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[2000] FCA 1263
Federal Court of Australia
2000-09-11
Hely J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant is a citizen of China who arrived in Australia on 13 April 1999 as a business visitor. On 20 August 1999 he lodged an application for a protection visa with the Department of Immigration & Multicultural Affairs ("DIMA"). On 8 May 2000 the Refugee Review Tribunal ("RRT") affirmed the decision of the Minister's delegate not to grant a protection visa. The applicant seeks an Order of Review of that decision. 2 The application asserts that the applicant is outside his country of nationality because he has a well-founded fear of persecution at the hands of the Chinese State Security Bureau, the Chinese secret police, by reason of his political opinion. The form of application does not, however, disclose the existence of any of the grounds on which the decision may be reviewed under s 476 of the Migration Act 1958 (Cth) ("the Act"). In addition, a document was lodged with the application for review styled "Applicant's Submissions". That document asserts that the decision of RRT is incorrect and unfair in various respects identified in the document, and asserts an entitlement, on the merits, to the grant of a protection visa. Again, the focus of this document is not upon the limited grounds on which this Court is entitled, under the Act, to review a decision of RRT. 3 The applicant is a businessman who has operated in China and other parts of the world since January 1987. He has travelled extensively and returned to China several times. 4 RRT accepted that on 3 September 1998 the applicant went to the US Embassy in Hong Kong and to the FBI. He told officials there about a man whom he had met at some earlier point in time by the name of "Naeem", who was a friend of the terrorist Osama Bin Laden, and gave them some information about the bombing of the US Embassy in Nairobi. The applicant gave this information to the FBI because Naeem had cheated him out of money. In August 1998 he had met Naeem in Pakistan and paid him US$2,100 for a visa to the USA which he never received. He was also interested in receiving a reward if there was one on offer.
arrest by the secret police 5 The applicant returned to China. Some time later, he was arrested by the State Security Bureau, taken to the South Hotel, which had bars on the window, and was interrogated for six days. He was questioned about his visit to the US Embassy in Hong Kong, his visit to Pakistan and about the bombing of the US Embassy in Kenya. He promised to keep details of his arrest a secret. 6 On 11 December 1998 Wen Zhou City State Security Bureau issued a document styled "Release document" to the applicant indicating that it had been decided to cease surveillance of his residence after the results of investigations relative to his case (RD 31). 7 Thereafter the applicant returned to Xin Jiang, a remote place in the west of China, where he had established a small business. In April 1999 he went to Shanghai, then to Seoul, and as earlier indicated, he arrived in Australia on 13 April 1999. 8 The applicant made a statement to DIMA in connection with his original application for a protection visa (RD 24). That statement indicated that he planned to escape from China at the time of his release from the South Hotel, and that it was his intention to apply for refugee status prior to his approaching the Sydney office of the FBI at the end of June 1999. RRT noted these matters at RD 108. 9 In about June 1999 the applicant communicated with ASIO and the FBI in Australia and advised them of his detention for six days in China as a result of reporting matters to the FBI in Hong Kong. 10 The applicant made a further statement to RRT in connection with its review of the Delegate's decision (RD 85). In that statement the applicant said that his purpose for coming to Australia was not originally for immigration purposes, he came to Australia in 1999 on business, and not to migrate. He said that "the most important factor" in relation to his application is that after he came to Australia he contacted the FBI in Sydney, and was also involved in the Chinese pro-democracy movement in Australia. The Chinese Government must have known about these activities, and would punish him severely because when he was interviewed by the State Security Bureau Police in China, he was warned that if he continued to co-operate with the FBI, such behaviour would be regarded as traitorous. 11 RRT followed its usual procedure of recounting the claims made by the applicant to the Department, and as earlier indicated, those claims included a claim that on release from the South Hotel the applicant planned to escape. Then RRT summarised the applicant's claims to RRT, which included the applicant's claim that he came to Australia originally for business purposes. Then RRT recounted the applicant's claims made at the hearing which included the following: "In 1998 he was detained for 6 days in the South Hotel which had bars on the window. Two people examined his case. None of his family members were arrested. The applicant said this was not the reason he lodged a protection visa. He said he came to Australia to trade and that it was events that have occurred in Australia that gave rise to his fear of persecution." And the following: "The applicant said he did not come to Australia to seek protection but only after he contacted the FBI did he think he would have a difficulty." 12 I have not been supplied with a transcript of the proceedings before the RRT, but, accepting as I must, RRT's account of the claims made at the hearing, it is apparent there has been a significant shift in the basis of the claim to refugee status, compared to the assertions made at the time of the original application for a protection visa. 13 Whilst RRT's reasons are not as clear as one could wish, a fair reading of the "findings and reasons" section of RRT's decision as a whole indicates that RRT found that the events of 1998 were not such as to give rise to a subjective fear of persecution in the applicant, let alone a fear of persecution for a Convention reason. RRT came to the former conclusion essentially for two reasons. First, it was a necessary consequence of the applicant's evidence at the hearing that he did not come to Australia to seek protection. Second, he made no application for a protection visa for four months, leading RRT to conclude: "the depth of the applicant's fear of persecution was not significant when he came to Australia." 14 Whether or not the applicant had a fear of persecution as a result of his arrest by the State Security Bureau in 1998 is a question of fact which RRT had to decide. It was entitled to act upon the applicant's claims made at the hearing, in preference to different claims made at some earlier stage of the process, and it was entitled to conclude, as it did, that the delay in seeking a protection visa reinforced the applicant's evidence given at the hearing. No reviewable error is shown in relation to this aspect of RRT's deliberations. 15 In any event, RRT came to the conclusion that what it described as "the applicant's difficulties" are not Convention related. It may be that the terrorists associated with Bin Laden might be activated by political views, but it does not follow that because the applicant is detained and questioned about the terrorists that the "applicant's difficulties" in that respect are Convention related. That led the RRT to conclude that, in any event, it was not satisfied that at the time of the applicant's departure from China he had a well-founded fear of persecution for a Convention reason. No reviewable error is established in relation to RRT's decision in this respect.
INTERPRETER 16 RRT made the following statement in connection with the applicant's visit to the US Embassy in Hong Kong and the FBI on 3 September 1998: "The applicant explained he knew the people involved in the bombing incident and gave details about Naeem, Bin Laden's next plan, Naeem's closest friend who had directly taken part in the bombing (a very fierce and evil looking man) and details Naeem had revealed when they all drank beer together and Naeem got a little bit drunk." 17 The applicant complains that a serious mistake took place in the interpretation of his evidence at the hearing as the applicant stated, in response to a question as to whether Naeem was drunk at the time: "No, he was not drunk" in Chinese, whereas the interpreter put it as: "No, he was not exactly drunk" in English. 18 No transcript or other record of the proceedings before RRT have been placed in evidence, hence there is no basis on which I could conclude that the asserted error in fact occurred. There was no challenge to the competence of the interpreter. The complaint is that she made a mistake. In the applicant's written account to DIMA (RD 26) of that event, he says: "We drank beer together. Naeem got a little bit drunk and became more talkative." That tends to indicate that no error in the interpretation process occurred. 19 Assuming there was an error, I am not satisfied that it was material. I am not able to appreciate why, as the applicant submits, this was a serious mistake which could have changed the result of the whole hearing. It is apparent that RRT accepted the applicant's account of his discussions with Naeem, and there is no warrant for a conclusion that RRT in some way discounted what Naeem told the applicant on the basis that it was simply a statement of a drunken man. 20 The application for an Order of Review (at RD 82) contained a section in relation to the need for an interpreter. The applicant completed that section so as to convey that he required an interpreter in the Mandarin language, he had no preference as to whether the interpreter should be a male or a female, but he added: "But most not from the mainland of China." On 21 March 2000 the applicant completed a document styled "Response to Hearing Invitation" (RD 96) in which he indicated that he required a Mandarin interpreter, but did not complete the section of the form which enquired whether he had any special needs for the hearing. 21 The applicant complains that at the hearing he discovered the interpreter was from mainland China, and that this caused him unnecessary psychological fear during the hearing. He claims to have raised the issue with the Member, who ignored the complaint. 22 Again, I do not have the transcript or other record of the hearing, hence I am not in a position to make a positive finding on the applicant's contention. The applicant does not assert bias or incompetence on the part of the interpreter, nor does he assert that his evidence to RRT differed in any respect from the evidence which he would otherwise have given had the interpreter not been a person from mainland China. In those circumstances, I am unable to conclude that there has any breach of the Act in relation to the conduct of the hearing, or the provision of an interpreter (see s 427(7)). The authorities on the role of interpreter were comprehensively reviewed by Kenny J in Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507, but there is nothing in that decision which indicates or requires any different conclusion from the conclusion to which I have come.
muslim fundamentalists 23 The applicant submits that RRT failed to realise that China secretly supports the activities of Muslim fundamentalists in other parts of the world, whilst actively suppressing them within its own territory. In the applicant's submission the Tribunal Member believes that he is an expert in China, but in some respects the applicant knows much more about China than does RRT. 24 At RD 111 the following appears: "(The applicant) said his arrest was an indication that the Chinese Government supports Bin Laden. This is the only evidence the applicant was able to produce to indicate that the Chinese Government supports Bin Laden. He said it is obvious after his arrest that they support Bin Laden but he could not explain why this is the case ... the applicant could not explain exactly why he thought the Chinese Government supported Muslim fundamentalists when it appeared to be discriminating against Muslims in China. He was unable to provide any substantial evidence to indicate that Chinese authorities support the terrorist activity of Bin Laden followers." Whether or not the Chinese Government supports Muslim fundamentalists is a factual question for RRT to decide, and which it is well equipped to decide. RRT was not obliged to accept the applicant's contentions in this respect, and the conclusion which it reached is one which was open to it.
Difficulties 25 I have already referred to the fact that RRT said that "the applicant's difficulties" are not Convention related. This statement was made in a context in which RRT indicated that it was not satisfied that the applicant had a significant fear of persecution when he came to Australia. The statement introduced RRT's alternative finding that even if there was a fear of persecution, it was not Convention related. The use of the phrase "difficulties" was obviously intended to accommodate the fact that RRT was not satisfied that the applicant had a fear of persecution when considering the alternative issue of whether any such fear, if it existed, was Convention related. The applicant's submission that the use of the phrase in some way demonstrates a misconception on the part of RRT of the concept of "persecution", is not made out. At RD 104, RRT correctly summarised the law as to what amounts to persecution. 26 The balance of the document styled "Applicant's submissions" impermissibly seeks a merits review of RRT's decision. 27 Nothing which the applicant put to me in his oral submission disclosed any arguable case of reviewable error on the part of RRT. He made the point that he had made Australia his home, that he loves Australia, and that he has contributed his bit to Australian society by twice contacting ASIO on matters relative to the safety of the Olympic Games. Those matters, however, have no bearing upon whether RRT made a reviewable error in giving its decision. My role is confined by law such that I cannot interfere with RRT's decision unless reviewable error is shown. For the reasons which I have indicated, no such error has been shown and the application must be dismissed with costs. 28 The applicant explained to me that he does not have a work permit, he cannot afford legal representation, and he cannot pay costs. Whilst I sympathise with the applicant's position, the matters to which he has referred do not provide a sufficient foundation for departing from the ordinary principle that a successful respondent is entitled to its costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.
Solicitor for the Respondent: Australian Government Solicitor
NG1032/00
Minister for Immigration & Multicultural Affairs