Huang, Gui Sen v Minister for State for Immigration and Multiucultural Affairs

[1998] FCA 514

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for review of decision of Refugee Review Tribunal refusing protection visas - representative proceeding - whether error in interpretation of the applicable law - whether persecution for reasons of religion - whether error in one case affected another.

Migration Act 1958 (Cth) - s 476(1)(e)
Refugees' Convention - Article 1A(2)

GUI SEN HUANG v MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 23 of 1997

DAVIES J
15 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 23  of   1997

BETWEEN:	GUI SEN HUANG APPLICANT
AND:	MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		DAVIES J
DATE OF ORDER:		15 MAY 1998
WHERE MADE:		SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

The application be 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	NG 23 of 1997

BETWEEN:	GUI SEN HUANG APPLICANT
AND:	MINISTER OF STATE FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DAVIES J
DATE:	15 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is a representative proceeding which, at its commencement, involved seven applicants for refugee status, Gui Sen Huang and his wife, Jin Sen Huang and his wife, Rui Men Huang, Wei Man Huang and Quan Ming Huang.  The five male applicants are cousins.  On 20 October 1997, a judge of the Court, by consent and without considering the matter for himself, set aside the decisions which a Refugee Review Tribunal had made in respect of  Wei Man Huang, Rui Men Huang and Quan Ming Huang and remitted their applications back to the Refugee Review Tribunal for reconsideration.  Accordingly, we are left with the matters of Gui Sen Huang and his wife and Jin Sen Huang and his wife, the decisions in respect of whom were given by Refugee Review Tribunals on 10 December 1996 as were the decisions in the other cases.  The same member constituted the Refugee Review Tribunal in each case. 

Notwithstanding that this is representative proceeding, it is necessary to consider each of the decisions of the Refugee Review Tribunal separately, for although there were some elements of fact common to each case, the basic facts were not the same. 

The application for orders of review was brought under s 476 of the Migration Act 1958 (Cth) which provides, inter alia:

"476(1)  Subject  to  subsection  (2),  application  may  be  made  for  review  by  the  Federal  Court  of  a  judicially-reviewable  decision  on  any  one  or  more  of  the  following  grounds. 

...

(e)that  the  decision  involved  an  error  of  law,  being  an  error  involving  an  incorrect  interpretation  of  the  applicable  law  or  an  incorrect  application  of  the  law  to  the  facts  as  found  by  the  person  who  made  the  decision,  whether  or  not  the  error  appears  on  the  record  of  the  decision; 

..."

Article 1A(2) of the Refugees' Convention defines a refugee as any person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his formal habitual residence, is unable or, owing to such fear, is unwilling to return to it." (emphasis added)

The Tribunal dealt with the case of Gui Sen Huang and his wife together.   The applicant was Gui Sen Huang.  It was not alleged that the wife herself would have qualified as a refugee..  The Tribunal described the claims made in these terms:

"He (Gui Sen Huang) stated that in 1992 a cousin and nephews were detained by the police because they were conducting unauthorised religious gatherings.  He said the arrest was preceded by a complaint to the commune committee by parents of school children attending those religious gatherings.  He stated that his relatives were detained for 24 hours and they were released after he acted as a guarantor for them.  He explained that he made an undertaking that his relatives would not engage in further unauthorised religious activities.  He stated that after his relatives were released from detention they resumed their religious activities and they again attracted the adverse attention of the Public Security Bureau (PSB) and other residents of the commune.  He stated that his relatives continued to proselytise despite warnings from the police and members of the commune.  He further stated that in February 1994, during a religious gathering, the local police and other residents of the commune disrupted the meeting and physically assaulted all the participants.  The applicant said that he intervened, gave money to the police involved in the attack, and the attack was stopped.  He said that the following day he was demoted at work, to street duty, and told that he would have to arrest his relatives and send them to a labour camp due to their proselytising activities.  The applicant also stated that he was told by a senior officer that he would be `killed' for neglecting his PSB responsibilities by permitting his relatives to act unlawfully.  He stated that the same PSB officer assisted him and his relatives to obtain exit documents so they could leave the country.

...

The applicant stated that in 1994 he received a phone call from another relative who informed him that the police had disrupted one of the religious meetings and that his relatives were being beaten by the police.  He stated that he went to the gathering place immediately and persuaded the police officers involved to stop the attack.  He said that he gave them 600 yuan to release his relatives and the other people attending the religious gathering.  The applicant stated that immediately following that incident he was dismissed from the police force because he had failed to act appropriately as a `guarantor' for his relatives.  It was indicated to him that he had previously stated that he was demoted to street duties and told to arrest his relatives.  He replied that he was immediately demoted and soon afterwards dismissed from the police force."

The Tribunal rejected the claims put for Mr Gui Sen Huang stating:

"However, the applicant's description of his own circumstances, during the hearing with the Tribunal, indicates that he has never meaningfully participated in religious activities in China and he has not participated in any religious activities since he departed from China.

...

The applicant's wife did not demonstrate any knowledge of her husband's involvement in religious activities in China and she stated that she was not involved in such activities either in China or Australia.  Therefore, the Tribunal has decided that the applicant's claim that he suffered difficulties in China due to his religious activities, or that he and his wife will be at risk of suffering persecution in China due to their previous religious activities, lacks credibility and will be disregarded by the Tribunal.".

The Tribunal went on to discuss the allegations made with respect to the difficulties he had with the police force and concluded that Mr Huang had fabricated these claims.  The Tribunal concluded:

"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 decision made with respect to Jin Sen Huang and his wife was even clearer, for neither had participated significantly in any religious activity in China and neither had encountered any difficulties with the authorities in China.  They had not been involved in the problems encountered by the other applicants for they had been living not in their area but in Zhong Shan City.  The Tribunal stated:

"However, the applicant's description of his own circumstances, during the hearing with the Tribunal, indicates that he has never meaningfully participated in religious activities in China and he has not participated in any religious activities since he departed from China.  The applicant stated that he attended a few meetings held by his relatives in China.  The applicant's wife did not demonstrate any knowledge of her husband's involvement in religious activities in China and she stated that she was not involved in such activities either in China or Australia.  Therefore, the Tribunal has decided that the applicant's claim that he suffered difficulties in China due to his religious activities, or that he and his wife will be at risk of suffering persecution in China due to their previous religious activities, lacks credibility and will be disregarded by the Tribunal.".

I cannot identify, on the face of the decisions with respect to Gui Sen Huang and his wife and Jin Sen Huang and his wife, any reviewable error.  Mr MA Robinson, counsel for the applicants, submitted, however, that there was an error of approach which permeated the decisions in relation to all the applicants.  Mr Robinson said that that error was to be found in passages such as:

"Reports in the media have indicated that despite government control over religious activities, the citizens of China are able to participate in authorised religions, including Christianity, without being subjected to punitive treatment by the authorities and an increasing number of citizens are engaged in such activities."

Mr Robinson said that it was not sufficient that people in China were able to participate in authorised religions including Christianity, if they were being persecuted because they wished to participate in their own unauthorised religion.

I can see the principle on which Mr Robinson relies but there is some difficulty in applying it in the present instance.  In the first place, it may be that the problems which the cousins encountered in China came not from an inability to participate in their own religion, whatever that was, but from carrying on their meetings in a way which upset the local community.  A letter from the applicant's solicitors of 3 December 1996 spoke of the religious activities in this way:

"The group comprises five male cousins and the wives of two of them.  They all lived in rural Guandong province, a substantial distance from Guangzhou.  Under the influence of two female cousins who had previously settled in Hong Kong and Macao, the family were introduced to a fairly fundamental brand of bible-based Protestantism, probably in the early 1990s. 

The religious activities engaged in by the group involved bible readings and discussion.  Apparently up to twenty people would be involved in some classes, including several minors.  It was the parents of some of these minors who first brought the group to the attention of the police."

The evidence given to the Tribunal was to the same effect, namely, that the religious activities involved Bible reading and discussions and that the problems came when parents and relatives objected to children absconding from school to attend the meetings.  It is a debatable point as to whether problems of this type are within the purview of the Convention. 

The other aspect of the matter is that, as none of the five cousins and the two wives had practiced any form of religion since coming to Australia, and as the applicants, Gui Sen Huang and his wife and Jin Sen Huang and his wife, had not participated significantly in religious activities in China, an inference could be drawn that the five cousins, at least Gui Sen Huang and Jin Sen Huang, became dissatisfied with the social milieu in which they were living and that it was for that reason, not religion, that they left China. 

It is not for me to come to any view on these points and I do not purport to do so or to give any guidance whatever to the Refugee Review Tribunals which will hear the three matters which have been remitted.  My purpose in considering the point is simply to ascertain whether I can draw out all of the reasons for decision some error in the interpretation of the applicable law which has permeated all the decisions so as to invalidate the decisions with which we are now concerned.

In my opinion, if there was a reviewable error affecting the matters which have been remitted, that error does not invalidate the decisions with respect to Gui Sen Huang and his wife and Jin Sen Huang and his wife.  It seems to me that, in each of those cases, the decision turned upon the facts of the case, not upon an erroneous view of the applicable law.  It seems to me that all relevant factors were taken into account and that the issues were approached in the way they ought to have been approached.  I cannot infer from these decisions that the Tribunal misunderstood its task.  Nor can I infer from the decisions relating to the other three cousins that the Tribunal misunderstood its task in some way relevant to the applications which concerned the four persons with whom we are now concerned.   The position of the three cousins was different, for they had each participated in religious meetings which had incurred the wrath of others in the provincial town in which they were living and which had occasioned police interference.

Mr Robinson relied on s 420 of the Migration Act saying that the applicants had been denied fairness or substantial justice.  So far as I could understand the arguments on this point, they all went to the substance of the Tribunal's decision, not to matters of procedure.  I have taken them into account in the comments I have made above.

In the present case, I am satisfied that the challenges must be rejected.  The application will be dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies J

Associate:

Date:               15 May 1998

Counsel for the Applicant:	Mr MA Robinson
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 May 1998
Date of Judgment:	15 May 1998