Wu Shan Liang v. Minister for Immigration and Ethnic Affairs

FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SHEPPARD, LEE AND CARR JJ

HRNG

PERTH, 10 October 1994

DATE 23:6:1995

ADD 7:7:1995

Counsel for the Appellant: Mr D.K. Catterns, QC

Solicitors for the Appellant: Dwyer Durack

Counsel for the Respondent: Mr C.J. Pullin, QC and Mr N.J. Williams

Solicitors for the Respondent: Australian Government Solicitor

ORDER

JUDGE1: SHEPPARD, LEE AND CARR JJ

Originally this was an application for leave to appeal and, if leave were granted, an appeal from judgments of a Judge of this Court (Wilcox J) delivered on 23 February 1994 and 17 June 1994. Leave to appeal was necessary because the appeal was filed out of time. Two applications were before his Honour, one made in matter No. NG848 of 1992 and the other in matter No. NG501 of 1993. Both proceedings were representative proceedings brought pursuant to Part IVA of the Federal Court of Australia Act 1976.

2. The orders made by Wilcox J dismissed the appellant's application for an order of review of a decision of the respondent not to recognise the appellant (and those whom he represented) as refugees. The decision followed a review by the Refugee Status Review Committee ("the Review Committee") of an earlier, primary decision not to recognise them as refugees.

3. When the hearing before us commenced, counsel for the appellant said that there was to be no challenge to his Honour's orders in relation to application No. NG848 of 1992. It followed that the application for leave to appeal against that decision was to be dismissed. Counsel for the respondent ("the Minister") did not oppose leave being granted to appeal in respect of the orders made in matter No. NG501 of 1993. The matter then proceeded as an appeal from the orders made in that matter.

4.The following factual background is taken largely from the learned trial judge's narrative in his Honour's reasons for judgment. The appellant Wu Shan Liang ("Mr Wu") was one of a group of 68 people, apparently all nationals of the Peoples' Republic of China ("PRC"), who left Guangxi Province, in southern China, on or about 27 July 1992 in a boat subsequently code-named "Labrador" by Australian immigration officers. The "Labrador" reached Indonesia on about 16 August 1992 and remained in Jakarta for a few days.

5. On about 21 August 1992 the "Labrador" left Indonesia and arrived at Christmas Island two days later. On 25 August 1992 all the people in the boat (passengers and crew) were flown to Port Hedland, Western Australia, where they were detained and interviewed by officers of the Department of Immigration, Local Government and Ethnic Affairs ("the Department"). All 68 people indicated that they wished to claim refugee status and remain in Australia.

6. The Department arranged for the making of speedy decisions, at primary level, of these refugee claims. A special team of officers was assembled and flown to Port Hedland. This team was led by James Gerard O'Callaghan, then Director in the Determination of Refugee Status Operations Branch ("DORS") in the Onshore Refugee Division of the Department. The team contained seven officers who had been appointed as delegates of the Minister for the purpose of determining claims for recognition as a refugee.

7. In addition to assembling its own team, the Department supplied the funds necessary to enable an independent body, Australian Lawyers for Refugees Inc ("ALRI"), to provide legal assistance to the refugee applicants. The ALRI sent a team to Port Hedland comprising six lawyers, led by their co-ordinator Michael Kennedy, with support staff and six interpreters.

8. On Monday 14 September 1992 detailed interviews commenced (only three weeks after the "Labrador" reached Christmas Island). The procedure adopted in relation to the "Labrador" claimants was for each applicant to complete a form consisting of only one sheet of paper and printed in English, Mandarin and the "simplified Chinese" script used in southern China. This form set out the definition of a refugee contained in the 1951 United Nations Convention Relating to the Status of Refugees, as amended by the 1967 Protocol, and only required applicants to state whether they claimed to fall within that definition. The idea was that the matters relied on by applicants in support of the claim would be elicited during oral interviews. All the people taken from the "Labrador" signed this form, thereby claiming refugee status.

9. Detailed oral interviews commenced on 14 September 1992 and extended over two weeks. The routine adopted was that each delegate would interview one applicant each day, Monday to Saturday inclusive. Some interviews commenced in the morning, some after lunch. A member of the ALRI team attended each interview, along with a Departmental interpreter and an ALRI interpreter. The ALRI lawyer was free to advise the applicant but not to ask questions. Mr O'Callaghan's wish was that each applicant should tell his/her own story in his/her own words. The interviews were tape recorded. Each interview occupied some hours, the average length being four to five hours. Towards the end of the interview the delegate withdrew from the interview room, with the Departmental interpreter, leaving the applicant alone with the ALRI lawyer and interpreter for about 15 minutes. This was to enable the applicant to consult the lawyer and the lawyer to check that the applicant had stated all relevant matters and to obtain instructions about any inadequately explained matters. If the lawyer felt it desirable for the delegate to ask further questions about any particular topic or topics, the lawyer gave a list of questions to the delegate on resumption of the interview and the delegate worked through that list. It was standard procedure at each interview for the delegate to inform the applicant that no decision would be reached for at least three days after the interview and to invite the applicant to submit within that time any further material that he/she wished to be taken into account. Many applicants took advantage of this invitation. Sometimes the material was submitted more than three days after the interview. Mr O'Callaghan said that, nonetheless, it was accepted and read by the delegate before making a decision.

10. Mr O'Callaghan said that he took to Port Hedland a "standard paragraph" intended to deal with a claim by an applicant that, if returned to China, he/she would be punished for having illegally departed the country. He did this because he anticipated that many applicants would make such a claim, as indeed most did. After the interviews commenced, he found additional claims being made. He said "essentially there were a very small number of claims expressed in different ways".

11. The ALRI submitted a list of common claims, referable to all applicants, with supporting documents. The documents were voluminous. Mr Callaghan thought it would be more efficient "to address common claims with common responses". Accordingly he decided to prepare additional standard paragraphs for use by the delegates. Mr O'Callaghan said that he worked on this task during the first week of interviews with Ms Janice Nand, who was a Departmental legal officer, and a member of the ALRI legal team.

12. The interviews were concluded on Saturday 26 September 1992. On that day, four decisions were provided by delegates to ALRI for transmission to the affected applicants. During the following week, the remaining 64 decisions were provided. Three of the 68 applicants were recognised as refugees. They did not include any of those on whose behalf this appeal is brought.

13. On 12 October 1992, the ALRI lodged applications for review by the Review Committee of each of the 65 refusals. On 13 November 1992, Mr Wu's solicitors filed application No. NG848 of 1992 instituting the first of the two proceedings. The application contained a schedule listing as group members the other 64 persons whose applications had been refused. It sought review of the primary decisions made in respect of the representative party and each group member.

14. The application came before Davies J on 27 November 1992. Almost immediately, however, some of the refused applicants decided to return voluntarily to China. In the result, 29 refugee applicants returned voluntarily to China and 17 applicants obtained a favourable decision on review, following consideration of their cases by RSRC. These 46 people filed notices opting out of action No. NG848 of 1992, leaving 18 group members in addition to Mr Wu.

15. The review decisions were notified to the unsuccessful applicants on or about 18 June 1993. They were then still in detention at Port Hedland. On 16 July 1993, Mr Wu's solicitors filed application No. NG501 of 1993 (being the application which forms the subject matter of this appeal) naming Mr Wu as representative party and the other 18 unsuccessful applicants as group members. This application sought review of each of the adverse final decisions made by the Review Committee.

16. Wilcox J heard both applications together. On 23 February 1994 his Honour dismissed application No. NG848 of 1992 which challenged the primary decisions. In summary, his Honour dismissed that application because the primary decisions had been reconsidered on review and it was more appropriate to consider only the decisions made on such review: Wu v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 294.

17. The application in matter No. NG501 of 1993 followed the form of that used in Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100; see at 104. The application was divided into three parts. Part A set out questions of law common to the claims of the group members in respect of the final decisions made by the Minister. Part B set out questions of law specifically related to the final decision pertaining to the applicant, i.e. the appellant, Mr Wu. Part C set out questions of law specifically related to the final decisions pertaining to each of the other group members. These questions were not set out in the application but were formulated later.

18. In his judgment delivered on 23 February 1994, Wilcox J decided that neither the grounds relied upon in Part A of the application, that is the common grounds, nor the grounds relied upon in Part B, that is the grounds particular to Mr Wu, were made out. He deferred consideration of the grounds relied upon in Part C, that is the grounds particular to each group member other than the appellant. These were dealt with in his Honour's supplementary judgment published on 17 June 1994.

19. In that judgment, his Honour said that he had not been able to deal in the earlier judgment with Part C of the application which related to the personal claims of group members because the applicant's (i.e. the appellant's) legal representatives had not had a sufficient opportunity of investigating them. He referred to the fact that he had made directions for the preparation of those claims for trial. A further hearing took place on 19 and 20 May 1994. At the beginning of the hearing, counsel announced an agreement between the parties that the application, insofar as it related to one of the remaining 18 members of the group, Lo Fu Shuang, should be upheld. An order was made giving effect to this agreement. That left 17 members of the group not including Mr Wu.

20. His Honour dealt with a number of points. The first was based on a denial of natural justice. His Honour said that the issue equally affected all the people on whose behalf the application was made including Mr Wu himself. No objection was taken to his Honour dealing with the matter. His Honour did not uphold the natural justice ground. Except in one respect, this ground was not relied upon before us. We shall later indicate the matter which was relied upon. A further matter relied upon before Wilcox J was a suggested failure of the delegates who had decided the various matters to take into account a relevant consideration. The ground was rejected. No appeal is brought against that rejection. The same applies to his Honour's conclusion in relation to one of the members of the group in respect of whom it was said that the delegate took into account irrelevant considerations. At first instance reliance was also placed on manifest unreasonableness and "failure to give proper, genuine and realistic consideration to the merits of the case." Again these grounds were rejected and no appeal from his Honour's conclusions in respect of them has been brought.

21. 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."

22. 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."

23. 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.

24. 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."

25. The discussion which followed these remarks was inconclusive and the assistance which was referred to was not forthcoming.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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."

33. 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.

34. 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.

35. 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.

36. 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."

38. 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".

39. 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."

40. The delegate then referred to a number of documents and to some further matters all of which are important but too lengthy to record in these reasons. She then came to the assessment of the claims. She referred to the provisions of the Convention as amended by the Protocol and said that her task was to assess whether the appellant's unwillingness to avail himself of China's protection was because the appellant had, in relation to a Convention reason, a well-founded fear of persecution. Some of these words were underlined by the delegate herself. It is to be observed at this point that the delegate correctly directed herself as to the test which she had to apply.

41. The delegate then dealt with the matter under a number of headings. She said that the appellant had advanced no claims in relation to adverse treatment on the basis of his race, religion or nationality. She dealt in detail with the appellant's claims of a fear of persecution because of his membership of a particular social group. She said that persecution had both a subjective and an objective component. She was satisfied of the appellant's subjective fear but considered that the objective basis for the fear had not been sustained. There was no particular challenge to this conclusion.

42. The next matter concerned political opinion. The delegate concluded that she could not accept the appellant's claimed inability to move to another province nor did she accept that he was subjected to "abuse and physical harassment" in the six years prior to his departure. Again, there was no particular challenge to her conclusion in this regard.

43. The delegate then came to "Departure and activities since departure". The delegate referred to the fact that the appellant had claimed that he would be persecuted if returned to China because of his illegal departure, his application for refugee status in Australia and the embarrassment caused to China by the group, of which the appellant was a member, the group's activities and the media coverage that they had attracted. The delegate accepted that it was likely that the appellant would be identified by the Chinese authorities as one of the "Labrador" group of illegal departees if he were returned to China. She said that it was not clear why the authorities might impose penalties for illegal departure. If they did, the reason might not relate "to a Convention reason". However, she added that, nevertheless, giving the appellant the "benefit of the doubt", she decided to treat the claims as "Convention-related for reason of imputed political opinion".

44. The delegate then referred to some legal opinions which had been submitted on behalf of the appellant and continued:

"(4) I find case studies of returned illegal departees eg the Jeremiah and Eastwood boat people are most relevant in determining what might happen to the Labrador boat people if returned to the PRC. Comparing the information in DFAT cables and Red Cross advice with the case examples provided by the applicant of illegal departees arrested on return, I give more weight to the DFAT and Red Cross advice on the likely treatment of Labrador returnees. Available evidence indicates that the returnees may have been detained for a brief period and fined before being released into the general community.

(5) Returnees from Hong Kong are normally counselled upon return and in some cases personal files may have been endorsed thereby affecting employment mobility (DFAT cable O.BJ50931). They may also have been fined (DFAT cable WH154934) Although the majority of departees to Hong Kong do not apply for asylum, the same level of treatment applied also to a large number of PRC nationals who did apply for refugee status and were repatriated from Japan on the grounds of illegal entry by boat (DFAT cable O.BJ50931; US Reports for 1992 Pg 548).

(6) There is a case of harsher treatment of a returnee from Japan who had attracted considerable publicity and support in relation to her individual case (DFAT cable O.BJ50931; US Reports for 1992 Pg 548).

(7) Of all the cases outlined above, the departure and activities since departure of the applicants from the 'Jeremiah' are very similar to that of the applicants from the 'Labrador'. In each case, the applicants had departed from Guangxi Province in the PRC illegally by boat arrived in Australia, applied for refugee status and received some media coverage. Therefore, I give greater weight to the evidence regarding the treatment of the returnees from the 'Jeremiah' than to the other evidence of known cases and general statements regarding the likely treatment of returnees.

(8) I find that the treatment of the returnees from the 'Jeremiah' does not amount to persecution. The period of detention was relatively short, any fines were within their means, and they have not been mistreated since they were released from detention. (9) Submissions have been made in relation to the

applicable PRC [Chinese! law and the administrative measures which could be taken against the applicant. I consider it speculative, however, to suggest that the applicant would be treated more harshly than in the known relevant cases.

(10) Submissions lodged on behalf of the applicant also refer to letters to Labrador group members Yang Ye Feng, Liang Chao Xue and Kong Jian Hui. I accept that these people may have been dismissed from their employment and have lost associated privileges. However, in each case their failure to attend work since the time of their departure to Australia is given as a factor contributing to the dismissal. I consider that dismissal and loss of employment related privileges is a consequence of extended failure to attend work and therefore do not accept it as evidence of persecution of 'Labrador' members because of illegal departure and/or applying for refugee status.

(11) In view of the information provided above as well as cable O.JA107620 of 17 September 1992 I assess that the applicant cannot substantiate a sur place claim.

(12) Therefore, I find that there is not a real chance that the applicant will be persecuted if returned to the PRC because of his departure and activities since departure."

45. The reference to various cables from DFAT is a reference to cables from the Department of Foreign Affairs and Trade. Sur place claims are claims based on matters which have arisen since the departure of persons claiming refugee status from their country of origin.

46. The reasons for decision must, of course, be read as a whole, but particular attention needs to be paid to paras (4), (7) and (9) which appear under the heading, "Departure and activities since departure". These need to be read with it in mind that the delegate had already said that, giving Mr Wu "the benefit of the doubt", she had decided to treat the claims as "Convention-related for reason of imputed political opinion".

47. In para. (4) the delegate said in substance that she gave more weight to the Foreign Affairs and Red Cross advice on the likely treatment of the returnees from the "Labrador" than she did to the case examples provided by Mr Wu of "illegal departees" arrested on their return. In para. (7) the delegate said that she gave greater weight to the evidence regarding the treatment of the returnees from the "Jeremiah" than she did to the evidence of "known cases" and general statements regarding the likely treatment of returnees. This conclusion, which is similar to the conclusion reached in para. (4), needs to be read with para. (8) in which the delegate found positively that the treatment of the returnees from the "Jeremiah" did not amount to persecution. There then follows para. (9) in which the delegate said that she considered it speculative to suggest that Mr Wu would be treated more harshly than in "the known relevant cases". Presumably this was a reference to the cases of those who had been on board the "Jeremiah".

48. The question which needs to be answered is whether a fair reading of these paragraphs discloses that the delegate did, as the early part of her reasons foreshadowed she would, assess whether Mr Wu's unwillingness to avail himself of China's protection was because he had, in relation to a Convention reason, a well-founded fear of persecution. The decision of the High Court in Chan obliged the delegate to consider whether Mr Wu demonstrated a genuine fear founded on a real chance that he would be persecuted for a Convention reason if he returned to his own country.

49. Undoubtedly the delegate considered Mr Wu to have a genuine fear of persecution for a Convention reason. The question was whether there was objective support for that fear. The delegate was obliged to find that there was if there was a real chance of persecution. The expression "real chance of persecution" is used in the reasons. We refer to para. 4.6(4) as an example. Paragraph 12 (earlier quoted) provides another. The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction. We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.

50. Having reflected on the matter, we have reached the conclusion that the correct test was not applied. Paragraph (9) seems to suggest that speculation ought not be engaged in. Yet the whole exercise, involving as it does the assessment of a real chance, must be a speculative one. One can do little else except engage in speculation. In some cases the correct decision will be that there is a real chance of persecution because the speculation will suggest strongly that that is the view which should be taken; other cases will be on the borderline; and still others will be in the category of speculation which is fanciful.

51. Here the delegate has put speculation aside so one does not know what view she would have had if she had been prepared to engage in it. Then there is the use of the expressions "give more weight to" and "give greater weight to" in paras (4) and (7). As was the case in Mok, the delegate appears to have been engaged in an exercise which involved acceptance or rejection of the available material. It is true that the language she has used, expressed as it is in comparative terms, may be capable of a meaning whereby the two opposing pieces of evidence are left in play, but one was thought to have more weight than the other. However, even if that be so, the problem is to know the place in the decision given the material which had the lesser weight. Paragraph (8) contained a positive finding about the position of those who had been on board the "Jeremiah" and para. (9) is the paragraph in which the delegate eschews speculation. Notwithstanding what is said in para. (12), we think that it must be concluded that the delegate did not in fact apply the correct test. She did not turn her mind to what it involved. As in Mok the reality of what she did seems to have been to approach the matter as if it involved the establishment of a state of affairs as being more probable than not. That is contrary to the test propounded in Chan.

52. It follows that in the case of Mr Wu himself the appeal should be allowed.

53. The second of the cases which we consider is that of Mr Huang Cheng Jiang. The delegate's reasons were also dated 16 June 1993. The delegate was not the same person as the delegate who dealt with Mr Wu's case. The reasons occupy some 19 pages of closely typed material and we do not refer to the entirety of them. In para 6.1.2 the delegate stated the right test. It was there said that it was necessary to assess whether the applicant's unwillingness to avail himself of the protection of China was because the appellant had, "in relation to a Convention reason, a well-founded fear of persecution." Some of the words which have been quoted were underlined by the delegate. There is no doubt, therefore, that he appeared to understand what his task was.

54. In para 6.6.1 the delegate said that he accepted that Mr Huang's father might have been criticised and denounced during the Cultural Revolution and that he might have experienced some discrimination in furthering his education because of his family background. He did not accept that the consequences for Mr Huang were so severe as to amount to persecution. He was able to complete his primary schooling and four years of secondary education. Furthermore, he had been able to secure permanent employment with a government enterprise from 1980 until December 1991. He rose to the level of a division head. In considering whether he might be at risk in the future because of the way the family was "viewed during the Cultural Revolution" the delegate also took into account that Mr Huang had not made claims of any ongoing adverse treatment as a result of the policies of the Cultural Revolution, that the policies that characterised the Cultural Revolution were repudiated in 1978 and that the Revolutionary Committees in Guangxi Province were "dismantled by 1981".

55. The delegate then mentioned a number of incidents. One of these was that Mr Huang might have suffered some adverse treatment because of his attempt to expose corruption by the head of his factory. However, he had said that his actions were prompted by a campaign launched by the authorities encouraging people to report corrupt officials. The delegate said that he could find no clear political motive for Mr Huang's actions or reasons why his actions might result in his being "imputed" with an adverse political opinion. He continued, "Nevertheless, giving the applicant the benefit of the doubt, I am prepared to consider these claims as arising for reason of imputed political opinion."

56. Mr Huang also claimed that he had been demoted after staging "a passive resistance strike". He did not attend work for fifteen days and was dismissed. He claimed not to have received assistance from the Anti-Corruption Commissioner, that other work units were reluctant to employ him because they knew the reason for his dismissal and that the authorities would not allow him to set up his own business.

57. The delegate said that he did not accept that this level of adverse treatment amounted to persecution. Mr Huang had not been denied the fundamental right to work and had indicated that in March 1992 he found work as a casual worker in a food processing factory. The delegate accepted that Mr Huang might not "now be able to return to employment in his former work unit and might find it difficult to gain employment in other State run enterprises" but considered that the evidence indicated that there were employment opportunities available in the private sector. He supported this conclusion with some reference to some publications which need not be referred to in detail. The delegate added that the appellant had not suffered any other consequences such as being detained or questioned "by the PSB" because of his activities which might suggest that he was at risk of suffering persecution because of an imputed political profile. The delegate concluded that, on the evidence before him, there was not a real chance that the appellant would face persecution because of his attempt to expose a corrupt work superior.

58. He then turned to deal with claims that Mr Huang would be persecuted because of his illegal departure from China and "the dishonour" caused to China by the group, i.e. those who had arrived on the "Labrador", their activities and the media coverage that they had attracted. The delegate said that he accepted that it was likely that Mr Huang would be identified by the Chinese authorities as one of the "Labrador" group of illegal "departees" if he were returned to China. It was not clear why the authorities might impose penalties for illegal departure, and it might not relate to a Convention reason. He continued, "Nevertheless, giving the applicant the benefit of the doubt, I will treat the claims as Convention-related for reason of imputed political opinion." This language is similar to that used by the delegate in relation to Mr Wu.

59. The delegate then dealt with evidence of the consequences which had followed upon the return of illegal "departees" to China. This evidence was referred to in para. 6.6.10 of the reasons. We do not refer to the entirety of it. It is enough to say that the evidence referred to was the evidence about the treatment of those who had returned to China after reaching Australia on the "Jeremiah". What was said about them is similar to what was said about them by the delegate who decided Mr Wu's case.

60. Reference was then made to an affidavit by someone known as Lin Ping and a cable from the Department of Foreign Affairs and Trade together with a statutory declaration from a confidential source and reports of comments by the Red Cross. The delegate acknowledged that there were some inconsistencies in this material and some doubts over the "credibility/reliability" of the confidential source. However, he thought that the comments in the Lin Ping affidavit regarding the fate of the "Jeremiah" returnees were clearly at odds with the general thrust of the other information including the uncontested reports by the Red Cross. He said ", ...and therefore I gave them no weight." He continued:

"Notwithstanding the inconsistencies and credibility/reliability problems referred to above, I consider that the following is clear from an examination of the other material before me, especially the uncontested material regarding the comments by the Red Cross: . while it is likely that they were detained for a brief period on their return, all returnees were released from custody; . all returnees were allowed to return to their homes, and had no problems of a health or welfare nature; and . none of the returnees remain in detention on the basis that they are unable to pay any fines that may have been imposed on their return."

61. The delegate then dealt with the return of boat people who had arrived in Australia on a vessel code-named the "Eastwood". These were detained. They had arrived on 5 March 1993. The majority were released on 31 March 1993 but, as at 17 May 1993, 11 remained in detention - six due to previous criminal records and five due to association with smugglers. They were fined. There was no evidence that any was still being detained because of an inability to pay a fine.

62. After referring to some further material, the delegate said in para 6.6.10(e):

"Submissions have been made by and on behalf of applicants from the 'Isabella' and 'Labrador' alleging other cases of adverse treatment of persons for reason of illegal departure or attempted illegal departure. However, given the similarity of the 'Jeremiah' returnees to the situation of the applicant, I give more weight to the evidence of how they were treated on return."

Paragraphs 6.6.11-6.6.14 were as follows:

"6.6.11 Of all the cases outlined above, the departure and activities since departure of the applicants from the 'Jeremiah' are very similar to that of the applicants from the 'Labrador'. In each case, the applicants had departed from Guangxi Province in the PRC illegally by boat, arrived in Australia, applied for refugee status and received some media coverage. Therefore, I give greater weight to the evidence regarding the treatment of the returnees from the 'Jeremiah' than to the other evidence of known cases and general statements regarding the likely treatment of returnees.

6.6.12 I find that the treatment of the returnees from the 'Jeremiah' does not amount to persecution. They were not detained for a lengthy period, none remain in detention because they cannot pay a fine, and they have not had problems of a health or welfare nature. This conclusion is based on a careful examination of the evidence available to me and does not support the speculation that returnees to Guangxi would suffer the imposition of excessively punitive fines amounting to persecution.

6.6.13 Submissions have been made in relation to the applicable PRC law and the administrative measures which could be taken against the applicant. I consider it speculative, however, to suggest that the applicant would be treated more harshly than in the known relevant cases.

6.6.14 Therefore, I find that there is not a real chance that the applicant will be persecuted if returned to the PRC because of his departure, sur place claims and activities since departure."

Paragraph 6.7 was in the following terms:

"In the assessment above I have accepted that the applicant faces some adverse consequences from his attempt to expose corruption and that he may face some penalties as a consequence of his illegal departure. I have also considered the cumulative effect of these claims and consider that they do not give rise to a well-founded fear of persecution."

65. Accordingly, the delegate found that Mr Huang was not a refugee.

66. Like the delegate in the case of Mr Wu, the delegate in Mr Huang's case used the expressions, "I give more weight to..." and "I give greater weight to..." in paras 6.6.10(e) and 6.6.11. He also put aside speculation; see para. 6.6.12 and in para. 6.6.13 said that he considered it speculative to suggest that Mr Huang would be treated more harshly "than in the known relevant cases".

67. We have concluded that, although the reasons for decision in Mr Huang's case are expressed more briefly than those in Mr Wu's case, the reasons are infected with the same error that we have found exists in relation to the reasons given in the case of Mr Wu. We do not propose to go into detail about the matter. It is enough to say that the same considerations apply in relation to the use by the delegate of expressions such as "give more weight to" and the reference to speculation as applied in Mr Wu's case. In short, we are not persuaded that the delegate in fact went about the task of assessing whether, objectively speaking, there was a real chance of persecution on return. It follows that we would also allow the appeal in relation to Mr Huang.

68. The third case we consider is that of Liu Jun Liang. In para. 6.6.2 of his reasons for decision, the delegate said that he accepted that it was likely that the applicant would be identified by the Chinese authorities as one of the "Labrador" group of illegal departees if he were returned to China. The delegate added that it was not clear why the authorities might impose penalties for illegal departure. Furthermore, any such penalties might not relate to a Convention reason. Nevertheless he gave the applicant "the benefit of the doubt" and treated the claims as Convention-related for reasons of imputed political opinion.

69. The delegate accepted that, following the applicant's repatriation to China from Hong Kong in 1989 after a previous illegal departure, he might have been detained for three months, suffered ill-treatment while in detention and had to pay a fine to secure his release. The delegate said that the applicant further claimed that "PSB attention" following his illegal departure made it difficult to secure employment and that he was warned that if he left the country illegally again he would be sentenced to more than three years imprisonment.

70. In para. 6.6.4 the delegate referred to other evidence of cases involving the return of illegal departees to China. This was substantially similar to the evidence relied upon in Mr Wu's and Mr Huang's case. Particular reference was made to the experience of those who had come to Australia on the "Jeremiah" and been returned. Reference was also made to the fate of the people on the "Eastwood" who had been returned to China on 5 March 1993. This has already been referred to as has material concerning returnees from Hong Kong, harsher treatment of a returnee from Japan and submissions alleging other cases of adverse treatment of persons for reason of illegal departure or attempted illegal departure. Having referred to these various matters the delegate said, "However, given the similarity of the 'Jeremiah' returnees to the situation of the applicant, I give more weight to the evidence of how they were treated on return."

71. Paragraphs 6.6.5, 6.6.6 and 6.6.7 of the reasons for decision were as follows:

"6.6.5 Of all the cases outlined above, the departure and activities since departure of the applicants from the 'Jeremiah' are very similar to that of the applicants from the 'Labrador'. In each case, the applicants had departed from Guangxi Province in the PRC illegally by boat, arrived in Australia, applied for refugee status and received some media coverage. Therefore, I give greater weight to the evidence regarding the treatment of the returnees from the 'Jeremiah' than to the other evidence of known cases and general statements regarding the likely treatment of returnees. In forming this judgement, I also take into account that the applicant's first illegal departure was shortly after the Tiananmen Square incident, and the treatment he received on that occasion, and the warning he received may well have been influenced by heightened sensitivity in the aftermath of the crackdown.

6.6.6 I find that the treatment of the returnees from the 'Jeremiah', including those who had departed illegally previously, does not amount to persecution. They were not detained for a lengthy period, none remain in detention because they cannot pay a fine, and they have not had problems of a health or welfare nature. This conclusion is based on a careful examination of the evidence available to me and does not support the speculation that returnees to Guangxi would suffer the imposition of excessively punitive fines amounting to persecution.

6.6.7 Submissions have been made in relation to the applicable PRC law and the administrative measures which could be taken against the applicant. I consider it speculative, however, to suggest that the applicant would be treated more harshly than in the known relevant cases."

Reference should also be made to para 6.6.8 which was as follows:

"Submissions lodged on behalf of the applicant also refer to letters to Labrador group members Yang Ye Feng, Liang Chao Xue and Kong Jian Hui. I accept that these people may have been dismissed from their employment and have lost associated privileges. However, in each case their failure to attend work since the time of their departure to Australia is given as a factor contributing to the dismissal. I consider that dismissal and loss of employment related privileges is a consequence of extended failure to attend work and therefore do not accept it as evidence of persecution of 'Labrador' members because of illegal departure and/or applying for refugee status."

73. The delegate concluded that, in the light of the evidence and the various considerations to which he had referred, there was not a real chance that the applicant would be persecuted if returned to China because of his illegal departures and activities since his second departure.

74. In our opinion the use of the expressions "give more weight to" and "give greater weight to" in paras 6.6.4 and 6.6.5 of the reasons for decision, however beneficial a reading they are given, suggests that the delegate was engaged in a process of accepting and rejecting. In other words, in the context in which the words appear, he has indicated that he thought that the likelihood was that the applicant would be treated similarly to the way in which the returnees from the "Jeremiah" were treated. A consideration of the terms in which para. 6.6.6 is expressed bears this out. His use of the word "speculation" in the context in which it appears is such as to lead to the conclusion that he was discarding speculation. Similar considerations apply in relation to para. 6.6.7. Plainly he is ruling out speculation of any kind. Yet, as earlier said, it is impossible to approach the question of whether there is a real chance of persecution on return without engaging in speculation. What one has to do is to reach a conclusion on whether or not the speculation engaged in leads one to conclude that there is that real chance which may well be considerably below a probability in the sense of something being more probable than not.

75. It follows that in the case of Liu Jun Liang, the appeal should also be allowed.

76. Counsel for the appellant argued a second matter. It arose out of the failure of the review delegates to follow paragraph 8 of the ministerial guidelines dated October 1992 in respect of the Refugee Status Review Committee. That paragraph states that where the recommendation is that refugee status be rejected, the applicant is to be provided with details of the Committee recommendation and a draft of the delegate's decision, and given the opportunity to comment before a final decision is made and that any comments provided are forwarded directly to the delegate.

77. Counsel for the appellants, conceded that his clients received procedural fairness. Their complaint was that because the guidelines were known to the review delegates and hence to the appellants (as the learned trial judge found) there arose a legitimate expectation not only that fairness would be extended to the appellants but also the particular procedural advantage of being provided with a copy of the review delegates' decision in draft form before it was made and a reasonable opportunity to comment on it. Mr Catterns submitted that this submission was linked to the "real chance" argument because if the guideline had been followed then the probability would have been that the appellants would have pointed out to the review delegates that they were applying a balance of probabilities test and not a "real chance" test.

78. In view of the conclusions which we have reached in respect of the first issue, we do not propose to decide the second issue.

79. As foreshadowed, we do not propose to make orders today. When the parties have had an opportunity of considering these reasons, the matter will be listed for directions before one of the members of the Court. We would hope that the parties, having considered what we have said, will reach agreement about the way the appeal should be disposed of. If there is not agreement about the matter, there should be further and more detailed written submissions about the cases we have not considered. We may then need to put the matter in the list for further oral argument, as necessary by videolink.

80. The matter is stood over to a date to be notified to the parties by the Associate to Lee J.