Shen, X.M v The Minister for Immigration & Ethnic Affairs

[1995] FCA 624

C A T C H W O R D S

MIGRATION - refugee - characterisation - whether relevant factors not taken into account -  whether irrelevant factors taken into account - nature of judicial review process - challenge to merits of decision - distinction between consideration of evidence and taking into account relevant factors.

Migration Act 1958
Administrative Decisions (Judicial Review) Act 1977

Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Morato v. Minister for Immigration Local Government and Ethnic Affairs (1992) 39 FCR 401
Kashayev v. Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal  (unrep. Fed. Court 24 May 1994, Northrop J)
Minister for Aboriginal Affairs v. Peko Wallsend (1986) 162 CLR 24
Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363
Li Shi Ping v. Minister for Immigration Local Governemtn and Ethnic Affairs (1995) 35 ALD 225

XIE, MIAN SHEN v. THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NO. WAG 125 OF 1994

FRENCH J.
PERTH
9 AUGUST 1995

IN THE FEDERAL COURT            )
OF AUSTRALIA  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )
GENERAL DIVISION  )  No. WAG 125 OF 1994

B E T W E N:  XIE, MIAN SHEN

Applicant

and

THE MINISTER FOR
  IMMIGRATION AND ETHNIC
  AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:  FRENCH J.

DATE OF ORDER:  9 AUGUST 1995

WHERE MADE:  PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

1. 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  )
WESTERN AUSTRALIA  )
DISTRICT REGISTRY  )
GENERAL DIVISION  )  No. WAG 125 OF 1994

B E T W E N:  XIE, MIAN SHEN

Applicant

and

THE MINISTER FOR
  IMMIGRATION AND ETHNIC
  AFFAIRS

Respondent

CORAM:        FRENCH J.
PLACE:          PERTH
DATE:  9 AUGUST 1995

REASONS FOR JUDGMENT

Factual Background

On 28 May 1994, Mian Shen Xie, a national of the Peoples Republic of China arrived by boat at the Australian Territory of Christmas Island.  He had no authorisation to enter Australia and was taken into custody under the provisions of the Migration Act 1958. He was held at the Port Hedland Detention Centre where he currently resides. He was not granted an entry permit. On 9 June 1994, Mr Xie made an application for refugee status which was received by the Department of Immigration and Ethnic Affairs on 13 June 1994. The application disclosed that he had departed China on 29 April 1994. It was supported by a letter dated 1 July 1994 subsequently sent to the Department by Mr Denis Crook, a legal practitioner and migration agent based in Port Hedland. On 6 July 1994, Catharina Boer, a delegate of the Minister for Immigration and Ethnic Affairs found that Mr Xie was not a

refugee for reasons which were set out on the decision record.  He was refused the grant of a Class 817 Protection (Permanent) Visa (Before Entry) and a Protection (Permanent) Entry Permit.  A criterion for each of those was that the grantee be a refugee.
  Mr Xie made application to the Refugee Review Tribunal on 6 July 1994 seeking a review of the decision.  His application was received by the Tribunal on 15 July.  He provided written and oral evidence to the Tribunal.  On 5 October 1994, the Tribunal rejected his appeal and affirmed the decision of the delegate.  On 2 November 1994, Mr Xie lodged an application in the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 seeking an order of review of the decision of the Tribunal.

The Tribunal's Findings
  On the written oral material before it, the Tribunal found that Mr Xie had joined the army of the Peoples Republic of China in October 1984.  He was in the Guang Dong Military Division or Region.  From January 1985 to February 1986 he studied at the Guilin Communications School in Guangxi Province where he learnt how to operate a telex machine.  Subsequently he worked at the Communications Division in Guilin which had the largest and most sophisticated communications centre in China.  His position was designated "Telecommunications Station Master".  It involved the sending and receipt of telexes from different Divisions.  When telexes arrived he would deliver them to the persons for whom they were intended.  He neither prepared telexed nor understood those sent in code.

There were seven people in the section in which he worked, all of the same rank.  He sometimes took responsibility for training up to 12 new people entering the area.  He had not been trained to operate communications equipment, other than the telex machines.  Mr Xie told the Tribunal that his unit differed from ordinary army units and that the staff were trained in martial arts.  He held a position of trust, was in close contact with the Commander and was well informed on what was happening at the Centre.

After graduating from the Communications School, Mr Xie continued to study by book work and occasional attendance at lectures.  From May 1987 he prepared for his return to his village by training to be a driver.  In 1988 he was offered the opportunity to undergo officer training at a Military College but declined the offer because at that time he had a girlfriend and did not wish to remain in the army.  Mr Xie jointed the Chinese Communist Party in 1988 because he thought that membership would help him with his employment prospects after he left the army.

In the event he did not leave the army until 1989.  Demobilisation of troops scheduled to leave had been postponed.  He did not receive officially assigned employment and had to look for a job himself.  He became a member of the militia who are supposed to train once a year and to be available for further service if required.  He was asked to attend training but did not because he was too busy with his work.

There was some evidence that while attending the Communications School at Guilin Mr Xie went to parties at the Guangxi Teachers' University where the political situation was discussed.  Nobody in the army was aware of his involvement in these discussions.

In 1989 Mr Xie attended two demonstrations in Guangzhou and collected donations on behalf of students who were demonstrating.  He expressed the opinion to army friends from Guilin who were stationed in Guangzhou that the army should not be used against students.  In June of that year he obtained seven blank permits for travel to Shenzen for a student who needed to escape to that place.

On 15 June 1989, Mr Xie attended a meeting of the Chinese Communist Party in his village at which he view a video promoting an official line on popular demonstrations then occurring.  He was asked if he had participated and also asked to sign a letter agreeing not to take part in the movement.  He told officials that he had taken part in two demonstrations.  He argued with them that the army should not have been used to disperse the students.  He was told by the District Secretary of the Party that he was young and did not understand society.  In the event he was not forced to sign the letter but remained a member of the Communist Party until he left China.

For sometime in 1989, Mr Xie worked as a truck driver in a private company.  He left that job around the end of the year and returned to his village because he wanted to be with his girlfriend.  In the village he worked as a member of a security force with responsibility for protecting the village against thieves.  This
employment continued until the end of 1991, following which he was employed as a truck driver on a highway construction project for about five months.  Thereafter he worked at home with his wife producing handicrafts until early 1993.

In March 1993, Mr Xie was employed as a driver for a joint venture involving overseas interests and local authorities in Guangzhou.  The joint venture produced and traded construction materials.  This employment was obtained with the assistance of a man from Mr Xie's village who had an influential government post in Guangzhou.  The duties included driving the manager and other officials of the company, running messages and other routine tasks for the company manager.  Mr Xie came to observe or hear about behaviour by the manager which he believed to be corrupt.  This behaviour included the use of public funds for personal purposes including trading on the share market and in real estate.  He was informed by the company accountant that a substantial amount of company funds could not be accounts for.  The manager's brother was in control of the section of the company responsible for releasing those funds.  In September 1993, Mr Xie made an anonymous complaint to the Auditor-General's office about the suspected corruption.  Subsequently an officer from the Auditor-General's office came to his workplace and interviewed a number of persons including Mr Xie about work relations and the economic development of the company.  Mr Xie believed the visit was in response to his allegations although they had been made anonymously.  When driving the visiting official around as he carried out his investigations, Mr Xie spoke to him about what was happening at the company on two occasions.  The investigations continued until March 1994.
  Nothing much seems to have happened to the allegedly corrupt manager.  But Mr Xie believed that the General Manager was aware of his complaint to the Auditor-General's office.  He believed that although the report he provided in September 1993 was unsigned the manager may have seen it and recognised his handwriting.  At one stage, he said, the General Manager threatened him indirectly in the course of a conversation by stating that whoever got in his way would die.

Mr Xie believed that the manager campaigned to get rid of him from the company in January 1994.  A vehicle for which he was responsible was damaged by vandals and he was made to pay a month's salary by way of compensation and to write a letter of guarantee.  His access to the office was limited, two persons were sent to carry out similar duties to those performed by him.  The people who took over his duties tried to cause a fight and create problems for him.  According to Mr Xie the officials at the company were reluctant to sack him without an excuse because of his relationship with the friend who had helped him to obtain the position in the first place.

At about this time his wife was assaulted near her home.  Mr Xie believed the attack was arranged by the manager of the company and carried out by army or ex-army personnel on his behalf.  The attackers had army motor cycles.  After his departure from China someone from his workplace telephoned his younger brother to find out where he was.  This person did not say why he wanted to contact Mr Xie.  Mr Xie expressed a belief that this was an indication that the manager from his work unit continued to seek him and might do him harm on his return.
  Mr Xie helped to recruit several people to join the boat and come to Australia and believes that he will therefore be seen by Chinese authorities as an organiser of the trip.  His return to China would trigger an investigation into his past.  He fears that he would face harsh penalties beyond those normally imposed for illegal departure.  His work in a sensitive position in the army, his employment as a public servant, his membership of the Communist Party, his involvement in the 1989 demonstrations and his reporting of corruption and role as an organiser of the illegal departure would place him at risk of treatment amounting to persecution on his return to China.

According to the Tribunal, it was common ground that there are no special regulations covering unauthorised overseas travel for former military personnel.  Reference was made to Articles 4 and 8(5) of the Law of the Peoples Republic of China on the Control of the Exit and Entry of Citizens which provide:

"Article 4: After leaving the country, Chinese citizens may not commit any act harmful to the security, honour or interests of their country.

Article 8(5): Approval to exit the country shall not be granted to ... persons whose exit from the country will, in the opinion of the competent department of the State Council be harmful to state security or cause major loss to national interest."

Other regulations possibly applicable to Mr Xie as a member of the military reserve, prohibit the disclosure of military secrets and the loss of documents or objects containing such secrets and also provide:

"Article 7: Any person who secretly crosses the national boundary (borderline) in order to flee the country shall be sentenced to imprisonment of not more than three years or criminal detention or, if the circumstances are serious, to imprisonment of not less than three years and not more than ten years....."  Interim Regulations of the Peoples Republic of China on Punishment of Servicemen who Commit Crimes Contrary to their Duties.

The Tribunal referred to the definition of a refugee which appears in 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.  The definition provided that a refugee is 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 Tribunal discussed the construction placed on that provision by the High Court in Chan Yee Kin v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the reference to membership of a "particular social group" considered by the Full Federal Court in the case of Morato v. Minister for Immigration Local Government and Ethnic Affairs (1992) 39 FCR 401. See also Kashayev v. Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal Unrep. Fed. Court 24 May 1994, Northrop J.

In assessing Mr Xie's application the Tribunal accepted that he served in the army from 1984 to 1989, but would not accept that he had been permanently
barred from leaving China because of his military service or that his time in the army would have a significant impact on his treatment on return.  Nor was the Tribunal satisfied that Mr Xie's unit was "special" in any significant way.

The Tribunal accepted that Mr Xie may have worked at an army communications centre which handled sensitive information.  Nevertheless it found that it was apparent from the evidence that he did not hold a very senior position or have a high level of security clearance at the centre.  He was a telex operator.  He was not privy to the code in which sensitive telex messages were sent.  While he might have had information about troop manoeuvres and satellite launches, it was not accepted that he had access to highly sensitive or confidential military information.  Nor did the Tribunal accept that his exit from the country some five years after he left the army would be considered harmful to State security or likely to cause a major loss to national interest under the laws on exist and entry.  The Tribunal wrote:

"In conclusion, I find that, while Mr Xie may have worked in a centre which handled sensitive and confidential communications, he did not have a high level of security clearance such that he had access to highly sensitive information.  Further, while I accept that Mr Xie would have been covered by the provisions forbidding travel abroad by members of the military during his time on active duty and may have signed an agreement not to leave the country during this time, I do not accept that his illegal departure from China five years after leaving the army would be considered a serious breach of security harmful to state interests.

The Tribunal noted that neither Mr Xie's superior officers nor anyone else in authority seemed to be aware of his participation in discussions at Guilin University in late 1988 and 1989.  In any event, those matters caused him no difficulties at that time or subsequently.  As to his participation in demonstrations in Guangzhou in 1989, the Tribunal held that he was not required to attend political re-education classes.  The meeting at which the video promoting the official line on the demonstrations was shown was not one that he was required to attend.  And even though he had confessed to attending two demonstrations and refused to sign a letter that he would not in future, and moreover had criticised the use of the army against the students, he was not expelled from the party not did he suffer any other adverse consequences.  His participation and views seem to have been dismissed as a consequence of his youth and lack of understanding of society.

The Tribunal noted what it described as "ample evidence" from the Department of Foreign Affairs and Trade and other sources, that Chinese authorities are not concerned about minor participation in past political activities.  Mr Xie had never been involved in organised political activities likely to be viewed as a serious threat by the Chinese government.  His minor participation in the pro-democracy movement in 1989 would, in the assessment of the Tribunal, be unlikely to have any significant impact on his treatment on return.

Accepting that Mr Xie observed corrupt activities at his work, the Tribunal expressed considerable doubt about his claim that he was targeted by the manager of the work unit.  Even if Mr Xie was suspected of having played some role in reporting the corruption, the Tribunal could not find that he faced a real chance of persecution for a Convention reason as a result of that.

On the question of his illegal departure from China, the Tribunal referred to two of its earlier decisions in which it was said that it is a basic tenet of international law that countries have a right to control the passage of people across their borders and to impose penalties for those who do not conform with these laws.  Applicants might have a claim for refugee status if the penalties imposed for illegal departure were excessive for breaches of exit and entry laws and their motives for leaving or remaining outside the country came within the Convention or if the unauthorised departure were viewed by the country or origin as an implied political statement of disloyalty or defiance.  But illegal departure is not generally viewed as an implied political statement of disloyalty or defiance by Chinese authorities.  The consequences of illegal departure are most likely to be a period of less than one month in detention and a fine of between 1,000 and 5,000 Yuan.  This treatment would not amount to persecution under the Convention.

In the event the Tribunal concluded that Mr Xie did not have a well-founded fear of persecution for a Convention reason in China and thus could not find him to be a refugee from the country towards whom Australia has protection obligations.

Grounds of Review
  The grounds of the application for review are as follows:

"2.That the RRT's decision refusing the Applicant refugee status was an improper exercise of the power conferred by the Migration Act 1958 in that:

(i)the RRT took into account irrelevant considerations in making the decision, namely;

(a)that the Applicant worked in a communications centre in Guilin;

(b)that the Applicant attended university in Guangxi;

(c)that the Applicant's participation in the two demonstrations and his criticism of the Government's use of the army against the students were dismissed as a consequence of his youth and lack of understanding of society;

(d)that the Applicant was not required to attend political re-education classes in 1989;

(e)that the fact that the Applicant had information on troop manoeuvres and satellite launches was not evidence that the Applicant had access to highly sensitive or confidential military information;

(f)when in fact each of such considerations was:

(i)unsupported by evidence before the RRT;

(ii)contrary to the evidence provided by the Applicant;

and

in respect of (c) above, speculation on the part of the RRT.

(ii)the RRT failed to take into account relevant considerations, namely;

(a)the evidence submitted by the Applicant that he worked in a communications centre in Guangzhou;

(b)the evidence submitted by the Applicant that he attended university in Guilin;

(c)the evidence submitted by the Applicant that there are special rules forbidding travel outside China for those who worked in the communications area;

(d)the evidence submitted by the Applicant that following his participation in two demonstrations in 1989 and his discharge from the army, he suffered adverse consequences as a result of his participation in the demonstrations namely that he was not provided with a job.

(iii)the RRT's decision was so unreasonable that no reasonable person could have made that decision, namely;

(a)that the Applicant is not a refugee within the meaning of the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967);

(b)that the Applicant's time in the army will not have a significant impact on his treatment on return;

(c)that the Applicant's attendance at the meeting of the CCP in June 1989 could not be described as a punishment or a sign of lack of trust;

(iv)the procedures that were required by Migration Act 1958 to be observed in connection with the making of the decision were not observed namely that the RRT did not act according to substantial justice and the merits of the case."

The Evidence on the Review Application
  An order had been made on 16 November 1994 by Carr J that the hearing of this application be by way of affidavit evidence.  The only affidavit filed by the application was an affidavit sworn 13 December 1994 setting out the chronology of his applications for refugee status and review of the refusal thereof.  It also set out factual material broadly  supportive of the outline of facts already provided with the additional statement that ex-military personnel working in the communications area are not permitted to leave China.

Also before the Court was the decision of the refugee Review Tribunal and an affidavit of Peter John Corbould, a solicitor employed in the office of the Australian Government Solicitor.  This affidavit set out a number of documents from the files of the Department of Immigration and Ethnic Affairs and the Refugee Review Tribunal.  These included submissions made on behalf of the applicant at both the officer level and that of the Tribunal.

The Merits of the Application
  Mr Xie was represented by the Director of the Legal Aid Commission of WA at the time his application for an order of review was filed in the Court.  However, on 23 February 1995 his legal aid was terminated.  He was so advised by letter of the same date.  He was subsequently informed that the Court would be notified of that fact.  On 19 April 1995, a notice was filed in Court stating that the Director ceased to act as solicitor for Mr Xie.  He appeared in person at the hearing of his application assisted by an interpreter.  His ability to participate effectively in the process was limited by the lack of any legal representation.  The thrust of his comments in Court, which were limited, was directed to the merits of the Tribunal's decision.  And although framed by nominal reference to alleged improper use of power, so too were the grounds upon which review was sought in the application. 

It is convenient to deal first with the contention that the Refugee Review Tribunal failed to take into account relevant considerations.  The principles which govern the obligation of a decision-maker to take into account relevant considerations are well settled and need not be repeated here - Minister for Aboriginal Affairs v. Peko Wallsend (1986) 162 CLR 24 at 39-40. As Deane J said in Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363 at 375:

"The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide."

There is a distinction to be drawn between taking into account relevant considerations and taking into account particular pieces of evidence - Le Shi Ping v. Minister for Immigration Local Government and Ethnic Affairs (1995) 35 ALD 225. In the present case the primary relevant considerations are those factors which are sufficient or necessary to characterise a person as a refugee for the purposes of the Migration Act 1958 and the provisions of the Convention and Protocol which are incorporated by reference into the Act.

The allegations that the Tribunal failed to take into account relevant considerations in this case are, on the face of the application, founded upon the failure of the Tribunal to take into account particular pieces of evidence.  None of the grounds in this respect is capable of sustaining a case that the Tribunal failed to take into account relevant factors.

It is said that the Tribunal failed to take into account evidence submitted by Mr Xie that he worked in a communications centre in Guangzhou.  This contention should be read against the allegation that the Tribunal took into account an irrelevant consideration, namely that he worked in a communication centre in Guilin.  Nothing, however, turns on the geographical location of the communications centre in which he worked.  The Tribunal accepted that Mr Xie may have worked at an army communication centre which handled sensitive information.  Importantly, however, it found that he did not hold a very senior position or have a high level of security clearance at the centre.  The Tribunal expressly noted the comment by Mr Xie's advisors that he had claimed to work in Guangzhou, not Guilin.  It noted that his evidence was somewhat confused on this point but when the Tribunal sought clarification he stated that he had worked at Guilin.  This was said to be consistent with the evidence he had given on the gatherings he had attended at Guangxi University in 1988 and 1989 and the demonstrations in Guilin.  The Tribunal noted advice from a Professor Yu on the issue, but took the view that it was inconclusive and in the end attached no weight to it.  There is no error disclosed in this approach to the evidence.

Secondly, it was said that the Tribunal had failed to take into account evidence submitted by Mr Xie that he attended university of Guilin.  This too must be read against the connection that the Tribunal had taken into account an irrelevant consideration namely that Mr Xie attended university in Guangxi.  As counsel for the respondent pointed out, the only question in issue appeared to be whether the university was in Guangxi or Guilin.  It appears, however, from the Tribunal's findings that Guilin is in Guangxi province.  There is not point of substance in this ground.

It is further contended that the Tribunal failed to take into account evidence submitted by Mr Xie that there are special rules forbidding travel outside China for those who worked in the communications are.  The Tribunal expressly referred to Mr Xie's evidence that there are special rules forbidding travel outside China for those who have worked in the communications area and that he had to sign an oath that he would never travel overseas.  It also noted his belief that the Public Security Bureau would pass on information on his illegal departure to the National Security Bureau on his return to China and that the would be treated more harshly than others because he served in the communications section of the army.  At p.18 of its reason for decision the Tribunal found there were no special laws covering travel overseas for ex-army personnel.  The finding was open to the Tribunal to make.  There is no way in which this can be characterised as failure to take into account a relevant factor.

It was also contended that the Tribunal failed to take into account evidence from Mr Xie that following his participation in two demonstrations in 1989
and his discharge from the army he suffered adverse consequences as a result of his participation in the demonstrations in that he was not provided with a job.  At p.8 of its ruling, the Tribunal noted Mr Xie's evidence that he did not know why he was not given work promised to him after he had left the army.  In a draft statement provided to the Tribunal on 16 August 1994, Mr Xie said he was not assigned government jobs after he was demobilised.  He said:

"They did not assign us government jobs because they didn't have trust in us.  I don't know why.  I went to the Department which assigns jobs.  I was given no formal assignment.  Even later when I got job as driver with provincial government, not assigned, but through my contacts.  Basically no government job ever assigned to me."

The Tribunal's summary of Mr Xie's evidence was also based upon oral evidence which he gave through an interpreter before the Tribunal.  This is a finding which appears to have been open to the Tribunal.  It certainly does not indicate that the Tribunal has failed to take into account a relevant factor.

In addition, it is asserted that the Tribunal took into account various irrelevant considerations.  The first two have already been mentioned, namely that Mr Xie had worked in a communications centre in Guilin and that he had attended university in Guangxi.  It was also said to be irrelevant that his participation in two demonstrations and his criticism of the government's use of the army against students were dismissed as a consequence of his youth and lack of understanding of society.  The Tribunal recounted that fact in summarising Mr Xie's evidence at p.10 of its reasons for decision.  At p.20 of its ruling, it noted that his participation in demonstrations and the view he had expressed were dismissed as a consequence of
his youth and lack of understanding of society.  That is plainly a relevant matter in assessing the extent to which he might hold a well founded fear of persecution on account of his political opinions.

It was said to be irrelevant that he was not required to attend political re-education classes in 1989.  As counsel for the respondent pointed out, the Tribunal accepted his claim that he attended a Communist Party meeting on 15 June 1989 at which he was shown a video and asked to sign a letter agreeing not to take part in the pro-democracy movement.  The fact that the Tribunal did not choose to charaterise this event as political re-education does not mean that it has failed to take into account a relevant consideration.

The Tribunal was said to have taken into account irrelevant considerations in finding that the applicant had information on troop manoeuvres and satellite launches but that this was not evidence that he has access to highly sensitive or confidential military information.  The formulation of this ground highlights the character of this application generally as an attach upon the fact finding process of the Tribunal.  The conclusions which the Tribunal came to in this respect were plainly supportable.

It was also contended that the Tribunal's decision was so unreasonable that no reasonable person could have made that decision and that procedures required by the Migration Act were not observed, namely that the Tribunal did not act according to substantial justice and the merits of the case.  In my opinion there is
no substance in either of those contentions.

I have generally considered the reasons of the Refugee Review Tribunal against the criteria necessary to support characterisation of a person as a refugee.  On the evidence before it and the conclusion it drew, it was plainly open to the Tribunal to conclude as it did that Mr Xie does not fall into the category of one who has a well-founded fear of persecution on any of the grounds set out in the Convention.  The application must be dismissed with cost.

I certify that this and the preceding
  nineteen (19) pages are a true copy of
  the Reasons of Judgment of his Honour Justice French.

Associate:
  Date:

The Applicant appeared in Person.

Counsel for the Respondent: Mr Peter MacLiver
Solicitors for the Respondent: Australian Government Solicitor

Date of Hearing: 28 July 1995
Date of Judgment: 9 August 1995