Koe, Tjhe Kwet v Minister for Immigration & Ethnic Affairs
[1997] FCA 912
•8 SEPTEMBER 1997
CATCHWORDS
MIGRATION - application for review of decision of Refugee Review Tribunal (“RRT”) that applicant is not a refugee - RRT found Hong Kong to be applicant’s place of former habitual residence - whether error of law - whether RRT erred in finding Hong Kong was the applicant’s country of former habitual residence - whether “country” means sovereign state - consideration of the meaning of “country” - principles of interpretation of treaties - whether RRT failed to act according to substantial justice and merits of the applicant’s case - whether RRT gave genuine consideration to particular circumstances of the applicant’s case - whether RRT correctly interpreted the expressions “real chance” and “well-founded fear” - whether conclusion available on the evidence.
Migration Act1958 (Cth), ss 36, 420
Convention Relating to the Status of Refugees, Art 1A
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, applied
Maarouf v Minister of Employment and Immigration (unreported, 13 December 1993, Trial Division, Federal Court of Canada), cited
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, applied
Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695, cited
Reel v Holder [1979] 3 All ER 1041, applied
Reel v Holder [1981] 3 All ER 321, applied
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, cited
Eshetu v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 621, cited
TJHE KWET KOE v
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS,
REFUGEE REVIEW TRIBUNAL AND SUSAN McILLHATTON
NG 188 OF 1995
TAMBERLIN J
SYDNEY
8 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) NG. 188 of 1995 ) GENERAL DIVISION )
BETWEEN: TJHE KWET KOE
ApplicantAND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentSUSAN McILLHATTON
Third RespondentCORAM: TAMBERLIN J PLACE: SYDNEY DATED: 8 SEPTEMBER 1997
THE COURT ORDERS THAT:
The application be dismissed.
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. 188 of 1995 ) GENERAL DIVISION )
BETWEEN: TJHE KWET KOE
ApplicantAND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
First RespondentREFUGEE REVIEW TRIBUNAL
Second RespondentSUSAN McILLHATTON
Third RespondentCORAM: TAMBERLIN J PLACE: SYDNEY DATED: 8 SEPTEMBER 1997
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”) affirming a decision of a delegate of the Minister for Immigration and Ethnic Affairs (“the Minister”) that the applicant is not a refugee. The application is made under Part 8 of the Migration Act 1958 (Cth) (“the Act”).
The applicant lodged an application for refugee status on 28 February 1991. This application was deemed to be an application for the relevant entry permit. On 9 October 1992 a delegate of the Minister decided that the applicant was not a refugee and accordingly refused to grant him an entry permit. An application for review of this decision was made to the RRT on 10 October 1992. On review the RRT affirmed the decision of the delegate on 14 March 1995.
Background Information
The applicant was born on Bangka, an Indonesian island. His family are ethnic Chinese who have lived on Bangka for several generations. According to the applicant, his parents are Indonesian nationals. His siblings, three of whom live in Indonesia, one in Holland and two in Australia as permanent residents, are all Indonesian citizens.
After graduating from high school the applicant decided that he wished to live in China. He obtained a passport from the Chinese embassy in Indonesia and travelled to China in 1959. The Chinese authorities sent him to live in Beijing. He remained there for 8 months during which time he had his passport taken from him. The applicant was then sent to work and study in the province of Tianjin. He stayed in Tianjin for 14 years.
In 1973 he left China due to the Cultural Revolution. The applicant and his family had been the targets of harassment by the authorities. His uncle was in trouble with the authorities, a member of his extended family had been murdered, and the applicant himself had been questioned and harassed at his workplace. Due to fear that his situation may worsen the applicant decided to return to Indonesia via Hong Kong. The Public Security Bureau in Tianjin issued the applicant with the appropriate travel documentation in May 1973. This documentation was endorsed as valid until 10 November 1973.
The applicant travelled from China to Hong Kong in June 1973. He remained in Hong Kong for 8 years and in so doing acquired permanent residency status. He was issued with a temporary identity card on arrival, and then with a permanent identity card in 1980, as well as a certificate of identity. The permanent identity card entitled him to permanently reside and work in Hong Kong. The certificate of identity entitled him to leave and re-enter Hong Kong.
In mid-1981 the applicant sought to return to Indonesia. He was advised by the Indonesian Consul that, because he had returned to China in 1959, he was no longer regarded as an Indonesian national. The Consul refused to issue him with an Indonesian passport. He then purchased a forged Indonesian passport on the black market with the intention of using it and the certificate of identity to return to Indonesia via Singapore.
The applicant travelled to Singapore in August 1981. Whilst in Singapore he heard that Indonesian authorities were checking Indonesian passports for forgeries. As a result he changed his plans and travelled to Australia. According to the applicant he arrived in Australia on 10 August 1981. The Department of Immigration and Ethnic Affairs have no record of his arrival in Australia.
The applicant did not keep his Hong Kong certificate of identity and lost his false Indonesian passport in Singapore.
The relevant legislative provisions
Under s 36(2) of the Act a non-citizen in Australia is eligible for a protection visa if that person is someone:
“... to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol”.
The Refugees Convention is the 1951 Convention Relating to the Status of Refugees and the Refugees Protocol is the 1967 Protocol Relating to the Status of Refugees. The expression “Convention” will be used to mean the Convention as amended by the Protocol.
Article 1A(2) of the Convention defines a “refugee” to be 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it”. (Emphasis added)
RRT Decision
Before considering the applicant’s claim the RRT set out the basic principles governing the determination of refugee status, beginning with the above Convention definition of “refugee”. It then referred to the meaning of “well-founded fear” of persecution as explained by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 379, noting that it has objective and subjective elements. It also outlined the “real chance” test as set down by the High Court in Chan. The RRT stated that the relevant date for determination of the question is the date of the decision in accordance with the decision of this Court in Lek v Minister for Immigration and Ethnic Affairs (1993) 117 ALR 455 at 458-462. It then commented on the meaning of persecution and the requirement that persecution be for a Convention reason.
The RRT outlined the applicant’s claims and the evidence before it. The evidence principally related to two issues. First: which country was the relevant country for Convention purposes? Second: was the applicant’s fear of persecution well-founded? The RRT then made findings on each issue adverse to the applicant’s submissions.
In order to identify the appropriate “country” under the Convention’s definition the RRT first considered whether the applicant was a permanent resident of Hong Kong. It examined the Hong Kong immigration law on this point and considered information from Hong Kong authorities regarding whether the applicant was eligible for permanent residence status. Some of this information was provided by the applicant to the RRT. Some was obtained independently by the RRT. The RRT also considered the applicant’s position when Hong Kong reverts to Chinese sovereignty on 1 July 1997, looking at provisions of the Draft Agreement between the UK and the PRC on the future of Hong Kong. It is necessary to bear in mind that the RRT determination under review was made on 14 March 1995.
The RRT concluded that:
“... for the purposes of the Convention the Applicant, at present and into the foreseeable future, is to be identified as a Hong Kong Chinese and a permanent resident of Hong Kong. As the Applicant does not have a nationality, the Tribunal finds Hong Kong to be his place of former habitual residence. Accordingly, it is against Hong Kong that the Applicant’s claim for refugee status must be assessed.” (Emphasis added)
The applicant points out that the RRT here refers to “place” of habitual residence and not to “country” which is the expression employed in the Convention.
When considering the applicant’s relationship with Indonesia the RRT had evidence before it from Indonesian authorities to the effect that the applicant was no longer recognised as an Indonesian national. Official correspondence from China indicated that it took the stance that there was no evidence the applicant was a Chinese national. Accordingly it determined that the only country relevant to the applicant’s claim of refugee status was Hong Kong.
The applicant’s evidence in relation to refugee status focused on his fear of returning to Hong Kong upon its reversion to Chinese sovereignty in 1997. The applicant’s fears were based on his experience in China during the Cultural Revolution. The applicant believed that China would abolish democracy in Hong Kong. He believed that there had not been any political improvement in China since the Cultural Revolution and he drew the RRT’s attention to the repression of the pro-democracy movement in 1989.
The RRT referred to a study by Professor Golman (Sowing the Seeds of Democracy - Political Reform in the Deng Xiaoping Era) and found that the policies of the Cultural Revolution were no longer being implemented by the Chinese government. It concluded that there was no objective basis for the applicant’s fear and therefore that fear was not well-founded. The RRT stated that:
“It is clear that the Applicant has no wish to be in Hong Kong when the Chinese government assumes sovereignty over Hong Kong. He speculates that China may return to the repressive policies of the Cultural Revolution. But such speculation does not suggest that the Applicant’s fears of harm are well-founded for Convention purposes. The Applicant’s general assertions in relation to the suppression of the 1989 pro-democracy movement have no relevance to his particular circumstances. The Tribunal accepts that whilst human rights abuses occur in China such as during the suppression of the 1989 pro-democracy movement, the Tribunal is not satisfied by the evidence before it that the Applicant faces a real chance of treatment amounting to persecution if returned to Hong Kong in the foreseeable future or when Hong Kong returns to PRC sovereignty”.
Accordingly, the RRT decided that the applicant was not a refugee and therefore not eligible for a protection visa.
Grounds of Review
The applicant presented three main submissions in support of the review application.
The decision of the RRT involved an error of law, being an error involving an incorrect interpretation of the applicable law. The particulars of this are that:
(a)The RRT decision is based upon Hong Kong as the “place of former habitual residence” whereas the definition refers to the “country of former habitual residence”.
(b)The RRT, in finding that Hong Kong was the relevant country, did not correctly interpret the expression “country” in the Convention definition of refugee.
(c) The RRT erred by finding that the applicant was able to return to Hong Kong.
(d) The RRT incorrectly interpreted the terms “real chance” and “well-founded fear”.
The decision involved an incorrect application of the applicable law to the facts as found by the Tribunal.
(a)The RRT engaged in “optimistic speculation” in assessing the applicant’s claim, rather than considering whether the applicant’s fear was well-founded.
(b)Further, there was no other evidence to justify the making of the decision.
Procedures required by the Act to be observed in connection with the making of the decision were not observed. Namely, the applicant was not afforded substantial justice in accordance with s 420.
Place
The RRT concluded that Hong Kong was the place of Mr Koe’s former habitual residence and that it was against Hong Kong that his claim for refugee status must be assessed. The Convention, on the other hand, defines “refugee” by reference to “country” and not to “place”. The applicant says that this discloses an error of law. Notwithstanding this discrepancy in the expression I am satisfied the RRT did not err when reaching its decision. The decision must be read fairly and in its totality and it is especially important not to consider phrases or terminology apart from their context: Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
At the beginning of the RRT decision the definition of “refugee” is set out. This contains two references to the expression “country”. In proceeding to analyse the definition the decision notes that it includes only those persons who are outside their “country” of nationality or “country” of former habitual residence. There are, in the decision, other references to the expression “country”. Importantly, the particular section of the decision where the reference to “a place” occurs is entitled “Country against which assessed”. I am satisfied that when the term “place” was used in the decision it is a reference to a “place” which would come within the description of a “country”. Accordingly, the language used in the findings does not demonstrate that the RRT placed a wrong construction on the expression “country”.
Was Hong Kong a “country”?
The applicant submits that the RRT incorrectly concluded that Hong Kong was the applicant’s country of former habitual residence and proceeded to evaluate his claim for a protection visa against his relationship with Hong Kong. This approach is said to be erroneous because the RRT ascribed to Hong Kong the status of a country for the purposes of the Convention whereas Hong Kong has never been an independent political entity which could be properly described as a country. At the time of the decision Hong Kong was a British Crown Colony and was therefore a colonial possession of the British Crown.
In support of this submission the applicant says the expression “country” is used in the Convention to convey the notion of a political state or a nation which is capable of providing nationality or citizenship.
The applicant refers to the decision of Cullen J in the Trial Division of the Federal Court of Canada in the case of Maarouf v Minister of Employment and Immigration (unreported, 13 December 1993).
In his analysis of the expression “former habitual residence” Cullen J said:
“In my view, the concept of ‘former habitual residence’ seeks to establish a relationship to a state which is broadly comparable to that between a citizen and his or her country of nationality. Thus the term implies a situation where a stateless person was admitted to a given country with a view to a continuing residence of some duration, without necessitating a minimum period of residence.
In summary, the definition of ‘country of former habitual residence’ should not be unduly restrictive so as to pre-empt the provision of ‘surrogate’ shelter to a stateless person who has demonstrated a well-founded fear of persecution on any of the grounds enumerated in subsection 2(1) of the Act. Further, a ‘country of former habitual residence’ should not be limited to the country where the claimant initially feared persecution. Finally, the claimant does not have to be legally able to return to a country of former habitual residence as denial of a right of return may in itself constitute an act of persecution by the state. The claimant must, however, have established a significant period of de facto residence in the country in question.”
In the Handbook on Procedures and Criteria for Determining Refugee Status, printed under the auspices of the Office of the United Nations High Commissioner for Refugees, Geneva, dated January 1988, (“the UN Handbook”) the expression:
“.... or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
is discussed in the following terms:
“101.This phrase, which relates to stateless refugees, is parallel to the preceding phrase, which concerns refugees who have a nationality. In the case of stateless refugees, the ‘country of nationality’ is replaced by ‘the country of his former habitual residence’, and the expression ‘unwilling to avail himself of the protection...’ is replaced by the words ‘unwilling to return to it’. In the case of a stateless refugee, the question of ‘availment of protection’ of the country of his former habitual residence does not, of course, arise. Moreover, once a stateless person has abandoned the country of his former habitual residence for the reasons indicated in the definition he is usually unable to return.
102.It will be noted that not all stateless persons are refugees. They may be outside the country of their former habitual residence for the reasons indicated in the definition. When these reasons do not exist, the stateless person is not a refugee.
103.Such reasons must be examined in relation to the country of ‘former habitual residence’ in regard to which fear is alleged. This was defined by the drafters of the 1951 Convention as ‘the country in which he had residence and where he had suffered or fears he would suffer persecution if he returned.’
104.A stateless person may have more than one country of former habitual residence, and he may have a fear of persecution in relation to more than one of them. The definition does not require that he satisfies criteria in relation to all of them.
105.Once a stateless person has been determined a refugee in relation to ‘the country of his former habitual residence’, any further change to his country of habitual residence will not affect his refugee status.”
Interpretation of Treaties
A useful starting point is Article 31(1) of the Vienna Convention on the Law of Treaties 1969 which requires that:
“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
The principles governing the interpretation of international treaties were recently considered by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331.
In Applicant A, Dawson J said of Article 31 at 340:
“Article 31 plainly precludes the adoption of a literal construction which would defeat the object or purpose of a treaty and be inconsistent with the context in which the words being construed appear.”
McHugh J at 352 considered that Article 31 required courts, when interpreting a treaty, to “examine both the ‘ordinary meaning’ and the ‘context ... object and purpose’ of a treaty”. In reaching this conclusion his Honour cautioned, at 352, that:
“... international treaties often fail to exhibit the precision of domestic legislation. This is the sometimes necessary price paid for multinational political comity. The lack of precision in treaties confirms the need to adopt interpretative principles ... which are founded on the view that treaties ‘cannot be expected to be applied with taut logical precision’.”
The High Court held that the underlying purpose of the Convention is the protection of the fundamental rights and freedoms of refugees. This is also reflected in the Preamble to the Convention.
A purposive approach was taken by the Full Federal Court in Jong Kim Koe v Minister for Immigration and Multicultural Affairs (1997) 143 ALR 695 where it held that nationality in cases of dual nationality meant effective nationality. The Court said in relation to interpretation of the Convention (at 706):
“What is involved here is the proper construction of Art 1A(2) of the Refugees Convention. To interpret ‘nationality’ for the purposes of Art 1A(2) as something of a ‘merely formal’ character ... instead of something effective from the viewpoint of a putative refugee, would be liable to frustrate rather than advance the humanitarian objects of the Refugees Convention. Nor would such a construction advance, in any practical way, another object of the Refugees Convention, namely the precedence of national protection over international protection.”
The objective of the Convention is to provide a practical humanitarian solution to the problems of refugees. It should be interpreted with this objective in mind. Individuals should not be denied the protection of the Convention by an unnecessarily narrow reading of the definition of “refugee”. It is not appropriate to conclude that an applicant has no recourse under the Convention simply because his or her “country” of former habitual residence happens to be a colony or other entity that is not an independent sovereign state.
The identification of the relevant country serves two purposes under Article 1(A). First, the term forms part of the threshold test for refugee status. The claimant must be outside the country of nationality. As a stateless person does not have a country of nationality the Convention, in referring to the country of former habitual residence, looks to an equivalent relationship. This equivalent reflects the underlying concept that a refugee is a person without national protection. The second purpose of identification of the relevant country is to provide the proper reference point for the assessment of the degree of risk of persecution. The requirement of persecution for a Convention reason, as held by the High Court in Applicant A, is one of the principal limits placed by the Convention on the achievement of its objectives.
These two limitations on the application of the Convention, namely that the requirement that an applicant be outside his or her country and the requirement that the fear of persecution must be for a Convention reason, serve to distinguish “stateless persons” in general from those “stateless persons” who are also refugees and are therefore entitled to the protection of the Convention. These limitations do not require that “country” be defined as a sovereign state. To approach the term “country” in a narrow technical way would undermine the humanitarian purposes of the Convention by excluding some persons from its protection without any sound reason in principle for so doing.
If the definition of “country” is not restricted to sovereign state, the question is how to decide whether an area is a “country” for the purposes of the Convention. The New Shorter Oxford English Dictionary defines “country” to include “the territory of nation; a region constituting an independent State, or a province .... which was formerly independent and is still distinct in institutions, language...” The Macquarie Dictionary includes “a state”, “the territory of a nation” and “any considerable territory demarcated by geographical conditions or by a distinctive population” within its description of “country”. The word “country” has a more extensive meaning on these descriptions than the concept of either a State or nation.
There is authority to support the proposition in a certain context that the expression “country” can be read as meaning an area or part of the world.
In Reel v Holder [1979] 3 All ER 1041, the plaintiff, who was the Secretary-General of the Republic of China Track and Field Association, sought declarations that the Association was and remained a member of the International Athletics Federation. The case involved the interpretation of the contract intended to govern the affairs of the international association which was dedicated to promoting and controlling friendly competition in athletic games between the inhabitants of various countries of the world. As Forbes J, at first instance, said at 150-152:
“The term ‘country’ would not appear to be one which has a particular significance in international law. The Foreign Office letter which is an exhibit in that this case, makes the point neatly:
‘Her Majesty’s Government do not, and have never regarded Taiwan as a State. Nor do we regard the Chinese Nationalist Authorities in Taiwan as a Government and have not done so since 1950, when we ceased to recognise them as the Government of China.
......’
The word [country] must be given its ordinary meaning, having regard to the ‘factual matrix’ in which it was formed. I should find it surprising if the ordinary person did not regard Scotland and Wales as being examples of countries; in doing so they would not be considering the existence, or absence, of a separate government, nor the desire, or lack of it, of any of the inhabitants of either area to achieve the position of belonging to a separate state. If the ordinary person was asked whether, in the context of international sport, Scotland and Wales were separate countries I think he would say, ‘Of course’.”
On appeal, Reel v Holder [1981] 3 All ER 321, Eveleigh LJ said at 326:
“I think that the word [country] is used in the rules in the sense of an area or part of the world where the applicant has authority in relation to athletics and an area to which the word ‘country’ is appropriate because the inhabitants share the right to live there in common as one distinct people. This is a question to be answered broadly and not on a political basis alone. Political status may have some relevance. It may perhaps help to see the inhabitants as being one people but it is not the decisive factor.”
The approach taken by the Judges in Reel was purposive. They considered that the International Athletics Federation was not concerned with international politics but was formed to set standards for athletics throughout the world and that the focus of attention was to collect together people who would be in a position to exercise control over athletics in various parts of the world. The word “authority” was considered to have been used in the Rules in order to delineate an area of authority. It was not used in the sense of a sovereign state.
Similarly, in the present case, if one takes a broad purposive approach to the expression “country” in Article 1A of the Convention it is evident that full effect can be given to the aim of protecting refugees who are in genuine objective fear of persecution on Convention grounds. On the other hand, it is not conducive to the effective implementation of Convention purposes to construe expression “country” in a narrow restricted sense.
In Australia the meaning of the expression “country” has not directly arisen in relation to the Convention. The Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethic Affairs (1994) 52 FCR 437 decided that “country” in the Convention was a reference to the whole country and not just a region within a country. However, the Court made no observation as to what criteria should be used to determine whether an area was a “country” for Convention purposes.
The language of Article 1A of the Convention itself draws a distinction between “the country of nationality” and “the country of former habitual residence”. The word “country” in each of these expressions is used in a different sense. In the first phrase it is used to designate a country capable of granting nationality. In the second it is used to denote a country which need not have this capability but in which the individual resides. The concept of “country” is broader than the concept of a State.
The principles applied in the Maarouf case do not support the applicant’s case. The principle there enunciated was that the term “former habitual residence” implies a situation where a stateless person is admitted to a country with a view to continuing residence of some duration without necessitating a minimum period of residence. It has nothing to do with whether that country is a state or whether the person admitted is a citizen or national of that country.
Nor do the principles set out in the United Nations Handbook assist the applicant. Clause 104 of the Handbook contemplates a situation that a person may have a fear of persecution in relation to one or more countries of former habitual residence.
The attestation clause to the Convention states that the English and French texts are equally authentic. In both versions a distinction is drawn between country (pays); states (etats) and contracting states (etats contractants). See for example the Preamble, Articles 1, 2, 3, 4, 7, 12 and the attestation clause. Article 3 refers to “the country in which he finds himself”. The dual text of the Convention is set out in B. Mbuyi, Refugees and International Law, 1993, at 24-53.
As at the time of the determination of the RRT, on 14 March 1995, Hong Kong had its own immigration law and policy: see Albert Chen, The Development of Immigration Law and Policy: The Hong Kong Experience (1988) 33 McGill Law Journal 631 at 642 ff. The author traces the development of Hong Kong immigration law from 1842 onwards. As he points out the task of immigration authorities in Hong Kong was complicated by the fact that Hong Kong was in 1988 regarded by the British Government as a colony of the United Kingdom and by the Chinese Government as an integral part of the Peoples Republic of China. Nevertheless, the fact that Hong Kong has developed and enacted a specific regime of immigration laws dating back to the Deportation Ordinance of 1917 supports a conclusion that its geographic territory and population is sufficiently defined to come within the notion of a “country”.
The question of personality and recognition of states, countries and territories is discussed by Martin Dixon in his Textbook on International Law, 1990 at 52 ff. Mr Dixon points out that international personality for the purposes of international law is not an absolute concept and that it operates as if on a sliding scale with various subjects of international law having different capacities for particular purposes. Whilst a state is the subject of international law in the narrow sense and will have all the capacities in full measure, other subjects such as international organisations and individuals or groups will have reduced personality for whatever purposes is recognised under the system of international law. He makes the point that “state” may exist where the territory in question is not under the lawful sovereign authority of another state. He cites Hong Kong as being under the legal authority of the United Kingdom and therefore being unable to be an independent state in international law. In contrast, he points to Cambodia, which despite being heavily dependent on Vietnam, was not under its lawful authority and therefore could be regarded as a state.
It is clear that Hong Kong was not a state or nation. At the relevant time Hong Kong did not have an independent capacity to enter into legal relations. It was under the control, direct or indirect, of the United Kingdom.
Nevertheless, Hong Kong at the relevant date had a distinct area with identifiable borders. It had its own immigration laws, and was inhabited by a permanent identifiable community, and therefore in my opinion it was appropriate to treat it as a “country” in accordance with the meaning and purpose of that expression as used in Article 1A of the Convention. In 1965 Hong Kong enjoyed a degree of autonomy in relation to its administration. This lends further support to the submission that it is a “country”. In addition, as a matter of everyday usage of language, it is not inappropriate to refer to a person as coming from, belonging to, or returning to Hong Kong. The Territory was not simply a place or area but possessed the foregoing additional elements which it make it appropriate to be treated as a country for Convention purposes. These last three words are important because the expression can take on different nuances according to the context in which it is used.
For these reasons I do not accept the proposition that the RRT has incorrectly interpreted or misapplied the Convention in concluding that Hong Kong was a “country”.
Habitual residence
The RRT found as a fact that the applicant acquired permanent residence in Hong Kong because he remained in Hong Kong for eight years from 28 June 1973 before coming to Australia. During this time he was employed in Hong Kong. The submission that he should be treated as being in transit during this period is not correct. He was not ordered to leave. It was not suggested that he was permitted to remain only for a limited period. Indeed in 1980 he received a permanent identity card which enabled him to permanently reside and work in Hong Kong. This permitted overseas travel and allowed re-entry into Hong Kong. It gave rise to a significant nexus between the applicant and Hong Kong.
From these facts it was open to the RRT to treat Hong Kong as a country where he had habitual residence.
Accordingly, I am satisfied that there has been no reviewable error of law or fact committed by the RRT in relation to the question of habitual residence.
Other matters
A number of other matters were raised in the Amended Application filed by the applicant on 30 April 1997. Although this was originally filed without leave, no opposition was raised to the grant of leave and accordingly I grant leave to file the Amendment.
The applicant submits that the RRT failed to act in accordance with s 420 of the Act which requires it to pursue the objective of providing a mechanism of review that was fair and which also required it to act according to substantial justice and the merits of the case. In support of this ground the applicant relies on what he says was the incorrect interpretation of Article 1A of the Convention. This question has been determined above.
It is also said that the RRT did not give genuine consideration to a number of matters and therefore did not act according to substantial justice and the merits of the case.
There is no substance in any of these matters and it is therefore not necessary to apply the principles set out by the majority of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.
The applicant alleges that the RRT did not give genuine consideration to the importance of his unlawful attempt to immigrate to Indonesia by obtaining a forged Indonesian passport in Hong Kong. It is said that this was a clear indication that the applicant had only stayed in Hong Kong as a matter of necessity rather than choice, thereby supporting his well-founded fear that he was not safe in Hong Kong.
The relevant facts in relation to this attempt to return to Indonesia are set out in detail in the decision under review. The RRT noted that the applicant’s evidence concerned his fear of returning to Hong Kong upon reversion of Hong Kong to Chinese sovereignty in 1997. The RRT also noted the evidence of the applicant’s sister to the effect that he was worried about returning to Hong Kong because of the Communists and that he preferred to live in Australia.
The evidence does not indicate that the RRT failed to give genuine consideration to the fact that the applicant sought to return to Indonesia.
It is also submitted that the RRT did not give genuine consideration to the position of the applicant with respect to his former persecutors if he was forced to return to Hong Kong after 1 July 1997. The RRT was not satisfied on the evidence that he faced any real chance of treatment amounting to persecution if he was returned to Hong Kong in the foreseeable future, even when Hong Kong reverted to the Peoples Republic of China. An examination of the reasons for the decision of the RRT indicate that careful and detailed consideration was given to the position of the applicant if he returned to Hong Kong after 1 July 1997.
It is said that the RRT ignored the fact that the applicant did not have documents allowing return to Hong Kong, nor did he enjoy any automatic right of return to Hong Kong. This is a question of fact. In forming its view, the RRT referred to specific extracts from the Draft Agreement between the United Kingdom and the Peoples Republic of China (“PRC”) on the future of Hong Kong, 26 September 1984, (“the Basic Law”) relating to all non-Chinese nationals who had lived in Hong Kong continuously for at least seven years and who had taken it as their place of permanent residence. The Basic Law conferred a right of abode on such persons, thereby the RRT considered that the PRC recognised Hong Kong residents as a special case to be treated as such and not merely absorbed into the PRC. This finding as to there being no fear of persecution was open on the evidence.
There is no substance to the submission that the RRT incorrectly interpreted the expressions “real chance” and “well-founded fear of persecution”. The relevant principles are set out in the decision and there is no reason to accept the proposition that these principles were ignored or misapplied by the RRT.
Finally, it is not correct to submit that the only available conclusion on the facts was that the applicant had a well founded fear of persecution when he left China and when he left Hong Kong. The critical question was his state of mind at the time when the determination is made. Circumstances in the PRC had significantly changed from the time when he quit China to the time of the determination. It was open to the RRT to form the view that there was no well-founded fear at the relevant time.
Conclusion
The application should be dismissed. I make no order as to costs of this application.
I certify that this and the preceding seventee (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 8 September 1997
Counsel for the Applicant: Mr B A Caffrey Solicitor for the Applicant: Partners in Law Counsel for the Respondent: Mr R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 2 May 1997 Date of Judgment: 8 September 1997
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