SZOPW v Minister for Immigration & Anor [2011] FMCA 48 (28 February 2011)

Last Updated: 1 March 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOPW v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 48

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming fear of harm at the hands of a people smuggler – Tribunal finding that any harm, and any refusal of State protection, would not be Convention related – whether the Tribunal fell into error in considering that issue as a particular social group claim – observations on the issue of people smuggling from China.

Federal Magistrates Court Rules 2001 (Cth)

Applicant A & Anor v Minister for Immigration & Anor (1997) 190 CLR 225 Dranichnikov v Minister for Immigration [2003] HCA 26, (2003) 77 ALJR 1088 NABE v Minister for Immigration (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 SHKB v Minister for Immigration [2004] FCA 545 SZMEM v Minister for Immigration & Anor [2008] FMCA 1286 SZOOW v Minister for Immigration & Anor [2010] FMCA 960

Applicant:

SZOPW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2018 of 2010

Judgment of:

Driver FM

Hearing date:

2 February 2011

Delivered at:

Sydney

Delivered on:

28 February 2011

REPRESENTATION

Counsel for the Applicant:

Mr D Burwood, pro bono publico

Counsel for the Respondents:

Mr J D Smith

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) The application is dismissed.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2018 of 2010

SZOPW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 August 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from China and had made claims of persecution based upon the Chinese one child policy. She also made claims relating to her departure from China using the assistance of a “snakehead”. The following statement of background facts is derived from the submissions from the parties.
2. The applicant arrived in Australia on 19 December 2009 and lodged an application for a protection visa on 15 January 2010. Attached to that application was a statement setting out the applicant’s claims to be a refugee: court book (“CB”) 27. She explained in it that she had had two children and had hidden to avoid a forced abortion. Officials destroyed her home when her husband did not call her back and, when she did return after the birth of her second child, fined her the equivalent of AUD$10,000. She then planned to leave China for a better life and, to do so, used the services of a snakehead. When the applicant arrived in Australia the applicant did not comply with the directions of the snakehead in respect of which passport to use for a visa application. The applicant did not expressly claim that she had suffered, or feared, any serious harm in consequence of this.
3. After the applicant was invited to an interview she wrote to the Department of Immigration giving further information concerning the snakehead. She said that, since her visa application, her husband had been beaten up by the snakehead and hooligans because she had destroyed the snakehead’s plans and that “(b)efore they left, they threatened to kill me after finding me, wherever I am, if we don’t pay their loss.” The snakehead then repeatedly came to the applicant’s home and smashed things. The applicant’s husband went to the police but they refused to help. The applicant also sent photos that she said showed the damage inflicted by the snakehead.
4. The delegate did not accept that the applicant’s husband had been attacked by a snakehead or that he had reported it to the police. He went on to find that, even if the attack had occurred, the motivation for it was a criminal matter and not Convention-related: CB 74.
5. The applicant gave more details about the snakehead to the Tribunal at the hearing on 22 July 2010. After explaining why the snakehead claimed that the applicant owed her money the applicant said that the snakehead “was a criminal who wanted to punish her for making the snakehead lose money and for no other reason”: CB 115 at [61]. She explained that the police took no action because the snakehead had a personal connection with the officers at that police station: CB 115 at [59] and [62].
6. The Tribunal considered the applicant’s fear of the snakehead on the basis that it could be for reasons of her membership of a particular social group. The characteristics it identified from the material before it were unpaid debts to a snakehead and jeopardising a snakehead’s source of income. However, the Tribunal concluded that these characteristics did not support the existence of any particular social group: CB 119 at [86]. It found that there was no Convention basis for the applicant’s fear.

The judicial review application

7. These proceedings began with a show cause application filed on 14 September 2010. I conducted a show cause hearing on that application on 29 November 2010. Pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth), I ordered the Minister to show cause why relief should not be granted in view of the manner in which the Tribunal dealt with the issue of a particular social group claim involving a snakehead, in particular from [81] of the Tribunal’s reasons: CB 118.
8. On 17 January 2011 the applicant filed an amended application. That application contains the following grounds:
   • 1. The Refugee Review Tribunal failed to exercise its jurisdiction.
   • 2. The Refugee Review Tribunal failed to afford the applicant natural justice as it did not consider the claim she was making.
9. The hearing of the matter on 2 February 2011 proceeded on the basis of that amended application, which was treated as a reformulation of the show cause order I had made. At the hearing, the applicant was represented by Mr David Burwood of counsel on a pro bono basis. The Court is grateful for the willingness of counsel to appear and represent the applicant on that basis.

The evidence and submissions

10. I received as evidence the court book filed on 13 October 2010. Affidavits made by the applicant on 14 September 2010 and 15 November 2010 were not read. I received as evidence an article from The New Yorker magazine relied upon by the Tribunal[1].
11. Both the applicant and the Minister made written and oral submissions. The applicant relies upon the High Court decision of Dranichnikov v Minister for Immigration [2003] HCA 26[2].
12. The applicant contends that the Tribunal construed a particular social group or groups to which the applicant might belong too narrowly and that the Tribunal fell into error by constructively failing to consider a claim made by the applicant that was apparent from the material before the Tribunal.
13. The Minister contends that, while the applicant did not expressly advance a particular social group claim, the Tribunal considered whether a particular social group claim existed on the basis of the available material. The Minister contends that, while reasonable minds may differ about the description of hypothetical particular social groups advanced by the Tribunal, (or otherwise potentially arising from the material) the articulation of the group or groups of which the applicant might be a member is ultimately irrelevant because, as was found by the Tribunal, there was no nexus between the harm feared by the applicant and the Convention. In other words, the Minister contends that, however a particular social group based upon the applicant’s use of the services of a snakehead may be constructed, the harm she feared did not arise by reason of her membership of such a group.

Consideration

14. The parties agree on the general legal principles to be applied. In Dranichnikov v Minister for Immigration the High Court granted constitutional relief on the basis that the Tribunal had failed to “respond to a substantial, clearly articulated argument relying on established facts”. In that case, the applicant claimed before the delegate and the Tribunal that he belonged to a group being "businessmen who publicly criticise and seek reform of the law enforcement authorities". The Tribunal only considered a broader group, namely, Russian businessmen. The High Court held, by majority, that the Tribunal had failed to determine a critical claim and so had committed jurisdictional error.
15. In NABE v Minister for Immigration (No.2) [2004] FCAFC 263; (2004) 144 FCR 1, the Full Federal Court explained in greater detail the type of error identified in Dranichnikov. The Court there stated, at page 20, that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it.
16. The applicant’s claims concerning her use of the services of a snakehead were made in a statement annexed to her protection visa application: CB 27. Relevantly, that statement says:
    • I am an asylum seeker, and have been experienced extreme hardship due to the one baby policy.
    • I have two children, one is my son ..., born in ..., and another one is my daughter ... . When I was [pregnant] on 2008, the authority of my village forced me to have abortion. Therefore, I run away from the home, and hid in my friend’s home.
    • When the officials found out that, they came to my home, and ordered my husband to call me back to home. My husband did not do so, they destroyed one of our home in my hometown.
    • When I gave the birth to my daughter, and went back to my home. The officials came to my home straightaway, and handed me a fine about 50,000 RMB, which is equivalent to 10,000 Australian dollars. If we didn’t pay the fine, my daughter would not be registered. Without choice, we paid the fine.
    • On 2009, I was thinking about to escape from China for the better life. Without choice, I paid the fees to a snakehead. He arranged me to come to Australia.
    • I used a passport of Miss ... to enter into Australia on 19/12/2009. The snakehead took the passport back, and gave a photocopy of someone’s passport, and said I can seek asylum by the passport. The ... passport cannot be used for further visa application.
    • In Sydney, I came cross some of my townees. When I asked them for the issues of passport. They said I can’t use someone’s name for an application, and this is a cheating behaviour, which is against Australian laws. Fortunately, I did not do on the way the snakehead directed.
    • I declared that I used [a false] passport ... to enter into Australia;
    • The snakehead gave ma a photocopy of a British passport ... for the further application.
    • My name is ...(DOB ...)
    • Some of my townees and friends helped me to seek asylum due to my situation. I wish the Australian government can understand my situation, and let me stay in Australia.
17. The Minister’s delegate was not satisfied that the applicant had substantiated a claim of a well-founded fear of persecution because, in relation to the breach of the one child policy, the evidence was that the applicant and her husband had paid the “social compensation fee” and their second child had been registered. The delegate also noted that the policy was a law of general application designed to achieve a legitimate state objective. The delegate formed the view that the applicant’s motive for leaving China was not Convention related but was based on an economic motivation. The delegate took into account the applicant’s evidence that her husband had been assaulted and her home damaged because of their failure to pay money demanded by the snakehead but those claims were dismissed on the basis of a lack of clarity in photographic evidence she provided and a lack of independent co-operation. The delegate was also not satisfied that the claimed actions of the people smugglers constituted Convention related persecution: CB 74.
18. The applicant expanded upon her fear of the snakehead at the hearing conducted by the Tribunal on 22 July 2010. The Tribunal recites the following evidence given by the applicant in relation to her fear of the snakehead at that hearing (CB 114-115):
    • She confirmed that she had paid fees to a snakehead, a woman, to arrange for her to come to Australia. The “fee” was 300,000 RMB, which she said was the equivalent of approximately $50-60,000. The snakehead said she could help the applicant come here, and after arriving here she could apply for a long-term work permit and so earn a lot and pay her debts, as well as have money left over for herself. The applicant initially told the Tribunal that she did not know the name of the snakehead, then provided a name. She said she did not know if it was the woman’s real name. She said she had contacted the snakehead and they met in a teashop. The applicant needed her help as she did not have the kind of documents, such as a work history, that would enable her to be granted an Australia visa. The snakehead was powerful and well-known in the Fuqing area, and had previously assisted many people to come to Australia in the same way.
    • She did not owe the snakehead any money now as a result of the previous arrangements. The applicant had borrowed money from a relative and, as arranged with the snakehead, had deposited it in a bank account opened for the purpose. That account was a joint account in the name of the applicant’s husband and the snakehead.
    • When she arrived in Australia a person here picked her up.
    • As to why the snakehead now claimed that the applicant owed her more money, she said it was because the applicant had used her own passport to apply for the Protection visa. The agent had said this had “broken [the snakehead’s] plan” She could have used the passport to earn more money, so had threatened the applicant’s husband. The passport she wanted the applicant to use was the [false] passport. The applicant never had the actual passport, so did not use it to travel from Macau. She was given the photocopied page of it by the person who met her on her first night in Australia. The applicant had travelled from Macau to Australia with a PRC passport in the name ..., but did not know the holder personally.
    • As to whether the snakehead had told the applicant how to explain to the Department where the original [false] passport was, she said she had not. She just said the applicant should never use her own passport or the one with which she had travelled from Macau to apply for the Protection visa.
    • She agreed that a month after she applied for the Protection visa the snakehead attacked her husband and demanded money, saying they would kill the applicant because she had ruined their plans to bring more people to Australia, by not following the snakehead’s order to the name of ... to make the application. As to how the snakehead could have known the applicant had not applied in the name ..., she said she did not know.
    • The Tribunal put to her that Protection visa applications were dealt with in confidence by Australian authorities, that her application had only been lodged a few weeks earlier, and that she had not even yet been interviewed at that stage. She agreed that all this was so. The Tribunal advised her that, given all this, it was difficult to believe that the snakehead could have found out that she had done anything to ruin the snakehead’s plans. In response the applicant said that she did not know. She only knew that soon after the visa lodgement she rang home on the first day of Chinese new year. Her son picked up the phone crying that his father had been beaten up. The applicant said that she had no idea how the snakehead found out she had applied for the Protection visa.
    • As to evidence that her husband had been assaulted and her home damaged, she confirmed that she wanted the Tribunal to take the photographs as evidence that the incidents had occurred. She said she had no other evidence that they had. She also volunteered that her purpose in obtaining the photographs from her husband was not to support her claims for the Protection visa, but rather to know how her husband was. However she had decided to take the photographs along to the DIAC interview because DIAC had asked for evidence and she had remembered she had them.
    • She said that at first her husband wanted to report the events to the police and show them these pictures, but she did not think they would investigate, because the snakehead had a personal connection with the police officers at this police station, so the police would not accept the complaint.
    • The Tribunal told her that these photographs were not convincing as evidence that her husband had been injured and her house damaged, noting that if DIAC had been asking for evidence it would have been tempting to fabricate such evidence under these circumstances. She responded that she did not need to provide false documents. She had not wanted to submit these photographs at all but DIAC asked for evidence so she had given it to them.
    • The applicant confirmed that the snakehead was a criminal who wanted to punish her for making the snakehead lose money and for no other reason.
    • She also confirmed her claim that the PSB would not investigate the threats and assault because the snakehead had good connections with local officers. As to the basis for this belief, she said that her husband complained to the PSB on the day of the assault, and the PSB wrote a report, then a few days later her husband went back to ask for an update but was told that because his wife was still in Australia and had come to Australia illegally, if he continued to report the case they would investigate the applicant. She said she did not know what they had meant by her coming “illegally”. They just said to him that if he continued to report to the police they would charge the applicant with the crime that she had “stolen” into another country. She thought they meant using someone else’s passport to enter Australia. As to how the local PSB could have known she had done that, she said she did not know.
    • As to her husband’s present circumstances, she said that he had been in ... since March 2010, soon after being beaten. He had lived at three addresses in ... since then, and was now at his uncle’s company premises. The snakehead, who lived in downtown Fuqing, had not located him or the children since they left the family home. The applicant said she did not know how wide the snakehead’s influence spread.
    • The applicant said that her husband’s household registration (hukou) was not in ..., but that in China, if a person wants to live in another province it was unnecessary to change hukou. She agreed that her husband resettle permanently in ... if he wished to do so.
    • As to if this meant she too could and would live in... or some other part of China if she returned, so would not need to go back to the village, she said that the problem was that her children could only attend school in their hukou area, which was in Fuqing city. They could not go to school in ....
19. After having dealt with the applicant’s claim based upon the Chinese one child policy (which is not subject to challenge in these proceedings) the Tribunal, in its reasons, turned its attention to the applicant’s fear of harm of the snakehead. The Tribunal’s reasons for its decision in relation to this claim are important and I quote them in full (CB 117-120):
    • The Tribunal accepts that she made a payment to a person in China for assistance to enable her to enter Australia. The Tribunal accepts that this person was what is commonly called a snakehead (an often ruthless “underworld entrepreneur who charges tens of thousands of dollars to shepherd undocumented migrants from one country to another” – see Keef, P.R. 2006, “The Snakehead”, The New Yorker, 24 April, (http://www.newyorker.com/archive/2006/04/24/060424fa_fact6?currentPage=all), accessed 22 July 2010. Snakeheads are found in the Fujian region of China. The applicant’s claim is that she fears this person will seriously harm or kill her because she jeopardised the snakehead’s profits.
    • Her account is not inconsistent with evidence about the manner in which snakeheads operate in Fujian, and it is possible that she has been truthful that a person has made threats to seriously harm her if the debt is not repaid, and in revenge for jeopardising this person’s ability to make money.
    • Such harm may amount to persecution if it is for a Convention reason. As is noted above, the harm which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared.
    • The applicant has confirmed that the snakehead is a criminal who intends to punish her for the reason that she has make [sic] the snakehead lose money. She told the Tribunal that the snakehead had said she would kill the applicant because she had ruined their plans to bring more people to Australia. From the applicant’s perspective, the snakehead has no other reason for wishing to harm her.
    • Nothing in her account indicates that the snakehead intends to harm her for reasons of her race, religion, nationally or political opinion. The Tribunal finds that the harm she fears would not be for any of these reasons. However, the Tribunal must consider any Convention ground that is raised by the evidence and material before it even though not expressly claimed by the applicant.
    • Notwithstanding that the applicant has not implied that part of the motivation for the harm might lie in her membership of a particular social group, the Tribunal has considered whether there is a particular social group of which she is a member that may be relevant to its considerations.
    • The Tribunal has considered in particular whether the harm she fears may be motivated by a combination of Convention- and non-Convention-related reasons. The possibility of multiple reasons for harm caused has been particularly evident in cases where revenge or extortion is involved. For example in SHKB v MIMIA ([2004] FCA 545 (Selway J, 5 May 2004) at [12]) it was held that the Tribunal, at the very least, was required to determine whether or not it was satisfied that those seeking retribution against the applicant were doing so as an aspect of a broader political or racial campaign against the applicant, or were doing so for reasons unrelated to that campaign.
    • Where the harm feared is multi-faceted, to satisfy Article 1A(2) as qualified by s.91R(1)(a) it is necessary to consider whether the essential and significant reason or reasons for the harm feared is a Convention reason or reasons.
    • A particular social group 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:
      • 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 (Applicant A at 241 per Dawson J.)
      • 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 (Applicant A at 264-265 per McHugh J.)
    • Justice Gummow agreed with the statement in Ram:
      • There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group (Applicant A at 285).
    • The applicant certainly shares a characteristic with some other individuals from China, that characteristic being that she has an unpaid debt to a snakehead Alternatively she has the characteristic of jeopardising a snakehead’s source of income. This characteristic, similarly, may be shared with some individuals from China. However the Tribunal does not consider that either group of individuals is perceived by people in China as a “particular social group”, because the characteristics of having an unpaid debt to a snakehead or of jeopardising a snakehead’s source of income do not unite the individuals and enable them to be set apart from society at large. There is no evidence that the public is aware of these characteristics that might, for the purposes of the Convention, unite and identify the group.
    • The Tribunal is satisfied that the snakehead’s intention to harm the applicant arises simply from what the applicant has done, and finds that the harm feared is therefore not Convention-related.
    • The Convention test may also be satisfied by the selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related.
    • The applicant claims that the police have not, and would not, take action to protect her because they have some personal link with the snakehead. Given the evidence of endemic corruption in China (2010, U.S. Department of State, Bureau of Democracy, Human Rights, and Labor, 2009 Country Reports on Human Rights Practices, 11 March), the Tribunal is satisfied that may be so. She also claimed that her husband had been told by local police that the applicant had come to Australia “illegally”, and they would investigate her if he continued to complain. This appears to the Tribunal to have been no more than a further effort by police to deter her husband from continuing to complain about the snakehead, and the Tribunal is not satisfied that it was motivated by discrimination in the Convention sense. The applicant does not claim, and nothing in the evidence satisfies the Tribunal, that the state would selectively and discriminatorily withhold protection from the applicant for a Convention reason.
    • Therefore the Tribunal is satisfied, and finds, that the essential and significant reason for the harm feared is not the applicant’s membership of a particular social group or any other Convention reason.
    • For the above reasons the Tribunal finds that the applicant does not have a well-founded fear of Convention-related persecution.
20. Exhibit A1 is a copy of the New Yorker article apparently relied upon by the Tribunal. The article provides a useful insight into the people smuggling industry from China, particularly from Fujian province (where a large number of asylum seekers in Australia come from). Relevantly, the article states:
    • Several hours before dawn on June 6, 1993, two Park Service police officers were patrolling the road next to Jacob Riis Park, a long stretch of beach on the Rockaway peninsula, in Queens, when they were startled by two Asian men flagging them down. As the officers got out of their car, they heard the sound of screams coming from the beach. The moon was full, and about a hundred yards offshore the officers saw a hundred-and-fifty-foot tramp steamer that had run aground. The ship’s deck was crowded with people, and, as the officers watched, men and women jumped over the side, falling twenty feet into the surging waves below. Dozens of figures bobbed in the water, some managing to clamber ashore, others flailing wildly, apparently unable to swim. The officers radioed for backup.
    • The ship’s name, stencilled in white block letters on the bow, was the Golden Venture. Its cargo was nearly three hundred illegal Chinese emigrants. Before reaching the Rockaways, the ship had sailed some seventeen thousand miles, from Thailand to Kenya, around the Cape of Good Hope, then across the Atlantic to New York.
    • The passengers—mostly adults, but a few children—were emaciated. They had been confined in the ship’s hold for months, subsisting on rice, peanuts, and purified salt water. It had been uncomfortably hot, and many passengers wore only underwear; when they hit the water, which was fifty-three degrees, some went into cardiac arrest. One Coast Guard officer who performed CPR on two men onshore recalled, “I could feel the gristle of their bodies, the cartilage. They walked up out of the water, collapsed on the beach, and died.”
    • Six bodies were recovered from the surf; four others were found later. By dawn, news helicopters were capturing live footage of the disaster. The Golden Venture accident was not an isolated incident: in the preceding year, more than a dozen ships had dropped human cargo from China on American shores. In April, a ship called the Mermaid 1, carrying two hundred and thirty-seven illegal Chinese, had been intercepted by the Coast Guard near the Bahamas. In May, the Pai Sheng had slipped beneath the Golden Gate Bridge at night, depositing two hundred and fifty passengers on a San Francisco pier. An internal Department of Justice report declared an “immigration emergency”; the San Francisco Chronicle heralded a “SMUGGLER SHIP INVASION.”
    • Several miles from the beach, in a small shop at 47 East Broadway, in Manhattan’s Chinatown, a middle-aged woman named Cheng Chui Ping watched the story unfold on television. Short and stout, with cropped black hair, wide-set dark eyes, and a hangdog expression, she was known in the neighborhood as Ping Jia—Sister Ping. Her gruff demeanor and simple clothes gave her the appearance of a Chinese peasant; she had little formal education, spoke almost no English, and spent most of her waking hours managing the shop, which sold clothes and goods from China, and a restaurant in the basement. But Sister Ping was also an extraordinarily wealthy businesswoman who owned the restaurant and the shop, as well as the building that housed them. She was what the Chinese call a shetou, or snakehead—an underworld entrepreneur who charges tens of thousands of dollars to shepherd undocumented migrants from one country to another. She helped purchase the Golden Venture, and two of its passengers owed her fees. One of them had died.
    • Last summer, twelve years after the Golden Venture ran aground, Sister Ping—now fifty-six, and a grandmother—was tried in a federal courtroom in New York City. She became the twenty-third person to be convicted in connection with the voyage. Described by the authorities as “the mother of all snakeheads,” she was charged with operating what prosecutors called “a conglomerate built upon misery and greed.” Moving people illegally from one country to another requires an extensive network of international contacts and an ability to outwit immigration and law-enforcement officers. With a well-connected family, acute entrepreneurial instincts, and a callous, life-is-cheap attitude toward the poor migrants who were her customers, Sister Ping was well suited to the job. Working with associates in China, Hong Kong, Thailand, Belize, Kenya, South Africa, Guatemala, Mexico, and Canada, she helped create the China-to-Chinatown route in the early nineteen-eighties and ushered thousands of undocumented Chinese emigrants to America. According to the F.B.I., over the course of two decades she made some forty million dollars.
    • Not long ago, I visited a man named Michael Chen, who arrived in America on the Golden Venture and had agreed to talk with me about the journey. Chen is now thirty-two. He is short and slight, with a boyish face and thick, expressive eyebrows. We met in the spotless Chinese restaurant that he owns in a strip mall in suburban Columbus, Ohio; in the lull between lunch and dinner, he related his ordeal.
    • The first Chinese who came to America, in the mid-nineteenth century, originated from a few counties on the Pearl River delta, around the southern city of Guangzhou. Michael Chen was part of another great wave of emigrants, who came from a series of villages along the Min River in Fujian Province, a mountainous sliver of coast across the straits from Taiwan.
    • Chen grew up outside Fuzhou, the regional capital. His father was a produce farmer who fished at night to supplement his income. Several of his uncles had gained entry to New York in the nineteen-eighties by paying snakeheads. These smugglers had emerged during the nineteen-sixties and seventies, when many mainland Chinese were fleeing to Hong Kong, which was then still in British hands. At Sister Ping’s trial, one Fujianese snakehead explained that when smuggled emigrants slither through the wire fences strung along borders “the shape of it looks like a snake.”
    • The Fujianese (sometimes called Fukienese) had various reasons for leaving home—what demographers call “push factors”—ranging from political repression to China’s policies of sterilization and forced abortion. But interviews with numerous Fujianese who entered the United States illegally indicate that many were prompted by the “pull factor” of America’s capitalist system. “In their life here, they’re working like slaves, but there is hope for them to change everything,” said Justin Yu, a veteran reporter for the World Journal, a Chinese-language daily. “But over there, for a fisherman? For a farmer with a little piece of land? They’ll never change their life.”
    • As a teen-ager, Michael Chen was admitted to a school for talented children, but a local Party official stole Chen’s identity in order to enroll his son. Provincial Party bosses govern more or less unchecked in Fujian, and soon afterward, in 1991, when Chen was sixteen, his parents borrowed enough money to make a five-thousand-dollar down payment to a local “little snakehead”—a recruiter who drums up business for “big snakeheads.” The total fee was thirty thousand dollars, with the balance due upon Chen’s safe arrival in America. Chinese snakeheads had Bangkok immigration officials on the payroll, and furnished their clients with “photo-sub” passports, which required only the substitution of the passenger’s picture. “They told us, ‘Easy: you just go on the bus, or motorcycle, to Thailand,’ ” Chen told me with a bitter smile. “ ‘In Thailand, maybe one week or two weeks, they will arrange you by plane to the U.S.A.’ ”
    • During the nineteen-eighties and nineties, the demography of New York’s Chinatown was changing significantly. The 1960 census showed twenty thousand Chinese living in the city; by the mid-eighties, the population had swelled to more than two hundred thousand. The arriving Fujianese settled on Chinatown’s grubby eastern frontier—along East Broadway, under the Manhattan Bridge, and on Eldridge and Division Streets—and established restaurants and small businesses. As soon as a new arrival paid off his snakehead debt (which often took years), he began saving money to bring over another family member. In this manner, whole clans made the journey, and, eventually, entire villages. Men of working age abandoned once-bustling rural Chinese communities. Emigrants who prospered sent money back for the construction of multistory houses, which rose incongruously from the rice paddies—monuments to the filial loyalty of “overseas Chinese.” In status-conscious small towns, this inspired other villagers to emigrate, and within several years many of the houses emptied out—becoming lavish, tenantless temples to the good life in America.
    • New York’s established Cantonese community saw the Fujianese as strivers and peasants. The Fujianese dialect is incomprehensible to Cantonese and Mandarin speakers, so the fledgling community was doubly isolated—a ghetto within a ghetto. East Broadway became known as “Fuzhou Street,” and the Chinatown shorthand for new arrivals was “eighteen-thousand-dollar men,” after the snakehead rate in the eighties.
    • Some of the Cantonese disapproval stemmed from the fact that the influx of Fujianese coincided with a rise in violent crime in the neighborhood. Chinatown had long been home to street gangs, which managed illegal gambling and massage parlors and extorted money from local businesses. But during the eighties a new kind of gang emerged which was conspicuously more violent.
    • These gangs embraced human smuggling, initially by working as strongmen for sophisticated international syndicates. Illegal migrants typically have a grace period of two or three days after arriving in America, and borrow a large sum of money to pay their snakeheads—thereby indenturing themselves to friends, family, or loan sharks. The gangs began holding delinquent arrivals hostage, occasionally beating, torturing, or raping them when they failed to come up with the money. Soon the gangsters established their own smuggling networks. “It was a better business than drug trafficking,” Steven Wong, a Fujianese community leader in Chinatown, told me. “More profit. Less risk. You get caught and plead guilty right away, you only go to jail for six months.” He added, “Another thing is, your merchandise can walk.”
    • The snakehead trade was further fuelled by changes in U.S. immigration policy. A 1986 federal law declared that green-card status could be provided for undocumented aliens who demonstrated that they had lived in the country since 1982 or earlier. This policy was surprisingly useful to those who had not yet left China, as neighborhood businesses could forge backdated records to satisfy the residency requirement. After the 1989 massacre at Tiananmen Square, President George H. W. Bush issued one executive order granting amnesty to Chinese students in the United States and another giving “enhanced consideration” to asylum applications from Chinese nationals who resisted the country’s family-planning policies. These orders effectively meant that any Chinese adult could be classified as a refugee. According to Peter Kwong, a professor at Hunter College and an authority on American Chinatowns, the largest influx of illegal Chinese in the country’s history entered the United States between 1988 and 1993. A United Nations study estimated that by the mid-nineties the snakehead trade from China to the United States was a three-and-a-half-billion-dollar industry.
    • Among emigrant Chinese in New York, Sister Ping is widely revered both as an immigrant success story and as an extraordinarily capable professional. “The Fujianese thank two people: one is Cheng Chui Ping, and one is George Bush the father,” Philip Lam, a Chinatown real-estate agent who emigrated in the nineteen-eighties, told me. Even as she became more powerful within the neighborhood, Sister Ping cultivated a modest image, avoiding any gaudy trappings of success and working hours that were considered long even in Chinatown. Although she had learned little English during her years in America, she encouraged young Chinatown residents to study the language, arguing that it was an important precondition for success. She developed a tendency to refer to herself in the third person.
    • This was perhaps understandable: Chinatown residents describe the name “Sister Ping” as an international brand. It is taken for granted that people-smuggling is a perilous business, and that some level of failure is inevitable even for the best brokers—so much so that the disaster which befell the Golden Venture did not particularly diminish Sister Ping’s reputation. In fact, she handled accidents in a way that drew more customers: when passengers were caught by immigration officials, she would forgive the balance of her fee; when passengers died, she paid for their burial. Sister Ping’s name became so highly esteemed that other snakeheads fraudulently claimed to be affiliated with her in order to attract business.
21. It would have been apparent to the Tribunal that the situation in Australia is not dissimilar to that in the United States. Various push factors drive asylum seekers from Fujian province in China in substantial numbers while pull factors draw them to Australia. The movement of these people is facilitated by the same criminal underworld which facilitates the movement of people from the same region of China to the United States and other countries. That criminal underworld operates both in China and in Australia. The Tribunal would have been aware (as this Court is aware) of many similar cases in which applicants are shepherded from Fujian province to Australia, are met at the airport in Sydney and taken to Chinatown where the process of them seeking protection is put in train using the services of either unregistered migration agents operating illegally or registered migration agents with very few scruples. It is disturbing that this large scale and sophisticated people smuggling operation does not receive the same attention that is directed to people smuggling from south and central Asia. The only difference between these operations is that people smuggled from China arrive by air apparently legally (although frequently using false documents). It is relatively easy for Australia to detect people smuggling operations at sea at the border because the people being brought to this country wish to be detected and processed. It is harder to deal with the people smuggling operation from China because the people being smuggled are not detected at the border. Despite a heavy policy emphasis in this country on “border protection” the fruits of that policy seem to be largely limited to protection of sea borders against people to actively seek detection and thereby protection. The capacity of the Australian authorities to protect air borders against sophisticated people smuggling operations where the object is to evade detection at the border appears poor.
22. The Tribunal, like this Court, must deal with the consequences of that policy and administration challenge[3]. The Tribunal dealt with the applicant’s claim of a fear of the snakehead as best it could on the basis of the available material. The Tribunal correctly reasoned that a Convention related claim, based upon a fear of the snakehead would be a particular social group claim. It is arguable that the Tribunal constructed the potential groups for consideration too narrowly. At [86] the Tribunal considers the applicant’s claims on the basis of a membership of a group who had an unpaid debt to a snakehead or, alternatively, a person who jeopardises a snakehead’s source of income. The Tribunal was not satisfied that such groups exist as particular social groups in China. A further objection to constructing groups on the basis postulated by the Tribunal is that the uniting feature of the membership of the group is that of the fear of harm which, as the High Court noted in Applicant A[4], is an illegitimate basis for the construction of a particular social group.
23. It is arguable that the Tribunal should have considered the claim on the basis of the applicant’s membership of the group of “people who use the services of a people smuggler to leave China” or “people who are smuggled from China”. That is, essentially, what the applicant contends. Assuming, however, that such groups exist as particular social groups in China and that the claim had been considered by the Tribunal based upon the applicant’s membership of such groups, the outcome would have been no different. That is because the applicant was not asserting that she would be harmed by the snakehead because she had used the snakehead’s services or because she had been smuggled. The applicant’s evidence was that the harm she feared was because she caused the snakehead to lose money. She never said that her use of a snakehead was any part of the reason for her fear. Further, there was nothing in the evidence to support such a claim. For those reasons, the Tribunal was under no obligation to consider the claim now articulated by the applicant. There was no evidence that snakeheads would harm their clients or former clients as a class. Rather, the applicant feared harm because she had disobeyed instructions by the snakehead, jeopardised the snakehead’s income, and incurred an unpaid debt to the snakehead. As the Tribunal notes, that fear of harm arises simply from what the applicant had done and not from her membership of any particular social group.
24. Further, the Tribunal was correct in its reasoning that the Chinese state would not fail to protect the applicant by reason of her membership of a particular social group. The Tribunal accepted that corruption is endemic in China and that the snakehead could well be protected by the local police, who would refuse protection to the applicant (as they had refused protection to her husband). The difficulty for the applicant is that while that failure of State protection (at least a local level) was plausible, it was not for a Convention reason. Because of local corruption, the Chinese might refuse protection to anybody who had caused trouble to a snakehead. The widespread and sophisticated people smuggling operation of which this snakehead is a part could not operate without official acquiescence or support in China. However, a person who is caught up in a people smuggling operation and who fears harm as a consequence of something having gone wrong in that operation is not protected under the Refugees Convention unless he or she can establish a nexus between the harm feared and the Convention. That this applicant was unable to do.
25. In my view, the decision of the Tribunal is free from jurisdictional error. It is, therefore, a privative clause decision and the application must be dismissed. I will so order.
26. I will hear the parties as to costs.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM

Date: 28 February 2011

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[1] Exhibit A1.
[2] (2003) 77 ALJR 1088
[3] I made law reform recommendations in SZMEM v Minister for Immigration & Anor [2008] FMCA 1286 and SZOOW v Minister for Immigration & Anor [2010] FMCA 960 that would in my view be effective.
[4] per Dawson J at pp248-249.