FEDERAL COURT OF AUSTRALIA NABF v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 409 MIGRATION – applicant is a Chinese citizen who claimed to fear persecution from Chinese authorities – Refugee Review Tribunal (RRT) dismissed those claims as implausible – whether the RRT based that conclusion on confidential information protected by s 503A of the Migration Act 1958 (Cth). Judiciary Act 1903 (Cth), s 39B Migration Act 1958 (Cth), ss 424A, 474, 501, 503A Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited. NABF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1499 of 2001 SACKVILLE J SYDNEY 11 APRIL 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1499 OF 2001 BETWEEN: NABF APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 11 APRIL 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 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 1499 OF 2001 BETWEEN: NABF APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE: 11 APRIL 2002 PLACE: SYDNEY REASONS FOR JUDGMENT the application 1 This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act") for writs of mandamus, prohibition and certiorari in respect of a decision by the Refugee Review Tribunal ("RRT") made on 5 November 2001. The RRT affirmed a decision of a delegate of the respondent ("the Minister") to refuse the applicant a protection visa. 2 The applicant relies on a single ground, namely that the RRT failed to comply with s 424A of the Migration Act 1958 (Cth) ("Migration Act"). Section 424A provides as follows: "(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies – by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information." 3 The particulars of the ground identified in the amended application are these: "The Tribunal regarded the fact that information protected by s 503A of the [Migration] Act had been received by the Department of Immigration and Multicultural Affairs in connection with another visa application by the Applicant as prejudicial to the Applicant's case but did not draw this fact to the Applicant's attention or invite him to comment upon it or otherwise comply with s 424A(1) of the Act in regard to it." Section 503A(1) of the Migration Act provides, inter alia, that if information is communicated to an authorised migration officer by a "gazetted agency" on condition that it be treated as confidential information and the information is relevant to an exercise of power under s 501 of the Act, the officer must not divulge or communicate the information to another person except the Minister (or an authorised migration officer) for the purposes of the exercise of a statutory power. 4 The Minister submitted that no contravention of s 424A(1) of the Migration Act had been established. The Minister further submitted that even if the RRT had contravened s 424A(1) the RRT's decision was not liable to be quashed. This was because the decision was a "privative clause decision" for the purposes of s 474(2) of the Migration Act. According to Mr Basten QC, who appeared with Mr Smith for the Minister, the effect of s 474(1) of the Migration Act is to preclude the Court from granting the relief sought by the applicant in relation to a privative clause decision, at least in the circumstances of the present case. 5 It was common ground that there was no occasion to address the effect of s 474(1) of the Migration Act if the applicant failed to establish that a breach had occurred of s 424A(1) of the Migration Act. At the conclusion of the hearing I indicated that I was not satisfied that the applicant had established such a breach and that I would later set out my reasons in written form and make formal orders dismissing the application. This judgment gives my reasons and makes orders disposing of the proceedings. background 6 The applicant (as the RRT found) is a citizen of the People's Republic of China ("PRC"), who was born in 1962. From early 1997 he was a resident of the Special Administrative Region of Hong Kong. He was issued with a multiple entry business visa for Australia in October 1998 and entered Australia most recently on 24 January 1999. 7 At some time in 1999, the applicant applied for a student visa. On 1 August 2000, the Minister, acting personally pursuant to s 501(3) of the Migration Act, refused to grant the applicant the student visa on the grounds that the Minister reasonably suspected that the applicant did not pass the character test and that the Minister was satisfied that refusal to grant the visa was in the national interest. 8 The applicant was advised of this decision in a letter dated 2 August 2000, although he claimed not to have received the letter until he was taken into detention on 25 June 2001. The letter of 2 August 2000 attached a decision record relating to the refusal to grant the visa, but noted that the attachments to the decision record had not been released as they were protected under s 503A of the Migration Act. 9 The applicant lodged his application for a protection visa on 9 July 2001. The delegate refused the application on 5 September 2001. The RRT held a hearing on 24 October 2001 and affirmed the delegate's decision on 5 November 2001. the rrt's reasons 10 The RRT found that there were significant differences between the applicant's oral and written evidence. It considered in the greatest detail the claims made by the applicant in his oral evidence, although it also made findings with respect to his other claims. In substance, the applicant's principal claim was that he had been a member of an intelligence agency in China and that he feared that the Chinese authorities would harm him because they regarded him as a traitor for leaving the agency without permission. He claimed in an interview with the Department that as a manager of a company he had been accused by the Chinese authorities of fraud and smuggling. In later evidence, he claimed that the smuggling accusations were a ruse by the Chinese authorities to get him back to China in order to punish him as a traitor. 11 The RRT said that it had "some difficulty in accepting" the applicant's claims about his employment by an intelligence agency. Nonetheless it accepted, for the purposes of dealing with the application, that he had been employed by a branch of an intelligence agency in China. 12 On this basis, the RRT found that the applicant had applied for, and been granted, retrenchment from the agency in July 1998. The RRT did not accept that as a result of leaving the agency or leaving China he was regarded as a traitor or was of adverse interest to the Chinese authorities. This was because the documentation submitted by the applicant clearly stated that he had been released from the agency by reason of a restructure and his own wishes. Moreover, the documentation suggested that his release had been discussed with the Party Committee. The applicant had also given written evidence that as the result of a power struggle, breaches of the agency in various parts of the country had been abolished and staff transferred or dismissed. In these circumstances, the RRT found it "totally implausible" that the applicant, just because he had been granted retrenchment prior to abolition of his branch, should be regarded as a traitor and of serious interest to the Chinese authorities. 13 The RRT continued its reasons as follows. For convenience, I have numbered the four paragraphs [1], [2], [3] and [4] respectively. "[1] The Tribunal rejects as implausible, the Applicant's claim that he was accused of fraud or smuggling or similar, as a ruse to force him back to China because he left the agency and/or China without permission, rather than say, because the Chinese authorities actually suspect him of involvement in some sort of crime. In addition to the reasons already set out above the Tribunal finds that the Applicant's evidence, such as the detention of his father-in-law and about his involvement, on behalf of the Fuzhou company, with the other Fujian companies through the contract, suggest that he may be of interest to the authorities, especially as he claimed that the smuggling activities were discovered by the authorities, the Fujian companies involved were punished and one accused him of involvement and given his resignation from the Fuzhou company. [2] The Tribunal accepts that the Applicant may be wanted by the Chinese authorities in connection with smuggling charges or similar. His evidence in this respect is not inconsistent with the protection of information under s 503A and the notice of refusal to grant a visa under sub-section 501(3) of the Migration Act 1958. The Tribunal notes that s 503A refers to 'Protection of information supplied by law enforcement agencies or intelligence agencies' and it protects information that is 'communicated to an authorised migration officer by a gazetted agency on condition that it be treated as confidential information and the information is relevant to the exercise of a power under section 501, 501A, 501B or 501C'. Gazetted agencies include agencies or organisations 'responsible for law enforcement, criminal intelligence, criminal investigation or security intelligence' in inter alia, the People's Republic of China and Hong Kong (see s 503A(9) and Commonwealth of Australia Gazette Notice 23, 9 June 1999). The protected material suggests to the Tribunal that a PRC agency responsible for law enforcement, criminal investigation or the like, has provided information to the Department relating to the Applicant. [3] Although the Tribunal accepts that the Applicant is of interest to the Chinese authorities, the Tribunal is not satisfied that he is of interest to the Chinese authorities, or that he would be treated differently by those authorities, for reason of his political opinion, actual or imputed. The Applicant claims to fear persecution in China for reason of his political opinion in that he is regarded as a traitor by the Chinese authorities because he left China without permission some time after he was allowed to leave his intelligence job. [4] Even if the Applicant returned or was returned to China, the Tribunal is unable to be satisfied on the evidence before it, that the Applicant is of interest to the Chinese authorities for the reason claimed or that this reason indicates that the Applicant fears persecution for reason of his political opinion, actual or imputed. …If he returned to China the Tribunal is not satisfied that the Applicant would be persecuted because he left the intelligence agency or China, rather than say prosecuted in accordance with the law for fraud or smuggling." the applicant's submissions 14 The applicant submitted that the RRT had breached s 424A(1) of the Migration Act in that it had used information, namely the fact that the Department had received confidential information protected under s 503A of the Migration Act, as part of the reason for rejecting the applicant's claims that "trumped-up" smuggling charges had been brought against him to force him to return to China. The RRT had inferred that the information had been received from "a PRC agency responsible for law enforcement, criminal investigation and the like" and had regarded the fact that the information had been received as adverse to the applicant's claim. 15 According to Mr Reilly, who appeared for the applicant, the RRT had not disclosed to the applicant that the fact that information had been received from a gazetted agency was considered to be the reason, or part of the reason, for refusing him a protection visa. Nor had the RRT ensured that the applicant understood why the fact was relevant or invited him to comment in the manner prescribed by s 424A(2)(b) (the applicant being in custody at the material time). Since the fact that protected information had been received by the Department in connection with a previous visa application was plainly "specifically about the applicant" as required by s 424A(3)(a) of the Migration Act, the RRT was in breach of its statutory duties. reasoning 16 The applicant's claim that the Chinese authorities had accused him of smuggling or fraud in order to secure his return to China was not the central claim made in support of his application for a protection visa. The critical question for the RRT was whether the applicant was regarded by the Chinese authorities as a traitor and whether he had a well-founded fear of persecution for that reason. While the applicant's claim that the smuggling accusations had been brought against him as a ruse was doubtless important to his credibility, it might well have been open to the RRT, as a matter of logic, to have rejected this claim yet still to have found that the applicant had a well-founded fear of persecution for a Convention reason. Nonetheless, I am prepared to assume that information specifically about the applicant which was considered by the RRT to be inconsistent with or prejudicial to his claim that the Chinese authorities had falsely accused him of smuggling in order to secure his return to China would be "the reason, or part of the reason, for affirming the decision that is under review" for the purposes of s 424A(1) of the Migration Act. 17 The difficulty facing the applicant, in my opinion, is that the RRT did not consider that the fact that the Department had received information protected under s 503A of the Migration Act was prejudicial to the applicant's claim that the Chinese authorities had brought smuggling charges as a ruse to obtain his return to China. In my opinion, the RRT's reasons, read as a whole, do not suggest that it considered that fact as "the reason, or a part of the reason, for affirming the decision that is under review". 18 The RRT first addressed the applicant's claim that the Chinese authorities regarded him as a traitor, or that he was otherwise of interest to them, by reason of actions associated with his intelligence work. It rejected those claims. The RRT did so for a number of reasons, none of which related to the fact that information protected by s 503A of the Migration Act had been provided to the Department. 19 Next, in par [1] of the quoted extract, the RRT rejected as implausible the applicant's claim that he had been accused of fraud or smuggling as a ruse to obtain his return to China. The RRT relied on the reasons it had already given, but added a further reason, namely that the applicant's evidence itself suggested that he may have been of genuine interest to the authorities in relation to fraud or smuggling. Again, none of the reasons given by the RRT related to the fact that protected information had been provided to the Department. 20 In par [2] of the quoted extract, the RRT "accept[ed]" that the applicant might have been wanted by the Chinese authorities in connection with smuggling. The RRT observed that the applicant's evidence in this respect was not inconsistent with the fact that protected information had been provided to the Department. This language suggests that the RRT in this paragraph was accepting at least a part of the applicant's claims, namely that he was being sought by the Chinese authorities in relation to fraud or smuggling. That this is the thrust of par [2] receives support from the opening sentence of par [3]: "Although the Tribunal accepts [as the applicant had claimed] that the Applicant is of interest to the Chinese authorities, the Tribunal is not satisfied that he is of interest…for reason of his political opinion…". 21 In other words, in par [2] the RRT was directing itself to the question of whether, as the applicant claimed, the Chinese authorities had accused him of fraud or smuggling. The RRT treated the fact that protected information had been provided to the Department as consistent with the applicant's claim, particularly as the RRT inferred that it was probably a Chinese law enforcement agency that had provided information to the Department. The RRT was not, however, satisfied that the charges were a ruse to secure the applicant's return to China. It had already reached that conclusion in par [1]. 22 Mr Reilly acknowledged that par [2] does not say that the RRT regarded the provision of the protected material to the Department as inconsistent with or prejudicial to the applicant's claim that the accusations made by the Chinese authorities were merely a ruse to secure his return to China. He submitted, however, that par [2] should be read as implying that the RRT took that view. 23 The principal obstacle to construing the RRT's reasons this way is that it is not the meaning attributable to the RRT's language when read fairly. But this is not the only obstacle. It is difficult to see how the fact that the Chinese authorities had provided information to the Department (an inference the RRT was prepared to draw) supported the conclusion that the allegations made by the authorities were genuine and not a ruse to obtain the applicant's return to China. Presumably if the Chinese authorities were prepared to fabricate smuggling charges as a ruse, they would have been prepared to take the further step of prompting law enforcement agencies to communicate the charges to the Australian authorities in order to secure the applicant's return to China. Moreover, the RRT did not know, and did not suggest that it knew, the contents of the protected information provided to the Department. It is not surprising, therefore, that it did not purport to rely on the fact that protected information had been provided to the Department as a reason, of itself, for rejecting the applicant's claim that the charges against him were a mere ruse. 24 Mr Reilly contended that par [2] should nonetheless be read in the manner he suggested because otherwise there was no need for the RRT to have referred to the fact that protected information had been provided to the Department. It may be that the RRT could have dealt with the applicant's central claims without necessarily making detailed findings on his claim that trumped-up smuggling charges had been brought against him as a ruse. But the RRT chose to address these claims and to make findings in respect of them. Once it took this approach, it was open to the RRT to make it clear that it accepted part of the applicant's claim (that fraud or smuggling charges had been brought against him by the Chinese authorities) but not other parts (that the charges were a ruse). Paragraph [2] made it clear that the RRT accepted part of the applicant's claim. In support of that finding, it referred to the fact that protected information had been provided to the Department by (so the RRT inferred) a Chinese law enforcement agency. Other parts of the RRT's reasons made it clear that the RRT did not accept the claim that the charges were a mere ruse. 25 Mr Reilly observed that it was somewhat curious that the RRT should first reject the applicant's claim that the charges were a ruse and then accept that the authorities indeed wanted the applicant in connection with "smuggling charges or similar". But this is to engage in an approach "keenly attuned to the perception of error" condemned by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 272, per Brennan CJ, Toohey, McHugh and Gummow JJ. It is not for a Court exercising powers of judicial review to detect error because the RRT might have considered issues in a different order. 26 In his reply, Mr Reilly suggested for the first time that s 424A(1) of the Migration Act is breached if the RRT relies on any information personal to the applicant, without drawing the information to the applicant's attention, regardless of whether it is or is not prejudicial to the applicant's case. This is not the way the applicant's case was particularised or presented. In any event, the submission flies in the face of the language of s 424A(1), which is confined to information which the RRT considers would be the reason or part of the reason for affirming the decision under review: that is, for refusing to grant a protection visa to the applicant. 27 The application must be dismissed, with costs. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 11 April 2002 Counsel for the Applicant: Mr T Reilly Solicitor for the Applicant: Andrew Lui Lawyers Counsel for the Respondent: Mr J Basten QC with Mr J Smith Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 4 April 2002 Date of Judgment: 11 April 2002