NAVK v Minister for Immigration and Multicultural and Indigenous Affairs

7 The two documents from the Department of Foreign Affairs and Trade ('DFAT') dealt with (as the treatment of them by the Tribunal suggests) the attitude of the Chinese authorities to people who return to China having made asylum claims in Australia, to the knowledge of the Chinese authorities. They did not concern, at least directly or expressly, the question of the circumstances (if any) in which the Chinese authorities will view public criticism of them by the publication of asylum claims as offending the national honour or interest. This being so, it was asserted that the Tribunal had committed a jurisdictional error in drawing a central, indeed basal, factual conclusion to this part of the claim, without probative material. Reference was made to what was said by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222, 232, at [25], Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 327 and the Privy Council in Mahon v Air New Zealand [1984] AC 808, 820-21. 8 If the enunciation of the claim was as put forward by the appellant, a difficult question would arise as to whether or not the Tribunal, by relying on the DFAT material, committed a jurisdictional error in rejecting this part of the claim. It is arguable that the DFAT material does not go at all to the question of how the Chinese authorities would view the return of someone whose publicised claims were an embarrassment or affront to national honour. Though, as was submitted on behalf of the Minister, the DFAT material dealt generally with asylum claims and some asylum claims could be understood to have been the subject of publicity. 9 The answer, though, in my view, to this first argument lies in a proper appreciation of what was put to the Tribunal, or, more accurately, what the Tribunal could reasonably take to be put to it. Reading the transcript of the hearing before the Tribunal, I am clearly of the view that the Tribunal was entitled to understand that the significance of the publicity in the Singtao newspapers was that the Chinese authorities would learn of the applicant's claims. That most clearly comes from what the applicant herself said to the Tribunal. Whilst the formulation of the claim as put in argument on behalf of the applicant is open, in particular by reference to what counsel then appearing for the applicant said to the Tribunal, a fair reading of the whole of the transcript leads me to understand that the relevance of the publicity that was asserted to the Tribunal was as a vehicle for carriage of the knowledge of the applicant's claims to the Chinese authorities. 10 Looking at the Tribunal's reasons, it is evident that the Tribunal viewed the claim about the publicity in the way I have assessed it. In so doing, it did not misunderstand nor misconstrue the claim. Thus understood, the DFAT material was a direct answer to the claim. Thus, there can be no argument that there was jurisdictional error in the Tribunal concluding as it did in this regard.

The second issue - a way of putting the claim not articulated by the applicant allegedly not dealt with by the Tribunal 11 It was submitted that there was a claim (accepted not to have been articulated by or on behalf of the applicant) that was thrown up by the material that should have been dealt with by the Tribunal. 12 The claim in question was expressed in the second ground of the application as follows: 2. The Tribunal failed to determine an issue raised by the information and material before it, that being whether the applicant faced sanctions under Chinese law because of the nature of and the publicity given to her claims. 13 This way of putting the claim was said to arise out of one of the two pieces of DFAT material earlier referred to. This document contained the formal advice of the Chinese Ministry of Foreign Affairs as follows: China has stable politics and United National Peoples and Chinese People live in peace and contentment. There is no reason to give rise to refugees, therefore the issue of so called 'Chinese citizens becoming refugees' does not exist. According to relevant Chinese law, all Chinese citizens overseas can apply for passport renewal at Chinese Embassies and Consulates. For that small minority of persons who take part in activities which jeopardise national security, honour and national interest, Chinese Embassies and Consulates will not extend their passports, if they correct their mistakes, stop the activities listed above and perform the duties of citizens, they can still obtain permission to have their passports renewed or extended.

14 It was argued that the Chinese authorities thereby admitted that in the dealing with passports they deal more harshly with people who jeopardise, amongst other things, national honour. Thus, it was said, it could be concluded that the law would not be applied fairly to such persons. This way of putting the claim was not addressed by the Tribunal. 15 The Full Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [55]-[63] dealt with the question of what claims must be dealt with by the Tribunal to complete its statutorily required task (its jurisdiction) even though they may not be expressly articulated. See also Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389, 394 [24], 408 [95] and Applicant S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 112. From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 16 Here, the context and circumstances included the following factors: the applicant was an intelligent businesswoman familiar with China, the applicant was represented at the Tribunal hearing and has been represented for some time in Australia, and this was the fourth Tribunal hearing at which her claims were propounded. In that context in particular, I do not think that this way of putting her claims arises tolerably clearly from the material. Once articulated, it has an internal coherence, which enables it to be said that it is one way of enunciating a fear. However, with respect to counsel, it is an argument reflecting careful thought having been given, after the fact, to the record. It did not appear to those putting the applicant's case and to the applicant. As I said, it does not arise tolerably clearly from the material. 17 The Tribunal did not fail to complete its statutory task by not dealing with the point. 18 For these reasons the application should be dismissed with costs. 19 I am grateful for the care, clarity and succinctness with which both counsel developed their arguments. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate: Dated: 22 December 2004 Counsel for the Applicant: Mr L Karp

Solicitor for the Respondent: Australian Government Solicitor