Minister of Immigration & Ethnic Affairs, v CHAN, Y.K. & ors [1988] FCA 373

(15]

He escaped to Macau by walking for one week and swimming for three hours and stayed with relatives. He obtained a Macau ID card with the status of temporary resident, organised by his father in Hong Kong. After 3 months he travelled by ship to Hong Kong as a stowaway.

he remained illegally for some years in Hong Kong until he was deported back to Macau (Since he still held the ID card although expired) after applying for permanent residence in Hong Kong. In Macau he was imprisoned for 15 days and his ID card was confiscated. His father had organised his release and he immediately returned to Hong Kong and stayed there illegally until he came to Australia.

he does not wish to return to China, but if he has to leave Australia he would rather be returned to China than Hong Kong or Macau. In Hong Kong he feels he would be prosecuted for his false Hong Kong ID Card and then sent back to China anyway. He does not expect any trouble in Macau, but just doesn't wish to return there. This is why he previously stated at interview that he escaped directly to Hong Kong from China and not via Macau.

he would prefer, if it was necessary, to return to Taiwan where he would not be imprisoned as he fears if he returns to China.

however, if the Australia Government had a guarantee that he would not be returned to China, then he would go to Macau.

he does not think that the views of the Government in China would have changed enough for him to avoid punishment for his escape or return.

a letter sent to his family in China in 1983 was returned by his relatives showing it had been opened by the authorities, so he ceased corresponding. His sister in China was also questioned by the police as to his whereabouts in 1983. He now only corresponds via his relatives in Hong Kong.

{16] he wished to claim refugee status on the basis of fear of persecution due to his political opinion."

In reaching the conclusion that the exercise of the power was so unreasonable that no reasonable person could have so exercised the power, the primary judge referred particularly to pars 9, 10 and 12 of the statement of reasons furnished by Mr Richardson pursuant to s.13 of the

Judicial Review Act. Those paragraphs read:

"9. I accepted that he may have been discriminated against to a limited degree due to the apparent perception the local authorities had of his family, but I considered that this did not amount to persecution within the terms

of the convention.

I accepted the Committee members' views that while he may be the subject of some attention having escaped from the area where he was assigned in the P.R.C., any such attention would not constitute a basis for a well-founded fear of persecution.
I concluded that the Applicant did not have a well-founded fear of persecution should he be returned to the P.R.C. Accordingly, I determined he was not a refugee within the meaning of the Convention and Protocol."

His Honour continued:

"It may be that the delegate was led to make the decision by reason of his apparent willingness to accept uncritically the views of the members of the Determination of Refugee Status Committee (the DORS Committee). The delegate 'accepted' (paragraph 10) the views of the DORS Committee members that the first named applicant [Mr Chan] may be the subject of some attention in the People's Republic of China for his escape from the area to which he had been 'assigned'; the

last word may be compared with the stronger words - 'exiled' and ''internal exile' - which had been used earlier, in paragraph 4 (item [5]) and paragraph 8 respectively. The delegate's statement (in paragraph 10) that the first named applicant 'may be the subject of some attention having escaped from the area' (emphasis added) is difficult to reconcile with the earlier passage (paragraph 4, item [8]) that he had:

'tried to escape on three occasions and received increasing detention periods when caught on each occasion ranging from 3 to 7 months. He was warned that a further escape attempt would yield him at least two years detention...'."

His Honour noted that the delegate had accepted (par.9) that Mr Chan's treatment may have been "due to the apparent perception the local authorities had of his family". He also drew attention to the reference in par.4, item [2] to Mr Chan's father's "former associations with pre-cultural revolution identities" and commented that those words appeared "pallid when compared with what was 'accepted' by Mr T. Griffiths (the Minister's then delegate) in his statement of reasons, dated 16 October 1985". After quoting

extracts from Mr Griffiths' statement of reasons, his Honour

said: .

"In any event, the present delegate accepted that 'his father's former associations .... resulted in his family being branded as an "anti

revolutionary" family'."

The words there quoted from Mr Richardson's statement of

reasons were also taken from par.4, item [2].

The judgment proceeds:

"As to whether the first named applicant had been 'persecuted', the present delegate accepted that there 'may have been' discrimination to a 'limited degree' but considered that this did 'not amount to persecution' (paragraph 9). That statement may be contrasted with the finding of fact, made by Mr Griffiths, as the Minister's delegate on 16 October 1985, that at an earlier time a DORS Committee had:

'accepted that the Applicant had been

persecuted during the Cultural

Revolution'."

His Honour accepted that the DORS Committee did not have before it any "detailed advice and information .... concerning the general situation prevailing in China ...." and concluded that, in the absence of such material, "the only significant material before the delegate dealing with the question whether the first named applicant was likely to be persecuted should he be returned to the People's Republic of China was the material supplied by the first named applicant". His Honour then determined that Mr Richardson's conclusion was "manifestly unreasonable".

Thus, in reaching his conclusion, the primary judge placed reliance upon perceived inconsistencies within Mr Richardson's statement of reasons and between that statement and the statement earlier prepared by Mr Griffiths. As to the suggested internal inconsistency in Mr Richardson's statement, a cautionary note must be sounded about drawing any conclusion from differences in language between par.4

and other paragraphs of Mr Richardson's statement. The

purpose which par.4 of the statement serves is to summarise the claims which Mr Chan had advanced at the interview with the officer of the Department of Immigration and Ethnic Affairs on 28 June 1986 whereas the purpose of the other paragraphs is to set out Mr Richardson's views. Further, we do not regard it as of particular significance that Mr Richardson, when noting (par.8) the absence of any credible explanation by Mr Chan to support a claim that "his internal exile and periods of detention were related to any political activities on his behalf" uses the expression "internal exile" whereas in par.10 he refers to Mr Chan having been

"assigned" to a particular area of The People's Republic of

China.

The inconsistency between the respective statements of Mr Richardson and Mr Griffiths arises in relation to the characterisation of the treatment that Mr Chan had received prior to his departure from China in 1974. Mr Griffiths took the view that it amounted to persecution whereas Mr Richardson was not prepared to treat it as answering that description. But, to note the different conclusion which the two decision-makers reached on that question, even assuming they had before them identical material, does not require the conclusion that one or other decision could not reasonably be reached. The question is clearly one of evaluation or judgment on which the minds of reasonable men may differ. Two further comments may be made. First, the ultimate question before the decision-makers was to be

judged in terms of the situation prevailing in The People's

Republic of China at the time the matter was being considered, not in terms of the situation that obtained there in or prior to 1974. Secondly, the question with which each decision-maker was faced was whether Mr Chan had a well-founded fear that, if he were to return to China, he

would be subjected to what may properly be described as persecution of the kind referred to in the Convention as amended by the Protocol. In answering that question there was no disagreement. Both concluded that Mr Chan was not

entitled to refugee status.

The circumstances in which the exercise of a discretionary power will be held to have been so unreasonable that no reasonable person could have so exercised the power have been referred to in a number of authorities. The language in which the test is expressed varies but, in essence, they are to the same effect. Thus, it has been said that the decision will be set aside if it cannot be justified on any reasonable ground (Parramatta

City Council v. Pestell (1972) 128 C.L.R. 305 per Menzies J.

at p.323); if, looked at objectively, it is so devoid of any plausible justification that no reasonable body of persons could have reached it (Bromley London Borough Council v. Greater London Council [1983] A.C. 768 at p.821); if it is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it

(Council of Civil Service Unions v. Minister for the Civil

Service [1985] A.c. 374 at p.410).

The question then is whether the decision made by Mr Richardson that Mr Chan was not entitled to refugee status because, in Mr Richardson's judgment, he did not have a well-founded fear of persecution should he be returned to The People's Republic of China was, having regard to the material before him, one that cannot be justified on any reasonable ground. The question is not, as the primary judge acknowledged, whether the Court would, on that material, have reached the same conclusion: Minister for

Aboriginal Affairs v. Peko-Wallsend Ltd. (1986) 162 C.L.R.

24 per Mason J. at pp.40-41. It may also be noted that there was, in this case, no suggestion that there was material other than that which was before Mr Richardson to

which he should have had regard in reaching his decision.

The claim made on Mr Chan's behalf, expressed in the language of the Convention as amended by the Protocol, is that he is outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of political opinion and is, owing to such fear, unwilling to avail himself of the protection of that country. It 1s submitted that the decision to deny the claim is unreasonable because of four matters. The first is the warning given to him in 1973 that a further departure, without authority, from the region within which he had been required to remain, he having already failed to comply with that requirement on two previous occasions, would "yield him at least two years' detention in another area of China" (see

Mr Richardson's statement, par.4, item [8]). The second is

an apprehension that he might receive an additional period of detention for having, in 1974, departed from The People's Republic of China without permission. The third is his family background, particularly the circumstance that his father "was a member of the Kuomintang and had served in the Nationalist air force" and had "fled to Hong Kong in 1950 following the communist takeover", this statement being recorded by Mr Griffiths as having been made by Mr Chan at the interview on 15 December 1982. The fourth is that in 1983 the authorities in The People's Republic intercepted and opened a letter which he had written to a member of his

family in that country.

To be weighed against those matters, assuming that the decision-maker accepted them all, are other matters which the decision-maker was clearly entitled to take into account. One matter of considerable significance is that at neither of the interviews with officers of the Department of Immigration and Ethnic Affairs did Mr Chan advance any basis for a belief that, if he now returned to China, he would be punished for having failed to comply with the requirement imposed upon him prior to 1974 that he remain in a designated area of that country or for having departed from China without permission. The decision-maker was entitled to take the view that the imposition of punishment for that conduct on Mr Chan's part would not now be likely, given the length of time since that conduct occurred and the substantial changes in the political situation in that

country since Mr Chan left. Another significant matter is

that Mr Chan gave no indication that his political beliefs are contrary to those of the present regime in The People's Republic of China. Indeed, he did not articulate any political issue upon which he differed from the authorities now in power there and he disavowed any involvement, while in Australia, in any activities which that regime might regard as antagonistic to it or to its interests. Yet

another relevant and significant matter is that he expressly acknowledged that there had been no harrassment of those

members of his family who remain in China.

Taking all these matters into consideration, we are of opinion that it cannot be said that the decision at which Mr Richardson arrived on the material before him is a decision that cannot be justified on any reasonable basis or a decision so devoid of any plausible justification that no reasonable person could have reached it. It follows that, in our opinion, the challenge to the legality of his

decision must fail.

Orders

For the reasons set out above, we make the

following orders:

A. Appeal No. V G 487 of 1987 -

The appeal be allowed.
The judgment given on 4 December 1987 be set aside and in lieu thereof it be ordered that the application be dismissed with costs.
The respondents pay to the appellant his costs of the

appeal. B. Appeal No. V G 488 of 1987 -

the appeal be allowed.
The judgment given on 4 December 1987 be set aside and in lieu thereof it be ordered that the application be dismissed with

costs.

The respondents pay to the appellant his costs of the

appeal.

I certify that this and the preceding 22 pages are a true copy of the Reasons for Judgment herein of the Court.

Dated: 18 July 1988

Counsel for the appellant : Mr R.R. Tracey Solicitors for the appellant : Australian Government Solicitor

Counsel for the respondents : Mr B.A. Keon-Cohen Solicitor for the respondents: Mr J.K. Ketelhohn

Date of hearing : 22 June 1988

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Legislation Cited (3)