Choi v Minister for Immigration & Multicultural Affairs

The case at first instance 6 The application for judicial review heard by Marshall J alleged error within the meaning of s 476(1)(g) of the Migration Act 1958 (Cth) ("the Act") in connection with the applicant's supposed activities with the Fifth of April Movement and the supposed smuggling of dissidents out of China. The relevant paragraphs of s 476 are:

"(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision." … (4) The ground specified in paragraph (1) (g) is not to be taken to have been 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." 7 The Tribunal's conclusion that it did "not accept that [the appellant] is wanted by the Chinese authorities because of his actions and that he will be persecuted for his political opinions if he returns to China" was put forward as a "decision" within the meaning of s 476(1)(g) and it was said that there was no evidence or other material to justify the making of that decision because, among other things, the "Tribunal based its decision on the existence of a particular fact and that fact did not exist", thereby bringing it within s 476(4)(b). The amended application for an order of review asserted that such decision (or conclusion) was "based on the following primary finding of fact: "'that the tribunal does not accept that the applicant ever went to China to help dissidents escape." 8 The case then was that this conclusion was based on identified "particular facts". As counsel for the respondent Minister summarised them: "those particular facts were variously characterised in submission and at trial including the following: (a) the appellant could not identify any of the office holders of the Fifth of April Movement; (b) a certain alleged document did not contain a letterhead. The document was a supposed receipt given by Mr Choi for a large sum of money said by the document "to be used to assist those Chinese dissidents in the June 4 Democratic Movement to escape from the mainland to Hong Kong and open shops in China to cover their identification"; (c) the appellant said that Shunde, his hometown, was not a large place; (d) that it would have been necessary for the appellant, on his supposed return to mainland China, to obtain household registration ("hukou"); (e) the appellant had claimed that a man Tek Kueng (apparently also known as De Qiang) travelled to China to obtain the record of the court verdict against Liang Yong Li; (f) such court verdict record was fabricated; and (g) the authorities had not questioned the appellant's family." The learned trial Judge found that fact (e) above did exist and there was material to support fact (f). As to the other matters, his Honour concluded at [41]: "It cannot be said that the decision of the RRT depended on the existence of a particular critical fact which was challenged, even successfully, by Mr Choi. Rather, its decision was based upon a reasoning process that relied, independently, on a number of particular facts. That some of those particular facts may not have existed does not make the decision of the RRT reviewable under ss476(1)(g) and 476(4)(b) of the Act as there was other "evidence or other material before the RRT to justify the decision": see Li Yue at [54], per Hill, Matthews and Lindgren JJ. It cannot be said that any of the particular facts the existence of which were challenged by Mr Choi were "truly a link in a chain and there are no parallel links" that led the RRT to make the decision that it ultimately did: see Curragh at 221, per Black CJ (with whom Spender and Gummow JJ agreed). See also Rajamanikkam at [49], per Kiefel, North and Mansfield JJ." 9 This conclusion is the subject of the first ground of the notice of appeal which is in the following terms: "That the learned Judge erred in law in finding that each of the reasons or alternatively, each of the reasons in each cluster of reasons, of the Refugee Review Tribunal were all discrete and unbroken parallel links in the Tribunal's chain of reasoning." 10 As to the hukou matter (fact (d) above) his Honour said: "... even if it was true that Mr Choi did not require "hukou", the finding of the RRT that he did require it was not critical to the RRT's conclusion that Mr Choi did not return to China in 1993. Mr Choi would, for example, have been required to register his shop in China and that he had not, supported the RRT's conclusion that he did not return to China, open a shop and assist dissidents to escape." 11 This matter is the subject of the second ground of appeal which is in the following terms: "That the learned Judge erred in law in finding that the Refugee Review Tribunal's finding that he would have been required to register his shop was a separate finding - and, hence, a parallel link - and not derived from, or based on, its earlier finding as to the hukou registration system."

12 As counsel for the respondent pointed out, his Honour set out a number of other reasons identified by the Tribunal as to why it rejected the claim that the applicant had returned to China as an undercover operative for the Fifth of April Movement to help dissidents escape. These reasons were as follows: (i) the appellant was not a credible witness; (ii) he was unable to describe the alleged movement satisfactorily or consistently; (iii) the appellant had no knowledge of the significance of the date in the movement's name; (iv) the appellant's reason for not knowing the names of the leaders in the movement was that, as his Honour put it, "the organisation was secretive" (a reference to the Tribunal's finding that the movement was "not a secret organisation") but this was inconsistent with the movement's public profile; (v) the movement was not a secretive one; (vi) having initially tried unsuccessfully to escape China and having subsequently escaped to Macau, it was not plausible that the appellant would voluntarily return to China and put at risk his economic achievements to work for an organisation about which he knew so little; (vii) the receipt document referred to above, of 31 May 1993, did not in general appear genuine; (viii) it was improbable that the explicit description in that document of the purpose to which the money was to be put was consistent with an organisation conducting clandestine activities; (ix) the receipt, although containing the name of the Fifth of April Movement (described as "Hong Kong Fifth of April Action Group" in translation) did not contain any address or other contact details for the movement; (x) if the appellant had returned to his hometown, he would have come to the attention of the authorities after 15 years' absence and he did not possess documentation to enable him to operate a shop; (xi) there were some inconsistencies in the dates he gave as to the period in which he operated the shop; (xii) certain letters sent to the appellant by a supposed friend Tek Kueng/De Qiang had been fabricated; (xiii) one of these letters received by the appellant in July 1997 would have mentioned Liang Yong Li's February 1997 arrest and conviction, had Tek Kueng/De Qiang then known of Liang Yong Li's fate; (xiv) it was implausible that Tek Kueng/De Qiang would have travelled to China, as the appellant had claimed, to obtain the record of Liang Yong Li's conviction from the latter's family; (xv) there was a difference between the wording of the "verdict" record for Liang Yong Li and those of similar verdicts in respect of two well-known dissidents; and (xvi) the existence of the individual Tek Kueng/De Qiang was a fabrication by the appellant.

The arguments on appeal 13 Counsel for the appellant subjected the expression of the reasons of the Tribunal to logical, indeed philosophical, analysis in an effort to show that those facts which, as the learned trial judge accepted, might otherwise have been impugned within the meaning of ss 476(1)(g) and 476(4)(b) were among reasons "conjunctively" as distinct from "disjunctively" relied upon by the Tribunal. The purpose of this was to found a submission that, as the Tribunal had relied on all of the found facts referred to above, including those sought to be impugned, the decision must be regarded as in part "based on" the variously impugned facts. 14 Counsel relied on the well-known passage in Curragh v Queensland Mining Co (1997) 34 FCR 212 at 220-1: "Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact. Accordingly, I agree with the conclusion of Lee J in Akers v Minister for Immigration and Ethic Affairs (1988) 20 FCR 363 at 374, that there is no reason to read s.5(3)(b) in a way that would limit its operation to a predominant reason for the decision under review." Counsel further relied on the following passage from Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023 (Full Court) at [49]: "Thus it was the combination of factors which caused the Tribunal to doubt the respondent's claims. It was the accumulation of difficulties with his evidence which led to its conclusion. Each of those two facts which have been shown not to exist was integral to a factor which comprised part of that accumulation. Neither of those two matters is therefore of peripheral importance to the decision. As the Tribunal has described its process of reasoning, each is a matter which played a part in the Tribunal's process of reasoning. That is so, not simply taking those two matters separately, but also because they contributed to its conclusions concerning factor (3). This is not, therefore, a case where those matters are merely parallel links in a chain of reasoning; they are matters without which the Tribunal may well not have reached the conclusion which it did. In our judgment, each of those matters in the particular circumstances of this case were particular facts upon which the Tribunal based its decision to reject the respondent's primary claims as concocted. As those facts were facts which did not exist, the ground of review under s 476(1)(g) and (4)(b) has been made out.' " 15 Counsel also made particular submissions about the supposed dependence of the finding that the appellant would have required documentation to run a shop in China on the applicability of the hukou system to the appellant. The learned trial judge may have entertained some doubt as to such applicability. As that matter, indeed the second ground of appeal generally, is but a particular instance of the more general point asserted by the first ground of appeal, we think that, in the light of our conclusions as to the first ground, we need not address it further. 16 For the respondent, counsel reminded the Court of the strictures in Wu Shan Liang v Minister for Immigration & Multicultural Affairs (1996) 185 CLR 259 at 291 per Kirby J and other cases against overzealous scrutiny of the language used by an administrative tribunal such as the Tribunal and that these cautions should be applied to the structure of the reasons as much as to the language used: see Kaur v Minister for Immigration & Multicultural Affairs [2001] FCA 1401 at [15] per Moore J. In general, counsel argued that none of the asserted facts which were sought to be impugned, either alone or taken together, could be said to be critical as to the reasoning of the Tribunal within the approach taken in Curragh, nor did they "depend on" asserted facts (language used in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 340-1. Rather, it was submitted, each fact was, and together they were, "but one of many factors that led the Tribunal to its conclusion": the formulation in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at para 35. Further, the Tribunal's finding that the appellant was not a credible witness was indeed based, as Marshall J said, "on a number of particular facts which did exist, independently of each other" with the result that the case was factually distinguishable from Rajamanikkam. Consideration 17 Logical and even elegant as the appellant's effort was to show that the Tribunal regarded every fact to the discredit of the appellant as integral or critical to its decision, we think that the submission substitutes emphasis on the form of the decision for what is required, namely, a real and genuine attempt to understand what the Tribunal member was intending to convey. 18 Reading the decision as a whole, it is satisfactorily clear in our view that the Tribunal member relied on a good many matters, including some of evident substance, in addition to the impugned findings, to disbelieve the appellant's claim that he would be at risk of persecution for having clandestinely subverted China's emigration laws for political purposes. 19 Doubts may possibly arise as to the correct interpretation of, and interrelationship between subs (1)(g) and (4)(b) of s 476 of the Act. The orthodox view, relying on what was said by Mason CJ in Bond at 357-9 as to the analogues of these paragraphs in the Administrative Decisions Judicial Review Act 1977 (Cth), is that subs (4) and in particular subs (4)(b) enlarges what might otherwise have been thought to be a mere restatement of the common law by subs (1)(g). It need not now be considered to finality whether that view is correct or is able to be challenged in this Court. For present purposes, it may be assumed that the orthodox view is correct. Furthermore, it is assumed, though it is doubtful, that the "decision" identified in the Notice of Appeal and in the Application for Judicial Review, might be as set out at para 6 above. It may also be assumed that the asserted facts, alone or together, might qualify as the kind of "fact" with which s 476(4)(b) is concerned.

20 Nevertheless, despite these assumptions, in our view it cannot sensibly be said that any of the impugned facts or all of them have the character of facts upon which that "decision", or the ultimate decision of the Tribunal not to uphold the appellant's claim for refugee status, could be said to be "based". 21 In his well-known discussion of the matter in Curragh, Black CJ was helpfully intending to illuminate the distinction between facts upon which a decision can properly be said to be based and others. In some factual situations it is helpful to consider whether the facts relied upon form "links in a chain" such that, if any link be broken, the failed decision supported by that chain must fall, or whether there are "parallel" lines of reasoning such that, if one fails, the others will hold. In other cases, lineal analogies may be less helpful. Counsel for the appellant gave an example in this case of an employer depending upon the facts that: (a) a particular employee had access to some missing money; and (b) no-one else did, to support a conclusion that the employee had taken the money, as an instance of facts being "conjunctively" relied upon. We have referred above to other formulations offered by other courts, as well as by Marshall J in this case. Helpful as all of these efforts are, none of them is or can be a substitute for the wording of the statute itself nor can any of them be regarded as a universally applicable exegesis of the statutory language. The question in each case is whether the decision can properly be said to be based upon the impugned fact so that, if the fact is otherwise adequately impugned within the meaning of ss 476(1)(g) and 476(4)(b), the decision cannot be permitted to stand. In the judgment of whether the decision was "based on" a fact or facts, no narrow view should be taken, but neither should the matter be approached over-generously so as to produce an artificial, let alone an absurd, result. 22 In the present case, the sheer quantity of the other factual considerations relied on by the Tribunal member and the quality of some of them, notably: (a) the bizarre suggestion that a Hong Kong political organisation would admit in writing its financing of an effort to smuggle political dissidents out of China; and (b) that the appellant would risk his own and his family's economic welfare, when he had been so solicitous of it, for an organisation of which he appeared to know so little, are factors strongly indicative that, in truth, the Tribunal was not relying on the impugned matters to such a degree that the decision as to whether the applicant had engaged in clandestine political activity that had been discovered could fairly be said to be based on those impugned facts and matters. Nor, reading the Tribunal's reasons as a whole, do we think that that conclusion can be made out. Thus we consider that his Honour's approach, in general, was justified and correct. For these reasons the appeal must fail. Disposition 23 The appeal will be dismissed. The appellant is to pay the respondent's costs. I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justices Madgwick and Kenny.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

GYLES J: 24 I agree with the reasons of Madgwick and Kenny JJ for concluding that the appellant has failed to establish a breach of s 476(1)(g) of the Migration Act 1958 (Cth) ("the Act") taken together with s 476(4) even if the most favourable view to the appellant of those provisions is taken, namely, that the appellant will succeed if he establishes that there was no evidence or other material before the Tribunal to support any finding of fact which is a link in a chain towards the decision itself, notwithstanding the existence of other evidence or material which would justify the making of the decision. The appeal must accordingly fail. 25 It is therefore unnecessary to decide the controversial question as to whether that view of the provisions is correct. In Rahman v Minister for Immigration & Multicultural Affairs [2001] FCA 368 I recently followed decisions of Full Courts in Mohammed v Minister for Immigration & Multicultural Affairs [2000] FCA 264, Minister for Immigration & Multicultural Affairs v Li Yue [2000] FCA 856 and Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181, which lead to a contrary conclusion. Other decisions have been cited to us (for example, Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023) which point in the other direction. I would add that when it does become necessary to fully consider the issue, it will be critical to properly understand the dicta of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 357-359) as to the scope of ss 5(1)(h) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and decide, amongst other things, whether it should be applied to s 476 of the Act when account is taken of the very considerable differences between that section and s 5 of the ADJR Act in respects which might be thought critical to the reasoning of Mason CJ. It will also involve considering the express approval by the Full Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 (at 223) of the reasons of Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1996) 13 FCR 511 (at 519-521), where it was said that s 5(3)(b) of the ADJR Act requires an applicant for review to show more than that there was no evidence before the decision-maker of the fact found by the decision-maker, or assumed by the decision-maker, as the basis of the decision. The applicant is required to actually negative the fact, this being an additional requirement which, it was said, may constitute a heavy burden (see also Szelagawicz v Stocker (1994) 35 ALD 16 at 22-23 per Davies and Einfeld JJ). I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Solicitor for the Respondent: Australian Government Solicitor