Chen, Deqing v Minister for Immigration & Multicultural Affairs

[1998] FCA 287

DEQING CHEN v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 520 of 1997
FED No. 287/98
Number of pages - 8
Immigration Law

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

BRANSON J

Immigration Law - Migration Act 1958 (Cth) - review of decision of Refugee Review Tribunal refusing the applicant a protection visa - applicant deprived of his household registration or "hukou" - finding by Tribunal that the applicant could recover his hukou if he returned to China - finding by Tribunal that the applicant was able to avoid the consequences of being without hukou - whether no evidence upon which the Tribunal could base such findings.

Migration Act 1958 (Cth), ss 420, 476(1)(a), 476(1)(g), 476(4)

Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363, cited

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, cited

Tho Xuan Doan v Minister for Immigration, Local Government and Ethnic Affairs (Olney J, 9 April 1997, unreported), cited

Szelagowicz v Stocker (1994) 35 ALD 16, cited

Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193, cited

Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1, cited

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, followed

SYDNEY, 23 February 1998 (hearing), 31 March 1998 (decision)

#DATE 31:3:1998

The Applicant appeared in person.

Counsel for the Respondent: T. Reilly

Solicitor for the Respondent: Australian Government Solicitor

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be affirmed.

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

BRANSON J

INTRODUCTION

This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("the Act") of a judicially reviewable decision, namely a decision of the Refugee Review Tribunal ("the Tribunal"). By a decision dated 6 June 1997, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") to refuse to grant to the applicant a protection visa.

For practical purposes, a person is entitled to a protection visa if the Minister is satisfied that he or she is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention").

Australia has protection obligations under the Refugees Convention to a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." The grounds upon which the application for review was made are as follows: "1. Procedures required by the Migration Act and regulations were not observed; 2. The Decision was an improper exercise of the Tribunal's power; 3. The Decision involved an incorrect interpretation of the law; 4. The Decision was induced by fraud or actual bias; 5. There was no evidence to justify the Tribunal's decision".

BACKGROUND

The applicant arrived in Australia on 22 January 1996. He applied for a protection visa on 8 May 1996. By a decision made on 24 December 1996, a delegate of the Minister refused the applicant's application for a protection visa. It is the decision of the Tribunal to affirm the decision of the delegate which is the subject matter of this application.

The applicant was born in the People's Republic of China ("PRC") in 1968. He completed a tertiary education course in July 1992 in the city of Dalian. When he had finished this course, he was assigned to a position with a governmental body, the Yinkou Education Commission. The applicant refused for political reasons to take up the position to which he had been assigned. Upon his maintaining such refusal, he was deprived by the authorities of his household registration or "hukou". The effect of being deprived of hukou is discussed below.

Shortly after the applicant lost his hukou, he took up employment in Yinkou in the private sector. In October 1993, he obtained a managerial position in Dalian, in the private sector, and in April 1995, he moved to another position in Dalian, with an Australian company, which he held until his departure for Australia.

In 1994, the applicant was twice refused a passport and was thus unable to travel outside PRC. It appears that preconditions for the issue of a passport were the holding by him of hukou and an identity card. The applicant had neither. In May 1995, the applicant obtained a false passport in his own name. I understand this false passport to have been a forged passport not in fact issued by the government. The applicant travelled to Australia on the false passport which he subsequently lost.

The applicant had been living with his girlfriend in PRC. She remained behind when he came to Australia. On 5 June 1996, officers of the Family Planning Authority learned that the applicant's girlfriend was pregnant. When officers of the Family Planning Authority discovered that the applicant was the father, and that the couple was not married, the applicant's girlfriend was forced to have an abortion and to pay a heavy fine.

In Australia, the applicant has continued to express democratic ideas and he has written an article, apparently unpublished, concerning a territorial dispute between PRC and Japan. On 22 October 1996, he undertook a solitary protest outside the PRC Consulate in Melbourne. He considers that he may have been identified by consular officials.

REASONS OF TRIBUNAL

The Tribunal accepted the basic facts put forward by the applicant. However, it considered that his assessment of his situation was distorted and unreliable. It did not accept the interpretation placed by the applicant on certain events. Nor did it accept his assessment of certain circumstances.

The Tribunal accepted that the cancellation of the applicant's hukou had been undertaken for reasons of political opinion. That is, for reasons arising out of his refusal on political grounds to accept employment with the Yinkou Education Commission. The crucial issue for the Tribunal's determination was whether the cancellation of the applicant's hukou amounted, in his circumstances, to persecution. This involved the Tribunal in considering the practical consequences for the applicant of the loss of his hukou.

The Tribunal indicated that it would not accept that restrictions on property ownership, or lack of access to preferential prices for food, amounted to forms of persecution. However, it accepted that exclusion from employment, inability to travel within one's country and to leave one's country, and the inability to marry a person of one's choice and found a family would amount to persecution.

The Tribunal found that the applicant was not excluded from employment in PRC. It noted his ability quite quickly to obtain private employment after being deprived of his hukou. The Tribunal apparently misunderstood, as it seems by reasons of difficulties of translation and the poor quality of the transcript of the hearing before it, the basis upon which the applicant's salary level in private employment was calculated. The Tribunal understood the evidence before it to show that the applicant's wages were paid to a government agency which retained approximately half of such wages. The applicant explained on the hearing of the application for review, by reference to an agreed corrected transcript of the evidence given by him to the Tribunal, that certain overseas companies, such as the ones by which he was employed, do not enter into formal contracts with their employees. Where there is no formal employment contract, the obligation to pay employees' wages to the government agency is avoided. Such companies pay lower wages and pay such wages directly to their employees. Nonetheless, the validity of the conclusion of the Tribunal that the applicant had been able, with limited difficulty, to obtain relatively well-paid employment in PRC, is not affected by its apparent misunderstanding of the basis upon which the applicant's salary level was determined.

Before the Tribunal, the applicant suggested that new laws had come into operation in PRC which would prevent a person without hukou from working with an overseas company. He indicated that he had sought evidence from PRC which would support this suggestion. The Tribunal allowed the applicant two weeks to obtain such evidence. It does not appear that any such evidence was provided to the Tribunal. No such evidence was sought to be placed before the Court on the hearing of the application for review.

The Tribunal found that the applicant did not experience serious problems in obtaining accommodation in PRC. Before the Court, the explanation given by the applicant for his having obtained accommodation in PRC was that his places of residence in PRC after the loss of his hukou were premises rented by his girlfriend who was able to rent such premises by showing her ID card. However, evidence before the Tribunal was that on one occasion he obtained accommodation using his girlfriend's ID card, but on another occasion, he obtained accommodation by a private transaction which involved payment "under the table".

On the question of the ability of the applicant to marry a person of his choice and found a family, the Tribunal noted that the applicant and his girlfriend had apparently been able to live together for some time without official interference. However, the Tribunal accepted that without hukou the applicant would not be able to enter into a marriage, and that unless legally married, the applicant would not be able to obtain an official "one child birth permit". The Tribunal accepted that unless a couple holds a "one child birth permit", a pregnant woman in PRC will be compelled to undergo an abortion.

On the issue of whether the applicant, were he to return to PRC, would be able to marry and have a child, the Tribunal said:

"In my view, having regard to the above evidence as to the ease of circumventing hukou requirements and of having one's hukou restored, coupled with the evidence of his ability to circumvent these requirements in all other significant respects to date, he is in a position to overcome this difficulty as well if he chooses. Thus I consider that although if he were facing the inability to marry and found a family this would be a serious breach of fundamental human rights entitling him to refugee status, he is not in practice facing this, because it is open to him to avoid this consequence as apparently many others in China do."

The Tribunal concluded that the reason why the applicant had not sought to recover his hukou in PRC was not because it was impossible for him to do so, but because he was not suffering any significant hardship as a result of not having hukou. The Tribunal also suggested that the applicant's "paranoia" concerning Chinese officialdom was another factor in his failing to take steps to recover his hukou.

On the issue of whether the applicant faces a real chance of persecution in PRC, should he return, by reason of the political activities in which he has engaged while in Australia, the Tribunal concluded that there was no real chance. With respect to the article written by the applicant, the Tribunal was satisfied that it had not been published as at the date of the hearing before it. The Tribunal stated in its reasons for decision:

"I do not see a real chance that his article will be published and attract significant attention which might bring the wrath of the PRC authorities upon him."

I understand the Tribunal by the above passage to imply that although there may be a real chance that the article will be published, there is not a real chance that the article will be published and attract to the applicant the adverse attention of PRC authorities. With respect to the applicant's protest actions outside the Melbourne Consulate of the PRC, the Tribunal found that the applicant would not have been identified by, or to, the PRC authorities, and that consequently there is no real chance that the PRC authorities would persecute him for the political opinions which he has expressed while in Australia.

The Tribunal concluded that the applicant does not face a real chance of persecution in PRC for any Convention reason or reasons, whether his claims are considered individually or cumulatively.

SUBMISSIONS OF THE APPLICANT

The applicant, who was unrepresented before the Court, challenged the conclusion of the Tribunal that he would not face an inability to marry and have a child if he returned to PRC because, in effect, if he chose to do so he could, within a reasonable time, regain his hukou in PRC. The applicant placed stress on the fact of the forced abortion of his child in June 1996 after his departure for Australia. In my view, that forced abortion, abhorrent as it was, could not of itself amount to persecution of the applicant for a Convention reason. The applicant has not suggested that he wished to marry his girlfriend. There is no reason to conclude that the reason why they were not married, and thus ineligible for a "one child birth permit", was the applicant's loss of hukou. Indeed, it would seem that at the time that his girlfriend became pregnant, the applicant had already determined to leave PRC without her and with no intention of returning.

The finding of the Tribunal that it would be easy for the applicant to recover hukou if he returned to China was, in the circumstances, a finding of fact. Although I am a little uneasy with respect to this finding, it cannot be said that there was no evidence or other material to justify its making within the meaning of the ground of review set out in s 476(1)(g) of the Act. Section 476(4) provides that:

"The ground specified in paragraph (1)(g) is not to be taken to be made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including acts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

Section 476(4) of the Act and the equivalent provisions in the Administrative Decisions (Judicial Review)Act 1977 (Cth) ("ADJR Act") have been considered by this Court on many occasions. In Akers v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 363 at 374, Lee J described the ADJR Act analogue of s 476(4)(a) of the Act as "the statutory equivalent of the absence of a jurisdictional fact". As to s 476(4)(b) of the Act, in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221, Black CJ, with whom Spender and Gummow JJ agreed, stated of the ADJR Act analogue of s 476(4)(b):

"[the provision] does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision."

Whilst para 476(4)(b) is a wider provision than paragraph 476(4)(a), it remains the case, as Olney J pointed out in Tho Xuan Doan v Minister for Immigration, Local Government and Ethnic Affairs (Olney J, 9 April 1997, unreported) that the limitations imposed by s 476(4) on the application of the ground of review referred to in s 476(1)(g) are such that the ground will rarely be available to an applicant who has been unsuccessful before the Tribunal due to the difficulties involved in identifying a matter required by law to be established to justify a decision that a person is not a refugee. See also Szelagowicz v Stocker (1994) 35 ALD 16 at 22; Xiang Sheng Li v Refugee Review Tribunal (1996) 45 ALD 193 at 203-204; and Feliciano v Minister for Immigration and Ethnic Affairs (1996) 43 ALD 1 at 3.

In finding that the applicant would be able to recover hukou were he to return to PRC, the Tribunal placed reliance on the following passages from the Report of the Second Australian Human Rights Delegation to China:

"Generally citizens returning to the PRC appear to have no great difficulties in having their household registrations restored ... ... In the case of imprisonment or laogai (reform-through-labour), household registration may also be cancelled. Those whose household registration is cancelled by the laojiao authorities may have their registration restored only after three years of surveillance and the approval of the laojiao authorities and the Justice Bureau at provincial level."

The Tribunal concluded:

"If even a person who has been imprisoned is able to have hukou restored after three years, it is hard to see why the present applicant, whose offence was far short of warranting imprisonment, would be unable to have his hukou restored after five years (which has now almost elapsed since the original cancellation)."

It does not seem to me that in the circumstances, either of the paragraphs of s 476(4) of the Act can be said to have been made out. It can not be suggested that this is a case in which there was no evidence of a fact equivalent to a jurisdictional fact. Nor has it been established that any fact on which the Tribunal's decision was based did not exist.

The Tribunal further expressed the view that it would, in fact, be open to the applicant to avoid the consequences of having no hukou "as apparently many others in China do". This view is presumably to be understood as extending to the applicant's being able to avoid the requirement of having hukou to obtain official permission to marry and have a child. The "many others" to which the Tribunal was referring are apparently the "floating population" to be found in parts of PRC for which they do not have the local hukou. In this respect the Tribunal rejected a distinction put forward by the applicant between persons who have no hukou at all and those who do not have hukou for the place in which they live. I have not found it easy to work out why the Tribunal rejected this distinction. For matters affecting personal status, as opposed to matters concerning employment and accommodation, the distinction does not seem to me to be an illogical one. The material concerning hukou in PRC to which the Tribunal referred does not expressly deal with the suggested distinction. However, again it seems to me that s 476(4) of the Act prevents the ground of review set out in s 476(1)(g) from being established. It can not be suggested that there was no evidence before the Tribunal of a fact equivalent to a jurisdictional fact. Nor has it been established that any fact on which the Tribunal's decision was based did not exist. In any event, the finding of the Tribunal that the applicant would be able to regain hukou should he return to PRC provided a second, and alternative, basis for its conclusion that there was no real chance that the applicant would suffer persecution by reason of having no hukou were he to return to PRC. The decision of the Tribunal would have been the same whatever view it took of the likely ability of the applicant to avoid the consequences of not having hukou.

The applicant also challenged the finding of the Tribunal that the deprivation of his hukou did not have the consequence that he would experience serious difficulties in obtaining accommodation in PRC. He argued that he had only obtained accommodation through his girlfriend and that, in effect, absent a girlfriend with hukou or an ID card, he would be unable to obtain accommodation in PRC. The Tribunal did not accept that this was so. It found that the applicant had been able to obtain accommodation without relying on his girlfriend by entering into an "'under the table' transaction". It is to be inferred that the Tribunal concluded that if the applicant were to return to PRC he would again have no serious difficulty in finding accommodation. The corrected version of the transcript of the hearing before the Tribunal, which was provided to me with the consent of the parties, includes the following passage from the evidence of the applicant:

"On the second lease the proprietor did not ask me for an ID card. Well, the reason I was not required was because it was a private transaction, that is, I paid to him under the table."

The above passage, in my view, constitutes evidence to justify the finding of the Tribunal that the applicant was able to obtain accommodation in PRC without hukou without serious difficulty. In any event, as is mentioned above, the Tribunal concluded that the applicant would, if he wished, be able to regain hukou if he returns to PRC.

The finding of the Tribunal that it would be open to the applicant to regain hukou if he returns to PRC is also an answer to the applicant's suggestion that he would be denied freedom of movement if he returned to PRC.

The applicant sought to challenge the findings of the Tribunal concerning the respective credibilities of the applicant and of a witness before the Tribunal, Mr Yu. The applicant had suggested before the Tribunal that Mr Yu was an agent or spy for the PRC authorities, and that Mr Yu had reported on the applicant's political activities to such authorities. Mr Yu denied both aspects of the applicant's allegations against him. No reason was shown which would justify the Court in interfering with the Tribunal's findings on credibility. The Tribunal was entitled to accept the evidence of Mr Yu and it did so. The conclusion of the Tribunal that the article written by the applicant did not give rise to a real chance that he would face persecution were he to return to PRC, was not challenged before the Court. Nor was any reason identified which would justify the Court in interfering with the Tribunal's finding that the applicant would not have been identified by, or to, the PRC authorities as a consequence of his solitary protest action outside the Melbourne Consulate of the PRC.

It is not clear whether the applicant maintained reliance on his formal claims that the Tribunal had not observed the procedures required to be observed by the Act and the regulations and that the decision of the Tribunal was induced by fraud or actual bias. Accepting for present purposes the interpretation placed upon s 476(1)(a) of the Act by the majority of the Full Federal Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, I do not consider that the Tribunal in this case failed to satisfy the procedural requirements of s 420 of the Act. Nor do I consider that the Tribunal failed to observe any other procedures which it was required to observe. There is no evidence to support any allegation that the decision of the Tribunal was induced by fraud or actual bias. I am not satisfied that the decision was an improper exercise of the Tribunal's power or that the decision involved an error of law within the meaning of s 476 of the Act.

I conclude that none of the grounds upon which the application for review is made has been made out. In reality, the applicant sought from this Court review of the merits of his application. On an application under s 476 of the Act, this Court is concerned only with errors of law.

The decision of the Tribunal will be affirmed.