SZGUK v Minister for Immigration

[2006] FMCA 852

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGUK v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 852

MIGRATION – RRT decision – Chinese person fearing prosecution for association with criminal gangs – Australian criminal intelligence made available to China – Tribunal found risk of prosecution not persecution – not satisfied as to membership of “particular social group” – reference to documents forwarded with visa application – no breach of s.424A(1) – no failure to address claim – no error or unfairness by Tribunal not investigating country information – application dismissed.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 422B, 424A(1), 424A(3)(b), 425, 474(1), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Abebe v The Commonwealth of Australia  (1999) 197 CLR 510
Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1
Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387
Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48
Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088
Luu v Renevier (1989) 91 ALR 39
Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162
SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200
SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2
SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801
SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195
VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471
VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant: SZGUK

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1904 of 2005

Judgment of: Smith FM

Hearing date: 7 June 2006

Delivered at: Sydney

Delivered on: 19 July 2006
14 August 2006 (Supplementary Order)

REPRESENTATION

Counsel for the Applicant: Dr M Allars

Solicitors for the Applicant:	Christopher Levingston & Associates
Counsel for the First Respondent:	Mr S Lloyd

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed.

2. The applicant must pay the first respondent’s costs in the sum of $5,000. 

3. Pursuant to s.61 of the Federal Magistrates Act 1999 (Cth), no public media report of, or reference to, the Court’s judgment in SZGUK v Minister of Immigration [2006] FMCA 852 or any part thereof shall be made in any manner which identifies the name or identity of the applicant.  

4. Any person claiming to be affected by this order has liberty to apply to the Court for its discharge or variation on a date allowing 2 days’ notice to the solicitors for the parties. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1904 of 2005

SZGUK

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application filed on 20 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 June 2005 and handed down on 28 June 2005.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).

3. Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth). This is subject to limitations under Part 8 of the Migration Act, which have the effect that that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.

4. The applicant claimed protection against being returned to the country of his nationality, The People’s Republic of China, after having resided in Australia for some years.  During his residence he acquired a criminal record containing some convictions of relatively minor significance.  His visa application was presented by a solicitor on 21 December 2004, and its claims are sufficiently described in the following extract from the solicitor’s covering submission (emphasis in original): 

   What I would ask you to accept is that the NSW Crime Commission has disseminated adverse information concerning the Applicant to the Hong Kong Police who in turn would have disseminated that information to the relevant agencies in the Peoples Republic of China.  Further, the material before you also indicates in the documents at annexure F that the Australian Federal Police have also had information disseminated to them concerning the Applicant which clearly indicates the view that the Applicant is a well recorded heroin broker and is a close associate of drug distributors.

   What I would ask you to accept is that the dissemination of information to the AFP will have led to the dissemination of information to other agencies. 

   In short the submission sought to be advanced by the Applicant is that he is in effect at risk because of the dissemination of information to third party agencies both onshore and offshore including authorities in Hong Kong and the Peoples Republic of China which implicate the Applicant in organised crime by Triads and heroin dealing based on “intelligence” rather than hard evidence are likely to cause the Applicant to assume an imputed profile of being an active participant in organised crime. 

   It is this “fact” which creates the risk profile for the Applicant to be persecuted by agencies of the Peoples Republic of China on the basis that his criminal conduct, imputed not actual, would cast him as a member of a particular social group (Triad membership) involved in organised criminal conduct. 

   It is submitted that ordinarily criminal conduct can not enliven protection obligations.  The point being made here is that the criminal conduct has been imputed by the gathering of “intelligence” by crime agencies in Australia who have disseminated it against themselves and in repeating it have in effect corroborated each other lending weight to what is in effect an allegation which in its repeating has become “evidence”. 

   There can be no doubt that the information has been disseminated to the authorities in Hong Kong who in turn share data with the authorities in the Peoples Republic of China. 

5. The application was supported by a collection of documents originally prepared by Federal and State criminal investigation bodies in the early 1990s, which contained references to “intelligence” and assessments concerning the applicant’s activities in Australia and in Hong Kong.  This included an opinion that “he is a close associate of many Sydney based South East Asian criminals who are linked to numerous triad societies”.  I note that the applicant has denied that he has any criminal associations, and it is unnecessary for me to give further details of this material. 

6. No general nor particular evidence was submitted to the Department to establish that “Triad membership” would amount to membership of a “particular social group” within the meaning of the Convention definition. 

7. A delegate refused the application, giving the reason: 

   The applicant claims that he is vulnerable to the adverse attention of the authorities because of his imputed membership of a particular social group – Triads.  However I consider that if he were to be subject to the attention of the authorities it would be because of specific information that has passed between the relevant law enforcement agencies in relation to the applicant’s alleged criminal activities and associations and not because of his membership of a particular social group. 

8. The applicant, through his solicitor, appealed to the Tribunal.  No further supporting material was presented until after the applicant had been invited to attend a hearing on 25 May 2005. 

9. On 12 May 2005, the applicant’s solicitor sent a letter with attachments to the Tribunal.  The relevant parts of the letter said: 

   4.The purpose of this facsimile is to request your assistance with respect to the final disposition of this matter. 

   5.In the period since the lodgement of this application there have been a number of developments which may have some bearing on the case. 

   6.First, you may recall that there was an allegation that there had been some publication of information said to be on the possession of the Australian Federal Police and other law enforcement organisations to the effect that [the applicant] was the head of the [X Gang] in Australia.  I would be grateful if the Tribunal could indicate to me whether this contention is likely to be in dispute or not. 

   7.You may recall that information to that effect was provided when the threshold application was put on but I would like an indication from the Tribunal as to whether this is an issue which is likely to be in dispute or not. 

   8.Further, when [the applicant] was arrested an article appeared in the [identified] Newspaper and I now have that article translated.  A translation of the relevant Newspaper article constitutes annexure “A” to this facsimile. 

   9.Further, I have obtained access to the Criminal Law of the People’s Republic of China said to be effective from the 1^st of January 1980.  A copy of that document is annexure “B” to this facsimile. 

   10.Could the Tribunal please indicate whether there is any contest as to whether membership of a Triad or leadership of a Triad is contrary to the Criminal Law of the People’s Republic of China. 

   11.So that I might properly prepare for the hearing set down on 25 May 2005 I would be grateful if the Tribunal could provide me with any country information or third party information which has not been provided by the Applicant upon which the Tribunal is likely to seek comment.  The reason why I seek access to that information prior to the hearing is so that I might properly assist my client at the hearing of the matter and put further submissions, if necessary, to the Tribunal prior to the hearing. 

   12.The request for information in the current case is calculated to assist the Tribunal in the discharge of its statutory duty. 

   13.I look forward to hearing from you. 

10. The report which was Annexure A, had appeared in a Hong Kong newspaper in 2004 and, inter alia, referred to the applicant as “said to be the boss of the [X Gang] in Sydney”.  Annexure B, the “Criminal Law of the People’s Republic of China”, was a 21‑page closely printed document.  It was common ground before me that, in fact, it contained no criminal offence of being a member of a triad or criminal gang.  The only provision to which I was taken as being particularly relevant to the applicant’s situation if he were returned to China was Article 7, which provided: 

    Article 7.  If any person commits a crime outside the territory of the People’s Republic of China for which according to this Law he would bear criminal responsibility, he may still be dealt with according to this Law, even if he has already been tried in a foreign country.  However, if he has already received criminal punishment in the foreign country, he may be exempted from punishment or given a mitigated punishment. 

11. A letter signed for the District Registrar of the Tribunal, and dated 13 May 2005, responded to the solicitor’s letter: 

    The Member considering [the applicant’s] case has asked me to advise you that the Tribunal has not yet reached any firm conclusions on the matters raised by this case, and will not do so until the applicant has had the opportunity to present oral evidence submissions and arguments to it.  In this regard, the Member notes that, despite being asked to indicate by 2 May 2005 whether or not he wished to attend the scheduled hearing, he has not done so. 

    The Member has advised me that, at this stage, the only material before it is the Department’s file, and material provided to it by you on behalf of the applicant. 

12. The Tribunal’s hearing was attended by the applicant and his solicitor, and the latter made oral submissions.  A transcript is in evidence, and the Tribunal gave a full description in its reasons.  No criticism was made to me of its description of the applicant’s evidence, and it is unnecessary for me to detail what he said. 

13. I was, however, referred to the oral submissions made by the applicant’s solicitor, in support of a submission by his counsel that the Tribunal inaccurately identified his characterisation of the contended “particular social group”.  I therefore read the whole of the transcript including submissions.  In my opinion, there was no relevant inaccuracy, and the Tribunal correctly found only one characterisation to have been offered, in the course of the following submission: 

    … But that does not get us any closer to the problem, which is, is [the applicant] a member of a particular social group.  My view is that he is a member of a particular social group, namely persons who have been – and this will sound clumsy but I will articulate it anyhow – persons who have been falsely accused of membership of a criminal organisation involved in the sale, importation, sale and distribution of illegal drugs including drugs of addiction, namely heroin. 

14. I was referred to no part of the transcript in support of the applicant’s procedural unfairness arguments which I shall address below.  In particular, it was not contended that it showed the applicant or his solicitor being misled as to the researches which might or might not be conducted by the Tribunal itself into whether members or perceived members of triads or criminal gangs constituted a “particular social group” in China.  Nor was it contended that the Tribunal said anything which could have misled, or actually did mislead, the applicant into thinking that this was not a “live” issue for the Tribunal, or into thinking that he did not need to present evidence relevant to this issue. 

15. Indeed, reading the transcript, in my opinion the applicant’s solicitor would have left the hearing with a clear understanding that the Tribunal member saw a central issue as being whether the contended group was, or formed part of, “a particular social group”.  The member said at the conclusion of the hearing: 

    … I have to now go away and think about all the evidence again and try to come to a conclusion.  The difficulty, as your adviser and I have just been discussing, is that your case does not fit legally into the concept of the Refugees’ Convention as it was originally brought down.  The reasons why the Convention was brought into effect.  So I am having some difficulty in concluding that your circumstances fit the Convention. 

16. However, no evidence to establish a Convention character for the claimed group was ever presented to the Tribunal.  The applicant’s solicitor’s oral submissions seem to assume that the Tribunal was sufficiently conversant with the history, nature and membership of “triads”.  However, I do not consider that this assumption was induced or confirmed by anything said or done by the Tribunal. 

17. The only additional evidence which was presented after the hearing was a copy of the applicant’s Australian criminal record. 

The Tribunal’s finding of “prosecution” not “persecution”. 

1. It became common ground before me that the Tribunal’s reasons for affirming the delegate’s decision should be analysed as containing two elements.  The first was that it found that the harm feared by the applicant if he returned to China would not be “persecution” within the Convention concept because it would result from criminal enforcement measures motivated by “the state’s legitimate interest in protecting its citizens from organised crime”.  

2. The distinction invoked by the Tribunal of “prosecution” which did not amount to “persecution” reflects established principles, and it was not contended by counsel for the applicant that the Tribunal’s reasons show a misconception of relevant law (c.f. Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 (“Applicant A”) at 258, cited in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395”) at [45]).

3. However, counsel argued that jurisdictional error was shown in the manner in which the Tribunal arrived at these conclusions.  Its relevant reasoning was (emphasis in original): 

   The applicant claims that Australian police authorities have passed on their allegations about the applicant to PRC authorities.  The documents provided on behalf of the applicant make it clear that information about matters related to the applicant was obtained from Hong Kong police in 1992‑1993.  It is a matter of public record that this was at a time before Hong Kong was handed back by the British to the PRC (1 July 1997).  While there is nothing to state explicitly that information about him was given to the Hong Kong police at that time, the Tribunal accepts that that is a possibility. 

   There is no evidence to indicate any exchange of information concerning the applicant with Hong Kong police after 1993 or with PRC authorities at all.  However, the Tribunal accepts that any information which may have been given to the Hong Kong police service as it then was, would be available to the PRC authorities now, if they chose to look for it.  The Tribunal also accepts that, if the PRC authorities were to take an interest in the applicant, they would be able to find the stories published about him in December 2004 in Sydney Chinese‑language newspapers. 

   Although it is reasonable to assume that, were the applicant to return to China, and the PRC authorities realised he was a person about whom accusations of criminal activity had been made, those authorities might choose to monitor his activities to look for evidence of illegal behaviour.  However, as discussed with the applicant at the hearing, there is no evidence before the Tribunal to suggest that the PRC authorities would treat the applicant any differently than it would treat any of its citizens who are suspected of serious crimes.  Any motivation to investigate the applicant would be because of the state’s legitimate interest in protecting its citizens from organised crime. 

   Moreover, while the applicant asserts that the PRC authorities would “believe” Australian authorities, there is no evidence, beyond his assertions, that the PRC authorities would accept mere allegations as proof that he had committed any offences.  Further, there is no evidence that the PRC authorities would regard mere allegations related to supposed activities in Australia, as proof of crimes meriting punishment in China.  The Tribunal is not, therefore satisfied, that the applicant will face punishment in China, or any other serious harm amounting to persecution, on the basis of unproven accusations made against him in Australia. 

   … 

   As put to the applicant at the hearing, the Convention was not, in the Tribunal’s opinion, established to protect suspected criminals or criminal groups from legitimate investigation and prosecution.  While the Tribunal accepts that accusations of criminality falsely and maliciously made for Convention reasons could attract the coverage of the Convention, there is no evidence before the Tribunal to suggest that any accusations have been made against the applicant for any reason other than the fact that there is at least some evidence of illegal actions on his part. 

   The Tribunal is of the opinion that it is reasonable for a country to protect its citizens against criminal activity.  The Tribunal considers that it is a legitimate exercise of state authority to legislate against organised crime gangs, of which the “triads” referred to in the documents submitted are an example.  There is no evidence before the Tribunal that China has such laws.  However, the Tribunal finds that any action taken by a country which had such laws, to investigate persons suspected of involvement in triads and to prosecute them if there is sufficient evidence of criminal activity, would constitute “prosecution” and not persecution within the meaning of the Convention.  In such a hypothetical situation, the essential and significant reason for any adverse attention would be the legitimate aim of combating organised crime, not the membership of an organisation as such.  Given this, it is not necessary to consider whether a “triad” would constitute a particular social group in China, within the meaning of the Convention. 

1. Under Ground 1 of the amended application, counsel for the applicant argued that the above reasoning showed the Tribunal relying upon information taken from the collection of documents presented with the visa application as “the reason, or a part of the reason, for affirming the decision that is under review”, so as to give rise to a duty to serve a written invitation for written comments under s.424A(1) of the Migration Act. It was common ground that such an invitation had not been served, and that a failure would vitiate the Tribunal’s decision unless the decision was also supported on an alternative and “entirely independent basis” (see SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162, as explained in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 (“SZEEU”) at [231]).

2. Counsel for the applicant argued that the criminal intelligence information “was taken into account” by the Tribunal, and upon that information it reached a finding which was adverse to the applicant.  Counsel submitted that the Tribunal had relied upon the information as a reason for affirming the delegate’s decision because it had concluded, in counsel’s words: “that there was ‘a possibility’, rather than any stronger case, that the information in the bundle was given to Hong Kong police” and subsequently to PRC authorities.  This was one reason for it discounting the applicant’s fear that he would incur criminal sanctions if he returned to China, as distinct from possible “monitoring” of his activities. 

3. However, I do not accept that there has been a material failure to observe s.424A(1) in this case. I accept the submissions of counsel for the Minister which presented several answers to the applicant’s argument.

4. The Tribunal’s references to the risk of the Australian criminal intelligence reaching the current attention of the PRC authorities as a “possibility”, should be read in context.  I would understand the reference as showing that the Tribunal accepted, at its fullest, the evidentiary significance of the material presented by the applicant.  That material inherently raised only speculations, i.e. “possibilities”, on whether it would reach the current PRC authorities.  In my opinion, the Tribunal’s reasoning supporting its conclusion that it was not satisfied that he would face any serious harm “amounting to persecution” (i.e. within the Convention definition), proceeded upon an acceptance of the information provided with the visa application, together with all inferences which could reasonably be drawn from it in favour of the applicant’s contentions. 

5. That information was not, therefore, itself “a reason” for affirming the delegate’s decision, since nothing in it was identified as being inconsistent with the applicant’s factual claims (c.f. VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [62]‑[63], [70]). The Tribunal accepted at a factual level that the applicant faced such risks as were evidenced by the material presented, and proceeded to assess whether they were risks of Convention “persecution” and whether they were “by reason of membership of a particular social group”.

6. The relevant “reason” was therefore the Tribunal’s assessment of the criminal intelligence information against the legal concept of “persecution”, and the legal requirement under s.36(2) that it should arrive at a state of satisfaction when applying the Convention definition to the claims presented. The Tribunal’s reason for affirming the delegate’s decision was not the “intelligence” information which received its assessment.

7. I do not accept that the Tribunal drew adverse inferences from information constituted by “omissions” from what was presented with the visa application, or from its “form and content”, in a manner analogous with the situation referred to by Allsop J in SZECF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1200 and maintained by him in SZEEU (supra) at [222]‑[225] (see also Weinberg J at [177]). Rather, the Tribunal’s assessment of the material presented with the visa application, insofar as it was adverse to the applicant, shows “reasons” which did not use information as “the reason” or “a part of the reason”, within the principle referred to in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24(iii)] which Allsop J has, himself, accepted in cases such as SZEZI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1195, and SZEIQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1801.

8. I also consider that there is substance in counsel for the Minister’s submission that the applicant’s solicitor in his letter to the Tribunal of 12 May 2005 (see above at [9]), and in particular in paragraph 7, should be taken to have “given” the criminal intelligence documents to the Tribunal, since he clearly was maintaining the applicant’s reliance upon those documents and was inviting the Tribunal to perform an assessment of their significance. However, due to my other conclusions explained above, I do not need to explore the authorities on the exclusion under s.424A(3)(b) nor to reach firm conclusions on its application in this case.

9. I also accept that the Tribunal gave an independently operating reason for its conclusion that the applicant would not face persecution for a Convention reason, which was unaffected by any reference to the criminal intelligence material. This was its conclusion that the groups, with which the applicant claimed he would be associated, would not be “particular social groups”. For reasons which I give below, I am unpersuaded that this conclusion was attended by jurisdictional error, so that it would render immaterial the breach of s.424A(1) contended by the applicant.

10. For the above reasons, I reject Ground 1(a).  I note that Grounds 1(b) and 1(c) were not pressed by the applicant’s counsel. 

The Tribunal’s findings on “particular social group”. 

1. Grounds 2, 3, 4, 5, and 6 are framed in convoluted terms with rolled up alternatives, and are obscure in their relationship with the Tribunal’s statement of reasons.  However, counsel for the applicant presented her arguments by addressing all of these grounds together.  She made a compressed submission that the Tribunal’s consideration of this issue revealed a failure by it to address the particular social group which was contended by the applicant or raised by the material before the Tribunal.  In short, it was argued that the Tribunal made the error which was found by the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389; (2003) 77 ALJR 1088, and explained in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 (“NABE”).  This was the error of constructively failing to exercise jurisdiction by failing to deal with the case raised by the material and evidence before it.  She also made subordinate arguments that the Tribunal had failed to assess that material by reference to the required “real chance” test, and erred in its use of relevant country information. 

2. The Tribunal’s reasons for rejecting the contention that the applicant would be regarded by PRC criminal investigators and prosecutors as being a member of a “particular social group”, were: 

   A particular social group, within the meaning of the Convention is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large.  That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society (Applicant A & Anor v MIEA & Anor (1997) 190 CLR 225 per Dawson, McHugh and Gummow JJ). It was stated in Applicant A (by McHugh J, at 264‑265) that:

   The adjoining of “social” to “group” suggests that the collection of persons must be of a social character, that is to say, the collection must be cognisable as a group in society such that its members share something which unites them and sets them apart from society at large.  The word “particular” in the definition merely indicates that there must be an identifiable social group such that a group can be pointed to as a particular social group.  A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large.  That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society. 

   The use of [the term “membership”] in conjunction with “particular social group” connotes persons who are defined as a distinct social group by reason of some characteristic, attribute, activity, belief, interest or goal that unites them.  If the group is perceived by people in the relevant country as a particular social group, it will usually but not always be the case that they are members of such a group.  Without some form of internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals, however, it is unlikely that a collection of individuals will or can be perceived as being a particular social group.  Those indiscriminately killed or robbed by guerillas, for example, are not a particular social group. 

   In the Tribunal’s opinion, the formulation put forward by the applicants’ agent fails to satisfy the criteria described above.  The applicant has not demonstrated how members of the purported groups of “persons who have been accused of membership of a criminal group involved in the import, distribution and sale of drugs of addiction” are distinguished from Chinese society at large, and has not indicated how they have any “internal linking or unity of characteristics, attributes, activities, beliefs, interests or goals.”  Indeed, criminals often have conflicting interests.  The Tribunal finds that the group suggested by the applicant’s agent and other groups which might be defined in similar terms are not “particular social groups” within the meaning of the Convention. 

3. Counsel for the applicant referred me to the discussion of the Convention concept of “particular social group” in Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387 (“Applicant S”), subsequent to Applicant A, and in particular to the summary in the majority judgment at [36]. However, I did not understand her to submit that the present Tribunal erred when seeking to apply tests suggested in Applicant A by McHugh J.  I note that they were repeated in similar terms by McHugh J in Applicant S at [69]. Counsel for the applicant did not contend that the Tribunal had made the error discussed in Applicant S of elevating into an essential requirement the perceptions of people in China as to the contended group.  In my opinion, no misconception of law is revealed in the above discussion of the Tribunal, and its reasons show that it considered relevant tests when deciding this issue. 

4. As I understood counsel’s submissions, they were that the Tribunal’s reasons do not show it addressing a group whose significant uniting element is that its members have been “identified” or “suspected” by criminal intelligence agencies as being members of a “triad” or criminal gang.  She argued that this element was central to the Convention claim raised by the applicant’s material and submissions, and was not addressed by the Tribunal.  Her written submission was (citations omitted): 

   4.3Persons who are suspected of engaging in criminal activities relating to Triads and heroin dealing and who are the subject of information provided by the Australian law enforcement authorities to the PRC, are not simply a demographic segment of suspected criminals.  They are recognisable as a group.  There is a set of characteristics which unites these individuals as a cognisable group. 

   4.4The Tribunal declined to address the issue of whether such people are members of a particular social group for Convention purposes.  The Tribunal was prepared only to consider the group of suspected criminals.  It concluded they had no linking characteristics because criminals can have conflicting interests. 

5. She also submitted: 

   4.7The Tribunal rejected the request that it consider that there may be other groups and confined its consideration to the group of persons who have been accused of membership of a criminal group involved in the import, distribution and sale of drugs of [addiction].  In one sentence the Tribunal rejected the suggestion that any of the formulations of the groups suggested by the applicant’s agent were viable in terms of the Convention. 

6. I have difficulty with these submissions at several points.  At the outset, I do not accept that the Tribunal failed to address any characterisation of the relevant group which could best advance the applicant’s claims, nor that it failed to address the characterisation which in fact was presented to the Tribunal by his solicitor.  Manifestly it did the latter.  For myself, after considering all the submissions of counsel for the applicant, I am unable to identify any other definition of a group which “clearly [arose] from the material before [the Tribunal]” (c.f. NABE at [60]). I am unable to find that the Tribunal did not address “a substantial clearly articulated argument relying upon established facts” (c.f. NABE at [55] and [68]).

7. Moreover, I have difficulty understanding how further consideration by the Tribunal of the “identified in criminal intelligence” sub‑group of triad members (assuming that it did not consider this sub‑group) would have advanced the applicant’s case.  Criminal intelligence agencies normally keep their intelligence and monitoring secret, so it is difficult to see how this element could provide a characteristic which “set apart” or “united” or marked a “cognisable group” within “society at large”.  I am not persuaded that the absence of discussion of this element in the Tribunal’s reasoning shows that it constructively failed to address the applicant’s claims. 

8. I do not accept that the Tribunal’s sentence: “Indeed, criminals often have conflicting interests” reveals it misunderstanding the applicant’s claims.  It did not, in my opinion, limit itself to considering only the broadest group of criminals who might be identifiable as “triad members” or members of some other criminal organisation.  It said it tried to consider the sub‑group defined by the applicant’s solicitor and “other groups which might be defined in similar terms”, and I would not conclude that it did not do this. 

9. Counsel for the applicant argued that the Tribunal’s failure properly to address the applicant’s claimed “group” membership, was shown by its addressing the issue of whether the harms he feared would be Convention “persecution” inflicted by reason of his claimed membership of a group, before considering whether his claimed group was a Convention “particular social group”.  However, I would not draw this inference.  The Tribunal first explored what it saw as the clearest difficulty with the applicant’s claims, before exploring the amorphous contentions made by his solicitor as to the claimed “group”.  I consider that this was an approach permitted to a Tribunal having the duty of applying the Convention definition to the applicant’s claims. 

10. Counsel for the applicant strongly criticised the Tribunal for not referring in its statement of reasons to general “country” information bearing on the distinguishing features of triads and criminal gangs in Australia and China.  She argued that the Tribunal could only perform its duty to review the applicant’s Convention claims by itself conducting researches and revealing the outcome in its reasons, before deciding whether the applicant would be perceived as belonging to a “particular social group”. 

11. She accepted that no such information had been presented by the applicant, and did not seek to show the Court any information which it was contended the Tribunal was bound to consider and had failed to take into account. 

12. She cited no direct authority establishing an independent duty on the Tribunal to conduct such researches in a situation such as the present, but sought to bring the case into the “exceptional” situations where administrative decision‑makers were held to have erred by failing to conduct their own further factual investigations (c.f. Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, Luu v Renevier (1989) 91 ALR 39, Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 at 71‑74, and NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528).

13. I consider that no circumstance in the present case gave rise to such a duty, even if it could exist in the context of s.422B of the Migration Act and the other features of this Tribunal which point against the existence of any duty to conduct independent inquiries to locate support for an applicant’s claims (c.f. Abebe v The Commonwealth of Australia  (1999) 197 CLR 510 (“Abebe”) at [187], Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43], and WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]). As I shall explain below at [50]‑[55], no obligations in this respect arose in the circumstances of the correspondence between the applicant’s solicitor and the Tribunal prior to the hearing. Nothing during the hearing itself could be pointed to as giving rise to the obligation (see above at [14]‑[15]).

14. A specific complaint in Ground 5 of the amended application was that the Tribunal failed to take account of Art.7 in the PRC criminal code which was presented to the Tribunal.  The ground contends that this was “country information provided by the applicant relevant to the question of whether there was a real chance the applicant would be treated selectively or discriminated against by PRC authorities”. 

15. However, in my opinion, the Tribunal’s reasons show that it was aware of the applicant’s claim that he might be prosecuted in China for offences committed in Australia pursuant to the provisions of Art.7.  It addressed these fears in its finding: “there is no evidence that the PRC authorities would regard mere allegations related to supposed activities in Australia, as proof of crimes meriting punishment in China”.  I consider that the Tribunal’s reasoning extracted above at [20] also shows that it considered, and rejected, the claim that Chinese criminal laws would be applied selectively or otherwise inappropriately to the applicant, by reason of his perceived association with criminal gangs in Australia or China. 

16. A complaint was made in Ground 6 of the amended application, that the Tribunal failed to consider the applicant’s claims by reference to the “real chance test”.  Counsel’s written submissions contended that the Tribunal erred because it “asked itself whether there was evidence that the PRC authorities would regard mere allegations related to supposed activities in Australia as proof of crimes meriting punishment in the PRC.  It was not a question of whether the allegations would constitute proof at trial of the crimes, but rather the question whether the communication of such allegations to the authorities in Hong Kong and the PRC would trigger discrimination amounting to persecution”. 

17. In my opinion, the point sought to be made in these contentions relies upon a misreading of the Tribunal’s statement of reasons.  I can find no indication that the Tribunal misdirected itself as to the “real chance” test when arriving at its conclusions as to whether the applicant’s claims satisfied the Convention definition (see Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220).

1. The Tribunal’s finding on whether Chinese authorities would treat the Australian allegations as “proof of crimes” was a factual observation which was relevant to the reasoning followed by the Tribunal in the paragraph in which it occurs.  It was not presented as a conclusion which fully addressed the issues which it had to decide, and it does not reveal a failure to be aware of the “real chance test”.  

2. Counsel for the applicant sought to show this occurring in the Tribunal’s finding which accepted “as a possibility” that the Australian criminal intelligence would reach Chinese authorities.  However, this did not reveal any error since, as I have explained above at [24], this finding was part of reasoning which fully accepted or assumed an inference which the Tribunal was invited to draw. 

Procedural fairness 

1. Counsel for the applicant addressed Ground 7 of the amended application by contending that a denial of procedural fairness occurred “in the sense of non‑compliance with s 425 of the Act” because “the applicant was not given a meaningful hearing”. She argued that this occurred because of the Tribunal’s failure to respond positively prior to its hearing to the various requests made in the letter of the applicant’s solicitor set out above at [9]. She submitted that as a result “the Tribunal precluded the applicant from properly preparing for, and addressing the issues at the hearing”. 

2. Although it was not actually a topic raised by the applicant’s letter, the key issue which was argued not to have been fairly foreshadowed by the Tribunal was that it might find against the applicant on the issue of whether the criminal groups which he feared he might be associated with were “particular social groups”.  It was submitted that the Tribunal should have warned the applicant that it might not be satisfied as to this on the information presented by him, and, further, that it might not itself engage in research for support on this issue. 

3. I do not accept these submissions. I accept the submission of counsel for the Minister that no unfairness has been identified arising from the pre‑hearing correspondence or anything else occurring in the course of the Tribunal’s proceedings. It is therefore unnecessary for me to explore authorities as to the content of obligations arising from s.425 of the Migration Act, and the extent to which they replicate duties of procedural fairness which would otherwise be excluded by s.422B (c.f. Applicant NAFF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 221 CLR 1 at [27], [32], [43], and [70], and the discussion in recent judgments of the Full Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 and of Gray J in  Antipova v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 584).

4. As I have explained in my narration above, it must have been apparent to the applicant’s solicitor – from the nature of the claims put forward by the applicant, from the delegate’s reasoning, and, at least, from his exchanges with the Tribunal member in the course of the hearing, that a live issue for the Tribunal was the characterisation of the criminal group or groups to which the applicant feared he would be associated by PRC authorities, so as to be satisfied that he was a member of a “particular social group”.  In those circumstances, I find it impossible to identify what legal or factual “issue” was left obscure or should have been further clarified by the Tribunal. 

5. The applicant could have been left under no misapprehension by the pre‑hearing correspondence that this might be a “live” issue in the mind of the Tribunal.  In my opinion, it was entirely appropriate for the Tribunal to decline the demand that it should make preliminary rulings in relation to any factual issue.  No authority was cited to support any duty in this respect.  The Tribunal was not in the position of a contradictor who was obliged to “indicate … whether this contention is likely to be in dispute or not” and to make admissions as to what was or was not in “contest”, as was requested by the applicant’s solicitor (c.f. Abebe at [187]). No evidence was led to establish that, in fact, the applicant or his solicitor acted under any misapprehension in this respect, whether as a result of the Tribunal’s letter of 13 May 2005 or any other aspect of its procedure.

6. On the authorities cited above at [43], the Tribunal was under no duty to conduct researches to find country information which supported the applicant’s claims.  It was equally under no general duty to advise that it would not conduct such researches.  If the applicant’s solicitor assumed that it would, then he took an obvious risk on behalf of the applicant.  In my opinion, the applicant has made out no element of unfairness in the Tribunal’s proceedings. 

7. For the above reasons, I reject all of the grounds which were argued before me. The Tribunal’s decision was therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application. The consequent costs order has been agreed.

I certify that the preceding fifty‑six (56) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  19 July 2006