He v Minister for Immigration & Multicultural Affairs [2001] FCA 1176

FEDERAL COURT OF AUSTRALIA

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1176 HE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N289 OF 2001 CONTI J 23 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 289 OF 2001

BETWEEN: MENG YUN HE

FIRST APPLICANT

WANLIAN DANG

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 23 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicants pay the Respondent's costs. 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 289 OF 2001

BETWEEN: MENG YUN HE

FIRST APPLICANT

WANLIAN DANG

SECOND APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 23 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This Application for Review is brought against the decision of the Refugee Review Tribunal ("the Tribunal") made on 12 February 2001, whereby the Tribunal affirmed the decision of the delegate of the Minister not to grant the Applicants' protection visa, because as in the case of the delegate, the Tribunal was not satisfied that the Applicants were refugees within the Convention definition. The Applicants were not legally represented before the Tribunal. For reasons unknown to the Court, the Applicants have failed to appear today. 2 The form of the Application for Review states that the Applicants were aggrieved for the reason that they were denied a Protection visa. The grounds specified in the Application for Review simply regurgitate various subsections of s 476 of the Migration Act 1958 namely s 476(1)(a), (e), (d), (f) and (g). The Application also adds that further particulars of these grounds would be supplied at a later time. I note however that particulars of these grounds have never provided to the Court. The Applicants are a husband and wife and are both citizens of the Peoples' Republic of China. They arrived in Australia on 30 May 2000 and on 9 June 2000, they both lodged applications for Protection visas with the Department of Immigration and Multicultural Affairs. When the matter was before the Tribunal, the Applicants limited their claims to that which was set out in a written document presented to the Tribunal. Since the statement was somewhat short and did not provide the Tribunal with any evidence sufficient to give rise to a well-founded fear of persecution, the Tribunal invited the Applicants to supplement such written submissions with oral evidence at a hearing on 13 February 2001. Such invitation was furnished to the Applicants on 23 January 2001. On 6 February 2001, the Applicant husband advised the Tribunal in writing that he did not wish to give oral evidence and that he would prefer the Tribunal to adopt a course whereby it simply made a decision "on the papers". 3 The Tribunal noted that it was only the Applicant husband who specified any claims under the refugees Convention. It is appropriate that I extract his statement so far as it is relevant as follows: "I am a citizen of the Peoples' Republic of China and I have left China because of persecution discrimination…because of the economic reform of the Chinese government, I earn some money…after, I got a big success in my career and the money I earned was getting more and more. From the very beginning I got rich, I was disturbed by some people, such as the head of the neighbourhood committee or the government officials. Once in a while, I would be asked to contribute some of my money to the local school or some hope project. At the beginning, I was happy to follow them since the donation would do something good to my neighbours. However, when the requirement for donation was getting more and more, I was tired of it. The money I earned was from my hard work, not just from my luck… I had my own family – my wife and my son. They all depended on me. I did not have much education. I want my child to get a much better education than I had. Now the tuition fee for any education in China is very high. I have to save a lot of money for my son. I had to pay higher tax than the other people. The government officials always blackmailed me. Finally I found it really difficult for me to do business in China. My family and relatives urged me to leave China, for they all worried that I would never be treated fairly and my business would go to doom. In China, the local government is the God. All government rules and policies are complimented through them and for years they have understood and complimented rules and policies in the way they wanted to and so they became very powerful because they, themselves, are law, government and power. If I appealed to higher government or local court, the higher government will certainly hand the case over to the local government. All government bodies are designed to protect government itself, not ordinary people like me. At last, I made up my mind to come to Australia. I am afraid of going back to China. My memory of China is so terrifying. For fear of throwing myself to this suffocating and fearful situation, I applied for protection visa from Australian government. Human rights are never respected by the Chinese government. I cannot get any protection from anybody. The government will never protect me. I found that Australia is a free country. I do want to stay here. I sincerely hope that I can be granted a protection visa and stay in Australia." 4 On the basis of the evidence before the Tribunal, it was unable to make any finding that the situation as experienced by the Applicants arose from any of the five reasons listed in the Refugee Convention. Accordingly it concluded that it could not be satisfied that the Applicants had a well-founded fear of persecution in China for a Convention reason. In my view, the Tribunal was correct in its conclusion, to the effect that the experiences referred to in the written submission of the Applicants do not demonstrate that the Applicants have a well-founded fear of persecution for a Convention reason. As pointed out by McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257-8: "When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind…the convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return…Whether or not conduct constitutes persecution in the convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against the person because of race, religion, nationality, political opinion or membership of a social group." The claims put forward by the Applicants to the Tribunal clearly do not fall within the principles enunciated by McHugh J in Applicant A. 5 Accordingly I would dismiss the Application and order that the Applicants pay the costs of the Respondent. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.