NASH v Minister for Immigration & Multicultural & Indigenous Affairs

the court: 1 The appellant appeals to the Full Court from a primary judge's decision dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent to refuse the appellant a protection visa. 2 The appellant is a national of China who has been to Australia twice. He came here first on 19 October 2001 and departed on 8 November 2001. He arrived again on 17 February 2002. On each occasion he entered Australia on a visitor's short stay visa. On 25 February 2002 he applied for a protection visa. 3 In his statement accompanying his visa application , the appellant stated he worked for a state owned enterprise Shenyang Agricultural Supply Station for many years. He claimed that from 1998, his work unit, and some related government authorities, had persecuted him because of his political views and subsequent participation in public demonstrations. 4 In particular the appellant claimed that he had been unfairly dismissed from his employment along with other employees. He said that he participated in public demonstrations in Shenyang in 1999 to express his protest against what had befallen him and his fellow workers. He claimed he was arrested by police and detained for a week. Thereafter, he was unable to obtain any other work and said that he lost his social welfare benefits (including a monthly payment of 100 Yuan and health insurance which the appellant claimed his employer was to pay for one year following termination of his employment). 5 The appellant claimed that he applied for work with other state enterprises, however as an alleged leader in the public protests, he could not obtain work. He also claimed that as a result of these allegations he was refused a bank loan and could not go into business on his own account. 6 The appellant claims he cannot obtain employment in China and is deprived of a place in Chinese society because he has 'destroyed the social stability'. 7 The decision of the respondent's delegate was given on 15 April 2002 and a fortnight later the appellant sought review of that decision by the Tribunal. The Tribunal invited the appellant to attend a hearing scheduled for 29 April 2003. It informed him that the Tribunal had considered all the material before it relating to his application but it was unable to make a favourable decision on the material then available to it. A copy of the written invitation was also sent to the appellant's migration agent. The appellant indicated he would like to attend the scheduled hearing, however he did not then attend, nor did he contact the Tribunal to explain his absence. The Tribunal proceeded to make its decision, pursuant to s 426A of the Migration Act 1958 (Cth) ("the Act"), without taking any further steps to invite the appellant to appear before it. 8 The Tribunal accepted the appellant's claim that he was dismissed by his work unit and in 1999 that he was arrested for one week following his involvement in a demonstration. With respect to the appellant's claim of persecution, the Tribunal considered relevant information from external sources concerning the employment situation in China, including that on the viability of state enterprises, rates of dismissal of employees of state enterprises, the changing role of the work unit and the treatment of the individual and political activists. The sources of this information were various articles published in business and economic journals, a newspaper, news sources, a monograph, advices available from the Australian Department of Foreign Affairs and Trade ("DFAT"), and a US State Department Report. These were: · A study by John Bryan Starr (1996) 36 Asian Survey 14. · The Far Eastern Economic Review (1998). · "China's Troubled Workers" (1997) authored by Anita Chan and Robert A Senser. · "Reuter Business Briefing Electronic Download" (1998) sourced from The Economic Intelligence Unit. · The Economist (1993, 1995, 1996, 1997). · DFAT advice (1994, 1997). · US Department of State Report (2001). · The Baltimore Sun (1999). · "China: Review 1999" published by Asia & Pacific Review of World Information. 9 The information from external sources described how the changing nature of employment in China, the government's policy of eliminating unprofitable state run work units and its move towards a capitalist economy, had led to an increase in unemployment and associated civil unrest. The Tribunal considered that this information: "…indicates that with the decline of the 'work unit' many PRC [People's Republic of China] citizens have been retrenched, or placed on indefinite leave, by state run work units which are not economically viable. The government has been unable and unwilling to provide employment for the entire population as it did previously." 10 In consequence, the Tribunal found: "…the denial of government employment does not amount to persecution if other employment options are available". The Tribunal is satisfied from external sources that such options are increasingly available to PRC citizens. The Tribunal is not satisfied on the available information that [the appellant] was prevented from obtaining employment in the private sector by the authorities in China or that the authorities will prevent him from obtaining work in the private sector in the reasonably foreseeable future." 11 With respect to the appellant's claim that he was harassed and detained by police because he participated in a demonstration against the government's economic policies, the Tribunal had regard to the Handbook on Procedures and Criteria for Determining Refugee Status (United Nations High Commissioner for Refugees, Geneva, 1992, par 80) which states that holding: "…political opinions different from those of the Government is not in itself a ground for claiming refugee status… an applicant must show that he has a fear of persecution for holding such opinions." 12 The Tribunal found: "…[that it was] not able to determine the exact nature of [the appellant's] political opinion, precisely how he expressed his opinion in China other than the one demonstration in 1999, or if he intends to express his political opinion in the reasonable foreseeable future. 13 The Tribunal was not satisfied that the appellantwas a person of concern to the PRC authorities, due to his political opinion, at the time he departed from China in 2001 or 2002. Nor was it satisfied that the appellant is currently participating in activities of a political nature, which will make him a person of concern to PRC authorities in the foreseeable future. On the evidence available the Tribunal was not satisfied that the appellant has a well-founded fear of persecution, in China, for a Convention reason. 14 Before rejecting the appellant's application for review, and affirming the decision of the respondent's delegate, the Tribunal observed: "[The appellant] was put on notice that the Tribunal was not satisfied by the evidence he provided in support of his application. He did not provide further information despite ample opportunity to do so. Nor has [the appellant] given the Tribunal the opportunity to explore his claims with him at a hearing. Many questions regarding his previous and future circumstances remain unanswered." 15 The primary judge found the application for review before him asserted, without particularisation, that the Tribunal ignored parts of the appellant's claims, ignored relevant material and reached a decision without reasonable or rational foundation, thus giving rise to jurisdictional error. 16 The primary judge found that the Tribunal member did not commit any of the errors said in the application to the Court to have been made. His Honour observed that the appellant merely asked the Court to decide the matter fairly after having the legal hurdles explained. The primary judge held that the Tribunal did not fall into jurisdictional error as alleged or otherwise and accordingly dismissed the application. 17 By his notice of appeal, the appellant contends that: "1. The procedures that were required by law to be observed in connection with the making of the decision and in connection with the conduct of the purpose of making the decision were not observed. 2. The decision involves errors of law." 18 This notice of appeal does not allege any error of law of the primary judge and these grounds of appeal were not propounded before the primary judge. On its face it appears to refer to the Tribunal's decision. Neither ground is particularised and it is not clear what procedures are said not to have been observed by the Tribunal nor is it clear upon what errors of law the appellant relies. 19 As to procedures that were required to be followed, the appellant did not attend the hearing before the Tribunal and the Tribunal made a decision on the review as it was entitled to do pursuant to s 426A(1) of the Act having satisfied the requirements of ss 425 and 425A of the Act. 20 As to the assertion of errors of law, the Tribunal rejected the appellant's claim on the merits: there was no attempt by the appellant to satisfy the Tribunal of the relevant legal tests as to whether Australia owed the appellant protection obligations under the Refugees Convention. 21 Accordingly, the primary judge did not fall into error in dismissing the appellant's application for judicial review. 22 The appeal must be dismissed with costs. I certify that the preceding twenty‑two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices HEEREY, SUNDBERG and CRENNAN.