Minister for Immigration and Ethnic Affairs v Guo Wei Rong

[1996] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S36 of 1996

B e t w e e n -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Applicant

and

GUO WEI RONG

First Respondent

and

MS S. McILLHATTON, Member constituting the Refugee Review Tribunal

Second Respondent

Office of the Registry
  Sydney  No S37 of 1996

B e t w e e n -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Applicant

and

PAN RUN JUAN

First Respondent

MS S. McILLHATTON, Member constituting the Refugee Review Tribunal

Second Respondent

Applications for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1996, AT 11.16 AM

Copyright in the High Court of Australia

MR J.C. BASTEN, QC:   I appear for the applicant in both those matters, if the Court pleases.  (instructed by the Australian Government Solicitor)

MR S.D. RARES, SC:   If the Court pleases, I appear with MS R. SOFRONIOU for the first respondents in the two matters.  (instructed by Jackson Smith)

BRENNAN CJ:   In the matter of Minister for Immigration and Ethnic Affairs v Guo and Another, the Deputy Registrar certifies that he has been informed by the Australian Government Solicitor, solicitor for the second respondent in the above matter, that the second respondent does not wish to be represented at the hearing of the application for special leave to appeal and will submit to any order of the Court save as to costs.  There is a further certificate from the Deputy Registrar in relation to the matter of Minister for Immigration and Ethnic Affairs v Pan in the same terms as that in the case of Guo.  Yes, Mr Basten.

MR BASTEN:   Your Honours, these applications raise two matters on the basis of which special leave is sought.  The first concerns the real chance test which this Court considered of course in Wu Shan Liang and it is clear that Justice Einfeld, with whom Justice Foster agreed, applied what this Court defined as the false line of authority which arose from the decisions of the Full Court in Mok and Chan and in fact also in relation to Guo which was identified in Wu at (1996) 70 ALJR 568 in a footnote at page 570 as being one of those cases which formed the false line of authority.

With respect, we would say that if for no other reason it would be appropriate to grant special leave in the present case to correct the decision below on the basis that it involved the same reconsideration of factual matters which should properly have been left to the decision maker.  I am sorry, I think I gave your Honours a reference to the footnote at page 570.  It is at 580.  The footnote is No 56 and the point is considered at columns 1 to 2.  The reference in the footnote to the two passages in Justice Einfeld’s judgment firstly is that at application book pages 208 to 209, and in relation to Justice Foster’s judgment at application book 252 to 259.

The difficulty with the decision in the Full Federal Court in Guo goes beyond, however, that point.  The test which was formulated by the majority is, in our respectful submission, too restrictive of the decision maker’s function and is not required by the simple statement of law that the decision maker be satisfied as to the requirements for refugee status.  In so far as the decision requires at pages 213 to 215 in Justice Einfeld’s judgment the formulation of a test which goes well beyond that, it requires the formulation of a test which, in our submission, may well be inappropriate even on the very facts of this case.

Firstly, if I might take your Honours to 212 in the application book, it is clear that the propositions which his Honour propounds are derived from the judgment of Justice Sheppard in Mok which he quotes in the middle of page 213.  At line 35 he says:

This approach could be appropriate for the circumstances of a case such as the one at hand.  The Tribunal could assess past events on a balance of probabilities test to make its findings, and then engaged in the speculation of ‘what if I am wrong’.  Proceeding on the basis that it was probable that events had transpired as it had found and were not Convention related, but that it was nonetheless possible that they were Convention related ‑ ‑ ‑

GUMMOW J:   Assuming you are right about that, Mr Basten, what consequences flow?  Mr Justice Beaumont decided it on a distinct ground, did he?

MR BASTEN:   Justice Beaumont did, your Honour.

GUMMOW J:   And Justice Foster agreed with him, is that right?

MR BASTEN:   We appreciate that Justice Foster appears to have agreed with both of their Honours.  In so far as Justice Beaumont decided it on a distinct ground, he appears to have decided it on the ground, your Honour, that required the restatement of the question of fact or the question for identification by the Tribunal and answer by the Tribunal at page 191 of the application book, in a way which we would submit is again inaccurate.  Firstly, at page 191 at line 36 he says:

Specifically, did the Tribunal really address the question whether the conduct of Mr Guo, looked at as a whole, was capable of being perceived by the Chinese authorities as politically neutral, on the one hand, or as politically significant, on the other -

Then at page 192 at line 30 his Honour adopted the following formulation:

That is to say, the Tribunal did not, in truth, consider whether, even if not explicit, a political opinion could be inferred by the authorities from what Mr Guo had done when account was taken of all of his conduct.

Without wishing to quibble, I suppose the political opinion could reasonably - there was a real chance that it would be inferred and acted upon by the authorities.  But the correct question, in my submission, was whether on the basis of his conduct and other relevant considerations he faced a real chance of persecution because of an imputed political opinion if returned to the People’s Republic of China.  In other words, what is being asked is a question which falls slightly short of the ultimate question which it is for the Tribunal to ask.

The fact of the matter is that the Tribunal did ask the ultimate question.  The difficulty seems to have arisen because nobody put anything other than the question of illegal departure on the basis of imputed political opinion.  Thus the question of whether the birth of a third child should be so considered was not taken into account until it came to the Full Federal Court.  It was a matter which was discussed at some length by the Tribunal at pages 39 through to 42 or 43 in the decision of the Tribunal with respect to Mrs Pan.

It can hardly be said that this was not a matter of which the Tribunal was aware.  The fact is that in those pages the Tribunal member simply discounted the view that Mrs Pan in fact faced forcible sterilisation and therefore did not come to the ultimate question.  But in answer to your Honour Justice Gummow’s question, we would say that Justice Beaumont also erred in failing to restrict his formulation of the question to the ultimate question.

GUMMOW J:   The reason why I asked is that I am puzzled as to what the footing was in this case in the Federal Court for judicial review.  It seems to have roamed far and wide.  One begins looking at the primary judge, and I can understand the footing on which he explains it at the bottom of page 57: “errors of law” and denial of natural justice.  I can understand that.

MR BASTEN:   I do not understand that there was any denial of natural justice pursued by the time it got to the Full Court.

GUMMOW J:   That dropped away.

MR BASTEN:   That dropped away.

GUMMOW J:   But then I go to the Full Court and Justice Beaumont at pages 166 to 167 and it looks like a claim for a declaration that these people have a certain status.

MR BASTEN:   It was formulated in terms of a claim for the declaration, and that of course his Honour Justice Beaumont did not accede to but the majority in the Full Court did, and that is the second basis of the difficulty which we foresee in this case.  Perhaps it is in a sense the stronger basis on which we seek special leave because the formulation of a declaration in this case has the effect of simply removing from the statutory repository of decision‑making power the power to make decisions on questions of fact.

BRENNAN CJ:   If the grant of special leave were limited to the relief question and if you succeeded on that, the matter would then go back to the decision maker, would it not?

MR BASTEN:   Yes, I think that is correct, your Honour.

BRENNAN CJ:   Then why should this Court be involved in the material to which you have been addressing yourself thus far?

MR BASTEN:   In relation to the first question?

BRENNAN CJ:   Yes, especially with six days of evidence before Justice Sackville.

MR BASTEN:   We would not wish to address ‑ ‑ ‑

BRENNAN CJ:   I know you would not wish to, but Mr Rares might be entitled to rely on it all and take us through it line by tedious line.

MR BASTEN:   It was not before the Full Federal Court, your Honour, so I doubt that ‑ ‑ ‑

BRENNAN CJ:   I appreciate that also.

GAUDRON J:   I do not understand why it was ever before the single judge if the grounds of review were limited to error of law and denial of natural justice.

MR BASTEN:   There was objection taken to the evidence called by the applicants.  There was an issue of fact in relation to the nieces that is not before your Honours as to why their applications had been withdrawn, and that was why we called some evidence from the Tribunal member who, being alone and without assistance in Port Hedland, had had a conversation in the street which was obviously not covered by any privilege.  So that was why some of the evidence was there but it would not have troubled your Honours in any event.

GUMMOW J:   But the primary judge dismissed the application for review.

MR BASTEN:   Yes, on traditional lines.

GUMMOW J:   Yes.  In other words, the decision of the Tribunal which was favourable to your client was sustained?

MR BASTEN:   Yes.  I suppose that if the decision of the Full Court in relation to the first issue, namely the application of the test, were incorrect, then it would simply be a matter of dismissing the appeal to the Full Court, if it were correct to say that the primary judge had applied the correct test, in which case it would not be necessary for it to go back to the Tribunal.  I am sorry, that perhaps provides a more accurate answer to your Honour the Chief Justice’s question.

GAUDRON J:   If it were to go anywhere from here though, forgetting the mechanism for the moment, would it not be back to the Full Court to hear and determine the appeal in accordance with proper principles?

MR BASTEN:   Yes.  I am sorry, that might be right.  If the Full Court were to reach a contrary conclusion to the trial judge as a matter of law, then it might then go back to the Tribunal but not directly from this Court, I think is what I should correctly have said to your Honour.

BRENNAN CJ:   I must confess for my part I would be anxious to ensure that, so far as practicable, this Court was not involved in the sorts of problems which obviously have agitated both the trial judge and the majority of the Full Court in the courts below simply because it seems to me to be an unprofitable expenditure of time in rehearsing Wu again that has already been disposed of when, if the problem is this, the majority of the Full Court addressing themselves to the question of whether or not a declaration should be made involved themselves in these questions.  That was never open, if your argument be right.  At most it was a question of whether or not there should have been some sending back to the tribunal in order to rectify that which was wrong before.   If that remedy was inappropriate, then, as Justice Gaudron says, it can go back to the Full Court to reconsider and these matters that you have been addressing yourself to can be rehearsed once more.

MR BASTEN:   Yes, on the basis of the decision in Wu.

BRENNAN CJ:   Mr Basten, I think you had better advance your argument in toto and we will hear what Mr Rares has to say and then consider what course we should take.

MR BASTEN:   Your Honour, I had only one other point to make about the “real chance” test and the reason why we say the Court should consider that.  It is that the test which is set out at 213 through to 215 and which involves both the question set out at 213, line 40, as to speculation that the Tribunal must engage in on the “What if I am wrong?” basis in relation to past facts, a very broad and open‑ended form of speculation and as to the summary of the five‑stage process at page 215, whilst we would say that those steps are too restrictive in terms of the majority judgment in Wu, there was some support provided, at least in relation to the passage at 212 to 213, in the judgment of Justice Kirby in Wu at page 588 in the Australian Law Journal Report where, in the first column about halfway down, he refers to the “What if I am wrong?” test and in the footnote identifies the passage which is, generally speaking, that which appears at 212 to 213 in the application book.  So that there may be some difference of opinion as to precisely how the decision maker should go about her process in that regard.

The second question concerned the fact‑finding process which was undertaken for the purpose of granting relief in this case.  Your Honours, we would say that the approach adopted in the case, although it paid lip service to the authorities in Li Shi Ping v The Minister, (1994) 35 ALD 225, a Full Federal Court decision which your Honours have, and in particular the judgment of Justice Carr at pages 239 to 241, does not follow that approach.

GUMMOW J:   It went back in that case.

MR BASTEN:   Yes, as we say it should have done in this case.  Justice Carr’s decision was I think one with which your Honour Justice Gummow and Justice Sheppard agreed.  The critical passages appear in the middle of page 239:

In my opinion, it was for the decision‑maker to decide whether to take the matter of the Port Hedland demonstrations into account and, if he did, the weight to be attributed to it.  It was not a matter which the decision‑maker was bound, as a matter of law, to take into account.

Also the next short paragraph, and again at page 240, the end of the long passage in the middle of the page at about point 7:

For the court to take on the role of deciding these issues as part of judicial review of administrative action would, in my opinion, be to usurp the function of the decision‑maker.

That, we would say, is the correct principle.  There is now a conflict of authority in the Full Court and, in our submission, the approach adopted in this case was an inappropriate response and in particular, based as it was upon the need to make fact‑finding decisions in some cases, inconsistent with the fact‑finding exercise undertaken by the Tribunal.  I can take your Honours to those matters if that is necessary, but the issue of principle I think is formulated in those terms.  Those are our submissions.

BRENNAN CJ:   Thank you, Mr Basten.  Yes, Mr Rares.

MR RARES:   Your Honours, we submit that the Full Court were correct in what they did and they correctly applied the law.  The case was not simply a natural justice case.  It was a fully blown ‑ ‑ ‑

GUMMOW J:   No one suggested it was.

MR RARES:   - - -AD(JR) appeal, raising questions of whether the Tribunal failed to take into account relevant considerations, ignored and took into account irrelevant ones.  There was no evidence to base its findings.  You see, what the Tribunal did was it had in front of it and made a finding that Mr Guo was interrogated in gaol over 28 days on his return to China in 1992 about protesting in Australia against the People’s Republic of China among others which attracted international publicity.  The Tribunal said that interrogation about his political activities against the People’s Republic of China in Australia was not interrogation for a convention reason.  In our submission, it cannot be anything else, and that is what the Full Court said.  Your Honours will find these passages at the bottom of page 27:

The Tribunal accepts that the Applicant was arrested and imprisoned on his return to China from Australian in October 1992.  The Tribunal also accepts that the Applicant may have been questioned by the authorities about his activities in Australia including his refugee application, the rooftop protest and the card from an Australian official.  However -

and this, we say, is just a complete non sequitur and is an ultimate finding based on the primary facts that have just been made, which is judicially reviewable -

the Tribunal does not accept that the Applicant’s treatment on return was related to these activities.

How could it not be related that you are interrogated in gaol about protesting on the roof against the People’s Republic of China?  How could it not be related to your political beliefs?  She has found actual persecution in 1992 and then simply made a finding that was not open on the evidence.  She does not just leave it there.  She goes on to make it explicit ‑ ‑ ‑

GAUDRON J:   This is at the airport, is it, you are talking about?

MR RARES:   No, this is the total period of 28 days she is dealing with here, your Honour.  She makes a finding that he was imprisoned for the first period of 28 days as they alleged, and that has been common ground throughout.  There has never been any suggestion that she does not accept that.  Mrs Pan only got five days, your Honour, and nobody has disputed that.  That was in accordance with what the Chinese Foreign Minister told our Minister as an official assurance accepted by our government, that these very people, Mr Guo, his brother and Mrs Pan, got six days in detention with no fine and only interrogated about how they came to leave China.  What we have here is a finding of actual persecution.  It is exactly as happened in Chan.  Perhaps I could, if I may, hand up copies of the decision in Chan.

GAUDRON J:   I must say I do not read it as a finding of actual persecution at all.  There is some questioning about it but that was related - “related” may be not the best word - but that was not the reason for his treatment.

MR RARES:   But, your Honour, if one is interrogated in gaol about your rooftop protest in Australia that attracts international attention saying, “I’d rather die in Australia than return to China to be persecuted”, when you returned and the Chinese Foreign Minister has assured our government - and the Tribunal just never deals with this assurance - that these people were not interrogated.

GUMMOW J:   What is the evidence of that?

MR RARES:   We say that that was a relevant consideration which the Tribunal did not take ‑ ‑ ‑

GUMMOW J:   What is the evidence of it?

MR RARES:   The evidence was accepted by the Full Court.  It was all before the Full Court and their Honours accepted that.

GUMMOW J:   Was it before the decision maker?

MR RARES:   Yes, it was before the decision maker.  The decision maker had a letter from Mr Hand to Senator Harradine setting these things out, a letter from the Secretary of the Department to the Parliamentary Committee on Migration setting it all out, saying, “This is what happened to these very people when they were returned from Australia”.  There is not a mention in the Tribunal’s decision.  We say how could you not refer to the Chinese government actually saying to our government and our government accepting as an official assurance that these people got six days and no fine because they had been punished enough, the Minister said, and then went on to say, “Only interrogated about how they came to leave China”.

So you have a situation in which the official position of the Chinese government is:  this is what they got.  The tribunal finds no, they did not.  They got a fine of a substantial sum, they got 28 days in prison and they were interrogated about protesting against China in Australia.  In our submission, once you have those facts and there is no explanation given by the decision maker about how that could be explained away, you get into the Chan territory where the Court held that acts such as interrogation, detention, and we would submit fining, unless explained, prima facie amount to persecution.  That is what Sir Anthony Mason said in his judgment at 390 at the top of the page.  You have a situation also where ‑ ‑ ‑

GAUDRON J:   There is an obvious explanation, is there not, here?  That is, this man is incorrigible in a sense.  At this stage he has twice left China illegally by their laws.

MR RARES:   But his brother had not and he got exactly the same treatment.

GAUDRON J:   Is his brother a part of these proceedings?

MR RARES:   His brother’s decision was made by the same decision maker on the same day.  It was before their Honours in the Full Court and it was material that was taken into account.

GUMMOW J:   But was it before the decision maker?

MR RARES:   Yes, the decision maker refers to the fact that he and his brother ‑ ‑ ‑

GUMMOW J:   I must say, Mr Rares, what consumed six days before Justice Sackville, that took it six days?

MR RARES:   Your Honour, the two nieces’ case was involved as well which is now no longer continued, and that involved questions of fact and the way the department went.  We raised a question of conduct.  We said that taking people to Port Hedland away from anywhere that they could get access to the courts and legal advice readily was designed to put them in a position where they could exercise their rights to make proper applications.  We ran a case of denial of procedural fairness at the decision‑making level because these people were interrogated three times before they were allowed to see a lawyer.  The department called evidence about that, and we dealt with that.  We also submitted that the court was entitled to make a declaration as to status, because the Minister cannot finally determine the judicial rights ‑ ‑ ‑

GUMMOW J:   What was the footing for cross‑examination before the trial judge?

MR RARES:   Pardon, your Honour?

GUMMOW J:   What was the issue that generated the cross‑examination?

MR RARES:   There was a question of how they were treated in the administrative process.

GUMMOW J:   On judicial review?

MR RARES:   In the administrative process, whether the process was unfair.  Mr Basten cross‑examined Mr Guo for some time and then there was an issue as to how the nieces were treated that took up some time and there were legal arguments.  There was not evidence the whole way through for that period of time.

BRENNAN CJ:   What is the issue here on judicial review?

MR RARES:   The issue is that we submit that where you have got a finding of actual persecution which is not explained, it becomes ‑ ‑ ‑

BRENNAN CJ:   What is your best evidence of a finding of actual persecution first of Mr Guo and then of Mrs Pan?

MR RARES:   Your Honour, the best evidence is at the passage that I was taking your Honours to, and it was common ground everywhere, that that is an acceptance.  They went to gaol for 28 days and were interrogated about ‑ ‑ ‑

BRENNAN CJ:   Where is that?

MR RARES:   The account that she is referring to is at - the first imprisonment that she accepts at page 10, your Honour, down at line 41.  After his departure he was held for five days with his brother at the airport.

The PSB -

that is the security police -

did not question the Applicant during this period.  He stated he was given forms to complete relating to his identity, former place of residence in China and point of departure from China.  He and his brother were then transferred by the PSB to Bei Hai prison where they remained in custody for 23 days.  During this time the Applicant was physically mistreated.  He was questioned at length about his journey to Australia, a business card.....his activities in Australia including the roof top protest and other Chinese nationals who had also been in Australia with him.  The Applicant submits that the PSB had information about his role in the rooftop protest.  The Applicant and his brother were released on about 22 November 1992 and fined 3,000 rmb.  He was also required to pay associated costs.....because of his illegal departure.

So you have a situation - the next point is that the Full Court found on the evidence that there was nothing to support the Tribunal’s finding that there was any basis on which these people ‑ ‑ ‑

BRENNAN CJ:   That is a recitation of the evidence.  What does the Tribunal say about that evidence?

MR RARES:   At page 27, line 50:

The Tribunal accepts that the Applicant was arrested and imprisoned on his return.....accepts that the Applicant may have been questioned.....about -

all the things that he alleged.  That has got to be a finding of fact that he was.  You cannot make mealy‑mouthed findings, et cetera.  He then says that his treatment on return was not related to the activities and goes on at line 16:

The Tribunal finds the treatment the Applicant received on return to China in October 1992 to be reflective of punishment for illegal departure and not because of his political activities -

So it is not because of his political activities.  She accepts he engaged in political activities, she accepts he did it in Australia and got international attention but she says somehow when he is asked in gaol about those things, it is not ‑ ‑ ‑

BRENNAN CJ:   It is the questioning.  I mean, that as I read it is talking about the fact that he spent 23 days in addition to those first five days in custody.  She is saying she attributes that to punishment for his illegal activity.

MR RARES:   But the Full Court found on the evidence that there was no basis on which such a punishment could lawfully have been imposed on them.  They were never charged with that.

BRENNAN CJ:   We are not concerned surely with the Full Court’s view about the Chinese legal system.

MR RARES:   No, your Honour, but the Tribunal has to act on evidence.  If the Full Court comes ‑ ‑ ‑

BRENNAN CJ:   But the Tribunal finds here that his incarceration was due to his breach of the Chinese law.

MR RARES:   Yes.

BRENNAN CJ:   That is as far as it goes, is it not?

MR RARES:   No, but, your Honour, the only material before the Tribunal as to whether you could impose more than about 10 days on somebody was where Article 176 of the Chinese Criminal Code applied and that was only in circumstances where the circumstances were serious.  The evidence before the Tribunal, the only evidence as to that, was that you had to commit some sort of crime like stealing a boat or assaulting people to justify that, otherwise you could not have had that lawfully imposed.  If it could not be lawfully imposed, it is selective harassment, it is some sort of discriminatory treatment.  It is selecting these people out and they are not able to look to the law of China for their protection.  They are mistreated because the law of China, on the evidence before the Tribunal, did not allow the Tribunal to find this was reflective of a proper punishment.

BRENNAN CJ:   Are we going to find this somewhere in the six days before Justice Sackville, are we?

MR RARES:   Your Honour, the Full Court had the evidence in front of it and Justice Foster made a note that all the evidence for those things were in front of it, but that was all in the written material as to what was before the Full Court and before the Tribunal and before the trial judge.

BRENNAN CJ:   Were there notes of evidence taken before the Tribunal?

MR RARES:   Yes, there are transcripts.  But the material before the Tribunal and which the Full Court made factual findings on, as they were entitled to do - because it was just objective material saying whether there was any evidence before the Tribunal to enable it to come to this conclusion.  Every one of the Full Court said this was a conclusion that was not open on that evidence.

GAUDRON J:   I am not too sure that that is the right question in any event.  That seems to me the difficulty.  You are asking the wrong question.  You can ask, “Did they take irrelevant material into consideration; did they fail to take relevant material into account?”, in which event surely the consequence is, if either of those questions is answered to you, the matter is remitted to the Tribunal for proper consideration.  It is not a question of was there any evidence on which they could come - there clearly was evidence.  I mean, the evidence was clearly of a state where the Tribunal could make this finding if it wished to.  But the other questions are different questions and arise under the Act.

MR RARES:   No, there is a “no evidence” ground under the Act - section 5(1)(a).

GAUDRON J:   But this is not a “no evidence” issue that arises here.  It may be another issue but, if the Tribunal says “We prefer this evidence to that”, it is not a “no evidence” issue.  You have got the wrong question.

MR RARES:   But there was no evidence for the Tribunal to come to a conclusion that this was within the range of penalty for illegal departure of the kind they had.  There was just no evidence about it.  That was the point, your Honour, and that is why it was reviewable as an error.  The Full Court found in our favour on that.

GAUDRON J:   All right, so they have taken into account something that they should not have because there was no evidence.  That does not alter the fact that in those circumstances you would normally send it back for determination according to the proper evidence or the evidence that should be taken into account, not that you would go on then and find it was necessarily persecution, which seems to be what you are submitting and what the Full Court has done.

MR RARES:   We, with respect, adopt what the Court said in Chan’s Case because there was no explanation for this treatment.  That is the point.  It was incapable of being explained if it were not persecution and no explanation was given.  Once you depart from the law of the place on which the evidence says you can only impose a small period of detention and no fine, once you depart from the law of the place you then get into a situation where, absent an explanation, in our submission, according to what the Court said in Chan, you do not have anything that can otherwise explain it.  So you get to a point where you have, in our submission, the capacity to make a finding that people were persecuted.

BRENNAN CJ:   Mr Rares, you spoke about the “no evidence” point.  Justice Gummow has pointed out to me that section 5(3) of the AD(JR) Act provides that the “no evidence” ground “shall not be taken to be made out unless”, and the words are these:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material.....from which he could reasonably be satisfied that the matter was established -

How do you bring yourself within that?  In other words, how do you establish that the condition precedent to a finding was not there?

MR RARES:   What we say is that it comes within what Sir Anthony Mason said in Chan, that just ‑ ‑ ‑

BRENNAN CJ:   Whatever Sir Anthony Mason said in Chan, how do you bring within subsection (3)?

MR RARES:   Your Honour, we say that the Tribunal had to explain whether the imprisonment fell within the law of China as being punishment for illegal departure or was of the character alleged, persecution.  That was the condition.  I mean, she was eliminating whether or not he was a refugee.  If the law of China said that this treatment objectively viewed was more than the law permitted, then it was prima facie discrimination or selective harassment which required an explanation, otherwise these people were refugees.  They had been persecuted.

BRENNAN CJ:   Perhaps I should give you paragraph (b):

the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

MR RARES:   Yes, she said this was within the range of illegal departure - penalty for illegal departure.  That fact did not exist.  She had no evidence to come to that conclusion.  She said it was within the range.  The fact was it was not.  The evidence was all one way or, alternatively, we would just put it on the Wednesbury ground that it was so unreasonable ‑ ‑ ‑

BRENNAN CJ:   Time is running out, I know, and we have delayed you, but whereabouts is it that the law of China about the number of days of detention is expounded?

MR RARES:   It is in the majority’s decision, your Honour.  Justice Einfeld went through it at page 232 and following.

GUMMOW J:   Is this drawn from material that was before the Tribunal?

MR RARES:   Yes, your Honour.  All of it is from material before the Tribunal.  Your Honours will see at the top of 233 at line 10:

Article 14 provides for a maximum of ten days detention for illegal departures.

He then refers to 176 which says “when the circumstances are serious”.  The evidence before the Tribunal as to what that meant was, as I said, some sort of criminal act took place in leaving.  There was no evidence to suggest that that happened with our people, so that she could not come to the conclusion that that applied.  His Honour found that at ‑ ‑ ‑

GAUDRON J:   Why would it not extend to doing it for a second time?

MR RARES:   Because the material before the Tribunal said you had to be a person who had done some criminal act to get out, that it otherwise some sort of a violation of a law, but, secondly, your Honour, you have his brother who did not do it for a second time, but the escape in 1992 was not ‑ ‑ ‑

BRENNAN CJ:   If I might say so, the proposition that serious circumstances consist of stealing a boat or causing death and that the People’s Republic of China imposes a maximum of a year for escape with those circumstances of aggravation seems to me to be ludicrous.

MR RARES:   No, because 177 was the more serious type, but the evidence was that that was the serious circumstance.  You have the Foreign Minister of China saying these people got six days.  He was in a position to know more than anyone else and he was telling our government for public notice that was so.

BRENNAN CJ:   You have another three minutes to deal with the relief, Mr Rares.

MR RARES:   Your Honours, in our submission when you have a situation where all the primary facts have been found and it is shown that there was no material for the decision maker to come to the ultimate conclusions which she came to, and that is what we submit was here, then a court can and sometimes must intervene and make a declaration.  In Buck v Bavone which the majority referred to in Wu’s Case in a passage that continued from where the majority cited, Sir Harry Gibbs said at 135 CLR 119:

Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different.  It may then be possible to show clearly not only that the material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.

We rely on that kind of line of authority in Edwards v Bairstow and the like to say here the objective material which the Full Court found was before the Tribunal was entitled to be taken into account by just saying no other reasonable conclusion was open.

BRENNAN CJ:   Then it should have been mandamus, should it?

MR RARES:   Mandamus or a declaration, and that is what they did.  They made a declaration they were entitled to refugee status and ordered that they be issued visas because that was the duty of the Minister and we agree with that, your Honour.  We say this was a clear case.  It was a discretionary judgment of the Full Court, House v The King.  This Court does not just simply substitute its own ‑ ‑ ‑

GUMMOW J:   A discretionary judgment of the Full Court?

MR RARES:   Yes.  Once the Full Court found that there was error, it was entitled to take into account - I mean, making a declaration is discretionary and the granting of mandamus is a discretion as well and they are only exercised where the facts are there, but it is discretionary and, in our submission, the Full Court said, “Well, this is an extraordinary case.  These people have been in detention for more than two years”, and they were entitled, in our submission, to be released.  The Court, in fact, made a declaration of that kind in Park Oh Ho, as we set out in the end of our submissions, in an AD(JR) migration case. 

In Chan itself the Court said it has got to be sent back to the Minister to be determined in accordance with the reasons and the reasons were whether the delegate had miscarried in its decision by failing to take into account the fact that Mr Chan had been discriminated against in a way that was persecution and that that finding having been made it was very difficult, as your Honour Justice Gaudron said in Chan at 416, at point 7:

Once it is accepted that the delegate should have found that Mr Chan was persecuted for reasons of political opinion, the considerations which might reasonably lead to a determination that he lacked a well‑founded fear of being persecuted if returned to China are limited.

And, in our submission, that was the case here.  These people had left twice.  The second time was after he had lost all his livelihood.  He had had his boat taken away in circumstances where the Minister had said they would not be further punished.  He had lost everything.  They had had a third child 11 days before they got on a boat to come out here on a perilous voyage.  In our submission, the Full Court were entitled to come to the view that they did and say that enough was enough.  For those reasons we would submit that special leave ought in the circumstances of this case be refused.

BRENNAN CJ:   Thank you, Mr Rares.  Mr Basten.

MR BASTEN:   Your Honours, of all the grounds that were raised at the review, no evidence was not one of them and, secondly, my friend relies on Chan.  Chan was remitted for reconsideration despite the findings of this Court.  In relation to the facts which were found as compared with the facts found by the Full Federal Court, they are set out at page 30 of the Tribunal’s judgment in relation to Mr Guo and they are totally inconsistent with what the Full Court found.  They found at line 16 that:

If the Applicant were charged for illegal departure and or as an organiser of illegal departure by the authorities this is not related to a Convention ground......The evidence before the Tribunal does not suggest that the Applicant is differentially at risk for a Convention reason.

They found at line 36:

The Tribunal finds that he was punished by the authorities -

in the past -

because of the degree of criminality surrounding the offence and not because of an imputed political opinion.  The Tribunal finds that the fines imposed on his family in 1986 were related to the offence of illegal departure and not imposed because of the Applicant’s political profile.

The punishment the Applicant received on his return to China in 1992.....was unrelated to any political profile ascribed to him by the authorities as a result of illegal departure.  In these circumstances the Tribunal finds that the Applicant’s illegal departure in 1993 will not result in an imputed political profile.

That may be wrong but, with respect, there is no error of law shown by that and that was what Justice Sackville found.  It would be inappropriate, in my submission, to leave the decision of the Full Court to stand on the basis of a fact‑finding exercise which simply contradicts those findings of fact by the Tribunal.  In relation to the assurances, if the Court is concerned about how they were dealt with, they are dealt with in detail by Justice Sackville at pages 80 to 87.  They were only dealt with by the Full Federal Court on its own fact‑finding excursions and we would say they are not relevant to any question of law which would challenge the decision of the Tribunal.  Unless there are any specific matters that your Honour wished me to deal with, I wish to say no more in reply.

BRENNAN CJ:   Yes, thank you, Mr Basten. 

There will be a grant of special leave in this case.

Now, as to the material that is to be provided in the appeal books, we would need whatever material was before the decision maker, we would need the final grounds of the application for judicial review under the AD(JR) Act, the respective decisions of the judge at first instance and of the

Full Court and the orders that were made at first instance and by the Full Court.  Is there any other material that we would need to have reference to in order to determine the issues falling for consideration in this case on your part, Mr Basten?

MR BASTEN:   We would say no, your Honour.  We would say that some of the matter that was before the Tribunal will no longer be relevant.

BRENNAN CJ:   If there was an agreement as to what was irrelevant, then that could and should be omitted from the record book.  Mr Rares?

MR RARES:   Your Honour, we took a particular course in light of the authority which is now said to be a false line of authority.

GUMMOW J:   Not said, found.

MR RARES:   I am sorry, I thought I said - but your Honour is quite right, of course, in relation to how we would pose the appeal in the Full Court and there may be some matters that we would want to seek to reagitate on that.

BRENNAN CJ:   What matters?

MR RARES:   It may be that they are matters that would need to be remitted to the Full Court to look at because they are factual questions.  There were questions of whether the Tribunal could have taken views about credibility on the basis of objectively true material that was disbelieved below.

BRENNAN CJ:   That will come out from the grounds of the AD(JR) application.

MR RARES:   They did at first instance, but I have not reviewed those, your Honour, so I cannot say but I think that it is the material that was before the Full Court that will - plus its judgment and the orders.

BRENNAN CJ:   We are endeavouring to ensure that we are limiting this appeal book to the material that properly falls for consideration so that if, for example, in the judgments of the Full Court there appear matters to which they ought not to have had regard because it did not arise in the judicial review process, then we simply do not want to have them in the appeal book.

MR RARES:   Your Honour, I think that the parties agreed on a very narrow amount of material to go into the Full Court appeal books and there was about 450 pages I think that was there and that included ‑ ‑ ‑

BRENNAN CJ:   What was it?

MR RARES:   It was all the material on the penalties for illegal departure ‑ ‑ ‑

BRENNAN CJ:   Which were not before the Tribunal?

MR RARES:   All of it was before the Tribunal.  Everything was before the Tribunal.

BRENNAN CJ:   Yes.  I mean, anything that was before the Tribunal that is relevant is to go into the appeal book.  What we do not want to have are the six days before Justice Sackville.

MR RARES:   That was not before the Full Court either.

BRENNAN CJ:   And there was no further evidentiary material placed before the Full Court apart from what was before the Tribunal?

MR RARES:   There were the two files in respect of the brother, Guo Wei Zhi, and the brother‑in‑law, Pan Run Fu, which involved decisions made by the same decision maker on the same day.  That was before the Tribunal and we say it was before the trial judge in the Full Court and that was in the appeal papers before the Full Court and we say that was relevant.

BRENNAN CJ:   Yes.  What was before the Tribunal obviously can come into the appeal book here if it is necessary to do so.  Every effort should be made to ensure that only that which is necessary for the purposes of mounting the arguments is in the appeal books and, since the area of debate has obviously ranged fairly widely, it would be desirable to have written submissions from the parties before this matter comes on for hearing.  So that I think from the time from which the appeal book is filed there ought to be a fortnight after that time for the lodging of submissions on the part of the applicant and another fortnight after that time for the lodging of submissions on the part of the respondent.  Those submissions should contain precise references to passages which are relied on in the appeal book and they should contain precise references to any passage which reliance is placed upon from cited authorities.

MR RARES:   Would your Honours consider imposing a condition in respect of the grant of special leave in respect of the costs of the respondents?  Up until now and excluding today and which I have taken the matter on a speculative basis, we have appeared pro bono.  One of my juniors prepared a speculative brief, but these are people who have no assets, no particular resources.  To have to go to Canberra and prepare a full appeal, we would submit if the matter is one that attracts the Court’s intervention perhaps a condition could be imposed in respect of the reasonable costs of the respondent in any event for the appeal.

BRENNAN CJ:   What do you say about that, Mr Basten?

MR BASTEN:   I do not have instructions to consent to that, your Honour.  I think it is a matter for the Court.  We would certainly realise that were we ultimately successful our chances of recovering costs would be very small, but I do not have any instructions as to paying my friend’s costs in any event.

BRENNAN CJ:   Mr Basten, the Court is minded at the moment to withdraw its absolute grant of leave but only for a time in this sense, that it is obviously important that the respondents in this matter should be properly represented before the Court so that argument can proceed in a fashion that will elucidate the issues.  One can appreciate readily the problem that those on Mr Rares’ side of the record face in terms of the costs of conducting the proceedings from this point onwards.  In those circumstances it seems to us that a grant of special leave which might be productive of difficulty on a part of the argument is a different thing from an absolute grant of special leave.  The Court is minded to stand the matter down perhaps for half an hour to see if you can get some instructions.

MR BASTEN:   If your Honour pleases.

BRENNAN CJ:   Yes, we will do that.

AT 12.12 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.35 PM:

MR BASTEN:   Your Honours, I have those instructions now to consent to pay the costs of the respondent, limited to two counsel, which I think is not in argument, of the appeal.

BRENNAN CJ:   Upon that undertaking, special leave will be granted.

AT 12.36 PM THE MATTER WAS CONCLUDED