NAVK v Minister for Immigration and Multicultural and Indigenous Affairs & Anor

The Appellant's Case before the Primary Judge 12 In her amended application below, the appellant claimed prerogative and declaratory relief on the following grounds: "1. The Tribunal committed jurisdictional error of law in that its findings of fact, that the applicant would be treated no differently to others facing criminal charges in China, and would not be persecuted because of her claims for refugee status or the publicity given to them, were unsupported by probative material. Particulars (a) The information in the Department of Foreign Affairs and Trade cables utilised by the Tribunal to support its conclusion did not address the circumstances of the applicant, being that of a person whose case has been widely reported and who had claimed that she was an innocent victim of a political vendetta in that country. 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 In relation to the first ground, the primary judge observed at [5] of his reasons for judgment: "The applicant argued that, through her counsel at the Tribunal and in her evidence to the Tribunal, she had put the claim that she feared persecution not so much because the Chinese authorities would become or had become aware, by the publicity in the Australian and the United States Chinese language newspapers, of her claims of feared persecution, but because the Chinese authorities would become or had become aware that there was publicity about the complaints that she made about the Chinese authorities. Thus, it was argued, her expressed claims were as to the treatment she would receive on return to China because of the offence or slight that the publicity of her claims would cause to what one document in the material referred to as China's 'honour and national interest'." 14 The primary judge further observed that the importance of this enunciation or framing of the appellant's claim arises from how the Tribunal dealt with it at pages 30 and 31 of its reasons - by reference to the publicity in the Singtao Daily newspapers as to the appellant's application for refugee status in Australia and the claims she made in support of such application, namely, that the allegations against her were politically motivated giving rise to a perception of political opposition to the Chinese Government, as well as by reference to two documents from the Department of Foreign Affairs and Trade ['DFAT'] dealing with the attitude of the Chinese authorities to people who returned to China having made asylum claims within Australia, to the knowledge of the Chinese authorities. As his Honour, correctly in our view, said (at [7]): "They [the two DFAT documents] 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." 15 His Honour continued (at [8]): "If the enunciation of a 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 a front to national honour." 16 However, the primary judge concluded in the following terms (at [9] and [10]): "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 or 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." 17 On her appeal to this Court, the appellant did not rely on the second ground below and consequently it is not necessary to consider it further other than to observe that the primary judge concluded that the Tribunal did not fail to complete its statutory task by not dealing with the issue referred to in this ground.

Appellant's Argument on Appeal 18 The crux or heart of the appellant's argument on appeal was that the primary judge and the Tribunal erred in treating as a single claim a statement made by the appellant's counsel to the Tribunal that the appellant feared persecution because of the adverse statements in the media about the Chinese authorities concerning her apprehended impending prosecution on the one hand and answers given by the appellant herself in answer to questions put by the Tribunal about persecution of failed asylum-seekers on the other, rather than as distinct claims. Secondly, or alternatively, the appellant argues that if the Tribunal treated them as distinct claims and made a finding on the claim contained in counsel's submissions it was a finding unsupported by probative evidence. 19 The particular statement of the appellant's counsel to the Tribunal which is relied on as amounting to a discrete or distinct claim, and not part of a wider more general claim constituted by the appellant's answers to questions put to her by the Tribunal, is in the following terms: The point we seek to take is not that the Chinese authorities are aware of the case, it's the Chinese authorities are aware that there has been adverse publicity about them in the media because of impending prosecution of the applicant, which in our submission raises an issue as to whether the applicant would be either unfairly treated, well, unfairly treated by the Chinese authorities or not." 20 It is an isolated submission and in its precise terms was not repeated by the appellant's counsel or raised by the appellant herself in response to the questions put to her by the Tribunal. Indeed, immediately following that question and answer process, the appellant's counsel was asked by the Tribunal: "… was there anything you thought we haven't covered?" and he responded: "Not in terms of claims, there's a couple of things I'd like to say, but that might be appropriate later, just in relation to further submissions and so forth". 21 We were taken to the relevant passages in the transcript where the question and answer process took place: "Q90 Now, your representatives have produced various articles which have appeared in the Australian edition of the Sing Tao Daily. The most recent of those articles identify you as an applicant for refugee status in Australia. Interpreter I beg you, sir? The Tribunal Q91 The most recent of those articles identify you as an applicant for refugee status in Australia. It is apparent that the information in those articles has been taken from the decisions of the Federal Court in relation to your case, as well as other information which is on the public record. Now, you have said that you will be persecuted on your return to China if the authorities there know that you've applied for refugee status in Australia. The Australian Department of Foreign Affairs and Trade advised in 1995 that it was not aware of any substantiated claims of mistreatment of failed refugee claimants who have returned to China. It advised that the Chinese authorities appeared to take the view that such claimants were seeking to take advantage of an opportunity presented by Western legal systems and therefore paid little or no attention to the claims. A (Int)(indistinct) if you say they ignore this issue it's because other people apply, their application had not been published in newspaper and nobody knows that they have applied to be a refugee. My own application for protection has all been publicised. To me, if I go back, it must have some effect. For sure I will be treated unfairly. Because I've grown up in China, I very clear understand what Chinese communist ruling. Then I also know that if anybody apply for protection in a foreign country, when they return they will be unfairly treated. When I attend all the hearings I have been assured that everything is confidential, everything is not published, but how did the newspaper even publish about Federal Court's appeal and all the details, they all appear in the newspapers. You just say here that everything is confidential but you, to myself, you also have to be in confidence. Q92. Well, Ms [NAVK], if I can interrupt you there. Everything that happens in this tribunal is in confidence. What happens in the Federal Court is on the public record unless your representatives specifically asked the Federal Court not to publish information. All the information that is in the articles in the Sing Tao Daily is derived directly from what is included in the decisions of the Federal Court. That information is public knowledge, it's an article of faith in Australia that the courts conduct their business publicly and they publish their decisions. If your representatives wanted to submit that information in relation should have been kept in confidence they would have needed to make that submission to the Federal Court. It's not something that has anything to do with this tribunal. A (Int)Of course my request will be to keep it confidential because I apply for protection here in Australia. I can't understand why in Australia all the courts' proceedings can be opened. Even the legal court, all these tribunal's information, they all will be leaked, will be opened. Q93. Well, with respect, Ms [NAVK], there's nothing to suggest that any information has at any time leaked from this tribunal. As I've said all the information in those articles that are in the newspapers in the Sing Tao Daily that your representatives have produced is derived from the decisions of the Federal Court. The only information that is not actually from the decisions of the Federal Court is information that is otherwise on the public record, such as the information that your husband was convicted in China and sentenced to death in October 2003. A(Int) Regardless of where the news or whatever, the publication of my case, my information will not benefit me when I go back to Hong Kong because Hong Kong now return to China so it will be most unfair to me. Q94. Well, I indicated to your representatives in a letter already that I'm assessing your case on the basis that you will return directly to China, that you no longer have a right to return to Hong Kong. A(Int) That is news for me. Q95. Well, your Hong Kong certificate expired. A(Int) Yes. Q96. And you are a citizen of the People's Republic of China. That means that if you are deported you will be deported to the People's Republic of China, not to Hong Kong. A(Int) Then if I go back to China, even worse for me. Q97. Now, the Australian Department of Foreign Affairs and Trade advised in January 2003 that applying for refugee status would not, of itself, necessarily expose an applicant to persecution on return. It said that an ongoing interest would largely depend on whether the applicant engaged in illegal activities on return. What I'm suggesting on the basis of the advice from the Australian Department of Foreign Affairs and Trade is that the fact that you have applied for refugee status in Australia will not result in further persecution of you if you return to China. A(Int) I, myself, think they are related. Because other people who apply to be refugee have not been published. And now everything is on the newspaper. The Chinese information on me not only that I have applied to be a refugee, even that I am illegally stay here after visa expire, will be also punished when I go back. Several times the newspaper publish my story. (indistinct) to be published so many times." 22 These passages were relied upon by the appellant as the factual basis for the submission in this Court that the submission of the appellant's counsel before the Tribunal, referred to in [19] above, was a distinct claim. 23 The appellant's senior counsel referred us to the following passage of the Tribunal's findings and reasons for decision, namely: "The Applicant's representative, Mr Poynder, noted that the articles stated that the Applicant had claimed that the allegations against her were based on political problems and he submitted that this might lead to her being perceived as politically opposed to the Chinese Government. He and the Applicant suggested that the fact that it had been published in the newspapers that the Applicant had applied for refugee status in Australia would result in her being treated unfairly if she were to return to China". for a submission that it conflated the separate claims made by the appellant's counsel in the Tribunal (that referred to in [19] above) and those made by the appellant in her answers to the question and answer process ([21] above), in a single claim. 24 The penultimate paragraph of the Tribunal's findings and reasons for decision reads: "The Applicant sought to distinguish her situation on the basis that other people who had applied for refugee status had not had their details published in the newspaper as she had. She said that the Chinese authorities not only knew that she had applied for refugee status in Australia but that she had been here illegally because her visa had expired. She said that the newspapers had published her story several times and she was afraid for this reason. However, having regard to the advice of the Australian Department of Foreign Affairs and Trade, I do not accept that there is a real chance that the Applicant will be treated unfairly or otherwise persecuted by reason of any political opinion imputed to her on the basis of the Chinese Government's knowledge of the fact that she has applied for refugee status or the claims she has made as set out in the articles produced by her representatives. I do not accept, in particular, that there is a real chance that the Applicant will be treated differently from other persons facing criminal charges in China by reason of any political opinion imputed to her on the basis of the fact that she has applied for refugee status or the claims she has made in support of her application." [Emphasis] 25 When pressed, senior counsel for the appellant conceded that the penultimate paragraph of the Tribunal's findings and reasons for decision could be read as a finding/conclusion directed to a distinct claim of the appellant's counsel before the Tribunal, but if it was to be so read, he contended that there was no probative evidence to support the finding/conclusion. Indeed, this is why the appellant's argument on appeal was expressed in the alternative (see [18] above). 26 Senior counsel for the appellant submitted that the cables from the Department of Foreign Affairs and Trade in 1995 and 2003 relied on by the Tribunal were not an answer because they go no further than the question of whether applying for refugee status abroad in itself necessarily exposes an applicant to persecution. They do not, he submitted, deal with the case of the response that might be expected for applicants who, by reason of media publicity, are known to have criticised the Chinese authorities as part of their claim for refugee status. 27 Indeed, senior counsel for the appellant went even further and suggested that the second page of the 2003 DFAT advice, in particular, the words: "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." was evidence that such criticism might well lead to persecution. 28 We are unable to accept this latter submission. It is clear, in our view, that what is said in that part of the 2003 DFAT advice is said in the context of overseas Chinese citizens applying for passport renewals at Chinese embassies and consulates in foreign countries and has nothing whatsoever to say about what returning citizens may expect if they are known, through media publicity, to have criticized Chinese authorities in the course of their claims for refugee status in foreign countries.

Reasoning 29 It is clear enough that where the Tribunal fails to make a finding on '… a substantial, clearly articulated argument relying upon established facts' that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) [2004] FCAFC 263 at [55]. 30 The nature of the review function was described by Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]:

"The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act... make it clear that the tribunal´s statutorily required task is to examine and deal with the claims for asylum made by the applicant."

31 The Tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate's decision on the basis of all the material before it; but the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it: NABE v MIMIA at [61]. 32 As indicated in [25] above, senior counsel for the appellant conceded that the penultimate paragraph of the Tribunal's findings and reasons for decision could be read as a finding directed to a distinct claim of the appellant's counsel before the Tribunal, however, in the alternative he argued that there was no probative evidence to support the finding. But the language the Tribunal used was the language of rejection of the appellant's evidence, limited as it was to the statement of the appellant's counsel from the bar table extracted in [19] above - "I do not accept … that there is a real chance that the Applicant will be treated differently from other persons facing criminal charges in China by reason of any political opinion imputed on her on the basis of … the claims she has made in support of her application". [Emphasis] 33 There was no probative evidence to support that finding/conclusion, but none was required. Importantly, there was no probative material pointing the other way. The Tribunal's finding/conclusion amounted to no more than a rejection of the claim by the appellant's counsel. As was said by this Court in WAJS v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 139 at [11] and [12]: "11. Counsel referred to the principle that an administrative decision maker makes a jurisdictional error if he or she bases a decision upon a finding of fact which lacks any supporting evidence. 12. There is no doubt about the existence of that principle. However, it is difficult to apply it to a rejection of evidence. After reviewing the relevant case law up to that date, in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150, Wilcox J said that all of the cases of which he was aware, in which 'no evidence' was treated as a separate ground of invalidity, 'were cases in which the power to make the relevant decision depended upon the prior establishment of a particular fact, it being held in those cases that there was no evidence of that fact'. We are unaware of any later case that departs from that pattern." 34 On the basis that the Tribunal's finding/conclusion in the penultimate paragraph of its findings and reason for decision is directed, inter alia, to a distinct claim of the appellant's counsel before the Tribunal, the Tribunal's rejection of that claim would be sufficient to dispose of the appeal. 35 The primary judge below came to the same conclusion but from a different path. In the extracts from paragraphs [9] and [10] of his reasons for judgment referred to at [16] above, his Honour said that while the formulation of the claim as put in argument on behalf of the appellant was open, a fair reading of the whole of the transcript led his Honour to understand that the relevance of the publicity that was asserted in the Tribunal was as a vehicle for carriage of the knowledge of the appellant's claims to the Chinese authorities. In viewing the claim about the publicity in this way, the Tribunal did not misunderstand nor misconstrue the claim. So understood, the DFAT material was a direct answer to the claim and there could be no argument that there was jurisdictional error in the Tribunal concluding as it did in this regard. 36 In short, his Honour appears to have come to the conclusion that the transcript, when read as a whole, does not reveal the statement of the appellant's counsel extracted at [19] above, as a distinct and discrete claim at all. We have difficulty in accepting a submission that this involves error on the part of his Honour. Whether a claim has been asserted before the Tribunal is plainly a factual matter involving judgments of degree. His Honour's conclusion involved a choice between competing inferences of fact and is therefore entitled to weight on appeal. 37 In Zhang v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 30 this Court said at [17]: "The appeal to this Court under s 24 of the Federal Court of Australia Act 1976 (Cth) is by way of rehearing: see eg. Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at 434-435, [20]. In that case, Allsop J (with whom Drummond and Mansfield JJ agreed) pointed out at 438, [30] that an appeal should succeed only when the views and conclusions of the judge at first instance have been shown to be wrong. As his Honour said, the views and conclusions of the judge at first instance should not be laid to one side and a simple re-argument of the case take place´. … Where the decision at first instance involves a conclusion as to whether an administrative decision maker took into account a particular matter which was required to be taken into account, an appellate court is in as good a position as the judge at first instance to draw such a conclusion. Nevertheless, as the Court (Heerey, Moore and Goldberg JJ) observed in Sidhu v Holmes [2000] FCA 1653 at [8]: In a situation such as this, where the primary fact finding by the Tribunal is not challenged, and is found in the reasoning of the Tribunal, an appellate court is, no doubt, in as a good a position as the trial judge to decide the proper inferences to be drawn from that evidence. However, it is not for an appellate court to disregard the inferences drawn from the evidence by the trial judge. Not only is it appropriate to give respect and weight to the decision of the trial judge in deciding what inferences should be drawn from the evidence: Warren v Coombes (1979) 142 CLR 531, but such a decision should not be interfered with if the trial judge has reached a conclusion based upon competing inferences. The trial judge´s decision on the appropriate inferences to be drawn will only be the subject of interference by an appellate court if the trial judge failed to draw inferences that should have been drawn on the evidence. In Minister for Immigration, Local Government & Ethnic Affairs v Hamsher (1992) 35 FCR 359 Beaumont and Lee JJ observed at 369: "The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be so satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made. Where the majority judgment in Warren v Coombes (supra) (at 552-553) states that an appellate court must not shrink from giving effect to its own conclusions, it is speaking of a conclusion that the decision of the trial judge is wrong and it should be corrected."´ A similar approach was adopted by Branson and Katz JJ in H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43; [2000] FCA 1348 at [11]. See also the remarks of French, Hill and Weinberg JJ in Minister for Immigration & Multicultural Affairs v Zitoni [2000] FCA 1225 at [30], and of Moore J in Rajaratnam v Minister for Immigration & Multicultural Affairs [2000] FCA 1111 at [13]-[14]. In the last-mentioned case, Moore J dissented from the majority as to the outcome of the appeal, but we think his Honour´s views as to the correct approach to be taken on appeal was consistent with that of the majority." 38 As was noted at [20] above, the particular statement of the appellant's counsel to the Tribunal is an isolated submission and in its precise terms was not repeated by the appellant's counsel or raised by the appellant herself in response to the questions put to her by the Tribunal. Moreover, it was a claim unsupported by any probative material and, based on what was said by this Court in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [45]:

"If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal´s published reasons for decision." [Emphasis]

it is by no means clear that there was any obligation on the Tribunal to consider the claim of the appellant's counsel as a distinct and discrete claim. 39 Whether that be so or not, we are not persuaded that there is any appealable error in his Honour's conclusion that, when read as a whole, the transcript does not disclose a distinct and discrete claim by the appellant in terms of the statement made by her counsel to the Tribunal and extracted at [19] above. 40 For these reasons also, the appeal should be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Nicholson and Edmonds.

NEW SOUTH WALES DISTRICT REGISTRY NSD 1962 OF 2004

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REASONS FOR JUDGMENT CONTI J 41 I agree with the reasons for judgment of Nicholson and Edmonds JJ. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Counsel for the Appellant: Mr N Williams SC with Mr L Karp

Solicitors for the Appellant: Ma & Company Solicitors

Solicitors for the Respondent: Australian Government Solicitor