NANY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1347

FEDERAL COURT OF AUSTRALIA

NANY of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1347 APPLICANT NANY OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 674 of 2002 ALLSOP J 28 OCTOBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 674 of 2002

BETWEEN: APPLICANT NANY OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE OF ORDER: 28 OCTOBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent of the proceedings as agreed or taxed. 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 674 OF 2002

BETWEEN: APPLICANT NANY OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: ALLSOP J

DATE: 28 OCTOBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for a review of a decision of the Refugee Review Tribunal (the Tribunal) in respect of a decision made on 30 May 2002 by the Tribunal affirming a decision previously made by a delegate of the Minister not to grant a protection visa. The application was filed on 9 July 2002. 2 The paragraphs of the application setting out the basis for the complaint concerning the decision of the Tribunal are in the following terms: 1. The RRT found that the applicant had fabricated his identity as [name as claimed provided] from China and of his continuing problems with the authorities due to his association with Falun Dafa. In making this finding, the RRT ignored parts of the applicant's claims in the statement attached to his application for a protection visa submitted on 23 April 2001, and in his oral hearing with the RRT on 9 May 2002. In doing so, the RRT ignored relevant material or reached a decision that could not reasonably have been reached, or reached a decision without reasonable or rational foundation, giving rise to the incorrect finding that the applicant is [name as in passport provided] rather than [name as claimed provided] and give [sic] riseto jurisdictional error. 2. The RRT has failed to accept the applicant's claim that he is a genuine Falun Gong practitioner since May 1997. The RRT's finding that any prospect of adverse attention from the authorities on the basis of this activity was remote was vitiated by jurisdictional error. 3 In short, the essence of the complaint is that the Tribunal found that the applicant was the person identified in a passport under which he came to this country, contrary to the claims he made at the hearing that he was in fact another person. This was the fundamental complaint addressed in oral submissions before me. 4 The application also refers to the ignoring by the Tribunal of material which the applicant had placed before it. An attempt is made in the application to characterise these alleged failures by the Tribunal as jurisdictional errors. The reference to ignoring relevant material and reaching a decision that could not reasonably have been reached without reasonable or rational foundation are redolent of the species of jurisdictional error referred to in such cases in the High Court as Craig v State of South Australia (1995) 184 CLR 163and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. 5 The applicant is a national of the People's Republic of China. The essence of his claim for protection was that he was a practitioner of Falun Gong and had been so since 1997. His claim was that he feared persecution from the authorities if forced to return. He gave evidence before the Tribunal that he feared being placed in a labour camp or suffering other persecution should he be returned. He told the Tribunal that he was on the wanted list in China. 6 The Tribunal had an oral hearing at which the applicant gave evidence with the assistance of an interpreter. The Tribunal's reasons substantially accurately set out the course of what occurred at the hearing. I am able to say that because, for reasons which will become apparent in a moment, I thought it appropriate to listen to the tape of the hearing before the Tribunal. That tape, which has been made available to the applicant to listen to before today, with the assistance of an interpreter, will be Exhibit B. 7 I should add that after calling the matter on this morning, I asked the applicant whether he wished to add to his submissions made to me on the last occasion, on 15 October 2002, in the light of hearing the tape. He said he did not. It is unnecessary to deal with all the evidence led before the Tribunal. It is also unnecessary to deal in great detail with the claim. As I said, a fundamental allegation made by the applicant before the Tribunal was that he was a person other than the person identified in the passport by which he came to Australia. 8 The applicant said to the Tribunal that he was able to obtain this passport illegally by the payment of a bribe and the payment of other moneys. The Tribunal noted that the applicant had not raised this identity question in his original claim. It was said by the Tribunal to be an important consideration that the applicant now appeared to be changing his story. The Tribunal, early in the hearing, asked the applicant if he had any identity documents supporting his claim to be the person other than the person identified in the passport. The applicant told the Tribunal that he did not have any documents which the Tribunal took, I think, and fairly so, to be an answer that he did not have any documents with him in Australia. The applicant did say that he had told his agent, previously acting for him, that he was not the person identified in the passport. 9 There were other matters which concerned the Tribunal in connection with the consistency of what the Tribunal was being told with the information previously provided to the Department. It is unnecessary for me to deal with these matters in detail. It is sufficient to say that the Tribunal made findings of credit in the matter not accepting the evidence of the applicant in significant respects. However, it is fair to say that the question of identity was crucial to the case and the findings by the Tribunal. 10 The applicant in submissions before me strongly pressed me with the proposition that the Tribunal had said that it was going to send the passport for verification and no result of this verification appears to have made its way into the reasons of the Tribunal. 11 On the tape (Ex B), it is recorded that the Tribunal did ask whether the applicant had any objection if the passport was sent for documentary examination. However, no specific undertaking was given in that regard. It is not clear what happened in that respect. However, there was no legal duty upon the Tribunal to undertake that task. This is so not only because the Migration Act 1958 (Cth) (the Act) does not place such a duty upon the Tribunal, but also on the version of events propounded by the applicant, it would be consistent that it would appear to be a genuine passport, but one produced by Chinese officials with incorrect information upon it pursuant to a bribe. It is not at all clear that the passport would not be genuine in one sense but still support the version put forward by the applicant. In any event, as I have said, the Tribunal was under no legal obligation to undertake this task. 12 The second matter heavily relied upon by the applicant before me was an identity card which he now had in his possession and which had been mailed from China pursuant to his request. The identity card and the envelope were tendered by the applicant over the objection of the respondent. I will deal with the admissibility of the tender in a moment. The card is one apparently issued in 1988 with a photograph of a male person at that date. That is some thirteen and three quarter years ago, the card being issued, apparently, on 31 December 1988. The photograph appears to be that of the applicant as a younger man. As will become apparent in these reasons, it is not essential to make that finding but I think it is one that I can safely assume for the balance of these reasons. 13 Before coming back to the card, I should identify some events which occurred after the Tribunal hearing. On 9 May 2002, being the day of that hearing, the Tribunal sent a letter to the applicant which sought information from him pursuant to the obligations of the Tribunal under s 424A of the Act. That section required the Tribunal to give the applicant, in the way the Tribunal considered appropriate in the circumstances, particulars of any information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. In layman's terms, s 424A required the Tribunal to put to the applicant significant material that was concerning it which was unfavourable to the applicant. That is perhaps an oversimplification of the provision, but the letter made clear that the Tribunal wanted answers in relation to particular questions. 14 The letter is at pp 44 and 45 of the court book (Ex A) and I set it out as follows: RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa. The information is as follows: Why did the applicant make no mention of his claimed "true identity" in his application to the Department of Immigration? According to his application for refugee status he obtained his passport legally and now he is claiming that he obtained it illegally. Can the applicant explain this inconsistency? The applicant's address and employment record as stated in the application to the Department of Immigration are different to his evidence at hearing – can the applicant explain this inconsistency? In his written statement to the Department of Immigration it [sic] claimed that he was involved in Falun Gong from May 1999 and later has changed this to May 1997. Can the applicant explain this inconsistency? The applicant claimed that according to his application he practiced Falun Gong in a park close to his home. At hearing he stated that he practiced in a meeting hall and a cinema. Can the applicant explain this inconsistency? The applicant stated to the Department of Immigration that he was detained in July 1999. The applicant has stated to the Tribunal that he was detained twice – in October 1997 and December 2000. Can the applicant explain this inconsistency? Why did the applicant make no mention of the two detentions – October 1997 and December 2000 in his application to the Department? Can the applicant explain this inconsistency? The applicant stated to the Department that he was assisted by work colleagues. The applicant stated to the Tribunal that he was assisted by his wife who "did everything" to have him released. Can the applicant explain this inconsistency? The applicant claimed to the Department that he was released after paying a bond of 5,000 RMB while to the Tribunal he is claiming that he paid a 20,000 RMB bribe to be released. Can the applicant explain this inconsistency? In his statement to the Department the applicant made no mention of being "in hiding" while he makes this claim to the Tribunal. Can the applicant explain this inconsistency? This information is relevant because it undermines the applicant's reliability as a witness. You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by no later than Monday 3 June 2002. IF YOU DO NOT GIVE COMMENTS BY 3 JUNE 2OO2 THE TRIBUNAL MAY MAKE A DECISION ON THE REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE. [emphasis in original] 15 As can be seen from the terms of the above letter, the Tribunal was concerned about the question of true identity. In the context of what had passed between the Tribunal and the applicant in the morning at the hearing, the applicant could have been under no misapprehension of the importance of bringing all relevant material to the attention of the Tribunal about that matter. 16 On 22 May 2002 an immigration agent, who was also a NAATI accredited professional translator and interpreter, apparently acting for the applicant, sent a response to the Tribunal. That response is contained at pp 46-48 of the court book. Pages 47 and 48 are a typed statement signed by the applicant, the signature being in the name not appearing in the passport. That is, signing it as the person he said he was. 17 The applicant indicated before me on the last occasion that he did not have all the statement explained to him by the agent at the time. However, I would infer that some instructions must have been given for the agent to create the document. In any event, from the point of view of the Tribunal, the statement was entirely regular. Because of the importance of the matter, I set out below the full terms of the letter from the agent and the signed statement (grammatical and typographical errors appear in original): Dear Sir: Enclosed please find the response from the applicant in regard to your invitation for his comments. Applicant's name: [name as claimed provided] (aka [name as in passport provided]) Yours faithfully [agent's name and signature provided] ****** Dear Sir or madam, I would like to make some explanation on some issues, which are significantly concerned on your assessment of my application for review of decision to refugee protection visa. 1. At the time of submitting my application to the Department of Immigration, the identification documents of [name as claimed provided] were not available to me. Thus I had to submit my application, using identification documents of [name as in passport provided]. I should have explained this fact to the Department of Immigration at the meant time, but I was busy settling down everything and unfortunately forgot to explain. So I explained to RRT later on. 2. Due to the fact that Chinese government would not have issued me a passport if I applied with my true identity, I asked someone else, whose exact name is [name as in passport provided], to apply for his passport. In this sense, [name as claimed provided], who is not I exactly, obtained the passport legally. However, I utilized the identity of [name as in passport provided] by attaching my own photo during the procedure of application. Then we can also say that I obtained the passport illegally. 3. The information I provided to Department of Immigration is my experience in Guang Xi, which is false because I had to make my experience consistent with the passport I hold in the meanttime. The information I provided during the hearing is my true experience in Fujian. 4. May 1999 is a typing mistake. I was involved in Falun Gong from May 1997. 5. First we practiced Falun Gong in a meeting hall and a cinema. Then we moved to a park close to my home. 6. My statement in RRT is true that I was detained twice in October 1997 and December 2000. I misunderstood at the beginning that an experience of being detained many times would negatively influence the people's thinking of my personal character. When I knew it would not, I started to state this experience honestly. 7. Both my wife and my colleagues helped me a lot to have me released. My wife collected fund and my work colleagues helped to bribe the authority with 20,000 RMB and pay another 5,000 as a deposit. 8. I had just been in Australia for a short time when I submitted my application in Department of Immigration. The fear I had in China that speak too much will result in negative treatment on me still remain influential on my action. So I dared not to say too much about my former experience. Kindly regards Yours [name as claimed provided] 18 As can be seen from the above response from the migration agent and the enclosed statement, there was no request to hold the decision pending production of further documents from China. That further documentation is now said to be available from China and I have marked it as MFI 1 in these proceedings. I will deal with the admissibility of the tender after I have explained the relevant legal principles by which I must decide this matter. 19 The decision as to whether to grant a visa and as to whether Australia owes protection obligations to the applicant are questions for the executive branch of government. The executive branch of government in this case was made up of the delegate of the Minister who made the first decision, and then a Tribunal independent from the Department but nevertheless in effect part of the executive which re-heard the application completely afresh. 20 Factual findings and the ultimate decision as to whether Australia owed protection obligations to the applicant are matters for the Tribunal hearing the matter afresh. The role of this Court is strictly one of review for legal error. It is not the role of this Court to hear again the matter afresh. The application for review can only be made, and I take it to have been made, under s 39B of the Judiciary Act 1903 (Cth) which permits this Court to deal with the matter and, in effect, set the decision aside if the Tribunal has made what is termed a jurisdictional error. 21 The nature of jurisdictional error is essential to understand. Prior to October 2001, the concept of jurisdictional error was illuminated by various decisions of the High Court of Australia and included such considerations as failure to take into account material required by law to be taken into account, asking the wrong question and, in some circumstances, reaching an entirely perverse opinion about the underlying matter. 22 The above is perhaps less than entirely precise. However, it is sufficient to identify the kinds of matters previously available for agitation on review which are of a kind raised by the applicant in the application. 23 In October 2001, legislation came into effect amending the Act, the effect of which has been discussed by the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. A majority of the Full Court were of the view that the introduction of s 474 in its present form into the Act had the effect of widening the authority of the Tribunal in a way which I will identify shortly. 24 The clause, s 474, is expressed in language which might be seen to prevent the Court from hearing the matter. However, by the approach adopted by the High Court since R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, and later cases, is to be seen not as a cutting down of the Court's jurisdiction, but as a widening of the authority of the decision maker, in this case the Tribunal. 25 The effect of widening the authority of the Tribunal is that, subject to constitutional limitations and subject to other provisions in the Act so important in their interpretation as to prevail over s 474, the decision maker is in fact authorised by a law of the Parliament to deal with the subject matter, making such mistakes as may occur as long as he or she approaches the task in good faith. Thus, using this framework of analysis, the decision maker is authorised by an Act of Parliament to misunderstand the issues and to commit other legal and factual errors as long as he or she acts in good faith. 26 With the introduction of the clause in question, that is s 474, what previously may have been seen to be error no longer is error because of this widening of authority. Thus, in a case such as the present, which simply depends upon the acceptance of the applicant's version of events, the only real basis for attack on the decision will be an assertion that the Tribunal was not bona fide. 27 The applicant before me is not represented. His application was obviously drafted by someone with some legal background. There is no claim in the application that the Tribunal did not act in good faith. As I have said, I have listened to the tape and read the court book. Even if the applicant were to have alleged lack of good faith in the application, I do not think that there is a basis for making it out. It is a serious allegation to make. It is, in effect, an allegation that the Tribunal dishonestly approached its task or, at the very least, approached its task without an open mind. On the material before me and having heard the tape, I do not think that any such allegation could or should be made and as I said earlier, formally speaking, the applicant does not make the allegation. 28 The applicant, if I may say so respectfully, is deeply distressed as to the factual findings made in respect of his case. If I may say so, that is understandable since they are a nearly comprehensive rejection of his evidence in circumstances where his claim is one where he says he fears return to serious persecution. 29 However, as I said, it is not for this Court to re-hear the facts in cases such as this. The Tribunal had the benefit of a hearing and the response to the letter of 9 May 2002 together with the other material before it. It would be to usurp the function of the executive if I were to embark on a re-hearing of the facts. I have no authority to do that. I had no authority to do that before October 2001. 30 I am not convinced that there has been displayed any circumstance which would have grounded relief before October 2001, but it is unnecessary for me to decide that question. In this respect I have been assisted by the helpful submissions of Mr Markus for the respondent, which I will leave on the file. The fact is that it is not able to be shown that the decision of the Tribunal was reached in an exercise of power which was not bona fide. 31 I should add that, flowing from what I have said, the fact that I am unable to re-hear the facts of the case and in that sense disturb any of the findings of the Tribunal does not mean that this Court agrees with the findings of credit about the applicant. It simply means that those findings having been made are not able to be disturbed on review by this Court except in the circumstances which I have identified. 32 I turn now to the tender of the identity card and envelope: MFI 1. It is, I hope, apparent by now that I cannot re-find these facts. Therefore strictly, the card and the envelope cannot be relevant to my task. Even if it be the case that the applicant is the person he claimed to be before the Tribunal, and even if a very important factual error has been made by the Tribunal, it is and remains just that, a significant factual error. As I said, I have to be satisfied that the Tribunal did not approach its task lacking bona fides. On the material before me, I cannot be so satisfied. 33 For the above reasons, I propose to reject the tender of the identity card and envelope, but I will retain on the court file, as MFI 1, photocopies of that card and the envelope. For the above reasons I have no alternative but to dismiss the application. 34 By way of summary for the applicant, two things must be grasped: first, factual findings, whether to be believed or not, is a matter for the Tribunal. The Tribunal did not accept a lot of the applicant's evidence. That is not to say that I disbelieve it; it is not my job to refind the facts. Secondly, the basis for review since October 2001 is limited to whether or not it can be shown that the Tribunal approached the task in good faith. I do not think that has been shown. 35 I appreciate that the applicant strongly presses the proposition that he is the person shown on the identity card. The Tribunal found as a fact that he is the person identified in the passport. That may have been a wrong finding. However, it was part of a group of findings made about the claim which together were a rejection of the applicant's claims. I do not sit as an appeal court on factual issues. The only basis for review in this Court is for jurisdictional error which since October last year is limited to whether the Tribunal approached the matter in good faith. 36 The usual rule as to costs is that the party losing pays the winning party's costs. Mr Markus is instructed by the Department to ask for the costs of sending him along and arguing the case. No reason has been put to me why costs should not follow the event. 37 The orders of the Court are: 1. The application be dismissed. 2. The applicant pay the costs of the respondent as agreed or taxed.