MZZYS v Minister for Immigration
[2015] FCCA 3221
•21 January 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZYS v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 3221 |
| Catchwords: MIGRATION – refugee application – application for judicial review – no matters of principle |
| Legislation: Migration Act 1958 (Cth), ss.36, 420, 422, 424. |
| Minister for Immigration and Border Protection v WZAPN [2015] HCA 22; (2015) 320 ALR 467; (2015) 89 ALJR 639 Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; 135 ALR 421; (1996) 40 ALD 445; [1997] CA 22; (1997) 71 ALJR 743 SZOGE v Minister for Immigration [2010] FCA 871 Weng v The Queen [2013] VSCA 221; (2013) 279 FLR 119 YF (double jeopardy - JC confirmed) China CG [2011] UKUT 32 (IAC) WZAPN v Minister for Immigration and Border Protection [2014] FCA 947; (2014) 144 ALD 82. |
| Applicant: | MZZYS |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 15 of 2014 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 23 September 2014 |
| Date of Last Submission: | 23 September 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 21 January 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Niall of Queens Counsel with Mr Kelsey-Sugg of Counsel |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Ms Symons of Counsel |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The name of the Second Respondent be amended to the Administrative Appeals Tribunal.
The decision of the Administrative Appeals Tribunal made 3 January 2014 be quashed.
A writ of mandamus issue is directed to the Tribunal requiring it to determine the applicant’s application according to law and the matter be remitted to the Administrative Appeals Tribunal for rehearing.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 15 of 2015
| MZZYS |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISRTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant applied for a protection visa on 8 July 2013. The Applicant fears what might occur if he returns to China, given his alleged involvement in drug offences, as set out in detail in the decision of the Victorian Court of Appeal in Weng v The Queen [2013] VSCA 221; (2013) 279 FLR 119 at paras.24 to 26 of that judgment.
The substance of the Applicant’s evidence in the Supreme Court is set out as follows:
24 On the hearing of the appeal [the Applicant] was called to give oral evidence and did so following the grant of a certificate pursuant to s.128 of the Evidence Act 2008. He gave evidence with the assistance of an interpreter. In the course of that evidence he stated as follows:
• [The Applicant] is a plasterer living in Melbourne.
• In September 2010 he was also living in Melbourne.
• He entered Australia on a student visa but that visa had expired by September 2010.
• At the time of the alleged offence [the Applicant] was in a relationship with [Weng] and she knew his visa had expired.
• At that time he had a friend called Jing Zhang who came from western China. Jing Zhang’s name and phone number were in [the Applicant’s] mobile phone, which was seized by police.
• [The Applicant] had other friends called Jie Chen and Lou Lou whose phone numbers were also stored in [the Applicant’s] phone.
• It was apparent at the time of the offences that [Weng] loved [the Applicant].
• Jing Zhang asked [the Applicant] to collect the package and told Chou Chen that it would be addressed to a person called Ting Lin. [The Applicant] is not clear whether Ting Lin is a real or fictional person. The name is a common name in China used by both males and females.
• Jing Zhang told [the Applicant] the package contained ‘ice’.
• [The Applicant] did not tell [Weng] this.
• [The Applicant] asked [Weng] to collect the package with him because he spoke very poor English and needed a translator.
• [The Applicant] picked up a delivery slip relating to the package with a message from the postal service saying ‘sorry I missed you’. He showed the slip to [Weng] so that she could translate it for him.
• He then first asked one of Lou Lou’s friends to ring the post office and then asked [Weng] to do so. On the occasions that [Weng] rang the post office [the Applicant] put in the telephone number and ‘blocked’ the tracing of the calls by use of the numbers #31#. This was his idea.
• On the morning of the arrest [the Applicant] asked [Weng] to accompany him to pick up the package because previously it was a female who had rung about the package. They caught a taxi to the place where [Weng] was arrested.
• It was proposed to tell the delivery man that Ting Lin was a friend.
• When they were arrested [the Applicant] put the postal slip in [Weng’s] bag because he had no place to put it.
• When he was interviewed at the police station [the Applicant] did not tell the truth because he was selfish and afraid that he would be prosecuted. He did not believe at the time that [Weng] would be prosecuted, convicted and imprisoned.
• Shortly prior to Weng’s trial [the Applicant] attended at the offices of her solicitor. He did not tell the complete truth to the solicitor. He did not tell the solicitor of his own true role.
• [The Applicant] has now come forward because the offence was not [Weng’s] responsibility and he accepts that it is his responsibility.
25 In cross-examination [the Applicant] said further, amongst other things:
• He was not living with [Weng] in September 2010, because he had had a number of interstate jobs.
• He was living with [Weng] after the arrest. He needed to comfort her.
• He did not tell the truth to her about the drugs after her arrest. She was very upset.
• He owed money to Jing Zhang who asked him to pick the package up in discharge of the debt. He told [Weng] this but did not tell [Weng] that he knew the package contained ice.
• Before the arrest he told [Weng] that the package contained clothes.
• He went to see [Weng’s] solicitor four days before the trial in order to make a statement. He did not tell [Weng] whether he would give evidence.
• He gave [Weng’s] solicitor his mobile phone number and address.
• In July 2012 he had a boyfriend/girlfriend relationship with [Weng]. He knew she loved him and he loved her as well.
• Although he blamed [Weng] when speaking to the police [the Applicant] was lying at the time.
• Jing Zhang is a complete stranger to [Weng].
• [The Applicant] owed Jing Zhang more than $5,000. He told [Weng] he owed Zhang money after her arrest but did not tell her the exact amount.
26 [The Applicant] also adopted the translated statutory declaration that he had previously made, but it is unnecessary to go beyond his oral evidence for present purposes.
The delegate refused the application for a protection visa on 13 September 2013, and the Applicant sought a review in the Refugee Review Tribunal (“the Tribunal”). The Tribunal refused the review on 3 December 2013. The Applicant applied to this Court on 3 January 2014 for judicial review.
After hearing the matter was adjourned pending the outcome in Minister for Immigration and Border Protection v WZAPN [2015] HCA 22, however following the review of the reasons of the High Court the parties agreed the decision was not relevant to this matter.
The Tribunal’s Decision
The Applicant claims to fear return to China on the basis that he would be tortured and mistreated as a result of the Chinese authorities becoming aware of his involvement in the incident described above.
The Tribunal accepted that the Applicant was a Chinese National, even though he said that his last passport that had been issued by the Chinese Embassy in Australia had been lost (see para.42 of the Tribunal’s decision).
The Tribunal member found that the Applicant was a “generally credible witness”, although noted he had not lived in China for six years (see para.43 of the Tribunal’s decision).
The Tribunal considered whether or not the authorities in China would know of the Applicant’s claimed involvement in the drug-related offences in Australia. The Tribunal member accepted that the Court of Appeal judgment was published online, that there is a high level of surveillance of Chinese Nationals overseas and that the Applicant would have to obtain travel documents to return to China. However, the Tribunal member concluded that this “did not necessarily lead to a probability or possibility that the Chinese Authorities are aware of the Applicant’s evidence, but to speculation that they may be aware.”
The Tribunal member also rejected the submission that the fact that the Applicant was issued a certificate under s.128 of the Evidence Act 2008 (Vic) made it more likely that Australia would pass on information to China about the Applicant, nor did the Tribunal accept that the AFP or Customs would have shared information about the Applicant in joint operations.
The Tribunal said:
49. There are a number of allegations against Australian authorities which are unsupported by evidence and I do not accept. I do not accept that the fact the applicant was issued a s.128 certificate against prosecution means it is more likely that Australia will pass information about it to China, not that this would occur because police appear to have sat in on the applicant’s first compliance interview. I do not accept that the Australian Federal Police or Customs would have shared information about the applicant in joint operations. This is because the offence the applicant claimed at the Court of Appeal to have committed is a moderate drug offence, being one involving a marketable rather than a commercial quantity of ‘ice’, which I do not accept the Australian Federal Police or Customs would pursue with Chinese colleagues. But most importantly, the applicant has not been charged or convicted of any offence in Australia. At most he has made statements which may lead to a suspicion that he had some involvement in the attempted possession. As the submissions note, the trial of Xia Weng is ongoing, and her guilt or innocence for the offence she is charged with, but which the applicant also claims to have had involvement, has not been determined. I do not accept that Australian law enforcement officers would share this information with Chinese colleagues – there is no ‘evidence’ or clear and definite ‘information’ about the applicant to share. All they could state is that on the basis of his evidence they think he may have done something. Similarly I do not accept that the authorities in Australia would make their Chinese counterparts aware through the mutual assistance in criminal matters regime for the same reasons.
The Tribunal addressed the question of what may occur if the Applicant returned to China, saying:
53. I do not accept that the authorities would become aware of the applicant’s evidence at the Court of Appeal if he returned to China and was questioned by them, or suspicious of the applicant and his conduct in Australia. I accept he may be questioned, but not that they would find out about the evidence: this is non sequitur - if they were not already aware of the evidence, how would they know or how could they extract this information from the applicant by questioning. I do not accept that without some suspicion or motivation that torture is so routinely applied to returnees that he would be tortured and reveal the evidence to them, nor that he would choose or by inadvertence do so - he has given no indication that he would. I find the chance of the authorities becoming aware in this manner is completely implausible and remote. In coming to this finding I have considered whether the applicant's tattoos, and his tattoo of a dragon, will lead the authorities to have suspicions about his conduct in Australia or to treat him more harshly when questioning him. I do not think they will have this effect. The country information indicates that tattoos are not the taboo they used to be, and that many young people in China sport tattoos. The country information indicates that the authorities are not interested in regulating or controlling the industry, that there have been conventions and exhibitions of tattoo art in Chinese cities including Beijing, and there is no information that I can find that indicates that the authorities would treat those they are questioning in any way differently. I specifically reject that the applicant sporting tattoos, or a dragon tattoo, will mean that the authorities will consider he is a member of a gang - the country information indicates that tattoos are not uncommon with young people and are not only for people associated with gangs, and I do not accept that the authorities would therefore view all young people with tattoos as members of gangs or worthy of suspicion- these claims are simply unsupported by the country information. I have considered whether his detention and mistreatment at the hands of the local police when he was a youth would lead the authorities to be suspicious of him, which may lead them to probe him about his conduct in Australia, or to investigate and discover the Court of Appeal information or to treat him more harshly in questioning him when he returns. I do not think there is a real chance or real risk of this occurring, because this was an event handled by the local police, and as the applicant stated in his most recent statutory declaration, it was not a very serious matter, despite the son of the police chief being involved. I have also considered the claim of the applicant that his distant uncle was jailed in China because of allegations of corruption made against him. This aspect of his claim is lacking in detail, he acknowledges that it is a 'distant' uncle, and I do not consider that the applicant will be investigated or treated more harshly on return because of the conduct or treatment of his distant uncle.
The Tribunal concluded that “the only plausible way for the authorities to find out about the Applicant’s claimed involvement” was to read the Court of Appeal judgment and that, according to the Tribunal member, “the prospects of them doing this seemed improbable” (see para.56).
The Tribunal then went on to consider what may occur to the Applicant if the Tribunal member was wrong and the Chinese Authorities became aware of the material contained in the Court of Appeal judgment. The Tribunal said:
61. … the crime which the applicant has claimed to have committed in Australia is not the most serious of drug offences; it was an attempted offence, and it was a marketable, not the higher commercial quantity of the substance. The applicant's ex-girlfriend's involvement, or the applicant's claimed involvement, in the trafficking is very minor, and it appears from all of the information that neither of them would be in a position to provide much evidence about the organisation of the trafficking. I accept the arguments of the applicant's representative that the crime would be punishable in China, with potentially serious penalty of fixed-term imprisonment of fifteen years, life imprisonment or death, and concurrently be sentenced to confiscation of property for the amount of 'ice' the applicant's ex-girlfriend was charged with attempting to possess. However, I also find that the Criminal Law of China contains a provision that a person who attempts to commit a crime rather than one who completes a crime may be given a lighter or mitigated punishment. I accept that the Chinese authorities may consider the offence more serious on the basis of the amount cited in their criminal law, but on return to China I think the Chinese authorities will want to know who it was who asked the applicant to pick up the controlled substance, and whether the applicant knows who sent the controlled substance, but my assessment is that the applicant's presumed involvement, on the evidence I have before me, is very minimal, and I do not accept that the Chinese authorities would devote much time or effort to questioning the applicant on return, or charging him with an offence, given that the guilt or innocence of Xia Weng has not been determined, given the minor involvement in the offence he claims to have had, nor that they would have the motivation to mistreat or torture him.
Application before this Court
The Applicant filed an amended application on 2 September 2014 articulating six grounds, with numerous particulars. Senior counsel, when representing the Applicant at the hearing, only addressed ground 6, ground 1(c), and ground 4 in oral submissions. However, as the other grounds were not formally abandoned, I must deal with them in this decision.
Ground 1
Ground 1 was framed in the following terms:
Ground 1: The Tribunal erred by misapplying section 36(2)(a) of the Migration Act 1958 (Cth).
Particulars:
(a) The Tribunal overlooked the fact that the evidence it got from the Applicant had suggested the existence of a particular social group, being ‘Chinese men born in China outside officially approved parameters’.
(b) The Tribunal made a positive finding that there was “no objective basis for the Applicant’s fears”, without first identifying what it accepted those fears to be.
(c) The Tribunal inappropriately substituted the phrase ‘real chance’ for the phrase ‘well-founded’.
With respect to the first particular, it is argued in the written submissions, that the Tribunal failed to identify the social groups that the Applicant could possibly be a member of, and therefore overlooked that he was in a social group, being Chinese men born in China outside of officially approved parameters. Whether or not he is within such a social group was not an issue raised in the Tribunal decision. It was not suggested that the Applicant was at risk of harm as a result of being in such a social group.
It is apparent from reading the Tribunal’s decision that the Tribunal did identify the relevant risks to the Applicant, and determined the case, not on the basis that he did not fall within a social group but on the basis of the actual risks to him. I find no merit in this ground.
With respect to ground 1(b), it is suggested that the Tribunal neither accepted what the Applicant’s subjective fears were, nor identified them with precision. A reading of the decision shows that it is implicit that the Tribunal accepted that the Applicant genuinely held his subjective fears. This was never an issue in the proceedings. To submit, as the written submissions do, that the Tribunal needed to precisely identify the Applicant’s fears appears to overlook the quote by the Tribunal of his statement in his visa application in para.11 of the decision, where the Applicant said:
11. …
I am terrified of being returned to China now. I believe that the Chinese authorities will know about my girlfriend’s case and the evidence I have given. If I am sent back I am scared that the Chinese authorities will detain and interrogate me, including about this case. In China the authorities have ways of forcing you to say things that incriminate you. They torture people. This has happened to me before but I am sure it would be even worse if I returned to China now because I am an adult and the case here in Australia against my girlfriend involved drugs. China dispenses the death penalty against people for crimes involving even small amounts of drugs. There is no justice in the legal system in China. Even if you have done nothing you are at risk if the Chinese authorities suspect you. The Chinese treat people in prison very harshly and they hide this abuse. I have heard that the Chinese guards beat and torture prisoners. There is nothing you can do in China to get help if this is happening. The prison system in China is very secretive. The Chinese authorities are secretive about many serious abuses. I understand that there are also many cases of deaths in custody from mistreatment. I understand that if a person is killed in prison they are sent off to be buried without the family even knowing.
This was further expanded upon at para.16 of the Tribunal’s decision, where the Tribunal said:
16. On 31 August 2013 a submission was sent from the applicant’s representative. This argued that as a result of protected evidence given in the Supreme Court of Victoria Court of Appeal which is now publicly available on the internet, the applicant is at risk of both serious and significant harm if he is returned to China. It argues that as a suspected drug offender, the applicant is at real chance of being subjected to the death penalty in China and also to arbitrary deprivation of his life, torture and cruel and inhuman treatment and punishment at the hands of the Chinese authorities. It is argued that due to the trials of his girlfriend, and publication of the court of appeal judgment in which the applicant gave protected evidence, the Chinese authorities will be aware of the applicant’s situation and that he is at significant risk as a result if removed. The submission includes excerpt from country information in relation to the current human rights situation in China. The submission refers to the UK Upper Tribunal decision of YF (Double jeopardy – JC confirmed) China v. Secretary of State for the Home Department, CG [2011] UKUT 32 (IAC) (YF) and referred selectively to the evidence of the expert called in that case, Dr Dhillon. The submission also referred to RRT country advice from May 2011. The submission argued that the Chinese authorities would know of the applicant’s involvement in his girlfriend’s case due to the Victorian Court of Appeal judgment being published on the internet, and would be aware of the trial of his girlfriend because of the agreement on consular relations between the People’s Republic of China and Australia, which was attached. The submission argues that the applicant has an additional profile, holding a political opinion opposed to the Chinese government and having had previous contact with the Chinese authorities in Fujian. The submission then goes on to argue that the applicant would be harmed as a failed asylum seeker.
Further discussion of this proceeds at paras.23 to 26, which paragraphs are too extensive to quote here.
I find no merit in this argument.
Ground 2
Ground 2 was framed as follows:
Ground 2: The Tribunal erred by failing to act in a way that is fair and just, in contravention of sections 420 and 422B(3) of the Migration Act 1958 (Cth).
Particulars:
(a) The Tribunal discounted parts of the Applicant’s evidence on the basis that it was “second or third-hand” but the Tribunal did not discount the second or third-hand evidence upon which it relied in affirming the decision under review.
(b) The Tribunal discounted parts of the Applicant’s evidence on the basis that it was “necessarily historical” but the Tribunal did not discount the historical evidence upon which it relied in affirming the decision under review.
It is well accepted that a tribunal member, as with any decision-maker, may place what weight they consider appropriate upon different pieces of evidence. The fact that the Tribunal may have found historical or second hand or third hand information more reliable if it were published in respected country reports, rather than if given orally by the applicant is entirely unsurprising.
I find no merit in this ground.
Ground 3
Ground 3 was framed as follows:
Ground 3: The Tribunal erred by purporting to make findings of fact without those facts being supported by any evidence.
Particulars:
(a) The Tribunal found that “if the authorities decided it was not worth prosecuting [the Applicant], they would not therefore administratively detain him” when there was no evidence of that.
This appears to be little more than a merits review attack on the Tribunal. There was at least some basis upon which the Tribunal could form this view flowing from the decision that it referred to of YF (double jeopardy - JC confirmed) China CG [2011] UKUT 32 (IAC), at para.63. Whilst this does not appear to be strictly evidence, it is a similar reasoning process that has been followed by another Tribunal and it was open to the Tribunal to form similar views on these matters and it has done so. This finding was an assessment of likely consequences on the facts before the Tribunal. This finding appears to have been open to the Tribunal.
Ground 4
Ground 4 was framed as follows:
Ground 4: The Tribunal erred by failing to comply with sub-sections 424A(1)(a), 424A(1)(b) and 424A(1)(c) of the Migration Act 1958 (Cth).
Particulars:
In finding that the Applicant’s tattoos, including a dragon tattoo, would not make Chinese authorities suspicious of his conduct in Australia or treat him more harshly when questioning him, the Tribunal:
(a) failed to give to the Applicant clear particulars of the article titled ‘Tattoos not just for triads, says artist and convention organiser’, published in the South China Morning Post on 3 October 2013;
(b) failed to ensure that the Applicant understood why the article was relevant to the review, and the consequences of it being relied on by the Tribunal in affirming the decision under review;
(c) failed to invite the Applicant to comment on or respond to the article.
The Applicant complains that an article, “Tattoos not just for triads, says artist and convention organiser”, a copy of which was tendered as exhibit 1 in these proceedings, ought to have been provided to him, or at least particulars of the information contained in it, pursuant to s.424A(1). The information in the article discusses the change in social morays with respect to tattoos in Hong Kong from an adornment of gangsters to the more general community, arguing that tattoos are a form of art. The exception to s.424A, contained in s.424A(3)(a) is as follows:
[s.424A]…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
In this case, it does not appear that the article was about the applicant or another person specifically, even though it is reporting the view of a person in Hong Kong. The substance for the article and the purpose for which it was used is the information about a class of people. In this regard, I have regard to the comments in SZOGE v Minister for Immigration [2010] FCA 871 at 17.
I therefore dismiss this ground.
Ground 5
Ground 5 was framed as follows:
Ground 5: In considering whether Chinese authorties knew or might come to know of the Applicant’s past involvement in drug offending, the Tribunal erred by failing to take into account a relevant consideration.
Particulars:
(a) The Tribunal failed to take into account that Chinese authorities might know or come to know about the Applicant’s involvement in drug offending by reading Judge Lawson’s published reasons for sentence online.
In this case, the Tribunal dealt squarely with the Court of Appeal’s judgment, which contained explicit statements attributed to the applicant with respect to drug offences. Whilst Lawson J’s published reasons for sentence are a separate document available online, there is nothing to indicate why they would be any more or less likely to be read by the Chinese Government or the Chinese authorities than the Court of Appeal judgment.
It seems to me that by referring to the appeal decision, the findings in Lawson J’s reasons are no longer significant in the context of this case as the relevant material appears in the appeal judgment.
I therefore dismiss this ground.
Ground 1(c)
Finally, I turn to grounds 1(c) and 6. They are framed:
Ground 1(c): The Tribunal erred by failing to take into account a relevant consideration, alternatively by making a finding of fact that was so unreasonable that no reasonable decision-maker could have made it.
Particulars
In finding that the offence of attempting to possess a marketable quantity of methamphetamine is a “minor offence”, the Tribunal failed to take into account that:
(a) failed to give to the Applicant clear particulars of the article titled ‘Tattoos not just for triads, says artist and convention organiser’, published in the South China Morning Post on 3 October 2013;
(b) failed to ensure that the Applicant understood why the article was relevant to the review, and the consequences of it being relied on by the Tribunal in affirming the decision under review;
In finding that the Applicant returning to China as a failed asylum seeker “would not increase or lead to the applicant being harmed in any way”, the Tribunal failed to take into account advice from DFAT that Chinese authorities recorded failed asylum attempts in a file, which could impede attempts to obtain employment (particularly government employment) or engage in further education.
6. The Tribunal erred by failing to take into account a relevant consideration, alternatively by making a finding of fact that was so unreasonable that no reasonable decision-maker could have made it.
In finding that the offence of attempting to possess a marketable quantity of methamphetamine is “a minor offence”, the Tribunal failed to take into account that:
a)The offence carries a maximum penalty of 25 years’ imprisonment and/or a fine of $550,000.00;
b)Xia Weng was convicted of the offence and sentenced to imprisonment for four years and six months with a non-parole period of two years and six months.
In finding that the Applicant returning to China as a failed asylum seeker “would not increase or lead to the applicant being harmed in any way”, the Tribunal failed to take into account advice from DFAT that Chinese authorities recorded failed asylum attempts in a file, which could impede attempts to obtain employment (particularly government employment) or engage in further education.
This issue is discussed in the Tribunal’s decision from para.46 onwards. The Tribunal said:
46. I put to him that I accepted that the Court of Appeal judgment was published online. I accepted that the law in China allows prosecution in China for the involvement in a drug related offence he had admitted to in Australia. I accept that the Chinese consulate may have been told of his ex-girlfriend’s offence of attempting to possess a marketable quantity of a border controlled drug (being Dimethylamphetamine (or ice)). I accept that there are joint operations between Chinese authorities and Australian Federal Police and Customs. I accept that there is a high surveillance of Chinese nationals overseas including in Australia. I accept that he would have to obtain a travel document to return to China, as indicated in the DIBP emails provided under FOI. But this, it appeared to me, did not necessarily lead to a probability or possibility that the Chinese authorities are aware of the applicant’s evidence, but to speculation that they may be aware. I put to him that apart from the judgment online the other ways in which it was claimed that the Chinese authorities would find out appeared implausible. I put to him that there was very little information that people prosecuted for a crime overseas are harmed on return to China, and even less that those suspected of an offence overseas are harmed on return to China. I put to him that I did not see how authorities would become aware of his involvement if they questioned him on return. These factors, together, I told him, may lead me to find that it was only remote that the authorities are aware of the applicant’s claimed involvement from the court documents published on the internet from any of the other sources identified.
…
49. There are a number of allegations against Australian authorities which are unsupported by evidence and I do not accept. I do not accept that the fact the applicant was issued a s.128 certificate against prosecution means it is more likely that Australia will pass information about it to China, not that this would occur because police appear to have sat in on the applicant’s first compliance interview. I do not accept that the Australian Federal Police or Customs would have shared information about the applicant in joint operations. This is because the offence the applicant claimed at the Court of Appeal to have committed is a moderate drug offence, being one involving a marketable rather than a commercial quantity of ‘ice’, which I do not accept the Australian Federal Police or Customs would pursue with Chinese colleagues. But most importantly, the applicant has not been charged or convicted of any offence in Australia. At most he has made statements which may lead to a suspicion that he had some involvement in the attempted possession. As the submissions note, the trial of Xia Weng is ongoing, and her guilt or innocence for the offence she is charged with, but which the applicant also claims to have had involvement, has not been determined. I do not accept that Australian law enforcement officers would share this information with Chinese colleagues – there is no ‘evidence’ or clear and definite ‘information’ about the applicant to share. All they could state is that on the basis of his evidence they think he may have done something. Similarly I do not accept that the authorities in Australia would make their Chinese counterparts aware through the mutual assistance in criminal matters regime for the same reasons.
…
54. I do not accept that the authorities would have become aware of the applicant’s evidence at the Court of Appeal through his ex-girlfriend having received consular visits or through the Chinese consulate in Australia becoming aware of her case and then, importantly, following that up to the level of reading the Court of Appeal judgment. There is no evidence that they visited her or took any interest in her case, to the extent that they would have followed it beyond her original conviction and been aware of the Court of Appeal judgment and the evidence in that judgment, and so I find the prospect of them having found out about the applicant through this manner to be remote.
…
56. In my view, the only plausible way for the authorities to find out about the applicant’s claimed involvement is if they were to read the Court of Appeal judgment. The prospects of them doing this seem improbable to me – I do not see that there is a clear way or reason why they would be directed to this document – there is no evidence they have taken an interest in the trial of the applicant’s ex-girlfriend, not that their surveillance activities are directed towards Court of Appeal judgments; nor that they would be overly concerned to make themselves aware – the offence is a minor drug offence, one involving attempted possession rather than possession; and the involvement of the applicant’s ex-girlfriend, and the applicant’s claimed involvement, is only to the level of having, on one occasion, acted as the go-between in picking up a parcel in Australia and delivering it to someone. From the Court of Appeal judgment and the applicant’s evidence to the Court, the knowledge that his ex-girlfriend, and possibly the applicant could have would appear very minimal. I therefore do not accept that there is any motivation for the Chinese authorities to inquire into or be interested in the case of the applicant’s ex-girlfriend, or the applicant’s claimed involvement.
57. It follows that I find that all of the claimed possibilities for the Chinese authorities becoming aware of the applicant’s evidence at the Court of Appeal I find remote and, in most of them, far-fetched. I find that there is no real chance or real risk that the Chinese authorities will know or have the motivation to discover, the applicant’s evidence at the Court of Appeal.
58. However, given the possibly serious implications if the authorities are aware and choose to act on that knowledge, and the possibility that the authorities may, through accident or inadvertence have become aware of the online judgment of the Court of Appeal, I have considered whether I may be wrong, and proceeded to consider what would happen to the applicant on return.
The Applicant argues that the correct test is whether or not he has a “well founded fear”. In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559; 135 ALR 421; (1996) 40 ALD 445; [1997] CA 22; (1997) 71 ALJR 743, the High Court identified that in most, perhaps all, cases that the real chance test may, properly understood, be simply a clarification of the well found fear test and lead to the same result. However, the High Court identified that it would be dangerous to treat them as synonymous, explaining the reasons for that. The High Court identified that in many of the Tribunal and Federal Court decisions, the term “real chance” had been used as a replacement for well founded, rather than an epexegesis of the correct term. As the High Court indicates, it is obvious that in the vast majority of cases the difference in terms will have little impact upon the outcome.
However, in this case the nature of the circumstances are most unusual. The Tribunal member appears to have accepted that the risk that the Chinese authorities would become aware of the applicant’s evidence at the Court of Appeal, was remote and there was “no real chance or real risk that the Chinese authorities will know or have the motivation to discover, the Applicant’s evidence at the Court of Appeal”. The Tribunal do not appear to have considered the obvious benefits to the applicant’s girlfriend in making the judgments available to the Chinese government in order to demonstrate her innocence in the matter.
Whilst few would have any sympathy for the applicant’s participation in this drug offence, this is not a reason to discount the risks of serious harm if he returns to China. It is in cases such as these, where one has a natural distaste for the conduct of the applicant, that a particularly careful adherence to the precise words of the Act and careful description of the facts is required lest one run the risk of not squarely providing the protections that every person is entitled to on the principle that all are equal under the law.
The Tribunal considered the possibly serious implications if the authorities were aware of these matters, before making a final decision. This is explained in para.58 of the Tribunal’s decision. This explanatory process is arguably indicative of the Tribunal being aware that the ultimate test is whether the fear is well founded, and therefore consideration of the risks involved requires more than simply an application of the real chance test to the question of the likelihood of the authorities becoming aware of the Court of Appeal judgment. However, the Tribunal never reverts to the proper words of the convention.
Significantly, it is difficult to understand how the Tribunal could describe an offence which, for the Applicant’s girlfriend, resulted in a sentence of four a half years, and for which the maximum is so great as to be only ‘minor’ offence. The Tribunal must have misconstrued the facts and circumstances to form the view that this was only a minor offence. Put simply, first offenders do not receive custodial sentences for minor offences (at least in Australia). The fact that the alleged involvement was modest compared to others does not make it a minor offence. Driving the get-away car may be a relatively minor involvement in an armed robbery of a bank where a teller is shot, but remains a very serious offence.
A further difficulty is that the Tribunal have not dealt squarely with the obligations upon the Australian authorities, as a result of treaties executed between Australia and China, (see CB pp.490 to 491) to provide information, if requested. Given the issues at hand it also appears remarkable that the Tribunal, one section of the Australian Government, could not simply ask customs and the AFP if they had in fact passed on the information to China. Nor does information from China which appears at p.438 indicating that China enforces anti-drug laws strictly and that China is waging a fierce battle against all drug related activities, “administering merciless punishment” appear to be carefully discussed.
These matters, ultimately lead me to conclude that good grounds have been made out in the most unusual circumstances of this particular case.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 11 January 2016
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