Huang v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application under Pt 8 of the Migration Act 1958 (Cth), for judicial review of a decision of the Refugee Review Tribunal dated 2 March 2000 and handed down on 22 March 2000. By its decision, the Tribunal affirmed a decision of a delegate of the Minister, dated 17 December 1999, not to grant the applicant a protection visa. 2 The applicant asserts, and the Tribunal found, that he is a citizen of China. He arrived in Australia on 13 October 1999. He had with him a Chinese passport issued in the name of Kai Yi Huang which bore an Australian visa. However, in his application for a protection visa lodged on 19 October 1999, the applicant gave his name as Han Bin Zheng and stated that the passport and visa had been properly issued to the person whose name they bore, but that a photograph of the applicant had been substituted for that of Kai Yi Huang. The applicant claimed to have acquired that passport because an earlier application for a temporary business visa made in his own name had been refused by the Australian authorities. In those circumstances, the Tribunal found itself unable to make a finding as to the applicant's identity but, as I have mentioned, it accepted that he was a Chinese citizen. At the commencement of the hearing before me, I asked the applicant, through an interpreter, by what name he wished to be addressed. He responded that I should address him as Mr Huang. In those circumstances there is, I think, no need to consider whether any amendment of the application in that respect is necessary. 3 In his application for a protection visa, the applicant said that he feared persecution because he is opposed to the Chinese government's "one child policy", because he supports the pro‑democracy movement, because he escaped from detention in China, because he left China illegally and because of his parents' political profile as a result of the Cultural Revolution. 4 The essence of the applicant's claims as they developed may be summarised as follows. The summary should be prefaced, however, by the comment that the Tribunal found that - and in its reasons gave specific instances of where - the applicant's evidence was in numerous respects inconsistent and changeable. Accordingly, it is not entirely easy, on the material before me, to be satisfied that I understand with complete accuracy what the applicant's final position was. My difficulty in that respect mirrors the difficulty which the Tribunal felt. I have, of course, conducted no renewed investigation of the facts beyond what is contained in the Tribunal's reasons and the relevant documents. 5 The applicant claimed that he and his wife had sought the permission of the local family planning authorities to have a second child but had been refused. In fact, they had a second child in August 1997 who was, like their earlier child, a daughter. The applicant claimed that the birth of the second daughter was not registered and that the authorities remained unaware of her existence. In August 1999, however, the authorities discovered that the applicant's wife was pregnant with what they believed to be the couple's second child. The applicant and his wife were arrested and detained with others said to have contravened the one child policy. After being detained for one day, the applicant's wife was taken to a place where an abortion was to be performed. That happened, and the applicant was released. 6 However, angered by what had occurred, the applicant claimed to have assaulted officers of the planning authority and to have been charged with assault. However, rather than face court, he escaped from detention, resigned from his employment, fled to Shenzhen and there, with the assistance of a friend, sought and obtained the false passport in exchange for a payment of $A30,000. 7 The applicant claimed to fear persecution, should he be forced to return to China, on account of membership of a particular social group, on account of political opinion and because of his conduct in assaulting officers of the local planning authority, escaping from detention and departing China illegally. 8 The Tribunal found that the applicant was not a credible witness. It dealt, as I have mentioned, in some detail with a number of aspects of the evidence he gave before the Tribunal and his statements in support of his application for a protection visa. Particular matters which the Tribunal considered to be implausible included the applicant's claim that the authorities remained unaware of the existence of his second daughter and his explanation of how he came to have $A30,000 with which to purchase the false travel documents. The Tribunal noted also what appeared to be serious inconsistencies and improbabilities about various versions of the applicant's accounts of the dates on which particular events occurred and changes in his evidence as to whether or not, and for what period, he was detained. It is sufficient to say that, in my view, the Tribunal was well entitled, for the reasons it gave, not to find the applicant to be a credible witness. 9 The particular social group, of which the applicant claimed to be a member, consisted either of persons opposed to the one child policy of the Chinese government or those who are the husbands of women forced to undergo abortion because of the implementation of the policy. Despite its findings generally as to credibility, the Tribunal was prepared to accept, for the purposes of its treatment of this aspect of the applicant's claims, that his wife had been forced to have an abortion. Nevertheless, the Tribunal concluded that the applicant was not a member of a particular social group. In so doing, it relied - correctly in my view - on the principles set out by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. It is I think unnecessary to rehearse what the High Court there said: the claimed facts in this case differ somewhat from those under consideration by the High Court, but the principle applicable is, I think, the same. 10 In relation to his claim to fear persecution on account of political opinion, the applicant referred both to his own opposition to the one child policy and to the opinion which he believed would be imputed to him as a result of the profile of his parents during the Cultural Revolution. The Tribunal examined country information, which it considered to be reliable, and found that the authorities are concerned only with high profile dissidents who are perceived to be capable of organising effective opposition. Those who merely held a pro‑democracy view would not attract adverse attention. The applicant had never, he conceded, undertaken political activities other than his expression of opposition to the one child policy by his deliberate transgression of it. I should add that the Tribunal did not accept that the applicant had been charged, arising from the assault which he said had occurred, or that he would face arrest upon his return. The Tribunal found that the applicant might incur financial penalties applicable to any Chinese citizens who transgress the one child policy and possibly generally applicable, but not severe, penalties resulting from his illegal departure. However, the imposition of any such penalties would not constitute persecution for a Convention reason. Additionally, again relying on country information, the Tribunal found that the circumstance that his parents may have suffered during the Cultural Revolution would no longer give rise to a real chance that the applicant would be persecuted. 11 The applicant is not legally represented. He appeared before me assisted by an interpreter. He filed his application for judicial review himself, though he appears to have had some assistance in its preparation. The application states two grounds on which review is sought: first, that the decision was induced or affected by actual bias on the part of the Tribunal; and secondly, that there was no evidence or other material to justify the making of the decision. 12 I shall deal specifically with those grounds shortly. The application also, however, includes several paragraphs in which the applicant makes specific criticisms of the Tribunal's decision and reasons. The first of those paragraphs may be described as a brief restatement of the substance of the applicant's claims. The second criticises a finding of the Tribunal that, in the area of China from which the applicant claimed to have come, the one child policy was not enforced in all its rigour. As to that, the applicant's comment is that he does not agree with that statement and that there is a strict one child policy in his area. The third paragraph is to similar effect in relation to a particular aspect of the one child policy found by the Tribunal. The fourth paragraph deals with a finding by the Tribunal that the authorities in Fujian province generally showed substantial flexibility in dealing with demonstrations and have a reputation for taking a generally more relaxed approach to low level dissent than, for example, their counterparts in Beijing. Again the applicant says that he does not agree with that. The fifth paragraph refers to the Tribunal's finding that it was not satisfied that the birth of the applicant's second daughter was not authorised. Again the applicant says that that statement is not true. Forced abortions, he says, are happening everywhere in China. The sixth paragraph contains an assertion, relying on the earlier paragraphs, that the Tribunal's decision was affected by actual bias. 13 It is not necessary to say a great deal about actual bias. As the Minister points out in his written submissions, the principles are well established. It is necessary to do no more than refer to the statements of the members of the Full Court in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, particularly the judgment of Wilcox J at pages 122 and 123, and also to the recent decision of the Full Court in Gersten v Minister for Immigration and Multicultural Affairs [2000] FCA 855. Actual bias involves an approach to the task of decision making with a closed mind, one unable or unwilling to be persuaded from an initial view. There is, in my view, nothing in the Tribunal's reasons which suggests even remotely that that test is satisfied. In short, that ground, in my opinion, is not made out. 14 As to the second ground - that there was no evidence or other material to justify the making of the decision - it is important to recognise that the ground is not made out unless one of the two limbs of s 476(4) of the Migration Act is satisfied. There is, in my view, no basis to hold that either limb is satisfied. On the contrary, in my view, the Tribunal has in its reasons referred to evidence or other material before it which is capable of supporting each of the findings which it made. 15 I should perhaps add only this. I have considered the reasons given by the Tribunal. I have read the application for a protection visa and the application for review by the Tribunal. I have also read the relevant passages from the independent country information included in the relevant documents to which the Tribunal referred. I see no reason to think that the Tribunal's decision is affected by any reviewable error. It has, I think, carefully considered the questions of fact which arose, made findings which were clearly open on the material before it and correctly applied the established principles of law. 16 It is not open to the Court to review the Tribunal's findings of fact in the absence of one of the legal grounds of review available under s 476 of the Migration Act. The consequence is that the application must be dismissed, and the Court so orders. 17 The Minister seeks an order for payment of his costs. No reason appears why the ordinary course should not be followed. Accordingly, the Court also orders that the applicant pay the Minister's costs of the proceeding. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.