Liang v Minister for Immigration and Multicultural Affairs

[2000] FCA 1856

FEDERAL COURT OF AUSTRALIA

Liang v Minister for Immigration & Multicultural Affairs [2000] FCA 1856

LIANG GUANG RONG v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
V770 of 2000

GRAY J
14 DECEMBER 2000
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V770 OF 2000

BETWEEN:	LIANG GUANG RONG APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	GRAY J
DATE OF ORDER:	14 DECEMBER 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	V770 OF 2000

BETWEEN:	LIANG GUANG RONG APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	GRAY J
DATE:	14 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant has applied pursuant to s 476 of the Migration Act 1958 (“the Migration Act”) for a review of a decision of the Refugee Review Tribunal (“the RRT”).

2. The applicant is a citizen of the People’s Republic of China (“the PRC”). He arrived in Australia in the middle of 1996. On 18 July 2000, he lodged an application for a protection visa under the Migration Act with the Department of Immigration and Multicultural Affairs. On 7 August 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. The applicant lodged an application for review by the RRT on 8 August 2000. The RRT published its decision and its reasons for decision on 15 September 2000. It also rejected the applicant’s application.

3. Section 36(2) of the Migration Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Refugees Convention means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967: see s 5(1) of the Migration Act. Australia is a party to the Refugees Convention and the Refugees Protocol and has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Refugees Convention defines a refugee as any person who:

   “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. It was not disputed that the applicant is outside the country of his nationality, the PRC.  In both his application to the delegate of the minister and his application for review by the RRT, the applicant claimed that he feared persecution if he returned to the PRC because he had fathered five children, two boys and three girls.  The oldest, a son, was said to be twenty-one years old.  He and the second child, also a son, were raised by the applicant and his wife.  Each of the three remaining children, who were daughters, was given away for adoption within a few weeks of her birth.  The applicant claimed to fear persecution because of the application to him of the “one child policy” of the PRC.  He claimed that he had been subjected to huge fines and forced to flee his native Fujian province and to live in other provinces and other cities for several years.  He said that he and a friend had started a biscuit factory in Hubei province in 1995.  The business prospered into one employing sixty workers but local officials discovered the applicant’s background in Fujian and began to extort money from him.  His complaints to the provincial government resulted in him becoming more of a target for corrupt officials.  He travelled to Australia to escape.  He claimed to fear arrest and imprisonment because of his breach of the one child policy, and because of his complaint against corrupt officials, if he returned to the PRC.

5. The RRT received a written submission from the applicant’s solicitors and conducted an oral hearing at which the applicant gave evidence through an interpreter of the Mandarin language.

6. The RRT did not make a specific finding as to whether the applicant genuinely feared persecution.  It found that, even if he did hold a fear of persecution, it was not satisfied that the fear was well founded, or that, if well founded, the fear was of persecution for a reason falling within the Refugees Convention.  The RRT made findings adverse to the applicant on credit.  It pointed to inconsistencies between what the applicant told different interviewers, and also within the interviews themselves.  These inconsistencies concerned the details of his life, what happened to him after the birth of his children, the conduct of his business in Hubei province, an allegation that he had been kidnapped and an incident in which he had caused damage to the motor vehicle of an official of the Public Security Bureau.  The RRT accepted that it is possible that the applicant had fathered five children and that local authorities had discovered this and possibly fined him and his wife as a result.  It was not satisfied that a man living in Hubei province, whose wife lived in another province, who had an adult son he had not seen for many years and a teenage son at school in another province, and who had had no contact with three female children of whom he was not registered as the father and who were born between 1983 and 1987 in another province, would nowadays be persecuted by the PRC government for having breached family planning policy.  The RRT did not accept that the applicant would be sought by the Public Security Bureau for having damaged a vehicle, even if that incident did occur.  If he were charged with a criminal offence in respect of such damage, that would not amount to persecution for a reason specified in the Refugees Convention.

7. The RRT relied upon the fact that the applicant had lodged two earlier applications for protection visas which he had not pursued, had been detained three times by officers of the Department of Immigration and Multicultural Affairs, and had failed to honour an undertaking to leave the country voluntarily.  In so doing, the RRT followed Subramaniam v Minister for Immigration & Multicultural Affairs (Carr J, 10 March 1998, unreported).  In that case, his Honour held that the period of time elapsing between an applicant’s arrival in Australia and the lodging of a claim for refugee status is a matter the RRT is entitled to take into account in assessing the genuineness of a claim of fear of persecution.  It is not entirely clear for what purpose the RRT raised this question.  It said:

   “The Tribunal finds that the delays between the applicant’s arrival in Australia and the submission of his claims for refugee status, together with the circumstances under which he eventually submitted claims, is a further indication that the applicant does not have a subjective fear of persecution for a Convention reason.”

   As I have said, the RRT did not make a specific finding that the applicant did not have a fear of persecution.

8. On 9 October 2000, the applicant filed his application in this Court.  He was not represented by a solicitor.  The application is in the form of handwritten additions to a printed form derived from Form 56 in Sch 1 to the Federal Court Rules.  In explanation of why the applicant claims to be aggrieved by the RRT’s decision, the application said:

   “I expected the Australia (sic) government to give me protection from any chinese (sic) authority prosecution”

   The grounds specified in the application were:

   “because I can’t come back to china (sic) in safe condition”

9. At the first directions hearing on 13 November 2000, the applicant appeared in person. He was assisted by an interpreter of the Mandarin language. He informed me that he had not received a translation of the RRT’s decision into Mandarin. I endeavoured to explain to him that a review of the RRT’s decision by this Court was not simply an opportunity for him to tell his story again in the hope that it might be accepted. I requested that the interpreter translate the RRT’s decision and the reasons for it, and the provisions of s 476 of the Migration Act, into the Mandarin language for the benefit of the applicant, and adjourned the directions hearing to enable this to be done. When the directions hearing resumed, I was informed that the interpreter had acted as I requested. I then gave directions for the conduct of the proceeding in the following terms:

   “1.The Applicant have leave to file and serve an amended application on or before 24 November 2000.

   2.      The Respondent file copies of the Court Book on or before 1 December 2000.

   3.The matter be fixed for trial as soon as possible after 8 December 2000.”

10. The applicant did not file an amended application. Because the applicant is detained in custody, I fixed the proceeding for hearing today as a matter of urgency. The applicant has again appeared in person and has again been assisted by an interpreter. His submissions to me have not been referable to any of the grounds of review specified in s 476 of the Migration Act. He has endeavoured to persuade me of the genuineness of his application for refugee status.

11. It is not the function of this Court to consider afresh whether a person who claims to be a refugee is entitled to that status. Section 476 of the Migration Act makes for provision for the Court to review decisions of the RRT in such cases on grounds which are quite limited. In particular, the Court does not have the function of making findings of fact about a claim to refugee status.

12. I have read the decision and reasons of the RRT in this case closely. I am unable to detect any error of law of any of the kinds referred to in s 476(1)(e) of the Migration Act. It appears to me that there was evidence to justify the decision that the RRT made. So far as the findings of credit are concerned, there is no indication that the RRT misused its opportunity to assess the applicant’s credit. In particular, I can find no reason for believing that the RRT disbelieved the applicant because of any failure to appreciate that cultural differences may result in responses that are liable to give rise to a conclusion of untruthfulness. The curious reference to the applicant’s previous abortive applications for protection visas, his detention on three occasions, and his failure to honour an undertaking was not associated with any defect of reasoning on the issues on which the RRT did make findings. There was no suggestion of failure to follow correct procedures, want of jurisdiction in the RRT, lack of statutory power by the RRT, improper exercise of statutory power, fraud or bias.

13. Accordingly, I am bound to dismiss the application and to order that the applicant pay the respondent’s costs of the application.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:             15 December 2000

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	John Gibson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 December 2000
Date of Judgment:	14 December 2000