Gui Sen Huang v Minister of State for Immigration & Multicultural Affairs
[1997] FCA 493
•6 JUNE 1997
CATCHWORDS
Practice and Procedure - representative proceedings - whether the Court should make a discretionary order under s 33N of the Federal Court of Australia Act (1976) that a proceeding not continue as a representative proceeding in circumstances where it appears that the applicant and some members of the group will have difficulty establishing that their claim involves a common issue of law - whether it is in the interests of justice to make an order under s 33N if to do so will, as a result of a statutory time limitation, have the effect of preventing some of the group from pursuing their claims.
Federal Court of Australia Act 1976 s 33N, s 33A, s 33C(1), s 33C(2)
Migration Act 1958 s 476, s 478
Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384
Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363
Soverina Pty Ltd v Natwest Australia Bank Ltd (1993) 40 FCR 452
GUI SEN HUANG v MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 23 of 1997
CORAM: Lehane J
PLACE: Sydney
DATE: 6 June 1997
IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 23 of 1997
GENERAL DIVISION )
BETWEEN: GUI SEN HUANG
Applicant
AND:MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM: Lehane J
PLACE: Sydney
DATE: 6 June 1997
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The motion is dismissed with costs.
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 ) No. NG 23 of 1997
GENERAL DIVISION )
BETWEEN: GUI SEN HUANG
Applicant
AND:MINISTER OF STATE FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
CORAM: Lehane J
PLACE: Sydney
DATE: 6 June 1997
REASONS FOR JUDGMENT
LEHANE J:
This is a motion by which the respondent Minister seeks an order, under s 33N of the Federal Court of Australia Act 1976 (the Federal Court Act), that these proceedings no longer continue under Part IVA of the Federal Court Act.
By his amended application the applicant, as a representative party, seeks orders for review of decisions of the Refugee Review Tribunal (the Tribunal) by which the Tribunal affirmed decisions to refuse protection visas to the applicant and six other persons, named in the amended application, who are “group members” within the meaning of s 33A of the Federal Court Act. An order is sought that each of those decisions be set aside and the matter remitted to the Tribunal for reconsideration in accordance with law.
The amended application sets out what it describes as a question of law and fact to which the claims of all the group members (including the applicant) give rise:
4.The question of law and fact common to the claims of the groups [sic] members is that each of the decisions, which were considered jointly by the RRT, was based on an incorrect interpretation of the definition of a refugee in the Convention and Protocol relating to the Status of Refugees, which definition is incorporated into Australian law by section 36 of the Migration Act 1958.
Particulars
a)The RRT took the view that a person who was a member of an unregistered religious group could not be said to be persecuted on the ground of religion if he or she had the alternative of joining a registered religious group.
b)The RRT did not accept that refusing to permit a person to practise his or her religion in the manner in which he or she wished to practise it was persecution within the meaning of the Convention and Protocol.
c)The RRT assumed that all forms of the Christian religion are the same, and that a person is not denied religious freedom by being restricted to practising one form of that religion rather than another.
The grounds of the application for review are stated as follows:
Grounds:
a)The Tribunal was required to determine whether Australia had protection obligations in respect of the applicant by applying the terms of the Convention and Protocol relating to the Status of Refugees. The Tribunal misinterpreted the term “persecuted for reasons of ... religion” in the definition of a refugee contained in the Convention, or alternatively, the Tribunal incorrectly applied that aspect of the law to the facts as found, as detailed in the above particulars under paragraph 4.
The jurisdiction which the application invokes is that conferred on the Court by s 486 of the Migration Act 1958 (the Migration Act): the decision of the Tribunal is a judicially‑reviewable decision (para 475(1)(b)) and the review, plainly enough, is sought on the ground specified in para 476(1)(e): that the decisions of the Tribunal involved an error of law, being an error involving an incorrect application of the applicable law, and perhaps additionally an incorrect application of the law to the facts as found by the Tribunal.
There is no reason to doubt that an application for review, under s 476 of the Migration Act, may in an appropriate case be made under Part IVA of the Federal Court Act by a representative party on behalf of a group of persons, if both the requirements of that Part and the requirements of the Migration Act are otherwise met: Zhang v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 384 at 403, 404 (but see my comments at the conclusion of these reasons). On its face, the application appears to meet the requirements of s 33C of the Federal Court Act for the commencement of a representative proceeding. The section provides:
33C (1) Subject to this Part, where:
(a)7 or more persons have claims against the same person; and
(b)the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c)the claims of all those persons give rise to a substantial common issue of law or fact;
a proceeding may be commenced by one or more of those persons as representing some or all of them.
(2)A representative proceeding may be commenced:
(a)whether or not the relief sought:
(i)is, or includes, equitable relief; or
(ii)consists of, or includes, damages; or
(iii)includes claims for damages that would require individual assessment; or
(iv)is the same for each person represented; and
(b)whether or not the proceeding:
(i)is concerned with separate contracts or transactions between the respondent in the proceeding and individual group members; or
(ii)involves separate acts or omissions of the respondent done or omitted to be done in relation to individual group members.
The applicant and the other group members number 7; their claims are all against the same person (the Minister); it is clear from the facts as found by the Tribunal that they all arise from the same, or related, circumstances; and the application states a substantial common issue of law to which, it is said, each of the claims give rise.
The Minister contends, however, that the requirements of para 33C(1)(c) are not met. When the Tribunal’s decisions are examined, he says, it is evident that those relating to at least the applicant and three other group members are based entirely on matters of credit and do not raise the legal question stated in the amended application. The Minister does not on that account seek to have the application struck out, dismissed or stayed (s 33ZG: see Poignand v NZI Securities Australia Ltd (1992) 37 FCR 363 at 364; Soverina Pty Ltd v Natwest Australia Bank Ltd (1993) 40 FCR 452 at 456, 457). He seeks an order under s 33N, which provides:
33N(1) The Court may, on application by the respondent or of its own motion, order that a proceeding no longer continue under this Part where it is satisfied that it is in the interests of justice to do so because:
(a)the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
(b)all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or
(c)it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.
(2)If the Court dismisses an application under this section, the Court may order that no further application under this section be made by the respondent except with the leave of the Court.
(3)Leave for the purposes of subsection (2) may be granted subject to such conditions as to costs as the Court considers just.
The basis on which, it is said, I should make such an order is that it is in the interests of justice to do so because, there being no common issue of law, it is inappropriate that the claims be pursued by means of a representative proceeding. It may seem curious that what is invoked, in a case where it is said that an essential requirement for the commencement of representative proceedings was not met, is what is clearly a discretionary power to be exercised having regard to the interests of justice. It is, however, unnecessary for the present to pursue that matter.
It is necessary to give a brief account of some of the circumstances, as they appear in the reasons given by the Tribunal. The applicant and the other group members are all Chinese nationals. They are all members of the same extended family and lived in an area of the Guangdong province. They claimed to have a well‑founded fear of being persecuted for reasons of religion. One of the group members (the uncle) said that he became interested in Christianity in 1991, after receiving religious instruction and a bible from a relative visiting from Hong Kong. He said that he established a group which met once a week to discuss the bible. The meetings were attended by, among others, two of his nephews, also group members. Those attending were aged between and 16 and 19. In 1993, the uncle claimed, he was arrested and detained for 24 hours, with his nephews, following complaints to the police from the parents of other participants in the group. Then in February 1994, he said, the police stopped a meeting of the group and beat the participants. The nephews gave evidence to the Tribunal to similar effect. The evidence before the Tribunal was that none of the three had been involved in religious activities in China after February 1994 or, subsequently, in Australia. The Tribunal considered a substantial body of material concerning the attitude of the Chinese authorities to Christian religious observances, both “authorised” and unauthorised (the consideration is repeated in precisely the same terms in the decisions relating to all group members). In relation to each of the three group members who had participated in the meetings, the uncle and the nephews, the Tribunal reached a conclusion in substantially the same terms. In the decision relating to the uncle, it concluded thus:
The Tribunal noted the applicant’s claim that he could not participate in lawful religious activities in China because he did not know of such activities and he was unable to travel beyond his local area without permission. However, the Tribunal has decided after considering information from external sources that there are many opportunities in Guangdong for Christians to practice [sic] their religion, without fearing repercussions from the authorities, and if the applicant wishes to participate in such activities in the future he will not be prevented by the government from doing so. Therefore, the Tribunal has decided that despite the applicant’s difficulties with the PRC authorities in February 1994, there is no real chance that he will suffer persecution by the PRC authorities, due to his religion, if he returns to China in the foreseeable future.
I need not consider the decisions relating to those three group members any further: the Minister accepted, for the purposes of his motion, that their claims raised the common question of law stated in the amended application
The difficulties arise from the way in which the Tribunal dealt with the claims of the applicant and his wife (who had no independent claim for protection as a refugee) and those of a second group member and his wife (also a group member, but having no independent claim for recognition as a refugee). The applicant claimed to be a Christian. He claimed to have been a member of the provincial police force and to have been treated in a discriminatory way owing to his Christian beliefs and owing to the activities of other members of his family. He claimed to have decided, with his wife and other members of his extended family, to leave China after he learnt from colleagues of a proposed severe crackdown on Christian activity. He said that he had bribed officials to obtain passports and exit permits. His evidence was that he attended two or three of the religious gatherings organised by the uncle when those attending the gatherings were experiencing difficulties with the authorities. He claimed to have no knowledge of religious services in the larger cities of Guangdong. He said that he had not participated in religious activities in Australia.
The Tribunal identified what it regarded as a number of discrepancies in the evidence given by the applicant. It summarised its view of his claim as follows:
In summary, the Tribunal has decided that the applicant’s claim that he was involved in religious activities in China and that he was at risk of being punished by the authorities due to those activities, and also punished due to the religious activities of his relatives, lacks credibility and will be disregarded by the Tribunal.
The Tribunal proceeded to find that the applicant was not a refugee. Its conclusions under the heading “Religion” should, perhaps, be quoted in full:
The Tribunal noted the applicant’s claim that he was interested in being a Christian and that he was fearful that he may experience difficulties with the PRC authorities due to his religious belief. The Tribunal also noted information from external sources ... which indicates that despite the PRC government’s regulation of religious activities in China there has [sic] been increasingly more opportunities for Chinese citizens to express their religious beliefs since the end of the Cultural Revolution. [Sources referred to by the Tribunal] indicate that millions of PRC citizens are Christians and the vast majority are able to express their religious beliefs without experiencing difficulties with the authorities. The Tribunal noted that religious activists who oppose government regulation of religious activities, and those who persist in proselytising without obtaining government permission, do experience difficulties with government authorities. However, the Tribunal has decided that there is no credible evidence presented by the applicant to indicate that he was involved in such activities or that he will be involved in such activities if he returns to China. The Tribunal noted that since the applicant arrived in Australia he has not sought to express his religious beliefs even though there are many opportunities to do so. Therefore, the Tribunal has decided that there is no real chance that the applicant will suffer persecution, by the PRC authorities, due to his religion.
It is unnecessary to consider in detail the circumstances (set out in the Tribunal’s decision) relating to the remaining two group members, husband and wife: the evidence relating to their position, and the Tribunal’s conclusions as to their claims, are indistinguishable in all material respects from those relating to the applicant and his wife.
The Minister’s submission was that the “common point of law” did not arise in the decisions concerning the applicant and his wife or concerning the other group member dealt with in the same way as the applicant. The reason was that in those two cases the decisions were based entirely on the ground that evidence as to religious activity was not accepted and that accordingly no question arose as to a distinction between one sort of religious activity and another. In neither of those two cases was the common question of law a step in the reasoning leading to the decision.
Plainly there is force in the Minister’s submissions. But there is also a difficulty with them. That difficulty is that if I were to make an order that the proceeding no longer continue as a representative proceeding, a consequence would be, under s 33P of the Federal Court Act, that the proceeding might be continued as a proceeding by the applicant on his own behalf against the Minister. The solicitor who appeared for the Minister explicitly said that the Minister did not seek an order that the application be dismissed “as misconceived”: the reason he gave for not doing so was that the application had been properly brought under s 476 of the Migration Act, and even if its grounds appeared to be misconceived the applicant could seek leave to amend by substituting, or adding, other grounds. Implicit in that, however, is the proposition that the applicant may be able to overcome what appears to be a rather formidable hurdle, namely that of pleading a ground available under s 476 of the Migration Act which will put him on the path to success despite the Tribunal’s adverse findings or credibility. If that hurdle is overcome, however, the applicant is, as I have put it, only on the path to success: he must still establish that he has a well founded fear of persecution for reasons of religion; and to that issue, because (as the circumstances appear in the Tribunal’s reasons) the form of Christianity which he professes is the same as that professed by the uncle and the nephews, the common question of law will be relevant. So much is evident, in my view, from the conclusion of the Tribunal headed “religion”, which I have quoted, in its decision concerning the applicant. The position of the other group member, considered by the Tribunal to be on all fours with that of the applicants, raises, in my view, precisely the same considerations. It follows, in my opinion, that the submission made on behalf of the Minister should not be accepted.
The solicitor for the applicant put to me another basis on which, he submitted, I should hold that the motion should not succeed. That was that the findings as to credibility were “infected” by the error of law which the Tribunal was said to have made when it “took the view that a person who was a member of an unregistered religious group could not be said to be persecuted on the ground of religion if he or she had the alternative of joining a registered religious group”. Given the conclusion I have already reached, it is unnecessary to consider that submission, which was not very fully developed; and, because it may play a significant part in a final hearing of this matter, it is better that I refrain from doing so.
As I have mentioned, the Court is empowered to make an order under s 33N of the Federal Court Act where it is satisfied that it is in the interests of justice to do so for one of the specified reasons. There is a consideration, properly raised by the solicitor for the Minister, which arises from the provisions of the Migration Act and is relevant to the question whether it is in the interests of justice to make an order. Under subs 478(1) of the Migration Act, an application under s 476 must be made within 28 days of the applicant being notified of the decision. In the case of each group member, that period of 28 days has now passed. Subsection 478(2) forbids the Court to make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside that period. Section 479 of the Migration Act provides that an application under s 476 for review of a decision of the Tribunal may only be made by the Minister or the applicant in the review by the Tribunal. It may be taken, I think, that the application filed in this proceeding is to be regarded for that purpose as an application not only by the applicant but by each group member: at any rate, the contrary was not suggested. If, however, the Court were to make an order under s 33N, the proceeding would continue as an application by the applicant only. There would, in consequence, be no application on foot by any of the other group members. There is no obvious basis on which any group member (except perhaps the applicant’s wife) could properly be joined as an applicant in that proceeding under para 33P(b), but in any event to join any group member as an applicant is, I should think, in the circumstances prohibited by s 478 of the Migration Act.
Certainly there is no apparent basis on which any group member, other than the applicant, could lodge a fresh application now. The solicitor for the applicant suggested that such a course might be permissible, because the group members’ claims are already properly before the Court and to “split” the proceeding by making a consequential order under subs 33N(2) for the filing of separate applications would involve no infringement of s 478. It is sufficient to say that I am by no means convinced that that is right. Accordingly, in all probability, the consequence of making an order under s 33N would be to preclude all the group members but the applicant from challenging the decisions of the Tribunal on their applications. Plainly that is a consequence which, in the absence of very powerful opposing considerations of justice, will weigh heavily against making an order.
Leaving aside the matters already discussed, I can see no other reason why the proceeding may not conveniently continue as a representative proceeding. It is possible, in due course, that directions for the determination of individual issues will be required under s 33Q but in the circumstances of this case the making of those directions should not give rise to any particular difficulty; and that, in any event, is not a matter to be dealt with now.
For those reasons, the Minister’s motion will be dismissed with costs.
One comment, however, should be added. This case illustrates the difficulties and risks that may be involved in commencing, as a representative proceeding, claims for judicial review under the Migration Act. The difficulties arise from the strict provisions of that Act about the way in which, and the time within which, applications are to be made. A case such as the present, where judicially‑reviewable decisions have been made and notified, in relation to a number of persons (who can be named in the application), on or about the same day may not give rise to great difficulty: at least, in circumstances where it is plain that those decisions really do involve a common issue and where the prospects of a successful application under s 33N may, in the absence of significant and potentially costly individual issues, be regarded as slight. It may be the case that no other claims for judicial review under the Migration Act are susceptible of being dealt with by representative proceedings: certainly it seems to me that a proceeding such as Zhang, in which the members of the group were not named but defined as a class and had received notification of the relevant decisions over a period of several months, must now be impossible.
I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lehane.
Associate:
Dated:6 June 1997
Heard: 16 May 1997
Place: Sydney
Decision:6 June 1997
Appearances: Mr M T Jones of Parish Patience appeared for the applicant
Mr A Markus of The Australian Government Solicitor appeared for the respondent.
0