Nie v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The applicant seeks review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of a delegate of the Minister not to grant a protection visa to him. The applicant is a citizen of the People's Republic of China ("PRC") having been born in that country in 1955. He arrived in Australia on 9 July 1997 on a visitor visa issued in the PRC. He travelled on a PRC passport which was not issued in his real name. He lodged an application for a protection visa on 25 July 1997.

Convention claims 2 I shall shortly say something about the adequacy or otherwise of the Form 866 lodged by the applicant. However claims made by the applicant by the time of the hearing can be summarised as follows: · "One child" policy 3 The applicant claims that he intentionally contravened the PRC government policy on family planning by having a second child in July 1988. He sent his wife to Fuzhou city when she was three months pregnant. There she hid in a relative's house until the baby was born. The new baby was brought back to the applicant's village and his wife said that she was raising the child for another couple. The applicant was directed to undergo sterilisation but a sympathetic doctor only carried out a half vasectomy. · Political opinion 4 When a member of the PRC Navy in 1984 the applicant undertook discussions as to political matters. At this time the Navy was encouraging its members to express their political views openly. But having expressed his view, he was put in confinement for thirty-five days and was forced to write self criticism. He was criticised by other personnel and in January 1995 he was expelled from the Navy. 5 In 1989 during the pro-democracy movement he participated in rallies, signed petitions and collected money in support of the students. He was the first one to hold up a red banner with the words "Religious Freedom - Christian Church" in a demonstration in Fuzhou. He was told by a friend of his in the PRC that he was on a wanted list. He thus left his home town and went to Shen Yang, Changcun and Harbin where he changed his name. · Religion 6 In 1986 he became an active member of the Christian Home Church. He studied the doctrine and actively worked to bring new members to the Church. The RRT's decision 7 The RRT considered the applicant's account internally inconsistent. If the authorities had accepted his explanation about the child, there was no reason for any punishment. In any event the decision of the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 1990 CLR 225 meant that fear of harm for not complying with the one child policy is not fear of harm for a Convention reason. As to political opinion, the RRT thought it difficult to accept that such opinions given in the confines of a relatively small unit (about 32 people) and voiced as response to an invitation to debate would incur such treatment by the Navy. Again there were discrepancies in the accounts given at different stages. In one version he was put in military detention for thirty-five days. In another version he was "locked up for a couple of days". Moreover his enlistment period of seven years expired on 1 January 1985 and thus his reference to "expulsion" was an exaggeration. Even if he met with some kind of mild sanction for voicing his opinion in the debates, the RRT did not accept that he was dismissed by the Navy as a consequence of having expressed his political opinion. There was no real chance that he would be persecuted for any opinion he may have expressed during his time in the Navy and specifically in 1984. As to the Fuzhou rally, the applicant provided two dates neither of which were consistent with reported demonstrations in Fuzhou around that period. Even if the RRT were to accept that the applicant did participate in the demonstrations as claimed, and even if he were on a wanted list, it did not follow that he would suffer harm which would amount to Convention persecution. He clearly was not a high profile student leader or dissident. Country profiles cited by the RRT indicated that the PRC authorities are no longer interested in people who demonstrated unless they were very high profile dissidents. As to religion, the RRT noted that the applicant did not instance an occasion or an occurrence of being even recognised as practising religion where such practice was illegal. It cited material as to increasing religious freedom in China. Generally people were allowed to practise their religion if it did not interfere with the political system. A large number of people were reported to be members of unofficial house churches. Given that the applicant had joined his Home Church in 1986 and left in June 1989 and did not report any activity other than gathering to worship, it followed that he had not attracted adverse attention for his religious beliefs and practices and there was no real chance that he would be persecuted for reason of religion if he were to return to China. 8 The Tribunal considered the applicant's claims individually and cumulatively and found there was not a real chance that he would be persecuted for any Convention ground should he return to China now or in the foreseeable future. It found therefore that his fear of persecution was not well founded. Application for review 9 The written contentions of fact and law filed on behalf of the applicant were, insofar as they advanced legal argument, in exactly the same terms as those in the case of Hai Yan Wang [2000] FCA 505 and Sunarto aka Mao Shun Chen [2000] FCA 506 which were heard immediately before the present case. Counsel said that the case was "on all fours" with Hai Yan Wang. He did not seek to advance any separate argument. Accordingly the conclusion on this application must be the same. Whether valid application 10 After the hearing in this matter I noted that the copy of the Protection Visa Application form (Form 866) in the Court Book might have suggested that no details of Convention claims were provided. In that event no valid decision could be made by the delegate to accept or refuse the application and the RRT should accordingly have set aside a purported decision to refuse the application: Li Wen Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421. I accordingly invited written submissions on this issue. I noted that the copy of the Form 866 in the Court Book did not appear to be complete. 11 The respondent did supply written submissions dated 26 April 2000. From these it appears that the complete relevant section of the Form 866 read as follows: "Question: 35 I am seeking protection in Australia so that I do not have to go back to: (Give name of country or countries) Answer: China Question: 36 Why did you leave that country? If you need more space to answer, insert extra pages as required Answer: I have been persecuted by ccp I can not live like a normal one I have no human right A submission will be provided very soon Question: 37 What do you fear may happen to you if you go back to that country? If you need more space to answer, insert extra pages as required Answer: I will be continuously persecuted by ccp A submission will be provided very soon Question: 38 Who do you think may harm/mistreat you if you go back? If you need more space to answer, insert extra pages as required Answer: The government or authority Question: 39 Why do you think they will harm/mistreat you if you go back? If you need more space to answer, insert extra pages as required Answer: I have had blemish in my political life that ccp will never forgive me A submission will be provied (sic) to your office very soon Question: 40 Do you think the authorities of that country can and will protect you if you go back? If not, why not? If you need more space to answer, insert extra pages as required Answer: No the authority will not protect me I am a target of ccp See a submission which will be provided soon" 12 I take "ccp" to be a reference to the China Communist Party. 13 I agree with the submission of counsel for the respondent that the circumstances of this case are, on further examination, distinguishable from those in Li Wen Han and Minister for Immigration and Multicultural Affairs v "A" (1999) 168 ALR 594. The applicant did answer all questions on the form. I think a fair reading of his answers indicates that he was making a claim that he feared persecution on the ground of political opinion. There was therefore a valid application for a protection visa which he was able to supplement by further information: Migration Act 1958 (Cth) s 55.