FEDERAL COURT OF AUSTRALIA

Chen v Minister for Immigration & Multicultural Affairs

[1999] FCA 1022

MIGRATION – review of a decision of the Refugee Review Tribunal (“the RRT”) – whether the RRT erred in failing to give genuine consideration as to whether the applicant had a well founded fear of persecution by virtue of being imputed with an adverse political opinion – whether the RRT erred in failing to properly consider whether the applicant had a prospective well founded fear of persecution if returned to Taiwan – whether the RRT erred in failing to conduct further inquiries

Migration Act 1958 (Cth) Part 8, s420(1)

Tjhe Kwet Koe v Minister for Immigration and Ethnic Affairs & Ors, Tamberlin J, 8 September 1997, unreported, referred to

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, applied

Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 349, referred to

Emiantor v Minister for Immigration and Multicultural Affairs (Olney, Sundberg and Marshall JJ, 20 July 1998, unreported), referred to

WEI-TE CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 125 OF 1999

MARSHALL J

MELBOURNE

3 AUGUST 1999

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondents costs, including reserved costs, if any.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an order to review a decision of the Refugee Review Tribunal (“the RRT”) made on 22 February 1999. The RRT was not satisfied that the applicant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). The application is made under Part 8 of the Migration Act 1958 (Cth) (“the Act”).

Factual Background

2                     The applicant is a person whose former place of habitual residence was Taiwan. See Tjhe Kwet Koe v Minister for Immigration and Ethnic Affairs & Ors, Tamberlin J, 8 September 1997, unreported. He arrived in Australia in May 1994 on a short term visitor’s visa. The applicant remained in Australia after being granted various visas to enable him to do so until further applications for bridging visas were refused in late 1998. On 16 December 1998 he lodged an application for a protection visa. He is currently in immigration detention.

3                     In Taiwan the applicant worked as an importer of seafood. His claim for a protection visa stems from an approach made to him by a gangster, Mr Fang, to become involved in an illegal smuggling operation. The approach was made whilst Mr Fang pointed a gun at the applicant’s head.

4                     The applicant asserted that he had been told by Mr Fang that he had been chosen because of his support for a rival political party to that with which Mr Fang was connected. The applicant also claimed that he faced fraud charges in Taiwan because he had been “set up” by Mr Fang. He said that as a consequence his passport had been cancelled.

The Applicant’s Claims – Imputed Political Opinion

5                     Before the RRT the applicant contended that he would face persecution if he was returned to Taiwan. The basis for this persecution was, he contended, his membership of a particular social group and for reasons of his political opinion and imputed political opinion. The RRT rejected both contentions. Mr Gibson of counsel, who appeared for the applicant before the Court, did not submit that the RRT had erred in its consideration of whether the applicant faced persecution due to his membership of a particular social group.

The Reasoning of the RRT on Political Opinion and Imputed Political Opinion

6                     Under the heading “Political and Imputed Political Opinion” the RRT said as follows:

“In his initial application the only reference to political opinion is that the gangsters have a ‘well connected relationship with the legal members and high ranking government officials’. Even if this is accepted, it does not mean that any problems the applicant has are for reasons of his political opinion. The gangsters’ connection has nothing to say about the applicant’s political opinion, even in the broadest sense of the words. An example of this reasoning in a different situation occurred in Marlon Maningat v MIMA (unreported, 30 April 1998) where the applicant was a witness to the abduction of a military officer by three Communists. His fear arose from the circumstance that he was a witness and he claimed that this amounted to persecution for his “political opinion” because the perpetrators of the crime were members of the Communist Party of the Philippines. There the court stated:

“However, the Convention definition is concerned with the political opinion held by the applicant rather than of those who carried out the abduction.

Fear of reprisal or being harmed or “silenced” because a person might be able to give evidence against the perpetrators of a violent or criminal act, without more is not a fear of persecution for a Convention reason. The word “opinion” contained in the Convention is of central importance in this case. The circumstances that the act was carried out by Communists does not mean that the witness was in danger of persecution by reasons of opinions held by him. The fact that a person is in fear because he witnessed an abduction is, taken by itself, a neutral circumstance under the Convention. Such fears might equally arise as the result of being a witness to a killing by criminal groups such as the Mafia, where, for example, there may be no suggestion of persecution for holding a political opinion. There was no evidence that he was in any danger of persecution because he did not hold or agree with Communist doctrines.”

In Cabarrubias & Anor v MIMA (unreported, Madgwick J., 4 May 1998) the applicants claimed to be targeted by the NPA and were eventually handing over 25-30% of their income to them. The Tribunal found that the applicant and her husband were targets for extortion. After an overview on the case law on particular social group, the Court held

The Tribunal found that the applicants were simply “individuals … who [had] goods and money extracted from them”. As a matter of inference, the only thing which could have made them members of anything which on the broadest view, could be called a particular social group was that, in the opinion of the NPA, they were fit targets for mulcting. They exhibited, in other words, no characteristic “pre-existing” their persecution which could enable recognition that they were members of a particular social group. The Tribunal did not err in law, therefore, in concluding that they were not "persecuted for reasons of their membership of a particular social group or for any Convention reason”.

An effort was made to argue that, because the NPA has Marxist inspirations, the applicants must have been targeted on account of what the NPA’s leaders must have supposed would be their political opinion. There was no evidence of this and any effort to require its inference must founder on the notorious facts of the diversity, by the 1980’s of the streams of Marxian thought and the variety of stages and means of insurrection by guerilla methods. It seems highly unsafe to me, given support for the NPA from elements of the Catholic clergy, to make the assumption implicit in the submission that NPA leaders would necessarily have a narrow view of the factors that determine an individual’s political opinion. It can hardly be said that the Tribunal erred in law in not making such an assumption.”(p.8)

In a similar way the connections of the gangsters with legal members and high ranking government officials does not indicate that the applicant is being targeted because of his political opinion.

The applicant’s advisers, in their final submission prepared by counsel, also directed the Tribunal to the case of Ranwalage and Ors v MIMA (Federal Court, unreported, Heerey J. 20 November 1998). In that case the applicant had knowledge which, the court held, could be interpreted to be a political opinion. However the Tribunal is satisfied that this case is far removed from that situation. No matter how entrenched the applicant may argue corruption is in Taiwan, the Tribunal is satisfied that harassment by gangsters in order to force the applicant to assist them is not persecution for reasons of his political opinion.

However the applicant now goes further than this. In the hearing the applicant added that the main gangster told him he had been selected because of his involvement in a particular political party. He was being asked to co-operate because he deserved it because of his political affiliation. The applicant named the political party as Shin Tung and stated it was opposed to the government whereas the gangsters were aligned with the government. However the Tribunal does not accept that the applicant was targeted by these gangsters for this reason. The applicant made no mention of this in either his handwritten application or his initial typed statement. The Tribunal rejects the applicant’s explanation for this as his having been rushed to prepare his application. The Tribunal notes the analysis provided in the submission made by the applicant’s adviser after the hearing. The submission there is that given the sequence of events and the difficulties in obtaining advice whilst in detention and the stress that this caused the Tribunal should not be surprised that he left some matters out. However the applicant prepared over a page of type written information. To put his targeting down to an association with a political party would have taken almost no extra space or time. The applicant’s failure to provide his political association initially as a reason for his targeting by gangsters satisfies the Tribunal that there was no such motive behind the applicant’s targeting. Further it makes little sense to the Tribunal for a gang to target someone, in order to obtain their co-operation in illegal activities, because their political association was opposed to that of the gang. If the gang is seeking co-operation on the basis of some political association it makes more sense to find someone with similar beliefs. The Tribunal finds the applicant’s claim that he was targeted because of his political association implausible, because of his failure to mention it at the outset and because it is inherently implausible.

The Tribunal also notes the request made before the hearing and re-iterated in the final submission of the applicant that the Tribunal should take evidence from Ms. Chang. The Tribunal has read the initial statement of Ms. Chang of 17 January 1999 and also the further letter headed affidavit dated 9 February 1999. The Tribunal has considered this material. The Tribunal notes that Ms. Chang is a friend of the applicant. In her statement of 9 February 1999 she states that the men said “bad luck to you…why you abandon your party and support Hsin Tung with lots of donation. You are in the top of our list. Now you have to import something for us…”. As stated above the Tribunal finds this highly implausible. The Tribunal sees no purpose in re-convening the hearing to take evidence from this person from Taiwan.

The Tribunal concludes that, even if the applicant did have problems with gangsters, these did not occur for reasons of the applicant’s political opinion.”

The Applicant’s Submissions – Political Opinion and Imputed Political Opinion

7                     Mr Gibson submitted that the RRT failed to give genuine consideration as to whether the applicant had a well founded fear of persecution by virtue of being imputed with an adverse political opinion arising from his knowledge of the corrupt activities being engaged in by a person who has a familial relationship to a high ranking official in the Taiwanese government.

8                     It was put by Mr Gibson that three issues were raised by the evidence advanced and submissions made before the RRT. The first issue was whether the applicant can be said to be targeted for persecution because of the connections of gangsters with high ranking government officials. Mr Gibson did not contend that the RRT had erred in rejecting the view that the applicant’s alleged targeting was for a Convention based reason. In particular the applicant did not contend that the RRT erred in being “satisfied that harassment by gangsters in order to force the applicant to assist them is not persecution for reasons of political opinion”.

9                     The second issue concerned the applicant’s allegations that he was selected for persecution because of his support for a particular political party which favoured re-unification of Taiwan with the People’s Republic of China.

10                  The RRT rejected that submission and Mr Gibson did not seek to impugn that rejection.

11                  Mr Gibson contended that a third issue arose under the heading of  “Political Opinion or Imputed Political Opinion” which he submitted was not dealt with by the RRT. That issue was the issue identified above under the heading “The Applicant’s Claims – Imputed Political Opinion”.

12                  In support of his submission on the third issue point, Mr Gibson referred to some evidence given by the applicant to the RRT after the RRT asked the applicant why the police in Taiwan would not be interested in his claims of harassment by the gangster, Mr Fang. The applicant’s reply to that question was as follows:

“The police say that without real evidence they can’t do anything … and Mr Fang is well connected with the Government. If I go to the Government I don’t see how I would be able to speak right now. His brother is a very high ranking official in the foreign ministry in Taiwan. He used to be the second man in the foreign ministry and they are well connected.”

13                  After the hearing, but before the RRT published its reasons for decision, counsel then assisting the applicant lodged a document entitled “post hearing submission” with the RRT. Counsel informed the RRT that she was instructed that:

“… Mr Chen fears the fact that he supports the Hsin Tang (“New Party”) is also a strong motivating factor for the extortion even though he was not politically active as such. He fears that he has been imputed with a political opinion that is seen as deserving of punishment by the authorities in Taiwan. He instructs that his knowledge of Mr Fang’s criminal activities also subjects him to the risk of persecution via the judicial system which Mr Fang is using to conceal his own culpability.” (Emphasis added).

14                  The reference to the Hsin Tang was part of the submission which was described above as the second issue. Mr Gibson submitted that the sentence which the Court has emphasised above shows that a submission was made to the RRT on the third issue, an issue to which the RRT did not turn its attention.

15                  Mr Gray, of counsel, appeared for the respondent and submitted that the so called third issue was not an issue before the RRT at all. It was his submission that the emphasised sentence from the document entitled “post-hearing submission” was an adjunct to the second issue and in truth part of that issue.

16                  Mr Gray opposed Mr Gibson’s submission that the RRT had failed to set out its finding on a material question of fact raised by the third issue as required by s430(1)(c) of the Act.

17                  It was submitted by Mr Gray that two issues were in truth raised under the heading of political opinion and imputed political opinion.

18                  The first issue concerned harassment of the applicant by gangsters to co-opt him into illegal activities. The second issue involved the use of the legal system to prosecute the applicant if he did not “toe the line” dictated by Mr Fang. Mr Gray said that the so-called third issue was not an issue before the RRT at all but a throw-away line in one sentence in a written submission.

Conclusion – Political Opinion – Imputed Political Opinion

19                  The Court agrees with Mr Gray that the so-called third issue was never a real issue before the RRT. In the Court’s view the emphasised sentence, in context, relates to the second issue and to Mr Chen’s support for the Hsin Tang party. Further, the evidence of Mr Chen before the RRT which was quoted in part earlier in these reasons does not deal with Mr Chen being imputed with adverse political opinion but only with his inability to have Mr Fang brought to justice because of Mr Fang’s connections.

20                  It is important to bear in mind the words of Justice Kirby in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 where his Honour said (at 593):

“In its reasons it [the RRT] was not obliged to deal expressly with every item of evidence.”

21                  The Court also accepts Mr Gray’s submission that the RRT understood the concept of imputing a political opinion, a matter to which redolent references were made in its reasons for decision.

22                  Mr Gibson relied upon the fact that the post-hearing submission referred to the judgment of Heerey J in Ranwalage v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 349. However Ranwalage was distinguishable from the facts before the RRT in this matter. The central focus in Ranwalage was whether knowledge could amount to political opinion in circumstances where such knowledge had been publicly ventilated.

23                  The Court agrees with Mr Gray’s submission that the RRT did not err by failing to have regard to the third issue because in truth it was not an issue which arose for its determination in the matter before it.

Other Issues

24                  Mr Gibson submitted that the RRT failed to properly consider whether the applicant had a prospective well founded fear of persecution if returned to Taiwan. This arose, so the argument ran, because the RRT focussed on whether the applicant’s fear of persecution was for a Convention based reason.

25                  The Court rejects that submission. The RRT is entitled to examine whether a reason put forward by an applicant for refugee status is Convention based before examining whether the fear is subjectively held and/or objectively one which is well-founded. Equally the RRT is entitled to consider whether an applicant objectively has a well founded fear of persecution on the assumption that such a fear is subjectively held. See Emiantor v Minister for Immigration and Multicultural Affairs (Olney, Sundberg and Marshall JJ, 20 July 1998, unreported).

26                  The final issue raised by Mr Gibson was whether the RRT erred by failing to conduct further inquiries which the applicant’s solicitors suggested it may make. In fact the RRT agreed to a three week adjournment to allow the applicant to gather further information in support of his application. His solicitors contended that 6 to 8 weeks was required to gather that information. The RRT was not prepared to adjourn for that length of time. Having regard to the statutory command in s420(1) of the Act for the RRT to provide a “quick” review, its failure to adjourn for the length of time advanced by the applicant’s solicitors was understandable.

27                  In any event there appeared to be little utility in advancing the additional material before the RRT as it was material of a kind that went to the motives of gangsters in the United States with Taiwanese connections. As the RRT said:

“Even if the applicant’s family have been harassed by gangsters in the US, this will not change the Tribunal’s finding that the applicant’s claims do not bring him within the Convention.”

28                  Accordingly the order of the Court is that the application be dismissed and the applicant pay the respondents costs, including reserved costs, if any.

Associate:

Dated:              3 August 1999