Lin v Minister for Immigration & Multicultural Affairs

[1999] FCA 1793

FEDERAL COURT OF AUSTRALIA

Lin v Minister for Immigration & Multicultural Affairs [1999] FCA 1793

Migration Act 1958 (Cth), s 476(1)
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, followed.
Minister for Immigration and Multicultural Affairs v Zamora (1998) 51 ALD 1, followed.

YIBIAO LIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 750  of  1999

JUDGE:        SACKVILLE J

PLACE:        SYDNEY
DATE:          20 DECEMBER 1999

NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 OF 1999

BETWEEN:	YIBIAO LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE
DATE:	20 DECEMBER 1999
PLACE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed.

2.   The applicant pay the respondent’s costs of the proceedings.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 750 OF 1999

BETWEEN:	YIBIAO LIN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE
DATE:	20 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application, filed on 4 August 1999, to review a decision of the Refugee Review Tribunal (“RRT”) given on 30 June 1999.  The RRT affirmed a decision of a delegate of the respondent (“the Minister”) to refuse to grant the applicant a protection visa.

2. The applicant is a citizen of the People’s Republic of China (“PRC”).  He is aged about thirty three and is from Fujian Province.  He has a wife, whom he married in early 1992, and three children.  According to the RRT, his family remains in China.  The applicant travelled to Australia on a passport which was issued in Fujian Province in January 1996.  He arrived in Australia on 6 September 1996, but did not apply for a protection visa until 2 October 1998.

3. On 20 October 1998, the Minister’s delegate refused to grant a protection visa and on 23 November 1998 the applicant sought review of that decision in the RRT.  The applicant made written submissions to the RRT, apparently with the assistance of a migration adviser.  He also gave oral evidence, with the assistance of an interpreter, at the RRT hearing, held on 1 June 1999. 

   Legislation

4. Under s 65(1) of the Migration Act 1958 (Cth) (“Migration Act”), the Minister may grant a visa only if satisfied that the criteria prescribed by the Migration Act or the Migration Regulations have been satisfied.  A criterion for the grant of a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Convention: Migration Act, s 36(2). That criterion for a protection visa is fulfilled where, at the time of the decision, the Minister “is satisfied that the applicant is a person to whom Australia has protection obligations under the [Convention]”: Migration Regulations 1994 (Cth), Sch 2, reg 866.221.

5. Article 1A(2) of the Convention defines a refugee as a 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.”

   The Applicant’s Claims

6. There were some significant differences between the claims advanced by the applicant in his initial application and those put forward by him in his oral evidence.  In summary, his claims as put to the RRT were as follows:

   ·     The applicant had served in the army from 1987 to about 1991.  He had been punished in 1989 for expressing his unhappiness about being posted to Beijing.  His punishment took the form of him being forced to spend some two months at a prison farm.

   ·     After his marriage, the applicant and his wife moved to a town called Sanshui, near Guangzhou in Guangdong Province.  He worked as a builder in Sanshui.

   ·     Their first child, a daughter, was born in Sanshui in June 1993.  A second daughter was born in Sanshui in November 1994 and a third child, a long awaited son, was born in the same town in December 1995.

   ·     The applicant’s wife had been pressed to have a sterilisation operation nine days after the birth of the second child.  Family planning officials had travelled from the applicant’s home town in Fujian Province (about 1,000 kilometres away) to look for the applicant and his wife.  The threat from these officials was averted because the officials were paid some money, and also because the applicant’s wife had told them untruthfully that the second child had been their first.

   ·     The applicant had been arrested in 1995 and detained for a month because he and his wife had three children.  A fine of 28,000 yuan had been imposed, but had not been paid by the applicant.

   ·     The applicant had established a self-protection organisation in his home town of Shouzhan, with the goal of stopping persecution or mistreatment of innocent children and protecting people wishing to have more than one child. The applicant claimed to be a principal organiser of this organisation and that he had been arrested shortly after its first meetings.  The organisation had been responsible for distributing leaflets around Shouzhan.

   ·     The applicant had left the PRC shortly after the birth of his son, when people told him he was about to be arrested again.  He went first to Hong Kong, then Saipan (a dependency of the United States) and ultimately to Australia.  His journey had been financed by moneys borrowed by his brothers.

   ·     The applicant said that he feared returning to the PRC because of the fine imposed by reason of the birth of the third child (which he was not able to pay); because of his opposition to policies limiting the rights of extra children born to couples in the PRC; and because he had objected to being posted to Beijing whilst in the army.

   The RRT’s Reasons

7. The RRT accepted certain of the applicant’s claims.  These were that the applicant and his wife had three children because they wanted a son; that they avoided family planning officials by paying a bribe; that they had been fined 28,000 yuan for violating the one-child policy; that the applicant’s wife had been sterilised after the birth of the third child; and that he and others had protested about the denial of rights to children born outside policy parameters, by handing out leaflets and posting notices.  The RRT also accepted that the applicant had been punished whilst in the army, as he had claimed.

8. The RRT considered, however, that the applicant was not telling the truth on a number of important issues.  It did not accept his claims that Fujian family planning officials had travelled 1,000 kilometres to seek him out; nor that he had established the organisation for the protection of children; nor that he had been detained for a month for distributing leaflets or posting notices; that the police were seeking him in the PRC; nor that his reason for not lodging an application for a protection visa until two years after his arrival in Australia was (as he claimed) that he thought that the Australian Government was of the same character as that of the PRC and that therefore he was too frightened to apply for a visa.  The RRT gave reasons for rejecting each of these claims made by the applicant.

9. The RRT then considered whether the facts as found by it gave rise to a well-founded fear of persecution for a Convention reason.  It found that the fine of 28,000 yuan had not been imposed on the applicant for a Convention reason.  The only possible Convention reason which could be invoked was the applicant’s membership of a particular social group.  But the High Court’s decision in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 precluded the applicant from establishing that he faced persecution for reasons of membership of a particular social group.

10. So far as the applicant’s protests in the PRC were concerned, the RRT did not consider that the authorities in the PRC would have any interest in pursuing him because of his actions.  Even if the applicant were to engage in similar activities on his return, the authorities’ interest in him would not be engaged.  There was therefore no real chance that he would face persecution because of what he had done shortly after the birth of his third child.  Similarly, there was no real chance that the applicant would face any harm on his return to the PRC by reason of the events which had occurred in the army in 1989.  The applicant had left the army normally and had not been subjected to any further penalties in the intervening period.

11. Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

    Reasoning

12. The application for review filed in this Court does not identify any ground of review of the RRT’s decision that is available under s 476(1) of the Migration Act. Understandably, the unrepresented applicant was not able to articulate any such ground in his oral submissions.

13. To the extent that the applicant intends to challenge the RRT’s findings of fact, that challenge gives rise to no reviewable error.  The RRT correctly acknowledged that the task of fact-finding must take account of the fact that individuals can be bewildered and confused about the refugee determination process.  It went about its task carefully and gave reasons for each of its critical findings of fact.  Those findings were open to it.

14. Nor did the RRT err in its consideration of whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group.  The only relevant social group to which the applicant could claim to belong is those who have had more than one child in contravention of the PRC’s one child policy and who fear sanctions by reason of that fact.  However, a group defined in these terms is not a “particular social group” for the purposes of the Convention.

15. This is so for two independent reasons:

    ·     First, a “particular social group” cannot be defined by reference to feared persecutory conduct.

    ·     Secondly, it is necessary that such a group must be recognised within the society as a group that is set apart from the community, otherwise than by the enforcement of a policy which applies generally.  There appears to have been no evidence before the RRT that would have supported a finding that the group was so identified.

    Both reasons flow from the holdings of the majority in Applicant A. 

16. Dawson J (at 242) considered it:

    “obvious… that the characteristic or element which unites the group cannot be a common fear of persecution.  There is more than a hint of circularity in the view that a number of persons may be held to fear persecution by reason of membership of a particular social group where what is said to unite those persons into a particular social group is their common fear of persecution.  A group thus defined does not have anything in common save fear of persecution, and allowing such a group to constitute a particular social group for the purposes of the Convention ‘completely reverses the statutory definition of Convention refugee in issue (wherein persecution must be driven by one of the enumerated grounds and not vice versa)’.”

    His Honour also observed (at 243) that if a persecutory law or practice applies to all members of society it cannot create a particular social group consisting of all those who bring themselves within its terms.  Dawson J continued (at 243):

    “In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large.  It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it.  Rather, the persecution is carried out in the enforcement of a policy which applies generally.  The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms.  The only recognisable group to which they can sensibly be said to belong is the group comprising those who fear persecution pursuant to the one child policy.  For the reasons I have given, that cannot be regarded as a particular social group for the purposes of the Convention.”

    See also at 263-264, 269, per McHugh J; at 285-286, per Gummow J.

17. The effect of Applicant A was summarised by a Full Court of this Court in Minister for Immigration and Multicultural Affairs  v Zamora (1998) 51 ALD 1, at 6-7:

    “In our view Applicant A’s case is authority for the following propositions.  To determine that a particular social group exists, the putative group must be shown to have the following features.  First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group.  Second, that characteristic must set the group apart, as a social group, from the rest of the community.  Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.”

    These propositions are fatal to any claim the applicant might have sought to make that he feared persecution by reason of his membership of a particular social group.

    Conclusion

18. The applicant has not established any ground that would justify the Court in setting aside the decision of the RRT.  This application should be dismissed, with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            20 December 1999

Counsel for the Applicant:	Unrepresented
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 December 1999
Date of Judgment:	20 December 1999