NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734

FEDERAL COURT OF AUSTRALIA

NANX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 734 MIGRATION – whether Refugee Review Tribunal is entitled to take into account the original decision or the reasons of the original decision-maker – whether Tribunal took original decision into account ADMINISTRATIVE LAW – taking into account an irrelevant consideration – whether reviewing tribunal entitled to take into account original decision or decision-maker's reasons Migration Act 1958 (Cth) Collins v Minister for Immigration (1981) 58 FLR 407, 36 ALR 598 followed Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562 cited NANX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 1408 OF 2002 GYLES J SYDNEY 18 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1408 OF 2002

BETWEEN: NANX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 18 JULY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent. 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 1408 OF 2002

BETWEEN: NANX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 18 JULY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing the appellant's application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed a decision made by a delegate of the respondent Minister not to grant the appellant a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). The application to the Federal Magistrates Court was made on 9 July 2002. The decision was given on 6 December 2002. At that time, the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 stated the law for the purposes of the Federal Magistrates Court. 2 A portion of the decision of the learned Federal Magistrate was as follows: '17. The final matter raised by the applicant was the submission that the Tribunal had erred in law when it suggested at CB [72]: "The applicant's RRT application presented no rebuttal of the DIMIA decision record." 18. The applicant used this phrase as evidence that the Tribunal considered that it was his responsibility to rebut the delegate's decision as if what was occurring before the Review Tribunal was a true appeal and not a rehearing for the purposes of satisfying the Tribunal under s 65 of the Migration Act. It is clear from the decision in NAAV that such an error of law would not be reviewable because of the privative clause but in any event I am not satisfied that the Tribunal did proceed on the basis alleged by the applicant. The full quotation from that paragraph is as follows: "The applicant's RRT application presented no rebuttal of the DIMIA decision record and no new claims and again declared that the information supplied was complete, correct and up to date in every detail." 19. My reading of the decision is that this paragraph was inserted into the Tribunal's reasons as part of the Tribunal's general attack on the applicant's credit arising out of the differences between his statements before the Tribunal and the delegate and the manner in which the forms had been completed.' 3 The ultimate ground of appeal which was pressed in this Court on behalf of the appellant was as follows: 'That the RRT erred in refusing to grant the appellant a protection visa by relying on irrelevant considerations. Particulars The irrelevant considerations were: (a) that the appellant's RRT application presented no rebuttal of the decision record dated 16 May 2001 of the Delegate of the Minister: see AB 72(0.4); and (b) that the appellant's RRT application presented no new claims when compared with the claims that the appellant made to the delegate of the Minister: see AB 72(0.4).' 4 In order to appreciate the point which is made, it is necessary to say something more about the decision of the Tribunal. The Tribunal accepted that the appellant was a citizen of the People's Republic of China who had arrived in Australia on 7 January 2001. His claim for protection was based upon his adherence to the practice of Falun Gong from 1996, which included participating in demonstrations, sit-ins and petitions at various public places, which came to the attention of the authorities, leading to his being arrested and charged, detained and tortured, and then to his discharge from his work. He claimed to have continued to practise Falun Gong after arrival in Australia. 5 The Tribunal, in its decision, set out in some detail the claims made by the appellant at various stages. In the course of that chronology, the Tribunal set out a summary of the reasons for decision of the delegate of the Minister when refusing the visa. The Tribunal then summarised some country information dealing both with the treatment of Falun Gong practitioners and the topic of passports and exit. The findings and reasons of the Tribunal commenced as follows: 'I accept that the applicant is a citizen of the People's Republic of China. I also accept that he is now a Falun Gong practitioner. At virtually every stage of his application, the applicant has declared the truth or completeness of his claims (see paras 10, 11, 23 and 24 above). Yet even the applicant's original claims of January 2001 contain inconsistencies which undercut their credibility. And at his DIMIA interview and RRT hearing he varied his claims in ways which undercut fatally the credibility of the totality.' In the course of giving detailed reasons for that conclusion, the Tribunal said: 'The applicant's knowledge of Falun Gong as revealed at the interview did not impress the DIMIA decision maker or me as consistent with what a person with over four years experience as a Falun Gong organiser would have, eg the ignorance of basic facts such as the year of founding and the connection to Buddhism (see para 18). The claim that he had become an organiser at the same time as or so very soon after becoming a practitioner was not credible.' (emphasis added) 6 Later, the passage of which complaint was made occurred, the context being as follows: 'The applicant's RRT application presented no rebuttal of the DIMIA decision record and no new claims and again declared that the information supplied was complete, correct and up-to-date in every detail. At the RRT hearing in May 2002 the applicant declared that he had told the truth at every stage of his application for refugee status. This is clearly not true.' (emphasis added) 7 The essence of the reasons of the Tribunal was as follows: 'Having examined the applicant's claims and considered his answers at the DIMIA interview and his answers and demeanour at the RRT hearing, I do not accept that the applicant has ever been a leader or organiser or prominent practitioner of Falun Gong in China. I do not accept that he paid a bribe to avoid the procedures for the issue of a passport. I do not know if the applicant was dismissed from his employment for any reason. It is quite possible that he simply terminated his employment as part of his arrangements to leave China. But if he was dismissed I do not believe that it was in connection with Falun Gong. I note from sources such as the United States State Department human rights reports and the United Kingdom Home Office assessments that in any event the labour market in China is now more fluid than in the past and that it is not unusual for citizens to make their own arrangements to secure employment. Given that I do not accept that he had a Falun Gong profile of the sort which attracts the adverse attention of the authorities (see the country information on pages 10 to 12), I do not accept that there was any Convention-related reason for his departure from China to be other than in the legal manner which he claimed in his original DIMIA application. If he paid any bribe in connection with his departure, I do not accept that it was paid to avoid normal compliance procedures. I attach no weight to the three documents submitted after the DIMIA interview (see para 20) because, having heard the applicant's DIMIA interview tape and having had the opportunity to question him myself in relation to his claims, I do not accept that he has come to the adverse attention of the authorities in respect of Falun Gong or for any other Convention-related reason and I do not believe that there is a Convention-related arrest warrant issued for him. Nothing the applicant has submitted or said to me leads me to conclude that his profile in Australia is such as to attract the adverse attention of the Chinese authorities. Similarly, I see no reason to suppose that he would attract adverse attention for a Convention reason if he returned to China.' 8 Counsel for the appellant submits that, upon the appellant applying to the Tribunal for review of the delegate's decision, the Tribunal had an obligation to review the decision pursuant to s 414(1), and for that purpose s 415(1) empowered the Tribunal to "exercise all the powers and discretions that are conferred by this Act on the person who made the decision". In other words, the Tribunal stood in the place of the delegate and the Tribunal's decision on review was governed by s 65(1) and s 36(2) of the Act (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2001 (2003) 198 ALR 59 [2003] HCA 30 at [33]). This is plainly correct. It was submitted that it followed that it was incumbent upon the Tribunal to decide for itself whether the appellant should have been granted a protection visa. It was not the Tribunal's task to determine whether the delegate had fallen into error, and the appellant did not bear any onus before the Tribunal to either rebut the delegate's decision or present claims to the Tribunal which he had not previously presented to the delegate. 9 It was submitted that the fact that the appellant's Tribunal application presented no rebuttal of the delegate's decision was irrelevant to whether the Tribunal should have granted the appellant a protection visa. The fact that the appellant's Tribunal application presented no new claims, when compared with the claims the appellant had made to the delegate, was also irrelevant. Those facts could only be relevant if the appellant was under an obligation to answer, disprove or establish error in the delegate's decision. He was under no such obligation. It was submitted that the recital of the irrelevant facts in the portion of the Tribunal's reasons, headed "Findings and Reasons", indicates that the Tribunal relied upon them and took them into account. It was also suggested that the form of the actual decision "The Tribunal affirms the decision not to grant a protection visa" confirms that approach. I reject the last point. The form of the decision is quite conventional for Tribunals having the function in question. 10 Counsel for the respondent submits that there is nothing wrong with the Tribunal taking note of the reasons for decision of the delegate. Indeed, it is submitted that the express terms of ss 412, 414 and 415 require the Tribunal to review the decision, and it would not be sensible to conclude that it could not read and consider the reasons for the decision. Counsel for the respondent submits that there is nothing wrong with an administrative decision-maker, who is reviewing an original decision on the merits, expressing its own reasons for decision by agreeing or disagreeing, in whole or in part, with the reasoning of the earlier decision-maker. 11 The most important question is the extent to which (if at all) the reviewing decision-maker can give any weight to the original decision or the original reasons for decision. Counsel for the appellant submits that no weight at all should be given to the decision or the reasons for it, as the Tribunal is conducting what amounts to a de novo process. There should be no onus at all to displace the original decision. Counsel for the respondent says that whilst the process is technically de novo, it is not so in the real sense. It is submitted that if the reasons of the original decision-maker are persuasive, they may be accepted, or if they are seen to be flawed, they can be rejected, provided that the Tribunal exercises its own judgment in the matter. 12 The Tribunal is not bound by the rules of evidence, and would be expected to consult relevant parts of the departmental file which was forwarded to it, including the reasons for decision. Indeed, as in this case, what is recorded as having been said to the delegate may assume importance. 13 I was not referred to authority on the precise point. There may be a question as to the extent to which account can be taken of, or respect paid to, original decisions by administrative bodies on review, but for this Court, in this context, the decision of the Full Court in Collins v Minister for Immigration (1981) 58 FLR 407, 36 ALR 598 is the safest guide. I set out a more extensive passage from that judgment than might normally be the case because of the direct relevance of it to the present issue (FLR 411-412, ALR 602-603): '… it is necessary to set out the portion of his Honour's reasons from which it is alleged it can be seen that his Honour gave weight to an irrelevant consideration. His Honour said: "Ultimately it has to be decided what is in the best interests of the Australian community, a decision which will weigh up all relevant aspects with which this review has been concerned, and in arriving at a decision some weight is to be given to the Minister's decision. It has been submitted that his decision might have been different if he had available to him evidence presented on the applicant's behalf to the Tribunal. It would follow, so runs the argument, that the Minister's decision should be accorded less weight that it otherwise might have. There may be cases where that decision should receive great weight or perhaps no weight, eg if it were inconsistent with the Act it professes to expound (see Drake's case, supra). Here I consider the decision should have and I do give it some weight." It was argued that the Minister's decision referred to by his Honour was the decision to deport the appellant as distinct from the reasons which were given by the Minister in the statement submitted by him to the Tribunal pursuant to s 37 of the Act. Counsel for the Minister conceded that this was so. We think the distinction is fundamental and is of crucial importance in this appeal. If the concession was well founded, a difficulty immediately arises in placing any weight upon the Minister's decision for the purposes of the determination of the application for review of the same decision. It seems to us to be unsound in determining the correctness of a decision to treat the decision itself as being probative of its own correctness (cf Re Ladybird (1976) 1 ALD 1 at 5). The decision is, of course, a necessary jurisdictional basis for the making of an application for review. But it is no more than that. As can be seen from the terms of the deportation order, the Minister's decision gives no reasons and is a mere statement to the effect that the Minister has exercised the power conferred upon him by the Migration Act. The relevance of the order is, for present purposes, that it gives rise to a right to invoke the jurisdiction of the Administrative Appeals Tribunal. In our opinion it does not have any further probative significance in the determination of the question whether, on the material before the Tribunal, the decision was the correct or preferable one. When his Honour referred in the passage which we have quoted above to "the Minister's decision" he may have been intending to refer to the reasons given by the Minister in the statement which he furnished to the Tribunal pursuant to s 37 of the Act. As we have already indicated, that statement did include a reference to the reasons for his decision and to government policy. Drake's case itself makes it clear that the Tribunal is entitled to give weight to government policy, and in a normal case would be expected to do so. The Tribunal must, however, act in accordance with the law and this requires it to form its own view on the merits of the case. Moreover, we do not doubt that, in an appropriate case, the expressed reasons of the Minister may carry weight with the Tribunal because of the fact that the Tribunal is impressed by, or finds itself in agreement with, a line of reasoning or an analysis of established fact which those reasons contain. In such circumstances, the Tribunal may give weight to the Minister's reasons in the same way as it gives weight to the oral argument of the legal or other representatives of the parties appearing before it. There is, however, no presumption that the Minister's decision is correct and the Tribunal is neither required nor entitled to place weight, in the ultimate weighing process, upon the fact that the Minister has decided the issue before him, on the material before him, in a particular way. Putting to one side the position where the decision-maker is a person or Tribunal having special expertise where the position may conceivably be different, the actual decision does not, in itself, carry any weight. … As we have indicated, counsel for the Minister conceded that his Honour's reference to the Minister's decision was a reference only to the decision to deport and was not a reference to the reasons to be found in the ministerial statement. On balance, it seems to us that this concession was rightly made. We are therefore of the opinion that we must uphold the first submission made on behalf of the appellant.' 14 That decision was recently applied in a setting similar to the present setting by Katz J in Aung v Minister for Immigration & Multicultural Affairs [2000] FCA 1562 at [4]-[7]. 15 In my opinion, on a fair reading of the reasons of the Tribunal, it cannot be said that weight was given to the fact of the adverse decision by the delegate of the Minister in the sense that an onus to displace the decision was imposed. In my view, the phrase "no rebuttal of the DIMIA decision record" refers to the record of the reasons rather than the decision itself. The reference to the appellant's knowledge of Falun Gong not impressing either the DIMIA decision-maker or the Tribunal member assists in understanding the way in which the Tribunal treated the delegate's decision. In that case, it is clear that the Tribunal member shared the same view as that of the delegate. It seems to me that, although situated in the findings and reasons, the relevant phrase was recounted as part of a narrative focused upon the various accounts which had been given by the appellant from time to time. Furthermore, the crux of the reasoning of the Tribunal, which I have reproduced above, is self-contained and stands on its own. I agree with the submission on behalf of the respondent that reference to the Tribunal's reasons did not play any operative part in the decision of the Tribunal. 16 Thus, the learned Federal Magistrate was correct in taking the view that, leaving aside the effect of s 474 of the Act, there was no jurisdictional error disclosed on the basis now pressed. The appeal is dismissed. The appellant is to pay the costs of the respondent. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.