Applicant A v Minister for Immigration and Ethnic Affairs

Judgment (10 paragraphs)

[1]

BURCHETT AND EINFELD JJ The appellant claims to be a "refugee" within the familiar Convention definition on the basis of a "well-founded fear of being persecuted for reasons of … membership of a particular social group", being the family of his brother, Guo Wei Rong. That a case so framed might be legally viable was accepted by Dawson J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240-241: "The words 'for reasons of' require a causal nexus between actual or perceived membership of the particular social group and the well-founded fear of persecution. It is not sufficient that a person be a member of a particular social group and also have a well-founded fear of persecution. The persecution must be feared because of the person's membership or perceived membership of the particular social group. For instance, the appellants in this case are each members of at least one recognised particular social group - a family, consisting of them and their son - but it is not their membership of that specific family which motivates their prospective persecutors. … I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. … Furthermore, the significance of the [common] element as a uniting factor may be attributed to the group by members of the group or by those outside it or by both." Assuming, on this basis, that the social group propounded by the appellant in the present case is a social group within the Convention definition, the vital question is whether any error of law affected the Refugee Review Tribunal's finding that the appellant's fear of being persecuted was not for reasons of his membership of that social group. In Ram v Minister for Immigration (1995) 57 FCR 565 at 568, Burchett J expressed the view that the Convention definition involves "a motivation which is implicit in the very idea of persecution, is expressed in the phrase 'for reasons of', and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group." This view was accepted by Dawson J in Applicant A at 242, and was asserted in different language by McHugh J at 263 when he said: "The only persecution that is relevant is persecution for reasons of membership of a group … ." The judgment of Gummow J makes it clear that he too took the same view. In the present case, there was ample evidence, which the Tribunal set out and we need not repeat, to justify the appellant fearing the infliction upon him of serious harm. But that evidence was quite consistent with the Chinese authorities being concerned, as the Tribunal put it, "to prevent further illegal activities by Guo Wei Rong", with whose illegal activities the appellant had in the past been associated. The Tribunal stated it was "satisfied that the Chinese authorities, in their mistreatment of the Applicant and his sister, were seeking to prevent Guo Wei Rong and his suspected associates from engaging in further illegal activities." Accordingly, it concluded that any harm the appellant might suffer would be because of the specific illegal activities of his brother, in which he had been involved, or in which he was suspected of involvement, and not for reasons of his membership of the family group. Adapting the words of Dawson J quoted above, it would not be membership of that family which would motivate any persecutors of the appellant.

REASONS FOR JUDGMENT EMMETT J: The appellant is a Chinese national and claims that he faces a risk of persecution in the Peoples Republic of China for reasons of his membership of a particular social group, being the family of his brother, Guo Wei Rong. The appellant applied for refugee status on 14 December 1993. The application was rejected by the Minister on 31 January 1994. That decision was reviewed by the Refugee Review Tribunal ("the Tribunal") and on 19 May 1994 the Tribunal affirmed the Minister's decision. The appellant sought an order for review of that decision by the Federal Court and on 30 April 1996, Davies J, by consent, set aside the decision and remitted the application to the Tribunal. That order was made in the light of the decision of the Full Court in Guo & Pan v Minister (1996) 64 FCR 151. However, before the matter came before the Tribunal again, that decision of the Full Court was set aside by the High Court - Minister v Guo & Pan (1997) 144 ALR 567 (185 CLR 280). On 19 December 1997, the Tribunal, differently constituted, again affirmed the Minister's decision. The appellant applied to the Federal Court for an order for review of that decision. On 24 February 1998, Davies J dismissed that application. From that order an appeal is now brought to the Full Court. The Tribunal was satisfied that the appellant fears that he is at risk of harm should he return to China. The Tribunal found that that fear is based on the appellant's own experience in the past and the experience of his family. The Tribunal appears to have found, therefore, that the appellant's fear is well founded. However, the Tribunal was not satisfied that any harm which the appellant might suffer in China would occur for reasons of race, religion, nationality, membership of a particular social group or political opinion, as contemplated by the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol ("the Convention"). Davies J accepted that a family may be a relevant social group for the purposes of the Convention - Applicant A v The Minister (1997) 190 CLR 225 at 240-21 per Dawson J. Accordingly, if the harm feared by the appellant was for reason of his membership of his brother's family, there may be a basis for affording him refugee status in Australia. However, not every threat of harm to a person or interference with his or her rights constitutes "being persecuted" - Chan Yee Kin v The Minister (1989) 169 CLR 379 at 429 per McHugh J. It is necessary to consider the factual material before the Tribunal in order to understand the question posed on behalf of the appellant. In about April 1992, the appellant travelled by boat to Australia with a number of other Chinese nationals. His brother, Guo Wei Rong, his sister-in-law and their children were among that number. On arrival in Australia, the appellant lodged an application for refugee status. He was held in detention during the processing of that application. While in detention, the appellant participated in a demonstration and hunger strike. The protest received national media coverage in Australia. The appellant and other protesters were portrayed as being critical of the way their applications were being handled and fearful of their future should they be forced to return to China. The appellant's application was unsuccessful and the appellant was then removed from Australia.

The appellant returned to China in October 1992 and was held in custody on his arrival. After five days the appellant and his brother were transferred to a prison where they were held for 23 days. The appellant and his brother were eventually released and fined. The appellant had lost his identity card and, when he asked for a replacement card, he was ignored. The appellant could not get his old job back and he could not obtain other work because employers were concerned about his illegal departures. In June 1993, the appellant and Guo Wei Rong were arrested and taken to prison where they were held for more than 3 months. The Public Security Bureau ("the PSB") asked the appellant about Guo Wei Rong, whom he was associating with and what he was doing. The appellant was beaten on the face, kicked and beaten about the body but was not given any reason for being held. The appellant and Guo Wei Rong were finally released after their mother paid a large bribe. Some time after their release, the appellant and Guo Wei Rong, after a warning of prospective further arrest by a PSB officer, left China again. The appellant's sister, the appellant's mother and Guo Wei Rong were the joint owners of a large fishing boat. That boat was the means whereby the appellant's sister earned a living. That boat was confiscated by the Chinese authorities. The appellant's sister also said that she had been questioned by the police about the activities of Guo Wei Rong. She was harassed by the police and eventually fled China to avoid further harassment. However, the parents and another brother of the appellant live in China. Neither the appellant nor his sister were aware of any harm or difficulties suffered by those other members of the appellant's family. Guo Wei Rong is known to the Chinese authorities as a smuggler or organiser of illegal departures from China. The Tribunal was satisfied that the harm suffered in the past by the appellant and his sister occurred because they were associated with Guo Wei Rong. The Tribunal considered that, having regard to Guo Wei Rong's record of organising illegal departures by boat, it is not surprising that the Chinese authorities would confiscate a boat which he part owned and which he may have used to further his illegal enterprise. In the Peoples Republic of China, it is an offence to leave the country without permission and a more serious offence to engage in the organisation or transport of other persons secretly across the national border. As I have indicated, the appellant was present on one of the boat trips organised by Guo Wei Rong. He has twice been arrested and questioned with Guo Wei Rong. While in detention he was questioned about the activities of Guo Wei Rong. The Tribunal noted that it was when the appellant and his sister mixed their own activities with those of Guo Wei Rong that the Chinese authorities took an active interest in them. The Tribunal considered that the Chinese authorities had ample grounds for suspecting that the appellant and his sister may have been involved in the illegal activities of Guo Wei Rong. The Tribunal was satisfied that the Chinese authorities, in their mistreatment of the appellant and his sister, were seeking to prevent Guo Wei Rong and his suspected associates from engaging in further illegal activities. Accordingly, the Tribunal concluded that any fear which the appellant has was not for Convention reasons. The appellant argued that the words "for reasons of" in the Convention require only that a causal nexus be shown between the well founded fear of persecution and membership of the particular social group. He contended that if suspicion of criminal activity leading to persecution falls on an individual because, or primarily because, of that individual's membership of a family there is sufficient causal nexus, for the purposes of the Convention, between the persecution and membership of a particular social group, namely that family. In Ram v The Minister (1995) 57 FCR 565 at 568D Burchett J said: People are persecuted for something perceived about them or attributed to them by their persecutors… There is thus a common thread which links the expressions "persecuted", "for reasons of", and "membership of a particular social group". That common thread is a motivation which is implicit in the very idea of persecution, is expressed in the phrase "for reasons of", and fastens upon the victim's membership of a particular social group. He is persecuted because he belongs to that group. The appellant contended that Burchett J used the term "motivation" to signify the notion of membership of the group, being the criterion by which the persecutors select their victim, whereas the Tribunal interpreted the concept as requiring that persecution of the group be the ultimate purpose or objective of the persecutors. In other words, the required causal nexus may exist notwithstanding that the ultimate purpose or objective of the persecutors may be something other than the persecution of the group. The appellant argued that a circumstance may arise where, notwithstanding that a particular act attributed to members of the group provides the motivation for persecution, such persecution may still be feared "for reasons of" membership of the group if persons are connected to those acts in the mind of the persecutors merely by virtue of their membership of that group. Reliance was placed on the observation by Black CJ in Morato v The Minister (1992) 39 FCR 401 at 405 that it will be sufficient if there is a social group sufficiently cognisable as such to enable it to be said that persecution is feared for reasons of membership of the group. However, the finding which the Tribunal made was that the reason for the treatment of the appellant was his close association with a criminal, his brother, in circumstances where the appellant himself was a criminal because of his unlawful departure from the Peoples Republic of China. The attention given to the appellant was not just because he and his brother had parents in common. The appellant attracted the attention of the authorities because of his association with a criminal who was engaged in unlawful smuggling of Chinese citizens over the border. The attention of the authorities was not attracted because of the appellant's association with Guo Wei Rong, qua brother. That attention was attracted by reason of his association with Guo Wei Rong qua criminal. As such, the attention which he has received and may receive in the future is not by reason of his membership of the family of Guo Wei Rong. The Tribunal expressly found that the harm suffered in the past by the appellant and his sister occurred because they are associated with Guo Wei Rong. The appellant argued, therefore, that he did not suffer the harm because of anything that he had done Again, however, that contention ignores the fact that the appellant's association with Guo Wei Rong was significant because of Guo Wei Rong's unlawful conduct not simply because of the blood relationship between the appellant and Guo Wei Rong. The Tribunal found, in substance, that the appellant was closely associated with a criminal who happened to be his brother and that the authorities therefore suspected the appellant of criminal activity. The suspicion of criminal activity was the reason for the conduct complained of. It was not the blood relationship with Guo Wei Rong. In other words, it was not by reason of the appellant's membership of the Guo family or membership of the family of his brother.

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