NBBO v Minister for Immigration

[2005] FMCA 210

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NBBO v MINISTER FOR IMMIGRATION [2005] FMCA 210

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal erred in failing to consider whether the applicant was a member of a particular social group – whether claim raised on material before Tribunal – whether Tribunal failed to bring country information to attention of applicant – whether evidentiary basis for claim established. 

Migration Act 1958

WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 76 ALD 597
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs (2004) ALR 624
NABE v Minister for Immigration & Multicultural & Indigenous Affairs(No. 2) [2004] FCAFC 263`
Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411
Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242
Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225
STCB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 266
SDAQ vMinister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389
Minister for Immigration & Multicultural Affairs v Israelian (2001) 206 CLR 323
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant: NBBO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2822 of 2004

Delivered on: 10 March 2005

Delivered at: Sydney

Hearing date: 17 February 2005

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr B Zipser

Solicitors for the Applicant: Nil

Counsel for the Respondent: Ms M Allars

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2822 of 2004

NBBO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 19 December 2003 and handed down on 16 January 2004 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.  The applicant, who is a national of the Peoples Republic of China, came to Australia on 23 March 2002.  On 21 March 2003 he lodged an application for a protection visa. 

2. In a statement accompanying his protection visa application the applicant claimed that he had received unfair and unjust treatment from the local government in China which was demanding that his family be ‘under constant surveillance and arrest’ and was searching for witnesses or evidence to support claims that he had been threatening local government officials.  He claimed that the local police and school authority had inflicted ‘increasingly terrible’ persecution on him and on his family, that the school authority had bombarded the family shop with harassment, threats and defamation, had demolished the family shed holding all their stock and had subjected his family to bodily attack and financial loss.  He stated that it was obvious “that the school authority, police and the courts are working together, targeting innocent people who are only trying to make a living such as ourselves”.  He concluded by complaining that the system of government, courts and the police in China under the Communists was seeking to protect the interest of the rulers instead of protecting the people of China and that he intended to publish a ‘ridiculous’ verdict of the local court to show the world what kind of persecution is expected for those who defy Communist rule. 

3. The application was refused and the applicant sought review by the Tribunal.  In the application for review the applicant claimed that he was an active Falun Gong practitioner.  However in a written statement dated 21 November 2003 he claimed that his family had been subject to ‘planned and premeditated’ oppression by the Chinese Communist Party authorities.  He gave examples of what he claimed had occurred to him, including illegal interrogation, detention and education through labour involving physical and mental torture.  He claimed to have been accused of taking part in illegal gatherings and forming illegal associations, that his home was illegally demolished and that repressive measures were illegally enacted against members of the family by the authorities.  He stated that “during the proceedings of our law suit, we obtained some evidence from the court.  For example, in the ‘conference minutes’, they had already selected my family as a target of oppression”.  He claimed that in documents ‘they’ sent to the Municipal Party Committee they demanded that he be arrested and that his parents had been repeatedly harassed by the public security bodies in China. 

4. The Tribunal held a hearing which the applicant attended.  As set out in the Tribunal reasons for decision, the essence of the claims made by the applicant at the Tribunal hearing were first, that he did not claim to be a member of Falun Gong and secondly, that he had been subject to a campaign of harassment by local government officials and other people in his locality in Beijing because his family had brought one or more legal actions against the University and the Public Security Bureau (the PSB) and that he feared revenge and arrest.  He claimed that he and his father had participated in the June 1989 movement, although his father who was then a lecturer was not penalised, having later become a professor.  He claimed that in 1996 or 1997 his parents were detained; that in 1998 people from the student’s union put a critical poster up outside the family shop; that the family sued the University in 1998; that the PSB came to his home many times, issued subpoenas many times; that the PSB officers and University staff had planned all this; and that the authorities at the school he attended bombarded the family shop with harassment and threats from 3 September 1999.  He claimed that the shop was demolished by court order in 2000 and that on

   
   

   25 July 2001 people from the University and local police had demolished the family storeroom where he had been living.  He gave a number of reasons why the shop was targeted and closed down.  First he claimed it was because they were making money and had a big business, then he referred to their involvement in the events of 1989 suggesting the family was not ‘welcomed’ by the authorities and then that the action was ‘revenge’ because his family had sued people in court.  He claimed that the family had accused the University through the court and that the local court had delivered a verdict against his family, that he had been subpoenaed many times and had been held, beaten and verbally abused at the police station.  He claimed to have been held at the police station on no less than ten occasions since 1998.  He claimed that he was held in a labour camp for three months in 2001.  Initially he claimed he was not detained again, but later claimed that he was detained again in September 2001 for 15 days.  His parents were also detained at various times.  He submitted a document being a request from the University to a committee of the Communist Party suggesting that he posed a threat to the safety of students and teachers because of acts of armed violence. 

5. The applicant is also recorded as having told the Tribunal that in addition to suing the university in 1998, his family had adopted their right to sue people in court, had used legal means against the CCP and had appealed repeatedly against ‘everything’, ‘the PSB and the university’ but without success.  He claimed that his family had asked the courts to make people apologise and pay compensation, but that he and his family had never won any of the ‘too many’ court cases in which they had been involved.  He suggested that because of his court action ‘people’ might take revenge.  He also claimed that the police might charge him with being scandalous and claimed to fear arrest and trial. 

6. The Tribunal accepted that the applicant had no links with Falun Gong practice as he had explained in the Tribunal hearing and that he did not have a well-founded fear of being persecuted for reasons arising out of a perception that he had such links. 

7. In relation to his claim to have been subjected to a campaign of harassment by various people and to fear arrest, the Tribunal noted that that much of the applicant’s oral evidence was not presented in a cogent manner and that he was unable to explain what prompted the initial attack on the family shop.  It did not accept that it was due to political opinion imputed to family members.  It found that while it was not implausible that the applicant and his father participated in the 1989 protests, neither of them was imprisoned or detained and his father did not lose his job.  Instead he received benefits and was subsequently promoted.  The applicant’s friends, with whom he had expressed unhappiness with the government, had not been harassed or harmed by the Government for expressing such opinions.  The applicant had told the Tribunal that he did not know what motivated the police to keep detaining him not what was motivating unidentified people from the University to wish him ill.  Based on his evidence was that he had never been questioned by police about his political opinion or activities and the absence of any allegations being made about such matters in relation to him, the Tribunal inferred that the applicant was not suspected of holding anti-government opinions.  It therefore found that the reason for the applicant’s problems with the police and local people around his home was not a political opinion imputed to him. 

8. Although the applicant said he did not know why he was harassed as claimed, the Tribunal considered his suggestion that it was because of his family’s 1998 legal action against the university that people might take revenge in future.  The Tribunal referred to the applicant’s claims about other extensive litigation against the University and the PSB.  On the basis of cited independent country information, the Tribunal was satisfied that the government had facilitated access to the courts enabling ordinary Chinese to sue it and that some had won their cases.  Hence, the Tribunal was satisfied that for the vast majority of litigants, suing the government did not generally lead to the imputation of an anti-government political opinion.  It found that there was nothing in the applicant’s evidence that indicated that he was an exception to this, and continued “In light of the otherwise seemingly inexplicable ill-will towards [the applicant] by local people, one could infer from his evidence that he may be regarded in his community as litigious and that that is the reason for the hostility towards him”.

9. As to his fear of arrest, the Tribunal found that the applicant had been issued with a passport in his own name without difficulty and that he was able to leave China openly using it.  He had not been arrested in the past.  Nor had it been explained why the authorities might wish to arrest him.  The Tribunal was not satisfied that the applicant was at risk of arrest when he left China.  Moreover even if he were to return to China and be subjected to the same treatment he claimed to have faced before, the Tribunal found, on the basis of the available evidence, that there would be no Convention reason for such treatment.  The Tribunal found that the applicant was not a person to whom Australia had protection obligations.

10. The applicant sought review of the Tribunal decision by application filed on 16 February 2004.  An amended application was filed on

    
    

    11 August 2004. 

11. The amended application contains three grounds.  However in oral submissions counsel for the applicant advised that the around in paragraph 1(a) of the amended application was abandoned.  The remaining grounds are:

    1.     The Tribunal found ... that even if the applicant were to return to China and be subjected to the same treatment he claimed to have faced before he left there would be no Convention reason for that treatment.  The Tribunal fell into jurisdictional error in making this finding. Specifically …

    b)The Tribunal failed to consider whether the applicant was a member of a particular social group in China or Beijing, for example, litigious people, and was persecuted for membership of this group.

    2.     The Tribunal found … that based on certain country information, suing the government does not lead to the imputation of an anti-government political opinion for the vast majority of litigants.  The country information is set out [in the Tribunal reasons for the decision].  The Tribunal did not raise this country information with the applicant and give him an opportunity to comment.  In these circumstances, the applicant was denied procedural fairness, giving rise to jurisdictional error:  see for example WAEJ v MIMIA (2003) 76 ALD 597.  In relation to s422B of the Migration Act (which applies in this case), the applicant relies on the narrow interpretation given to s422B by French J sitting as a Full Court in WAJR v MIMIA (2004) ALR 624 at [57]-[59].

Particular social group issue

1. The applicant contended first that the Tribunal erred in failing to consider whether he was a member of a particular social group in China or Beijing, for example, ‘litigious people’ and whether he was persecuted for reason of membership of this group.  It was submitted that there was evidence that on numerous occasions the applicant had sued the university and the PSB for a variety of reasons, that he had sued people and appealed, and that as a result of such activities he and his family had suffered or feared suffering various kinds of harm at the hands of the authorities and at the hands of others.  It was contended that the Tribunal had not rejected these claims of what had occurred in the past.  Rather in considering the future, while the Tribunal found that the applicant was not at risk of arrest on return to China, it did not reject the possibility that the applicant may continue to face the other types of harm he had experienced in the past.  Indeed the Tribunal found that any harm suffered by the applicant would not be for reason of ‘the imputation of an anti-government political opinion’.  It was contended that in this context the Tribunal erred in giving no consideration to whether the applicant was a member of a particular social group, such as litigious people in China, and might suffer harm for reason of membership of such group. 

2. Counsel for the applicant relied on what was said by the Full Court of the Federal Court in NABE v MIMIA (No. 2) [2004] FCAFC 263 at 58:

   “The review process is inquisitorial rather than adversarial.  The Tribunal is required to deal with the case raised by the material or evidence before it … There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated … By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant.”

3. It was submitted that it was constructive to consider the decision of Carr J at first instance in Applicant S v Minister for Immigration & Multicultural Affairs [2001] FCA 1411. This decision was reversed on appeal by the Full Court of the Federal Court, but the High Court in Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 set aside the orders of the Full Court of the Federal Court. In so doing Gleeson CJ, Gummow and Kirby JJ stated (at [13]) that Carr J had correctly understood the Tribunal reasons (which addressed political opinion and religion) to indicate that the Tribunal had not considered whether the appellant was a member of a particular social group and whether he was persecuted by reason of his membership of that group.

4. In Applicant S Carr J had suggested at [26] that the appropriate test (in determining whether the Tribunal erred in failing to consider whether the applicant was a member of a particular social group) was whether “it could fairly be said that sufficient facts were placed before the Tribunal as to require it to consider whether there existed a particular social group, being able bodied Afghan men and whether the applicant, as a member of that particular social group, had a well-founded fear of persecution if returned to Afghanistan”.  The applicant in that case had not expressly claimed to be a member of a particular social group but Carr J found on the facts as presented to the Tribunal that the Tribunal should have considered that aspect of his claim.  The applicant contended that a test of ‘sufficient facts’ should be applied, consistent with what was later said in NABE and that Applicant S illustrated factors of relevance.  In Applicant S Carr J had considered whether there was evidence that the applicant had a subjective fear of persecution.  The Tribunal in that case had found that the applicant did have such a fear.  Carr J also considered whether there was evidence of a real chance of the applicant facing persecution, in the sense of some detriment or disadvantage if he returned to his country of nationality.  There was such evidence, as the Tribunal in Applicant S had accepted that the Taliban based its selection process on targeting able-bodied men. 

5. It was acknowledged that the applicant in this instance did not expressly claim that he was a member of a particular social group or that he feared harm because of this.  It was also acknowledged by Counsel for the applicant that there was not as much detailed evidence of circumstances pointing to a classic situation for the generation of a particular social group in the present case and that the applicant’s presentation to the Tribunal was unclear.  However it was submitted that there were still sufficient facts before the Tribunal to require it to consider whether there was a particular social group, being litigious people in China, and whether the applicant, as a member of that group, had a well-founded fear of persecution if he returned to China.  While in this instance there was no positive finding by the Tribunal that the applicant had a subjective fear of persecution (as in Applicant S), it was pointed out that equally there was no finding of a lack of a subjective fear of persecution.  It was also said to be open on a fair reading of the decision to find that the Tribunal accepted that the applicant had a genuine fear of some harm if he were to return to China.  It was contended that, analogous with Applicant S, the Tribunal had accepted the possibility that the applicant would suffer some form of harm if he returned to China (that being harm in the sense of the same treatment he claimed he had faced before he left China).  The Tribunal had not rejected his claim to have experienced such past harm. 

6. Counsel for the applicant also contended that the Tribunal finding that one could infer from the applicant’s evidence that he may be regarded in his community as litigious and that that was the real reason for the hostility towards him, recognised the possibility that those seeking to harm the applicant were doing so because he was regarded as a litigious person.  It was suggested that this statement raised a real question that the Tribunal should have explored, but did not, as to whether litigious people in China are a particular social group. 

1. It is relevant to note that in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 206 ALR 242 the High Court considered the proper way of ascertaining whether a class of individuals is a cognisable group. It sought to reconcile any apparent differences in the approaches to this issue in the judgments of McHugh and Dawson JJ and Brennan CJ in dissent in Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225. In Applicant S Gleeson CJ, Gummow and Kirby JJ held that the class must be identifiable by a characteristic or attribute common to all members of the group (at [36]).  Second, the characteristic cannot be the shared fear of persecution and third, the possession of the characteristic or attribute must distinguish the group from society at large.  Unless the third component is satisfied, the class of persons is a social group, but not a particular social group.  The majority in Applicant S accepted that perceptions of the community may provide evidence of a group being set aside or cognisable but also held that the operation of cultural and social, religious and legal factors, observed from a third party perspective, may also distinguish a social group (at [30] and [34]).  As McHugh J said in Applicant S, a class of persons “may be perceived by the society in which the group exists as aberrant individuals and may be described by a particular name, yet the society may not perceive these individuals as constituting a particular social group” (at [68]).  Hence perceptions of those outside society may on rare occasions identify them as a social group but there must be a common characteristic, attribute, activity, belief, interest, goal, aim or principle and not a mere demographic division of persons (at [55]-[69] and also see STCB v Minister for Immigration & Multicultural Affairs [2004] FCAFC 266).

2. There is nothing in the material before the court, in the application for the visa or in the application to the Tribunal or in the description of what occurred at the Tribunal hearing, to indicate that the applicant claimed that he was a member of a particular social group or to be persecuted on the ground that he was a member of a particular social group.  It is, of course, well established that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant, but it is necessary to consider whether the evidence and material which the Tribunal accepted raised a case that was not articulated.  The applicant relied on a passage from NABE.  It is relevant to note that that passage continued at [58]:

   “It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v MIMIA (2003) 199 ALR 265 at 273 [19] per Cooper J.  The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal.  Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.”

3. As Kirby J observed in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389 at 405 “[T]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances” and as von Doussa J observed in SCAL v MIMIA [2003] FCA 548: “[N]either the Tribunal nor the delegate is obliged to consider claims that have not been made” (at [16]). After discussing such authorities, the Full Court in NABE pointed out that the Tribunal “is not obliged to deal with claims which are not articulated and which do not clearly arise from the material before it” (at [60] and also see [61]-[63]). Moreover their Honours stated in NABE at [68] after referring with approval to the requirement from Dranichnikov to consider ‘substantial, clearly articulated argument relying upon established facts’:  “A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made.  The claim must emerge clearly from the material before the Tribunal.”

4. While the court in NABE was considering whether the Tribunal had failed to consider an unexpressed and implied claim of want of state protection against persecution by a particular organisation, it is instructive in relation to the issue before the court in this instance.  It is also instructive to have regard to the claims that were made by the applicant and the material provided by him in determining whether a claim of the nature now contended for by the applicant was apparent on the face of the material before the Tribunal and whether, as Carr J said in Applicant S, ‘sufficient facts’ were before the Tribunal to require it to consider the particular social group of litigious people.  In the statement provided in connection with the protection visa application the applicant complained about incidents and about the outcome of litigation in which his family was involved and stated: “it is obvious that the school authority, police and the courts are working together, targeting innocent people who are only trying to make a living such as ourselves”.  Such a claim, which suggests co-operation between the various groups including the courts, does not raise a claim that there was (or that the applicant was a member of) a particular social group of litigators.  Rather the applicant contends that he is ‘innocent’.  There is nothing in this statement to enable a decision-maker to reach the view that the applicant sees himself or that others see him as a member of a particular social group of litigious people in China or that cultural, social, religious or legal factors distinguished such a social group or that his claim can be understood in that way.  The same may be said of the statement provided to the Refugee Review Tribunal (putting on one side the claim to be a practitioner of Falun Gong from which the applicant disassociated himself).  In the written statement provided to the Tribunal the applicant complained that the oppression of his family was planned and premeditated by the Chinese Community Party authorities.  He gave several examples to illustrate the claimed ‘oppression’ he said he had endured.  Included in these claims of oppression by the Chinese Communist Party authorities was a statement that during the proceedings of “our law suit, we obtained some evidence from the court.  For example, in the ‘conference’, they had already selected my family as a target of oppression”.  Again there is no suggestion on these facts that a claim was raised of persecution or feared persecution because the applicant was litigious or engaging in litigation or that the facts as presented raised a case which required the Tribunal to consider whether there was a particular social group of litigious people in China.  The grounds of review in the amended application do not suggest that the Tribunal erred in failing to consider a particular social group consisting of the applicant’s family. 

5. The only evidence of what occurred in the Tribunal hearing is the Tribunal reasons for decision.  While the applicant is recorded as having given evidence to the Tribunal about his involvement in litigation, he explained that his fear if he returned to China was because of his family’s actions in 1998 when they sued the university because ‘people might take revenge’ and that the police might also charge him with being scandalous and that he feared arrest and trial.  He referred generally to a belief that his shop had been targeted and closed down because he and his parents had adopted their right to sue people in court but he clarified that this was ‘revenge’ and the shop was demolished or closed ‘just because we sued them’.  In other words his claim was of revenge by specific parties to particular litigation.  In fact, he did not know why he had been subject to the claimed detention and harassment.  He suggested at one stage that he believed that the people he and his parents had sued had encouraged people to harass him and that he was also being harassed by the police because he and his family had appealed repeatedly without success.  He was sure that ‘the court and the PSB’ considered his family to be ‘very hard and stubborn people’. 

6. The Tribunal did consider the possibility that the applicant thought there was some connection between the mistreatment he claimed he had experienced and his legal action (despite the fact that the evidence as to the extent of the legal action engaged in by the applicant was expressed in very general terms and there was no cogent evidence before the Tribunal as to how many legal actions the applicant had initiated, who all the respondents were, how long they had lasted, what the claims were or the outcomes other than a general claim that the family had never won a court case).  It is not apparent from the Tribunal account of what occurred in the Tribunal hearing that the applicant was contending that people generally might take revenge.  Rather from the language of the Tribunal reasons for decision it appears that his complaint was that particular respondents or those associated with the respondents might take revenge (in particular the University and/or the PSB).  Nonetheless the Tribunal addressed the applicant’s claims in relation to a fear of revenge and then considered country information about government facilitation of access to the courts (this being in the context of a claim by the applicant that he had sued the university and the PSB).  The Tribunal dealt with the claim in relation to the applicant’s litigation against the authorities in its finding that for the vast majority of litigants suing the government does not generally lead to the imputation of an anti-government political opinion.  Even if it was possible to conclude that there was a social group as contended, this finding addresses any claim that a person who was a member of such a group would be subject to persecution by the authorities.  The only basis for such persecution suggested in the claims of the applicant was an anti-government political opinion.  

7. The Tribunal did state that there was otherwise seemingly ‘inexplicable’ ill-will towards the applicant by local people and that one could infer that this may be because the community regarded him as litigious.  There is nothing in this suggestion or in the evidence placed before the Tribunal that compels the Tribunal to a consideration of the particular social group of litigious people as contended.  The Tribunal remarks are an observation on the applicant as an individual. 

8. In this instance I am not satisfied that the material before the Tribunal raised a claim in the manner contended for by the applicant.  The claim was not put in those terms; the facts did not raise a claim of that nature.  There is no evidence that the applicant was singled out by the authorities or others for reason of membership of a social group as contended.  Moreover, in contrast to the situation in Applicant S, the Tribunal did not find that the applicant had a subjective fear of persecution.  Nor did it find that there was real chance of the applicant facing persecution if he returned to his country of nationality.  The fear expressed by the applicant in this case focussed on his fear of arrest – a claim rejected by the Tribunal.  Even if the Tribunal reasons for could be read as accepting that the applicant had a genuine fear of some harm there was, importantly, no evidence before the Tribunal of a ‘targeted class of persons’, such as litigious people.  The independent evidence was to the contrary.  The Tribunal speculated that it may be that the applicant was regarded as litigious – but as an explanation for seemingly inexplicable ill will towards him as an individual by local people.  This is not a case in which an unarticulated claim of membership of a social group is raised ‘squarely’ or emerges clearly on the material available to the Tribunal (cf NABE at [58] and cases cited therein).

9. Moreover, as the respondent contended, persons who engage in the particular activity of initiating multiple legal actions in China, have in common no more than the activity of litigating.  As such they are a broadly defined demographic segment of those engaging in such activity or accused of engaging in excessive litigation, but this would not make them cognisable as a particular social group in the manner contended.  There was no evidence of a characteristic which united such individuals as a cognisable group, rather than a mere demographic division of persons such that the claim needed to be considered in the manner contended.  Nor was there any evidence of an objective perception of society that there was such a group or of cultural, social, religious or legal factors distinguishing such a group as discussed in Applicant S. 

10. Even if the applicant had claimed, or the facts raised a claim, that the government or others targeted people because they were litigants (and I am not satisfied that this is established on the material) that would not be sufficient to establish that litigants are a particular social group.  What he claimed was a collaboration between the courts and the authorities, not that the government targeted people because they are litigants.  There was no country evidence before the Tribunal that litigants are or may be seen as a particular social group in China.  The country evidence, drawn from the United States State Department Report on China for 2002 (2003), was that the government in China facilitates access to the courts to enable ordinary people in China to sue it, and some of these litigants win their cases.  There was no evidence before the Tribunal of attitudes within China or from outside, to suggest that there was a class of individuals who were a cognisable group as litigious people. 

11. In any event, irrespective of whether the Tribunal needed to address as a distinct issue whether litigious persons are a cognisable group in the Chinese community, it did address the issue of whether people who litigate against the government in China are subjected to persecution in China.  It was open to the Tribunal to conclude that members of this group were not subject to persecution, whether on account of membership of the group or otherwise.  Insofar as the applicant claimed to fear the possibility of facing further legal action (apart from the claimed fear of arrest) if he returned to China, even if litigious people were a particular social group in China and the applicant were imputed to be a member of such a group, there was no evidence that he was or would be singled out by the authorities or others for reason of his membership of that group.  There is no persecution of a person if he or she returns to the country of nationality and faces the possible application of a law of general application.  Enforcement of generally applicable civil or criminal law does not ordinarily constitute persecution (see Minister for Immigration & Multicultural Affairs v Israelian (2001) 206 CLR 323, Applicant S at [39]-[40] per Gleeson CJ, Gummow and Kirby JJ and at [80]-[83] per McHugh J and Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 258 per McHugh J.)

12. Bearing in mind the restraint urged upon the court by decisions such as NABE, it has not been established that it is apparent on the face of the material before the Tribunal that a claim was raised that there was a particular social group of litigious persons of which the applicant was a member.  Rather it would have required some “constructive or creative activity by the Tribunal” to discern such a claim from the manner in which the applicant presented his claims and from the material before it.  In particular it would have been contrary to the independent country information about the position of litigants in China.  No error is established in the manner contended. 

Country information issue

1. The essence of this contention is that the Tribunal relied on country information to the applicant’s detriment without giving the applicant an opportunity to comment on the country information.  The Tribunal reasons for decision refer to country information in relation to the access of litigants to the court.  It relies on such information in reaching the conclusion that, for the vast majority of litigants, suing the government does not generally lead to the imputation of an anti-government political opinion.  The applicant contended that the Tribunal denied him procedural fairness in failing to put this information to him for comment.  However the evidentiary basis for such a claim is not made out on the material before me.  This is not a case in which it is appropriate to infer that the Tribunal did not raise either particular country information or the critical issues with the applicant in the course of the Tribunal hearing.  (See NAOA v MIMIA [2004] FCAFC 241 at [21]. Also see MIMIA v NAMW [2004] FCAFC 264 at [121] – [122]). It has not been established that the circumstances in this case are “unusual” in the sense considered in NAMW such that it is appropriate to infer on the balance of probabilities that the relevant country information was not raised by the Tribunal with the respondent. The Tribunal account of the hearing is expressed in general terms. There is no transcript or other evidence from the applicant as to what occurred in the Tribunal hearing before the court. On the material before me I am not satisfied that the evidentiary basis for this ground is made out. This finding means that it is not necessary to determine the scope of s.422B of the Migration Act 1958.  This ground is not established.

2. No jurisdictional error has been established on either of the bases contended for by the applicant.  Accordingly the application must be dismissed.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  10 March 2005.