CPR18 v Minister for Home Affairs

[2020] FCCA 552

FEDERAL CIRCUIT COURT OF AUSTRALIA

CPR18 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 552

Catchwords:
MIGRATION – Administrative Appeals Tribunal – protection visa – applicant convicted of drug trafficking related offences in Australia – whether the applicant faces risk of re-prosecution in home country – whether applicant faces risk of death penalty in home country – whether the Tribunal’s decision was infected with jurisdictional error because of a failure to correctly apply the Chinese Criminal Code and/or Mutual Assistance (Criminal Matters) Act 1987 – no jurisdictional error established – application for review dismissed with costs.

Legislation:
Criminal Law of the People’s Republic of China 1997
Migration Act 1958, ss.444, 499
Mutual Assistance (Criminal Matters) Act 1987
Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007

Cases cited:
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
CGA15 v Minister for Home Affairs [2019] FCAFC 46
Hossain v Minister for Immigration and Border Protection [2018] HCA 34
JC (China CG) [2008] UKIAT 00036
Minister for Immigration v MYZTS [2013] FCAFC 114
Minister for Immigration & Citizenship v SZMDS [2010] HCA 16
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

First Applicant: CPR18

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File number: MLG 1378 of 2018

Judgment of: Judge Blake

Hearing date: 9 December 2019

Date of last submission: 17 December 2019

Delivered at: Melbourne

Delivered on: 13 March 2020

REPRESENTATION

Advocate for the Applicant: Dr McBeth

Solicitors for the Applicant: Clothier Anderson & Associates

Counsel for the First Respondent: Mr Brown

Solicitors for the Second Respondent: Australian Government Solicitor

ORDERS

1. The Application filed on 18 May 2018 and amended on 15 February 2019 be dismissed.

2. The Applicant pay the First Respondent’s costs of the proceeding fixed in the sum of $7,467.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1378 of 2018

CPR18

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Administrative Appeals Tribunal (‘Tribunal’) on 19 April 2018. In that decision, the Tribunal affirmed a decision of a delegate of the Minister not to grant the Applicant a Protection (Class XA-866) Visa (‘visa’). 

2. For the reasons that follow, I have decided to dismiss the application.

Background

1. The Applicant is a Chinese national. He arrived in Australia as the holder of a valid student visa on 29 March 2005.

2. On 18 December 2013, the Applicant was arrested by the Australian Federal Police (‘AFP’) and subsequently charged with, and later convicted of, drug trafficking related offences. He received an effective sentence of 5 years and 6 months, and was released from prison and placed into immigration detention on 17 October 2017.

3. The Applicant lodged an application for the visa the subject of these proceedings on 1 September 2017.

4. A delegate of the Minister (‘delegate’) refused to grant the visa on

   
   

   15 November 2017.

5. The delegate’s decision was affirmed by the Tribunal on 19 April 2018 (‘Decision’).

6. On 18 May 2018, the Applicant filed his application for review in this Court.

7. When the matter came before me for hearing on 9 December 2019, the Court had before it the written submissions of the Applicant and the Minister. The Court also had before it, and considered:

   a)An affidavit of Sanmati Verma affirmed 18 May 2018 filed on the behalf of the Applicant;

   b)An affidavit of Catherine Jane Farrell affirmed 18 November 2019 filed on behalf of the Applicant;

   c)A document from the Home Office entitled ‘Country Policy and Information Note China: Fear of punishment for crimes for which the person was already charged in another country (‘Double jeopardy’ of re-prosecution) version 2.0’ dated March 2018. This document was tendered into evidence during the hearing and was marked as exhibit ‘M1’ (‘2018 Home Office Note’).

8. As the 2018 Home Office Note was tendered into evidence during the hearing by the Minister, and the Applicant had not seen the document prior to the hearing, I gave the Applicant leave to file post hearing submissions in respect of that document. Those submissions were received and were considered by me in the course of preparing this decision.

The Applicant’s claims for protection

1. The Applicant’s claims for protection before the Tribunal were set out in a written submission, reproduced at pages 106 – 116 of the Court Book. In summary, those claims included the following:

   a)that he may be subject to ‘double jeopardy’ and so was at risk on return to China of being detained, interrogated and punished for the conduct that had underscored his convictions in Australia;

   b)the Applicant identified himself as a member of a particular social group, a ‘victim of double jeopardy’, that he said operated such that Chinese courts could prosecute and punish Chinese citizens who had committed crimes overseas; and

   c)the Applicant claimed that a Departmental officer had released information to the Chinese authorities about his criminal record.

Grounds of the Application for Review

1. The Application filed in this Court on 18 May 2018 was amended on

   
   

   15 February 2019 (‘Application’). The Application contains seven grounds of review.  At the hearing, the Applicant indicated that ground seven was not pressed. Accordingly, it remained for the Court to consider and determine the remaining six grounds.

Ground 1 

1. The first ground of review is as follows:

   ‘The decision of the Tribunal was based on a finding that was irrational, namely that there had been no direct communication from the Department or any other Australian agency to the Chinese authorities regarding the applicant's arrest, conviction or imprisonment.

   Particulars

   a) The Tribunal had before it information from officers of Australian Border Force asserting that there had been no contact between specific teams within Australian Border Force and the Chinese Consulate-General or other Chinese authorities.

   b) There was no information before the Tribunal relating to whether or not there had been any communication between other Australian government agencies or organs and Chinese authorities regarding the applicant.

   c) The Tribunal's definitive statement at [55] that there were no communications "from the Department or any other Australian agency" to the Chinese authorities could not rationally be inferred from the evidence before the Tribunal.’

2. An issue before the Tribunal was whether the Applicant would attract adverse attention from the Chinese authorities because of his criminal convictions. The Tribunal recognised this at paragraph [32] of its Decision.

3. Against the background above, the Applicant took issue with the finding in paragraph [55] of the Decision. That paragraph relevantly provides as follows:

   ‘55. The Tribunal does not accept that the PRC authorities directly know about the applicant’s arrest, conviction and imprisonment, for any of the reasons that the applicant has stated: ….(c) any direct communication from the Department or other Australian agencies to date (there was none);…’.

4. The Applicant contended that the finding above could not be rationally inferred from the evidence that was before the Tribunal.  That evidence, relevantly, is set out at pages 132 – 142 of the Court Book. The material discloses that, among other things, there had been no contact between certain specified divisions/organisations and the Chinese authorities. The Applicant says that this evidence is an insufficient basis for the finding set out at paragraph [55] of the Decision. Consequently, the Applicant says the finding is irrational. He relies, among other things, on the comments of the Full Court of the Federal Court of Australia in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45].

5. There are two reasons why I have decided to dismiss this ground of review.

6. It is important to note that the Tribunal’s finding was responsive to the Applicant’s submission that a Departmental official had released information to the Chinese authorities. So much is apparent from paragraph [45] of the Decision, where the Tribunal stated as follows:

   ‘The applicant wrote in his pre-hearing submission that a Departmental official released information to the PRC Consulate General, revealing his criminal record to the Chinese authorities’

7. It was in response to this submission that the Tribunal made an express enquiry of the Department (Court Book pages 132 and 134) as to whether any information had been disclosed.  Those enquiries produced answers from specific teams beyond the Department. The matters were then put to the Applicant for comment or response. Against this background, the Tribunal’s finding was not irrational. There was a basis in the evidence for the finding: such evidence being that a concern had been raised, enquiries had been made in respect of the concern raised, and information received addressing that concern. The Tribunal’s finding is to be understood in that context.

8. To the above, I would add the following. The Applicant’s attack on paragraph [55] of the Decision goes to the knowledge that the Chinese authorities have about the Applicant’s activities, in particular, his conviction in Australia for drug offences. It is therefore important, in assessing this ground, to consider what view the Tribunal ultimately took about whether the Chinese authorities might be informed about the Applicant’s activities and convictions.

9. When the Decision is examined in its entirety, it can be seen that the Tribunal ultimately accepted there was a real chance the Chinese authorities would learn of the Applicant’s conviction upon his return to China, and based its assessment on this fact.

10. The key finding of the Tribunal in this respect is set out in paragraph [110] of the Tribunal’s Decision. Paragraph [110] of the Decision provides as follows:

    ‘110. The Tribunal nonetheless cannot rule out the possibility that the PRC authorities would interview the applicant on his return, particularly if he were deported and/or escorted; that they suspect or give the applicant the impression that they suspect his involvement in criminal activities; and that they might learn about his criminal conviction in the course of any interview on return. The Tribunal it finds there is a very small, but nonetheless real, chance that the PRC authorities will learn about the applicant’s conviction upon his return to China. It now proceeds to assess whether there is a real chance of him facing re-prosecution for drug offences, and the associated harm (such as reported harsh, degrading prison conditions, beatings, sexual assaults and the like).’ (sic)

11. It can be seen from the above that the Tribunal found there was a ‘small, but nonetheless real’ chance that the Chinese authorities would learn about the Applicant’s conviction upon his return to China. Having accepted that there was a ‘real’ chance the Chinese authorities would come to know of the Applicant’s convictions, the Tribunal proceeded to assess the risks to the Applicant on the basis that the Chinese authorities would know of the Applicant’s background. So much is clear from the express statement to that effect contained within paragraph [110].

12. The consequences of this is that even if the Tribunal made the error alleged by the Applicant and discussed earlier, that error was not material to its decision: see CGA15 v Minister for Home Affairs [2019] FCAFC 46 at [59]. This is because, as noted above, the Tribunal ultimately made its decision on the basis that it could not rule out the possibility that the Chinese authorities would come to know of the Applicant’s activities.

13. The Applicant submits that there is a difference between the Chinese authorities finding out about the Applicant’s convictions from direct government to government communication, compared with the Chinese authorities finding out about the Applicant’s convictions upon his return to China. That proposition was not meaningfully elaborated on, and I was not taken to any information that would support such a proposition. The critical issue it seems to me was addressed as the Tribunal itself identified at paragraph [32] of the Decision; ‘whether there are any circumstances that might lead them [the Chinese authorities] to learn about his [the Applicant’s] convictions’.  

14. Here, a circumstance was identified that may lead the Chinese authorities to learn about the Applicant’s conviction. That circumstance was the Applicant’s return to China. Having identified that circumstance, the risk assessment undertaken by the Tribunal took account of that circumstance – their knowledge of his convictions. Having taken that circumstance into account, the Tribunal was ultimately not prepared to accept the Applicant faced the requisite risks.

15. I therefore dismiss ground one of the grounds of review.

Ground 2

1. The second ground of review in the Application is:

   ‘The decision of the Tribunal was based on a finding that was irrational, namely that the criminal conduct of the applicant had no political character.

   Particulars

   a) The Tribunal found at [85], "There is ample evidence to indicate that drug trafficking offences are viewed seriously in China, and that this has acquired an added political dimension in recent years.”

   b) The Tribunal accepted that the applicant had been convicted for his involvement in importing illicit drugs into Australia from China.

   c) The Tribunal found at [120] that it was "not satisfied that the criminal conduct of the applicant and his associates in Australia had any political character."

   d) The Tribunal's finding at [120] cannot be reconciled with its own earlier finding regarding the political dimension to drug trafficking offences in China nor with the evidence before the Tribunal that the importance attached by Chinese authorities to cracking down on drug offenders was a political factor influencing the use of double jeopardy prosecutions in China.

   e) The Tribunal's irrational finding was central to the Tribunal's assessment of the risk faced by the applicant of being re-prosecuted and facing the death penalty in China and thus to the disposition of the review.’

2. The Applicant submits that the irrationality complained of under this ground of review arises from a comparison of two paragraphs of the Tribunal’s Decision. The two paragraphs at issue are paragraphs [85] and [120] of the Decision.

3. Paragraph [85] of the Decision provides as follows:

   ‘85. There is ample evidence to indicate that drug trafficking offences are viewed seriously in China, and that this has acquired an added political dimension in recent years.’

4. Paragraph [120] of the Decision provides as follows:

   ‘120. Finally, the Tribunal is not satisfied that the criminal conduct of the applicant and his associates in Australia has any political character, either because of the PRC government’s campaign against drugs or because it undermines China’s relations with Australia.’

5. The Applicant’s submission about these two paragraphs is a straightforward one: that the finding at paragraph [120] cannot be reconciled with the earlier finding at paragraph [85]. Put another way, the finding that the Tribunal was not satisfied that the criminal conduct of the Applicant has any political character is irrational when one has regard to the statement in paragraph [85] of the Decision that drug trafficking offences in China are viewed seriously and have acquired ‘an added political dimension’ in recent years.

6. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence and the decision either does not come to that conclusion, or if the decision was simply not open on the evidence, or if there is not a logical connection between the evidence and the conclusion drawn. It is not the point that the same evidence might give rise to difference processes of reasoning, or if reasonable minds may differ in respect of the conclusions drawn: Minister for Immigration & Citizenship v SZMDS [2010] HCA 16 at [131]. For a decision to be vitiated for jurisdictional error based on illogical or irrational findings of fact, ‘extreme’ illogicality must be shown: Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [148].

7. Reviewing the Tribunal’s Decision in context reveals the following:

   a)The statement in paragraph [85] of the Decision is a statement directed generally at the circumstances in China. So much is plain not only from the words used in the statement itself but also because it falls under that part of the Decision where the Tribunal is discussing the Country Information available to it.

   b)The assessment of the Applicant’s position by the Tribunal begins at paragraph [92] of the Decision. Importantly, in the context of ground two of the grounds of review, the Tribunal’s consideration of the circumstances pertaining to the Applicant commences at paragraph [112] of the Decision, where there is a recitation of the Applicant’s specific claims. That relevantly includes a recitation of the claim by the Applicant that ‘there is a political element to his case, because he undermined the PRC government’s pursuit of strong relations with Australia, by failing to obey Australian laws’.

   c)At paragraph [117] of the Decision, the Tribunal assesses, inter-alia, the Applicant’s claims, including his claim in relation to ‘political factors’. Among other things, the Tribunal states ‘furthermore, the Tribunal does not accept that an individual’s criminal activities (even in concert with [co-offenders]) involve any “political factors” that could affect bilateral relations between China and Australia, or, even against the backdrop of a domestic anti-drug campaign, could be said to involve “political factors”’.

   d)Then, at paragraph [120] of the Decision, the Tribunal makes the finding complained about by the Applicant that the Applicant’s criminal conduct is not of a ‘political character, either because of the PRC government’s campaign against drugs or because it undermines China’s relations with Australia’.

8. When the above paragraphs are taken into account, it can be seen that the Tribunal moves from a general statement about the situation in China (as disclosed from Country Information) to an active consideration of the Applicant’s claims. That includes a careful assessment of whether there is any political dimension to the Applicant’s claims for protection.

9. That, however, is not the end of the matter. Having undertaken the exercise above, and having recorded its finding at paragraph [120], the Tribunal records the following finding at paragraph [121] of the Decision:

   ‘121. In sum, the Tribunal accepts that the applicant’s drug conviction, against the backdrop of the government’s anti-drug campaign, increases slightly the risk that the PRC authorities will examine his circumstances and consider the possibility of re-prosecuting him. However, it finds that this risk remains extremely low, and well below a real chance.’

10. What paragraph [121] discloses is that the Tribunal accepted that there was an increased risk that the Chinese authorities would examine the Applicant’s circumstances and consider re-prosecuting him as a result of his drug conviction, which occurs against the ‘backdrop of the government’s anti-drug campaign’. Having accepted the slight increase in risk, however, the Tribunal finds that the risk ‘remains extremely low, and well below a real chance’. On that basis, at paragraph [122] of the Decision, the Tribunal finds that there is not a real chance of the Applicant experiencing serious harm upon return to China.

1. Given the matters above, I am satisfied that there is not any irrationality when paragraph [85] is considered alongside paragraph [120] of the Decision.  For the reasons set out above, the two statements are directed at different considerations. The Tribunal accepted that drug convictions had a political dimension in China, but the evidence in the present matter as it related to the Applicant and his circumstances did not elevate, to the level required, the risk of re-prosecution in China faced by the Applicant.

2. For the above reasons, ground two of the grounds of review should be dismissed.

Ground 3

1. The third ground of review in the Application is:

   ‘The decision of the Tribunal was affected by jurisdictional error in that the Tribunal's reasoning was based on unwarranted assumptions and/ or a mistake of law regarding mutual assistance in criminal matters between Australia and China.

   Particulars

   a) The Tribunal accepted that the Australian Federal Police had been tipped off by the Chinese NNCCC about the drug shipment in connection with which the applicant was arrested and convicted in Australia.

   b) The Tribunal's reasoning was based on a presumption that the Chinese authorities would not have been notified of any developments in the applicant's criminal case beyond the details that were known at the time of the tip-off.

   c) The Tribunal failed to appreciate that Australia has a legal obligation under the Mutual Assistance (Criminal Matters) Act 1987 and the Mutual Assistance in Criminal Matters (The People's Republic of China) Regulations 2007 to provide to Chinese authorities "the widest measure of mutual assistance in connection with investigations, prosecutions and proceedings related to criminal matters", including notifying the results of criminal prosecutions.

   d) The Tribunal's assessment of the risk of the applicant facing the death penalty on return to China was based on the Tribunal's unwarranted assumptions and/or a mistake of law as to the obligations of Australia in relation to China in mutual assistance in criminal matters.’

2. Under this ground of review, the Applicant takes issue with the finding of the Tribunal in paragraph [110] of the Decision.  That paragraph has been set out earlier in paragraph [22] of this decision. The Applicant alleges the statement that the chance that the Chinese authorities would learn about the Applicant’s conviction upon return to China was ‘very small’ is defective for two reasons. Firstly, because it is a statement based entirely on the possibility that the Chinese authorities may interview the Applicant upon his return to China. Secondly, the Applicant submits that no consideration has been given to the Mutual Assistance (Criminal Matters) Act 1987 (‘MA Act’) or Mutual Assistance in Criminal Matters (The People’s Republic of China) Regulations 2007 (‘MA Regulations’). 

3. In support of his submissions, the Applicant took me to the MA Regulations. Article 1 of those Regulations requires the parties ‘to grant to each other the widest measure of mutual assistance in connection with investigations, prosecutions and proceedings related to criminal matters’. The Applicant emphasised Item 3(j) of Article 1. Item 3(j) specifies that the assistance is to include ‘notifying results of criminal proceedings and supplying criminal records’. Further, Article 3 stipulates that the Central Authorities designated by the parties ‘shall communicate directly with each other for matters concerning mutual legal assistance’.

4. In respect of the above matters, the Applicant says that the Tribunal failed to recognise the reciprocal obligations imposed by the MA Regulations in circumstances where it was the Chinese authorities that had tipped off the Australian authorities as to the Applicant’s criminal activities. By failing to recognise the obligations in the MA Regulations, the Tribunal proceeded on a false understanding of Australian law.

5. It is important to observe at the outset that this claim was not a claim before the Tribunal. The Tribunal’s findings dealt with the case advanced by the Applicant – that is, that the Chinese authorities had knowledge of his offending because the notification to the AFP had come from China. This claim was considered and the Tribunal found there was nothing to suggest Chinese authorities would have identified the Applicant through details provided in the tip off. The finding was open to it.

6. In this context, it is unsurprising that submissions were not put to the Tribunal about the effect of the MA Act or the MA Regulations were not made to the Tribunal. The Tribunal did not have before it, and did not consider, either the MA Act or the MA Regulations.

7. The issue then becomes whether this had a material effect on the Tribunal’s assessment of the risk of harm faced by the Applicant.

8. In CGA15 it was noted at [58] that ‘it is established that illogical reasoning by a decision-maker on the way to a final conclusion may establish jurisdictional error’. In ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174, a Full Court of the Federal Court of Australia said that illogicality or irrationality may be considered not only in relation to the end result, but also to fact finding which leads to the end result.

9. It is necessary for a Court to be satisfied that the illogical or irrational reasoning was ‘material’ to the ultimate decision, in the sense that it deprive an applicant of the realistic possibility of a successful outcome: CGA15 at [59] quoting Hossain v Minister for Immigration and Border Protection [2018] HCA 34 at [30]-[31].

10. In the present matter, the Tribunal assessed the risk that the Chinese authorities would learn of the Applicant’s conviction upon his return to China. A reading of paragraph [110] of the Decision, in my view, discloses that the Tribunal considered the prospect of the Chinese authorities finding out about the Applicant’s conduct by this means (that is, upon his arrival in China) as being ‘very small’. That is not, however, the end of the matter. As paragraph [110] of the Decision discloses, the Tribunal found there was ‘a very small, but nonetheless real, chance’ (emphasis added) that the Chinese authorities would learn about the Applicant’s conviction upon his return to China.  The analysis that the Tribunal then proceeded to conduct to assess the risk to the Applicant proceeded on the basis that there was a ‘real chance’ that the Chinese authorities would learn of the Applicant’s conviction.

11. When regard is had to the above matters, the following in my view becomes apparent. First, this was not a claim that was before the Tribunal, and the finding made by the Tribunal was open to it. Second, as a result, the Tribunal did not take account of the MA Act or the MA Regulations. Any failure to take account of the MA Act or MA Regulations was not material to the ultimate decision. This is because the assessment undertaken by the Tribunal proceeded on the basis that there was a ‘real chance’ the Chinese authorities would come to know of the Applicant’s criminal convictions.

12. For these reasons, I dismiss ground three of the grounds of review.

Ground 4

1. The fourth ground of review in the Application is:

   ‘The decision of the Tribunal was affected by jurisdictional error in that the Tribunal’s reasoning was based on unwarranted assumptions and/or a mistake of law regarding the application of the Chinese Criminal Code to the applicant's conduct, or alternatively, the Tribunal failed to have regard to material before the Tribunal.

   Particulars

   a) The Tribunal assessed the risk of the applicant facing the death penalty on return to China by reference to the amounts of pure drugs in relation to which the applicant was convicted in New South Wales and by comparing those amounts to the amounts described in the Chinese Criminal Code.

   b) The Tribunal failed to have regard to article 357 of the Chinese Criminal Code, to the effect that the calculation of the quantity of a drug is not to be converted by reference to the purity of the drug.

   c) The Tribunal's finding at [119] that the applicant's offence corresponded with prison terms of at least seven years (for one offence) and between three and ten years (for another offence) was based on an unwarranted assumption or a mistake of law regarding the Chinese Criminal Code, or alternatively a failure to have regard to article 357 of the Chinese Criminal Code.

   d) Further and alternatively, the Tribunal failed to have regard to the evidence before it that the Chinese authorities understood the importation with which the applicant was connected to be of 2 kg of methamphetamine.

   e) The Tribunal's erroneous assessment of the weights of the drugs involved and the penalties applicable under the Chinese Criminal Code was central to its assessment of the risk of the applicant facing the death penalty upon return to China.

   f) Further and alternatively, the Tribunal failed to consider the comments of the sentencing judge in the District Court of New South Wales in the context of article 347(5) of the Chinese Criminal Code, to the effect that the applicant could be said to be involved in organised international drug trafficking, which carries the death penalty.’

2. In order to understand the Applicant’s claims in respect of this ground of review, it is helpful to set out the relevant background.

3. First, it is necessary to consider paragraph [119] of the Decision.  There, the Tribunal discusses, inter-alia, the type and amount of drugs imported by the Applicant, the prison term he received in Australia, and the penalties applicable for those offences under the law in China.  Paragraph [119] of the Decision is as follows:

   ‘119. The applicant also contended that the PRC authorities are likely to view his punishment as lenient. In an apparent reference to the DFAT or similar country information, he suggests that the PRC authorities will be motivated to re-sentence him on his return, given the severity of the offence.

   ·  The applicant’s conviction – for importing just over 30 grams of methamphetamine and attempting to import 1,370 grams of the precursor ephedrine – appears to correspond with the offence in articles 347 and 350 of the Criminal Code, which attract prison terms of at least seven years, and between three and ten years respectively. The applicant was sentenced to five years and six months imprisonment, with a non-parole period of three years four months.

   ·  The Tribunal finds this to be a weak and speculative claim. First, it presupposes that the PRC authorities will find out about the conviction, and investigate further. Second, it seems to suggest that the PRC authorities will often, or always, consider that punishments for drug offences abroad fall short of Chinese standards. If that were so, the Tribunal considers that there would be some information to indicate that large numbers of drug offenders (particularly those returning from Western countries) were being re-sentenced. Also, in the present case, the applicant was indeed given a custodial sentence of more than five years – with more than three served. While the Tribunal notes DFAT’s and others’ view that the PRC authorities consider the severity of punishment meted out in the other country, there is no suggestion that this requires an exact equivalency in the punishments in both countries.’

4. It is then necessary to consider Article 347 and Article 357 as set out in Part 1, Chapter 1, and Part 2, Section 7 respectively, of the Criminal Law of the People’s Republic of China 1997 (‘Criminal Code’). The relevant parts of Article 347 are as follows:

   ‘Article 347

   Whoever smuggles, traffics in, transports or manufactures narcotic drugs, regardless of the quantity involved, shall be investigated for criminal responsibility and given criminal punishment.

   Whoever smuggles, traffics in, transports or manufactures narcotic drugs and falls under any of the following categories, shall be sentenced to fixed-term imprisonment of 15 years, life imprisonment or death and also to confiscation of property:

   ·  (1) persons who smuggle, traffic in, transport or manufacture opium of not less than 1,000 grams,  heroin or methylaniline of not less than 50 grams or other narcotic drugs of large quantities;

   ·  (2) ringleaders of gangs engaged in smuggling, trafficking in, transporting or manufacturing narcotic drugs;

   ·  (3) persons who shield with arms the smuggling, trafficking in, transporting or manufacturing of narcotic drugs;

   ·  (4) persons who violently resist inspection, detention or arrest to a serious extent; or

   ·  (5) persons involved in organized international drug trafficking.

   Whoever smuggles, traffics in, transports or manufactures opium of not less than 200 grams but less than 1,000 grams, or heroin or methylaniline of not less than 10 grams but less than 50 grams or any other narcotic drugs of relatively large quantities shall be sentenced to fixed-term imprisonment of not less than seven years and shall also be fined.’

5. Article 357 provides as follows:

   ‘Article 357

   The term "narcotic drugs" as used in this Law means opium, heroin, methylaniline (ice), morphine, marijuana, cocaine and other narcotic and psychotropic substances that can make people addicted to their use and are controlled under State regulations.

   The quantity of narcotic drugs smuggled, trafficked in, transported, manufactured or illegally possessed shall be calculated on the basis of the verified amount and shall not be converted according to its purity.’

6. There are then the remarks of Judge Lakatos, who sentenced the Applicant and his co-accused in the District Court of New South Wales (‘Sentencing Judge’). The passage that is relevant to this ground of review is as follows:

   ‘The consignment was examined and found to contain about 200 grams of methamphetamine, in electric hair curling irons. A subsequent examination showed an amount of 45 grams of methamphetamine and approximately 24.7 grams of ephedrine. The methamphetamine ranged in purity between 20.5% and 73.1% and ephedrine between 17.5% and 70.5%. Pure weights of the drugs respectively were, methamphetamine 30.2 grams, ephedrine 22 grams.’

7. The Applicant says that when the above matters are considered the following errors are disclosed: First:

   a)Article 357 of the Criminal Code, unlike the law in New South Wales, is concerned with what is found to be the ‘verified amount’ of the drug in question. The Criminal Code is not concerned with the weight of drugs ‘converted according to purity’.

   b)The Tribunal in paragraph [119] of the Decision referred to the pure quantity of methamphetamine imported (being 30 grams).

   c)The Tribunal used the figures above (the pure quantities of the drugs) for the purposes of ascertaining sentences likely to be imposed on the Applicant under the Criminal Code.

   d)By taking the step above, the Tribunal was in error. The error is that sentences passed under the Criminal Code are based on the verified quantity of the drugs, not the pure quantity.

   e)As a consequence of the error above, the Tribunal wrongly considered that the Applicant had imported less than 50 grams of methamphetamine. Its reasoning therefore proceeded on the basis that the Applicant faced in China a prison term of ‘not less than seven years’

   f)In fact, the Applicant had imported more than 50 grams of ‘non-pure’ methamphetamine (being 200 grams of methamphetamine). The consequence under Article 347 of the Criminal Code was that the Applicant faced a harsher sentence under the Criminal Code being life imprisonment or the death penalty.

8. The second error identified by the Applicant was that Tribunal did not have regard to whether the Applicant was engaged in ‘organized international drug trafficking’, which under the Criminal Code attracts the death penalty.

9. The above submission proceeded along the following lines. The Sentencing Judge made comments in connection with the nature of the importation of the drugs that meant that the conduct of the Applicant could be characterised as ‘organized international drug trafficking’. Article 347 of the Criminal Code has the effect that a person involved in ‘organized international drug trafficking’ may be subject to ‘death’. 

10. The comments made by the Sentencing Judge that are said to support the view that the Applicant was engaged in ‘organized international drug trafficking’ are set out at page 71of the Court Book, and in summary are as follows:

    a)that the conduct of the Applicant (among others) was ‘objectively serious’;

    b)that the ‘operation was commercial and professional and the offenders were acting in combination’; and

    c)that ‘it is clear that none of the three were in the role of principal, but all three were intermediaries and important ones in the importation and prospective dealings with the drugs and precursors’.

11. I deal with the first error identified above. A review of this error begins with close attention being paid to the Sentencing Judge’s remarks. When those remarks are looked at, the following is disclosed:

    a)There was an initial examination of the drugs consignment that was found ‘to contain about 200g of methamphetamine’ (emphasis added).

    b)There was ‘A subsequent examination [that] showed an amount of 45 grams of methamphetamine and approximately 24.7 grams of ephedrine.’

    c)The Sentencing Judge then discusses the purity of the drugs in question: ‘The methamphetamine ranged in purity between 20.5% and 73.1% and ephedrine between 17.5% and 70.5%’.

    d)Finally, the Sentencing Judge sets out the pure weights of the drugs: ‘Pure weights of the drugs respectively were, methamphetamine 30.2 grams, ephedrine 22 grams’.

12. From the above, it can be seen that the Sentencing Judge referred finally to a gross or verified amount of ‘45 grams’ of methamphetamine, and a pure weight of methamphetamine of ‘30.2 grams’.  

13. One then turns to paragraph [119] of the Decision. The Tribunal has only referred to the pure weight of the methamphetamine as 30 grams. The Tribunal also referred to an amount of 1370 grams of ephedrine.

14. The question that then arises is whether the reference only to the pure weight of the methamphetamine by the Tribunal has led to an error.  In my view, it has not. 

15. Firstly, the submission by the Applicant that there was a verified quantity of 200 grams of methamphetamine is not correct. In my view, the Sentencing Judge makes clear in his remarks that while the consignment of drugs was found to contain ‘about’ 200 grams of methamphetamine, a subsequent examination showed an amount of 45 grams of methamphetamine.  It is the subsequent examination that is the relevant examination of the weight of the drugs.

16. Secondly, it is the case that the Tribunal in its Decision referred to the pure weight of the methamphetamine being 30.2 grams. The reference by the Tribunal to the pure weight of the methamphetamine does not, however, alter the fact that the verified quantity of the methamphetamine in question was ‘45 grams’ as referred to by the Sentencing Judge. That amount remains under the amount specified in Article 347 of the Criminal Code that was referenced by the Tribunal in its Decision.

17. Third, verification for the conclusions above can be obtained by assessing the pure quantity of methamphetamine by reference to the verified quantity of the drug. Pure methamphetamine (30.2 grams) measured as a percentage of the verified amount of methamphetamine (45 grams) produces a purity of 67.1%. This falls within the range (20.5% to 73.1%) identified by the Sentencing Judge. In contrast, if the pure methamphetamine of 30.2 grams is measured as a percentage of the alleged verified amount of methamphetamine of 200 grams, that produces a purity of 15.1%, which is outside the range identified by the Sentencing Judge.

18. The consequence of the above is that even though the Tribunal has referred to the pure weight of the drugs, it has not resulted in a material error. That is, the Tribunal applied the correct parts of Article 347 of the Criminal Code, being those parts that relate to importation of methamphetamine where the amount involved is 50 grams or less.

1. Insofar as it is asserted that the Tribunal misapplied the provisions of the Criminal Code in relation to the attempted importation of ephedrine, such a submission in my view cannot be made out. The ephedrine is a precursor used in the manufacture of drugs. The attempted importation of ephedrine would, if the matter arose in China, be considered under Article 350 of the Criminal Code. That article is set out at paragraph [88] of the Tribunal’s Decision. It provides as follows:

   ‘Article 350

   Whoever, in violation of the regulations of the State, illegally transports or carries into or out of the territory of China acetic anhydride, ether, chloroform or any other raw material or elixir used in the manufacture of narcotic drugs or, in violation of the regulations of the State, illegally buys or sells the substances mentioned above shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also be fined; if the amount involved is large, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years and shall also be fined.

   Whoever provides another person with the substances mentioned in the preceding paragraph, while clearly knowing that the person manufactures narcotic drugs, shall be regarded as a joint offender in the crime of manufacturing narcotic drugs and punished as such.

   Where a unit commits any crime mentioned in the preceding two paragraphs; it shall be fined, and the persons who are directly in charge and the other persons who are directly responsible for the offence shall be punished in accordance with the provisions of the preceding two paragraphs.’

2. There are two things to note about Article 350 of the Criminal Code. First, its operation does not rest on whether the precursor is of a certain specified weight or amount. No error can therefore arise from the Tribunal referring to any incorrect weight of the ephedrine, because the weight of any precursor is not relevant to the operation of Article 350. Second, Article 350 imposes a term of imprisonment of not more than 3 years for illegal transport of precursors, or alternatively, a maximum punishment of 10 years imprisonment plus fines, for importation, etc., of large amounts of precursors. It makes no reference to the death penalty. Accordingly, no error can arise in respect of whether the Tribunal correctly or incorrectly referred to the weight of the ephedrine.  The Applicant did not face a risk of death in relation to the importation of ephedrine.

3. There is then the second alleged error above. In my view, the Applicant’s submissions that the remarks of the Sentencing Judge have a consequence that the Applicant was engaged in ‘organized international drug trafficking’ are not made out for the following reasons. The Applicant was not charged with such an offence. There is no finding to the effect that the Applicant was engaged in ‘organized international drug trafficking’. The comments of the Sentencing Judge, while speaking to the serious nature of the offences, and that the offenders were acting in concert, fall short of a finding that what occurred here amounted to ‘organized international drug trafficking’.

4. Finally, the Applicant sought to argue that because the Chinese authorities alerted the AFP to the consignment, and understood that consignment to be approximately 2 kilograms of methamphetamine, that fact was relevant to the likely outcome of any prosecution or re-prosecution by the Chinese authorities. An analysis of this argument begins with a consideration of the Tribunal’s reasons at paragraph [110] of the Decision. A review of that paragraph discloses that the Tribunal’s analysis of the risk of re-prosecution (including the death penalty) crystallised upon the Applicant being interviewed in connection with his conviction. It is the Chinese authorities understanding of the Applicant’s conviction that is relevant, not the information or tip they passed to the Australian authorities. The convictions align with the offences under the Criminal Code against which the Tribunal made its comparison. There was therefore no error.

5. For all of the above reasons, ground four of the grounds of review must be dismissed.

Grounds 5 and 6

1. Grounds 5 and 6 were argued together before me and it is therefore convenient to deal with them together.

2. The fifth ground of review in the Application is:

   ‘The decision of the Tribunal was based on a finding that was irrational, namely that reprosecution in China "is extremely rare".

   Particulars

   a) The Tribunal relied on a single decision of the UK Upper Tribunal from 2008 to find that re-prosecution in China is "extremely rare".

   b) The Tribunal failed to give proper consideration to the DFAT Country Information Report -People's Republic of China, 21 December 2017, which the Tribunal was obliged to consider pursuant to s 499 of the Migration Act and Ministerial Direction No 56, which provided that Chinese citizens convicted or punished abroad may face re-prosecution in China, and which did not support the finding that re-prosecution was extremely rare.

   c) The Tribunal made no finding dismissing the 2017 DFAT report or other recent country information or that it preferred the 2008 UK Upper Tribunal finding.

   d) The Tribunal's finding could not rationally be inferred from the evidence before the Tribunal.

   e) No reasonable decision maker, giving proper consideration to the 2017 DFAT report and the other information before the Tribunal, could have concluded that re-prosecution in China was extremely rare.

   f) The Tribunal's irrational finding was central to the Tribunal's assessment of the risk faced by the applicant of being re-prosecuted and facing the death penalty in China and thus to the disposition of the review.’

3. The sixth ground of review in the Application is:

   ‘The Tribunal failed to comply with s 499 of the Migration Act in failing to give proper consideration to the DFAT Country Information Report - People's Republic of China, 21 December 2017.

   Particulars

   a) Section 499(2A) prescribes a mandatory procedure for the Tribunal to comply with directions made under s 499(1).

   b) Ministerial Direction No 56 was made pursuant to s 499(1).

   c) Ministerial Direction No 56 in the circumstances required the Tribunal to give proper consideration to the DFAT Country Information Report - People’s Republic of China, 21 December 2017 (the 'DFAT report').

   d) The Tribunal failed to give proper consideration to the DFAT report.’

4. As can be seen from the above, the above grounds encapsulate a number of submissions of the Applicant. In summary, they are as follows:

   a)the Tribunal relied on a UK Upper Tribunal decision from 2008 to support its finding that re-prosecution in China is ‘extremely rare’;

   b)the Tribunal did not explain why it had regard to the information above in preference to more recent information it had available to it and this may constitute jurisdictional error: see Minister for Immigration v MYZTS [2013] FCAFC 114 at [73] – [74];

   c)the Tribunal did not have regard to more recent information available to it, including information from DFAT which was materially different to the 2008 information; and

   d)the failure to have regard to DFAT report dated 21 December 2017 constituted jurisdictional error for failure to comply with section 499 of the Migration Act 1958.

5. A consideration of these issues begins with a review of the Tribunal’s Decision. In particular, the manner in which the Tribunal considered the risks relating to re-prosecution.

6. The Tribunal begins its analysis of this issue at paragraph [76] of the Decision.  The Tribunal specifically notes at paragraph [76] that it ‘has before it a large volume of country information about the re-prosecution of Chinese nationals for crimes committed abroad’.

7. Having acknowledged the information before it, the Tribunal does two things in paragraph [77] of the Decision.  First, it expressly recognises the information as being ‘essential background’ to the assessment the Tribunal is required to make.  Second, the Tribunal notes that ‘this case turns in large part on whether it [country information] reflects actual practice, and how it applies in the circumstances of this case’.

8. The Tribunal then embarks upon an active consideration of the various sources of Country Information before it.  This includes the following:

   a)An article published in 2003 on the NSW Public Defenders website – see paragraph [78] of the Decision;

   b)A report from the Department of Foreign Affairs and Trade entitled ‘DFAT Country Information Report Peoples Republic of China, 21 December 2017’ (‘2017 DFAT Report’). Indeed, at paragraph [80] of its Decision, the Tribunal extracts paragraph 5.19 in full from the 2017 DFAT Report;

   c)Information from the Department of Home Affairs Country of Origin Information Services Section reported in the September 2016 (‘2016 COISS Report’). Once again, a large extract from the 2016 COISS Report is referred to by the Tribunal at paragraph [81] of its Decision;

   d)The 2018 Home Office Note. At paragraph [83] of its Decision, the Tribunal refers in some detail and extracts a section of the 2018 Home Office Note. Of significance in relation to this ground of review, the 2008 UK Upper Tribunal decision of JC (China CG) [2008] UKIAT 00036 (‘JC’) is referenced and discussed in the 2018 Home Office Note.

9. The following becomes apparent upon a consideration of the Tribunal’s approach which I have summarised above.

10. First, the Tribunal looked at a range of sources of information when assessing the risk of re-prosecution in China. It actively referred to the documents it considered and in some cases set out extracts from those documents.  Moreover, the Tribunal recognised that its role was not only to look at the documents but to actively consider whether the information contained within those documents reflected actual practice.

11. Second, contrary to the submission of the Applicant, the Tribunal did consider the 2017 DFAT Report. So much is apparent from the Tribunal’s reference to it in paragraph [80] of the Decision. 

12. To the extent that the Applicant asserts that the Tribunal failed to properly engage with or evaluate the 2017 DFAT Report, in my view that argument also cannot be sustained. In this respect, I refer not only to paragraph [80] of the Decision, but also to paragraph [98] of the Decision where the Tribunal actively engages with the reports before it, including the 2017 DFAT Report. By way of example, at paragraph [98] the Tribunal comments that ‘for instance, the DFAT advice seems to address only those cases where Australian authorities sought prior assurances from PRC officials in relation to a particular offender’.

13. Finally in respect of this issue, it is relevant to note that the 2017 DFAT Report was considered separately by the Home Office in the 2018 Home Office Note, which is a document that was relied on by the Tribunal.

14. Third, while it is plainly the case that the Tribunal referred to the 2008 UK case of JC, it did so by considering the commentary about that case that was contained within the 2018 Home Office Note. This is not a situation where the Tribunal simply picked up the 2008 decision of JC and applied it.  Rather, the discussion of the decision in JC was contained within the more up-to-date discussion of relevant facts and circumstances contained within the 2018 Home Office Note.  So much is apparent from paragraph [83] of the Tribunal’s Decision.

15. Fourth, the discussion of the decision of JC within the 2018 Home Office Note concludes with a consideration of that case in light of the updated circumstances. Of particular note is paragraph 2.4.4 which notes ‘the available evidence affirms the findings in JC and YF that, while there are some circumstances where a person may be at risk of ‘double jeopardy’ on return to China, generally there is not a real risk of serious harm or persecution on this basis’ (emphasis added).  The Home Office also notes at the conclusion of that paragraph that ‘The Home Office does not consider that there are very strong grounds supported by cogent evidence to depart from the findings in JC and YF’.

16. Fifth, the 2016 COISS Report referred to above states, among other things, that ‘re-prosecution in China for crimes committed overseas does not happen in practice’ - see [81] and [98] of the Decision.

17. There is then the matter of the Tribunal’s comments at paragraph [99] of the Decision. There, quite apart from referencing the sources of information and documents which it had considered in the preceding paragraphs, the Tribunal gave broader consideration to the current circumstances and whether those circumstances had disclosed any changes in the practice of Chinese authorities. Paragraph [99] of the Decision provided as follows:

    ‘99. What stands out, however, is that there has been no evidence to suggest that the UK guidance of 2008, either the broad conclusion it reached, or the numerous qualifications in the advice, require revision. Significantly, there are sizeable Chinese populations in Australia, North America and Europe (including the UK); the provisions in the PRC Criminal Code permitting re-prosecution are well-established; and the PRC’s reinvigorated campaign against illicit drugs has been underway for several years. In these circumstances, the Tribunal expects that any changes in Chinese practice – such as an uptick in re-prosecuting overseas criminal offenders, or the routine re-prosecution of drug traffickers returning from abroad – would have become known among the Chinese diaspora, and be reflected in at least some reporting or monitoring.’

18. Finally, the Tribunal did not limit itself to analysing only the matters to which I have referred above. From paragraphs [111]-[121] of its Decision, the Tribunal went on to consider whether there were any aggravating factors arising from the particular circumstances affecting the Applicant.

19. When the above matters are considered, I am satisfied that the Tribunal did not rely solely on the decision of JC. The Tribunal’s finding was based upon an extensive analysis of a range of information before it, including the 2017 DFAT Report. I am satisfied having regard to what I have set out above, that there was a logical and rational basis for the Tribunal’s findings. I am satisfied that that Tribunal gave proper consideration to the DFAT report and therefore complied with section 444 of the Act.

20. There is one final matter which I have had regard to when assessing the Applicant’s sixth ground of review. As I have previously noted, I am satisfied that the Tribunal did refer to and engage with the 2017 DFAT Report.  While the Tribunal did so, it is apparent from the text of the Decision that it also had regard to other country information.  Such an approach is not prohibited. Direction Number 56 requires a decision-maker to take into account information provided by DFAT where relevant however the decision maker is not precluded from considering other relevant information about the country.

21. For all of the above reasons, I dismiss grounds five and six of the grounds of review.

22. In light of my findings above, the Application for Review is dismissed.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Judge Blake

Associate: 

Date:  13 March 2020