Ping, Liu v Vrachnos, John a delegate for the Minister for Immigration and Ethnic Affairs
[1996] FCA 70
•19 FEBRUARY 1996
CATCHWORDS
ADMINISTRATIVE LAW - judicial review - decision of delegate of the Minister - refusal of refugee status - error of law - whether decision unreasonable - whether findings contradictory - whether all relevant matters considered - whether "finding" necessitates a higher test than "real chance"
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Migration Act 1958 (Cth)
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen Ru Mai v Minister for Immigration (1995) 130 ALR 405
Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223(1989) 169 CLR 379
Wu v Minister for Immigration (1995) 138 ALR 367
Liu Ping v John Vrachnos, a Delegate of the Minister for Immigration and Ethnic Affairs
No. VG 450 of 1993
Judge: Heerey J
Date: 19 February 1996
Place: Melbourne
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No. VG 450 of 1993
)
GENERAL DIVISION )
B E T W E E N:
LIU PING
Applicant
- and -
JOHN VRACHNOS, A DELEGATE OF THE
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGE: Heerey J
DATE: 19 February 1996
PLACE: Melbourne
MINUTE OF ORDERS
The Court orders that:
The application be dismissed with costs, including reserved costs.
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 450 of 1993
)
GENERAL DIVISION )
B E T W E E N:
LIU PING
Applicant
- and -
JOHN VRACHNOS, A DELEGATE OF THE
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
JUDGE: Heerey J
DATE: 19 February 1996
PLACE: Melbourne
REASONS FOR JUDGMENT
The applicant is a citizen of the People's Republic of China having been born in that country on 20 November 1957. She seeks an order of this Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) setting aside a decision which refused her refugee status. The respondent made that decision on 22 September 1993. The respondent is a member of the Refugee Review Tribunal, but he made the decision in question under s 22AA of the Migration Act 1958 (Cth) as then in force in his capacity as a delegate of the Minister.
The case of the applicant is that on their face the respondent's reasons disclose error of reasoning sufficient to amount to an error of law and show that the decision is so unreasonable that no reasonable decision-maker could have made it.
Refugee Status
Section 4(1) of the Act applies the Geneva Convention definition of a refugee, that is to say a person who
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it.
The meaning of that definition has been expounded by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. In particular, the High Court held that the expression "well-founded fear of being persecuted" required that the applicant for refugee status have a subjective fear and also that there must be an objective justification or foundation for that fear: at 396 per Dawson J, at 406 per Toohey, at 413, 414 per Gaudron J and at 429 per McHugh J. The degree of likelihood of persecution occurring is encapsulated in the expression "a real chance": at 389 per Mason CJ, at 398 per Dawson J, at 407 per Toohey J, at 413 per Gaudron J and at 429 per McHugh J. A "real chance" is one that is "substantial" as distinct from "remote", "insubstantial" or "far-fetched": at 389 per Mason CJ, at 398 per Dawson J, at 407 per Toohey J and at 429 per McHugh J.
The Applicant's Case and the Respondent's Decision.
The applicant entered Australia on 30 December 1989 and was granted a student entry permit valid to 25 July 1990. That permit has not been extended; thus the applicant is a prohibited
non-citizen.
The applicant submitted three primary reasons for her contention that she will be persecuted for a Convention reason if she returns to China. First, her family was persecuted during the Cultural Revolution because her mother's family was considered to be counter-revolutionary and associated with the Guomindang. Secondly, when the applicant was 16 years old she was raped by a military doctor who subsequently killed two other people and then committed suicide. Her personal records in China include allegations blaming her for these matters. Thirdly, her pro-democracy political activities in China during May/June 1989 and since her arrival in Australia have brought her to the attention of the authorities.
As to the first ground, the respondent accepted that the applicant's family had suffered in the Cultural Revolution in the way she alleged, but found that circumstances have substantially changed in China and that since at least 1980 the applicant and her family have not suffered any persecution or discrimination on this ground.
As to the second ground, the respondent accepted the applicant's account of rape in 1977, and found that since then she had suffered one incident of sexual harassment. He found that this was an isolated incident. The respondent concluded there was no persuasive evidence that there has been any systematic or selective harassment based on the applicant's unfortunate past.
In this regard the respondent found the chance of any persecutory conduct or systematic harassment in the future was remote.
As to the third ground, the respondent accepted that the applicant took part in three demonstrations in Shanghai in May and June 1989 and that she was a supporter of the more active demonstrators. She collected donations and shouted slogans. She did not give public speeches but voiced her opinion to people around her. However even though the leaders of her work unit were aware of her attendance at the demonstrations, she was able to continue work without any punishment until she left China in December of that year. She paid some bribes to obtain her approval to leave, but this was a common practice and was simply to speed up the process.
In her evidence before the respondent the applicant agreed that she was not of interest to the authorities when she left. She said it was only in June 1990 that they became interested because of her activities in Australia. On 4 June 1990 the applicant attended a rally in the Melbourne City Square to commemorate the first anniversary of the Tiananmen Square massacre and afterwards she demonstrated outside the Chinese Consulate. At this demonstration she was filmed by Channel 7 News and was later shown on a telecast standing next to another demonstrator who was being interviewed. She believed that this would have been noted by the Chinese authorities. The applicant was in communication by letter and telephone with her family in China but gave evidence to the respondent that she did not mention political activities because she knew her letters and telephone calls were intercepted and that her family members could suffer. She also said that her family was alerted to the need not to mention anything that could be adversely construed.
In late June 1990 the applicant's parents and husband were visited by officers of the Public Security Bureau seeking information about the applicant's participation in the demonstrations of May/June 1989. As to this the respondent found
The fact that members of the work unit and the security forces visited the family is not necessarily indicative that the authorities believed that the applicant has been involved in activities adverse to Government interests. These are common visits that are made regardless of the knowledge of the officer who is making them. In view of the applicant's evidence that no enquiries were made about her activities in Australia and that she does not reveal her activities to her family, I find that the visits were not inspired by the applicant's appearance in an Australian news broadcast, but were carried out to find out if the applicant had been active during the Tiananmen period. I believe it is unlikely that the family would disclose any information that may be prejudicial as they would be aware of possible diverse consequences. For this reason, while I make no finding as to how letters from her mother and husband came into her possession, I give little weight to those letters referring to her pro-democracy activities. They are self-serving and inconsistent with the evidence given by the applicant. The applicant's evidence that her parents are "safe if they keep quite" supports the finding that the authorities have no interest in the applicant arising from her pro-democracy activities in China.
Since the second half of 1992 the applicant has been formally involved in the Chinese pro-democracy movement in Australia. She became a member of a student organisation and until the end of 1992 she was in charge of internal administration. She helped organise the Chinese Human Rights Exhibition in South Australia in February 1993 and delivered a short speech critical of the Chinese Government. She helped organise and attended a protest outside the Chinese Consulate in Melbourne in May 1993. She has
attended meetings, conferences and demonstrations and has met and spoken with some leading political dissidents and activists.
The respondent in his reasons discussed in some detail the nature of the applicant's activity in these organisations in 1992 and 1993. The respondent concluded that
... only those people who are activists, in the sense that they have displayed the ability to organise and/or lead anti-government activities, have a real change of being persecuted for their political opinion on return. Although it is possible that the local Chinese authorities are aware of her attendance at various functions, I find that the applicant has not been involved in activities that bring her to the adverse notice of the Chinese Government.
After further discussion and rejection of the applicant's claims that she would be "unable to contain her political opinions if she returns" the respondent concluded his reasons as follows:
The applicant and witnesses stated they were unaware of anybody returning from Australia. The Australian authorities have been monitoring students returning to Beijing and report that there has been nothing more than questioning at arrival relating to length of stay in Australia. These included a returnee who had her refugee application rejected in Australia. (cable O.BJ2072, 16 June 1993). In the circumstances, having found that the activities will not come to the notice of the authorities, I find also that there is no more than a remote chance that the applicant will face persecution as a counter revolutionary.
In weighing up the evidence and considering the circumstances, I find that while the applicant genuinely fears persecution for a Convention reason, there is not a real chance that she will be persecuted if she returns to China.
Chinese Authorities' Knowledge of Applicant's Activities
Counsel for the applicant argued that the respondent's finding that the applicant's activities in Australia have not come to the notice of the Chinese authorities was contradicted by his finding that her family have been visited by officials. In developing this argument, counsel argued that the appearance of the applicant on the Australian television news program must have somehow come to the authorities in China because that was the only explanation for the visit to her family. I do not agree. The applicant's evidence that the officials did not enquire about her activities in Australia and that she did not reveal those activities to her family rationally supports the respondent's finding that the visits were not inspired by her appearance on Australian television but were carried out to check on her activities during the Tiananmen period. Conversely, the mere fact that the officials' visit to the applicant's family in China occurred shortly after the telecast in Australia does not logically compel the conclusion that the former was caused by the latter.
The Cable of 16 June 1993
The cable referred to in the respondent's reasons was from the Australian Embassy in Beijing. It was in these terms:
TREATMENT OF PRC STUDENTS ON RETURN
FOR RAI AND ONSHORE REFUGEES DIVISION
FROM IMMIGRATION
WE RECENTLY INTERVIEWED IN RELATION TO A CLASS 100 (SPOUSE) MIGRATION APPLICATION. GIVEN THE CLAIMS SHE MADE DURING HER (REFUSED) DORS APPLICATION, WE TOOK THE OPPORTUNITY TO ENQUIRE ABOUT HER EXPERIENCES ON RETURN TO CHINA.
APPLICANT ARRIVED IN A/A 02...90 AS A STUDENT, APPLIED DORS IN AUGUST 1990, AND WAS REFUSED IN JANUARY 1993. CLAIMS CENTRED ON INVOLVEMENT IN EVENTS OF MAY/JUNE 1989 IN BEIJING AND THEN IN DEMONSTRATIONS IN SYDNEY.
APPLICANT RETURNED TO THE PRC 05.93.
WE ASKED IF SHE HAD BEEN QUESTIONED ON ARRIVAL AT BEIJING AIRPORT. SHE STATED THAT SHE HAD NOT/NOT BEEN REFERRED OFFLINE BUT THE PRIMARY LINE IMMIGRATION OFFICER ASKED WHY SHE HAD STAYED SO LONG IN A/A. SHE DID NOT RESPOND AND THE QUESTION WAS NOT REPEATED. NO FURTHER QUESTIONS WERE ASKED.
APPLICANT HAS NOT BEEN APPROACHED BY ANY PRC AUTHORITIES
SINCE ARRIVAL.
APPLICANT HAS NOT ATTEMPTED TO RENEW HOUSEHOLD REGISTRATION NOR TO SEEK EMPLOYMENT. HER VIEWS WERE SOUGHT ON OTHER RETURNING STUDENTS RE-ESTABLISHING THEMSELVES IN THE PRC. SHE MENTIONED THAT TWO FRIENDS RETURNED RECENTLY INTENDING TO LIVE IN BEIJING AND HAD ALSO ENCOUNTERED NO DIFFICULTIES. THEY HAD NOT SOUGHT EMPLOYMENT IN A STATE-CONTROLLED WORK UNIT AS WITH THE MONEY EARNED IN A/A THEY INTEND TO GO INTO BUSINESS.
THESE STATEMENTS CORRESPOND WITH PREVIOUS STATEMENTS BY RETURNING STUDENTS. THAT PRC AUTHORITIES DO NOT SEEK TO QUESTION THEM REGARDING INVOLVEMENT IN THE EVENTS OF MAY/JUNE 1989 OR RELATED ACTIVITIES WHILE OVERSEAS.
Counsel for the applicant referred in particular to para 6 of the cable and argued that it followed that a person, who unlike the person referred to in the cable, had attempted to renew household registration and had sought employment would have faced persecution. I do not think that conclusion follows. Paragraph 6 appears to be merely inserted for the purpose of giving a full description of the particular circumstances of the person therein referred to. It does not follow that a returning student, including one who had had a refugee application rejected in Australia, who did not share those characteristics would suffer some (quite unspecified) adverse attention - let alone that such persons would be persecuted.
Applicant's Awareness of Experience of Returning Chinese
The passage in the reasons referring to the cable commences with the words:
The applicant and witnesses stated that they were unaware of anybody returning from Australia.
At a very late stage of the hearing before me, counsel for the applicant sought to rely on that sentence as demonstrating error.
He tendered the transcript of the hearing before the respondent. The transcript shows that the respondent had been asking the applicant if she had any evidence as to what happened to returning Chinese. The evidence then turned to the rape incident, following which the applicant, through the interpreter, raised the subject again. The following passage occurred:
INTERPRETER: Can I give you some examples regarding the evidence you just mentioned.
MEMBER:She wants to give me some evidence?
APPLICANT: This one is a type of ... and I know one - another example is Mr Shen Dien Tong maybe you should know that. Mr Shen Dien Tong was deported from Australia.
MEMBER:These are very high profile people that I'm - I don't know if you're suggesting you're that high profile, but they're very high profile?
APPLICANT: But Shen Dien Tong is just - was just an ordinary member. Shen Dien Tong was an ordinary - ordinary member, and when Prime Minister Keating visit China, and he was kept inside by the authority. He was not allowed to go outside. The law in China actually is the political interest of the Chinese Communist Party, and it is in the Chinese Constitution that people have the right of freedom of speech and freedom of association or freedom of holding demonstrations but actually people - is rights, people can't enjoy these rights in China. The nature and this Shen Dien Tong was only an ordinary member, member, and he hold - received lots of punishment after he returned to China, and I think in my case I have been involved in lots of activity - involved in activities, political activity here in Australia. So I think that if I return to Australia I will receive severe punishment.
The hearing then concluded.
It was thus not strictly true to say that the applicant stated she was unaware of anybody returning from Australia to China. The most likely explanation is that the respondent overlooked the
fact that the applicant had made the assertion about Shen Dien Tong in the passage just quoted. The evidence about Mr Tong amounted to one specific instance of his being kept inside during the Australian Prime Minister's visit - an incident which, if it occurred, might amount to interference with Mr Tong's liberty but would hardly constitute persecution. The statement that Mr Tong "received lots of punishment" is completely unspecific. At worst, the respondent made an error of fact in summarising the evidence he had heard. The nature of the evidence omitted, considered in the circumstances of the case as a whole, does not to my mind indicate that any error of law occurred or that the result would have been any different had the evidence been expressly adverted to.
"Finding"
Finally counsel for the applicant attacked the concluding paragraph of the respondent's reasons in what he said:
... I find ... there is not a real chance that she will be persecuted if she returns to China.
This was said to involve "the error of law identified by Sheppard J in Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 at 252-253". Counsel also referred to Wu v Minister for Immigration (1995) 138 ALR 367 at 373 and Chen Ru Mai v Minister for Immigration (1995) 130 ALR 405 at 410. Counsel said that the word "find" was used in the same sense as used earlier in the reasons, that is to say "in the common law sense of a finding on the balance of probabilities".
The respondent it was said was applying a higher test than that of a "real chance".
I have read the authorities referred to. They do not in my view support the applicant's argument. Applying the Act as interpreted in Chan, the respondent was obliged by law to decide, on the evidence before him, whether there was a "real chance" of the applicant being persecuted if she returned to China. This he did. His language is not open to the construction that he thought his task was to find whether it was more likely than not that the applicant would suffer persecution. The word "find" in this context means "to determine an issue after judicial enquiry": Macquarie Dictionary. The respondent's task was not of course "judicial" in the technical federal constitutional sense, but it did require the judge-like consideration of an issue in a fair and rational way with procedural fairness and reaching a conclusion on that issue. What the respondent found was there was not a chance of persecution sufficiently likely to occur that it answered the description "real".
Order
The application will be dismissed with costs including reserved costs.
I certify that this and the preceding (11) eleven pages are a true copy of the reasons for judgment of his Honour Mr Justice Heerey.
Dated:
Associate
Appearances
Counsel for the applicant: Mr T Hurley
Solicitor for the applicant: Barlow & Co
Counsel for the respondent: Mr R Downing
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 7 and 8 February 1996
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