Lu v Minister for Immigration & Multicultural Affairs [2000] FCA 40 (1 February 2000)

Last Updated: 4 August 2010

FEDERAL COURT OF AUSTRALIA

Lu v Minister for Immigration & Multicultural Affairs [2000] FCA 40

MIGRATION – refusal of protection visa – challenge to finding by Refugee Review Tribunal that applicant did not have a well-founded fear of persecution for a Convention reason – submission that Tribunal erred by failing to consider “cumulative effect” of factors that tended to establish applicant’s case rejected – no error of law or other ground of review made out.

Yong Tong Lu v Minister for Immigration and Multicultural Affairs
N 440 of 1999

Whitlam J
1 February 2000
Sydney

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 440 OF 1999

BETWEEN:	YONG TONG LU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE OF ORDER:	1 FEBRUARY 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 440 OF 1999

BETWEEN:	YONG TONG LU APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	1 FEBRUARY 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application under s 476 of the Migration Act 1958 (‘the Act”) to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 20 April 1999.
2. The applicant is a national of the People’s Republic of China (“PRC”), who was born in Tianjin on 12 December 1960. He arrived in Australia on 10 August 1996 and applied for a protection visa on 4 November 1996. The application was refused by a delegate of the respondent (“the Minister”) on 10 September 1997. The applicant applied for review by the Tribunal, which held a hearing on 25 January 1999. The Tribunal affirmed the delegate’s decision. At all times the applicant was assisted with the carriage of his visa application by a migration agent.
3. The statement prepared by the Tribunal under s 430 (1) of the Act is in a familiar format. It is divided into sections under the headings “Background”, “The Legislation”, “The Refugees Convention”, “Claims and Evidence” and “Findings and Reasons”. Under the heading “Claims and Evidence” the Tribunal described the claims made and evidence submitted by and on behalf of the applicant as developed and refined over the period from the lodgment of his visa application up to the receipt on 20 April 1999 of a fax from the chairman of a political group that the applicant joined in Australia.
4. The essence of the applicant’s claims may be summarized as follows. The applicant was a teacher in China with no early history of opposition to the PRC government. However, he wrote a letter to the government criticising the use of the army to repress the pro-democracy demonstrations by students in 1989. As a result he was questioned by security police but permitted to return to his position as a teacher. He then organised activities to commemorate, and to protest against, the 1989 repression of the student demonstrations. This led to his being imprisoned. On release he was allowed to return to the school but not in a teaching capacity. In Australia, the applicant continued his political activities by becoming an officer of an organisation which opposed the PRC government. He was involved in propaganda activities and disseminated anti-government information in China. He also wrote directly to the PRC government criticising the imprisonment of two high profile dissidents.
5. Under the heading “Findings and Reasons” the Tribunal criticized the credibility, consistency, and plausibility of the applicant’s account and concluded that he had fabricated claims. It stated (at pp 19-22):

“Findings of Fact

1. I find the Applicant wrote a letter of criticism to the Chinese government in 1989.
2. I find that millions of Chinese citizens criticised the government between April and June 1989. This was done by preparing posters, slogans, preparing and signing petitions and openly demonstrating.
3. I find that people with low political profiles are not of concern to the PRC authorities.
4. I find those people who are of concern are those who have demonstrated a potential challenge to the current political party.
5. I find the Applicant has not been of interest to the Chinese authorities since the checks of 1989, following the quashing of the pro-democracy movement.
6. I find the Applicant has become a member of a pro democracy movement in Australia which has little influence on local Chinese community.
7. I find that he has recently become chairman of a group of 12 or 13 people in the political group.
8. I find that group is not well know within the Chinese community in NSW.
9. I find the Applicant used a contact to obtain a passport to leave China.
10. I find the process of using “Guangxi” to obtain documents such as passports is widespread and commonplace in China.
11. I find that a number of long term dissidents in China have recently been arrested and sentenced form [sic] attempting to register a party in opposition to the Chinese CCP.
12. I find no significant link between the Applicant and the people who have been arrested and detained.
    

Consideration of the Applicant’s Chance of Persecution

The Applicant has claimed that he wrote a letter to the then government in 1989. He sent that letter in 1989 and received no response nor adverse attention as a consequence until months later.

I accept that he was investigated as he has claimed but note that the authorities were already aware of the letter and questioned him for short periods on about five occasions.

This occurred in November according to the Applicant when the crackdown occurred in June of that year. This leads me to conclude that the Applicant was not of great interest to the authorities since they could have interrogated him much earlier if they had wanted since they knew of the letter and the Applicant had remained at his home and in the same job.

I do not accept that he was detained for the three months he has claimed at that time. I have serious reservations as to whether he was detained at all but am prepared to accept that he was detained for a short period while he was questioned.

In any event he was released and allowed to return to his normal duties, teaching post secondary studies and no further penalties were imposed.

As discussed above I do not accept that he was later detained for a year and released for lack of evidence.

I find that apart from the one short period of time in 1989 when he was questioned by the authorities he was not of interest to them from that time on.

I accept that he may have used the services of a friend to obtain his passport but that passport was genuine and issued in his name and bears his personal details. He then exited legitimately. I find that the fact he used the services of a friend only indicates that he was following a practice that most Chinese citizens resort to in order to obtain such documents expeditiously.

Given the lack of interest in the Applicant (even by his own account for several months) for a considerable period of time prior to his departure. The ease with which he obtained a passport and his ability to exit the country legitimately at a regular international border leads me to find he was not of interest to the authorities then and, there was no “real chance” that he would be of any interest to them at any time in the future.

Although he had made sur place claims I do not accept that the Applicant sent the letter as claimed and, although he has joined a party I find that party is of little significance to the wider Chinese community in Australia and the Applicant’s association does not provide him with any significant profile as chairman of a small group of 12 or 13 other active members.

He has not demonstrated the potential to lead or organise any meaningful opposition to the CCP [Chinese Communist Party] such that the authorities of that party would have any adverse interest in him.

He has referred to the harsh punishments meted out to a number of Chinese dissidents in recent times. I accept that these people have, indeed suffered serious abuses but find that this has no bearing on the Applicant and the difference between his profile and theirs as long term high profile activists is such that their penalties do not serve to indicate that he is at risk of any similar treatment.

In coming to this finding I prefer the advice in the DFAT cables regarding this to the Applicant’s unsupported assertions.

This being the case, the Applicant has not satisfied me that he faces a “real chance” of persecution for reasons of his political opinion and any fears that he may hold in this regard are not well-founded.

Conclusion

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

6. The application before the Court relies upon the Constitution, as well conventional principles of administrative law to the extent that they are recognised as grounds of review under the Act. The constitutional challenge is pressed within the framework of the Act under pars (b), (c) and (d) of s 476 (1). It is submitted that the decision of the Tribunal involves the exercise of the judicial power of the Commonwealth by a body other than a court contrary to the requirements of Chapter III of the Constitution. This argument was rejected by Tamberlin J in N44 v Minister for Immigration and Multicultural Affairs [1999] FCA 1127. A further refinement of the argument, which was repeated before me, has now been rejected by Drummond J in Li v Minister for Immigration and Multicultural Affairs [2000] FCA 19. I respectfully agree for the reasons given in each of those cases that such a challenge cannot succeed.
7. As to the other alleged grounds of review, counsel for the applicant initially submit that the Tribunal failed to observe the requirements of s 430 (1)(c) of the Act by setting out its findings on a material question of fact, namely, “whether the applicant’s activities in Australia would render him liable to persecution should he be obliged to return to China”. I reject that submission. The Tribunal expressly found, as the extract from its statement sets out, that the applicant’s association with the local political group did not provide him with a significant political profile, that the authorities in China would have no adverse interest in him, and that he was at no risk of punishment and abuse such as that suffered by long term high profile activists. It is unnecessary therefore to decide whether such activities are material questions of fact within the meaning of s 430 (1)(c).
8. Errors of law under par(e) of s 476(1) are also alleged. First, it is said that the Tribunal incorrectly interpreted the law as to what constitutes a “well-founded” fear of persecution. Counsel for the applicant cite the statement in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 389 that a fear may be well founded “notwithstanding that there is a less than 50 per cent chance of persecution occurring.” This submission must be rejected. As counsel for the Minister points out, the Tribunal expressly reminded itself (at p. 3) that: “A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”
9. Secondly, it is claimed that there was an incorrect application of the law to the facts as found by the Tribunal in that it “created an extraneous and unlawful comparison with other persecuted people rather than examining the case before [it] on it’s [sic] own particular merits”. No authority is cited in support of the proposition that the Tribunal erred in assessing whether there was a real chance that the applicant would be persecuted if he returns to China by having regard to Australian diplomatic advice about the different treatment accorded in China to “high profile activists” and “lower profile pro-democracy supporters”. However, counsel for the applicant submit that the failure to consider the “cumulative effect” of factors that tend to establish the applicant’s case is an approach that amounts to an error of law within the meaning of s 476 (1)(e) of the Act: Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 per Wilcox J at 121. The factors identified by counsel are “the history of the applicant’s detention and interrogation, his pro-democracy activities in Australia coupled with a recent wave of repression in China”.
10. This submission is also rejected. The Tribunal made separate findings concerning the applicant’s claims about his activities in China and in Australia. As counsel for the Minister points out, the Tribunal said (p. 22): that it considered “the evidence as a whole” before it stated its conclusion. The information about the “recent wave of repression in China” was, in fact, drawn to the attention of the applicant and his adviser by the Tribunal, which invited comment on it. The Tribunal referred to this material in its reasons. It may well be that, in dealing with the applicant’s sur place claims, the Tribunal’s finding that the party he joined in Australia “is of little significance” rested on a less than perfect understanding of the material submitted. (For example, the Tribunal referred to a serving member of the Federal Executive Council as a state parliamentarian.) However that may be, counsel for the applicant are in substance quarrelling with the overall findings of fact made by the Tribunal. In this case, just as McHugh J recently said in Re The Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham [2000] HCA 1 at [49], the language of “cumulative effect” adds nothing. In this case the Tribunal made a finding that the applicant’s key claim about his activities in Australia was a fabrication. In the light of that finding on his credibility, the Tribunal was not obliged to consider mere conjecture or surmise.
11. Finally, counsel for the applicant rely on the no evidence ground in s 476 (1)(g). They identify as a “particular fact” for the purposes of s 476 (4)(b) the Tribunal’s statement: “3. I find that people with low political profiles are not of concern to the PRC authorities.” This submission cannot succeed. The applicant has not shown that this “fact” does not exist and, in any event, the Tribunal referred (at pp 17-18) to the material upon which it based this finding. That material is in evidence before me.
12. The application will be dismissed with costs.
    

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated: 1 February 2000

Counsel for the applicant:	FC Coorey and RW Killalea
Solicitor for the applicant:	Coelho & Coelho
Counsel for the respondent:	Dean Jordan
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	4 September 1999
Date of judgment:	1 February 2000