Zheng, Jia Cai & Anor v Minister for Immigration & Multicultural Affairs [1997] FCA 923

C A T C H W O R D S MIGRATION - refugee status - membership of a "particular social group" - one child policy - threat of forcible sterilisation and abortion - well founded fear of persecution - not related to membership of a particular social group - not therefore for a Convention reason - refugee status properly denied. Migration Act 1958 Applicant A and Another v. Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 Wu Guo Xiong and Jian Xiu Feng v. Minister for Immigration and Ethnic Affairs (unrep. Fed Court WG 41 of 1995, Tamberlin J) Morato v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 Ram v. Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 Ram v. Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 ZHENG JIA CAI AND GUAN QI MEI v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS WAG 34 OF 1996 FRENCH J. PERTH 13 JUNE 1997

IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) No. WAG 34 of 1996 B E T W E E N: ZHENG JIA CAI First Applicant GUAN QI MEI Second Applicant and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: 13 JUNE 1997 WHERE MADE: PERTH THE COURT ORDERS THAT: The application is dismissed. NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT ) OF AUSTRALIA ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) No. WAG 34 of 1996 B E T W E E N: ZHENG JIA CAI First Applicant GUAN QI MEI Second Applicant and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent CORAM: FRENCH J. DATE: 13 JUNE 1997 PLACE: PERTH REASONS FOR JUDGMENT Jia Cai Zheng and Qi Mei Guan are husband and wife and citizens of the Peoples Republic of China. Both were born in the coastal town of Beihai, Mr Zheng in 1954 and Ms Guan in 1956. Both had attended primary and secondary school. In 1971, Mr Zheng began working as a sailor and in 1972 Ms Guan became a machine operator working later as an office clerk. They married in 1977. In 1978 Ms Guan gave birth to their first child, a daughter. China's one child policy discourages couples from having more than one child. In 1980 Ms Guan became pregnant a second time and had an abortion. In 1981 she asked for and was given permission to have another child in that year. However, according to her account and that of her husband, the child was born in 1982. She and her husband were fined and deductions made from her salary. Ms Guan was fitted with an Intrauterine contraceptive device (IUD). However she became pregnant a third time six months later. She was required to use a curette and another IUD was fitted. Ms Guan's fourth pregnancy occurred in 1984. She had a miscarriage. She declined a tubal ligation and was fitted with an IUD for the third time. In 1989 she became pregnant for a fifth time after her IUD broke. Another curette was carried out and she began to use oral contraceptives. Ms Guan's sixth pregnancy occurred in 1990 but she aborted voluntarily because of her fear that the child might be born mentally disabled as she had conceived while using oral contraceptives. The seventh pregnancy occurred in 1992. Ms Guan was required to have an abortion during the sixth month. She bled heavily and was therefore not forcibly sterilised. She went back to work but suffered a financial penalty. In 1993 she became pregnant for the eighth time. She had ceased using contraceptives as Mr Zheng's family was anxious that there be a son. The group in which she worked urged her to have an abortion. She refused. Her employment was terminated. In her sixth month she was taken forcibly to hospital and made to submit to an operation which induced the delivery of the foetus, dead. She bled again and could not be sterilised. Ms Guan tried to escape from the hospital and her arm was broken in a struggle with an officer from the Family Planning Unit (FPU) of the Public Security Bureau (PSB). The arm was treated at another hospital. There was a sequel to this incident. Her husband, who was away at the time, assaulted an officer of the FPU, striking him a couple of times on the cheek. He was charged. To add to Mr Zheng's difficulties he lost maps and charts from his work place. These were considered secret. Mr Zheng was suspended from his work unit over this loss and continues to fear that he may be charged in relation to it. In mid October 1994, Mr Zheng and Ms Guan left Beihai and went to Dong Quan in Guangdong Province. There they stayed with friends. They did not go out as they were aware that the PSB was looking for them and frequently checking identity cards. They decided to leave China. On 14 February 1995 Mr Zheng and Ms Guan left the Peoples Republic of China in a boat called "The Pheasant". Mr Zheng acted as navigator. They travelled to Indonesia where they remained for 46 days, until being asked to leave. They arrived in Australia on 11 May 1995 and have been detained in custody pursuant to the provisions of the Migration Act 1958 since that time. In October 1995 Mr Zheng and Ms Guan telephoned their daughters in China and were told that their home had been searched and their photos displayed in the area where they lived and published in a Beihai newspaper and on cable television. The Government, it was said, had done this to inform people that they had left the Peoples Republic of China but would return and "go through judgment". They claim that Mr Zheng was described in the publicity as the organiser of the boat trip, although in fact he was merely the navigator. They had asked their daughters to send material to them in Australia relating to the activity of Chinese authorities adverse to them. However this letter has not been received. On 31 January 1996 they rang their daughters. They were told the material had been sent. It has still not been received and Mr Zheng and Ms Guan believe the PRC authorities have intercepted it. An accountant who had worked with Mr Zheng also called them while they were in detention and said they were in serious trouble. He said the Department had sent information which identified them to the authorities in Beihai in the course of verifying their story. On 5 December 1995 both Mr Zheng and Ms Guan lodged applications for protection visas with the Department for Immigration and Multicultural Affairs. On 16 January 1996 delegates of the Minister decided that Mr Zheng and Ms Guan were not refugees for the purposes of the Refugees Convention and refused the grant of protection visas to them. On 31 January 1996 Mr Zheng and Ms Guan applied to the Refugee Review Tribunal for review of the decisions of the delegate. On 20 February 1996 there was a hearing at which Mr Zheng and Ms Guan gave evidence. On 18 March 1996 the Tribunal affirmed the decisions of the delegates that Mr Zheng and Ms Guan were not entitled to protection visas. On 10 April 1996 the Director of Legal Aid WA lodged an application for review of the decisions of the Refugee Review Tribunal. The application relied upon only one ground namely that: "...the decisions involved an error of law namely that notwithstanding the Applicants had well-founded fears of persecution arising from China's one child policy, the First Applicant's fears of forcible sterilisation and the Second Applicant's fears of forcible sterilisation and forcible abortion are not for reasons of their membership of a particular social group." On 26 April 1996 consent orders were made that the hearing of the application be on affidavit. A timetable was set down for the filing of affidavits and a direction given that the Applicants apply to the Registrar on or before 26 July 1996 for an appointment to fix a hearing date. No application for an appointment was made within the time prescribed by the order. A letter was therefore sent from the Federal Court Registry to the Australian Government Solicitor and the Director of Legal Aid on 26 August 1996 requesting their attendance at a listings conference on 5 September 1996. A letter, from the Director of Legal Aid, to the Registrar dated 26 August 1996 advised that: "The issue in these proceedings is whether the Refugee Review Tribunal erred in law in deciding that, notwithstanding the Applicants well founded fears of persecution arising from China's one child policy, their fears of forcible sterilisation/abortion were not for reasons for their membership of a particular social group. This issue is presently under consideration by the High Court in the decision of A & B v. Minister for Immigration & Ethnic Affairs. I understand that the matter has been heard in the High Court but that to date no decision has yet been handed down." The Director of Legal Aid advised the Registrar that the Australian Government Solicitor had agreed that the hearing of the matter could be deferred pending the decision of the High Court. It was requested therefore that the listing conference be deferred pending that judgment. The listing conference was thereafter adjourned to 26 November 1996. On that date the Attorney-General's Department wrote to the Registrar advising that the parties requested that the listing conference be adjourned for a further three months pending a judgment from the High Court. On 26 November 1996 the listing conference was adjourned to 27 March 1997. On 15 April 1997 the parties were advised the matter had been listed for hearing in this Court on 6 June 1997. On 24 April 1997 the Legal Aid Commission of Western Australia advised the applicants by letter that it would be ceasing to act for them, the grant of legal aid initially having been limited to investigation of the merits and lodgment of an application in the Federal Court. An extension of legal aid for the purposes of representation at the hearing was not granted. A notice that the Director of Legal Aid was ceasing to act was filed in Court on 27 May 1997. The applicants appeared in Court unrepresented but assisted by an interpreter. The Minister had filed an outline of submissions on 5 June 1997. No such outline was filed on behalf of the applicants. The decision of the High Court in Applicant A and Another v. Minister for Immigration and Ethnic Affairs had been delivered on 24 February 1997, ((1997) 142 ALR 331). The decision, broadly speaking, was adverse to the proposition that persons who do not accept or comply with the "one child policy" in the Peoples Republic of China and who are at risk of the application of a general law of conduct required by the State which is enforced in a way that amounts to persecution, are not members of a "particular social group" for the purpose of the Refugees Convention. At the time of the hearing of this case the applicants had been in custody for over two years. It is unacceptable that that situation continue. Their case must be brought to a resolution. At the hearing I indicated that I would consider the papers with a view to considering whether the application could succeed notwithstanding the decision of the High Court. If there appeared to be any arguable basis for review, then I was prepared to allow further time for possible voluntary legal representation to be arranged for the applicants. If, however, there did not appear to be any such basis for the review then I would make a decision on the matter. Since the hearing I have had the benefit of submissions from Mr Richard Egan of the Independent Council for Refugee Advocacy setting out arguments in relation to the application of the High Court's decision. Mr Egan also requested that I consider whether the reasoning of the High Court in Dietrich v. The Queen (1992) 177 CLR 292 required that the present application be stayed until the applicants could be represented. I am grateful to Mr Egan for having put before me a carefully formulated submission on the application of the High Court's judgment. In the circumstances, however, I am of the view that the matter should be disposed of and that there is nothing to be gained by a further adjournment for the purposes of seeking legal representation for the applicants. Unhappily, it seems, there is and is likely to be, an increasing number of persons appearing before the Court unrepresented, whether in judicial review proceedings or otherwise. Whereas the Dietrich case dealt with persons charged with serious criminal offences, there is no general rule that a person invoking the jurisdiction of the Court is entitled to an adjournment of a hearing date on the possibility that alternative legal representation may be available where legal aid funding has been declined. Before turning to the decision of the Refugee Review Tribunal and the single ground of review which has been advanced on the application, it is desirable to set out the relevant statutory framework. Statutory Framework The grant of visas is authorised by s.29 of the Migration Act 1958, which provides, in part: "29(1) Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following: (a) travel to and enter Australia; (b) remain in Australia." The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s.31). Section 36 specifies a class of visa known as "protection visas" in the following terms: "36(1) There is a class of visas to be known as protection visas. (2) A criterion for a protection visa is that the applicant for the visa if a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." Regulations are authorised to provide that visas or visas of specified classes may only be granted in specified circumstances (s.40). Regulation 2.04 of the Migration Regulations provides that for the purposes of s.40, and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part. Schedule 2 sets out various sub-classes of visa. Subclass 866 is the Protection (Residence) visa. Clause 866.211 of subclass 866 specifies the following criteria for the grant of such a visa: "866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention; or (b) claims to be a member of the family unit of a person who: (i) has made specific claims under the Refugees Convention; and (ii) is an applicant for a Protection (Class AZ) visa." It is also a criterion that the Minister must be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugee Convention (866.221). The Refugees Convention is the Convention Relating to the Status of Refugees 1954 which is to be read with the Protocol Relating to the Status of Refugees 1973. Article 1 of the Convention, read with the Protocol, defines a refugee as a person who fulfils the following conditions: "...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Section 411 of the Act sets out a class of decisions designated as "RRT-Reviewable Decisions". The class of decisions so designated includes a decision to refuse to grant a protection visa (s.411(1)(c)). An application for review of an RRT-Reviewable Decision is made to the Refugee Review Tribunal (s.412(1)). Where a valid application is made for review of an RRT-Reviewable Decision, the Tribunal is required to review the decision (s.414(1)). The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Migration Act 1958 on the person who made the decision (s.415(1)). the Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new decision (s.415(2)). Part 8 of the Act provides for the review of decisions by the Federal Court and in s.475 sets out a class of decisions known as "judicially-reviewable decisions". This includes decisions of the Refugee Review Tribunal (s.475(1)(b)). An application for review by the Federal Court of a judicially-reviewable decision is limited to one or more of the following grounds: "(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; (b) that the person who purported to make the decision did not have jurisdiction to make the decision; (c) that the decision was not authorised by this Act or the regulations; (d) that the decision was an improper exercise of the power conferred by this Act or the regulations; (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; (f) that the decision was induced or affected by fraud or by actual bias; (g) that there was no evidence or other material to justify the making of the decision." The Decision of the Refugee Review Tribunal The Tribunal found that in the main the accounts given by the applicants were credible. It accepted that both applicants had departed illegally from the Peoples Republic of China and that they were unable to obtain passports at the time because the PSB was pursuing Mr Zheng in connection with his alleged assault on a FPU official. The Tribunal was also prepared to accept that the authorities in China were aware or could become aware that they had departed illegally. The Tribunal referred to the judgment of Tamberlin J in Wu Guo Xiong and Jian Xiu Feng v. Minister for Immigration and Ethnic Affairs (unrep. Fed Court, WG 41 of 1995). In that case Tamberlin J observed that a person leaving his country of origin might do so for a variety of possible reasons. The act of leaving is politically neutral conduct. So too, the fact of leaving in an illegal manner and thereby attracting liability for punishment is neutral from a political viewpoint. In a passage quoted by the Tribunal in its decision, his Honour said: "....if the history of the matter is such that a person has been expressing political opinion against the controlling regime or has aligned with particular political groups, or is liable to be persecuted for political views, then these factors could well colour the act of departure so as to make it in effect part of the manifestation of political opinion in opposition to the government. An illegal departure in such circumstances may confirm that a person has a subjective fear of persecution. To "vote with one's feet" may be an eloquent expression of deep-rooted fear. It all depends on the particular context and circumstances. However a decision to leave because of fear of the government or officials, unless that fear is founded on a Convention ground, does not so colour the act of departure so as to make the person so departing a refugee." The Tribunal found that prior to leaving the Peoples Republic of China neither Mr Zheng nor Ms Guan had any history of criticism of the Chinese government or membership of any political organisation. On that basis it did not seem to the Tribunal that there was anything in their history which could colour their illegal departure so as to make it an expression of political opinion. The Tribunal took the view that the claim by Mr Zheng that he had been labelled an organiser of the illegal departure by authorities in Beihai had serious credibility problems. The allegation was first raised after the Department had put to Mr Zheng material indicating that ordinary illegal departees were not punished in the Peoples Republic of China but that authorities were interested only in the organisers. Mr Zheng had been unable to give any reason why he would be considered the organiser when in fact he was not, other than to say he was the navigator and that perhaps for that reason the authorities would have considered him the organiser as well. The Tribunal's finding of fact was that it seemed highly improbable that Chinese authorities would be unable to distinguish between navigators and the trip organisers. The Tribunal referred in passing to a suggestion that the Department of Immigration and Ethnic Affairs had put the applicant and his wife in jeopardy by sending identifying particulars of them to Chinese authorities in Beihai. While this may be a matter of concern if it could be established, the Tribunal's role was limited to a consideration of whether any such action on the part of the Department might have given rise to a well-founded fear of persecution for a Convention reason. However, the Tribunal said in this respect: "In the present case, there is some reason to believe that the Department may indeed have in some way identified the applicant and his wife to the PRC authorities. This becomes apparent when one reads the last paragraph quoted above from cable BJ501313. Nevertheless, the remainder of that paragraph shows that the result is only that the PRC authorities are probably aware that the applicant has illegally departed from the PRC and has applied for refugee status in Australia - yet this is something which they would in any case surmise, and not a matter about which they would be concerned." The Tribunal rejected a contention that the applicants illegal departure from China carried with it the expression of an implied political opinion. Nor would the repeated violation by Ms Guan of the one child policy or the assault by Mr Zheng upon an official of the FPU be seen as reflections of a political opinion. The Tribunal found that the illegal departure (including the application for refugee status) were not Convention related matters and even if they were, the chance that they would attract persecution in the Peoples Republic of China was not real but remote. Turning to the question of the one child policy, the Tribunal found there to be clear and abundant evidence that forced abortions and sterilisations are commonly practised in the Peoples Republic of China and that this has been so for many years. The decision went on: "For the record, therefore, the Tribunal finds that forced abortions and sterilizations are common in the PRC at the present time. Although abortion seems to be more favoured than sterilization as a birth control technique, the Tribunal is still prepared to say that there is a real chance that the applicant could be forcibly sterilized upon return to the PRC. I consider also that it is clear that forcible abortion and sterilization, amounting to gross interference with a person's reproductive capacity and bodily integrity, are both forms of persecution. The applicant thus faces a very real chance of persecution upon return to the PRC." The Tribunal nevertheless went on to observe that it is not enough under the Convention that a person should be facing a real chance of persecution upon return to his or her country of origin. The Tribunal said: "That persecution must be for reasons of one or more of the five Convention grounds: race, religion, nationality, membership of a particular social group or political opinion." On this basis the applicants' claim would fail in the view of the Tribunal because of the effect of the decision of the Full Federal Court in Minister for Immigration and Ethnic Affairs v. Respondent A & Others (1995) 130 ALR 48. On the basis of that decision the Tribunal found that although the applicants in each case had a well-founded fear of persecution, it was not for reason of membership of a particular social group. The Question of Refugee Status On the face of the application in this case, there is only one question before the Court. That is whether the decisions of the Refugee Review Tribunal involved an error of law namely that, notwithstanding the applicants had well-founded fears of persecution arising from China's one child policy, their fears of forcible sterilisation and forcible abortion were not for reasons of membership of a particular social group. The term "particular social group" in the Convention was considered by the Full Court of the Federal Court in Morato v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401. The Court said that a minimum requirement for the identification of a particular social group is the existence of a "cognisable group in a society, and cognisable to the extent that there may well be a well-founded fear of persecution by reason of membership of such a group." (at FCR 406 per Black CJ, French J agreeing). At 416, Lockhart J said: "In my opinion for a person to be a member of a "particular social group" within the meaning of the Convention and Protocol what is required is that he or she belongs to or is identified with a recognisable or cognisable group within a society that shares some interest or experience in common. I do not think it wise, necessary or desirable to further define the expression. It must be borne in mind, however, that the question is whether a person's well-founded fear of persecution is for reasons of membership of a particular social group. The membership of the group is the touch stone of the test of refugee status." And as the Full Court said in Ram v. Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317, the membership of the group must provide the reason for the persecution. A person must have a well-founded fear of persecution because he belongs to the relevant group. In Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, Dawson J observed at 342 that a persecutory law or practice applicable to all members of society cannot create a particular social group consisting of those who bring themselves within its terms. And in the application of that proposition to persons not complying with the one child policy in China, his Honour said, at p.342: "In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large. It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it. Rather, the persecution is carried out in the enforcement of a policy which applies generally. The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms. The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy. For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention." McHugh J accepted the possibility that persons who, having only one child, who did not accept limitations placed on them and communicated that view to Chinese society could be a particular social group in some situations. Thus, if a large number of people with one child who wished to have another had publicly demonstrated against their government's policy they might have gained sufficient notoriety in China to be perceived as a particular social group. In the simple case of couples who believe that they should be able to have more than one child, notwithstanding the government's policy, his Honour held there to be nothing to link the couples so as to create a perception that they constitute a particular social group: "There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future; and others in the distant future. There is no social attribute or characteristic linking the couples, nothing external that would allow them to be perceived as a particular social group for Convention purposes. To classify such couples as "a particular social group" is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood." (at 363-364) Gummow J, at 375, observed that numerous individuals with similar characteristics or aspirations do not comprise a particular social group of which they are members. He agreed with the statement in Ram (1995) 57 FCR 565 at 569; 130 ALR 314 at 318: "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." (at 376). His Honour assumed for the purposes of the appeal that there existed a policy implemented in a fashion which engulfed a number of persons for whom the People Republic of China is their country of nationality: "On that footing, a disparate collection of parents, and those desiring to be parents, who do not accept and have difficulties in complying with a "one child policy" are at risk of the application of a general law of conduct required by the State and, on the assumptions I have made, brutally enforced. But they are not members of a particular social group with a fear of persecution by reason of membership thereof." (at 376) Any superadded fears in the present case flow from the actions of the applicants and the application of general law or practice in the Peoples Republic of China. It does not flow from their membership of a group defined by some common unifying element. That being the case, I am satisfied that the Tribunal did not err in its approach to the decisions it had to make. Unhappily the Refugees Convention does not extend to the general protection of persons who may be fleeing from oppressive laws of general application. Having regard to the other matters placed before the Tribunal and upon a review of its reasons, I am not satisfied that there is any other basis upon which arguable grounds for the review of its decision might rest. In the circumstances I propose to dismiss the application. I certify that this and the preceding fifteen (15) pages a true copy of the Reasons for Judgment of his Honour Justice French: Associate: Date: The Applicants appeared in person. Ms Winnie Lai as Interpreter. Counsel for the Respondent: Mr P. Macliver Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 6 June 1997 Date of Judgment: 13 June 1997