Shi Chu Lin v Minister for Immigration and Multicultural Affairs

[1999] FCA 192

FEDERAL COURT OF AUSTRALIA

Shi Chu Lin v Minister for Immigration & Multicultural Affairs [1999] FCA 192

MIGRATION – judicial review of decision of Refugee Review Tribunal refusing to grant applicant protection visa – “one child policy” in China – whether well‑founded fear of persecution for a Convention reason – whether grounds of review as specified in Migration Act 1958 (Cth) s 476(1)(a), s 476(1)(d) or s 476(1)(e) available

Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(d), 476(1)(e), 476(3)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied

SHI CHU LIN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1083 OF 1998

LEHANE J

10 MARCH 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1083 OF 1998

BETWEEN:	SHI CHU LIN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	10 MARCH 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1083 OF 1998

BETWEEN:	SHI CHU LIN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LEHANE J
DATE:	10 MARCH 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal dated 18 September 1998, by which the Tribunal affirmed a decision not to grant the applicant a protection visa. The grounds on which review is sought are those specified in s 476(1)(a), (d) and (e) of the Migration Act 1958 (Cth). The applicant, who represented himself and addressed me through an interpreter, did not provide particulars of the grounds.

   Facts; reasons of the Tribunal

2. The Tribunal accepted the account which the applicant gave to it, during the hearing before it, of the circumstances leading to his application for a protection visa.  It was summarised by the Tribunal, in its reasons, as follows:

   “The applicant indicated that he was a very poor fisherman from a village in the Changle area.  He had only completed school until grade 4, and had then gone to work for his father.  His brother was mentally retarded, and could not support himself, and as the parents got older the applicant had to support his whole family.  He was told by local authorities that he could only catch 2 kilos of fish.  He could not afford to do this, as he could not feed his family on this.  He had then set up a cake shop.  When his son was born, the local village authorities had said his wife had to have a sterilisation operation.  He had not wanted his wife to have this, as she helped in the shop, and they could not afford for her to have time off.  The authorities then fined them, which he could not pay.  The authorities went to his house, and his father had an argument with them.  This occurred around March 1994.  His father was very angry, and he soon became sick after this incident and died.

   The applicant closed down his shop in April and went elsewhere to work and to escape local authorities.  He worked for a man who was sympathetic to him, and who said he would help him get out of the country on a forged passport, as he had had such a hard life.

   The applicant said that since he had left home his father had died, and his brother had also starved to death because he could not look after himself.  His wife and mother and child had moved to another village, and were growing their own vegetables to survive.  His wife was often sick, and she could not work.  His wife and mother cried all the time.

   The applicant said that since he had been in Australia he had learnt carpentry skills and was working in that trade.

   He wanted his wife and family to come to Australia so they could be looked after.”

3. The matter was complicated by the fact that, in a statement made by the applicant in support of his original application for a protection visa, prepared by a migration agent, he gave an entirely different account, summarised by the Tribunal in the following passage in its reasons:

   “The applicant claimed to be a 29 year old man from Changle in Fujian province in China.  He indicates that he arrived in Australia on 26 January 1996 on a false passport.  The applicant claimed he could not remember the name of the passport, and claimed it was taken by his travel agent.

   The applicant claimed in his application that he was born in Changle in 1967.  He operated a restaurant from 1986 to 1995, and he said that he lived in Changle from 1986 until January 1996.

   He claimed that initially the restaurant did very well, but that in 1989, after the end of the pro‑democracy movement, his restaurant was searched many times by police.  He claimed that they thought his restaurant was being used as a meeting point for political dissidents.  As a result, few people came to his restaurant in the end.  As a result the applicant claimed he was very angry and had an argument with some policemen, and he therefore with some staff stopped them coming into the restaurant.  As a result, he was detained for three months, and he had to sign a statement to co‑operate with the police before he was released.

   After that, police came to his restaurant and had dinner there many times, but  did not pay any money.  In 1995 the army came to the city and the applicant was forced to provide them with food without any payment.  Finally, the restaurant had to be closed in the middle of 1995.

   The applicant claimed that when the police found out he had closed his restaurant, they came and forced him to keep operating.  They claimed the army was in the city to threaten the Taiwanese government and he had to support government policies and give service to them.

   The applicant claimed that in October 1995, he secretly notified his staff to leave the restaurant and he and his family escaped to the countryside.  He claims when the police found out they destroyed all of the restaurant and warned the neighbours that he had to return to his city and confess his mistakes.

   He claimed that as a result he had to leave the country illegally.

   He claimed that his father was a technician in a big factory and was arrested and imprisoned during the Cultural Revolution.  He claimed that his grandfather was a landlord in his home town, and his land had been confiscated and his grandfather persecuted to death.  He claims that his mother was a teacher and arranged for students to listen to the Taiwan Broadcasting Station and therefore his mother was dismissed from her school, and was not able to get normal jobs.

   He claimed he would not be able to get any protection on return to China.”

4. That account is one of persecution, or at least harassment, on the basis of a political opinion; there is no mention of the one child policy nor, indeed, any mention of the applicant’s wife (though the applicant does state, in the form prepared by the agent, that he is married).  The transcript of the hearing before the Tribunal was in evidence before me.  The Tribunal member, in her reasons, accurately summarised what the applicant told her through an interpreter.  The Tribunal member put to the applicant a number of elements of the account given in his visa application.  For example, after a reference by the Tribunal member to the migration agent the following exchange took place (Ms Jensen is the Tribunal member):

   “Ms Jensen:These people have claimed that your father worked in a factory and that you were serving people in a restaurant in the 1989 Pro Democracy Movement and your story today is very different to the story they have put in your application form?

   The Interpreter:         I think they were wrong.

   Ms Jensen:So you have no knowledge of this claim that they have put in for you?

   The Interpreter:         I told them my story but I don’t think they would write it down wrongly.

   Ms Jensen:Well, I suspect they have written very wrongly.

   The Interpreter:         Then maybe they are wrong …

   The Interpreter:         Did they say that I have taken part in the Movement?

   Ms Jensen:No, no, they said that you were under suspicion because people from the Pro Democracy Movement came to your restaurant.

   The Interpreter:         I think they have got it wrong.  They speak different dialect from me, maybe they misunderstood me.”

5. Though what matters for present purposes is, of course, the material before the Tribunal, the applicant made it clear in addressing me that his complaint was, indeed, the application to him and his wife of the one child policy, particularly in circumstances where, as he said, his wife was ill.  He referred in unspecific terms to his political opinions and “differences” with the local authorities.  But he made it abundantly clear that his complaint was what he described as the violation of his human rights involved in the particular application to him and his wife of the one child policy.

6. Having found the facts, the Tribunal, in its reasons, proceeded to consider the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. The Tribunal’s conclusions appear in the following three paragraphs:

   “There is nothing in the applicant’s story which suggests he was treated differentially on the basis of his race, religion, nationality, membership of a particular social group or political opinion.  The Tribunal finds that the law and the penalty for not abiding by that law, even if it were cruel or harsh, was not applied to the applicant differentially, ie for reason of his race, religion, nationality, membership of a particular social group or political opinion.

   The Tribunal further notes that matters of poverty and lack of access to resources and opportunities are matters which, on the same basis, fall outside of the scope of the Convention, unless they result from one of the reasons enunciated in the Convention.  In Chen, Si Lianr and Anor v MIEA (1996) 65 FCR 259 Tamberlin J accepted that economic discrimination could amount to persecution, but it requires more than mere “economic hardship”. It requires economic hardship of a sufficiently serious nature, and that the hardship be directed at the applicant for a reason in the Convention. The applicant has not indicated that his situation arises for any Convention reason.

   The Tribunal finds that the applicant does not face a real chance of persecution if he were to return to China now or in the foreseeable future.  The Tribunal therefore finds that the applicant does not have a well‑founded fear of persecution for a Convention reason if he were to return to China now or in the foreseeable future.”

   Discussion and conclusions

7. The Tribunal expressed concerns about the role apparently played by migration agents in the preparation of the original application.  I echo those concerns.  It is disturbing indeed that an application has been prepared and lodged incorporating an account which is entirely at variance with what the applicant told the Tribunal (and with the facts as found by the Tribunal).  I am, of course, not in a position to know anything of the circumstances in which the application was prepared.  There is every appearance, however, of a matter which calls for investigation.

8. I have considered the Tribunal’s reasons, the documents which were before the Tribunal and the transcript of the hearing before the Tribunal member. I have found nothing which suggests that required procedures were not followed or that, within the meaning given to the words by s 476(3) of the Migration Act, the decision was an “improper exercise of power”.  In particular, the transcript indicates that the Tribunal member took care to elicit the applicant’s account as clearly as she could.

9. The Tribunal’s findings of fact were open to it on the material before it.  It follows from the decision in Applicant A that there was no error of law in the conclusion that, on the facts as found, the applicant was not, relevantly, a member of a particular social group; and it was open to the Tribunal to reach the conclusion that there was nothing in the applicant’s account which suggested that he was treated differentially on the basis of a political opinion (there was no suggestion that any other Convention ground might be relevant).  Equally it follows that the Tribunal’s finding that the applicant does not face a real chance of persecution, if he returns to China now or in the foreseeable future, cannot be disturbed.

   Conclusion

10. The Tribunal member, entirely understandably, expressed “considerable sympathy with the applicant, who has clearly had a very deprived and heavy life”. The Tribunal, however, correctly applied the law and no ground of review under s 476 of the Migration Act is made out.  Accordingly, the application is dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             10 March 1999

Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 March 1999
Date of Judgment:	10 March 1999