Liu, G. v The Minister for Immigration, Local Government and Ethnic Affairs
[1992] FCA 1016
•22 DECEMBER 1992
Re: GANG LIU
And: THE MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. V G495 of 1992
FED No. 1016
Number of pages - 9
Administrative Law
(1992) 29 ALD 500 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIAN DISTRICT REGISTRY
GENERAL DIVISION
Keely J.(1)
CATCHWORDS
Administrative Law - Immigration - application for injunction restraining Minister from removing applicant from Australia - whether serious question to be tried as to (1) whether delegate had regard to Report of Australian Human Rights Delegation to the People's Republic of China (2) whether report relevant to matter before delegate and (3) whether delegate's decision was so unreasonable that no reasonable delegate could have so decided.
Gang Liu v. The Minister for Immigration, Local Government and Ethnic Affairs
HEARING
MELBOURNE, 18 December 1992
#DATE 22:12:1992
Counsel for the Applicant: Mr B.A. Keon-Cohen
Solicitors for the Applicant: Erskine H. Rodan
Counsel for the Respondent: Mr A. Cavanough
Solicitors for the Respondent: Australian Government Solicitor
ORDER
THE COURT ORDERS THAT:
1. The respondent, by himself his servants or agents, be
restrained from removing the applicant from Australia pending the hearing and determination of matter number VG 495 of 1992, or further order.
2. The hearing of paragraphs 2, 3 and 5 of the applicant's
notice of motion, dated 14 December 1992, be adjourned to 17 February 1993.
3. The costs of both parties in respect of paragraph 1 of the
applicant's notice of motion dated 14 December 1992 be reserved.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court rules.
JUDGE1
KEELY J. Gang Liu ("the applicant"), a citizen of the People's Republic of China ("the P.R.C"), now aged 38 years, who arrived in Australia on 28 December 1989 as a student, applied under the Administrative Decisions (Judicial Review) Act ("the Judicial Review Act") for an order to review certain decisions by the Minister for Immigration, Local Government and Ethnic Affairs ("the respondent") or his delegate. Those decisions were described in the application as:-
"1. The decision made or conduct engaged in on or about 3 December 1992 by the Respondent or his delegate made pursuant to the Migration Act 1958 and Regulations as operative on 25 May 1990 to refuse the Applicant's application for refugee status made on 25 May 1990 ("the first decision").
2. The decision made or conduct engaged in by the Respondent or his delegate on or about 13 July 1992 pursuant to the Migration Act 1958 and Regulations to refuse the Applicant's deemed Application for a Domestic Protection (Temporary) Entry Permit, made on 25 May 1990 ("the second decision").
3. The decision made on 10 December 1992 by the Respondent pursuant to section 60 of the Migration Act 1958, to deport the applicant from Australia ("the third decision").
4. The decision made on or about 28 October 1992 by the Respondent or his delegate to arrest and detain the Applicant in custody, and not to release the Applicant from custody, pursuant to section 92 of the Migration Act ("the fourth decision").
5. The decision required to be made or conduct required to be engaged in by the Respondent on 10 December 1992 prior to the issue of the said Deportation Order to accept, to refuse or otherwise deal with an application made by the Applicant on 10 December 1992 based on s.115 of the Act ("the fifth decision")."
Having given notice, dated 14 December 1992, the applicant has moved the court for an order that:-
"The Respondent, by himself his servants or agents, be restrained from removing the Applicant from Australia pending the hearing and determination of this matter, or further order."
The present hearing has proceeded on the basis that the order will be made if the applicant has shown a serious question to be tried in respect of the first decision. The submissions by both counsel were directed mainly towards that decision but the grounds relating to it were also relied upon in relation to "the second, third, fourth and fifth decisions" (paragraph 7 of the application).
The first decision was made by Mr. J. Davidson ("the delegate"). He has not furnished to the applicant a statement of reasons under s.13 of the Judicial Review Act but, by letter dated 3 December 1992, he informed the applicant of his decision that he was "not a refugee" and enclosed a "copy of my assessment and record of decision" ("the delegate's assessment"), which consisted of seven pages.
The delegate's assessment included statements that "I share the view of the primary delegate ..." (paragraph C 4), "I share the doubts expressed by the primary delegate ..." (paragraph C 6) and "I agree with the primary delegate's findings ..."(paragraph C 10). The "primary delegate" was Ms S.K. Lawrence, who had decided on 13 July 1992 that the applicant was "not a refugee" and forwarded to him a "statement of reasons for my decision" ("the primary delegate's reasons"). The applicant has deposed "that the first intimation I had of the rejection of my application was upon my arrest on 28th October 1992".
One of the attacks made upon the delegate's first decision related to the statement in his assessment (paragraph C 10) that "I agree with the primary delegate's findings concerning the report of the Australian Human Rights Delegation to the PRC ..." (see paragraph 6(a)(iv) of the application). The applicant's counsel pointed out that the delegate's "assessment" included the following:-
"B EVIDENCE OR OTHER MATERIAL ON WHICH MY FINDINGS ARE BASED
In reaching the findings below, I had regard to the following material : ..."
Counsel relied upon the fact that the "following material", to which he had "had regard" did not refer to the "Report of the Australian Human Rights Delegation to China 14-26 July 1991" ("the Australian Human Rights Delegation Report"), which was stated by the primary delegate to be a document to which she had had regard. The applicant's counsel submitted that the delegate had not examined that Report but had simply accepted the finding of the primary delegate. Asked by the court whether that Report was part of the departmental file 90/37188, which was cited by the delegate as material to which he had "had regard", the respondent's counsel, after obtaining instructions, said "that the likelihood is that a document of that character would be library material as distinct from being on this individual's file". He submitted, however, "that the delegate has had regard to that report ... he may not have needed to read it separately for this particular case; he may (have) read it many times before ... one would have thought ... it would be even better known within the department that deals with applications for refugee status made by citizens of the PRC (than in the community generally)" (transcript 73).
The applicant's counsel tendered the Australian Human Rights Delegation Report and the respondent's counsel, after obtaining instructions, did not object - but without conceding its relevance. The applicant's counsel contended that the Report was relevant, and should have been considered by the delegate because (1) it contained "material relevant to the issue discussed by the delegate as to how does the government of China treat dissidents returning from overseas" it contained material as to "how does the government deal with people involved in counter-revolutionary activities, which is a more precise question touching upon the applicant" (transcript 75-76) and (3) "insofar as the delegate is assessing the Chinese government's respect for human rights, the report is central" (transcript 76).
The Australian Human Rights Delegation Report to the Minister for Foreign Affairs and Trade, dated 9 September 1991, represented "the views of all members of the Delegation". Those members were Senator Schacht, (Leader of Delegation), Mr D. Connolly MHR (Deputy Leader), Senator Bourne, Professor Fitzgerald, AO, (Asia-Australia Institute), Mr J Sheppard, (Department of Foreign Affairs and Trade), Professor Alice Erh-Soon Tay, AM, (University of Sydney Law School), Dr R Rigby, (Australian Embassy Beijing), Mr C Sidoti, (Human Rights and Equal Opportunity Commission), and Mr K Garratt, (Department of Immigration, Local Government and Ethnic Affairs).
The "Executive Summary" at the beginning of the Australian Human Rights Delegation Report (p vii) included the following passages:-
"12 ... In essence these qualifications amount to enabling the State authorities to determine when State interests (loosely defined) over-ride individual rights. ...
13. The interests of the State are in turn equated with the interests of the Communist Party of China, which under Marxist-Leninist-Mao Zedong dogma, is seen as the instrument which reflects the collective will (or the "democratic dictatorship of the people"). The pervasive Party system ensures that Party directives are taken as the basis on which the legal and judicial system operates. In this situation, the Delegation was concerned to observe that political dissent, or the exercise of most fundamental civil rights, is treated as a crime against the State, and as such is the subject of severe punishment.
14. ... In particular, the Delegation believes that the lack of any presumption of innocence in judicial proceedings is an infringement of basic rights ... as is the usage of administrative detention as punishment for non-criminal activity, including social, political and religious dissent.
17. The Delegation deplores the frequent use of capital punishment, and was disturbed by the convincing body of evidence that torture and ill-treatment of prisoners is widespread."
Chapter 4 of the Report, headed "Human Rights Issues in China", contained the following passages:-
"... The Delegation was well aware, before setting out, of reports and well-documented allegations of human rights violations in China. Such reports relate to detention without Trial, arbitrary arrest and detention for the exercise of fundamental freedoms, torture and ill-treatment and frequent use of the death penalty.
2. ... According to Amnesty International, hundreds of political detainees are still being held without charge or trial, including many who were detained following the events of 4 June 1989 - even allowing for recent releases. Other prisoners, both before and after June 1989 have been sentenced for "counter- revolutionary crimes" against the State.
7. The Constitution is the basic law and has the highest authority. Laws, decrees and regulations may not contravene the Constitution. However, the Constitution may not be cited in court, and courts do not have the power to interpret it - this is reserved for the National People's Congress and its Standing Committee.
11. The Delegation remains of the opinion that many individuals charged with "counter-revolutionary" offences in China have in fact been punished for exercising freedoms which are well established by international law, and in particular by the Universal Declaration of Human Rights.
29. The Delegation expressed its concern that freedom of assembly and peaceful association were not in practice respected, and over the apparent degree of political interference in citizens's constitutional rights in this area. The Delegation made specific representations over a number of cases where individuals had been imprisoned for activities which were in keeping with their fundamental rights as encapsulated in the Universal Declaration of Human Rights.
37. The Delegation expressed concern over reports that the death penalty had been used in the punishment of persons involved in pro-democracy demonstrations; and was told that it had been applied against "anti-social elements" convicted of "burning, smashing and looting" during public disturbances, but that no-one charged only with counter-revolutionary crimes had been sentenced to death for those activities. 76... The Delegation was told repeatedly that China has no political criminals, but large numbers on the Amnesty and Asia Watch lists, while charged under various offences, are nevertheless in prison for expressing political views."
Chapter 6 of the Report headed "Chinese interests in Human Rights in Australia", contained the following passages:-
"9. Three other concerns relating to Chinese students in Australia were raised by the Delegation: ....
. there had been allegations that Chinese students in Australia had been subjected to surveillance and harassment by Chinese Consular officials.
10. The Ministry official ... In relation to the surveillance and harassment of Chinese students in Australia, he stated that the matter would not be pursued further because the topic was the rights and interests of Chinese students. He indicated that these students were attacking China and so it was natural that Chinese Consular officials should seek to defend China. He said that they had gone to Australia to pursue their campaign against China.
11. The Delegation was concerned at the acknowledgment of surveillance and harassment of Chinese students ... It considers that the Australian Government should make strong representations to the Chinese authorities ... requiring a cessation of the harassment of persons lawfully in Australia undertaking activities lawful under Australian law."
The passages set out (above italics added) give some indication of the matters dealt with in the Report, which occupied 38 pages plus 45 pages of annexures. In his "assessment" the delegate made only two references to the Report. One (p 2) was to the applicant's claim that "the report on China by the Australian Human Rights Delegation confirmed that there are still large scale human rights abuses in China". The other was his statement "I agree with the primary delegate's findings concerning the report of the Australian Human Rights Delegation to the PRC ..." (paragraph C 10). The "findings" with which he agreed (paragraph C 8 of the primary delegate's reasons) were as follows:-
"8. I accept that the Australian Human Rights delegation to the PRC of July 1991 concluded that the current Chinese system contains many constraints on individual freedoms and basic human rights. However, the general findings of this delegation are irrelevant in respect of Mr Liu's claim for refugee status. - The United Nations High Commissioner for Refugees (UNHCR) "Handbook on Procedures and Criteria for Determining Refugee Status" stipulates that: " ... an applicant for refugee status must normally show good reason why he
(/she) individually fears persecution." (paragraph 45) I conclude that citation of this delegation's findings by Mr Liu does not establish that he (has) a well-founded fear of persecution in terms of the 1951 Convention."
In my opinion the applicant's counsel has shown that there is a serious question to be tried as to whether the making of the first decision (on 3 December 1992) was an improper exercise of power in that relevant considerations were not taken into account, namely, the contents of the Australian Human Rights Delegation Report. It represented the unanimous views of all nine members of the Australian Delegation and had been relied upon by the applicant in the submission lodged by him on 18 March 1992.
The respondent's counsel said that the delegate "may not have needed to read it separately for this particular case; he may (have) read it many times before ..." (transcript 73). It is arguable that, whether he had recently read the Report or not, the contents of it were not present to his mind when he wrote (paragraph C 12):
"Chinese government sources confirmed that no students returning from abroad were to be punished for participating in demonstrations, etc.
There is nothing in the delegate's assessment to suggest that, in considering that statement by "Chinese government sources", the delegate gave any consideration to the observations in the Australian Human Rights Delegation Report - see, for example, Executive Summary paragraphs 13 and 14, chapter 4 paragraphs 11, 29 and 37 and chapter 6 paragraphs 9, 10 and 11. The respondent's counsel submitted that:-
"the court ought to draw the inference that the delegate did look at that report, or had looked at it sufficiently recently that he could say confidently what he said in paragraph 10 on page 7 of his reasons."
I am not prepared to draw that inference on the material before the court.
It is seriously arguable that the delegate, by simply agreeing "with the primary delegate's findings concerning the (Human Rights Delegation) report" did not take into account relevant parts of that Report. It is also seriously arguable that the delegate failed to take into account the "criminal law of the PRC promulgated on 6 July 1979", a matter which was taken into account by the primary delegate (see Section B).
In my opinion it is also arguable that, in the light of the material contained in the unanimous Report of the Australian Human Rights Delegation to China, dated 9 September 1991, the exercise of the power by the delegate on 3 December 1992 was so unreasonable that no reasonable delegate could have so exercised the power.
It is not necessary to express an opinion as to other matters advanced by the applicant's counsel.
In my opinion the court should in the exercise of its discretion, make the order sought by the applicant, restraining the respondent from removing him from Australia pending the hearing and determination of the matter, or further order. The costs of both parties should be reserved.
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