Chen v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT HILL J 1 Before the Court is an application by Mr Chen for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") constituted by a member, Mr Keher, affirming the decision of the respondent Minister for Immigration and Multicultural Affairs not to grant to Mr Chen a protection (class AZ) visa. 2 The application, which was lodged personally by Mr Chen, purported to rely upon two of the grounds in section 476(1) of the Migration Act 1958 (Cth) (the "Act"), namely, that the decision was induced or affected by actual bias and/or there was no evidence or other material to justify the making of the decision. 3 The matter came before me for directions on 5 February 2001. On that day Mr Chen was present and had available to him an interpreter. Among the orders I made on that day was an order listing the matter for hearing this morning at 10.15 am subject to an earlier date in May becoming available. As it happened no earlier date in May did become available. When the matter was called for hearing this morning Mr Chen did not attend. I am told that documents were served on him by courier on Friday, 13 July 2001. 4 The Minister seeks an order under O 32 r 2 that the application be dismissed. I propose to do so, but before making orders I would make some comments on the grounds relied upon by Mr Chen in his application. 5 The question before the Tribunal was whether it was satisfied that Mr Chen was a person to whom Australia had protection obligations. Mr Chen would be a person to whom Australia had protection obligations if he was, within the meaning of the 1951 Convention Relating to the Status of Refugees as affected by the 1967 Protocol Relating to the Status of Refugees (the "Convention"), a refugee. A person is a refugee within the meaning of the Convention if "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion", the person "is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". 6 Mr Chen is a citizen of the People's Republic of China who entered Australia in February 1999 using a Japanese passport in a false name. He claimed, however, to have been born in China and educated there until 1984. He then worked as a peasant from July 1984 to June 1998. He claimed to have departed China on 22 June 1998 illegally and came to Australia via Indonesia. He is married and has two children. Both his wife and children are in China. 7 Mr Chen based his claim upon the fact that he had participated in the 1989 pro-democracy movement by organising peasants and thereafter made speeches about the government and spoke also of corruption such that in April 1998 he was arrested, detained and, he said, persecuted. He claimed to have escaped from custody and hidden in a friend's house. He then decided to leave China. 8 The Tribunal did not accept that Mr Chen had ever been arrested nor that he had had any involvement in the 1989 pro-democracy movement or any such activity after that date. It found him not to be a credible witness saying that his claims of involvement in any pro-democracy activities and of being of adverse interest to the authorities were not true. Accordingly, the Tribunal found that he did not have a well-founded fear of persecution on Convention grounds and concluded that it was not satisfied he was a person to whom Australia had protection obligations. 9 The adverse finding on credibility was clearly assisted by the fact that this was not the first time Mr Chen had tried to enter Australia. It seems he attempted to do so in 1998 and at that time said he departed China because he was unable "to make a living in China" where he "used to have a small business but [was] now bankrupt". He said he had come to Australia "to make a better living" and wanted to "pick up any job [he could] find". He was deported. 10 When he arrived, on this occasion, in Australia he apparently neglected to mention that he had attempted to enter Australia on a prior occasion. He claimed to have been nervous and confused and that this had been the reason why he had not mentioned any involvement in pro-democracy activities. It is not difficult to understand why the Tribunal reached the decision it did on the issue of credibility. 11 There is a matter that concerns me, in that it appears that Mr Chen had initially had his review dealt with by S. Akmeemana who then left the Tribunal resulting in the mater being reallocated to Mr Keher to complete the review. On the face of the Tribunal's reasons Mr Chen had given oral evidence to the previously constituted Tribunal which the Tribunal newly constituted considered, although it would seem from the reasons for decision that no attempt was made to have Mr Chen give evidence before the new Tribunal. 12 I have read the decision of Hely J in Ahmed v Minister for Immigration and Multicultural Affairs [2001] FCA 506 ("Ahmed") where his Honour considers whether judicial review should result in a decision being set aside where the Tribunal's review is completed, after a change of member, by a member not present at the oral hearing of the matter and in circumstances where the Tribunal does not seek to have any oral evidence put by the applicant to it at a new hearing or, as in that case, listen to the tapes of the actual hearing conducted by the original Tribunal member. 13 Hely J found that there was no requirement, per se, that the newly constituted Tribunal hold a fresh oral hearing. I would follow Hely J's decision, so far as it is relevant to the present facts, as a matter of comity unless I am convinced it is clearly wrong. I am not so convinced. The present case is one where Mr Chen's credit was vital to his case. It should have been obvious to him and certainly to the migration agent who represented him that the attempt to enter Australia with a totally different story made credibility the major issue in this case. 14 There is nothing in the Tribunal's reasons or in other material in the appeal papers that would suggest that the learned Tribunal member was in any way actually biased against Mr Chen, in the sense that the words "actual bias" are ordinarily understood. Nor can it be said that the present is a case where there was no evidence on which the newly constituted Tribunal could reach its own decision. I should say that, despite the decision of Hely J in Ahmed, where issues of credibility are likely to arise a procedure which does not provide an opportunity for the applicant to give evidence to a new Tribunal member, but rather is confined to that Tribunal member merely reading the papers, will hardly, in many cases, afford substantial justice to an applicant. 15 It may be that in this case the applicant waived any right to a new oral hearing in any event, as there was nothing to suggest that either he or anyone representing him complained about the course which the Tribunal took. It might be different if there had been such a complaint. There would be, in any event, a question as to what basis of the Court's jurisdiction would ground the review. That is not a matter I need to consider, particularly as Mr Chen neither sought to raise the matter I have mentioned in his application, or for that matter to attend the hearing of his application. In the circumstances, I would dismiss the application and affirm the decision of the Minister. I order the applicant to pay the respondent Minister's costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.