Zhang, Y. v Minister for Immigration & Ethnic Affairs

[1993] FCA 1030

1 0 3 0      93

JUDGMENT No. ........ ........ .. I .....,......

IN THE FEDEFUiL COURT OF AUSTRALIA	)
) LIMITED DISTRIBUTION
NEW SOUTH WALES DISTRICT REGISTRY	)
GENERAL DIVISION	) NO NG 8 0 6 of 1 9 9 2

BETWEEN:  YING ZHANG
Applicant

m:	MINISTER FOR IMMIGRATION
& ETHNIC AFFAIRS
Respondent

CORAM :  HILL J

PLACE	:	SYDNEY
DATED :	1 7 DECEMBER	1 9 9 3

EX TEMPORE REASONS FOR JUDGMENT

The applicant, MS Ylng Zhang, seeks judicial revlew of a decislon of the Mlnlster of Immlgratlon, and EthnlcAffairs maae on 1 6 October 1 9 9 2 refusing her application for a review of a decislon that she be refused refugee status. The application is brought pursuant to the provisions of the Bdminlstrative Declslons (Judicial Review1

Act 1 9 7 7 . So far as it may depend, as well, upon the

Jud~ciarv	Act 1 9 0 3 ,	no separate question arises in the present
case.

Nation Convention relatina to the Status of Refuaees ("the Convention") as amended by the 1 9 6 7 Protocol ("the Protocol").

The applicant lnltlally relied on a number of grounds. She complained that the Minister had failed to take into account all of the matters ralsed by her. She said that the decislon was not made in accordance w l ~ h the 1 9 5 1 Unlted

She sald that the aeclsion uas made Ln breacn of the rules of natural justlce.

The appllcaclon zo cne Court was brought at a clme when the applicant was representea by a fl~iin of sollcltors. :<owever, xhen the matter came on for hearlng cne appl~canc was unrepresented although she appearea wlth z.?e assistance of an Interpreter.

She rel~ed only apon =he firsr of m e chree grounds
to wh~cn I have referred. Her real conplalnt was chat she
believed that her fear of persecuclon ln her councry of

natlonallty was well founced and that tne ceclslon-maker, a Mr ?lnley, had falled CO take her vlew lnto account in conlng

-

o:hls decision. in the alternat~ve, and ~t may well be a dlfferenc 2olnt, sne was concerned thac the maklng of che very

appllcatlon for refugee status, the revlew of whlch she sought, brought about the sicuatlon chat had a well-founded bellef that she woula be persecuted in the event zhac she returned to her country of natlonallty. The applicant, a cltlzen of the People's Republ~c of

Chlna, arrlved ln Australia on 24 March i990 on a student's vlsa. She was then aged 10 years of age. Her vlsa was valld until 24 Marcn 1991. On 30 January 1991 sne lodged wlch =he Resoondent Xlnlscer an application for refugee status. This applicat~on xas refused and she was advlsed of that refusal ln

w r l a n g on 30 A p r r l 1 9 9 2 . On 34 Augusc 1 9 9 2 t h e applicant

.lodges o u t of rime an a p p l l c a t l o n f o r revlew by che Xefugee

S t a t u s Revlew Committee of t h e d e c l s l o n adve r se t o h e r . That

a p p l r c a t l o n f o r revlew was ~ n l t l a l l y r e f u s e d a s no explanation

was ~ r o v l d e d by h e r f o r zhe d e l a y i n lodgrng rr.

L a t e r M r Zrnley , while z o t accepc lng che reasons

u l t i n a c e l y furnished by zhe a p p l l c a n z f o r t h e d e l a y , r n v l t e d

h e r t o make f u r z n e r submlss lons . No such f u r t h e r submiss;ons

were made and 1 F in l ey , on t h e m a t e r l a l t h e n b e f o r e hlm,

concluded c n a t she was n o t a r e fugee wlchin che meaclng of ?he

Convenzlon and t h e i r o t o c o l . i r 1 s S d e c l s l o n jrnlch t h e

a p p l r c a n t now a s k s t h e c o u r t t o revlew.

The f a c t s a s set o u t l n cne applicant's application

f o r r e fugee s t a t u s a r e b r l e f . She says cha r s h e a r r l v e d i n

A ~ s z r a l l a r n March 1 9 9 0 and t h a t i n June of t h a t same y e a r =he

Tianamen Square l n c r d e n t occu r red . She says t h a t a t t h a t time

she b e l i e v e d she would automatically ne g r a n t e d r e fugee

s t a c u s . She s a l d :

"I am	f e a r f u l	t h a r l f	i r e t u r n	t o Chma	I
w l l l	be	pe r secu ted	by	t h e	Chlnese
government	because	I	d l d not	r e t u r n	t o

China aiz t h e e x p ~ r a t ~ o n o f my vzsa. r know t h a t I w l l i be regarded a s counrrer- revoiurrlonary and b e l i e v e t h a t I w l l 1 be

s e n t t o p r i s o n . "

The applicant clalmed thac her father nad been suspeczed of belng an agent of the Ruomlntang and had been dezalned by che secret police in 1967. She says zhaz he was detained, interrogated and sent for "reform" to laoour on a

farm but was released after two years. The whole fanlly suffered, she says, dur~ng the cultural revolution at which

tlme ner father was forced to qlve ;?p his Chr~stlan rellglon.

She relled also on the fact that she had said noney to an offlclal of tne Chlnese governmenz to obcaln a passport, tnac she had been aismlssed from her ?osltlon wlth =he Torelqn Trade 3ureau of the Chlnese Academy of Sclences and that her fanlly s~ould nave co repay a relatively large sum to cover her expenses in cornlng to Auscralla. She referrea as well to letters whlcn she sald had warned her chat it would be dangerous for her to return to Chlna.

Glven her farher's subsequent history, lt was not surprlslng that little we~ght was given to hls suffering ln

the Cultural Xevoiution. Subsequenr: to =hat time ~t appeared chat che appllcant's father and mocher worked for the Chlnese Minlsrry of Forelgn Affalrs. Her farher served as Chinese Ambassador ln Denmark and 'Zurope.

Wor was payment for the passport rhought to advance

the appllcant's case.	It seems chat =he applicant paid money
for her passport to eqedlte ~ t s	issue. ?inally, che
o ~ l ~ g a t i o n	t o repay moneys expended by t h e Chlnese government

? o r h e r eaucacion and oche r expenses ha rd ly j u s r r f l e d a g r a n t

of r e fugee s t a t u s .

The applicant was interviewed l n conneczlon wl tn h e r

o r l g i n a l a p p l l c a c l o n . I n t h a t rn t e rv l ew she a d m ~ t t e d i h a c sne

had come t o Australia l n 1 9 9 0 (lt was h e r second v ~ s l t ) v?-th

undertak1r.g w l t n t h e r e l e v a n c Chinese a u t h o r l r l e s =.let she

would r ecu rn t o t h a t coun t ry a f t e r s e r v l n g a t r a l c e e s h l p wlzn

t h e Austra l -an Convention and Trave l Serv lce . A t che ena of

z n a t oi?e y e a r t r a l n e e s h l p she had s e c r e t l y moved t o Sydney

wl rnout z e i l r n g h e r C h ~ n e s e employer. She a a m l t t e d c n a t h e r

remalnlng i n A u s t r a l i a was f o r persona l and economlc reasons

r a t h e r t nan f o r p o l l r ~ c a l r ea sons .

A r Barker , che d e l e g a t e of t h e M l n ~ s t e r who

c o n s ~ d e r e d t h e applicant's o r i g i n a l application, concluded h ~ s

assessment o f t h a t a p p l i c a t r o n by saylng:

"I have considered 1 Y s Zhang's stazernent

t h a t she n a s been warned i n i e t t e r s c h a t

it wouid be dangerous f o r h e r zo r e t u r n t o

.. - -

China. I f l n d it a r r r l c u l t t o accep t t h i s

i n t e r p r e t a t i o n . She h a s done n o t h l n q

which would war ran t persecu t ion ~y t h e PRC

a u z h o r i t ~ e s . I n f a c t , h e r o n l y

mlsderneanour 1s CO overszay i n A u s r r a l ~ a ,

which would he more l l k e l y t o a t t r a c t t h e possibility o f h e r .$aving 20 w r x e a seif- crltlclsm o r hav lng CO a t t e n d re-education

c l a s s e s .	She	came	a s	a	governrnent-
sponsored	s t u d e n t	C O	A u s t r a l i a	whlcn	would

seem t o i n d l c a z e t h a t she was t r u s t e d ar:

tne zlme she lefr: in Marcn 1990. Slnce
thar: t~me, sne has nad no ~olitical
involvement in Al?stra;la; conskquenr:ly,
her claim to fear persecutlon for

polztlcal reasons cannot oe accepted as

objeczlvel y oased. "

E.ir Barker's reasons were adopted by Xr Tinley. in his scacemenc of zeasons Mr Flnley said =ha= the lasue he haa to determine was whetner chere ->?as a real ch~nce thac tne appllcanc would be persecuted for a Convent~on-~ased reason if she rezurned zo che People's Republ~c of China. 3e concluaed (and that conclusion was not subject co actack ln these proceedings) thac the applicant dld noc face a real chance of persecution for a Convenc~on-based reason if she were CO return zo Chlna.

Xevertheless, the appllcanc submlts that i n maklng hls decislon to refuse revlew Yr Flnley failed to take lnto account, as a relevant matter, either chat the mere fact of lodglng an application for refugee scatus sufficed to s a ~ ~ s f y

the crlzeria of a well-founded fear or tnat she in fact dld

have ana for that reason should be found to have had a well-

founded fear. This submlsslon, which appeared somewhat to have taken counsel for the Mlnister by surprise, lnvolved two parts. The first concerned whether in the submissions she had

made, durlng che course of the inrerview to whlch I have referred, she raised the lssue whether her applying for refugee szatus lcself brought about the consequence =hat she had a we'll-founded fear of persecutlon wlthln che meaning of the Convention and Protocol. The second quesrlon was wnetner, In any event, zhls was a relevant matter for che declslon- maker to take into account. To the excent tnat zhere was an alzercatlve submlsslon that the decls~on-maker haa falled to - ,=se - ~ n t o account ner actual sunlectlve scate of rnlnd, the sunmlsslon was that this also xas a relevant natter.

The applicanz gave oral evlcence ihaz znere was an omlsslon from a recora of tne lnterview conaucted wlth her, whlch made zhe cranscrlpt of =hat inzervlew incomplete. She sald t5at in the course of the lnterview she naa iald :o the officer conducting it that she had lodced an appilcatlon for refugee scatus, and because of tnat (le presumaoly the lodging of zhe appllcaaon ~tself) she ?ad a weil-founded fear of being persecuted. ?or that reason she said she believed thaz she was a refugee.

She was ooc cross-exmined ,Jpon zhls evldence and whlch chat ~ntervlew was conducted, no submlsslon was although orher evldence was adduced of the circumstances in	altimately made that 1 should disbelieve che applicant's
evidence, whlch 1 accordlnqly accept. I granzed an adjournment to counsel for the respondent to obtain lnstructlons as to tne course of the interview and to file such ocher evidence as the respondent mlght aesire on che question.
When the maker resumed before me today counsel Sor the Minister read an affidavit of a r Jlllngwortn, Senlor Offlcer in the Deternunation of Refugee Status - Operations Sranch, as to che pollcy adopted in :he Departnenr of
T -mmigracion, and Ethnlc Affairs ln respecr of the 3rocesslng
ana treatment of applicarions for c?.e determmatlon of refugee status. ?Ir Iliingworth says that at least since he has held the posltlon he presenzly holds, applicaclons for determlnatlon of refugee status ana related appllcatlons are
treated as strlctly conf-dencial. Thls is because it is recognised chat an applicant's safety could be compromised should rhe authorltles in thelr councry of orlgln identlfy the applicant as a refugee clamant. Altzougn it is hardly a macter of evldence he points out txat tne acrual appllcatlon for refugee scatus is shown on its face co be in confidence, and an under~aklng is given in -,he appllcatlon form thar the informa~~on wouid not be passed on to authorities in other
counrrles.
In reply the applicant gave further oral testimony to the effect thar: a representaclve of the Consulate of the People's Republic of China had sought to interview her when she was detained in rhe Villawood Detention Cencre. She said that sne had not agreed to see che consulace representative, nor had she asked h m to come to Villawood to see ner. There
is no explanat~on in the evidence, lea as it was in reply, as

to why a cqnsular offlcial had come to see the applicant. WO
aouDt tney had, ac the very least, learned that she was

dezalned .

Desplte a submlsslon naae by =he appllcant from :he

Dar cable, ersons detained ac Villawood are not kept In a refugee camp. The Imlaraclon Acz 1993 and before that tse Yiarazion Act 1958 requlres the Yinlscer ln cerzaln clrcumscances, where a person 1s not legally enclcled to remaln in Australla, to be kept ln decencion pending deporta~ion. While no doubt some of the persons ln that centre may have applled for refugee status, i:certainly does not follow chat because a person is decalned in that centre, that person has made such an appllcat-on. The most thac can De sald is tnar: the Mlnlster has formed a view chat that person was zoc legally enntled to remaln ln Australla.

On che evldence I would nor; conclude that merely

because the applicant had applied for refugee stacus, she was

one or o.cher of tne relevant grounas. Indeed the arqunent	ln consequence a person who had, wlth~n Convenclon and Protocol, a well-founded fear of persecution on the meaning of the
would, if taken to lts extreme, have =he consequence, as the appllcant appeared to accept, thac every person applylng for refugee scarus would, as a result of navlng made the appllcatlon, become ent~tled to refugee sratus. Sucn an argument clearly would nake nonsense of wnat is lntended to be a particular category of persons entltled ultimately to
speclal treatment by che laws of Xusrralla.
When the Conventlon refers co a person who has a well-foundea fear of persecution for one or ocher of the reasons 1-7 question, zne Conventlon refers to cwo separate nacters. The f l r s ~ 1s chat ,he persons qaklng 'he appilcatlon nusc in fact have a sub:ec=lve fear of the kind referred ko i n paragrapn 2 of Article 1A of che 1951 Conventlon, as amenaed. The second 1s that thac fear musc be weil-founded. Thls second element is an oblectlve questlon, it is nor. sufflclent tnat an applicant for refugee status belleve s u b ~ e c ~ ~ v e l y chat cne fear wnlcn he or sne has 1s a well-founded one, rather it being accepcea cnat ne or she has such a subjecr~ve fear, -,he
questlon becomes then an oblect~ve one whether his or her fear
1s ln fact well-founded.
It cannor. be sald that che decision-maker in the present case failed to take :nto account che exlstence of che
applicant's subjective fear, although FL readlng of :he reasons of cne aeclsion-maker does not suggest that any emphasls was puc on sublectlve matters. This was not necessary because tne declslon-maker assumed the exlstence of a sub~ective fear and proceeded to consider the second matter, namely whether sucn a fear was well-founded. He concluded, for reasons not presenciy unaer attack, that such fear was not well-founded. Havlng so concl,uded, there was no need for hlrn to proceed zo conslder whether there exlsted a sublectlve fear ~f he nad had any doubts about the matter.
In other woras, che applicant has not snown cnat cne declslon-maker has, in t5e present clrcumscances, failed to take into account any relevant rnazter. The consequence is that ner apgllcatlon must be drsnlssed. 1 order chen cne application is dlsrnlssed and m e appiicant pay the respondent's costs of it.
I certify t h a ~ chis and the
preceding cen (10) pages are a true copy of the Seasons for Judgment nereln of hls 3onour Mr Gustice 3ill.
.s.c.ate: 4/& - - ; j / / - l
ate: / - & L , I 7,

C

Applicant appeared for herself.

Counsel and Sollcltors
for Xespondenc:	WJ Wlillams ~nstructed by
Austraiian Government Solicitor
Dates of Searing:	26 November and i7 December 1993