Lin v Minister for Immigration and Multicultural Affairs

[1999] FCA 573

FEDERAL COURT OF AUSTRALIA

Lin v Minister for Immigration & Multicultural Affairs [1999] FCA 573

JIAN PING LIN v MINISTER FOR IMMIGRATION

& MULTICULTURAL AFFAIRS

NG 1253 OF 1998

EMMETT J
30 APRIL 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1253 OF 1998

BETWEEN:	JIAN PING LIN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	EMMETT J
DATE OF ORDER:	30 APRIL 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed with 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	NG 1253 OF 1998

BETWEEN:	JIAN PING LIN Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EMMETT J
DATE:	30 APRIL 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. When this matter was called on today, there was no appearance for the applicant.  Counsel for the Minister of Immigration & Multicultural Affairs (“the Minister”) asked that I nevertheless proceed with the hearing of the matter.

2. The matter first came before me on 5 February 1999 when I directed the applicant to file and serve any affidavits or amended application upon which he intends to rely on before 26 February 1999 and I fixed the matter for hearing on 30 March 1999.  A facsimile communication was received by my chambers on 29 March 1999 purporting to attach a certificate by Dr Ming-Sum Lau to the effect that the applicant was suffering from back strain and that “he has been unfit for duty/school from 26 March 1999 to 9 April 1999”.  I would not have regarded that as satisfactory evidence for the purposes of an adjournment.  However, an adjournment was consented to on behalf of the Minister. 

3. I fixed the matter for hearing today.  My associate communicated with the applicant both by letter and facsimile communication.  There are in fact two letters, one to the address shown on the application and one to a post office box shown on the application.  I am satisfied that there is every reason to conclude that the applicant was aware of the hearing today.  Accordingly, I propose to deal with the matter. 

4. The applicant is a citizen of the People’s Republic of China and arrived in Australia as a visitor in February 1996.  He applied for a protection visa on 30 April 1996.  A decision was made by a delegate of the Minister on 12 May 1997 refusing the application.  An application for review of that decision was lodged with the Refugee Review Tribunal (“the Tribunal”) on 13 June 1997.  On 15 October 1998, the Tribunal affirmed the decision not to grant a protection visa.

5. This matter is an application for review of that decision of the Tribunal.  The application specifies the following grounds:

   “1AThat procedures were required by law to be observed in connection with the making of the decision and in connection with conduct for the purpose of making the decision were not observed.

   2AThat the decision involved errors of law.

   3AThat the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made.”

6. Particulars are then set out as follows:

   “(a)irrelevant considerations were taken into account in the exercise of the power,

   (b)there was a failure to take into account relevant considerations,

   (c)the decision involved the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case,

   (d)the decision involved an exercise of power in such a way that the result of the exercise of the power is uncertain,

   (e)the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.”

7. None of those grounds is open under section 476 of the Migration Act 1958 (Cth) (“the Act”). Particular (a) is contrary to section 476(3)(d). Particular (b) is contrary to section 476(3)(e). Particular (c) is not a ground referred to in section 476(1), nor is particular (d). Particular (e) is contrary to section 476(2)(b).

8. There is nothing on the face of the reasons to indicate any ground for review.  The Tribunal, in its reasons, indicated that the applicant’s evidence in his original application, in his various statements and at the hearing, was confused and contradictory.  The Tribunal considered that the inconsistencies in the evidence with regard to various details clearly affected the applicant’s credibility and the Tribunal did not consider that the applicant could be accepted as a witness of truth.

9. In his original application and in his various statements, the applicant claimed he was a Taoist.  He said that Taoism was forbidden in China.  The Tribunal’s reasons recalled that when it was put to him that Taoism was one of China's five official religions, he claimed that he in fact belonged to the sect Tien Tao, which he said was not permitted in China.  The Tribunal considered it inexplicable that the applicant would not have mentioned that in any of the statements which he presented in relation to his claims.

10. The information available to the Tribunal was to the effect that Tien Tao does not exist in China.  The Tribunal accepted that the applicant had some knowledge of Tien Tao but considered that he gained that from the books to which he referred at the hearing.  The Tribunal did not accept the applicant’s claim that he belonged to the Tien Tao sect in China, having regard to his failure to mention that detail in his original application or in any of his statements.  While the Tribunal accepted that the applicant is a Taoist, it did not accept that either he or his father had problems with the authorities in China by reason of their adherence to that religion as claimed by the applicant. 

11. The Tribunal did not accept that the applicant's father was in prison for eight years for his religious beliefs, as asserted.  Nor did the Tribunal accept that the applicant was warned in May 1988 by his work unit leader for reading religious books during breaks, as asserted.  The Tribunal did not accept that the applicant was detained on 20 May 1988 for a month, as asserted.  The applicant had asserted that he had been detained because he had gone out and tried to tell people what Tien Tao was.

12. The Tribunal considered that it was inexplicable that such supposed detention by the authorities (being the only occasion on which the applicant claimed to have been detained by the authorities) should have been omitted from all of the statements that the applicant provided both to the Department and to the Tribunal.

13. The Tribunal did not accept the applicant’s claim that in September 1988, when his family was holding a secret religious ceremony at their home, their home was surrounded and ransacked, their religious organisation banned and the members of the family given severe warnings.  Nor did the Tribunal accept the applicant’s claim that in September 1995, when his father had been holding some sort of religious gathering at their home, that they had been watched by the authorities.  The Tribunal did not accept the applicant’s assertion that he had to escape on that occasion by jumping from the first floor.

14. The Tribunal noted that after the alleged incident in September 1988, the applicant was nevertheless able to leave China for Japan travelling on a passport in his own name, and that after the incident in September 1995, he was again able to leave China in December 1995 travelling on a passport in his own name and then to re-enter China and to leave again in January 1996.  The Tribunal did not consider that it was credible that the applicant would have been able to travel in that fashion on a passport in his own name if he was wanted by the authorities as he claimed.

15. The Tribunal did not accept that the applicant was warned by the authorities when he left China by reason of his religious activities.  Nor did the Tribunal accept that he would be immediately arrested if he returned to China.  Having regard to the Tribunal's understanding of the situation of Taoists in China and the applicant's ability to travel freely in the past on a passport in his own name, the Tribunal concluded that the applicant had never been of any interest to the authorities by reason of his religious beliefs.  In consequence, the Tribunal did not accept that the applicant had a well founded fear of being persecuted by reason of his religious beliefs if he returned to China now or in the foreseeable future.

16. The Tribunal also rejected the applicant’s claim, made in his original application, that he had been denounced as a counter-revolutionary traitor in China.  The Tribunal did not accept his claim that if he were to return to China, he would be sent to do reform through labour or would be imprisoned because of his “open and continuous anti-CPC speeches and actions in China, in other countries and in Australia”.

17. The Tribunal found that there was nothing in the evidence before it to suggest that the applicant had been a political activist on the scale suggested by his statements.  The Tribunal relied on the advice of the Australian Department of Foreign Affairs and Trade (“DFAT”) that the Chinese authorities are only concerned with people who initiate organised activities opposing the government in an effective way, such as through large scale demonstrations.  There was nothing in the evidence before the Tribunal to suggest that the applicant had ever undertaken political activities of that nature and the Tribunal therefore did not consider that he had the well founded fear of being persecuted now or in the foreseeable future by reason of his political opinion.

18. The applicant also apparently suggested to the Tribunal, in his original statement, that he would be regarded as having “defected” to Australia by applying for refugee status and that he would therefore be imprisoned if he returned to China.  In a supplementary statement, the applicant suggested that he would be regarded as having betrayed “the motherland” by applying for refugee status and at the hearing before the Tribunal, he suggested he would be regarded as a traitor for that reason.  The Tribunal relied on DFAT’s advice that the Chinese authorities are well aware that most returnees are failed refugee claimants.  DFAT indicated that it is not aware of any cases where the fact that a person has applied for refugee status has resulted in the mistreatment of the person on return to China.  To the extent of any inconsistency, the Tribunal preferred the advice of DFAT to the assertions of the applicant.  The Tribunal therefore did not accept that the applicant would face a real chance of being imprisoned or otherwise mistreated by reason of having applied for refugee status in Australia.

19. The Tribunal accepted that the applicant and his wife suffered because they were not prepared to comply with China's family planning laws.  The Tribunal also accepted that the applicant blames the Chinese authorities for the fact that his daughter was born handicapped and died in 1997.  However, the Tribunal did not accept that any penalties that may have been imposed on the applicant and his wife by reason of their failure to comply with the family planning laws, amounted to persecution for a reason within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (“the Convention”).

20. Punishment of a non-discriminatory kind for contravention of a law of general application will not ordinarily constitute persecution.  The Tribunal considered that the only thing that sets the applicant and his wife apart from the rest of the Chinese community is their failure to comply with the law.  That in itself does not make them members of a particular social group for the purposes of the Convention and none of the other Convention reasons would appear to be relevant.

21. The Tribunal indicated that it had considered the totality of the applicant’s circumstances as a Taoist, as someone who the Tribunal accepted participated in activities opposed to corruption in his home town in Fujian and who gave money to support the students protesting in Beijing in 1989 and as someone who has breached the family planning laws in the past and has suffered the consequence.  However, even taking into account the cumulative effect of all of those circumstances, the Tribunal did not consider that the applicant has a fear of being persecuted for a Convention reason if he returns to China now or in the foreseeable future that is well-founded in the sense required by the authorities to which reference is made by the Tribunal in its reasons.

22. I do not consider that any of the grounds set out in section 476 of the Act has been established. Accordingly, the application should be dismissed with costs. I will direct the Minister to send a communication to the applicant, informing the applicant of the orders I have made and drawing the applicant’s attention to the provisions of Order 35 rule 7 subrule 2(a), which confers the power to set aside an order made in the absence of the party.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             30 April 1999

There was no appearance for the applicant.
Counsel for the Respondent:	V.A. Hartstein
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 April 1999
Date of Judgment:	30 April 1999