Zhang v Minister for Immigration & Multicultural Affairs [2001] FCA 1045

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration and Multicultural Affairs [2001] FCA 1045

Migration Act 1958 (Cth) s 430(1)(c) and (d), 476(1)(a) and (e) Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR discussed XIAO XIA ZHANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 628 OF 200 HEEREY J 3 AUGUST 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 628 OF 2000

BETWEEN: XIAO XIA ZHANG

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 3 AUGUST 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, including reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 628 OF 2000

BETWEEN: XIAO XIA ZHANG

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 3 AUGUST 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt 8 of the Migration Act 1958 (Cth) (the Act) of a decision of the Refugee Review Tribunal affirming a determination of a delegate of the Minister not to grant her a protection visa. The applicant is a citizen of the People's Republic of China. She was born in 1966. She arrived in Australia on 7 July 1996 travelling on a Chinese passport in the name of Ye Lan. On 4 October 1996 she lodged an application for a protection visa. This was refused by a delegate of the Minister on 5 June 1998. On application for review the Tribunal affirmed that decision but on review to this Court that decision was set aside by consent and remitted to the Tribunal for reconsideration. After a further hearing the Tribunal differently constituted in a decision handed down on 5 July 2000 again affirmed the delegate's decision. 2 The applicant's claims made before the Tribunal may be summarised as follows. The applicant was a member of her local "house church". In that capacity she would travel to villages preaching the gospel. In 1990 she was warned by the Public Safety Bureau for sending Christian books to other villages. The applicant had also been active within her church in its opposition to government aggressiveness towards Taiwan. In 1995 her church was ordered to close or register with the government. The church refused to do so. During the "strike hard" campaign launched by the government in April 1996 many religious leaders including some of the applicant's friends were arrested and executed. She herself was arrested and detained for ten days during which time she was tortured and charged with involvement in counter revolutionary activity. She was advised that the charges would proceed unless she agreed to marry the mentally retarded son of a local party official. 3 She had also worked for six years in a government family planning office. She assisted many pregnant women to avoid forced abortions and sterilisation and warned them when family planning officers were coming to their village. As a result of this activity she was dismissed from her job in 1996. 4 Findings of fact made by the Tribunal may be summarised as follows: 1. If the applicant was dismissed from her employment with the Family Planning Centre it was for not carrying out her duties properly and not because of her religious beliefs; 2. The province from which the applicant comes, Fujian, is very liberal in its interpretation of family planning policies; 3. The applicant does not belong to any of the churches singled out for harassment by the authorities; 4. The applicant's church was not accused of being an illegal organisation in 1990 nor was it ordered in 1995 to dissolve, or become a house church; 5. The applicant was not arrested, detained or tortured in April 1996 because of her religious activities, nor was she charged with being a counter revolutionary and told to marry son of the local party secretary; 6. There is no indication that the authorities in Fujian are now taking a stricter line on the activities of churches; 7. The applicant was not accused of being part of a political conspiracy by reason of the church advocating an independent Taiwan. 5 On the basis of those findings the Tribunal concluded it was not satisfied the applicant was a person to whom Australia owed protection obligations under the Refugees Convention. 6 On the review to this Court counsel submitted that in respect of two issues there was error of law (s 476(1)(e)) and failure to observe procedures required by the Act (s 476(1)(a)), those procedures being the requirement to prepare a written statement which sets out the reasons for the Tribunal's decision, its findings on material questions of fact and refers to the evidence or other material on which the findings of fact were based: s 430(1)(b)(c) and (d). 7 The two issues in respect of which these errors were said to have been made were the applicant's claim of detention for ten days in April 1996 and her dismissal from employment. 8 Before going to the argument on these two issues I note that counsel submitted that the ratio decidendi of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 did not include the proposition that nothing in s 430 was a "procedure required by this Act" within the meaning of s 476(1)(a), even though there were dicta to that effect. I agree with that submission. The essential holding of Yusuf, overruling the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, is that what is or is not a "material question of fact" is a matter for the Tribunal, not the Court on review. Section 430(1)(c) is directed at what the Tribunal considers to be material questions of fact, albeit that its failure to treat a particular question as material may reveal error of law or some other ground of review. A holding that nothing in s 430(1) was a "procedure" would have rendered unnecessary a decision as to whether materiality was a matter for the Tribunal or the Federal Court. 9 Although most, if not all, of the litigation on s 430 has concerned subs (1)(c) and (d) it would be surprising if a failure to prepare a written statement at all, or to set out the decision or any reason for the decision would not constitute a failure to observe "procedures". If making a written statement is a "procedure" then that seems to be something "in connection with the making of the decision" if there is a link or relationship between the statement and the decision, whether posterior, anterior or contemporaneous in point of time. The expression "procedures required by this Act or the regulations" in s 476(1)(a) must refer generally to things which would ordinarily be regarded as procedures, such as the generation of documents in a particular form, or dealing with particular topics, or the lodging or serving of such documents. If it had been intended that "procedures" should be confined to the detailed procedures prescribed by Div 5 of Pt 5 in relation to the Migration Review Tribunal and Div 4 of Pt 7 in relation to the Refugee Review Tribunal it would have a simple drafting task to so provide. 10 However on the assumption that the applicant's arguments are open as a matter of law, I do not think they succeed in the present case. 11 As to the finding in relation to the ten days detention, the Tribunal relied on a substantial body of country information to the extent that, as summarised by the Tribunal, "All the available country information indicates that the Fujian authorities are at the most lenient end of the spectrum when it comes to religious tolerance." 12 This was factual material which, along with the Tribunal's doubts as to the credibility of the applicant herself it was perfectly entitled to take into account in reaching a state of non-satisfaction as to her arrest and detention. It is true that country information was produced in 1998 and 1999 but it was not sufficiently far removed from the alleged date of the applicant's detention to make it irrelevant. 13 As to the dismissal the Tribunal's reasoning was as follows: "There have been a number of inconsistencies in the applicant's claims concerning her employment in the Non Thien Family Planning Office ranging from her failure to include this employment on her application from for a protection visa to differing accounts of her responsibilities to inconsistencies in the date she claims to have been dismissed (she told the first Tribunal that she had been dismissed in February 1996 and told the second Tribunal that she had been dismissed in April 1996). However, the Tribunal is prepared to accept that she may have been employed at a junior level in the Family Planning Office and also accepts that as a Christian she may have attempted to warn some women of the possibility that their unauthorised pregnancies had been discovered by the Family Planning Office. The Tribunal also accepts that if she had provided such warnings and had been discovered she may have been dismissed from her employment and questioned for 2-3 hours by the PSB. The Tribunal finds, however, that the applicant has not been subjected to persecution for a Convention reason because of her actions. If the applicant was dismissed from her employment it was because she had not been carrying out her duties properly and had been found to be undermining the work of the Family Planning Office. The applicant had not been required to conceal her religious beliefs, as she testified that the Family Planning Office knew that she was a Christian, which was why suspicion had fallen on her when it became clear that some women had been warned of impending raids. However, as she had worked at the Family Planning Office for nearly six years, it is clear that they did not regard her religious beliefs or any other views she may have held as a barrier to her employment at the Family Planning Office, and she was not dismissed because of her religious beliefs or for any other Convention reason but because she was caught engaging in actions detrimental to the work of the Family Planning Office. The punishment meted out to the applicant – dismissal and questioning by the PSB for 2-3 hours – is not in itself harsh or unreasonable and the applicant was not treated with particular severity because of her religious beliefs or for any other Convention reason. The Tribunal finds that the applicant has not been persecuted because of her actions in warning pregnant women that they were about to be arrested by the Family Planning Office." 14 I can see no failure to set out reasons of findings on material questions of fact or reference to evidence in the course of that discussion. Plainly the conclusion was open to the Tribunal. 15 The application will be dismissed with costs including reserved costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey .