Gui v Minister for Immigration

[2000] HCATrans 222

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S219 of 1999

B e t w e e n -

GUO PING GUI

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 26 MAY 2000, AT 12.31 PM

Copyright in the High Court of Australia

MR D.E. BARAN:   May it please the Court, I appear with my learned friend, MS G.M. PRESTON, for the applicant. (instructed by Fallon Safetly Lawyers)

MR N.J. WILLIAMS:   May it please the Court, I appear for the respondent. (instructed by the Australian Government Solicitor)

McHUGH J:   Mr Baran.

MR BARAN:   Your Honours, this is a special application for special leave to appeal from the decision of the Full Court of the Federal Court, raising a number of very significant important matters, we would say, in the first instance; in the second instance, it raises a number of serious errors of law on behalf of the Full Court of the Federal Court, which are significant so far as the essence of the appeal was concerned, so much so that it would warrant this matter coming up on special leave and ultimately a grant from the Court.

Can I deal first, if I may, with the matters of public importance?  The first matter of public importance which we would place before your Honours here are the actual facts that were placed before the Tribunal and eventually travelled through the proceedings throughout the Federal Court and then the Full Court of the Federal Court, which effectively involved a man – and this was the subject of no major dispute – who was, in effect, arrested, beaten, kicked, locked up in a cage, tortured, accused of sodomy, imprisoned without a trial, sacked from his employment, all either connected directly or indirectly to the fact that he was a homosexual.

KIRBY J:   That was in 1993?

MR BARAN:   In 1993, your Honour.  It travelled long after that and this was the major point in the case – it travelled long after that.  In his day to day dealings in the Chinese community, if he went to parties, if he went to clubs and have other activities, there were numerous counts and numerous factual findings in the Tribunal so far as crackdowns were concerned by the police, as far as crackdowns were concerned so far as his employment was concerned, and his file was permanently marked.  So far as it travelling all the way through until the time he fled the country, that links it back to the evidence that was before the Tribunal about a video tape, which was a gay video or a video involving homosexual activity.  As a result of that he ultimately fled.  So the homosexual activity and the fact that he was a homosexual and he was, in effect, treated by the authorities as a homosexual as being a nuisance, in effect, travelled all the way through until he left.  It is incorrect, with respect, to say that it stopped in 1993 and that was the essence of the decision.

So far as the Full Court was concerned, we say, with respect, that the Full Court got it wrong when the decided – and this is at application book page 51, that in effect, the learned judge, his Honour Mr Justice Hely, on hearing a review of the decision, and going onto page 52, effectively cast his mind only to the 1993 incident.  And that appears at page 52 at about line 35, where the judges held:

The primary Judge concluded that, in his opinion, the other findings made by the RRT did not negate or qualify the earlier findings as to the December 1993 incident, and that therefore the law had been incorrectly applied.  In our view, the application of this incorrect approach resulted in the primary Judge making an evaluation which was within the sole province of the RRT.  The very expression “negate or qualify” itself indicates that the assessment being undertaken is one of fact and degree.

That is an essential error for the simple reason that when your Honours go back to page 28 of the application book, and then at page 29, and your Honours go through exactly what his Honour did find, at the top of page 28 his Honour deals with the essential findings of the Tribunal, namely that:

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.

And further down there are certain findings which are made in favour of the Minister, so to speak, that:

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 –

and it refers to the park incident.  And then over the page, that:

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

But then critically, your Honours, the judge on review, Justice Hely, held this:

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.

That was the reason why his Honour came to his view, not simply singling out an incident in 1993.  But even if your Honours would be against me ultimately on appeal, if the special leave is granted, at the end of the day, we say, so what, for the simple reason that in Chan and other cases, it has been held – I think it was his Honour the Chief Justice, Mr Justice Mason in Chan – said there can be single incidents which are so horrific or are so determinative of the situation, that the only conclusion can be a well‑founded fear of persecution.

McHUGH J:   Well, that may be.  In fact, I said it in Chan; I do not know whether Justice Mason said it, but the fact is that this incident was in 1993 and three years went by and, as a result of what occurred in the subsequent three years, the Tribunal made a particular finding of fact.  The Court is not here to review the merits of it; it is a question whether there is a legal error, and the Full Court said that Justice Hely was wrong to find a legal error.

MR BARAN:   Well, your Honour, that presupposes again, if your Honours look at the example just given, that that was, in fact, what his Honour found and his Honour did not, with respect, find that.  His Honour looked at all the past persecution which travelled past 1993, and I have given your Honours the example of that, and if your Honours want the actual references, so far as the Tribunal decision was concerned, it is to be found at page 6, so far as the summonses are concerned and thereafter the harassment of homosexuals, which is at page 10, thereafter that at page 11, more significantly, the treatment following this arrest was also clearly discriminatory.  The applicant lost his employment.

KIRBY J:   That would be back in 1993.

MR BARAN:   That travels through 1993, and then the Tribunal goes on ‑ ‑ ‑

KIRBY J:   If the applicant had left in 1993 there would be, I think, a much stronger case, because I do not think anybody now disputes that homosexuals are members of a particular social group; that was found in your favour.

MR BARAN:   Yes, it was conceded.

KIRBY J:   It was also found in your favour that the subjective fear on his part, even much later, but as Justice Hely said, really the critical question is whether objectively, as at the time he left China, there was objectively the basis that would justify his departing and claiming that that was on the basis of his fear.

MR BARAN:   Your Honour, that then comes down to the evidence of the summonses and this is when the illegal video evidence came to light and, effectively, if your Honours go to page 12 of the Tribunal’s decision, they find that the summons that was introduced into evidence there was valid so far as evidence was concerned, that effectively he had been summonsed, the summonses were tended before the Tribunal; it is an ongoing continuing pattern.  It might have been different at the 1993 incident, but it is still, in my respectful submission, enough for there to have been a well-founded fear.  And on the subjective fear issue, if I can just say this, your Honours ‑ ‑ ‑

McHUGH J:   But the fact is, it is a question of fact.  Even if it was an unreasonable finding, that would not help you; you have got to find an error of law.

MR BARAN:    Yes, well, the concession of subjective fear, we say, with respect, is where your Honours would be looking ‑ ‑ ‑

KIRBY J:   Do you take that to be in dispute, because that was, I thought, found in his favour.

McHUGH J:   You have got two factors in your favour:  first of all that homosexuals are members of a particular social group and that this particular applicant had an actual fear of persecution.  The question is, did he have a well-founded fear as at the time he left?  The Tribunal held, on all the evidence, no.  Justice Hely said that they made an error of law in coming to that conclusion.  The Full Court said, they did not make any error of law.  Now, where is the error of law in the Tribunal’s reasons?

MR BARAN:   The error of law is to be seen from section 476(1)(e), that being an incorrect application of the law to the facts found by the person who made the decision, in this case the Tribunal, because it was the incorrect application of the Convention, and the fact that the subjective fear was a well-founded fear of persecution.  That was the application of the Convention language which should have been applied to the facts and the ultimate conclusion must have been a well-founded fear of persecution for a Convention reason, and only that finding; that is the error of law.

McHUGH J:   But an application of law is not an error of law, even if the application is erroneous.  If I have to determine whether somebody was negligent and I find that the person was not negligent, I have not committed an error of law; I have committed an error of fact.

MR BARAN:   Yes.  The other error of law that we say arises out of the judgment from the Full Court is to negate or qualify test that their Honours held was invalid and the error of law, with respect, is, firstly, the satisfaction test that has to be now faced by the Minister is ultimately the test which is being determined by a court on review.  At the end of the day, so far as this application was concerned, it would not matter if his Honour said, negate, qualify, challenge, unchallenge – whatever words his Honour used – so long as he comes at the end of the day to the fact that ultimately the Tribunal erred because they should have been satisfied that the Minister should have been satisfied in the first place.  That is an error of law.

McHUGH J:   But the question of satisfaction is not for judges of the Federal Court, it is for the Minister or for the Tribunal.

MR BARAN:   But on review, your Honour, so far as Justice Hely was concerned, he had to find that the Tribunal was wrong, because they had to reach the satisfaction test and they went about it the wrong way; it applied the law to the facts correctly and came to the wrong conclusion.  It is the satisfaction test which ultimately the Full Court of the Federal Court then went on, they did not refer to the word “satisfaction”, but ultimately, what they said was, that because his Honour used the words such as negate or qualify, that somehow led to an error of law.  They also said at page 53 that the judge encroached upon the role of the Tribunal in relation to what is a sensitive question of fact and degree.

KIRBY J:   They are saying exactly what Justice McHugh has put to you.

MR BARAN:   Yes.

KIRBY J:   And they are saying that on the basis of the evidence that was before the Tribunal, relating to what happened between 1993 and 1996, or 1993 and to date.  Evidence relating to your client’s participation in a gay bar, evidence in relation to country reports about the situation of homosexuals in China, and in Shanghai specifically, and evidence of press and other reports which tends to support that country report.  So that, you cannot ignore what happened between 1993 and to date.

MR BARAN:   But if your Honours look at the country report, which is at page 10 of the Tribunal’s decision, and the first paragraph, still, looking at that, it is so artificial.  The fact that whether these reports say that

homosexuality, per se, is not a crime, although homosexuals could still be arrested on a “catch-all accusation” of hooliganism –

which is what occurred here, and that he was summonsed in respect of hooliganism.  In fact, hooliganism is often used as a cloak to arrest and/or charge persons engaging in homosexual activity, and one of the points we raise on special leave is whether or not a court in this country, and a judge of criminal law of another country, as, in effect, being a persecutory tool, and, in this situation, what we say is that this is a matter where a court ought to look very carefully at the principle as to whether or not if a person is charged with a criminal offence over in another country, but quite clearly, that is being used by the authorities as a tool for persecution, whether or not, in deed and in fact, that is a matter that can form the basis of a refugee application and a visa being granted and whether or not that is either immune or not immune in respect of a well-founded fear, because it is, in fact, either a prosecution or a persecution.  Again, these are matters of principle which we say ought to be ventilated in this very important case in the High Court on an appeal, your Honours.

The other issue which we want to raise is twofold:  firstly, the errors that arise so far as the Tribunal’s finding is concerned, relating to the fact that from these country reports and other documents, which they took off the Internet, and articles, and articles in newspapers ‑ ‑ ‑

KIRBY J:   Were they disclosed to the parties before they were used?  I assume that they were in evidence?

MR BARAN:   They were put in the evidence.

KIRBY J:   They were in evidence; they did not come to you as a big surprise.

MR BARAN:   No.

KIRBY J:   And some of them, I think, related to the bar that your client was associated with, were they not?

MR BARAN:   One did, yes; it was simply an Internet message.  But again, the bar had been closed down ‑ ‑ ‑

KIRBY J:   The fact that it is the Internet rather suggests that it is not the subject of harassment to the point of closing it down.

MR BARAN:   Well, the bar was closed down in 1995, and that is where, again, we say Justice ‑ ‑ ‑

KIRBY J:   It reopened, did it not?

MR BARAN:   It was then reopened, but it had to move.

KIRBY J:   It moved to bigger premises, I thought I read.

MR BARAN:   Yes, but the fact of the matter is, your Honours, that this ongoing persecutory conduct was something which his Honour Justice Hely was entitled to say took place; it was a past set of persecutory conduct, not a single incident.

McHUGH J:   Justice Hely was not entitled to say any such thing, it was not his function, and that is what the Full Court have said he erred; that was for the Tribunal to determine whether it was ongoing persecutory conduct.

MR BARAN:   Yes.

KIRBY J:   I think in fairness to Justice Hely, he did say it had to go back to the Tribunal to consider the matter in the light of what he determined.

MR BARAN:   That is right, yes, your Honour, but what we say is simply that application book page 52 and 53 can only mean that, in effect, a misconstruction, in respect of their Honours, of what his Honour ultimately held, which we have told your Honours about at pages 27, 28 and 29 of the application book, because that is not what occurred; his Honour took all past persecutory conduct into account.  The other issue is, your Honours, that so far as the country reports are concerned, the Tribunal came to the conclusion that, in effect, there was now more tolerance of homosexual people in Shanghai and China.  Your Honours, so far as that is concerned, that flies in the face of what Lord Hoffmann had to say recently in Shah’s Case and so far as ‑ ‑ ‑

KIRBY J:   That is a case about Pakistan and women in Pakistan.

MR BARAN:   Yes, but he used the analogy about Jews in Nazi Germany in 1935 and those who wore a yellow star and those who did not, and just because he did not wear a yellow star, did not mean to be treated any different; that was an absolute fallacy.  He would still be part of a race of persecuted people.  At the end of the day, so far as this gentleman is concerned, if he goes back to China, he still forms part of that particular community.  Just because an overall community is now seen to be the subject of more tolerance does not mean, by any stretch of the imagination, that certain members will not be persecuted and have a well-founded fear of persecution.  And that was, in our respectful submission, a critical error on behalf of the Tribunal.

KIRBY J:   The question is whether or not, in the light of the evidence between 1993 and his departure, the Tribunal were entitled to say, “He is a

member of a particular social group, he does have the subjective fear, but he is not objectively having that fear on a well-founded basis because of all the other matters of fact that we have referred to”. 

MR BARAN:   Yes.

KIRBY J:   Now, it sounds like an issue of fact, a determination of fact.  I mean one might reach a different view, but it is the view that the Tribunal reached in this case on the facts that were before it.

MR BARAN:   Yes.  Ultimately, your Honours, what we would want to have happened is for the matter to try to go back to the Tribunal to re-agitate this for the simple reason that at the time that the applicant was before the Tribunal, he produced and tended to that Tribunal a summons for interrogation.

KIRBY J:   I know you want that, but you can only get it if you can establish an error of law.  Law, not fact, not merits.

MR BARAN:   Then, so far as the error of law is concerned, your Honours, we would simply only have to rely upon and, in effect, have to argue before your Honours, that the error of law is contained at pages 51, 52 and 53 of the Full Court’s decision.  That is, in effect, that their Honours simply decided the entire matter on very much the wrong principle, and very much the wrong foundational basis, which was, at page 52, the single incident basis, which is not what his Honour did.  That, with respect, if their Honours decided correctly, having regard to all past persecutory conduct, it would not have occurred, or there would have been a significant chance, we would say, with respect, that this decision would not have come out this way.

Also, the legal test of negate or qualify, in so far as an error of law is concerned, is a test that was perfectly open to his Honour and did not constitute an error of law.  It was an error of law for the Full Court to say it was an error of law, with respect.

McHUGH J:   But the ultimate issue is whether the Tribunal erred.

MR BARAN:   That is correct.  Those are my submissions.

McHUGH J:   Thank you.  We need not hear you, Mr Williams.

The Federal Court accepted, correctly in our view, that homosexuals, whether in China generally or in Shanghai, are a particular social group within the Convention definition of “refugees”.  In appropriate circumstances, they may therefore qualify for refugee status.  The Federal Court also accepted, as was inherent in the Refugee Review Tribunal’s finding, that the present applicant had a subjective fear of persecution on the ground of his membership of the particular social group if he were returned to China.  But that was not enough to make the applicant a refugee.  He was required to prove that his fear was well founded.  The critical question in the case, therefore, was whether objectively his fear was, within the Convention definition, well founded.  Deciding that question involved an assessment of the evidence, including that of the applicant. 

The Tribunal concluded against the applicant on this issue.  The Tribunal had before it evidence that the applicant took part in managing a gay bar immediately prior to his departure from China, that an active homosexual community exists in Shanghai and did so at the time of the applicant’s departure, and that homosexual acts as such are not crimes in Shanghai.  Even if the applicant might have had a well founded fear of persecution in 1993 when he was arrested and interrogated, on the evidence it was open to the Tribunal to find that the objective basis needed to make that fear well founded was not present when the applicant left China or, for that matter, at the time of its decision. 

On this footing, the appeal would not have reasonable prospects of success were special leave granted.  This Court has said many times that judicial review exists for errors of law, not for substituting a Court’s different view of the merits of the case.  The application must therefore be refused.

MR WILLIAMS:   Your Honour, we seek costs.

MR BARAN:   In my respectful submission, this is a refugee case.  I would ask that they not be awarded.

KIRBY J:   Mr Williams, were you here earlier this morning when the Minister objected to an adjournment.  The adjournment was granted.  He did not have an order for costs ordered against him.

MR WILLIAMS:   I was not, your Honour.

KIRBY J:   That is what happened.  If one were doing a general equalising, one would perhaps make an order, but would that be a correct principle to take into account.

MR WILLIAMS:   No, your Honour.

KIRBY J:   I fear you are right.

McHUGH J:   The application is dismissed with costs.

Court will now adjourn.

AT 12.55 PM THE MATTER WAS CONCLUDED