Mao Fa Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 298

FEDERAL COURT OF AUSTRALIA

Mao Fa Chen v Minister for Immigration and Multicultural Affairs

[2001] FCA 298

MAO FA CHEN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 10 of 1999

RYAN J MELBOURNE 23 MARCH 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 10 of 1999

BETWEEN: MAO FA CHEN

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 23 MARCH 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed 2. The applicant pay the respondent's costs of the application, such costs to be taxed in default of agreement. 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 10 of 1999

BETWEEN: MAO FA CHEN

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 23 MARCH 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision to refuse the applicant a protection visa. 2 The applicant is a national of the People's Republic of China ("the PRC") who claimed that he had left his homeland in 1997 because of the danger of persecution as a result of his political activities in support of the pro-democracy movement. Those activities consisted of the formation, with four others, in 1994 of a group known as "Free China". That organisation conducted some fifty public meetings at which speeches were made in opposition to the ruling Chinese Communist Party ("CCP"). The group also published leaflets and was concerned in these ways to expose corruption and complain about high taxes. At its height, according to the applicant, "Free China" had about 100 members. One of its activities was to arrange for people to hear radio broadcasts such as those by Voice of America ("VOA"). The effect of the rest of the applicant's case has been summarised by the Tribunal in these terms; "He claims that the authorities discovered the existence of the group only in 1997 because the Public Security Bureau (PSB) is inefficient and because the group used to monitor the activities of PSB officers so that it could meet without the PSB's knowledge. He added that the group had its own contacts within the PSB who would inform the group members if and when the PSB was disposed to take action against them. The applicant said that he obtained false Indonesian documentation on which he left China. He claims that the authorities have harassed his family since his departure due to his former involvement in the pro-democracy group. He also claims that he learned about a month ago that his colleagues who were arrested in 1997 have recently been sentenced to periods of nine to twelve years in prison." 3 The Tribunal noted that the applicant had encountered discrimination as a child because his father had been regarded as a Guo Min Dang supporter. However, it was found that the applicant "has not continued to suffer consequences amounting to persecution due to judgments that were made about his family during the 1950s or subsequently." As to the applicant's more recent involvement in the pro-democracy movement, the Tribunal made these findings; "The applicant said in his initial application for a protection visa that from 1987 he arranged political discussions at school and that in 1989 he led about nine others in demonstrating their support of the pro-democracy cause. At the hearing he said that he was a mere follower in 1989 because his political thought was still immature. He drew a strong link between his suspension from school and his absences to attend political demonstrations. In assessing all the available material the Tribunal finds that the applicant had a low profile role in support of the pro-democracy movement in 1989. In view of his profile the Tribunal finds that any suspension from school is attributable to the applicant's absence from classes rather than his political demonstrations. In making that finding it also takes into account an absence of information that students with the political profile of the applicant were excluded from all further schooling or from public sector employment. It notes that the applicant had five years of secondary schooling and that he was able to obtain continuous, albeit casual, work from the time he left school until the time of his departure from China. He did not, in any event, encounter consequences amounting to persecution. During the course of his application for asylum the applicant has given inconsistent detail about his reason for fleeing Fujian. In his statement of 29 December 1997, which he said was read back to him in Chinese before he signed it, he said that he ran away from Fujian to Guangzhou after a friend in the PSB came to his home and advised him that his group had been declared counter-revolutionary and that it was unsafe for him to remain in China. He added that his father visited him a month later and informed him that three of his friends in the group had been arrested. At the hearing he said that he heard from friends, while still in his home province, that three colleagues had been arrested. When the discrepancy in his account was pointed out to him he stated that it was not possible to include all details in his first statement. In the absence of a satisfactory explanation the Tribunal does not find it credible that the applicant would be mistaken when lodging his application as to the very reason that caused him to flee Fujian. The Tribunal also finds it implausible that a group that held some 50 public meetings and handed out literature, over a period of three years, would go undetected by the authorities. It is not plausible that officers of the PSB, the very body that is charged with monitoring and controlling dissent, would consistently and effectively inform the applicant and his colleagues of operations such that they could circumvent its authority each time they held public meetings, or that the group was able to track PSB operations in other ways such that its public meetings continually went undetected. The group is not identified in any of the available literature. The applicant's evidence concerning the activities of the group was general. His evidence concerning its determination of "membership", simply by handing out a sheet at rallies when people signed their names, lacks plausibility. The applicant has given discrepant evidence as to when he found out three colleagues were arrested. He was unable to state the charges against them. He made no claim until the very end of the hearing concerning their alleged prison terms, even though he said that he learned of their imprisonment a month earlier, and despite the significance of such a claim. The alleged activities of the group do not appear to have been of such an order as to threaten the security of the State and attract such severe penalties. The applicant conceded that listening to foreign broadcasts such as VOA, that his group is said to have facilitated, does not attract a penalty nowadays. The alleged penalty handed out to his colleagues is entirely disproportionate to their alleged activities and to those penalties handed out in Fujian to well-known dissidents engaged in pro-democracy activity and in open defiance of government actions (see, for example, Asian Political News, reported in CX22286 & CX22287 of 29 May 1994 and 13 June 1994 respectively). In assessing all the evidence before it the Tribunal finds that the applicant has fabricated his evidence concerning the existence of a pro-democracy group in which he claims to have had a leadership role and his related claim that certain colleagues have been arrested and sentenced to prison terms for their involvement in a pro-democracy group. In line with those findings the Tribunal further finds that the applicant has fabricated his claim that his family has been harassed since his departure by reason of his alleged expression of political opinion." 4 The applicant's written statement of 29 December 1997, immediately before concluding with a request for a "chance to survive" in Australia and an assertion of a well-founded fear of persecution should the applicant return to the PRC, contained these paragraphs: "Three years passed. What we had done caused a close attention from the authorities. There was a day (the beginning of September 1997) when my friend who worked in Public Security Bureau Jiang Jing Town came to my home and told me that the present situation was very disadvantageous to me because the authority had a conclusion that "Freedom China" had been defined as a counter-revolutionary organisation and all members of the organisation would be caught without exception. He suggested me to leave the place as far as possible in order to avoid a tragedy happening. He emphasised that according to the CCP's current policy active counter revolutionary would be sentenced at least to 10 years imprisonment. I was an organiser of the anti-revolutionary organisation. I would be punished much severer than that. I don't want and I am very fearful to follow the old disastrous road as my father. I know CCP very well based on my own and my family's experience. CCP never have tolerance to the political enemy. If I was arrested to the prison I will fall into the hell where I will have serious persecution. I had to accept my friend's advice and leave my home town to flee to other place for my survival and my life. So I left my home town secretly and arrived at Guangzhou where my aunty lives. When my aunty knew the reason I came to her, she sympathised with me but was worried as well because if I stayed in her place too long maybe some troubles would bring to her and her family. She persuaded me to go to overseas for reliable safety. I had no choice and agreed with her. My aunt rang my father about my plan and asked her friend to help me. About one month later, my aunt's friend gave me an Indonesia passport with a false name and date of birth. My aunt paid RMB 150,000 Yuan (most of the money was from my aunt). I promised my aunt that I and my family would return the money back to her in the near future. On 22 October 1997 my father secretly visited me in Guangzhou. Before we said goodbye each other, my father told me that "Freedom China" had been sealed up. three members were arrested and the rest fled and hid somewhere, some of them in Zhuhai, Shenzhen and they were preparing to flee to overseas. I was very sad to hear the news." 5 The Tribunal then reviewed certain "country information", including a cablegram from the Department of Foreign Affairs and Trade of 1 June 1993 to the effect that students who did not have a high dissident profile at the time of the Tiananmen incident would have only a remote chance of facing administrative or criminal sanctions unless, after their return, they initiated effective anti-government activities. The Tribunal then made this finding; "The Tribunal finds that the applicant has not had a high dissident profile in China. He has no dissident profile in Australia and none in China save for his low profile support of the pro-democracy while still a secondary school student. There is no evidence before the Tribunal to satisfy it that the applicant would effectively organize opposition to the government if he were to return to China. It follows that he does not, therefore, face a real chance of persecution due to any dissident activities in which he has been engaged in 1989." 6 The Tribunal then referred to further "country information" tending to the conclusion that 1989 activists were not being pursued on their return even if their dissident profiles had been accentuated overseas. Its review of that further material led the Tribunal to conclude; "There is no material that would indicate, however, that persons having a profile or history of activity or expression of opinion such as the applicant's would now or in the foreseeable future face a real chance of persecution at the hands of the Chinese authorities. In assessing the information available to it, in the light of the applicant's own profile, the Tribunal finds there is not a real chance that he would encounter serious harm in China due to his support of the pro-democracy movement." 7 Attention was next directed to the consequences of exposure of official corruption and the Tribunal concluded that; "It is apparent that structures exist for the investigation of corruption and that a variety of measures has been taken to reduce its incidence." 8 After referring to some observations of Wilcox J in Wu Shan Liang v Minister for Immigration and Ethnic Affairs (unreported, 17 June 1994), the Tribunal made this finding; "Any prospect of harm to the applicant in this case arises not from his political opinion or that imputed to him, but from his exposure of alleged criminality by certain public office holders." 9 As to the applicant's illegal departure from the PRC, the Tribunal expressed itself unable to perceive a nexus between the applicant's obtaining and use of false documents and the Convention. It then concluded; "Any use by him of false documentation may constitute a breach of administrative and/or criminal laws. The Tribunal finds that any resultant penalty of the applicant would occur due to a breach of such laws rather than by reason of any Convention ground. The Tribunal has found that the applicant in this case has not been involved in pro-democracy activity beyond mild support in 1989. There is no material to indicate that persons who have departed China illegally may have a political opinion imputed to them which may cause a disproportionate penalty due to their breach of the administrative or criminal code. Even among highly publicised "boat people" there is no evidence that they attract a disproportionate penalty of any kind upon return to China."