Guan v Minister for Immigration & Multicultural Affairs [2000] FCA 1038

FEDERAL COURT OF AUSTRALIA

Guan v Minister for Immigration & Multicultural Affairs [2000] FCA 1038 GUAN YUAN HUA v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 348 OF 2000 SUNDBERG J MELBOURNE 2 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 348 OF 2000

BETWEEN: GUAN YUAN HUA

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE OF ORDER: 2 AUGUST 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 348 OF 2000

BETWEEN: GUAN YUAN HUA

APPLICANT

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: SUNDBERG J

DATE: 2 AUGUST 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT

BACKGROUND 1 The applicant, a 38 year old man from Fujian province in China, arrived in Australia on 24 March 1994 on a visitor's visa. In April 2000 he was detained by officers of the Department of Immigration and Multicultural Affairs and held in an Immigration Detention Centre as an unlawful non-citizen. He lodged an application for a protection visa on 5 April. The application was refused by the Minister's delegate on 14 April. The Refugee Review Tribunal ("the Tribunal") affirmed the delegate's decision on 16 May. The applicant applied to the Court for review of the Tribunal's decision on 19 May. The Refugee and Immigration Legal Centre assisted the applicant in preparing his application, but at no stage has he had legal representation.

EVIDENCE BEFORE THE TRIBUNAL 2 Before the Tribunal the applicant gave evidence that he was imprisoned in 1983 for participating in anti‑revolutionary movements, and complaining about the treatment of his parents, who were deemed by the authorities to be anti-revolutionary and subjected to mistreatment and humiliation because two of the applicant's uncles had moved to Taiwan. The applicant claimed to have been sent to a labour farm for two years. At one stage at the farm he was tortured when he was unable to work. At the farm the applicant met Chen Cun Yong ("Chen"), with whom he shared a pro‑democratic outlook. After his release from the labour farm the applicant returned to his home area where he worked as a teacher for three years. The applicant stated that he accompanied Chen to various locations during the spread of pro-democracy activities through China in 1989. He returned to his former university where he lectured on "the importance of human rights and the status of democracy." The applicant and Chen became the leaders of the pro-democracy movement in the Fuzhou area, recruiting both students and workers and organising demonstrations, speeches and strikes. The day before the Tiananmen Square Massacre of 4 June 1989 the applicant attended a demonstration in Fuzhou, but did not otherwise attend public rallies. After the massacre, upon being informed that his name was on an arrest list, he fled to Shanghai and hid. His house was searched and his belongings were confiscated. Chen left China for Japan. 3 In 1994 the applicant's uncle returned from Taiwan and told him the only way he could save his life was to flee the country. In March 1994 the applicant left Fuzhou airport where his family had bribed an official to obtain an exit visa. The applicant claimed he arrived in Australia seeking only temporary shelter. He said he did not know he could make an application for a protection visa in Australia, nor did he feel he could express his experiences sufficiently. The applicant stated that when Chen returned to China from Japan in 1998 he was arrested and is still in gaol. The applicant claimed the police had visited his wife in early April 2000 to try and ascertain his location. He stated he was frightened to return to China because of what might happen to him once the authorities knew of his presence.