Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 622

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration and Multicultural Affairs [2001] FCA 622 MIGRATION – review of decision of Refugee Review Tribunal – refusal to grant protection visa – whether ground of review under s 476(1) of the Migration Act 1958 (Cth) – applicant seeking merits review.

Migration Act 1958 (Cth): ss 36(2), 476(1) YUN SEN LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 217 of 2001 GOLDBERG J 29 MAY 2001 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 217 of 2001

BETWEEN: YUN SEN LIU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE OF ORDER: 29 MAY 2001

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 217 of 2001

BETWEEN: YUN SEN LIU

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: GOLDBERG J

DATE: 29 MAY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction 1 The applicant has applied to the Court pursuant to Pt 8 of the Migration Act 1958 (Cth) ("the Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 20 February 2001 affirming the decision of a delegate of the respondent ("the Minister") not to grant a protection (class XA) visa to the applicant. 2 The applicant, a citizen of the People's Republic of China ("China"), arrived in Australia on 5 October 1996 having been issued with a class UC temporary business subclass 456 visa. The applicant was granted various extensions to his visa, the last of which expired on 21 July 1997. He was taken into immigration detention on 6 December 2000. He applied for a protection visa on 18 December 2000. On 15 January 2001, a delegate of the Minister refused to grant the applicant a protection visa on the ground that the applicant did not satisfy the criterion that he was a non‑citizen in Australia to whom Australia had protection obligations under Article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). 3 Section 65 of the Act provides that if after considering a valid application for a visa, the Minister is satisfied as to specified matters and that the criteria prescribed by the Act or the Migration Regulations 1994 have been satisfied, then the Minister is to grant the visa. Section 36(2) of the Act provides: "A criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." An applicant for a protection visa will meet this criterion if the applicant is a person who: "owing to a well‑founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable or owing to such fear is unwilling to avail himself of the protection of that country." 4 The applicant was born on 26 July 1952 in Shanghai, he was married in 1980 and a daughter was born in 1982. His wife and daughter remain in China. Like many people in China he suffered during the cultural revolution and worked as a farmer between 1968 and 1973. He joined the Chinese army in 1973 and was discharged in 1977. He became a factory worker from 1978 until 1991 when he was dismissed and he remained unemployed until he came to Australia. 5 In 1983 his wife became pregnant and was forced to have an abortion due to China's one child policy. After this occurred the applicant was treated badly at work. At the time the pro‑democracy and student movement developed in 1989, the applicant was living in Huzhou City. In May 1989, the workers in his factory went on strike and supported the student movement. The applicant participated in demonstrations. As a result, he was told to submit a self‑criticism report to the party which he refused to do. He was disciplined for his refusal and his salary was suspended whilst he was investigated. He was then expelled from the Communist Party and was dismissed from his employment. Thereafter, he was compelled to find cleaning and hard labouring work in order to live as his wife's salary was very small. 6 In his application for a protection visa, the applicant said that if he returned to China he would be punished by the Chinese Government and the Communist Party because of his political beliefs and history of active participation in the student movement. He also said that it would be regarded as significant that he had been absent from China for four years.