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[1997] HCA 22
High Court of Australia
1997-06-13
Brennan CJ, Kirby JJ, Gummow JJ, Foster JJ, Beaumont J
Original judgment source is linked above.
The application for review by Mr Guo and Ms Pan fell to be determined by reference to the provisions of the Migration Act 1958 Cth (the Act) [55] . Section 22AA of that Act provided, relevantly:
If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee. 1. As it stood prior to the Migration Legislation Amendment Act 1994 Cth which commenced on 1 September 1994. See Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 43.
By the Act (s 4(1) of the Act), "refugee" is given the same meaning as it has in the Convention Relating to the Status of Refugees signed at Geneva on 28 July 1951 (the Convention) as amended by the Protocol Relating to the Status of Refugees signed at New York on 31 January 1967. By the Convention, so modified, a refugee is a person who (Article 1A(2) of the Convention):
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.
By reason of the applications to the Tribunal, it was required by the Act to review the primary decisions (s 166BB). The determination that a non-citizen is not a refugee under the Convention was one of the categories of decision within the Tribunal's jurisdiction, as was the decision to refuse a visa in such circumstances (s 166B(1)(a) and (b)). The Tribunal [56] was obliged by the terms of the Act to perform its duties in accordance with the Act, relevantly:
166c(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case.
The Act provides for the procedures of the Tribunal (see, eg, ss 166DB, 166DC, 166DD and 166DE). Having reached its decision, the Tribunal is obliged to prepare a written statement setting out the decision, the reasons for it and the findings on material questions of fact. That statement must also refer to the evidence on which the findings of fact are based (s 166E(1)). 1. Established pursuant to s 166J.
The Act has come under the scrutiny of this Court on a number of occasions. Relevant to the present appeals, two decisions may be recalled. In Chan [57] the Court concluded that the definition of "refugee", incorporated by the Act, involved both objective and subjective considerations. An applicant for the status of refugee would satisfy the definition if he or she demonstrates a genuine fear founded on a "real chance" of persecution for one of the stipulated reasons, should the applicant be returned to the country of nationality [58] . In this respect, this Court's decision accorded generally with the approach adopted by courts in the United Kingdom [59] in preference to the phrase "reasonable possibility" adopted by courts in the United States of America [60] . Because the future can never be told with certainty, particularly perhaps in the variable and sometimes unpredictable matter of persecution, this Court endorsed a test which both permits and requires rational speculation and denies the necessity of the proof of affirmative certainty. Mason CJ in Chan [61] explained:
I prefer the expression "a real chance" because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen [62] If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin. 1. (1989) 169 CLR 379. 2. Chan (1989) 169 CLR 379 at 389. 3. R v Home Secretary; Ex parte Sivakumaran [1988] AC 958 at 994. 4. Immigration and Naturalization Service v Cardoza-Fonseca (1987) 480 US 421 at 440. 5. (1989) 169 CLR 379 at 389. 6. (1986) 161 CLR 10 at 21.
The second decision is Minister for Immigration and Ethnic Affairs v Wu Shan Liang [63] . In that case, the Court reaffirmed the approach stated in Chan. But it also emphasised that it was inappropriate, in the conduct of judicial review, for an over-zealous approach to be adopted towards the reasons of the administrative decision-maker [64] . Such reasons were to be given a "beneficial construction" [65] with the avoidance of minute and fine scrutiny by "an eye keenly attuned to the perception of error" [66] . Although Chan was decided well before the hearing in this litigation, Wu Shan Liang was not available to the Federal Court when it reviewed, at first instance and on appeal, the Tribunal's decision in this case.
In the case of Mr Guo, the Tribunal had to evaluate his contention that, owing to a well-founded fear of being persecuted for reasons of political opinion, he was unable or unwilling to return to China. The bases upon which a "real chance" of such persecution were advanced rested upon two essential considerations. The first was the foregoing history of what might loosely be called "political protest" and defiant conduct on the part of Mr Guo. The second was the history of the repeated breach of the "one-child policy" evidenced in the birth of a third child to Mr Guo and Ms Pan and allegedly also demonstrated in the harassment and threats of sterilisation which both Mr Guo and Ms Pan said they had received after their second and third children were born. It was submitted that the two stated factors were to be considered cumulatively.
In addition to the evidence of Mr Guo and Ms Pan, qualified by the credibility findings already mentioned, the Tribunal received a large amount of evidentiary material from the Australian Department of Foreign Affairs and Trade. This was directed towards the way in which the Chinese authorities typically dealt with returnees from Australia and with persons whom they suspected to have evidenced political dissent. One such piece of evidence was a cable of 1 June 1993 from that Department to the effect that Chinese authorities were, in the official's estimate, not concerned with political activities of Chinese nationals outside China but rather with whether, should they be returned, they would intend to oppose the Chinese Government at home in an effective and organised way. According to the report, persons who did not have a high dissident profile or significant influence in China at the time of the Tiananmen Square incident would face only a "remote chance" of suffering administrative or criminal sanctions by the Chinese authorities following a return to China from Australia. This would be so unless, after their return, they were to become involved in organising activities in opposition to the Chinese Government [67] . The assessment in this cable was accepted by the Tribunal [68] . Indeed, Mr Guo himself embraced it. He argued that, because of his cumulative activities, the Chinese authorities had already attributed a political profile to him. By inference, he submitted, they would do so with greater conviction were he to be returned again because of his repeated defiance of Chinese law evidenced by his several illegal departures.
The Tribunal also received a translated version of two articles of the Criminal Law of the People's Republic of China [69] providing for the punishment of individuals who illegally crossed the Chinese border. The articles read:
Whoever violates the laws and regulations that control leaving and entering the country, secretly crossing the national boundary (or border-line), when the circumstances are serious, is to be sentenced to not more than one year of fixed-term imprisonment, criminal detention or control.
Whoever for the purpose of reaping profits, organizes or transports other persons secretly to cross the national boundary (or border-line) is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention or control, and may in addition be sentenced to fine.
The Tribunal received still further material from Amnesty International according to which unsuccessful asylum seekers, upon return to China, "receive variable treatment according to their personal background, police record, their connections, the circumstances in which they left the country, and to an extent, their willingness to admit they have done something wrong. It may vary from a few months "supervision" or detention to long terms of imprisonment" [70] . More up to date material placed before the Tribunal, referred to in its reasons, suggested that the Chinese Government was "likely to start getting tough on repeat offenders, who are representing an increasing proportion of Chinese boat people" [71] . The Tribunal accepted the evidence of another cable from the Department of Foreign Affairs and Trade. This assessed the treatment of the returnees from the Jeremiah of whom Mr Guo and Ms Pan were two. The cable stated: The returnees would be likely to receive some criticism during the period of detention for having participated in the protests [at Port Hedland], but the authorities would not regard the protests as sufficiently high-profile to seriously embarrass the PRC. [72] The same cable went on to state that the Jeremiah group might be seen by Chinese authorities as having importance for the investigation of the illegal emigration industry and for future cooperation with destination countries. It quoted an officer of the Chinese Ministry of Foreign Affairs to the effect that members of the Jeremiah group had been detained for six days and questioned about the circumstances of their departure, the objective being to learn more about the organisation which had arranged the departure [73] . 1. Articles 176 and 177. The Criminal Law and the Criminal Procedure Law of the People's Republic of China (1984), Beijing - Foreign Language Press (translation). 2. Letter of Amnesty International Australia to Refugee Status Review Committee dated 26 June 1992 re Illegal Departure from the PRC. 3. RRT decision at p 13. See also letter of the Minister to Senator Harradine dated 12 March 1993; letter from Department of Foreign Affairs and Trade to Refugee Review Tribunal dated 11 February 1994 re Returnees to the PRC; extract from British Broadcasting Corporation Broadcast 18 August 1993, all received into evidence. 4. Department of Foreign Affairs and Trade, Cablegram BJ312, 4 January 1993 from Australian Embassy, Beijing to Department of Foreign Affairs and Trade, Canberra. Subject: China: Return of Jeremiah Boat People to China. 5. Department of Foreign Affairs and Trade, Cablegram BJ312, 4 January 1993 from Australian Embassy, Beijing to Department of Foreign Affairs and Trade, Canberra. Subject: China: Return of Jeremiah Boat People to China.
The Tribunal accepted all of the foregoing written material, as was clearly open to it. So did Mr Guo and Ms Pan. Mr Guo laid great emphasis upon the last-mentioned cable. Because it was accepted that he had been detained in custody (with his brother) for twenty-eight days, and not the six days promised by the Foreign Ministry official, he argued that the inference of established political persecution was inescapable. No other relevant consideration linked the Guo brothers, save for their prominent involvement in the Port Hedland protest. Mr Guo's brother did not have a previous record of transporting Vietnamese departees to Hong Kong to explain the extended detention in his case. However, so far as the common treatment of the two brothers is concerned, it would have been open to the Tribunal, as a matter of fact, to ascribe this to the fact that the Chinese authorities inferred that the two brothers were associated together in the trip. Such matters of speculation as to the operation of the criminal justice system of China involved the evaluation of evidence which was committed by law to the Tribunal and not to the Federal Court.
The basis of the Tribunal's rejection of Mr Guo's claim to refugee status is clear enough. Having rejected his evidence concerning an alleged additional three months detention, with beatings and harassment, the Tribunal was faced with evaluation of the suggested relevance of the differential detention in his case for twenty-eight days as well as the high fine imposed upon him. It concluded that these penalties related not to any "political profile" or imputed political opinion but to his aggravated offences against Chinese law. The Tribunal accepted that Mr Guo had a fear about how he would be treated upon his return to China. It also accepted that, upon such return, he could indeed be exposed to punishment under Chinese law. However, the Tribunal was satisfied by the evidence that the laws relating to illegal departure were applied to the Chinese population generally. It found that the evidence "does not suggest that the Applicant is differentially at risk for a Convention reason" [74] . It said:
In the Tribunal's view if the authorities had been concerned about his activities or application for refugee status in Australia he would have been detained for a longer period. The period of imprisonment and fines the Applicant received is within the range and consistent with the independent evidence before the Tribunal in relation to the penalties for illegal departure. The Applicant's claims concerning adverse treatment because of these matters is not supported by the evidence. [75] 1. RRT decision, p 30. Differential or selective harassment was a consideration recognised as relevant to the very notion of persecution in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429, per McHugh J. 2. RRT decision, p 28.
As to the alternative contention that the repeated defiance of the "one-child policy" would, of itself, attract attention to Mr Guo, the Tribunal was also unconvinced [76] :
[The] lack of interest in the Applicant on his return to China by the family planning authorities is not consistent with the level of interest and profile he has portrayed to the Tribunal. The Tribunal has already referred to the evasiveness of the Applicant concerning his contact with the family planning officials and the threat of sterilisation; as well as his credibility generally. In the circumstances the Tribunal finds his account on these matters implausible. For these reasons the Tribunal finds that the Applicant does not face a real chance of forcible sterilisatio on return to China. Consequently the Applicant's fears of harm are not well-founded. In view of this finding it is not necessary to make a determination as to whether the treatment the Applicant fears amounts to persecution or is for a Convention reason. The Tribunal noted the applicant's submission which was, in effect, that the cumulation of his conduct would attract to him a perspective different than on his last return. This was related to the fact that the appellant had now illegally departed from China on three occasions and had been an organiser of the 1993 departure. However, confining itself to "credible evidence" the Tribunal found [77] : no connection between the Convention grounds and the punishment the Applicant fears for illegal departure and or as an organiser [The] Tribunal finds that these matters will not result in persecution to the Applicant for Convention reasons if returned to China [Any] punishment is not for a Convention reason [sic]. In view of this finding, it is not necessary to make a determination as to whether the treatment amounts to persecution or is well-founded. 1. RRT decision, pp 25-26. 2. RRT decision, p 31.
The primary judge in the Federal Court (Sackville J) had before him a multitude of grounds of review [78] . They included a number of grounds which were not pressed in the Full Court. As evidence of the ingenuity brought to bear in these cases, I cannot forbear to mention that the grounds included several attacking the conduct of the initial interviews and the facilities for legal or other advice afforded to Mr Guo and Ms Pan [79] ; others concerned the representation afforded to them before the Tribunal [80] ; the manner of the conduct of a tape recorded interview [81] ; in Ms Pan's case, reliance on the one-child policy [82] and an allegation of bias against the member constituting the Tribunal [83] . All of these were rejected. However, necessarily, they took a great deal of time to sort out.
The central part of Sackville J's reasons addressed the contentions which are still said to be in issue, namely that the Tribunal's determination was so unreasonable that no reasonable person could have reached such a conclusion [84] and that, whilst purporting to apply the correct legal test, the Tribunal had erred in law by failing to consider properly the application of the Act to the facts found [85] .
Sackville J permitted further evidence to be given before him by Mr Guo but for a limited purpose. He declined to set aside the Tribunal's findings about Mr Guo's credit, discerning no error of law in the Tribunal's approach on that issue [86] . He therefore proceeded to evaluate the complaints of unreasonableness and misapplication of the correct legal test within the ambit of the findings of fact made by the Tribunal. So approached, his Honour rejected the contention that the Tribunal's conclusion was "irrational or unreasonable" or "logically self-contradictory" [87] . As to the suggestion that the Tribunal had not really applied the statutory test by considering whether there was a "real chance" of persecution, Sackville J was equally unconvinced [88] . He therefore dismissed Mr Guo's application. He also dismissed that of Ms Pan in so far as it relied on the same or separate grounds [89] .
In the Full Court, the differences as to the orders to be made was not the only matter which divided the judges. Beaumont J identified three suggested legal errors in the reasoning of the Tribunal which led him to reverse Sackville J. The errors were:
(1) What his Honour took to be the undue concentration by the Tribunal upon the sentence imposed on Mr Guo following his return to China in October 1992. After an analysis of the meaning of "political opinion" in legal authority, Beaumont J concluded that, even if the sentence imposed were within the range for an ordinary criminal offence, it could still be "politically significant" [90] . He considered that the Tribunal had failed to appreciate and give weight to that possibility.
(2) He also concluded that the Tribunal had failed to give any weight to the conduct of Mr Guo in transporting Vietnamese nationals to Hong Kong as being, of its nature, "implicitly political" [91] .
(3) As well, he concluded that the Tribunal had effectively confined its attention to "the sentence alone" and had not considered, cumulatively as the law required, all of the activities of Mr Guo, including his involvement in the Port Hedland protest, when conducting the necessary speculation about the "real chance" required by the Act and by this Court's decision in Chan.
Foster J expressed himself as agreeing generally with the reasons given both by Beaumont J and Einfeld J for upholding the appeal [92] . However, there is a difference between the way each of those judges approached the matters, the approach of Beaumont J being significantly narrower than that of Einfeld J.
Einfeld J's approach involved a detailed analysis of the language of the reasoning of the Tribunal from which he derived a conclusion that it had effectively cast too heavy a burden of proof upon Mr Guo and Ms Pan. In various passages of textual analysis, his Honour expressed the opinion that the Tribunal had effectively imposed a "balance of probabilities test" and a requirement of corroboration in the place of the "real chance" test expressed by this Court.
In this Court, the Minister accepted that it was necessary to guard against the possibility that a claim, based on past facts which would undoubtedly support a "real chance" of future persecution if accepted, should not be entirely discarded because, on balance, particular facts were not accepted. The "real chance" test inescapably involved an element of speculation which had to be preserved throughout the review conducted by the Tribunal. This must be so given the imponderables which can affect the chances of future persecution of individuals returned to a country from which they have departed asserting that they are refugees. I have examined the passages in the Tribunal's reasons, relied upon by Einfeld J. With respect, I do not believe that they sustain his Honour's conclusion. Nor do I consider that the findings of fact recorded by the Tribunal as to the existence of a relevant fear on the part of the respondents indicated legal error. There was no error in approaching the question before the Tribunal by first determining whether the subjective fear existed and was well founded and then proceeding to consider whether, in such circumstances, it was based on a Convention reason. On the contrary, I consider this to be logical and proper.
Although Einfeld J accepted the importance of affording the decision of the Tribunal a beneficial construction [93] , I consider that the approach which his Honour adopted to the analysis of the Tribunal's reasons was that which was criticised by this Court in Wu Shan Liang [94] . This is not to say that analysis, even close analysis, of a decision-maker's reasoning is improper where its decision is challenged in judicial review proceedings. The Tribunal in this case was obliged to state reasons (ss 166BF(2)(c), 166E(1)), to make findings and to refer to the evidence upon which the findings were based (s 166BF(2)(b). See also s 166E(1)). However, reading such reasons with an over-zealous eye to find in them expressions or approaches (such as the "balance of probabilities") which are not stated runs into the dangers against which Wu Shan Liang warns.
Other criticisms were made of the reasons of Einfeld J (and of Foster J) concerning their suggested findings of fact [95] , additional to those made by the Tribunal. However, I mean no disrespect to the majority's reasons if I confine the balance of this opinion to the narrower approach of Beaumont J. In my view, it represents the only basis upon which the decision of the Full Court could be sustained.
The Minister argued, in effect, that all of the judges of the Full Court had arrived at conclusions on the facts different from those reached by the Tribunal, and then proceeded to give effect to them. They had done so although the process before them (judicial review) did not permit that course. On the other hand, Mr Guo and Ms Pan supported the decision of the Full Court. They argued that the decision and reasons of the Tribunal warranted the orders made. They confined their arguments, in this respect, to grounds of review provided in the Administrative Decisions (Judicial Review) Act. They made no separate reference to their primary application which had included a claim for relief based on the Judiciary Act. I shall adopt the same approach.
The respondents sought to repel the attack by the Minister on the ground that various errors (not all of them found below) could be demonstrated in what the Tribunal had done. They were permitted to do this although, strictly, the record was not put in order to allow an attempt to uphold the orders of the Full Court upon grounds different from those sustained by the judges' reasoning.
Thus, it was first argued that the Tribunal had taken into account irrelevant considerations [96] , such as the terms of Articles 176 and 177 of the Criminal Law of the People's Republic of China and the meaning ascribed to the requirement for more severe punishment (when the circumstances are serious). There is no merit in this ground. The findings of fact were open to the Tribunal, as was correctly recognised by the Federal Court. Nor is there merit in the suggested failure of the Tribunal to take into account relevant considerations [97] . Under this heading, it was submitted that the Tribunal had failed to consider the disparity between the detention foreshadowed by the Chinese official (six days) and the detention actually suffered by Mr Guo in 1992 (twenty-eight days). This argument is also meritless. The differential was clearly considered by the Tribunal. In its reasons it was not obliged to deal expressly with every item of evidence. It was open to the Tribunal to conclude, as a matter of fact, either that the difference in the case of Mr Guo was warranted by his past criminal record or that it was not sufficiently significant to support the argument that there was a real risk of persecution for his political opinion.
There is even less foundation for the next argument which was that there was no evidence at all to justify the Tribunal's decision [98] . Mr Guo and Ms Pan rested their fear of persecution upon the combined effects of the suggested demonstrations of political dissent (evidenced in the repeated departures from China), the protest at Port Hedland and the attitude adopted by them to the "one-child policy". Given that the Tribunal found adversely to the credit both of Mr Guo and Ms Pan, it was necessarily driven to weighing the other (objective) material before it. That material told heavily against the "real chance" which Mr Guo and Ms Pan asked the Tribunal to hypothesise. The relatively short detention of Mr Guo after his first return (twenty-eight days) and the very short detention of Ms Pan (five days) did not bespeak an opinion on the part of the Chinese authorities concerning their supposed political significance. Furthermore, the objective evidence of what the Family Planning officials had done, as accepted by the Tribunal, did not suggest, on that ground either, that their breach of the "one-child policy" was, or was seen to be, politically motivated.
It is in this way that the case is brought back to the two grounds which the Federal Court analysed most closely. These were the suggestion that the Tribunal's exercise of power was so unreasonable that no reasonable person could have so exercised it [99] and the argument that it evidenced error of law in its approach [100] . The ground of Wednesbury unreasonableness was adequately dealt with by Sackville J [101] . I cannot improve on his Honour's reasons for rejecting it. None of the judges in the Full Court rested their conclusion on that ground. Even those judges who took the broader view did not seek to sustain their decision upon that basis [102] .
In this way, both on the Minister's appeal and the respondents' defence of the Full Court's decision, the matter eventually comes down to the question whether an error of law is shown in the approach of the Tribunal to the performance of its statutory function [103] . This was the way that Beaumont J approached the matter. He upheld the contention.
The applicable principles are not in doubt. The question whether facts, as accepted by a primary decision-maker, fall within or outside a statutory provision is itself a question of law [104] . Whether a primary decision-maker has accurately considered and applied the relevant law may also present a question of law. If it appears that a donee of statutory powers is labouring under a misapprehension as to the requirements attaching to their exercise, it is the reality, and not the appearances, which matters. In Sinclair v Maryborough Mining Warden [105] , Gibbs J explained:
[It] appears from these reasons that in making his recommendation the warden was labouring under a misconception as to his duty, so that he did not apply himself to all the matters that the regulations required him to consider. There was thus a purported but not a real exercise of his functions and he has failed to perform his duty according to law. Such questions are usually expressed in terms of whether the decision-maker "really" or "genuinely" or "truly" considered the matters essential to the exercise of the power invoked. But such adverbs add little or nothing to the legal requirement unless they help to emphasise that the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief. 1. Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 392-394. 2. (1975) 132 CLR 473 at 483. See also at 480, per Barwick CJ; see also Minister v Teoh (1995) 57 FCR 194 at 200.
In the present case, Beaumont J asked himself "Did the Tribunal really address the correct legal question?" [106] He considered that the issue was "a difficult one" [107] . He concluded [108] :
[To] adopt the language used in Sinclair, although the Tribunal may have purported to address this question, it did not really do so, with the consequence, I think, that there was a constructive failure by the Tribunal to exercise its jurisdiction. 1. Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 165. 2. Guo Wei Rong (1996) 64 FCR 151 at 165. 3. Guo Wei Rong (1996) 64 FCR 151 at 165.
It is necessary to scrutinise the three reasons stated by Beaumont J. First, his Honour makes the point, undoubtedly correct, that the mere fact that the sentence imposed on Mr Guo after his first return to China was within "an expected range" for his offence, would not exclude its possible political significance. Beaumont J reached this conclusion by reference to the decisions of courts of high authority [109] , as well as of the Handbook of Procedures and Criteria for Determining Refugee Status (the Handbook) of the United Nations High Commissioner for Refugees and other texts [110] . He explained the need to avoid "excessive formalism" in the assessment of actions which, in intolerant environments, may be interpreted as implying an adverse political opinion. I agree with his Honour's remarks in this regard. Intolerance and autocracy can be irrational. Even democracy is not immune from such errors. The fact that a person was dealt with lightly in the past does not guarantee the same treatment in the future, particularly after a repeated demonstration of nuisance status. A healthy injection of doubt must therefore be introduced. The places from which refugees normally flee rarely have legal or administrative systems that permit the rational and consistent application of logic which our courts like to boast of but sometimes themselves fail to provide. To say this is not to intrude into assessment of the merits or to impose a conclusion about likely events in any particular country. It is simply to accept the inherent unpredictability of the future and the special difficulties which arise in assessing accurately the possible course of political or other oppression in the kinds of countries from which refugees typically come.
However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for reasons of political opinion. It remains for the Minister in the first place to be "satisfied" (the Act, s 22AA) and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.
With respect, there is no basis in the reasons of the Tribunal to support a conclusion that it failed to address the correct question. It referred to the Handbook as a guide to its decision-making but no more [111] . It indicated an awareness of Canadian and United States jurisprudence [112] . It was obviously troubled by its conclusion as to the lack of credibility of Mr Guo and Ms Pan. It therefore turned to such objective material as was available to assess whether their fear, which was accepted, was based upon a real chance of their being persecuted for reasons of political opinion if they were returned to China. The matter was one for judgment and assessment. It thus involved a classical problem of fact-finding and decision making. The speculative consideration of what might occur to the respondents, if once again they were returned to China, was one necessitating conclusions of fact on the part of the Tribunal and speculation as to the future resting on those conclusions. So long as the Tribunal considered the correct legal questions, no lawful basis could be established for the intervention of the Federal Court simply because that Court disagreed with the Tribunal's factual conclusions. [113]
Secondly, it may be accepted that Mr Guo's transportation of Vietnamese nationals to Hong Kong was "implicitly political". So was his own unsuccessful attempt to go there. However, it cannot be suggested that the Tribunal overlooked that conduct. It is described at some length in the Tribunal's reasons [114] . The Tribunal was entitled to weigh the objective evidence that, after these incidents, Mr Guo returned to China, established, and then expanded, his fishing business and could be viewed as having towed the vessel containing the departees to Hong Kong for profit rather than as a political protest.
Thirdly, I cannot agree that the Tribunal's repeated references to, and consideration of, the sentence imposed upon Mr Guo on his return to China in October 1992 represented an undue diversion from the real issue before it. It was relevant for the Tribunal to judge whether Mr Guo was dealt with for criminal offences, as distinct from acts of political dissent. It was appropriate (and certainly open) to the Tribunal, evaluating the "real chance" of future persecution, to take into account the objective way in which it found Mr Guo had been treated on his last return to China. When it was decided that this involved a total detention of only twenty-eight days, it scarcely justified Mr Guo's claim that he was already a marked man because of his known political opinions. When measured against the provisions of the Criminal Law of the People's Republic of China (Arts 176, 177, the reports of Amnesty International on political cases and the admission of Mr Guo's repeated offences, the conclusion on the length of his detention was arguably a very useful yardstick for the Tribunal in measuring official Chinese attitudes to Mr Guo in the past. From that conclusion, so long as the Tribunal remained alert to the perils of predicting the future from the past, not least in cases of this kind, it was both rational and reasonable to draw inferences as to how he might be treated if once again he were returned to China.
The evaluation of such matters was entirely factual in character. It was therefore reserved by law to the Tribunal. I see nothing in the Tribunal's approach as evidencing a constructive failure to exercise its jurisdiction. Once it accepted (as it did) that Mr Guo (and Ms Pan) had a real fear of returning to China, the Tribunal was obliged to characterise this fear. It did so. It attributed the fear to the prospect of further criminal punishment of repeat offenders not to a "real chance" of their being persecuted for reasons of political opinion. The latter, alone, would attract to this case the protection of the Convention by virtue of the Act.
I differ with hesitation from the conclusion which Beaumont J reached (with the concurrence of Foster J) on this point. I acknowledge that it turns upon the evaluation of the approach "really" taken by the Tribunal. Ordinarily, such matters should conclude in the Full Court of the Federal Court. It would certainly have been possible for the Tribunal's reasons to have indicated more precisely that it had kept in mind, to the end, the cumulation of Mr Guo's various activities and the fact that "political opinion" may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society. However, when the substance of the Tribunal's approach and reasons are scrutinised, it is clear enough that the claims of Mr Guo and Ms Pan were considered as the Act required. This being so, complaints about the Tribunal's conclusions are complaints of factual and not of legal error. They are therefore not susceptible to correction (at least in a case such as the present) by judicial review.
The foregoing conclusion is sufficient to dispose of the appeals to this Court. However, like the majority, I consider that it is appropriate to say something briefly about the Minister's alternative complaint concerning the relief which the Full Court [115] provided. Upon this matter the dissenting opinion of Beaumont J was clearly correct. Had legal error of the kind found been established, the proper course would have been to remit the proceedings for redetermination by the Tribunal consistently with the Federal Court's elucidation of the law. The provision of a declaration such as the Full Court felt entitled to make was, at the least, not appropriate.
The powers of the Federal Court are expressed in very broad terms in the Administrative Decisions (Judicial Review) Act (s 16). It would be undesirable to give the broad mandate there stated a narrow construction. However, it is important to distinguish the procedure of judicial review from that of an appeal where, typically, a court enjoys larger powers. It is for that reason that care must be exercised in applying decisions about the available and appropriate remedy apt to an appeal when the process before the Court is that of judicial review [116] . Whereas on appeal a court will often enjoy the power and responsibility of substituting its decision for that under appeal, judicial review is designed, fundamentally, to uphold the lawfulness, fairness and reasonableness (rationality) of the process under review. It is thus ordinarily an adjunct to, and not a substitution for, the decision of the relevant administrator. This is why, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [117] :
It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. No course would be more likely to undermine the legitimacy and acceptability of judicial review than a usurpation by the courts, where this is not warranted, of the ultimate functions committed by law to the decision-maker. 1. Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 240, per Carr J, distinguishing Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535, Sheppard and Gummow JJ concurring. 2. (1986) 162 CLR 24 at 40.
There may be cases where the width of the court's powers, the discovery of a fundamental flaw in the primary decision and strong arguments of convenience will warrant the making of orders effectively determining the question under review [118] . In those circumstances, it may be open to the court to fashion orders (including by way of declaration of legal right) which effectively give final relief. Naturally enough, courts find it attractive, particularly when urged by both parties, to provide orders which avoid the "awkward, somewhat invidious waste of time and money, to refer the matter back for further consideration" [119] . However, in most circumstances, this should not be done, whatever the urging of the parties [120] . Thus, it should not be done where the statute empowering the court does not afford it a remedy which is applicable or appropriate to bring to conclusion the controversy between the parties. In the present case, there is a real question as to whether the declaration made, following the majority opinion in the Full Court, unsupported by any order to give it effect, would achieve, in law, the apparent objectives which the majority had in mind. Such a declaration should not be made where any residual discretion remains in the primary decision-maker. Nor where, following review, outstanding facts remain to be found which could affect the final decision. Nor should it be made where, on its true construction, the Act conferring power on the primary decision-maker makes it clear that such decision-maker, and it alone, is the recipient of the power to make the decision in question. Thus, in the present case, the primary decision-maker was the Minister who had to be "satisfied" that a person was a refugee [121] . The Tribunal was empowered by the Act to exercise all the powers and discretions conferred by the Act on the person who made the primary decision (s 166BC(1)). By the Act, the Tribunal enjoyed large powers in reaching its satisfaction. It could confirm or vary the decision or set it aside and make a new decision, being one authorised by the Act or regulations (s 166BC(2), (3) and (4)). Where the Act confers such powers on the Minister in the first instance, and the Tribunal on review for error of law, it would require very clear language to authorise a court, on judicial review for error of law, to substitute its decision for that of the recipient of the applicable powers.
It is not necessary to decide whether it could ever be right in cases such as the present to make a declaration of the kind now challenged by the Minister. This is because the appeal must be disposed of on the substantive grounds already upheld. Anything said on the relief question is therefore obiter. However, it is sufficient in my view to say that it was not appropriate for the Federal Court to adopt the course which the majority did. The proper course, legal error having been found, was to return the matter to the Tribunal [122] . In that way, each of the relevant organs of government performs the functions proper to it. The Judicial Branch authoritatively clarifies and declares the law as it applies to the facts found. The Executive Branch, by power vested in it by the Legislature, performs its functions according to the law as so clarified and declared. Neither branch usurps or intrudes upon the functions proper to the other [123] .
The course explained in the foregoing remarks is that which has been observed in the past by this Court [124] . It also appears to be that which is ordinarily observed, properly in my view, by the Federal Court [125] . It is the course which should have been followed by the Full Court in this instance.
It was a term of the grant to the Minister of special leave to appeal, that he should pay the costs of the first respondents whatever the outcome of the appeals. It should be so ordered. During argument, a question arose as to whether the return of the respondents to detention in Australia with a view to their return to China should be postponed, pending the consideration of any fresh application which they might be entitled to make for themselves or their children on the basis of supervening events or new facts. In the light of the statements made to the Court by counsel for the Minister, it is unnecessary for any orders to be made in that regard.
Minister for Immigration & Ethnic Affairs
Guo Wei Rong
High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ Minister for Immigration & Ethnic Affairs v Guo Wei Rong [1997] HCA 22
(1996) 64 FCR 151
(1996) 185 CLR 259
(1989) 169 CLR 379
(1997) 190 CLR 225
(1992) 175 CLR 408
(1993) 177 CLR 564
(1975) 132 CLR 473
(1975) 133 CLR 1
(1986) 161 CLR 10
(1993) 43 FCR 280
(1980) 144 CLR 1
(1996) 186 CLR 389
(1995) 57 FCR 194
(1984) 2 FCR 561
(1975) 132 CLR 535
(1986) 162 CLR 24
(1976) 135 CLR 110
(1989) 167 CLR 637
(1983) 70 FLR 326
(1986) 11 FCR 528