Did the RRT Set Out Findings on Material Questions of Fact?
22 A third contention, that the RRT failed to set out its findings on material questions of fact, although not raised by Ms Bateman in her original written submissions, was embraced by her in the course of oral argument. The issue arose because I raised some questions with Mr Smith, counsel for the Minister, about certain aspects of the RRT's reasoning. Ms Bateman adopted the concerns I had expressed and submitted at the hearing, without any elaboration, that the RRT had failed to comply with s 430(1)(c) of the Migration Act. This provision requires the RRT to prepare a written statement which "sets out the findings on material questions of fact".
23 Although Ms Bateman did not develop the submission in oral argument, it was identified clearly enough. Mr Smith was given the opportunity to file further written submissions to address the question and he took advantage of the opportunity. Ms Bateman filed a reply to Mr Smith's submissions, in which she explained the argument in a little more detail.
24 The starting point is that it has been established that s 430(1)(c) of the Migration Act implicitly requires the RRT to make findings on material questions of fact: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 (FC), at 37, per Lindgren J; Sellamuthu v Minister for Immigration & Ethnic Affairs [1999] FCA 247 (FC), at par 22-24, per Wilcox and Madgwick JJ, at par 51, per Hill J. Those authorities also establish that a breach of the requirement imposed by s 430(1)(c) is a failure to observe a procedure laid down by the Migration Act and therefore constitutes a ground of review under s 476(1)(a) of the Migration Act.
25 Ms Bateman also argued that a failure to make findings on matters critical to a proper application of the term "well-founded fear of persecution" indicates that the RRT has incorrectly applied the law to the facts, thereby providing a ground of review pursuant to s 476(1)(e) of the Migration Act: Paramananthan v Minister, at 57, 62, per Merkel J. Although Ms Bateman contended that this principle applied to the present case, she did not suggest that this alternative method of putting the argument added anything to the submissions founded on s 430(1)(c) of the Migration Act.
26 As has been explained, the applicant claimed that he had spent three years in a reform camp, where he said that he was "cruelly mistreated and tortured by the authorities". The RRT expressed "considerable doubts" about the applicant's claim, on the basis of the country information it quoted, although it accepted that "he may have experienced reform through labour". The RRT also expressed the view that, in the light of the country information, the applicant's claim must "be exaggerated". It found that, even if the applicant were sent for reform through labour, it was not for a three year period.
27 While it is clear that the RRT did not accept the whole of the applicant's account, it did not make explicit findings on the following matters:
· Why was the applicant sent to a reform camp in 1989 (as the RRT apparently accepted)? Was it because, as he claimed, he was sentenced to imprisonment after a trial involving the PSB? If so, what was the conduct for which he was imprisoned?
· For precisely what period did he remain in the reform camp?
· Did he endure, as he claimed, torture and cruel mistreatment while in prison? If so, what kind of mistreatment?
· After the applicant's release from the reform camp was he often taken away by policemen, and was his freedom severely restricted? In particular, was he detained for three days and insulted by the police? If so, why?
28 The major reason for the RRT not making specific findings on these matters appears to have been that it concluded that, even if it were wrong (that is, even if the applicant had spent three years in a labour camp, as he claimed), there was still no real chance that "anything further" would happen to him if he were to return to the PRC. The RRT reached this conclusion on the basis that the applicant had not claimed that he had been further harassed about his pro-democracy activities since 1992 and that he had never claimed that he would suffer further because of his involvement in the events of 1989.
29 It is far from clear why the RRT considered that the applicant had not claimed to have been harassed after 1992 because of his pro-democracy activities. The applicant's written submissions, although brief, asserted (at par B11) that the reform camp was closed at the end of 1992 and that after that time he was often taken away by policemen and his livelihood and freedom had been seriously restricted. These allegations of harassment appear to relate to the period after his release from custody and are not expressed to be confined to his claimed association (rejected by the RRT) with the "Saloon". In the absence of findings concerning these events, or some further explanation of the case put by the applicant, it is difficult to understand why the RRT considered that the applicant was not relying on post-1992 events to support his claims that he faced persecution by reason of his involvement in the pro-democracy movement.
30 If the claims made by the applicant were to be accepted at face value (as the RRT apparently did for the purposes of this portion of its reasons), it is very difficult to understand how the RRT could have concluded that there was no real chance that he would suffer persecution should he now return to the PRC. On the applicant's account, he played a prominent role in establishing the pro-democracy movement at the Company. He gave public speeches and undertook other public activities in support of the movement and of students involved in the movement. Moreover, the applicant (as he claimed) was sentenced to a term of three years' imprisonment by a body including a member of the PSB and he was cruelly mistreated in reform camp. The applicant also claimed that his livelihood and freedom had been subsequently severely restricted, presumably by reason of his political activities.
31 The country reports quoted by the RRT suggest that the authorities took "strong punitive action only against high profile activists and leaders of organisations that the PRC government regards as illegal". If the applicant's account were to be accepted in full, it strongly suggests that he was regarded by the authorities as falling within these categories, and was therefore presumably at greater risk of further persecution than demonstrators playing a less active role in the movement.
32 I did not understand Mr Smith to contend that this aspect of the RRT's reasoning made it unnecessary to consider whether the failure to make findings on the issues I have identified constituted a failure to comply with s 430(1)(c) of the Migration Act. If he did so contend, I would not accept the submission. The RRT has not set out its reasons for concluding that, even if it accepted the totality of the applicant's factual case, he did not have a well-founded fear of persecution. To adopt the language in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, at 415, it is impossible to ascertain what process of reasoning was followed by the RRT. It therefore failed to comply with the obligation imposed by s 430(1)(b) of the Migration Act to set out the reasons for its decision.
33 An alternative way of looking at this aspect of the case is that the RRT could not have correctly applied the requirement that the applicant have a well-founded fear of persecution for a Convention reason. As the joint judgment said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 572:
"A fear is 'well-founded' when there is a real substantial basis for it".
Their Honours also endorsed (at 572) the observations of McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, at 429, that as little as a ten per cent chance of persecution may constitute a well-founded fear of persecution. If the applicant's account were to be accepted at face value, it is very difficult to see, without a further explanation, why the test laid down in Chan and Guo was not met.
34 As the High Court has explained, it is ordinarily an integral part of deciding whether there is a real chance that the applicant will be persecuted for a Convention reason to make determinations as to past events. In Minister v Guo, the joint judgment said this (at 574-575):
"The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."
In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Kirby J explained the decision-making process as follows (at 294):
"There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood. The process of determination involves the delegate's making findings as to material facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the 'real chances' affecting the treatment of the applicant if he or she were to be returned to China."
35 Nonetheless, in deciding whether the RRT complied with the obligation imposed by s 430(1)(c) of the Migration Act, it is necessary to remember the admonition that a court exercising powers of judicial review of administrative decisions must not be concerned with looseness of language nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons of the administrative decision-maker are not to be scrutinised over-zealously to discern whether some inadequacy can be gleaned from the mode of expression: Minister v Wu, per Brennan CJ, Toohey, McHugh and Gummow JJ,at 272. The RRT's reasons are to be given a beneficial construction.
36 Mr Smith submitted that, in the light of these principles, the RRT's reasons, read as a whole, should be taken as finding that the applicant was detained in the reform camp for a relatively short period (certainly less than three years) and that he was regarded by the authorities not as a high profile activist, but as a lesser participant in the pro-democracy movement who was of no further interest to the authorities. Mr Smith also pointed out that the RRT had found that the applicant was prepared to concoct stories to support his application and that he had not left the PRC because he was wanted by the authorities.
37 The principles applicable to s 430(1)(c) of the Migration Act were stated by Wilcox J in Paramananthan v Minister for Immigration & Ethnic Affairs (1998) 160 ALR 24 (FC), at 27:
"I accept the submissions of counsel for the minister that this section does not impose on the tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to "findings of any material questions of fact". Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the tribunal does make should not be construed in an over-critical way, 'with an eye keenly attuned to the perception of error': see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. On the other hand it is important that a reader be able to discern what conclusions the tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based."
The latter part of this passage was cited with approval by the Full Court in Borsa v Minister for Immigration & Multicultural Affairs [1999] FCA 348, par 26.
38 As I have noted, it is clear enough that the RRT did not accept the entirety of the applicant's claims concerning the period spent in a reform camp. The RRT said that his claim to have spent a further three years undergoing reform through labour must have been "exaggerated". The RRT concluded that, even if the applicant had been sent for further reform through labour, it was not for a three year period.
39 Even so, the matters which the RRT did not address were (as the Full Court stated in Borsa) at the "very core of materiality". The RRT did not make any finding as to the period of time the applicant spent at the reform camp, beyond saying that it was for less than three years. The RRT simply did not consider whether or not the applicant had been sentenced to a term of imprisonment by a tribunal. Nor did the RRT address the applicant's claim to have been "cruelly mistreated and tortured" in the prison camp. Similarly, the RRT did not address the applicant's claims that he suffered serious restrictions on his livelihood and freedom after his release, beyond asserting (apparently incorrectly) that the applicant had made no claims that he was harassed after 1992 by reason of his pro-democracy activities. Even if this assertion was intended to be a finding, it did not deal with the issues I have identified.
40 The RRT stated that the applicant's "role seems to [have been] assisting in the organisation of groups protesting in support of the students". I have considered whether this language, although tentative, was intended to be a finding that the applicant had not played the prominent part he claimed in the pro-democracy movement, but played a lesser role. I do not think that is what the RRT intended to do. Not only is the language used by the RRT tentative, but the passage does not identify any particular aspect of the applicant's claims that it intended to reject. The more natural construction is that the RRT was simply summarising (albeit incompletely and, in certain respects, inaccurately) the part the applicant claimed to have played in the pro-democracy movement.
41 Mr Smith submitted that, in substance, the RRT was prepared to accept that the applicant had experienced some reform through labour, but in the same way and to the same extent as a very large number of participants in the pro-democracy movement who were not at risk of persecution. The RRT also must have been of the view that the applicant's general claim of "cruel mistreatment" was exaggerated. In substance, so it was argued, the RRT found that the applicant's experience of reform through labour, having regard to his relatively minor role in the pro-democracy movement and the absence of any harassment for some years prior to his departure from the PRC, did not suggest that there was any real chance that he would be subjected to persecutory treatment if he were to return to that country.
42 In my opinion, this submission goes beyond giving the RRT's reasons a beneficial construction and amounts to a rewriting of the reasons on important questions. The issues not addressed by the RRT were critical to the applicant's claim that he had a well-founded fear of persecution. For example, if the applicant had been sentenced to a term of imprisonment by a tribunal including a member of the PSB because of his pro-democracy activities, albeit for a term less than three years, this would suggest that he was or might have been regarded as a "high profile activist" and therefore (according to country information) at risk of further detention by the authorities. If he had experienced cruel mistreatment and torture while in reform camp that might, at the least, suggest he was at risk of further such treatment, particularly if he had been harassed after his release in 1992.
43 It may be, having regard to the RRT's view of the applicant's credibility, that it would have rejected his claim to have been sentenced to a term of imprisonment by a body including a member of the PSB and that he was cruelly mistreated while in reform camp. But I think that there is a difference between expressing "considerable doubts" about a story and characterising a claim as "exaggerated" and making findings on material questions of fact. It is true that the applicant was disbelieved on many aspects of his case. But that does not mean that his claims concerning the consequences of his pro-democracy activities would inevitably have been rejected (as indeed the RRT itself recognised). This is not, in my view, simply a case of loose phrasing or unhappy terminology. It is a case where the RRT did not make findings on significant factual claims made by the applicant.