NACE v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") confirming a decision of the respondent Minister to refuse to grant to the applicant a protection visa. The application as filed sought relief under s 476 of the Migration Act 1958 (Cth) ("the Act"). As a result of amendments made to that Act, any application that is permitted to be made to the Court is required to be made under s 39B of the Judiciary Act 1903 (Cth). The applicant is not legally represented and, for the purposes of the hearing, it is appropriate to treat his application as being one made under s 477 of the Act for a prerogative writ or other relief as mentioned in that section. 2 The Tribunal's decision is a "privative clause decision" as defined in s 474 of the Act. Subsection 1 of the section provides that such a decision is final and conclusive and it is not subject to challenge or to prohibition, mandamus injunction, declaration or certiorari in any Court. The effect of s 474 has been the subject of a number of first instance decisions in this court including a decision of my own in Ratumaiwai v The Minister for Immigration & Multicultural Affairs [2002] FCA 311. Different views have been taken by individual judges. In the result the Chief Justice convened a Full Court comprising five judges of the Court to consider a number of appeals from a number of the first instance decisions. Those appeals were argued in June and a decision is awaited. 3 In these circumstances it is not appropriate that I decide the matter by reference to the question of the meaning of s 474(1) or for that matter its constitutional validity. On any view of the matter relief to which an applicant would be entitled under s 39B of the Judiciary Act 1903 (Cth) requires the applicant to show that the decision of which review is sought is in some way erroneous. It is a matter of law whether that arises as a result of a jurisdictional error or perhaps as a result of the failure to give natural justice. 4 If no ground of relief can be demonstrated to support the making of an order under s 39B of the Judiciary Act 1903 (Cth) then it will be irrelevant whether this Court has jurisdiction to deal with the matter because it is one falling within the definition of "privative clause decision". 5 Before dealing with the matters put to me by the applicant, who had the assistance of an interpreter, it is convenient to say something shortly about the Tribunal's reasons and the case that was put by the applicant to the Tribunal. 6 The applicant is a citizen of the People's Republic of China. His application for a protection visa was refused and he appealed to the Tribunal initially in 1997. The decision was given in October 1998. That decision was set aside by a Judge of this Court and the matter remitted to the Tribunal to be determined in accordance with law. Suffice it to say that the reason the initial decision was set aside related to a problem of interpretation which arose during the course of the initial hearing. The matter was then heard by a Tribunal differently constituted. It is that second decision which is now the subject of the present application. 7 It was the applicant's case that he had become a member of a religion which is referred to as Yi Guan Dao or Tien Tao while he was in China. He said that he was initiated into this religion and practised it secretly before he learned that he was listed in a black list, possibly as a spy, and was under threat of arrest. He said that he believed he would be persecuted in China because he was a worshipper of Tien Tao. In the result he obtained a travel document illegally and went to Hong Kong and thence to Australia. 8 It was also part of the applicant's case that his wife had been dismissed as a teacher because of the applicant's involvement in the Tien Tao faith and that ultimately, because of pressure, she had attempted to commit suicide. He said also that his child had been refused entry to a hospital, also as a consequence of his religious association. In support he produced two documents which he claimed to substantiate these matters. The one relating to the wife indicated that she had had treatment as described in the certificate and the one relating to the son showed that he suffered from asthma and hospitalisation was recommended. 9 The applicant claimed also that a number of persons in China were imprisoned or otherwise persecuted as a result of their participation in the religion. The Tribunal rejected the applicant's case and in so doing it took into account evidence before it which suggested that the religion in question was unknown in China at the present time. It noted that the applicant had called a witness who had no direct knowledge of matters in mainland China. In particular the Tribunal said that it found the applicant's account of worship in China implausible. 10 The Tribunal did not accept a great deal of the evidence which the applicant gave. It did not accept that the medical certificates supported the applicant's case, nor did it accept the evidence of the witness (concerning arrests in Shanghai which the applicant claimed to have taken place) as useful. The Tribunal further did not accept that the Tien Tao movement faced any serious problems in Shanghai as the applicant claimed. 11 The Tribunal took the view that the applicant had fabricated his account and rejected the suggestion that if the son had been refused entry to hospital this arose because of the applicant's religious belief. Indeed the Tribunal expressed the view that the applicant's child was in fact given treatment as recommended by the doctor. Further it took the view that if the applicant's wife had indeed attempted suicide or had been dismissed as a teacher, these events had nothing to do with the applicant's alleged membership of Yi Guan Dao in China. 12 The Tribunal found further that on the basis of material before it that Tien Tao did not exist in China. In summary the Tribunal made findings that the applicant was not a member of Yi Guan Dao prior to his leaving China and that he was not of adverse interest to the Chinese authorities prior to that time. It also took the view that he was unlikely to be adversely treated if he returned to China in the light of anything that may have happened in Australia in the meantime. 13 The applicant complained that he had not been treated fairly by the Tribunal. Not surprisingly, he complained about the findings relating to his wife and child. He said, although there is no support for this in the Tribunal's written reasons, that the Tribunal was biased towards the religion. He complained that the Tribunal had preferred information which it gathered concerning human rights matters in China, which it took as suggesting that the Tien Tao movement did not exist in China, to the evidence which the applicant gave and the witness the applicant called. 14 With some logic perhaps the applicant said that the mere fact that the Tribunal or an expert had not heard about a religion did not mean it did not exist. That may be so but it does not demonstrate a relevant legal error on the part of the Tribunal. Additionally, the applicant complained that the Tribunal did not want to investigate the true nature of the religion. He complained that he had provided sufficient evidence to the Tribunal but that the Tribunal did not want to believe that evidence. 15 Generally the applicant claimed that the Tribunal's decision was unfair to him. I have read the Tribunal's reasons carefully because I am conscious of the fact that the applicant is not legally represented and has difficulty in distinguishing between mistakes of law and non-acceptance of facts. I appreciate the difficulty that an unrepresented litigant has in seeking to argue an appeal in this Court. That difficulty is greatly aggravated when English is not the appellant's first language. Findings of fact, for example, whether such a religion exists or whether the applicant was a member of it or whether meetings were held as he suggests or whether persons were persecuted in China, are all matters for the Tribunal. Judicial Review, as is the essential substance of the relevant writs referred to in s 477, is not about the Court making its own factual findings. The Court can only intervene if the Tribunal has erred in law. 16 There is nothing in the Tribunal's reasons, which I am able to discern, which demonstrates that it erred in law. I repeat that while no doubt it made decisions of fact which the applicant does not accept that is not an error of law. In these circumstances there is no foundation for any relief of the kind referred to in s 39B of the Judiciary Act and in consequence, whether or not this court's jurisdiction is excluded under s 474(1) of the Act, the application must be dismissed. 17 The orders I will make will be that the application is dismissed and that the applicant pay the respondent minister's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.