FEDERAL COURT OF AUSTRALIA

Huang v Minister for Immigration & Multicultural Affairs
[2000] FCA 820

IMMIGRATION – Refugees – whether Tribunal erred in failing to find that applicants were members of a particular social group – whether that failure affected finding that applicants’ fear of persecution was not “well-founded”

Migration Act 1958 (Cth), s.36(2)

Migration Legislation Amendment Act 1994 (Cth)

Migration Reform Act 1992 (Cth), s.39

Migration Regulations 1994 (Cth), reg 2.08(1)

Applicant A v Minister for Immigration & Multicultural Affairs (1997) 190 CLR 225, applied.

Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 170 ALR 553, considered.

Minister for Immigration & Multicultural Affairs v Guo (1997) 191 CLR 559, applied.

WEI WEN HUANG & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1422 of 1999

SACKVILLE J

20 JUNE 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicants pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The Proceedings

1                     The applicants are citizens of the People’s Republic of China (“PRC”).  They are husband and wife.  They arrived in Australia on 15 November 1993, and appear to have remained in this country ever since.  They have twin daughters, born in the PRC in 1990.  The twins have remained in that country.  A third child, a son named Michael, was born to the applicants in Australia on 13 October 1995.  Michael is now four and a half years old and has lived in Australia all his life. 

2                     The applicants seek review of a decision of the Refugee Review Tribunal (“RRT”) made on 17 November 1999.  The RRT affirmed a decision of the Minister’s delegate made on 25 October 1994.  The delegate decided that neither applicant was a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees (the “Convention”) and, accordingly, neither was entitled to the grant of a protection visa.  The RRT did not consider whether Michael, in his own right, was entitled to a protection visa.  No explanation was given by the RRT for what appears to have been an extraordinary delay, exceeding five years, between the date of the delegate’s decision and that given by the RRT.

3                     The male applicant (to whom I refer as “the husband”) lodged his application for refugee status on 14 March 1994.  The application included the female applicant (to whom I refer as “the wife”).  The application was lodged prior to the commencement of the Migration Legislation Amendment Act 1994 (Cth) which amended the Migration Act 1958 (Cth) (“Migration Act”) and came into force on 1 September 1994.  It is common ground that the effect of s 39 of the Migration Reform Act 1992 (Cth) was that, as from 1 September 1994, the applicants were to be treated as having made claims for protection visas under the Migration Act as it stood on that date. 

4                     Section 36(2) of the Migration Act provided that a criterion for a protection visa was that the applicant was a non-citizen in Australia to whom Australia had protection obligations under the Convention. Article 1A(2) of the Conventiondefines a refugee as any person who

“owing to a 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.”

5                     The application filed in this Court named only the husband as an applicant.  The husband appears not to have been legally represented at the time the application was lodged.  Not surprisingly, the application gave no clear indication of the grounds of review intended to be advanced.  Nor did the husband comply with a direction requiring written submissions to be filed in advance of the hearing.

6                     At the hearing, the applicants were represented by Mr Benson of counsel, who was briefed after the date for written submissions had passed.  Mr Benson did not apply to amend the application, except to add the wife as the second applicant.  (That amendment was not opposed by Mr Jordan, who appeared for the Minister, and was duly made.)  Mr Benson, however, handed up an outline of submissions at the commencement of the hearing.  The grounds of review identified in the submissions were these:

(i)         The RRT erred in law in failing to find that the applicants were members of a “particular social group” for the purposes of the Convention, namely that section of the population of the PRC that had actively participated in the pro-democracy movement of the late 1980s.  It was said that an absence of such a finding led the RRT to the erroneous conclusion that the applicants did not have a well-founded fear of persecution for a Conventionreason.

(ii)                The RRT had erroneously stated the test for determining whether an applicant has a “well-founded fear of being persecuted” for a Conventionreason.

(iii)       The RRT had erred by failing to consider or make any findings in relation to what was said to be the deemed application for a protection visa by the applicant’s son, Michael.  It was submitted that the effect of Migration Regulations 1994 (Cth), reg 2.08(1), was that Michael was deemed to have applied for a protection visa at the time he was born.  It was therefore an error of law for the RRT simply to ignore the application deemed to have been made by Michael and the matter should be remitted to enable Michael’s application to be considered on its merits.

Withdrawal of the Third Argument

7                     Before Mr Benson commenced his argument Mr Jordan, without objection, read an affidavit which annexed copies of applications for protection visas that had been lodged on 29 October 1999 (that is, shortly before the RRT’s decision in the present case was published).  The applications included one lodged on behalf of Michael.  This application claims that Michael has a well-founded fear of persecution in the PRC in his own right, for several Conventionreasons.  In particular, it is said that Michael, as the third child in the family and as a child born without a birth permit, would suffer harm as a “member of a social group” if he were to be returned to the PRC. 

8                     Michael’s separate application for a protection visa was refused by a delegate of the Minister on 2 March 2000.  On 6 April 2000, an application for review of the delegate’s decision was lodged with the RRT on Michael’s behalf.  That application has not yet been determined.  I was informed from the bar table that the Minister took the view that there was no impediment to the RRT considering Michael’s application on its merits.

9                     On 13 April 2000, shortly after the delegate’s decision, the High Court delivered judgment in Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553.  The Court held that so-called “black children” in the PRC (that is, broadly speaking, children born outside the parameters of the one-child policy and outside an authorised marriage) could constitute a “particular social group” for the purposes of the Convention.  To the extent that those acting on Michael’s behalf seek to take advantage of the decision in Chen, the RRT doubtless will consider any evidence and submissions they wish to put forward in support of any such contention.  Mr Jordan indicated that the Minister had no objection to that course being followed.

10                  In these circumstances, there was some discussion with and between counsel as to the practical utility of the applicants proceeding with the third argument outlined in Mr Benson’s submissions.  In the event, the applicants elected not to pursue the third argument.  Accordingly, it is only the first and second contentions put forward on behalf of the applicants that need be considered in these proceedings.

The Applicants’ Claims

11                  The applicants’ claims to the RRT in the present case can be summarised as follows:

·        The applicants feared persecution because they had contravened the PRC’s “one-child policy”.  The very fact that the wife had given birth to twins in 1990 was taken by the authorities in the PRC as contravening the policy.  The applicants’ fears were compounded by the fact that the wife had been forced to have an abortion in 1988 because she had become pregnant without having the necessary birth permit.  Moreover, the wife had since given birth to a third child in Australia.

·        The husband, although not a leader in the pro-democracy movement in the 1980s, had devoted himself “wholeheartedly” to the movement.  He feared that he would be persecuted by the authorities in the PRC by reason of his political activities and opinions.

·        The husband also feared that he would be persecuted by reason of his family background.  According to the husband, family members or descendants of landlords, capitalists and other “bad elements” were especially susceptible to discrimination.  Since the husband’s family was considered within the PRC to have belonged to the “landlord class” he was more likely to be regarded as a counter-revolutionary or dissident and punished accordingly.

·        The fact that the husband had applied for refugee status would be regarded as a betrayal of his country and render him liable to persecution on his return to the PRC.

The Tribunal’s Reasons

12                  The RRT accepted that the applicants feared persecution if they were to return to the PRC.  The RRT was also satisfied that the applicants and their families had been regarded as members of the “landlord class” and that they had suffered discrimination both before and during the Cultural Revolution.  It was for this reason that the husband had suffered discrimination while at school and had been denied access to university education.

13                  The RRT was not, however, satisfied that any harm suffered by the applicants was such as to amount to persecution.  Moreover, having regard to country information provided by the Department of Foreign Affairs and Trade and other sources, which suggested that a “counter-revolutionary” family background had not led to serious discrimination in the PRC since the 1970s, the RRT was not satisfied that there was any risk that the applicants would suffer persecution in the foreseeable future in consequence of their family backgrounds.

14                  The RRT found that the applicants had supported the pro-democracy movement in the late 1980s.  The RRT noted that, despite their involvement in the movement, the applicants had been granted permission to have a child in the “immediate aftermath” of that movement.  Furthermore, they had been issued with passports and allowed to leave the PRC, notwithstanding that the authorities had systems in place designed to identify and detain those of interest by reason of involvement in the movement.  The RRT recorded country information which suggested that the PRC was not particularly concerned with persons who had not performed a leadership role in the pro-democracy movement and that, in any event, the authorities’ interest in pro-democracy activists had diminished with the passage of time.  For these reasons, the RRT was

“not satisfied that the Applicants have been subject to persecution in the past, nor... that they are at any risk of persecution in the foreseeable future, as a result of their pro-democracy activities.”

15                  The RRT rejected the applicants’ claim to be at risk of persecution because they had sought protection visas in Australia.  Having regard to the country information, the RRT was not satisfied that the applicants were at any risk of persecution because they had claimed refugee status in Australia.

16                  Finally, the RRT held that the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, had made it clear that non-discriminatory implementation of China’s one-child policy did not, of itself, constitute persecution for a Convention reason.  The RRT rejected the applicants’ claim that they had been and would be treated more harshly than others who had breached the policy, by reason of their political and family profile.  The RRT was unable to find evidence to support their contention that the one-child policy was differentially administered against those considered to be of the “landlord class”.  Any such claim was inconsistent with the applicants’ experience.  Accordingly, the RRT was not satisfied that the one-child policy had been applied to the applicants in a discriminatory way, nor that there was a real chance that it would be so applied in the future. 

17                  In the result, the RRT was not satisfied that there was a real chance that the applicants would suffer persecution should they return to the PRC.  Any fear of persecution they held was not well-founded.  It followed that they were not persons to whom Australia had protection obligations under the Convention and therefore did not satisfy the criterion for the grant of a protection visa specified in s 36(2) of the Migration Act.

Reasoning

18                  In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, the joint judgment of six members of the High Court pointed out (at 570) that the definition of “refugee” in Art 1A(2) of the Convention contains four key elements:

“(1)     the applicant must be outside his or her country of nationality;

  (2)     the applicant must fear ‘persecution’;

  (3)     the applicant must fear such persecution for ‘reasons of race, religion, nationality, membership of a particular social group or political opinion’; and

  (4)     the applicant must have a ‘well-founded’ fear of persecution for one of the Convention reasons.”

19                  The applicants claimed that they were at risk of persecution for Convention reasons.  In particular, they claimed that they were at risk of persecution because they had “actively supported the pro-democracy movement in the PRC in the late 1980s.”  The RRT treated their claim, insofar as it was based on support for the pro-democracy movement, as resting on “political opinions which may be imputed to them because of their activities”.  The applicants made no claim to the RRT that they were members of a particular social group of the kind identified by Mr Benson in his submissions. 

20                  The RRT found that the applicants feared that they would suffer persecution if they were to return to the PRC.  Although the RRT did not expressly say so, it is implicit that the RRT accepted that the applicants feared persecution for reasons of the political opinion that was or might have been attributed to them in consequence of their involvement in the pro-democracy movement.  It follows that the second and third elements of the definition of “refugee”, identified in Guo, were satisfied.  There was, of course, no dispute that the applicants satisfied the first element, namely, that they were outside their country of nationality.

21                  The applicants failed in the RRT because the RRT was not satisfied that they had been subject to persecution in the past, nor that

“they [were] at any risk of persecution in the foreseeable future, as a result of their pro-democracy activities.” 

Indeed, the RRT specifically stated that it was not satisfied that there was a real chance that the applicants would suffer persecution if they were to return to the PRC.  In other words, although the RRT accepted that the applicants feared persecution, it concluded that any such fear was simply not well-founded.  The applicants thus failed to satisfy the fourth element of the definition of “refugee” identified in Guo.

22                  The applicants submitted in this Court that they might have been able to satisfy the fourth element of the definition, of the RRT had found that they were members of a particular social group, namely that section of the population of the PRC who had actively participated in the pro-democracy movement.  Mr Benson did not dispute that the RRT was never asked to make such a finding.  He argued, nonetheless, that it was an error of law for the RRT not to have addressed the question.

23                  There are obstacles in the path of this submission.  Not least is the apparent absence of material before the RRT that might have justified a finding that active participants in the pro-democracy movement constitute a “particular social group” for the purposes of the Convention.  Mr Benson did not point to evidence that might have justified such a finding.  Nor did he explain the basis upon which active participants in the pro-democracy movement could be regarded as satisfying the criteria for a “particular social group”: cf Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 264-266, per McHugh J.

24                  In any event, a more fundamental difficulty facing the applicants is the RRT’s finding that any fear of persecution held by the applicants was not well-founded.  It is difficult to see how the applicants’ case would have been advanced had they characterised their fear of persecution as arising from membership of a particular social group, rather than from imputed political opinion.  Assuming that it was open to the RRT to find that the applicants belonged to a particular social group, they nonetheless would have been faced with the RRT’s finding that their fear of persecution was not well-founded. 

25                  It was not suggested that the basis for the applicants’ feared persecution would have been different had they relied on the fact that they were members of a particular social group comprising active participants in the pro-democracy movement (as distinct from relying on the fact that they had actively participated in the pro-democracy movement).  Mr Benson did not contend that the applicants would have relied on any additional or alternative facts to support their claim that they had a well-founded fear of persecution if they were to return to the PRC.  Nor did he explain how the applicants’ case on persecution would have been advanced by the contention that, by reason of their involvement in the pro-democracy movement, they had become members of a “particular social group”. 

26                  If the applicants had relied on the same evidence to establish that they had a well-founded fear of persecution for reasons of membership of a particular social group, the RRT would have reached the same conclusion.  Just as the finding that any fear of persecution held by the applicants was not well-founded defeated their claim to have a well-founded fear of persecution for reasons of political opinion, so it would have defeated a claim that they had a well-founded fear of persecution for reasons of membership in a particular social group.

27                  It is true that in Chen, the joint judgment of Gleeson CJ and Gaudron, Gummow and Hayne JJ accepted that the question of whether particular conduct is undertaken for reasons specified in the Convention “cannot be entirely isolated from the question whether that conduct amounts to persecution” (at 560).  Their Honours also said that

“The question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct”.

28                  Their Honours pointed out that differential treatment of particular persons or groups might be more or less “appropriate and adapted to achieving some legitimate government object”, depending upon the reasons for the differential treatment.  The judgment illustrated the point this way:

“[i]f persons of a particular race, religion or nationality are treated differently from other members of society, that, of itself, may justify the conclusion that they are treated differently by reason of their race, religion or nationality.  That is because, ordinarily, race, religion or nationality do not provide a reason for treating people differently.” (at 560).

29                  The analysis in Chen, in my opinion, does not assist the applicants in the present case.  As I have explained, there is nothing to suggest that the critical finding by the RRT, that the applicants did not have a well-founded fear of persecution, would have been different had the applicants contended that they feared persecution as members of a particular social group comprising active participants in the pro-democracy movement.  Even if the RRT could have made a finding that the applicants were members of a social group so defined, that fact would not justify concluding that the RRT would or might have found that the applicants’ fear of persecution was well-founded.  Nor would it demonstrate that the RRT erred in law in making the finding that was fatal to the applicants’ case.

30                  There is no substance in the second argument advanced on behalf of the applicant.  The language criticised by Mr Benson is in fact drawn from the joint judgment in Guo and accurately states the law.

31                  I should add that, in the course of oral argument, Mr Benson appeared to put forward a further submission.  This was to the effect that the RRT had failed to accord sufficient weight to the finding that the applicants had been members of the so-called “landlord class”.  This submission, however, constituted an attack on the merits of the RRT’s fact-finding and does not constitute a ground of review available under the Migration Act.

Conclusion

32                  The application must be dismissed.  The applicants must pay the Minister’s costs.

Associate:

Dated:              20 June 2000

Counsel for the Applicant:             Mr S A Benson

Counsel for the Respondent:         Mr D Jordan