Federal Court of Australia

This appeal is brought under s 476 of the Migration Act 1958 (Cth) from a decision of a Refugee Review Tribunal ("the Tribunal"), which rejected a claim by the applicant, Guo Wei Zhi, for refugee status and refused to grant to him a protection visa. Mr M J Lawler of counsel appeared for the applicant. Mr S J Gageler of counsel appeared for the respondent.

The hearing before the Tribunal was a rehearing by a differently constituted Refugee Review Tribunal pursuant to an order of my own made by consent of the parties. This consent was made after a Full Court of the Federal Court of Australia constituted by Beaumont, Einfeld and Foster JJ in Guo & Pan v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, had ordered that a decision of a Refugee Review Tribunal refusing refugee status to the applicant's brother, Guo Wei Rong, be set aside and that the matter be remitted for rehearing. Before this present matter had been reheard by the Tribunal, the High Court of Australia, constituted by Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow & Kirby JJ, in Minister for Immigration and Ethnic Affairs v Guo & Pan (1997) 144 ALR 567, allowed an appeal from the decision of the Full Court of this Court. Many of the arguments which may otherwise have been put before the Tribunal on the rehearing in the present case had therefore been dealt with by the courts before the rehearing began.

The case as put originally for the applicant and for his brother, Guo Wei Rong, was principally that they feared persecution for reason of their political opinion if they were returned to China. The case as put to the Tribunal for the applicant, Guo Wei Zhi, on the rehearing relied upon that ground but principally on the ground that the applicant feared persecution by reason of his membership of a particular social group, the Guo family, if he were to be returned to China. The applicant alleged before the Tribunal that the Guo family constituted a particular social group. It is not in dispute that a family may be a relevant social group. See "Applicant A" v Minister for Immigration and Ethnic Affairs [1997] HCA 4; (1997) 142 ALR 331 at 340 by Dawson J.

Article 1A(2) of the Refugee Convention defines a refugee as 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, is unable or, owing to such fear, is unwilling to return to it." (emphasis added)

The application of the Convention in Australia was explained in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. The members of the Court referred to the subjective and objective elements of the words "well-founded fear of being persecuted." On the objective elements, Mason CJ at 389, Dawson J at 398 and McHugh J at 429 expressed the view that there should be "a real chance of persecution before fear of persecution can be well-founded", per Dawson J at 398. At 389, Mason CJ said:-

"If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring."

Subsequently, without resiling from this view, the High Court in Guo, advised at 577 that:

"Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate."

As to "persecution", it is sufficient to cite the remarks of McHugh J in Chan at 429-40 where his Honour said:-

"The term 'persecuted' is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes 'being persecuted'. The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual.

A single act of oppression may suffice. As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention."

In the Republic of China, it was an offence to leave the country without permission and a more serious offence to engage in the organisation or transport of other persons secretly across the National border. Articles 176 & 177 of the Chinese law read as follows:

"ARTICLE 176:

Whoever violates the laws and regulations that control leaving and entering the country, secretly crossing the national boundary (or border-line), when the circumstances are serious, is to be sentenced to not more than one year of fixed-term imprisonment, criminal detention or control.

ARTICLE 177:

Whoever, for the purpose of reaping profits, organises or transports other persons secretly to cross the national boundary (or border-line) is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention or control, and may in addition be sentenced to a fine."

The applicant's brother, Guo Wei Rong, had been active in the smuggling of Chinese citizens out of China to other countries by ship. The Tribunal expressed this point very briefly when it said:

"Evidence has been given in this and other cases that XXXX is known to the Chinese authorities as a smuggler or organiser of illegal departures, of long standing."

The Tribunal was referring to the applicant's brother when using the symbol "XXXX".

Later, in April 1992, the applicant, his brother and some others of their family travelled by boat to Australia with other Chinese citizens. It appears that Guo Wei Rong at least was responsible for organising the trip. All had left China illegally. On arrival, the applicant and his brother lodged applications for refugee status and, whilst in detention at Port Hedland, both participated in a demonstration and hunger strike. They were returned to China in 1992 with a number of the persons who had accompanied them to Australia. All were held in custody but all except the applicant and Guo Wei Rong were released after five or six days. The applicant and his brother were transferred to a prison where they were held for a further 23 days. They were questioned at length about their journey to Australia and their activities. Ultimately they were released and were fined 3,000 rmb. The applicant lost his identity card. He was unable to obtain a new one. He gave evidence to the Tribunal that he was unable to get his old job back and that he could not obtain other work because of concern about his illegal departure. The applicant gave evidence to the Tribunal that, in June 1993, he and his brother were again arrested and were taken to prison where they were held for more than three months. The Chinese Public Security Bureau ("PSB") questioned them. The applicant said that he was beaten on the face and kicked and beaten about the body. He said that he and his brother were released after his mother had paid a large bribe.

The applicant gave evidence that, sometime after their release, his brother was informed by a PSB officer that they were to be arrested again. The PSB officer warned them to leave China. Accordingly, they again departed China illegally and returned to Australia where they sought refugee status.

The case for persecution by reason of political opinion was not strongly pressed before the Tribunal, presumably because it had been rejected by the Refugee Review Tribunal which had considered Guo Wei Rong's application, the decision of which was ultimately upheld by the High Court of Australia. Moreover, a report of a Dr David Kelly submitted on behalf of the applicant suggested that the actions of the applicant and of his brother would not be likely to be regarded by the Chinese authorities as having political significance. The Tribunal rejected this part of the case and no submissions have been put in this appeal with regard to that.

During the course of the hearing, there was this discussion concerning the "particular social group" issue between Mr Moore, who appeared for the applicant and Mr J Hoysted, who constituted the Tribunal:

"MR MOORE: ... Sir, the primary claim advanced is refugee status on the basis of a particular social group, namely the family and his brother.

MR HOYSTED: The weakness of that at the moment that I would see, Mr Moore, is that there isn't any evidence that the members of the family who aren't associated with the activities of Mr Guo and his brother have faced interviews at all.

MR MOORE: I think there's no evidence at all about the matter.

MR HOYSTED: That's right and in the absence of that, if the evidence is about - if the only evidence that exists of harm coming to members of the family is harm flows to Mr Guo and Guo Wei Rong then I would find it difficult to be persuaded that the harm is occurring for reasons of being members of the family. Rather it is for reasons of the activities that those particular members of the family have engaged in.

MR MOORE: ... I'll obviously have to say thank you for giving me that indication"

(emphasis added)

Mr Moore thereafter adduced this further evidence from the applicant:

"MR MOORE: Mr Guo, have any bad things at all happened to other members of your family as a result of problems with Guo Wei Rong?

INTERPRETER: Yes.

MR MOORE: What are they?

INTERPRETER: ... (indistinct) .. My sister.

MR MOORE: Your sister. What happened to your sister?

INTERPRETER: My sister has a large boat and because of my brother the government has come and confiscated it from her.

MR MOORE: When did that happen?

INTERPRETER: The first time when I returned.

MR MOORE: Has anything else bad happened to any other members of your family that you know about? Your parents or your other brother?

INTERPRETER: I really can't remember."

(emphasis added)

After the hearing before the Tribunal, the representatives for the applicant forwarded to the Tribunal a statutory declaration from the applicant's sister. The sister described a number of events involving harassment of herself. The sister also gave instances of what she said was harassment of the parents; but those instances do not appear to have amounted to anything more than questioning by the PSB about Guo Wei Rong and Guo Wei Zhi and questioning about the sister, especially after she had fled China. The Tribunal did not refer in its reasons for decision to this evidence as to the questioning of the parents, no doubt considering that it did not amount to persecution. There is no ground of appeal with respect to that.

The Tribunal expressed these findings:

"There seems to be no evidence that other members of the family have suffered serious harm. The Applicant was not aware of any. He had not been in contact with them. The Applicant has parents, a brother, and a sister in China.

The Tribunal notes that the Applicant's sister, in a statutory declaration submitted to the Tribunal, states that the boat was jointly owned by herself, her mother, and XXXX. The Tribunal considers that, given XXXX's record of organising illegal departures by boat, it is hardly surprising that the Chinese authorities would confiscate a boat which he part-owned and which he may have used to further his illegal enterprise.

The Tribunal also notes that the second detention of the brothers seems to have been an attempt by the Chinese authorities to prevent further illegal activities by XXXX. The Tribunal notes that the Applicant was questioned about XXXX and his associates. The Applicant did not claim that he was questioned about his political opinions or activities on the second occasion.

The Tribunal notes that the Applicant's sister states that she also had been questioned by the police about the activities of XXXX. She was harassed by the police, and eventually fled China to avoid further harassment. She also states that there is another brother who lives with his wife's family some distance away. That brother has little to do with his family and she has not heard that he has had any difficulties.

The Tribunal is satisfied that the harm suffered in the past by the Applicant and his sister has occurred because they are associated with XXXX, who is known to the Chinese as having previously organised illegal departures. The Applicant was present on one of the boat trips organised by XXXX. He has been twice arrested and questioned with XXXX. He was mistreated while in detention. He was questioned about the activities of XXXX.

The sister was co owner of a large fishing boat with XXXX. A boat which the Chinese authorities may well have suspected would be used for further illegal activities. She was questioned about XXXX, she was harassed, and the boat she owned jointly with XXXX was confiscated.

The Tribunal notes that it is when the Applicant and his sister mix their own activities with those of XXXX that the Chinese authorities take an active interest in them."

(emphasis added)

The Tribunal concluded:

"The Tribunal is not satisfied that the harm which has been suffered in the past by the Applicant, or the harm that he fears in the future, will occur for reasons of his membership of a particular social group, namely, 'the family of XXXX'.

It may be that those who have suffered the harm are members of that group, but that is not sufficient. The Tribunal would need to be satisfied that it was for reasons of their membership of that group, that the harm was inflicted. That is, that the motivation of the Chinese authorities was to inflict harm on that particular social group. The Tribunal is not so satisfied.

The Tribunal notes that the Chinese authorities had ample grounds for suspecting that the Applicant and his sister may have been involved in the illegal activities. That those suspicions may be unfounded is irrelevant. The Tribunal notes that in the case of the brother, to whom no such grounds for suspicion attach, there is no evidence of harm by the Chinese authorities. The Tribunal is satisfied that the Chinese authorities, in their mistreatment of the Applicant and his sister, were seeking to prevent XXXX and his suspected associates from engaging in further illegal activities."

I see no error of law in those findings of the Tribunal. They were findings on the facts which were open to the Tribunal. The Tribunal considered that any harm which the applicant was likely to suffer if he returned to China would result from the illegal activity in which he had engaged and from the illegal activity in which he was suspected of engaging with his brother, Guo Wei Rong.

Counsel for the applicant submitted that the Tribunal applied the wrong test for, he submitted, there was no evidence that the applicant had engaged in any illegal activity other than to flee China. Counsel submitted that the applicant had been imprisoned and beaten simply because he was Guo Wei Rong's brother and this relationship had caused him to be suspected. It appears to me, however, that the Tribunal considered that the applicant and his brother came under suspicion as individuals. No doubt, the familial relationship was a factor which induced the PSB to take particular interest in the applicant as it did in the sister. But the Tribunal was entitled to conclude that the PSB took such action as could be said to amount to persecution only against those members of the family who, individually, were suspected of involvement in serious illegal activity. The Tribunal found that the Chinese authorities had ample grounds for suspecting that the applicant and his sister may have been involved in illegal activity.

Counsel for the applicant submitted that the Tribunal erred in law in that it misunderstood the reference by Burchett J in Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 at 568-570 to "motivation" when it found that the Chinese authorities were seeking to prevent Guo Wei Rong and his suspected associates from engaging in further illegal activities. I see no error in the expression by the Tribunal of its view.

There is a distinction between persecution of citizens by a government or by persons over whom the government should have control because of the citizens' membership of a particular social group on the one hand and the punishment and arrest of individuals involved in or suspected of being involved in criminal activity on the other. The Tribunal had this distinction clearly in mind. The Convention is not directed to protecting criminals from inhumane treatment but to protecting the fundamental human rights of those with a "well-founded fear of being persecuted for reasons of race, religion, nationality, particular social group or political opinion."

As Burchett J said in Ram at 570:

"In the case of criminals, plainly they are dealt with for their personal guilt."

In "Applicant A", Brennan CJ referred to the same point when he said at 335 when speaking of the characteristics of a "particular social group":

"The characteristic may consist in any attribute, including attributes of non-criminal conduct or family life, which distinguish the members of the group from society at large."

See also Dawson J at 343-4. McHugh J at 353 expressed the view that prisoners could arguably be a particular social group and, if they were routinely beaten because they were prisoners, they may well qualify for refugee status. But his Honour drew a distinction between that general situation, which was not alleged to exist in the present case, and punishment or harsh treatment inflicted on an individual for breach of the laws.

The Convention requires that the person has "a well-founded fear of being persecuted for reasons of .... membership of a particular social group". As Dawson J said in "Applicant A" at 340:

"The words 'for reasons of ' require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group."

At 341, Dawson J said:-

"There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution. A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention 'completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa): Chan v Canada [1993] 3 FC 675 at 692-3 per Heald JA. That approach would ignore what Burchett J in Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 57 FCR 565 at 568; [1995] FCA 1333; 130 ALR 314 at 317 called the 'common thread' which links the expressions 'persecuted', 'for reasons of', and 'membership of a particular social group', namely:

a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group."

McHugh J expressed the same view when his Honour said at 354:

"When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution. The object of the Convention is to provide refuge for those groups who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality."

In the present case, the Tribunal considered that any harsh treatment that the applicant would be likely to receive would result from his actual or suspected involvement in criminal activity. The Tribunal concluded that he would be punished for what as an individual he had done and been involved in. In the light of the Tribunal's findings, the decision of the Tribunal was correct in law.

I see no error in the Tribunal's approach to the issues, that is, any error encompassed by s476(1)(e) of the Migration Act.

The application filed in this Court also specified the following grounds, inter alia:

"Section 476(1)(a)

2. Procedures that were required by the Migration Act to be observed in the making of the Decisions (namely that the requirement imposed by s.420(2)(b) of the Migration Act that the Tribunal, in reviewing a decision by the Minister's delegate that an applicant is not a refugee and or is not entitled to a protection visa, must act according to substantial justice and the merits of the case) were not observed in that, given:

(a) the matters referred to in paragraphs 1.2 to 1.5 above [errors under s 476(1)(e)];

(b) the apparent failure of the Tribunal to attach any relevance to the evidence of the Applicant's sister Guo Juan Xin (whose evidence was accepted and acted upon by the Tribunal without any indication of reservation) as to problems encountered by other members of the family (see paragraphs 15, 20 and 21 of the Statutory Declaration of Guo Juan Xin dated 10 October 1997);

(c) the Tribunal's reliance in support of the Decisions on "no evidence of harm by the Chinese authorities" to "the brother to whom no such grounds for suspicion attach" (Decision p 7.6) when in fact there was no positive evidence one way or the other as to whether that other brother had suffered harm;

(d) the Tribunal's reliance on Dr Kelly's comments that the likely motivation for the refusal to issue the Applicant with a new identity card was to prevent legal movement as supportive of its conclusions (Decision p 8.3) when, rationally, those comments provide no such support,

(e) the fact that the only rational explanation for the hypothesised suspicion of involvement in organising illegal departures sufficient to explain the treatment received by the Applicant on return to China in December 1992 is the Applicant's family relationship to Guo Wei Rong,

the Decisions are substantially unjust."

There are procedural elements in the requirement that a Refugee Review Tribunal must act in accordance with "substantial justice and the merits of the case", per s 420(2)(b) of the Migration Act. The procedure adopted by the Tribunal must be directed to ensuring that a decision in the case will deal with the substantial justice and the merits of the case. If the Tribunal does not act in such a way as to permit that to be done, it will breach one of the procedures which the Act prescribes. See Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300; Velmurugu v Minister for Immigration & Ethnic Affairs (Davies, Burchett & Whitlam JJ, unreported, 12 November 1997).

However, the matters raised in cl (a) to (e) of para 2 of the application go to the merits of the case, not to matters of procedure. Moreover, the ground alleges that:

"The Decisions are substantially unjust."

The Migration Act does not provide a ground of review that a decision is "substantially unjust". If the procedures are unjust then the ground provided by s 476(1)(a) may be relied upon. If what is alleged concerned an error of law involving an incorrect interpretation of the applicable law or an incorrect application to the facts as found by the decision-maker, then

s 476(1)(e) may be relied upon.

I expressed this point in my reasons for decision, with which Burchett J agreed, in Velmurugu v Minister for Immigration & Ethnic Affairs (unreported, 5 November 1997) in which I said:

"In the present case, the two distinct grounds in s.476, ground (a) which relates to procedures and ground (e) which relates to errors in the interpretation of the relevant law or in its application, became, in the contentions put on behalf of Mr & Mrs Velmurugu, confused with the phrase 'substantial justice and the merits of the case' in s.420(2)(b) of the Act. The terms of s.420(2)(b) do not themselves appear in s.476. A ground that the Tribunal 'did not act in accordance with the substantial justice and merits of the case' is not a permissible ground of review."

I also expressed this point in Eshetu when I said at 304-5:

"The procedural elements prescribed by s 420 may be challenged under s 476(1)(a). Moreover, for the purposes of s 476(1)(e), the 'applicable law' will include not only criteria specified in the Act and Migration Regulations but also the substantive elements of the s 420(2)(b) requirement that the Refugee Review Tribunal act in accordance with the substantial justice and merits of the case. If there were a misinterpretation of this provision or an incorrect application of the law, including this provision, to the facts as found, this Court may correct the error."

I should perhaps add in elaboration of this latter point that if, for example, a Refugee Review Tribunal misunderstood the meaning of s 420(2)(b) and considered that it could arrive at a decision otherwise than in accordance with the law, then its decision could be corrected under s 476(1)(e) which permits a challenge to be made on the ground of an incorrect interpretation of the applicable law or an incorrect application of the law to the facts found by the decision-maker.

Counsel for the applicant referred me to the recent decision in Sun Zhan Qui v Minister for Immigration & Ethnic Affairsi (23 December 1997, unreported) and submitted that Wilcox J, Burchett J and North J, in their reasons for judgment, used the expression "substantial justice" as if it had been held in Eshetu that the substance of a decision may be challenged on the ground that it did not accord with substantial justice. If that is what their Honours intended, there was misunderstanding of what was said by the majority in Eshetu. However, I read their Honours' reasons for judgment as dealing with the case under the grounds specified in s 476, as the Migration Act requires.

I need not discuss the matters set out in para 2(a) to (e) of the application which I have set out above. They do not establish a ground under s 476(1)(a) or under s 476(1)(e).

Counsel for the applicant also submitted that there was an indication of an error of law in that some findings of fact in the reasons for decision were expressed very briefly without an exposition of the particular events relied upon. For example, the Tribunal stated that it had noted that the Chinese authorities had ample grounds for suspecting that the applicant and his sister may have been involved in illegal activities, but the Tribunal did not explain what was the material from which it drew that inference. Counsel submitted that the sparsity of information was an indication that the Tribunal had adopted the wrong approach. I cannot agree with this. The reasons of the Tribunal were indeed surprisingly brief considering the background of litigation which had occurred. However, I cannot see in the reasons of the Tribunal any indication that there was an incorrect approach to the issues before the Tribunal.

Another matter relied upon by counsel concerned the report by Dr David Kelly, senior lecturer at the Australian Defence Force Academy. Dr Kelly said, inter alia, in answer to a question as to whether the applicant would suffer some serious harm because of his relationship with his brother if he were to return to China, that probably that would occur having regard to the brothers' lack of an ameliorating social profile and the linkage through household records that were likely to exist. Counsel submitted that it was impermissible for a tribunal such as the Refugee Review Tribunal to make findings of fact contrary to the evidence of an expert such as Dr Kelly. This submission is misconceived as the function of decision-making on the crucial issue was vested in the Tribunal and, on that issue, it was obliged to make up its own mind. However, in any event, Dr Kelly did not give that answer with respect to the issue of "particular social group". The question which he answered concerned only the two individuals, the applicant and his brother.

I should finally observe, that, in his submissions counsel for the applicant moved away from the reference to "the Guo family" as the "particular social group" to the description "the associates of Guo Wei Rong". However, this description merely encompasses those persons who were or might be suspected of being involved with Guo Wei Rong in criminal activity. Such persons are not a group within the purview of the Convention.

It follows that no ground of review has been established. The application must be dismissed with costs.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date: 24 February 1998

Counsel for the Applicant:	MJ Lawler
Solicitor for the Applicant:	Jackson Smith
Counsel for the Respondent:	SJ Gageler
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 February 1998
Date of Judgment:	24 February 1998