FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 MIGRATION – appeal from decision of primary Judge allowing respondent's appeal from decision of the Refugee Review Tribunal refusing protection visa – membership of a social group – homosexuals – respondent's arrest for homosexual activity in public place in 1993 – respondent departing China in 1996 – evidence of respondent being able to take part in active gay community – evidence of homosexuality, if discreet, being tolerated – whether RRT erred in failing to find objective fear of persecution without "negating or qualifying" earlier findings 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, Article 1A(2) Migration Act 1958 (Cth) ss 430, 476(1)(e) Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 distinguished Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied Morato v Minister for Immigration (1929) 39 FCR 402 cited Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v GUO PING GUI N 52 OF 1999 HEEREY, CARR AND TAMBERLIN JJ SYDNEY 29 OCTOBER 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 52 OF 1999 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant AND: GUO PING GUI Respondent JUDGE: HEEREY, CARR & TAMBERLIN J DATE OF ORDER: 29 OCTOBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal is allowed. 2. The respondent is to pay the appellant's costs of the appeal. 3. The respondent is to also pay the appellant's costs of the hearing before the primary Judge. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 52 OF 1999 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Appellant AND: GUO PING GUI Respondent JUDGE: HEEREY, CARR & TAMBERLIN J DATE: 29 OCTOBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Minister appeals from a judgment of a judge of this Court which set aside a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate of the Minister not to grant the respondent Mr Gui a protection visa. The RRT, like the delegate, was not satisfied that Mr Gui was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). The Convention by Article 1A(2) defines "refugee" as any 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 …" The RRT was not satisfied that Mr Gui was a refugee. 2 Mr Gui is a citizen of the Peoples' Republic of China who arrived in Australia on 16 July 1996. He lodged an application in November for a protection visa. On 26 March 1997 a delegate of the Minister refused to grant a protection visa, and on 8 April 1997 Mr Gui sought a review of that decision. The RRT on 29 April 1998 affirmed the decision of the delegate. 3 The salient facts can be shortly stated. Mr Gui claimed before the RRT that he feared persecution on account of his pro-democracy activities. This claim was rejected by the RRT. His Honour found no legal error in the RRT's decision in this respect and the issue was not raised again before this Court. Mr Gui also claimed that he is a member of a social group for the purposes of the Convention definition, namely, homosexuals in Shanghai. 4 Mr Gui met his first lover Wang Cheng in the spring of 1986. Mr Gui and his partner were unable to meet on an intimate basis in private premises and as a consequence he and his partner would meet in parks. He organised an "artistic saloon" and homosexual parties. He claimed that he was summoned for interrogations and investigations on several occasions. 5 On 18 December 1993 the applicant and his lover were caught by a police patrol team in a public garden. They were being very intimate but were not engaged in sexual intercourse. They were chased and severely beaten and kicked by the police. Mr Gui's partner kept arguing with the police and was beaten severely at the police station. They were both locked up for a night and were asked to reveal the names of other homosexuals. Mr Gui claimed that he was tortured. He was then detained for three months and released on 19 March 1994. He rang his partner but was told that he had been killed in a car accident. As a result of his arrest and detention Mr Gui was dismissed from employment and given an adverse record on his personal file. However, he was later able to work in a restaurant, sell books and carry out menial jobs. 6 Mr Gui claimed in his application that in 1990 he and his friends established a homosexual bar called "Eddy's Bar" which was used to facilitate the meeting of homosexuals. He later said that he established the bar in 1994 and that it was able to operate for six months before it was closed by the authorities. No one was arrested as there was no evidence found of illegal activity. He and his friends then set up another bar. This bar had a series of closures after police inspections. At the end of September 1995 the bar was re-opened and it was not closed again. It apparently operated quietly. Mr Gui told the RRT that the gay community to which he belonged would hold private parties every week and that someone would keep look-out for the authorities. They were raided on two occasions over a period of nine months. On the first raid there was no evidence found as to illegal activity and on the second occasion there were no arrests but those in attendance were spoken to by the police and they denied any illegal activities. 7 Mr Gui claimed that he was politically active and that he and other organisers of the homosexual groups were also fighting for gay rights. 8 One of Mr Gui's friends was arrested allegedly because he was attempting to find a new partner in a public park. On 16 May 1996 Mr Gui claimed that he received a subpoena ("the summons") which required him to attend and be interrogated in relation to a video called "Happy Wedding" which the authorities wished to locate. On that evening he left home, went into hiding, and shortly thereafter left China. He used a business visa for which he paid a bribe. Findings and reasons of the RRT 9 The RRT found that the situation in Shanghai is that homosexuals can be and are the subject of police harassment, and that there appeared to be intermittent crack-downs on "criminal elements" which also extends to increased harassment of the gay community. Members of homosexual groups are accused on occasions of conduct described as "hooliganism". The authorities patrol public parks where homosexual couples meet because of the difficulties of meeting in other locations. 10 The RRT accepted that Mr Gui was a homosexual and that he has faced harassment for that reason in China. The RRT also accepted that he was detained and beaten by the Chinese authorities in December 1993 when caught with his partner in the park. The RRT accepted that at that time they were being very intimate but were not actually engaged in sexual intercourse. The RRT also accepted that as a result of this arrest Mr Gui lost a well paid position with an international hotel in Shanghai and that his personal file was marked. The RRT did not accept Mr Gui's account of police harassment said to have occurred at the club known as Eddy's Bar. It considered that Mr Gui's own account of his life in Shanghai and of the social parties that the gay community were able to enjoy did not suggest that the police harassment is severe at the current time. It also considered that this impression was confirmed by Country Information Reports. There was no reason to believe that the current approach would change in the foreseeable future. The RRT further found that homosexuality is not a crime in Shanghai and that there is a sizeable gay community in that city. 11 The Department of Foreign Affairs and Trade reports referred to by the RRT stated that homosexuality per se is not a crime although homosexuals could still be arrested on a "catch-all" accusation of hooliganism. Whilst official attitudes may tolerate homosexuality, homosexuals "would need to remain discreet". There is a sizeable gay community in Shanghai and there are known meeting places for homosexuals. Social prejudice against homosexuality still persist and homosexuals could still be subjected to harassment. 12 An Internet source said that Shanghai had a "visible" gay community and listed some gay meeting places. An article by S. Faison in the Dallas Morning News of 14 September 1997 was headed "Chinese gays, lesbians enjoy greater freedom, may gather more openly, but some say limits remain". It quoted a male homosexual who stated that police "will leave us alone" as long as "we're not disturbing anyone else". 13 The RRT concluded that Mr Gui had given an exaggerated account of his lack of employment and found that it was clear that he had been able to obtain work. The RRT considered that Mr Gui had also exaggerated the interest of the authorities in him. It concluded that, on the evidence, Mr Gui was able to express his sexuality in Shanghai and over several years he had been able to share a deep and intimate relationship with his partner. The finding of the RRT was that the gay community was not being persecuted in Shanghai. It relied on evidence given by Mr Gui that he was often able to organise homosexual parties and engage in social activities with homosexuals such as opera singing, fashion shows, watching gay videos and holding parties on a weekly basis. 14 The RRT determined, on Mr Gui's evidence, that since 1993, he had been able to take part in an active gay community, that he was caught in a public place engaging in conduct which was unacceptable according to the cultural norms prevailing in China, and that it was this behaviour which brought him to the notice of the authorities. It referred to the fact that he had not been arrested or detained on any other occasion. Although it had doubts in accepting the authenticity or validity of the 1996 summons, the RRT proceeded on the basis that the summons was valid. However, it considered that, on the evidence, the summons related to an illegal video which Mr Gui's friend stated has since been confiscated. The RRT considered that if Mr Gui is wanted in relation to this matter it is because he is thought to be associated in some way with the possession of an illegal video. This, in the RRT's view, amounted to a requirement that he attend to be questioned in relation to a criminal offence under the law of China and therefore is not persecution for a Convention reason. Judgment at first instance 15 The primary Judge noted the Minister's concessions that homosexuals in Shanghai constituted a "particular social group" and that it was implicit in the findings of the RRT that Mr Gui had a subjective fear of persecution by reason of his membership of that group. His Honour considered that while it is not necessary to establish past persecution, where evidence of past maltreatment in fact exists, it may be an indicator of the fate which may await the applicant should he be returned to China. His Honour then referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. His Honour drew particular attention to a number of passages in that case (In all the following passages the emphasis has been added by the present Court). His Honour quoted from the judgment of Mason CJ, who said at 391: "The Full Court placed insufficient weight upon the circumstances as they existed at the time of departure which grounded Mr. Chan's fear of persecution. In the absence of compelling evidence to the contrary the Full Court should not have inferred that the grounds for such fear dissipated. While the question remains one for determination at the time of the application for refugee status, in the absence of facts indicating a material change in the state of affairs in the country of nationality, an applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left the country of his nationality." (Emphasis added) 16 The following passage from Dawson J at 399 was quoted by his Honour: "Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status. That must be so in the present case where the delegate in his reasons did not seek to point to any significant change in attitude towards the appellant on the part of the authorities in the People's Republic of China." (Emphasis added) 17 His Honour also quoted Toohey J where he said at p 406: "If circumstances have changed since the applicant left the country of his nationality, that is a relevant consideration. In an appropriate case the change (such as a new government) may remove any basis for a well-founded fear of persecution." (Emphasis added) 18 And finally, his Honour quoted Gaudron J from p 415: "The definition of 'refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression 'once bitten, twice shy', that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be 'well-founded fear' at the time of determination it would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences. If an applicant relies on his past experience it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well- founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality. To require more of an applicant for refugee status would, I think, be at odds with the humanitarian purpose of the Convention and at odds with generally accepted views as to its application to persons who have suffered persecution …" (Emphasis added) 19 The primary Judge then noted that one difference between the present case and that in Chan, was that Mr Gui was the victim of persecutory conduct in 1993 and did not leave China until more than two years later, in 1996, and that therefore there was not the same contemporaneity between persecution and flight as there was in the Chan case This is an important difference because evidence of the circumstances of Mr Gui between the 1993 detention and his departure have a direct bearing on his claims. 20 The primary judge then referred to findings of the RRT which he described as important, namely: "– The applicant is a homosexual who at least in the events of 1993, has faced harassment on that basis. – The (present) situation in Shanghai is that homosexuals can be and are the subject of police harassment. – There is a large and to an extent visible gay community in Shanghai … – Police harassment of the gay community is not severe at the current time … – A more tolerant attitude to homosexuals is emerging, but despite this improvement, the rights of gays are repeatedly encroached on, especially during social crackdowns …" (His Honour's emphasis) 21 His Honour then went on to say that: "In my opinion, those findings would sustain a conclusion that the applicant's fear of persecution by reason of his homosexuality is well founded. RRT accepts the subjective existence of the fear, and that it is grounded in past persecutory conduct engaged in for a convention reason. The findings to which I have referred do not establish that the objective foundation for a fear of persecution has been removed. All that they establish is that the likelihood of persecutory conduct actually occurring at the present time is less than was formerly the case (provided there is no social crackdown occurring, and subject, perhaps, to homosexual behaviour being "discrete" [sic]). There is still "a course of systemic conduct" (per McHugh J in Chan at p 30) in the sense of selective as opposed to random or ad hoc harassment, directed at homosexuals in Shanghai because of their homosexuality. However, RRT's conclusion was that the applicant "does not face a real chance of persecution by reason of his homosexuality" on return to China because: · The applicant's own evidence is that since 1993 he has been able to take part in an active gay community. · In 1993 the applicant was caught in a public place with his partner kissing and cuddling which is unacceptable according to the cultural norms prevailing in China. · He has not been arrested or detained on any other occasion. The first and third of those propositions do not negate or qualify: · The finding of a subjective fear on the part of the applicant of persecution by reason of his homosexuality. · The finding that such fear is grounded in past persecutory conduct. · The finding that homosexuals in Shanghai can be and are the subject of police harassment albeit a more tolerant attitude to homosexuality is emerging. The import of the second of those propositions is not entirely clear. On one view it is a finding that the treatment meted out to the applicant in 1993 was not by reason of his homosexuality, but by reason of his behaviour in a public place, which behaviour would be unacceptable, irrespective of the sexuality of those who participated in it. On another view, it is a finding that a partial explanation for the treatment meted out to the applicant in 1993 lies in the fact that the applicant was not sufficiently discrete in concealing his homosexuality from the authorities. The first view is inconsistent with the general thrust of the RRT's reasons, and inconsistent with the specific finding that the 1993 harassment was on the basis of the applicant's homosexuality. The second view, in my opinion, leads nowhere. It does not negate either the fact or the prospect of persecution on the ground of homosexuality. … But here one is faced with a situation in which RRT makes findings which, in my opinion, unless negated or qualified by other findings, would result in a conclusion that the applicant has a well founded fear of persecution for a convention reason. RRT then declines to come to that conclusion for reasons which it gives but which, in my opinion, neither negate nor qualify its earlier findings. In my opinion, a decision reached in that way involves an error of law, because the correct application of the law to the facts as found by RRT required a different conclusion [see s 476 (1)(e) of the Migration Act 1958 (Cth)]." (Emphasis added) The present appeal 22 The Minister in submissions refers to two major changes to the legislative and regulatory scheme since Chan, which were adverted to by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, and Gummow JJ at 263-264. The first of these changes, which are described as of "special significance", is that the Minister now needs to be "satisfied" of refugee status, rather than to "determine" whether in fact the person is a refugee. This variation, in the Court's opinion, led to a significant change in the respective roles of the Minister and a court reviewing a Minister's decision, because a determination that "refugee status" actually exists, differs in nature and quality from reaching a state of "satisfaction" that refugee status exists. The other matter pointed to by the Minister in the present case is that "unreasonableness" is no longer an available ground of review and that Chan was a case concerning "unreasonableness". 23 The Minister also points to other distinctions between the present case and Chan's case, notably, as stated by his Honour, the lack of contemporaneity between the persecutory conduct complained of and departure. In Chan's case the departure closely followed the alleged persecutory conduct but in the present case there was a period of over two years between the 1993 conduct and departure. In that period direct evidence was adduced from Mr Gui as to his ability to engage in homosexual activities, albeit with limitations, in Shanghai, and reference was made to the existence of a large gay community in that city. 24 A further submission made by the Minister is that the primary Judge erred in law in requiring the Minister to identify circumstances which "negate or qualify" the finding made as to the 1993 incident. The error claimed is encapsulated in his Honour's conclusion that: "… here is one faced with a situation in which RRT makes findings which, in my opinion, unless negated or qualified by other findings, would result in a conclusion that the applicant has a well-founded fear of persecution for a convention reason." (Emphasis added) 25 In addition, the Minister submits that there was no finding that the respondent was a victim of persecutory conduct in a Convention sense at any time, even as a result of the December 1993 incident. It is pointed out that the finding as to that incident does not in terms conclude that there was persecutory conduct for a Convention reason as a result of the incident. 26 An examination of the extracts from Chan referred to by his Honour indicates that a primary concern of three members of the Court was with the circumstances as they existed at the time of departure which grounded the fear, and the weight to be placed on those circumstances. In the present case, the time of departure was May 1996, and Mr Gui's evidence as to his ability to live as a homosexual in Shanghai over the two year period following his detention clearly influenced the RRT decision. 27 The observations of their Honours in Chan do not, in our view, warrant the application of a "negate or qualify" approach in relation to the 1993 events. To adopt such a formulation is to place a gloss on the words of the Convention, which call for a determination, as at the date of the RRT decision, as to whether a person then satisfies the requirements of refugee status. The primary Judge concluded that, in his opinion, the other findings made by the RRT did not negate or qualify the earlier findings as to the December 1993 incident, and that therefore the law had been incorrectly applied. In our view, the application of this incorrect approach resulted in the primary Judge making an evaluation which was within the sole province of the RRT. The very expression "negate or qualify" itself indicates that the assessment being undertaken is one of fact and degree. 28 The finding of the RRT in relation to the 1993 incident was that the applicant had been detained and beaten because of his conduct, which Mr Gui described as "cuddling and kissing" in public, but there is no express finding that this was persecution in the Convention sense on the ground of his membership of a social group, namely homosexuals in China or Shanghai. Indeed the RRT's finding that Mr Gui's behaviour in a public place "was unacceptable according to the cultural norms prevailing in China and it was this behaviour which brought him to the notice of the authorities" is inconsistent with a finding of persecution for a Convention reason. What precipitated the police action was not Mr Gui's membership of a social group but his conduct in a public place: see Morato v Minister for Immigration (1929) 39 FCR 402 at 404-405; Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 243, 257." 29 In any event, even if the RRT found Convention persecution as at December 1993, the error of law lies in the Court having encroached upon the role of the RRT in relation to what is essentially a question of fact and degree namely, what importance or weight should be attached to the events of late 1993 and early 1994 taking into account circumstances since that time? There was substantial evidence both from Mr Gui as to his circumstances after his detention and before his departure, and from other sources as to the position of homosexuals in Shanghai upon which, in our view, it was open to the RRT to conclude that as at the date of its decision Mr Gui did not have an objectively based fear of persecution for a Convention reason. 30 Put another way, we think it was incorrect for the primary Judge to treat the 1993 incident as creating some kind of presumption which, unless negated or qualified, must produce a finding of objectively based fear at the time of the RRT's decision. 31 Accordingly, we consider that his Honour erred in law. Notice of contention 32 Four grounds are raised by way of Notices of Contention. We do not consider there is substance in any of them. 33 The first is that his Honour is said to have erred in failing to find that there had been an error of law when the RRT found that the 1996 summons to Mr Gui was with respect to a potential breach of the criminal law and was not Convention related. The RRT accepted, after expressing doubts, the validity of the summons, but characterised it as being related to a potential breach of the criminal law. On its face, the summons refers to s 63 of the Penal Code of the People's Republic of China and to the need for investigation of what is referred to as a "Hooligan Promiscuity Case". It requires Mr Gui to appear for interrogation. In view of the wording of the summons the characterisation adopted by the RRT as being referable to some form of criminal conduct was in our view available on the material. 34 The second ground is that his Honour erred in finding there was no error of law by the RRT in failing to consider Mr Gui's claims cumulatively. This contention cannot be accepted because, after considering in detail the various grounds and reviewing the facts, the RRT expressly stated that it had considered his claims as a whole and was not satisfied that he had a well-founded fear of persecution by reason of a Convention ground or on cumulative grounds. A fair reading of the decision as a whole does not support a suggestion that the decision-maker in any way "compartmentalised" its conclusions on the matters raised or failed to take an overview of the grounds cumulatively. 35 The third ground is that, in the event that this Court decides that the primary Judge erred in finding the RRT had made findings of past persecution, the respondent contends that any failure by the RRT to make such findings constituted an error of law. This submission assumes that the RRT is required to proceed by way of a staged process and to make an intermediate finding as to whether Mr Gui was being persecuted for a Convention reason in 1993. There is no such requirement. The RRT must address the question whether the applicant was a refugee as at the date of its decision having regard to all the circumstances placed before it up to that date. There is in our view no error of law disclosed in the decision of the RRT. Moreover, the RRT made findings as to what had occurred in 1993 but clearly considered that because Mr Gui had been able to take part in an active gay community, and had not been arrested or detained on any other occasion since then, he was not at risk of persecution on that ground as at 1998. 36 The fourth ground is that in the circumstances referred to in the third ground, his Honour erred in failing to find that the RRT decision involved a breach of s 430 of the Migration Act 1958 (Cth) by failing to make findings whether Mr Gui had suffered past persecution and as to whether he had a subjective fear of persecution. For the same reasons as expressed in relation to the third ground, we do not accept this submission. Conclusion 37 The appeal should be allowed. The respondent should pay the appellant's costs of the appeal. The respondent should also pay the appellant's costs of the hearing before the primary Judge. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court. Associate: Dated: 29 October 1999 Counsel for the Appellant: N Williams J Smith Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: E Wilkins G Preston Solicitor for the Respondent: Fallon Safetly Date of Hearing: 18 August 1999 Date of Judgment: 29 October 1999