Minister for Immigration and Ethnic Affairs v Guo Wei Rong and Anor

Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor

High Court of Australia

Brennan CJ,

Dawson, Toohey, Gaudron, Mchugh, Gummow and Kirby JJ

Matter No S151 of 1996

13 June 1997

FC 97/019

ORDER

In each appeal:

1.   Appeal allowed.

2.   Set aside the orders of the Full Court of the Federal Court and in lieu thereof order that the first respondent's appeal to that Court be dismissed with costs.

3.   The appellant to pay the costs of the appeal in this Court.

On appeal from the Federal Court of Australia

Representation (both appeals)

J Basten QC with N J Williams for the appellant (instructed by Australian Government Solicitor)

S D Rares SC with R Sofroniou for the first respondent (instructed by Jackson Smith)

No appearance for the second respondent

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor

Immigration - Refugee status - Fear of persecution by punishment for illegal departures from China and contravention of China's "one child policy" - Whether fear of persecution "for reasons of ... membership of a particular social group or political opinion" - Whether fear of persecution "well-founded" - Real chance test.

Administrative law - Judicial review - Declaratory relief.

Words and phrases - "well-founded fear of persecution".

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5(1), 5(2), 16(1)(c).

Migration Act 1958 (Cth), ss 4(1), 14, 22AA, 54B, 166BC(1).

Veterans' Entitlements Act 1986 (Cth), s 120.

Migration (1993) Regulations (Cth), reg 2A.5.

Convention Relating to the Status of Refugees, Art 1A(2).

The questions in these appeals are:

(1) whether the Full Court of the Federal Court of Australia (Beaumont, Einfeld and Foster JJ)[1] erred in finding legal error in the approach employed by the Refugee Review Tribunal ("the Tribunal") in its review of decisions as to the refugee status of the first respondents; and

(2) whether the majority of the Full Court of the Federal Court of Australia (Beaumont J dissenting) erred in granting declaratory relief pursuant to s 16(1)(c) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act").

In our opinion, the first question should be answered in the affirmative. While this makes it unnecessary to answer the second question, the issues it raises were at the forefront of the applications for special leave. In the circumstances, we would indicate that the approach taken by Beaumont J on this aspect of the case was correct.

Pursuant to the grants of special leave to appeal, two appeals were brought by the Minister for Immigration and Ethnic Affairs ("the Minister") against orders of the Full Court of the Federal Court. The orders of the Full Court allowed appeals against orders of Sackville J[2] who had dismissed applications for judicial review of decisions of the Tribunal. The Full Court declared that the first respondents were refugees for the purposes of the Migration Act 1958 (Cth) ("the Act") and were "entitled to the appropriate entry visas".

The statutory framework[3]

Under s 14 of the Act, a non-Australian citizen who enters Australia without a valid entry permit or visa is classified as an illegal entrant and is liable to detention pursuant to s 54B of the Act. However, an illegal entrant will be provided with the relevant entry permit or visa[4] upon the making of a successful application for   refugee status pursuant to s 22AA of the Act, which by virtue of reg 2A.5 of the Migration (1993) Regulations (Cth) also has effect as an application for the relevant permit or visa.

Decisions on applications for refugee status are made by the Minister. Section 22AA of the Act relevantly provides:

"If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee."

The legislative history of s 22AA is explained in Minister for Immigration and Ethnic Affairs v Wu Shan Liang[5].

"Refugee" is defined in s 4(1) of the Act to have the same meaning as that contained in Art 1 of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention"), as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967.

Art 1A(2) of the Convention defines a "refugee" as:

"any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".

The claims of the first respondents

The first respondents, Mr Guo and his wife, Ms Pan, are citizens of the People's Republic of China ("the PRC"). They applied for refugee status in December 1993 ("the 1993 application"). They claimed that they were   refugees because they had a well-founded fear of persecution for reasons of political opinion and their membership of a particular social group. They claimed that, by reason of illegal departures from the PRC in 1992 and in 1993 and their breach of the "one child policy" of the government of the PRC, they had a political profile and that, if they were returned to the PRC, they would be "persecuted" for their "political opinion". They also claimed that they belonged to a particular social group of Chinese citizens who opposed the "one child policy" and that they would be persecuted by reason of their membership of that group.

The 1992 application

The 1993 application was not the first application for refugee status made by the first respondents. In May 1992 they had also made an application after illegally leaving the PRC and arriving in Australia ("the 1992 application"). The circumstances surrounding the 1992 application and the re-entry of the first respondents into the PRC after the application was refused are relevant to this appeal. It is therefore necessary to examine the facts leading up to and consequential upon the refusal of that application in order to evaluate their 1993 claim for refugee status.

The first respondents and a small number of other PRC nationals arrived by boat in Australia on 10 May 1992, having departed the PRC without permission from the appropriate authorities. Pursuant to s 54B of the Act, the passengers of the boat, later named the Jeremiah by officials of the Department of Immigration and Ethnic Affairs ("the Department"), were detained and removed to the Department's Port Hedland Detention Centre.

The first respondents applied to the Minister for refugee status and the associated permits and visas. A delegate of the Minister refused the application on 28 May 1992. The first respondents then applied to the   Refugee Status Review Committee ("the Committee") for a review of the delegate's decision. In August 1992 the Committee found that the first respondents were not refugees. These findings were subsequently affirmed by a delegate of the Minister.

Prior to the deportation of the first respondents from Australia in October 1992, Mr Guo and his brother, a fellow passenger on the Jeremiah, had participated in a public protest at Port Hedland while they were in custody. In August 1992, the two brothers and other detainees climbed to the roof of a Port Hedland building, wearing headbands marked with Chinese characters translated as "Hunger Strike" and bearing placards with messages protesting against their treatment by the Department. One of the placards declared that the protesters would rather die in Australia than return to face persecution in the PRC. The highly publicised protest culminated with a jump from the rooftop by three members of the group, including Mr Guo and his brother. In a number of the international publications covering the protest, Mr Guo was identified as the protest leader.

Subsequently, Mr Guo and others were deported to the PRC. Upon their re-entry into the PRC in October 1992, Mr Guo, his brother and Ms Pan were detained for a period of five days. The two brothers were then detained for a further 23 day period and fined a sum of 3,000 rmb. Although Mr Guo claimed to have been later re-arrested and detained for a period of three months and 24 days from 5 June 1993, the Tribunal rejected this claim when it came to consider the 1993 application.

The 1993 application

The 1993 application was made after the arrival of the first respondents and a group of their relatives in Broome, Western Australia on 5 December 1993. The first respondents had again travelled by boat, later named the Quokka by Departmental officials. Upon arrival, the passengers of the Quokka were detained in accordance with s 54B of the Act and transferred to the Port Hedland Detention Centre.

On 14 December 1993 the first respondents' applications for refugee status were received, Mr Guo claiming that he was outside the country of his nationality owing to a well-founded fear of being persecuted for reasons of political opinion. His wife's claim was consequential on his claim. A delegate of the Minister refused the applications on 31 January 1994. The first respondents then applied to the Tribunal to review the delegate's decision. The Tribunal, constituted by Ms McIllhatton, the second respondent, affirmed the decisions of the Minister's delegate to refuse refugee status to the respondents.

The respondents then sought judicial review in the Federal Court. In the Full Court, Beaumont J held that the Tribunal had erred in law because it had asked itself the wrong question and it therefore constructively failed to exercise its jurisdiction. His Honour said[6] that, in determining whether Mr Guo had a well-founded fear of being persecuted for reasons of political opinion, "the Tribunal did not, in truth, consider whether, even if not explicit, a political opinion could be inferred by the authorities from what Mr Guo had done when account was taken of all of his conduct." Einfeld J held that the Tribunal had erred in making findings on a balance of probabilities test and that by doing so it had undermined the real chance test laid down in Chan v Minister for Immigration and Ethnic Affairs[7]. Foster J agreed generally with the judgments of Beaumont J and Einfeld J, but gave reasons of his own.

The appeal in this Court

It is a ground of review of a decision to which the ADJR Act applies that it "involved an error of law, whether or not the error appears on the record" (s 5(1)(f)). The decisions in question were those of the Tribunal, which was in the position of the Minister under s 22AA and s 166BC(1) of the Act. By those decisions the Tribunal held that it was not satisfied that the appellants had a well-founded fear of persecution for reasons of political opinion. The decisions may be loosely described as determinations of refugee status but, in truth, in terms of the legislation, particularly s 22AA of the Act, they were decisions as to satisfaction regarding the status of the appellants as refugees[8].

The Minister submitted that the Tribunal had not erred in law in any of the ways identified by the Full Court of the Federal Court. He contended that, in holding that the Tribunal had erred by applying a balance of probabilities test instead of the real chance test of persecution, Einfeld and Foster JJ had made the very error that this Court held that the Full Court had made in Wu Shan Liang[9], a judgment delivered after the Full Court gave its reasons in this case. The Minister also submitted that Beaumont J had no basis for holding that the Tribunal had not taken account of all Mr Guo's conduct in determining whether the authorities could infer that he held political opinions and that the learned judge erred in finding that the Tribunal had constructively failed to exercise its jurisdiction. The Minister also submitted that Einfeld and Foster JJ had no basis for concluding that the Tribunal had not asked itself the real question in the case. Finally, the Minister submitted that, even if the Full Court was correct in its identification of legal error in the Tribunal's decision, this was not a case which warranted the granting of declaratory relief pursuant to s 16(1)(c) of the ADJR Act. The appropriate course would have been to remit the matter for a re-hearing. To evaluate these submissions it is necessary to refer to the reasons of the Tribunal in some detail.

The reasons of the Tribunal

Most of the Tribunal's reasons in Mr Guo's application were directed to his claim that "because of his activities in Australia the Chinese authorities have attributed a political profile to him and he fears persecution as a result." Because the Tribunal concluded that he did not have a political dissident profile at any time prior to his departure from the PRC in 1992, it examined the circumstances of each departure and the penalties imposed on Mr Guo to determine whether after 1992 he might have acquired a political profile. It is apparent from its reasons that the Tribunal thought, correctly in our opinion, that the true nature of those penalties had to be evaluated in the light of Mr Guo's involvement in an incident in 1985 when he and others received a substantial payment for assisting Vietnamese refugees to escape to Hong Kong, an incident that Mr Guo had not revealed to the Australian immigration authorities when he first arrived in 1992.

Mr Guo informed the Tribunal that, upon his return to the PRC from Hong Kong in 1985, he was questioned by the political police ("the PSB") who regarded him as the instigator of the incident. His share of the payment was confiscated, he was fined, and he was dismissed from his employment. Because he feared that he would not be able to pay the fine and would go to gaol, he fled to Hong Kong. However, the Hong Kong authorities deported him to China in early 1986. On arrival, he was held in custody for three months and then sentenced to two years imprisonment in a labour camp. About October 1986, he was released to obtain medical treatment. He avoided returning to prison by using forged medical certificates and bribing officials.

Mr Guo told the Tribunal that, after he was deported from Australia in 1992, he and his wife and brother were subjected to the fines and periods of detention outlined above. During the 23 day period of detention, Mr Guo said that he was physically mistreated and questioned at length about his journey to Australia, a business card from an Australian official found in his possession and his activities in Australia including the rooftop protest. Upon release he was fined 3,000 rmb and ordered to pay the cost of his prison transfer. Mr Guo stated that the detention and fines were the result of his illegal departure to Australia.

Mr Guo claimed that in June 1993 he and his brother were arrested by the PSB and imprisoned for nearly four months. He claimed that he was again questioned about his activities in Australia. His family secured his release by bribing the officer-in-charge of the prison. Upon being informed that the PSB intended to re-arrest him, he went into hiding. He organised the purchase of a boat and fled to Australia in November 1993. However, the Tribunal rejected his evidence that he had been imprisoned in June 1993.

As part of his claim of political persecution, Mr Guo said that, after his release from prison in 1992, he returned to work as a fisherman using a boat that he had purchased with the assistance of a loan from a credit union. He claimed that the authorities had refused to allow him to take the boat into deep waters, that this had restricted his earning capacity, and that the boat had been confiscated by the PSB and the credit union in April 1993. The Tribunal found that the restriction of his fishing licence and the confiscation of his boat were not done for a Convention reason. It found that the boat had been confiscated by the credit union because Mr Guo had failed to meet the terms of his loan.

Mr Guo also testified that, when he was sent to the labour camp in 1985, his household registration was transferred to the camp. He said that he feared that, if he tried to regain his registration, he would be required to serve the balance of his prison sentence. His lack of household registration meant that he was unable to register his marriage and that he was deprived of free education for his children and food coupons. This account of his lack of household registration was inconsistent with two other accounts that he had given concerning the matter. In one of these accounts, he said that he had never held household registration; in the other account given in December 1993, he said that he had had temporary registration but it had expired about 10 years before and he had failed to renew it. The Tribunal found that he was not denied household registration for a Convention reason: his lack of registration resulted from his reluctance to bring himself to the attention of the relevant authorities.

Although most of the Tribunal's reasons were concerned with the question of persecution for reasons of political opinion, the Tribunal also evaluated and rejected his claim that he had a well-founded fear that, if he was deported to the PRC, he would be persecuted for reason of his membership of a particular social group, namely those Chinese citizens and residents who had breached the "one child policy".

Mr Guo testified that, after the birth of his second child, family planning officials had fined him for breaching the "one child policy" and that fines would continue to be payable until the child was aged 18. He also claimed that these officials had told his mother in June 1991 that, if he did not consent to sterilisation, he would be forcibly sterilised. He and his wife then went into hiding. The Tribunal found that Mr Guo had given inconsistent accounts of this matter and that his evidence was evasive and unconvincing. It found that his account of the threatened sterilisation was implausible and that he did not face a real chance of forcible sterilisation on his return to the PRC. It also found that fines for breach of the "one child policy" were not persecution but "a disciplinary measure which can be imposed on the population at large."

The Tribunal, after rejecting Mr Guo's claims in relation to household registration, restriction of fishing licence, confiscation of his boat and the "one child policy", found that nothing that occurred to him after he was deported to the PRC in 1992 was politically motivated. It said:

"The Tribunal accepts that the Applicant was arrested and imprisoned on his return to China from Australia in October 1992. The Tribunal also accepts that the Applicant may have been questioned by the authorities about his activities in Australia including his refugee application, the rooftop protest and the card from an Australian official. However, the Tribunal does not accept that the Applicant's treatment on return was related to these activities. In the Tribunal's view if the authorities had been concerned about his activities or application for   refugee status in Australia he would have been detained for a longer period. The period of imprisonment and fines the Applicant received is within the range and consistent with the independent evidence before the Tribunal in relation to the penalties for illegal departure. The Applicant's claims concerning adverse treatment because of these matters is not supported by the evidence. The Tribunal prefers the independent evidence to the Applicant's unsupported assertions. The Tribunal finds the treatment the Applicant received on return to China in October 1992 to be reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials."

The Tribunal also found that, if Mr Guo was returned to the PRC, he would not suffer persecution for reasons of political opinion. The Tribunal said:

"Given the evidence before it the Tribunal does not accept that the Applicant faces persecution because of his illegal departure. If the Applicant were charged for illegal departure and/or as an organiser of illegal departure by the authorities this is not related to a Convention ground. The evidence before the Tribunal is that laws in relation to illegal departure are applied to the Chinese population in general. The evidence before the Tribunal does not suggest that the Applicant is differentially at risk for a Convention reason."

The Tribunal also rejected Mr Guo's submission that "his act of assisting the Vietnamese by towing them to Hong Kong in 1985 was a political act." The Tribunal found that he was punished "because of the degree of criminality surrounding the offence and not because of an imputed political opinion" or "political profile". It made the same finding in respect of the penalties that he suffered as the result of his 1992 departure. The Tribunal found that the penalties were within the range provided for by Art 176 of the Criminal Law of the PRC and were unrelated to any political profile ascribed to him as the result of that departure.

Because no political profile had been imputed to Mr Guo as the result of the 1985 and 1992 departures, the Tribunal found in respect of the 1993 departure "that the Applicant's illegal departure will not result in an imputed political profile."

Accordingly, the Tribunal found that, if Mr Guo is returned to the PRC, he may receive a severe penalty because he is a repeat offender and had organised the boat journey but that that penalty would not be inflicted for a Convention reason. Accordingly, the Tribunal found that Mr Guo did "not have a well founded fear of persecution for Convention reasons and cannot be regarded as a refugee for Convention purposes."

Because Mr Guo's wife, Pan Run Juan, made a separate application for refugee status, the Tribunal gave separate reasons for affirming the Minister's decision in her case. However, the bulk of the evidence was directed to his claim. If the Tribunal made no legal error in considering Mr Guo's application, there is no ground for concluding that it made a legal error in the case of Pan Run Juan. Because we are of opinion that the Tribunal did not relevantly err in determining Mr Guo's application, it is unnecessary to give any separate consideration to her application.

The Full Court erred in holding that the Tribunal had erred in law

In our opinion, the Minister is correct in submitting that the Full Court erred in finding that the Tribunal had effectively applied a balance of probabilities test in determining whether Mr Guo had a well-founded fear of persecution and in finding that the Tribunal had not asked itself the real question that it had to decide.

Elements of the Convention definition of "refugee"

The definition of "refugee" in Art 1A(2) of the Convention contains four key elements:

(1) the applicant must be outside his or her country of nationality;

(2) the applicant must fear "persecution";

(3) the applicant must fear such persecution "for reasons of race, religion, nationality, membership of a particular social group or political opinion"; and

(4) the applicant must have a "well-founded" fear of persecution for one of the Convention reasons.

For the purposes of the present appeal, it is only necessary to discuss the second, third and fourth elements of this definition.

Persecution

In Chan[10], Mason CJ referred to persecution as requiring "some serious punishment or penalty or some significant detriment or disadvantage". One other statement of his Honour in that case is also relevant to this appeal. His Honour said[11]:

"Discrimination which involves interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment for escape or for return to one's place of residence amounts prima facie to persecution unless the actions are so explained that they bear another character."

In the same case, Dawson J said[12] that:

"there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution ... Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity."

In Chan[13], McHugh J said that persecution was selective harassment and that in appropriate cases it could include single acts of oppression and measures "in disregard" of human dignity.

Persecution for a Convention reason

An applicant for refugee status who has established a fear of persecution must also show that the persecution which he or she fears is for one of the reasons enumerated in Art 1A(2) of the Convention. The first respondents claimed before the Tribunal that they feared persecution in the form of punishment for contravening the PRC government's "one child policy" and for their illegal departures and that such persecution would be inflicted for the Convention reason of "political opinion" and/or "membership of a particular social group".

For the purposes of the Convention, a political opinion need not be an opinion that is actually held by the   refugee. It is sufficient for those purposes that such an opinion is imputed to him or her by the persecutor. In Chan[14] Gaudron J said:

"persecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief."

In the same case, McHugh J said that[15]:

"It is irrelevant that the appellant may not have held the opinions attributed to him. What matters is that the authorities identified [Mr Chan] with those opinions and, in consequence, restricted his liberty for a long and indeterminate period."

The first respondents also contended that as a result of their contravention of the "one child policy" they feared that they would be involuntarily sterilised and that involuntary sterilisation for this reason was persecution on the ground of their membership of a particular social group. As we have said, this claim was rejected by the Tribunal. But in any event, the claim based, as it is, on membership of a social group consisting of "parents of one child in the PRC" is answered by the Court's recent decision in Applicant A v Minister for Immigration and Ethnic Affairs[16], which held by majority that, for the purposes of the Convention, such persons were not a particular social group and that persecutory conduct cannot define "a particular social group". Dawson J said[17]:

"A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention 'completely reverses the statutory definition of Convention refugee in issue'."

Adopting this line of reasoning, it is clear that, even if Mr Guo could succeed in establishing that sterilisation of him constituted persecution, the persecution would not be for reasons of his membership of a particular social group.

"Well-founded" fear of persecution for a Convention reason

An applicant for refugee status must also establish that his or her fear of persecution for a Convention reason is a "well-founded" fear. This element adds an objective requirement to the requirement that an applicant must in fact hold such a fear. In Chan[18], Mason CJ said:

"If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring."

In the same case, McHugh J said[19] that a real chance of persecution excluded a far-fetched possibility of persecution but that as little as a 10 per cent chance of persecution may constitute a well-founded fear of persecution.

Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. But to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error.

No doubt in most, perhaps all, cases arising under s 22AA of the Act, the application of the real chance test, properly understood as the clarification of the phrase "well-founded", leads to the same result as a direct application of that phrase. Wu Shan Liang[20] is an example. Nevertheless, it is always dangerous to treat a particular word or phrase as synonymous with a statutory term, no matter how helpful the use of that word or phrase may be in understanding the statutory term. In the present case, for example, Einfeld J thought that the "real chance" test invited speculation and that the Tribunal had erred because it "has shunned speculation"[21]. If, by speculation, his Honour meant making a finding as to whether or not an event might or might not occur in the future, no criticism could be made of his use of the term. But it seems likely, having regard to the context[22] and his Honour's conclusions concerning the Tribunal's reasoning process, that he was using the term in its primary dictionary meaning of conjecture or surmise. If he was, he fell into error. Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for   refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In this and other cases, the Tribunal and the Federal Court have used the term "real chance" not as epexegetic of "well-founded", but as a replacement or substitution for it. Those tribunals will be on safer ground, however, and less likely to fall into error if in future they apply the language of the Convention while bearing in mind that a fear of persecution may be well-founded even though the evidence does not show that persecution is more likely than not to eventuate.

The Tribunal did not apply a balance of probabilities test

Einfeld J, with whom Foster J expressed general agreement, held that the Tribunal had not asked itself the correct question because it had decided the case by determining on the balance of probabilities that there was no real chance that Mr Guo would be persecuted. His Honour said that the "Tribunal has shunned speculation, weighed the probabilities and therefore avoided the 'real chance' test"[23]. He pointed to the Tribunal's use of phrases such as "giving greater weight to" and "prefer", in concluding that "[t]he principle behind the 'real chance' test [had been] compromised"[24].

In Wu Shan Liang[25], a majority of this Court said that:

"When conflicting information available to the Minister's delegate relates to some past event ... the attribution of greater weight to one piece of information as against another or an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test."

The Minister contends that Wu Shan Liang shows that Einfeld J erred in concluding that the Tribunal had applied a balance of probabilities test. However, the matters that his Honour relied upon in this case in holding that the Tribunal had applied a balance of probabilities test are quite different from the matters that the Full Court of the Federal Court relied on in Wu Shan Liang. Contrary to the Minister's submissions, that decision does not dictate the result in this case.

However there is no basis for concluding that the Tribunal decided the "real chance" issue on the balance of probabilities. Nowhere in its reasons did the Tribunal use the term "balance of probabilities" in deciding the "real chance" issue. Nor did it make any findings or statements that imply or infer that it was deciding the issue of well-founded fear of persecution for a Convention reason on the balance of probabilities.

Expressly and impliedly, the judgment of Einfeld J proceeds on the basis that, in considering the question of a well-founded fear of persecution for a Convention reason, the Tribunal should begin with the hypothesis that there is a real chance of persecution for a Convention reason, examine whether the facts, including "foreseeable future speculation and ... the potentialities" point to the hypothesis and, if so, examine "whether it is negated by other compelling facts."[26]

Ingenious as his Honour's approach may be, it is not supported by the terms of the Convention or the proper approach to administrative decision making in this context. It is an approach the genesis of which can be found in the decisions of this Court dealing with the very different question of the grant of pensions in cases concerning injuries to war veterans[27]. But the law governing those cases - s 120 of the Veterans' Entitlements Act 1986 (Cth) - expressly provided that the relevant tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining a causal connection between certain matters if, after a consideration of the whole of material before it, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting those matters. However, the legislation governing refugee cases has no statutory counterpart to s 120. To approach refugee cases in the way that his Honour suggests is to assume that there is always a well-founded fear of persecution unless the facts negate it. For the reasons that we have already given, the Act does not support such an approach. Nor do the general principles of administrative law which underpin the ADJR Act give any support for that approach.

In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do[28]. It then used those findings as the basis for its conclusion that there was no chance of future persecution. But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities.

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not "differentially at risk for a Convention reason." Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.

In the present case, Einfeld J was critical of the Tribunal for making findings before it evaluated whether there was a real chance of persecution for a Convention reason. Thus, his Honour said[29]:

"As it appears to me, the Tribunal has thus been concerned to make findings and determinations in relation to each piece of evidence. It evaluated the credibility of Mr Guo and employed a continuous weighing-up process. It also engaged in a deductive reasoning process to justify some of its balance of probabilities findings. Clearly great weight was placed upon these findings when considering the ultimate question. Only after it had weighed the evidence and made its findings did the Tribunal engage in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded. However, no consideration was given by the Tribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related."

With respect to his Honour, this criticism of the Tribunal's reasons is wrong. For the reasons that we have given, the Tribunal was entitled to weigh the material before it and make findings before it engaged "in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well-founded." Moreover, given the strength of some of the Tribunal's findings - for example, "the treatment the Applicant received on return to the PRC in October 1992 [is] reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials", "the Applicant's illegal departure in 1993 will not result in an imputed political profile", "these matters will not result in persecution to the Applicant for Convention reasons if returned to China" - the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.

It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.

In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.

The Tribunal did decide the real question in the case

In the present case, the Tribunal found, as it was entitled to do on the evidence, that, notwithstanding Mr Guo's many breaches of Chinese law before he left the PRC in 1993, he had no political profile with the Chinese authorities. That was a finding that was open to it. In the factual context of the case, therefore, the Tribunal had to answer two subsidiary questions to determine the real question in the case. The first question was whether there was a real chance that the events surrounding the 1993 departure, either alone or in combination with the earlier events, might nevertheless result in the attribution of a political profile to Mr Guo. If the Tribunal answered that question in the affirmative, the second question was whether there was also a real chance that Mr Guo might be persecuted by reason of such a political profile.

The Tribunal did not pose the questions to be decided in the way that we have formulated them, but its findings nevertheless answered them. They did so because the strength and clarity of those findings make it clear that the Tribunal found that there was no real chance that Mr Guo would have a political profile attributed to him or that he would be persecuted by reason of such a profile.

However, the Full Court took a different view. It unanimously held that the Tribunal had failed to apply correctly the real chance test. The Court expressed different views as to the question that the Tribunal should have addressed. To some extent, the judgments suggest that their Honours, with the encouragement of the present respondents, were influenced by their own views of the state of affairs in the PRC. As Mason CJ pointed out in Chan[30], this is to trespass into the forbidden field of review on the merits. As we have already pointed out, Einfeld J, with whose judgment Foster J agreed generally, held that the Tribunal had not applied the correct test because it had applied a balance of probabilities test. We have already given our reasons for concluding that Einfeld J erred in coming to this conclusion. Beaumont J, on the other hand, found that an application of the real chance test required an assessment of[31]:

"whether the conduct of Mr Guo, looked at as a whole, was capable of being perceived by the Chinese authorities as politically neutral, on the one hand, or as politically significant, on the other, in the sense described in the authorities mentioned?"

Beaumont J referred to passages in Sinclair v Maryborough Mining Warden[32] and concluded that the Tribunal had not addressed this question, so that there had been a "constructive failure by the Tribunal to exercise its jurisdiction"[33]. In Sinclair mandamus went because the Mining Warden had not applied himself to all the matters which the Regulations in question required him to consider. In that sense, the Mining Warden did not consider the real question which it was his duty to consider.

In the present case, Beaumont J emphasised the necessity to assess inferences of political opinion of Mr Guo "when account was taken of all of his conduct"34. His Honour held that the Tribunal had focused unduly on whether or not the sentence imposed on Mr Guo in 1992 was within the range of sentences imposed for illegal departures and thereby failed to address a suitably wide range of circumstances. However, the reasons of the Tribunal, which we have summarised, show that it did consider all of Mr Guo's conduct including his contravention of the "one child policy", his illegal departure in 1992, his activities in Australia including his participation in the rooftop protest and his involvement and punishment for assisting Vietnamese refugees to escape to Hong Kong in 1985. Nevertheless, the Tribunal did not regard the totality of these circumstances as giving rise to a real chance of persecution for reason of an imputed political opinion. There was no logical or legal error in its approach.

Accordingly, the Tribunal did ask itself and did decide the real question in the case. Subject to considering four other arguments relied on by the first respondents, the Minister's appeal must succeed.

The first respondents' grounds of contention

The first respondents contended that not only was the reasoning of the Full Court correct, but that there were four further grounds upon which it could have set aside the decisions of the Tribunal. They were:

(1) Under s 5(1)(e) and s 5(2)(a) of the ADJR Act, the Tribunal's decision constituted an improper exercise of the power conferred by the Act because the Tribunal had taken an irrelevant consideration into account in the exercise of its power;

(2) Under s 5(1)(e) and s 5(2)(b) of the ADJR Act, the Tribunal's decision constituted an improper exercise of the power conferred by the Act because the Tribunal had failed to take a relevant consideration into account in the exercise of its power;

(3) Under s 5(1)(h) of the ADJR Act, the Tribunal had reached a decision which was not justified by evidence or any other material; and

(4) Under s 5(2)(g) of the ADJR Act, the Tribunal's exercise of power was so unreasonable that no reasonable person could have so exercised the power.

However, for the reasons given by Kirby J, there is no substance in these contentions.

It follows that the Tribunal did not err in law and the first question in the appeals must be answered in the Minister's favour with the result that his appeals must succeed in each case.

The grant of declaratory relief

As to the second question in the appeals, we indicated at the commencement of these reasons our agreement with the approach taken, in dissent, by Beaumont J. Section 16(1)(c) of the ADJR Act empowered the Full Court to make an order "declaring the rights of the parties in respect of any matter to which the decision relates". The majority of the Full Court identified the relief given as declaratory, but referred in that respect to par (d) of s 16(1)[35]. Paragraph (d) is concerned with relief which is imperative rather than declaratory. It provides for an order which directs any of the parties to do or refrain from doing certain acts or things. Accordingly, the relief given was to be supported, if at all, under par (c) of s 16(1). The question is whether declaratory relief was properly given.

The orders of the Full Court included a declaration "that both appellants are refugees and are entitled to the appropriate entry visas". A declaration in these terms lacked utility because it did not specify with reference to the legislation the "appropriate entry visas" nor did it indicate any ready means of identification thereof. A declaration so loosely framed is objectionable in form[36].

Moreover, a declaration, even if drawn in specific terms, should not have been made. The Tribunal was empowered by s 166BC(1) of the Act to exercise all the powers and discretions conferred upon the primary decision-maker. The Act provided (s 22AA) for determination by the Minister that a person was a refugee, but this power was exercisable upon the Minister being satisfied that a person had that status or character. The rights of the appellants to the issue of visas, which the Full Court purported to declare with present effect, would only arise upon satisfaction of statutory conditions including the determination by the Minister under s 22AA or by the Tribunal under s 166BC[37].

In those circumstances, the appropriate course would have been for the Full Court to set aside the orders of Sackville J and to return the matter to the Tribunal for determination in accordance with law.

Order

The appeals should be allowed. The orders made by the Full Court of the Federal Court should be set aside. In accordance with the Minister's undertaking, he should pay the costs of the appeals in this Court. In lieu of the Full Court's orders, there should be orders that the first respondents' appeals to that Court be dismissed with costs.

KIRBY J. This case demonstrates the care that is devoted to challenges to adverse decisions about claims to   refugee status once they reach the courts and tribunals of Australia. The case was heard over two days by the Refugee Review Tribunal ("the Tribunal"). An application for judicial review consumed six hearing days before a single judge of the Federal Court. There was then a two day hearing before a Full Court of that Court. Following a grant of special leave, an appeal to this Court has now been heard.

At every level of the hierarchy from the primary decision-maker to the first instance decision of the Federal Court, the claims were dismissed. However, the Full Court[38] unanimously upheld the complaint that the Tribunal had erred in its approach to the performance of its review function. It set aside the orders of the single judge[39].

There was a division of opinion in the Full Court as to what should then be done. A majority favoured the making of a declaration that both applicants were refugees and entitled to the appropriate entry visas[40]. One judge concluded that the matters should be remitted to the Tribunal for reconsideration[41]. It is in this way that two essential questions have been presented to this Court. The first concerns substantive issues. Within the limitations inherent in proceedings for judicial review, did the Full Court err in holding that the Tribunal had fallen into error in the manner in which it performed its functions? The second question relates to the relief granted. Was it lawful and appropriate for the Full Court, having found error, to provide the relief stated[42] or was the only relief lawful or proper to the circumstances, that of remittal to the Tribunal for redetermination according to law?

Factual background

The decisions below were controlled, to some extent, by credibility findings made by the Tribunal[43]. It described the applicant's credibility as "unsatisfactory" "not entirely frank", "evasive and unconvincing", "vague, hesitant and inconsistent"[44], and "undermine[d]"[45]. In this Court, at least, the parties steered their respective courses within the boundaries set by these determinations.

The applicants for refugee status are respectively Guo Wei Rong and Pan Run Juan. They are husband and wife and the first respondents to this appeal. The member constituting the Tribunal in this case was the second respondent and she has submitted.

Originally, Mr Guo and Ms Pan brought additional and separate applications on behalf of their two nieces who travelled with them to Australia. However, as a result of orders made at first instance in the Federal Court, those claims have taken a separate course[46]. Ms Pan originally advanced arguments of her own to the effect that she was entitled to refugee status because she feared that she would be subjected to forcible sterilisation if she were returned to China[47]. She had given birth to three children in China, one of them shortly before the last departure for Australia. Two of those children (including the infant) accompanied her on the most recent journey. Ms Pan argued that her repeated breach of the "one-child policy" in China would subject her to the risk of persecution by reason of her membership of a "particular social group"[48]. However, on this claim, the Tribunal found that the lack of interest by the authorities in China prior to Ms Pan's departure was inconsistent with the alleged level of attention claimed in her evidence. It dismissed her separate claim as "implausible", holding that her asserted fear of harm was not well founded having regard to the evidence. Such factual findings were clearly open to the Tribunal. Nothing said by this Court in the decision (given since the hearing of these appeals) about cases concerning the Chinese "one-child policy"[49] affords any ground for reopening the previous determinations affecting Ms Pan.

An alternative basis of a claim to refugee status exists in Ms Pan's case and she relied upon it. Under regulations in force at the time of Mr Guo's application, a "member of the family unit", including a spouse of the family head[50], was entitled to have the determination of his or her refugee status combined with the application by the other family applicant[51]. It was therefore accepted in the Full Court that Ms Pan's case should be treated as being in the same position as that of Mr Guo[52]. That approach accords with what this Court said and did in Chan v Minister for Immigration and Ethnic Affairs[53]. As in that case, it is therefore convenient to concentrate on the claims of Mr Guo on the basis that the outcome of his case will determine the fate of Ms Pan.

Mr Guo, although born in Vietnam, is a Chinese national. When a child, his family moved to the fishing town of Bei Hai, Guangxi Province, China. The present case is the result of the second attempt by Mr Guo (and Ms Pan and their children) to enter Australia by boat and to claim refugee status. The first attempt occurred in May 1992 when Mr Guo and one of the children, together with Ms Pan and Mr Guo's brother, sailed to Australia on a vessel later designated as the Jeremiah. Following their arrival on that occasion, they were removed to the Detention Centre at Port Hedland in Western Australia where they claimed refugee status. In May 1992, their applications were rejected by the Minister for Immigration and Ethnic Affairs ("the Minister").

In August 1992, whilst awaiting review of their applications by the then Refugee Status Review Committee ("the Committee"), Mr Guo, his brother and other Chinese nationals climbed onto the roof of a two-storey building at the Port Hedland Detention Centre and conducted a "hunger strike". They wore headbands and carried banners, expressed in Chinese characters, protesting against allegedly unfair treatment by the Australian Department of Immigration and objecting to the Minister's decision to deport them. One of the banners reportedly stated that the protesters would rather die in Australia than be returned "to face persecution in China". Their protest, and subsequent conduct, gained widespread publicity in Australia and some attention overseas. Some local newspapers identified Mr Guo as one of the leaders of the protest. Details of the incident are recounted in reported decisions concerning other applicants for refugee status, including one for whom Mr Guo gave evidence[54].

In September 1992, the Minister's decisions to deport Mr Guo, his brother, Ms Pan and the child were affirmed by the Committee. Accordingly, in October 1992, they were removed to China. They were informed of assurances received from Chinese officials, conveyed by officers of the Australian Department, that they would not face undue threats from the Chinese authorities after their return. On their arrival in China, an Australian consular official handed Mr Guo a card indicating his name and contacts. Mr Guo later stated that he was questioned about this card and accused by Chinese officials of being a spy for the Australian Government[55].

There was a dispute concerning exactly what happened to Mr Guo and Ms Pan following their return to China. The Tribunal accepted that they were arrested and first detained for five days at a prison near the airport. Ms Pan was then released. However, Mr Guo and his brother were detained for a further 23 days at the Bei Hai Prison. The Tribunal accepted that Mr Guo "may have been questioned" by the authorities about his refugee application in Australia, rooftop protest at Port Hedland and other matters including the consular business card found in his possession. However, the Tribunal found that after a total of 28 days in custody, Mr Guo and his brother were released. Mr Guo was fined the substantial sum of 3,000 rmb and required to pay certain detention and transport costs. He claimed, in his evidence before the Tribunal, that he had later been imprisoned for a further period of nearly four months. However, the Tribunal rejected this claim. In this Court, it was not pressed.

It is now necessary to mention one other event in Mr Guo's life which would have been known to the Chinese authorities but which he did not disclose to the Australian authorities in his first claim for refugee status in 1992. In about 1985, Mr Guo towed a vessel containing a number of Vietnamese departees wishing to leave China for Hong Kong. He did this for payment using his skills as a seaman. On his return to China he was identified as one of the instigators of the illegal departure of the Vietnamese nationals. He was interrogated. The payment which he had received was confiscated. He was dismissed from his employment and fined between 3,000 and 4,000 rmb. He immediately fled to Hong Kong, allegedly because he feared that he would be detained owing to his inability to pay this fine. However, he was returned from Hong Kong to China, held in custody for three months and then sentenced to imprisonment for two years in a labour camp. Members of his family were also fined for failing to report his illegal departure from China. Mr Guo did not complete his sentence. After six months, allegedly as a result of a bribe and because of deteriorating health, he was released. With money borrowed from his mother he purchased a fishing boat and recommenced work as a fisherman. In 1989, he acquired a larger vessel.

The foregoing was the background to Mr Guo's first attempt to gain entry to Australia by the journey on board the Jeremiah. He said that he had not disclosed the Hong Kong infractions to the Australian authorities for fear that they would prejudice his claim to refugee status. In the Tribunal and in the Federal Court, it was accepted that the described events were substantially what had occurred. But that acceptance meant that when Mr Guo's punishment, following his return, for illegally departing China fell to be assessed, a reason existed alternative to political harassment, to explain the apparently longer detention which had occurred in his case than in other proved cases. This was the fact that he was a repeat offender and the inference that he was an instigator in illegal departures and possibly involved in them for personal profit (as had undoubtedly been the case with the Hong Kong departees and might be inferred more generally from his established skills in seafaring).

The events immediately preceding the second departure of Mr Guo and Ms Pan were explored by the Tribunal and in the Federal Court. Following his release from custody he was subjected to a fishing licence restricting him to local waters. Whether these orders were designed to discourage further involvement by him in illegal departures, or were connected with a substantial unpaid debt owed to a credit union on the vessel, is not entirely clear. But a court order to repay the debt, the subsequent confiscation of his fishing vessel and the birth of a third child certainly preceded the decision of Mr Guo and Ms Pan once again to attempt the ocean journey to Australia. In November 1993 they departed China in a boat later designated the Quokka. They arrived at Broome, Western Australia, on 5 December 1993. They were immediately detained. Once again, Mr Guo and Ms Pan found themselves in the Port Hedland Detention Centre. Applications were again made by them for visas based upon their claims to refugee status. The Minister refused their applications. Mr Guo and Ms Pan thereupon applied to the Tribunal for a review. Thus began the process which now brings them to this Court.

The applicable legislation

The application for review by Mr Guo and Ms Pan fell to be determined by reference to the provisions of the Migration Act 1958 (Cth) ("the Act")[56]. Section 22AA of that Act provided, relevantly:

"If the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a refugee".

By the Act[57], "refugee" is given the same meaning as it has in the Convention Relating to the Status of   Refugees signed at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol Relating to the Status of Refugees signed at New York on 31 January 1967. By the Convention, so modified, a refugee is a person who[58]:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it".

By reason of the applications to the Tribunal, it was required by the Act to review the primary decisions[59]. The determination that a non-citizen is not a refugee under the Convention was one of the categories of decision within the Tribunal's jurisdiction, as was the decision to refuse a visa in such circumstances[60]. The Tribunal[61] was obliged by the terms of the Act to perform its duties in accordance with the Act, relevantly:

"166C(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case".

The Act provides for the procedures of the Tribunal[62]. Having reached its decision, the Tribunal is obliged to prepare a written statement setting out the decision, the reasons for it and the findings on material questions of fact. That statement must also refer to the evidence on which the findings of fact are based[63].

The Act has come under the scrutiny of this Court on a number of occasions. Relevant to the present appeals, two decisions may be recalled. In Chan[64] the Court concluded that the definition of "refugee", incorporated by the Act, involved both objective and subjective considerations. An applicant for the status of   refugee would satisfy the definition if he or she demonstrates a genuine fear founded on a "real chance" of persecution for one of the stipulated reasons, should the applicant be returned to the country of nationality[65]. In this respect, this Court's decision accorded generally with the approach adopted by courts in the United Kingdom[66] in preference to the phrase "reasonable possibility" adopted by courts in the United States of America[67]. Because the future can never be told with certainty, particularly perhaps in the variable and sometimes unpredictable matter of persecution, this Court endorsed a test which both permits and requires rational speculation and denies the necessity of the proof of affirmative certainty. Mason CJ in Chan explained[68]:

"I prefer the expression 'a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen[69]. ... If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin."

The second decision is Minister for Immigration and Ethnic Affairs v Wu Shan Liang[70]. In that case, the Court reaffirmed the approach stated in Chan. But it also emphasised that it was inappropriate, in the conduct of judicial review, for an over-zealous approach to be adopted towards the reasons of the administrative decision-maker[71]. Such reasons were to be given a "beneficial construction"[72] with the avoidance of minute and fine scrutiny by "an eye keenly attuned to the perception of error"[73]. Although Chan was decided well before the hearing in this litigation, Wu Shan Liang was not available to the Federal Court when it reviewed, at first instance and on appeal, the Tribunal's decision in this case.

The Tribunal's decision

In the case of Mr Guo, the Tribunal had to evaluate his contention that, owing to a well-founded fear of being persecuted for reasons of political opinion, he was unable or unwilling to return to China. The bases upon which a "real chance" of such persecution were advanced rested upon two essential considerations. The first was the foregoing history of what might loosely be called "political protest" and defiant conduct on the part of Mr Guo. The second was the history of the repeated breach of the "one-child policy" evidenced in the birth of a third child to Mr Guo and Ms Pan and allegedly also demonstrated in the harassment and threats of sterilisation which both Mr Guo and Ms Pan said they had received after their second and third children were born. It was submitted that the two stated factors were to be considered cumulatively.

In addition to the evidence of Mr Guo and Ms Pan, qualified by the credibility findings already mentioned, the Tribunal received a large amount of evidentiary material from the Australian Department of Foreign Affairs and Trade. This was directed towards the way in which the Chinese authorities typically dealt with returnees from Australia and with persons whom they suspected to have evidenced political dissent. One such piece of evidence was a cable of 1 June 1993 from that Department to the effect that Chinese authorities were, in the official's estimate, not concerned with political activities of Chinese nationals outside China but rather with whether, should they be returned, they would intend to oppose the Chinese Government at home in an effective and organised way. According to the report, persons who did not have a high dissident profile or significant influence in China at the time of the Tiananmen Square incident would face only a "remote chance" of suffering administrative or criminal sanctions by the Chinese authorities following a return to China from Australia. This would be so unless, after their return, they were to become involved in organising activities in opposition to the Chinese Government[74]. The assessment in this cable was accepted by the Tribunal[75]. Indeed, Mr Guo himself embraced it. He argued that, because of his cumulative activities, the Chinese authorities had already attributed a political profile to him. By inference, he submitted, they would do so with greater conviction were he to be returned again because of his repeated defiance of Chinese law evidenced by his several illegal departures.

The Tribunal also received a translated version of two articles of the Criminal Law of the People's Republic of China[76] providing for the punishment of individuals who illegally crossed the Chinese border. The articles read:

"Article 176

Whoever violates the laws and regulations that control leaving and entering the country, secretly crossing the national boundary (or border-line), when the circumstances are serious, is to be sentenced to not more than one year of fixed-term imprisonment, criminal detention or control.

Article 177

Whoever for the purpose of reaping profits, organizes or transports other persons secretly to cross the national boundary (or border-line) is to be sentenced to not more than five years of fixed-term imprisonment, criminal detention or control, and may in addition be sentenced to fine".

The Tribunal received still further material from Amnesty International according to which unsuccessful asylum seekers, upon return to China, "receive variable treatment according to their personal background, police record, their connections, the circumstances in which they left the country, and to an extent, their willingness to admit they have done something wrong. It may vary from a few months 'supervision' or detention to long terms of imprisonment"[77]. More up to date material placed before the Tribunal, referred to in its reasons, suggested that the Chinese Government was "likely to start getting tough on repeat offenders, who are representing an increasing proportion of Chinese boat people"[78]. The Tribunal accepted the evidence of another cable from the Department of Foreign Affairs and Trade. This assessed the treatment of the returnees from the Jeremiah of whom Mr Guo and Ms Pan were two. The cable stated:

"The returnees would be likely to receive some criticism during the period of detention for having participated in the protests [at Port Hedland], but the authorities would not regard the protests as sufficiently high-profile to seriously embarrass the PRC"[79].

The same cable went on to state that the Jeremiah group might be seen by Chinese authorities as having importance for the investigation of the illegal emigration industry and for future cooperation with destination countries. It quoted an officer of the Chinese Ministry of Foreign Affairs to the effect that members of the Jeremiah group had been detained for six days and questioned about the circumstances of their departure, the objective being to learn more about the organisation which had arranged the departure[80].

The Tribunal accepted all of the foregoing written material, as was clearly open to it. So did Mr Guo and Ms Pan. Mr Guo laid great emphasis upon the last-mentioned cable. Because it was accepted that he had been detained in custody (with his brother) for 28 days, and not the six days promised by the Foreign Ministry official, he argued that the inference of established political persecution was inescapable. No other relevant consideration linked the Guo brothers, save for their prominent involvement in the Port Hedland protest. Mr Guo's brother did not have a previous record of transporting Vietnamese departees to Hong Kong to explain the extended detention in his case. However, so far as the common treatment of the two brothers is concerned, it would have been open to the Tribunal, as a matter of fact, to ascribe this to the fact that the Chinese authorities inferred that the two brothers were associated together in the trip. Such matters of speculation as to the operation of the criminal justice system of China involved the evaluation of evidence which was committed by law to the Tribunal and not to the Federal Court.

The basis of the Tribunal's rejection of Mr Guo's claim to refugee status is clear enough. Having rejected his evidence concerning an alleged additional three months detention, with beatings and harassment, the Tribunal was faced with evaluation of the suggested relevance of the differential detention in his case for 28 days as well as the high fine imposed upon him. It concluded that these penalties related not to any "political profile" or imputed political opinion but to his aggravated offences against Chinese law. The Tribunal accepted that Mr Guo had a fear about how he would be treated upon his return to China. It also accepted that, upon such return, he could indeed be exposed to punishment under Chinese law. However, the Tribunal was satisfied by the evidence that the laws relating to illegal departure were applied to the Chinese population generally. It found that the evidence "does not suggest that the Applicant is differentially at risk for a Convention reason"[81]. It said:

"In the Tribunal's view if the authorities had been concerned about his activities or application for refugee status in Australia he would have been detained for a longer period. The period of imprisonment and fines the Applicant received is within the range and consistent with the independent evidence before the Tribunal in relation to the penalties for illegal departure. The Applicant's claims concerning adverse treatment because of these matters is not supported by the evidence"[82].

As to the alternative contention that the repeated defiance of the "one-child policy" would, of itself, attract attention to Mr Guo, the Tribunal was also unconvinced[83]:

"[The] lack of interest in the Applicant on his return to China by the ... family planning authorities is not consistent with the level of interest and profile he has portrayed to the Tribunal. The Tribunal has already referred to the evasiveness of the Applicant concerning his contact with the family planning officials and the threat of sterilisation; as well as his credibility generally. In the circumstances the Tribunal finds his account on these matters implausible. For these reasons the Tribunal finds that the Applicant does not face a real chance of forcible sterilisation on return to China. Consequently the Applicant's fears of harm are not well-founded. In view of this finding it is not necessary to make a determination as to whether the treatment the Applicant fears amounts to persecution or is for a Convention reason."

The Tribunal noted the applicant's submission which was, in effect, that the cumulation of his conduct would attract to him a perspective different than on his last return. This was related to the fact that the appellant had now illegally departed from China on three occasions and had been an organiser of the 1993 departure. However, confining itself to "credible evidence" the Tribunal found[84]:

"no connection between the Convention grounds and the punishment the Applicant fears for illegal departure and or as an organiser. ... [The] Tribunal finds that these matters will not result in persecution to the Applicant for Convention reasons if returned to China ... [Any] punishment is not for a Convention reason (sic). In view of this finding, it is not necessary to make a determination as to whether the treatment amounts to persecution or is well-founded."

Decisions of the Federal Court

The primary judge in the Federal Court (Sackville J) had before him a multitude of grounds of review[85]. They included a number of grounds which were not pressed in the Full Court. As evidence of the ingenuity brought to bear in these cases, I cannot forbear to mention that the grounds included several attacking the conduct of the initial interviews and the facilities for legal or other advice afforded to Mr Guo and Ms Pan[86]; others concerned the representation afforded to them before the Tribunal[87]; the manner of the conduct of a tape recorded interview[88]; in Ms Pan's case, reliance on the one-child policy[89] and an allegation of bias against the member constituting the Tribunal[90]. All of these were rejected. However, necessarily, they took a great deal of time to sort out.

The central part of Sackville J's reasons addressed the contentions which are still said to be in issue, namely that the Tribunal's determination was so unreasonable that no reasonable person could have reached such a conclusion[91] and that, whilst purporting to apply the correct legal test, the Tribunal had erred in law by failing to consider properly the application of the Act to the facts found[92].

Sackville J permitted further evidence to be given before him by Mr Guo but for a limited purpose. He declined to set aside the Tribunal's findings about Mr Guo's credit, discerning no error of law in the Tribunal's approach on that issue[93]. He therefore proceeded to evaluate the complaints of unreasonableness and misapplication of the correct legal test within the ambit of the findings of fact made by the Tribunal. So approached, his Honour rejected the contention that the Tribunal's conclusion was "irrational or unreasonable" or "logically self-contradictory"[94]. As to the suggestion that the Tribunal had not really applied the statutory test by considering whether there was a "real chance" of persecution, Sackville J was equally unconvinced[95]. He therefore dismissed Mr Guo's application. He also dismissed that of Ms Pan in so far as it relied on the same or separate grounds[96].

Full Court of the Federal Court

In the Full Court, the differences as to the orders to be made was not the only matter which divided the judges. Beaumont J identified three suggested legal errors in the reasoning of the Tribunal which led him to reverse Sackville J. The errors were:

(1) What his Honour took to be the undue concentration by the Tribunal upon the sentence imposed on Mr Guo following his return to China in October 1992. After an analysis of the meaning of "political opinion" in legal authority, Beaumont J concluded that, even if the sentence imposed were within the range for an ordinary criminal offence, it could still be "politically significant"[97]. He considered that the Tribunal had failed to appreciate and give weight to that possibility.

(2) He also concluded that the Tribunal had failed to give any weight to the conduct of Mr Guo in transporting Vietnamese nationals to Hong Kong as being, of its nature, "implicitly political"[98].

(3) As well, he concluded that the Tribunal had effectively confined its attention to "the sentence alone" and had not considered, cumulatively as the law required, all of the activities of Mr Guo, including his involvement in the Port Hedland protest, when conducting the necessary speculation about the "real chance" required by the Act and by this Court's decision in Chan.

Foster J expressed himself as agreeing generally with the reasons given both by Beaumont J and Einfeld J for upholding the appeal[99]. However, there is a difference between the way each of those judges approached the matters, the approach of Beaumont J being significantly narrower than that of Einfeld J.

Einfeld J's approach involved a detailed analysis of the language of the reasoning of the Tribunal from which he derived a conclusion that it had effectively cast too heavy a burden of proof upon Mr Guo and Ms Pan. In various passages of textual analysis, his Honour expressed the opinion that the Tribunal had effectively imposed a "balance of probabilities test" and a requirement of corroboration in the place of the "real chance" test expressed by this Court.

In this Court, the Minister accepted that it was necessary to guard against the possibility that a claim, based on past facts which would undoubtedly support a "real chance" of future persecution if accepted, should not be entirely discarded because, on balance, particular facts were not accepted. The "real chance" test inescapably involved an element of speculation which had to be preserved throughout the review conducted by the Tribunal. This must be so given the imponderables which can affect the chances of future persecution of individuals returned to a country from which they have departed asserting that they are refugees. I have examined the passages in the Tribunal's reasons, relied upon by Einfeld J. With respect, I do not believe that they sustain his Honour's conclusion. Nor do I consider that the findings of fact recorded by the Tribunal as to the existence of a relevant fear on the part of the respondents indicated legal error. There was no error in approaching the question before the Tribunal by first determining whether the subjective fear existed and was well founded and then proceeding to consider whether, in such circumstances, it was based on a Convention reason. On the contrary, I consider this to be logical and proper.

Although Einfeld J accepted the importance of affording the decision of the Tribunal a beneficial construction[100], I consider that the approach which his Honour adopted to the analysis of the Tribunal's reasons was that which was criticised by this Court in Wu Shan Liang[101]. This is not to say that analysis, even close analysis, of a decision-maker's reasoning is improper where its decision is challenged in judicial review proceedings. The Tribunal in this case was obliged to state reasons[102], to make findings and to refer to the evidence upon which the findings were based[103]. However, reading such reasons with an over-zealous eye to find in them expressions or approaches (such as the "balance of probabilities") which are not stated runs into the dangers against which Wu Shan Liang warns.

Other criticisms were made of the reasons of Einfeld J (and of Foster J) concerning their suggested findings of fact[104], additional to those made by the Tribunal. However, I mean no disrespect to the majority's reasons if I confine the balance of this opinion to the narrower approach of Beaumont J. In my view, it represents the only basis upon which the decision of the Full Court could be sustained.

Addressing the correct legal question

The Minister argued, in effect, that all of the judges of the Full Court had arrived at conclusions on the facts different from those reached by the Tribunal, and then proceeded to give effect to them. They had done so although the process before them (judicial review) did not permit that course. On the other hand, Mr Guo and Ms Pan supported the decision of the Full Court. They argued that the decision and reasons of the Tribunal warranted the orders made. They confined their arguments, in this respect, to grounds of review provided in the Administrative Decisions (Judicial Review) Act. They made no separate reference to their primary application which had included a claim for relief based on the Judiciary Act. I shall adopt the same approach.

The respondents sought to repel the attack by the Minister on the ground that various errors (not all of them found below) could be demonstrated in what the Tribunal had done. They were permitted to do this although, strictly, the record was not put in order to allow an attempt to uphold the orders of the Full Court upon grounds different from those sustained by the judges' reasoning.

Thus, it was first argued that the Tribunal had taken into account irrelevant considerations[105], such as the terms of Articles 176 and 177 of the Criminal Law of the People's Republic of China and the meaning ascribed to the requirement for more severe punishment ("when the circumstances are serious"). There is no merit in this ground. The findings of fact were open to the Tribunal, as was correctly recognised by the Federal Court. Nor is there merit in the suggested failure of the Tribunal to take into account relevant considerations[106]. Under this heading, it was submitted that the Tribunal had failed to consider the disparity between the detention foreshadowed by the Chinese official (six days) and the detention actually suffered by Mr Guo in 1992 (28 days). This argument is also meritless. The differential was clearly considered by the Tribunal. In its reasons it was not obliged to deal expressly with every item of evidence. It was open to the Tribunal to conclude, as a matter of fact, either that the difference in the case of Mr Guo was warranted by his past criminal record or that it was not sufficiently significant to support the argument that there was a real risk of persecution for his political opinion.

There is even less foundation for the next argument which was that there was no evidence at all to justify the Tribunal's decision[107]. Mr Guo and Ms Pan rested their fear of persecution upon the combined effects of the suggested demonstrations of political dissent (evidenced in the repeated departures from China), the protest at Port Hedland and the attitude adopted by them to the "one-child policy". Given that the Tribunal found adversely to the credit both of Mr Guo and Ms Pan, it was necessarily driven to weighing the other (objective) material before it. That material told heavily against the "real chance" which Mr Guo and Ms Pan asked the Tribunal to hypothesise. The relatively short detention of Mr Guo after his first return (28 days) and the very short detention of Ms Pan (5 days) did not bespeak an opinion on the part of the Chinese authorities concerning their supposed political significance. Furthermore, the objective evidence of what the Family Planning officials had done, as accepted by the Tribunal, did not suggest, on that ground either, that their breach of the "one-child policy" was, or was seen to be, politically motivated.

It is in this way that the case is brought back to the two grounds which the Federal Court analysed most closely. These were the suggestion that the Tribunal's exercise of power was so unreasonable that no reasonable person could have so exercised it[108] and the argument that it evidenced error of law in its approach[109]. The ground of Wednesbury unreasonableness was adequately dealt with by Sackville J[110]. I cannot improve on his Honour's reasons for rejecting it. None of the judges in the Full Court rested their conclusion on that ground. Even those judges who took the broader view did not seek to sustain their decision upon that basis[111].

In this way, both on the Minister's appeal and the respondents' defence of the Full Court's decision, the matter eventually comes down to the question whether an error of law is shown in the approach of the Tribunal to the performance of its statutory function[112]. This was the way that Beaumont J approached the matter. He upheld the contention.

The applicable principles are not in doubt. The question whether facts, as accepted by a primary decision-maker, fall within or outside a statutory provision is itself a question of law[113]. Whether a primary decision-maker has accurately considered and applied the relevant law may also present a question of law. If it appears that a donee of statutory powers is labouring under a misapprehension as to the requirements attaching to their exercise, it is the reality, and not the appearances, which matters. In Sinclair v Maryborough Mining Warden[114], Gibbs J explained:

"[It] appears from these reasons that in making his recommendation the warden was labouring under a misconception as to his duty, so that he did not apply himself to all the matters that the regulations required him to consider. There was thus a purported but not a real exercise of his functions and he has failed to perform his duty according to law".

Such questions are usually expressed in terms of whether the decision-maker "really" or "genuinely" or "truly" considered the matters essential to the exercise of the power invoked. But such adverbs add little or nothing to the legal requirement unless they help to emphasise that the judge, reviewing the decision which is impugned, must look beyond the inclusion in the reasons of the decision-maker of the relevant statutory provisions, the citation of relevant authority or the assertion that these have been taken into account. The judge must assess whether a real, as distinct from a purported, exercise of the power has occurred. Where it has not, there is a constructive failure to exercise jurisdiction which will constitute an error of law authorising the provision of relief.

In the present case, Beaumont J asked himself "Did the Tribunal really address the correct legal question?"[115] He considered that the issue was "a difficult one"[116]. He concluded[117]:

"[To] adopt the language used in Sinclair, although the Tribunal may have purported to address this question, it did not really do so, with the consequence, I think, that there was a constructive failure by the Tribunal to exercise its jurisdiction".

It is necessary to scrutinise the three reasons stated by Beaumont J. First, his Honour makes the point, undoubtedly correct, that the mere fact that the sentence imposed on Mr Guo after his first return to China was within "an expected range" for his offence, would not exclude its possible political significance. Beaumont J reached this conclusion by reference to the decisions of courts of high authority[118], as well as of the Handbook of Procedures and Criteria for Determining Refugee Status ("the Handbook") of the United Nations High Commissioner for Refugees and other texts[119]. He explained the need to avoid "excessive formalism" in the assessment of actions which, in intolerant environments, may be interpreted as implying an adverse political opinion. I agree with his Honour's remarks in this regard. Intolerance and autocracy can be irrational. Even democracy is not immune from such errors. The fact that a person was dealt with lightly in the past does not guarantee the same treatment in the future, particularly after a repeated demonstration of nuisance status. A healthy injection of doubt must therefore be introduced. The places from which refugees normally flee rarely have legal or administrative systems that permit the rational and consistent application of logic which our courts like to boast of but sometimes themselves fail to provide. To say this is not to intrude into assessment of the merits or to impose a conclusion about likely events in any particular country. It is simply to accept the inherent unpredictability of the future and the special difficulties which arise in assessing accurately the possible course of political or other oppression in the kinds of countries from which refugees typically come.

However, the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for reasons of political opinion. It remains for the Minister in the first place to be "satisfied"[120] and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.

With respect, there is no basis in the reasons of the Tribunal to support a conclusion that it failed to address the correct question. It referred to the Handbook as a guide to its decision-making but no more[121]. It indicated an awareness of Canadian and United States jurisprudence[122]. It was obviously troubled by its conclusion as to the lack of credibility of Mr Guo and Ms Pan. It therefore turned to such objective material as was available to assess whether their fear, which was accepted, was based upon a real chance of their being persecuted for reasons of political opinion if they were returned to China. The matter was one for judgment and assessment. It thus involved a classical problem of fact-finding and decision making. The speculative consideration of what might occur to the respondents, if once again they were returned to China, was one necessitating conclusions of fact on the part of the Tribunal and speculation as to the future resting on those conclusions. So long as the Tribunal considered the correct legal questions, no lawful basis could be established for the intervention of the Federal Court simply because that Court disagreed with the Tribunal's factual conclusions.[123]

Secondly, it may be accepted that Mr Guo's transportation of Vietnamese nationals to Hong Kong was "implicitly political". So was his own unsuccessful attempt to go there. However, it cannot be suggested that the Tribunal overlooked that conduct. It is described at some length in the Tribunal's reasons[124]. The Tribunal was entitled to weigh the objective evidence that, after these incidents, Mr Guo returned to China, established, and then expanded, his fishing business and could be viewed as having towed the vessel containing the departees to Hong Kong for profit rather than as a political protest.

Thirdly, I cannot agree that the Tribunal's repeated references to, and consideration of, the sentence imposed upon Mr Guo on his return to China in October 1992 represented an undue diversion from the real issue before it. It was relevant for the Tribunal to judge whether Mr Guo was dealt with for criminal offences, as distinct from acts of political dissent. It was appropriate (and certainly open) to the Tribunal, evaluating the "real chance" of future persecution, to take into account the objective way in which it found Mr Guo had been treated on his last return to China. When it was decided that this involved a total detention of only 28 days, it scarcely justified Mr Guo's claim that he was already a marked man because of his known political opinions. When measured against the provisions of the Criminal Law of the People's Republic of China[125], the reports of Amnesty International on political cases and the admission of Mr Guo's repeated offences, the conclusion on the length of his detention was arguably a very useful yardstick for the Tribunal in measuring official Chinese attitudes to Mr Guo in the past. From that conclusion, so long as the Tribunal remained alert to the perils of predicting the future from the past, not least in cases of this kind, it was both rational and reasonable to draw inferences as to how he might be treated if once again he were returned to China.

The evaluation of such matters was entirely factual in character. It was therefore reserved by law to the Tribunal. I see nothing in the Tribunal's approach as evidencing a constructive failure to exercise its jurisdiction. Once it accepted (as it did) that Mr Guo (and Ms Pan) had a real fear of returning to China, the Tribunal was obliged to characterise this fear. It did so. It attributed the fear to the prospect of further criminal punishment of repeat offenders not to a "real chance" of their being persecuted for reasons of political opinion. The latter, alone, would attract to this case the protection of the Convention by virtue of the Act.

I differ with hesitation from the conclusion which Beaumont J reached (with the concurrence of Foster J) on this point. I acknowledge that it turns upon the evaluation of the approach "really" taken by the Tribunal. Ordinarily, such matters should conclude in the Full Court of the Federal Court. It would certainly have been possible for the Tribunal's reasons to have indicated more precisely that it had kept in mind, to the end, the cumulation of Mr Guo's various activities and the fact that "political opinion" may be shown by repeated conduct which is never (or rarely) converted into articulate political protest of the kind familiar to Australian society. However, when the substance of the Tribunal's approach and reasons are scrutinised, it is clear enough that the claims of Mr Guo and Ms Pan were considered as the Act required. This being so, complaints about the Tribunal's conclusions are complaints of factual and not of legal error. They are therefore not susceptible to correction (at least in a case such as the present) by judicial review.

The proper relief

The foregoing conclusion is sufficient to dispose of the appeals to this Court. However, like the majority, I consider that it is appropriate to say something briefly about the Minister's alternative complaint concerning the relief which the Full Court[126] provided. Upon this matter the dissenting opinion of Beaumont J was clearly correct. Had legal error of the kind found been established, the proper course would have been to remit the proceedings for redetermination by the Tribunal consistently with the Federal Court's elucidation of the law. The provision of a declaration such as the Full Court felt entitled to make was, at the least, not appropriate.

The powers of the Federal Court are expressed in very broad terms in the Administrative Decisions (Judicial Review) Act[127]. It would be undesirable to give the broad mandate there stated a narrow construction. However, it is important to distinguish the procedure of judicial review from that of an appeal where, typically, a court enjoys larger powers. It is for that reason that care must be exercised in applying decisions about the available and appropriate remedy apt to an appeal when the process before the Court is that of judicial review[128]. Whereas on appeal a court will often enjoy the power and responsibility of substituting its decision for that under appeal, judicial review is designed, fundamentally, to uphold the lawfulness, fairness and reasonableness (rationality) of the process under review. It is thus ordinarily an adjunct to, and not a substitution for, the decision of the relevant administrator. This is why, as Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd[129]:

"It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator".

No course would be more likely to undermine the legitimacy and acceptability of judicial review than a usurpation by the courts, where this is not warranted, of the ultimate functions committed by law to the decision-maker.

There may be cases where the width of the court's powers, the discovery of a fundamental flaw in the primary decision and strong arguments of convenience will warrant the making of orders effectively determining the question under review[130]. In those circumstances, it may be open to the court to fashion orders (including by way of declaration of legal right) which effectively give final relief. Naturally enough, courts find it attractive, particularly when urged by both parties, to provide orders which avoid the "awkward, somewhat invidious ... waste of time and money, to refer the matter back ... for further consideration"[131]. However, in most circumstances, this should not be done, whatever the urging of the parties[132]. Thus, it should not be done where the statute empowering the court does not afford it a remedy which is applicable or appropriate to bring to conclusion the controversy between the parties. In the present case, there is a real question as to whether the declaration made, following the majority opinion in the Full Court, unsupported by any order to give it effect, would achieve, in law, the apparent objectives which the majority had in mind. Such a declaration should not be made where any residual discretion remains in the primary decision-maker. Nor where, following review, outstanding facts remain to be found which could affect the final decision. Nor should it be made where, on its true construction, the Act conferring power on the primary decision-maker makes it clear that such decision-maker, and it alone, is the recipient of the power to make the decision in question. Thus, in the present case, the primary decision-maker was the Minister who had to be "satisfied" that a person was a   refugee[133]. The Tribunal was empowered by the Act to exercise all the powers and discretions conferred by the Act on the person who made the primary decision[134]. By the Act, the Tribunal enjoyed large powers in reaching its satisfaction. It could confirm or vary the decision or set it aside and make a new decision, being one authorised by the Act or regulations[135]. Where the Act confers such powers on the Minister in the first instance, and the Tribunal on review for error of law, it would require very clear language to authorise a court, on judicial review for error of law, to substitute its decision for that of the recipient of the applicable powers.

It is not necessary to decide whether it could ever be right in cases such as the present to make a declaration of the kind now challenged by the Minister. This is because the appeal must be disposed of on the substantive grounds already upheld. Anything said on the relief question is therefore obiter. However, it is sufficient in my view to say that it was not appropriate for the Federal Court to adopt the course which the majority did. The proper course, legal error having been found, was to return the matter to the Tribunal[136]. In that way, each of the relevant organs of government performs the functions proper to it. The Judicial Branch authoritatively clarifies and declares the law as it applies to the facts found. The Executive Branch, by power vested in it by the Legislature, performs its functions according to the law as so clarified and declared. Neither branch usurps or intrudes upon the functions proper to the other[137].

The course explained in the foregoing remarks is that which has been observed in the past by this Court[138]. It also appears to be that which is ordinarily observed, properly in my view, by the Federal Court[139]. It is the course which should have been followed by the Full Court in this instance.

Orders

It was a term of the grant to the Minister of special leave to appeal, that he should pay the costs of the first respondents whatever the outcome of the appeals. It should be so ordered. During argument, a question arose as to whether the return of the respondents to detention in Australia with a view to their return to China should be postponed, pending the consideration of any fresh application which they might be entitled to make for themselves or their children on the basis of supervening events or new facts. In the light of the statements made to the Court by counsel for the Minister, it is unnecessary for any orders to be made in that regard.

I agree in the orders proposed.

[1] Reported Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151.

[2] Reported Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38.

[3] This analysis is framed in terms of the legislation and regulations as they stood at the relevant time. They have since undergone significant change.

[4] Termed a "Domestic Protection (Temporary) Visa" and a "Domestic Protection (Temporary) Entry Permit" under the Act.

[5] (1996) 185 CLR 259 at 273-275.

[6] (1996) 64 FCR 151 at 166.

[7] (1989) 169 CLR 379.

[8] Wu Shan Liang (1996) 185 CLR 259 at 277.

[9] (1996) 185 CLR 259 at 278-282.

[10] (1989) 169 CLR 379 at 388.

[11] (1989) 169 CLR 379 at 390.

[12] (1989) 169 CLR 379 at 399.

[13] (1989) 169 CLR 379 at 429-430.

[14] (1989) 169 CLR 379 at 416.

[15] (1989) 169 CLR 379 at 433.

[16] (1997) 71 ALJR 381; 142 ALR 331.

[17] (1997) 71 ALJR 381 at 389; 142 ALR 331 at 341.

[18] (1989) 169 CLR 379 at 389.

[19] (1989) 169 CLR 379 at 429.

[20] (1996) 185 CLR 259 at 274-275.

[21] (1996) 64 FCR 151 at 179.

[22] His Honour said ((1996) 64 FCR 151 at 179): "The Tribunal has shunned speculation, weighed the probabilities and therefore avoided the 'real chance' test."

[23] For example, (1996) 64 FCR 151 at 179.

[24] (1996) 64 FCR 151 at 179.

[25] (1996) 185 CLR 259 at 281 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[26] (1996) 64 FCR 151 at 175.

[27] See, for example, Bushell v Repatriation Commission (1992) 175 CLR 408; Byrnes v Repatriation Commission (1993) 177 CLR 564.

[28] s 166E(1) of the Act.

[29] (1996) 64 FCR 151 at 179.

[30] (1989) 169 CLR 379 at 391-392.

[31] (1996) 64 FCR 151 at 165.

[32] (1975) 132 CLR 473 at 480, 483.

[33] (1996) 64 FCR 151 at 165.

34 (1996) 64 FCR 151 at 166.

[35] (1996) 64 FCR 151 at 185, 204.

[36] University of New South Wales v Moorhouse (1975) 133 CLR 1 at 10-11.

[37] See Chan (1989) 169 CLR 379 at 409 per Toohey J.

[38] Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151; 135 ALR 421, Beaumont, Einfeld and Foster JJ.

[39] Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38, Sackville J.

[40] See (1996) 64 FCR 151 at 186 per Einfeld J, 204 per Foster J; 135 ALR 421 at 470.

[41] See (1996) 64 FCR 151 at 166; 135 ALR 421 at 434 per Beaumont J.

[42] Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16.

[43] Refugee Review Tribunal, unreported decision, 19 May 1994 (Ms S McIllhatton, Member), matter N 94/03004 (hereafter "RRT decision").

[44] RRT decision, at 24.

[45] RRT decision, at 26.

[46] Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 79.

[47] (1995) 38 ALD 38 at 70-71.

[48] (1995) 38 ALD 38 at 70.

[49] Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381; 142 ALR 331.

[50] Migration (1993) Regulations (Cth) Reg 1.8(1). See also Pt 2A, reg 2A(1).

[51] See generally Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 72.

[52] See eg Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 166 per Beaumont J; 135 ALR 421 at 434.

[53] (1989) 169 CLR 379 esp at 392 per Dawson J.

[54] Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 395 at 397-398. See also Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 239.

[55] Affidavit quoted by Foster J in Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 196-198; 135 ALR 421 at 463-464.

[56] As it stood prior to the Migration Legislation Amendment Act 1994 (Cth) which commenced on 1 September 1994. See Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 43.

[57] s 4(1) of the Act.

[58] Article 1A(2) of the Convention.

[59] s 166BB.

[60] s 166B(1)(a) and (b).

[61] Established pursuant to s 166J.

[62] See eg ss 166DB, 166DC, 166DD and 166DE.

[63] s 166E(1).

[64] (1989) 169 CLR 379.

[65] (1989) 169 CLR 379 at 389.

[66] R v Home Secretary; Ex parte Sivakumaran [1988] AC 958 at 994.

[67] Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 at 440 (1987).

[68] (1989) 169 CLR 379 at 389.

[69] (1986) 161 CLR 10 at 21.

[70] (1996) 185 CLR 259.

[71] (1996) 185 CLR 259 at 271-272; 291-292.

[72] (1996) 185 CLR 259 at 271; cf Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

[73] Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287 cited in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.

[74] Department of Foreign Affairs and Trade, Cablegram O.BJ1879, 1 June 1993.

[75] RRT decision, at 8.

[76] Articles 176 and 177. The Criminal Law and the Criminal Procedure Law of the People's Republic of China (1984), Beijing - Foreign Language Press (translation).

[77] Letter of Amnesty International Australia to Refugee Status Review Committee dated 26 June 1992 re Illegal Departure from the PRC.

[78] RRT decision at 13. See also letter of the Minister to Senator Harradine dated 12 March 1993; letter from Department of Foreign Affairs and Trade to Refugee Review Tribunal dated 11 February 1994 re Returnees to the PRC; extract from British Broadcasting Corporation Broadcast 18 August 1993, all received into evidence.

[79] Department of Foreign Affairs and Trade, Cablegram BJ312, 4 January 1993 from Australian Embassy, Beijing to Department of Foreign Affairs and Trade, Canberra. Subject: China: Return of Jeremiah Boat People to China.

[80] Department of Foreign Affairs and Trade, Cablegram BJ312, 4 January 1993 from Australian Embassy, Beijing to Department of Foreign Affairs and Trade, Canberra. Subject: China: Return of Jeremiah Boat People to China.

[81] RRT decision, at 30. Differential or selective harassment was a consideration recognised as relevant to the very notion of persecution in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429 per McHugh J.

[82] RRT decision, at 28.

[83] RRT decision, at 25-26.

[84] RRT decision, at 31.

[85] Pursuant to the Administrative Decisions (Judicial Review) Act, s 16 and the Judiciary Act 1903 (Cth), s 39B.

[86] Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 58-59.

[87] (1995) 38 ALD 38 at 64-65.

[88] (1995) 38 ALD 38 at 66.

[89] (1995) 38 ALD 38 at 70-71.

[90] (1995) 38 ALD 38 at 71-72.

[91] (1995) 38 ALD 38 at 66-68.

[92] (1995) 38 ALD 38 at 68-69.

[93] (1995) 38 ALD 38 at 58, 67.

[94] (1995) 38 ALD 38 at 68.

[95] (1995) 38 ALD 38 at 68-69.

[96] (1995) 38 ALD 38 at 71-72.

[97] Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 165; 135 ALR 421 at 433.

[98] (1996) 64 FCR 151 at 166; 135 ALR 421 at 434.

[99] (1996) 64 FCR 151 at 186; 135 ALR 421 at 453.

[100] (1996) 64 FCR 151 at 177; 135 ALR 421 at 444.

[101] (1996) 185 CLR 259.

[102] ss 166BF(2)(c), 166E(1).

[103] s 166BF(2)(b). See also s 166E(1).

[104] For example, Einfeld J effectively reversed the finding of fact on the issue of whether Mr Guo and Ms Pan faced a real chance of forced sterilisation if returned to China. Although the Tribunal expressly found, adversely to the applicants, in both cases (in part, on the basis of the assessment of the credibility of the applicants and, in part, on evidence of what had occurred before their departure from China) a different conclusion was reached in the Federal Court. See Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 176; 135 ALR 421 at 443-444.

[105] Administrative Decisions (Judicial Review) Act, s 5(2)(a).

[106] Administrative Decisions (Judicial Review) Act, s 5(2)(b).

[107] Administrative Decisions (Judicial Review) Act, s 5(1)(h).

[108] Administrative Decisions (Judicial Review) Act, s 5(2)(g).

[109] Administrative Decisions (Judicial Review) Act, s 5(1)(f).

[110] Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1995) 38 ALD 38 at 66-67.

[111] See eg Einfeld J in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 173-174; 135 ALR 421 at 441.

[112] Administrative Decisions (Judicial Review) Act, s 5(1)(f).

[113] Hope v Bathurst City Council (1980) 144 CLR 1 at 7; Collector of Customs v Agfa Ltd (1996) 71 ALJR 123 at 125; 141 ALR 59 at 62.

[114] (1975) 132 CLR 473 at 483. See also per Barwick CJ at 480; see also Minister v Teoh (1995) 57 FCR 194 at 200.

[115] Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 165; 135 ALR 421 at 433.

[116] (1996) 64 FCR 151 at 165; 135 ALR at 433.

[117] (1996) 64 FCR 151 at 165; 135 ALR at 433.

[118] For example Immigration and Naturalization Service v Elias-Zacarias 117 L Ed 2d 38 (1992) at 45 per Scalia J; 47 per Stevens J; Attorney-General (Canada) v Ward (1993) 103 DLR (4th) 1 at 38-39 per La Forest J; Cruz v Canada (Minister of Employment and Immigration) (1988) 10 Imm LR (2d) 47; T v Secretary of State for the Home Department [1995] 1 WLR 545 at 558-559; [1995] 2 All ER 1042 at 1054-1055.

[119] Hathaway, The Law of Refugee Status (1991) at 153.

[120] The Act, s 22AA.

[121] RRT decision at 28; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392; Chan v Canada (1996) 128 DLR (4th) 213 at 259.

[122] RRT decision, at 29.

[123] Australian Broadcasting Commission Staff Association v Bonner (1984) 54 ALR 653 at 668-9.

[124] RRT decision, at 7-10.

[125] Articles 176, 177.

[126] Einfeld and Foster JJ; Beaumont J dissenting on this point.

[127] s 16.

[128] Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 240 per Carr J distinguishing Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535, Sheppard and Gummow JJ concurring.

[129] (1986) 162 CLR 24 at 40.

[130] Buck v Bavone (1976) 135 CLR 110 at 119; Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

[131] Sordini v Wilcox (1983) 70 FLR 326 at 347.

[132] Beaumont J records that "we were urged to make a final determination of the matter by making a declaration of refugee status". It is not revealed whether this was a unilateral request. Before this Court the Minister asserted that it was. See (1996) 64 FCR 151 at 166; 135 ALR 421 at 434.

[133] The Act, s 22AA. cf Kolotex Hosiery (Australia) Pty Ltd v Federal Commissioner of Taxation (1975) 132 CLR 535 at 542-544, 567; McMillan, "Recent Themes in Judicial Review of Federal Executive Action" (1996) 24 Federal Law Review 347 at 378.

[134] s 166BC(1).

[135] s 166BC(2), (3) and (4).

[136] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Ethnic Affairs v Conyngham (1986) 11 FCR 528 at 541; Cocks v Thanet District Council [1983] 2 AC 286 at 295.

[137] cf McMillan, "Recent Themes in Judicial Review of Federal Executive Action" (1996) 24 Federal Law Review 347 at 365; and comment by Burmester (1996) 24 Federal Law Review 387 at 389.

[138] For example, Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 435.

[139] Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (1994) 35 ALD 225 at 227 (recording the orders of Drummond J) and 241 (orders of the Full Federal Court).