FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Guan [2000] FCA 1033 MIGRATION – decision of Refugee Review Tribunal remitting matter to Minister with direction that respondent is a person to whom Australia owes protection obligations – respondent is a citizen of People's Republic of China and a homosexual man – whether Tribunal erred by failing to make express or implicit findings on the elements of the definition of "refugee" in the Convention Relating to the Status of Refugees – whether Tribunal erred by failing to consider whether respondent faces a real chance of persecution if he practices his homosexuality discreetly – whether Tribunal failed to consider whether the respondent as an individual faces a real chance of persecution – whether Tribunal failed to make its own assessment of or misconstrued the meaning of "persecution" Migration Act 1958 (Cth) s 476(1)(e) Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 considered Minister for Immigration & Multicultural Affairs v Shaibo [2000] FCA 600 referred to Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 considered Minister for Immigration & Multicultural Affairs v B [2000] FCA 930 referred to MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v GUAN YING CAI N 1090 OF 1999 MOORE J 2 AUGUST 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1090 OF 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT AND: GUAN YING CAI RESPONDENT JUDGE: MOORE J DATE OF ORDER: 2 AUGUST 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. 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 1090 OF 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPLICANT AND: GUAN YING CAI RESPONDENT JUDGE: MOORE J DATE: 2 AUGUST 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application by the Minister for Immigration and Multicultural Affairs ("the Minister") for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 26 August 1999. The Tribunal set aside a decision of a delegate of the Minister to refuse Mr Guan Ying Cai ("the respondent") a protection visa. The Tribunal remitted the matter to the Minister for reconsideration with the direction that the respondent is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (done at Geneva on 28 July 1951) as amended by the Protocol relating to the Status of Refugees (done at New York on 31 January 1967) ("the Convention"). The decision of the Tribunal 2 The Tribunal commenced by setting out the background to the application, which is as follows. The respondent is a citizen of the People's Republic of China. He arrived in Australia on 23 September 1998 and on 6 October 1998 he lodged an application for a protection visa. On 22 December 1998 that application was refused by a delegate of the Minister and on 22 January 1999 the respondent sought review of that decision. 3 The Tribunal then noted that a criterion for a protection visa is that a decision-maker, at the time of the decision, is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Convention. The Tribunal stated that, generally speaking, Australia owes protection obligations to a person who is a "refugee" as defined in article 1A of the Convention. That article defines 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." 4 The Tribunal referred to several authorities that have considered that definition and set out a number of general principles which are established by them. In particular it said: "Fourth, an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country. The object of the Convention is to provide refuge for those who, having lost the de jure or de facto protection of their governments, are unwilling to return to the countries of their nationality. It follows that whenever the protection of the country of nationality is available, and there is no ground based on well-founded fear for refusing it, the person concerned is not in need of international protection and is not a refugee. Whether an applicant satisfies the Convention definition is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future." 5 The Tribunal set out the respondent's claims in a section headed "Claims and Evidence". The Tribunal noted that the respondent's claims were set out in written submissions to the Department of Immigration and Multicultural Affairs ("the Department") and oral evidence given to the Tribunal. The Tribunal then summarised that material as follows: "The applicant told the Tribunal that he had been a senior photographic journalist with the Xinhua News Agency and had been sacked when his homosexuality became public knowledge. The applicant said he had been a homosexual since puberty but because of the situation that existed in China toward homosexuals he had got married and he had a son. His wife knew he was gay and she understood and was sympathetic. The applicant told the Tribunal that he had had different male partners in China. One of them was an employee at the News Agency who in a jealous rage in 1992 had outed him to the applicant's employer. The applicant had been subjected to harassment and abuse in the workplace as a result of being outed and his boss had demoted him, reduced the level of his responsibilities and refused to consider him for more senior positions. The applicant was asked why he didn't move to another News Agency and he said because he was a government employee and his record would have moved with him to another employer. The applicant was asked whether if he left his employer his wife could support him and he said, no, she didn't have enough money. He was also asked if he could become a freelance photographer and he said he didn't have the qualifications and he couldn't afford to buy the cameras and other equipment that would be necessary. One evening whilst at an entertainment centre in the company of a gay friend the centre was raided by the police. The police let mixed couples who could identify each other leave the premises. All the other patrons were detained. This was in the city where the applicant lived. This city is Guangzhou which has a population of five million. Despite being such a large city the applicant said it only had a few clubs, none of which catered exclusively for homosexuals. The applicant said that he and his partner were abused and beaten up whilst in detention and his employer was informed of the arrest and the reasons for the arrest. His employer then terminated his employment which effectively meant that he was unemployable." 6 The Tribunal then referred to the following country information sources: Gmunder, B (ed), 1998, Spartacus International Gay Guide 98/99; Hendriks, A et al (eds), 1993, The Third Pink Book, A Global View of Lesbian and Gay Liberation and Oppression; Dutton, M (ed), 1998, Streetlife China; Dikotter, F, 1995, Sex, Culture and Modernity in China; US State Dept, Country Reports on Human Rights Practices for 1998. The Tribunal also referred to the following websites: Amnesty International (http://www.amnesty.org); the Chinese Society for the Study of Sexual Minorities (http://www.geocities.com/~nanfeng/cssm.html) and the International Lesbian and Gay Association Homepage (http://www.ilga.org). 7 There then followed a comparatively short section headed "Findings and Reasons" which was as follows: "Country information details the situation in China of some official ambivalence toward practising homosexuals. On the one hand, if same sex partners live together, don't attract attention and don't display the fact in public that they are a committed couple then the Chinese authorities will probably leave them alone but not necessarily. Through their attitude towards homosexuals the Chinese authorities severely curtail the lifestyle, social activities and job opportunities of same sex couples. If a same sex couple in China attempt to live a normal life, that is, go to restaurants, clubs, bars, theatre and make it obvious that they are a unit, they will sooner or later attract the adverse attention of the authorities and that this attention, according to the country information, when expressed by the authorities amounts to persecution. There is evidence to suggest that wealthy Chinese living in Beijing and Shanghai can avoid the molestations of the authorities through their wealth and through the tolerance that wealth brings in circles that enjoy access to money, power and privilege. The applicant does not fall into that category and neither do the bulk of the homosexual community in China. Their lives are lived at the level of furtiveness and fear brought about by the intolerance of the state. This intolerance shows no sign of dissipating and is made worse through the glaring gaps which exist through corruption and blatant misuse of wealth. The powerless are victimised, the powerful escape the strictures of an unreconstituted totalitarian system of administration particularly where it applies to the law, social welfare, health and education for the vast majority of people in China who exist just above or below the poverty line and for the government created and supported middle class. The Chinese authorities have recently demonstrated just how intolerant China remains toward any group or activity which is not sanctioned by the state. In an incredibly heavy handed way they have cracked down against the Falun gong sect. CONCLUSION The Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant satisfies the criterion set out in s.36(2) of the Act for a protection visa." The issues in the application for judicial review 8 The Minister advanced one ground in support of the application, namely that the decision of the Tribunal involved an error of law, being either an incorrect interpretation of the law or an incorrect application of the law to the facts: Migration Act 1958 (Cth) s 476(1)(e). The errors were said to have arisen in this way. The elements of the criteria that must have been satisfied before a direction could be made (when remitting the matter to the Minister) that the respondent was a person to whom Australia has protection obligations under the Convention were jurisdictional facts, in the sense that they founded the jurisdiction of the Tribunal to make such a direction. If the Tribunal purported to make such a direction without having satisfied itself of the existence of the jurisdictional facts, its decision was beyond jurisdiction and was based on an incorrect interpretation of the law. Alternatively, if the Tribunal purported to make such a direction having satisfied itself of some, but not all, of the jurisdictional facts, then the Tribunal had misapplied the law to the facts because the Tribunal was obliged to refuse the application if one of the jurisdictional facts was not made out. 9 In the application of the Minister filed on 22 September 1999, this ground was particularised as follows: (a) the Tribunal erred by failing to make its own assessment of whether the respondent faced persecution in China, relying instead on the assessment in other materials; (b) the Tribunal misconstrued the meaning of "persecution" in the Refugee Convention and Protocol; and (c) the Tribunal failed to consider critical elements of the test for whether a protection obligation was owed by Australia, namely the existence of a Convention basis for any harm suffered by the respondent, whether the respondent had a well-founded fear of persecution, whether the respondent could reasonably have re-located within China to avoid persecution. 10 At the hearing on 26 May 2000 counsel for the Minister referred to a "primary" and "secondary" submission, and counsel was asked to clarify what was being put in further written submissions. The primary submission was that express findings were not made by the Tribunal of jurisdictional facts of the kind referred to in par 8 above, and that it should not be inferred that these findings were implicitly made by the Tribunal. The secondary submission was that even if it were accepted that the Tribunal implicitly made findings that the respondent was a homosexual, was a member of a particular social group, was subject to harm that constituted persecution on one occasion, and that persecution was for a Convention reason, the Tribunal did not consider whether the respondent had a well-founded fear of persecution in the future if returned to China. It was said that the Tribunal did not consider whether the respondent faced a real chance of persecution if he practiced his homosexuality discreetly, and that in the absence of doing so, it was not open to the Tribunal to make the direction it did. 11 As to the primary submission, counsel for the respondent submitted that the only jurisdictional fact to be determined by the Tribunal was that the respondent is a person to whom Australia owes protection obligations under the Convention. Reference was made to the judgment of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 603-611. It was submitted that the Tribunal was not obliged to make express findings as to each element of the definition of "refugee" in the Convention, nor was it obliged to expressly consider other matters such as whether the respondent to relocate elsewhere in China. 12 It was common ground that the reasons of the Tribunal should be read beneficially and that this Court may conclude that a finding not expressly made may, in appropriate circumstances, be properly said to have been made implicitly. However, it was submitted by counsel for the Minister that the Court should not "lightly" imply findings, especially where they concern jurisdictional facts. I should, at this point, note that at no stage has the Minister sought to argue that the Tribunal failed give effect to an obligation deriving from s 430 so as to enliven the ground of review in s 476(1)(a), and this remained the case after the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Singh [2000] FCA 845 given on 30 June 2000. It is necessary, in my opinion, to make this observation because at least some of the points made by counsel for the Minister might be raised in a submission made by reference to s 430 in the context of arguing that the ground of review in s 476(1)(a) was made out. The only reliance placed on s 430 by counsel for Minister was that if the Tribunal's reasons do not satisfy its provisions then an inference of legal error can more readily be drawn. 13 It is desirable to set out in more detail the submissions of the parties concerning whether the Tribunal did not make findings, expressly or implicitly, that: (a) the respondent is a homosexual; (b) he is a member of a particular social group; (c) he has suffered or will suffer persecution; (d) any harm he suffered or will suffer was or will be by reason of his membership of a particular social group; or (e) fear of any such harm is well-founded. 14 Counsel for the Minister referred to the decision of the Full Court in Minister for Immigration & Multicultural Affairs v Gui [1999] FCA 1496 ("Gui") in support of the submission that this Court should not conclude that such findings were implicitly made. In that case, Mr Gui was a homosexual man resident in Shanghai. The Tribunal found that in 1993 Mr Gui and his partner were observed by police "cuddling and kissing" in a park and were then detained and beaten. However the Tribunal was not satisfied that Mr Gui had a well-founded fear of persecution for a Convention reason. Mr Gui sought judicial review and the primary judge held that the Tribunal had erred in law in reaching its conclusion because its findings concerning events after the 1993 incident, including that Mr Gui had participated in an active gay community and had not been arrested or detained on any other occasion, did not "negate or qualify" its findings that in 1993 Mr Gui had been persecuted by reason of his homosexuality, that Mr Gui consequently held a subjective fear of persecution by reason of his homosexuality, and that homosexuals in Shanghai are the subject of police harassment. The Minister appealed and the Full Court held that the primary judge erred in law in adopting the "negate or qualify" approach just described. 15 The passage of the judgment of the Full Court on which counsel for the Minister particularly relied, in par 28, reads: "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 …" 16 Counsel for the Minister submitted at the hearing that in this passage the Full Court might be taken to indicate that a Court should not, in the absence of an express finding, conclude that a Tribunal has implicitly found that a person has been harmed by reason of their membership of a particular social group. 17 Counsel for the respondent submitted that the Tribunal's findings in this matter must be read against the background of the central claims made by the applicant. Reference was made to the decision of Lindgren J in Minister for Immigration & Multicultural Affairs v Shaibo [2000] FCA 600 at par 24. Counsel drew attention to several claims the respondent made in his original application. In answer to question 36, "Why did you leave the country?", the respondent stated, "I am gay and I am applying for refugee status on the ground of membership of a particular social group of homosexual people" and "I was … detained for a month for being a gay." In answer to question 37, "What do you fear may happen to you if you go back to that country?", he stated, "Discrimination and persecution they will impose on me." In answer to question 38, "Who do you think may harm/mistreat you if you go back?", he said, "The authorities of different levels and people around me." In answer to question 39, "Why do you think they will harm/mistreat you if you go back?", he said, "Because I am a gay." Counsel also referred to a statement of the respondent forwarded to the Department on 8 September 1998 in which the respondent recounted the circumstances of his arrest at the entertainment centre, referred to by the Tribunal in the passage quoted at par 5 above. There, the respondent claimed that the Public Security Officers "slapped me in my face and shouting [sic] something like "Aibs" [sic] and "male whore" at me. […] They scored at me saying that how could you aberrant person be a journalist?" Last, counsel referred to a further statement of the respondent dated 20 June 1999 in which the respondent stated, "Although tolerance towards gay and lesbians has grown in recent years, gays and lesbians are still detained and beaten by police" and "Although gay sex is not outlawed, it is often prosecuted under laws against "hooliganism"" and referred to a report of Amnesty International which concerned the internment of homosexual people in re-education camps and psychiatric hospitals. Conclusions 18 I deal first with the primary submission of the Minister. In my opinion, the submission of the Minister seeks to draw too much from the observations of the Full Court in Gui. Whether the Tribunal has failed to address and make findings about relevant facts which bear upon its ultimate conclusion about the status of the applicant for a protection visa must depend upon the nature of the case under consideration and the way the material has been presented to or arisen before the Tribunal. The observations of the Full Court in Gui were made in a circumstances where the primary judge had based his conclusions on the findings concerning the 1993 incident, coupled with what was viewed as a failure of the Tribunal to negate or qualify those findings, which pointed to the existence of a well-founded fear of persecution for a Convention reason. The Full Court was doing no more than illustrating that it was a matter for the Tribunal to determine the existence of a well founded fear and the approach of the primary judge had trespassed into the fact-finding domain of the Tribunal. 19 The fundamental difficulty with the submission of counsel for the Minister is, as I perceive it, that, absent reliance on s 476 (1) (a) in conjunction with s 430, the grounds of review arising under s 476 do not enable challenge to a decision of the type presently under consideration, on the footing that the Tribunal has failed to make findings that could justify or lead to the satisfaction upon which the decision must be based. To the extent that the Court is being invited to infer legal error and infer a misunderstanding or misapplication of the relevant legal principles, it is palpably clear that the Tribunal's analysis of the circumstances of the applicant and of homosexuals in China (in the passage set out in par 7 above) proceeds on an acceptance by the Tribunal of what it had been told by the applicant about his own circumstances and experiences in China. Thus the Tribunal accepted that the applicant was a homosexual and a member of a particular social group. The Tribunal's discussion of the country information also indicates it was alive to the question of whether membership of that group would expose the applicant to harm were he to return to China. Almost necessarily that indicates the Tribunal was considering also the existence of a well-founded fear of persecution on the part of the applicant. I am unable to infer error of the type contended by counsel for the Minister. 20 The secondary submission of counsel for the Minister is founded, in part, on the remarks of the Tribunal in the first paragraph of its reasons quoted in par 7 above. On one reading of this paragraph the Tribunal found that, at least ordinarily but not necessarily, same-sex partners living together do not attract the attention of the Chinese authorities if they are discreet about their relationship. Also on one reading of this paragraph the Tribunal found that if same-sex partners were not discreet about their relationship then they would be at risk of harm at the hands of the authorities. However, the reasons are also capable of being read differently. The secondary submission of the Minister is founded on the proposition that it can be inferred the Tribunal did not address the question of whether the applicant would be discreet (and not be at risk of harm) and, if effectively compelled to be discreet, whether the need to be discreet arising from the approach taken by the authorities, was itself a form of persecution. 21 Counsel for the Minister did not submit that there would not be a risk of persecution as a matter of law, in a case of the present type if harm could be avoided by being discreet, nor did counsel for the Minister submit that it could never be the case that a requirement to be discreet constituted persecution. Rather, so the submission ran, whether, in this case, the applicant would be discreet and, if so, why he would be and the legal characterisation of the reason or reasons was a critical issue that was not addressed by the Tribunal. 22 It is necessary, at this stage, to refer to a comparatively recent decision of this Court concerning an application by a homosexual from Sri Lanka for a protection visa. In Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211, Ryan J dismissed an application for judicial review of a decision of the Tribunal affirming the decision to refuse to grant the visa. The Tribunal had approached the matter on the basis that the applicant could avoid a real chance of serious harm in Sri Lanka by refraining from making his sexuality widely known. As Ryan J noted, implicit in this finding was that a level of discretion for the purpose of avoiding persecution was to be expected of the applicant. His Honour also noted a consequential further finding of the Tribunal that the level of discretion which it imputed as necessary to avoid persecution was "reasonable" in that it would not require the applicant to retreat from any of the identifying features of the social group to which he belonged. It was argued in those proceedings that this approach manifested an error of law. 23 The approach of Ryan J to this contention was: "An error of law could readily have been imputed to the Tribunal had it acknowledged, on the one hand, that the practice of a homosexual lifestyle as a whole is "protected" by the operation of the Convention, but, on the other hand, had denied the applicant all means of meeting prospective sexual partners, thereby reasoning that the Convention does not, as a matter of law, "protect" a part of the activity of a particular social group that is necessary and integral to the defining characteristic of that group. That erroneous reasoning would render illusory the protection afforded by the Convention, but I am not persuaded that the approach of the Tribunal has been infected by that error and this ground is not made out. In truth, this complaint of the applicant is that the line drawn by the Tribunal between what is, and is not, reasonable to require of the applicant in order to avoid persecution should not, on the material available to the Tribunal, have been drawn where it evidently was. The strong injunctions against merits review of Tribunal decisions which have been expressed in many recent authorities are a reminder that consideration of a complaint of this kind is allowed only to a limited extent. It is within the permissible limits to ask whether there was evidence to justify the Tribunal's determination that the applicant could avoid persecution by being "discreet" consistently with the practice of a homosexual lifestyle of the extent under the consideration of the Tribunal." 24 It is clear that Ryan J was not propounding a principle that, as a matter of law, persecution of a member of a particular social group, namely homosexuals, would not arise if harm was avoided by the member being discreet about their sexuality while being able to give effect to their sexuality privately or at least not publicly. Indeed, as noted previously, no such legal principle was advanced by counsel for the Minister . In those circumstances it is difficult to see why the Tribunal would have had to address the issue, and why its failure to so in the express way identified by counsel for the Minister justifies an inference of legal error. I am not satisfied, as to the secondary submission, that the Tribunal erred in law. 25 I accept that the Tribunal must consider the chance of the particular applicant in question being persecuted. A recent example of its failure to do so is found in Minister for Immigration & Multicultural Affairs v B [2000] FCA 930. However in the passage from its reasons quoted in par 7 above, the Tribunal considers, though elliptically, the circumstances of the applicant. It points, in the beginning of the second quoted paragraph, to a class of homosexuals that can avoid harm. It notes that the applicant does not fall into this class. It goes on to observe that the class of which the applicant is a member do suffer at the hands of the authorities. I consider that this can be taken to be a conclusion that, as a member of the latter class, the applicant likewise would suffer at the hands of the authorities. 26 The only remaining issue raised in the application is whether the Tribunal failed to make its own assessment of what constitutes persecution, relying instead on the country information for such an assessment. This contention was presumably directed towards the following statement of the Tribunal: "If a same sex couple in China attempt to live a normal life, that is, go to restaurants, clubs, bars, theatre and make it obvious that they are a unit, they will sooner or later attract the adverse attention of the authorities and that this attention, according to the country information, when expressed by the authorities amounts to persecution." (Emphasis added) 27 However, on a beneficial reading of this statement, the Tribunal relied on the country information merely to reveal the nature of the "attention" given by the Chinese authorities to homosexuals, and not to answer the question of whether such attention amounts to persecution, and might do so in relation to the respondent. 28 I dismiss the application and order the Minister to pay the respondent's costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 2 August 2000 Counsel for the applicant: Mr S B Lloyd Solicitor for the applicant: Australian Government Solicitor Counsel for the respondent: Mr N C Poynder Solicitor for the respondent: Kah & Associates Solicitors Date of Hearing: 26 May 2000 Date of Judgment: 2 August 2000