Zheng v Minister For Immigration and Ethnic Affairs [1996] FCA 1012

CATCHWORDS IMMIGRATION LAW - Refusal of refugee status - Judicial review - Error of law - Whether Tribunal incorrectly interpreted or applied meaning of "well-founded" fear - Whether Tribunal incorrectly interpreted or applied meaning of "persecution" - Failure to act in accordance with the merits of the case - Whether a procedure required by the Act - Whether improper exercise of power Migration Act 1958 ss 420, 476 Explanatory Memorandum, Migration Reform Bill 1992 Broussard v Minister for Immigration & Ethnic Affairs (1989) 21 FCR 472 Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, Federal Court of Australia, Olney J, 23 May 1996) Zakinov v Gibson (unreported, Federal Court of Australia, North J, 26 July 1996) ZHENG v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS VG 521 of 1995 Before: NORTH J Place: MELBOURNE Date: 21 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG 521 of 1995 B E T W E E N : CHANG XIONG ZHENG Applicant AND THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS Respondent MINUTES OF ORDER BEFORE: North J PLACE: Melbourne DATE: 21 November 1996 THE COURT ORDERS THAT: The application is dismissed with costs. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG 521 of 1995 B E T W E E N : CHANG XIONG ZHENG Applicant AND THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS First Respondent BEFORE: North J PLACE: Melbourne DATE: 21 November 1996 REASONS FOR JUDGMENT BACKGROUND The applicant, Chang Xiong Zheng, is a 25-year old citizen of the People's Republic of China. He is single and his parents and brother are in China. He entered Australia on 7 June 1990 on a student visa. On 13 November 1990, he applied for refugee status and was deemed to have applied for the relevant entry permits. On 22 June 1994, a delegate of the first respondent, the Minister for Immigration & Ethnic Affairs, refused the applications. By operation of s 39 of the Migrant Reform Act 1992, which came into effect on 1 September 1994, these refusals have effect as a refusal to grant a protection visa under s 36 of the Migration Act 1958 (the Act). The applicant applied to the Refugee Review Tribunal (the Tribunal) for a review of the decision of the delegate. On 28 March 1995, the Tribunal affirmed the decision of the delegate. On 2 May 1995, the applicant applied to the Court under s 475(1)(b) of the Act for judicial review of the decision of the Tribunal. At the commencement of the hearing, Mr Niall, who appeared as counsel for the applicant, consented to an order that the Refugee Review Tribunal, which was then named as the second respondent, be struck out as a party to the review by reason of the provisions of s 480 of the Act. It provides that the proper respondent in a review such as this is the first respondent. THE QUESTIONS RAISED IN THE REVIEW Section 36(2) of the Act provides: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." In refusing the application, the Tribunal determined that the applicant was not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (adopted in Geneva on 28 July 1951) (the Convention) as amended by the Protocol relating to the Status of Refugees (adopted in New York on 31 January 1967) (the Protocol): as defined in s.5 of the Act. A "refugee" is defined as a person who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". Mr Niall contended that the decision of the Tribunal involved errors of law concerning the meaning of both "a well-founded fear" and of "persecution", referred to in the definition. This contention relied on s 476(1)(e) of the Act, which provides for a review on the ground: "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision". He also put a number of arguments to the general effect that the Tribunal had not dealt with the applicant's case on its merits. I will return to these arguments later, but it is convenient to set out the statutory provisions on which the arguments are based. The first is s 476(1)(a), which provides for a review on the ground: "that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed". The relevant procedures were said to be set out in s 420(2)(b), which reads: "(2) The Tribunal, in reviewing a decision: ...... (b) must act according to substantial justice and the merits of the case."