Minister for Immigration & Multicultural Affairs v Gui - [1999] FCA 1496

FEDERAL COURT OF AUSTRALIA
Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496
MIGRATION – appeal from decision of primary Judge allowing respondent’s appeal from decision of the Refugee Review Tribunal refusing protection visa – membership of a social group – homosexuals – respondent’s arrest for homosexual activity in public place in 1993 – respondent departing China in 1996 – evidence of respondent being able to take part in active gay community – evidence of homosexuality, if discreet, being tolerated – whether RRT erred in failing to find objective fear of persecution without “negating or qualifying” earlier findings
1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, Article 1A(2)
Migration Act 1958 (Cth) ss 430, 476(1)(e)
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 distinguished
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied
Morato v Minister for Immigration (1929) 39 FCR 402 cited
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v
GUO PING GUI
N 52 OF 1999
HEEREY, CARR AND TAMBERLIN JJ
SYDNEY
29 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 52 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Appellant

AND:

GUO PING GUI
Respondent

JUDGE:

HEEREY, CARR & TAMBERLIN J

DATE OF ORDER:

29 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The appeal is allowed.
2. The respondent is to pay the appellant’s costs of the appeal.
3.The respondent is to also pay the appellant’s costs of the hearing before the primary Judge.
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

N 52 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Appellant

AND:

GUO PING GUI
Respondent

JUDGE:

HEEREY, CARR & TAMBERLIN J

DATE:

29 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The Minister appeals from a judgment of a judge of this Court which set aside a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of a delegate of the Minister not to grant the respondent Mr Gui a protection visa. The RRT, like the delegate, was not satisfied that Mr Gui was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”). The Convention by Article 1A(2) defines “refugee” as any person who:
“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] FCA 1496
Decision Date: 29 OCTOBER 1999

CaseChat Overview and Summary

The case involved the Minister for Immigration & Multicultural Affairs, acting on behalf of the respondent, and Mr. Gui, the applicant, in a dispute concerning the applicant's eligibility for refugee status under Australian law. Mr. Gui, a Chinese national, applied for refugee status on the grounds of persecution due to his sexual orientation. The Refugee Review Tribunal (RRT) had previously assessed Mr. Gui's application and found that his activities in a gay community in China had brought him to the attention of authorities, but concluded that this did not amount to persecution for a Convention reason. The applicant sought judicial review of the RRT's decision in the Federal Court of Australia.

The legal issues before the court included whether the RRT had correctly applied the relevant legislation in assessing Mr. Gui's eligibility for refugee status. Specifically, the court had to consider whether the RRT had appropriately evaluated the evidence regarding Mr. Gui's participation in a gay community and the potential risk of persecution if he were returned to China. The court also needed to examine whether the RRT's findings on the nature of the summons against Mr. Gui were legally sound and whether they supported the conclusion that Mr. Gui's case did not meet the criteria for refugee status.

The Federal Court, in its judgment, allowed the appeal and set aside the RRT's decision. The court found that the RRT had failed to adequately consider the evidence and the implications of Mr. Gui's membership in a particular social group, specifically homosexuals in China. The court highlighted that the RRT did not give sufficient weight to the circumstances existing at the time Mr. Gui left China, which included well-founded fears of persecution based on his sexual orientation. The court emphasised that in the absence of substantial evidence indicating a change in the state of affairs in China, an applicant's fear of persecution should not be dismissed. By referencing previous cases such as Chan v Minister for Immigration and Ethnic Affairs, the court underscored the importance of maintaining the well-founded fear of persecution established at the time of departure, unless there is compelling evidence of a material change. Consequently, the court ruled that the RRT's decision did not correctly apply the law, and the appeal was allowed. The respondent was ordered to pay the applicant's costs of the appeal and the hearing before the primary Judge.

Orders

Orders of the court

1. The appeal is allowed.

2. The respondent is to pay the appellant’s costs of the appeal.

3. The respondent is to also pay the appellant’s costs of the hearing before the primary Judge.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEEREY, CARR AND TAMBERLIN JJ

The RRT determined, on Mr Gui’s evidence, that since 1993, he had been able to take part in an active gay community, that he was caught in a public place engaging in conduct which was unacceptable according to the cultural norms prevailing in China, and that it was this behaviour which brought him to the notice of the authorities. It referred to the fact that he had not been arrested or detained on any other occasion. Although it had doubts in accepting the authenticity or validity of the 1996 summons, the RRT proceeded on the basis that the summons was valid. However, it considered that, on the evidence, the summons related to an illegal video which Mr Gui’s friend stated has since been confiscated. The RRT considered that if Mr Gui is wanted in relation to this matter it is because he is thought to be associated in some way with the possession of an illegal video. This, in the RRT’s view, amounted to a requirement that he attend to be questioned in relation to a criminal offence under the law of China and therefore is not persecution for a Convention reason.Judgment at first instance The primary Judge noted the Minister’s concessions that homosexuals in Shanghai constituted a “particular social group” and that it was implicit in the findings of the RRT that Mr Gui had a subjective fear of persecution by reason of his membership of that group. His Honour considered that while it is not necessary to establish past persecution, where evidence of past maltreatment in fact exists, it may be an indicator of the fate which may await the applicant should he be returned to China. His Honour then referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. His Honour drew particular attention to a number of passages in that case (In all the following passages the emphasis has been added by the present Court). His Honour quoted from the judgment of Mason CJ, who said at 391:“The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr. Chan’s fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality.” (Emphasis added) The following passage from Dawson J at 399 was quoted by his Honour:“Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status. That must be so in the present case where the delegate in his reasons did not seek to point to any significant change in attitude towards the appellant on the part of the authorities in the People’s Republic of China.” (Emphasis added)

Ratio Decidendi

Legal Principle Established

Established by: HEEREY, CARR AND TAMBERLIN JJ

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 52 OF 1999

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	GUO PING GUI Respondent
JUDGE:	HEEREY, CARR & TAMBERLIN J
DATE OF ORDER:	29 OCTOBER 1999
WHERE MADE:	SYDNEY

BETWEEN:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant
AND:	GUO PING GUI Respondent

JUDGE:	HEEREY, CARR & TAMBERLIN J
DATE:	29 OCTOBER 1999
PLACE:	SYDNEY