Li v Minister for Immigration & Multicultural Affairs

1 In the reasons I published on 19 January 2000, I rejected each of the applicant's challenges to the Refugee Review Tribunal decision affirming the delegate's decision not to grant him a protection visa. But I considered that the applicant should have an opportunity to argue that the Court should consider whether the Tribunal's unexplained failure to proceed with the check on the authenticity of his army identity card amounted to a reviewable error within s 476(1)(a) the Migration Act 1958 (Cth). 2 Submissions have now been received. The respondent does not contend that the applicant should be denied the opportunity to so argue, as he has now done. Instead, the respondent submits, in effect, that the argument the applicant now relies on lacks substance. 3 In par [23] of the reasons I published on 19 January last, I said that, while the Tribunal was prepared to accept that the applicant had been a police officer who had expressed support for the students in 1989, it was clear that the Tribunal was not prepared to accept that he held the special position in the police which he claimed. In supplementary submissions, the respondent in effect submits that I was wrong in reaching this view and that it is apparent from the passage in the Tribunal's reasons immediately following those to which I referred in pars [21] and [22] of my reasons that the Tribunal did accept that the appellant had the special status in the police which he claimed. 4 In my view, the submission is untenable. When this passage in the Tribunal's reasons now relied on by the respondent is read in the context of the findings of fact expressly made by the Tribunal and its formulation of the issue it had to deal with upon those findings, it is, in my opinion, clear that what the Tribunal recorded in this passage is the view it would have come to if it had been prepared to accept the applicant's evidence as to the period of imprisonment he claimed he had served. The Tribunal did not accept his evidence that he was detained for as long as five years; however, it said that, if it had accepted that evidence, it would have concluded that such a long period of imprisonment could be explained by the authorities imputing to him an adverse political opinion, because he was a significantly more important police official than the Tribunal was prepared to find was the case. 5 Although the respondent in his supplementary submissions asserts that the army identity card was not referred to by the Tribunal after a comment recorded at p 21 of the transcript, that assertion does not persuade me that I was in error in reading the Tribunal's comments at p 62 of the transcript, which I have set out in par [55] of my reasons, as referring, firstly, to the identity card which the applicant undertook to produce to the Tribunal and, secondly, to his army identity card which the Tribunal already had. 6 I remain of the view that the genuineness of the army identity card has the significance to the Tribunal's reasoning and conclusion adverse to the applicant which I discussed in par [59] of my reasons. Further, it is plain from the passage in the Tribunal's reasons at p 14 now relied on by the respondent that, if the Tribunal had been satisfied as to the genuineness of the army identity card, it may well have been prepared to find that his imprisonment was not merely punishment for illegal departure, but also punishment for his political opinions. The Tribunal also found that the appellant's more recent experiences, coupled with what it considered was only very minor involvement in political opposition to the government, precluded a conclusion that he was at risk of persecution for a Convention reason if he were to be returned to China. It is not at all apparent that the Tribunal would have reached that conclusion if it were to conclude, on the basis of a genuine army identity card, that the applicant was a significantly more important public official than it found he was when it gave its decision: his explanation, rejected by the Tribunal, for how he was able to obtain a passport and come to Australia may well have had more credence and so have deprived his apparently unexceptional treatment in China up to and including his departure for Australia of the evidentiary significance that the Tribunal placed upon it in considering whether the appellant had a well-founded fear of persecution. 7 I therefore reject the respondent's submission that proof of the genuineness of the army identity card would not have had any impact on the Tribunal's decision: if the Tribunal had ascertained that the army identity card were genuine, it may have formed a different view about the applicant's credibility and may well not have rested its decision "solidly on its findings about the applicant's life in China post 1994", as the respondent correctly submits it did. 8 For the reasons given in pars [44] and [45] of my earlier reasons, the Tribunal must follow inquisitorial procedures in deciding whether a claim to refugee status is made out. In aid of doing that, it had, at times presently relevant, specific powers, eg, those conferred by ss 425(1)(b), 427(1)(d) and (3), that enabled it to procure for itself information that it considered relevant to the performance of its decision-making task. The unexplained failure by the Tribunal to seek out information that the Tribunal itself identified as of importance to its decision, in my opinion, amounts to a failure to follow the inquisitorial procedures it is required to follow. Such a failure amounts to reviewable error within s 476(1)(a). That is, for the reasons given in par [67] of my reasons, I consider that this is one of those exceptional cases in which the Tribunal did commit reviewable error within s 476(1)(a) by failing to have the authenticity of a particular document checked. 9 I will therefore set aside the decision of the Tribunal. No submissions were made by the respondent as to the orders I should make if the application succeeds. Minh Quang Nguyen v Minister for Immigration and Multicultural Affairs (Merkel J, unreported, 16 October 1998) is authority for the proposition that I have power to send the matter back for rehearing by a Tribunal differently constituted. In view of the potential importance of the results of the check that will be done on the applicant's army identity card to his credibility and the fact that the Tribunal member has expressed views on that issue, it is appropriate that I exercise that power here. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.