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Minister for Immigration & Ethnic Affairs v Guo and Anor S151/1996 [ 1997] HCATrans 15  (4 February 1997)

Sydney No S151 of 1996

B e t w e e n -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Applicant

and

GUO WEI RONG

First Respondent

and

MS S. McILLHATTON, Member constituting the Refugee Review Tribunal

Second Respondent

Office of the Registry

Sydney No S152 of 1996

B e t w e e n -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Applicant

and

PAN RUN JUAN

First Respondent

MS S. McILLHATTON, Member constituting the Refugee Review Tribunal

Second Respondent

BRENNAN CJ

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 FEBRUARY 1997, AT 10 20 AM

Copyright in the High Court of Australia

MR J. BASTEN, QC: If the Court pleases, I appear with MR N.J. WILLIAMS for the appellant in both matters. (instructed by the Australian Government Solicitor)

MR S.D. RARES, SC: If your Honours please, in both matters I appear with MS R. SOFRONIOU for the first respondents. (instructed by Jackson Smith)

BRENNAN CJ: The Deputy Registrar certifies that he has been informed by the Australian Government Solicitor, solicitor for the second respondent in these matters, that the second respondent does not wish to be represented at the hearing of the appeal and will submit to any order of the Court save as to costs. Yes, Mr Basten.

MR BASTEN: If the Court pleases, these cases concern judicial review of a determination under section 22AA of the Migration Act 1994 in relation to the satisfaction of the Minister as to the existence of the conditions for satisfaction of refugee status. The relevant provisions as they were in force at the time of the decision are helpfully set out in the judgment of Justice Sackville, the trial judge, at page 316 in volume 1B of the appeal books.

The provisions are in the same form as the provisions which were considered by this Court in its recent decision in Wu Shan Liang and the only difference in the structure of the decision- making process was that this matter went on appeal, not to a delegate of the Minister, but to a Refugee Review Tribunal and constituted under the provisions of Part 4A of the Migration Act for the purposes of dealing with such internal, as it were, appeals, and the decision of the Tribunal in so far as it might vary or set aside or substitute a new decision is deemed by the Act to be the decision of the Minister. That is pursuant to section 166BC(3). In this case, however, the Tribunal affirmed the decision of the Minister.

Your Honours, the issues before this Court in support of the appeal may be narrowly defined. They are two: firstly, whether the Full Court erred in identifying legal error in the approach adopted by the Tribunal to the claims of the respondent and, secondly, whether, if there were reversible error, the majority of the court erred in granting substantive relief and failing to refer the matter back to the Tribunal to be reconsidered according to law. There are certain other issues which arise from the respondent's written submissions and we will deal with those briefly.

KIRBY J: Two does not arise if one is found in your favour?

MR BASTEN: That is so, your Honour, yes.

GUMMOW J: Mr Basten, is reprint No 4 of the Migration Act the appropriate text?

MR BASTEN: Yes, it is, your Honour. Dealing then first, if I may, with the first point, namely the identification of legal error, there were two bases upon which the court approached the matter. First there is that set out in the judgment of Justice Beaumont with whom Justice Foster agreed and, secondly, the approach adopted by Justice Einfeld with whom Justice Foster also agreed. In so far as his Honour gave further reasons, they were in accordance with the approach of Justice Einfeld. As it is clear that their Honours Justices Einfeld and Foster relied heavily on the line of authority which was held to be false by this Court in Wu Shan Liang, we propose to deal first with the judgment of Justice Beaumont, and in doing so it is convenient to consider the approach adopted by the Tribunal in the light of his Honour's comments.

If that is a convenient course, may I then turn to his Honour's judgment which commences at page 421 of the appeal books. There is at the beginning a helpful and lengthy dissertation of the background to the matter which I need not take the Court through. The issue, as his Honour defined it at page 434 at line 45, concerned the meaning of the term "political opinion" in the Refugee Convention. With respect, it is not entirely clear what aspect of the definition his Honour had in mind. I will turn if I may to what follows in his Honour's opinion. The debate in the Full Court of the Federal Court concerned the question whether the contraventions perhaps repeated of a law of general application without any overt expression of political opinion could found a convention claim.

In relation to that matter, the test which was adopted is not, in our understanding, in dispute. The question was whether or not, despite the views or lack of views of the first respondents, the government of the PRC might impute a political opinion to persons in that situation. If such was likely, if there was a real chance of them being persecuted on the grounds of such an imputed political opinion, then that would satisfy the Convention. His Honour Justice Beaumont deals with the relevant authorities from pages 435 onwards.

KIRBY J: Did you say that "if such were likely"? Is not the question, "if there were a real chance"?

MR BASTEN: That is correct, your Honour, yes, in terms - - -

KIRBY J: "Likely" is pitching it a little bit too high.

MR BASTEN: There was no dissent from the proposition that the real chance test as enunciated in Chan's Case by this Court is applicable to that ultimate question. I should have used more precisely the words of the Court, I accept that. I apologise.

In relation to the question of the meaning of the term "political opinion", I do not think I need to take your Honours through the discussion which carries through to page 443. There may be a suggestion in the judgment at line 15 at page 443 where his Honour is quoting a passage from a decision of T v Home Department State Secretary, identified on the previous page, in which Lord Justice Glidewell suggested that:

a crime committed with the object of overthrowing or changing the government of a state or inducing it to change its policy is to be regarded as a political crime, provided that the commission of the crime is not too remote from the objective.

That is his Honour's emphasis. It does not, as we understand it, however, give rise to any particular question in the present case. There is no suggestion that Mr Guo intended to overthrow the Chinese Government by his activities of fleeing the jurisdiction, nor to change its policy.

The trial judge, Justice Sackville, noted that the attacks on the findings of the Tribunal in this respect were focused on the conclusions drawn with respect to a previous detention of Mr Guo in 1992 and the fines which had been imposed. His Honour identifies that as the focus of the issue at page 328 at line 40, lines 35 to 45 perhaps more precisely, where his Honour noted that:

The challenge was made on a number of grounds, not all of which were stated with precision. However, the main focus of attack was the Tribunal's finding that the detention of 28 days and fine imposed on Mr Guo were not related to his activities in Australia, including the hunger strike, rooftop protest and his expressed fears of mistreatment on his return to PRC.

His Honour is there referring to the involvement of Mr Guo in both a hunger strike and sit-in on the roof of the facility at Port Hedland followed by some of the protesters jumping off the roof. That is a matter to which, no doubt, attention will be directed in the course of the reasons.

If one then goes to the approach adopted by Justice Beaumont in relation to this question, his Honour appears to deal not with the structure of the reasons given by the Tribunal, but with certain aspects which he says were either unduly attended to, or were ignored. In the passage at page 446, through to page 448, he identifies, at line 35, the error of the Tribunal, not in what it said it was addressing, because there was no doubt that the Tribunal correctly formulated the question - and we will turn to those passages in a moment - but he says the question was:

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?

That, with respect, is another restatement perhaps relevantly for the purposes of a particular case, but one which does not follow precisely the terms of the Refugee Convention. What his Honour, as we understand it, was seeking to do was to identify what it was that the Tribunal had omitted, or unduly concentrated on, and those details appear from his Honour's judgment at the top of page 448, where his Honour identifies two, or perhaps three issues which were not properly addressed by the Tribunal.

The first is his criticism of the fact that the Tribunal had unduly focused on the sentence which had been imposed on Mr Guo in 1992, on his first return to China from Australia. He says that to focus on something, even if it is within the usual range - at line 10 - does not mean:

that there is no political character to be attributed to the conduct of the accused. For one thing, the nature of that conduct may itself be politically significant.

He goes on to note that there was a previous flight to Hong Kong, which might be considered "implicitly political," and then, at line 20 he says secondly, it would be wrong to focus on the sentence alone, it is necessary to have regard to all of the activities, and at line 30:

including, but not limited to, his actions at Port Hedland in 1992.

Your Honours, against that background it is of assistance to go to the Tribunal's decision in order to understand how the Tribunal did approach this matter. We say that the Tribunal dealt significantly with all of the points which his Honour raises in those passages. There are two decisions of the Tribunal; one in relation to each of the first respondents. The first, in relation to Mr Guo, starts at page 72.

The Tribunal sets out the background matters, including the manner in which the matter should be approached, at pages 73 through to pages 77 and in doing so outlines the statutory framework - and I note at page 75 refers to Chan's Case in this Court - and at various passages, including at the top of 76, identifies clearly the real chance test as that to be applied. At page 77 the Tribunal then outlines what are described as "the claims and evidence" with which the case is concerned, and particularly at page 78 refers to the political activities in Australia, to which I referred earlier, namely, the rooftop protest at Port Hedland, and sets out the basic background and the claims made in relation to that matter.

Significantly, at page 79, in a passage to which I may need to return, at line 20 the Tribunal notes the contents of a Department of Foreign Affairs and Trade cable to the effect that:

The Chinese authorities are not so much concerned about the issue of political activities overseas, but rather the question whether the returnees have an intention to oppose the government in an effective and organised way after their return to China.

That was the general background material against which the present facts had to be assessed. At line 35 the Tribunal notes that:

However, there is no evidence before the Tribunal that the Applicant had a political dissident profile at the time of the Tiananmen incident or at any time prior to his departure from China in 1992.

And then notes the submission that it was:

because of his activities in Australia the Chinese authorities have attributed a political profile to him.

Since the incident in 1992 at Port Hedland he had returned and had an opportunity, as it were, to gauge what was thought to be significant by the Chinese authorities. Now, there is then some further discussion of the allegations, which I will not take your Honours through in detail. The reasons commence at page 94 of the judgment, and the Tribunal deals with some matters fairly briefly, and I think there is no complaint about that. She states at the top of page 95:

The only issue that remains to be determined is whether the treatment the Applicant fears from the authorities on return because of his contravention of the one child policy and his illegal departure brings him within the Convention. This requires a determination as to whether the treatment he fears is directed at him for a Convention reason.

And she then goes on to consider at page 95, in particular, the one child policy argument and at the last two lines of the page she notes that:

the Applicant's claims hinge on his evidence that he was threatened by the family planning authorities -

and that evidence she ultimately rejects as implausible and makes a finding at the top of page 97, and I may need to return to this reasoning in a little more detail:

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.

She then turns to the question of the adverse treatment in relation to illegal departure and the discussion concerning that commences at page 97 at line 30 and goes through to page 102. The claim depended upon two matters. One was the treatment on return in October 1992, which involved some 28 days of imprisonment and the imposition of a fine and questioning. There was also an allegation by Mr Guo dealt with at lines 40 to 45 on page 98 that he had been arrested and imprisoned again for some three months in June 1993. That as a factual matter is rejected by the Tribunal. She does not accept his evidence in that regard. Then at the bottom of page 98 to 99 she considers whether or not his treatment as she found it to have happened might be indicative of the PRC having imputed a political profile to him.

Now, might I just stop there and return to the matters which are adverted to by Justice Beaumont on page 448. Firstly, beginning with his Honour's suggestion at line 30 that it was necessary for the Tribunal to consider Mr Guo's conduct, including his actions at Port Hedland, I note that those are dealt with, of course, in some detail at line 50 on page 98 through to page 99 at line 21. The Tribunal considers precisely the matters which were raised by the applicant and, in effect, concludes that they did not give rise to any suggestion that he had been adversely treated because of his political activities and at page 101 at lines 15 to 23 she makes specific findings in relation to that matter:

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 other matter of detail to which his Honour refers at lines 15 to 20 on page 448 is the scheme in which Mr Guo was admittedly involved in moving Chinese nationals to Hong Kong. That matter is specifically dealt with in the passage just after that which I have read and in particular at line 30 the Tribunal identifies precisely the point which his Honour raised, namely that this may itself have been a political act, and the Tribunal rejected that submission.

KIRBY J: Can I just ask you on the criterion adopted at 101 at about 25 about a law applied generally to the population and not differentially to the applicant. Take the German race laws which were in force before the Second World War: they would be applied generally to the population. It is just that they would fall differentially on different people.

MR BASTEN: Yes.

KIRBY J: It cannot surely - and you can think of a multitude of examples of that kind. I am just a little concerned at the suggested requirement that it has to be differentially on him for his political activities at Port Hedland as distinct from falling upon him, because on his return he would be seen by reason of (a) what he did and (b) what he said that he was a potential troublemaker and that by the laws applied generally in China he would get caught in their net.

MR BASTEN: Yes, I take the point that your Honour is raising. It arises in that form perhaps because I have taken the Court too fast through the matters discussed by the Tribunal. I think the matter is raised at an earlier stage in general terms, but if I can take your Honour to page 99, at line 29 the Tribunal identifies the issue as whether prosecution for illegal departure can itself fall within the terms of the Convention. She refers to a number of passages from the Handbook on Refugee Status and she notes at line 50, for example, that:

a person guilty of a common law offence may be liable to excessive punishment, which may amount to persecution.....Moreover, penal prosecution for a reason mentioned in the definition.....may in itself amount to persecution."

So she had identified the need to look at the law. Then in paragraph 59 at line 10 on page 100 the handbook noted:

"In order to determine whether prosecution amounts to persecution, it will be necessary to refer to the laws of the country concerned, for it is possible for a law not to be in conformity with accepted human rights standards.

That is the point I think your Honour is raising:

More often, however, it may not be the law but its application which is discriminatory".

I think the Tribunal was seeking to deal with both those points separately. Firstly, in saying that the law itself was one of general application and that a prosecution under that law did not fall foul of any ground in the Convention and therefore she needed to go on to consider whether it would be differentially applied to the applicant for some reason. So, I think to be fair, she dealt, perhaps, concisely, but did deal with the points in that order which your Honour - - -

KIRBY J: Yes, thank you. I have not read the Tribunal's decision.

MR BASTEN: The other matter to which I wanted to take your Honours specifically was - perhaps I should say that the point your Honour Justice Kirby raises with me is, of course, significant because that may be one of the things which is being identified by Justice Beaumont at lines 10 and 12 as being a matter which should be taken into account. So I accept that that is something which we must, of course, deal with in the course of the case.

The way, though, in which the case was put was that - and this appears from the discussion at the bottom of page 101 to 102 - that the applicant's illegal departure in 1993, namely the second occasion to Australia would result in an imputed political profile. What, of course, was being assessed by the Tribunal in that regard was that against background evidence that activities outside the country were not treated as significant, had the authorities in China, faced with their knowledge of the protest in 1992, in fact treated him in a way which might give rise to concern on his return, and that, the Tribunal says at the top of page 102, did not happen, from which the inference may be drawn that the Chinese were not interested in the past because of the Port Hedland protest to impute a political profile and therefore would not do so on this occasion.

KIRBY J: There was an objective fact that tended to support that, was there not, that he had a brother who was dealt with in a similar way although he had not been involved in a political protest? Is that correct, or am I - - -?

MR BASTEN: I think that point is put against us, your Honour, namely that the brother was dealt with in a similar way although he was not at that stage a recidivist and that therefore the argument that the penalty imposed upon Mr Guo could be explained in terms of its length and severity by the fact that he was a recidivist would not hold up.

KIRBY J: This is the 28 days?

MR BASTEN: This is the 28 days, yes.

McHUGH J: Mr Basten, this is the first case heard under the new procedures. Arguably, neither party has complied with the rules. Where is the chronology in this case? Have you read clause 6 of the new order? Mr Rares's submissions seem to even go beyond the length with its annexures.

BRENNAN CJ: I think his Honour is referring to Practice Direction No 4.

MR BASTEN: Yes, I thought I had read it. I have obviously omitted to pick up that point, your Honour. I do not have a chronology - - -

McHUGH J: But it is more than that, and the rules - the paragraph itself, its provisions from (b) to (f), do not seem to have been complied with by either party, which is a matter of some concern in the very first case under the new practice.

MR BASTEN: I must confess that I do not have a copy of it in front of me, so I cannot - - -

BRENNAN CJ: The problem is, Mr Basten, that the design of the new practice direction is intended to direct the Court immediately to the issues that are falling for determination, and the chronology and page references in the appeal book which raise that point. As it is, you have been taking us through the various passages in a way which is no doubt helpful, but which we ought to have arrived at long since, and we are yet to identify, with some precision, the points which we have to determine.

MR BASTEN: Yes. I take your Honour's point, and I am sure that the written submissions do not comply with the terms. I have not got them in front of me. The matter which I was addressing I thought had been set out in paragraph 5.3 of the written submissions, where we deal with the first of the three grounds of appeal concerning the errors of law. We deal with them first, generally, in paragraphs 5.1 and 5.2, and then in 5.3 we deal with the three apparent errors in the reasoning of the Tribunal, which I was taking your Honours to, and we do give the references there to the passages in the Tribunal's decision; perhaps not as fully as should be done, I must - - -

BRENNAN CJ: Perhaps it would be as well for the word to go out, that the Court is going to insist, with some rigour, upon compliance with the new practice direction and that, if there is a non-compliance with the practice direction, the written submissions may be rejected by the Registry, and that would have significant effect upon the hearing of a case, and perhaps on orders for costs.

MR BASTEN: I must confess that the submissions were prepared before the practice direction reached us, but that is no excuse, I appreciate.

McHUGH J: I was going to say that they give every appearance to me of following a form that was used before the practice direction.

MR BASTEN: Yes. I think they do that, and I apologise to the Court for the fact that that does not comply. No doubt the word will go beyond me, but I take note of what your Honours have said to me very clearly. If it would be of assistance, I could certainly undertake to have a chronology prepared. Perhaps it would not be availble to the Court today but I could make sure that it is lodged with the Registry this week.

BRENNAN CJ: Yes, thank you, Mr Basten.

MR BASTEN: May I simply proceed to deal perhaps more clearly than the submissions do with identifying what the matters are. Obviously, it is something that I was seeking to do and I apologise that the Court is having to, as it were, deal with the arguments, to an extent, on the run. We would say in relation to Mr Guo that the real issue was whether he was indeed in fear of prosecution for an unlawful departure or whether he was fleeing some form of political retribution, albeit not for any overtly political activity undertaken in China. That issue, if that is the concern of Justice Beaumont at page 448 was, we would say with great respect, adequately and properly dealt with by the Tribunal in the passages to which I have taken your Honours.

The second approach in relation to the error of law is that identified in the judgment primarily of Justice Einfeld, and the relevant passages in his Honour's judgment follow a series of pages at pages 475 to 481 where his Honour sets out, with some precision, what are said to be the passages in the judgment of the Tribunal which reveal, in fact, that the Tribunal has not followed the real chance test identified by this Court in Chan's Case but they are passages none of which purport to espouse a balance of probabilities approach but do, indeed, make findings, as the Tribunal is required to do pusuant to section 166E of the Act, in relation to material facts.

DAWSON J: Mr Basten, does the real chance test eliminate the balance of probabilities altogether?

MR BASTEN: We would say that it does not, your Honour.

DAWSON J: But you find a real chance in the balance of probabilities perhaps.

MR BASTEN: I think in the House of Lords decision in In re H that is suggested as the correct approach, although there is some comment as to whether that is a helpful way to describe it.

DAWSON J: I am not suggesting it is.

MR BASTEN: No. We would say that when one - I suppose the bottom line is whether or not suggesting that certain things have been found on the balance probabilities necessarily reveals an error of law, putting it negatively. We say that it does not; that the adoption of an approach either to the subject development, as Justice Foster seems to accept, and to past facts, as his Honour accepts, may be undertaken appropriately in deciding whether on the balance of probabilities one accepts that that did or did not occur.

We would accept, however, that too easy a rejection of a key fact in a chain on a balance of probabilities test may mean that the ultimate question is not properly addressed on the real chance test. That is a possibility which, I think, your Honour the Chief Justice raised with me in the course of the argument in Wu Shan Liang and we have no difficulty with conceding that that must be in the mind of the Tribunal, but it would not mean that any finding of fact on a balance of probabilities test would necessarily fall foul of the real chance test in Chan and in the written submissions we refer to a number of passages in paragraph 5.9, including two passages in your Honours' Justices Gaudron and McHugh's judgments in Chan and the approach adopted by the US Supreme Court, the House of Lords and the Supreme Court of Canada, all of which expressly or by implication accept that one does make findings of material facts on a balance of probabilities test.

I do not, I think, need to take your Honours to those passages. May I just add though in the written submissions Chan's Case 128 DLR (4th) 213 at the end of the paragraph 5.9 does not identify the specific page references. Might I just do that. At page 259 at paragraph [120] in the middle of the page his Honour says:

Both the existence of the subjective fear and the fact that the fear is objectively well-founded must be established on a balance of probabilities.

Accepting, although the real chance test applies to the ultimate question, that that test may be appropriate. At page 262 his Honour identifies at paragraph [128] in the middle of b to c on the page:

In order to meet the subjective aspect of the test for a well-founded fear of persecution, the claimant must establish to the satisfaction of the board that the alleged fear exists in the mind of the claimant.

At page 266 in paragraph [142], not perhaps precisely the same question, but there is a criticism of the approach adopted by the Justice La Forest in the minority judgment of a rather structured approach to this question and not entirely dissimilar to that suggested by Justice Einfeld in the present case.

That is perhaps the latest in the line of authority and we would say that even if there were an indication that not each aspect of the case had been looked at on a real chance basis, that itself does not demonstrate error of law by the Tribunal. We are conscious of the statements by this Court in Wu Shan Liang but it is perhaps not helpful to go further down that line and make positive assertions in terminology which is a discourse of civil litigation and suggest that that would be applicable necessarily in the present case. We do not seek to do that.

What we do say is that the errors identified by his Honour follow an unusually vigorous espousal of the approach which was rejected by this Court in Wu Shan Liang and, despite the fact that his Honour said that the approach to be adopted was one of beneficial construction, in our submission, it certainly does not follow the approach which was identified by this Court as appropriate. Of course, the decision of this Court was handed down after his Honour gave judgment.

There are two other matters which arise from his Honour's judgment which we note at this stage because they are relevant to the submissions put against us. At page 486 at lines 30 to 45, it is clear that his Honour does not accept attacks on the decision of the Tribunal based "on the grounds of no evidence and unreasonableness". That is identified at line 35 in particular. The matter is adverted to again at page 495 where his Honour expressly notes that the learned primary judge did not find the conclusions of the Tribunal to be unreasonable and his Honour says he did not "seek to disturb that conclusion". It was, he said, a case of the Tribunal applying the wrong test.

Nevertheless, there are some other criticisms of the approach of the Tribunal which were made in the course of his Honour's judgment. I think it is probably necessary that we deal with those at this stage. At page 473 - - -

TOOHEY J: Just before you do that, Mr Basten, just following on your last comment, do you then suggest that in terms of the Administrative Decisions (Judicial Review) Act that Justice Beaumont's judgment really focuses on section 5(1)(f)?

MR BASTEN: It is the error of law provision?

TOOHEY J: Yes.

MR BASTEN: Yes, I think that is so. We would understand that is what both - - -

TOOHEY J: The respondent may put the matter differently but, from your point of view, the submission appears to be that it is paragraph (f) only which provides the basis for Justice Beaumont's conclusion.

MR BASTEN: Yes. And we would understand Justice Einfeld and Justice Foster approached the matter in the same way. They seek to identify an error of law in the approach of the Tribunal, which is, presumably, paragraph (f) again.

TOOHEY J: Well, perhaps paragraph (j):

the decision was otherwise contrary to law.

I am not sure what that adds to paragraph (f).

MR BASTEN: It might well fall within that, too. I would understand that it was (f) which was primarily the basis. And if it were necessary, I would take your Honours to the question of whether or not that ground were properly considered to include an appropriate no evidence ground. In short, we say that it does not. Even if the analysis of that subparagraph permits one to take account of no evidence in the common law sense, that would encompass only no evidence as to the ultimate question to be determined.

We would say that cannot arise in the present case, because the question which was determined by the Tribunal was simply that the Tribunal was not satisfied, and it does not lie in the mouth of the person who is seeking to satisfy the Tribunal to say that the failure to reach a finding, so phrased, can be attacked on the basis that there was no evidence to support it.

KIRBY J: That may be correct in the way the Tribunal reached its decision, that total absence of evidence can indicate an error of law, as a matter of law.

MR BASTEN: Yes. Well, as to the ultimate question, I - - -

KIRBY J: I am not saying that in this case that is available, given the way the decisions of the Tribunal are expressed, but it would, as a matter of legal theory, fall within an error of law.

MR BASTEN: Well, yes, except that we would be concerned to distinguish a common law basis for that no evidence finding from the statutory provision in paragraph (h), subject to the qualifications in subsection (3), which we would say are not satisfied in the present case.

McHUGH J: That is a very important provision, subsection (3) of section 5.

MR BASTEN: That is so, your Honour. We would say that this is not a case in which there is any primary statutory fact of a jurisdictional nature, perhaps, which would fall within paragraph (a) of subsection (3), and we do not get to paragraph (b), because there was no attempt to disprove a fact within the meaning of that paragraph by other evidence. We would also, if it became necessary, seek to point to specific material before the Tribunal which would have justified any particular finding of material fact which might be attacked, and we have not precisely had that question of fact identified, so it was a difficulty in doing that.

TOOHEY J: But it would be very difficult for this Court, in the light of the judgments, to reach any conclusion in relation to any no evidence proposition because, at least in terms of Justice Beaumont, he implicitly accepts that there may well be evidence.

MR BASTEN: Yes, and his Honour Justice Sackville deals with it in so far as it was argued before him, and if were necessary we would simply rely upon that aspect of the matter. Could I come back, just very briefly, to what your Honour Justice Kirby put to me in relation to the way the Tribunal dealt with it. In making the comment I did just before your Honour said that I had in mind rather the way in which the statute required the question to be formulated, and in particular the passage in The Minister v Wu Shan Liang [1996] HCA 6; 185 CLR 259. At the bottom of page 274 through to the top of 275 the Court noted, about four lines from the bottom:

A condition of determination is the Minister's satisfaction. Accordingly, it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution.

It was that formulation of the ultimate issue which I had in mind in saying that under the common law ground someone who had failed to satisfy the Minister would not be able to come before this Court with a no evidence argument. I was about to turn to one or two other matters dealt with by his Honour Justice Einfeld which may have been treated as questions going to the error of law ground. At page 473 at line 10 his Honour considered that:

the Tribunal should have considered, viz whether the birth of the third child carried with it an imputed political opinion -

a matter which his Honour also deals with at the bottom of the page through to line 20 on the next page. A similar comment is made in relation to Mrs Pan, the wife of Mr Guo.

BRENNAN CJ: Where is this?

MR BASTEN: I am so sorry, at 473 in the - - -

TOOHEY J: Did you say that was Justice Einfeld?

MR BASTEN: Yes, your Honour. The issue is really raised at lines 10 to 25, and then his Honour says at the foot of the page:

However, it seems to me in this particular case that the question of the appellant's third child would also be relevant to whether the appellants might be said to hold a political opinion.

Then over to the next page his Honour concludes that:

viewed in concert with the appellants' history of activities that show their active and painful disagreement with some of their Government's most basic policies -

His Honour concludes that the fact that they now have three children:

may establish that they have in all likelihood been ascribed a political opinion.

That may be a finding of fact by his Honour but it may also be a criticism of the judgment of the Tribunal. A similar point is made at page 486 at line 12 in relation to Mrs Pan, herself, where his Honour says that it is:

virtually inescapable that there is a real risk of her pattern of continuing behaviour and associations being considered by the Chinese authorities to evince a deliberate renunciation of China's laws and policies such that they will impute to her an adverse political opinion.

In relation to the judgment, the decision or the reasons with respect to Mrs Pan, might I just take the Court briefly to the decision of the Tribunal which appears at page 179 in the first of the books. It is clear through a number of passages that the Tribunal was conscious of the fact that there had been a second contravention, as it were, of the one-child policy. At page 184, in summarising the background material at line 30, the identification of the three children is expressly made. The third child, of course, was born only 11 days before the departure for this country and hence there was no evidence as to any attitude adopted by the Chinese authorities subsequent to its birth.

At page 186 at line 26 it is noted that the applicant may have to pay fines in respect of her second and third children. At page 188 at line 9 the date of birth of the third child and the fact that it was born in a separate hospital was noted, and at line 13 it is noted that:

She came to Australia about eleven days after the birth of her third child.

Then at page 189 at line 15 a submission as to persecution based upon the existence of the two youngest children is referred to and considered. It is clear, as one might expect, that the question of the three children was very much in the Tribunal's mind when considering the evidence with respect to Mrs Pan. The reasons why the Tribunal rejects her claims that she faces forcible sterilisation are set out at pages 194 through to - or really to page 196 at line 35, and they are reasons based upon the fact that the Tribunal did not accept her evidence that she had been the subject of any real attention from the family planning authorities in relation to any prior period during China and, indeed, that she had lied to the Tribunal in relation to one matter which was contradicted by her husband.

DAWSON J: So the Tribunal did not find that forced sterilisation was persecution.

MR BASTEN: It did not address that question.

DAWSON J: It just said, even if it was, there is no evidence - - -

MR BASTEN: There was no evidence to suggest it.

DAWSON J: - - - that she was in fear of it, and did not address the question as to whether, even if it was persecution, it was persecution for a Convention reason.

MR BASTEN: That is so. It did not deal with that matter and, indeed, may not have accepted the subjective element. It depends, perhaps, on how one reads the reasons, but since it considers she did not give truthful evidence about the basis of her fear, certainly found that she was not subject to any threat of forcible sterilisation in fact and, therefore, did not come to the other questions to which your Honour adverted and it must be recalled that the evidence in relation to forcible sterilisation in China is not that it is universal, but that it occurs in some rural remote areas. These applicants did not come from rural remote areas. They came from Bei Hai, the major fishing city on the south coast.

BRENNAN CJ: But that is in an autonomous region.

MR BASTEN: Yes.

BRENNAN CJ: Was there anything in any of the material which referred to the differential application of the policy in autonomous regions?

MR BASTEN: There was certainly reference to differential application of policy. Whether it specifically addressed the question of treatment in autonomous regions, I am not sure. Mr Williams does not recall it does either. We will see, but I do not recall that being an issue before the Tribunal in any event. With respect, although his Honour makes the comments to which I have referred, his Honour does not point to any particular material before the Tribunal which would suggest that there was any danger of the Chinese Government imputing a political profile on the basis of a double contravention of the one- child policy. The imposition of sanctions short of forcible sterilisation was accepted by the Tribunal and treated as something less than persecution. That appears at page 196 at line 20.

KIRBY J: I take his Honour's reasoning, right or wrong, to be that of itself it might not be relevant, but that when you add it to the other factors, you add the factor that here is a person who is in breach of one more aspect of Chinese law and that that is to be taken into account. Whether that is a legitimate step to take in a judicial review is another question, but I take it that is what his Honour was doing.

MR BASTEN: Yes, that may be the correct inference. We would say that that is not a legitimate step and as it can be identified as falling within some head of error of law or other ground and it is not clear that his Honour is putting it, at least at that stage, on the error of law basis. The other matter to which I should perhaps turn in relation to his Honour Justice Einfeld's judgment is the question of how his Honour treated the severity of the treatment which might be afforded to Mr Guo on his return on the basis of the discussion which had occurred before the Tribunal concerning his treatment on return in 1992.

This raises a matter to which I think your Honour Justice Kirby adverted earlier, namely the fact that his brother, Mr Guo Wei Zhi, had been subject to similar treatment to him on return on the first occasion. At the bottom of page 490 his Honour refers to facts which point to a real chance that Mr Guo will be persecuted. On the top of page 491 he noted that his activities had:

already attracted the attention of the Chinese authorities, and he and his brother have received disproportionate or discriminatory punishments which were substantially harsher than the Chinese Government had assured the Australian authorities that returnees could expect.

KIRBY J: They were both sent back after one departure. They were treated differentially but - - -

MR BASTEN: They were treated the same in circumstances where - I am sorry, I should not have interrupted your Honour.

KIRBY J: No, you continue. What do you say are the facts?

MR BASTEN: As I understand the complaint, it is that, although they might have been subject to differential treatment because the brother was not a recidivist, they were treated the same and that they were both treated more severely than other members of the boat from which they came.

KIRBY J: But the penalty fixed on Mr Guo was 28 days which does not appear on the face of things to smack of a severe political punishment.

MR BASTEN: No, and indeed it was, as the Tribunal found, within the range which might be expected. The material which was before the Tribunal indicated that returnees could expect to receive up to several months' treatment and indeed the provision of the criminal law under which they were punished referred to detention of up to one year. The question is really whether what his Honour identifies in the passage identifies any error of law on the part of the Tribunal. We would say that it does not and in particular we note that there really was no attack on the fact that the 1992 punishment was within the range which might have been considered appropriate by Mr Guo himself.

BRENNAN CJ: Was it not Mr Guo's boat which had brought the people here?

MR BASTEN: On this occasion he claims to be an organiser.

BRENNAN CJ: The "Jeremiah".

McHUGH J: He organised the "Jeremiah", did he not? He bought it.

MR BASTEN: Yes, he was an organiser in that case, although not - - -

BRENNAN CJ: He owned the boat.

MR BASTEN: Yes, that is so.

BRENNAN CJ: Well, the maximum penalty would have been five years, would it not?

MR BASTEN: Indeed, yes. Your Honour is quite correct. There was a volume of evidence that established both of those periods, depending on how he was treated. I took the lesser period against myself, as it were, because it is not entirely clear that the Tribunal found that the Chinese authorities actually treated Mr Guo as an organiser as opposed to someone who may have been suspected of organising. So, whether they treated him as subject to a five year penalty or not is not, we would say, clear on the facts. But that was a matter for the Tribunal to deal with.

Your Honours, might I just then turn to the judgment of Justice Foster, and the critical passage in identifying error in the reasoning of the Tribunal appears at page 514 at lines 20 to 30. His Honour refers to the instances cited by Justice Einfeld of cases in which the Tribunal has, as his Honour puts it:

clearly enough, applied the balance of probabilities test to the determination of significant facts in Guo Wei Rong's application.

And he agrees that that is a sufficient basis for setting aside the decision as vitiated by error of law and then proceeds to add some comments of his own. The line of authority upon which that finding was based is that set out at pages 507 to 511 in the judgment of Justice Einfeld, and to which I think I did not refer your Honours before, but it is the line of authority which was the subject of the finding by this Court in Wu Shan Liang in his Honour Justice Foster's judgment.

His Honour then identifies the correct approach of the Tribunal at page 511 at line 45 as something similar to the approach suggested by Justice Einfeld - to which I might refer briefly if I may in a moment - but does not deal with that matter in any more detail. The second issue which is dealt with by his Honour is the assessment of the evidence given by Mr Guo and the exercise was the basis for fact finding which we would say is impermissible. His Honour's conclusions appear at page 531 at lines 35 to 45. The fact finding exercise undertaken is on the basis, of course, that it may be necessary in order to determine the relief which would be available at the end of the day. His Honour says at line 35 - and I do not know whether I need to take your Honours through this in any detail - that:

I consider that the findings made by the Tribunal, in relation to the interrogation of the appellant on his first return -

that must mean first return from Australia -

to China in 1992, sufficiently indicate that he was then the subject of persecution for political opinion.

And his Honour goes on to say that would remain the case. The basis for saying that is not clear. The Tribunal's judgment does not suggest that the interrogation per se amounted to persecution. There is certainly no finding to that effect. It may be that what his Honour had in mind in that passage was the statement by Chief Justice Mason in Chan's Case 169 CLR at 390, which was quoted by his Honour at 501 of his Honour's judgment at line 55 at the bottom of the page.

With respect, if this point is being put against us as an error of law, then we would respectfully submit that the Chief Justice was not intending to make the point for which the passage is quoted. At the top of page 390 his Honour is considering on the basis of the facts in Chan's Case, which, of course, involved interrogation and exile for a significant period, whether that amounted to persecution. At the top of 390 his Honour said:

Just why discrimination of this kind did not amount to persecution was not explained by the delegate. 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.....amounts prima facie to persecution unless the actions are so explained that they bear another character.

We, with respect, would say two things about that. Firstly, his Honour is not saying that any form of questioning taken alone, even if it related to political activities, would necessarily constitute persecution within the terms of the Convention. The phrase which his Honour uses is a summary, in short form, of the factual findings which had been made in relation to Mr Chan in that case.

One cannot, with respect, take one word out and say his Honour is intending to say that such interrogation, by itself, is persecution. The question, of course, which is one of fact, is whether the interrogation did, indeed, bear another character, and that was not an issue on which specifically the Tribunal had made any findings, other than its findings that his treatment on return was not related to his activities in Australia. If an error of law is sought to derive from that passage, we would respectfully submit that that is not a fair reading of the passage in Chan on which reliance is placed.

There are various other passages in his Honour's judgment where he makes findings of fact which, in our submission, are not acceptable. We do not wish to go through the passages, unless the Court would wish it, at this stage. We would merely say that in so far as the no evidence ground might be raised, if it can be raised at this stage, given the history of the matter and the absence of any notice of contention, then there is evidence for the findings of the Tribunal and that the findings contrary to the findings of the Tribunal made by the majority in the Full Court were inappropriate.

It is clear, for example, at page 521, where his Honour identifies an assertion and makes, in effect, a finding based upon it. It is clear that the court was going beyond and, indeed, making findings inconsistent with those which had been made below. The matter is important because at the top of page 523 his Honour noted assertions had been made before the Tribunal of "brutal ill-treatment," and his Honour treats them as having been accepted in the absence of any comment one way or the other because he said he:

would have expected the rejection to be explicit.

That, with respect, is not a basis upon which the Tribunal made its findings. It may be that it should have made explicit its rejection, if it did reject them. It may be that as the matter arose before the Tribunal, the question of brutal ill-treatment was simply not put to the fore of the case of the applicant. If one reads the material at the beginning of page 1 involving the lengthy points of claim and the amended application in this matter, which between them cover more than 30 pages, brutal ill-treatment is not one of the matters which, even when the matter came before the Federal Court, the applicant was relying upon.

So, in our submission, the fact that no criticism was made at an early stage of the Tribunal's lack of finding in that regard does not provide a basis upon which the Full Court is entitled not only to assume a finding, but to, at the end of the day, grant relief on the basis of those findings.

BRENNAN CJ: Was there any evidence in the appeal books before us of brutal ill treatment to force submissions?

MR BASTEN: There was material which was contained in an affidavit which was put before the Tribunal. I can find those passages, your Honour. What was before the Full Court was not all of the material which was before the Tribunal, let alone the material before Justice Sackville, but there was before the Tribunal affidavit material which had been considered by the Tribunal and had been the subject of examination by the Tribunal officer at an oral hearing, and that material did include references to ill treatment in the course of the interrogation. Of course, the same affidavit, which appears at page 120 - or one of them does, but two, I think - identifies two sets of interrogation and ill treatment, one of which occurred during the three month imprisonment at the time in June 1992 when the Tribunal found that no such imprisonment occurred. So, clearly, any allegations in that regard were rejected implicitly by the Tribunal's finding that there was no imprisonment.

If your Honours turn to the bottom of page 121 there is certainly a claim by Mr Guo as a matter of fact in paragraph 9 that he was beaten severely during interrogations. A similar matter is identified, I think, in the affidavit which commences at page 125. At the bottom of page 127, for example, he said he was beaten on the head and on the lower back.

TOOHEY J: There is a passage somewhere and I just cannot pick it up at the moment which refer in, I think, the findings of the Tribunal which speaks of later corroboration of some allegations which the Tribunal proceeds to reject. I cannot recall whether that is in regard to the first return or the second return.

MR BASTEN: It is in regard to the imprisonment following the October 1992 return, your Honour.

TOOHEY J: It is the first return.

MR BASTEN: Yes; well, the first return from Australia.

TOOHEY J: Yes, of which we are - - -

MR BASTEN: Which was the subject of consideration in detail and it relates to the question of the second period of imprisonment. The approach that the Tribunal took was that it was inherently suspicious of the claim of the three month period of imprisonment in 1993 just prior to departure, because Mr Guo did not mention this at the two interviews conducted with him on his arrival in Australia, nor did his wife, nor did his brother.

The corroboration was that his brother then later did corroborate the allegation of three months imprisonment and what the Tribunal rejected was both Mr Guo's evidence and his brother's evidence corroborating him in that regard.

TOOHEY J: Yes, thank you.

MR BASTEN: I may be able to find your Honour the passage in the Tribunal's decision that is - - -

KIRBY J: Mr Basten, Justice Beaumont's judgment rests on a quite narrow foundation and he does not fall into what you say is the second error concerning the order and if, in fact, that foundation were not shown to be wrong then that would sustain at least the orders which he favoured.

MR BASTEN: Yes, that is so.

KIRBY J: His reasoning seems to run from the point that Hathaway's Law of Refugee Status has suggested a need to look more broadly than some of the earlier cases did on the question of political opinion and that the essential error of the Tribunal which Justice Sackville had not corrected was in focusing far too specifically on the length of the sentence and not looking at the whole of the facts such as the statements made that he would rather die in Australia than be sent back to China and the fact that he had taken part in a political demonstration here and so on. Now, the question that I need your help on is, what do you say about the narrow foundation that Justice Beaumont poses as distinct from the much broader basis that Justice Einfeld and Justice Foster support?

MR BASTEN: I suppose we would say two things in addition to the matters I have put, which I will not repeat, but, I am sorry, it does in a sense turn on the question of whether the Tribunal considered it properly within the range of discretion given to the Tribunal to deal with these matters and there is no doubt that the Tribunal looked to the activities in Australia and perhaps I need to take your Honour through a bit more of the material. They were not inherently political and it was not at all obvious that they were necessarily going to be seen by the Chinese Government as political or as a basis upon which the Chinese Government would necessarily have any concern and particularly against background material which said that the Chinese Government was not concerned with things which were said overseas and against that background it became of critical importance - and I think that is a phrase used by Justice Foster - to assess what did happen to Mr Guo on his return in October 1992.

DAWSON J: But why was this an exercise in which the court was engaged at all? I mean, they do not review the findings of facts and there is no question and it has not been suggested that there was not evidence to support the finding of fact that the Tribunal made and the only thing remaining is, did it pose the right question for itself.

MR BASTEN: That is so.

DAWSON J: Why are we getting into all of this area of disputation?

MR BASTEN: I think my answer to that, your Honour, is that in answering Justice Kirby's question I was seeking to show that the way that Justice Beaumont had formulated his identification of the error did not itself give rise to an error of law, but that - - -

KIRBY J: He italicises in his reasons "when account was taken of all of his conduct" suggesting in essence that the approach of the Tribunal in applying the legal test was too narrow. Now, it is an error of law, as I understand it, for a body with the power to decide a matter to focus too narrowly on the application of the legal tests. I am not saying I form any view on this, but I am just trying to understand Justice Beaumont's narrow view, he seems to say, well, they really just looked at the length of the sentence and that that is too narrow and that you have to look at a broader basis and that is consistent with what the textbooks say and what courts in other countries are saying and with what we should do and what the Tribunal should do.

MR BASTEN: Yes.

DAWSON J: Well, how is that a question of law?

MR BASTEN: I do not dispute the statement of principle which his Honour derives from the authorities. It seems to me that that is entirely acceptable and the question really is whether the Tribunal departed from a proper application of that principle in the way it dealt with the facts.

DAWSON J: Which principle are you talking about? What is the right question?

MR BASTEN: We say the right question is the question that the Tribunal expressly identified for itself, which is whether he faced a real chance of persecution for a Convention reason on return to China.

DAWSON J: What was the question Mr Justice Beaumont proposed for himself?

MR BASTEN: Well, I think, as I understand the question that is being asked of me, your Honour, it is that at page 446 at line 40 he posed a different question and one which he says the Tribunal did not ask itself, namely, whether looked at as a whole the conduct was capable of being perceived as politically neutral. Now, that could, on one interpretation, be precisely the question the Tribunal asked; that read in abstraction it is simply not the correct test, because it is only one step on the way to the conclusion to ask whether the Government of China could have identified the conduct as not politically neutral.

One needs to go further than that and establish whether or not that might also give rise to a real risk of persecution on that basis. If one adds that, then that is precisely the test the Tribunal asked, we would say, and they did deal with all of the matters which were put before them as a ground on which Mr Guo submitted that he suffered this fear of persecution. So I am not arguing with your Honour.

DAWSON J: No, that is the point.

MR BASTEN: Yes. I am not arguing that your Honour's view about that.

DAWSON J: No, but we seem to be getting off into facts - and I think that that is inevitable when one starts to put argument of this sort - - -

MR BASTEN: I am sorry for doing that.

DAWSON J: You say the test which was imposed by the Tribunal was the right one?

MR BASTEN: Yes.

DAWSON J: One which Mr Justice Beaumont poses is either the wrong one or it is no different really from the one which the Tribunal poses.

MR BASTEN: And his specific criticisms to which I turned in order to identify whether his Honour really were identifying an error of law, each deal with matters which we say the Tribunal expressly and adequately dealt with.

GUMMOW J: It comes to this, maybe, Mr Basten. His Honour seems to have got this phrase really addressed from what Justice Gibbs said in Sinclair's Case 132 CLR at page 483. His Honour said:

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.

You say the Tribunal here did.

MR BASTEN: Yes.

GUMMOW J: And then Justice Gibbs goes on:

There was thus a purported but not a real exercise of his functions -

You say there was a real exercise because the Tribunal did apply itself to all the matters required for it to consider.

MR BASTEN: That is so.

McHUGH J: And at 98 and 99, the Tribunal refers to the fact that he was questioned by the authority about his activities in Australia, and it makes a finding that it did not accept that his treatment was related to those activities and deals with that. There is nothing the matter with that - subject to hearing Mr Rares on this - and they make a finding that his treatment received on his return was reflective of the punishment for illegal departure.

DAWSON J: What you are really saying is that the court arrived at different findings of fact and dressed them up as a legal question, and they were not really at all.

MR BASTEN: That is so.

DAWSON J: Well, that is the point.

MR BASTEN: That is our point, yes.

KIRBY J: Right or wrong, I did not take Justice Beaumont to be making new findings of fact. He was saying that the Tribunal did not address itself broadly enough; it was focusing on too narrow a question. Now, it may be, as Justice McHugh says, that when you actually look at what the Tribunal did, that is just wrong. But I am simply trying to understand his Honour's narrow view. Can I just trouble you with one last question? He says, in relation to Mr Guo's wife, Ms Pan, that she has to be treated in the same position, following Chan. Do you accept that? I do not know what Chan says in that regard. She had different grounds - or, at least she had different evidence supporting different grounds, but was that common ground before the Federal Court, or not?

MR BASTEN: Well, I do not know whether it was dealt with in those terms before the Federal Court. We would have no difficulty with the proposition that as his wife, if he were to be accorded refugee status, she would be entitled to the protection also. I think Justice Sackville specifically refers to regulation 2A which was in force at the relevant time. He did so in relation to a question of the nieces, which was fallen away, but it is clear that a spouse is covered as part of the family, so that there would be no difficulty in that regard, yes.

Might I just follow one matter that your Honour Justice Gummow raised in relation to Sinclair's Case? That statement of principle of his Honour Justice Gibbs has been dealt with in a number of other cases, rephrased in terms of real, genuine and so on, dealing with the matter. But the factual material upon which the comment was based in Sinclair, of course, was one where it was clear that there had been an error of law, because there was an absence of evidence to establish mineralisation across the whole of the land, and what the court was saying was that you could not grant a mining lease unless that evidence were before you, and that is a very different case from the present one.

I appreciate that Justice Beaumont does not seek to rely upon the circumstances of that case, but we say that simply to quote Sinclair as if it might be authority for anything more specific than the general proposition - with which we do not quibble, of course - would not be correct.

The other matter which I should address, I think, is the question of relief. There was one other matter. I do this under the fear of causing your Honour Justice Dawson more concerns, but one of the reasons why we reiterate and perhaps place too much emphasis on our concerns about the factual findings were that they were by no means obvious. The statements to that effect in the judgment of the Full Court give rise to perhaps a further and additional reason why the Court should not enter that territory. One of the reasons that I was seeking to address some of them briefly was to illustrate that point.

We also refer in the written submissions to the fact that this very rooftop protest had been the subject of fact finding in the Federal Court by another judge, Mr Justice Drummond, in Li Shi Ping's Case. I do not want to take your Honours to it, and of course it has no direct bearing on the findings of fact which might be made in other proceedings, but it illustrates that there are different ways of dealing with it. The Tribunal in this case was never asked in effect, because of the way she dealt with the matter, to consider whether that was a genuine sur place claim or whether the rooftop protest had a totally different purpose, namely either to put pressure on the Australian government or to give rise to a deliberately manufactured claim of political opinion.

His Honour Justice Drummond, who actually had to deal with the evidence from Mr Guo in the other matter to which we refer in the written submissions, held that it did not give rise to any claim of imputed political opinion because it was for a different purpose. Since we refer to the matter, might I just hand up the relevant passages from his Honour's judgments in Li Shi Ping v Minister for Immigration.

BRENNAN CJ: What is this to establish?

MR BASTEN: I am sorry, we say in the course of the written submissions at the paragraph which I will find that one of the reasons why one should be wary of making fact findings in an exercise like this is that the material before one may not be complete and that in the particular case there may well be other views about the facts which may be found. At the bottom of paragraph 6.3 - - -

GUMMOW J: This is all on the assumption that your opponent was entitled to some relief?

MR BASTEN: That is correct, yes.

KIRBY J: This is point 2; this is the second point?

MR BASTEN: It is the second aspect of the matter, yes. We refer to the contrary findings of Justice Drummond without giving references. All I was seeking to do - - -

GUMMOW J: Is to deny that that relief had to be in this absolute form because no other conclusion was open?

MR BASTEN: That is right, yes.

KIRBY J: In this case, as I understand it, the Full Court did not have the transcript of the hearing that had been before Justice Sackville.

MR BASTEN: No. Although it is said at one stage that - I think Justice Foster said he had been assured that all relevant material was before the court, he may have been assured by our opponents but not by us. That of course was partly because the view that we were taking was that fact finding was totally impermissible at that level and in those proceedings.

KIRBY J: Justice Beaumont records that we were urged to make a final determination. Do you say that was just by the respondents, not by you?

MR BASTEN: Yes. We urge nothing other than that if there were error of law the matter should be remitted to the Tribunal. That remains the position that we adopt which we say is consistent with authority.

KIRBY J: Has there been any other case where a Full Court has made a decision on facts? I am not seeking to interrupt your handing up the earlier matter.

MR BASTEN: It is a broad question, your Honour, might I just - I think the question is probably too broad for me to answer it in that form, your Honour, because under section 5(3)(b), of course, it may be perfectly open and required of the Court that it make factual findings that a circumstance did not exist, and Curragh Queensland Mining Ltd is a case in which that aspect of the no evidence rule is considered. There are no doubt cases in which the Federal Court has, in judicial review proceedings, made factual findings. I am not aware that it has ever been suggested that it is appropriate for the court to make factual findings because it is said in Cunningham's Case and the others to which we refer with respect to relief, that if there are factual findings still to be made then that is precisely the case in which the court would remit.

GUMMOW J: Well, section 5(1)(g), for example, "that the decision was induced or affected by fraud", that could generate a factual dispute on the - - -

MR BASTEN: A factual finding and so could a natural justice argument. Yes, that is so. But, within the area of error of law, in this case we would say no.

I am sorry, I was going to hand up, if I might, those two decisions of Justice Drummond. They are within short compass and just give your Honours a reference to them. There is a decision of 19 August 1994 in [1994] FCA 1275; 35 ALD 557 and I have simply sought to hand up the material, specifically at pages 578 to 580, in which his Honour deals with the question of the evidence before him concerning the Port Hedland protest and the further decision of 5 September 1994 in [1994] FCA 1310; 35 ALD 395, in which his Honour considered an application to consider material suppled by the Guo brothers which is referred to at the bottom of page 395 in the headnote and the relevant passage in the judgment appears at page 397 halfway down the page and onward to the end of the judgment where his Honour rejects their evidence as irrelevant because whatever happened to them on their return to China would not have been relevant given his Honour's view of he protest which had already been formed in the earlier judgment.

In relation to the question of the declaration of entitlement, which is dealt with at paragraph 7 of the written submissions, unless there is any particular matter which the Court wishes me to go to, our submissions are that the material referred to there is consistent with generally accepted principles. We refer to a number of authorities at the bottom of paragraph 7.2 and we refer in particular to the decision of Li Shi Pin in 1995, also in 35 ALD, in which a very similar situation was considered by the Federal Court consisting of your Honour Justice Gummow and Justices Sheppard and Carr in which the principles are correctly stated, in our submission.

They are referred to by Justice Einfeld in this case, but in circumstances where the preconditions are simply not satisfied and I need perhaps not trouble your Honour with the passage at 239 to 241 in that judgment where his Honour sets out the relevant principles.

BRENNAN CJ: The proposition simply is that the Federal Court did not have the power which it purported to exercise.

MR BASTEN: It did not have that power and if the exercise of power was said to be based upon facts which had already been found conclusively by the Tribunal and gave rise to no other exercise of power, we would say, firstly, that would still be a matter to be referred back to the Tribunal with a direction.

BRENNAN CJ: There might be a mandamus situation.

MR BASTEN: There might be a mandamus situation, but then again that is why I needed to spend some perhaps too long time on the facts because we would say that there were indeed further findings and inconsistent findings made by the Federal Court. So for those reasons we would say it was beyond power.

KIRBY J: This point would also not arise if you succeed on point one and if the proper relief, even assuming that point one was decided against you, was remittal to the Tribunal.

MR BASTEN: That is so, your Honour. Yes, we would say that. Might I just for completeness note that there was a page missing from the appeal papers. Page 115 should have been followed by another page but was recopied. Might I hand up a page which I think my friend wishes to refer to in any event which is identified as page 115A and might I also for your Honours' assistance hand up a comparative reference table between the passages in the judgments in the appeal books and the reported decision of the Full Federal Court which is now in 64 FCR.

BRENNAN CJ: Thank you.

MR BASTEN: Unless there are any other matters which your Honours would wish me to deal with, those are my submissions.

KIRBY J: Is 64 the volume in which this case appears?

MR BASTEN: That is so.

KIRBY J: The one under appeal.

MR BASTEN: The one under appeal.

BRENNAN CJ: Thank you, Mr Basten. Mr Rares.

MR RARES: Your Honours, I, as Mr Basten did, apologise for the way the submissions have been prepared. I think the Registrar in Sydney directed that there be written submissions last December and I think we were just operating on that direction for our part.

Your Honours, this is a case that obviously deals with people's fears for their life and their liberty, and the proper approach to decision making in respect of that. The court in Wu's Case adopted, or referred approvingly in the joint judgment to what Justice Gaudron had said in Chan, at the top of 281 of 185 CLR, as being the essence, we would submit, of how one approaches the fact finding in this difficult area. Her Honour said:

Perhaps all that can usefully be said is that a decision-maker - - -

GUMMOW J: Why is it a difficult area?

MR RARES: Because one is dealing with people's claims that they are, if returned, likely to face a real risk of persecution.

GUMMOW J: Yes, but in terms of legal concepts, why is it a difficult area? The legal principles are not all that difficult, are they?

MR RARES: The legal principles may not be, but it is a difficult area in terms of the fact finding and the application of the legal principles to the facts, particularly when one considers that there is an administrative decision that may in fact, if decided adversely to the person, have the consequence that they are sent into a situation which realises that fear. An administrative decision maker in effect may make a decision in this country that has the effect of life or death on this person, or substantial imprisonment.

So, it is not just simply a matter of, in our submission, looking at a tribunal's or a minister's decisions in this area and not giving it careful scrutiny, and not being satisfied on perhaps, in the ordinary way, conventional administrative - - -

GUMMOW J: But one applies the Administrative Decisions (Judicial Review) Act one hopes correctly according to law to all cases which come before the Federal Court; no more, no less.

DAWSON J: And relatively, in a case like that, that goes like this; that means you look for an error of law, or whether there is no evidence at all, and that is the court's function - - -

MR RARES: We submit that, in this case, there was an error of law in the approach the Tribunal took to the application of the real chance test and that there were no facts to base its - - -

DAWSON J: What was the error of law?

MR RARES: The error, your Honour, was that it did not evaluate the material before it on the basis that it was looking for a real chance. It took a starting point - if I can take your Honours to it - at page 95, the section headed "Reasons for decision". It says:

In summary the Applicant's claims in relation to his household registration, the restriction of his fishing licence, the confiscation of his boat and the disappearance of his sister are outside the scope of the Convention; as any harm he faces is not as a result of his civil or political status as enumerated in the Convention grounds -

So that, what one has there is a refusal to look at whether any of these materials are part of a "real chance", that that concatenation of misfortune may be - I am sorry, I was reading from 94. At the top of 95:

The only issue that remains to be determined is whether the treatment the Applicant fears from the authorities on return because of his contravention of the one child policy and his illegal departure brings him within the Convention. This requires a determination as to whether the treatment he fears is directed at him for a Convention reason, whether the fear is well-founded and whether the treatment amounts to persecution.

The first thing is that it is not a determination as to whether the treatment he fears is directed. The question is whether there is a real chance it may be directed.

BRENNAN CJ: Let us take this real chance concept piece by piece. There must be a real chance of persecution, is that right?

MR RARES: Yes.

BRENNAN CJ: The persecution in this case that was feared was what?

MR RARES: That he would be selectively harassed or punished in a way that did not conform to what the ordinary application of Chinese law would be to him, just as we submit the Tribunal found he was in 1992. I have to make this good, I appreciate it, but the essence of our argument is that the Chinese Government assured our government before these people were deported and after - - -

BRENNAN CJ: Before you go on with this, let us get the concepts right before we get into the facts. The question is whether there was a real chance of persecution.

MR RARES: Yes.

BRENNAN CJ: The persecution that you point to that is feared is the fear of differential treatment, is that right?

MR RARES: Yes, differential treatment by losing his liberty, by being put into a situation where he cannot effectively earn the livelihood he used to be able to earn or any real livelihood by having substantive fines placed upon him and by the fact that he has had with his wife a third child immediately before fleeing to this country again.

BRENNAN CJ: That is the question of the basis. I am looking at the persecution. And the persecution must be, you say, there must be a real chance that any such persecution will be based on a Convention reason?

MR RARES: Yes.

BRENNAN CJ: And the Convention reason is?

MR RARES: Imputed political opinion.

BRENNAN CJ: And the imputed political opinion that there is a real chance that may be imputed to him is what?

MR RARES: That he opposes the Chinese Government political suppression of dissent as coming from the protest in 1992 when they put the banner on the roof that said, "We'd rather die in Australia than be returned to China to be executed", by the fact that he has had a third child and been seen to be actively and deliberately dissenting from the government's policies and voted with his feet coming here and, thirdly, by bringing these claims forward in the proceedings in the Federal Court that Mr Justice Drummond looked at that got publicity by again putting himself forward in front of other people in the Refugee Review Tribunal cases where he gave his story and for which he may be prosecuted because he was trying to support their cases of staying here for the fear that they would also be treated in the way he asserted he had been mistreated in China on his return last time.

BRENNAN CJ: Then the questions which the Tribunal had to address itself to were, firstly, whether there was any real chance of his fear of persecution being realised and whether there was any real chance that if he were so persecuted it would be for a Convention reason, is that right?

MR RARES: Yes, your Honour.

BRENNAN CJ: Perhaps you can take us - - -

DAWSON J: Is that right?

BRENNAN CJ: Yes, that is the argument is, as I understand it.

DAWSON J: Yes. It was going through my mind that the only relevance of a real chance is as to whether the fear is well founded. That is the only relevance, because you look at the persecution - and it has to amount to a persecution for a Convention reason - otherwise, if it exists, of course, it exists objectively. But the question of the real chance is to say whether the fear is well founded. If there is not a real chance, the fear is not well founded.

MR RARES: Yes.

DAWSON J: That is all it goes to. So that when you look at the things at the top of page 95 that the Tribunal thought it had to consider, the only one which introduced a real chance is whether the fear is well founded.

MR RARES: Yes. But when she is looking at whether it is directed at him for a Convention reason - - -

DAWSON J: That is another question.

MR RARES: That is a substantive question that goes - I mean, if one is looking at the concatenation of the reasoning process, she is trying to determine as a matter of fact whether that the fear is directed at him for a Convention reason as opposed to whether that is a chance.

DAWSON J: Yes, but that is the question she posed for herself at the top, and the fact that she did not mention a real chance is understandable, because it is not relevant to those things, it is only relevant when one comes to the detail as to whether the fear is well founded. When she does come to that no doubt she deals with it in terms of the real chance.

MR RARES: What we submit is that by - - -

DAWSON J: We are looking to see whether the Tribunal posed for itself the right question to an extent. We are only concerned with the question of law really here, and there is nothing wrong with that question.

MR RARES: But there is, in our respectful submission.

DAWSON J: What is it?

MR RARES: Because when you pose the question, whether what he fears is directed to him for a Convention reason you are putting the cart before the horse.

DAWSON J: Why?

MR RARES: Because the first thing has to be whether there is a real chance that it is directed to him.

DAWSON J: That is the point. You are bringing that in at the wrong point.

MR RARES: And that is the way she approaches it in the reasoning. She says what he fears is not directed at him for a Convention reason, not that there is no real chance of it. She says what he fears is not directed to him for a Convention reason, therefore, his fear is not well founded.

DAWSON J: Real chance is irrelevant to whether there is a Convention reason or not.

MR RARES: I may be at cross-purposes with your Honour.

DAWSON J: I do not think so.

MR RARES: But, in our submission, real chance has to be.

DAWSON J: How?

MR RARES: Because what you are assessing is whether the person who claims that they fear something will happen to them if returned, there is a real chance that not only will it happen to them but it will happen to them for a Convention reason.

McHUGH J: That is not the way we looked at it in Chan. We all looked at it in terms of well-founded, whether there was a well-founded fear of persecution full stop.

MR RARES: Yes, but whether there is a real chance of a well- founded fear of persecution.

McHUGH J: Yes.

MR RARES: Yes.

BRENNAN CJ: No, whether there is a real chance of persecution which justifies a finding that that fear is well-founded, but the only persecution which is relevant is a persecution that will be based on a Convention reason. Now, is there a well-founded fear of persecution of that kind?

MR RARES: We submit in this case that there clearly had to be and the Tribunal had to find that and based on its findings it, in fact, could not have found otherwise.

McHUGH J: Why?

DAWSON J: This is just going to the evidence.

MR RARES: No. One has to - - -

BRENNAN CJ: Let us try and get rid of one little piece of evidence. So far as the one-child policy, the persecution that was there pointed to was the threat of sterilisation and the Tribunal found that that fear did not exist or that there was no real chance of that.

MR RARES: And it was also put that it would be imputed as a political opinion.

BRENNAN CJ: Leave that aside. We have got sterilisation out of the way, is that right, as an item of persecution, on the findings of the Tribunal?

MR RARES: Yes, on the findings of the Tribunal.

BRENNAN CJ: So we are looking at other forms of persecution which are based upon political opinion. Is that right?

MR RARES: Yes.

BRENNAN CJ: Now, you are going to show us that it was necessary for the Tribunal to find that there was a real chance of persecution for a Convention reason.

MR RARES: Your Honour, at page 98 the Tribunal at the bottom of the page makes a finding about what happened on the return to Australia and it says that he was arrested and imprisoned - and his account is set out, I think Mr Basten referred to it, at 81 to 82 - on his return. It accepts he may have been questioned, which has to be taken as a positive finding that he was questioned because she has got to set out her findings and the same sort of reasoning was applied in Chan's Case to a similar use of phrase and I think my friends accepts, and it has been accepted below, that that is what it means:

about his activities in Australia including his refugee application, the rooftop protest and the card from an Australian official.

The account that he is giving is that he is being interrogated in gaol by the public security bureau. That is the internal security police about inter alia the rooftop protest in this country that said, among other things, that he would rather die in Australia than be returned to China to be persecuted. People do not just get dragged in off the street and get asked about their political activity in Australia, which this man was involved in, and notably involved in.

DAWSON J: Maybe they do not, but the Tribunal found that in this instance he doubted whether there was persecution anyway, but if it was persecution what happened to him, it was not for a political reason.

MR RARES: But in our submission - - -

DAWSON J: You disagree with that, but that is not something which the court could do.

MR RARES: But it is if it is a decision that no reasonable person could come to.

DAWSON J: You are not suggesting that, are you?

MR RARES: Yes. If it is found you are interrogated about what you did in a political protest in Australia by the security police in China in gaol, what else could it be that they were interrogating one about, apart from your expression of views protesting about the Chinese Government. There is no other rational basis. How can she say, and what is the basis of the finding, it is not a - - -

BRENNAN CJ: Because he organised the "Jeremiah", and if it had been for any additional reason apart from the organisation of the "Jeremiah", then the Tribunal says that he would have been detained for a longer period.

MR RARES: But there was not a finding that he was the organiser, your Honour.

BRENNAN CJ: It may not have been a finding that he was the organiser. He owned the "Jeremiah", is that right?

MR RARES: No, I do not think so. I think he had the ship and he took it.

BRENNAN CJ: He had the ship and he took it. Yes, very well.

MR RARES: He was a sea captain. He could sail; the others could not.

BRENNAN CJ: All right. He took the "Jeremiah" and he took people with him on the "Jeremiah".

MR RARES: Yes, but that is not what the finding of the Tribunal is. It is its finding that he has been interrogated about what he did in Australia. The question that has to be asked is, "Is there a real chance that this was directed at him, not because of what he was not found - - -

BRENNAN CJ: What was directed at him?

MR RARES: Is there any finding that the interrogation was persecution?

MR RARES: Your Honour, in our submission, being interrogated about your expression of political opinion is something that, in terms of ordinary human rights, is an illegitimate exercise of authority on people. It is persecution. It must be, in our submission. You are deprived of your liberty; put in the position of the police questioning you in gaol about what you did in Australia. What the Tribunal says is not there is a reasonable explanation for why this happened to him, it simply says at the top of page 99:

the Tribunal does not accept that the Applicant's treatment on return was related to these activities.

So he is questioned about his activities but his treatment is not related to them. Is that not just a contradiction in terms?

McHUGH J: But what treatment are we talking about?

MR RARES: The treatment of the questioning about his activities in Australia, his imprisonment, how long he was detained and his fine.

McHUGH J: You are marrying together a number of things: period of detention and so on. There is no evidence to suggest he was interrogated for 23 days day and night, is there?

MR RARES: The evidence is that he was - what the Tribunal recites as the facts are that he alleges he was physically mistreated, and there has been discussion about that, and at the top of page 82, "the PSB had information about his role in the rooftop protest". Your Honours have been taken to the passages in the affidavits which elaborate the degree of questioning. The Tribunal does not say that it does not accept all this account or anything like that. It appears to accept that he got this first imprisonment and the essential features of what he claimed about it. Whether it goes as far as implicitly accepting that he may have been physically mistreated is another thing, but there is a clear acceptance that what his assertion was about being questioned there and you say there must be a connection between his being detained and subjected to compulsory interrogation.

BRENNAN CJ:

The Applicant stated that the detention and fines were because of his illegal departure.

Is that a finding that the Tribunal is entitled to make?

MR RARES: Your Honour, it can make that.

BRENNAN CJ: Can you attack that finding?

MR RARES: Your Honour, all I need to do is say accepting the finding, it does not address the real chance because the question is he is not able to - and it is recognising the UN handbook that these people are not in a position to intellectually rationalise about how to reflect this as being persecution. He is saying, "This was because of my illegal departure". He is connecting it to all the punishment. If it is being taken as being some sort of legal admission that when he is interrogated about his political activities in Australia it really only meant that he was being punished for illegally departing China. Accept that, what sort of punishment is that?

BRENNAN CJ: Mr Rares, there are three things: there is detention, there is fine and there is interrogation. In relation to detention and fine, he attributes it to illegal departure, as the Tribunal finds. Then there is interrogation and the interrogation relates inter alia to rooftop protests. How is it that you say that the Tribunal was bound to find that his detention and fine were due to his rooftop protests? What is the logical connection between those?

MR RARES: Because when one looks at all the material before the Tribunal there is just no other reason that can be attributed to it, firstly, and, secondly, if I can take your Honours to page 250, which is the handbook, at paragraph 66, which was relied on by the Supreme Court of Canada in Attorney-General v Ward and I will take your Honours to that in a moment:

In order to be considered a refugee, a person must show well-founded fear of persecution for one of the reasons stated above. It is immaterial whether the persecution arises from any single one of these reasons or from a combination of two or more of them. Often the applicant himself may not be aware of the reasons for the persecution feared. It is not, however, his duty to analyse his case to such an extent as to identify the reasons in detail.

Now, he says, "Well, I was punished for this." That is what they told him. No doubt that that is what they did tell him.

McHUGH J: But he was not interrogated for his political opinions. He may have been interrogated to determine whether he had any political opinions, but you have got to show - the political opinions have got to exist anterior to the interrogation and then you have got to show that he is being interrogated because of those political opinions, but the fact that he is asked about his political views, as to what they are, does not mean that he is being interrogated for reason of his political opinions.

MR RARES: But what your Honour, with respect, has not included in that analysis is an imputation of political opinion to him by the Chinese authorities.

McHUGH J: You are arguing in a circle.

MR RARES: No, but he got up on the roof. We know that and we know that they were aware of it when he got back there and he was interrogated about that.

McHUGH J: So he got up on the roof and they asked him some questions as to why he did it. Now, why does that imply that he was interrogated for reason of his political opinion?

MR RARES: It is not his political opinion. It is for reasons of political opinion because you can be imputed to have an opinion you do not even have because you are a member of somebody's family life.

McHUGH J: Yes, I know, but where is the evidence that they imputed that he had a political opinion?

MR RARES: But the question really is, "Why is he being interrogated at all about what he did in Australia on the roof in this protest?"

McHUGH J: One might think that would be one of the first things that the political police would be doing.

MR RARES: But is not that a basic violation of a person's human rights?

McHUGH J: Well, it may or may not be. It does not necessarily mean it is persecution for a Convention reason.

MR RARES: But if it is an interrogation in relation to a political protest and he is treated in this way, in gaol, by being required to answer questions by the police, that is selective harassment, that is being dealt with in a way that the ordinary people in China ought not with - - -

McHUGH J: I would have thought it was not selective.

MR RARES: But, your Honour, in our submission, there is a real chance at least that one can see - - -

McHUGH J: Real chance is reached at a later stage. At this stage the Tribunal is trying to work out what has happened to this man in the past to see whether there is a real chance that something may happen to him in the future and the Tribunal made the findings and you have got to argue that in some way there was no other conclusion open but that there was a real chance. Once the Tribunal rejected your explanations for your allegations as to what had happened in the past, then the ground is taken out from under your feet.

MR RARES: But it did not reject the allegation in relation to what happened when they were returned to China in October 1992; it rejected the 1993 punishment. I am not quibbling with that. But what it is finding here at 98 and 99 is that they were punished in the way they alleged on their return in 1992, and she says, "Look, it was not related, because if they had been concerned they would have been detained for a longer period." Again, we would submit there was no evidence for that. What she then says is:

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.

And then she goes on to find that:

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.

His assertions were that the Chinese Foreign Minister had assured our Immigration Minister - and they had been accepted as official assurances - that these people had been given six days in detention, and not questioned about anything except the boat.

McHUGH J: Well, that is a general statement. I know you make this point. It does not seem to me to have the slightest bit to do with the particular case.

MR RARES: It is about these people - the "Jeremiahs", Guo Wei Rong.

McHUGH J: Even if that was said, how does it advance your case?

MR RARES: Because she says he is making unsupported assertions. His case was, "Look, the Chinese Government said the appropriate treatment that I got, and which the Australian department told the parliamentary committee was to be taken seriously because China would not want to have its international Human Rights record downgraded was I got -" he is supposed to have got six days, and no questioning, and no fine, and no prosecution; he was just sent home after six days. And she is saying, "I dismissed that account because it is unsupported."

McHUGH J: But she is not saying that at all. She says his unsupported assertions - that is, his assertions that his treatment was due to his political activities.

MR RARES: But the first thing is, she says it is within the range.

McHUGH J: Yes. Well, there was abundant evidence that she could make that conclusion on, notwithstanding your written submissions.

MR RARES: Your Honour, in our submission there was no evidence that all the material shows that there is an Article 14 of the Chinese law that says 10 days - - -

McHUGH J: Well, there is Article 176, and Article 177 as well.

MR RARES: But they do not apply, unless the circumstance is serious.

McHUGH J: Well, you say they do not make it. Why could not the tribunal of fact take the view that they were serious? She is there to make the decision. It is only evidence, and she takes the view here is a person that has already got two years gaol, he has already taken people to Hong Kong, and now he is the organiser of the "Jeremiah"; 28 days. I mean, really, I would have thought that the fact that he only got 28 days' detention is almost overwhelming evidence that he has been treated rather leniently.

MR RARES: Your Honour, that does not explain why his brother got exactly the same treatment.

McHUGH J: Well, that does not help. She may have taken the view that the brother was in it with him.

MR RARES: But, your Honour, she did not express any of those views that your Honour is putting to me.

McHUGH J: Well, she did not have to talk about the brother.

MR RARES: But she did, because you have got to be able to explain rationally why he got this sentence and the brother, as she found, got exactly the same sentence. It is obviously a relevant consideration to weigh whether or not he is being differentially treated.

BRENNAN CJ: Was the brother on the roof?

MR RARES: Yes, and he jumped. She makes exactly the same findings about him. One has to also bear in mind that the Australian Government deported these people, with an assurance that was publicised at the time, that they were not going to be mistreated when they went back; that they were all going to be treated fairly.

McHUGH J: Why does one have to bear that in mind, Mr Rares?

MR RARES: Because what is being exercised here is the power of the Minister to make a determination. The Australian Government's official position about these people and this man was he got six days, and that was accepted as an official assurance.

McHUGH J: That does not seem to me, with respect, to have the slightest thing to do with whether or not this Tribunal made an error of law.

MR RARES: But what she is saying is, his claim is not supported by the evidence. The independent - whatever that is - evidence says you get longer, and every piece of independent evidence from the DORS' assessment, when they were sent back in 1992, showed that Article 176 did not apply to them because there were no serious circumstances.

McHUGH J: I will leave the matter with this statement to you: what she said is that she did not accept the applicant's unsupported assertions. His assertion was that his treatment was related to his activities.

MR RARES: In our submission, when one has interrogation about what you have done in a political protest, at the very least when one is assessing whether or not this person - there is a real chance that he is going to be mistreated, we would submit that you just cannot put that to one side, there must be a real chance that they are connected. To make a bald assertion that they are not connected because, she says, it is not supported by the evidence, he would have got longer and he has got unsupported assertions which are the assertions that are contained in official assurances by the highest level of the Chinese Government to our government intended to be acted on and on which the whole of the refoulment policy was based after - these were the first people sent back on the fast track processing system, the DORS system that was in place at the end of 1992 - and there was intense interest to see how they were treated.

Now, what she is finding is that the assurances on which they were sent back, given to our government and accepted by our government, just were not right. She is saying he got much longer than that and he got treated far more severely than that, but he is making unsupported assertions that this is not connected to his political opinion. I mean - - -

BRENNAN CJ: We have heard that a few times, Mr Rares.

MR RARES: If your Honour pleases. Well, can I take your Honours, if I may, to the material to seek to demonstrate why what we say is accurate, that there just was no evidence before it in which you could conclude that Article 176 could apply to him.

Just briefly, in volume 1B at page 292 is the DORS decision which was given after the rooftop protest. There is an analysis in there of the Chinese criminal law applied to illegal departure. In that there is the illegal departure claim in 4.6.2 and then you have the distinction between the penalties under the PRC law and the "Neibu".

KIRBY J: Whose decision is it on page 292.

MR RARES: This is the DORS decision, the Determination of Refugee Status Committee which sent him back in September 1992. This is assessing his claim that when he went back he would be treated harshly. They say:

Under the law, a person may be liable to prosecution by the Justice Department -

Now there is no suggestion that happened to him, in fact, here.

Neibu refers to the classified policies, directives and regulations which are not publicly promulgated. There are a number of measures which can be taken under Neibu.

Then 4.6.4:

the material outlines the following possible adverse treatment for illegal departure under PRC law:

(a).....not more than ten days -

(b) if the offence is compounded by serious circumstances eg compelling a boat's owner to take departees to sea or theft or the use of force to effect departure) then the illegal departee is subject to a maximum penalty of one year of imprisonment, detention or control.

That is Article 176. Your Honours will see there the example of the application of Article 176; the circumstances are serious. Nothing like that in this case.

(c) if the illegal departee were an organiser for profit, he or she might be prosecuted under a provision which provides - - -

GAUDRON J: That is what you would immediately think in the circumstances of this case, would you not?

MR RARES: There is no suggestion he made a profit.

GAUDRON J: You would think it, would you not, if you were a person charged with interrogation. Here is a man who has once done it for profit to Hong Kong; who apparently owns the boat; is the captain, and this is what you would start thinking.

MR RARES: But, your Honour, not only - - -

KIRBY J: Pays the bribes, one might add.

GAUDRON J: Yes.

MR RARES: If your Honours look at 4.6.5 at the bottom of the page, it was the second time it was mentioned, he just says neither of those apply. The Tribunal did not suggest that Article 177 applied to him and he was not charged with this; he was not treated in our - - -

GAUDRON J: I am talking about what has happened to him when he goes back to China.

MR RARES: I am just trying to lay the base for the submission that at the end of the day there was not any evidence. Your Honour's point - - -

GAUDRON J: I am not too sure what relevance there is that there was not any evidence. The onus surely was at all stages on your client to establish a well-founded fear of persecution for a Convention reason. If there was not any evidence, the problem seems to be yours, nobody else's.

MR RARES: No, but the evidence here is - what I am trying to submit is there is no evidence to suggest that he was treated in a way under Chinese law that was explicable by the penalty he could have expected. What I am trying to do is take the Court to the points in the evidence to show that every indication is that the most he could get was about 10 days or so.

McHUGH J: Yes, but that 10 days and that statement of DORS was in a context where your client had not told the Department on the earlier application about any of this Hong Kong business. He had concealed that from them. If you look at page 81, line 21:

The Applicant did not include this matter in his first application for refugee status lodged with the Department on 16 May 1992 or his subsequent application for internal review.

If you go back, that is all about the 1985/1986 departure. So, when the document at 292 is discussing his likely penalty, 10 days, it is doing so in ignorance of his prior history.

MR RARES: I accept that. That is the recidivism argument but exactly the same thing is said in volume 2B which was before the Tribunal in respect of Guo Wei Zhi in his decision which is at 980 to 982 about him. So he was treated exactly the same way and there is no question that he was not involved with the Hong Kong business. So that the point your Honour makes is a valid point, with respect, if you did not have to think that the brother got exactly the same treatment. That is the recidivism argument and it cannot work. You have to have an explanation as to why the brother gets the same treatment when he was not involved in that earlier thing.

BRENNAN CJ: Why do you say you have to have the explanation?

MR RARES: If it is prima facie longer than he ought to have got or harsher than he ought to have got as a punishment then that prima facie amounts to persecution, in our submission, based on what the Court said in Chan's Case 169 CLR.

BRENNAN CJ: But, I mean, you are putting arguments which are no doubt good arguments before a tribunal of fact, but when the question is whether or not the Tribunal was bound to be satisfied, which is the onus that you have to discharge, you have to show that there was no alternative but to find that the onus was discharged and it does not really help to say there was a similar case for which no explanation was given. There may have been explanations of which in the circumstances no knowledge is now had.

MR RARES: Your Honour, if I am trying to build up a case, as I seek to do, that when one looks at all the material that there is no evidence to support this Tribunal's finding and that it needed to go then to the next point and say that the evidence all pointed one way, that this was a finding that ought to have been made.

BRENNAN CJ: But even if it pointed one way from a witness whose credibility was in doubt, you have to take it to the point of saying that the Tribunal was bound to find in favour.

MR RARES: If I want to make good the claim to the declaration that the Full Court made, yes, I do not have to go that far to have it remitted, but if I can just take your Honours quickly through the material. I do not think it is a long exercise but it just needs a bit of detail and if I could ask your Honours to - - -

BRENNAN CJ: By all means take us through it, but it is not going to assist us much to point to arguments which really are arguments saying, "Really, they ought to have found this way and they did the wrong thing in not finding this way."

MR RARES: But, your Honour, what I am seeking to attack is the approach of the Tribunal which just never considered the reality of this punishment in light of the evidence that was in front of it to determine whether or not there was a real chance that he had been, in fact, mistreated for a Convention reason and by focusing on the fact that she is saying what he is putting forward, that his punishment was longer than it should have been, and what his brother put forward, exactly the same reasons were given to support his treatment, just is not there to support what she has said.

McHUGH J: But why cannot she rely on - quite apart from the terms of Article 176 itself and her own interpretation of it - why cannot she rely on the Department of Foreign Affairs and Trade's China country profile of November 1993? They said for more serious penalties, under 176, the maximum penalty for such cases is one year's imprisonment.

MR RARES: But that is 176 - a more serious offence.

McHUGH J: Serious circumstances.

MR RARES: But she has got to make a finding that there are serious circumstances in relation to this.

McHUGH J: She did not have to make any finding at all. She made a statement about the range and you are saying that she erred in law.

MR RARES: Yes, because if, in truth, 176 does not apply, and one looks at this DORS assessment, and one looks at all the other assessments and they seem to say that it does not apply, and there is no other material in front of her to say what else could make the circumstances serious for 176 to apply, then if 176 does not apply he is being treated outside any known laws of China. I mean, that is the point.

In our submission, that is really - if one looks at this material, that is the only conclusion one can draw, with respect, particularly given that the Chinese government is saying to the world, and to our Foreign Minister at the very highest levels, these people did not get any sort of mistreatment of the kind that the Tribunal found he got. One needs to then ask the question, why is the Chinese government saying six days, no fine, no other bad treatment for this man and his brother.

McHUGH J: Because this man owned the boat, and he had done it before.

MR RARES: But why is it saying that as an official assurance on the basis - well, I will come to it. The secretary says if the Chinese government were found to have misled us - we believe they would not have tried to do that because it would have been serious on their Human Rights record.

BRENNAN CJ: Mr Rares, what say you take us to the particular points that you say lay the foundation - the particular findings of fact, or the particular facts which had to be found which lay the foundation for your ultimate submission, and the page references.

MR RARES: If your Honour pleases. At 292, the first 4.6.5 the delegate says at about the third line:

Even if it is, then the most the applicant faces is ten days detention.

So that that was the first - - -

BRENNAN CJ: That is one point, what is your next one?

MR RARES: At - while your Honours have that volume - 280, there is a minute of 17 June 1993 from the embassy in Beijing dealing with inter alia fines, at line 35, on people who might leave illegally. 281.5 to .10, there is a discussion about the "naibu" guidelines, and there is a response about fines that were imposed on returnees.

Then there is a discussion of the laws of China and your Honours can see that Article 6 at line 35 you can have local regulations. Article 32 of the Criminal Law deals with imposing fines and does not talk about gaol. At the top of 282 you have at line 10:

The subsequent articles of the Regulations on Administrative Penalties for Public Security specify penalties of detention from 1 to 15 days and fines from 1 to 200 yuan (RMB). However Articles 30, 31 and 32 set out a number of more serious offences (eg -

and examples are given, none of which are applicable:

Illegal departure is not specifically mentioned in the Regulations on Administrative Penalties for Public Security. However, it is clear that any administrative guidelines relating to illegal departure must be consistent with these Regulations.

Now, no regulations for 28 days and 5,000 RMB and the like for simple illegal departure and the 5,000 fines and the 3,000 fines referred to in the Eastwood case and some returnees from Australia at 35 to 40 are said to be the more serious offences and that at 40 to 45 they suggest that they are treated in accordance with Chinese law. At 296 there is a letter to the Tribunal of 11 February and at the summary about 35 to 40 talks about the intent of the Chinese Government "to distinguish between organisers and their victims". It refers to a large fine that is imposed about the Eastwood. If your Honours go to page 297 under the comment section:

A set of draft regulations governing illegal emigration were presented to the Standing Committee of the National People's Congress in December 1993. In particular, sentences were increased for those convicted of organising illegal departures to stand at two to seven years imprisonment plus fines. In serious (ie causing death or serious injury to the smugglees) or repeat cases, the maximum penalty will be seven years to life imprisonment,

So this is a change in the law after Guo comes to Australia for the second time. There is a possibility of a death penalty, at line 35, then there is the policy reason made clear between 40 and 55, that the government was trying to get tough on repeat offenders and trying to track down snake heads. At 40 to 45 on the next page:

But most informed observers are unaware of any instances of people returning to China being subject to persecution for activities and statements made abroad.

A similar article from the BBC World Service at 299 about the concentration on snake heads and the like, none of which fit into Guo's position. There is a telex at 300 which deals with the "Jeremiah" captain in July 1992. At line 10 on 302, if he were assessed as being an Article 177 person, then he could have five years fixed term imprisonment, but they are not aware of any similar cases in the past and there is no suggestion that he accepted payment for bringing people here. There is no finding of that here. Then the paragraph numbered 4 at line 35:

If it is assessed that the applicant did not accept payment.....he would be subjected to a lesser degree of punitive action.

It may be significant, your Honours, in relation to the point your Honour Justice McHugh made to me about the finding of fact of the Tribunal, although I cannot necessarily get behind it, but it does seem that the Department had some awareness of him being a second-time illegal departee in paragraph 5 of that. The amnesty letter is at 303 that my learned friend relies on, but we would submit that really does not say anything about when Article 176 does apply. It does not explain when the circumstances are serious to show that it applies in the circumstances of this case.

If I can then take your Honours back to volume 1A, 104 is a report on returnees in February 1994, so this is after we have arrived the second time.

Lines 20 to 25: voluntary retirees, nothing happens. Paragraph 3:

As reported earlier, deportees have been treated differently to voluntary returnees. Most deportees from Australia have been detained for a short period -

At the top of 105, the first line of paragraph 5, the Chinese are not tolerating dissent more leniently. Page107, the cable part of which is quoted in the Tribunal's reasons of 1 July 199, that deals with the office bearers of pro-democracy organisations who apply for refugee status, as the first line makes clear, and the last paragraph indicates that they are not so concerned about those people. Again we come to our finding fact here, that they were dealt with about this. At 112, this is a telex of 4 January 1993, that is shortly after these people were returned to China, and a number of similar things are said in some later materials. This is the return of "Jeremiah" boat people to China. In line 25 there is a reference to Mr Peng Keyu, the PRC Ministry of Foreign Affairs, about the affidavit filed in some case. He said the allegations are untrue:

He said he had been advised earlier by the earlier security authorities in Beijing that the "Jeremiah" people had been returned to their families after six days detention. While in detention they had been questioned about the circumstances of their departure from China, the objective being to learn more about the organisation that had arranged the departures.

Peng's advice conforms with Chinese Government statements that illegal emigrants will not be mistreated on return to China. The Foreign Minister Qian Qichen told the ambassador on 23 December that there was no persecution of returnees if their only action had been illegal departure from China, the government's concerns lay with those who organised and profited from illegal departures. He went on to say that the financial loss already suffered by the returnees was more than sufficient punishment. (o.BJ259 of 24 December 1992). Vice Foreign Minister Liu Huaqiu gave an assurance to Mr Conybeare, the Secretary of DILGEA, on 6 December 1992 that illegal immigrants and returning students, in these terms: "I can guarantee after they come back they will not be persecuted and not mistreated".

Someone told Mr Conybeare the next day that all people were treated properly on return.

He further stated that the illegal emigrants have been deceived by illegal groups and that the main concern of the PRC Authorities was to apprehend those involved in organising illegal departures.

In our view these assurances are intended to stand as official statements to the Australian Government of the Chinese government's policy towards returnees. Foreign Minister Qian Qichen is a member of the ruling Communist Party's political bureau and as such carries the authority of one of the 20 most senior party office-holders as well a. his authority as Foreign Minister.

Then 5:

We assess these statements can be relied on. Qian, Liu and xxxx would be aware that, if returnees were mistreated contrary to these statements, that fact would eventually become known, with adverse consequences for China's attempts to improve its international human rights standing. That standing is a policy priority, in part because it has economic significance as a factor in United States congressional consideration of support for the annual renewal of China's most favoured nation trade status with the U.S.

There is another reference to another case:

Detention for nine days was of a broadly similar duration to the six days but the foreign ministry advises applied to the "Jeremiah" people.

In 7(A):

This broadly agrees with the foreign ministry's advice, though the precise term "arrest" usually refers to custody for the purpose of bringing criminal proceedings. If the deponent is using arrest in the broad sense -

And there is the page that was handed up, 115A that is part of this assessment. At about a third of the way down there is a reference to the "Jeremiah" case - an assertion that it would not have been of political importance. The assessment is that it is possible, in D):

the returnees have been released. It is possible that the authorities' investigation into the "Jeremiah's" departure is continuing. This may include follow-up questioning.....but there is no reason to suppose that any of them would have been taken into detention again.

And that it is possible in F) that they could have been accused of criticising China but there would not be anything wrong with that.

BRENNAN CJ: I think we had better adjourn at this stage, Mr Rares.

AT 12.49 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

BRENNAN CJ: Yes, Mr Rares.

MR RARES: Your Honours, I had just taken the Court to page 115A. Page 116 of the book just concludes that telex to do with the "Jeremiahs" and the assessment is at about line 10 to 15 they would not be given severe treatment and at 25 they do not think they will be classified as high profile. At page 118 there is a telex. The date is at line 5, 09.02.93. Generally about boat people asylum applications. Paragraph 4 at the bottom of the page is the relevant paragraph and at about halfway down that it says:

They would regard -

that is the Chinese authorities -

making such a claim as improper, but in the absence of more serious factors would not regard it as requiring adverse consequences beyond the Article 14 ten-day detention period.

The top of the next page at line 8:

on the seriousness of any illegal acts or dissident political activity he or she was involved in prior to departure from China or while in Australia.

So that they would look at the seriousness of that, and then 6:

A person who is a member of an occupation that involves a position of public trust or responsibility could well be subjected to administrative penalties beyond the Article 14 ten-day detention provision.

But then they say there is an assistant judge who only got nine days and that is limiting the amount of attention that he got and at line 25, about halfway down paragraph 7:

The point remains, however, and this is clear -

from another telex which is referred to -

that an applicant would only suffer adverse consequences from other activities (i.e. other than the refugee application) if he had in fact engaged in such activities and they were regarded seriously by the authorities.

Then your Honours have been taken by my learned friend to the affidavits of Guo at 120 and 125. The only thing I say about those, your Honours, is that these are, of course, documents that were to be and came to be read in open court in this country claiming, rightly or wrongly, that he had, in fact, suffered very severe treatment.

Whether or not those claims were accepted, that is a matter that was before the Tribunal that he had made statements in this country in open court claiming this brutality, and of course that would then be something that in fact got publicity, and there is some evidence before the Tribunal that it did, which is another feature to be taken into account in determining whether, when he goes back, there is a real fear that what he has said and done will expose him to adverse treatment.

TOOHEY J: But it could hardly be a foundation for a claim of refugee status, Mr Rares.

MR RARES: It could be a perception that he was criticising the political regime.

TOOHEY J: Yes, but in the course of an application aimed at securing refugee status.

MR RARES: For other people, not for himself.

KIRBY J: This was before the imposition on him of the 28 day punishment?

MR RARES: No, these affidavits are when he returned to Australia, the Department kept relying upon the "Jeremiah" case studies that said six days. Your Honours remember in Wu, for example, that was what the delegate was seen to be able to rely on, saying they got six days, no adverse treatment. He came back and gave evidence in these proceedings - or tried to give evidence in these proceedings - that he did not get six days, he got a lot more.

KIRBY J: But is that not a bootstraps argument, that you are trying to say that this is not something that preceded his claim for refugee status but something that he did later that renders him entitled to be treated as a refugee?

MR RARES: It is a refugee sur place-type argument, that something he has done here now raises a question as to whether or not, if he is not refouled, he may suffer adverse consequences. It was a matter for the Tribunal, we would submit, to take into account. I do not say more than that.

BRENNAN CJ: When did Weng's Case come before the court?

MR RARES: I was going to take your Honours to the publicity. That is at page 235.

BRENNAN CJ: Just give me the date if you can.

MR RARES: I cannot be precise.

BRENNAN CJ: Was it before or after 19 May 1994?

MR RARES: I cannot be precise about that, your Honour. All I can do is - - -

BRENNAN CJ: Was it before the Tribunal or not?

MR RARES: This is before the Tribunal. This is all out of the Tribunal file.

BRENNAN CJ: Then that affidavit would not have been available to the public unless Weng's Case had been heard and the affidavit used.

MR RARES: If your Honour goes to 235 you will see a front page article on the "West Australian" which I think was - I am sorry, the date is not there. My learned friend is kind enough to remind me it is February which your Honours can see at the top of 235 between 10 and 15, "Perth Friday Feb", and that was 1994. This is out of the Tribunal's files.

TOOHEY J: is at the top of the next page, Mr Rares.

MR RARES: I am grateful to your Honour. This is in the Tribunal's files. So that, these claims about their treatment in China were front page news in Western Australia. While your Honours are at that point in the book, can I just ask your Honours to go to the next page, 237? This is the "Australian" article of 24 October 1992 - that is, the day after they were returned to China - and:

Seven Chinese boat people, including a two-year-old girl -

which was their daughter -

were deported from Australia yesterday -

And about the third paragraph down in that column:

The Minister for Immigration, Mr Hand, said yesterday the Federal Government was satisfied by Chinese Government assurances the boat people would not be punished on their return.

I do not think there is any dispute that these are my clients. Under the "Lawyers concerned" caption in the second column there is a reference to "a man, his wife and child," which is Guo, and "four other men," one of whom is his brother, and in the third column of that article, against "Lawyers concerned":

The boat people, part of a group of 10 who landed at Darwin in May, are the first to be deported under the Government's new "fast-tracked" system of assessing refugee claims.

So, what happened to them objectively was very important for the policy of the Australian Government, as will be seen in a moment, because then people who came afterwards would be able to have assessed against them their claim that the act of illegal departure in coming here would visit adverse consequences upon them in Chinese law. If they only got six days, that argument would be set at nought; if they got a substantial penalty - as we submit ours was - that made life very difficult for this policy. This appears in two documents that I would ask the Court to look at now.

At 140 is the then Minister's letter - Mr Hand - to Senator Harradine of 12 March 1993. This is a letter that - again, all of this is before the Tribunal - about my clients. Senator Harradine is expressing concern in the first paragraph:

As you would be aware the government had received assurances from officials at the PRC Embassy in Canberra and from the PRC authorities through the Australian Embassy in Beijing. Essentially those assurances (which were provided orally by Chinese Government officials in both Australia and China) were that failed asylum seekers who are returned to China would not be punished as a result of their illegal departure from China.

The history of that is set out. There is a reference again to the part that I read to your Honours earlier from the telex about what the foreign minister had said, but it is important to know that what he is saying in the third line of that paragraph:

there was no persecution of returnees if their only action had been illegal departure from China, the Government's concerns lay with those who organised and profited from the illegal departures. He went on to say that the financial loss already suffered by the returnees was more than sufficient punishment.

It is our Embassy's assessment that these assurances are intended to stand as official statements to the Australian Government of the Chinese Government's policy towards returnees, and that these statements can be relied on.

And then about my clients it is said:

An official in the PRC Ministry of Foreign Affairs recently provided advice on the group of seven PRC nations who were returned to China on 23 October 1992. The official confirmed that these people were returned to their families after six days of detention. While in detention they had been questioned about the circumstances of their departure from China, the objective being to learn more about the organisation that had arranged the departures.

This short period of detention was not inconsistent with our expectations of what might happen, and with the Chinese government statements that illegal emigrants will not be mistreated on return.

And then the Minister hopes to address those concerns.

KIRBY J: Now, it is true that the detention in this case was more than six days, but it was hardly substantially more. I mean, 28 days does not have the mark of the punishment for anti-State activities, not as the world views the punishment of anti-State activities in countries that punish such things.

MR RARES: But why is the Chinese Foreign Minister saying something that this Tribunal then finds is not right for these people? He is saying the appropriate punishment is six days and no detention.

McHUGH J: Because he is a special case.

MR RARES: No, no, but these seven people, your Honour, the Jeremiahs.

McHUGH J: They did not necessarily have him in mind.

MR RARES: I am sorry, your Honour, it is the Jeremiahs who are the people at the bottom - - -

McHUGH J: I know that. They do not necessarily have this particular individual in mind; they are talking about a particular group. But it does not lead you anywhere. Even if the Chinese Government were lying about the matter, where does it lead you? I mean, you have put up a straw man that the Tribunal was wrong about a statement about the range, and from that piece of scrawl you are seeking to build an error of law. Now, there is abundant evidence, including the letter from Amnesty International at 303 to 304, together with the terms of the Article 176, together with this man's history for the Tribunal to have to made the statement it made.

MR RARES: But it cannot justify - we would respectfully submit there is nothing in what the Tribunal does to find that the circumstances were serious or that he was dealt with under Article 176. Also, it does not explain what happened to his brother.

McHUGH J: You seem to think that they have got to make findings of fact about everything that you want them to make findings of fact about. The question is: is the finding made by the Tribunal the product of an error of law.

MR RARES: But if it is not addressing how it could be the official policy of both governments is that these people only got this minimal detention and this is what is said to be by the Chinese Government as an admission, as it were, of the appropriate treatment for them then it is not asking itself, "Is there a real chance these people were mistreated?", because it is not addressing - I mean, this is the foundation of the Australian Government refoulment policy, the treatment that is said to have occurred.

McHUGH J: You keep saying that. It has got nothing to do with the issue. The issue is whether the Tribunal erred in law.

MR RARES: And one way of seeing it on the Avon Downs test or on the Stevedoring Industry test that we refer to in our submissions is to say, "Well, although it looks all right on the face of it, they must have gone wrong somewhere."

McHUGH J: I will not interrupt your argument again and that is a firm promise I will make, but can I just put this to you so that you will understand what my problem is. The fact that the Tribunal does not deal with every argument that you put or every point that can be raised out of a mass of assertions does not mean that the Tribunal has failed to take into account relevant considerations or have made any error of law and that seems to me what your argument comes to and Justice Sackville made a fairly similar criticism about many of your submissions before him and his remarks seem to me to be equally applicable to yours.

MR RARES: Your Honour, I mean, in each case it really depends on an assessment of the matter to see whether or not it is something which needs to be taken into account by the Tribunal and has been. The way the Tribunal dealt with this is to make some primary findings of fact which we have accepted and then to draw inferences from those facts which we say were not open to it and which indicate that it applied a wrong test because, although saying the Chan test or the Convention test, when you look at what it had before it, including the fact that both governments took the view that the appropriate punishment for these people were six days and that is what they got, and when you look at the size of the fine that he got, which was many years of his wages, and you see that the Chinese authorities just say these people were not treated in this way, then you have to ask the question, "Well, does this indicate the finding that they were, in fact, treated more severely?" that there is something in this story and that they are being selectively treated.

It may be that the Chinese Government did not do it, but the local officials in Bei Hai did it without authority, because Mrs Pan got the six days and she got treated in a way that was said to be the appropriate tariff. But it is our submission that that really does indicate at the base of this that there is a fundamental consideration that the Tribunal is not turning its mind to, and that is whether there is a real chance of persecution, because the punishment is way outside what the person whose power she is exercising has officially accepted and told members of Parliament - the Department tells the parliamentary committee, at 172, is the punishment these people actually got and which was the basis of the refoulment policy that is being applied.

KIRBY J: "Way outside" is a slight overstatement. It is, after all, even on your argument, a difference between six days and 28 days. And I repeat, it does not smack of the punishment the world inflicts for political anti-State activity.

MR RARES: But he obviously is a fairly minor personage in China. One thing he is entitled to is to have the security that the laws will be applied to him as they are supposed to be. If the Chinese Foreign Minister is saying that is what ought to have happened to him, and local officials singled him out for some treatment in addition, as may well be the case, it still indicates that. When one combines that with a concatenation of misfortune that the Tribunal finds he suffered on his return - he is restricted in his fishing licence, his boat is taken away from him, they have a third child - one can then put together the question, "Did the Tribunal really address the reality of the chance?" That, in our submission, is where the Tribunal failed in law to carry out its task.

One final piece of the evidentiary trail and then I will come back to the argument. At 172 there is the letter from the Department to the parliamentary committee, and it seems to have taken about 11 months to answer a query about what happened to returnees. Your Honours will see at line 35 there is a reference to the number who have been returned, and the reference to the new fast-track system is then made. In line 45 there is a reference to the discussions with the embassy:

During the course of the discussions we have, on many occasions, received assurances that no criminal or political charges would be laid against the returning boat people as a result of their illegal department, and that they would not be discriminated against in access to employment and welfare.

Now, again, when one adds that to what happened to him, yes, you can explain it all maybe; but at the end of the day is not there a real chance? There is a reference to short periods, and one can see that they go through the whole history, and at line 40 on 173 there is a reference to the seven people deported, who were the Jeremiahs - the first group returned, and a reference to what happened and - at the top of 174 - they had been reunited with the families and, therefore, they could be returned in safety and dignity.

If one then goes to the Tribunal's findings at 94, he put forward a claim that this concatenation of misfortune occurred to him by reason or he had a fear that it had happened because he was being singled out for bad treatment. Now, what the Tribunal does is it says, "Well, all his claims about things such as the household registration, the restriction of his fishing licence, confiscation of his boat and disappearance of his sister are outside the scope of the Convention." But really what the Tribunal is not doing is addressing the very question, which is, "Is there a real chance that maybe they are all connected?" That the Chinese Foreign Minister is saying they are not going to suffer economically, they are not going to suffer in their welfare.

He has all this string of misfortune. Yes, it all can be done perhaps legally, but it is the authorities who are doing it to him, as she finds, and, again, in our submission, what she is doing is she is finding the primary facts and then drawing an inference from those primary facts which we would submit indicates the wrong test is being applied and it is not a permissible inference in the case of persecution because what she does is she goes on to say at line 30 the evidence is that:

the confiscation of his boat is related to his inability to pay debts incurred in relation to it's purchase. Whilst the authorities may have taken a role in the confiscation and restriction in his fishing license -

how does he earn his money to pay his debts from his fishing? So he is restricted in his fishing licence:

this was to prevent him from future illegal departure.

Departure which he said he did because he did not want to live there at line 40:

The restriction imposed on the Applicant's fishing license whilst limiting his employment opportunities does not prevent him from engaging in employment.

Then at the bottom of the page:

The evidence before the Tribunal is that their parent's disappearance is related to personal debt.

I mean, yes, they are all primary findings but at the end of the day the Tribunal has got to ask itself is there a real chance that all this misfortune this man is suffering and the fact that he is getting more than - I as the Tribunal am finding that he is getting more than the government of his country says was in the range that he should have got and that every provision of the administrative law that is set out shows that he could not have got the treatment that he got and he was not charged with any criminal breach. Is he being singled out for treatment because of his rooftop activities when we know he has been questioned about those?

In our submission, Justice Beaumont looks at this and that is why at pages 446 to 448 his Honour is saying at the end of the day his Honour was not satisfied that the Tribunal was applying the right test. Having referred, as your Honour Justice Gummow this morning read out the passage in Sinclair from Justice Gibbs' judgment, looking at everything as a whole, he was capable of being perceived by the Chinese authorities as either politically neutral or as politically significant and having imputed to him at the very least a political opinion.

BRENNAN CJ: Where does that lead?

MR RARES: To - - -

BRENNAN CJ: In other words, let it be assumed that on the evidence it was possible that the Chinese authorities imputed a political opinion to him.

MR RARES: If the submission we make is good that on the material before the Tribunal the punishment was outside the range for whatever it was that he did in just illegally departing the country, it means that he has been treated more severely than other citizens of China have been, and the only thing he has done different, he and his brother, is to get up on the roof and protest.

BRENNAN CJ: No, he was the captain of the "Jeremiah".

MR RARES: He was but his brother was not and he got the same treatment.

BRENNAN CJ: Whatever his brother might be, he was.

MR RARES: But, your Honour, you cannot ignore his brother in that context because he got exactly the same treatment.

BRENNAN CJ: It is not a question of ignoring the brother. It might be a question of whether or not it was necessary for the Tribunal to be satisfied that the only inference to be drawn from the facts was that he was being treated and would be treated, or there was a chance that he would be treated, differently by reason of a political opinion when there are facts which would support an inference that he was treated as he was by reason of his conduct.

MR RARES: But, because the Tribunal was required to state its findings on those matters and did not state it in the terms that your Honour - for example, because he was the captain, that argument is not open in determining whether - - -

BRENNAN CJ: What findings is the Tribunal to make on that?

MR RARES: To say that it is justified that he gets a longer imprisonment because of that notwithstanding that all the material, as I submit - - -

BRENNAN CJ: But the finding is there. It is a negative finding. It is a finding that what he got was something that he got for reasons other than Convention reasons.

MR RARES: But that is an ultimate conclusion of fact which does not explain why he is interrogated.

BRENNAN CJ: It does not matter whether it explains it or not. What is there about it to establish that there is some error of law in arriving at it?

MR RARES: Because, in our submission, it cannot flow simply from a fact - and I have said this before - because he is interrogated about what he did in Australia in his political activity you cannot say, "Well, that's got nothing to do with the way he's being treated". That has nothing to do with the Convention reason.

BRENNAN CJ: But you do not ask that question, do you? You say, "What is it about those circumstances which lead to the conclusion inevitably that he has a real chance of being persecuted on a return for this reason". What you are doing, if I might say so, Mr Rares, as I see it, is that you are looking at a number of factors and saying this is the strongest inference that can be drawn from these factors and because it is the strongest inference that it was not drawn, therefore there is an error of law when the onus is upon the applicant to establish the proposition.

MR RARES: When your Honour says "the onus is on the applicant to establish the proposition", in the RRT it is an inquisitorial system dealt with as the RRT sees fit, and it controlled - - -

BRENNAN CJ: You can say it is inquisitorial. In terms of onus it is a question of whether or not there is something about the circumstances of the case which, to put it in the terms that are necessary for the Administrative Decisions(Judicial Review) Act, require the Tribunal to be satisfied.

MR RARES: What your Honour is putting to me may go against having a declaration but it does not, in our submission, go against the fact that the Tribunal in fact erred in law, because the way it made these findings it really shut itself out from asking itself the real question, which was: did all these factors show a real chance he was being persecuted? I mean, what she is saying is that the punishment was not related to political opinion rather than examining whether there is a real chance that it was, and whether he can fear that that will happen to him this time around, having left 11 days after his latest child is born in contravention of this one-child policy, and taking a very young child in a perilous voyage, and a wife that has just given birth, in a perilous voyage in these circumstances. I mean, the Tribunal is still - the way it is making these findings is shutting off the very inquiry it really has to make, namely whether these circumstances together show that there is a real chance that he can claim persecution on a Convention ground.

We would submit that when one reads the reasons generously and fairly one finds that it is not really addressing the reality of a chance, she is making factual conclusions, not assessments of chances about the real chance issues.

Your Honours, in relation to the onus question, the Supreme Court of Canada in Re Attorney-General of Canada and Ward looked at this. Can I hand up a copy? I do not know if your Honours have it. It is in 103 DLR (4th) 1. At page 38 in the judgment of the court which was given by Justice La Forest under the heading "Political opinion", Ward was a member of the Irish National Liberation Army who, being told to guard some hostages and then being told that they were to be executed, and he took the view they were innocent civilians and he was not prepared to be engaged in that, connived to have them escape. The penalty in the INLA for that would be death and in the Supreme Court, for the first time, a point was taken as to whether or not his fear of persecution could be based on the membership of the organisation. Under heading C between e and g his Lordship says:

The additional ground was ultimately accepted by the appellant during oral argument. I note that the UNHCR Handbook, at p. 17, para. 66, states that it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met; usually there will be more than one ground. While political opinion was raised at a very late stage of the proceedings, the court has decided to deal with it because this case is one involving human rights and the issue is critical to the case.

In a sense, the proceedings before the Tribunal are not adversarial; it informs itself as it sees fit. It takes things into account as it sees fit. While a degree of satisfaction has to be formed, the way the handbook sort of approaches that assessment - and I appreciate the handbook is not directed to the wording of the Australian statute - - -

GUMMOW J: What does the Supreme Court of Canada say that bears on what you are submitting?

MR RARES: In terms of characterising onuses - - -

GUMMOW J: In terms of a particular passage in this report.

MR RARES: What I was seeking to do was to say that when one is looking at the question of bearing an onus to satisfy the Minister, people such as these boat people cannot be expected to formulate their claims with great precision. I think at one point - - -

GUMMOW J: You may be right, but what is the Supreme Court of Canada saying to support you? That is what I am asking. If it is saying nothing, why take us to it.

MR RARES: The proposition that - - -

GUMMOW J: Page 38 does not seem to bear on the point to me.

MR RARES: In terms of casting an onus on an applicant in the RRT situation of saying that he has to carry the day, while at the end of the day of course his claim has to satisfy, you approach it from the point of view that people are not going to articulate their cases necessarily very well, and it may well be that when one looks at it in an ultimate court, you can see, as the Full Court in this case saw, that there was an imputed political opinion that gave rise to the real chance of persecution that made these people refugees. We would submit that likewise here, when one looks at all the evidence, one comes away with that conclusion. Unless there is anything I can assist the Court further with - - -

BRENNAN CJ: Do you wish to say anything about the question of a remedy?

MR RARES: Yes, your Honour. We would submit that if the Court takes the view that the majority in the Full Court took, then it is an appropriate thing. If one looks at Buck v Bavone, in that case in the passage that we have referred to in our submissions at page 4 in paragraph 11, Sir Harry Gibbs says that:

Where the authority is required to be satisfied of the existence of particular matters of objective fact, the position may be very different.

What we seek to argue is that when you look at the material that I have sought to take the Court to about objectively how the Chinese law operates, which is what this Tribunal ought to have been doing and we submit did not do, only administrative detention was relevant and that is all that was there in the facts before them. You then say on the objective material you can:

show clearly not only that material facts existed but that an authority acting in accordance with its duty could have reached no other conclusion than that they existed.

If that is a view the Court comes to, it is obviously open to the Court to make a declaration in administrative proceedings that that view is the fact and, indeed, the Court, as we would submit its reasons are properly understood in Park Oh Ho 167 CLR that we cite in detail at page 17 of the submissions in paragraph 58, did just that, it made a declaration to deal with that case, even though it was an AD(JR) case and, indeed, section 16 is in the AD(JR) Act for the very purpose of ensuring that justice is done as the Court elaborated in Park's Case.

BRENNAN CJ: Now, there is one of two things, is there not? If you compare the declaration that is made at page 538 with section 22AA, is the declaration that is made at page 538 intended to be a declaration which is a declaration that the person is a refugee for the purposes of section 22AA and for all subsequent sections? If so, that seems to be, according to 22AA, a power that is vested exclusively in the Minister. Is it intended, alternatively, to be simply a declaration of the court's view that it is a refugee and that the Minister may then take it into account in reaching a decision under 22AA?

MR RARES: Your Honour, we would submit that it is - can I preface that by saying that the history is, of course, that it is only when Wu's Case was decided in this Court that concentration - - -

GUMMOW J: 22A was there.

MR RARES: Certainly, your Honour.

GUMMOW J: It has not fallen from heaven in between.

MR RARES: We would submit that the Minister can still be bound by findings of a court of law that he is bound to determine that they are refugees and be told that they are refugees. In our submission, that is one thing in AD(JR) review proceedings that the Court is entitled to do, to say these are the facts between these parties and just as you can set aside a decision because it cannot be made by the Minister, the court is entitled to say, "This is the decision the Minister had to make on the material before him."

BRENNAN CJ: Then what do you do about it by way of relief?

MR RARES: Then you issue a mandamus.

BRENNAN CJ: Then was there one issued?

MR RARES: The order for the release - there was not one issued in terms. There was an order ordering their release. The court was minded to order the granting of the visas and a stay application was made on the basis that that may not be able to be undone if there were an appeal taken and the appeal was successful for reasons that I am not clear about, but the court then did not make such an order that they be issued with the visas and they have been given temporary visas, as I understand it, but in direct answer to your Honour's question there was no mandamus issued. I accept that. So that I would accept that a writ of mandamus would have been directed to go giving effect to the declaration, if the declaration were properly to be made.

BRENNAN CJ: Commanding the Minister to determine that they were refugees.

MR RARES: Yes. In my submission, that must follow because, if the facts are there, the Minister cannot simply say, "Well, I have got a discretion to go against that." He is just as much bound to administer the law in accordance with the law as anybody else, and the court is in a position to tell him that that is what he must do. That is so in a case where there is no residual judgment to be exercise by him. If there is a residual matter that has to exercise his mind before he can make a determination, well, of course, then you have to remit it to be dealt with in accordance with the reasons of the court, in accordance with law, or whatever.

But where there is nothing left to be determined by him, then it is proper to send it back with a declaration and the mandamus that he do it. Because if, on a proper construction, a person is a refugee, and the Minister could not be otherwise satisfied, why is the court powerless to say, "Well, these are the rights of the parties."?

BRENNAN CJ: Perhaps because it is an assumption by the court of a power that the Parliament has reposed in the executive.

MR RARES: But, your Honour, in any declaration of right, for example, the court determines what the rights of the parties are. If the court comes to the view - as in the example in Buck v Bavone - that, you know, the man was growing potatoes and there is no doubt about it, why would the court be powerless, notwithstanding that Parliament has said that is a decision of the Minister, to say, "The Minister has to find this, because that is the indisputable fact."

It does not go to the validity of the declaration. It may go to whether, as a matter of discretion, you would necessarily grant it, but the power of a declaration, and the remedy of a declaration, is that it enables people to know exactly what their rights are, and if things have been proved or established, the remedy ought to flow. The Minister can no more say, "Well, I have got a right to determine it any way I like notwithstanding the indisputable facts," you know, in a clear case.

Your Honours, if the Court is of the mind that the Full Court's orders ought not to have been made, and Justice Beaumont's proposed order ought to have been made, well then, the matter ought to be remitted.

I should have drawn attention to two things which I have reminded myself of. On page 17 in our paragraph 56, I should have given your Honours a reference to a claim that was made on behalf of Mrs Pan that a violation of the one-child policy would be seen as a political act, and that appears at 209.25 to .45. And, lastly, Mr Basten's statement that the material before the Full Court was based on an assurance by us which he did not participate in; the simple fact is the case was run in the Full Court on the basis of the material that was put into the appeal books by the solicitors as being all the material that was needed to run the appeal and that his side ran the case that way.

He has not pointed to any facts outside the purview of what is in volumes 1A and B and the last three entries in volume 2B which were all before the Full Court that demonstrate that that was an incorrect assertion for the purposes of the appeal. We were obviously at that time able to rely upon the authority of the Full Court's decisions which have now been held to be wrong in characterising the appeal and attacking the reasons.

BRENNAN CJ: Mr Rares, do you wish to say anything about the order that the Court might make in the event of Mr Basten succeeding?

MR RARES: Your Honour, the claim - - -

BRENNAN CJ: It could be simply a restoration of the order of the primary judge.

TOOHEY J: The relief sought is on page 549, is it not?

MR RARES: Yes.

TOOHEY J: It is only a matter of saying that you accept that as the appropriate relief if the appeal were allowed or whether there is some variation that you seek.

MR RARES: Your Honours, the difficulty, I suppose, is that these people have been living in the community for approximately a year now and their circumstances have changed, I think because they have another child. It may be that the Minister needs to reconsider whether if they are refouled now, they will be in any worse position.

TOOHEY J: But the judgment below would not carry any automatic results in that respect. It would still be within the hands of the Minister as to what, if anything, were done.

MR RARES: Yes. The costs matter which is, of course, a minor matter, but a condition was imposed and the grant of special leave that our costs be paid in any event.

BRENNAN CJ: Yes. What I had in mind was what is the situation with respect to custody? Mr Basten might be able to come to some terms with you about that, but the point may be that nothing would happen at all, that the order that would be set aside on that hypothesis would be one ordering the immediate release.

MR RARES: Yes. I think if I may wait to hear what Mr Basten proposes. It may be that it is possible to respond to that or it may be that we need to have some instructions.

TOOHEY J: But there is nothing in Justice Sackville's order that would lead to any, of itself, immediate step being taken, is there?

MR RARES: No, because they were in custody then and, so, nothing needed to be done because they were - - -

KIRBY J: But given that the whole point of this process is an appeal on a point of law, would we not simply restore the decision of the primary judge, and if you have got some other application on different grounds or events that have occurred since, that can doubtless be processed in the normal way.

MR RARES: I think that is probably right, your Honour.

BRENNAN CJ: Yes, thank you, Mr Rares. Mr Basten.

MR BASTEN: Your Honours, might I deal with that last question of orders first since your Honours have raised it. We had formulated a form of orders which is not precisely in the form of those in the appeal papers, if I could just hand up copies. They do not vary in substance. We would say that, as your Honours were suggesting, it would be sufficient to set aside the orders below and reinstate the order of the trial judge. One of the orders in the Full Court required the release from custody of the first respondents. That has happened on the basis of a bridging visa which is still in force. We would not see that it was necessary for this Court to make any orders in that regard.

If they are no longer entitled to remain in the community, then that would follow as a matter of law once the order that they be released was set aside. Whatever steps the Minister might be minded to take may well require further decisions and if there are further matters to be taken into account they would need to be dealt with, but we would not see it necessary for this Court to enter into that territory.

BRENNAN CJ: That can be dealt with elsewhere.

MR BASTEN: Yes, if necessary. Your Honours, might I just give your Honours - - -

KIRBY J: The third order there is no order as to costs in this Court. Was that the basis on which special leave was granted? I thought Mr Rares suggested that it was that you pay the costs of the respondents. That is not - - -

MR BASTEN: It is a matter for the Court. We have given an undertaking and we will do it. I did not think it was necessary for the Court to make an order, but if the Court wishes to we will, of course, bear the consequences.

BRENNAN CJ: It may be necessary to have an order in order that there can be a taxation.

MR BASTEN: If that is so, then that should be done. We accept that we are to pay the orders - pay the costs - - -

KIRBY J: The Treasury might feel happier if there is an order.

MR BASTEN: If that is the case, then the order in relation to costs should be that the appellant pay the costs of the first respondents of the appeal.

BRENNAN CJ: Mr Basten, just allay my concern on this point if you can. It is some time since I looked at all the provisions of the Migration Act, but my recollection was that a person in the position of these respondents, at least absent the sort of visa that they now have, are liable to be imprisoned by anybody in authority who can take them and people in authority are required to take them forthwith. Is that right?

MR BASTEN: Yes, I think that is so. Certainly that is correct in relation to the regime which was in operation at the time they arrived. Mr Williams suggests to me that the regime is slightly different but your Honour's proposition is still correct. But might I - - -

BRENNAN CJ: It is only a question of whether or not, if there have been new supervening circumstances it would be highly desirable that there should be an opportunity for the consideration of those new circumstances.

MR BASTEN: Indeed.

BRENNAN CJ: I do not think we can take it any further.

MR BASTEN: I hear what your Honour says and I will make - - -

BRENNAN CJ: I do not think it is necessary to take it any further.

MR BASTEN: Those instructing me will have heard also, but there have been supervening circumstances in the form of the issue of a visa which obviously changes their status under the Act. Might I just give your Honours in reply a number of page references. Firstly, your Honour the Chief Justice this morning asked me, I think in relation to the family planning regulations for the autonomous region of Guangxi Zhuang and they are indeed in the appeal papers - your Honour may have seen them - at 144 to 149. Secondly, in relation to the question that your Honour Justice Toohey asked me this morning, you thought there had been reference to corroborating evidence which had been rejected by the Tribunal. I think it was the passage at 98 at line 40 in the decision with respect to Mr Guo.

TOOHEY J: Yes, that is the one where there is reference to later corroboration.

MR BASTEN: Thank you. I made reference in answer to a question to the fact that Mrs Pan would, in any event, be dealt with as a member of a family unit. The regulation, as it was then in force, is usefully set out in Justice Sackville's judgment at page 390 to 391.

Mr Rares made references to the various assurances to which he took your Honours. May I simply say that those were dealt with by Justice Sackville and he held that they were not relevant in the circumstances of the case, and we would respectfully adopt his reasoning at page 338.

May I also say in relation to our written submissions, in addition to the defects which were noted this morning, which are substantial, there was a minor one at the top of page 9 in line 2. The reference should have been to the material in the appeal books at pages 474 line 20 to 484 line 50.

There is the brief matter concerning onus. In Ward's Case 103 DLR (4th) to which Mr Rares referred, on the page after that to which he took your Honours, page 39 at letter d, the reference seems to suggest that despite the nature of the process there is an onus on the claimants to satisfy the board in that case. So much is made express in Chan v Canada to which I took your Honours this morning in 128 DLR (4th), and in particular at page 259 at letter e.

Finally, in relation to relief, may we note that even in Chan's Case, which this Court held involved an error and manifest unreasonableness in the ultimate decision, it was remitted to the Tribunal. In our submission, the circumstances of Park Oh Ho, which involved custody justified on one basis only which was found to be invalid, and therefore a declaration as to entitlement to release flowed, are quite different from the present case.

We do submit, as your Honour the Chief Justice put to me this morning, that it is a question of power, and we do submit on the basis of the material set out in our earlier submissions that the factual arguments for the respondents do not reach the level of one possible inference available only, namely that in favour of their clients on the facts before the Tribunal. We therefore say the relief is inappropriate. Those were the submissions I sought to make in reply unless there is any other matter your Honours would wish me to address.

BRENNAN CJ: Thank you Mr Basten. The Court will consider its decision in this matter.

AT 3.13 PM THE MATTER WAS ADJOURNED