Ting Quang Wang v Minister for Immigration & Multicultural Affairs

[1997] FCA 333

CATCHWORDS

IMMIGRATION - Application for order of review of decision of Refugee Review Tribunal - whether Court bound to proceed upon facts as found by Tribunal - whether applicant a member of a “particular social group” as defined in the Refugee Convention - whether error of law - whether facts properly explored.

Migration Act 1958 (Cth) - s.476.

Applicant A v Minister for Immigration and Ethnic Affairs (1996) 142 ALR 331
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Waterford v The Commonwealth (1987) 163 CLR 54

TING QUANG WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 39 of 1997

Davies J
7 May 1997

Sydney

IN THE FEDERAL COURT OF AUSTRALIA                 )

NEW SOUTH WALES DISTRICT REGISTRY               )   No. NG 39 of 1997

GENERAL DIVISION  )

BETWEEN:  TING QUANG WANG

Applicant

AND:  MINISTER  FOR IMMIGRATION
  AND MULTICULTURAL AFFAIRS
  Respondent

Coram:          Davies J.
Date:              7 May 1997
Place:            Sydney

MINUTES OF ORDER

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the costs of the respondent.

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               )   No. NG 39 of 1997

GENERAL DIVISION  )

BETWEEN:  TING QUANG WANG

Applicant

AND:  MINISTER  FOR  IMMIGRATION AND   MULTICULTURAL AFFAIRS
  Respondent

Coram:          Davies J.
Date:              7 May 1997
Place:            Sydney

REASONS FOR JUDGMENT

In this application, the applicant, Ting Quang Wang, seeks orders of review with respect to a decision of the Refugee Review Tribunal ("the Tribunal") given on 24 December 1996. 

The grounds upon which the applicant may rely in this proceeding are limited by s.476 of the Migration Act 1958 (Cth). Relevant grounds of review are:-

"476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(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.

...

(g)that there was no evidence or other material to justify the making of the decision."

These provisions are based upon the principle enunciated by Brennan J in Waterford v The Commonwealth (1987) 163 CLR 54 at 77 that:-

"There is no error of law simply in making a wrong finding of fact."

See also Mason CJ in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 356. This Court must accept the facts as found by the Tribunal unless there was no evidence or other material justifying the making of the decision.

The applicant's basic story as told to the Tribunal was that, contrary to China's one child policy, he and his wife had two children, born in 1977 and 1980.  In November 1983, the applicant saw five village cadres walking towards his house.  He believed that they were coming to take his wife for forced sterilisation.  He told his wife to run away through the back door of the house, which she did.  The men came in and, being unable to find the wife, took the applicant to a clinic where he forcibly underwent a sterilisation procedure.

The applicant further said that he and his wife had subsequently, in 1988, adopted a young girl whom the applicant had found to be abandoned on a street.  This action caused them to be fined in 1995 for having an unregistered child. 

The applicant said that, in 1996, the applicant and others were concerned about the position of a woman in their village who had been forced to have an abortion under the one child policy.  The applicant said that he and four others organised a demonstration.  At first, the organisers and the demonstrators sought to speak to people in authority.  But the villagers became angry and a window was broken.  Police were called and a fight with the police ensued.  The applicant said that he then fled his village and understood that, in retaliation, the police confiscated plant and equipment from the prawn hatchery of which he had been a partner. 

The applicant said to the Tribunal that, at the time of the demonstration, he opposed China's one child policy and China's attitude to human rights and that, at the demonstration, he had shouted "Give us freedom, give us human rights." 

The Tribunal dismissed the application on two grounds.  The first was that the Tribunal did not believe the applicant's evidence.  The Tribunal said:-

"I do not believe the applicant with respect to any part of his evidence other than that he is a citizen of the PRC and a native of Fujian province who travelled to Australia on false documents."

In part, this finding was made because the applicant had come to Australia on a false passport and without the identification card which he must have had in China.  Moreover, he produced and relied on an "Order for Arrest", which the Tribunal found not to be genuine.  The Tribunal was also not satisfied with the applicant's evidence as to how he came to Australia; but I think that this point must have been unimportant as the Tribunal did not call for the airline tickets. 

Of greater significance to the Tribunal was the fact that, on the applicant's arrival at Sydney Airport, he did not claim refugee status or enunciate his opposition to China's one child policy, but merely claimed that he intended to spend two months holidaying in Australia.  It was not until he was held in detention at the Villawood Detention Centre that the applicant made the claims which he later put to the Tribunal.  The applicant informed the Tribunal that he did not put forward his claims until he arrived at Villawood for, prior to that time, he did not understand the policy and the law of Australia and did not understand that the authorities would keep his case confidential and that he was free to say whatever he wished to say.

The case as put by the applicant to the Tribunal was not inherently improbable, therefore another decision-maker may well not have rejected the applicant's evidence.  Nevertheless, the Tribunal was the decision-maker of fact and the Court is bound to proceed upon the facts as found by the Tribunal, unless there was no evidence or other material to justify them.  As the applicant arrived in Australia with false papers, without identification and on his own without a wife and children, it cannot be said that there was no evidence or other material to justify the Tribunal's disbelief of his evidence.

As the Tribunal did not believe the applicant's story, the Tribunal was correct in law in dismissing his application. 

The other ground on which the Tribunal acted was that it was not satisfied that, even on the story which he put forward, the applicant was a person falling within Article 1A(2) of the Refugee Convention which defines a refugee as "any person who ... owing to a 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" (emphasis added).

The Tribunal's approach is consistent with the law of this country.  In Applicant A v Minister for Immigration & Ethnic Affairs (1996) 142 ALR 331, a majority of the High Court of Australia, Dawson, McHugh & Gummow JJ, Brennan CJ and Kirby J dissenting, held that opposition to China's one child policy was not in itself a sufficient basis for membership of a "particular social group". At 342, Dawson J said:-

"In this case, the reason the appellants fear persecution is not that they belong to any group, since there is no evidence that being the parents of one child and not accepting the limitations imposed by government policy is a characteristic which, because it is shared with others, unites a collection of persons and sets them apart from society at large.  It is not an accurate response to say that the government itself perceives such persons to be a group and persecutes individuals because they belong to it.  Rather, the persecution is carried out in the enforcement of a policy which applies generally.  The persecution feared by the appellants is a result of the fact that, by their actions, they have brought themselves within its terms."

The Tribunal was also satisfied that the applicant did not fear persecution because of political opinion.  Although the applicant has rendered himself liable to prosecution for organising the illegal demonstration, the Tribunal considered that the enforcement of the laws in that respect would not constitute persecution for political opinion.  The Tribunal considered that the words which the applicant had shouted at the demonstration were of little significance.

In his address to the Court during the hearing of the application, the applicant said:-

"As I have violated China's law, I will certainly be persecuted if I return and this will endanger my life directly and my freedom.  I think the whole thing about refugee application is to protect those who have left the country in fear of persecution.  I believe I have sufficient reasons to become a refugee.  Number 1, I have been violated physically.  Yes, I was hurt physically.  Secondly, I have already received serious economic persecution.  Number 3, I oppose China's birth control policy.  I believe the birth control policy implemented by the Chinese Government is a forceful one and it has forced tens of thousands of people to leave their hometown.

... The strict public security law and the cruel law are used as tools to confine the freedom of people.  These laws are the tools to suppress people.  So once I return to China I will be threatened directly with my life and my personal safety."

However, these claims were all taken into account by the Tribunal which concluded that any penalty imposed on the applicant on his return to China would not amount to persecution for a Convention reason.

I see no error of law in the Tribunal's approach to these matters.  It accords with the law as laid down in Applicant A v The Minister for Immigration & Ethnic Affairs.

The applicant submitted to the Court that the Tribunal did not explore the facts deeply enough but relied upon official Chinese information.  The Tribunal did, however, look into the matter for itself.  The reasons for decision refer to a report entitled "Country-Profile" issued by the Department of Foreign Affairs and Trade in June 1994, to a report by the United States Office of Asylum affairs issued in December 1995 and to a report entitled "China: One-Child Policy Update" issued on behalf of the Immigration and Refugee Board Canada in July 1996.  It was this information, not official Chinese information, which the Tribunal took into account.

Accordingly, therefore, the application must be dismissed with costs.         

I certify that this and the 6 preceding pages
are a true copy of the reasons for judgment herein
of the Honourable Justice Davies.

Associate:

Date:   7 May 1997

Appearing for the applicant:  The applicant in person.

Counsel for the respondent::  NJ Williams

Solicitor for the respondent:  Australian Government Solicitor

Date of hearing:  18 April 1997

Date of judgment:  7 May 1997