Zhang v Minister for Immigration and Multicultural Affairs

[1999] FCA 497

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration & Multicultural Affairs [1999] FCA 497

GUI XING ZHANG V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1160 OF 1998

THE HON JUSTICE MARCUS EINFELD AO
SYDNEY

14 APRIL 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1160 OF 1998

BETWEEN:	GUI XING ZHANG Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	THE HON JUSTICE MARCUS EINFELD AO
DATE:	14 APRIL 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The difficulty in relation to claims for persecution on the basis of a political opinion when it concerns China is that almost everything which calls the government to account there could be and is in many cases regarded as political, even though - in the ordinary meaning of political opinion in any other country - the event concerned would not qualify under that definition.  This is a good case to illustrate that type of problem.

2. The applicant's claim for refugee status is essentially based upon a fear of persecution on his return to China on the basis of a political opinion gleaned from a set of circumstances that commenced in February 1992.  The account of his travails, given by the applicant to the Tribunal, related to a sum of RMB 20,000 (approximately $AUD 4,000-5,000) which was deposited in his bank account.  The applicant said that he was a herbalist and a businessman.  He claimed that this sum of money disappeared from his bank account and he complained that this had occurred because bank and PSB government security officials had cheated and framed him.

3. According to the applicant, it appears that bank officials were unhappy and angered by his call for an investigation into the disappearance of the money, and that they commenced to harass and persecute him and his family.  He complained about this treatment to the local governor and was subsequently held in official detention in a gaol while the matter was being investigated.

4. He says that whilst in detention he was tortured, and that a friend of his, whom the applicant suspects may have been the person who removed the money, was also held in detention while the investigation was taking place.  The applicant says that in July 1992 the police came to his home, arrested him and took him to the detention centre again where he was held for about two and a half months, during which he was mistreated and tortured for as many as 30 hours.  There was further harassment of the applicant by officials and investigators of various kinds, as a consequence of which he made further complaints to the authorities.  His explanation to the Tribunal for this treatment was that the bank and PSB were eager to find a scapegoat and hide corruption as a full and true investigation of the applicant's complaint would have established.  In other words, they were engaged in a significant cover up of misappropriation and fraud.  The applicant told the Tribunal that his last contact with the PSB or anyone in this connection was in 1993. 

5. He arrived in Australia for the first time on 14 May 1997, left on 12 August and returned a little later.  On 25 August, he lodged an application for asylum, but the visa was refused on 30 September by the Minister's delegate, after which he went to the Refugee Review Tribunal for review.  On 6 October 1998, that Tribunal refused to disturb the decision of the Minister's delegate.  Even on the applicant's own account, he has had no connection now with any of the authorities concerning this matter of the disappearance of his money or of his complaints for almost six years.  One of the other features of the Chinese bureaucratic system, as it has appeared in evidence before the court on other occasions, is its inefficiency in that the records which are kept often fail to survive for very long at all, or if they do, they are rarely if ever taken and standardised with other records.  In other words, assuming for present purposes that the activity or events on which the applicant relies were in fact a manifestation of a political opinion, it seems to me quite unlikely that the authorities would have sufficiently good records or sufficiently good memories to be able to link those events in 1992 and 1993 with the applicant upon his return in 1999.

6. But the central issue in the case, as it was placed before the Tribunal, is whether any persecution which the applicant did suffer was Convention-based in the sense that it would be persecution on political grounds.  There have been a number of definitions of both persecution and of political opinion in the authorities and there is no point in my repeating them all now.  It will suffice to say that it is the obligation of the court in interpreting the meaning of political opinion in the Convention to have regard to standard or general definitions of that expression, and not attempt to read into it anything that gives it a particular Chinese flavour.

7. In other words, any confrontation between a citizen and the authorities in China is capable of being turned into a political issue, but that does not make the event concerned or the involvement of the particular applicant concerned a political involvement.  There is nothing overtly or even indirectly political about a complaint to a bank that money has disappeared.  For that matter, unless it was of a general kind, a complaint to a bank of their engagement in corrupt practices would also not be a political opinion of the kind which has been identified as appropriate to the meaning of those words within the Convention.

8. The Tribunal noted that between 1993 and 1997 when he left the country, the applicant had occasional telephone calls from local government authorities warning him not to complain, presumably referring to his complaints about corruption or mistreatment by banks or public authorities.  The applicant had nevertheless written something of the order of 300 letters to different authorities in China making complaints of one kind or another.  It is well known that the Chinese government is not well disposed to complaints about its own or its agencies’ viewpoints, activities or corruption, and that in the ordinary sense of the word the fundamental human rights which are enjoyed in Australia and other western democratic countries do not, generally speaking, apply to citizens of China.  But that is a considerable distance from saying that the applicant's persecution, if he receives any, would be on the ground of a political opinion held by him within the meaning of the Convention.

9. The problems facing the applicant are problems which face virtually any citizen in China who makes a complaint about any mishandling or mistreatment of his or her affairs.  That could never be the basis of a claim for political asylum in Australia.  If it were, literally millions of Chinese citizens would qualify for that status.  That is simply not the purpose and motivation of the Refugee Convention. 

10. I have carefully read the views of the Tribunal and have given attention to the submissions which have been made on behalf of the applicant but I cannot find any relevant error of law which the Tribunal permitted in its determination in this case.  For those reasons the application will be dismissed.

    [AFTER DISCUSSION]

11. It is appropriate, I think, that the Minister should receive his costs in this case and the appeal will therefore be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld AO.

Associate:

Dated:             14 April 1999

Solicitor for the Applicant:	Mr Warren Nguyen (Warren Nguyen & Associates)
Counsel for the Respondent:	Mr J. D. Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 April 1999
Date of Judgment:	14 April 1999