Shu Min Pan v The Minister for Immigration & Multicultural Affairs [1997] FCA 13 (23 January 1997)

CATCHWORDS

IMMIGRATION - refugee status - protection visas - refusal - well- founded fear of persecution - reasons of membership of a particular social group and political opinion - Chinese citizen - entry on student visa - whether Tribunal improperly exercised power - whether error of law involving incorrect application of the law to the facts in Tribunal decision - whether no evidence or other material to justify Tribunal's decision

Migration Act 1958 , s5, s31, s36, s40, s65, s476

Migration Regulations, regs2.03, 2.04 and 2.05

Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Ignacio v Minister for Immigration and Ethnic Affairs (Lindgren J, 9 August 1996, unreported)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481

Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347

SHU MIN PAN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO WAG 65 OF 1996

R D NICHOLSON J

PERTH

23 JANUARY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 65 OF 1996

B E T W E E N: SHU MIN PAN

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER: R D NICHOLSON J

DATE OF ORDER: 23 JANUARY 1997

WHERE MADE: PERTH

THE COURT ORDERS THAT:

1. The application for review be 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 )

WESTERN AUSTRALIA DISTRICT REGISTRY )

GENERAL DIVISION ) NO WAG 65 OF 1996

B E T W E E N: SHU MIN PAN

Applicant

and

THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

CORAM: R D NICHOLSON J

DATE: 23 JANUARY 1997

PLACE: PERTH

REASONS FOR JUDGMENT

This is an application pursuant to s476 of the Migration Act 1958 ("the Act") for review of "a judicially-reviewable decision" made by the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of a delegate of the respondent ("the Minister") to refuse to grant a protection visa to the applicant.

Statutory framework

Section 45 of the Act requires a non-citizen wanting a visa to apply for a visa of a particular class. Provision is made for classes of visas in s31 of the Act which provides that the regulations may prescribe criteria for a visa or visas of a specified class. Section 40 authorises the regulations to provide that such visas may only be granted in specified circumstances. Section 65 of the Act requires the Minister (or a delegate of the Minister appointed under s496 of the Act) to grant a visa if satisfied the criteria prescribed by the Act or the regulations have been met.

Section 36 of the Act provides for such a class of visas known as protection visas the criterion is that "the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". These terms are defined by s5 of the Act as follows:

"Refugees Convention" means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951;

Refugees Protocol means the Protocol relating to the Status of Refugees done at New York on 31 January 1967."

Migration Regulations 2.03, 2.04 and 2.05 provide that the criteria applicable to classes of visa, the circumstances in which visas may be granted and the conditions applicable to such visas are as set out in sch2 to the Regulations. In that schedule item 866 prescribes criteria for protection visas. Item 866.211 prescribes as a criterion that an applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and makes specific claims under that Convention or claims to be a member of the same family unit as a person making such claims and applying for a protection visa. Item 866.111 provides that "Refugees Convention" means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

Article 1A(2) of the Refugees' Convention as amended by the Protocol defines "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."

Applicant's claims

The reasons of the Tribunal describe the applicant and his circumstances as follows.

"The applicant is a male Chinese citizen, aged 25 years and single. He entered Australia in April 1990 on a 12 months student visa. The purpose of his visit to Australia was to study English. He lodged a claim for refugee status one year after his arrival in Australia.

The applicant come from Nan An county of the Fujian Province where his parents and two brother continue to live. The applicant graduated from school in June 1989. The applicant's father is a member of the Communist Party. His father retired last year after working as the local manager for the taxation office. His mother is now retired; she previously worked in a factory. His brothers are both employed."

The applicant applied for a passport in October 1989 and it was granted in February 1990. Arrangements were made by his father who he understood engaged the assistance of a friend and paid some bribery.

The claims which the Tribunal described the applicant as having made were as follows.

(1) Family involvement in Cultural Revolution

The members of his family encountered persecution during the period of the Cultural Revolution. His family had a history of dissent arising out of the revolution and the prior records of his grandfather and father would have an adverse effect on his treatment in the future.

(2) Involvement in democracy movement

In May 1989 he became actively involved in the 1989 democracy movement. He was a leader and organiser of it, made speeches, handed out pamphlets and collected donations. He exchanged views about the movement with individual business owners. At the Tribunal hearing he added for the first time that he supplied equipment for the students in Beijing including tents and microphones.

(3) Friends in democracy movement arrested

Since his departure from China his former assistant ("X") had been arrested and imprisoned for crimes against the government. X had helped the applicant to organise speeches and collect donations. He donated 10,000 yuan, purchased the equipment and sent it to Beijing. He was sentenced to six months gaol sometime in 1992 or 1993. He was subsequently released after his father intervened. Following the arrest of X, the full extent of the applicant's participation in the activities would have been disclosed to the relevant authorities.

(4) Likelihood of imprisonment

The applicant would be gaoled for his part in the 1989 movement on his return particularly as he was the leader.

(5) Visits to family by authorities

The applicant's family have received visits from the authorities inquiring about his whereabouts. His parents have been ordered to notify the authorities as soon as he returns.

(6) Issue of summons for his arrest

Several summons had already been issued for his arrest. This was a claim which the applicant only made at the end of the Tribunal hearing. He could not say when they were issued or when his parents advised him of it, although it was sometime in 1993 or 1994.

For these reasons the applicant claimed to have a well-founded fear of persecution on a convention ground.

Tribunal's findings

The Tribunal found the applicant's claims could only be characterised as falling under the convention grounds of "membership of a particular social group" or "political opinion".

Turning to human rights in China generally, the Tribunal found violations of fundamental human rights by the Chinese government have been well documented by various international government and non- government agencies.

In respect of the Cultural Revolution, the Tribunal noted that all available information concerning whether the treatment metered out to Chinese citizens nowadays is influenced by judgments made about them or their families during the Cultural Revolution points in the same direction, namely, that there is no such link. It said the evidence indicates any lingering fear of persecution as a consequence of the policies of the Cultural Revolution period or their implementation was not well-founded. It also stated that even though the applicant's family encountered persecution during that period, the evidence demonstrates there was not a real chance the applicant would encounter persecution in the future due to judgments which were made at that time.

In relation to activities during the 1989 democracy movement, the Tribunal did not accept the applicant's claims concerning the purchase and transport of goods or the existence of a summons or summonses. This finding by the Tribunal was based on the failure of the applicant to mention these matters in interviews or in response to written requests for new material and despite the fact that he had the assistance of an adviser throughout the period.

The Tribunal then turned to country information. Although this disclosed the existence of stringent vetting procedures in China to check for pro-democracy activists in whom the authorities had an interest, the Tribunal noted the applicant had been able to leave China legally. It found the fact that the applicant's plans to leave China were widely known and he was provided with all necessary documentation before departing China legally, indicated the authorities satisfied themselves he was not of any interest to them.

The Tribunal continued:

"The applicant has not had a high dissident profile in China. He has no dissident profile in Australia. As for his former association with X who was in jail, he was sentenced in 1992/1993 and was subsequently released. Moreover, the evidence shows that there is no ongoing pursuit of 1989 activists. In any event, the alleged involvement of X was greater than that of the applicant even though the applicant claims he was the leader. The possibility that he would effectively organise opposition to the government if he were to return to China is far-fetched. It follows that he does not, therefore, face a real chance of persecution due to any dissident activities in which he has been engaged."

Subsequently the Tribunal said that the evidence before it was that the pursuit of persons who were low profile activists in 1989 ceased sometime ago. Further it said that while some persons who were arrested at that time continue to suffer harsh penalties and inhumane conditions, there was no evidence of the authorities continuing to punish persons with a "low profile" who actively supported the pro- democracy movement. The Tribunal therefore again concluded there was not a real chance the applicant would encounter serious harm in China due to his support of the pro-democracy movement and his association with X.

The Tribunal found believable that the applicant's family had received visits from the authorities and a request to report his return. However, it considered such visits did not signal a real chance the applicant would be persecuted upon his return to China.

In considering these matters the Tribunal relied on what was said by the High Court in Chan v The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. It accepted it was there held by the High Court that a fear would be well-founded if there was a "real chance" that an applicant would suffer persecution if he or she returned to his or her country of nationality (per Mason CJ at 389; Dawson J at 398; Toohey J at 407; and McHugh J at 429). It accepted a "real chance" was one which was "substantial, as distinct from a remote chance": Mason CJ at 389; Toohey J at 407; Dawson J at 398 and McHugh J at 429.

So far as "persecution" was concerned, the Tribunal acted on the understanding of Dawson J in Chan at 398 that "there is a general acceptance that a threat to life or freedom for a Convention reason amounts to persecution". It cited Mason CJ at 388 and McHugh J at 430.

Grounds of review

The grounds of the application are:

"1. That the decision was an improper exercise of the power conferred by the Migration Act 1958 or Migration Regulations 1994, as amended.

2. That the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the person who made the decision.

3. That there was no evidence or other material to justify the making of the decision."

These grounds reflect the provisions of ss476(1)(d), (e) and (g) of the Act.

On behalf of the applicant an affidavit was tendered to the Court. It was objected to on behalf of the respondent. It cannot play any part on the resolution of this application which requires a review of the manner in which the Tribunal reached its decision on the materials before it.

Improper exercise

Section 476(3) provides that a reference in par1(d) to an improper exercise of power is to be construed as being a reference to:

" (a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b) an exercise of a personal discretionary power at the direction or behest of another person; and

(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d) taking an irrelevant consideration into account in the exercise of a power; or

(e) failing to take a relevant consideration into account in the exercise of a power; or

(f) an exercise of a discretionary power in bad faith; or

(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c)."

This ground was particularised in two ways. Firstly, it was said the respondent exercised its discretionary power without regard to the merits of the applicant's case. However, the case for the applicant did not specify any rule or policy which caused the Tribunal to disregard the merits of the applicant's case. The reasons of the Tribunal clearly show it considered those merits.

Second, it was particularised that the evidence to the effect the authorities in China had been inquiring as to the applicant's whereabouts should have sustained a finding that there would be a real chance of adverse discrimination occurring if the applicant was returned to China. This particularisation did not disclose any basis for review on the ground of improper exercise as it is further defined by s476(3).

The consequence of this is that this ground was abandoned on behalf of the applicant at the hearing.

Error of law

The case for the applicant also abandoned reliance on an argument that the Tribunal did not properly direct itself at law as to the meaning of "well-founded fear".

The case disavowed any reliance on that portion of s476(1)(e) which involves an incorrect interpretation of the applicable law.

This ground was therefore pressed on the basis that the error of law disclosed was an incorrect application of the law to the facts as found by the Tribunal. During the hearing the question arose as to the meaning of the provision in s476(1)(e) that an error of law may be constituted by "an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision". In Ignacio v Minister for Immigration and Ethnic Affairs (Federal Court, Lindgren J, 9 August 1996, unreported) the opinion was expressed that whatever be the precise scope of par476(1)(e), once it is seen that there was evidence or other material to justify the making of the decision, it cannot be said that there was an error of law in the case.

The submissions for the applicant in this respect were directed to particular portions of the reasons of the Tribunal.

Turning to the Tribunal's findings on visits by authorities and the issue of summons for the applicant's arrest, it is contended these were not dealt with in accordance with the reasons of the High Court in Chan. In Chan at 391 Mason CJ said "the evidence that the authorities were inquiring as to his whereabouts would have sustained a finding that there would be a real chance of adverse discrimination occurring if he were returned to China". McHugh J at 419, in reasons with which Mason CJ agreed, stated that in that case the police had questioned the sister of the applicant concerning his whereabouts.

In the present case it is submitted the Tribunal, having concluded the visits from authorities to the applicant's family were explicable on the basis of the usual monitoring and regulation of personal life taking place in China on a daily basis, failed to view the country information leading to that conclusion in the light of the personal circumstances of the applicant. The first of such circumstances was the issue of summonses for the applicant's arrest, a matter disbelieved by the Tribunal and not the subject of a positive finding of fact. The next circumstance was the arrest and detention of X.

This submission is one that the Tribunal failed to properly consider the merits of the evidence, not that it improperly applied the law to the facts.

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at 490-1 the High Court approved that part of the judgment of the Full Court in the Court below to the effect that a decision-maker's reasons for decision are entitled to a beneficial construction. At 491 the High Court stated:

"...any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this court."

In the present case the Tribunal, correctly understanding the law, considered the applicant's claims and other material and assessed whether or not there was a real chance of persecution in respect of claims which it accepted. Having considered the evidence, the Tribunal came to the conclusion there was not a real chance the applicant would be persecuted for Convention reasons if returned to China. An examination of its reasons does not disclose any surreptitious adoption of a test other than the real chance test: Wu at 498. The arguments for the applicant under this head invite the Court to engage in merits review and to substitute its decision for that of the decision-maker. That is something not open to the Court on the grounds of review provided for in s476.

The case for the applicant also directed attention to the conclusions of the Tribunal that there was no link between judgments made about families during the Cultural Revolution and treatment of citizens of China today and of the applicant if he returned. Again reliance was placed on what was said in Chan by Mason CJ at 390 to the effect that "even if... actions were solely motivated by reason of the authorities regarding [the applicant] as a member of a anti- revolutionary family, they must be classified as persecution for reasons of political opinion". This was because the discriminatory treatment against the applicant in Chan resulted from unacceptable political opinions ascribed to the family of which he was a member. That, of course, was a statement dependant on the evidence in Chan which was a case involving the applicant suffering interrogation, detention and exile to a place remote from his place of residence under penalty of imprisonment for escape or for return to the place of residence.

Here the Tribunal's conclusions in relation to the linkage between the involvement of the family in the Cultural Revolution involved an examination of the country information before the Tribunal. This Court would be engaging in merits review if it were to remake that evaluation.

The argument in support of the applicant's case on this point is also expressed on the basis that, in the absence of any other explanation for the discriminatory treatment of the applicant by authorities, the Tribunal should accept the discrimination amounted to persecution. However, the position is that a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs [1994] FCA 1105; (1994) 34 ALD 347 at 348.

The submissions also turn to the Tribunal's reasoning in relation to the pursuit of low profile activists in the 1989 democracy movement. Those submissions also invite the Court to embark on merits review and do not make apparent any incorrect application of the law to the facts as found by the decision-maker.

Included in these submissions was the suggestion there was an inconsistency between the Tribunal's findings that the applicant's father obtained the passport for him through the assistance of a friend and payment of a bribe and the later finding that the applicant was able to leave legally. I do not read that latter finding contains an inference that the Tribunal found the applicant was not questioned about his role in the pro-democracy movement when applying for a passport. There is no necessary inconsistency between the two findings because the Tribunal was entitled to conclude that the issue of a passport, whether or not it involved direct questioning of the applicant, carried with it the inference that the authorities were satisfied he was not of interest to them.

For the applicant it was submitted an error of law was made when the Tribunal failed to consider the ignorance of the authorities about his activities at the time of his departure may have been due to the fact that knowledge of his activities did not come to light until X was imprisoned and information obtained from him. That was a submission made on behalf of the applicant unsupported by evidence and not the subject of any finding by the Tribunal. In any event, the significance of the evidence was for the Tribunal to weigh.

This ground was also particularised in another way to the effect that the Tribunal did not correctly direct itself concerning the circumstances sufficient to constitute a well-founded fear of persecution in that the Tribunal decided:

" (a) visits by the authorities at the residences of the applicant's relatives in the PRC inquiring about the applicant and summonses for his arrest did not signal a real chance that the applicant would be persecuted when returned to the PRC;

(b) there is no link between judgments made about the families during the Cultural Revolution and treatment of PRC citizens today;

(c) there is no link between judgments made about family members of the applicant during the Cultural Revolution and treatment of the applicant if he is returned to the PRC, and therefore, there is no real chance that the applicant would encounter persecution in the future due to judgments that were made at the time of the Cultural Revolution;

(d) that pursuit of "low profile" activist in the 1989 democracy movement ceased some time ago; and

(e) that in light of the applicant's profile during 1989 there is not a real chance that he would encounter serious harm in the PRC due to his support of the pro-democracy movement and his association with X."

These sub-particulars are either assessments by the Tribunal of whether a particular matter could give rise to a real chance of persecution or they are findings of fact leading up to such assessments. None of them can provide any basis for a claim that the Tribunal incorrectly applied the law to the facts as found by it.

It is not a permissible ground that any of these sub-particulars were not taken into account or were taken into account when irrelevant: ss476(3)(d) and (e).

Lack of evidence

This ground is particularised in two ways. Firstly, that there was no evidence considered by the Tribunal which would justify it finding there was an absence of a well-founded fear. Second, in the absence of evidence to the contrary, the respondent should not have inferred that the grounds of fear held by the applicant had dissipated with the passage of time since 1989.

The principal submission in support of this ground is that the Tribunal preferred general comment over the specific evidence pertaining to the applicant. The nub of the submission is that the Tribunal did not have before it evidence indicating the authorities were no longer interested in the applicant. It has already been stated that a decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out: Selvadurai (supra).

Moreover, the ground of no evidence provided for in s476(1)(g) is to be understood subject to s476(4) which reads:

" (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person cold reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

As to s476(4)(a), a decision that a person is not a refugee is a decision that the decision-maker "is not satisfied that the person has a genuine fear founded upon a real risk of persecution": Wu Shan Liang at 493. The reference to risk is no different to the reference to real chance approved by the High Court in Chan. There was a substantial body of material before the Tribunal apart from the claims in evidence of the applicant, so it cannot be said here there was no evidence or other material from which the Tribunal could reasonably have been satisfied.

As to s476(4)(b), the Tribunal did not rely on the existence of a particular fact to make its decision but rather on a weighing of all the matters before it.

In my opinion none of the grounds is made out and the application for review should be dismissed with costs.

I certify that this and the preceding 12 pages are a true copy of the Reasons for Judgment of his Honour Justice R D Nicholson.

Associate:

Date: 23 January 1997

APPEARANCES

Counsel for the Applicant: Mr M P Ellis

Solicitors for the Applicant: James Chong & Co

Counsel for the Respondent: Mr P Macliver

Solicitors for the Respondent: Australian Government Solicitors

Date of Hearing: 6 November 1996

Date of Judgment: 23 January 1997