Yong Gui Guo v The Minister for Immigration and Ethnic Affairs
[1996] FCA 131
•8 MARCH 1996
CATCHWORDS
Immigration - refusal of refugee status - judicial review - applicant from China - whether he had a well founded fear of persecution on Convention grounds if returned to China - "real chance" of persecution - whether decision-maker failed to take relevant considerations into account - whether exercise of power unreasonable
Administrative Decisions (Judicial Review) Act 1977
Morato v Minister for Immigration (No.2) (1992) 34 FCR 321
Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379;
Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok Gek Bouy (1994) 127 ALR 224
Chen and Others v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Li Shi Ping and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Matter No. SG 69 of 1993
YONG GUI GUO v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
VON DOUSSA J
ADELAIDE
8 MARCH 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
)
GENERAL DIVISION ) No. SG 69 of 1993
BETWEEN:
YONG GUI GUO
Applicant
AND:
THE MINISTER FOR
IMMIGRATION AND
ETHNIC AFFAIRS
Respondent
MINUTES OF ORDER
JUDGE MAKING ORDER : VON DOUSSA J.
WHERE MADE : ADELAIDE
DATE OF ORDER : 8 MARCH 1996
THE COURT ORDERS THAT:
The decision of the delegate of the respondent dated 11 June 1993 be set aside.
The matter be remitted to the respondent to be determined according to law.
The respondent pay the applicant's costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIAN DISTRICT REGISTRY )
)
GENERAL DIVISION ) No. SG 69 of 1993
BETWEEN:
YONG GUI GUO
Applicant
AND:
THE MINISTER FOR
IMMIGRATION AND
ETHNIC AFFAIRS
Respondent
REASONS FOR JUDGMENT
Coram: von Doussa J.
Place: Adelaide
Date : 8 March 1996
The applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") of a decision of a delegate of the respondent dated 11 June 1993 that he is not a refugee.
The applicant was born in the People's Republic of China ("the PRC") on 27 January 1958. He lived in the township of Jianjin in the Fujian Province. He married on 28 February 1984 and later obtained employment as a school teacher. In 1989 he sought a passport to travel to Australia to study English, and the necessary fees to a tertiary institution in Sydney were paid. A passport was issued to him by the PRC on 22 May 1989. The applicant departed from the PRC at the end of December 1989 and arrived in Australia on 1 January 1990. He was granted an entry permit to pursue his study. His wife
and two children remained at his home in the PRC.
On 13 September 1990 the applicant lodged an application for refugee status in Australia, and for a Domestic Protection (temporary) Entry Permit ("DPTEP"). The statutory framework then in operation under which this application was made is summarised in Morato v Minister for Immigration (No.2) (1992) 34 FCR 321 at 326-328.
An assessment was made on 31 March 1992 that the applicant was not a refugee and a decision to that effect followed. The applicant sought a review of that decision by the Refugee Status Review Committee. The Committee assessed that he was not a refugee. A copy of that assessment was given to the applicant. A delegate of the respondent, after considering the application for refugee status, along with the assessment of the Committee and the applicant's response thereto, made the decision now under review.
In support of his initial application for refugee status the applicant stated his reasons for the application to be that:
"I attended the anniversary rally of Beijing massacre at Victoria Square Adelaide city on 4 June, 1990. There are indications that China Embassy in Australia instigated somebody to keep watch on the rally and the rally has been taken photos. The persons those (sic) attende (sic) the rally will be punished if they returned to China.
On 17th and 18th May, 1989 about 20,000 people demonstrated in Fuzhou, Fujian province. I took part in the demonstration. Many people who had taken in the demonstration are punished after 4th June, 1989. Fortunately, I escaped from punishment as the Government
did not find I took part in the demostration (sic) before I came to Australia.
I have joined in the CHINESE DEMOCRACY SUPPORT GROUP OF SOUTH AUSTRALIA."
By letter dated 18 April 1992 after the applicant was informed that he was not considered to have refugee status, he supplied additional information in support of his application, including that:
"During the democracy movement I was a school teacher and in class I encouraged students to take part in the movement and help to collect donations to support the students in Beijing. Mr Wang Zhi my collegue (sic) teacher and I went to Fuzhou, the capital city of Fujian province to participate in rallies and demonstrations which our involvments (sic) in the demonstration were videoed. We were identified from the video on Jan 25 1992. Three security people from our county, one of them called Zhau Zhong came to my home and searched my home. They destroyed part of my household property. Because of the involvements in the demonstrations Mr Wang Zhi was arrested and was sentensed (sic) three year in prison. If I have to return China now I believe I will be arrested."
In response to the Refugee Status Review Committee assessment the applicant said that his low level of English had made it difficult for him to relate his situation in his written application, and complained that he had at no stage been afforded the opportunity to have an interview "which would enable me to use my language to express my fear deep in my heart". He also added that his family had a long history of religious faith.
The delegate in his statement of reasons for his decision summarised the above claims of the applicant, and identified, correctly, the definition of refugee that he was required to apply arising from the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), namely a person who:
"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
The delegate said:
"I accept that the applicant does not wish to avail himself of the protection of People's Republic of China. However, I must assess whether this is because the applicant has, in relation to a Convention reason, a well-founded fear of persecution."
The delegate observed in relation to the Convention reasons that no claim based on race, nationality or membership of a particular social group had been made, and that in relation to the claim of religious faith the applicant did not assert that he or his family had suffered as a result of that belief. The decision to be made concerned the claim based on political opinion. It is not suggested that the delegate erred in so confining his decision.
On the political opinion ground, the delegate's reasons, under the heading "Assessment", so far as presently material, read:
"I accept at face value the applicant's participation in the pro-democracy activities in Fuzhou and that he joined a democratic support group in Australia. The claim that he was identified as a participant in a demonstration by a video only in January 1992, some two and a half years after the event is difficult to accept. However given that he was not identified prior to leaving China, he left legally, and that the Chinese government are selective in whom they punish for pro-democracy activities, I therefore find the chance that the
applicant will be persecuted is considered remote....The applicant did not appear to have any difficulties since the May demonstration and he did not leave China until January 1990.
I accept that the applicant may have joined the Chinese Democracy Support Group in South Australia, but I do not find plausible his claimed fear that membership of an overseas pro-democracy organisation would attract the prospect of persecution on return to the PRC. Weight is given to information from the Australian Embassy in Beijing which indicates a clear distinction has been made by the PRC authorities between those who play leadership roles and those who participate in rallies and demonstrations. A person who participated in demonstrations may not be penalised at all or may have an adverse note on their personal file or have to undergo a self-criticism session.
In addition, I also give weight to the following:
. he was not detained, interrogated or arrested while he was in the PRC;
. he was able to remain in employment until his departure from the PRC and
. he was able to leave the PRC legally, having completed all the required processes and procedures without difficulty with the authorities.
Information contained in the US Country Report that the PRC Government indicated that since 1989 between 6,000 and 7,000 students had returned to China from the US on holiday. Additionally, several thousand had returned to work and none had been punished or refused permission to go abroad again.
I have taken into consideration that his colleague may have been imprisoned in the PRC, ... but no evidence has been provided to substantiate this claim. The relationship between his imprisoned friend and himself is too remote in time and circumstances to draw any relevance with the applicant. Therefore give this claim no weight.
...
I find that the applicant is not a refugee."
Counsel were agreed that in applying the Convention definition of a refugee, the delegate was required to determine whether the applicant showed a genuine fear founded on a real chance that he would be persecuted for his political opinion: Chan Yee Kim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok Gek Bouy (1994) 127 ALR 223. This test has both a subjective requirement - a genuine state of mind, a fear of being persecuted; and an objective requirement - a basis well founded for that fear Chan, per Dawson J at 396-397.
It has not been suggested by counsel for either party that the delegate adopted a test that was not in accordance with these statements of principle.
Nowhere in the statement of reasons is there a plainly expressed finding by the delegate that the applicant has the requisite state of mind - a genuine belief that because of his political opinion and his politically motivated past activities he would be persecuted if he were to return to the PRC. However, read as a whole, the inference arises from the statement of reasons that the delegate implicitly accepted that the applicant has that state of mind. Counsel for the respondent, properly in my view, has conceded that the statement of reasons should be understood and interpreted on the basis that the credibility of the applicant was accepted, and that the delegate found that the applicant has the requisite state of mind.
When the statement of reasons is so understood, the first ground for review advanced by the applicant cannot be sustained. That ground contends that the delegate failed to extend natural justice to the applicant by not acceding to his request for an interview to use his own language to express his fear.
There may well be cases where a decision relating to refugee status may be open to successful attack on the ground that fundamental requirements of natural justice have not been satisfied because an interview or oral hearing has not been conducted: Chen and Others v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591; Li Shi Ping and Anor v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225. This is likely to be so where a real issue of credibility arises. In the present case however the statements of the applicant and his belief in them have been accepted.
It does not follow from the acceptance that the applicant was told, for example, that his teacher colleague Mr Wang Zhi was imprisoned for three years, that this statement correctly reported fact. However, there is nothing advanced in the material before the Court which suggests how the decision-maker, by interviewing the applicant, could have been assisted in his determination of the truth of the statements made to the applicant, by his family and friends in the PRC, as to events that had occurred in his village after he left.
It is conceded that this review should be conducted on the footing that the applicant's account of these statements, and his belief in the truth of them, was accepted by the delegate, and this is the most that could have come from an interview. If there were other events besides those which the applicant has disclosed relating to his political activities, he should have made them known to the Department in his various written communications, and to the Court. He has not done so.
On the footing that the delegate has accepted that the applicant believes in the information placed by him before the decision-maker, I do not think natural justice required the decision-maker to interview the applicant.
In the initial application the applicant said he had not been identified as a demonstrator before he left the PRC. The additional information supplied by the applicant on 18 April 1992 after the initial assessment of his status was that (a) as a teacher he had encouraged his students to take part in the democracy movement in 1989; (b) he and Mr Wang Zhi were identified on 25 January 1992 by the Public Security Bureau from a video film taken of demonstrations in May 1989; (c) Mr Wang Zhi was then arrested and sentenced to 3 years imprisonment; and (d) the Public Security Bureau went to the applicant's home, searched it, and destroyed part of his household property.
As already pointed out acceptance of the applicant's belief in the truth of this information does not establish that events (b), (c) and (d), which were reported to him by others, actually occurred. Information about those events is of the kind that a person claiming refugee status could hardly be expected to support by independent proof. The observation made at paragraph 196 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (1988), which was before the delegate, provides a pertinent guide: "...there may...be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."
The decision-maker has accepted that the applicant was not identified for his political activity before he left the PRC, and that his colleague Mr Wang Zhi may have been imprisoned in the PRC. No reference is made in the "Assessment" sections of the statement of reasons to the applicant's activities as a teacher or to the visit of the Public Security Bureau officers to his home at about the time when Mr Wang Zhi was arrested; no reason is given or suggested why the reports of these events by the applicant should not be accepted. Having accepted the credibility of the applicant, and having accepted, at least as open possibilities, that important parts of the applicant's statements are factually correct, in the absence of some good reason to the contrary, the refugee status of the applicant should have been assessed on the footing that, at the least, the balance of the information given on 18 April 1992 stated facts which may have been correct.
The failure to identify as matters entitled to weight, the applicant's activities as a school teacher, and the visit to and behaviour of the Public Security Bureau at his home in 1992, are serious omissions. On the face of the statement of reasons it appears that the decision-maker has failed to take into account relevant considerations: see s.5(2)(b) of the ADJR Act.
The delegate has stated that: "The claim that he was identified as a participant in a demonstration by a video only in January 1992, some two and a half years after the event is difficult to accept." This does not amount to a positive rejection of the fact that the identification was belated. Perhaps it might have been expected that the Public Security Bureau would have identified all those who could be identified from video film or otherwise closer to the event. But if it is accepted, at least as an open possibility, that Mr Wang Zhi was not arrested and dealt with until 1992, then the delay cannot provide a sound reason for rejecting that a late identification occurred; and moreover a late identification provides an explanation for the Public Security Bureau's visit to the applicant's home in early 1992.
Early in the "Assessment" portion of the statement of reasons it is accepted that the applicant was not identified prior to leaving the PRC. Against that finding it is not right in deciding whether there was a real chance that he would be persecuted if he were to return to the PRC that weight should be given to the facts that the applicant was not detained, interrogated or arrested before he left the PRC; that he was able to remain in employment until he left (the application form actually states that his employment ended in July 1989, not December 1989 as the statement of reasons seems to assume); and that he was able to leave the PRC legally without difficulty from the authorities. These factors are entirely consistent with the absence of identification, and on the applicant's story would indicate nothing more.
The statement of reasons makes reference to information from the Australian Embassy as to the attitude of the PRC authorities towards students who in Australia were involved in demonstrations. It is important to note that the cable from the Embassy says:
"The point is that mere involvement in demonstrations (either in China or overseas) is not on its own likely to result in an individual suffering any official persecution, either active or passive. Of more significance is the extent and nature of an individual's political activism, in particular contacts with other activists..."
The applicant's involvement in political activities was more than as a mere demonstrator. He was active as a school teacher, and he associated with another activist, Mr Wang Zhi. If Mr Wang Zhi were considered by the PRC authorities as deserving of a 3 year imprisonment, the applicant's contact and relationship with him would seem to be a matter of considerable importance. The information contained in the U S Country Report, to which reference is made in the statement of reasons, relates to students who had studied overseas, not to students who had been identified as being involved in demonstrations or pro-democracy activities. It therefore adds nothing relevant to the information from the Australian Embassy.
The delegate concluded his statement of reasons on the "political opinion" ground by saying:
"The relationship between his imprisoned friend and himself is too remote in time and circumstances to draw any relevance with the applicant. Therefore give this claim no weight."
It is difficult to be sure what is intended by this statement. The imprisonment of Mr Wang Zhi was in a sense remote in time from the events of May 1989 when he and the applicant were together at the school and at demonstrations, but their relationship then was close. Moreover they engaged in closely similar activities as a pair. If the authorities attended to the imprisonment of Mr Wang Zhi in early 1992 for three years, this must, in my opinion, indicate that in June 1993 (when the delegate made his decision) there was a real chance that the applicant could come in for similar treatment were he to be returned to the PRC. In my opinion it was not reasonably open to the decision-maker to say that the relationship of the applicant to Mr Wang Zhi, and Mr Wang Zhi's apparent fate, were of no relevance or weight.
It has been contended on the respondent's behalf that there is no evidence to show what activities were engaged in by Mr Wang Zhi between May 1989 and January 1992, and that perhaps his imprisonment was for political activities unrelated to those he participated in with the applicant. There is nothing in the information before the Court to lend any weight to this suggestion. There simply is no information other than that given by the applicant. The theoretical possibility that Mr Wang Zhi continued to air political views after the crack down on the pro-democracy movement in June 1989 cannot be eliminated - but that possiblity does not, in my view, remove as a real chance, appearing from the other information, that the applicant would suffer persecution if he were to return. This theory that Mr Wang Zhi may have engaged in other political activities does not explain the visit of the Public Security Bureau to the applicant's home in 1992.
In my opinion once the credibility of the applicant and important parts of the additional information that he supplied on 18 April 1996 were accepted the conclusion that the genuine fear held by the applicant was not founded on a real chance that he would be persecuted if he were to return to the PRC was one that was "so unreasonable that no reasonable person could have come to it": s 5(2)(g) of the ADJR Act: Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at 41. In the present case, the unreasonable conclusion arrived at may be explained by the fact that the delegate failed to take into account relevant considerations, and erroneously declined to give weight to relevant matters.
For these reasons I consider the decision of the delegate sought to be reviewed should be set aside, and the matter remitted to the respondent for determination according to law.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Justice von Doussa
Associate:
Dated:
Counsel for the applicant : Mr A Lisacek
Solicitor for the applicant : Lisacek & Co.
Counsel for the respondent : Ms S Maharaj
Solicitor for the respondent : Australian Government
Solicitor
Date of hearing : 16 February 1996
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