FEDERAL COURT OF AUSTRALIA

He v Minister for Immigration & Multicultural Affairs [2001] FCA 1167

HAI QING HE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N389 of 2001

MADGWICK J

9 AUGUST 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

3.                  The respondent be granted leave to file and serve within 14 days any application for costs against any other party he sees fit.

4.                  Any application for costs against a third party be listed for directions on Thursday 23 August 2001 at 9:30am.

THE COURT DIRECTS THAT:

1.                  The applicant need not be present at any further directions or hearing in relation to costs in this matter.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     This is an application for an order of review pursuant to Part 8 of the Migration Act 1958 (Cth) (“the Act”), in respect of a decision of the Refugee Review Tribunal (“the Tribunal”), given on 30 March 2001, which affirmed the decision of a delegate of the respondent Minister refusing the applicant the grant of protection visa.

Background

2                     The applicant is a young man who arrived in Australia on 23 May 1998 on a student visa which was due to and did expire on 15 March 2000.  The day before that expiry, the applicant applied for an extension of his student visa, apparently unsuccessfully.  A week later, that is almost two years after his arrival in Australia, the applicant lodged a protection visa application claiming to be a political refugee from China.

3                     A delegate of the respondent Minister refused the application on 2 June 2000 and a fortnight later the applicant applied to the Tribunal for a review of that decision.  The applicant provided no further information than was before the delegate with his application for review by the Tribunal, and that application included only the observation that he would

submit details later.  Nothing further was submitted to the Tribunal until the applicant appeared before the Tribunal on 29 March 2001. 

4                     Registered mail, which had been sent by the respondent Minister’s department to the applicant on 2 June 2000, containing the delegate’s decision and a letter informing the applicant of his review rights, to the address which he had provided less than two weeks earlier was returned by the Post Office and marked “left address”.  Nevertheless, the same residential address was provided to the Tribunal by the applicant in his review application on 16 June 2000 although his agent’s postal address was nominated as his address for service.  A copy of the Tribunal’s hearing invitation was also sent to the applicant at his residential address but returned by the Post Office marked “unknown at address”.  On 5 February 2001, a completed “response to hearing invitation” signed by the applicant was returned to the Tribunal and apparently this was the copy sent to the applicant care of his agent’s postal address.  On 8 March 2001, the applicant was taken into immigration detention and as I have indicated, on 29 March 2001, he attended a hearing before the Tribunal. 

5                     The applicant had provided the respondent’s delegate with a short written statement in which he said he came to Australia as a student and “[w]hile DIMA Rockdale office refused my further student visa application and ordered me to depart Australia, I hesitated.”  He explained that because he had been a member of the “Chinese Liberal Democratic Party Australia” he was worried that he would face persecution upon his return to China.  He said that he had been interested in democracy and freedom and when he was in Fuqing county, in China, he had felt politically suffocated.  He claimed he “always discussed some political issues with classmates” and at that time he “had an ideal of contributing [his] wisdom [he was at the time less than 19 years of age] to promote Chinese democratic movement”.

6                     The applicant claimed to have actively participated in the various meetings and activities organised by the Party referred to and had told his parents of his involvement in democratic activities in Australia.  He indicated that early in the year 2000 his parents had warned him, over the telephone, not to mention any of his activities in Australia and to withdraw from the party and to concentrate on his studies.  A little later he had a letter from his parents explaining that they had been harassed by the local Public Security Bureau (“PSB”) (apparently the Chinese “thought police”) and warned by them to admonish him to behave himself or he would be in trouble on his return to China.

7                     The applicant also claimed in the document that he had implicated his parents in his activities.  As a result, each of them had been ordered to retire before reaching the legal retirement age and his sister, aged 19, was deprived of some educational rights.  Supposedly the family members were given a common reason for these discriminatory actions, namely that the applicant had not behaved himself overseas.  The effect of these threats, he said, had been to strengthen his determination to contribute more to the Chinese democratic movement.  The applicant’s written statement concluded that he “sincerely ask[ed] [the] Australian government to provide [him] with a protection visa” and beneath the body of the document were the typewritten words, “The Applicant”.  The document was unsigned.

The Tribunal’s decision

8                     The Tribunal member explored with the applicant at his hearing on 29 March 2001, his circumstances and claims and raised a great many and, if I may say so, somewhat obvious problems about his story.  The Tribunal member did not accept that the applicant actually was a member of the Chinese Liberal Democratic Party or that he had any “substantive involvement” in its activities.  The Tribunal accepted that the applicant may have had some contact with a member of that Party and had taken part in some informal discussions, but did not accept that he had participated in these on a regular basis, contrary to the applicant’s own claims.

9                     The Tribunal member also did not accept, for reasons given, that the applicant’s parents lost their employment or that his sister was denied tertiary education because of his supposed political activities in Australia.  Apparently, according to the Tribunal member and the information to which he had regard, it is a routine procedure for the PSB to advise the parents of students overseas that their children should not get involved in politics whilst abroad.  Further, the information from diplomatic sources to which the Tribunal member referred was that the Chinese authorities were only concerned about political activity overseas where a person takes a prominent or leading role and there is concern that he or she may continue such high profile activities on return to China.  The Tribunal member was quite satisfied that the applicant’s claimed political activity, taken at its highest (despite the Tribunal member discounting of his claims in that regard), did not amount to his having played a role which would warrant the attention of the Chinese authorities upon his return.

10                  The Tribunal member concluded, as well he might have, that on the evidence before him he was satisfied that the applicant does not face a real chance of persecution for a Convention reason on his return to China.

Application to this Court

11                  The applicant who represented himself with the aid of an interpreter, indicated in Court that, shortly after the Tribunal’s rejection of his claims, he consulted Global Time Group Pty Ltd, a company which caused to be filed his application for an order of review in this Court.  The application asserted that the applicant was aggrieved because:

“Minister’s delegate and Refugee Review tribunal failed to interpret law and approached the real facts as a result of making wrongly decisions because of the reasons:  1. Convention relating to The Status of Refugees which enacted ‘political opinion’ as a reason for applicant ‘owning a well-founded fear of being persecuted’, does not requirement of political activities;  2. Applicant has a well-founded fear for persecute if he return his country – China as reasons included:  (A) applicant has joined Chinese Liberal Democratic Party; (B) has a political opinion which against China ‘one party rule’; (C) actively took part in various activities for the party; (D) Applicant played an important role in the party; (E) Political Security Authority of China has paid a attention to his activities warned his family; (F) obstructed applicant’s sister to study in university.”

12                  The grounds of the application were said to be “The political opinion on the Convention relating to the Status of Refugee, 1967.  Protocol relating to the Status of Refugee.  s 65 Migration Act 1958.  Migration Regulation subclass 866” and a reference to two cases:  Chan Yee Ken v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559.  The application for review was signed by the applicant.

13                  When asked at the hearing whether he had anything to add orally in support of his application, the applicant said he had nothing to say.  When asked if he was quite sure that he wanted to say nothing, the applicant responded that Australia had fair laws and that he was sure that the judge would give him a fair hearing.

Conclusions

14                  No basis whatever has been shown for judicial review of the Tribunal’s decision.  The application for judicial review will be dismissed and the decision of the Tribunal will be affirmed.

Costs

15                  No application has been made, as perhaps it might have been, for indemnity costs.  There is no reason why the applicant should not be ordered to pay costs.  The applicant has had legal advice provided to him as a result of his participation in the Pilot Legal Advice Scheme, generously provided by the respondent Minister’s department, at the urging of the Court, in order to try to limit the relentless flow of legally meritless applications to this Court and to ensure that those applicants with genuinely arguable cases might be put in touch with lawyers who could assist them to advance their applications.

16                  How it is that the applicant’s former migration agent was apparently unaware of his non-residence at his stated address, is a matter that might reasonably concern the respondent Minister’s department.  How it is that a company and a named individual with no right to institute proceedings in this Court apparently did so is likewise a matter that might concern the respondent’s department.  How it is that the same company and individual apparently aided the applicant to make a “meritless” application to this Court is a matter that does reasonably concern the respondent and might also reasonably concern the Court.

17                  The respondent Minister seeks an order for costs against the applicant which, as I have indicated, will be granted.  The respondent also seeks an adjournment of the proceedings for a short period to enable consideration of whether to pursue an order for costs against Global Time Group Pty Ltd and/or the individual concerned, a Mr Hao Ran Shen.  As the Minister’s prospects of actually being paid costs by the applicant appear on their face to be most unpromising and as the Court would have jurisdiction to order costs against an interloper, if there has been one, this is a reasonable application and the issue of costs will be adjourned for a further 14 days.  As far as I can see, the applicant has no interest in that matter.  If any order is made against any other person that he or it pay the respondent Minister’s costs, the applicant will in fact receive a benefit from this because he need not pay

any amount that the other party pays.  There will be no warrant for the Minister to be paid costs twice. 

Disposition

18                  Accordingly, the Court will order that the application be dismissed.  The applicant is to pay the Minister’s costs.  Leave will be granted to the respondent Minister to file and serve, within 14 days, any application for costs against any other party that he sees fit and if such an application be filed, the matter will be listed for directions on Thursday 23 August 2001 at 9.30 am.  There will be no necessity for the applicant to be present on that occasion.

Associate:

Dated:              23 August 2001