Min Hua Wang v Minister for Immigration & Multicultural Affairs

[1997] FCA 372

CATCHWORDS

JUDICIAL REVIEW  -  application for refugee status - Convention and Protocol Relating to the Status of Refugees  -  test for “well-founded fear of persecution “  -  whether there is a real chance of selective harassment of applicant on grounds of political views - definition of persecution

Article 1,A(2) of the Convention and Protocol Relating to the Status of Refugees

MIN HUA WANG  v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. VG 387 of 1996

SPENDER J
BRISBANE (heard in Melbourne)
13 May 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY  No      VG 387 of 1996

GENERAL DIVISION

BETWEEN: MIN HUA WANG

Applicant

AND:THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM:                   Spender J
PLACE:  Brisbane (heard in Melbourne)
DATE:  13 May 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.  The application be dismissed.

2.  The applicant pay the costs of the respondent to be taxed if not agreed.

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  No      VG 387 of 1996

GENERAL DIVISION

BETWEEN:MIN HUA WANG

Applicant

AND:THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM:                   Spender J
PLACE:  Brisbane (heard in Melbourne)
DATE:  13 May 1997

REASONS FOR JUDGMENT

This is an application under Part 8 of the Migration Act 1958 (‘the Act’) to review a decision of the Refugee Tribunal (‘the Tribunal’) constituted by Mr R S Lancy, which decision affirmed the decision of the primary decision-maker to refuse the grant of a protection visa to Mr Wang. The Tribunal decided that the criterion under s 36(2) of the Act for the 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 (‘the Convention’) done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees (‘the Protocol’) done at New York on 31 January 1967) was not satisfied.

In terms of Article 1, A(2) of the Convention and Protocol, Australia has protection obligations to any 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 is a 36 year old male citizen of the People’s Republic of China (PRC). He is not married. He arrived in Australia on 27 April 1990 at Melbourne airport. He travelled on a valid PRC passport and entered as a student. His application for refugee status was lodged on 29 October 1990, some six months after his entry. His application was rejected by a delegate of the Minister for Immigration & Ethnic Affairs (‘the Minister’) on 31 January 1996, which is to say, more than five years after it was lodged. The applicant lodged an application for review by the Tribunal on 26 February 1996. The Tribunal affirmed the decision under review on 13 June 1996. This application for review under Part 8 of the Migration Act was filed on 5 July 1996.

The Tribunal noted that whether a person is a refugee in terms of the Convention is to be determined upon the facts existing at the time of the determination.  The Tribunal further noted that the test for a “well-founded fear” of persecution contains both a subjective and an objective component.  The Tribunal said:

“  Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality.  There must be a ‘real chance’ that the applicant will be persecuted for a Convention reason if he or she is returned to the country of nationality.  A ‘real chance’ is one that is not remote and it is immaterial whether it is more or less than 50%.”

The Tribunal further noted that the categorisation of a person as a refugee involves an aspect of prospectivity.  The Tribunal in this respect said:

“  In Mok Gek Buoy v Minister for Immigration and Ethnic Affairs and Paterson (1993) 47 FCR 1 at p 66, Keely J observed:

‘  In my opinion, the question of whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision.’

In the Full Federal Court decision, Minister for Immigration and Ethnic Affairs v Mok Gek Bouy ((1994) 127 ALR 223), Sheppard J at p 248, further clarified this point by the use of the phrase ‘immediately foreseeable future’.”

No complaint is taken on behalf of the applicant with the approach adopted by the Tribunal in these respects.  The central complaint on behalf of the applicant is that the Tribunal applied an improper construction of the definition of “persecution” and thus its decision involved an incorrect interpretation of the applicable law within s 476(1)(e) of the Act.

Since the disposition of this appeal depends on whether the court accepts that the Tribunal applied a wrong test of “persecution” in its decision, it is helpful to note what the Tribunal said of the concept of persecution in its reasons.  Under the heading “Persecution”, the Tribunal said:

“  The word ‘persecuted’ is not defined in the Convention.  Observations that can be made about it are that it must be motivated by considerations of race, religion, nationality, membership of a particular social group or political opinion.

It is clear from the judgements in Chan Yee Kin v The Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 that the concept of persecution involves selective or discriminatory treatment and that deprivation of life or liberty, the infliction of torture or the denial of fundamental human rights for a Convention reason may constitute persecution.

At 430-1 of Chan, McHugh J observed:

‘    ...persecution...has historically taken many forms of social, political and economic discrimination.  Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.’

These remarks, which largely accord with views expressed by Mason CJ in the same case, reflect a considerable liberalization of the concept of persecution.  Dawson, Toohey and Gaudron JJ found it unnecessary to canvass this issue.  However, as Mason CJ observed at 388:

‘    ...some forms of selective or discriminatory treatment by a State of its citizens do not amount to persecution. ...the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. ...The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.’

In Chan, McHugh J observed (at 430):

‘    The threat need not be the product of any policy of the government of the person’s country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution....’”

While counsel for the applicant accepts the applicability of the observations set out by the Tribunal in this part of its reasons to its decision-making process, it is contended on behalf of the applicant that the Tribunal ignored the correct test and applied an erroneous one.  The contention for the applicant was that selective harassment of the applicant by reason of his political views amounted to persecution, and the Tribunal should have so found.

The Tribunal accepted the applicant’s account of his general background, matters arising out of the events of the Cultural Revolution, his participation in pro-democracy activities and his evidence concerning the exit documentation.

The applicant was born on 8 June 1960 in Shanghai and received his primary and secondary education in Shanghai.  He then completed a two year course at a Technical School associated with the Shanghai Machine Manufacturing Company with whom he obtained employment as a technician.  He worked at that job until his voluntary resignation in August 1989. 

The applicant said that his grandfather, who had a small textile factory in Anhui Province had the business taken over in a State run programme of “collectivisation” in 1957 and his grandfather was labelled an “unlawful capitalist” and put in gaol, where he died in 1968 as a result of a brain disease.  The applicant asserted that because of his bad family background, he was denied the opportunity of going to University.  The applicant in evidence said that around 15-17 May 1989 he joined the “Shanghai Citizens Support Group”, which group he assisted by preparing cartoons and the writing of slogans.  He said that he attended demonstrations, where his role was to maintain order and to distribute pamphlets.

On 5 June 1989, he travelled to Beijing in order to assess the developments in relation to the pro-democracy movement.  He stayed for three weeks and returned to Shanghai at the end of June.  On his return to work he was asked to write a report on what he had been doing during the previous month.  In response he wrote that he had been having a tourist holiday for one month and that he had not attended or participated in any demonstrations during the period.

The Tribunal accepted the assertion that the security unit at his workplace had no adverse evidence against him, and the applicant’s claim that he was interrogated but not arrested.  On his return to employment, he was transferred to a different section, where he was expected to perform manual work and he was not given any pay increase during the period July to August 1989.  He resigned his job voluntarily in order to finalise his preparations for his travel to Australia.

Concerning his exit documentation, the Tribunal accepted the assertion of the applicant that although he was not a high profile person, he was concerned that he might not be granted a second exit permit if he applied in the normal manner.  Accordingly, he asked the uncle of his girlfriend to obtain his second entry permit.  This uncle was in the Public Security Bureau and helped the applicant to secure his second exit permit.  The applicant then made a lawful departure from China on 26 April 1990.

The finding of the Tribunal concerning the impact of the Cultural Revolution on the applicant was in the following terms:

“  The applicant may have suffered certain adverse consequences that can be attributed to the Cultural Revolution.  However he has enjoyed all the benefits of primary, secondary and tertiary education and was continuously employed until his voluntary resignation in order to travel to Australia.  Since the events of the late 1960’s he has not experienced any adverse treatment that could be attributed to the Cultural Revolution.  The events of the late 1960’s, although regrettable, do not amount to persecution of the applicant under the Convention.

Persecution in terms of the Convention is very much a question of degree and proportion, to be assessed in the light of all the circumstances of the particular case.  The actions taken against the applicant during this period fall short of persecution, and are more correctly categorised as discrimination (see the Handbook at paragraphs 54 and 55 above).  It is not ‘serious punishment or penalty or some significant detriment or disadvantage’ (see Mason CJ at page 388 in Chan).  He was not denied access to employment as such.  The consequences, which I accept he bore, are not of sufficient gravity or seriousness to be described as ‘the sustained or systematic violation of basic human rights demonstrative of the failure of state protection’ (see James C Hathaway, The Law of Refugee Status, Butterworths Canada Ltd. 1991 at page 105).

In any event, nothing has happened to the applicant between the late 1960’s and 1989 that would indicate that further adverse treatment might be inflicted on the applicant as a result of the matters arising out of the Cultural Revolution.  Accordingly, there is no reason to believe that there is a real chance that the applicant would in future suffer persecution by reason of his early experiences in the Cultural Revolution.”

It was submitted on behalf of the applicant that the reference to “the sustained or systematic violation of basic human rights demonstrative of the failure of state protection” in Professor Hathaway’s work reflects an impermissible definition of “persecution”.

However, reading the reasons of the Tribunal on this aspect of the matter, my opinion is that the assessment of the actions taken against the applicant during this period were found by the Tribunal not to amount to serious punishment or penalty or some significant detriment or disadvantage, being a direct reference to the observations of Mason CJ in Chan at 388.  What the Tribunal in fact did was look at what had occurred to the applicant, and concluded that whatever consequences flowed to the applicant arising out of events at the time of the Cultural Revolution, they were not of sufficient gravity to amount to persecution.  If the consequences do not have the necessary quality to constitute persecution according to the correct test, (which is what the Tribunal found in reference to the nature of the consequences in the light of the requirement referred to by Mason CJ in Chan), it does not involve an error of law if those consequences also do not meet some other description.

Concerning the events arising much later, at the time of the pro-democracy activities in 1989, the Tribunal first considered whether there was a real chance that the applicant would be of any interest or concern to the authorities such that he can be said to have a well-founded fear of persecution.  The Tribunal accepted that, “apart from certain exceptional cases, the events of 1989 are now no longer the subject of ongoing official investigation”.  The Tribunal viewed the applicant’s role in the 1989 pro-democracy movement as “very minor”.  The Tribunal found that there was nothing in the applicant’s evidence to suggest that the authorities had any adverse interest in him. 

The passage on which most reliance is placed by the applicant in the Tribunal’s reasons for judgment is the following:

“  I note that the applicant was interrogated but not detained by the authorities on his return to work.  I note also that the applicant was transferred to another job and not given any pay increase prior to his voluntary resignation.  In addition he was requested to write a report on his activities.  These consequences, which I accept he bore, are not of sufficient gravity or seriousness to be described as ‘the sustained or systematic violation of basic human rights demonstrative of the failure of state protection’ (see James C. Hathaway. The Law of Refugee Status, Butterworths Canada Ltd. 1991 at page 105).  Apart from these matters, the applicant suffered no other adverse treatment from the authorities on his return to work.”

The applicant contends that the categorisation of the accepted consequences to him as being of sufficient gravity or seriousness so as to amount to “the sustained or systematic violation of basic human rights demonstrative of the failure of state protection” involves the application of an incorrect test of persecution.  It was submitted that the “Hathaway definition” of “persecution” requiring either sustained or systematic violation of basic human rights demonstrative of the failure of state protection imposes a more stringent and different test from the concept of persecution as earlier referred to in the Tribunal’s reasons. 

If the Tribunal in fact adopted this Hathaway definition as the appropriate definition of persecution in reaching its conclusion, I would agree that in so doing it made an error of law.

However, as I see the reasons for judgment of the Tribunal viewed as a whole, this particular passage reflects simply, and unnecessarily, an opinion of the Tribunal that the consequences do not fall within the Hathaway definition.

The Tribunal found that the authorities in the PRC have no adverse interest in him, (as he was not a major or key player in the pro-democracy activities and demonstrations).  The Tribunal concluded:

“  Accordingly, on a careful consideration of all the material before me, the chance that the authorities had an adverse interest in the applicant when he departed from China is remote.  As there is no evidence from which I may infer that the applicant’s political profile has been enhanced or augmented in any manner since his departure from China, I find that the chances of the applicant now facing attention from the authorities is no more than remote.  In these circumstances, there is not a real chance that the applicant would now be at risk of persecution for a Convention reason from the relevant authorities.”

The Tribunal further noted:

“  In my view, the applicant might have a subjective belief that his future would involve a risk of persecution should he return to China....on the evidence available to me, there is no real chance that the relevant authorities in China either have now, or will develop in the foreseeable future, any adverse interest in the applicant.  Accordingly, I find that the applicant does not satisfy the definition of a Refugee.”

Viewing the reasons for judgment of the Tribunal as a whole, I do not think that there is implicit in those reasons the application of an incorrect test of what constitutes persecution.  The chain of reasoning exposed by the reasons of the Tribunal amounts to an assessment of what might occur to the applicant on his return to China, and the conclusion reflected in the passages set out immediately above involves the assessment that the authorities do not have, and will not in the foreseeable future have, any adverse interest in the applicant.  That is to say, whatever consequences may follow on his return to China, they will not be adverse to his interest as a result of his pro-democracy activities.  In short, on the evidence before it, the reasoning of the Tribunal is that it was of the view that no adverse consequences such as to amount to persecution would flow to the applicant if he were to return to China.

This conclusion was fairly open to the Tribunal and does not involve, in my opinion, the acceptance of an erroneous view of what constitutes persecution for the purposes of the Convention.

For the above reasons, no error of law has been demonstrated in the reasoning of the Tribunal.  The application should be dismissed with costs, to be taxed if not agreed.

I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date:   13 May 1997

Appearances  :          Mr A T Kincaid (instructed by J Lei & Co) appeared for the applicant

Mr C Gunst (instructed by the Australian Government Solicitor) appeared for the respondent

Date of hearing  :          24 April 1997