Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 843

FEDERAL COURT OF AUSTRALIA Chen v Minister for Immigration & Multicultural Affairs [2000] FCA 843 XIANG LIN CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 163 OF 2000 MANSFIELD J 8 JUNE 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 163 OF 2000

BETWEEN: XIANG LIN CHEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE OF ORDER: 8 JUNE 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 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 163 OF 2000

BETWEEN: XIANG LIN CHEN

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 8 JUNE 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 1 February 2000. The Tribunal affirmed a decision of a delegate of the respondent given on 30 April 1998, refusing to grant to the applicant a protection visa which he had sought under the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a citizen of China. He was born in 1966 and is now thirty-three years of age. He lived until 1992 in the Shijiazhuang area where he completed his schooling, and then worked for a construction company between 1985 and 1989. He then appears to have been unemployed for about three years. In 1992, he moved to the Chenzen province and worked for a building materials company until he left for Australia in November 1997. He obtained a passport, a Chinese passport on 8 July 1997 and left for Australia on 15 November 1997. He applied for the protection visa soon after his arrival in Australia. 3 To qualify for a protection visa, it was necessary that the applicant satisfy the criterion specified in s 36(2) of the Act, namely that he be a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) ("the Convention"). In practical terms that means that he had to satisfy the delegate of the respondent, and on review the Tribunal, that he was a refugee within the meaning of Article 1A(2) of the Convention. 4 The Tribunal recorded his claims to be a refugee at some length in its reasons for decision. It is convenient, very briefly, to summarise those claims from the Tribunal's description of them, as no complaint is made that it recorded his claims inaccurately. Soon after he started working for the construction company in 1985, he became aware of what he called political corruption and he urged his friends to undertake a fight against that political corruption. He progressively became more active in the development of pro-democratic ideology and propaganda. In December 1986, he had reached the point where he organised a group to negotiate with the leaders of his employer company to confront the issue of corruption. He said he was denounced and severely punished and, in his evidence to the Tribunal, that he was demoted as a result of that action. He nevertheless continued to work for that company until 1989. He said that in 1988, he established a secret pro-democracy organisation which conducted meetings and issued publications. In 1989, he was actively involved in the strong pro-democratic movement which then came to the fore. He said that in May 1989, he organised public rallies on a number of occasions and issued hand bills and petitions and collected funds in support of the pro-democracy movement. His evidence was that he then became a major target of the authorities. He was arrested and imprisoned for a period of some six months, during which time he was severely mistreated. He was dismissed from his employment and, at one point, he said that was because of injuries sustained during his treatment by the authorities. 5 After that time he found it hard to get work but in 1992 he was allowed to go Chenzen province where he started work for a building materials company and retained that employment until he left for Australia. He then kept a relatively low profile for some years, but he said that in 1996 he set up a pro-democracy party and organised activities on its behalf and participated in 1997 in public calls for the release of political dissidents. He then anticipated further trouble with the authorities and so decided to go overseas. He said he procured a Chinese passport by paying a bribe. 6 In Australia, he spent some time without engaging in any significant activities in relation to his application but he said that in about the middle of 1999 he again became active in a protest and rallies against Chairman Jiang Zhe Min whilst he was visiting Australiaand supporting an exiled dissident. That protest and those rallies took place over a considerable period of time. He therefore claims that he was actively and prominently involved in those demonstrations. The Tribunal understood that he was making a claim that, in addition to his activities whilst in China, those activities also rendered him a refugee for the purposes of the Convention. 7 Having identified the applicant's claims, the Tribunal referred to information, which is commonly called independent country information, about China. It also referred at some length to the applicant's evidence given at the hearing, in which the Tribunal raised with the applicant a number of matters for his comment. It is recorded in the Tribunal's reasons that the applicant agreed that he was not a high profile protest leader in respect of his pro-democracy activities in China. The Tribunal recorded his evidence in part in the following passage: "The applicant claimed that he really did get involved in pro-democracy activities whilst in China and Australia, but agreed that he was not a high profile protest leader. He stated that the money he had collected as the head and organiser of the "3 big rallies" was $50 and that the executive manager had passed it through a "stone company" as a channel to support the student protest. He stated that the army and police had been "friendly" to him as the result of his campaigning, although he also claimed that he had often been in trouble with the local police." 8 The applicant also agreed with independent country information that the Chinese authorities have not treated harshly people who merely participated in demonstrations and rallies, signed petitions or collected money in support of protest activities. He also agreed that with the content of that statement to the effect that there were at least one million people involved in such activities in Bejing alone in May and June of 1989 who had not been the subject of particular attention by the authorities. 9 The Tribunal also put to the applicant a further independent country information report provided by the Department of Foreign Affairs and Trade to the effect that: "The number of such people who might be of concern to the Chinese government if they are returned are few - they would only be those with an established high profile in China as process leaders." 10 The Tribunal was told by the applicant that he had not had a high profile, although at the same time he referred to his involvement in the protests in 1989 to which I have referred. 11 Having considered that material, the Tribunal then turned to its findings and reasons. It accepted that the applicant had been involved in discussions on pro-democratic ideals and that he may have been punished for organising meetings about corruption in 1986. It also accepted that he may have set up a "pro-democratic saloon" in May 1989, that he may have helped organise rallies and demonstrations, and that he may have sent a petition to the Bejing government at about that time. However, the Tribunal was not satisfied that the applicant had then been arrested and detained for a period of months or tortured and seriously mistreated during that detention. That particular finding of the Tribunal is one which gives rise to one of the aspects of the grounds of review now raised. In the light of those findings the Tribunal said that it was not satisfied that the applicant had been subject to persecution in the past in China nor that he was at any risk of persecution in the foreseeable future as a result of his activities in China should he return there. 12 The Tribunal then dealt with the claim that he was at risk of persecution because he had sought protection in Australia and because of his recent anti-Chinese government activities in 1989 in Australia. It said: "I am not satisfied that the applicant is at any risk of persecution either because he has sought protection in Australia or due to his recently being involved in anti government activities."