Pan, Xin Wen v Minister for Immigration and Multicultural Affairs [1998] FCA 332

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NG 943 of 1997

BETWEEN: xin wen pan

Applicant

AND: minister for immigration and

multicultural affairs

Respondent

JUDGE: HILL J

DATE: 30 MARCH 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT The applicant in the present case appeals to the Court against a decision of the Refugee Review Tribunal affirming a decision of the respondent Minister not to grant a protection visa. The matter first came before the Court for directions on 19 December 1997 when orders, inter alia, were made for the filing of affidavits. On that day the applicant chose not to attend so an order was made that he be notified of the orders made. The matter was stood over for further directions on 16 February 1998 and the matter was listed for hearing today. It has not been suggested that the applicant was not notified. On 16 February 1998 the matter was before the Court again for directions and again the applicant chose not to attend. He also filed no evidence. It would appear that the applicant was not legally represented on either of these two occasions. As is becoming quite commonplace, the application was apparently prepared by a migration agent and referred in very general terms to the grounds in sections 476(1)(a), 476(1)(e) and 476(1)(g) of the Migration Act 1958 (Cth) without any particularisation. Then the matter came before me for hearing this morning. The applicant had obtained legal representation. However, he apparently obtained that representation at a very late stage and counsel for him sought an adjournment to enable her to prepare as best she could the case. The Court granted a short adjournment until this afternoon. When the matter came on this afternoon, counsel for the applicant indicated that she had been unable to obtain instructions at all in respect of the first ground shown in the application. This ground is stated in the application as follows: "(1) Procedures that were required to be observed in connection with the making of the decision of J.F. Godfrey, constituting the respondent, were not observed. The application is raised pursuant to s 476(1)(a) of the Migration Act 1958 (Cth)." It should, for clarity, be noted that Mr Godfrey was the member of the Tribunal who gave the decision under appeal and was not, and correctly not, a respondent to it. Rather than permit the case to be adjourned, and for practical difficulties some months might elapse, I directed that should any evidence require to be filed in respect of this first ground, and the ground was to be proceeded with, application should be made to the Court on or before 4.00 pm on 6 April 1998, being a week from today. The applicant should give at least two days notice to the respondent and the Court so that the matter can be relisted. Any evidence upon which the application is proposed to be made should be served and filed on or before the same date. It may well be that there is no basis at all for the ground. In that case the present reasons will then be given effect to by an appropriate order. If there is some substance in the ground then it will be necessary to have the matter listed at an appropriate date for a further but presumably short hearing outside court hours. The remaining two grounds were stated in the following terms in the application: "(2) The decision of J. F. Godfrey, constituting the respondent, involved an error of law. The application is raised pursuant to s 476(1)(e) of the Migration Act 1958 (Cth). (3) There is no evidence or other material to justify the making of the decision. The application is raised pursuant to s 476(1)(g) of the Migration Act 1958 (Cth)." Counsel frankly conceded that there was no basis for any submission in respect of ground two. In respect to the third ground, it is to be noted that s 476(1)(g) is made subject to s 476(4) which ensures that the ground is not to be taken to be made out unless one or other of the alternatives in subsection 4 are satisfied. It was submitted that the Tribunal had accepted what may be termed the subjective requirement that the applicant had a fear of persecution for a convention reason but that in determining whether that fear was well founded had erred for there was no evidence or other material justifying the making of the decision. It is not clear to me that the Tribunal did accept that the applicant had a fear of persecution for a convention reason at all. However, for present purposes, I am prepared to accept the applicant's counsel's submission that he did. Its conclusion was expressed on the last page of its reasons in the following terms: "Having considered the evidence as a whole the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s 36(2) of the Act for a protection visa." In arriving at its conclusion the Tribunal made reference to a cable from the Department of Foreign Affairs and Trade and an advice dated 31 March 1992. It was said that the independent evidence relied upon by the Tribunal to show that it was not satisfied that the applicant's belief was well founded did not support that conclusion. First it must be borne in mind, as indeed the High Court pointed out recently, that the question before the Tribunal is not specifically whether a person does or does not have a well founded fear of persecution for a convention reason, but rather the somewhat different issue of the satisfaction of the Tribunal to this effect. I accept, as instructed by the High Court, that decisions of the Tribunal are not to be construed strictly or parsed and analysed in an attempt to find some error which the Tribunal has committed. The Tribunal as an administrative tribunal is not bound by the rules of evidence and it is entitled to inform itself from any sources available to it. In this case, as indeed in many other cases, the Tribunal informed itself from material emanating from the Department of Foreign Affairs and Trade. The cable O.BJ51078 of 6 July 1992 upon which the Tribunal relied stated: "It may well be true that [a person] and his family suffered in the Cultural Revolution, as did many Chinese including most of the present Chinese leadership. The fact that [a person] had such difficulties would not be relevant in the 1990s." This was clearly evidence before the Tribunal from which it was open to it to reject the claim of the applicant that the fact that his parents had been active in the cultural revolution was a matter which supported his claim for a well founded fear of persecution. For completeness I should add that the applicant's case before the Tribunal depended upon a number of different matters. Not only did it depend upon the cultural revolution as a basis for his claim, it depended also upon the evidence of the applicant of a 1989 democracy movement in Fujian, activities thereafter, his gaoling and subsequent departure from China. The Tribunal rejected the whole of the applicant's account other than the fact that his family had had difficulties during the cultural revolution. It did not accept that he had been involved in the pro-democracy movement. It did not accept that his arrest was related to such activity. It did not accept that he had been imprisoned for any pro-democracy activity and it did not accept that his leaving China illegally by purchasing a false Malaysian passport had anything to do with any pro-democracy activity in China. Mr Pan said that if returned to China he would face persecution for his beliefs. It was noted above that the Tribunal did not accept that Mr Pan was involved in pro-democracy activity in Fuzhou where he was imprisoned. The Tribunal noted that Mr Pan had lived without difficulty, though under scrutiny by his neighbourhood council, at his home address and although unemployed since 1993 that his wife, also unemployed, still lived at that address. There was no evidence to suggest that he or his wife suffered any discrimination. As an administrative tribunal, the Tribunal was entitled and, indeed, bound to consider all of the evidence before it and to arrive at the correct or preferable decision. No question of onus arises in circumstances such as the present - except, of course, a tactical onus. Ultimately, the Tribunal lacked the requisite satisfaction and it cannot be said, having regard to the manner in which it approached its task, that the case was one where there was no evidence or other material to justify the making of the decision. Having regard to what I have earlier said about ground 1, I will defer making a final decision in the matter pending the making of any application to the Court based upon material seeking to establish a failure to observe procedures.