Li v Minister for Immigration & Multicultural Affairs [1999] FCA 779 (3 June 1999)

Last Updated: 23 June 1999

FEDERAL COURT OF AUSTRALIA

Li v Minister for Immigration & Multicultural Affairs [1999] FCA 779

MIGRATION - application to review decision of the Refugee Review Tribunal affirming refusal of a protection visa - no error of law alleged - application in substance sought a review of the merits of the visa application - application dismissed - no point of principle

Migration Act 1958 (Cth), s 475

Applicant A & Anor v Minister for Immigration and Multicultural Affairs [1997] HCA 4; (1996) 142 ALR 331 cited

Matter No. N 76 of 1999

RONG LI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J

SYDNEY

3 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 76 OF 1999

BETWEEN:	RONG LI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	VON DOUSSA J
DATE OF ORDER:	3 JUNE 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application 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
NEW SOUTH WALES DISTRICT REGISTRY	N 76 OF 1999

BETWEEN:	RONG LI Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	VON DOUSSA J
DATE:	3 JUNE 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 This is an application made under s 475 of the Migration Act 1958 (Cth) (the Act) seeking to review a decision of the Refugee Review Tribunal (the RRT) made on 6 January 1999. The RRT decided that it was not satisfied that the applicant was a refugee and affirmed an earlier Ministerial decision that the applicant was not entitled to a protection visa. To be entitled to the status of a refugee, the RRT had to be satisfied that Mr Li came within the definition of a refugee in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (the Convention).

2 Under Article 1A(2) of the Convention the applicant would be a refugee if he were a person who:

"owing to a 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."

3 According to his application the applicant was born on 16 November 1966 in the town of Fuqing in the Fujian province of the People's Republic of China and appears to have spent most of his life in that province.

4 He completed his secondary education in 1983. He said in his original application that he was a worker with no qualifications and had worked in the Fujian Water Board from September 1983 until coming to Australia. However, in his passport, it is stated that his profession is "doctor" and in the course of submissions before this Court, he has described himself as a dentist. He is married. His wife and three children reside in China. He claimed, on his application form, that he is of Hui ethnicity and that he is a Muslim. The applicant asserted that he was a refugee on the basis of his fear of persecution as a result of his religious ethnicity in that he was a Hui, namely an ethnic Han Muslim.

5 He claimed that as a result of his religious beliefs he suffered harassment and discrimination at school. He claimed that later in 1993 at his father's funeral the mourners were harassed and he was fined for blocking a public street. He claimed that as he was not able to pay the fine, he was detained for seven days during which time he was interrogated and harassed by the police and other prisoners. He said he was released after his mother paid the fine. He also claimed that he had been discriminated against as a result of the application of the one child policy because he had one son and two daughters. He said this led to him being severely fined and to his wife being sacked from her job. He claimed that the Chinese Government had discriminated against him, and persecuted him by denying him the right to practice his culture and religion freely. As a result of the large fines he said he had to flee from China in order to make a living to support his family.

6 The initial application for a protection visa was refused by the Minister's delegate and the applicant sought to have that decision reviewed by the RRT. The RRT gave the applicant the opportunity to an oral hearing. However, he did not respond to the offer and a decision was made by the RRT on the information lodged by the applicant in support of his original application. The RRT also had regard to information that it had about the situation in China and people of the Hui minority group in China. On that information the RRT observed that the Hui are a sizeable minority in China being closely connected with the Han majority. The information showed that the Hui are permitted to practice their own religious beliefs, are given subsidies for special foods as part of the social welfare subsidy fund administered by the State, have special entry requirements for universities, and are able to run their own religious affairs within their mosques.

7 In light of that information the RRT was not satisfied that the Government of the Peoples Republic of China conducted any systematic course or policy against the Hui which was designed to harass, discriminate or persecute people on the basis of their Hui ethnicity and Muslim religious beliefs. The RRT accepted that the applicant was a Chinese Muslim of Hui ethnicity. However, it did not accept that he had experienced persecution by reason of his religion prior to his departure from China. The RRT accepted that the applicant had suffered some forms of harassment during the cultural revolution. However, it did not accept that the harassment was sufficiently serious to constitute persecution as required by the Convention. In reaching that conclusion the RRT noted that the applicant had received a full education, including a professional education, despite his ethnic and religious background.

8 The RRT was not satisfied that the applicant was detained and mistreated by the authorities in 1993 in relation to the holding of his father's funeral. The RRT referred to country information available to it which indicated that the authorities permitted the Hui to carry out their religious beliefs and practices freely. The RRT considered that any fine that the applicant may have received in respect of the funeral was because he failed to get permission to hold the funeral procession. The RRT considered that the authorities' objection was that the procession blocked the street and that their conduct was not directed towards the prohibition of the applicant's traditional religious beliefs.

9 The RRT was not satisfied that the applicant had suffered persecution within the meaning of the Convention prior to his departure from China for reason of his religious beliefs.

10 The RRT also noted that evidence is available in country reports to the effect that ethnic and other minorities including the Hui are exempt from the strict application of the one child policy. Accordingly, the RRT was not satisfied that the applicant was punished and fined under the one child policy as he alleged. In any event it has been held in this country that for the purposes of Australian law punishment for a contravention of the one child policy does not amount to persecution within the meaning of the Convention: see Applicant A & Anor v Minister for Immigration and Multicultural Affairs [1997] HCA 4; (1996) 142 ALR 331.

11 It is against those conclusions and the ultimate finding against refugee status that the applicant now seeks a remedy from this Court setting aside the decision.

12 As I have endeavoured to explain to the applicant today, this Court's powers are limited to interfering with a decision of the RRT, only on narrowly defined errors of law specified in s 476(1) of the Act. The application to this Court does not seek to identify any error of law which would come within s 476(1).

13 The applicant, in the application for review, says he is aggrieved because:

"The applicant was an ethnic minority in that country where he faced and will continue to face discrimination and persecution were he returned to China. The applicant has a well founded fear that the persecution he would face were he to return to China, would make him being severely disadvantaged in terms of employment and entitlement to political rights in China. The applicant also fears that because of the persecution he faces if he returns to China the immediate family members of the applicant will also face a strong possibility of being discriminated."

The application continues then to state the following information under the heading, "The grounds of the application are":

"The applicant is of Hui nationality in China and the Chinese authorities are crushing down forces from this nationality because this nationality has been accused of wagging (sic) independence and terrorism inside the country. Thousands of people of Hui nationality have been put to prison for terrorism and separationism (sic). Some of them, up to hundreds, have even been executed. The applicant has a genuine fear that once he returned, because of what he had done in the past in that country, he would face imprisonment for years. The applicant is a dentist with years of education of higher learning in university back in China and wishes to utilise his skills in this country to serve the broad masses of Australians."

14 The application goes on to request that the Department re-examine the claims with a view to allowing the applicant to stay in Australia on humanitarian or refugee grounds.

15 The first portion of the application which I have read in substance seeks to re-open the facts and have the application assessed again on the merits. This Court has no jurisdiction which would permit it to do that. The statement does not identify any error of law nor even suggest that one might have been made by the RRT.

16 The actual grounds of the application as stated seek to introduce entirely new facts which were not put before the RRT. This Court has no power to receive fresh evidence. In oral submissions made by the applicant today, he expressed reasons for wishing to have the adverse decision reviewed which put his case on yet another basis. He said that he desired to stay in Australia to further his study as a dentist so that he could continue to help people. He said that he had attended a dental conference in Canberra in 1998 and he desired to stay in Australia so that he could attend another dental conference in the year 2000.

17 He said that he realised now that his lack of English was preventing him furthering his dentistry study and he wanted the opportunity to gain more English so he could further his career. He added, as I understood him, that because he had been involved with the pro-democracy movement in China that was, to use his expression, "in some way as against my further development and it is better to stay here a little longer to achieve the things that I would like to achieve".

18 Those submissions, again attempt to put additional and new factual material before the Court which the Court has no jurisdiction to receive. Moreover, those facts are not suggestive of persecution for a Convention reason in China. Had those facts been before the RRT, they would have provided further evidence upon which it could have acted to uphold the refusal of the protection visa.

19 As no error of law has been identified and as none is apparent on the material before the Court, the application must be dismissed.

20 The application will be dismissed, and the applicant is to pay the respondent's costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa.

Associate:

Dated: 3 June 1999

The Applicant appeared in person
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 1999
Date of Judgment:	3 June 1999