What is in issue in the appeal, however, is the principal matter subsumed by his Honour under the heading "Error of Law". The submission was summarised by his Honour in the following paragraph:
"Counsel for the applicant claims that the delegates fell into errors of law in relation to the decisions pertaining to a number of group members. He says that the delegates rightly cast upon the applicants for refugee status the onus of demonstrating that they had a well-founded fear of persecution but erred in requiring them to establish this fact beyond reasonable doubt or on the balance of probabilities."
Before his Honour, the matter was argued only in relation to 12 of the group members. But, in the early stages of the argument before us, counsel for the appellant said that he had made the same argument in relation to all the group members including Mr Wu. Counsel referred to the fact that his Honour had said that the matter was argued in relation to 12 group members. Counsel said that he would refer to each of them but added that there was a deal of repetition in the complaints made by counsel before his Honour. He said that the argument was not repeated before his Honour in respect of each member but merely adopted for later group members. He said that he would take the same course. He further said that he had intended to make the argument in relation to all the people including Mr Wu and that it had been pleaded with respect to them all. He submitted that it was open to him now to raise the other cases even if they were not argued before his Honour
and that it would be a strange result if 12 appellants succeeded and six did not. Counsel added:
"So far as Mr Wu goes, his Honour notes in the first judgment that we abandoned the definition point, or did not press it before him. Your Honours will remember that the procedure was that the first hearing was some general questions of law and matters relating particularly to Mr Wu. But that did not work procedurally, terribly well, because by the time we came to the second hearing, there were a number of general points that we developed between the two hearings. And I think it is right to say that the parties approached the second hearing on the basis that it would be unfair to Mr Wu to leave him out of the benefit of any general points.
So I submit that we are entitled to raise now this question of error of law in relation to all of the appellants or all the members of the group who now are represented."
Earlier counsel had said that counsel for the Minister and his instructing solicitor were "looking at the transcript" before Wilcox J. By this we understood him to be saying that they were considering whether they opposed reliance on the point by Mr Wu and group members other than those referred to in his Honour's judgment.
Towards the conclusion of his submissions counsel for the appellant mentioned some additional points not falling within the principal matter upon which he relied. In relation to these matters, the following discussion ensued:
"SHEPPARD J: Mr Catterns, how do we handle this, bearing in mind it is a Part IVA representative action. Does that mean in relation to that last applicant there are special considerations which we have to take into account in respect of him. Does he become, in effect, a Part C matter for treatment, or what do we do?
MR CATTERNS: Well, only if your Honours were against me on the general point. If your Honours are with me on the general point, that this approach of weighing up evidence is not the right one, then this would fall on the same basis, because I submit it suffers from the same vice. But, I suppose it is conceivable that, as your Honours go through them, for example in the case of the recidivist, if your Honours were against me generally only there may still be one or two of the applicants who - - -
SHEPPARD J: Well, how are we going to cope with it. Have we really got to analyse every one of these for ourselves. I am not suggesting we should do it in court, but how do - what is our approach when we write a judgment.
MR CATTERNS: Your Honour - I mean, I am anxious to give the court any - whatever assistance I can. In the end, I am putting this on a general basis, but I would not want to give up any individuals coming out of the ruck.
SHEPPARD J: No, but it will be hard for us to find individual grounds if we should be against you on the main ground unless we have some assistance."
The discussion which followed these remarks was inconclusive and the assistance which was referred to was not forthcoming.
In the course of his submissions, counsel for the Minister made strong objection to the foreshadowed reliance by counsel for the appellant on grounds particularly associated with some of the individual applicants. In the course of his remarks he referred to the matters decided by Wilcox J in relation to this branch of the case as being part of "the group argument". That was said to be so, notwithstanding the particular attention paid to the individual cases of each of the twelve members of the class whose cases were dealt with by Wilcox J. The matter was left on the basis that, if material was provided to counsel for the Minister which made it impossible for him to deal with this matter at this hearing, the matter would need to be adjourned. The matter was left on that footing.
From this discussion we gleaned that the Minister had no objection to Mr Wu and all the group members (not just the twelve dealt with by his Honour) relying on the general grounds. The objection was to reliance by some of the group members on matters relating to them alone. Accordingly, we propose to proceed upon the assumption that Mr Wu himself and each of the group members may rely on the general grounds.
The appeal was heard on 19 October 1994 when we reserved our decision. On 20 October 1994 there was delivered to us a document described as a "summary analysis" which had been prepared by counsel for the appellant. The analysis dealt with some particular circumstances dealt with in oral argument in relation to seven of the group members. Reference was made to the cases of nine others but under a column headed "Individual Circumstances" the word "nil" appeared indicating that there were no particular circumstances relied upon in relation to these cases. The analysis thus dealt with sixteen cases altogether, not eighteen. We have not understood the reason for this discrepancy.
In response to this document, counsel for the Minister lodged supplementary submissions on 24 October 1994. These dealt with a number of general matters and with the cases of eight of the group members, not eighteen and not seven. Again we cannot account for this discrepancy.
At the time we reserved our decision, the Court was aware that a decision in another immigration matter heard by a differently constituted Full Court might bear on the outcome of this case. For that reason, it decided to await the publication of the Court's reasons in the other case. That case was Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223. The Court in that matter (Black CJ, Lockhart and Sheppard JJ) published reasons for its judgment on 22 December 1994.
In the new year counsel in the present case were sent copies of the reasons for judgment in Mok and asked whether they wished to make submissions about the effect of it in relation to the point now under consideration. A similar point had been dealt with in Mok; see 127 ALR at 250-254. In response to this invitation, counsel for the Minister lodged further supplementary submissions on 6 March 1995. We have had no submissions from counsel for the appellant in relation to the effect, if any, of the decision in Mok on the case to be decided here. We understand that the reasons for the absence of further submissions from counsel for the appellant
stem from the fact that both counsel and solicitor for the appellant were retained in an honorary capacity.
In Mok there is an analysis of the decision of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; see 127 ALR at 250-252. Reference is then made to the decision of the delegate in the Mok case. Sheppard J (with whom the other members of the court agreed) then said (at 252-3):
"I find it difficult to accommodate the use of the expression 'I gave greater weight to...' to the assessment of a real chance that a person may be persecuted on return to another country. The chance spoken of is a chance that is less than 50% and one which may be as low as 10%. That is the purport of the decision in Chan's case. The language Mr Paterson has used is the language of a decision-maker deciding something upon the balance of probabilities. So often, for example, in cases involving personal injury, a court or tribunal has to make up its mind whether a particular medical condition is likely to continue indefinitely or to clear up. Eventually the court or tribunal expresses a preference for the evidence of one doctor to that of another. In some cases it will thereafter exclude that one and proceed upon the basis of the preferred one. In other cases it may say that, although the probabilities are that the position will be as predicted by one doctor, it cannot be denied that there is a possibility that the view of the other doctor will after all be the correct one. The court will then proceed to assess damages, not on the basis that the condition is likely to recur, but on the basis that it is possible that it will.
The phrase 'gave greater weight to' is not infrequently found in the reasons for decision of administrative decision-makers. It seems likely that its use has stemmed from remarks made by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299. His Honour said (at CLR 41) that it was generally for the decision-maker and not for the court to determine the appropriate weight to be given to the matters required to be taken into account in exercising the statutory power. But Mason J was not there speaking of a case which required the assessment of 'a real chance'. He was dealing with the more usual situation where the decision-maker was required to decide or reach conclusions on particular facts or matters. In those cases the use of the phrase is apt. But this is not such a case.
In the present case, it seems to me that either there was nothing to be said for Dr Shoesmith's view or, although there was something to be said for it, the predictions of the Department of Foreign Affairs were more likely to be correct. But that did not mean that Dr Shoesmith's report should have been dismissed out of hand. It was a factor still to be taken into account not as a probability but as a possibility and thus as providing, perhaps, a basis for saying that there was a real chance of persecution in the sense in which that expression has been explained by the judges in Chan. In my opinion this is enough to infect Mr Paterson's reasons with error."
After referring to some other matters, it was said that there was not to be found in the reasons of the delegate any statements which suggested that he turned his mind to the right question, namely, was there a real chance of persecution if Ms Mok were returned to Cambodia; see at 254.
Each case has to be considered in relation to its own factual setting. The court in Mok regarded the phrase "I gave greater weight to..." and similar phrases as indicating that the delegate had approached the matter erroneously. A consideration of the reasons for the decision as a whole suggested to the court that the wrong test had been applied because the delegate appeared to be approaching the matter as if it were a case of being satisfied upon the balance of probabilities that there was, objectively speaking, a well-founded fear of persecution. Put another way the Court considered that the delegate instead of assessing whether or not the subjective fear of persecution which the applicant had was well-founded, had applied a test which required satisfaction at too high a standard.
Notwithstanding the use in the present case of phraseology similar to that used in Mok, we need ourselves to look at the reasons for decision in each of the cases to be considered. This may mean that we will eventually need to look at each of the 18 cases, including the case of Mr Wu himself. But it seems to us that, if we indicate our reasons in relation to three of the 18 cases, these should give the parties sufficient guidance to make it likely that they will agree on the outcome of the other 15.
The first of the cases we consider is that of the appellant himself, Wu Shan Liang. The decision refusing him refugee status was dated 16 June 1993. Paragraph 3 of the reasons for decision said that the appellant claimed that, if returned to China, he would be sent to a labour camp for re-education. He claimed to have heard of people who had departed from a Chinese town in the 1980s. He said that they were sought and some were gaoled; others were shot. During his interview he said that he was afraid to go back to China as the sentence for illegal departure was 5 to 10 years; he claimed that in the 1970s a person who had departed illegally for Vietnam was gaoled for 7 years; and he knew that the penalty for illegal departure was very severe involving a gaol sentence and beating. He also claimed that his "ID card" did not allow him to work in another province. He claimed to have been given "an imputed political profile" because he was photographed and fingerprinted and gave personal details in Indonesia. Furthermore, media attention was given to his group in Indonesia and in Australia. There was reference to certain other claims and to some documentation. Paragraphs 11, 12 and 13 of the reasons were as follows:
"11.The applicant was unable to easily and clearly articulate his 'claim' during the interview. The primary Delegate's decision was released on 1 October 1992, one day before the Social Welfare Report was received. The applicant believes that his position was not understood by the Delegate.
12. The local official, Wong Ting Fong, as chief of 'The Street', the local militia and hired thugs, had taken it upon himself to label the applicant's father as a 'counter revolutionary' and the family generally as being of 'bad character', and 'rightist'. The discrimination which 'the Street' had enforced included beatings, verbal and physical harassment, intimidation, 'Coventry treatment' whereby the family was isolated and subjected to ridicule and generally treated as the lowest of the low outcasts.
13. For a period of eleven years the applicant was unable to secure any regular work and had failed in his attempt to join the PLA due to his 'bad family'. The only spasmodic employment the applicant was able to achieve was casual work unloading brick trucks. He and other family members were able to establish a small hawker stall selling hosiery, shoes and leather goods, earning 80 Yuan per month (A.$20). Due to chronic unemployment and harassment which he had endured for over a decade, Mr Wu fled China."
Paragraph 18 of the reasons said in part:
"18.The applicant believes he will be subjected to both formal administrative procedures, particularly 'Re-education through Labour' of an indefinite term with the attendant targeting under the 'Measures of Management procedures for focusing upon key elements of the population', as outlined in the Dutton papers. The applicant believes such measures taken cumulatively, amount to persecution within the meaning of the Convention as explained in the UNHCR Handbook, para 53."
The reference to the Dutton papers is a reference to a paper by Dr Michael Dutton entitled "Policing the People" and to a record of discussion with Dr Dutton dated 11 September 1992, the discussion being referred to as "The Household Registration System in China".
Further claims made on behalf of the appellant are to be found in paras 19 and 20 of the reasons which were as follows:
"19.The applicant and members of his family suffered severe physical punishment due to the counter-revolutionary status of Mr Wu's father, who spent seven years in a labour camp and died subsequently as a result of abuse suffered following his release from prison. The stigma associated with the status of the father has totally affected all members of the family. Mr Wu was so traumatised by his failure to obtain regular work or consent for relocation that he ultimately declined to even seek the opportunity.
20. At his interview, Mr Wu had extreme difficulty in articulating his claim, due to psychological trauma as is evidenced in the submission which was lodged on his behalf following the interview and before the decision. An independent assessment by a Social Worker confirmed the trauma. Since arriving in Australia and being given psychological assistance through counselling, the whole demeanour of Mr Wu changed for the positive but a return to the depths of traumatic depression is reasonably to be anticipated in the event Mr Wu is forced to return to China, owing to his unshakeable belief that the categorisation of 'counter-revolutionary' will again be applied to him by the local PSB with the attendant consequences of sentencing to a labour camp."