Minister for Immigration & Multicultural Affairs v Zheng

The judgment appealed from 20 Mr Zheng applied to this Court for judicial review pursuant to s 476 of the Migration Act 1958 ("the Act"). Before the learned primary judge, Mr Zheng advanced three submissions. These were:

1. The Tribunal had failed in its obligations under s 430(1)(c) to make findings of fact in relation to Mr Zheng's claims of past persecution.

2. The Tribunal had erred in law in its understanding of the notion of persecution on religious grounds drawing, it was submitted, a false distinction between religious beliefs and practices on the one hand and religious governance on the other.

3. The failure of the Tribunal to make adequate findings of fact as to past persecution precluded the Tribunal from properly applying the test to be found in the decision of the High Court in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, namely whether there was a real chance that the applicant seeking refugee status would be persecuted for a Convention reason. In some ways this third submission is but a restatement of the first as indeed the Tribunal and counsel for Mr Zheng accepted.

21 The learned primary judge accepted the first of these three submissions finding that the Tribunal had failed to make factual findings on the three events of detention in March 1984, January 1987 and early 1989, the latter involving torture, mistreatment and a three year term in a labour camp, which was the foundation of Mr Zheng's case. The learned primary judge said: "The way in which the RRT approached these factual claims was to refer to the three specific claims, and then to say that the applicant was consistent and credible in his accounts of them and that they stood 'uncontroverted by any direct evidence'. This is a significant conclusion. There is then a reference to the RRT considering it significant that the Bishop did not mention any past difficulties which the applicant had with the authorities, but only referred to 'difficulties' in the future tense. It is pointed out by the RRT that the Bishop did not spell out the grounds for his concerns as to the nature and extent of the difficulties on the applicant's return. It then says that a decision-maker could only speculate whether the Bishop's concerns stem from prior difficulties. The decision-maker then says that he has some doubt whether the applicant in fact had a history of problems but concedes apparently with some reluctance that the benefit of the doubt has been given to the applicant. The applicant is entitled to more than this. He is entitled to a finding if the evidence so requires. There is then the statement that the RRT 'accepts that the applicant suffered sanctions at the hands of the authorities'. If this is a reference to the imprisonment and torture claimed by the applicant it is somewhat of an understatement. There is no description as to what specific sanctions were 'accepted' by the RRT, albeit with some doubt. There is no specific finding as to whether any of the incidents occurred or whether the conclusion reached was that the applicant suffered some other sanctions. The reader is not given the benefit of know the nature, extent and seriousness of the 'sanctions' found. The position is further shrouded in doubt because the account of the applicant is referred to as credible and uncontroverted by any direct evidence." 22 In his Honour's view therefore there was a failure to make essential findings as to each or any of the three incidents and because these matters were of primary importance it was said that the failure amounted to a breach of s 430(1)(c) requiring the decision to be set aside. 23 It should be noted here that it was not suggested on behalf of the Minister before the learned primary judge that failure to give reasons was not a ground of review. Indeed it was conceded. 24 The learned primary judge then turned to the question whether the Tribunal had erred in law in finding persecution. In his Honour's view because the Tribunal had made no findings in respect of the specific three events the Tribunal could not properly perform its task and assess the prospects of persecution on return. His Honour did not consider the question whether the inability to practise religion in the underground church itself constituted persecution. 25 Finally, his Honour turned to the real chance test submission. In his Honour's view because the findings of fact were so generalised and ambiguous the Tribunal could not properly have performed its duty to determine whether there was a real chance of persecution. 26 From this decision the Minister appealed to the Court.

The Minister's submission on the appeal 27 At the commencement of the appeal the Minister sought leave to submit, for the first time, that the failure to make findings of material fact was not a ground of review in the Court. It was said that this question had been argued before at least one Full Court and that judgment was reserved. An application for special leave to argue the matter had been lodged with the High Court in another application. The Court noted that depending upon the result of the decision which had been reserved the Court might relist the matter, if necessary, for further submissions on this point. It was accepted that it would be some time, if at all, before the High Court would consider the question. 28 Subject to that submission it was submitted on behalf of the Minister that the learned judge had erred for two reasons. First it was submitted that the Tribunal had made findings for the purposes of s 430(1)(c). Second, it was submitted that, if it had not, the respondent's claims to past mistreatment were not material for the purposes of s 430(1)(c) as the Tribunal had found that Mr Zheng's current fears of persecution were not well-founded.

Respondent's submissions on the appeal 29 Counsel for Mr Zheng opposed the granting of leave to argue that the failure to make adequate findings of fact was a ground of review. He maintained the finding of the learned primary judge that there had been a failure to find the facts and in addition submitted that inability to practise religion in the underground church was such as to give a well-founded fear of persecution on grounds of religion.

Should leave be granted to argue whether the failure to make findings on the material questions of fact constituted a ground of review? 30 Since the appeal was argued two decisions of Full Courts of this Court have been given. In the first, Minister for Immigration & Multicultural Affairs v Yusuf [1999] FCA 1681 (unreported, Heerey, Merkel and Goldberg JJ) it was held that the ground of review to be found in s 476(1)(a) of failure to observe procedures comprehended failure to comply with the provisions of s 430(1) including the obligation to give reasons and make findings on material questions of fact. In coming to this conclusion that Full Court was influenced by what it referred to as a uniform line of Full Court authority conclusive against the argument of the Minister. 31 Subsequently, another Full Court comprising Whitlam, RD Nicholson and Gyles JJ handed down judgment in Xu v Minister for Immigration & Multicultural Affairs [1999] FCA 1741. By majority, Whitlam and Gyles JJ held that failure to comply with s 430 fell outside the permissible grounds of review in s 476(1)(a) of the Act. Nicholson J was of the view that the appeal could be resolved without deciding that issue and specifically did not join with the other members of the Court in deciding whether a failure to comply with s 430 of the Act gave rise to a ground of review pursuant to s 476(1)(a) of the Act. In his Honour's view more thorough argument was necessary before that question should be decided. 32 The majority in Xu noted that, after its reasons had been substantially prepared, a copy of the decision in Yusuf had been received. No reference was made to the important rule that a Full Court should as a matter of comity follow the decision of another Full Court unless convinced that the other decision is clearly wrong: State of Western Australia v Wardley Australia Ltd (1991) 102 ALR 213 and see Transurban City Link Ltd v Allan [1999] FCA 1723. However a reading of the judgment makes it clear that their Honours were convinced that it was. 33 The matter is of some considerable importance given that it is substantial point in the appeal, although not the only one, I would be of the view that if, as the learned primary judge held, there was a failure to comply to s 430 of the Act, the question of whether failure to comply with s 430 was a ground of review would need to be dealt with once more by a Full Court of this Court. This would mean that the whole question would need to be re-argued and a decision made whether to follow Xu or to follow Yusuf. 34 Accordingly, I propose to consider the grounds of appeal on the assumption that failure to comply with s 430(1)(c) is a ground of review. Failure on the part of Mr Zheng to succeed on that point makes the question whether failure to comply with s 430 constitutes a ground of review entirely academic.

Was there a failure to make findings of fact concerning the three occasions between March 1984 and September 1992? 35 The passage complained of, which I have set out in para 16 is certainly not well expressed. The expression is not helped by the use of the word "sanctions", which his Honour noted was, if reference to imprisonment and torture, rather an understatement. 36 However it is also important to bear in mind, what the High Court said in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. In particular two propositions flow from that discussion. The first, a corollary of the restraint on judicial review not descending into matters of fact is that the reasons of the Tribunal should be given a "beneficial construction" and the Court should not be concerned in "the language ... nor with unhappy phrasing of the reasons". The second, which is related to the first, is that reasons for decision are not to be construed minutely "with an eye keenly attuned to the perception of error". As Brennan CJ, Toohey, McHugh and Gummow JJ said at 272: "These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision." 37 While the use of the word "sanctions" may perhaps be unfortunate, in my view, the meaning of the passage complained of is tolerably clear. However, reluctantly and notwithstanding its doubt, the Tribunal accepted the claims of the applicant that he had been arrested, detained and variously punished on the three occasions. Ultimately the meaning of the relevant passage must be discerned from the words used by the Tribunal accepting that a pedantic and over-critical approach should not be adopted. The matter is one of impression and I have the misfortune of disagreeing with the learned primary judge in the conclusions he reached about it. 38 In my view there was no failure on the part of the Tribunal to make findings of fact in respect of these matters. It is therefore not necessary to consider the Minister's second submission that the particular matters in question were not on the Tribunal's reasons material. However, it must be said that the Tribunal found that those reasons did not in any way preclude the Tribunal from finding at the relevant date; ie. at the date of the hearing, that the fear of the applicant was well-founded. 39 That suffices to deal with the matters dealt with by the learned primary judge but leaves for further consideration the submission that failure to be permitted to practise one's religion is itself persecution on grounds of religion. 40 This submission turns upon the question whether the Tribunal found that the practical underpinning of the submission in fact existed. 41 For my part I am prepared to accept that the prohibition legally to practise one's religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention. But did the Tribunal find that Mr Zheng was prohibited from practising his religion? 42 There was evidence before the Tribunal which was accepted by it that, while problems were encountered by members of the underground Catholic church, there was not prohibition upon Catholics practising their religion. The fact that religious congregations were required to register was not itself persecution as the Tribunal held. The Tribunal was of the view that there was no doctrinal difference in religious practice between the underground church on the one hand and the open registered Catholic church on the other. The difference between them lay only in the need for registration, what the Tribunal referred to as "the governance of the church". Put another way, the country information showed that the recognised or patriotic Catholic church was required to be self-supporting and self-propagating with choice of bishops being left to Chinese authorities rather than the Vatican but the underlying religious faith was the same. 43 In my view it was open to the Tribunal to reach the conclusion it did on the evidence before it and it follows that the decision of the Tribunal discloses no reviewable error. 44 In the circumstances I would therefore allow the appeal, set aside the decision of the learned primary judge and in lieu thereof affirm the decision of the Tribunal. The respondent will be ordered to pay the appellant's costs of the appeal and at first instance. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

On appeal from a Judge of the Federal Court of Australia

REASONS FOR JUDGMENT WHITLAM J: 45 I agree with Hill J that, however infelicitous its language, the Tribunal made findings of fact concerning the claims by Mr Zheng about his arrest, detention and punishment between 1984 and 1992. On any view of the meaning of the expression "material questions of fact" in s 430(1) of the Migration Act 1958, the requirements of that subsection have been observed. 46 So far as the decisions in Yusuf and Xu are concerned, unsurprisingly, I adhere to what Gyles J and I so recently said in Xu. The two decisions were given practically contemporaneously. In "not following" Yusuf, the usually important considerations of predicability and certainty in the law (which are referred to in Transurban City Link Ltd v Allan [1999] FCA 1723) were entirely absent in Xu. In any event, in the present case the question whether failure to comply with s 430 constitutes a ground of review becomes entirely academic. 47 I also agree with Hill J and with Carr J that it was open to the Tribunal, on the material before it, to conclude that Mr Zheng was not prohibited from practising his religion. 48 The appeal should be disposed of in accordance with the orders proposed by Hill J. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

On appeal from a Judge of the Federal Court of Australia

BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

CARR J: 49 Hill J, in his reasons for judgment, has set out the details of the factual and procedural background of this matter. I am grateful to him for saving me from having to do the same. I can proceed directly to outlining how I would dispose of this appeal. 50 In short, I think that the learned primary judge was correct in his decision that there had been a failure to comply with s 430(1)(c) of the Migration Act 1958 ("the Act") on the Tribunal's part, by failing to set out its findings on a material question or questions of fact. 51 The material question of fact (it may be a composition of more than one such question), as I see it, was whether, as the respondent alleged, he had been persecuted by being deprived of his liberty on three occasions for (a) a period of 15 days, (b) most of 1987 and (c) 3 years, respectively, and on the third occasion by being tortured. For the Tribunal to say that "… the applicant suffered sanctions at the hands of the authorities" does not, in my view, constitute setting out the findings on that material question of fact. 52 In that regard, I differ respectfully from the assessment made by Hill and Whitlam JJ. I am, acutely, conscious of the restraints imposed by law on a court of review as explained by the High Court of Australia in Wu and referred to in Hill J's reasons at paragraph 36. 53 The question, in my opinion, is one of degree. I happen to think that this Tribunal decision falls on the wrong side of the line which separates reasons which do set out findings on a material question of fact and those which do not. 54 It may well be that the Tribunal, in the passage to which I have referred above, intended to express its acceptance that, as a material fact, the appellant had been imprisoned on three occasions and tortured on one of those occasions because of his religious activities. But that conclusion depends largely on inference from its use of the word "sanctions". In my view, as the primary judge observed, the respondent was entitled to a clear finding on such a material matter as the very serious persecution which he alleged. 55 I would reject the appellant's argument that, in this matter, it was permissible for the Tribunal, as in Jones v Minister for Immigration and Ethnic Affairs (1995) 63 FCR 32, to make a generalised finding of this type. The present case is not one where the Tribunal said that it was unable to make any findings at all. Jones was a very unusual case in which none of the witnesses could be believed i.e. the witnesses brought by either side. This is a different case. The indications were that the Tribunal accepted most of what was put to it by the respondent until it came to the critical question of the three gradually-ascending (in order of seriousness) punishments. 56 Then it was put by the appellant that even if there had been non-compliance with s 430, that did not matter. It did not matter, so the appellant argued, because the Tribunal had moved on to examine the situation in China as at 1996 when the respondent departed. I would reject that submission on the basis that until there had been a clear finding on the respondent's situation in 1994 when he came out of prison on the last occasion, it did not have a proper basis for assessing whether there was a real chance that he would be persecuted for a Convention reason - see the discussion in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-575. 57 Like Hill J, I would accept that a prohibition legally to practise one's religion could, and probably would, constitute persecution on religious grounds for the purposes of the Convention. I agree with Hill J's reasoning that it was open to the Tribunal, on the evidence, to reach the conclusion that there was no such prohibition in fact. 58 That leaves the question whether leave should be granted to the appellant to argue whether a failure to comply with s 430 constitutes a ground of review. 59 In my view, the appellant should be granted leave so to argue. 60 My provisional view is that Yusuf was correctly decided in accordance with a long line of authorities and that, with all due respect, Whitlam and Gyles JJ may have fallen into error in Xu in declining to follow Yusuf and those authorities. However, I am open to persuasion that my provisional view is wrong.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

Solicitor for the Appellant: Australian Government Solicitor

Solicitor for the Respondent: Legal Aid Commission of New South Wales