Chen v Min for Immigration & Multicultural Affairs

[1999] HCATrans 316

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S23 of 1999

B e t w e e n -

DEQING CHEN

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 2.03 PM

Copyright in the High Court of Australia

KIRBY J:   Are you Mr Deqing Chen?

MR D. CHEN:   Yes, your Honour.

KIRBY J:   And you are the applicant in these proceedings?

MR CHEN:   Yes, your Honour.

KIRBY J:   Yes, and I think you have asked that an interpreter in the Chinese language should be here to help you today, is that correct?

MR CHEN:   Yes.

KIRBY J:   Is the interpreter present?

THE INTERPRETER:   Yes, your Honour.

KIRBY J:   What is your name, please?

THE INTERPRETER:   Angeline A. Oyang.

KIRBY J:   And are you a member of the panel for interpreting the Mandarin Chinese language into English and from English into the Mandarin Chinese language?

THE INTERPRETER:   With The Ethnic Affairs Commission.

KIRBY J:   Yes, very well.  I will ask that the officer administers the oath to you.  Are you prepared to take an oath or will you take an affirmation?  Do you prefer to take an affirmation or an oath?

THE INTERPRETER:   Affirmation, yes.

KIRBY J:   Affirmation, very well.

ANGELINE A. OYANG, affirmed as interpreter.

KIRBY J:   Who appears for the Crown in this matter?

MR T. REILLY:   If the Court pleases, I appear for the respondent.  (instructed by the Australian Government Solicitor)

KIRBY J:   I am sorry, it is for the Minister, is it not?  It is the Crown in one manifestation, I suppose, we should say.  Thank you very much.  What

we are going to do, Mr Chen, is to extend the time that we normally give in a matter like this to 30 minutes in order to allow for the time of your interpreter.  So, perhaps, interpreter, if you would stand up and speak at the rostrum there.  Would you do that?  If you would explain that.  That is the usual thing for Mr Chen to do that.  The interpreter will interpret but please do it into the microphone.  If you can both stand there.  You just say what you want to say and then that will be interpreted to us at intervals and you have 30 minutes, in all, starting from now.  Would you explain that to Mr Chen.

THE INTERPRETER   He wants to have a look at his documents first.

KIRBY J:   Very well.

MR CHEN:   Your Honour, I only ask for this special leave for - - -

KIRBY J:   We know that and we have received your papers which have the decisions of the judge at first instance and the decision of the Full Court and we have read those, so that you do not have to go over that.

MR CHEN:   I am not happy with the Federal Court decision - - -

KIRBY J:   Perhaps if you would speak in Mandarin, it will be easier for you because it can then be placed before us accurately what you want to say.  Do you wish to speak to us in the Chinese language or in the English language?

MR CHEN:   I prefer the English, if possible.

KIRBY J:   All right.  Well, you start with the English language and if we need to, or if you need to, you can ask the interpreter to help.

MR CHEN:   Thanks, your Honour.

KIRBY J:   Very well, but speak up, please, so that everybody can hear.

MR CHEN:   I am not happy with the Federal Court’s decision. I think a big flaw in his judgment on a point. I challenged the Tribunal, the Refugee Review Tribunal on two points which is under the section 476(1)(g) and (4)(b) but the Refugee Review Tribunal’s decision is groundless.

KIRBY J:   Do you realise that we are not hearing an appeal from the Tribunal but from the Full Court of the Federal Court of Australia and that you have to show a mistake or error in the decision of that court in a matter of law.  Do you understand that?  Mr Chen, do you understand what I have just said to you.  Perhaps you might translate that to Mr Chen.

MR CHEN:   Yes, I understand that, your Honour.

KIRBY J:   So, you have to concentrate, really, on the decision of the Full Court and tell us what you say are the errors on which you are relying to persuade the Court to give you special leave in this case, to appeal to the Court.  Mr Chen, you are losing time which is a very valuable commodity for you.  Why do you not just speak to us in your own language and it will be interpreted to us and then we will be able to understand the points you want to put to us.  Would you translate that to Mr Chen, please?

MR CHEN (through interpreter):   Yes, your Honour.

KIRBY J:   It is very difficult for you to speak in the English language and it will be more efficient for you to speak in the Chinese language and it will be translated.

MR CHEN (through interpreter): I consider that the Federal Court’s first error was section 476(1)(g) and (4)(b). I challenge the Refugee Review Tribunal. The decision by the Refugee Review Tribunal is that when I return to China I can obtain hukou. The Full Court’s decision on page 28, line 45, I think that decision is wrong. The first point is I could obtain a hukou when I return to China. The decision considers that I can be eligible to marry and have a family. This is incorrect. Because the Federal Full Court’s decision is also stated that the first option that I can obtain a hukou when I return to China is based on hypothesis. According to 476(1)(g), that was an incorrect decision.

KIRBY J:   That is set out on page 27 of the application book.

MR CHEN (through interpreter):   The Federal Court also stated, even though I reported to the Refugee Review Tribunal that I will not change my political opinion, the Tribunal also considered that I would not change my political opinion.  The Refugee Review Tribunal considered that the Chinese Government will grant me a hukou whether I change my political opinion or not.  So, the decision was that if I return to China I can obtain a hukou.  The Tribunal does not have evidence to state that the future Chinese Government, whether it is a democratic, anti-democratic or autocratic government as it is now.  Because of my anti-government activities, that caused the deprivation of my hukou.  If that government considered me to be still anti-government it will not give me my hukou.

The reason given by the Tribunal that I can go back to China is that I will no longer be anti – no longer engage in anti-government activities or whether the government will allow me to conduct anti-government activities and leave me alone, but that is only a possibility.  There is another possibility.  Another possibility would be that I will not be tolerated - - -

MR CHEN:   By the government.  (Through interpreter):  That is the first point.  This is the first point I consider being the error committed by the Federal Court.  The second point is whether I shall be encountering persecution when I return to China really depends on whether my human rights will be respected or not.  (Not interpreted):  My fundamental human rights will be taken away by the government or not.  It really depends on that.  In a situation that I will still have no hukou or the government still does not give me a hukou.  In the Tribunal’s decision it considered that I would be able to marry and start a family which was also considered – which was agreed by the Federal Court but in the decision of the Refugee Review Tribunal it did say that I took the advice of the reporter of the Australian Second Human Rights Delegation to China in December 1992 which says, “Marriage cannot be entered into unless evidence of hukou is produced to the authorities” which is quite contradictory.

KIRBY J:   But there was some evidence that hukou could be secured in various ways by way of underhand means and that was evidence before the Tribunal.

MR CHEN:   I will come to that point later.  In the Federal Court, in the Full Court judgment, page 30, it starts from line 25, it said:

More importantly, however, there is no material establishing the contrary.  That is, the material does not establish that, without hukou, a person cannot marry and have children.

It does contain this contrary information in the Refugee Review Tribunal’s decision.

KIRBY J:   I think you are trying to persuade us as to what we would decide if we had all of the material but that is not our function.  We have ourselves to adhere to the law and the law permits this Court to intervene only if a mistake has been shown that the Tribunal, in the face of no evidence, has reached a conclusion, not which is the better conclusion but that there was no evidence to support the conclusion.  (To interpreter): Would you explain that please?   Could I interrupt you to ask, do you understand that that is the very limited issue on which a court can interfere in the decision of the Tribunal?  No evidence.  (To interpreter):  Would you translate that please. 

I think you should fix your phone.

THE INTERPRETER:   I beg your pardon, I am so sorry.

KIRBY J:   It might be wise to turn them off in court in future because not every judge will be as nice about that as Justice Hayne and I.

THE INTERPRETER:   I am so sorry, yes.

MR CHEN (through interpreter):   The second error was the Tribunal considered I can get my hukou from unofficial resources.

KIRBY J:   But I do want to get back to the question that I asked you.  I do want you to understand the difficulty which this Court has.  It is very important that you understand that.  We are not deciding whether you should be removed from Australia or not.  We are not deciding whether we would allow you to stay in Australia or not.  We are only deciding whether there was no evidence at all of the facts concerned on which the Tribunal could reach the conclusion which it did.  Do you understand that that is the limited role of the Court under Australian law to interfere in the decision of the Tribunal.

MR CHEN (through interpreter):    He understands.

KIRBY J:   Does the applicant say he understands?

THE INTERPRETER:   He did.

MR CHEN (through interpreter):   There is no evidence that the hukou can be obtained from unofficial sources in China.  (Not interpreted):  Which is considered legal documents by the Chinese Government.  There is no evidence put forward by the Refugee Review Tribunal that hukou or any other ID documents taken – obtained from the sources other than official bodies are considered legal documents accepted by the Chinese Government.

KIRBY J:   Yes, but apparently the Tribunal concluded that you could obtain hukou unofficially or on the black market.

MR CHEN:   Yes, unofficially.

KIRBY J:   And that people do that and that was evidence before them.  And that if you did it that way, as many people do, you would avoid the consequences of which you complain.

MR CHEN (through interpreter):   But the Refugee Review Tribunal did not have evidence that such exercise are legal in China or permitted by the government.  What if the government does not permit such action, what would become of me?

KIRBY J:   I realise the government does not permit it but the suggestion is that it happens and that the government turns a blind eye to it.

MR CHEN (through interpreter):   In the evidence given by the Tribunal, there are cases in which people - that pose danger to the person who purchase such documents.  It means that the Refugee Review Tribunal knowingly that if one acts that way it will pose danger and yet it still suggested that I should act in this way.

KIRBY J:   That is not a question of whether I think that is a good decision or a bad decision, it is a question, as far as this Court is concerned, of whether there was any evidence on which they could reach that conclusion.

MR CHEN (through interpreter):   The evidence used by the Refugee Review Tribunal endangers me.

THE INTERPRETER:   Sorry, what Mr Chen just said was, “The evidence provided by the Refugee Review Tribunal puts me in a dangerous position.”

HAYNE J:   That is if he goes the unofficial path, is that right?

MR CHEN:   Yes.

HAYNE J:   But the evidence before the Tribunal apparently was that hukou was restored, was given back, even to someone who had been in prison after three or five years.

MR CHEN (through interpreter):   But my case is political persecution.  If they use administrative easures to persecute me there is nothing I can do.  This is different from criminal activities.  Criminals are different from me and their treatment will be different from me.  You cannot use that example to apply to my case.  I would rather I be imprisoned for three years and give me my hukou.  They considered that I will not be persecuted because I can buy a hukou when I return to China but the fact that I actually buy an illegal hukou will endanger my position.

KIRBY J:   But apparently you were able to get a passport.  You can get anything from China.

MR CHEN (through interpreter):   That passport was used – I had to use another person’s identity to obtain that passport.  So, if you allow that passport to be investigated by the Chinese Government, the person who offended would not be me.  (Not interpreted):  The real status of the passport – the passport carries, is not me.  Is someone else.

KIRBY J:   Mr Chen, the light has gone on now so that you have to conclude what you are saying to the Court.  You will have three minutes to conclude. 

MR CHEN (through interpreter):   So, it is an error to say that if I buy an illegal hukou and will not be persecuted is not correct.

KIRBY J:   Would you say that again, please.

THE INTERPRETER:   Sorry.  “The statement that – or the decision that if I buy illegal or unofficial hukou I will not be persecuted is incorrect.”

KIRBY J:   I realise you say that but it is not a question of we think it is correct or not, it is whether there was no evidence on which the Tribunal could reach its conclusion.  It is a very high threshold for Mr Chen to jump over into the courts.

MR CHEN (through interpreter):   There is no evidence to say that that act is safe for me that I will not have persecution from the government because I am a political prisoner.  (Not interpreted)  Dissident not prisoner.
(through interpreter):   I am a political dissident and I am not like the other criminals.  (Not interpreted)  That is all, your Honour.

KIRBY J:   Yes, thank you very much, Mr Chen.  Yes, Mr Reilly.  Would you translate what Mr Reilly says if Mr Chen has any difficulty understanding what counsel for the Minister is going to say.

HAYNE J:   Mr Reilly, why should the Refugee Review Tribunal take any account of obtaining a hukou illegally?

MR REILLY:   Your Honour, the applicant has focused on different factual problems over time but certainly before the Tribunal and before Justice Branson, one of his principal problems, he said, that if he was returned to China without hukou he could not marry and have children.  So, he was focusing on the practical consequence of not having hukou.  The Tribunal approached the matter in that way, that the mere possession of hukou or not is not the issue, the issue is what, in practice, happens if you do not have hukou. 

There was evidence, indeed, in the applicant’s own account, as is dealt with in Justice Branson’s judgment, and in independent evidence before the Tribunal that those without hukou - - -

KIRBY J:   Can I say – my question is very similar to Justice Hayne’s question.  The Act of the Australian Parliament says that there was no evidence or other material to justify the making of a decision.  Now, would one attribute to an Australian parliamentary Act - leave aside what one would say is the real politic in another country – to an Act of our Parliament, using the word “justify” is saying, “Well, to justify that decision the Australian Parliament contemplates that it will take into account the doing of things that are illegal.”  Is that what the people of Australia in their Parliament contemplate by “justify”?

MR REILLY:   Yes, your Honour, because the rule of law is not, unfortunately, as important a part of some societies as it is here and in a refugee context one goes from completely lawless societies like Somalia to societies like China where the rule of law perhaps has a lesser application than here to Western countries and, yes, in my submission, Parliament would have focused not on the formal legal position but the practical effect and that can differ between different countries.

HAYNE J:   Assume that were not so, assume for the purposes of argument presently that one was not permitted to take to account the possibility of obtaining hukou illegally according to local Chinese law, are you then able to support the decision below?

MR REILLY:   Yes, your Honour, because - - -

HAYNE J:   How?

MR REILLY:   Because, your Honour, the other strand of the Tribunal’s reasoning was that in any event the applicant would regain his hukou legally.  Your Honour, yourself, put the position to him of, in fact, prisoners can get their hukou back.  The Tribunal simply did not believe that he would not be able to get his hukou back.

HAYNE J:   Even though he is, by his own description, a political dissident, who may be treated differently from that of the – if I can use it – “common criminal”?

MR REILLY:   Yes.  Well, that was not the Tribunal’s finding.  The Tribunal assumed that his original problems were for political reasons, that is the fact, that he – I think he got sacked from State employment but nowhere found that he was a political dissident, as that term is commonly understood, your Honour. 

So, in any event, your Honour, there were those two strands to the Tribunal’s reasons.  But the other point is that not only must there be no evidence of a fact, and assuming that – we say that future speculation about whether the applicant could get his hukou back legally or illegally is not a particular fact for the purpose of 476(4), but, in any event, even assuming that it is, under section 476(4)(b), the applicant must still demonstrate to the Court by admissible evidence that the fact does not exist and he is simply unable to do that.  He has asserted at various times that he will not be able to but, your Honours, in context, that is hardly the proof that 476(4)(b) speaks of which is probably a reason for thinking that it is not a particular fact at all when one is talking about a future event.

In any event, the Full Court decided the matter squarely on that basis, that he was unable to demonstrate that the fact did not exist, and that would be so with regard to either legally obtaining hukou or illegally getting around not having hukou or illegally obtaining hukou.

HAYNE J:   And I thought the Full Court also decided, perhaps as a step along the way, on the basis that there was in fact some evidence before the Tribunal.

MR REILLY:   Certainly, your Honour.  I was just running with your Honour’s hypothesis that there was no evidence.  So, your Honour, we say the no-evidence case - - -

HAYNE J:   But am I right in understanding the Full Court to have said, “It is not a case of no evidence and it is not a 476(4)(b) case anyway.”  Is that the way you say we should read the judgment?

MR REILLY:   Yes, your Honour, but the focus was on the final point.  That is in paragraph 41 on page 30 of application book.  So, the Full Court makes reference to something when it says:

Indeed there was a reference in a UNHCR background paper –

Does your Honour see that?

HAYNE J:   Yes.

MR REILLY:   Which, I think, goes to the issue of there being no evidence, and then, in the next sentence, where it says, “More importantly”, it goes to the issue of the applicant being unable to establish that the fact

does not exist.  Your Honours, unless there is anything further, it is simply an application of settled law and what Mr Chen has said to you today is more or less what he has said to previous courts and it is really asking for merits review.  It is not taking any legal point at all.

KIRBY J:   Mr Chen is at a disadvantage today because he is unrepresented and is speaking to us through an interpreter.  Is there anything, in those circumstances, that you feel that you should bring to the Court’s attention that it should take into account in considering his application?

MR REILLY:   I do not think so, your Honour.  No, your Honour.

KIRBY J:   Very well, thank you.  Is there anything that Mr Chen wishes to say in reply to what has been said to the Court?  You have five minutes.

MR CHEN (through interpreter):   It is incorrect, the gentlemen just said, that the points (1) and (2) were not particular facts.  That is incorrect.  The decision of saying that I do not face real chance of persecution is based on those two points.  Those two were the particular points.  I know I am disadvantaged because I am not represented.  I am contacting a lawyer now and I would like to have that opportunity for a fair and just decision made by this Court.  I need an opportunity.  I hope to get a lawyer to represent me soon.

KIRBY J:   It is a bit late for that.  The matter has been heard now.  It is concluded.

MR CHEN:   I have contacted Amnesty International and they promised me to help me in the case but they told me this is only, what they called, a primary hearing or the first hearing.  They did not think this important. 

KIRBY J:   If they did not think coming before the High Court of Australia was important, then I am afraid they have made a mistake
.  So far as the law of this country is concerned, this is the last port of call.  (To interpreter)  You translate that, please.

MR CHEN (through interpreter):   I still think I need an opportunity.  Thank you.

KIRBY J:   The Court will adjourn briefly to consider what it is going to do in this application.

AT 2.46 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.48 PM:

KIRBY J:   Will you translate this to Mr Chen as I read it.

An application for review of a decision of the Refugee Review Tribunal must demonstrate one of a limited number of grounds. 

During the argument of this application by Mr Deqing Chen a question arose as to whether section 476(1)(g) of the Migration Act 1958 (Cth)contemplates that the Tribunal may act on evidence that a person, returned to his country of origin, could avoid severe civil disadvantages by acting illegally is contrary to the laws of that country. It is not necessary to decide in this application whether the Act of the Australian Parliament would be interpreted to permit or require that conclusion.

The ground principally relied on in this application was that the decision of the Tribunal depended on a finding of fact for which there was no evidence.  That contention was rejected both by a single judge and by the Full Court of the Federal Court of Australia.  We have reviewed their reasons.  We are not persuaded that the decision of the Full Court is attended by doubt.  In these circumstances, special leave to appeal to this Court is refused.

MR REILLY:   I seek costs, your Honour.

KIRBY J:   M Chen, the Minister has asked for an order for costs against you.  I do not know whether you have the money to pay the costs, but it is normal in circumstances such as this, if you lose the case, to have an order for costs made against you.  Whether it can be enforced is another question.  Do you wish to say anything as to why the costs should not be ordered against you?

MR CHEN (through interpreter):   Yes.  I respect the Court’s decision.  I ask the Court to dispense me with the expenses because I do not have the economic – I am not in a position to pay.  I do not have the capacity to pay. 

KIRBY J:   That may make it impossible to enforce the order for costs, but the normal order is that you have to pay the costs.

MR CHEN (through interpreter):  Maybe if you want to enforce it you have to wait till I return to China.

KIRBY J:   I am sure that that will be conveyed to the Minister.

The order of the Court is:  application dismissed with costs.

Adjourn the Court, please, until Monday, 18 October 1999 at 2.15 pm in Perth.

AT 2.54 PM THE MATTER WAS CONCLUDED