (at 9-10): "I will deal first with s420. That section directs the Tribunal as to the manner in which it is to exercise its powers. If, for example, material information adverse to the interests of the applicant came to the notice of the Tribunal, and it appeared that the applicant had never been apprised of that information, it would be incumbent on the Tribunal to bring it to the attention of the applicant. Not to do so and then to use it against the interests of the applicant would not accord to substantial justice and would amount to an error of law, allowing this Court to intervene under par 476(1)(e); that, in my opinion, would be the appropriate ground. Paragraph 476(1)(a) deals with the subject of procedures, and I do not think that a failure of the type that I have postulated would be a breach of a procedure, it would be a breach of the standards laid down in par 420(2)(b). It must not be overlooked that even though par 420(2)(b) requires the Tribunal to act according to the merits of the case, this Court is not empowered to engage in an exercise of reviewing the merits. The force and effect of par 420(2)(b) is therefore subject to that limitation in these and like proceedings. The limitation on the Court exists because there is a full review of the merits available in the Tribunal."

In Singh v Minister for Immigration and Ethnic Affairs (Unreported, 18 October 1996, Lockhart J) his Honour, after considering some earlier decisions to which it is unnecessary for me to make reference, said (at 51-52):- "Section 420 is mandatory in its requirement that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s. (2)); and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s. 420(1))."

His Honour then indicated that on the facts he was not persuaded that substantial justice had not been afforded to the applicant. He then continued (at 52):- "If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s. 476(1)(a), the procedure being to act according to substantial justice in reviewing a decision."

In Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474 Hill J, after a consideration of relevant portions of the Explanatory Memorandum to the Bill for the Migration Reform Act 1992 ("the Explanatory Memorandum") which introduced (inter alia) ss 420 and 476 and certain earlier decisions in which applications had been dismissed on the ground that they were seeking no more than a review on the merits, said as follows (at 484):- "A Full Court of this Court (Black CJ, Davies and Sundberg JJ in Dai v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996) considered, inter alia, an argument whether the 1992 legislation had ousted the jurisdiction of the Courts. In saying that this was not the case, Davies J, after setting out the terms of s420, said (at 17): It is plain from such provisions that, not only does the Migration Act provide for review on the merits by the Refugee Review Tribunal, but it intends that the mechanism of review' will be fair. Although s420(1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be fair' and just'. If this has not occurred in the present case, the applicant will be entitled to seek relief under s476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed.' His Honour's comments are, of course, but dicta."

His Honour later referred to the decision of Lockhart J in Singh, setting out the passage already referred to in these reasons. His Honour then continued (at 484-485):- "As a matter of construction, I see no reason to depart from the view expressed by both Lockhart and Davies JJ that s420 specifies at least one of the procedural requirements to which s476(1)(a) refers. But having said that, it is necessary to observe that the procedural specification in s420 is somewhat vague. It imports no more than that the review mechanism is to be fair and just. The reference to the merits of the case in s420(2) can not be read in isolation. The section could never be construed as creating a form of merit review. The reference to merits' has to be read in conjunction with the words substantial justice', so that the prescription is that the Tribunal is to proceed with a review on the merits acting fairly and justly. The references, however, to fairness and justice in s420 must be read subject to the provisions of s476(2) so that, if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded, notwithstanding the terms of s420. This so narrows the ambit of s420 as to leave little scope for its operation, but that is not to say s420 has no role at all."

In Thanh Phat Ma v Billings (1997) 142 ALR 158 Drummond J adopted an opposing view of the operation of these sections. Drummond J, in dealing with the effect of s 420(1) said (at 163-164):- "The obligation cast by s 420(1) on the Tribunal to pursue the objective of providing a mechanism of review that is fair, in carrying out its functions under the Act, would appear to impose on the Tribunal the duty to comply with the rules of natural justice in dealing with each matter that is brought before it. It has been said on many occasions that natural justice and fairness are to be equated Ľ And it has been recognised that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness': Kioa v West (1985) 159 CLR 550 at 583, 601, 613-615 and 622. The modern cases contain many dicta to the same effect. See, eg, National Companies and Securities Commission v The News Corporation Ltd (1984) 156 CLR 296 at 312, 320 and 326; Salemi v Mackellar (No 2) (1977) 137 CLR 396 at 445 and 451 and, most recently, Boucher v Australian Securities Commission (Full Federal Court, 5 December 1996). The Courts have declined to define the content of the requirement, not uncommon in Australian statutes dealing with administrative tribunals, that the Tribunal must act in accordance with substantial justice and the merits of the case, a requirement imposed on the RRT by s 420(2)(b). The notion of substantial justice' is well understood in private international law. While common law courts will recognise as valid the decree of a competent foreign tribunal that determines the status of a person domiciled in the jurisdiction of that tribunal, those courts will still refuse to recognise such decrees where they offend against local ideas of substantial justice or have been obtained in the foreign court contrary to the requirements of common law notions of procedural fairness or natural justice: Bouton v Labiche (1994) 33 NSWLR 225 at 234. By reference to the concept of natural justice, foreign divorce decrees have been denied local recognition when obtained without notice to the other party: see, eg, MacAlpine v MacAlpine [1958] P 35 at 42. By reference to the concept of `substantial justice', English Courts have refused to recognise foreign nullity decrees granted on the basis that the English marriage had not been solemnised in a church of a particular religious denomination: see, eg, Gray v Formosa [1963] P 259. It is clear, in the private international law context, that "substantial justice" involves concepts quite different from natural justice or procedural fairness. There is authority that the obligation cast by s 420(2)(b) on the Tribunal to act, in reviewing a decision, according to substantial justice and the merits of the case, does not entitle the Tribunal, in the exercise of the decision-making power conferred on it by s 415(1), to grant a visa to an applicant who is unable to satisfy the relevant statutory criteria. See Kumar v Immigration Review Tribunal (1992) 36 FCR 544. Fisher J reached a similar conclusion as to the significance of a provision to the same effect in s 107VG the Repatriation Act 1920 (Cth) in Collins v Repatriation Commission (1980) 48 FLR 198. That s 420(2)(b) has this operation is, I think, made clear by s 415(4), which prohibits the Tribunal from making a decision that is not authorised by the Act or the regulations. Section 420(2)(b) is thus directed to procedural, not substantive, matters."

His Honour went on to say (at 164-165):- "The statutory duty must, therefore, I think, be limited to a duty to make a determination whether the statutory criteria are satisfied in accordance with procedures that will ensure that the real issues relevant to the determination are identified and considered. I have difficulty in finding any distinction between such procedures and the requirements of natural justice. ..."

After consideration of decided cases, to which I have already made reference, his Honour said (at 166):- "If I am correct in thinking that s 420 obliges the RRT, in reviewing a decision, to comply with the rules of natural justice, while s 476(2)(a) prevents correction of a failure by the Tribunal to do that, it follows that the Parliament has adopted a process in which an applicant for review is entitled to expect that his application will be dealt with by the RRT in accordance with the principles of natural justice, but, if that does not happen, he is left without any remedy. But I think this is what Parliament must be taken to have intended."

This view of the effect of the section has been followed by Goldberg J in Jovicic v Minister for Immigration and Ethnic Affairs (Unreported, 18 March 1997). I am thus confronted with a conflict of views in first instance decisions of this Court. Accordingly, I must determine for myself what I consider to be the relationship between the requirements of s 420 and the limited powers of review conferred upon this Court by s 476. In the first place it is well to keep in mind that this country has undertaken solemn treaty obligations to afford sanctuary to refugees seeking to escape or avoid persecution on Convention grounds. The relevant sections of the Act are our legislative response to those obligations and, broadly speaking, provide mechanisms for the determination of whether the obligations exist in particular cases and for the fulfilment of those obligations where they are found to exist. The ultimate determination, subject to an overriding discretion of the Minister, of whether an applicant can claim refugee status is left to the decision of a lay administrative tribunal which is part of the apparatus of executive government. It does not, of course, exercise any part of the judicial power of the Commonwealth. That power, which is ordinarily available to supervise and control administrative decision-making by requiring that it conform to established common law principles and the legislative requirements of the ADJR Act has been severely curtailed by this legislation. The judicial power of the Commonwealth cannot be invoked to review such a decision on grounds as fundamental as that the rules of natural justice have been broken or that the decision is quite irrational (s 476(2)(a) and (b)). Nor can a decision be impugned in this Court on the basis that the decision-maker has, in the exercise of his power, taken into account irrelevant considerations or, conversely, failed to take into account relevant considerations. Moreover, should he indulge in a male fides exercise of discretionary powers, the Court is deprived of its customary role of intervention. Other curtailments exist but these appear to be the major ones. I should be loathe, unless so required by express legislative mandate, to hold that a person claiming sanctuary in this country as a refugee but who has been denied "substantial justice" (s 420(2)(b)) by the Tribunal hearing his case, cannot look to this Court for appropriate relief. However, that being said, the question necessarily remains one of statutory construction. It is convenient to commence with s 476(1)(a). It may well be thought that the legislature had in mind that this section would relate back to the sections contained in Subdivision AB of Division 3 of the Act which provide a "code of procedure for dealing fairly, efficiently and quickly with visa applications". Reference to the Explanatory Memorandum indicates that the legislature intended, as it were, to codify the rules of natural justice most commonly applicable in administrative decisions in this area. Whether it has succeeded in doing so need not be considered now. If it was intended that these codified rules should apply to the Tribunal in its deliberations then, according to prior decisions of this Court, it has failed to give effect to that intention. (Mahboob v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 398; Thanh; Asrat). The question must be approached therefore on the footing that s 476(1)(a) is not simply a provision empowering this Court to determine whether the requirements of the sections in Subdivision AB have been observed in the making of the Tribunal decision. It cannot have this effect. It is not to be assumed that it is merely nugatory. As it is remedial, it should not be given a restrictive interpretation. I agree, with respect, with the views of Lockhart and Hill JJ, set out above, that it provides power to this Court to review breaches of s 420(2)(b) insofar as, having regard to other relevant provisions of s 476, there remains any subject matter amenable to the power. The question is, as I see it, whether there remain any "procedures" necessary for the accomplishment of "substantial justice" in consideration of the application which have not been removed from judicial review by the exclusionary provisions of s 476. It was, of course, the considered view of Drummond J that those provisions had excluded review of such "procedures". According to his Honour, rights have been given to applicants requiring that their applications be considered in accordance with "substantial justice" but all curial sanctions for breach of those rights have been removed, with the result that any remedy for such breach can be found only in the area of politics. Drummond J has held, after careful analysis, that the requirement imposed upon the Tribunal by s 420(2)(b) that it "must act according to substantial justice" demands no more than that it obey "the rules of natural justice". In so doing, as I apprehend, his Honour has given to the term "rules of natural justice" the expanded meaning now commonly attributed to it, namely that "procedural fairness" be observed in decision-making. So regarded, the rules now embrace more than the traditional "hearing rule" (audi alteram partem) and the "bias rule" (nemo debet esse iudex in propria sua causa) (see generally, Aronson and Dyer Judicial Review of Administrative Action 1996 pp 387 et seq.). I think it reasonable that the expanded meaning be attributed to the phrase when used in s 476(2)(a). The Explanatory Memorandum suggests that the provisions of Subdivision AB of Division 3, may reasonably be thought to be an attempt on the part of the legislation to codify the requirements of "natural justice". They require (inter alia) the decision-maker to furnish to the applicant information thought to be relevant by the decision-maker, with a view to providing to the applicant the opportunity of responding to it. This may be thought to fall outside the ambit of the traditional rules, although within the concept of "procedural fairness" (Kioa v West (1985) 159 CLR 550). Consistency would require that a similar meaning apply in s 476(2)(a). Again, "substantial justice" is not a concept which admits of easy definition. In the Explanatory Memorandum the following explanation is offered in respect of s 420 and the use therein of the term "substantial justice":- "This section provides that the RRT shall have as its objective the providing of a mechanism of review that is fair, just, economical, informal and quick. The RRT in reviewing a decision is not bound by technicalities, legal forms or rules of evidence and shall act according to substantial justice and the merits of the case. `Substantial justice' is used to emphasise that it is the issues raised by the case, rather than the process of deciding it, which should guide the RRT in making its decisions. It is intended that the RRT will operate in an informal non-adversarial way that will facilitate applicants putting their own case in their own words."

I would emphasise the reference to "issues raised by the case" in this statement and note also that s 425(2) refers specifically to "the issues arising in relation to the decision under review". Whether the rules of "natural justice", as expanded to cover the general area of "procedural fairness", bring within their ambit a requirement that there be a proper formulation of issues to be decided in any situation where administrative decision is called for, so that the absence of such formulation in a "refugee case" would be a "natural justice" breach and not amenable to curial review is, perhaps, a moot point. Drummond J was clearly of the view that such a failure would infringe only the rules of natural justice and not call into operation any wider concept which might be connoted by the term "substantial justice". I agree, with respect, that this may well be so. The formulation of clear factual issues for determination is, quite obviously, fundamental to clear, fair, and effective decision-making. It is obviously strongly arguable that where such formulation is called for, its absence may lead to a significant interference with procedural fairness which will, however, fall outside the ambit of judicial review through the operation of s 476(2)(a). However, in my opinion, in the final analysis, that is not what this present case is about. I find it neither necessary nor desirable to undertake the task of defining "substantial justice" where used in s 420(2)(b) of the Act. It is sufficient for present purposes that I express agreement with the general thrust of the passage from the Explanatory Memorandum cited above, namely that the term "substantial justice" is concerned with the decision of the issues raised in the case rather than the process of deciding them. Considerations of natural justice focus upon "due process" in the making of decisions. Whatever else "substantial justice" may require it certainly demands, in my view, that a decision actually be made in respect of the significant issues posed in the case. If issues necessary for the proper determination of an application are clearly raised and left undecided by the decision-maker then, in my view, it is clear that "substantial justice" within the meaning of the section has not been accorded to the applicant. Section 420(2)(b) mandates that the Tribunal act in accordance with substantial justice. A failure to do so would be a non-observance of a procedure required by the Act and reviewable under s 476(1)(a). It would also, in my opinion, be a decision "not authorised" by the Act and, pursuant to s 476(1)(c), similarly reviewable. It is possible that it may also be reviewable under s 476(1)(e) but I prefer to express no concluded view as to this. As I have already indicated, I have formed the view that the Tribunal, in the present application, has failed to make any decision on what must be regarded as the major issue posed for determination, namely whether the applicant's involvement with the activities of the Foundation since the time of the Delegate's decision subjected him to a "real chance" of persecution should he return to China. There is no indication in the Tribunal's reasons that the applicant or Mr Huang were disbelieved in their testimony as to their fear of such persecution and the alleged grounds for it. Whilst paying due regard to the requirement that courts should not be overzealous in the scrutiny of administrative decisions I am, nevertheless, persuaded that the Tribunal's decision in relation to the low dissident profile of the applicant relates only to the period of time after cautions were received from Mr Wu. I am satisfied that the Tribunal has made no decision on the issues clearly posed as to whether the applicant's activities prior to this time, which were obviously public and observable, could have been productive of a much higher profile. Moreover, no decision has been made, in my view, on the equally important issue as to whether those activities, obviously of a political nature, had some significant impact upon Chinese trade in the relevant goods to the extent that retribution might be exacted if the applicant were to return to China. Failure to decide these matters, in my opinion, goes far beyond a mere "natural justice" failure to take relevant matters into consideration. It is a failure actually to decide matters essential for the disposition of the application. To this extent, in my view, the applicant has not been accorded substantial justice in relation to his application as is required by s 420(2)(b) and this has produced a situation requiring the intervention of this Court. I reach this decision without reference to authority.

However, I consider that the reasoning in Sinclair v Mining Warden at Maryborough (1974-75) 132 CLR 473 is generally supportive of it. Accordingly, I find that grounds 1(a) and 4 are established. I uphold the appeal and make the following orders: 1. The decision under review be set aside. 2. That the matter be remitted to the Tribunal for reconsideration according to law. 3. That the respondent pay the applicant's costs of these proceedings.

I certify that this and the preceding forty (40) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

Associate: Date: 24 APRIL 1997 Heard: 4 April 1997 Place: Sydney Decision: 24 April 1997 Appearances: Mr L. Karp, solicitor, instructed by McDonells Solicitors appeared for the applicant. Ms F. Backman of counsel instructed by the Australian Government Solicitor appeared for the respondent.