Li v Minister for Immigration and Multicultural Affairs

[1999] FCA 436

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs [1999] FCA 436

YING YUAN LI V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1100 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY

7 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1100 OF 1998

BETWEEN:	YING YUAN LI Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	7 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 14  September 1998, the Refugee Review Tribunal affirmed a departmental decision not to grant Ying Yuan Li a protection visa as it was not satisfied that he is a person to whom Australia owes protection obligations under the Geneva Convention on Refugees.  The applicant seeks a review of the Tribunal's decision on the bases that it did not set out in its reasons all the claims and evidence put to it by the applicant, that it did not allow him time to translate into English an 18 page document written in Mandarin, and that it ought to have considered that document.  He also asserts that the Tribunal made incorrect findings of fact. 

2. The applicant has appeared in person, assisted by a qualified interpreter.  In order to enable me to understand the basis of the attack on the Tribunal's decision, I allowed him to present to the Court, not only a technical attack on the Tribunal's decision, but the basis of his claim for refugee status, although it is not for the Court to determine factual issues and, except in exceptional circumstances, to determine refugee status itself.  This facility enabled the applicant to provide the Court with the substance of what was presumably in the 18 page document because he says that, as opposed to the generalities in his original application to the department for asylum, that document set out his case in detail.

3. Accordingly the applicant has addressed the Court for the best part of an hour on these matters.  Having heard what he has had to say, I have come to the clear conclusion that the Tribunal made no error of law in its determination such as to require review by the Court.  Furthermore, I have concluded that the applicant is not a person to whom refugee status or asylum in Australia should be granted. 

4. The facts of the matter are set out in the Tribunal's determination and there is no point in repeating them all now.  Moreover, despite the applicant's reliance upon his 18 page letter written in Mandarin, he has added no facts in his account today upon which the Tribunal might have taken a different view of his entitlement to refugee status.  It is therefore only necessary that I summarise the relevant history.

5. The applicant first came to Australia in December 1994 for a 10 day visit for unstated business purposes.  Upon his return to China, he suffered no harm from that visit other than a temporary problem arising out of an allegation by him that his foreman or chief of staff had taken a bribe.  This caused him to be excluded from work for about a month but he resumed his employment thereafter with no adverse consequences. 

6. He came to Australia for the second time in February 1996 on what was apparently a government sponsored trip, travelling on a Chinese Ministry of Foreign Affairs passport.  This hardly suggests that incidents involving the applicant before 1996 were such as to cause him a real fear of persecution.  This is relevant because part of his claim for refugee status is based upon hardship which he suffered during the cultural revolution and some persecution suffered at that time or shortly thereafter by his father and mother.  Even if these happenings could be regarded as providing grounds for a genuine fear of persecution within the meaning of the Convention, they could not found such a fear as at February 1996 and thereafter.

7. For the applicant to make a claim for Convention-based persecution on a political basis, something would have had to arise subsequently.  On the basis of the material before this Court, the only matter that could conceivably even come close to qualifying for this type of classification is that he would be persecuted because he has overstayed his visa in Australia, particularly if the Chinese authorities know, as they well might, that he had made this application for refugee status during the period of the overstay.

8. In this regard, the applicant claims that he sought an extension of his passport whilst in Australia but that the Chinese Embassy in Canberra refused the extension.  No grounds were given or could be imagined for the authorities’ failure to grant this extension, but it is impossible to read into it a form of persecution on any convention ground, particularly for political reasons as the applicant alleges. 

9. The Tribunal accepted the applicant’s assertion that after his second arrival here, he participated in a demonstration in Canberra which took place outside the Japanese Embassy, apparently against a stand taken by the Japanese government in relation to a dispute with Taiwan over an island in the adjoining sea.  China apparently concurred with Japan on this issue and the applicant claims that his participation would make him an object of interest to the Chinese authorities and would result in persecution if he was to return.

10. Assuming that the Chinese knew that he was a participant in the demonstration with the Japanese Embassy, I agree with the Tribunal that this matter alone would be insufficient to ground a finding that he would suffer persecution of any significance on a convention ground if he is returned to China.  So far as the overstay and the expiry of his passport are concerned, the Tribunal noted a provision in the law of the People's Republic that persons in possession of invalid papers when entering China will have their documents confiscated and will be issued warnings or detained for not more than five days, depending on the nature and degree of the offence.

11. It is not possible for the Tribunal to have found that this consequence would be political discrimination or persecution at all.  A country is entitled to have laws about its travel documentation.  I imagine that Australia has rules about people travelling on expired passports and there may be penalties associated with any attempt to do so.  Even if the applicant was detained in China for five days for travelling on an invalid passport, it could hardly be described as political persecution and, of course, is the result of his own actions and not of the government of China. 

12. I find that this case has no merit at all, that there is no basis for the applicant's claim that he is a refugee, and that the Tribunal's view was unquestionably correct.  The applicant did not, as I have previously noted, seek refugee status upon arrival in Australia, but did so at a later time, apparently when the convention provision was made known to him and he thought that it applied to him.  On no known basis could any aspect of the Refugees’ Convention be said to apply to Mr Li on the facts presented to the department, to the Tribunal and to the Court.  In the circumstances, there is no option but to dismiss his application.

    [After discussion]

13. The Minister, having succeeded in the appeal, has asked for costs.  There are cases in which, it seems to me, it would be particularly harsh to order costs, such as where a person has humanitarian merits but is unable to win a review for technical reasons but may be able to make an application for migration to Australian at a later time upon returning to his or her own country.  However otherwise acceptable, such an application cannot be granted if there is a debt to the Commonwealth such as the non-payment of the Commonwealth's legal costs even if caused by impecuniosity. 

14. In some cases this result would be unduly penal.  However, this applicant came to Australia twice for business purposes.  In other words, he came here to make money, either for himself or for someone else.  I can see no injustice flowing from an order for costs against him and every reason in the circumstances to make the order sought.  The application is 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 Marcus Einfeld AO.

Associate:

Dated:             7 April 1999

The applicant appeared in person.
Counsel for the Respondent:	Mr J. D. Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 1999
Date of Judgment:	7 April 1999