Gui, Guo Ping v Minister for Immigration and Multicultural Affairs

[1998] FCA 1592

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 504 of 1998

BETWEEN:	GUO PING GUI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		HELY J
DATE OF ORDER:		11 DECEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application for review is granted.

1. The orders made by RRT are set aside.

1. The matter is remitted to RRT for determination according to law.

1. The respondent should pay the costs of this application.

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	NG 504 of 1998

BETWEEN:	GUO PING GUI APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	11 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HELY J:        The applicant is a citizen of China who arrived in Australia on 16 July 1996.  On 8 November 1996 he applied for a protection visa.  The applicant claimed that he has a well founded fear of being persecuted by reason of political opinion, and by reason by membership of a particular social group. 

Political opinion

The applicant claimed to be a political dissident who had been engaged in pro-democracy activities.  In 1989, as part of his participation in pro-democracy demonstrations, he went onto the streets and spread leaflets, gave assistance to protesting students, and took part in protests and rallies.  He claimed to have been beaten up for defending a female student and, as a consequence, he lost a month’s salary.  He also claimed to have been involved with publications which were critical of the government, and that he was involved in writing character posters during 1989 that criticised the government.

On 29 April 1998 Refugee Review Tribunal (“RRT”) affirmed the decision not to grant a protection visa to the applicant.  RRT made the following finding:

“The Tribunal accepts the applicant had a low level of political support of the pro-democracy movement in China.  The Tribunal accepts that as a result of his support the applicant was placed on different duties and lost a month’s salary.  However, the Tribunal is of the view that the applicant’s support and political profile was at a low level and that he has not been of any interest to the authorities on this account.  The Tribunal finds that there is no real chance that the applicant will face persecution on account of his pro-democracy activities.”

This conclusion is a decision on matters of fact.  Insofar as it is a factual determination it is reviewable only on the ground set forth in s 476(1)(g) of the Migration Act, 1958, subject to the provisions of s 476(4) of the Act.  Nothing was put before me to demonstrate reviewable error on the part of RRT in making the factual findings embodied in that part of its decision which I have quoted.

Of course, the grounds on which the applicant claimed to be entitled to refugee status are not to be considered as if they were watertight compartments.  There is, or may be, an overlap between activities which are more closely associated with one ground, rather than with another.  The applicant’s case needs to be considered as a whole, and not simply on a compartmentalised basis.  I shall return to this matter later in these reasons.

Membership of a particular social group

The applicant is a homosexual.  In 1986 he met his first lover Wang Cheng.  On 8 December 1993 the applicant and his lover were caught by a police patrol team in the Wai Tan Garden.  They were chased and severely beaten and kicked by the police.  They were locked up for the night in cages.  They were asked to reveal the names of other gays.  The applicant claimed police tortured him by using electric batons on him and he was detained for three months.

On his release he rang his partner and was told that he had been killed in a car accident.  The applicant believed that his partner never recovered from his beating from the police station.

As a result of his arrest and detention the applicant was dismissed from his employment and given an adverse record on his personal file.

Of this incident RRT said:

“The Tribunal accepts that the applicant was detained and beaten by the Chinese authorities in 1993 when caught with his partner in a park in Shanghai.  At the time they were being very intimate but were not engaged in sexual intercourse.  The Tribunal accepts that as a result of this arrest the applicant lost his well paid position at an international hotel in Shanghai and that his personal file was marked.”

Gay clubs and socialising
The applicant claimed that he and some of his friends were involved in establishing a bar called “Eddy’s Bar”.  In his statement of 19 October 1996 the applicant described “Eddy’s Bar” in this way:

“This bar was open to public as one of the ordinary bars.  However, it was in fact a secret gathering place for homosexuals in Shanghai.  Normally we did not open to public over weekends in the name of friends’ birthday parties, etc.  When we homosexuals organised such activities in the bar, we sent for people to stand on guard outside.  Our activities included cultural exchange, feeling communication, entertainment, opera singing, shows, fashion shows, making new friends, etc.”

At page 6 of RRT’s decision the following appears:

“The applicant told the Tribunal that the gay community would have private parties every week and someone would keep a lookout.  They would do a show, some singing or dancing and then they would do an opera.  The applicant claimed that parties were raided by the police.  They were raided on one occasion and then after nine months raided again.  The first raid the police could not find any evidence.  The second time there were no arrests but the police talked to them.  They denied the nature of their activities.”

At page 12 of its reasons for decision RRT said:

“The Tribunal does not accept the applicant’s account of police harassment of the club, Eddy’s Bar.  The applicant’s evidence suggests that the club was subject to continued harassment and had to be moved as a result of this harassment.  An Internet document dated 20 May 1997 refers to Eddy’s Bar as having moved and increased in size ... the fact that the bar had reopened or at least moved and was much larger suggests that it has not been suppressed by the PSB although it may well be kept under scrutiny.  In fact, the information as to the location of the bar is public information on the Internet which would be available to the Chinese authorities were they interested.  This also suggests that the authorities are not concerned about the operation of the bar.

The applicant contends that in the passage quoted above the RRT member was confused, and that his observations were based on an incorrect understanding and recording of answers given by the applicant at the hearing.  He says that Eddy’s Bar was established at Yue Yang Road, Shanghai in 1994 by the applicant and certain of his friends.  In 1995, after about six months of operation, Eddy’s Bar was closed because the applicant and certain of his friends were taken by the PSB for interrogation.  In late October 1995 operations were resumed at Yue Hai Road.  It was only after the applicant’s departure from China on about 16 May 1996 that the bar moved again and was increased in size.  The fact that the Internet document on which RRT relied was dated 20 May 1997 and referred to Eddy’s Bar as having moved and increased in size, tends to support the applicant’s contention that this was something that took place after he had left China.

Summons

One of the applicant’s friends was little Yellow Hair.  He was arrested shortly prior to 16 May 1996.  The applicant claimed that little Yellow Hair had confessed that, amongst others, the applicant was involved in homosexual activities, watching sex gay videos, taking part in gay parties etc.

On 15 May 1996 a subpoena notice was issued by the Shanghai Municipal Public Security Bureau requiring the applicant to appear for interrogation in connection with an investigation of “Hooligan Promiscuity Case”.  At least one aspect of the investigation was related to a video called “Happy Wedding Banquet” which, apparently, the authorities wanted to locate.

In his statement of 19 October 1996 the applicant said:

“As I knew that disasters were coming, I asked my friends to facilitate the issuance of my travel documents.  On the night of 16 May 1996, the very same day the Subpoena Notice was served on my family, I secretly escaped to a remote countryside.  I hid myself in the countryside until I eventually was able to come here with the help of my homosexual friends.  Because of the situation that I was in, I was unable to see or say goodbye to my parents before my departure.”

The Tribunal made the following findings in relation to the 1996 summons:

“The Tribunal also has great difficulties in accepting the validity of the 1996 summons that the applicant received, he claimed, on the same day he went into hiding prior to leaving the country.  The applicant was not very clear as to what lay behind the summons except that it followed the arrest of his friends.  The Tribunal however gives the benefit of the doubt to the applicant and accepts the summons as valid.

However, the Tribunal is of the view that the summons relates to an illegal video, ”The Happy Wedding Banquet”, which the applicant’s friend states has been confiscated.  If the applicant is wanted because of his association with the possession of an illegal video, the authorities’ actions would probably fall into the category of prosecution for criminal offences.  Further there is a strong suggestion in his friend’s letter that Dr Zhou has taken responsibility for the importation of the video, which may mean that the authorities are no longer interested in the applicant.

The Tribunal finds that he is wanted in relation to an investigation into the importation of the video, that the summons relates to a potential breach of the criminal law in China and is not persecutory within the meaning of the Contention.”

Gay political activities

RRT made the following finding:

“The applicant has also claimed that the activities in setting up a club for gays, the distribution of books and videos is part of a political campaign for gay rights.  The Tribunal does not accept that the applicant has a significant gay rights profile which has brought him to the attention of the Chinese authorities.  His problems have not been because of any political activity.  His arrest and detention was not the result of political protest activity.  Although he may be wanted for the importation of an illegal homosexual video and this may have a political aspect to it, the Tribunal is not satisfied that he has a political activist profile with the Chinese authorities.”

Consideration of claim based on homosexuality

The respondent accepted, correctly in my view, that homosexuals in Shanghai constitute a “particular social group”.  The respondent also accepted  again, correctly in my view, that it is at least implicit in the findings of RRT that the applicant has a subjective fear of persecution by reason of his membership of that social group.  The issue, then, is whether that fear is well founded.  That involves a forward looking assessment of risk, because the convention requires that a contemporaneous determination be undertaken as to whether the applicant has the status of a refugee.

It is unnecessary to establish past persecution in order to establish that the applicant has the status of a refugee.  But where evidence of past maltreatment exists, it is or may be an indicator of the fate which may await the applicant should he be returned to China.  Unless there has been a major change of circumstances within China that makes prospect of persecution unlikely, past manifestations of persecution for a convention reason are probative of future risk, and may be evidence to substantiate a well founded fear of persecution.

In Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, justices of the High Court made observations which are germane to the present case. At page 391 Mason CJ said:

“The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr Chan’s fear of persecution.  In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear dissipated.  While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality.”

At page 399 of the report Dawson J said:

“Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status.  That must be so in the present case where the delegate in his reasons did not seek to point to any significant change in the attitude towards the appellant on the part of the authorities in the People’s Republic of China.”

At page 406 of the report Toohey J said:

“If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration.  In an appropriate case the change (such as a new government) may remove any basis for a well founded fear of persecution.”

At page 415 Gaudron J said:

“The definition of ‘refugee’ looks to the mental and emotional state of the applicant as well as to the objective facts.  It is a commonplace, encapsulated in the expression ‘once bitten, twice shy’; that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience.  Although the definition requires that there be ‘well-founded fear’ at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant’s own past experiences.  If an applicant relies on his past experience it is, in my view, encumbent on a decision maker to evaluate whether those experiences produced a well founded fear of being persecuted.  If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality.  To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted view as to its application to persons who have suffered persecution.”

Here, the applicant was the victim of persecutory conduct in 1993, and did not leave China until 1996.  Hence there is not the same contemporaneity between persecution and flight as there was in Chan.

RRT made two important findings on page 11:

• The applicant is a homosexual who at least in the events of 1993, has faced harassment on that basis.

• The (present) situation in Shanghai is that homosexuals can be and are the subject of police harassment.

Other findings which are of importance are:

• There is a large and to an extent visible gay community in Shanghai (p 13).

• Police harassment of the gay community is not severe at the current time (p 12).

• A more tolerant attitude to homosexuals is emerging, but despite this improvement, the rights of gays are repeatedly encroached on, especially during social crackdowns (p 10).

In my opinion, those findings would sustain a conclusion that the applicant’s fear of persecution by reason of his homosexuality is well founded.  RRT accepts the subjective existence of the fear, and that it is grounded in past persecutory conduct engaged in for a convention reason.  The findings to which I have referred do not establish that the objective foundation for a fear of persecution has been removed.  All that they establish is that the likelihood of persecutory conduct actually occurring at the present time is less than was formerly the case (provided there is no social crackdown occurring, and subject, perhaps, to homosexual behaviour being “discrete”).  There is still “a course of systemic conduct” (per McHugh J in Chan at p 30) in the sense of selective as opposed to random or ad hoc harassment, directed at homosexuals in Shanghai because of their homosexuality.

However, RRT’s conclusion was that the applicant “does not face a real chance of persecution by reason of his homosexuality” on return to China because:

• The applicant’s own evidence is that since 1993 he has been able to take part in an active gay community.

• In 1993 the applicant was caught in a public place with his partner kissing and cuddling which is unacceptable according to the cultural norms prevailing in China.

• He has not been arrested or detained on any other occasion.

The first and third of those propositions do not negate or qualify:

• The finding of a subjective fear on the part of the applicant of persecution by reason of his homosexuality.

• The finding that such fear is grounded in past persecutory conduct.

• The finding that homosexuals in Shanghai can be and are the subject of police harassment albeit a more tolerant attitude to homosexuality is emerging.

The import of the second of those propositions is not entirely clear.  On one view it is a finding that the treatment meted out to the applicant in 1993 was not by reason of his homosexuality, but by reason of his behaviour in a public place, which behaviour would be unacceptable, irrespective of the sexuality of those who participated in it.  On another view, it is a finding that a partial explanation for the treatment meted out to the applicant in 1993 lies in the fact that the applicant was not sufficiently discrete in concealing his homosexuality from the authorities.  The first view is inconsistent with the general thrust of the RRT’s reasons, and inconsistent with the specific finding that the 1993 harassment was on the basis of the applicant’s homosexuality.  The second view, in my opinion, leads nowhere.  It does not negate either the fact or the prospect of persecution on the ground of homosexuality.

The reasons for the decision under review are not to be construed minutely and finely with an eye attuned to the perception of error.  Collector of Customs v Pozzolanic (1993) 43 FCR 280, 287.

“The reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272. The Court must:

“Beware of turning a review of the reasons ... into a reconsideration of the merits.”

But here one is faced with a situation in which RRT makes findings which, in my opinion, unless negated or qualified by other findings, would result in a conclusion that the applicant has a well founded fear of persecution for a convention reason.  RRT then declines to come to that conclusion for reasons which it gives but which, in my opinion, neither negate nor qualify its earlier findings.

In my opinion, a decision reached in that way involves an error of law, because the correct application of the law to the facts as found by RRT required a different conclusion.

Illegal departure from the Peoples Republic of China

The applicant claims that he left China on a passport which he had obtained by paying a large bribe.  He claims that the authorities may view his exit from China in a particularly bad light, as he had not responded to a summons which he received from the PSB. 

RRT said of this claim:

“The penalties for leaving China illegally are not severe and are not persecutory.  The applicant claims that his travel document is legal albeit he paid a bribe to obtain it.  Although the applicant has a stained personal file, he has never been convicted of a crime.  Further, in Wu Guo Xiong & Anor v Minister for Immigration & Multicultural Affairs (unreported, Federal Court, Tamberlin J, 9 August 1995) the Court said that punishment for illegal departure from China, being the ordinary enforcement of a state’s migration law, does not of itself make a person a refugee.”

No reviewable error is disclosed by this process of reasoning.

Cumulative grounds

In view of the conclusion which I have reached there is no need to consider this issue, as the matter will be remitted to RRT for consideration according to law.  However, I do not think that RRT erred by considering the applicant’s claims in watertight compartments.  Rather, I think that RRT considered individual components of the applicant’s claim, and then considered the matter as a whole.  There is no reviewable error in the approach which RRT adopted.

Procedural errors

The applicant claimed that the RRT member acted hastily and perfunctorily in making his decision.

The applicant was afforded the opportunity of attending two hearings.  The first was on 12 February 1998.  The hearing commenced at 2.35 pm and concluded (with a 15 minute break) at 6 pm.  The second hearing was held on 19 March 1998.  It commenced at 1.10 pm and concluded at 2.40 pm.  At each hearing the applicant was assisted by an interpreter.  I do not have the transcript of either hearing before me.  The applicant claimed that he was constantly interrupted during the course of the questioning process; that the Tribunal member was not properly prepared, and that the applicant was given insufficient time to explain himself.  There was also a complaint that letters which he received from his family, and which were placed before RRT, were not mentioned in the refusal decision at all.

A large part of the applicant’s complaint, as put to me during the course of submission, was that if the Tribunal member had been better prepared for the first hearing, and had not interrupted so much, then the second hearing would have been unnecessary.  Assuming that to be so, it does not establish a breach of s 420 such as would found any claim for relief.

The applicant had provided over 200 pages of information to the Tribunal member.  There is no inconsistency between a fair hearing and one which is efficiently conducted.  The mere fact that an applicant may have been interrupted, or often interrupted does not of itself mean that the hearing was not fair, or that substantial justice was not provided.  One can imagine that cases might occur where the manner of conducting the hearing is indicative of a refusal to listen, or in which there is a constructive failure to give the hearing which the statute requires.

However, even if I were to accept what the applicant has to say on this account, I would not thereby be persuaded that the hearing given by the RRT member was not fair, nor such as was required to be given if substantial justice is to be provided.  The reasons given by RRT for its decision indicate that it was alive to the case which the applicant was seeking to put, and it made a number of findings which were favourable to the applicant’s position.

So far as the claim that RRT was not properly prepared is concerned, there is no requirement in the statute that RRT undertake any, or any particular level of preparation prior to the conduct of a hearing.  A hearing is held because RRT is not prepared to make a favourable decision “on the papers”.  The purpose of the hearing is to enable the applicant to put before the Tribunal matters which might persuade it to a different conclusion, and to afford RRT the opportunity of testing what is put forward.  Two hearings were held.  Even if the applicant’s contention that one properly conducted hearing would have been sufficient is accepted, the fact that two were held tends to suggest that RRT was at least endeavouring to give the applicant a full opportunity of presenting his case.

The applicant complained that insufficient time and opportunity was given to him to explain himself, and that he was cut off in his responses to questions with the result that he lost his train of thought.  This would only be a ground of review if it were such as would result in a failure to comply with s 420.  I cannot conclude, simply upon the basis of the applicant’s description of his perception of the way in which the hearing was conducted, that there has been a failure to comply with s 420 in that respect.

I have read the letters from the parents.  They appear to be largely irrelevant, except to the extent that they might tend to establish a belief on the part of the parents that the applicant was exposed to a risk of arrest should he return to China.  The letter of 22 October 1996 contains this statement:

“Guo Ping my son, Dad and Mum want to ask you something here; why are they trying to arrest you now?  Is it because the case some years ago is still pending?  We really can’t understand.  You have always been a law abiding good child.  How have you come to such a stage?”

After some hesitation, RRT accepted as genuine the subpoena notice served on the applicant on 16 May 1996.  The passage from the parents’ letter which I have quoted indicates that they had no personal knowledge of what it is that underlies any desire on the part of the authorities to arrest the applicant.  Hence there is no particular reason for thinking that the contents of their letters, even if accepted at face value, would materially advance the claim which the applicant was seeking to establish.

In any event, the duty to give reasons does not require that each and every piece of evidence put forward in support of the applicant’s case be specifically dealt with.  In my opinion, this ground fails.

Conclusion

1. The application for review is granted.

1. The orders made by RRT are set aside.

1. The matter is remitted to RRT for determination according to law.

1. The respondent should pay the costs of this application.

I certify that this and the preceding eleven (11) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely

Associate:

Dated:             11 December 1998

Applicant:	In person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	R Cheetham Australian Government Solicitor
Date of Hearing:	3, 4 December 1998
Date of Judgment:	11 December 1998