Chi v Minister for Immigration and Multicultural Affairs
[2000] FCA 1352
•4 SEPTEMBER 2000
FEDERAL COURT OF AUSTRALIA
Chi v Minister for Immigration & Multicultural Affairs [2000] FCA 1352
ZHONG MEI CHI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 506 OF 2000
JUDGE: BEAUMONT J
DATE OF ORDER: 4 SEPTEMBER 2000
PLACE: SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 506 OF 2000
BETWEEN:
ZHONG MEI CHI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
BEAUMONT J
DATE OF ORDER:
4 SEPTEMBER 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed
2.The applicant pay the respondent’s costs.
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
N 506 OF 2000
BETWEEN:
ZHONG MEI CHI
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
BEAUMONT J
DATE:
4 SEPTEMBER 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
BEAUMONT J:
Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The short history of the matter is as follows.
The applicant is a citizen of China who arrived in Australia on 13 January 1999. On 6 October 1999 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (“the Department”). On 8 December 1999 the delegate of the Minister refused to grant a protection visa. On 11 January 2000 the applicant applied to the Tribunal for review of that decision. For the reasons it gave on 27 March 2000 the Tribunal affirmed the decision not to grant a protection visa.
In order to understand the issues that arise before the Court it will be necessary to say something about the reasoning of the Tribunal. The Tribunal noted that the claims and evidence of the applicant consisted of her protection visa application, her written submissions in support of that application, a copy of a pamphlet provided to the Department and a translation of a press item provided to the Tribunal. The Tribunal mentioned also the applicant’s oral evidence before it. The Tribunal noted the applicant’s personal details as follows.
She was born in 1956 in Tianjin and lived there until her departure for Australia in January 1999. She stated that she commenced employment as a teacher in October 1979, then worked at the same school, she said, until her departure for Australia. She had, she said, fifteen years education. She said that she had married in 1984 and had a son who was born in 1985. She said that her son had remained in China because he needed to participate in many chess tournaments. She stated in her application, the Tribunal noted, that she is Christian.
The applicant stated that she had left China legally but had experienced difficulty in obtaining travel documents. The Tribunal then noted some travel details from the applicant’s passport. The passport was issued by the Chinese Ministry of Foreign Affairs on 1 December 1997. The applicant had used the passport to travel to Thailand in August 1998, to Hong Kong in October 1998, to Fiji in October 1998, to Tonga in October 1999, to depart Tonga on 13 January 1999 and, as noted, to enter Australia on 13 January 1999.
The Tribunal noted that the Kingdom of Tonga had granted the applicant a temporary permit on 10 March 1998 to enter and reside in Tonga until 10 March 2000. The Tribunal further noted that whilst the applicant was in Tonga she was granted (on 10 December 1998) a visitor visa for Australia, valid for six months from arrival. The Tribunal further noted that upon her arrival in Australia she was granted, on 30 June 1999, a second visitor visa valid to 30 December 1999. Those visitor visas are, of course, not relevant for present purposes and are no more than background.
With respect to the applicant’s claim for a protection visa, the Tribunal noted that in her written statement of claim the applicant had claimed to fear persecution by the Chinese authorities for two reasons: first, for political opinion, on the basis of her family’s experiences during the Cultural Revolution; and secondly, for religion, that is, because of her Christianity.
The Tribunal noted that the applicant had stated that during the Cultural Revolution her family house had been destroyed three times; her father had been sent to the countryside for “re-education” and had died there at the age of fifty; her mother had been imprisoned for ten years as an “anti-revolutionary”; and that the applicant had suffered discrimination as a result of her parents’ sentences.
The Tribunal noted that the applicant did not say when she became a Christian but did note that the applicant claimed that after her mother was released from prison, the applicant had used her residence for gatherings every Sunday to sing hymns and read the Bible. The Tribunal noted that the applicant had claimed that on one occasion two police came to her house when a gathering was taking place and that she had been arrested and detained for twelve hours. She claimed that others present at the gathering had been ordered to leave the house and that her superior at work had been ordered “to keep watch” on the applicant. The Tribunal further noted that the applicant stated that on arrival in Australia she had made arrangements to organise a lot of Christian activities.
The Tribunal then noted the oral evidence given at the Tribunal hearing to the following effect. The applicant had stated that she was a Catholic and had started to have Bible study groups at her home in China because she did not agree with the style of worship at the official Catholic church in Tianjin. At that point she had been attending that church once a week. The Tribunal noted that the applicant stated in evidence that the priests at the official church had been appointed by the government and that in her view their preaching had deviated from the Bible.
The applicant stated that she had commenced having study groups at her home in 1993; and she reiterated the incident, previously mentioned, of the police raid on her home to break up the study session. She stated that after this incident she had been transferred from her teaching duties and required to do cleaning work. She said that when she had asked the school master why she was not allowed to teach she was told there were too many teachers.
She told the Tribunal that the reason she travelled to Thailand in August 1998 was for tourism and that she had travelled to Tonga because she understood that it was a very Christian country. She also informed the Tribunal that her son had travelled to Australia in October 1999 as part of his high school team to participate in a chess competition.
The Tribunal went on to summarise “independent information” which it had obtained from a number of sources then identified. The Tribunal briefly referred to documentation of the history of the Cultural Revolution between 1966 and 1976, noting that the worst abuses had subsided by 1970.
The Tribunal then described the information it had obtained from several sources on the question of Christianity in China. It is not feasible to summarise this material which is quite lengthy, however, the Tribunal noted amongst other things, that the practice of Christianity in China was allowed in the government-approved Catholic Patriotic Association and the Protestant Patriotic Movement. The Tribunal noted that these official churches were subject to “governmental guidance”, have limits on their doctrinal teachings and activities, and must provide the government with details of their membership and activities. The Tribunal further noted that unauthorised religious groups had been suppressed by police and religious affairs officials. The Tribunal noted that there was evidence that authorities in some areas, guided by national policies, made strong efforts to crack down on the activities of the unapproved Catholic and Protestant churches.
The Tribunal said:
“In China generally, local authorities try to merge underground religious organisations with patriotic associations, or they turn a blind eye to their existence. In provinces such as Shanghai and Fujian, Christian household meetings seem now wholly open.”
The Tribunal went on to say:
“The Australian Consulate General in Guangzhou reported that many practising Christians and believers of other faiths are able to worship in their homes and at churches or temples without harassment and that gatherings of house-church worshippers in major cities can expect to be able to conduct their meetings without undue harassment. The government generally permits small groups (10 to 20 persons) of believers to gather and worship privately in their own homes but large religious meetings must take place in officially designated places of worship. Public prayer and open religious services are not tolerated and are severely restricted and sermons may not address political matters. Cadres in coastal areas with large Christian populations (such as Fujian) allow a certain degree of freedom. Itinerant religious proselytizing is proscribed and sometimes punished, although some discreet proselytizing is tolerated.
DFAT also reported that the government knows of the existence of house churches but does not regard them as a serious threat and seems to tolerate their unofficial existence. Unapproved Catholic churches are tolerated provided they are discreet.”
The Tribunal then turned to the independent country information with respect to “exit procedures” and noted that, generally speaking, individuals who have obtained Chinese passports and exit permits to leave China have been “thoroughly vetted” by the security authorities. It was assumed that they would not be on any wanted list if they were to return to China. The Tribunal further noted that it would be difficult for a Chinese national to depart China legally without his or her intended departure coming to the attention of the authorities.
The Tribunal proceeded next to state the relevant legal principles and referred to the settled course of High Court authority in this area in a way which is unexceptional. The applicant has appeared before me unrepresented, however I could not see any error of law in the Tribunal’s statement of the legal principles.
The Tribunal then came to express its findings and reasons. It dealt first with the Cultural Revolution aspect. The Tribunal stated that it accepted the independent information that persons who may, or whose parents may, have suffered during the Cultural Revolution no longer face a real chance of harm.
Turning to the main claim, that is to say, the Christianity aspect, the Tribunal accepted the applicant’s claim to be Catholic and to have conducted Bible study classes at her home from 1993. The Tribunal further accepted the applicant’s claim to have been questioned by the police and detained for twelve hours after the police had come to her house to break up the Bible study class. The Tribunal then proceeded as follows:
“However, I am not satisfied that to have been detained for 12 hours, and to have been transferred from teaching to service duties at work, is harm which is serious enough to amount to persecution within the meaning of the Convention. The applicant was not, in my view, prevented from holding or practising religious beliefs. The applicant’s evidence was that she previously had attended the official church. The bible study group was a reaction to the form of worship which she encountered at the official church. However, if she were to cease her private study group, she would not thereby be prevented from practising her religion and receiving the sacraments because she could return to the official church. Despite her evidence that she did not agree with the preaching at that church, it is not unreasonable to expect that she would attend in the absence of an alternative. Further, I am not satisfied on the evidence that the applicant was transferred from teaching duties as a result of her religion but in any event she was not prevented from engaging in employment and earning a living. Also, the applicant’s evidence suggests that her transfer to other duties was intended to be temporary. I am not satisfied that the harm feared by the applicant is serious enough to amount to persecution within the meaning of the Convention.
Further, I am not satisfied that the applicant would face any harm, or any serious harm, by reason of her religion if she were to return to China. It is clear from the independent information which I have considered that small groups of private persons who undertake religious observances in their homes are generally tolerated by the government or the authorities turn a blind eye to such practices. The applicant’s evidence was that she had only had difficulties on one occasion, despite having conducted the bible study group for approximately 6 years, and that this appears to have been prompted by a complaint by a neighbour about the numbers of people attending her house.
The applicant was able to enter and re-enter China, and subsequently to leave China, on a valid passport in her own name after her experience of 12 hours detention. Her son was able to leave China a year after that incident. These facts indicate to me, and I so find, that the applicant was not of interest to the Chinese authorities at the time she left China in October 1998, after the period of detention, and that her son was permitted to leave China one year after the incident. I am satisfied that the applicant does not face a real chance of persecution by reason of her religion if she were to return to China.”
The Tribunal then turned to the question of “Departure from China”. The Tribunal said:
“I am satisfied, on the basis of the independent information, that the applicant is not wanted by the Chinese authorities, because she was able to depart China on a valid passport in her own name. I am fortified in this view by the fact that her son was permitted to travel to Australia as a member of his school’s competitive chess team.”
For those reasons the Tribunal was not satisfied that Australia owed protection obligations to the applicant.
Although the applicant has appeared before me unrepresented and with the benefit of an interpreter, she has, presumably with assistance, prepared grounds of her application in the following terms. First, she states in her application that she is aggrieved by the Tribunal’s decision because:
“1.The applicant had been suffering from her family history with anti-revolutionary parents at the Chinese Cultural revolution and her religion (Christian) in CHINA, where her parent was imprisoned for 10 years for no actual actions against the Chinese Government and where she was unexpectedly detained for 12 hours for the reason of religious gathering.
3.The applicant always want to flee from CHINA for her religious freedom and religious activities. She was told about Tonga, but her Tonga visa expired on 10 March 00. Finally she reached Australia – a well-known freedom country.
3.Based on information from press media, suppression to all kinds of religions are getting vigorous and vigorous. Unfortunately, the respondent didn’t look into the applicant’s specific circumstance and made a unreasonable decision.”
In support of these claims the applicant has stated her grounds of application as follows:
“1.The applicant had personal experience in persecution back in China, which makes her fear till present in Australia. Religious activities are restricted in China. The applicant was put to detention for her religious gathering despite of her care duty for her son, who is always under her care and who has saved shadow from these persecution.
2.The applicant’s fear of persecution is ‘well-founded’. She herself did experienced it as well as her parents. This kind of persecution will have a real chance to occur again. In addition, the applicant can’t seek protection from her own country – China.
3. Australia therefore has a protection obligation to the applicant.”
In the space provided in the form of application for particulars the applicant states the following:
“The applicant found that RRT selected some unrealistic articles. Eg. “Local authorities try to merge underground religious organisations with patriotic associations, or they turn a blind eye to their existence. In provinces such as Shanghai, Christian household meetings seem wholly open. It has been recognised that many such organisation meet because there is no church…’. This is different from the situation in Tianjin, where is much closer to the Communist Central.”
I have considered the matters raised in that application but they are, upon any view, no more than an attempt to invite the Court to consider the merits of the matter and to embark upon what are, in form and in substance, purely questions of fact. That is to say, they are matters that lie within the exclusive province of the Tribunal and the executive arm of government; and not within the jurisdiction or authority of the judicial arm. The Tribunal, as mentioned, stated the legal principle in this area in a way that was impeccable. As McHugh J pointed out in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429:
“The term ‘persecuted’ is not defined by the Convention or the Protocol. But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes ‘being persecuted’.”
The Tribunal, in the present matter, concluded on the facts that there was not involved here the kind of harm that amounted to persecution within the meaning of the Convention. That finding was clearly open to it on the facts. I would only add that before me the applicant invited the Court to consider a newspaper report published in the Chinese press referring to arrests made within China. However, as was indicated to the applicant during the hearing, since that material was not before the Tribunal and, indeed, since the press report was generated after the Tribunal hearing, this Court cannot receive such material in an application for judicial review of the present kind.
In my opinion, there was no error of law in the Tribunal’s decision. It formed an assessment of the circumstances of the applicant on the factual material before it. It did so in a way that was legally free of error and, in those circumstances, this Court must dismiss the application.
The order of the Court is application dismissed with costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate:
Dated: September 2000
Solicitor for the Applicant: The applicant appeared in person Counsel for the Respondent: J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 4 September 2000 Date of Judgment: 4 September 2000
1
0