Minister of State for Immigration, Local Government & Ethnic Affairs v Xiang, C.G
[1994] FCA 534
•12 AUGUST 1994
MINISTER OF STATE FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS v. CHE
GUANG XIANG
No. WAG61 OF 1994
FED No. 534/94
Number of pages - 10
Immigration
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
JENKINSON, SPENDER AND LEE JJ
CATCHWORDS
Immigration - refugee status - P.R.C. citizen - assessment of a well-founded fear of persecution - membership of a family with a political profile - participation in pro-democracy activities - whether relevant consideration properly considered.
Administrative Decisions (Judicial Review) Act 1977
Migration Act 1958
Chan v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Hindi v. Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586
HEARING
PERTH, 20 July 1994
#DATE 12:8:1994
Counsel for the Appellant: S. Owen-Conway, QC
P.R. Cowles
Solicitor for the Appellant: Australian Government Solicitor
Counsel for the Respondent: G.M. McIntyre
Solicitors for the Respondent: Dwyer Durack
ORDER
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
JENKINSON, SPENDER AND LEE JJ This is an appeal from orders made by a Judge of this Court (Carr J.) that a decision of a delegate of the appellant ("the Minister") which refused an application by the respondent ("Che") for the grant of refugee status and of an entry permit be set aside and that the matter be returned to the Minister for redetermination.
Che is a citizen of the People's Republic of China ("P.R.C.") and until 15 July 1989 was fourth engineer on a Chinese bulk cargo carrier "Ju Hai". On 15 July 1989 whilst the "Ju Hai" was berthed at Dampier in the north-west of Western Australia and loading iron ore, Che deserted the vessel. He travelled to Perth, notified the Minister's Department ("the Department") of his presence in Australia and applied for permission to reside in Australia permanently as a refugee who held a well-founded fear of being persecuted in his country of origin for reasons of political opinion.
A form entitled "Application For Refugee Status" was completed by Che on or about 18 August 1989. Che neither spoke nor read the English language and the form was completed on his behalf by an interpreter. A type-written sheet, dated 22 August 1989, was attached to the application as a statement of Che's reasons for applying for refugee status.
After the application was lodged, a period of fifteen months expired before Che was interviewed by an officer of the Department in December 1990.
In early July 1992 the Department forwarded to Che its assessment of Che's application for refugee status in which it was stated that it had been concluded that Che did not have a real chance of being persecuted should he return to the P.R.C. By letter dated 22 July 1992 solicitors instructed by Che forwarded to the Department comments on the assessment and provided further information. On 24 July 1992 a delegate of the Minister determined that a grant of refugee status and entry permit should be refused. The decision was made without consideration of the solicitor's letter of 22 July 1992. In his reasons for decision the delegate stated that he had regard to the application for refugee status lodged by Che, a letter from Che's father dated 1 March 1990, and an "interview transcript" dated 2 March 1991. In the absence of any evidence on the point it must be assumed that the transcript dated 2 March 1991 referred to the interview conducted on 11 December 1990. It was not contended that Che was interviewed on any other occasion.
In August 1992 Che applied to have the delegate's decision reviewed by a Refugee Status Review Committee. In March 1993 a Refugee Status Review Committee recommended that Che not be granted refugee status. Che was advised by letter that such a recommendation had been made and invited to comment on the reasons provided by the Committee for its recommendation. A copy of the reasons was enclosed with the letter. In April 1993 solicitors instructed by Che provided further comments and set out additional information in support of Che's application for refugee status.
On 29 April 1993 a delegate of the Minister determined that Che not be granted refugee status. Reasons for the decision were provided to Che. Che applied to this Court for an order to review that decision.
The relevant facts appear to be as follows. Che was born in 1957. At the time of his application for refugee status Che's parents and two brothers resided in the P.R.C. The brothers were aged 23 and 20.
The Minister's delegate accepted that Che's father had been arrested, prosecuted and tortured for criticizing the policy of the "Great Leap Forward Movement" (1958-1960) and the "Purification Movement" (1964-1965). Similarly, it appeared to be accepted that Che had suffered restriction of his rights as a citizen of the P.R.C. in that, on political grounds, he had been prohibited from joining the Communist Party, enlisting in the army, and obtaining employment in the teaching profession.
In late June 1989 Che's vessel had returned from a voyage to Australia and was in port at Shanghai for two days. At that time Che had been informed that the authorities were looking for him. In his interview Che had stated that he had joined a democracy movement in April 1989 and engaged in handing out pamphlets at demonstrations when his vessel had been in port in April and again in May 1989. Che later said that he had a marshalling role in those demonstration activities directing the movement of demonstrating groups. On 4 June 1989 such pro-democracy demonstrations were brought to an abrupt end by the actions of the government of the P.R.C., actions now known as the Tiananmen Square massacre.
Che stated that when his vessel left the P.R.C. on or about 28 June 1989 he had been informed by his uncle, who was a section chief in his employer's company, that the authorities had complained about Che's participation in pro-democracy activities and the indication had been given that Che would be arrested. Che stated that his uncle had given instructions for Che's vessel to spend minimum time in port.
In August 1992 when Che sought review by a Refugee Status Review Committee his solicitors supplied additional material on which Che sought to rely to support his application for refugee status. Che stated that four days before his vessel had arrived in Australia in July 1989 the "Political Commissioner" on the vessel had taken his "Seaman Permit and Seaman Record Book". Che said that he believed the intention of the Political Commissioner was to cause difficulty or inconvenience for Che if he "jumped" ship. The reasons prepared by Che's solicitors continued with the following paragraph:
"The Political Commissioner could not arrest me and confined me to a room to prevent me from jumping ship as I was the Engineer and was the only person who was in charge of letting out water and taking water into the ship to a certain level water mark for loading and unloading of goods to the ship."
It is apparent that the paragraph contained a typographical error in recording "confined" instead of "confine".
Che's duties as fourth engineer required him to oversee the expulsion of ballast water when the ship was loaded. The strict environmental safeguards required for that procedure required Che to be on deck, and on the quay, to supervise that work. It seems clear that Che had instructed his solicitors that the Political Commissioner could not arrest him and confine him to a room and that he had to be free to carry out his duties as fourth engineer.
The Minister's delegate did not read the paragraph in that way and assumed that Che had been confined to a cabin for four days and regarded it as implausible that Che would have been able to desert the vessel "without incident" if that level of security had been applied.
In April 1993 Che explained that the Political Commissioner, by authority of a decision of a branch of the Communist Party on the vessel, had demanded his Seaman Identification and Technical Certification documents and not his Seaman Record Book which Che had taken with him and delivered to the Department when he made his application for refugee status in August 1989.
It was accepted that after Che's desertion Che's family had been visited frequently by the Police and questioned about Che's whereabouts. Che claimed that his two younger brothers had been arrested and tortured, and his father accused of "helping his sons in the pro-democracy movement."
The delegate apparently accepted that Che held the fear of being persecuted if he returned to the P.R.C. The delegate saw her task to be to assess whether that fear was well-founded thereby demonstrating that Che met the definition of a refugee contained in the Convention Relating to the Status of Refugees (1951) ("the Convention") amended by the Protocol Relating to the Status of Refugees (1967).
Under the heading "Assessment" the delegate made the folllowing comments:
"I endorse without change paragraph C4 of the primary decision of 24 July 1992 and consider it unnecessary to address these claims further."
Paragraph C4 of the "primary decision" read as follows:
"I have given little weight to the Applicant's assertion that he was not allowed to join the CCP, army or being a primary teacher, because of his father's background, as his application clearly shows he received an education and then was employed as 4th engineer on a ship to the time he came to Australia. There may have been other reasons for his non-acceptance into the above organisation (sic) and teaching field other then
(sic) those given by Mr Che."
By "endorsing" that paragraph, the delegate adopted the errors of reasoning it contained. If, as was apparently accepted, Che had been subjected to the restrictions he had described and no reason for that occurrence had been raised by the material, other than the plausible account stated by Che, namely, the political views ascribed by the authorities to his father and family, it was impermissible to speculate, or decide, that Che's "non-acceptance" may have been for "other reasons".
The delegate continued:
"I endorse without change paragraph C8 of the primary decision of 24 July 1992 and consider it unnecessary to address these claims further."
Paragraph C8 of the "primary decision" read as follows:
"In regard to Mr Che's brothers; their detainment and questioning is not a factor which could operate as
(a) special circumstance in this case as the Applicant has stated at his interview that he does not know what they did in the pro-democracy movement and in any case their detention was of a short duration. I therefore do not give any weight to the construction Mr Che has placed on the circumstances why his brothers were detained nor do I accept the Applicant's presentation of their cases as being relevant to his circumstances or an indication of the direction in which PRC authorities may decide to pursue cases such as Mr Che's should they return to the PRC."
The conclusions expressed in this paragraph displayed obvious error. Clearly, the manner in which the P.R.C. authorities treated Che's brothers was likely to be highly relevant to an assessment of whether Che had a well-founded fear of persecution. It was not a requirement of that assessment that Che present "a factor which could operate as a special circumstance." If it were accepted that Che's brothers had been arrested because of their participation in pro-democracy demonstrations, the absence of any evidence that they had a particular role in that movement would render it inappropriate to speculate that their detention had resulted from considerations other than those which the authorities would apply to Che, namely, membership of a family marked for the attention of the authorities over a number of years and participation in pro-democracy demonstrations. Unless there was evidence to show how Che's situation could be distinguished from that of his siblings, the arrest of the brothers should have been treated as material capable of generating in Che a fear as to the fate awaiting him in the P.R.C.
The delegate continued her reasons as follows:
"If the authorities had a serious interest in the applicant in June 1989, I consider that they would not have allowed him to leave the country legally on the ship. While I accept that he was only docked for short periods of time, I do not accept that this would have posed a problem to the authorities if they had wanted to interrogate him. Nor do I accept that when the authorities allegedly questioned the applicant's Captain about his activities, the Captain would have been willing to risk incurring the wrath of the authorities by not confirming his political participation but, instead, permitting him to remain on the ship."
The account provided by Che as to the short turnaround of the vessel at the Chinese port of Shanghai, saving him from discovery and apprehension, is inherently plausible. The delegate's refusal to "accept" that the vessel's short stay in port "posed a problem to the authorities", or to "accept" that the captain of the vessel would have been willing to risk incurring the wrath of authorities by failing to inform on his fourth engineer, lacked a logical basis when there was no material to ground the contrary conclusion.
In para.4.3.7 the delegate stated:
"I endorse without change paragraph C7 of the primary decision of 24 July 1992 and consider it unnecessary to address these claims further."
Paragraph C7 of the "primary decision" read as follows:
"I accept the possibility that Mr Che's home may have been visited by the police and his family questioned about his whereabouts. Mr Che has construed these claimed activities to suggest that he and his family have been the subject of adverse or an unusual level of attention from the PRC authorities subsequent to June 1989. In the PRC, however, personal and family life are extensively regulated by the authorities and visits from any PRC authorities is commonplace. Mr Che, as a PRC national, would be well aware of the extent to which the daily life of citizens is monitored in the PRC. I am satisfied that the commonplace nature of these monitoring activities is such that its conduct in any particular case does not indicate that an individual has acquired an elevated political profile with the PRC authorities or is likely to suffer persecution on his return to the PRC. On this ground and in view of my earlier findings that Mr Che has not established that he had a well-founded fear of persecution at the time he left the PRC and since that time has had minimal political involvement, I do not accept the construction the Applicant has placed on the claimed monitoring activities."
Che had stated that his family's home had been visited on a number of occasions and his whereabouts sought to be ascertained and that his brothers had been arrested and tortured because of their participation in pro-democracy activities. To state that the monitoring of activities of subjects in the P.R.C. is commonplace and that such monitoring in a particular case does not indicate that an individual has acquired an "elevated political profile" fails to deal with the facts of Che's case, namely, that he was a member of a family which had already attained an "elevated political profile", and that his brothers had been arrested for political activity not shown to be more significant than his.
The delegate found that the following claims made by Che were implausible:
"18. The last time the applicant was in China, he rang his uncle who was the Section Chief in his Employer's company in Guangzhou. He had received a complaint about the applicant's pro-democracy participation, and notification that he would be arrested. However, he suppressed the reports for a period of time, gave instructions for the ship in Shanghai to sail the following day after loading and unloading, and thereby assisted the applicant to escape from being arrested, punished and persecuted.
19. Four days before arrival in Australia the political commissioner of the ship took the applicant's Seaman Permit and Seaman Record Book and confined him to a room to prevent him from jumping ship.
...
24. On 6 July 1989 the political commissioner of the applicant's ship took his Seaman Identification and Technical Certificaiton, not his Seaman Record Book. He was told this was by order of the branch of the Communist Party on the ship. He was put under surveillance the next day until 10 July.
25. When the ship was docked the applicant's duty was to, from the quay, observe the safe discharging of the water and to ensure clearance. At 11pm they went to the cabins to change shift and the applicant left the quay without anyone noticing."
The principal reason for regarding Che's account as implausible appears to have depended upon the delegate's treatment of the negative statement that the Political Commissioner could not arrest Che and confine him to a room as a positive statement that Che had been confined on board for four days before the vessel berthed at Dampier. As we said earlier that approach misunderstood Che's claim.
The delegate further stated that it was surprising that the applicant did not raise this claim in his original application or at the first interview which occurred some fifteen months later. Certainly such omissions by Che were relevant matters to be considered by the delegate and given such weight as the delegate saw fit, but consideration of those matters in a proper manner would be occluded if the delegate believed that Che had made claims that were implausible, that belief arising from a misunderstanding of what Che had said.
The delegate further stated that there were "further doubts about the plausibility of clauses 18 and 19 when viewed in terms of clauses 24 and 25". Why that is said to be so we are unable to follow other than that Che had referred in clauses 18 and 19 to a "Seaman Record Book" instead of "Seaman Identification and Technical Certification" papers. In view of the fact that Che had left the vessel with his Seaman's Record Book and had delivered it to officers of the Department when he made his application for refugee status in August 1989 and was making his claim through an interpreter, if it was considered that Che was fabricating material to support his claim it would have been a simple matter to ascertain from other sources the usual content of a Chinese seaman's papers. The seriousness of the consequence of an inappropriate refusal to grant refugee status required that course to be followed. In other respects there was no alteration of the details submitted in the earlier claims and the two accounts were consistent. As we have indicated the delegate's treatment of this matter appears to be coloured by a misunderstanding of Che's claim as to the conduct and role of the Political Commissioner on the vessel.
It should be noted that the delegate did not conclude that Che was an untruthful person unable to be believed on any material issue.
Having reviewed the delegate's reasons and the supporting material we are of the opinion that the assessment of Che's application for refugee status miscarried by reason of the failure of the delegate to give proper consideration to the merits of the case before her and that the process must be carried out again. (See: Hindi v. Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 per Sheppard J. at 597-598.)
The question whether Che had the status of a refugee within the meaning of that term as used in the Convention is to be determined upon the facts existing at the time the matter is considered.
Implicitly, the delegate found that the actions of the P.R.C. feared by Che did not amount to persecution within the meaning of that term in the Convention or, alternatively, did not establish grounds on which it could be said that Che's fear of persecution was well-founded.
The delegate did not set out her understanding of the words "being persecuted" but would have been well aware of the reasons of the High Court in Chan v. The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 where the Convention definition of a refugee was considered.
Denial of fundamental rights or freedoms, or imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidating the expression of political opinion will constitute persecution. Even if such actions are solely motivated by reason of a person's membership of an "anti-revolutionary family" they may amount to persecution for reasons of political opinion. (See: Chan per Mason CJ at 390.)
According to the principles expounded in Chan the determination of whether the fear of being persecuted is well-founded will depend upon whether there is a "real chance" that the refugee will be persecuted upon return to the country of nationality. A "real chance" that persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly, may be ignored. It is not necessary to show that it is probable that persecution will occur. A well-founded fear of persecution may be grounded upon the possibility of such an occurrence. (See: Chan per Mason CJ at 389.) Indeed, the fear that such harm may be suffered may be well-founded even though persecution is unlikely to occur. (See: Chan per McHugh J. at 429.)
It was accepted by the delegate that the P.R.C. had undertaken a systematic culling of citizens who had engaged in "pro-democracy activities" and been involved in the expression of political dissent. It was said by the delegate that the information provided by the Australian Embassy in Beijing indicated that "a clear distinction" had been drawn between leaders and participants in rallies, demonstrations and other protestations, and the delegate concluded as follows:
"Upon return to the PRC a person who merely participated in protest activities may not be penalised at all and if there were a penalty, it would be unlikely to go beyond an adverse note on their personal file or a self-criticism session."
This finding was critical to the delegate's conclusion that Che was not a refugee within the meaning of the Convention.
The finding did not address the definition of refugee set out in the Convention. To establish whether there was a real, as opposed to a fanciful, chance that Che would be subject to harassment, detention, interrogation, discrimination or be marked for disadvantage in future employment opportunities by reason of expression of political dissent, it was necessary to look at the totality of Che's circumstances.
Che feared that he was marked for action by the P.R.C. because of his membership of a "counter-revolutionary family"; because his brothers and already been arrested and tortured as part of the "crack-down" down" by P.R.C. authorities; because he had participated in pro-democracy rallies in the P.R.C. in particular by carrying out the marshalling of some protestors; and because he had deserted his vessel and sought recognition as a refugee as an act of political dissent. The delegate may have thought it was unlikely that Che's fears would be realized but the question to be answered was whether the prospect of persecution was so remote as to demonstrate the fear to be groundless.
Counsel for the Minister submitted that the decision of the delegate was not amenable to review in that it involved no more than conclusions of fact based upon material which permitted alternative conclusions to be drawn. However, as we have said the delegate erred in failing to apply properly the terms of the Convention and in relying upon flawed reasons for the decision. (See: Chan per Mason CJ at 391.)
Although in our opinion the delegate erred for reasons which differ from those expressed by his Honour, we agree with his Honour that the delegate did not properly exercise her power under the Migration Act 1958 and that an order for the review of that decision should issue under the Administrative Decisions (Judicial Review) Act 1977. The matter must be returned to the Minister for determination according to law in accordance with these reasons.
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