Xu v Minister for Immigration and Multicultural Affairs

[2000] FCA 472

FEDERAL COURT OF AUSTRALIA

Xu v Minister for Immigration & Multicultural Affairs [2000] FCA 472

HUI WEN XU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 771 of 1999

WHITLAM J
12 APRIL 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 771 OF 1999

BETWEEN:	HUI WEN XU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	12 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.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	N 771 OF 1999

BETWEEN:	HUI WEN XU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	12 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a Chinese national.  She seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 14 July 1999 affirming the decision of the respondent's delegate not to grant her a protection visa.

2. The applicant claimed to fear persecution in China on account of her actual or imputed political opinion.  Specifically, she claimed to have suffered as a result of her political involvement periods of detention in 1989 and 1998 and the confiscation in 1998 of a tobacco business from which she earned her living.

3. Counsel for the applicant submits that the Tribunal failed to address the evidence about the loss of the applicant's tobacco business "as evidence of the continuing interest of the authorities" and thus failed to make findings on a material question of fact as required by par(c) of s 430(1) of the Migration Act 1958 ("the Act"). This failure is said to appear from the following passage in the Tribunal's statement under s 430(1) of the Act:

   "The Tribunal notes that the applicant had no further run-ins with the PSB [Public Security Bureau] since completing her administrative punishment in April 1998.  She did not depart China for Australia until January 1999.  The Tribunal finds it significant that she was not troubled any further by the PSB in the eight months between her punishment and her departure from China.  This indicates to the Tribunal that, while the PSB were displeased with the applicant's involvement in the protest in early April 1998, she has been punished for her involvement and the matter is now at an end.  There is no evidence before the Tribunal that the applicant was considered a key player, or a significant trouble-maker, otherwise she would have been formally charged and punished far more severely.  The Tribunal finds that the applicant's involvement in the protest in early 1998 is something which belongs in her past and no longer has a continuing effect on her life.  The applicant is not involved in any continuing political activities in China and there is no evidence to suggest that she will get into any similar trouble again.  The Tribunal is not satisfied that the applicant's involvement in the protest activities in early 1998 causes her to have a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future."

4. The evidence said to have been ignored by the Tribunal was that of the applicant herself that her tobacco stalls had been sealed up, her licence revoked, and her later application for a permit rejected. In fact, the Tribunal had referred earlier in its statement to this evidence being given by the applicant at the hearing it held.  After the passage set out above, the Tribunal recorded its finding on this aspect of the applicant's claim as follows:

   "The applicant claims that as a result of her involvement in the protest in early 1998 the licence for her tobacco stall was revoked.  She claims that the licensing authorities feared that her profits may be channelled into the Independent Union run by her neighbour.  While the revocation of her licence is a significant detriment for the applicant, the applicant has not demonstrated to the Tribunal that she has been unable to find alternative employment or attempted to set up an alternative form of business.  When the Tribunal asked the applicant why she did not attempt to find alternative employment she responded that she had lost confidence in the communist system and devoted her energy to finding a way to leave China.  The Tribunal finds that the applicant is a well educated woman with an excellent track record in business.  She appears to be a woman of substantial means (given the extremely substantial sums of money paid to send her daughter to school in Australia and the continuing large sums of money which she is paying in school fees).  This suggests to the Tribunal that the applicant has the means to set up an alternative form of business in China.  In the past (between her employment as a textiles engineer and setting up her tobacco business) she was able to find alternative employment in the private sector.  Independent information before the Tribunal indicates that China now has a booming private sector with many opportunities for those with an entrepreneurial flair to earn large sums of money.  There is diminishing state control over the economy and increased freedom of employment and mobility (see US Department of State, Bureau of Democracy, Human Rights, and Labor, China on Human Rights Practices for 1997, 11 February 1998).  The applicant has not given the Tribunal any good reason why she would not be able to obtain employment or set up a new business upon her return to China.  The Tribunal is not satisfied that the applicant would be denied the opportunity to work and earn a good living should she return to China.  The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in China as a result of the loss of her business and her failure to seek other employment opportunities."

5. The existence of a well-founded fear of persecution is what is made material by the Act. Counsel for the applicant cannot elevate the "continuing interest of the authorities" to a material question of fact: Xu v Minister for Immigration and Multicultural Affairs (1999) 168 ALR 621 at 631-640. However, on any view, in the present case the Tribunal has plainly dealt with the facts alleged by the applicant.

6. The applicant has failed to establish that the requirements of s 430(1)(c) of the Act were not observed. In any event, an insurmountable obstacle for the applicant is that she relies on the ground of review specified in s 476(1)(a) of the Act. The statement under s 430(1) is not reviewable on that ground: Xu at 624-631.

7. Counsel for the applicant also presses under s 476(4)(b) a so-called "no evidence" ground under s 476(1)(g) of the Act. The particulars of this ground are:

   "The Tribunal's decision was based on a finding that that [sic] the applicant's involvement in the 1998 protest activities no longer caused her to have a well-founded fear of persecution.  This was in turn based on findings of fact that, following her release from detention in April 1998, the applicant had no further difficulty with the PSB and that these activities no longer have a continuing effect on her life.  This particular fact did not exist."

8. Those allegations are said to rest on the first passage from the Tribunal's statement set out above.  The Tribunal's decision was plainly not based on such an alleged fact, and the ground cannot thus be made out.  Further, there is no evidence before me on the present application that proves such an alleged "fact" did not exist.

9. The application will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             12 April 2000

Counsel for the applicant:	N.C. Poynder
Counsel for the respondent:	J.D. Smith
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	29 September 1999
Date of judgment:	12 April 2000