Mai Xin Lu v Minister for Immigration & Ethnic Affairs
[1996] FCA 1163
•19 Jul 1996
JUDGMENT No. .I.l.MJ .%&.
| C A T C I I \ V O R D S | I |
IM;LfIGRATION - refugee status - well-founded fear of persecution for reasons of
political opinion of refugee must motivate persecution feared - Refugee Review Tribunal -
grounds of review - whether error of law.
Mieration Act I958 s.29, s.36
Judiciarv Act 1903 s.44
Minister for lmmieration and Ethnic Affairs v. Resoondent A and Others (1995) 130
ALR 48
Ram v. Minister for lmmieration and Ethnic Affairs (1995) 130 ALR 314
| Attornev-General (Canada) v. | (1993) 102 DLR (4th) 1 |
Wu Guo Zione and Jian Xiu Feng v. The Minister for Immieration and Ethnic Affairs
(unrep. Fed Court, Tamberlin J, 9 August 1995)
MA1 XIN LU v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NO. WAG 56 of 1995
FRENCH J.
PERTH
19 JULY 1996
| IN THE FEDERAL COURT | ) | ||
| OF AUSTRALIA | ) | ||
| WESTERN AUSTRALIA | ) | ||
| DISTRICT REGISTRY | ) | ||
| GENERAL DIVISION |
|
| B E T W E E N : | MA1 XIN LU |
Applicant
and
THE MINISTER FOR
IMMIGRATION AND ETHNIC
AFFAIRS
Respondent
MINUTE OF ORDER
| JUDGE MAKING ORDER: | FRENCH J. |
| DATE OF ORDER: | 19 July 1996 |
| WHERE MADE: | PERTH |
| TFIE COURT ORDERS THAT: |
1. The application is dismissed.
2. The applicant to pay the respondent's costs of the application.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the
Federal Coun Rules.
| IN THE FEDERAL COURT | ) | ||
| OF AUSTRALIA | ) | ||
| WESTERN AUSTRALIA | ) | ||
| DISTRICT REGISTRY | ) | ||
| GENERAL DIVISION |
|
| B E T W E E N : | MA1 XIN LU |
Applicant
and
THE MINISTER FOR
IMMIGRATION AND ETHNIC
AFFAIRS
Respondent
| CORAM: | FRENCH J. |
| I | PERTH |
| 1 | 19 JULY 1996 |
REASONS FOR JUDGMENT
Introduction
This is an application for review of a decision of the Refugee Review
Tribunal which has, in effect, rejected an application for refugee status by a Chinese national and his family. The applicant left the Peoples Republic of China contrary to the laws of that country and travelled to Australia with his family on a boat which he helped
to acquire for that purpose. He arrived in Australia without travel documents and sought refugee status on a variety of grounds including grounds relating to the harassment of his family because of money owing by his deceased father-in-law, uninvestigated theft and
criminal threats against his family, the operation of the Chinese one child family policy, including the forced sterilisation of his wife and the punishment he might expect upon
return to China for having illegally departed from that country.
Factual Backero~lnd
The applicant is a citizen of the Peoples Republic of China. He was born
on 20 January 1957. He completed primary and middle school education. From 1975
until 1987 he worked as a mechanic and after 1987 as a self employed fisherman. In
November 1983 he married and he and his wife have two children, a daughter born in
1984 and a son born in 1987. On 1 November 1994, the applicant and his family left
China unlawfully, departing from the Port of Ling Nan. He left on a boat called
| "Cockatoo". | He was one of four persons who organised passage to Australia on the boat. |
They arrived in Darwin without any entry documentation for Australia on or about 22
November 1994.
On 19 January 1995, the applicant applied to the Department of Immigration and Ethnic Affairs for refugee status and for the grant of a protection visa (866) which would give him a right of permanent residence in Australia. His wife lodged her own application. The children also applied for protection visas as members of the family unit who did not have their own claims to be refugees. The applications were refused by a delegate of the Minister on 10 February 1995. When making her decision she stated that she was satisfied that the applicant was not a person to whom Australia had protection obligations under the Convention Relating to the Status of Refugees. Nor was she satisfied that any member of the family was a person to whom Australia had protection obligations under the Convention.
The applicant appealed to the Refugee Review Tribunal which gave its
decision on 5 May 1995 in the following terms:
"The criterion under sub-section 36(2) of the Migration Act
1958 ("the Act") for grant of a protection visa which
requires the applicant to be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967, is not satisfied.
The decision of the prirnary decision-maker to refuse the grant of a protection visa is affirmed."
The applicant has applied to this Court for an order of review of the
decision of the Refugee Review Tribunal pursuant to s.476 of the Migration Act 1958.
| Stnti~torv | Framework |
The grant of visas is authorised by s.29 of the Migration Act 1958, which
provides in part:
"29(1) Subject to this Act, the Minister may grant a non-
citizen permission, to be known as a visa, to do either or
both of the following:
| (a) | travel to and enter Australia: |
| (b) | remain in Australia. " |
The Act provides for prescribed classes of visa and for the prescription of criteria for visas of specified classes (s.31). Section 36 specifies a class of visa known as "protection visas" in the following terms:
"36(1) There is a class of visas to be known as protection
visas.
(2) 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."
4.
Regulations are authorised to provide that visas or visas of specified classes
may only be granted in specified circumstances (s.30). Regulation 2.04 of the Mieration Reeulations provides that for the purposes of s.40 and subject to the Regulations, the only circumstances in which a visa of a particular class may be granted to a person who has satisfied the criteria in a relevant Part of Schedule 2 are the circumstances set out in that Part.
| Schedule 2 sets out various sub-classes of visa. | Subclass 866 is the |
| Protection (Residence) visa. | Clause 866.211 of subclass 866 specifies the following |
criteria for the grant of such a visa:
866.211 The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:
| (a) | makes specific claims under the Refugees Convention; or | |||
| (b) | claims to be a member of the family unit of a person who: | |||
|
| claims | under | the |
Refugees convention;
and
(ii) is an applicant for a
| Protection (Class AZ) visa. " |
It is also a criterion that the Minister must be satisfied that the applicant is a person to
whom Australia has protection obligations under the Refugee Convention (866.221).
5.
The Refugees Convention is the Convention Relating to the Status of
Refugees 1954 which is to be read with the Protocol Relating to the Status of Refugees
1973. Article 1 of the Convention, read with the Protocol, defines a refugee as a person
who fulfils the following conditions;
"...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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
Section 411 of the Act sets out a class of decisions designated as "RRT-
Reviewable Decisions". The class of decisions so designated includes a decision to refuse
to grant a protection visa (s.411(l)(c). An application for review of an RRT-Reviewable Decision is made to the Refugee Review Tribunal (s.412(1)). Where a valid application is made for review of an RRT-Reviewable Decision, the Tribunal is required to review
the decision (s.414(1)). The Tribunal may, for the purposes of the review, exercise all the powers and discretions conferred by the Mieration Act 1958 on the person who made the decision (s.415(1). The Tribunal is expressly empowered to affirm or vary the decision under review, remit it for reconsideration or set it aside and substitute a new
decision (s.415(2).
Pan 8 of the Act provides for the review of decisions by the Federal Court
and in s.475 sets out a class of decisions known as "judicially-reviewable decisions".
6.
This includes decisions of tlie Refugee Review Tribunal (s.175(l)(b).
An application for review by the Federal Court of a judicially-reviewable
decision is limited to one or more of the following grounds:
| "(a) | that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; |
| (b) | that the person who purported to make the decision did not have jurisdiction to make the decision; |
| (C) | that the decision was not authorised by this Act or the regulations; |
| (d) | that the decision was an improper exercise of the power conferred by this Act or the regulations: |
| (e) | that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision; |
| (f) | that the decision was induced or affected by fraud or by actual bias; |
| (g) | that there was no evidence or other material to justify the making of the decision." |
The section expressly excludes from the grounds of review breach of the rules of natural justice and unreasonableness (s.476(2)). The reference to improper exercise of power is
construed as being a reference to exercise of a power for a purpose other than the
7.
purpose for which the power is conferred. exercise of a personal discretion. discretionary
power at the direction or behest of another and an exercise of a discretionary power in
accordance with a rule or policy without regard to the merits of the particular case. Questions of taking into account irrelevant considerations or failing to take into account
relevant considerations, the bad faith exercise of discretionary power and other abuses of power are expressly excluded from review under the heading of an improper exercise of a
power (s.476(3). Section 485 provides that the Federal Court does not have any other jurisdiction in relation to judicially reviewable decisions or decisions covered by sub-
s.475(2), other than the jurisdiction provided by Part 8 of the Mieration Act 1958 or by s.44 of the Judiciaw Act 1903. The operation of s.39B of the Judiciaw Act 1903 is expressly excluded (s.485).
The Refugee Review Tribunal Decision
The applicant put to the Tribunal evidence of various bases upon which he claimed to have a well founded fear of persecution if he were to be returned to China. In short they were said to arise in the following ways:
1. Difficulties experienced by the applicant and members of his
family in connection with repayment of a loan owed by his
father-in-law following his father-in-law's death in a boating
accident.
The applicant said that his father-in-law and six companions
had died in a boating accident in December 1991. Creditors
8.
of his father-in-law sought to recover the debt from his mother-in-law. These creditors included private and government agencies. The mother-in-law repaid the loan in
pan from the sale of a house and was repaying the balance
by instalments.
In July 1994, Bank officials and officers of the Peoples
Court visited the applicant's house while he was away on
business. They threatened his wife with detention if the debt
were not settled by the end of that year. There was a scuffle between the mother-in-law and a senior bank official who
assaulted her causing her to fracture a bone. The applicant's brother-in-law, who sought to fight off his mother's
assailants was threatened with a gun.
The senior bank official later returned to the applicant's
home and demanded repayment of half the loan which by
that time totalled 170,000 yuan, inclusive of interest, by September 1994 with payment of the balance outstanding by
the end of that year. The applicant was obliged to sell his house to meet the Bank's demand. This brought in 138,000
yuan, of which 110,000 yuan was given to his mother-in-law
to repay the Bank. The applicant decided to put 20,000 yuan towards the cost of departing from China illegally by boar
9.
with his family and brother-in-law. Because the debt could not be settled by the end of the year as demanded by the Bank he feared that he and his family would be sent to a
labour reform camp as punishment.
According to the applicant's evidence to the Tribunal there was long standing enmity between his wife's family and that of the senior bank official, Mr Wang. In a subsequent submission to the Tribunal it was argued that the applicant and his wife would suffer persecution on return because of their failure to repay the debt. It was sought to define him and his wife as members of a particular social group for the purposes of the Status of Refugee Convention namely
"citizens of the Peoples Republic of China who have been forced to repay a government loan and have been threatened
with imprisonment or re-education through labour upon
failure to repay the loan."
The second basis for the alleged well-founded fear was said
to arise out of actions taken against the applicant and his wife undkr China's one child policy including imposition of a fine after the birth of their second child in 1987, a forced
abortion in 1989 following the failure of an intrauterine device which his wife was carrying at the time and forced
10.
sterilisation of his wife in 1992.
The applicant told the Tribunal that he was required to pay a fine of 700 yuan following the birth of their second child, a
son, in 1987. He refused to pay the fine because he did not have money at the time as he was building a house. The
fine was increased to 3,200 yuan in 1992. He paid 500 yuan
of the fine and the balance remains outstanding. He said his wife was forced to have an abortion by family planning officials of the government in 1989 and that she was forcibly sterilised in June 1992. Because the fines levied by the family planning officials had not been paid in full, household registration had been denied to their son as he was born outside the four year period normally required between births. In 1994 the applicant had paid 40 yuan to purchase a
temporary certificate for his son which enabled him to attend school but in all other ways his existence was not recognised by the authorities.
The third basis for the fear of persecution identified by the
~ribunal was the applicant's contention that property of his had been stolen and threats made against his children by
criminal elements.
I I .
The applicant's house was broken into in November 1993
and a quantity of goods stolen but the incident not reported
to police. In December 1993 a thief was apprehended during
a further attempt to rob the house. This was reported to police in January 1994 and the thief arrested. The thief
confessed to having robbed the house on two occasions. The applicant sought repayment of the goods stolen but police told him that the thief was unable to repay him because proceeds from the theft had been spent in gambling. The
applicant made several attempts to have the matter dealt with in accordance with the law and to be compensated for the
stolen goods. These were unsuccessful. He suspected that police had been bribed by the thief and intended to take court
action against the thief and the police. He was dissuaded from doing so by friends who warned him this might not be
good for his future. He also heard that the thief had an
uncle working in an intermediate court and that it would be
no use to lodge an appeal.
The applicant claims the thief made threats against his
children in April 1994. Again, he believed that there was no use reporting the matter to the police as earlier complaints had been ignored. Threats were made by the thief that she
could kill the children at any time and that other members of
12.
a gang to which she belonged would also be after the applicant. For this reason, his wife sent the children away to stay with relatives. No actual attempt was made to harm them.
Higher taxes and denial of business licence.
Punishments which may be imposed upon the applicant for having illegally departed from China, particularly in view of
his involvement organising the departure of the boat.
The Tribunal held that on the material advanced by the applicant, there was
no fear of persecution by reason of his race, religion, nationality or political opinion.
The Tribunal identified the basis of his claim for a protection visa as fear of persecution
on the Convention ground that he was a member of a particular social group. The social group was identified as parents with two children who wished to have more children and
did not accept the limitations placed on them by official policy and who were coerced or
forced into being sterilised. The Tribunal accepted that China has a poor human rights
record and referred to reports that Chinese authorities continue to arrest, detain and imprison political activists and religious leaders, concerns about constraints upon freedom
of expression, assembly and association and concerns about aspects of the Chinese legal system, the broad scope of the counter revolutionary provisions of the Criminal Code and the use of capital punishment. Reference was made to a United States Department of State Country Report on Human Rights Practices for 1994 which, in relation to China,
stated at p.2:
"In 1994 there continued to be wide spread and well- documented human rights abuses in China. in violation of internationally accepted norms. stemming both from the authorities' intolerance of dissent and the inadequacy of legal safeguards for freedom of speech, association and religion. Abuses include arbitrary and lengthy incommunicado detention, torture and mistreatment of prisoners. Despite a reduction during the year in the number of political detainees from the immediate post-Tiananmen period, hundreds, perhaps thousands, of other prisoners of conscience remain imprisoned or detained. "
The Tribunal considered the family planning policies applicable in China.
Reference was made to the so called one child policy and its implementation as discussed
in a number of legal and academic reports which were referred to by the Tribunal. The
Tribunal observed that it is pan of the policy of the Chinese government that is subjects are encouraged to have abortions or be sterilised if they exceed policy principles relating to pregnancy or the number of children which the relevant regulations set out as the maximum for each family. The Tribunal found that the evidence suggested that large numbers of people had agreed to such procedures in order to take advantage of benefits afforded to those who complied with the regulations or avoid the dis-incentives applied to those who breached them. There was also evidence that others were coerced against their will to undergo such operations.
The Tribunal observed that the Chinese government has a sovereign right
to institute family planning policies and that such policies are not inherently persecutory.
It was also clear, however. that in their implementation by local officials charged with
I?.
that responsibility under provilicial regulations, there had been cases of citizens whose rights had been seriously abused by being forced to have abortions or to undergo sterilisation. The Tribunal considered that forcible abortion andlor sterilisation would have constituted a violation of the applicant's wife's human rights and would amount to
persecution.
The Tribunal concluded that it was unable to find that the applicant was a
member of a particular social group for Convention purposes in view of the fact that according to his own evidence and that of his family both partners were prepared to comply with the "one child policy" as far as limitations on their fertility were concerned.
On the evidence of both the applicant and his wife before the Tribunal, the alleged
forcible sterilisation was not related to a breach of the family planning laws but a "cynical
measure by family planning officials to fulfil targets and to accrue additional bonuses".
The Tribunal observed that the applicant's one act of resistance against the
terns of the "one child policy" was the refusal to pay the fine imposed after the birth of their second child in 1987. It did not regard the imposition of the fine to be persecutory as it was well within the capacity of the applicant and his wife to pay the full amount. This led to the question whether the applicant's son as an unauthorised second child had
suffered any ongoing discrimination which might amount to persecution by virtue of his claimed lack of status because of the one child policy. Because of inconsistencies between the evidence of the applicant and his wife, and given that the issue did not
emerge until a late stage in the review process. the Tribunal did not give any weight to the evidence with regard to household registration of their son. On the evidence available
15.
to the Tribunal it found that the applicant's second child was not registered at binh because the applicant and his wife had not paid the tine imposed upon them under family
planning policy. The child has subsequently become eligible for benefits accruing from
household registration, having turned 7 years of age as permitted under the regulations.
The Tribunal observed that, according to evidence from objective sources,
population control in China had been carried out largely by policy rather than law and
that population policy and enforcement had been left to a great extent in the hands of local government. Regulations made in the Guang-Zhuang Province in 1988 regularised
in law what had already been the practice and the policy in the region. On this reading,
according to the Tribunal, the applicant's son would be eligible for benefits available under the regulations once he had turned 7 years. The Tribunal found it implausible that in the circumstances of a legal binh household registration authorities would refuse to
register the child. Moreover household registration authorities would have no interest in not registering his son because of some alleged infringement of family planning policy. The integrity of the registration system which formed the corner stone of the Chinese
government's control over its citizens relied upon registration being done accurately.
There was also a claimed refusal of a business licence to the applicant
because he had not paid the fine for having a second child and whether that would
constitute ongoing persecution because of the family planning policy. However, instead of obtaining a licence, the applicant had worked with an uncle who possessed a licence therefore obviating the need for one. He had commented at interview that even without the business licence he earned more money working for himself. The Tribunal was
16.
unable to find that any discrimination amounting to persecutio~i had resulted to the
applicant or members of his family as a consequence of the birth of their second child.
In relation to the outstanding loan, the Tribunal accepted as credible the claims which the applicant had put forward regarding the difficulties which he and members of his family experienced because of their inability to meet repayments on his father-in-law's loan. However, it was unable to find that he and his family would incur
penalties on return for this reason which could be considered as persecutory in terms of the Convention. Most of the money had been repaid at the time of the applicant's departure from China. Money which had been invested in the family's departure from
China could have been used to defray further the remaining debt. The Tribunal was not
satisfied that arrangements could not have been made with the creditors to repay the balance over time under mutually convenient terms. Threats of imprisonment on failure
| to repay the loan were regarded as implausible by the Tribunal. | It observed: |
"It is unlikely, if this were the case, that the Applicant's mother-in-law as the principal debtor and the target of Mr Wang's abuse would have been left behind to settle the loan. In the event, no claims have been made suggesting that she has come to any harm since the Applicant's departure from China."
On the. matter of theft of property and threats against the applicant's
children, the Tribunal accepted as credible the claims which he had made with regard to the theft of goods and subsequent threats against his children. On the evidence, however, it could not find that these incidents constituted persecution or a risk of prospective
persecution. I t was noted that social unrest and proliferating criminal activity are non-
17.
selective phenomena wllich do not give rise to refugee protection. I t was not clear from the evidence that the applicant and his wife were unable to avail themselves of the protection of the State. This could not be concluded from the fact that the applicant
pursued the issue with the police up to a point before deciding that it was futile to
proceed.
On the effect of the applicant's illegal departure, the Tribunal considered
his claim that he feared he would be arrested and jailed on return for having illegally departed China and would be dealt with particularly harshly because of the organisational
role which he assumed in the departure of the Cockatoo. In interview with a departmental officer in November 1994, the applicant stated that another person was the
principal organiser. No-one profited from the journey as their intention was to pool their
resources to finance the departure rather than to seek to make money out of the venture. There was no key organiser left behind in China who had profited from the scheme. The
applicant's wife provided similar evidence.
The Tribunal referred to advice from the Department of Foreign Affairs
and Trade which referred to the sanctions applied to returning boat people. An advice, dated 17 June 1993, indicated that "returnees had been treated in accordance with Chinese
law. In the case of returnees from the United States who had travelled on a boat called
the Eastward, this amounted to a fine of 5,000 RMB. The relevant regulations provided
that those who could not pay a fine could be detained for up to 15 days.
18.
A cable from the Department of Foreign Affairs and Trade of 8 June 1994
stated that Chinese officials responsible for exit and entry control in the Guangxi province did not regard illegal movements to Australia as having an underlying organised criminal
base. The authorities appeared to treat returnees from Australia as misguided individuals.
The longest period of detention of a returnee of which the Department was aware was a half month for non-payment of a fine. A further cable of 8 September 1994 from the
Department of Foreign Affairs and Trade indicated that it was not aware of reliable
reports of any returnees from Australia being detained for periods other than those specified in law for non-serious illegal departure or non-payment of a fine. There was further advice that the key issue in determining whether a person would face prosecution
as an organiser on return to the Peoples Republic of China appeared to be whether the
person had gained financially from his or her involvement in an illegal departure.
Referring to further advices, including one from the Australian Consulate
General in Guangzhou dated 25 January 1995, and the absence of any reference, in
general reports published by the US Department of State. Amnesty International and Asia
Watch, to reports of persecution on the grounds of illegal departure, the Tribunal
concluded that in the absence of other serious acts the likely consequences of illegal departure are a short period of detention (up to 15 days) and a fine, most probably between 1,000 and 5,000 yuan. although there might be additional expenses in effect
added to the fine.
The Tribunal accepted that countries have the right to control the passage
of people across their border areas and to impose penalties on those who breach their
19.
laws. The issues to be considered were wlietlier tlie punisliments imposed were so harsh
and oppressive as to constitute persecution and, in that event, whether the persecution was
for a Convention reason.
The Tribunal appeared to accept criteria set out by Professor Hathaway,
The Law of Refueee Status (Buttenvorths, Canada Ltd. 1991). The passage referred to from that text observed that departure from a country without authorisation does not
entitle an individual to refugee status. A genuine refugee claim may be established if the country of origin punishes unauthorised exits or stays abroad in a harsh or oppressive manner and where the illegal departure or stay abroad is either explicitly politically motivated or regarded by the state of origin as an implied political statement of disloyalty or defiance.
The Tribunal was unable to find that the applicant met the criteria outlined
in Hathaway. Although it was accepted that he had played a key role in organising the
departure, he had exaggerated the extent of his involvement. In any event, he had made
no claim that he was in any way involved in activities to do with the departure that would be considered "serious" by Chinese authorities. Serious circumstances for that purpose
would relate to crimes such as compelling a boat's owner to take departees to sea, theft or the use of force. Nor, according to the evidence, would the applicant would be viewed by Chinese authorities as an organiser in tlie sense of being a racketeer in the light of the
fact that his was a self contained departure with no profit motive.
20.
It was accepted as possible that Chinese authorities might decide that the
applicant should receive more serious punishment because of his organisational role including imprisonment in accordance with Articles 1 and 4 of the relevant regulations
which provide penalties for those involved in illegal departures of imprisonment terms of
1 to 7 years and fines up to 50,000 yuan.
On the evidence, the Tribunal was unable to find that the Chinese
government regarded illegal movements of people by boat to Australia as politically
motivated nor did it ascribe any political views to such people. Nothing in the evidence before the Tribunal suggested that the imposition of any punishment would serve an
underlying political purpose. The Tribunal found that no element of political opinion was associated with the applicant's departure from China or the punishment which he might face on his return.
The Grounds of Review
The primary ground of review set out in the application filed by the
applicant was in the following terms:
"The grounds of the application are that the decision involved an error of law namely that any punishment likely to be suffered by the Applicant by reason of his illegal departure from China, was within the ambit of the Refugees Convention."
This was elaborated as follows:
"The Refugee Review Tribunal should have found that the punishment feared by the Applicant on his return to China by reason of his illegal departure was persecution for reasons within the ambit of the Refugees Convention on the following grounds:
| (a) | The Applicant and his family decided to depart from China by reason of their dislike of and fear of the Chinese authorities and the system of government, including the civil and criminal justice system, the police and the family planning officials. | |
| (b) | The Applicant feared and disliked the Chinese authorities by reason of the following instances of persecution, discrimination andlor corruption which affected him and his family: | |
|
The Applicant's wife was forcibly sterilized by the Family Planning
| Officials | in | 1992 |
without an anaesthetic.
| (i i i) | The Applicant was fined 700 yuan after the birth of his son in | |||
| ||||
| pay the fine which was increased to 3,200 yuan in 1992. He had then paid 500 yuan on | ||||
| ||||
| balance of 2,700 yuan. | ||||
| (iv) | The Applicant and his wife were restricted in the number of children they could have. | |||
| (V) |
|
| refused | a | business |
l i c e n s e and was required to pay heavier taxes by reason of his refusal to pay the fine.
(vi) The Applicant's son was denied the benefits o f h o u s e h o l d
|
until the age of 7.
(vii) The police had failed to act on the Applicant's claim for recompense against a thief who had stolen goods from the Applicant's house and the Applicant believed the police had been bribed by the thief.
(viii) the Applicant had been f o r c e d b y t h e
| |||
| officials of the Peoples Court, to sell his house | |||
| to part pay an original | |||
| debt owed by his deceased father in law | |||
| |||
| feared that he would be | |||
| sent to a labour reform | |||
| camp as punishment for failing to pay the remainder of the debt. |
| (C) | To facilitate his departure from China, the Applicant organized a vessel to transport the Applicant, his family and other departees. Such vessel was purchased in the name of the Applicant. |
| (d) | The Applicant has a well-founded fear that his conduct in illegally departing China and in organizing tllk vessel used in such departure. |
| may well result in the punishment of the | |
| Applicant by a term of imprisonment of |
between I to 7 years and a fine of up to
50,000 yuan. pursuant to Articles I and 4 of
the Regulations promulgated in China relating
to illegal departures.
| (e) | The Applicant has no assets or means of paying a fine of 50,000 yuan and paying off such fine by instalments would cause the Applicant years of hardship. |
| (0 | or more years or the imposition of such a Punishment by way of imprisonment for one |
large fine for exercising an individual's ordinary right to leave his country of nationality and in assisting others to exercise that right is harsh and therefore amounts to persecution.
| (g) | The Applicant's departure from China was an expression of political opinion which arose from the Applicant's dislike and fear of the Chinese government and its officials, including the police, the civil and criminal justice system and the local Family Planning officials and the Applicant has a well-founded fear that he will suffer persecution as a result of such departure. |
| (h) | In the alternative, the Applicant's departure |
from China and his resulting fear of persecution results from the Applicant's membership of the social group of persons persecuted by reason of being unwilling or viewed as being unwilling or having failed to comply with China's one-child family policy and therefore is persecution for reasons within the ambit of the Refugees Convention."
The Contentions
Despite the extensively particularised grounds set out in the application for
review of the Tribunal's decision. ,counsel for the applicant confined his argument to
propositions which can be extracted from the outline of submission thus:
24.
The applicant's decision to leave Cliina was for reasons of his political opinion. Accordingly the persecution feared by the applicant by reason of that departure is for a Convention reason, namely political opinion.
The Tribunal erred in construing Article 1 of the Refugees Convention and in determining that it was necessary for the
applicant to show that the Chinese authorities regarded his
departure as politically motivated.
It is not necessary for the Chinese authorities to have
persecutory intent. It is sufficient that their actions have a
persecutory effect.
Where a State punishes illegal departure in a harsh and oppressive manner and the departure is politically motivated this will form a basis for a claim for refugee status.
Counsel expressly abandoned reliance upon the proposition that the
applicant should have been regarded as a member of a particular social group for the purposes of Article 1 of the Convention, being the group of persons unwilling to comply with the Chinese one child per family policy. Counsel abandoned reliance on this ground because of the decision of the Full Court of tlle Federal Court in Minister for Immigration and Ethnic Affairs v. Respondent A and Others (1995) 130 ALR 48. In that case the Court held that forcible sterilisation could constitute persecution. But fear of such
| persecution is not for reason of membership of a particular social group. | In that case |
there had been before the Tribunal, as in this, evidence that forced sterilisation was not
25.
part of the law or government policy in China, but rather was carried out at the
instigation of over zealous local officials. The Court said, at 61:
"...even if the respondents were able to show that there was a law of general application in China that parents of one child must be sterilised, and forcibly if necessary, persons facing that fate would not be members of a particular social group. While such a law would be considered by Australians to be abhorrent and contrary to internationally accepted standards of human rights, the law would be one regulating the conduct of individuals. To apply the reasoning of Morato [(1992) 39 FCR 4011, such a law would be dealing with what people did, not with what they are. The only difference is that such a law would be one operating on individuals to prevent future acts (conception and birth) rather than to punish past acts. Such a law would not create or define a particular social group constituted by those who are affected by it, any more than would laws imposing tax or prescribing punishment for tax evaders."
The decision is under appeal to the High Court and judgment is reserved.
The core of the argument advanced by counsel for the applicant was that
punishment for illegal departure from China under laws applicable to those who depart
for any reason would constitute a ground for a well-founded fear of persecution on the
basis of political opinion if in fact the applicant's departure had been politically
motivated.
Counsel for the respondent noted that the Refugee Review Tribunal was
unable to find that the Chinese government regarded illegal departures as politically motivated or ascribed political views to persons departing unlawfully. Moreover, there was nothing to suggest that the imposition of any punishment for illegal departure would
26.
serve an underlying political purpose. On that basis [lie Tribunal was bound to conclude that any punishment suffered by the applicant as reason for his illegal departure would nor fall within the ambit of the Convention. Even if the Chinese authorities were to decide
that the applicant should receive a more serious punishment because of his organisational role that did not mean that such punishment would amount to persecution for a Convention reason.
Whether the Tribunal Erred in Law
The ground of review for error in law under s.476 of the Migration Act
1958 is limited to "error involving an incorrect interpretation of the applicable law or an
incorrect application of the law to the facts as found by the person who made the
decision, whether or not the error appears on the record of the decision". The concept of
error of law not so limited covers the procedural, jurisdictional, ultra vires and abuse of power grounds for which s.476 also provides. However, none of these matters is raised
in the present case which is limited to para.476(l)(e).
The relevant issue of law to be considered is the interpretation of Article 1
of the Convention Relating to the Status of Refugees in so far as it refers to:
"...well-founded fear of being persecured for reasons of ...
political opinion."
This becomes a question of municipal law for the purposes of s.476 because the statutory
criteria set out for the grant of a protection visa (866) incorporate by reference the
27.
provisions of the Convention in so far as they impose protection obligations on Australia
(866.21). The question of law then narrows down to whether i t is sufficient that the
apprehended persecution flow from an act which was motivated by political opinion. To put it another way, is it necessary that the persecuting authority inflicts the feared
persecution because it knows of and wishes to punish or suppress the relevant political
opinion?
The construction of Article 1 in relation to other bases for apprehended
persecution may be of assistance because of the way in which each of the Convention
grounds under Article 1 is linked to the general requirement for a "well-founded fear.of
being persecuted for reasons of ... ".
In Ram v. Minister for Immigration and Ethnic Affairs (1995) 130 ALR
314, it was held that where the apprehended persecution was for reasons of membership
of "a particular social group" the fact of that membership must be an element of the motivation for the persecution. Burchett J (Nicholson and O'Loughlin JJ agreeing) said at p.317:
"Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the intliction of harm, or an element of motivation (however twisted) for the intliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution. Consistently with the use of the word "persecuted", the motivation envisaged by the definition (apart from race, religion, nationality and political opinion) is "membership of a particular social group"."
It can be accepted that the conduct of a person may carry with it the
implication of an expression of a political opinion. In Attornev GeneraKCanada) v.
(1993) 103 DLR (4th) 1, the Supreme Court of Canada observed that the political
opinions of a claimant for refugee status could be perceived from his or her action:
"In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant."(at 39)
However the Supreme Court also pointed out the need to relate the
persecution to the opinion:
"Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground "that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party"; see Grahl-Madsen ... The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors. Grahl-Madsen's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government." (at 38)
The act of departure from a country does not generally, or in the particular context of this case, carry any imputation that it is done for a particular political purpose.
In Wu Guo Zione and Jian Xiu Feng v. The Minister for lmrnieration and
Ethnic Affairs (unrep. Fed Court, Tamberlin J , 9 August 1995). it is said, at 24 that:
"In my view, the act of leaving, taken alone, cannot be said to carry with it either a necessary or probable finding that the departure is an expression of political opinion."
Of course, as his Honour in that case said, the particular history of the matter might be
such that a person has been expressing political opinion against the controlling regime or has aligned with particular political groups or is liable to be persecuted for political
views. These factors could well colour the act of departure so as to make it in effect
part of the manifestation of political opinion in opposition to the government.
On the material before the Tribunal it was unable to find, as a matter of
fact, that the Chinese government regards illegal movements of people by boats to
Australia as being politically motivated or that it imputes political views to such people.
The Tribunal concluded that nothing in the evidence before it would suggest that the
imposition of any punishment would serve an underlying political purpose. It was
satisfied also that no element of political opinion was associated with the applicant's departure from China or the punishment which he might face on his return. These are all
matters of fact. The Tribunal did not expressly address the point of construction which is raised on this application for review. However, on the findings of fact which it has made and on the correct construction of Article 1 of the Convention. it could not have concluded that any punishment faced by the applicant on his return from China would be for reason of his political opinion. Therefore whether or not such punishment could
constitute persecution it would not be persecution for reason of the applicant's political
opinion.
Whatever political opinions the applicant may have held there was no basis
upon which he could be said to have linked his departure to them in such a way as to make them evident to the Chinese authorities. Nor in the evidence was there any basis for concluding that his act in departing from China had the appearance or character of an
expression of political opinion. The evidence as reflected in the Tribunal's findings generally tended to the proposition that the applicant and his family had experienced
difficulties and misfortunes in China and that his wife had suffered at the hands of family.
planning officials. None of these circumstances, however reprehensible, disclose a basis
for claiming a well-founded fear of persecution for reason of his political opinion if the
applicant is returned to China.
On this basis it cannot be shown that the Tribunal has erred in law as
alleged and the application will be dismissed.
I certify that this and the preceding
twenty nine (29) pages are a true copy
of the Reasons for Judgment of his Honour
Justice French:
. .
| .i | ' | . | m | . | . |
| , | - . v | .. |
Date:
| Counsel for the ~ ~ ~ l i c ' a n t : | Mr H. Cliristie |
Solicitors for the Applicant: Carol Bahemia, Director of Legal Aid
Counsel for the Respondent:Mr P. Macliver
Solicitors for the Respondent: Australian Government Solicitor
Date of Hearing: 18 December 1995
Date of Judgment:19 July 1996
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