Choi v Minister for Immigration & Multicultural Affairs - [2001] FCA 6 - FCA 2001 case summary — Zoe

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Choi v Minister for Immigration & Multicultural Affairs

[2001] FCA 6

Federal Court of Australia|2001-01-19|Before: North J, Marshall J

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Source facts

Court

Federal Court of Australia

Decision date

2001-01-19

Before

North J, Marshall J

Source

Original judgment source is linked above.

Judgment (32 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, Mr Choi, has applied for an order to review a decision of the Refugee Review Tribunal ("the RRT") made on 8 March 2000. The RRT, by its decision of that day, affirmed a decision of a delegate of the respondent refusing Mr Choi's application for a protection visa.

[2]

Background 2 Mr Choi arrived in Australia on 25 July 1996. He is a Chinese national and holds an Aliens Passport issued by the Portuguese Government due to his former residence in Macau during the period in which it was administered by Portugal. 3 On 7 July 1997, Mr Choi lodged an application for a protection visa with the respondent's department. The application included his now de facto wife and three children. 4 On 31 July 1997, a delegate of the respondent refused to grant Mr Choi a protection visa. On 26 August 1997, Mr Choi applied to the RRT for review of the decision of the delegate. 5 On 25 August 1998, the RRT advised Mr Choi that it was unable to determine the application on the papers alone and required a hearing which was scheduled for 21 October 1998. 6 On 21 October 1998, the RRT conducted a hearing at which Mr Choi gave evidence. On 10 November 1998, the RRT affirmed the decision of the delegate not to grant Mr Choi a protection visa. Mr Choi sought review of the 10 November 1998 decision by this Court and on 8 September 1999, North J set aside that decision in respect of Mr Choi only and remitted the matter, insofar as it related to Mr Choi, to the RRT for further consideration. 7 On 23 November 1999, the RRT wrote to Mr Choi advising that "the Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone". The RRT invited Mr Choi to attend a hearing of his application at which he would be afforded the opportunity to give oral evidence and present argument in support of his claims. The hearing was scheduled for 12 January 2000. 8 On 14 December 1999, Mr Choi provided further written submissions to the RRT. On 12 January 2000, a differently constituted RRT conducted a further hearing of Mr Choi's application and on 8 March 2000, the RRT again affirmed the decision of the delegate of the respondent not to grant Mr Choi a protection visa.

[21]

The RRT's reasoning process 18 In coming to its decision that the applicant will not be "persecuted for his political opinions if he returns to China", as previously noted, the RRT stated that: "The Tribunal does not accept the applicant's claims that he joined the Fifth of April Movement and returned to China in 1993 to assist dissidents to escape to Hong Kong. The Tribunal does not accept the claims for the following reasons … ." The RRT based its conclusion that Mr Choi did not work for the Fifth of April Movement on a series of particular facts which it considered immediately after the preceding paragraph in its reasons for decision. Those "facts" were that Mr Choi did not know the "significance of the name" of the Fifth of April Movement; that he "could not identify any of the office holders of the organisation"; and that he claimed "that the names of the leaders of the Movement were a secret" but "it was not a secret organisation". 19 The RRT also failed to accept as genuine a document dated 31 May 1993 produced by Mr Choi which he claimed was a receipt for money provided by the Fifth of April Movement for him to open a shoe shop in China as cover for helping dissidents to escape. It reasoned that the fact that the appearance of the document, which has the name of the organisation typed on a plain piece of paper, was inconsistent with Mr Choi's claim that the organisation had its own letterhead and official stamp; the fact that the document did not include an address or contact details; and the fact that the receipt was purportedly for payment from a supposedly secret organisation for Mr Choi's assistance in helping dissidents escape, all forced the conclusion that the document was not genuine. 20 Mr Choi's claim that he returned to China in 1993 to help dissidents to escape was wholly disbelieved by the RRT. It reasoned that he could not have returned to China for if he had, he would have come to the attention of the authorities. It "would have been necessary for him to obtain household registration ("hukou")" and "he would have been required to obtain documentation in order to open and operate a shop". The RRT may have been reinforced in its view that Mr Choi would have come to the attention of the authorities by what it referred to as evidence given by him that "Shunde was not a large place" ie. he would therefore have been easily noticed. In coming to its conclusion that Mr Choi did not return to China, the RRT also relied on an inconsistency in dates provided by the applicant in his statutory declaration and oral evidence given to the RRT during which he claimed to be in China and working for the Fifth of April Movement. 21 After considering all of the above facts, the RRT again concluded that: "Taking into account all of the above, the Tribunal finds that the applicant did not receive money from an organisation called the Fifth of April Movement to go to China in 1993 and open a shoe shop as cover for an operation to assist Chinese dissidents to escape to Hong Kong." 22 Finally, the RRT was reinforced in its view that Mr Choi had not returned to China and worked for the Fifth of April Movement by his "evidence that his family in China have not been questioned by the authorities about his activities". It was further reinforced in that view by its finding that what Mr Choi purported to be a copy of a court verdict of a fellow dissident, a Mr Liang Yong Li, was also not genuine. The RRT found that the verdict was not genuine because it disbelieved Mr Choi's claim that, consistent with the contents of a letter dated 22 December 1997 purportedly received by him from Mr Tek Keung/De Qiang, whom Mr Choi informed the RRT were in truth the same person (a translation error of this and other letters caused the confusion), Mr Tek Keung/De Qiang had travelled from Hong Kong to Shunde to obtain a copy of Mr Liang Yong Li's verdict from Mr Liang Yong Li's family so that he could send it to Mr Choi in Australia who then made a copy of it and sent it back to Mr Tek Keung/De Qiang in Hong Kong. In finding that Mr Liang Yong Li's verdict was not genuine, the RRT also relied on the fact that the form of the verdict differed from the form of two other verdicts of "two well - known dissidents" provided to the RRT by Mr Choi and on the failure by Mr Tek Keung/De Qiang to refer to the arrest, trial and conviction of Mr Liang Yong Li in February 1997 in his letter dated 27 July 1997 purportedly sent to, and received by, Mr Choi, a letter that the RRT also failed to accept as genuine. It should also be noted that the RRT failed to accept as genuine a further letter purportedly received by Mr Choi from Mr Tek Keung/De Qiang dated 6 September 1999.

[22]

Sections 476(1)(g) and 476(4)(b) and the applicant's associated submissions 23 Mr Bravender-Coyle submitted that the decision of the RRT was open to attack under the no-evidence ground found in ss476(1)(g) and 476(4)(b) of the Act. He contended that the decision of the RRT was based on a number of conclusions which, in turn, were based on a series of particular facts which did not exist. Accordingly, it was submitted by Mr Bravender-Coyle that the decision of the RRT not to grant Mr Choi a protection visa was based on "particular facts that did not exist": see s476(4)(b), ie. there was "no evidence or other material to justify the making of the decision"; see s476(1)(g). 24 The leading authority dealing with the expression "based the decision on the existence of a particular fact" is the judgment of a Full Court of this Court in Curragh. Whilst that case concerned ss5(1)(h) and 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), in Minister for Immigration & Multicultural Affairs v Rajamanikkam [2000] FCA 1023, a Full Court of this Court held (at [19]) that those provisions being analogous to ss476(1)(g) and 476(4)(b) of the Act respectively, the reasoning of the Court in Curragh concerning the meaning of the term "based the decision on the existence of a particular fact" is equally applicable to the meaning of that term as found in s476(4)(b) of the Act. 25 In Curragh, Black CJ (with whom Spender and Gummow JJ agreed) stated that (at 220 - 221): "If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. … 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 (emphasis supplied), 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." 26 In Rajamanikkam, the Full Court relevantly stated (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 (emphasis supplied); 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 ss476(1)(g) and (4)(b) has been made out." Thus, if it is shown that a particular fact found by the RRT to exist does not exist, and that fact was relied upon by the RRT to reach its decision, but, "there was nonetheless other evidence or material before the RRT to justify that decision", then the ground of review available under ss476(1)(g) and 476(4)(b) of the Act will not have been made out: see Li Yue at [54], per Hill, Matthews and Lindgren JJ. 27 Mr Bravender-Coyle submitted that the RRT based its decision on the evidence of a series of particular facts which did not exist being facts "without which the Tribunal may well not have reached the conclusion which it did". In particular, Mr Bravender-Coyle took issue with the RRT's finding that the first applicant "could not identify any of the office holders of the organisation". He submitted that an examination of the transcript of the hearing before the RRT shows that the evidence was that the applicant deposed that he did not know the President, or the name of the President, but he knew the name of its Secretary, a Miss Wong. An examination of the relevant exchange in the transcript of the hearing before the RRT bears this out:

[24]

Counsel also questioned whether the RRT's reference to the fact that Mr Choi claimed that the Fifth of April Movement was secretive was an accurate one. However, Mr Choi did give evidence that he was told by other members of the organisation that he was "not able to know any more thing (sic) about the organisation [other than how to help dissidents escape], especially internal organisation". 28 Counsel submitted that the RRT's finding that the "appearance" of the Fifth of April Movement document dated 31 May 1993, "which ha(d) the name of the organisation typed on a plain piece of paper", was not "consistent with the applicant's claims that the organisation had its own letterhead paper and official stamp", was a fact which did not exist. Indeed, upon examination of the document in the current proceeding, it is highly arguable that the document does contain a letterhead printed in red ink and this may be inconsistent with the RRT's conclusion that the document was not genuine. 29 The RRT's reference to the applicant's evidence that "Shunde was not a large place" was also questioned by the applicant. The evidence seems to support counsel's contention that the evidence was that that is not what Mr Choi said. The transcript of the hearing before the RRT bears this out: "Tribunal: How big is Shundi (sic)? Applicant: When I was there Shundi (sic) is not considered as a city, it was a town only." Mr Choi did not say that Shunde "was not a large place". He merely made a distinction between a town and a city, which, as Mr Bravender-Coyle pointed out, from a western viewpoint may not involve a distinction between a sparsely populated area and a densely populated one. However, whether the RRT's reference to such evidence in its recitation of Mr Choi's claims constitutes a "finding of fact" upon which its decision was based is a different question entirely. Counsel also submitted that, contrary to the finding of the RRT, it was not necessary for Mr Choi to obtain household registration in Shunde. 30 Further, counsel questioned the RRT's finding that Mr Choi gave "evidence that his family in China have not been questioned by the authorities about his activities". He contended that the transcript of the RRT proceeding evinces no such statement to that effect made by Mr Choi. He pointed to evidence given by Mr Choi where he merely states that he had little or no contact with any members of his family upon his return to China and that in any event, they "ha(d) no knowledge … of what [he was] doing at the time". 31 The conclusion by the RRT that Mr Choi fabricated Mr Liang Yong Li's verdict and that such fabrication was evidenced by the fact that the letter he purportedly received from Mr Tek Keung/De Qiang on 27 July 1997 made no mention of such conviction was also challenged by Mr Choi. Counsel contended that "(i)f Liang Yong Li had been arrested, tried and convicted, it was not a fact that Tek Keung would presumably have mentioned in his letter". He may not have known of the conviction. For Mr Choi, it could not be said, as the RRT did, that "the letter … would presumably have mentioned this important matter". That was a fact relied upon by the RRT in reaching its decision which could not be said to exist, so the argument ran. Counsel also took issue with the RRT's reliance on the difference between court verdicts of dissidents in finding that Mr Liang Yong Li's court verdict had been fabricated. Counsel argued that the differences were not substantial enough to justify a finding that the verdict of Mr Liang Yong Li was fabricated. 32 Finally, counsel disagreed with the finding of the RRT that the applicant claimed that Mr Tek Keung/De Qiang travelled to China to obtain Liang Yong Li's verdict. He contended that "the applicant never made that claim". A cursory examination of the transcript of the hearing before the RRT proves otherwise: "Tribunal: So you think … Mr Tek Keung went to China, got the original document, sent it to you here in Australia, you made a copy of it, you sent it back to Hong Kong and Mr Tek Keung sent it to Mr Li Liang Yong's (sic) family? Applicant: That's right, yeah."

[28]

Mr Fairfield contended that the finding of the RRT that Mr Choi did not a support the Fifth of April Movement was not based on the particular fact found by the RRT that Mr Choi did not know the names of the office holders of the organisation but "upon a series of independent and parallel reasons". Furthermore, Mr Fairfield submitted that the finding that the applicant was not a supporter of the organisation was "merely one finding independent of, and parallel to, other findings, which led to the ultimate finding that the applicant did not have a well-founded fear of persecution for a Convention reason". It was put that "even if the ultimate decision was based upon the particular fact (that Mr Choi did not know the names of the organisation's office holders) alleged … there was other evidence and material to justify the making of the decision". 34 In relation to the RRT's finding that the Fifth of April Movement document dated 31 May 1993 was not genuine, Mr Fairfield submitted that "that finding was based not only upon an examination of the appearance of the document but also upon the RRT's view on the implausibility of the explicit wording used in the document when the applicant claimed the Organisation was secretive". For the respondent, the wording in the document, or at least its implausibility, constituted "an independent and separate chain of reasoning". 35 In response to Mr Bravender-Coyle's submissions concerning the RRT's finding that the applicant gave evidence that Shunde was not a large place, Mr Fairfield contended that as the reference to the size of Shunde was made in the RRT's recitation of the applicant's claims and not in its findings, it was not a particular fact upon which the ultimate decision was based. Further and in the alternative, the respondent submitted that there were "separate and parallel reasons why the RRT came to the view it did in respect of the applicant's claim to have returned to China". 36 In addressing Mr Bravender-Coyle's submissions concerning household registration or "hukou", Mr Fairfield submitted that it was open to the RRT to reject Mr Choi's evidence that he did not need household registration in favour of country information which said otherwise. Further, if Mr Choi was not required to obtain household registration, it was submitted that the RRT's finding that the applicant had not returned to China and helped dissidents to escape was based on other separate and independent facts which formed part of the RRT's "chain of reasoning", such as the fact that Mr Choi would also have required registration to operate his shop if he had returned to China. 37 In relation to the RRT's finding that the applicant gave "evidence that his family in China have not been questioned by the authorities about his activities", Mr Fairfield contended that the transcript of the RRT proceeding "supports the finding that neither the applicant's father or mother were questioned by the authorities" and again, that even if this was a particular fact upon which the RRT's decision was based, and it did not exist, there were other "parallel links" in the RRT's "chain of reasoning" that led it to find that Mr Choi did not return to China and help dissidents escape. 38 Finally, Mr Fairfield characterised the RRT's presumption that Mr Tek Keung/De Qiang's letter of July 1997 would have mentioned Liang Yong Li's conviction as not a particular fact but "a proposition or speculation". If, in the alternative, the presumption was a particular fact, it was submitted that there were other independent facts which led the Tribunal to find that Mr Choi had not returned to China to help dissidents escape and that this particular fact was merely one of many independent and "parallel links" in a "chain of reasoning".

[30]

41 The "application of common sense" in the present matter compels the conclusion that the RRT based its decision to refuse to grant Mr Choi a protection visa on a series or number of independent facts that together formed a "chain of reasoning" which led the RRT to reach the view that it did. 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. 42 Whilst it is apparent that Mr Choi did know the names of some of the office holders of the Fifth of April Movement, the conclusion that he did not support the Fifth of April Movement was not based on the existence of that particular fact alone. As counsel for the respondent contended, the conclusion was also based on the fact that Mr Choi did not know the origin of the organisation. Further, the RRT reasoned that the explanation given by Mr Choi for not knowing all of the names of the office holders of the Fifth of April Movement, that the organisation was secretive, was inconsistent with the organisation's public profile. Similarly, the RRT's conclusion that the Fifth of April Movement document dated 31 May 1993 was not genuine was not based solely on whether the document contained a letterhead. There were other particular facts which also led to that conclusion such as the implausibility of the explicit wording used in the document when Mr Choi claimed that the organisation was secretive. 43 Whilst it is arguable that the RRT did not rely on the fact that Mr Choi said Shunde was not a large place in concluding that he did not return to China and consequently refusing his claim for a protection visa, even if it did, other facts such as the inconsistency between the dates provided by Mr Choi about the period he spent operating the shop in Shunde also support such a conclusion. Again, 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. 44 The same process of reasoning applies to the RRT's conclusion that Mr Liang Yong Li's court verdict was fabricated. Apart from any differences in court verdicts that it had before it, and its failure to accept as genuine three letters purportedly received by Mr Choi from Mr Tek Keung/De Qiang in 1997 and 1999, the RRT disbelieved Mr Choi's explanation as to how the verdict came to be in his possession as it thought that his story was simply implausible. It did not accept as genuine Mr Choi's claim that Mr Tek Keung/De Qiang returned to China, risking his safety in order to obtain the verdict, and that having obtained it that he sent it to Australia so that Mr Choi could copy it and then return it to him. Similarly, the fact that Mr Choi's family had not been questioned by the authorities whilst in China cannot be said to have been so critical to the RRT's decision that without it, there was no other evidence on which its decision was based. 45 In assessing all of the applicant's evidence, the RRT formed the view that Mr Choi was "not a credible witness" and that "key aspects of his testimony and his claims are simply not pluasible". It found that it was simply not plausible that Mr Choi would return to China risking his economic achievements in order to work for an organisation about which he knew so little. It based those findings on a number of particular facts which did exist, independently of each other. Its reasoning process discloses no relevant error of law in the context of ss476(1)(g) and 476(4)(b) of the Act. 46 Accordingly, in the circumstances, it is appropriate that the Court orders as follows:

The application be dismissed.
The applicant pay the respondent's costs, including reserved costs. I certify that the preceding forty - six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.