Mao Fa Chen v Minister for Immigration and Multicultural Affairs

Was the Tribunal under a duty to enquire about the applicant's claim that three of his colleagues had been arrested? 10 On behalf of the applicant, reference was made to s 424 of the Migration Act 1958 ("the Act"), sub-ss (1) and (2) of which provide; "(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information." 11 As well, Counsel for the applicant referred to s 427(1)(d) which provides; "(1) For the purpose of the review of a decision, the Tribunal may: ..... (d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination." 12 Those references were invoked to support the proposition that the applicant's claim to foundation leadership of "Freedom China" and his assertion that three of his colleagues in that organisation had been arrested were so crucial to his claimed fear of persecution that they should specifically have been investigated by the Tribunal in exercise of its statutory powers. In a related way, it was submitted that, if the Tribunal had made enquiries of the suggested kind, those enquiries would have disclosed further "country information" such as that contained in a report by Amnesty International of February 1998, which contained the statement that; "Groups particularly vulnerable to human rights violations include ........ political dissidents who call for human rights or democratic reform and generally the under privileged and people who denounce abuse of power or are involved in disputes with authorities." 13 The extent to which the Tribunal may be under a duty to make its own inquiries into a matter raised by a particular application has been considered by a Full Court of this Court in Yilan v Minister for Immigration & Multicultural Affairs (1999) FCA 854 (French, R D Nicholson and Finkelstein JJ, 25 June 1999). In a joint judgment, their Honours referred to an observation of Foster J in Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 289, which they considered had been qualified by another Full Court of this Court (Black CJ, von Doussa, Sundberg and Mansfield JJ, Lee J dissenting) in Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553, where it was observed in the joint judgment, at 561; "Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect." 14 The Full Court in Yilan explained Singh by saying, at par 66; "The Tribunal in that case had been given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. And although a failure to ask the Tribunal to exercise its power to make inquiries could not be decisive there was nothing to indicate in that case that it was ever suggested to the Tribunal by the applicant or his agent that it should take any steps of its own to authenticate the documents in question. No such request was made in this case. Ms Yilan was represented throughout and her representative was present at the Tribunal hearing (AB 109)." 15 After a further reference to the particular facts in Yilan, the Full Court concluded on this point; "The Tribunal inquired about the document from the person whom one would expect to have been in a good position to give evidence as to its authenticity. Given the responses which the Tribunal received and the surrounding circumstances to which it adverted in its decision, the Tribunal had every reason to come to the conclusion it did. It had no obligation to embark upon a further inquiry as to the authenticity of the document. Nor was there any obligation to set out in its reasons a statement to the effect that it had given consideration to embarking upon a further inquiry. It had made inquiry at the hearing and the sufficiency of that inquiry is not a matter which is able to be considered upon review by this Court." 16 In my view, similar considerations require the rejection of the present applicant's submission on this point. No indication was given by or on behalf of the applicant before the Tribunal of sources from which his allegedly pivotal role in "Freedom China", or even the existence of that organisation, could be established. His three colleagues were never named or otherwise identified in any way which might have suggested to the Tribunal a possibly fruitful line of inquiry. Moreover, the statement in the report of Amnesty International of February 1998 was in such general terms that, if it had come to the notice of the Tribunal, whether as a result of enquiries prompted by the applicant or of the Tribunal's own background research, it would not have cast any corroborative light on the assertions which the applicant asserts were crucial to his case.

Did the Tribunal comply with s 430 in assessing the applicant's claim as implausible? 17 Sub-section (1) of s 430 of the Act provides; "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 18 It was contended on behalf of the applicant that, in making the findings of implausibility which are set out in par 3 of these reasons, the Tribunal failed, in breach of s 430(1), to refer to the evidence or other material on which those findings were based. Those findings, it was said, were based on assumptions rather than evidence and indicated a failure by the Tribunal to discharge the obligation imputed to it by Merkel J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 56, as approved by a Full Court of this Court in Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, to "determine the substantive issues raised by the material and evidence before it." (original emphasis). 19 In the present case, it was said that "the Tribunal's failure to refer to evidence upon which the findings concerning the PSB and the applicant were based is a breach relating to the central aspect of the claim." 20 A five-member Full Court of this Court has subsequently held in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, that the Tribunal is obliged to set out its findings on any material questions of fact. The joint judgment of Black CJ, Sundberg, Katz and Hely JJ continued, at pars 47-48; "Ordinarily, materiality is an objective concept. If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material. The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. In this respect, s 430 sets a standard of decision-making the RRT is required to observe." 21 The Full Court then rejected the suggestion that the material facts referred to in s 430(1)(c) are confined to the facts which the Act requires to be decided, and continued, at par 55; "The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them." 22 That analysis led to the conclusion at par 57 of the joint judgment that; "A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists." 23 However, the obligation imposed by s 430(1)(d) to refer to evidence on which a finding of material fact is based differs according to whether the finding is of the existence, or non-existence, of the fact in question. As was pointed out in the joint judgment in Singh (supra) at par 56; "Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405 at pars [65] and [67]." 24 That passage has to be read subject to a qualification made earlier in the same judgment at par 46, that; "if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see Durairajasingham." (supra) 25 In Durairajasingham, McHugh J noted, at pars 64 - 67; "In Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at 24 and 31,the Court said: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that: "(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." In this case, the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1). In addition, the prosecutor alleges that the Tribunal breached s 430(1) by failing to set out reasons for its finding that the prosecutor's claim that members of PLOTE tried to recruit him were "utterly implausible". However, this was essentially a finding as to whether the prosecutor should be believed in his claim - a finding on credibility which is the function of the primary decision maker par excellence. If the primary decision maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed. The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged." 26 In the present case, the Tribunal rejected the assertions that the PSB had consistently connived at the allegedly intense activities of "Freedom China" and that one of its operatives had even warned the applicant to escape. The Tribunal rejected those assertions as implausible because it found no reference to "Freedom China" in available literature and because of an implied assumption about the assiduity of the PSB and the number of officers through whom it operated. The Tribunal also rejected the assertion that three of the applicant's colleagues had been arrested and imprisoned shortly before he left the PRC. That rejection was based on a perceived inconsistency in the applicant's accounts of how he had learned of the arrest. 27 As McHugh J pointed out in Durairajasingham, the Tribunal was not required to give detailed reasons for rejecting the applicant's evidence on those issues. It was sufficient to characterise his assertions as "implausible". However, in the present case the Tribunal did not content itself with finding that it did not accept the applicant's evidence or that it was implausible which, in the context, is essentially the same thing; it went further and explained the reasons which led it to reject each of the assertions accepted as crucial to the applicant's case.

Need to assess pro-democracy involvement in conjunction with consequences of escaping the PRC on a false passport. 28 It was contended on behalf of the applicant that the Tribunal had asked itself the wrong question when it concluded in the passage quoted at par 6 above that "in the light of the applicant's own profile, the Tribunal finds there is not a real chance that he would encounter serious harm in China due to his support of the pro-democracy movement". Counsel for the applicant characterised that as a finding in relation to harm which might befall the applicant solely as a result of involvement in the pro-democracy movement in 1989. It was said that the Tribunal erred in failing to evaluate that involvement in conjunction with the consequences for the applicant were he to return to the PRC having fled that country on a false Indonesian passport. 29 In the sentence from its reasons immediately preceding that quoted at par 6 above, the Tribunal said; "The evidence indicates that any obtaining of false documentation by the applicant does not in the circumstances of this case disclose a nexus with the Convention." (emphasis added) That passage does not assert that the use of false documents can never, either alone or in conjunction with other matters, give rise to a well-founded fear of persecution for a Convention reason. Rather, the penultimate paragraph of the Tribunal's reasons read as a whole, conveys a conclusion that the applicant, as a "mild" supporter in 1989 of the pro-democracy movement, would not attract a disproportionate penalty for whatever breach of administrative or criminal law might be involved in his use of a false passport. That reading is borne out by the concluding sentence of the Tribunal's reasons that; "In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason." (emphasis added)

Exposure of corruption as a manifestation of political opinion. 30 Another error of law imputed to the Tribunal by Counsel for the applicant was its failure to recognise that organised and persistent exposure of corruption can constitute an expression of political opinion for the purposes of the Convention. The relevant passage from the Tribunal's reasons is in these terms; "On the question of whether there is a link between any report of corruption and political opinion, such as would give rise to persecution, the Tribunal is not satisfied that such a nexus exists. In making a finding that the exposure of the corruption of certain public office holders does not disclose political opinion the Tribunal draws support from the decision of Wilcox J. in the recent (unreported) Federal Court matter of Wu Shan Liang v the Minister for Immigration and Ethnic Affairs (MIEA), 17 June 1994. In that case the applicant made a claim that he faced imprisonment and harassment for having reported the owner of a local timber yard for not paying his wages. The delegate found that the applicant suffered adverse treatment because of the corruption of local police. His Honour said at pp.20-21: "There was no basis for a finding, or even an assumption, that the imprisonment and harassment claimed by Mr. Zhong arose out of his political position or any police perception of it. So the matter of police corruption was not relevant to the refugee claim." Any prospect of harm to the applicant in this case arises not from his political opinion or that imputed to him, but from his exposure of alleged criminality by certain public office holders." 31 It was pointed out that Wu Shan Liang involved a single instance of corruption, whereas the present applicant claimed to have been involved in systematic exposure of official corruption as part of the activities of his pro-democracy group. However, the only reference to anti-corruption activity by the applicant seems to have been his statement that; "I actively participated in and organised activities such as to make propaganda of western democracy and human rights, to organise listening to the radio from "Voice of America" (USA Mandarin Program), "Voice of Free China" (Taiwan), to reveal the phenomenon of corruption and degeneration within the public office, to oppose exorbitant taxes and levies and so on." 32 When it is remembered that the Tribunal found that the applicant's claimed participation as a founder in "Freedom China" was fabricated, no occasion arose, on the facts of this case, for the Tribunal to consider whether the applicant's past or projected involvement in the exposure of corruption could amount to an expression of actual or imputed political opinion within the meaning of the Convention.

Could the applicant have been persecuted by reason of his political opinions under the guise of a penalty for illegal departure from the PRC? 33 Under this head, Counsel for the applicant contended that the Tribunal had erred in law by presuming that punishment for a breach of administrative or criminal law and persecution for political opinion are mutually exclusive. 34 In the passage from its reasons quoted at par 9 above, the Tribunal did not exclude the possibility that persons whose actual or imputed political opinions are opposed to the prevailing orthodoxy in the PRC may attract a disproportionate penalty if returned to that country after leaving it on false passports or otherwise illegally. Rather, the Tribunal reached a factual conclusion that the applicant, as no more than a "mild" supporter of the pro-democracy movement, would not attract a disproportionately higher penalty than other illegal emigrants, in reality as a form of persecution by reason of his political opinions. It is true that the Tribunal observed that there was no evidence that illegal departures, even of a highly publicised kind, per se led the PRC authorities to impute a particular political opinion to the emigrants concerned. However, that observation does not entail acceptance that concededly "political" immigrants can never be disproportionately punished under colour of a penalty for their illegal departure.

Actual bias - s 476(1)(f) 35 Among the grounds afforded by s 476(1) of the Act on which an application may be made for review by this Court of a judicially-reviewable decision of the Tribunal is; "(f) that the decision was induced or affected by fraud or actual bias." Counsel for the applicant disclaims any suggestion of fraud in the present case. However, he contends that it can be inferred from its rejection as "implausible" of the applicant's claim to have had a friend in the local PSB who was sympathetic or helpful, the Tribunal was guilty of actual bias. Support for this contention was said to be provided by these observations of North J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505, at 562, 563 and 564; "Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant: ..... Where actual bias is not expressly voiced, it may be proved by inference from the facts and circumstances. Re Gooliah v Minister of Citizenship & Immigration (1967) 63 DLR (2d) 224 is the only case which I have been able to find which has been determined by a finding of actual bias based on an inference from the surrounding facts and circumstances. ..... ...actual bias may exist even if the decision-maker did not intend or did not know of their prejudice, or even where the decision-maker believes, and says, that they have not prejudged a case." 36 The Court was invited to infer actual bias in the Tribunal on the basis of the terms in which it rejected as implausible the claim of the applicant referred to above and the existence on the Departmental file in relation to the applicant of a note dated 10 February 1998. The note recited that; "The applicant fits a common profile with some 20 other recent P.V. applicants (earliest identified so far was lodged in May1997) in that he/she came to Australia from the PRC by using an Indonesian or in 2 or 3 cases a Hong Kong British national passport. Most of the applicants have declared in their submissions attached to their applications that the passports are not theirs i.e. they used a false identity to enter Australia. Almost without exception, the applicants come from Fuqing city in Fujian Province and more often than not from Jiang Jing town - Fujian is notorious for being a centre for people smuggling. The applicants have usually given their residential addresses as one of 5 or 6 in the northern suburbs e.g. Epping, Thomastown, Lalor, Reservoir or Preston. Although the first lodged cases gave the details of an agent that assisted with the applicant, the more recent cases have said an agent was not involved even though their submissions clearly come from the same two or three sources." 37 I have not been persuaded to draw the inference discussed above, which the paucity of authority revealed by North J's researches in Sun Zhan Qui suggests will only be drawn in exceptional circumstances. Far from revealing a mind closed to the possibility that the applicant's claim might have been true, the language quoted at par 33 above, which was used by the Tribunal in rejecting it, indicates an open-minded evaluation of the probability of the truth of the applicant's account against what could reasonably be presumed as to the nature and assiduity of the PSB as a body. It is to be noted in this context that the Tribunal did not reject as implausible the claim that the applicant had a friend in the PSB or that such a friend had provided warnings from time to time of hostile PSB operations. Rather, the Tribunal found it to be implausible that "officers" of the local emanation of the PSB as a whole, "the very body that is charged with monitoring and controlling dissent would consistently and effectively inform the applicant and his colleagues of operations such that they could circumvent its authority each time they held public meetings or that the group was able to track PSB operations in other ways such that its public meetings continually went undetected." (emphasis added). 38 As indicated in pars 26 and 27 of these reasons, the Tribunal was entitled to dismiss, without more, the relevant claim of the applicant as "implausible". In the circumstances, the use of that expression does not support an inference of actual bias. 39 Nor am I prepared to draw that inference from the existence of the Departmental file note quoted above. The file note was apparently written by a Departmental officer, not a member of the Tribunal, and was brought into existence some ten months before the Tribunal formulated its reasons for decision. Although it was recited in that decision that the Tribunal "had available to it material contained on the Departmental and Tribunal files", there is no evidence that the note came to the attention of the Tribunal member who decided the applicant's application or was present to his mind at the time of the decision. It does not appear that the allegation contained in the file note was raised with the applicant during the hearing before the Tribunal. Nor is there evidence that his written submissions came, or could have been regarded as coming, from one of two or three of the same sources as those of some twenty other applicants. For these reasons, I do not regard the file note, either alone or in conjunction with the language in which the Tribunal rejected the relevant claim, as supporting an imputation of actual bias.

Is there no evidence to justify a finding of an inconsistency in the applicant's accounts? - s 476(1)(g) 40 Another ground for review by this Court of a decision of the Tribunal is described in s 476(1)(g) as being; "(g) that there was no evidence or other material to justify the making of the decision." Sub-section (4) of s 476 stipulates in relation to that ground; "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 41 It has been contended on behalf of the applicant that the Tribunal based its decision "in large part" on inconsistencies in the applicant's account of what caused him to flee his home region of Fujian. The alleged inconsistency relied on by the Tribunal was that described in the fourth paragraph of the extract from its reasons quoted at par 3 above. In relation to the matters there recited, Counsel for the applicant submitted that "there is nothing inconsistent between the applicant's claim that he had been told by his father after he left Fujian that three of his colleagues had been arrested and his assertions at the hearing that he had been told of the arrest by friends before he left Fujian". Counsel further submitted that "It may be that the applicant did not give an entire account on each of the two occasions mentioned by the Tribunal, but that is not to say that the accounts given on those occasions were inconsistent." 42 I entertain considerable doubt whether the inconsistency to which the Tribunal pointed was a "particular fact" within the meaning of s 476(4) of the Act. However, assuming in the applicant's favour that the inconsistency was a fact of that kind, I am unable to find that it did not exist. At the end of his written statement in support of his application for the protection visa quoted at par 4 above, the applicant said; "On 22 October 1997 my father secretly visited me in Guangzhou. Before we said goodbye each other, my father told me that "Freedom China" had been sealed up. three members were arrested and the rest fled and hid somewhere, some of them in Zhuhai, Shenzhen and they were preparing to flee to overseas. I was very sad to hear the news." That clearly suggests that the arrest of his three colleagues was "news" to the applicant when it was recounted to him by his father in Guangzhou after the applicant had left Fujian. On the other hand, the transcript of the hearing before the Tribunal records this exchange between Mr Brewer (constituting the Tribunal) and the applicant (through an interpreter); "MR BREWER: How do you know that three people were arrested? THE INTERPRETER: Someone told me by the phone, over the phone. MR BREWER: Someone rang you in Fujian and told you they'd been arrested, did they? THE INTERPRETER: Yes." That was equally clearly a statement by the applicant that he first heard of the arrests by telephone before he left Fujian so that the arrests would not have been "news" to the applicant if they were later recounted to him by his father in Guangzhou. In the light of the whole of the relevant evidence, I am unable to find, as required by s 476(4)(b), that the inconsistency to which the Tribunal pointed did not exist.

Conclusion 43 It will be apparent from the foregoing reasons that each of the contentions which Mr Krohn ably advanced in support of the application for a review of the Tribunal's refusal of a protection visa has been rejected. Accordingly, the application must be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate: Dated: 23 March 2001 Counsel for the Applicant: Mr A Krohn Solicitor for the Applicant: MSC Legal Services

Counsel for the Respondent: Mr P Gray Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 23 February 2000 Date of Judgment: 23 March 2001