Hui v Minister for Immigration and Multicultural Affairs

[1999] FCA 1148

FEDERAL COURT OF AUSTRALIA
Hui v Minister for Immigration and Multicultural Affairs [1999] FCA 1148

FENG XUE HUI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N359 of 1999

WILCOX J
SYDNEY
10 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N359 of 1999

BETWEEN:	FENG XUE HUI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	WILCOX J
DATE:	10 AUGUST 1999
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

1. WILCOX J:  This is an application for review of a decision of the Refugee Review Tribunal refusing an application for a protection visa. 

2. The applicant, Feng Xue Hui, is a Chinese national.  He claims to fear persecution on the ground of his political opinion if he were returned to his native China.  At the hearing before the Tribunal, Mr Feng was assisted by a migration agent, Ms Christine Wang.  She also appeared for him today. 

3. The application for a protection visa failed, essentially, because the Tribunal felt unable to accept much of the factual material put before it by Mr Feng; in particular, his claims of political activity in China.  Mr Feng claims to have been a member, or at least a supporter, of the China Democracy Party, which has been recently formed in opposition to the ruling Communist Party of China. 

4. When the matter commenced today, Ms Wang indicated she wished to rely upon an affidavit sworn today which annexed certain documents.  I pointed out to her the affidavit should have been filed some time ago, if there was to have been compliance with directions I had made.  Notwithstanding this, I received the affidavit.  I wished to enable Ms Wang to put before the Court whatever might properly be put in support of the application. 

5. The bulk of the documents attached to the affidavit concern activities in which Mr Feng is said to have engaged since the date of the Tribunal decision.  These activities seem to be centred around meetings and protest activities in Australia, directed against the Chinese government.  I do not think this material is relevant to the function the Court has to undertake. As the events to which the material refers took place after the decision of the Tribunal, it is obviously impossible for it to be said that this material ought to have been taken into account by the Tribunal in making its decision.  However, it is worth observing that the Tribunal did accept that Mr Feng had involved himself in some political activities since his arrival in Australia.

6. Ms Wang’s major matter of complaint, in relation to the Tribunal's decision, is that the Tribunal failed to obtain sufficient “country information”.  Ms Wang said much of the “country information” referred to by the Tribunal was old and out of date; there was little about the Chinese Democracy Party. 

7. By “country information” I understand both the Tribunal member and Ms Wang to mean material concerning the general political situation in China, obtainable from authorities such as the Australian Embassy in Beijing, the American Department of State, other governments and international agencies.  It is commonplace for the Tribunal to obtain information of this nature, concerning the relevant country, in assessing applications for refugee status.

8. It appears from the Tribunal member's decision that she obtained a good deal of country information.  This included some information about the China Democracy Party.  It may be that, in an ideal world, more would have been useful; but it is not suggested the member failed to take account of any information that was put before her by Mr Feng or Ms Wang. 

9. In her reasons for decision, the Tribunal member dealt relatively briefly with the rise of the China Democracy Party.  In doing so, she quoted extensively from a report of the United States Department of State entitled Country Report on Human Rights Practices for 1998.  This report obviously avoids the criticism that it is three to nine years old, as Ms Wang said of some other material. 

10. The United States document makes it clear that there are in China relatively recently-formed opposition groups, including notably the China Democracy Party.  Mention is made of the detention, and subsequent gaoling for lengthy periods, of leaders of this Party.  The statement is also made, "Dozens of others were in detention or under tight surveillance."  Reference is also made to a statement by the National President, Li Peng, that "Groups that seek a multi-party system and try to negate the leadership of the Communist Party will not be allowed to exist."  I do not think any person who reads the extract from the United States document which was quoted by the Tribunal member would be left in any doubt that a person who was active in the China Democracy Party, and identified as such by the Chinese authorities, could expect to be detained, and possibly sentenced to a lengthy term of imprisonment. 

11. The difficulty Mr Feng faced in his refugee application was not that the Tribunal was unaware of the attitude of the Chinese Government towards members and supporters of the China Democracy Party, but rather that the member was unconvinced that he had taken any role, or at least any significant role, in the activities of that Party.  This was a finding of fact. It is not the function of the Court to determine whether or not that finding was justified. 

12. It seems to me there is no substance in the point that the Tribunal member failed properly to consider the relevant country material.  She was well aware of the position in China; as I say, the problem, from Mr Feng's point of view, is that she was not persuaded he was a person who would be affected by the attitude of the government.

13. The other matter raised by Ms Wang is a suggestion that the Tribunal member was biased.  This was mentioned at the directions hearing.  I was told the bias was apparent from the way in which the hearing was conducted and, in particular, the arrogant manner of the Tribunal member towards Mr Feng.  I pointed out to Ms Wang, at that time, that it would impossible for me to evaluate that claim without hearing the tape of the Tribunal hearing.  I suggested she endeavour to obtain access to the tape, in order that she could listen to it and make arrangements for the relevant sections to be available for playing at the hearing of this application.  Ms Wang did not do this.  Apparently she made some inquiries and was told it would cost $500.   I am not sure what this was for; possibly somebody thought the Tribunal was being asked to provide a transcript.  That was not what I intended.  In the result, the tape is not available.  So there is no way I can evaluate this claim.  No other basis for the suggestion of actual bias has been advanced.

14. It seems to me no ground of review is made out and the appropriate course is to dismiss the application.

    [There was discussion regarding costs.]

15. The order of the Court will be that the application be dismissed and the applicant pay the respondent's costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             10 August 1999

Migration Agent:	C Wang
Counsel for the Respondent:	R M Henderson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 1999