Liu v Minister for Immigration and Multicultural Affairs

[2001] FCA 1696

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 1696

YUN SEN LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 629 OF 2001

DRUMMOND, NICHOLSON and SUNDBERG JJ
22 NOVEMBER 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 629 OF 2001

BETWEEN:	YUN SEN LIU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, NICHOLSON and SUNDBERG JJ
DATE OF ORDER:	22 NOVEMBER 2001
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

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	V 629 OF 2001

BETWEEN:	YUN SEN LIU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	DRUMMOND, NICHOLSON and SUNDBERG JJ
DATE:	22 NOVEMBER 2001
PLACE:	MELBOURNE

EX‑TEMPORE REASONS FOR JUDGMENT

1. This is an appeal from the decision of Goldberg J who dismissed the appellant’s application for review of a decision of the Refugee Review Tribunal affirming the respondent’s decision not to grant the appellant a protection visa.  The background to the appeal and the relevant facts are set out in the primary judge’s reasons and in more detail in the decision of the Refugee Review Tribunal.

2. The Tribunal summarised the way in which the appellant put his case for refugee status as follows:

   “The applicant presented written and oral evidence describing past treatment that he believes amount to persecution.  He has described his being sent to the country as a teenager during the Cultural Revolution and the resultant lack of educational opportunities.  He has provided information about the impact of China’s ‘one child policy’ on him.  He has told of his activities in relation to the ‘pro‑democracy’ movement in 1989 and the consequences for him in terms of his suspension of membership of the Communist Party.  He has described how he was ‘laid off’ from the state enterprise in which he worked and attributed this as being further punishment for his 1989 activities.  He stated that he had difficulties getting approval for a passport during 1992 and 1993.  He has also claimed that he will be persecuted on his return because of the length of his absence and some incorrect details as to his employment on his passport application.  He claims that punishment for him will be more severe for him because he was a member of the Communist Party and would therefore be seen as disloyal in having applied for refugee status in Australia.”

3. The Tribunal addressed each of these claims.  It accepted that the appellant had been sent to the countryside to work during the Cultural Revolution and that he consequently missed educational opportunities he might otherwise have had.  However it noted that most of the appellant’s generation were affected by the Cultural Revolution including many in recent and current leadership positions.  The Tribunal found that the policies pursued at the time of the Cultural Revolution are no longer pursued.  The Tribunal concluded that the appellant did not have a well‑founded fear of persecution based on his treatment and any record of it during the time of the Cultural Revolution.  The Tribunal referred to independent information (set out at page 15 of its reasons) upon the basis of which these findings were made.

4. The Tribunal found that the claim based on China’s one child policy did not constitute persecution for a Convention reason.  It had earlier referred to Applicant A v The Minister (1997) 190 CLR 225. It also noted that the application of the policy to the appellant and his wife occurred more than sixteen years ago and there was no evidence to suggest any ongoing repercussions for him from the authorities because of his attempts to overturn the ruling that the foetus be aborted. Furthermore it recorded that at the hearing the appellant had accepted that he would not be persecuted on this basis were he to return.

5. The Tribunal did not accept that the appellant suffered detriment while in the army in not being allowed to extend his term or be promoted.  The Tribunal referred to independent material upon which these findings were based.  In addition it found that even if the applicant suffered some sort of detriment due to his loyalty to the late Zhou Enlai, this did not amount to persecution.  Nor were there any ongoing repercussions for him as a result of his experiences in the army.

6. While the Tribunal accepted the appellant’s account of his treatment as a result of his activities in 1989 at the time of the pro‑democracy rallies, it did not accept that his loss of regular employment was political persecution.  Rather, the Tribunal found his dismissal from a State‑run factory was due to economic change in the country.  At pages 20 to 23 of its decision the Tribunal set out material relating to the reasons for lay‑offs from State enterprises upon which this conclusion was based.

7. Finally, the Tribunal did not accept that the appellant would be persecuted for the manner in which he left China or because he applied for refugee status.  There was material, which the Tribunal set out at pages 23 to 26 of its reasons, that supported this conclusion.

8. The primary judge said that because the appellant had no legal representation, he had examined the Tribunal’s reasons and the material presented by the appellant to see whether there was any available ground of review under s 476 of the Migration Act 1958. His Honour was unable to find any. He concluded his judgment as follows:

   “The applicant submitted that the Tribunal had only paid lip service to the human rights provisions which it was bound to apply.  I reject that submission.  A close reading of the Tribunal’s reasoning shows that the Tribunal paid proper regard to the criterion for a protection visa, namely whether Australia had protection obligations to the applicant under the Convention.  The Tribunal, in its reasons, referred to the relevant statutory provisions applicable to the application before it and a number of the legal principles which it was bound to apply.  The Tribunal did not misdirect itself in relation to the applicable legal principles.  As I have noted, the Tribunal set out the applicant’s claims and evidence in considerable detail, including substantial passages from written statements provided by the applicant.  The Tribunal identified the specific claims by reference to which the applicant claimed to be the subject of persecution and claimed to have a well‑founded fear of persecution because of his political opinion or his imputed political opinion.  It is apparent from the Tribunal’s reasons that it put to the applicant issues which were relevant to the claims made by the applicant.  I refer, by way of example, to the passage in the Tribunal’s reasons where it said:

   ‘The Tribunal put to the applicant that the practices and policies of the Cultural Revolution were repudiated by the Chinese Government in 1978 and that persons were no longer persecuted because of events that occurred between 1966 and 1976.’

   The Tribunal made specific findings in relation to those matters upon which the applicant relied for his claim to have a well‑founded fear of persecution.  It was open to the Tribunal upon the material before it to make such findings and no error has been disclosed in the Tribunal’s reasoning which would give rise to a ground of review under s 476 of the Act.”

9. On appeal the appellant was again unrepresented.  His notice of appeal does not identify any appealable error on the part of the primary judge.  In written and oral submissions the appellant substantially repeated the matters he had put to the Tribunal ‑ the pro‑democracy protests in 1989, on‑going persecution of those behind the protests, the Cultural Revolution, and persecution of those who have applied for refugee status.  Because he was unrepresented we have considered for ourselves whether the primary judge made any errors that would sustain an appeal.  We have found none.

   In opening his case the appellant stressed that he was at a disadvantage because he did not understand the documents he had been presented with by the respondent or indeed other court documents.  However in the course of the presentation of his case he handed up a document containing what he called amended grounds of appeal.  Although it is not in proper form, the contentions in it are expressed in a sophisticated legal fashion, taking into account the law as decided in Yusuf, a case decided after the decision under appeal.  It is clear that whatever the appellant’s own disadvantage, he had access to informed legal advice.

   The appeal must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Nicholson and the Honourable Justice Sundberg.

Associate:

Dated:             22 November 2001

The appellant appeared in person.
Counsel for the Respondent:	Daniel Star
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 November 2001
Date of Judgment:	22 November 2001