Pan, Xin Wen v Minister for Immigration & Multicultural Affairs (No. 2) [1998] FCA 571

IN THE FEDERAL COURT OF AUSTRALIA judgment No. 2

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 OF ORDER: 13 may 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The Application be dismissed. 2. The Applicant pay the Respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA JUDGMENT NO. 2

NEW SOUTH WALES DISTRICT REGISTRY NG 943 of 1997

BETWEEN: xin wen pan

Applicant

AND: minister for immigration and

multicultural affairs

Respondent

JUDGE: HILL J

DATE: 13 may 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT On 30 March 1998 I gave reasons why two grounds in an application brought by Mr Pan should be dismissed. There was left for consideration on another day the remaining ground which was 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)." Two matters are advanced on behalf of Mr Pan which are said to lead to a conclusion that there has been a breach of s 476(1)(a). What is relied upon as constituting the failure to observe procedures is s 420(2)(b) of the Migration Act 1958 (Cth) ("the Act") which requires the Tribunal to act according to substantial justice and the merits of the case. The reconciliation of s 476(1)(a) read together with s 420 and the provisions of s 476(2)(a) and (b) is a matter that has occupied the attention both of full courts of this Court and single justices since the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 312-3 per Davies J at 321-2 per Burchett J (Whitlam J dissenting). And see also Thambythurai v Minister for Immigration and Multicultural Affairs & Anor, (Finkelstein J, FCA, 16 September 1997 (unreported)); Khan v Minister for Immigration and Multicultural Affairs (1998) 47 ALD 19; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1998) 151 ALR 505, at 546-9 per Wilcox J, at 554-555 per Burchett J; Calado v Minister for Immigration and Multicultural Affairs, (Tamberlin J, FCA 19 December 1997 (unreported)) at 6 and see also Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 400-402 and Israelian v Minister for Immigration and Multicultural Affairs (Nicholson J, 1 May 1998 (unreported)). There is no point in a single judge adding any further comments on the matter – which is presently before the High Court, special leave having been granted to appeal against the decision of the Full Court in Eshetu. Perhaps all that one may be able to say is that, while no doubt basic law rules such as natural justice and Wednesbury unreasonableness require either explicit language or at least implicit language to be excluded, the real issue is, ultimately, one of construction upon which I do not propose to embark in this case. Two submissions are put on the assumption that Eshetu permits them to be put. They can be very shortly summarised. The first submission that is put is that there is a principle, which was not followed in this case by the Tribunal, that, if an applicant gives evidence which is credible, coherent and consistent, then the credit of that applicant is to be accepted and his evidence not rejected merely because there is documentary material which might cast doubt upon it. The second submission arises from a comment made at the end of the Tribunal's reasons where the Tribunal indicates that there was no evidence offered to suggest that the applicant and his wife had suffered any discrimination, the context being in a period since 1993. The submission is that in fact evidence was presented and the Tribunal misstated the position in the passage to which I have referred. An alternative submission was made that, if it were the case that there was no evidence offered, the Tribunal was bound to put relevant questions to the applicant and that this was a failure to observe an appropriate procedure. I shall deal shortly with each of these issues. First, counsel for the applicant relied upon a comment of Burchett J's in Sun Zhan Qui, to which reference has already been made, at p 557-8. In the course of his Honour's decision, his Honour pointed to the fact that there was nothing in the applicant's account of the events that took place in Tienanmen Square which cast doubt upon the applicant's involvement in those events. That that is so was obvious from the fact that the Tribunal in fact had believed him in any event. His Honour points out that the Tribunal's reasons, which apparently fastened upon inconsistencies between the applicant's perception on one hand and others synthesised into written material, were on the particular facts of that case, at least, quite absurd. His Honour continued at 558: "The Tribunal does not point to a single discrepancy which is not readily explicable. But the fundamental point is that any fair-minded tribunal would not have refrained from according a full acknowledgment to the necessarily partial nature of one participant's personal impressions of these tremendous events. It may be, as the proverb says, that "truth is the daughter of time", and that the reflective historian may obtain a more complete picture, but the individual caught up in the maelstrom could not have seen that picture. His recollections are peculiarly his own." I have looked at the context in which his Honour made those comments which are understandable by reference to the facts of that case, but I do not think that his Honour was in any way attempting to formulate a principle of law as broad as that which has been submitted for on behalf of the applicant. There is just no principle which says that an applicant's evidence is to be accepted even if coherent, potentially believable and consistent. Even if no evidence is adduced to the contrary, a tribunal of fact may, having no evidence at all inconsistent with an applicant's story, nevertheless form a view that the applicant's version of the story is incorrect. Even more so is this the case where the applicant's version is inconsistent with other material which is before the Tribunal. If, as in Sun Zhan Qui, the discrepancies between the applicant's version and the documentary material are easily explicable, then no doubt the applicant should not be believed merely because there is this discrepancy. That appears to have been the case in Sun Zhan Qui. But in the present case the various discrepancies were put to the applicant who was given the opportunity of explaining, if he could, the difference between the documentary version on the one hand and his evidence on the other. While the applicant stood firm on his own evidence it does not follow from that that the Tribunal was bound to believe it. It is clear that some of the discrepancies were hardly likely to be true. For example, the documentary material referred to a student demonstration blocking a train station and the applicant's version suggested that on the same day at the same time another demonstration, in which he was involved, may well have taken place doing the same thing, being a demonstration not made up of students. It is difficult to see how that discrepancy could necessarily be overcome. It is necessary to point out here that no suggestion was made that the documentary material upon which the Tribunal relied, namely, a chapter entitled "The 1989 Democracy Movement in Fujian and its Aftermath"in "The Pro-Democracy Protests in China: Reports from the Provinces" edited by Jonathan Unger (Allen and Unwin, London 1991) was unreliable. The applicant did not attempt to attack the veracity of that publication. It was the applicant's submission that the publication did not tell the whole story. Whether it did or did not is not a matter that I, of course, am in a position to determine. It was for the Tribunal to decide whether it did or did not believe the applicant had a "well-founded fear of persecution for a Convention reason". Because of the discrepancies it did not believe he did. It may be the case that the Tribunal based its findings on demeanour, for it is clear enough law that the fact that the Tribunal said nothing about demeanour would not mean that the demeanour of the witness was not taken into account: see Abalos v Australian Postal Commission (1990) 171 CLR 167. In my view the so-called principle which is sought to be elicited from Sun Zhan Qui and relied upon in this case as involving substantial injustice is not a principle which in any way exists. All that happened in the present case is that the Tribunal made a factual finding with which the applicant is obviously unhappy but that is not, unfortunately, a ground of judicial review. The second matter can also be disposed of shortly. To the extent that it is said that the Tribunal did not ask any questions about what happened between 1993 and the applicant leaving China, it is clear from page 21 of the transcript that the Tribunal did. What the Tribunal asked and what was then replied to is as follows at pages 21-22 of the transcript: "mr godfrey: And then nothing happened between March 1993 and the time you left China? the interpreter:Yes. During '93 and '94 they often forced our family, that is my family, to have voluntary work or study class. Force us to donate. mr godfrey: When you say "they" is this the work unit or is this the neighbourhood unit? the interpreter:Neighbourhood committee. mr godfrey: Only – you were the only people being forced to do the voluntary work or were all the people doing voluntary work? the interpreter:For the voluntary work it's only me. mr godfrey: What sort of voluntary work were they asking you to do? the interpreter:We work on the bank along the ocean and also plant trees on the hills. mr godfrey: Did they say why they were forcing you to do this voluntary work? the interpreter:Anyone who is released on the grounds of labour reform must listen or – to the arrangement of the government. mr godfrey: So you're not working, your wife isn't working, you decide you want to leave China? the interpreter:It's not that I don't have work I wanted to leave China. It's because they released me on the grounds of labour reform and they continue to find trouble with me. They didn't give me any freedom." The gravamen of the submission was that the passage which I have already cited demonstrates that there was evidence of discrimination contrary to what the Tribunal said, that discrimination being that the applicant was required to do voluntary work.