Shu Zi Cai v The Minister for Immigration & Multicultural Affairs [1997] FCA 1219 (12 November 1997)

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - review of decision of Refugee Review Tribunal - whether error of law in Tribunal's findings - civil servant punished for embezzlement although accomplice-superiors were not - whether the applicant was a member of "a particular social group"

Migration Act 1958 (Cth), s476(1)(e)

SHU ZI CAI v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 767 of 1996

MADGWICK J

SYDNEY

12 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 767 of 1996

BETWEEN:	SHU ZI CAI Applicant
AND:	THE MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS Respondent

JUDGE(S):	MADGWICK J
DATE:	12 NOVEMBER 1997
PLACE:	SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	v 767 of 1996

BETWEEN:	shu zi cai Applicant
AND:	the minister for immigration and multicultural affairs Respondent

JUDGE(S):	MADGWICK J
DATE:	12 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR: The applicant for judicial review in this case is a 39 year old national of the People's Republic of China. He challenges a decision of the Refugee Review Tribunal ("the Tribunal") affirming a finding by a ministerial delegate that he is not a person to whom Australia has protection obligations, under the 1951 Convention relating to the Status of Refugees ("the Convention") as amended by the 1967 Protocol, and is therefore not entitled to the issue of a protection visa.

The applicant graduated from the Beijing Foreign Trade Institute in early 1979. He was assigned to work for a state-owned corporation ("CMC") which imported motor cycles into China. On his own account, the applicant opened a bank account in his own name and deposited CMC funds into it. He says that he did so upon the instructions of his CMC superiors, of whom one was the daughter of a very high-ranking Communist Party leader. In 1983 he was (but his superiors were not) charged with and convicted of embezzlement. He was sentenced to 12 years' gaol. While under arrest and imprisonment he was, as the Tribunal accepted, grossly maltreated.

The Legislative Framework

As a party to the Convention and the Protocol, Australia has protection obligations to persons who are refugees as defined. Section 36 of the Migration Act 1958 (Cth) ("the Act") provides for a class of visas, known as protection visas, for refugees. The definition of refugee, incorporated in the Act by s 4(1), is contained in Article 1A(2) of the Convention. A refugee is any person who:

"owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and his 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, is unable or, owing to such fear, is unwilling to return to it."

The power to review refugee decisions is vested in the Tribunal.

Section 475(1)(b) of the Act provides that a decision of the Tribunal is a judicially-reviewable decision. Section 476 of the Act provides the grounds upon which an application may be made to review a judicially-reviewable decision, and s 486 vests jurisdiction with respect to review of judicially-reviewable decisions in the Federal Court.

Section 485(1) provides that the Federal Court has no jurisdiction in respect of judicially-reviewable decisions other than as provided for by Part 8 (ss 474 to 486) of the Act (or s 44 of the Judiciary Act 1903 (Cth)).

The Tribunal's decision

The Tribunal Member, Ms Zalewski, accepted the applicant as a truthful person and, in effect, found that he had, through having been subjected to treatment which was "inhuman and degrading" (as she put it) a well-founded fear of being persecuted. The Tribunal also accepted that, at least in some circumstances, "civil servants may constitute a social group". Upon those findings, the Tribunal had to consider whether the applicant's well-founded fear of persecution was "for reason of . . . [his] membership of a particular social group".

The Tribunal concluded:

"There is evidence that the authorities in China severely punish those convicted of embezzlement; the evidence also clearly suggests that those punished come from all levels of bureaucracy . . .

There is no suggestion in any of the materials available to the Tribunal on this issue that the authorities in China are punishing civil servants in the manner suggested by the Applicant's adviser, simply because they are civil servants, that is for their civil status. What is clear is that corruption is rife in China, that the authorities are concerned about [it] and that those charged are being charged with criminal offences committed in the course of their work. This does not make them a social group nor does it indicate that they are being punished because they belong to a social group."

The claim for judicial review

The applicant relied on a supposed error of law made by the Tribunal: s 476(1)(e). The error suggested is that "in seeking to define the social group asserted by the applicant, the Tribunal has conflated the two questions of whether the social group exists and whether membership of the group is a reason for the persecutory act". Put another way, the error was, impermissibly to make the existence of persecution an element in the definition of "a social group".

I agree with that submission, but the problem for the applicant is that, in my opinion, that error by the Tribunal was not an operative one. That is because, assuming that the applicant could, as a civil servant, be regarded as a member of a "particular social group", the Tribunal nevertheless found as a fact that his past or further future maltreatment could not be accounted for by his being a member of such group. In passages following that already quoted, the Tribunal member said:

"However, as noted above, I am unable to accept that the Applicant was so treated because he was a member of a particular social group and that his punishment was a consequence of that membership. There is nothing in the material he has submitted which suggests that he was seen as anything other than a convicted embezzler. I accept that he may have been innocent of wrongdoing. However, it would seem that he was charged, tried and punished for the manner in which he dealt with the proceeds of the sale of motorcycle spare parts, that is, his actions, and not because of membership of a particular social group."

and

"At no time did the Applicant himself suggest that the authorities mistreated him for any reason, which could be connected to his political or social status as encompassed by the Convention and Protocol. During his imprisonment the Applicant was tortured because he persisted in lodging appeals against his conviction. When he withdrew his appeal he was `rewarded' by a reduction in his sentence and release from imprisonment. Once again, a course of events suggests that the Applicant was being punished not because he was known to be a member of a group but rather because of his actions. Even after his release, it was his action in pursuing the appeal process against his conviction which resulted in the requirement that he report to the police once a month. Although care needs to be applied to determining the question of membership of social group because of what a person does, rather than what a person is, in this particular case, I consider it to be very clear that the Applicant was at no time perceived to be anything other than a convicted criminal and it was his conduct which led to the excessive punishment he received."

The Tribunal was generous in its view of the applicant. On any view, he was a trained adult who had dealt with his employer's funds as if they were his own. The approach of the Tribunal, at the least, was not a niggardly one:

"The Applicant's situation evokes a great deal of sympathy. He strenuously denies any wrongdoing in 1981 or 1982. I found him to be a credible witness. He has been punished excessively and brutally and his life, since 1982, has been nothing short of tragic. I am satisfied that he was most probably the innocent victim of an official campaign against corruption. It is regrettable that those who led him to his predicament have been able to escape punishment for their actions. However, as indicated above, I am unable to find that the Applicant's difficulties are Convention-related."

It was alternatively submitted that the Tribunal erred in law by failing to appreciate that inferences arose that (i) the applicant had been treated differently from others in respect of his efforts to appeal and upon his release and (ii) the reason for such differential treatment was that he was a civil servant, and by failing to deal with those inferences. The gist of the argument was that the Tribunal asked only whether civil servants are persecuted, and not whether the applicant was persecuted because he was a civil servant.

Again, this submission has a doctrinal foundation which, in my opinion, is unexceptionable, but it too encounters a practical problem. That is that the supposed inferences are belied by the Tribunal's own findings, as quoted above, and by the applicant's own case. The burden of his complaints was not that, as a civil servant, he had fared worse than others but that he had, as an ordinary citizen of but modest status, been appallingly treated, and that he had thereby come to believe that the Chinese system was a brutal and inequitable one. In his original application for refugee status, he said:

"The purpose of doing this by the autorities (sic) was just to cover the real facts and the real responsible people of the case. Appeal should be a basic right for everyone, but mine was deprived. The authorities persecuted the innocent in such a cruel way just for protecting the interests of some privileged people, which made me see more clearly their real face and strengthened my political viewpoint of resenting the one-Party rule and the current social system in China. I expected that the Chinese would be able to change the unequal social system ruled by one Party thoroughly under the pounding of Western ideology of democracy, freedom and equality some day."

There was no claim that his status as a civil servant had anything to do with his maltreatment.

That the authorities may have treated an embezzling civil servant worse than other embezzlers was, rightly in my view, not pressed as bearing on the question argued: among other things, such an approach could hardly be said to bear the kind of irrationality of approach which, often, is the hallmark of persecution; see, for example, the remarks of McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331 at 355.

A red herring

During the hearing of the application I noticed that the Minister's delegate, in considering the matter, had summarised the applicant's purported position as follows:

"The applicant believes he has not been able to appeal his sentence because the Chinese Authorities do not want to draw attention to the corruption of it's (sic) high level Party members."

It occurred to me that this could amount to a claim of persecution because of "political opinion", giving that term, as it should be given, a liberal interpretation, and that that claim appeared not to have been considered. However, the better view seems to be that the applicant was not propounding any such claim, and that the delegate's summary of his position was inaccurate. His solicitors put to the Tribunal a quite different claim about persecution due to political opinion. No such claim was propounded in this Court on behalf of the applicant before I drew attention to the passage just quoted. In any case, the Tribunal made factual findings that appear to put any such claim beyond the bounds of a reasonable hypothesis:

"In spite of the reporting about conviction and punishment of low-level officials, there have been cases where more senior Party cadres have been punished. . . .

Although it is true that offenders at the lower end of the bureaucracy may be more at risk of being detected, charged, tried and punished for corruption, there is no evidence that they are being targeted because they belong to the lower end of the bureaucracy. Rather, the scenario suggests, as is the case in many countries, that those in high positions with connections, are more able to conceal their wrongdoing."

Conclusion

For these reasons, despite the careful submissions put on behalf of the applicant, there was in my view no error of law justifying the intervention of this Court.

The application for judicial review should be dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment of the Honourable Justice Madgwick.

Associate:

Date: 12 November 1997

Appearances

Counsel for the Applicant: R Niall

Solicitor for the Applicant: Law Partners

Counsel for the Respondent: C Gunst

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing: 30 October 1997