Liu v Minister for Immigration and Multicultural Affairs

[2001] FCA 622

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 622

MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection visa – whether ground of review under s 476(1) of the Migration Act 1958 (Cth) – applicant seeking merits review.

Migration Act 1958 (Cth): ss 36(2), 476(1)

YUN SEN LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
V 217 of 2001

GOLDBERG J
29 MAY 2001
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 217 of 2001

BETWEEN:

YUN SEN LIU
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

29 MAY 2001

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	V 217 of 2001

BETWEEN:	YUN SEN LIU Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GOLDBERG J
DATE:	29 MAY 2001
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

Introduction

1. The applicant has applied to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) (“the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 February 2001 affirming the decision of a delegate of the respondent (“the Minister”) not to grant a protection (class XA) visa to the applicant.

2. The applicant, a citizen of the People’s Republic of China (“China”), arrived in Australia on 5 October 1996 having been issued with a class UC temporary business subclass 456 visa.  The applicant was granted various extensions to his visa, the last of which expired on 21 July 1997.  He was taken into immigration detention on 6 December 2000.  He applied for a protection visa on 18 December 2000.  On 15 January 2001, a delegate of the Minister refused to grant the applicant a protection visa on the ground that the applicant did not satisfy the criterion that he was a non‑citizen in Australia to whom Australia had protection obligations under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).

3. Section 65 of the Act provides that if after considering a valid application for a visa, the Minister is satisfied as to specified matters and that the criteria prescribed by the Act or the Migration Regulations 1994 have been satisfied, then the Minister is to grant the visa. Section 36(2) of the Act provides:

   “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.”

   An applicant for a protection visa will meet this criterion if the applicant is a person who:

   “owing to a 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.”

4. The applicant was born on 26 July 1952 in Shanghai, he was married in 1980 and a daughter was born in 1982.  His wife and daughter remain in China.  Like many people in China he suffered during the cultural revolution and worked as a farmer between 1968 and 1973.  He joined the Chinese army in 1973 and was discharged in 1977.  He became a factory worker from 1978 until 1991 when he was dismissed and he remained unemployed until he came to Australia.

5. In 1983 his wife became pregnant and was forced to have an abortion due to China’s one child policy.  After this occurred the applicant was treated badly at work.  At the time the pro‑democracy and student movement developed in 1989, the applicant was living in Huzhou City.  In May 1989, the workers in his factory went on strike and supported the student movement.  The applicant participated in demonstrations.  As a result, he was told to submit a self‑criticism report to the party which he refused to do.  He was disciplined for his refusal and his salary was suspended whilst he was investigated.  He was then expelled from the Communist Party and was dismissed from his employment.  Thereafter, he was compelled to find cleaning and hard labouring work in order to live as his wife’s salary was very small.

6. In his application for a protection visa, the applicant said that if he returned to China he would be punished by the Chinese Government and the Communist Party because of his political beliefs and history of active participation in the student movement.  He also said that it would be regarded as significant that he had been absent from China for four years.

   The Tribunal’s reasoning

7. The Tribunal set out in some detail not only the applicant’s claims which had been made in his application for a protection visa, to which I have referred, but also the claims made by the applicant in a detailed written statement filed with the Tribunal.  For present purposes it is sufficient to summarise the claims set out by the Tribunal.  The applicant explained why he wanted to live in Australia and narrated the difficulties he had encountered during the cultural revolution, his army service and the difficulties he and his wife encountered after his wife was forced to have the abortion in 1984.  The applicant explained his participation in the student movement uprising in May and June 1989 and the consequences his participation had in relation to his employment.  He said that he was deprived of the right to work in 1991 when he was only 38 years old. 

8. The Tribunal held a hearing on 13 February 2001 at which the applicant was present and was assisted by a Mandarin interpreter.  The Tribunal, in its reasons, noted that at the hearing it put to the applicant that the policies followed during the cultural revolution were repudiated more than 20 years ago and that he no longer would be subjected to such treatment.  The Tribunal noted that the applicant agreed but said that he was one of the “lost generation” of victims.  The Tribunal also noted that the applicant accepted that he would not be persecuted if he returned to China for what had occurred in relation to, and as a result of, his wife’s abortion.  The applicant also maintained before the Tribunal that the Chinese authorities would persecute him because he had applied for a protection visa in Australia. 

9. The Tribunal had available to it a body of independent country information which bore upon the applicant’s claims.  The Tribunal set out in its reasons a considerable part of this information.  It can be summarised in the following terms.  The practices and policies of the cultural revolution were repudiated by the Chinese Government in 1978 and persons were no longer persecuted because of events that occurred between 1966 and 1976.  The independent country information verified the applicant’s account of the difficulties he and his wife had experienced due to the one child policy. 

10. The Tribunal also set out details of the information available to it in relation to discrimination in the army, the aftermath of the 1989 student movement and pro‑democracy activities and the unemployment and economic reform issues which occurred between 1991 and 1996.  In particular, the Tribunal referred to a report prepared by the Research Directorate of the Canadian Immigration and Refugee Board dated 10 February 1998 which noted:

    “It is no longer a matter of any importance to the government whether one participated in the Tiananmen Square demonstration.  Individuals who simply attended the demonstration have not been denied the right to work.”

    The Tribunal also referred to a report by the Directorate dated 9 August 2000 which analysed the consequences for Chinese nationals returning to China after having applied for refugee status overseas. 

11. The Tribunal made specific findings in relation to each of the applicant’s claims.  The Tribunal accepted that the applicant was sent to the countryside to work during the cultural revolution and as a result he missed educational opportunities.  The Tribunal found that the policies pursued at the time of the cultural revolution were no longer current and that the applicant did not have a well‑founded fear of persecution based on his treatment during the period of the cultural revolution.

12. The Tribunal accepted the applicant’s evidence in relation to his wife’s abortion in 1984 but noted that the event had occurred sixteen years ago and that there was no evidence to suggest any ongoing repercussions for the applicant because of his attempts to overturn the ruling that the abortion should occur.  According to the Tribunal, the applicant accepted that he would not be persecuted on this basis if he were to return to China.

13. The Tribunal did not accept that the applicant suffered detriment whilst in the army in not being promoted or not being allowed to extend his term of service.  The Tribunal also found that even if the applicant had suffered detriment for supporting the wrong political faction, that detriment did not amount to persecution nor were there any ongoing repercussions for the applicant as a result of his army experiences.

14. The Tribunal accepted the applicant’s evidence about his treatment as a result of his 1989 pro‑democracy and student movement activities, but did not accept that the termination of his employment was political persecution.  The Tribunal referred to the applicant’s evidence that there was insufficient work for all the workers in his enterprise and that he was one of the early workers to be dismissed.  In particular, the Tribunal referred to the fact that many millions of workers had been laid off from state enterprises over the last decade.  The Tribunal made a specific finding that the applicant was one of many millions of workers who were dismissed because of economic change.

15. The Tribunal was satisfied that the Chinese Government did not persecute citizens who returned to China after having applied for refugee status overseas.

16. The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention and therefore did not satisfy the criterion for a protection visa set out in s 36(2) of the Act.

    The review

17. The applicant did not have the benefit of legal representation or legal assistance in filing his application for an order of review, or in preparing the submissions he made at the hearing. His application for an order to review did not disclose any grounds for review which fell within the provisions contained in s 476(1) of the Act. It is s 476 of the Act which specifies the grounds which can give rise to the review of a decision of the Tribunal. The application for an order of review was in the following terms:

    “Application to review the decision of the respondent that –

    Refugee Review Tribunal did not have a favorable decision on his behalf although he had a good case.

    The applicant is aggrieved by the decision because –

    The RRT refused to take into consideration, all the available facts presented and as such, failed to give him the required judgement.

    The grounds of the application are –

    The applicant do satisfy the criteria set out in s.36(2) of the Act for protection visa especially by the conditions of the 3rd and 4th key elements under U.N Refugee Con. Act which explains a real chance of persecution on a Convention ground in China.

    The applicant claims –

    Want the Court to consider all the available evidence in making a fair hearing on his case and to be able to present further claims and evidence.”

18. The applicant was ordered to file an outline of his contentions of fact and law and it was explained to him that the contents of the document should set out the reasons why he was contending that the Tribunal had made errors. The applicant filed a lengthy document which did not disclose any grounds for review within s 476 of the Act. Although the document addressed a number of the findings and conclusions of the Tribunal in relation to the applicant’s claims, it did so in terms which suggested that the Tribunal had reached a wrong conclusion having regard to the evidence which was before it. For example, the applicant said in the document:

    “The conduct itself of applying for political protection again violates the politics and laws in China, and together with five years of exile overseas constitute new crimes.  These new facts are most powerful and more than adequate.”

    This issue was specifically addressed by the Tribunal and there was material before it which warranted it reaching the conclusion it did.  In essence, the applicant’s document was challenging the merits of the Tribunal’s decision and that is not an available ground of review.

19. The applicant’s document also set out in considerable detail a claim he had against a person who had employed him whilst he had been in Australia and who had not paid him money to which the applicant claims to be entitled.  The Court does not have any jurisdiction in relation to that claim and cannot make any determination in relation to it. 

20. The applicant’s application for an order of review and his written outline of contentions of fact and law did not disclose any grounds for review available under the provisions of the Act. Nor did his oral submissions raise any ground of complaint or review which fell within s 476 of the Act. Nevertheless, I have examined the Tribunal’s reasoning and the material provided and presented by the applicant in order to discern whether there may be an available ground of review open to the applicant which he has not been able to articulate, having regard to his inability to obtain legal assistance and his lack of familiarity with the provisions of the Act, and in particular, the extensive learning available in relation to s 476 of the Act.

21. I have been unable to find any available ground of review.  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.” 

22. 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.

23. The application will be dismissed.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             29 May 2001

Counsel for the Applicant:	applicant in person
Counsel for the Respondent:	D Star
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	29 May 2001
Date of Judgment:	29 May 2001