Sun v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2002-04-24|Before: Conti J

Application for Review 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 9 July 2001. The Tribunal affirmed the decision of the delegate of the Minister made on 15 September 2000 not to grant the Applicant a protection visa (class XA), because as in the case of the delegate, the Tribunal was not satisfied that the Applicant was a refugee within the Convention definition. 2 The sole ground for review advanced in the further amended application for review was as follows: "(i) There was no evidence or other material to justify the making of the decision, in that the person who made the decision based the decision on the existence of a particular fact, namely that the Applicant was reluctant to attend and give oral evidence to a hearing conducted on 27 June 2000, and that fact did not exist." Upon that ground, the Applicant sought orders for setting aside the decision and for remission of the matter to the Tribunal, differently constituted, to be determined according to law. The foregoing ground for review was founded upon subss 476(1)(g) and 4(b) of the Migration Act 1958 ("the Act"), which read respectively as follows: "476 Application for review (1) Subject to sub-section (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." There was no issue raised to the effect that there was not given by the Tribunal to the Applicant notice of the hearing of the application for review of the decision of the delegate in accordance with the requirements of the Act and Regulations thereunder. 3 In Minister for Immigration and Multicultural Affairs v Indatissa and Another (2002) 64 ALD 1, at [27-28], [31-32] and [34], the following principles of interpretation of the operation of the above sub-sections were analysed by a Full Court (Sunberg and Emmett JJ and myself) as follows: "[27] It is not sufficient simply to establish the two matters referred to in s 476(4)(b). That paragraph qualifies s 476(1)(g). It does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision. That is to say, it is not sufficient to show that a decision was based on the existence of a particular fact and that that fact did not exist. If that was sufficient, any decision of a tribunal based on the existence of a particular fact could be challenged in the Federal Court by adducing evidence designed to persuade the Federal Court to reach a different conclusion concerning the existence of that fact. Such an approach is demonstrably unsound. It is beyond question that the power of the court under s 476(1) generally and s 476(1)(g) in particular does not extend to a re-examination of any of the factual matters ventilated before the tribunal. [28] In other words, it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out. [31] ...In order to satisfy the ground contained in s 476(1)(g) it is necessary, but not sufficient, to satisfy the requirements of s 476(4). Section 476(1)(g) requires that there be no evidence or other material to justify the decision. That, however, does not involve a qualitative assessment, in an application to the court for review, of the evidence and material before the tribunal. If it did justify such an approach, review by the court would entail a reconsideration of the weight that should be given to the evidence and other material before the tribunal. [32] It is not permissible, in order to establish the ground in s 476(1)(g) to adduce evidence to contradict evidence or other material that was before the tribunal. The weight to be attached to such evidence and material is a matter entirely for the tribunal. If it were permissible to adduce further evidence before the court whenever the evidence and material before the tribunal did not point strongly to the conclusion that the decision was justified, the court would be called upon to reassess the weight afforded to evidence or other material by the tribunal. That was clearly not parliament's intention. … [34] Assuming that the asserted fact relied on by the respondents for the purpose of s 476(4)(b) does satisfy the requirements of that provision (which was not conceded by the Minister) and assuming that that fact was shown, by the additional evidence, not to exist, it is still necessary to demonstrate that there was no evidence or other material before the tribunal from which that fact could be found…" Indatissa has since been applied in numerous first instance cases in the Court, for example in Harunor v Minister for Immigration and Multicultural Affairs [2001] FCA 853 at [16], where Heerey J broadly described the operation subss 476(1)(g) and (4)(b) in combination as follows: "… More generally, however, the grounds under s 476(1)(g) and as qualified by s 476(4)(b) are only applicable where there was no evidence or other material to justify the making of the decision; that is to say, the decision to refuse the grant of a protection visa." The Minister relied upon the dicta in Indatissa in the presentation of his case, and the Applicant sought to distinguish the same from application to the circumstances postulated by the Applicant.

Procedural circumstances leading to the RRT affirming the Delegate's decision not to grant a protection visa 4 The Applicant is a citizen of the Peoples' Republic of China (the "PRC"), who was born on 10 September 1963, and arrived in Australia on 26 February 2000. On 15 September 2000, he lodged an application for a protection (class XA) visa under the Act with the Department of Immigration and Multicultural Affairs ("DIMA"). On 28 September 2000, a delegate of the Minister refused to grant the application visa, and on 30 October 2000, the Applicant applied for review of the delegate's decision by the Tribunal. The reasons for decision by the Tribunal, which I will later examine, render it necessary that I record the steps which were taken by and on behalf of the Applicant to inform DIMA of his address or addresses in Australia. 5 Part B of the protection visa application form, which was lodged with DIMA on 14 September 2000 disclosed the Applicant's address for the sending of correspondence by DIMA to him as 2/125 Park Road Dundas NSW 2117, and the address of his migration agent Mr Jack Meng as 26 Junction Road Wahroonga NSW 2076. The contemporaneous Part C of the visa application disclosed the Applicant's residential address as 33 Woodburn Road Berala NSW 2141, and the contemporaneous additional information sheet accompanying the visa application contained reference to the abovementioned Dundas address. The contemporaneous form of notification of appointment of migration agent disclosed the Applicant's postal address as that of the Berala address, as well as Mr Meng's Wahroonga address. Mr Meng completed and signed an accompanying eleven page "Application For A Protection Visa", which demonstrated a significant extent of knowledge held by Mr Meng of matters potentially material to the grant of a protection visa in favour of the Applicant. 6 By letter dated 28 September 2000 sent to the Applicant at the Berala address, and not the Dundas address which the Applicant had earlier specified to be his address for sending of correspondence, DIMA notified the Applicant that his application for a protection visa did not meet the criterion of a non-citizen present in Australia to whom Australia had protection obligations. In the light of the events which followed, it is obvious that the Applicant received that DIMA letter. The accompanying "Decision Record" of the Minister's Delegate, under the heading "Applicant Details", referred erroneously, not to the Applicant, but to Fugen Li born on 28 February 1956, apparently another citizen of the PRC who had made an application for a protection visa, but thereafter the "Decision Record" proceeded to identify the circumstances of the Applicant, and to address the substance of the eleven page visa application which Mr Meng had presented to DIMA on the Applicant's behalf. After describing the material thus placed before her, the Delegate gave the following reasons for her conclusion for refusing the visa protection application: "I conclude from the above reasons that the applicant would be able to continue to practice Falun Gong as an individual and that this would not attract the adverse attention of the PRC authorities. As indicated above, this conclusion is supported by the fact that he departed China legally on a passport in his own name after the crackdown on Falun Gong, and the claimed detention of 15 days. In considering the applicant's credibility and assessing the genuineness of the applicant's fear of persecution, I have also had regard to the fact that the applicant lodged an application for refugee status more than six months after his arrival in Australia. I consider that a genuine refugee fleeing persecution would have claimed asylum at the earliest possible opportunity on arrival in a safe country. In Selvadurai v The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal, Heerey J, 20 May 1994, unreported, it is stated at page 10 (concerning the fact that an application for refugee status was lodged some time after arrival in Australia): 'In my opinion, this was legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant's alleged fear of persecution. It is a rational consideration open [on] the material.'" The final paragraph of the "Decision Record" of the Delegate was as follows: "I am not satisfied that Ming SUN is a person to whom Australia has protection obligations under the Refugees Convention. He therefore does not meet a prescribed criterion under clause 866.221 for the grant of a Subclass 866 (Protection) visa. As the applicant fails to satisfy the criteria of either subclass 785 or 866, I refuse his application for a Protection (Class XA) visa." 7 On 1 November 2000, there was lodged by Mr Meng with the Tribunal an application to the Tribunal for review of the Delegate's decision, which was contained on a standard printed Tribunal form with blank spaces to be filled out by an applicant for review. The document disclosed the Applicant's residential address as 33 Woodburn Road Berala NSW 2141 supra, and his address for service as PO Box Q1225 QVB Post Office NSW 1230, but did not disclose a telephone number for "home" or "work" in the spaces provided by the form for that purpose. The document also provided for the name of an applicant's "adviser and the adviser's address", which was filled in as "Jack Meng, Suite 716, Pacific Trade Centre, 368 Sussex Street Sydney 2000". Mr Meng's telephone and fax numbers were disclosed as 9262.7871 and 9262.9869. Under those details appeared the following printed words "This Tribunal will send copies of all correspondence to your adviser". The reasons for the application for review were stated to be as follows: "1. On the decision record I received, I was surprised to find that applicant details is not mine!!! It is someone called Li Fugen, born on 28.2.1956 while my name is SUN Ming, born on 10.9.1963. I don't think this decision is mine. I request that RRT return this file book to DIMA and ask them to give me a decision which is really a decision about me. Otherwise, I will make a further appeal to the Federal Court because my life is in the hands of someone in DIMA who is so careless about her job, which determines the life and death of an applicant. 2. Legally this decision is not about me, but about Li Fugen. My case is not finalised yet from DIMA, which should process my application without further delay. There are lots of issue I raised in my application that have to be identified. However, if the applicant is not properly identified, how can she identify my issues?" Those so-called "reasons", I would infer, appear to me to have been contrived by the Applicant, in the light of what followed in the remainder of the Delegate's Decision Record, including the explicit identification of the Applicant at the conclusion of the document, and the Applicant's legal representatives rightly did not pursue at the hearing of the proceedings in this Court any case to the effect that a delegate of the Minister had not purportedly resolved his application for a protection visa by that Decision Record. In my opinion, the Applicant could not reasonably or sensibly have eschewed the Decision Record as having been intended by the Delegate to address his protection visa. I would add that it is readily apparent that the handwriting throughout the form of Application for Review was that of Mr Meng, except of course for the Applicant's signature which was purportedly appended thereto on 21 October 2000. The application for review concluded with Mr Meng's completion and signing of the "Interpreter's declaration". The envelope containing the application for review contained on the back thereof the following return address, which I would infer to have then been Mr Meng's postal address for his migration agency activities: "JMIT PO Box Q1225 QVB Post Office NSW 1230." 8 The response of the Tribunal, by letter bearing date 31 October 2000 addressed to "Ming Sun PO Box Q1225 QVB Post Office NSW 1230", in conformity with the address for service provided in the application for review, read as follows: "RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) We received your application on 30 October 2000. The Refugee Review Tribunal reviews decisions made by the Department of Immigration and Multicultural Affairs about protection visas. It is independent of the Department. We have asked the Department to send a copy of its documents about your case to the Tribunal. When we receive the Department's documents, the Tribunal will look at your papers and decide whether it has jurisdiction to consider your application. If so, it will then look at your papers along with any other evidence on Tribunal file to determine whether it can make a decision in your favour. If the Tribunal cannot make a decision in your favour, you will be asked whether you want to come to a hearing of the Tribunal to give oral evidence and to present arguments. Some hearings are conducted by video or telephone conference. If you have any new documents or written evidence, you should send them to the Tribunal at the earliest possible point in the review process. You should quote the file number shown at the top of this letter when sending any documents to the Tribunal. Any documents that are not in English are to be translated into English by an accredited translator. You should not send any documents or written arguments which you have already given to the Tribunal or the Department about your protection visa application. If there is any change in your circumstances that may affect your application, please tell the Tribunal in writing immediately. It is very important to tell the Tribunal in writing if you change your telephone number, home address or your address for service (the address where you want letters from the Tribunal sent). The Tribunal will acknowledge any change of address information you provide. If we are unable to contact you, or if you do not respond to our letters, you may lose your opportunity to appear before the Tribunal and give evidence on your case. Please Note: at the end of the review of your case, if the Tribunal decides that you are not a refugee, a fee of $1000 will be payable to the Department of Immigration and Multicultural Affairs. If the Tribunal decides that you are a refugee, no fee will be payable. For more detailed information about the Tribunal's procedures, including a translated copy of our brochure in several community languages, or if you have any questions, please telephone Client Services on (02) 9951.5800. If you need an interpreter, please telephone the Translating and Interpreting Services (TIS) on 131.450. Yours sincerely, for Deputy Registrar Sydney Registry encls: Multi-lingual advice: Client Service Charter cc: Jack Meng Immigration & Translation PO Box Q1225 QVB Post Office NSW 1230." 9 The requirement of the Tribunal's letter to notify any change of the Applicant's home address or address for service may be observed. There is no indication in the documentary evidence, either that the foregoing communication was not received by the Applicant or by Mr Meng on his behalf, or conversely that the Applicant or Mr Meng took any steps to initiate any communication thereafter with the Tribunal by way of enquiry as to a pending hearing date. On the contrary, as appears from the internal records of the Tribunal extracted in [12] below, the only attempted communications which subsequently took place in relation to the pending Tribunal hearing were made by the Tribunal.

The Tribunal's decision 10 Some seven months later on 8 May 2001, no correspondence having taken place by or on behalf of the applicant with the Tribunal or vice verse, the Tribunal responded to the application for review, by way of the Tribunal's letter addressed to the Applicant care of PO Box Q1225 QVB Post Office Sydney 1230, as follows: "RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claim. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons. If you want to come to a hearing it will be on: Date: Wednesday, 27 June 2001 Time: 11:30 AM Please arrive at least 15 minutes before the start of the hearing. Place: Level 29, Pacific Power Building 201 Elizabeth Street, Sydney NSW 2000 Please bring your passport to the hearing.

Please tell the Tribunal whether or not you want to come to the hearing by completing the enclosed "Response to Hearing Invitation" form and return it to the Tribunal by 22 May 2001. This will help the Tribunal plan for your hearing and give us time to book an interpreter if required. If you want the Tribunal to take oral evidence from another person or persons, you must complete the "witness" details on the enclosed form and return it by 22 May 2001. The Tribunal will consider your wishes but it does not have to take evidence from any witness you name. If you have any new documents or written arguments that you would like the Tribunal to consider, you should send them to the Tribunal with the completed form. Any documents you send are to be in English, or translated into English by an accredited translator. Please read the attached brochure for information about what will happen on the day of the hearing. The Tribunal will not change the hearing date unless there are very good reasons for doing so. If you think that you may be unable to attend the hearing, you should contact the Tribunal immediately. IF YOU DO NOT ATTEND THE HEARING AND A POSTPONEMENT HAS NOT BEEN GRANTED THE TRIBUNAL MAY MAKE A DECISION ON YOUR CASE WITHOUT FURTHER NOTICE

If you have any questions, please telephone Dee Khubchandani on (02) 9951.5867. If you are outside Sydney ring 1800 814 593 (for the cost of a local call). If you need an interpreter to make this call, please ring the Translating and Interpreting Service (TIS) on 131 450. Yours sincerely for Deputy Registrar Sydney Registry encl: "What is a Hearing" brochure, "Response to Hearing Invitation" form, map, multilingual advice cc: Jack Meng Immigration & Translation PO Box Q1225 QVB Post Office NSW 1230 cc: 33 Woodburn Road BERALA NSW 2141" 11 Subsequently the envelopes containing the above notification of the Tribunal addressed to the Applicant at PO Box Q1225 QVB Post Office and to Jack Meng Immigration & Translation at the same Post Office address respectively were returned to the Tribunal on 16 and 17 May 2001 marked "Return to Sender". The envelope containing the copy of the Tribunal's notification sent to the Applicant at his previously disclosed residential address 33 Woodburn Road Berala NSW 2141 was returned to the Tribunal unopened on 1 June 2001, also marked "Return to Sender". The address at 33 Woodburn Road Berala NSW 2141 was the address to which DIMA had previously sent the letter of notification of the adverse decision of the Minister's delegate dated 28 September 2000 (see [6] above), and the Applicant had responded to that letter by way of lodgement of the application for review to the Tribunal dated 29 October 2000 framed by Mr Meng on his behalf (see [7] above). 12 The following file notes or so-called case management notes were maintained by the Tribunal in relation to the Applicant: "01.11.00 Original "hard copy" of application received fm Advisor/J Meng. K Kilby 8.12.00 Received attachment to DIMA file. MSood 20/1/01 Pre-constitution check completed. D Hee 16.05.01 RRT mail return unclaimed (RTHI). VPiccioni 17.05.01 RRT mail returned unclaimed (RTHI). VPiccioni 01.06.01 received RRT mail unclaimed (hearing confirmation) Forwarded to case officer.T Burke 20/6/01 I rang the adv about the appl's attendance at the hearing, he said that he does not know and would contact him sometimes today and would let me know asap-NMohammad 22/6/01 I rang the adv again today since he had not contacted me about the appl's attendance at the hearing, he said that he tried calling the appl but has been unsucessful he also said that he had not received his copy of the hearing form, I said that it was send (sic) to the addr on CMS as the postal addr which he said is outdated and he now is on the addr which has been already updated to his current addr on CMS, I said that I would send him a copy of it today. He said he would try ringing the appl and would contact me asap of he finds out anything. I rang Dima, the residential addr was same and the postal addr on CMS is more recent. Dima gave me a phone number (9749 9761) which I rang, left a message for the appl to call back-NO REPLY CHECKLIST completed and placed on file-NMohammad 22/6/01 Sent a copy of the Hearing letter to the adv's current addr via registered pot (sic) RP10447487-Nmohammad 27/07/01 Received unclaimed RTS mail (handing down). Fwd to case team. S.Hussain." As appears in para 7 of [15] below, the above reference to telephone number 9749 9761 was the telephone number of the house situate at and known as 33 Woodburn Road Berala in which the Applicant resided. The references above to "adv" would have been, I would readily infer, to "adviser", and thus to Mr Meng. The DIMA case management record contained no indication of any further conversation with Mr Meng after 22 June 2000, nor any telephone conversation at all with the Applicant in person. There is no evidence to the effect of revocation of Mr Meng's representative capacity having ever been communicated by the Applicant or Mr Meng to DIMA or the Tribunal 13 By letter dated 12 July 2001, the Tribunal wrote to the Applicant care of PO box Q1225 QVB Post Office Sydney, and advised the Applicant that the Tribunal had considered all of the material relating to his case, and had made its decision, and further that the decision would be handed down on 31 July 2001 at 2:30pm at Level 29, Pacific Power Building, 201 Elizabeth Street Sydney, and further that the Applicant or his representative was thereby invited to attend the handing down of the decision if he wished. According to Tribunal case management notes appearing in [12] above, this letter was returned to the Tribunal unclaimed. 14 The Tribunal's reasons for decision made the following finding in relation to the endeavours of the Tribunal to notify the Applicant of the pending hearing of the application for review by the Tribunal on 27 June 2001: "On 8 May 2001 the Tribunal wrote to Mr Sun advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited him to give oral evidence and present arguments at a hearing on 27 June 2001. The letter was sent to his post office box and to his residential address. Mr Sun was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. A copy of the letter was sent to his adviser. No response was received. Both letters to the applicant were returned unclaimed. His adviser undertook to contact Mr Sun but was unsuccessful. On 22 June 2001 the Tribunal left a message for Mr Sun on a telephone number which was held on the Departments records. He did not respond. According to Departmental records, Mr Sun has not left Australia. Mr Sun did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable him to appear before it." Those findings of the Tribunal, so far as they extend, are supported by the evidence which I have earlier recounted, except perhaps for the reference to "Both letters", in that, as I have already recounted, three copies of the letter of notification of the hearing date appointed by the Tribunal were sent out by the Tribunal, two to the Applicant (ie one addressed to the Applicant care of Mr Meng's post office address and one to the Applicant's residential address), and a further one addressed to Mr Meng at the same post office address, and additionally there took place the telephone calls to Mr Meng, and the attempted telephone call to the Applicant recorded on the Tribunal records as set out in [12] above. 15 There was tendered to the Court at the hearing of the proceedings an affidavit of the Applicant, which disclosed his address as still being 33 Woodburn Street Berala, and which proceeded thereafter (omitting formal parts) as follows: "2. I have lived at the above address from about March or April 2000. The house is divided into two separate areas. The owner lives in the main part of the house. I rent a room and separate kitchen from him. My area of the house is at the rear of the house and is accessed by a side entrance and a separate door. The owner's part of the house is accessed through the front door. The two parts of the house use the same address for mail and other purposes. 3. There was a period earlier this year when I spent a lot of time away from my home. In March 2001, a friend of mine died suddenly and I spent a considerable amount of time over the next three months with his sister. She lived in Darling Harbour. Sometimes I would stay overnight at her house and then return to my home the next day. 4. My solicitor, Mr Kessels has shown me a document which appears at page 62 of the Court Book (ie the envelope addressed to the Applicant at 33 Woodburn Road Berala NSW 2141). I had not seen this document at any time prior to it being shown to me by Mr Kessels. I understand that the document is a copy of an envelope which contained a letter from the RRT and which was sent to me advising me of the hearing. I did not receive this envelope or the letter (the reference to Mr Kessels is to the Applicant's solicitors on the record in the present proceedings). 5. My solicitor has also shown me a copy of an RRT form that appears at pages 50 to 53 of the Court Book. I do not recall that the contents of this form were ever read to me by my migration agent, Mr Jack Meng, I certainly did not tell Mr Meng that my address for mail was PO Box Q1225 QVB Post Office. I have never had a post office box, and had not heard of that address until it was shown to me by Mr Kessels. At some time I did ask Mr Meng what would happen to any mail about my matter if I moved and he suggested that mail about my matter could be sent to a post office box and that he would inform me when any mail arrived. But I was never given the number nor was I ever informed by Mr Meng that any mail had been received at this or any other post office box. 6. My solicitor has told me that a person from the RRT has made a note that they spoke to my agent, Mr Meng on 20 and 22 June 2001, and advised him of the hearing in the RRT. I am sure that I was not contacted by Mr Meng at that time. At no time did he tell me that there was a hearing, if Mr Meng had told me this I would have been concerned to attend the hearing and to answer any questions the tribunal wanted to ask me. 7. My solicitor has also told me that the person from the RRT also made a note that on about 22 June 2001 they rang the number 9749 9761 and left a message. That number is the phone number of the house. The phone is in the owner's part of the house and I have not used it for some time because I was not able to contribute to the cost of it. I did not receive any message from the owner that the RRT had tried to contact me or that I should contact them. Had I received such a message, I definitely would have called them back or called my agent to find out what it was about. 8. I deny that at any time I have been reluctant to give oral evidence to the Tribunal about my opinions and political activities. I did not receive notice that the RRT had offered me a chance to come to a hearing and tell my story. Had I known of the hearing I definitely would have attended. I wanted to explain my story to someone and to tell them why I am a refugee. I would have been very willing to answer any questions the Tribunal wanted to ask me about my case. 9. I have been told by my solicitor that he recently contacted Mr Meng and asked him to assist me with these matters by giving evidence an affidavit about these matters. I understand that Mr Meng told him that he would only help me if I paid him more money and I cannot afford to do this." Counsel for the Minister objected to the admissibility of the content of the Applicant's affidavit, except ultimately as to paragraph 8 thereof, essentially upon the ground that an applicant for review is not entitled to tender evidence to rebut findings which are open or available to be made on the material placed before the Tribunal at the time of the Tribunal making its decision. In the light of the absence of judicial precedent on the issue being referred to me by Counsel for either party, the course I took was to admit the whole of the affidavit, subject to relevance being established by the Applicant in address. There was no cross-examination of the Applicant undertaken by Counsel for the Minister upon paragraph 8 of the affidavit, doubtless for the reason, as conceded in the course of his submissions, "… that the applicant does not appear to have been successfully contacted".

The Tribunal's reasons for decision and the Applicant's principal submissions in relation thereto 16 It was the Applicant's case that critical to the Tribunal's rejection of his claims to qualification for refugee status was the absence of the Tribunal's satisfaction that the Applicant had participated in activities in the PRC, or had acquired the affiliations and associations in the PRC, which he had described and recounted to DIMA in his application of 14 September 2000, and that such absence of satisfaction had been reached because of the Applicant's non-attendance at the Tribunal hearing, and as a consequence, the Applicant's omission to provide affirmative evidence in verification of his claims of fear of persecution, in rebuttal of the Delegate's reasoning contained in the Decision Record. The Applicant submitted that the findings of the Tribunal in that regard undermined "the whole credibility of the applicant on every aspect of his case", being findings said by the Applicant to have been refuted by the Applicant's affidavit evidence, tendered in the present proceedings, explanatory of the reasons for that non-attendance. The passage in the Tribunal's decision, which the Applicant cited principally in relation to that rejection of his claims, was as follows: "I do not consider plausible Mr Sun's claim to have been politically active in recent years in the PRC and to have left the country because he feared persecution. Mr Sun claims to be a person with strong views about the political situation in the PRC, to have helped organise protests against the authorities in support of pensioners, retrenched workers, and Falungong adherents, and to have been a district leader to 5,000 Falungong practitioners. In other words, he claims to have taken some risks in the past in support of his beliefs. If find it very difficult to accept that, if this were the case, he would be reluctant to give oral evidence to the Tribunal about his opinions and political activities." The Applicant submitted that all of the substantive findings of the Tribunal evident in the above passages were premised upon the finding as to the Applicant's reluctance to give oral evidence at the Tribunal hearing concerning his opinions and political activities, and that implicit in that finding was the Tribunal's assumption, in fact erroneously made, that the Applicant actually knew of the hearing date, and therefore had a real knowledge, as distinct from some form of deemed knowledge, of his opportunity to attend the Tribunal hearing in order to give oral evidence in support of his claims. 17 The Applicant thereafter pointed to what he submitted to be further reasons evident in the decision of the Tribunal which led to the Tribunal's absence of satisfaction that the Applicant held the opinions that he claimed, or that he was involved in activities in conjunction with the Falungong group, or that he was, or remained, wanted by the authorities because of such activities. The findings of the Tribunal said to evince those further reasons, to which the Applicant referred, are reproduced below: "Further, he has not explained why he had to pay a bribe for his passport which was issued in February 1999 if, as he also claims, he had not been detained by police at that time. Clearly, the claim that he applied for it after six months of saving money for a bribe to obtain it, prompted by 15 days of detention, is totally inconsistent with the date of its issue as shown on the photocopy of the passport submitted by him to the Department. He has also not stated to what offence the "arrest warrant" relates. He has not explained why he has failed to submit a certificate of release from detention, letter from discharge from his work unit or Falungong ID card, and I infer from the terms used by him about them that he is claiming such documents exist. … Mr Sun has not explained why he feared persecution when he left the PRC in February 2000, if (as he claims) his most recent contact with the police was in March 1999. This is significant, given that he continued to live at his home address, where the police could harass or arrest him at any time, throughout this period. I also consider it inconsistent with a fear that he would be identified and arrested that he continued to live at his home for so long. His willingness to do so is extraordinary given the independent evidence that Liaoning, the province in which he was living, was the scene of "severe persecution" of Falungong practitioners (UK Home Office, 2000) in the same period. Further, Mr Sun claimed that he left the PRC because he feared persecution by the authorities. However he has since been silent as to whether he ever established from his family or friends that the authorities have shown any interest in his whereabouts since he left. His vagueness on this crucial point, which is directly relevant to the well-foundedness of his claimed fear, also casts serious doubt on the plausibility of his whole account. Finally, without some other explanation I consider it inconsistent with a claim to have fled the PRC because of a fear of persecution that Mr Sun did not apply for a protection visa in Australia until some seven months after his arrival here. Mr Sun has given no reasons for the delay." Emphasis was accorded by the Applicant to the expressions "…he has not explained", "[h]e has also not stated", "[h]e has not explained", "Mr Sun has not explained", "he has since been silent" and "[h]e has given no reasons for the delay", all being said to reflect the misconceived reluctance of the Applicant to attend and give oral evidence at the Tribunal hearing. The Tribunal's view as to matters left unexplained etc could only have been gained by its consideration of Mr Meng's detailed application submitted to DIMA on the Applicant's behalf, to which I have referred in [5] above. In that regard, the passage in the reasons which intervened between the first two paragraphs cited from the Tribunal's decision immediately above, and the subsequent three passages thereafter also cited immediately above, additionally requires reproduction in full in order to provide an adequate context: "In addition, it is not consistent with the evidence about Falungong that he would have been elected as master of a Falungong station, nor that Falungong ever issued "ID" cards. I have regard to the independent evidence in Schechter (2000) from which I infer that Falungong does not have the type of structure which Mr Sun describes. That is, it does not have elected leaders, nor issue identity cards. I infer from the independent evidence that this would not be characteristic of the manner in which Falungong practitioners operate." 18 At least mainly on the basis of the following findings, the Tribunal culminated its reasoning process as follows: "For the above reasons I cannot be satisfied that Mr Sun holds the opinions he claims, that he was involved in activities in conjunction with Falungong groups, or that he was, or is, wanted by the authorities because of such activities. The Tribunal is not satisfied, on the evidence before it, that Mr Sun has a well-founded fear of persecution within the meaning of the Convention." and under the heading "Conclusion" there was added the following: "Having considered the evidence as a whole, the Tribunal is not satisfied that Mr Sun is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore he does not satisfy the criterion set out in s 36(2) of the Act for a protection visa." 19 The Applicant sought assistance from the decision of a Full Court (Burchett, Branson and Marshall JJ) in Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434, which incidentally was made prior to Indatissa, the context to which was a notice given pursuant to s 425A of the Act by way of an invitation to appear before the Tribunal, the same having been sent by the Tribunal to the former address of an applicant notified to DIMA and to the Court at the time when the applicant had changed his address, but not to the Tribunal to whom the Court had referred for determination the refugee claimant's original application. The only member of the Full Court who addressed the issue raised on appeal by reference to subss 476(1) and (4) of the Act was Burchett J, who found at [12] as follows: "… The only evidence before the Tribunal of the opportunity to attend the oral hearing fixed for 23 July 1999… was the postage of the letter of 23 June 1999. But the same file of the Tribunal which showed the postage of the letter also showed that it had not been delivered, but had been returned to the Tribunal. In order to defeat an application made in reliance on s 476(1)(g), as elaborated by s 476(4), it is only necessary that the Tribunal should have had some evidence to justify its finding orassuming the fact upon the existence of which it based its decision, although that fact did not exist. But it cannot be said that the file showing the postage of the letter was some evidence of its receipt, when the very same file showed that the letter was returned undelivered. To use the words of Black CJ (with whom Spender and Gummow agreed) in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 222, the evidence before the Tribunal was not 'capable of supporting the conclusion'; there was no 'material before the decision-maker upon which he could have come to the conclusion'; and the material that was before the Tribunal was 'incapable of offering any support for the conclusion'." Thus the circumstances in Mohammad as to the return to the Tribunal of the letter of notification of the hearing were similar to what occurred here (see [11] above), though in the present case, the Applicant's migration adviser was later purportedly given verbal and written notification in the circumstances diarised in [12] above. Branson J did not consider that it was clear to her that the Tribunal had drawn an inference in that case adverse to the applicant for refugee status only because he had failed to attend the scheduled hearing, though her Honour further observed at [56-57] as follows: "Plainly, if the reason why a party fails to give evidence is that he or she was not notified of the occasion on which it would have been appropriate for him or her to do so, no inference adverse to the party can be drawn from the failure to give evidence. This will be the case whether or not a statute provides that the party is to be taken to have received notification of the occasion. If the Tribunal in this case drew an inference adverse to Mr Mohammad by reason of his failure to give evidence before it, it would have treated him unfairly. Mr Mohammad was not in fact given an opportunity to give evidence before the Tribunal because he received no notification of the scheduled hearing. If the adverse inference formed an essential link in the Tribunal's chain of reasoning, the decision of the Tribunal would be open to review on the basis that 'there was no evidence or other material to justify the making of the decision' (s 476(1)(g) and (4)(b) of the Act)." As will later be seen, the Minister makes a submission here as to the absence of an "essential link", upon the basis that the findings set out in [17] above are not related to the Applicant's reluctance "to give oral evidence to the Tribunal about [the Applicant's] opinions and political activities", in contrast to the finding in the second paragraph extracted in [16] above, being an essential link to the decision of the Tribunal that the applicant was not a refugee within the Convention definition. The remaining member of the Court in Mohammad, Marshall J, did not find it necessary to address the subss 476(1)(g) and (4) grounds of review. The decision in Mohammad was given before that in Indatissa. 20 The Applicant also drew attention to Mulla v Minister for Immigration and Multicultural Affairs [2001] FCA 934, where at [16] Moore J spoke obiter of the following possible qualification to the consequences to an applicant flowing from non-attendance at a Tribunal hearing, in circumstances of the hypothesis thereby described: "The qualification concerns a view expressed by the Tribunal that it had discharged its obligation to provide the applicant with an opportunity to give oral evidence and 'that he has effectively declined that opportunity'. This latter observation may reveal reviewable legal error if two matters were established. The first would be that, as a matter of fact, the applicant never knew of the hearing date and the invitation to attend. That would be so if it could be clearly inferred from the letter of 6 February 2001 and other documents that the response to the invitation was completed by the adviser without express instructions from the applicant and the applicant had never been made aware of the hearing date because the adviser had been unable to contact him. The second is that the reference by the Tribunal to the applicant "effectively declin(ing) that opportunity" was to be treated as a finding of fact that the applicant had been made aware of the opportunity and had elected not to attend. These two matters together might, at least arguably, establish that the Tribunal based its decision to affirm the delegate's decision on the existence of a particular fact, and that fact did not exist. However I take the reference by the Tribunal to the applicant "effectively" declining the opportunity, in the context in the Tribunal's reasons in which it is made, as a reference to the consequences of the statutory scheme which permits the invitation to be sent to an adviser who has responded on the applicant's behalf. That is, the applicant was advised of the opportunity through his adviser and can be taken to have declined the opportunity because he did not appear." However in the present proceedings, the Minister's case is that irrespective of circumstances as to the Tribunal's obligation to provide the Applicant with the opportunity to give oral testimony, there was evidence or other material before the Tribunal to justify the making of its decision, in the context of the operation of subs 467(1)(g), irrespective of any fulfilment of the terms of subs (4)(b): see again Indatissa, particularly [28] thereof, extracted in [3] above.

The Minister's responses to the Applicants submissions 21 The Minister summarised what he asserted to be the substance of the Tribunal's findings as follows: (i) the Applicant was a citizen of the PRC; (ii) the Applicant's claims to have a fear of persecution by reason of his political opinion (as evidenced by his political actions) and his involvement in the Falungong were not credible for the following reasons: A. It was difficult to accept that a person who had taken some risks in the past for his beliefs, as he claimed to have done, would have been reluctant to give oral evidence to the Tribunal about his opinions and political activities. B. The Applicant had not sought to explain why he had to pay a bribe in February 1999 to obtain his passport when, according to his claims, he had not been detained by the police until March 1999. C. The Applicant's claim that he applied for his passport in September/October 1999 was totally inconsistent with the date of its issue as shown on the passport, namely 11 February 1999. D. Whilst the Applicant claimed that there was a warrant of arrest issued against him, he failed to indicate what was the offence which he was accused of having committed, nor did he explain why he was unable to provide that warrant, or the other documents referred to in his Application for a Protection Visa, namely: "Certificate of release from detention" "Letter of Discharge from Work Unit" "ID card for Falungong Association in Shenyang" notwithstanding the request in the Application form that he do so. E. The Applicant's claim to have been elected to a position in Falungong and to have an ID card was inconsistent with the independent evidence, which suggests that Falungong does not have that kind of structure. F. The Applicant had not at any point in time sought to explain why he feared persecution in February 2000 (when he left the PRC), given that his most recent contact with the police had been March 1999, and given that he had lived at the same address, and been thus available for arrest or further harassment throughout that period. G. At no point in time had the Applicant claimed, upon the basis of information received from friends or family, that the authorities had shown any interest in him after he left China. H. The Applicant's delay in applying for a protection visa was inconsistent with holding a fear of persecution. (iii) In the result, the Tribunal found that the Applicant had no subjective fear of persecution because it was inconsistent with such a fear that the Applicant would have lived at the same address in Australia for so long; and (iv) The Tribunal was not satisfied that the Applicant held the political opinions he claimed to hold, or that he was involved in a Falungong group, or that he was, or is, wanted by the PRC authorities because of such activities. 22 The Minister submitted that in the light of the dicta in Indatissa cited in [3] above, the Applicant was required to establish the following: (i) the identity of a particular fact (or facts) upon which the Tribunal's decision to refuse the visa was based; (ii) that there was no evidence or other material capable of supporting that finding of fact; (iii) that there was no evidence or other material capable of supporting the ultimate decision, irrespective of that finding of fact; and (iv) proof, with admissible evidence, that the fact did not exist. 23 The Minister next emphasised that the decision of the Tribunal relevantly was that Australia did not owe the Applicant a protection obligation, that is to say, that the Applicant did not have a well-founded fear of persecution for a Convention reason if he returned to China. It was not a decision whether the Applicant became aware of the invitation extended to him to attend the Tribunal hearing on 27 June 2001. I agree that such emphasis should be kept steadily in mind. 24 The Minister thereafter contended that the application for review failed for the reason that there was evidentiary material upon which the Tribunal could infer that the Applicant was reluctant to give oral evidence to the Tribunal, as follows: (i) The Applicant was inferentially aware that at some point in time, he would be invited to appear before the Tribunal, and moreover it could reasonably be expected that Mr Meng would have advised the Applicant from the outset of the general processes for a protection visa application. (ii) The Tribunal's dealings with the Applicant and Mr Meng revealed that the Tribunal made multiple attempts to indicate when the hearing was to be held, yet both the Tribunal, and apparently Mr Meng, were unable to contact the Applicant over a significant period of time. (iii) It was open to the Tribunal to infer that the Applicant's inability to maintain a clear means of communication either between the Applicant and the Tribunal and/or the Applicant and Mr Meng revealed a reluctance on the Applicant's part to give oral evidence when the appropriate time to do so had arrived; the Applicant knew, or could reasonably be taken to have known, that he would be invited to a hearing at some point in time, and yet was not contactable by the Tribunal, and apparently by Mr Meng, at any material time. (iv) The Applicant could no longer tender evidence to rebut a finding which was available on the evidence or other material before the Tribunal (see [15] above). (v) In any event, there was evidence or other material upon which the Tribunal could have reached its decision that the Applicant was not owed a protection obligation, namely the evidence and material out in [21(ii)] above. As in Indatissa, it was further submitted, evidence and material to that effect was sufficient to justify the ultimate decision that in the circumstances of the case, there was no room for the application of s 476(1)(g), and hence for resort to s 476(4)(b) of the Act, as purportedly sought by the sole ground for review (see [2] above), must fail. (vi) Furthermore, the Applicant's perceived reluctance to attend a Tribunal hearing may have been a factor considered by the Tribunal in rejecting the claim that the Applicant had taken certain actions, but was not a basis for the Tribunal's decision. Conclusions on the respective submissions 25 The threshold issue falling for determination is the admissibility or otherwise of the content of the Applicant's affidavit, save as to paragraph 8 thereof which was not ultimately objected to on behalf of the Minister, the substance of the Minister's objection to the remainder being as I have outlined in [24(iv)] above. I do not think that there can be any general rule or principle governing the admissibility of material not placed before the Tribunal. Much depends on the circumstances of each controversy. In the context of the present proceedings, once the Minister was prepared to concede the admissibility of paragraph 8 of the Affidavit, and further that the Applicant did not appear, upon the basis of the evidence otherwise available, to have been contacted by or on behalf of DIMA (see [15] above), I think that the Minister's objection as to admissibility of the remainder of the Affidavit became unsustainable. 26 Nevertheless the explanations proffered by way of purported explanation for the Applicant's non-attendance at the Tribunal set forth in the Applicant's affidavit evidence, so far as they purportedly extend, are in my opinion unsatisfactory for the following reasons: (i) There is no suggestion of the Applicant having made, or having caused Mr Meng to make, timely enquiry of the Tribunal (or for that matter of DIMA) as to the possible, or likely, or actual pending hearing times for the Applicant's pending challenge to the decision of the Delegate. The fact that the Applicant "spent a lot of time away from my home" does not derogate from that observation. (ii) There has been no indication from the Applicant as to whether he held copies of the material produced by Mr Meng on his behalf to DIMA, and subsequently to the Tribunal, being material which of course the Applicant signed, and which detailed addresses (including Mr Meng's post office box) and telephone numbers which the Tribunal (and DIMA) would be expected to use for the purpose of communication with the Applicant and Mr Meng by way of service of notice of the hearing; it must have been obvious to the Applicant, irrespective of any lack of comprehension of the English language, that neither the Tribunal or DIMA could divine his whereabouts for the time being in Australia, in order to inform him of the time and date set for the hearing of his application for review to the Tribunal. (iii) No suggestion of the Applicant has been proffered as to any steps taken by the Applicant to assume the carriage of his application for review, once his relationship with Mr Meng apparently became adversely affected by fee disputes and/or non-payment of fees; the controversial quantification of Mr Meng's fees was moreover not supported by any documentary detail, such as fee notes and contentious correspondence relating thereto, or for that matter any correspondence between the Applicant and Mr Meng, relating to an anticipated or prospective date for hearing by the Tribunal. (v) No explanation has been given by the Applicant as to why Mr Meng and the owner of the Berala home were not subpoenaed to attend the hearing in this Court, in order to corroborate the Applicant's testimony to the extent of its material features and elements. Mr Meng would obviously not have been entitled to insist upon payment of any outstanding fees as a condition of his attendance at Court in obedience of a subpoena issued by the Court, and I can perceive no reasonable basis why leave to the Applicant to issue a subpoena to Mr Meng would not have been readily given, subject of course to payment of conduct money. Perhaps the Applicant believed, or was led to believe, that what I have described as the contrived ground for review by the Tribunal set out in [7] above, was sufficient to absolve him from undertaking any of the steps set out above, but if that was the case, there could have been no reasonable basis for any such belief. For these reasons, notwithstanding the absence of cross-examination of the Applicant, as a judge of fact in these proceedings I am not persuaded that the Applicant has established any adequate or satisfactory basis for his absence from the Tribunal hearing. 27 In any event, the Minister's case is that the Tribunal's finding as to the Applicant's reluctance to attend the Tribunal hearing, as reproduced in [16] above, was not a "link in the chain" of the reasoning of the Tribunal's adverse decision against the Applicant upon his claim for refugee status, to adopt the phraseology appearing in the context of the following observations made in Curragh Queensland Mining Limited v Daniel & Others (1992) 34 FCR 212 at 220-221 (Black CJ with whom Spender and Gummow JJ agreed), in the context of administrative review upon the footing of s 5(3)(b) of the Administrative Decisions (Judicial Review) Act (1977) (Cth): "… A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion." Or as subsequently framed also at 221 of Curragh, the Tribunal's said finding could not be said to have "fundamentally affected the course of reasoning leading to [the] decision". Those passages from Curragh have been applied many times in the context of decisions made in relation to subss 476(1)(g) and (4)(g) of the Act, such as Minister for Immigration and Multicultural Affairs v Li Yue (Hill, Matthews and Lindgren JJ) [2000] FCA 856 and Minister for Immigration and Multicultural Affairs v Rajamanikkam (Kiefel, North and Mansfield JJ) [2000] FCA 1023 (earlier in Mohammad, Branson J used the similar expression "essential link" : see [19] above). 28 The Applicant's case is that the finding of the Tribunal as to the reluctance of the Applicant to give oral evidence about his opinions and political activities not only provided a link in the chain of reasoning of the Tribunal that led to each one of the findings set out in [17] above, save perhaps as to the last one there extracted, but as recorded in [16] above, undermined "the whole of the credibility of the Applicant in every aspect of his case", and in that regard, emphasis was made by the Applicant upon the various expressions used by the Tribunal in the context of its findings which I have cited in [17] above, such as "[h]e has not explained" and "he has since been silent". 29 In my opinion, it is not correct for the Applicant to contend that the Tribunal's finding as to the Applicant's reluctance to give evidence to the Tribunal about his opinions and political activities led to, or caused, or was the basis for, any one or more of the subsequent findings of the Tribunal extracted in [17]. The contexts for each of those findings made by the Tribunal arose out of or related to involvements, experiences and circumstances in which the Applicant claimed to have been engaged or which the Applicant claimed to have confronted, whilst in the PRC, and which Mr Meng had recounted on behalf of the Applicant to the Delegate of the Minister in support of the Applicant's claim to a protection visa, and which the Tribunal separately examined with a view to determining whether each was capable of demonstrating or exemplifying discrete circumstances of genuine apprehension of persecution if returned to the PRC. I would thus not read the Tribunal's process of reasoning as attributing to any of those situations any reluctance of the Applicant to give oral evidence to the Tribunal about his opinions and political activities. Nor can I accept, as a matter of language explicit or implicit, the Applicant's contention that the Tribunal's finding as to the Applicant's reluctance to give evidence about his opinions and political activities, as found in the passage cited in [16] above, caused or produced the subsequent findings in [17] above. In short, those subsequent findings were discrete. 30 I would therefore reject the Applicant's submission that the Tribunal's finding as to the reluctance of the Applicant to attend the Tribunal hearing and provide testimony to the Tribunal undermined "the whole credibility of the Applicant on every aspect of his case", as put originally to the Delegate of the Minister, and repeated in submission to me. In summary, what the Tribunal found to constitute the Applicant's "reluctan[ce] to give oral evidence to the Tribunal about his opinions and political activities" was in my opinion confined essentially to what preceded that finding in the Tribunal's decision as extracted in [16] above, and was not "extrinsically linked" to the subsequent findings of the Tribunal extracted in [17] above. Contrary to the Applicant's further submission, the finding of the Tribunal as to the Applicant's "reluctance" did not purport, explicitly or implicitly, to reflect "adversely on every aspect of his claim as to which the Tribunal had concerns". 31 Quite apart from my conclusions in favour of the Minister for the reasons explained above, I would have in any event exercised my judicial discretion adversely to the Applicant's application for review, because of the Applicant's initial course of action in framing the application for review to the Tribunal in the manner I have recounted in [7] above, which I have earlier described as contrived, albeit that such application was abandoned belatedly (I would infer only after his present legal representation were retained), and more importantly and decisively because of the subsequent conduct of the Applicant, and its implications, which I have set out in [26] above. It is well established that refusal of an application for review of a Tribunal decision may have a discretionary basis : see for instance Abbasi v Minister for Immigration & Multicultural Affairs [2001] FCA 1274 at [65]. 32 I dismiss the Applicant's application for review of the Tribunal's decision, and order that the Applicant pay the Respondent's costs of the proceedings. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

At a glance

Court

Decision date

Before

Source

Judgment (7 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)