Hong Li v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1. The applicant, represented by counsel appointed under the pro bono scheme established by O 80 of the Federal Court Rules, seeks an order for review of a decision made by the Refugee Review Tribunal ("the Tribunal"). The decision affirmed a decision made by a delegate of the respondent ("the Minister") not to grant the applicant a protection visa. The grounds upon which such a review may be ordered are set out in s 476 of the Migration Act 1958 (Cth) ("the Act"). 2. Counsel sought leave to amend the application to add particulars of the application, described as three additional grounds. I will deal with that application now. 3. The first of those grounds, described as ground 1A, sought to assert that the decision of the tribunal was wrong in law, implicitly, by failing to make an alternative finding of fact, it is said, should have been made. 4. It was conceded that there was some material to support the findings on which the eventual finding that there was no well‑founded fear of persecution was made. A tribunal does not err in law by making a mistaken finding of fact, provided that the conclusion the tribunal reached was supported by some relevant material. (See: Puhlhofer v Hillingdon London Borough Council [1986] AC 484 per Lord Brightman at 518.) 5. It was not submitted that the absence of logical grounds or of probative material made the decision‑making process a process that did not comply with the requirements of the Act and, therefore, subject to review under s 476(1)(a) of the Act. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per Gummow J at 611 [145].) An improbable finding of fact is not, in itself, a ground for review under s 476(1)(d) or s 476(1)(g). There is no point in allowing that amendment. 6. In relation to the second proposed amendment, ground 1B, it was conceded that this ground was not available under the terms of the Act. Section 476(3)(e) expressly excludes failing to take into account a relevant consideration as an element of the ground of review for improper exercise of power under s 476(1)(d) of the Act, the ground sought to be relied upon. Therefore, the proposed ground cannot succeed and the amendment should not be permitted. 7. Proposed ground 1C seeks to rely on the ground for review in s 476(1)(e) of the Act by arguing that the Tribunal failed to consider material relevant to issues the Act required the Tribunal to determine and, therefore, it is said, the Tribunal must have misinterpreted the Act by failing to carry out a function required of it by the Act. In particular, the proposed ground relies upon the argument that the task of the Tribunal at law was to assess whether there was a chance that an event would occur that would constitute persecution under the terms of the Refugees Convention, and that the Tribunal had to assess that prospect by considering material relating to past facts and by making a prediction as to future events. If the Tribunal considered that there was a chance that such an event may occur, the Tribunal would be required to find that the applicant was entitled to the visa he sought. 8. It is apparent from the Tribunal's reasons that it did consider the relevant material and make the determination required by law as set out in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559. The Tribunal assessed the relevant material to make a conclusion as to what the future held for the applicant. The proposed ground could not succeed in establishing any misinterpretation of the law on the part of the Tribunal, as required by s 476(1)(e). In truth, the proposed ground would challenge findings of fact, or the emphasis or weight given to material by the Tribunal. No such ground for review is provided under the Act. 9. Therefore, the amendments to the application as proposed in grounds 1A, 1B and 1C must be refused. It also follows that ground 1, of which the proposed amendments are said to be an adumbration, must fail. Grounds 2 and 3 of the application which depend, in their terms, upon ground 1 also fail. 10. The only other ground relied upon in argument was that the Tribunal was said to have exercised a discretionary power in accordance with policy and not on the merits of the particular case, that being said to be an improper exercise of power for which grant of review is provided in s 476(1)(d) and s 476(3)(c) of the Act. 11. The decision of the Tribunal is not the exercise of a discretionary power. It is an administrative adjudication on the material put before the Tribunal. (See: Mr A v Minister for Immigration and Multicultural Affairs [1999] FCA 1086.) Pursuant to that adjudication the visa must be granted or refused under the terms of the Act. 12. In any event, the Tribunal did not rely upon a policy that directed, implicitly or explicitly, how a decision was to be made by the Tribunal. The reference to "policy" by the Tribunal was to the finding of fact by the Tribunal that it was the current policy of the Republic of China not to pursue participants in the pro-democracy activities of 1989. The Tribunal did not make a decision by applying departmental or ministerial policy without regard to the merits of the case. 13. The application must be dismissed.