Wu, Liang v Minister for Immigration and Multicultural Affairs

[1998] FCA 1433

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 693  of  1998

BETWEEN:	LIANG WU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		LINDGREN J
DATE OF ORDER:		30 OCTOBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal given on 12 June 1998 be affirmed.

1. The applicant pay the respondent’s costs.

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 693 of 1998

BETWEEN:	LIANG WU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	30 OCTOBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

INTRODUCTION

The applicant applies for review of a decision of the Refugee Review Tribunal (“RRT”) given on 12 June 1998 affirming a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. 

PROCEDURAL BACKGROUND

The applicant arrived in Australia on 30 May 1995.  By an application bearing date 22 June 1995, lodged on 23 June 1995, he applied for a Protection Visa (866).  In order to be entitled to protection it was necessary that he fall within the definition of “refugee” in article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (collectively, “the Convention”).  The Convention defines a “refugee” as 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 applicant is a citizen of the People’s Republic of China (“PRC”) and his case was and is that, owing to well-founded fear of being persecuted for reasons of political opinion, he is outside the country of his nationality, and is, owing to such fear, unwilling to avail himself of the protection of that country.

The applicant was interviewed on 1 October 1996.  On 23 January 1997, a delegate of the Minister decided to refuse the application for a visa.  On 25 February 1997, the applicant applied to the Refugee Review Tribunal (“RRT”) for review of the delegate’s decision.  There was a hearing on 8 May 1998 and, as I said earlier, the RRT’s decision adverse to the applicant was given on 12 June 1998.

RRT’S REASONS FOR DECISION

I do not find it necessary to discuss in detail the RRT’s Reasons for Decision.  The presiding Member dealt with the background to the application, the relevant legislation, the Convention and its construction by the courts, the applicant’s “Claims and Evidence”, and certain independent evidence relating to human rights and the pro-democracy movement in the PRC.  Finally, within the space of some four pages, the Member set out her “Findings and Reasons”.

The applicant claimed that he was born in Shanghai on 4 January 1966; that his parents still live in Shanghai; that they are no longer working; and that his other relatives also live in Shanghai.  He claims that prior to the Cultural Revolution, his father was the editor of a large daily newspaper; that his father was arrested and imprisoned because he held political opinions different from those of the Government; and that his mother, who was a journalist, also lost her job.

The applicant’s own political activity is alleged to have commenced when he attended the Shanghai Mechanical, Engineering and Industrial Institute.  He was there apparently in 1985 and 1986.  While at the Institute, he organised a gathering called a “Liberty Salon” in September 1986.   The Liberty Salons provided a means by which groups supportive of the pro-democracy movement were able to communicate their ideas to each other and to others.  In particular, the applicant alleges that he came under the influence of a well-known leader in the movement named Fang Li Zhi, who was a Professor in Social Sciences at the Beijing University.   The applicant claimed that in January 1987 the PRC Government began repressive action directed against the pro-democracy movement and that the Liberty Salon was declared illegal.

The presiding Member outlined in considerable detail the Claims and Evidence of the applicant covering the period until 29 May 1995 when he left the PRC via Shanghai Airport.  I do not think it necessary to repeat or even to summarise that account.  However, I should refer to certain events.  One is that the applicant alleged that on 20 June 1989 the Public Security Bureau (“PSB”) came to search a printing factory where he was employed, and that his friend Zhu Shao Zhi was arrested and the factory closed because the PSB found pamphlets expressing the political ideas of Mr Fang.  The applicant said that he was not arrested because, “although he basically worked every day”, he was not at work on that particular day because he was not very busy. He also told the Tribunal that there were over twenty workers employed at the factory but that none of them were arrested.   He said that he learned of the arrest of his friend and closure of the factory on 22 June through another friend, Xu Guang Hao, who worked in the criminal section of the PSB, but who was secretly a member of their organisation. Xu Guang Hao advised him to leave Shanghai.

Another claim which should be mentioned is that on 5 July 1989, when the applicant was attempting to leave Shanghai by train, he was arrested by the PSB at the railway station office.  He said that the PSB had probably been informed about his political activity and probably had his name on a “wanted” list or had seen at the railway station pictures that had been taken of him.  He said that photographs had in fact been taken of him at a demonstration in April 1989, when he and others were protesting the closure of the “World Economic Herald” by the PRC Government. He said that a photograph had also been taken for use in the pro-democracy pamphlets.

The “Claims and Evidence” section of the Reasons for Decision covered many other aspects of the applicant’s alleged political activity and alleged persecution by or at the instigation of the PRC Government. 

Finally, the applicant alleged his friend in the PSB, Xu Guang Hao, obtained a passport for him in March 1995 which was issued in the applicant’s real name.  He said that he left the PRC on 29 May 1995 via Shanghai airport and that Xu Guang Hao accompanied him to the airport, took him to a security guard there and gave that guard his ticket and passport, whereupon the guard simply looked at the documents and “waved him through”.

The applicant claims that Xu Guang Hao was “found out and arrested in August 1995” and that the PSB visited the applicant’s parents after he left the PRC and questioned them about the applicant’s whereabouts, having learned from Xu Guang Hao that the applicant had gone overseas.  The applicant said that the visit to his parents occurred in July 1995. 

In summary, the picture portrayed by the applicant was that he was a noted political dissident who had already been pursued by PRC authorities and that he is afraid that if he returns he will be imprisoned for reasons of his political opinion. 

The RRT simply did not believe the applicant.  The Member said that he did not accept the applicant’s evidence as credible for five reasons which are set out in the Reasons for Decision.  Then the Member said:

“Given the adverse findings on the applicant’s credibility on the [five] matters, I find the applicant’s evidence to be so tainted as to be generally not credible.  I am not satisfied that the applicant is a high profile dissident or wanted by the PSB as claimed.  I am not satisfied that the applicant has a well-founded fear of persecution for reasons of his political opinion now or in the reasonably foreseeable future should he return to the PRC.”

Application to this Court and my reasoning

The applicant relies on the grounds set out in s 476 (1) (a) and (g) of the Migration Act 1958 (Cth) (“the Act”). They are as follows:

“476(1) Subject to sub-section (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:

(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

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

In the way in which the submissions were put, however, there was in substance but one complaint.

Counsel for the applicant observed that the RRT had not made adverse comments based on the demeanour of the applicant.  She also submitted that the RRT had not made adverse comments relating to the consistency of his evidence, although I do not think that this submission should be accepted for reasons which I will mention.  In substance, her submission was that the RRT’s rejection of the applicant’s claims and evidence was based upon its preferring of independent country information to the applicant’s evidence.  She relied, in particular, on a passage from the judgment of Burchett J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (“Sun”) at 558:

“To fasten upon apparent inconsistencies between the perceptions of one individual, among hundreds of thousands, and the overview obtained by a subsequent chronicler synthesising numerous, and undoubtedly often differing, accounts is really quite absurd.  The tribunal does not point to a single discrepancy which is not readily explicable.  But the fundamental point is that any fair minded tribunal would not have refrained from according a full acknowledgment to the necessarily partial nature of one participant’s personal impressions of these tremendous events.  It may be, as the proverb says, that ‘truth is the daughter of time’, and that the reflective historian may obtain a more complete picture, but the individual caught up in the maelstrom could not have seen that picture.  His recollections are peculiarly his own.”

This passage must be understood, however, in the light of the facts in Sun.  The passage was directed to the account given by the refugee-claimant in that case of the tumultuous events in Tiananmen Square in June 1989.  The Tribunal had contrasted the account given by Mr Sun with a more “objective” view of events arrived at subsequently with the benefit of hindsight and on the basis of a synthesis of the accounts of many people.

The factual situation which Burchett J was addressing is far removed from the facts of the present case.  I do not think that the passage set out above assists in the present case. 

That it may be open to the RRT to prefer “independent” evidence as to a situation in a country in preference to the evidence of the particular applicant is supported by the decision of R D Nicholson J in Johnson Kwakye v Minister for Immigration & Multicultural Affairs, unreported, 20 October 1998.  His Honour said (at 18):

“It was clearly open to the Tribunal to prefer the independent evidence before it concerning the human rights situation in Ghana and to rely upon the inconsistencies listed by it in reaching the conclusion that it should not accept the applicant’s evidence.”

This passage, however, does not necessarily dictate the correct approach to be taken in the present case, either.

Counsel for the applicant did not address the five particular matters which led to the RRT’s rejection of the applicant’s account as generally not credible.

The first of those matters is, unfortunately, not particularly clearly expressed and I have had some difficulty in understanding it.  It depends upon an inconsistency which the Member found between the applicant’s evidence of his involvement in Liberty Salons in 1986 to January 1987 and the independent country information.   Moreover, the Member noted that according to the applicant’s own evidence, he was dismissed from school and unemployed for the two year period from January 1987 to March 1989, during which period there was no evidence of his involvement in any “pro-democracy” discussions.

But while I do not find the first ground cogent, the other four grounds combined to entitle the RRT to find the applicant not credible.  The RRT found it implausible in the circumstances that the applicant would not have been arrested at the factory on 20 June 1989; that he would have been arrested at the railway station in Shanghai on 5 July 1989; that he would have been able to reorganise “Liberty Salons”, print pamphlets, write and publish articles and be generally politically active following his release after imprisonment for about a year; and that he would have been able to leave the PRC on his own genuine passport.

The particular reasons why the RRT found these various aspects of the applicant’s evidence to be not plausible are set out in its Reasons for Decision.  As I indicated, they were not individually addressed before me, no doubt because counsel for the applicant took the view that they represented conclusions of fact that the RRT was entitled to reach.  For example, there was evidence before the RRT from Dr Adrian Chan, Senior Lecturer in Chinese Politics at the University of New South Wales, that if a person is really a high profile dissident or is wanted by the PSB, there is no way that an official would incur the risk of processing the person’s departure documents in return for a bribe.  The RRT was entitled to accept that evidence and to conclude that the applicant’s case that he was a high profile dissident sought by the PSB, and even pursued to the extent of being arrested by the PSB on a railway station in Shanghai, was a fabrication.  

The question is not whether I would reach the conclusions which the RRT reached: what matters is that it was open to the RRT to find the applicant’s case not plausible.

The submission based on the “no evidence” ground provided for in s 476 (1) (g) of the Act depends on the findings made by the RRT to which I have already referred. The Minister submitted that a conclusion of implausibility and rejection of the applicant’s case on that ground does not fall within par (g), but I need not address that submission. Even if the present situation can somehow be accommodated within s 476 (1) (g), that ground is not established for the reasons which I have given above.

CONCLUSION

In the result, the orders of the court are that:

1.  The decision of the Refugee Review Tribunal given on 12 June 1998 be affirmed.

2.  The applicant pay the respondent’s costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             11 November  1998

Counsel for the Applicant:	Ms M T Bateman
Migration Agent for the Applicant:	Pricilla International Co Pty Ltd
Solicitor for the Respondent:	Mr G Peek of the Australian Government Solicitor’s Office
Date of Hearing:	18 September, 14 October 1998
Date of Judgment:	30 October 1998