Fu Kai Yuan v. Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal





PERTH, 25 March 1996

DATE 24:4:1996

ADD 30:4:1996

Counsel for the Applicant: Mr G M McIntyre

Solicitors for the Applicant: Dwyer Durack

Counsel for the Second Respondent: Mr P R Macliver

Solicitors for the Second Respondent: Australian Government


1    The application be dismissed.

2    The applicant pay the first respondent's costs of the application.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.



This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") that the applicant is not a refugee within the meaning of that term in the Migration Act 1958 (Cth) ("the Act"). The application purported to raise three grounds of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act").

In summary, there are three matters in issue. The first is whether the Tribunal applied the "real chance of persecution" test correctly. The second matter is whether the Tribunal erred in relation to what constitutes persecution, and further, whether persecution by reason of nationality can arise where every person of that nationality (in this case the population of the Peoples Republic of China) is the subject of the law, the content and enforcement of which are said to amount to persecution. A further issue is whether a Chinese national who has assisted other Chinese nationals to leave China without permission and by reason of so doing is subject to punishment as an organiser of such illegal departures is a member of a particular social group within the meaning of that expression in the Refugees Convention.


2. At the hearing of this application, the question arose whether this Court had jurisdiction. For the reasons which I gave in the matter of Su Wen Jian v. Minister for Immigration and Ethnic Affairs, published today, I consider that the Court has jurisdiction to review the Tribunal's decision for alleged errors of law.

The Statutory Framework

3. Section 39 of the Migration Reform Act provides that applications for refugee status and for refugee-related entry permits which were made and not finally determined before 1 September 1994 are to be dealt with as if they are applications for a protection visa. Section 65 of the Act provides that if an applicant for a visa satisfies the criteria prescribed by the Act and the regulations for the grant of that visa, the Minister is to grant that visa but if the criteria are not satisfied the Minister is to refuse to grant that visa. The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations - see s.31(3) of the Act and Regulation 2.03 of those regulations. One of the criteria for the grant of a protection visa is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention - see Clause 866.221 of Schedule 2 of the Regulations.

Clause 866.111 defines "Refugees Convention" as meaning the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Article 1A(2) of the Convention as so amended, 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..."

Factual Background

4. The following recital of the factual background of this matter is taken largely from the Tribunal's reasons. The applicant, Mr Fu Kai Yuan (to whom I shall refer interchangeably as Mr Fu or "the applicant") was born on 10 September 1968 in Sa Gang, Hepu District in Guangxi Province. His family is of the Jing ethnic group. They are a small group, having fewer than 12,000 members, which (as the Tribunal noted) in the Chinese context is very small indeed. The Jing came from the area now known as Vietnam in the 16th century and settled in Guangxi Province. They are the same ethnic group as the majority Gin group in Vietnam. The Tribunal acknowledged that there was a lack of detailed material before it concerning the treatment of the Jing in China. It said that it relied on the evidence given by the applicant in making its assessment of that matter.

5. The applicant's evidence was that the Jing were people from a particular peninsula in Guangxi Province where their majority industry was boat building.

They were an ethnic group members of which could not get the benefits available to other citizens. In his case this meant that he was denied household registration ("hukou"). Mr Fu's father had been given household registration some years before Mr Fu's birth. Mr Fu told the Tribunal that if he and his siblings moved away from their original place of residence they were not able to obtain household registration. He told the Tribunal that he believed this stemmed from discrimination against them because of their ethnicity. The Tribunal put to the applicant that it had been the policy of the Chinese government to deny household registration to any people who moved from their original abode, as a way of controlling population movements, particularly from the rural to urban areas. This was put to the applicant as indicating that denial of household registration in such circumstances was not a matter of discriminating against any one group but of applying a policy universally. The applicant responded that he saw the continued denial of household registration to himself as based on his ethnicity. When it was put to him that the fact that his father had household registration would indicate that there was not a blanket refusal of such registration to people of Jing ethnicity, Mr Fu simply repeated that he was not able to obtain it.

6. Mr Fu said that his family had to pay extra school fees for him and that when he was at school he was treated as someone from a "dark household". He claimed that people like himself were denied the opportunity to go to senior middle school, so he had to finish his education at middle school. He had completed a short course and received a certificate in cooking, but this was not considered to be formal education.

7. Mr Fu worked in his family's restaurant prior to 1990 but between 1990 and 1993 he ran his own restaurant in Fang Cheng Gang, a port town. Mr Fu claimed that he was the victim of the un-fixed tax rate which meant local officials could determine what he would pay, and they had to be bribed. Those officials had also eaten at his restaurant without paying. Mr Fu claimed that it was easy to pick on him because he did not have registration.

8. Mr Fu rented the restaurant from a friend of his who in turn leased the and from the government. Mr Fu was able to make a living for himself and his wife who also worked in the restaurant. The restaurant could seat about 40 people.

9. In 1993 the land on which the restaurant was built was resumed by the Service Department. Mr Fu was not compensated for the fact that this occurred before the end of his current sub-lease which was to December 1995. He argued strongly with officials who came to close his restaurant and when this developed into a fight, he was gaoled for 15 days and had to pay a fine of 1200 RMB.

10. The applicant claimed that as only his father had household registration, the rest of the family had to find jobs for themselves. However, he had found his own employment and was happy with it until he lost his restaurant.

11. The applicant claimed that after the closure of his restaurant he was unemployed and that he, his wife and child were forced to return to his home town in Hepu. He claimed to have lived on savings as there was no employment available and there was insufficient family land to support all members of his extended family. The applicant claimed that because of ethnicity, his family had been denied an allocation of land and this meant that they had to buy food at higher prices. He said that he had been unable to register his marriage because he had no household registration. This in turn meant that he could not get help from a work unit in finding employment.

12. The applicant claimed that he had decided to come to Australia when he could not find any employment, only short casual jobs. He had tried to find another site for a restaurant but would have needed at least 20,000 yuan to set one up and he did not have that amount of money.

13. On 29 April 1994 the applicant departed China illegally by boat. Prior to departure he had collected fares from some of the others who came on the same boat. On 28 May 1994 the applicant arrived in Australia and on 13 June 1994 applied for refugee status. On 6 July 1994 the first respondent's delegate refused that application. On 15 July 1994 the applicant applied for review of the delegate's decision. On 4 October 1994 the Tribunal affirmed the delegate's decision and on 3 November 1994 the applicant filed an application for an order of review of the Tribunal's decision.

The Alleged Errors of Law

14. At the hearing the applicant relied only on the three alleged errors of law referred to below.

Ground 1: The Balance of Probabilities

15. This ground was expressed in the following terms:

"The Second Respondent erred in law in determining whether there was a real chance of persecution on the basis of conclusions reached on the balance of probabilities comprising:-

(i) a conclusion that the Tribunal was not "convinced" by "convincing evidence" that it was the Applicant's ethnicity which determined that he should lose his lease on his restaurant, after finding that it "could have a component of ethnic discrimination in it";

(ii) a conclusion that the Tribunal was "unable to conclude decisively" that the reason the Applicant's family paid extra school fees for him was because of a discriminatory measure based on his ethnicity, though finding that it might be so".

16. The applicant acknowledged that the Tribunal had "... understood Chan and recited it correctly" in its reasons. However, so it was put, the Tribunal still misdirected itself about what standard of proof to apply. Mr G.

McIntyre, counsel for the applicant, submitted that the Tribunal had erred in law by assessing matters of historical fact on the balance of probabilities.

Mr P. Macliver, counsel for the first respondent, disputed that this had been done. Mr Macliver submitted that when the Tribunal's reasons were read as a whole it was clear that the Tribunal applied what has come to be known as the "real chance" test.

17. The "real chance" test has its Australian origin in the High Court decision of Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and in particular in the well-known passage from the judgment of Mason CJ at p 389. It has now been generally accepted that a real chance can be as low as one in ten - see McHugh J's reasons for judgment at p.429 citing the United States Supreme Court decision in Immigration and Naturalization Service v. Cardoza Fonseca (1987) 480 US 421; see also Minister for Immigration, Local Government and Ethnic Affairs v. Mok Gek Bouy (1994) 127 ALR 223 at p 251. As Einfeld J pointed out (in Guo Wei Rong v. Minister for Immigration and Ethnic Affairs, Full Court, unreported 26 February 1996 No. 89 of 1996 at p 17) it was not necessary for the High Court in Chan to decide "... whether the real chance test should or should not be applied to past events". As appears from a passage in Mason CJ's reasons for judgment in Chan at p.388, the delegate accepted Mr Chan's account of the measures taken and threatened against him and it was not necessary for the Federal Court to review the delegate's finding concerning the state of affairs prevailing in China at the time of Mr Chan's application for refugee status.

18. However, in many refugee cases there have been such factual matters in issue. Inevitably the assessment of whether there is a real chance of persecution for a Convention reason if the applicant is returned to a foreign country, involves ascertaining what has happened in the past. An examination is made of the present situation in the country concerned (including such matters as the political climate, any relevant laws and how they are enforced) and then an assessment is made of whether there is a real chance of such persecution. Sometimes the delegate or Tribunal, in resolving some of the factual issues, has to make assessments of credibility. The question is the degree to which the decision-maker must be satisfied when resolving such issues.

19. It was not until fairly late in the piece that a series of cases decided by the Full Court of this Court, starting with Mok, dealt with this problem.

In Mok (at pp.252-253) Sheppard J (with whom Black CJ and Lockhart J agreed) referred to certain passages of the delegate's decision. His Honour made it clear that these were only examples. The examples chosen were passages in which the delegate used the expression "I gave greater weight" to certain DFAT material than to a report compiled by a Dr Shoesmith concerning the continuing Vietnamese military presence in Cambodia. At p.253 his Honour said:

"In the present case, it seems to me that either there was nothing to be said for Dr Shoesmith's view or, although there was something to be said for it, the predictions of the Department of Foreign Affairs were more likely to be correct.

But that did not mean that Dr Shoesmith's report should have been dismissed out of hand. It was a factor still to be taken into account not as a probability but as a possibility and thus as providing, perhaps, a basis for saying that there was a real chance of persecution in the sense in which that expression has been explained by the judges in Chan. In my opinion this is enough to infect Mr Paterson's reasons with error."

20. His Honour's criticism of the delegate's reasoning continued at p.254:

"His reasons consist of assertions in the form of findings. But findings are made in the context of ascertaining what has occurred in the past or what is likely to be a particular state of affairs in the future on a balance of probabilities. It is not the assessment of the real chance of something that has occurred or may occur in the future."

21. In Wu Shan Liang v. Minister for Immigration and Ethnic Affairs (1995) 130 ALR 367, the Full Court applied the reasoning in Mok when assessing a delegate's decision. At p 378 the Court prefaced that assessment with the following observation:

"The expression 'real chance of persecution' is used in the reasons ... The delegate was thus aware of the test she had to apply. Her reasons are entitled to a beneficial construction.

We should not take the view that she did not apply the correct test unless this appears clearly from what she has written."

22. A key factor in those reasons was the delegate's express refusal to engage in speculation about whether the applicant would be treated more harshly than in the known relevant cases. Taking that into account together with the use of the expressions "give more weight to" and "give greater weight to", the Court concluded that the delegate did not in fact apply the correct test; she had not turned her mind to what the test involved.

23. A similar approach to the problem can be seen in the reasons for judgment of Beaumont J in Guo Wei Rong (at p.26):

"Specifically, did the Tribunal really address the question 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?" (original emphasis)

24. Einfeld J approached the matter slightly differently (at p.17):

"The 'real chance in the future' test will be compromised if it is heavily influenced by findings about the past made on the balance of probabilities. In other words, the substance of the real chance test will be circumvented if the deciding factor is a finding on the balance of probabilities in relation to a past event and there was no analysis of the possibility that it was inaccurate. It is simply not correct to define this conundrum in terms that if something happened in the past there is a real chance that it will happen again, and if it did not there is no real chance that it will happen in the future."

And at p.18 (after citing a passage from Mok with approval):

"This approach could be appropriate for the circumstances of a case such as the one at hand. The Tribunal could assess past events on a balance of probabilities test to make its findings, and then engage in the speculation of "what if I am wrong".

Proceeding on the basis that it was probable that events had transpired as it had found and were not Convention related, but that it was nonetheless possible that they were Convention related, the question of any real chance of persecution on Convention grounds on the appellants' return to China could be addressed."

25. Foster J (at pp.11-13) described the delegate's task in the following terms:

"It requires a particular mind-set on the part of the decision-maker, different in kind from that required in determining whether a civil onus is satisfied. There is necessarily a basic question of principle to be answered: namely, whether the 'real chance' test is to be applied only in the determination of the ultimate question posed by the definition, or whether it should also form the basis of the assessment of the salient facts relied upon by the applicant in establishing the objective aspects of refugee status. No doubt in the majority of cases, and the present is no exception, applicants will seek to base their claim of fear of persecution upon events which they allege occurred in their own country and which occasioned their departure for the purpose of seeking asylum elsewhere. What standard of proof should be applied in respect of these events? Is it necessary for the applicant to establish their occurrence on the balance of probabilities or is it sufficient for the decision-maker to accept the mere possibility of their occurrence as providing the required objective support for the applicant's fear of persecution on return?

Questions of the applicant's credibility as a witness are, also, obviously involved in the process. Serious concerns about the credit worthiness of an applicant's testimony can, of course, be fatal to a favourable finding on the balance of probabilities.

However, a finding that he or she has failed to establish fact A on the balance of probabilities because, in all the circumstances, including matters of demeanour, the decision-maker is not prepared to accept the applicant as a credible witness does not, as a matter of logic, necessarily mean that the possibility of the applicant's correctly asserting the existence of fact A has been entirely excluded. Mere doubts or concerns as to the applicant's credibility would not be sufficient to exclude the possibility. For this result, a positive state of disbelief would be required on the part of the decision-maker".

26. Sackville J referred to this problem in Subramaniam Muralidharan v.

Minister for Immigration and Ethnic Affairs (Full Court, unreported 22 March 1996, Judgment No. 182 of 1996). Although his Honour (at pp.14-15) referred to some indications in the Tribunal's reasons in that matter which suggested that the Tribunal weighed the prospect of persecution as a matter of likelihood or probability rather than assessing whether there was a "real chance" of persecution, he decided it was unnecessary to resolve the issue.

His Honour decided the matter upon the basis that the Tribunal had not complied with its statutory duty to give reasons. Davies J agreed with Sackville's decision in that regard and Beazley J concurred generally. At p.16 Sackville J commented:

"In some cases it may be quite clear that, despite a reference to Chan and other relevant authorities, the Tribunal has misunder-stood or misapplied the correct principles. In others the position will be much less clear. If the scrutiny of the Tribunal's reasons is carried too far, it may give rise to an issue as to whether the Courts are "unduly interfer(ing) with administrative decisions"." (A reference to the transcript of proceedings of the application for special leave to appeal in Wu Shan Liang).

27. The High Court granted the Minister special leave to appeal in Wu Shan Liang and that appeal has been heard. The High Court reserved its decision on 7 March 1996.

28. On a fair reading of the Tribunal's reasons, did it assess the evidence as a whole and apply the correct test? Did it ask and answer the question whether there was a real chance of Mr Fu being persecuted for a Convention reason if he were to be returned to China? As the Full Court held in Wu Shan Liang, this Court should not take the view that the Tribunal did not apply the correct test unless this appears clearly from what she has written. I now turn to the Tribunal's reasons.

29. A particular complaint was levelled at this passage in those reasons:

"It is difficult to assess the impact on the Applicant of what he claimed was discriminatory treatment of him at school, by way of having to pay extra fees and of some name calling.

Extra fees usually were paid by those who had no household registration. However, his father was registered so this need not have been the problem. The Tribunal accepts that for some undetermined reason his family paid extra fees for him to attend school but it is unable to conclude decisively that this was a discriminatory measure based on his ethnicity. However, even if this were so, it did not prevent him from attending school for eight years and so could not be held to be persecutory."

30. The use of the words "... unable to conclude decisively ..." was said to be suggestive of the wrong test being applied. If this language had been used in respect of an important factual basis for the applicant's claims, or even worse, in respect of the ultimate question whether there was a real chance that Mr Fu would be persecuted for a Convention reason if returned to China, then I would agree. It is not the language associated with the concept of a real chance - see Sackville J's comments in relation to the use of the expression "conclusive evidence" in Subramaniam Muralidharan at pp.14-15.

31. However, the difference here is that the Tribunal "back-tracked" and made an assessment based on an assumption, contrary to its initial conclusion, that this was a discriminatory measure based on ethnicity. This is in accordance with the approach recommended by Einfeld J in Guo Wei Rong at p.18. Then the Tribunal noted, quite correctly, that the measure had not prevented Mr Fu from attending school for eight years and thus could not be held to be persecutory.

I might add (although the Tribunal did not refer to this) that there was no evidence about the level of school fees charged to the applicant's family. In my view, in the context of deciding whether there was a real chance of persecution, there was no error of law in the manner in which the Tribunal dealt with this particular matter. In relation to the matter of losing the lease of the restaurant, the applicant referred to the following passage in the Tribunal's reasons:

"In the Applicant's case, he has a reasonably long history of employment, some nine years working in restaurants, followed by two years of running his own establishment. Although he measured his employment opportunities against the state sector and believed he was disadvantaged by not having a work unit, it cannot be said that he was unable to find or keep jobs. The matter of his difficulties with authorities over his restaurant could have a component of ethnic discrimination in it.

How-ever, a more obvious explanation is that the Applicant is one of the many displaced by the rapid growth of the development/capitalist/private sector economy in his province.

Guangxi has gone from being one of the poorest provinces to one in which the 'boom' is most evident. The rewards from that economic growth have not been shared equally between the province's inhabitants and corruption is rife. The Tribunal is not convinced that it was the Applicant's ethnicity which determined that he should lose his lease. Rather the land on which his restaurant stood belonged to the government; more profits could be made by using the land in a different manner; the officials of the Service Department claimed that his rental was too low and took the lease away from him. This can be said to be ruthless and unfair business practice but there is no convincing evidence before the Tribunal that it was the Applicant's ethnicity which triggered these events."

32. This passage is in my view, more worrying than the earlier passage set out above. It suggests that the Tribunal, having acknowledged that the applicant's difficulties with the authorities in connection with the restaurant had a component of ethnic discrimination, applied too high a standard of proof on the question whether the applicant's ethnicity determined the loss of the lease.

33. However, it must be borne in mind that it was not just the applicant's leased restaurant that was resumed by the State. The whole land was resumed for State purposes and there was no evidence that the head lessor belonged to the Jing minority group. Furthermore, the above passage has to be taken in the context of the following observations by the Tribunal:

"The Applicant's brief brush with the authorities which resulted in an overnight detention is insufficient to establish that he had a profile which would mark him as a person to be watched by the authorities. His argument with and accusations against the local officials who took away his lease seems to have been a confrontation about a civil matter and not one which brings the Convention into play. The Applicant reported no further consequences from his overnight detention and there would seem to be no reason to suppose that there are any outstanding matters from the event which would dog him on return to China ...

However, the profile of the Applicant does not fit that described by Dutton (a reference to a description by Michael R.

Dutton of the difficulties for Chinese citizens without household registration). The Applicant's father did have household registration; the Applicant had eight years of schooling and he was able to find employment. Even after he lost the lease on his restaurant he was not denied the right to seek work although he had difficulty finding anything except short-term casual jobs. At his hearing he stated that it was when he moved away from home that he had problems by not having household registration. He stated also that he really did not know the reason why he did not have registration once he left his father's house."

The Tribunal concludes that it is not possible to determine that the Applicant's problems have arisen from the fact of his being from a minority group. The lack of household registration, the problem which most concerned him, appears to be the result of the fact that he moved away from the place of his family's residence rather than a result of a rejection of him because of his ethnicity. However even if this was their source, the problems are insufficient to be considered to amount to persecution."

(The references to "overnight detention" are puzzling in view of the Tribunal's reference to 15 days of detention following the relevant incident.

However, the applicant made no complaint concerning that aspect.) My assessment is that, despite the lapse in the use of language, this did not infect the application by the Tribunal of the real chance test. The Tribunal can be seen finally to have approached the matter on the basis of assuming, contrary to its initial conclusion, that the applicant's problems (one of which was the lack of household registration) had their source in his ethnicity. It then made the assessment that those problems would be insufficient to be considered to amount to persecution. The Tribunal can be seen to have worked on the assumption that such problems would recur. In my view, the Tribunal did not err in law in the manner alleged in this ground.

It understood the test required by the High Court's decision in Chan and it applied it. Whether the Tribunal erred in its assessment of what constitutes persecution is the next matter to be considered.

Ground 2:

34. The second ground relied upon by the applicant was in these terms:

"The Second Respondent erred in law in directing herself as to what constitutes persecution under the refugees convention, concluding that persecution was not comprised by:- (i) a requirement to pay extra school fees by members of an ethnic group in order to attend school; (ii) punishment comprising detention and a fine."

35. Mr McIntyre initially did not put the applicant's departure as being a political act (although he qualified this by using the word "necessarily").

Eventually this submission concerning persecution was based purely on it arising by reason of Chinese nationality.

36. Mr McIntyre submitted that the requirement to pay extra school fees conflicted with

"the fundamental right to education. To be treated differently in terms of education is a discrimination on the grounds of race."

37. He cited the reference in Chan by Mason CJ (at p.388) to "...

significant detriment or disadvantage ..." and by McHugh J (at p.431) to a "... restriction on the freedoms traditionally guaranteed in a democratic society ...".

38. It must be remembered that these extra education charges ceased in 1984 when the applicant left school. There is no evidence about the level of these charges and how they compared with the family income. The Tribunal noted that Mr Fu had eight years of schooling, somewhat more than the national average.

It cited an article in "The Chinese Quarterly" No. 119, September 1989, Table 1, p.582 for its conclusion that:

"In a country where only a minority of students complete secondary education and even fewer have access (to) tertiary education, the Applicant cannot be said to have been denied a right to a basic education."

39. I do not consider that the Tribunal erred in its conclusion that past discrimination to the extent of requiring the applicant's father to pay unspecified school fees was insufficient to amount to persecution of the type referred to in Chan. A closer examination of the context of the passages in the reasons of Mason CJ and McHugh J, referred to above, confirms this.

40. It emerged in argument that the reference to punishment comprising detention and a fine in this ground was to the consequences for the applicant of his illegal departure. Accepting for the moment that deprivation of liberty, for whatever duration, amounts to persecution, the question in relation to any punishment of Mr Fu for illegal departure is whether that punishment would be for a Convention reason, a subject to which I now turn.

41. The applicant's submission was that by reason of his participation in collecting fares from some of the other passengers on the boat, the applicant faced a real chance of being convicted under the following regulation:

"Those who transport other people to secretly cross national territories (borders) shall be punished by a fixed-term imprisonment of less than five years, detention or surveillance and, in addition, be fined."

42. Mr McIntyre referred to other regulations dealing with involvement in such transportation to a greater or lesser degree. In each case it was suggested that even the lesser degree of punishment attracted by such involvement would amount to persecution.

43. The applicant, in this context, complained about the following passage in the Tribunal's reasons:

"The role the Applicant had in collecting some money for the boat trip seems to have been a minor one and not likely to be viewed by Chinese authorities as making him an organiser."

44. It was submitted that this indicated that the Tribunal had applied a probabilities test rather than the real chance test. I doubt whether that is the case, but it is not necessary to decide the question. Assuming that it was likely that the applicant would be treated as an organiser, the question arises whether this would amount to persecution for a Convention reason.

45. The applicant put this forward on the basis that an organiser is a "member of a particular social group" for the purposes of the definition of "refugee" in the Convention. I reject that submission. These Chinese laws regulate the conduct of individuals. They are laws which deal with what people do, not with what they are. As the Full Court of this Court held in Minister for Immigration v. Respondent A (1995) 130 ALR 48 at p 62:

"Such a law would not create or define a particular social group constituted by those who are affected by it, any more than would laws imposing tax or prescribing punishment for tax evaders."

See also Morato v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 and Ram v. Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 (both being Full Court decisions).

46. Alternatively, so it was put, such organisers shared a "common immutable characteristic". Having taken part in the organisation of boat trips, a person is then cast as an organiser, something which one can no longer change, an immutable characteristic which helps to determine that one is part of a social group. Mr McIntyre cited Hathaway "The Law of Refugees" at p.160 which in turn referred to a decision of the United States Board of Immigration Appeals in the matter of Acosta. Hathaway sets out a lengthy passage from the Board's interim decision in that case. The case is picked up in an article by Savitri Taylor in Vol. 19 No. 2 of 1993 Monash University Law Review ("the Taylor article") entitled "The Meaning of 'Social Group': the Federal Court's Failure to Think Beyond Social Significance". The Taylor article refers to the decision of Sanchez-Trujillo v. Immigration and Naturalization Service 801 F 2d 1576, a decision of the Ninth Circuit Court of Appeals in 1986. The author of the Taylor article contrasted the Sanchez-Trujillo decision with Acosta and other decisions which recognised persons with an immutable common characteristic as constituting a social group. The author observed that the view of the Ninth Circuit Court of Appeals has not been adopted by other circuits.

47. In my view, there is an inherent logical problem in the applicant's attempt to distinguish the line of Full Court authorities referred to above, on the basis of the immutable common characteristic claimed here. The immutable common characteristic only arises because of what the applicant and other organisers of boat journeys have done, not with what they are.

Accordingly they fall squarely within the ratio of each of the above cases.

In Lo Fu Shuang v. Minister for Immigration and Ethnic Affairs (1995) 134 ALR 73, Tamberlin J applied the decision in Respondent A and held that hepatitis B sufferers were not a particular social group. Basically, his Honour's reasoning was that the fortuitous circumstance of a common illness which strikes all sectors of society was insufficient. Mr McIntyre relied heavily on the use of the word "solely" in the passage in Black CJ's reasons for judgment in Morato at p.406. He submitted that in the present case one starts with the acts done but then, in addition, should have regard to the view of the persecuting authorities in China that the applicant would form part of a group of organisers. In my view, this does not take the matter any further.

The persecutor's view arises because of the criminal activities engaged in.

There is no evidence of any political connotation which might identify such organisers as belonging to a recognisable or cognisable group in Chinese society.

48. In my opinion, organisers of illegal boat departures from China are not members of a particular social group with the meaning of the Convention.

Ground 3: Persecution By Reason of The Applicant's Nationality

49. This ground was expressed in the following terms:

"The Second Respondent misdirected herself at law by failing to consider or conclude that the Applicant had a well founded fear of persecution by reason of his nationality; such persecution comprising punishment by way of detention, upon his return to China, being:

(i) a person who is a Chinese national who has left China without the authority of Chinese officials

(ii) a person who is a Chinese national who has assisted other Chinese nationals to leave China without the authority of Chinese officials."

50. The applicant's submission is based upon persecution said to arise from the application of the above laws to him by reason of his Chinese nationality.

I reject that submission for the same reasons which I gave in the matter of Su Wen Jian, published today.


51. For the above reasons the application will be dismissed with costs.


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