FEDERAL COURT OF AUSTRALIA Zhou v Minister for Immigration & Multicultural Affairs [2000] FCA 811 HUI YING ZHOU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 194 OF 2000 GYLES J SYDNEY 16 JUNE 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 194 OF 2000 BETWEEN: HUI YING ZHOU APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE OF ORDER: 16 JUNE 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The proceedings be adjourned for further argument. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 194 OF 2000 BETWEEN: HUI YING ZHOU APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GYLES J DATE: 16 JUNE 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application seeking to set aside the decision of the Refugee Review Tribunal ("RRT") in affirming the decision of the Minister's delegate not to grant the applicant a protection visa. 2 The applicant arrived in Australia on 23 October 1997, carrying a passport issued by the Republic of Korea (South Korea) in the name of Son Sook Rye, having entered under the Electronic Transit Authority ("ETA") scheme after obtaining an ETA during a short stay in Singapore. She was granted a three month visitor visa on arrival. She applied for, and was granted, an extension to her visitor visa on 19 January 1998. She applied for a further extension of her visa, but this was refused on 1 April 1998. Accordingly, her visa expired on 26 March 1998. 3 The applicant was detained by the Department as a result of compliance action, having been found working. She applied for a protection visa whilst in detention. On 29 April 1998 the Minister's delegate refused the grant of a protection visa to the applicant. On 3 May 1998 the applicant applied to the RRT for review of the delegate's decision. The RRT gave its decision, affirming the delegate's decision not to grant a protection visa, on 3 June 1998. 4 Following an application for judicial review of the RRT's decision, and an appeal from the judgment of a single judge of the Federal Court of Australia, the Full Court of the Federal Court made orders on 23 March 1999, inter alia, setting aside the RRT's decision and remitting the matter to the Tribunal, differently constituted, for decision according to law. 5 On remittal, the (differently constituted) RRT held hearings in respect of the applicant's application on 20 July 1999 and 22 September 1999. 6 The RRT gave its decision, once again affirming the delegate's decision not to grant a protection visa, on 10 February 2000. The RRT decision 7 The RRT came to the conclusion that "the applicant's evidence lacks credibility" and that "the applicant has fabricated her claims in the hope of ensuring success in her application for a protection visa". The RRT noted that central to its finding that the applicant is not North Korean is her language. In this respect, the RRT accepted advice received from an expert. The RRT also noted inconsistencies in the applicant's evidence, and rejected the applicant's evidence regarding her alleged departure from North Korea. 8 The RRT found that the applicant is not a citizen of the Democratic People's Republic of Korea ("the DPRK"), and that her claims for refugee status have been fabricated. Accordingly, the RRT concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and therefore she does not satisfy the criterion set out in s 36(2) of the Migration Act 1958 ("the Act") for a protection visa. The applicant's grounds 9 The Application for an Order of Review, filed 8 March 2000, sets out the grounds of the application as follows: "1. S 476(1)(a) of the Migration Act 1958 - the decision of the Refugee Review Tribunal (per member Dr Gutman) was made in breach of the requirements of s 424 and 424A, of the Migration Act 1958 2. S 476(1)(a) of the Migration Act 1958 - the decision of the Refugee Review Tribunal (per member Dr Gutman) was made in breach of the requirements of s 430 of the Migration Act 1958 3. S 476(1)(b) of the Migration Act 1958 - the decision of the Refugee Review Tribunal (per member Dr Gutman) was made in excess of jurisdiction for breaching s 430 of the Migration Act 1958 4. S 476(1)(d) of the Migration Act 1958 - the decision of the Refugee Review Tribunal (per member Dr Gutman) was an improper exercise of the power conferred by s 424 and s 424A of the Migration Act 1958 5. S 476(1)(g) of the Migration Act 1958 - the decision of the Refugee Review Tribunal (per member Dr Gutman) was made in the absence of evidence or other material to justify the making of the decision." 10 The applicant's written and oral submissions expand on these grounds of review. 11 The substance of the complaints involved two issues – the first concerned the use of the expert and the second related to a failure by the RRT to advert to material provided to it on behalf of the applicant. Expert 12 At the end of the first hearing on 20 July 1999, during which the RRT asked the applicant a series of questions, the RRT informed the applicant that it might send tapes of the interview, with identifiers removed, to an expert in the Korean language for an opinion on where she had learned her Korean. The evidence of the solicitor for the respondent, who had listened to a tape of the recording, reproduced what took place between the RRT and the applicant's adviser, Mr George Lombard, apparently a registered migration agent, as follows: "Tribunal: I just wanted to have a talk to you because you were wondering about the Korean expert witness. Mr Lombard: Are you going to do it? Yes sure, do it … the last time … Tribunal: Well, I have got … I usually use a woman who is a native speaker, who's been a fellow of the ANU's Division of Asian Pacific History and she ran the Korean language programme there for ten years. She has relations in North Korea and visited there often as a child and she's … got an extensive knowledge of classical Chinese and near fluency of spoken and written Japanese and she is engaged as project director and chief editor on the compellation of Encyclopaedia of Korea in English. So … Mr Lombard: The Encyclopaedia of Korea … Tribunal: Yes, so she is extremely well qualified but she doesn't want her name known as the interpreter (sic) because she has recently moved to Sydney and lives in the Korean community … So if you are still happy with the … Mr Lombard: So the idea is that the interpreter can be … the expert … The only thing is that I spoken to a few people, there is a chap who teaches in the Department of Linguistics at the ANU and, because I studied linguistics there myself, I thought well, there must be a linguistic case(?), atlases for example. This young woman has grown up in a place called Sanbong, but she obviously has a more educated dialect than the average country people. But I could not find in Australia a linguistic guide or atlas which is normal … the normal thing when you have dialect differences, you expect to see a gradation etcetera … it does not seem to exist, … nobody at ANU, and there are even a couple of Korean linguistics students at the ANU, but it's very difficult to find people who are able to precisely describe the linguistic differences so I would hope that your expert would be able to say, yes this is the kind of vowel variation, this kind of consonant shift, blah blah blah ... Tribunal: Well, I think she did a pretty good job … Mr Lombard: Well, I haven't seen what she did for the other girl … so … I mean, I guess I'll get to see it again(?) … Yes … well I am happy to have a look at it, as long as … she will be giving something in writing so we can comment … I am not worried about the identity of the individual …" There was no dispute about the correctness of this evidence. 13 The substance of the communication between the RRT and the expert was as follows: "Further to our discussion today, I have attached three tapes of the proceedings of the hearing of the applicant. Could you please listen to the tapes and provide us with your opinion on whether: 1. The applicant has lived in North Korea for most of her life. (She claims that she was born in late 1960s and left there in 1997); 2. She could have lived in China. (She claims that her father is a Chinese from Harbin); and 3. She has spent a significant period in S Korea. On the basis of the dialect used by her, the way to respond to the questions at the hearing and any other means, you may possibly give us some indications. Your opinion is important in making a decision on her application for refugee status. If you have any inquiries, please do not hesitate to contact me on (03) 9607 9133." 14 The substance of the report of the expert was provided to the applicant by communication from the RRT, the substance of which was as follows: "As you were informed at your hearing, a tape of the hearing, with certain sections which could identify you removed, was sent to an expert in the Korean language for comment. Those comments have now been received and are attached. This information is relevant because it suggest that you are from Heilong-jiang province in China, not North Hamgyong province in North Korea as you have claimed. You are invited to comment on this information. Your comments are to be given at an interview between you and the Tribunal Member reviewing your case." The interview was fixed for 10am on 22 September 1999. 15 By letter of 21 September 1999 Mr Lombard made a number of submissions concerning the expert's opinion. At the hearing on 22 September 1999 the RRT sought to clarify issues arising from the expert's report and the response submitted on the applicant's behalf. 16 I shall not set out the full text of the expert's report or of the issues raised by the applicant's agent in relation to it. The report, on its face, goes beyond an opinion as to where the applicant had learned her Korean. It utilises information gleaned from the substance of the interview to cast doubt upon the applicant's version of events. This was plainly evident to the applicant and her adviser, and was responded to in writing and at the second hearing. There is no doubt that the expert's opinion was central to the RRT's decision that the applicant had fabricated her claim to be North Korean. 17 Counsel for the applicant made a number of criticisms of the manner in which the RRT obtained, dealt with and utilised the report from the expert. These criticisms are recorded in the written submissions which have been placed with the papers, and in the oral submissions which are recorded on a verbatim transcript. I will not reproduce them. In my opinion, the criticisms are without substance. A combination of ss 420, 424(1) and 427(1) authorises a procedure of this kind. Provided ss 424A and 424B are complied with, then no breach of the Migration Act is involved. I cannot see any room for argument that those sections were not complied with in the present circumstances. The fact that the procedure may appear unorthodox to those used to court proceedings is beside the point. The only possible complaint that could be made would be that there was a breach of the rules of natural justice involved, for example, in not knowing the name or identity of the expert, and, perhaps, in having the expert go beyond the expressing of opinions about mere linguistics. However, s 476(2) removes the ground from the jurisdiction of this Court. Furthermore, there would be no basis on the facts for any such complaint in the present case, because the applicant and her agent were fully informed as to what took place. The fact that the precise form of the instructions to the expert was not then known to the applicant, and did vary somewhat from the summary of them by the RRT in its decision, is of no consequence, because the substance of the report was made available to the applicant for response. There is no substance in the view that the applicant's agent, rather than the applicant, was involved in any waiver which took place. The applicant chose to be represented by an agent and was, in any event, present at both of the meetings. Having obtained the report, the RRT was at liberty to give it such weight as it thought fit. It, and the other material adverted to by the RRT, were plainly sufficient to support the conclusion reached by it. Material not adverted to 18 By letter of 9 August 1999 the agent of the applicant wrote to the Deputy Registrar of the RRT as follows: "I refer to the review of a protection visa decision in respect of Ms Zhou Hui Ying, a national of North Korea, which was heard before Member Gutman on Tuesday 20 July 1999. It would be appreciated if you would bring the attached two statutory declarations, executed by Pastor Jai Chun Song and Mr Sue Choul Yheoun, to Ms Gutman's attention. I understand that both Pastor Song and Mr Yheoun would be prepared to attend the Tribunal and provide oral evidence in support of their statements." 19 The most important part of the declaration of Jai Chun Song is as follows: 1. My name is Jai Chun Song. I am a citizen of South Korea and I hold a permanent residence visa in Australia. I am an elder of the Chinese Korean Church in Australia. Our place of worship is Harcourt School Hall, First Avenue, Campsie NSW. I have attached my business card to this declaration. … 7. I have spent a great deal of time observing Ms Zhou since early 1998. In my view, although I cannot be sure, she is probably North Korean. My reasons for reaching this conclusion are as follows: 8. First, Ms Zhou exhibits, in her behaviour, a profound reluctance to mix with or trust other Koreans. Her initial approach to the Church was an act of desperation as she was very sick and did not know who to approach. Later, when attending our masses and when living in our midst, she has been very nervous about revealing even the most insignificant details of her personal background to other Koreans. I know that these details have been provided to the Department and Tribunal, and in conversation with her she has confided her experiences to me, however she shows such a marked reluctance to trust other Koreans that I regard this as entirely consistent with North Korean origins. 9. Second, and although the differences between the general language spoken by Koreans of educated classes are relatively subtle, I believe that she speaks like a North Korean. I am not a linguist and it is difficult for me to identify the patterns of language which help to form this impression. All I can say is that she has a harsh edge to her voice, and listening to her talk I can imagine the image and voice of Kim Il Sung very easily. 10. All the members of my congregation who know her accept that she is North Korean without difficulty." 20 The declaration of Sue Choul Yheoun was as follows: "1. My name is Sue Choul Yheoun. I am an Australian citizen and a senior member of the Campsie congregation of the Chinese Korean Church in Australia. 2. I have known Zhou Hui Ying since she first commenced attending our Church in early 1998. I did not know anything about her circumstances then. Subsequently I have come to know more about her, particularly since she became a resident of our Church premises in Ninth Avenue Campsie. 3. As a member of the congregation, I can confirm that I have accepted that Miss Zhou is a North Korean. Her behaviour seems odd, sometimes, and it is clear that she does not understand some of our customs which are generally assumed within South Korea. However, the way she speaks is definitely different like a North Korean, flat and hard." 21 This material is not referred to anywhere in the RRT's reasons for decision. It is submitted that this is a breach of s 430 of the Act. The section is as follows: "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 22 There is an unresolved question as to whether the breach of s 430 constitutes a ground of review pursuant to s 476(1)(a). I shall assume, for the purposes of this judgment, that it is. For the purposes of this judgment, I shall assume that the content of the obligation pursuant to s 430 is captured in the judgment of McHugh J in Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 421-423. In my opinion, there is no breach of s 430(1)(c) or (d). The material finding was that the applicant was not from North Korea and that she had fabricated her claim to be from North Korea. The RRT adequately refers to the evidence and other material on which that finding of fact was based. 23 A question which arises is whether the obligation imposed by s 430(1)(b) is met. At 422-3 McHugh J said: "65. … However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the tribunal must set that out as one of its reasons. But that said, it is not necessary for the tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act … 66. In this case, the tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1)." 24 Here, as in that case, in my opinion, the RRT did not fail to give reasons for its decision because it failed to deal with the material proffered to it. 25 Indeed, the conclusion which I would draw is that the RRT overlooked this material when making its decision and then formulating its reasons for decision. 26 I have not drawn that conclusion simply because of the fact that the declarations are not mentioned. There is no obligation upon a tribunal of fact to set out and deal with every piece of evidence in reasons for decision. However, in the present case, the declarations are significant independent evidence which tends to support the applicant's case. The expert evidence, and the other circumstances, such as mistakes made by the applicant in her evidence and so on, relied upon by the RRT are by no means conclusive as to the truth of the matter. The RRT appears to have taken some pains to keep the applicant and her agent informed as to what was going on, and the reasons for decision, whilst reasonably concise, deal with matters for and against the conclusion at which it arrived. In short, I would have expected this Tribunal member to mention the existence of the material if it had been considered in the decision-making process. Furthermore, the material was received between oral hearings, which meant that it is quite possible it may have been misplaced or overlooked. It will also be observed that the letter, in addition to supplying the statutory declarations, informed the RRT that the persons concerned were available to give oral evidence. Having in mind s 426 (and s 420), I would have expected that the RRT would normally respond to such a request one way or the other, rather than ignoring it, whatever the strict legal position might have been. 27 It seems to me that this conclusion warrants consideration as to whether the requirements of Div 4 of Pt 7 of the Act were complied with and, if not, whether that established a ground for review pursuant to s 476(1)(a). 28 I thus reject the grounds which have been argued so far for setting aside the decision of the RRT, but will receive further argument (either written or oral as the parties propose) as to the issue I have raised. I certify that the preceding twenty eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 16 June 2000 Counsel for the Applicant: R Killalea Solicitor for the Respondent: A Markus of the Australian Government Solicitor Date of Hearing: 13 June 2000 Date of Judgment: 16 June 2000