Chun Mei Li v Minister for Immigration and Multicultural Affairs

[1997] FCA 1132

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 286 of 1997

BETWEEN:	CHUN MEI LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	17 OCTOBER 1997
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed; and

1. 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	NG 286 of 1997

BETWEEN:	CHUN MEI LI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	17 OCTOBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION AND BACKGROUND

The applicant (“Ms Li”), who informs me that she is also known as Qiu Mei Chen, applies for review of a decision of the Refugee Review Tribunal (“the RRT”) given on 24 March 1997.  She appears in person and is assisted by an interpreter, Mr Stephen Chan. Ms Li applied for an adjournment of the hearing which I refused for reasons then given which I will not repeat.

The RRT decided that it was not satisfied that Ms Li was a refugee and it affirmed a decision of the Minister not to grant her a protection visa. In order to be eligible for a protection visa, an applicant must be a person to whom Australia has protection obligations under the United Nations Convention and Protocol relating to the Status of Refugees. 

Ms Li claimed that she was a person who, owing to a well-founded fear of being persecuted for reasons of political opinion or of membership of a particular social group, or both, was outside the country of her nationality and was unable, or, owing to such fear, was unwilling, to avail herself of the protection of that country.  The country in question is the People’s Republic of China. 

Ms Li arrived in Australia on 29 February 1996. When she arrived, she was the holder of a Subclass 456 Business (Short Stay) visa which was valid only until 29 March 1996. The passport on which she came into the country was not issued in the name of Chun Mei Li.

Ms Li has not departed Australia. She became an unlawful non-citizen on 30 March 1996.

Ms Li was detained by the Department on 13 November 1996.  She lodged an application for a protection visa on 18 November 1996. In that application, she gave her date of birth as 4 September 1968. She has since also given her date of birth as 10 July 1974. The sections of the form which related to the grounds of her application were answered “To be provided”. By letter dated 4 December 1996, Mr Nelson Shi, the applicant’s agent at that time, furnished “the refugee claims for the above applicant” to the Department. The attached statement described the application as one “for refugee status under the category of membership of a particular social group”, and, in particular, to escape persecution from “traders in human beings”.

Ms Li was interviewed on 16 December 1996 in relation to her application for a protection visa. At this interview she raised her ground of fear of persecution for political opinion, saying that she had been misrepresented by her agent in the statement attached to her agent’s letter dated 4 December 1996, as it did not provide the true reasons for her application for a protection visa. On 23 December, her application was refused by a delegate of the Minister.  On 30 December she applied to the RRT for a review of that decision. 

On 9 January 1997, a new migration agent representing her provided submissions to the RRT making a new allegation. This was that she was a lesbian and that her partner had been detained by the Public Security Bureau in China.  Ms Li attended a hearing before the RRT on 13 February and on 13 March. As noted earlier, the RRT gave its decision on 24 March.

REASONS FOR DECISION OF THE RRT

In its Reasons for Decision, the RRT analysed Ms Li's claims and the evidence which was before it.  The Reasons for Decision make it clear that the Member rejected Ms Li as a truthful witness.  The Member noted that when assessing credibility, a Member must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those who are generally credible but who are unable to substantiate all of their claims.  Nonetheless the Member made the following statements which Ms Li is not in a position to challenge in the present application for a review:

“The Applicant's evidence was contradictory, unconvincing and sometimes out of keeping with other evidence regarding the situation in China and I did not find her to be a truthful or credible witness.

I do not believe that her family have always been branded as counter-revolutionaries because of their background, nor that her father was a university lecturer who was killed on 4 June 1989.

...

I find that the Applicant fabricated the claim the [sic] that her family had been branded counter-revolutionaries in order to enhance her chances of obtaining refugee status and residency in Australia.

I also find that she fabricated the claim that her father was a university teacher.  I found her evidence on this issue vague, unconvincing and contradictory. ...

Much of the Applicant's evidence regarding her relationship with the other woman was also contradictory and unconvincing. ...  On the evidence before me, I am not satisfied that the Applicant was in a homosexual relationship with a woman who was jailed because of her homosexuality in 1995, nor am I satisfied that she has a well-founded fear of facing serious harm amounting to persecution on her return to China because of her sexuality.”

The Member went on to note that she had also considered the fact that Ms Li had left China illegally.  The Member noted that penalties imposed for breaches of regulations relating to passports and border controls are part of the normal operation of the law and therefore do not generally constitute persecution under the Convention.  The Member noted, however, that applicants facing such penalties may have a claim for protection if, for a Convention reason, they face harsher penalties than other people, or if breaches of such regulations are viewed as political acts by the government of their home country and are punished accordingly.  The Member found, however, that the evidence did not suggest that either of these conditions was present in this case.

REASONING

Ms Li's application for review by the Court, which was filed on 18 April 1997, set out the following material:

“The applicant is aggrieved by the decision because -

I don’t think the decision made  by the Department of Immigration is reasonable. Homosexual activity should be regarded as a personal human right. However homosexual people in China are accused and convicted of their homosexual activities because of the forceful laws enacted by the Chinese government. Meanwhile, the traditional moral value and social customs put great pressure upon homosexual people in China. As a result, they are unequally treated and strongly discriminated against. Based on the definition of refugee stipulated in the UN Convention relating to refugees, I should be protected by the Australian government, as a member of [a] special social group who cannot lead a life in China.

The grounds of the application are -
I think that I have good reasons for fear of returning to China and of inability to lead a life there, because the Chinese government does not allow people to engage in homosexual activities. It is clearly stipulated in the Criminal Law of the People’s Republic of China that homosexual activity is an indecent act, and those who are engaged in homosexual activities are convicted of committing crimes of indecency. The Public Security Department at various levels and concerned judicial departments not only convict homosexual people but toss them into jail. Meanwhile, the traditional Chinese moral values and customs put a great deal of stress and pressure on homosexual people. In such circumstances, they are unequally treated and strongly discriminated against when the laws always rule unfairly against homosexual people. I simply could not live in such a societal environment of China, where there is no respect for human rights. Therefore I escaped China. I am a member of the special social group defined by the UN Convention relating to refugees who need the Australian government to protect.

The applicants claims
I came to Australia on February 29, 1996. The purpose of my coming to Australia is that I am a homosexual who could not lead a normal life in China, and had to avoid being persecuted at the hands of the Chinese authorities by seeking the Australian government for asylum. In the pro-demonstration [sic - democracy] movement of 1989 staged by students, my father, supportive of and sympathetic for the students movement, was killed by the Chinese government during the massacre. The death of my father plunged our family into a plight. My homosexual partner, Li Xue Mei lent her help to us out of sympathy. As a result, my relationship with her as friend had developed into that of lovers. In China, any homosexual activities are regarded by law as acts of crime. The local PSB [Public Security Bureau] persecuted us consistently for my homosexual relationship with Li Xue Mei. Li Xue Mei was indicted of violating the Criminal Law by the PSB, and sentenced and put behind bars for her commitment of indecent crime. I was also summoned, detained, and questioned. I was ordered and threatened to stop homosexual activities. If I continued to do so, the PSB threatened, I would also be tossed into jail. After the people in the neighbourhood learned of my homosexual disposition and activities, they looked on me as an indecent man [sic - woman] and a man [sic - woman] with no morality, judging by their traditional moral values and social customs. As a result, I was living in a hostile and discriminating environment. Being a homosexual, it was extremely hard for me to get a normal job. The governmental persecution, social discrimination and stress did a great deal of damage and harm to my family members, forcing me to walk along the line of desperation. In order to let me leave this environment which made me suicidal, my relatives helped me to escape China with the assistance of their friends to Australia for its government’s protection.”

Clearly, Ms Li has not attempted to identify permissible grounds of review by the Court and seems to seek a review on the merits. At the hearing today I have provided to Ms Li a copy of s 476 of the Migration Act 1958 (Cth) for her consideration (with the assistance of the interpreter) during an adjournment in the hearing, and have sought to make clear to her the limited nature of this Court's power of review. She has told me that when she was before the RRT she was “not given a lot of opportunity to speak out” and was “frightened”. However, the transcript of the hearing before the RRT is in evidence and although, of course, I do not know whether Ms Li experienced fear, she did answer questions put to her by the Member even stating to the Member at the conclusion of the hearing in February “I feel very happy that I have had this opportunity to talk with you”. The applicant was also given an additional week in which to send the Member information which she wanted to get from China. She did forward extra material to the Member, and was given the opportunity to say everything she wanted to say in relation to it at the hearing in March. I do not accept that the applicant was not given adequate opportunity to address the Member.

In fairness to Ms Li who, as I noted earlier, appears in person, I have read, not only the RRT’s Reasons for Decision but, as well, the transcript of the hearing before it.  It is clear that the RRT’s decision was one based substantially on the issue of Ms Li’s credit-worthiness.  Although I have not set them out above, the Reasons for Decision explain why the Member reached the conclusions on credit adverse to Ms Li which I set out earlier.  A reading of the transcript shows that the concerns which found their way into the Reasons for Decision were explored with Ms Li during the hearing and that she addressed them, albeit without persuading the Member.

CONCLUSION

The application for review is not supported and the orders of the Court are: that the application for an order of review be dismissed; and that the applicant pay the respondent's costs.

I certify that this and the preceding  five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:            28 October 1997

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Mr A Markus of the Australian Government Solicitor’s Office
Date of Hearing:	17 October 1997
Date of Judgment:	17 October 1997