Chan Yee Kin v Minister for Immigration and Ethnic Affairs

THE COURT: The appellants are Nigerian nationals who arrived in Australia on 25 April 1996. On 26 April 1996 they applied for protection visas but a delegate of the respondent decided that they were not refugees and were not entitled to protection visas. The appellants then sought a review of the delegate's decisions before the Refugee Review Tribunal (the Tribunal). On 29 November 1996 the Tribunal affirmed the decisions of the delegate. Applications made to the Court pursuant to Part 8 of the Migration Act 1958 (the Act) to review the Tribunal's decisions were heard by Merkel J and were dismissed. The matters presently before the Court are appeals from the judgment of Merkel J. In each case the Tribunal made findings of fact adverse to the appellant's case and did so on the basis that it did not believe his evidence touching upon issues critical to the proof of his claimed fear of persecution. It is unnecessary to repeat here either the facts of the case or the issues raised on the hearing of the application for review, both having been comprehensively dealt with in the primary judge's reasons for judgment published on 3 December 1997. And in view of the conclusions we have reached it is unnecessary to canvass in detail the reasoning by which the primary judge arrived at his decision. As we are of the opinion that no error of law has been demonstrated, we intend to comment only briefly on the matters raised in argument before us. The grounds of appeal canvassed before us were substantially the same as those developed before Merkel J. The first ground was that the Tribunal and the primary judge failed properly to apply the Chan test: Chan Yee Kin v The Minister (1989) 169 CLR 379. Under this head it was submitted that the Tribunal failed to consider the totality of the evidence, failed to consider non-political Convention grounds, and failed to consider whether the appellants had a subjective fear of persecution; and that the primary judge was wrong in rejecting these submissions. In our view there is no substance in the "evidence" contention. There is nothing to suggest that the Tribunal failed to have regard to the whole of the evidence. The fact that parts of the evidence are not set out in the reasons under attack does not mean that the decision maker did not have regard to them: Steed v The Minister (1981) 37 ALR 620 at 621. In our view this contention is an invitation to us to review the Tribunal's decision on the merits, an option that is not open to the Court. The "non‑political profile" submission was, we think, properly dealt with by the primary judge. The appellants' case before the Tribunal was based on their political profile and it is clear that the case as argued before the primary judge relied only on the appellants' claimed fear of persecution by reason of their political opinion. At p 55 of the transcript of the proceeding before the primary judge, senior counsel for the appellants said: "No we are not running the case on that basis; we are running it on the case that they were politically active". Other comments made by counsel (notably at transcript 138 and 140) are entirely consistent with the passage quoted and put it beyond doubt that the appellants did not claim to fear persecution on other Convention grounds such as race or membership of a particular social group. We observe, as the primary judge did, that the appellants had legal representation throughout, filed detailed statutory declarations and written submissions, and were afforded every opportunity to put their case at the hearing before the Tribunal and before the primary Judge. Nor do we accept the "subjective fear" complaint. It is clear from a reading of the Tribunal's decision that, although there is no express finding in relation to subjective fear, the Tribunal disbelieved the appellants' evidence about their political profile. Because it did not believe their evidence about their Convention-based claim, it must have concluded that they did not have a Convention‑based subjective fear, and there was thus no occasion to ask the objective question whether the fear was well‑founded. The primary judge did not approach the matter in this way. He said that the Tribunal had assumed in favour of the appellants that they had a subjective fear, and then dismissed their claim on the objective limb. Because we think that in doing what it did the Tribunal did not fail to apply the subjective test, nothing turns on the fact that his Honour thought the same thing for a different reason. The appellants also attacked the credibility findings made by the Tribunal. Reference was made to the observations of Tadgell J in Prime Forme Cutting Pty Ltd & Ors v Baltica General Insurance Co Ltd & Anor (1991) 6 ANZ Ins Cas 61,028 and the longer unreported form of that judgment appearing in Butterworths Unreported Judgments. However, the feature of the present cases, which was absent in Prime Forme, is that the only evidence that supported the appellants' case was that of the appellants themselves, and they were disbelieved. We agree with the primary judge's treatment of the credibility submissions and find no error in his approach. The Chan contentions were repeated in connection with a claim that the Tribunal had constructively failed to exercise its jurisdiction. As counsel accepted, this contention stood or fell according to the fate of the Chan contentions. The appellants repeated their earlier submissions under a claim based on s 420(2)(b) of the Act that the Tribunal had failed to act in accordance with substantial justice and the merits of the case. Assuming in their favour that the line of authority illustrated by Eshetu v The Minister (1997) 145 ALR 621 is correct, this submission fails for the reason that the earlier submissions have failed. The appellants acknowledged in their written submissions that in order to succeed under s 420(2)(b) they had to make out the claims they had made under the earlier grounds of appeal. Mr Flower, for the appellants, contended that it was arguable that Eshetu made available a Wednesbury unreasonableness ground of review. Assuming that to be correct, we are unable to accept that this strict test is satisfied in the present case. The Tribunal's decision, in the light of the findings it made in each matter, could not be described as an exercise of power that is so unreasonable that no reasonable person could have so exercised it. The appellants also attacked the Tribunal's findings in relation to the question of internal flight. The internal flight or relocation notion applies where an applicant faces a real chance of persecution for a Convention reason in one part of the country of nationality. The issue may then arise whether it would be reasonable for that person to return to another part of the country. That issue did not arise in the present case. The Tribunal found that neither appellant faced a real chance of persecution upon return. However, each appellant seems to have had a fall‑back position that he could be exposed to violence if he returned. The Tribunal, although it was strictly unnecessary to do so, dealt with this submission by concluding that there were parts of Nigeria, other than the area known as Ogoniland from which the appellants had fled, to which they could safely return. The appellants' advisers do not appear to have taken issue with this. Their position was not that it would be unreasonable or impractical for the appellants to return to a part of Nigeria other than Ogoniland, but that to be forced to live elsewhere would amount to persecution because it would prevent them from expressing in Ogoniland political opinions about political matters arising there. The principle based on Randhawa v The Minister (1994) 52 FCR 437 did not arise. The Court is of the opinion that the appellants have not demonstrated any error on the part of the primary judge. Each appeal will be dismissed with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justices Olney, Sundberg and Marshall.