Wang, Yan-qiu v Minister for Immigration & Ethnic Affairs
[1997] FCA 478
•30 MAY 1997
CATCHWORDS
IMMIGRATION - Judicial Review of Refugee Tribunal decision not to grant a refugee visa - applicant national of People’s Republic of China and an artist/filmmaker who feared that his art work would attract persecution - whether applicant had sufficient opportunity to present case to tribunal - whether tribunal failed to address a claim made by applicant - whether Tribunal erred in concluding art had no political content - no error of law disclosed.
Migration Act 1958, s36(1); s420(2)(b); s476(1)(a); s476(1)(e)
Migration Regulations, Part 866
Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, Sackville J, Federal Court of Australia, 17 April 1997
Somaghi v Minister for Immigration (1991) 31 FCR 100
MR YAN-QIU WANG v THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No VG 830 of 1995
FINN J
MELBOURNE
30 MAY 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
VICTORIA DISTRICT REGISTRY ) No VG 830 of 1995
)
GENERAL DIVISION )
BETWEEN: MR YAN-QIU WANG
Applicant
AND:THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT:FINN J
PLACE:MELBOURNE
DATE: 30 MAY 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed with 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 830 of 1995
)
GENERAL DIVISION )
BETWEEN: MR YAN-QIU WANG
Applicant
AND:THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
Respondent
COURT:FINN J
PLACE:MELBOURNE
DATE: 30 MAY 1997
REASONS FOR JUDGMENT
This is an application under Part 8 of the Migration Act 1958 (“the Act”) for an order of review of the Refugee Review Tribunal (“the Tribunal”) affirming the decision of the delegate of the Minister for Immigration and Ethnic Affairs that the applicant, Mr Wang, was not entitled to the grant of a protection visa: see the Act, s36(1). To be entitled to such a visa the applicant needed satisfy the Minister that he was a person to whom Australia has protection obligations under the “Refugees Convention” as defined in Schedule 2, Part 866, sub-para 866.111 of the Regs: see sub-para 866.221.
Factual Background
Mr Wang is a national of the People’s Republic of China (“the PRC”). He entered Australia on 14 April 1990 as a student. He is an artist/filmmaker. While his application made reference to matters which occurred prior to his arrival in Australia, it has been his actions in this country that provide the basis for his claim to refugee status: on “refugees ‘sur place’”, see Somaghi v Minister for Immigration (1991) 31 FCR 100 at 116ff. Those actions relate to the art created by him.
He has made a six-minute video film, (Under the Silence) that was shown on Channel 31. It is said to be a political film. It examined communist violence. It used documentary footage derived from an earlier six part documentary made by “big name” individuals. That documentary was itself banned in China before the events in Tiananmen Square in 1989. As illustrative of his art he submitted, at the Tribunal’s solicitation, this video and four others - all of which in aggregate ran to about twenty minutes - and six 35mm slides.
For practical purposes, his application as prosecuted before me turns almost exclusively upon Under the Silence, upon the bases it is alleged to provide for Mr Wang’s fear of persecution, and upon the manner in which the Tribunal dealt with it.
Before dealing with his contentions in this Court it is necessary to refer first to his application for refugee status, the manner of its prosecution, and to aspects of both the delegate’s and the Tribunal’s reasons for decision in dealing with his application.
The Application for Refugee Status
In his “Application for Refugee Status in Australia” of 9 November 1993 Mr Wang stated that the basis of his claim was that:
“I’m an free thinking artist, my opinion on China’s reformment & open is so far away from Chinese goverment, so I can be consider as an anti-revelutioner by Chinese goverment, and I prefer to vindicate my opinions and critic any unfair issue. Chinese government suppresses people who has different political opinions since 1949, they never ever protected people who has different opinions specially in culture, art erea.”
I merely note that, consistent with this claim, a major strand in Mr Wang’s application to the Tribunal - albeit one not pressed before me - was that, whether or not political, the nature of his art was itself such as to give rise to a fear of persecution. He enlarged on this in a letter to the Tribunal of 21 August 1995 in which he said (inter alia):
“During hearing, the menber read a artical about Chinese artist is giving much more room to work, but the papermention the artist, they are pop artist, pop art is new wave in China at moment, Chinese government is used to pop art becouse pop art goes big in U.S. in 70’s and Andy Wohole (god father of Pop Art) has been China without being known he is a gay, also he has paint Chairman Mao’s portrait, doing tradition of dada as pro-comunisim, as I knowleged China’s government is Oked surealim as well becouse in early this centry when surealim is knowledged by public, the sureal artists used to march in Paris to request to take part in Franch communist party (populer front). It’s conmene sence dada (pop art is part of dada) and surealism are accepted by Chinese government firstly that sold, secendly that’s pro-communism. but after situationism, and post-constructurism and post modernmism the western art is new and being very independent from main straim culture. It’s why I concern myself as an independent experimental artist, and I feel great dangers work in China as an independent artist doing esperimental art.”
Turning now to the delegate’s treatment of Mr Wang’s application, she referred in para 3.1.5 of her reasons to Under the Silence and to its use of documentary footage that was banned in the PRC eight years earlier. She then noted:
“The applicant is fearful that he will ‘get into trouble’ with the authorities for making this film if he returns to the PRC.”
In para 5.4.3 of her reasons the delegate dealt with the para 3.1.5 claim in this way:
“the Department of Foreign Affairs and Trade advise that ‘Artists ... can be more vulnerable to close questioning on return if their work has seriously challenged to [sic] party’s ideologies’ (B3: 31). The applicant has made a small number of short art films in Australia. He claims that one of these films is political and uses documentary footage which is banned in the PRC. While I accept this, there is no evidence to suggest that the PRC authorities are aware of the applicant’s film. Even if the authorities were to become aware of this video and identify the applicant, I do not accept that the film could be considered a serious challenge to the party’s ideologies. Feature length films by Chinese directors Chen, Zhang and Tian have arguably questioned the wisdom of PRC government decision making in the past (B4: 43). Their films have been shown in the West and modified versions in the PRC, without the directors suffering persecution. I therefore do not accept that the applicant’s claim is well-founded.”
The application to the Tribunal for review of the delegate’s decision was lodged on 14 March 1995. On 15 March and again on 30 March 1995 the Tribunal wrote to him inviting him to submit any documents or written arguments in support of his application.
By letter of 7 July 1995 Mr Wang made a short written submission to the Tribunal. He gave four grounds for his fear of returning to the PRC. The first was that it was a totalitarian country hostile to democracy. Secondly he had become accustomed to living as a western educated independent artist whose free thought would not be tolerated in the PRC. Thirdly:
“... it’s about what I have done: The art video “under the silent”. After Chanel 31 braodcast it, it is accept by The New Media Network’s open exhibition which will be hold in August, and it will be put into computer net-work, be shown internationally though computer network. Also it and my other 2 short films will be shown in The Melting Pot Cafe soon. It will be known by more and more people, and possiblly Chinese spy has known it as well, it may be reported to China security body. From the Chinese papers, I knew there were a lot of Chinese spying activities hepenning in here. So I have to worry more and more on my own security if I have to return, according to current Cinese circumstance,. I am afraid to return.”
Fourthly, he thought people who believed in freedom and in the “Post-Deng-Age” would be in danger.
On 15 August the Tribunal conducted its hearing. The applicant represented himself and gave evidence without the assistance of an interpreter. On two occasions subsequent to the hearing - 22 and 28 August - the Tribunal rang Mr Wang asking that he submit any art work which could support his claim. By letter dated 21 August Mr Wang sent a video and six slides to the Tribunal which it received on 29 August. That dispatch was accompanied by a letter which again drew attention to the use of banned material in Under the Silence. Earlier in these reasons I referred to a part of that letter outlining Mr Wang’s concern about being an “independent experimental artist” in China.
Insofar as relevant to the applicant’s contentions in this Court, the Tribunal in its Reasons noted in substance the para 3.1.5 claim in the delegate’s reasons. Under the heading “Assessment of Applicant’s Art”, the Tribunal began its consideration of his claim with the following:
“At the hearing the applicant was questioned carefully about why he thought he would be persecuted because of his art. He was asked whether his art was political and replied ‘It’s free form art rather than political’. He added, however, that ‘Under the Silence’ was political and in his claims to the Department said that he had used documentary footage banned in the PRC. He said that if you want to be free then you will not be accepted by the PRC authorities. He was asked whether his art, even where it was not political, would cause him problems and replied that he believed that this was the case because his art was different. He was asked whether he had anything to support this view and replied that he did not but that this was what he believed. He added that if he returned to China he would continue to do ‘new stuff’ and it would cause him problems.”
The Tribunal then dealt with the artistic materials submitted to it in this fashion:
“The applicant submitted a video recording and six 35 mm slides. The slides feature abstract art work. In my view there is nothing political about them; if there is it must be exceedingly subtle and the applicant has not brought this to the Tribunal’s attention.
The video recording comprises a number of the applicant’s productions - ‘Under the Silence’, ‘The Eccentric House’, ‘Missing parts’, ‘Flash’, and ‘Reveries or ?’ which altogether run for around twenty minutes. These are all modern art and include sequences of flashing lights, images etc. accompanied by electronic music; shots of a man driving, walking and sitting; shots of a cemetery showing Chinese headstones; what appears to be a disused building, possibly a farmhouse; a shot of the top of what appears to be a military or police vehicle (though it is not Chinese as the word ‘caution’ is written on it); and other unrelated shots. For the most part there is nothing in the video recording which could even remotely be termed political. None of it is comprehensible in the sense that there is a story or any apparent message which the producer is trying to convey and there is no commentary. It is, in my view, modern art and nothing more.
The applicant considers ‘Under the Silence’ political. ‘Under the Silence’, which runs for around four and a half minutes, shows what appears to be World War 2 or possibly Chinese civil war footage. However, because the entire video has been deliberately shot so as to give it a ‘grainy’ appearance it is very difficult to make out exactly what war is being depicted except that there are shots of bombs falling on a city, soldiers marching, an execution, with a placard attached to the executed man in the Chinese manner, a civilian population fleeing etc. There is, however, no obvious political message or any suggestion that the maker is either sympathetic or antagonistic to either side in the war, and I do not regard it as a political production.”
Having thus concluded that the applicant’s work was “purely artistic in nature” the Tribunal then went on to consider whether it would cause him problems which would result in his being persecuted. Importantly it said by way of amplification of this:
“Having regard to the lack of political content of his work in Australia, I see no reason to assume that his work would take on a political nature in China and the question thus comes down to whether the applicant would be persecuted, not because his work is political but because it is free form art”: (emphasis added)
The Tribunal concluded that there was “not a real chance” that Mr Wang would be persecuted for his artistic endeavours if he was returned to the PRC.
The Application to this Court
Four discrete grounds were advanced in the Application filed on 25 October 1995. All, save one, were particularised in a multiplicity of ways. In the event only two grounds actually were prosecuted in the hearing before me.
The first, based on s476(1)(a) of the Act, was that the procedures required by the Act to be observed in connection with the making of the decision were not observed in that the Tribunal failed to act according to the substantial justice and merits of the case as required by s420(2)(b) of the Act.
This ground was particularised as follows:
The Tribunal failed to give the applicant an opportunity to make submissions to the RRT addressing the question of whether his art was modern art and nothing more, or the expression of political belief through the medium of art.
[As a result of an amendment allowed at the hearing] The Tribunal failed to address the claim of the applicant that because the applicant in the film Under the Silence had used material banned by the Chinese Government he had a well founded fear of prosecution by the Chinese Government.”
The second ground pursued was that there was an error of law within s476(1)(e) of the Act involving an incorrect application of the law to the facts in that:
“(d)The RRT erred in concluding that the art created by the applicant was merely modern art which did not have a political content or make a political statement.”
I will deal with these in order.
Section 420(2)(b)
This subsection provides that:
“The Tribunal, in reviewing a decision:
...
b)must act according to substantial justice and the merits of the case.”
The subsection and its relationship to s476(1)(a) has been the subject of considerable judicial attention of recent times. Suffice it to refer here to judgment of Sackville J in Dai Xing Yao v Minister for Immigration and Ethnic Affairs, unreported, Federal Court of Australia, 17 April 1997 and to the cases referred to therein.
For present purposes, relying upon the judgment of Drummond J in Thanh Phat Ma v Billings (1996) 142 ALR 158, the parties are at one in submitting that the subsection (i) is directed to procedural and not substantive matters; (ii) imposes a duty to make determinations in accordance with procedures that will ensure the real issues are identified and considered; and (iii) does not open the door to merits review. A failure to act in accordance with such procedures as are referred to in (ii) will be reviewable under s476(1)(a) - unless the particular failure alleged is itself made unreviewable by s476(2) and (3).
It is unnecessary in this instance to enter upon whether this agreed view accurately represents the present law. I am prepared to assume for present purposes that proposition (ii) above is correct. I do so because on the view most generous to the applicant I am unable to discern in this case that the Tribunal followed a procedure which did not lead it to identify and consider the real issue raised before it. And it did not fail to follow any statutorily prescribed procedure.
The first of the two failures particularised - not providing the applicant with the opportunity to make submissions addressing the expression of political belief in his art - is simply belied in the procedures in fact followed. On two occasions prior to the hearing (ie 15 and 30 March) and on two subsequent to it (ie 22 and 28 August) it invited him to make submissions and/or to submit work in support of his claim. It received submissions from him on 10 July and by letter dated 21 August. The text of the latter (with some emendation) was included in the text of the Tribunal’s reasons.
In such circumstances the claim made lacks substance. Counsel for the applicant, while not abandoning the claim, acknowledged the difficulty - in my view the insuperable difficulty - he faced.
The second claim made is that the Tribunal failed to address the concern raised by the use in Under the Silence of banned material. As I understood this claim it was that, irrespective of whether the video itself was “political art”, the use of the banned material itself was advanced by the applicant as a discrete cause for his well-founded fear. This, it is said, was not so considered by the Tribunal and thus it failed to identify and to consider a “real issue”.
While the applicant did not point to any defect in the procedures adopted which occasioned this alleged effect, I do not pause on that matter. My reason for so doing is that I am unable to discern in the material before the Tribunal any reasonable basis for the allegation that the use of the banned material as such was a discrete, substantial issue being raised for the Tribunal’s determination as distinct from its being a manifestation of the allegedly political character of Mr Wang’s art.
From his original application onwards the two pillars of his claim to refugee status insofar as presently relevant were (i) the political character of his art (particularly as manifest in Under the Silence) and (ii) his being an “independent experimental artist”.
In my view, given the manner in which the applicant referred to the use of the banned material in Under the Silence, it was entirely reasonable for the Tribunal to have considered that the applicant was pointing to it as an exemplification of the political character of the particular work and not as a discrete cause for concern.
I have set out above the principal references made to the banned material in the evidence before the Tribunal. It is the case that, though referring on several occasions to it (most notably in the 21 August letter), the Tribunal did not address it separately as a discrete ground of concern. But neither, in my view, would one have expected it to do so. The applicant did not put the Tribunal on notice that this was an issue in itself.
It is not unfair to add that the amendment made at the hearing to add this particular matter as a ground of complaint seemed designed more to create an identifiable issue than to make clear what, so it is said, should have been made plain to the Tribunal were the issues requiring its determination.
I reject both bases on which this ground was advanced.
Section 476(1)(e)
As enlarged upon in written submissions the applicant alleges that there was an error of law falling within this subsection for this reason. In determining whether the applicant’s art made a political statement which would attract the attention of the authorities in the PRC and expose him to persecution, the Tribunal erred:
(a)because it applied its subjective impression as to the meaning of the art; and
(b)it failed to consider how the art would be perceived by officials in the PRC.
The respondent’s submission is that the issue presented to the Tribunal (i) was within its ordinary fact finding capacity; and (ii) was not one suggested to be of such character as required an exceptional judgment based on particular expertise. The Tribunal’s conclusion that the act lacked political content was, in consequence, an unexceptional one.
I agree with the respondent’s submission. I note that in referring to the six 35mm photos the Tribunal drew attention directly to the need for the applicant to bring to its attention such political characteristics of the photos which would not, for reasons of subtlety, be apparent to it. I equally draw attention to how it expressed its conclusion on the non-political nature of Mr Wang’s art - first an Australian perspective was adopted, and then the Tribunal added: “I see no reason to assume his work would take on a political nature in China”.
There well may be cases where, if the Tribunal is to consider the real issue before it, it may need to take expert advice on the subject matter of the judgment it is to make. In some instances that need will be self-evident. In others it will require the applicant to put the Tribunal on notice that the judgment it is to make possesses this unusual feature. The present case is, in my view, of the latter kind. The Tribunal cannot be faulted for making the assessment of the applicant’s art in the manner it did. It did no more than was required of it in the circumstances.
I reject this ground of application.
My order then is that the application be dismissed with costs.
I certify that this and the preceding 14 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.
Associate
Dated: 28 May 1997
Counsel for the applicant : T V Hurley
Solicitors for the applicant : Erskine Rodan & Associates
Counsel for the respondent : N Mukhtar
Solicitors for the respondent : Australian Government Solicitor
Date of hearing : 21 April 1997
Date of judgment : 30 May 1997
0
3
0