Ping, L.S. v Minister for Immigration, Local Government & Ethnic Affairs

[1994] FCA 647

LI SHI PING v MINISTER FOR IMMIGRATION, LOCAL GOVERNMENT AND ETHNIC AFFAIRS
No. WAG93 of 1994
FED No. 647/94
Number of pages - 6
Administrative Law
(1994) 35 ALD 395 (extract)

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
DRUMMOND J

CATCHWORDS

Administrative Law - A person may make more than one application for determination of refugee status - s. 54P(3) Migration Act 1958 does not authorise deportation where first application finalised but second application still not finalised.

Migration Act 1958 - s. 54P(3)

Minister for Immigration v Msilanga (1992) 34 FCR 169

HEARING

BRISBANE, 29 August 1994
#DATE 5:9:1994

Counsel for the appellants: R. O'Connor QC and S.J. Gethin

Solicitor for the appellants: Patrick J. Gethin

Counsel for the respondent: S. Owen-Conway QC and

P.J. Corbould

Solicitors for the respondent: Australian Government Solicitor

ORDER

1. The application for an injunction restraining the respondent from taking any action to deport the applicant until the respondent has determined the applicant's application for recognition as a refugee lodged on 10 August, 1994 is dismissed.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

DRUMMOND J On 19 August last I granted an injunction restraining the respondent from taking any action to deport the applicant from Australia until 9 September next, i.e., until the time limited for an appeal against my decision of the same date has expired. I have been told that the question of whether an appeal should be lodged is presently under examination. However, I also have before me an application for an injunction restraining the respondent from taking any action to deport the applicant until the respondent has determined the applicant's application for recognition as a refugee which he lodged only on 10 August last.

1. According to the affidavit of his solicitor, the applicant's application lodged on 10 August last is founded on material that only became available to the applicant after the determination of the respondent's review delegate of 3 September, 1992 rejecting his original application and so could not be taken into account by that delegate. It was argued in the proceedings in which I gave judgment on 19 August that I could have regard to this particular body of information, but only if I upheld the applicant's challenge to the delegate's decision and then only if I were prepared to make a determination that the applicant was a refugee, rather than sending the matter back for reconsideration by the respondent. Since I dismissed the applicant's challenge to the delegate's decision, there was no basis upon which it was contended that I could have had regard to this new material either.

2. The respondent's primary submission in opposing the grant of the injunction now in question is that s. 54P(3) the Migration Act 1958 now applies to the applicant and (subject only to the injunction I have issued which expires on 9 September next) it compels the respondent to deport the applicant forthwith or, if he does appeal my order dismissing his application to review the decision of the respondent's delegate of 3 September, 1992 refusing to recognise him as a refugee, forthwith upon the dismissal of his appeal. If this is right, an injunction could not issue to restrain deportation until the respondent has considered the applicant's second application in the face of a statute that obliges the respondent to deport the applicant forthwith.

3. However, I reject the respondent's submission. I do not accept the respondent's proposition that s. 54P proceeds on the basis that a person can make only one application for recognition as a refugee. Section 54P(3) provides:
   

"An officer must remove a designated person from Australia as soon as practicable if:

(a) there has been an entry application for the person; and

(b) the application has been refused; and

(c) all appeals against, or reviews of, the refusal (if any) have been finalised."

1. It is common ground that the applicant is a "designated person" within the meaning of that term in s. 54K. There appears to be nothing in the Migration Act, and it is not contended otherwise on behalf of the respondent, to suggest that only a single application for determination of refugee status can be made by a particular person. If the respondent's argument is right, a person who once unsuccessfully sought refugee status could never thereafter obtain recognition in Australia as a refugee, even though his second application was made many years after the first one and even though he had an irrefragable claim to recognition as a refugee on the second occasion: s. 54P(3) would compel his immediate deportation, before his second application could be considered. It is highly unlikely that the Parliament intended to permit a person to make more than one application for determination of refugee status while also intending that the right to make applications subsequent to the original one would be deprived for all practical purposes of any utility if the second application was only made after the finalisation of the first unsuccessful one or if a decision on the second application happened still to be outstanding when proceedings on the first application were finalised in a way adverse to the person claiming refugee status. Yet this would be the inevitable result if, notwithstanding the pendency of what could be a well-founded second application, s. 54P(3) required the immediate deportation of the applicant, since s. 22AC(2) prohibits the Minister making a determination that a person outside Australia is a refugee.

2. The respondent in his submissions recognised that there may be grounds which were not considered in the original application for recognition of refugee status, but which in the circumstances of the particular case justify or even require consideration by the respondent, and therefore a postponement of the obligation arising under s. 54P(3) to deport immediately, for example, because deportation, before determining the second application, would place Australia in breach of its international obligations under the Convention. Yet effect cannot be given to this, if the respondent's primary submission is right. The expression "as soon as practicable" in s. 54P(3) qualifies the obligation to remove a person from Australia by permitting a deferral of removal for only so long as is necessary to enable arrangements to be made and implemented for the physical removal of the person from this country. The respondent was correct in submitting that this expression in s. 54P(3) is irrelevant to the triggering of the obligation to remove, that it is relevant only to the effecting of the removal, after the obligation to remove has arisen.

3. The respondent also submitted s. 54Q, when read with s. 54P, shows why it is difficult to accept that more than one application for recognition of refugee status can be made by a person. Section 54L requires certain "boat" arrivals in Australia to be held in custody unless they are to be removed from Australia pursuant to s. 54P or unless they are granted entry permits. But s. 54L is subject to s. 54Q. Sections 54Q(1) and (2) require, firstly, the release from "application custody" of such a detainee (being a detainee who has made an undisposed of application for recognition as a refugee or an application for an entry permit) if a decision to deport or a decision to grant an entry permit has not been made in respect of the detainee within 273 days of the start of that person's detention under s. 54L and, secondly, immunity of that detainee thereafter from deportation under s. 54P. Having regard to the definition of "application custody" in s. 54Q(3), all that is necessary for a detainee to become entitled to release under s. 54Q(1) or (2) is that:
   

(a) the person must have been in custody for 273 days; and that

(b) an entry application for that person is under

consideration when that 273 day period expires.

1. There is nothing in s. 54Q(3) that in my opinion ties the concept of "application custody" to any one particular entry application. A person in "application custody" because he has been detained under s. 54L and has one entry application under consideration will therefore continue to be in "application custody" if, during the period commencing with his initial detention under s. 54L and before he is released from that detention by force of ss. 54L(2)(a) or (b), he makes a second entry application; that person will continue to be in the same "application custody" while he awaits the determination of that second application. It follows that, subject only to the extensions of the 273 day custody period provided for by s. 54Q(3), (5) and (6), such a person cannot be held in custody under s. 54L for longer than 273 days.

2. That the Act allows more than one application to be made for recognition of a person as a refugee opens the way to abuse of the system. However, if a second entry application is not made in good faith, that will frequently be readily apparent. A second application lodged on essentially the same grounds as the first application made by a particular person claiming refugee status or lodged in circumstances where it was right to infer that it was made to forestall deportation, with or without release from application custody in accordance with s. 54Q(1) or (2), are but two examples of applications that would not be made in good faith and could not justify any entitlement to recognition as a refugee.

3. The new material relied on in support of Mr. Li's application of 10 August comprises affidavits by the two Guo brothers, which were read in the proceedings before me in connection with an application by the applicant, brought after I had reserved judgment, to re-open his case. Both brothers first arrived in Australia in the same "Jeremiah" group of boat people as the applicant on 10 May, 1992. Both applied for, but were refused, refugee status and were deported to China in October 1992. Prior to their deportation, i.e., in early August 1992, both participated in the same roof-top demonstration at the Port Hedland Detention Centre in which the applicant took part. Both have now come back to Australia, again by boat, arriving here on 6 December, 1993. It is what each says about his experiences after deportation to China that the applicant relies on to support his second application. Guo Wei Rong says that after his return to China in October 1992, he was kept in jail for a total period of about 30 days; while in jail, he says he was severely beaten during interrogations, on about five or six occasions. He says that during his detention, he was repeatedly questioned about his involvement in the roof-top demonstration and about other Chinese held in the detention centre at Port Hedland. He was accused of being a spy for the Australian government and of attempting to harm, by his actions in Australia, the reputation of the Chinese government. The release of the two Guo brothers was only procured by the payment of a large bribe to a prison official, according to what Mr. Guo says. He also says that after his release from detention in November 1992, the licence to operate the family fishing boat, i.e., the source of the family's livelihood, was revoked. Then in February 1993, the boat was wrongfully seized. Mr. Guo says he was told by a PSB official at the time that this was done because his actions in Australia had brought shame on China. He says that he and his brother were again arrested in June 1993 and imprisoned for nearly four months; during this second period of detention he was again severely beaten during the course of several interrogations. At the end of September 1993 he and his brother were released on short term bail; they went into hiding, fearing re-arrest, and left China a second time on 6 November, 1993 with some of their relatives and some other people. Guo Wei Zhi gives a similar account.

4. In order to obtain the injunction on the ground now in contention, it is necessary for the applicant to show, among other things, that he has an arguable case that he is entitled to recognition as a refugee: see Minister for Immigration v Msilanga (1992) 34 FCR 169 at 182. The foundation for the second application of 10 August, 1994 is, as I have said, the information from the Guo brothers which was not available and could not be considered in the course of determining the applicant's original application for recognition as a refugee. However, the information from the Guo brothers is confined to the treatment they received from the Chinese authorities on their return to China in October 1992. According to what each of the Guo brothers say, the focus for their ill-treatment by the Chinese authorities was their involvement in the Port Hedland demonstration. As I read their affidavits and subject to one qualification, there is no ground for concluding that it was any other conduct on their part, including conduct comprising their having left China in the "Jeremiah" boat group that attracted the ill-treatment they both say they received. Insofar as there is a possibility that the ill-treatment of Guo Wei Rong may have in part resulted from his acceptance on his arrival back in China of a card from an Australian Embassy official with a contact number on it, the ill-treatment would have no connection with any element of the Convention definition of refugee.

5. In the reasons I published on 19 August last for dismissing the applicant's challenge to the respondent's decision, I declined to accept that the roof-top demonstration in which the applicant and the Guo brothers participated was a genuine protest against conditions in China and held that it was designed instead to promote their chances of being recognised as refugees by putting pressure on the Immigration Department. I held that criticism of the Chinese government in the course of that demonstration was only made in support of the group's purpose. I also held that an application for recognition of refugee status must be determined on its merits, but without regard to conduct engaged in for the purpose of founding or supporting such a claim and that not only was the demonstration at Port Hedland not a matter which the respondent's review delegate was required to take into account, but was a matter which he was required to disregard. All the evidence from the Guo brothers establishes, if it be accepted, is that they have been harshly punished because of activities which they engaged in in Australia for the purpose of putting pressure on the Australian government to recognise their claims to refugee status. The harsh treatment which each claims he experienced following his deportation to China in October 1992 is well capable of amounting to persecution. But it is not persecution connected with either of the Guo brothers' race, religion, nationality, membership of a particular social group or political opinion. That they may have been persecuted because of their activities in Australia cannot therefore bring them within the Convention definition of "refugee".

6. That the applicant may anticipate treatment similar to that which the Guo brothers say they received on their return to China is irrelevant to any question of his entitlement to refugee status. Just as the respondent's review delegate was, according to my ruling, bound to disregard the applicant's involvement in the demonstration at Port Hedland, so will the respondent be bound to disregard evidence from the Guo brothers pointing to the fate likely to await the applicant if he is returned to China.

7. In response to a submission on behalf of the respondent on 29 August last that Mr. Li had not bothered to file the Part B statement with the respondent in support of his second application, counsel for Mr. Li said that this had in fact been done on 23 August; he then tendered this document, but did not refer further to it. In this Part B statement, the applicant refers to documentary material which he says he was unaware of prior to the decision of the respondent's delegate of 3 September, 1992 on his original application, but which is relevant to an assessment of the PRC government's attitude to nationals who have departed illegally and then claimed refugee status in another country (as did Mr. Li). He also refers to a report from Professor Tay. Although Mr. Li's legal advisers have forwarded to me this Part B statement, his counsel did not rely on it in support of the claim for the injunction now under consideration. Counsel's argument was based on the information obtained from the Guo brothers. In these circumstances, I do not propose to undertake the task of comparing what is said in the Part B document to be information of which Mr. Li was unaware when he made his original application, with the range of material which the respondent's primary and review delegates considered and which culminated in the decision of 3 September, 1992, in order to identify whether the former class of material contains any information additional to that before the two delegates and which might be capable of causing a substantially different view to be taken now of Mr. Li's claim to be a refugee. I do not propose to make any comment on this material other than to say that it appears to me to be of relevance to the position of a worker who had engaged in political activity within the PRC in opposition to official views, who then fled the country, but was returned after an unsuccessful claim for refugee status. Mr. Li is not in this position since I have not been prepared to find that he was a political dissident before leaving China.

8. The applicant cannot, in my view, make out an arguable case that he is a refugee on the basis of the material from the Guo brothers upon which he now wishes to rely and which was not available for consideration when his original application was determined.

9. The second limb of his application for injunctive relief is dismissed.