Chen, Wei v Minister for Immigration and Multicultural Affairs

[1998] FCA 1535

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 561  of   1998

BETWEEN:	WEI CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		DOWSETT J
DATE OF ORDER:		3 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is refused.

1. The applicant is to pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 561 of 1998

BETWEEN:	WEI CHEN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	3 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant was born in China on 25 April 1970.  She is married with two children.  Her husband and children remain in China.  She arrived in Australia on 13 February 1997 and has subsequently made an application for a protection visa.  The circumstances which she says led to her departure from China and to her desire to obtain a protection visa are as follows.  She says that she worked as secretary to the general manager of a company and that she realised that he was deeply involved in corruption.  In July 1996 she wrote a letter to the procuratorate reporting his corruption and asking that he be investigated.

Her employer subsequently disclosed to her that he knew that a complaint had been made against him and that he assumed that she was responsible.  He said that he was not frightened of her and that he didn't care if she complained again.  He said that he had friends in appropriate places.  The applicant says that she was frightened and that subsequently two police officers came to her residence and said that her employer was a famous entrepreneur of good reputation, that she had no evidence against him, that she should not make charges of this kind and that if she did she would be prosecuted for spreading false reports.

At some later stage in her employment, as a result of what she perceived to be the unfairness of this situation, she said words to the effect that there was no hope for the country and that the Communist Party of China was not a good party.  She says that her employer then called the police and reported this conversation to them.  The police came to her place of employment and said that she could be charged at any time with spreading rumours and reactionary speeches against the Party.  They ordered her to write a report about her speeches and to make a confession.  They said that she had made a serious mistake and that they would deal with her later. 

She then decided to leave China and come to Australia because she was fearful of reprisals. In effect, she says that she remains fearful of reprisals and, therefore, seeks to remain in Australia. Her application was refused by the Minister's delegate, such refusal being accompanied by carefully prepared reasons. Her appeal to the Refugee Review Tribunal was also unsuccessful. Again, the reasons given were carefully thought out and appear to reflect accurately and adequately both the law and the facts of the case. Nonetheless, the applicant has sought judicial review of that decision pursuant to s 475 of the Migration Act 1958 (Cth). I will return to the provisions of that section in a moment.

The grounds specified in the application are that the decision involved an error of law in that:-

(a) procedures that were required by the Migration Act and the Migration Regulations to be observed in connection with the making of the decision were not observed;

(b)the decision was an improper exercise of the power conferred by the Migration Act and Regulations;

(c)the decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the respondent;   and

(d)there was no evidence or other material to justify the making of the decision. 

Section 476 of the Act prescribes the grounds upon which an application for review may be based and it is reasonable to say that the four grounds accurately reflect one or other of the grounds there contemplated.  However, when the application was called on today the applicant did not point to any factual or other basis for any of the allegations and, having perused the record, I am unable to see any justification for any of her criticisms. 

She has said that she has other documents in her possession relating to harassment of herself and of other members of her family but she did not suggest that the evidence of harassment went beyond the evidence which she has previously given to the Department and indirectly to the Tribunal and which has been accepted by those bodies as being correct for present purposes.  I cannot see how evidence of harassment of her family can take the matter much further and in any event, there seems no basis for receiving such evidence for the purposes of this application.

Although the applicant was ordered to provide particulars of her various complaints, she has not done so.   In any event it seems quite clear that she has nothing to say in elaboration of them.  There is nothing of which I am aware which would suggest that the procedural requirements of the Act and Regulations were not observed.  The question of an improper exercise of the power is raised, but there is nothing in the material to suggest any defect of that kind.  The allegation of an error of law is so vague and unparticularised as to be meaningless.  As to the suggestion that there was no evidence to justify the decision I find myself unable to accept that assertion.  The real issue which has fallen for determination both in the Department and before the Tribunal has been whether or not the applicant falls within the definition of refugee.  That definition is derived from the relevant Refugees Convention to which Australia is a party.  In effect, it defines a refugee to be a person who:

“...owing to a 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.”

It is obviously the first part of the definition which is relevant for present purposes.  There is no suggestion that the applicant fears persecution because of race, religion, nationality or membership of any social group.  The only possible avenue is that dependent upon political opinion.  Obviously enough, her complaint of corruption cannot be described as a political opinion, and so the first incident, when the police called at her home to dissuade her from making allegations against her employer is not relevant for present purposes other than perhaps as background.

The second confrontation with the police appears to have been brought about as the result of the expression of a political point of view, namely that the government and the political party were not good.  Whether that is a political opinion for the purposes of the definition may be doubted.  A mere expression of a momentary opinion might be thought to be rather less than the evil at which the definition was striking, but it does not matter for present purposes because what is required is a well-founded fear of persecution for that political opinion.

The only basis for her fear at present is the one confrontation with the police at her place of employment, after which they left her alone.  She did not lose her job and was allowed to leave the country.  Evidence obtained by the Department indicates that a person guilty of such a so-called transgression as is demonstrated in the present case would be unlikely to attract the sustained and unfavourable attention of the Government of China.  Further, it is said that it is unlikely that anybody in whom the government had such an interest would be permitted to leave the country.

Even without those considerations the mere intervention by the police on one occasion would hardly be a basis for inferring an intention to persecute her for her political opinion.  This is particularly so when one consciously sets aside generalised and imprecise preconceptions about governments in countries such as China.  On the evidence as it was before the Department and before the Tribunal and as it now is, the only basis that she has for fearing persecution because of her political opinion is the one incident with the police which appears to have been of a very mild character.  Other evidence suggests that further adverse attention is most unlikely, having regard to current conditions in China.

It is clear that there was evidence to support the views reached in the Department and by the Tribunal that there was no relevant well-founded belief.  The application will be dismissed.  I order the applicant to pay the respondent's costs of the proceedings.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             1 December 1998

The Applicant appeared in person.
Counsel for the Respondent:	Mr Godwin
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 November 1998
Date of Judgment:	3 November 1998