Guan v Minister for Immigration and Multicultural Affairs

[2000] FCA 1038

FEDERAL COURT OF AUSTRALIA

Guan v Minister for Immigration & Multicultural Affairs [2000] FCA 1038

GUAN YUAN HUA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 348 OF 2000

SUNDBERG J
MELBOURNE
2 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 348 OF 2000

BETWEEN:	GUAN YUAN HUA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	2 AUGUST 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant 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
VICTORIA DISTRICT REGISTRY	V 348 OF 2000

BETWEEN:	GUAN YUAN HUA APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	2 AUGUST 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND

1. The applicant, a 38 year old man from Fujian province in China, arrived in Australia on 24 March 1994 on a visitor’s visa.  In April 2000 he was detained by officers of the Department of Immigration and Multicultural Affairs and held in an Immigration Detention Centre as an unlawful non-citizen. He lodged an application for a protection visa on 5 April.  The application was refused by the Minister’s delegate on 14 April. The Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision on 16 May.  The applicant applied to the Court for review of the Tribunal’s decision on 19 May.  The Refugee and Immigration Legal Centre assisted the applicant in preparing his application, but at no stage has he had legal representation.

   EVIDENCE BEFORE THE TRIBUNAL

2. Before the Tribunal the applicant gave evidence that he was imprisoned in 1983 for participating in anti‑revolutionary movements, and complaining about the treatment of his parents, who were deemed by the authorities to be anti-revolutionary and subjected to mistreatment and humiliation because two of the applicant’s uncles had moved to Taiwan.  The applicant claimed to have been sent to a labour farm for two years. At one stage at the farm he was tortured when he was unable to work.  At the farm the applicant met Chen Cun Yong (“Chen”), with whom he shared a pro‑democratic outlook.  After his release from the labour farm the applicant returned to his home area where he worked as a teacher for three years.  The applicant stated that he accompanied Chen to various locations during the spread of pro-democracy activities through China in 1989.  He returned to his former university where he lectured on “the importance of human rights and the status of democracy.”  The applicant and Chen became the leaders of the pro-democracy movement in the Fuzhou area, recruiting both students and workers and organising demonstrations, speeches and strikes.  The day before the Tiananmen Square Massacre of 4 June 1989 the applicant attended a demonstration in Fuzhou, but did not otherwise attend public rallies.  After the massacre, upon being informed that his name was on an arrest list, he fled to Shanghai and hid.  His house was searched and his belongings were confiscated. Chen left China for Japan.

3. In 1994 the applicant’s uncle returned from Taiwan and told him the only way he could save his life was to flee the country.  In March 1994 the applicant left Fuzhou airport where his family had bribed an official to obtain an exit visa.  The applicant claimed he arrived in Australia seeking only temporary shelter.  He said he did not know he could make an application for a protection visa in Australia, nor did he feel he could express his experiences sufficiently.  The applicant stated that when Chen returned to China from Japan in 1998 he was arrested and is still in gaol.  The applicant claimed the police had visited his wife in early April 2000 to try and ascertain his location.  He stated he was frightened to return to China because of what might happen to him once the authorities knew of his presence.

   THE TRIBUNAL’S FINDINGS

4. The Tribunal accepted that the applicant’s parents were classified as anti‑revolutionary, and that they were mistreated and humiliated.  However his family had been “rehabilitated” and he was able to attend university and work as a teacher in a government school.  Because of this, the Tribunal found that the applicant’s family background was not considered relevant by the Chinese authorities in their dealings with him.  The Tribunal concluded that were the applicant to return to China he would not face a real chance of persecution because of his membership of a particular social group (anti‑revolutionaries), or this ground in combination with any other.

5. The Tribunal found that the pro-democracy movement in Fujian was very low key, and confined to a small group of intellectuals and students.  It accepted that the applicant had an involvement in the pro‑democracy movement, but found that his claims that he organised demonstrations and led the student and workers’ unions were embellished.  The Tribunal found that the demonstrations to which the applicant referred were led by students rather than former students, and that the information provided to the Tribunal by people who had lived in Fujian province at the time of the Tiananmen Square massacre contradicted the account given by applicant.  Whereas the applicant claimed to have organised a demonstration the day before the massacre (ie on 3 June), and said that no demonstration occurred afterwards, the information provided to the Tribunal did not report a demonstration prior to the massacre, but did report one afterwards.  The Tribunal found the applicant was “a low-profile participant who attended one demonstration prior to 4 June and had [no] leadership role in arranging pro-democracy activities.” It further found that if he had been on an arrest list it would not have been possible to bribe an official.  Helping a known dissident leave the country would have jeopardised the official’s job.  Material before the Tribunal indicated that China had stopped persecuting low‑profile participants in the pro‑democracy movement by around 1992, and was concentrating on “those who are now expressing dissent, together with certain minority groups” to which the applicant did not belong.  This finding, it was said, was consistent with the applicant’s legal departure from China in 1994.  The Tribunal found that if Chen had been jailed in 1998 upon his return from Japan, “he must have done something more than participate in 1989 like the applicant”.  The Tribunal was satisfied that if the police were still asking after the applicant, it was not because of his participation in the pro-democracy movement.

6. The applicant did not apply for a protection visa until he was in detention, having been located six years after his visa had expired.  The applicant told the Tribunal that he read the Chinese newspapers published in Australia.  In view of that the Tribunal found it not credible that he didn’t know he could apply for protection.  During the six years he was in Australia, he renewed his Chinese passport.  His delay in applying for refugee status and the renewal of the passport indicated that his fears of persecution were not as profound as he claimed.

   GROUNDS OF REVIEW

7. As mentioned earlier, the applicant did not have the benefit of legal representation.  The ground of review in his application to the Court was simply that he could not safely return to China.  In his address to the Court he stated that he was currently waiting for documents to be sent to him from his sister in China, including photos of his participation in pro-democracy rallies.  Such documentation would provide further evidence that he was an organiser of the pro‑democratic movement.  I explained that in reviewing the Tribunal’s decision the Court was restricted to determining whether the Tribunal erred in some reviewable way on the evidence before it, or whether it made some mistake of law or procedure.  The applicant accepted that it was very difficult for the Tribunal to believe him on the evidence before it.

8. I have considered whether there are any tenable grounds upon which a review could be based.  I can find no indication that the Tribunal has failed to follow any of the prescribed procedures.  It made findings on all material facts and referred to the material on which the findings were based.  It gave reasons for its decision which, as the applicant conceded, enabled him to understand why the Tribunal rejected his application.  The Tribunal correctly instructed itself as to the law.  There is no suggestion of actual bias on the Tribunal’s part.  There was evidence, to which the Tribunal referred, that justified the making of the decision.

   CONCLUSION

9. The application must be dismissed, and the applicant must pay the respondent’s costs of the application.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Associate:

Dated:             2 August 2000

The applicant appeared in person.
Counsel for the Respondent:	W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 July 2000
Date of Judgment:	2 August 2000