Gui, Guo Ping v Minister for Immigration & Multicultural Affairs [1998] FCA 1592

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 504 of 1998

BETWEEN: GUO PING GUI

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE OF ORDER: 11 December 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for review is granted. 2. The orders made by RRT are set aside. 3. The matter is remitted to RRT for determination according to law. 4. The respondent should pay the costs of this application.

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 NG 504 of 1998

BETWEEN: GUO PING GUI

Applicant

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Respondent

JUDGE: HELY J

DATE: 11 DECEMBER 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT HELY J: The applicant is a citizen of China who arrived in Australia on 16 July 1996. On 8 November 1996 he applied for a protection visa. The applicant claimed that he has a well founded fear of being persecuted by reason of political opinion, and by reason by membership of a particular social group.

Political opinion The applicant claimed to be a political dissident who had been engaged in pro-democracy activities. In 1989, as part of his participation in pro-democracy demonstrations, he went onto the streets and spread leaflets, gave assistance to protesting students, and took part in protests and rallies. He claimed to have been beaten up for defending a female student and, as a consequence, he lost a month's salary. He also claimed to have been involved with publications which were critical of the government, and that he was involved in writing character posters during 1989 that criticised the government. On 29 April 1998 Refugee Review Tribunal ("RRT") affirmed the decision not to grant a protection visa to the applicant. RRT made the following finding: "The Tribunal accepts the applicant had a low level of political support of the pro-democracy movement in China. The Tribunal accepts that as a result of his support the applicant was placed on different duties and lost a month's salary. However, the Tribunal is of the view that the applicant's support and political profile was at a low level and that he has not been of any interest to the authorities on this account. The Tribunal finds that there is no real chance that the applicant will face persecution on account of his pro-democracy activities." This conclusion is a decision on matters of fact. Insofar as it is a factual determination it is reviewable only on the ground set forth in s 476(1)(g) of the Migration Act, 1958, subject to the provisions of s 476(4) of the Act. Nothing was put before me to demonstrate reviewable error on the part of RRT in making the factual findings embodied in that part of its decision which I have quoted. Of course, the grounds on which the applicant claimed to be entitled to refugee status are not to be considered as if they were watertight compartments. There is, or may be, an overlap between activities which are more closely associated with one ground, rather than with another. The applicant's case needs to be considered as a whole, and not simply on a compartmentalised basis. I shall return to this matter later in these reasons.