He v Minister for Immigration and Multicultural Affairs

[2001] FCA 1122

FEDERAL COURT OF AUSTRALIA

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1122

MIGRATION – review of decision of Refugee Review Tribunal (“Tribunal”) – where Tribunal found that the applicant’s inability to obtain government employment did not constitute persecution – whether error of law – consideration of circumstances in which denial of government employment will constitute persecution

Migration Act 1958 (Cth) s 476(1)(e)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233 followed
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 followed
Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 74 ALJR 1556 at [55] followed
Chen v Minister for Immigration and Ethnic Affairs (1995) 58 FCR 96 at 104 followed
Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 267-8 followed

JIE HE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 924 of 2001

STONE J
15 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 924 OF 2001

BETWEEN:	JIE HE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	15 AUGUST 2001
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 924 OF 2001

BETWEEN:	JIE HE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	15 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of China who, after arriving in Australia on 15 April 2000, applied for a protection visa. Her application was refused by a delegate (“Delegate”) of the respondent (“Minister”) and the Refugee Review Tribunal (“Tribunal”) handed down a decision affirming the Delegate’s decision on 10 May 2001. On 12 June 2001, the applicant commenced proceedings in this Court seeking review of the Tribunal’s decision. An amended application was filed on 8 August 2001.

   TRIBUNAL’S DECISION

   Applicant’s claims

2. The applicant had claimed that she had a well-founded fear of persecution because she was a follower of Falun Gong and because she had left China to go to the “west”. Before coming to Australia, the applicant had lived and worked in Ningbo, Zhejiang province.  She informed the Tribunal that, after she became a member of Falun Gong in 1998, she had difficulties with the authorities and, in December 1999, was dismissed from her job in the government factory where she worked. She claimed that it was difficult to find work because no government workplace would employ her. Despite this, in the same month, she found work as a quality controller for a private company with the help of family friends. Significantly, in this position she was paid 1,500 yuan per month compared with 700 yuan in her previous position. 

3. The applicant claimed that she had a deep involvement with the Falun Gong movement. She initially claimed that when the spiritual leader of the movement, Master Li, visited Ningbo in 1999, she assisted him during his public appearances. When the Tribunal put to her that by 1999 Master Li had permanently resettled in the United States she admitted that she had never met him and stated that she was nervous and confused during the hearing and made mistakes. The applicant claimed to have participated in public Falun Gong activities when she first arrived in Australia but did not provide any details. She said that she ceased to practice in public when told by her parents that practitioners in China had been arrested and persecuted.

   Tribunal findings

4. The Tribunal accepted that the applicant had a peripheral involvement in the Falun Gong movement. It did not accept, however, that the applicant was a committed Falun Gong practitioner. It described that claim as lacking credibility and said that, if the applicant was as interested in Falun Gong as she claimed, she would have expressed her interest by “participating in some of the many Falun Gong activities in this country”.

5. On the basis of the independent evidence before it, the Tribunal was of the view that the Chinese government’s treatment of Falun Gong activists arose out the group’s protest activities rather than its quasi-religious nature. Accordingly, it considered whether the Chinese government would have attributed an adverse political opinion to the applicant because of her association with Falun Gong. In this regard, the Tribunal noted that the applicant had never been of interest to the authorities prior to leaving China and could not be described as a leader or activist. Independent evidence suggested that individuals who practice Falun Gong discreetly in their homes, as the applicant had done soon after arriving in Australia, are not targeted by the Chinese government. It concluded that the applicant did not have a well-founded fear of persecution merely because of her involvement in the Falun Gong movement.

6. The Tribunal then considered whether the applicant might face persecution because she had left China to go to the “west”. The Tribunal referred to independent evidence to the effect that even those who departed China illegally did not face any difficulties on their return. The Tribunal concluded that the applicant, who had departed legally and without difficulty, would not be persecuted for this reason.

7. Finally, the Tribunal considered the applicant’s claim that she was discriminated against by being dismissed from her work unit for being a Falun Gong practitioner and being denied employment in government enterprises. The Tribunal accepted that the applicant’s dismissal was discriminatory but noted that discrimination will amount to persecution only in certain circumstances. As the Tribunal’s conclusion on this issue was crucial to the appliicant’s challenge to the Tribunal’s decision, I shall set out the Tribunal’s reasoning in full:

   “The Tribunal accepts that the applicant’s dismissal by her work unit was discriminatory. However, the Tribunal noted that even ‘pro-democracy activists’ have ‘been allowed to become involved in trade and economic pursuits without hindrance from the government’ if they refrain from further activities against the government … Other information from external sources cited above, regarding the changing nature of employment in China, indicates that unemployment is a widespread problem in China due to economic conditions.  It appears that an increasing number of state workers have been retrenched or placed on indefinite leave because they can no longer be retained by unprofitable government enterprises. It appears that economic factors, in the contest of China’s increasingly capitalist economic structure, has led to widespread unemployment throughout the country as the government is unable to employ the entire population as it did previously. Many PRC citizens have to compete for employment in the private sector and those conditions will also apply to the applicant in the future. Nevertheless, it is the view of the Tribunal that denial of government employment does not amount to persecution if other employment options are available. Information from external sources cited above indicate that increasingly PRC citizens have such employment options and those options will be available to the applicant when she returns to China. The applicant’s own experience indicates that when she was dismissed by her work unit she immediately found employment in the private sector. Therefore, the Tribunal is not satisfied that the applicant was subjected to persecution, or that she will suffer persecution in the future, because her work unit dismissed her.”

8. The Tribunal affirmed the decision of the Delegate not to grant a protection visa.

   GROUNDS OF REVIEW

9. The amended application for review lists four grounds of review. At the hearing, Mr Atkin, counsel for the applicant, pressed only one ground, namely that:

   “The Tribunal in breach of Section 476(1)(e) failed to consider and determine what conduct amounted to persecution and to consider whether the discrimination suffered by the applicant (which was found to exist) amounted to persecution."

10. Although persecution always involves discrimination (Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233), the converse is not true. Even if discrimination occurs for a Convention reason it will not amount to persecution unless it involves, “some serious punishment or penalty or some significant detriment or disadvantage”; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 388 per Mason CJ. In Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 74 ALJR 1556 at [55], McHugh J (dissenting) made the following comment:

    “Persecution involves discrimination that results in harm to an individual. But not all discrimination amounts to persecution. With the express or tacit approval of the government, for example, some employers may refuse to employ persons on grounds of race, religion or nationality. But discriminatory though such conduct may be, it may not amount to persecution. Other employment may be readily available. The Convention protects persons from persecution, not discrimination. Nor does the infliction of harm for a Convention reason always involve persecution. Much will depend on the form and extent of the harm. Torture, beatings or unjustifiable imprisonment, if carried out for a Convention reason, will invariably constitute persecution for the purpose of the Convention. But the infliction of many forms of economic harm and the interference with many civil rights may not reach the standard of persecution.”

11. McHugh J’s comments about the relevance of the extent and nature of the harm suffered is consistent with the comments of the Full Federal Court in Chen v Minister for Immigration and Ethnic Affairs (1995) 58 FCR 96 at 104, that the denial of access to employment could constitute persecution, “if that denial is arbitrary and indefinite and part of a process of harassment by authorities for the purpose of suppressing political dissent”. Ms Abadee, counsel for the respondent, referred me to similar views expressed by Hill J in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 267-8 where his Honour stated:

    “Discrimination in employment may constitute persecution in the relevant sense if for a Convention reason. However, whether it does so depends on all the circumstances. Clearly, in an economy where there was no private enterprise at all, inability to obtain government employment for a convention reason would constitute discrimination because that would constitute an “act of oppression”… If, on the other hand, there existed a mixed economy, so that government employment merely competed with private employment and exclusion from government employment would not result or be likely to result in the person seeking work being unable to obtain appropriate work and thus an appropriate living, then it is hard to see that the refusal to permit employment would constitute persecution. That would not be oppressive, at least to any significant extent. Thus generally, whether restriction on employment amounts to persecution in a Convention sense will depend upon all the circumstances, and particularly upon whether there can be said to be oppression or real harm to the person.” (emphasis added)

12. Mr Atkin referred to the Tribunal’s comments concerning employment opportunities in China. These comments are quoted at [7] above. He submitted that these comments, in particular those concerning increasing competition for employment in the private sector, showed that the restriction on employment which the applicant suffered was sufficiently oppressive to amount to persecution. Ms Abadee, on the other hand, pointed to the fact that the applicant had been able to find employment (at a greatly increased salary) in the private sector within weeks of being dismissed from her government position. Mr Atkin’s response was that this employment had been secured with the help of family friends and therefore was not of great significance.

13. I have described the above exchange between counsel because it highlights the issue here. In my opinion, it shows that the applicant’s real complaint is about the relative weight that the Tribunal attributed to the independent information about employment opportunities in China and the applicant’s employment history. I do not accept the applicant’s submissions that the Tribunal failed to consider the nature of persecution in the present case. The passage quoted at [7] above shows that the Tribunal correctly directed itself as to the circumstances in which denial of employment opportunities can constitute persecution. It considered the applicant’s experience and found that it did not constitute persecution. Even if the Tribunal was in error in assessing the effect on the applicant of being unable to obtain government employment, the error was not an error of law and is not reviewable by this Court.

14. For these reasons the application must be dismissed with costs. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             15 August 2001

Counsel for the Applicant:	Mr J Atkin
Solicitor for the Applicant:	Coroneos & Company
Counsel for the Respondent:	Ms N Abadee
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 August 2001
Date of Judgment:	15 August 2001