Chapter 4 - The government's response to Mr Chen's
request for political asylum
The chapter examines the actions of DFAT and DIMIA during
the period 27 May 2005
until he lodged an application for a protection visa on 3 June 2005. This chapter also highlights
discrepancies in various accounts of events over this period and seeks to
answer the broader questions of whether the government's response to Mr
Chen's requests for asylum and protection
was fair and appropriate.
DFAT's response after the Minister
declines Mr Chen's
Recognising that this was a complex issue involving a
number of portfolios, DFAT convened an Interdepartmental Committee meeting (IDC)
on the morning of 27 May at around 10:30am.
It was attended by officers from Prime Minister and Cabinet, DIMIA, Australian Security
Intelligence Organisation and the Australian Federal Police (AFP). Mr
Hughes, DIMIA, told the committee that the
first part of the meeting was to 'provide feedback on the issue of territorial
asylum and then to discuss where things went from there'. Ms
Morton, First Assistant Secretary, North
Asia Division, DFAT, told the committee that she had informed the IDC of Mr
Downer's decision not to grant Mr Chen's
request for political asylum.
Robinson, Assistant Secretary, East Asia
Branch, DFAT, explained that 'Mr Downer
advised the department that he would not sign an instrument to allow Mr
Chen to apply to DIMIA for a territorial
asylum visa. Mr Downer
said that if Mr Chen
wished to stay in Australia
he could apply for another sort of visa and that it was appropriate that Mr
Chen's claim for such a visa be considered
by DIMIA on its merits as part of a normal process'.
DIMIA's response after the Minister
declines Mr Chen's
Mr Illingworth, DIMIA, informed the committee that he
was made aware of the Foreign Minister's decision not to grant political asylum
at around 10:30am or 11:00am on 27 May 2005 by DFAT officers. He further stated 'I do not know if
the language was as clear as 'reject', but it was a very strong indication that
the request would not be successful'.
The decision to reject his application for political
asylum was conveyed to Mr Chen
by Ms Linsday
by phone on 27 May 2005.
told the committee that DIMIA was prepared 'should political asylum not be on
offer, for the matter to default to a request for a protection visa or to stay
in Australia on
migration grounds or some other option'.
To prepare for this, Mr Hughes
advised that some work was undertaken in Canberra
in conjunction with the NSW office 'to develop talking points to use in
conversation with him to try to tease out for him the options that might be
available to him'. DIMIA stated
that they wanted to ensure Mr Chen
was provided with advice that would offer the full range of possibilities to
told the committee that a meeting originally scheduled with Mr
Chen on 27 May 2005 did not proceed as Mr
Chen called at about lunchtime on that day
to cancel the meeting.
advised that Mr Chen
called back the next day and said 'he was unhappy about coming into the
office'. She stated:
He said that he wanted to withdraw from
the meeting that we had proposed at Parramatta and that he would prefer to have a meeting at a safe place. He
did not think that the DIMIA office would be a safe place...He basically
indicated that he thought they would be watching him. He did not say who 'they'
told the committee that when he contacted Ms
Lindsay, he asked for 'safe transportation
arrangements to the DIMIA office or a police station so that I may feel safer,
but it was not considered'.
submission notes that 'although the Australian government had rejected Mr
Chen's bid for territorial asylum,
nevertheless the Government should have had some concern for his safety. The
Government must have realised that the act of seeking political asylum placed
Mr Chen at grave risk of being prosecuted under the PRC's criminal law or laws
on state security'.
told the committee that he made a verbal request to staff in both the office of
the Minister for Immigration and the office of the Minister for Foreign Affairs
on 6 June 2005 for Mr
Chen to be protected. Ms
Russ from the AFP told the committee that
the issue of Mr Chen's
safety was not raised with the AFP.
Senator Brown also told the
committee that subsequent to that request, he wrote to the New South Wales
Police to see if they would provide a measure of protection for Mr
Russ again replied that she was not aware of
In additional information provided to the committee by
the AFP on 16 August 2005,
in relation to Senator Brown's
written request to the NSW Police, they indicated 'The AFP has been contacted
by the NSW Police in relation to this matter. As this is a NSW Police operational
matter, it would be inappropriate to comment further'.
All protection requests must be dealt with in
accordance with the Migration Act 1958
(Section 36 creates a class of protection visas, the criterion for a protection
visa and protection obligations.), the associated regulations, and, to the
extent to which there is no express inconsistency with Australian domestic
laws, international law (Article 14 of the Universal Declaration of Human
Rights says, inter alia, everyone has the right to seek asylum).
There can be no doubt that Mr
Chen expressed fears for his safety. His
initial letter requesting asylum clearly conveyed these apprehensions. The next
day he cancelled an arranged meeting, again stating concerns for his safety. He
requested safe transportation arrangements to the DIMIA office or a police station
so that he could feel safe. DIMIA agrees with this version.
It is clear that DIMIA, DFAT and the offices of both
the Immigration Minister and the Foreign Minister were aware of Mr
Chen's concerns. Furthermore, it is clear
that neither DIMIA, DFAT or either Ministerial office offered any assistance to
address his concerns or allay his fears.
The committee is of the view that the failure of DIMIA,
DFAT and the Ministers' to take any action in response to Mr Chen's clearly
expressed concerns for his personal safety at the very least breached the
spirit of the Australian Government's obligations under international law to afford protection to those seeking
31 May 2005 meeting
On 31 May 2005,
was interviewed by a Senior Protocol Officer from DFAT, Canberra,
the DIMIA NSW Deputy State Director and Ms
Did DFAT encourage Mr
Chen to return to and contact the consulate?
According to Mr Chen's
submission, the DFAT Protocol Officer:
Indicated to Mr Chen
that his application for political asylum was rejected for foreign affairs
reasons. She repeatedly stated that a diplomat at the end of his term should
return home to their country. She repeatedly invited Mr
Chen to reconsider his defection from the
Chinese Consulate, informing him that the Consul-General and Mr
Zhou, the Consulate's Protocol Officer were
very worried about him. She told Mr Chen
that he had a successful diplomatic
career. She implied that a few days away from the Consulate amounted to
nothing. Three times she asked Mr Chen
to allow himself to be persuaded and to consider what she had said. Mr
Chen again indicated that he wanted to apply
for a protection visa.
explained how he was persecuted and why he left the Consulate. He explained the
persecution to death of his father in the PRC when Mr
Chen was aged three. He stated he believed
the reason for his father's death was the 'evil political system'. He explained
that he had witnessed and participated in the pro-democracy movement in 1989.
He helped Falun Gong practitioners during his posting to Sydney
and was afraid, should he be returned to China
that he would be persecuted. He stated that the Chinese Government would not
believe that he had not leaked confidential information. Mr
Chen discussed the Lan kidnapping incident
in some detail. Mr Chen
stated that he was worried about his life...
was encouraged to consider applying for a tourist visa. Mr
Chen took the requisite form, but indicated
that he would not consider a tourist visa. The DFAT Protocol Officer told Mr
Chen that a protection visa was extremely
impossible. There was a limited number of successful cases. At the end of the
interview Mr Chen
was also given the Protection Visa application forms. 
submission further asserts that:
On 31 May, DFAT and DIMIA officials attempted to persuade Mr
Chen to return to the PRC consulate (avail
himself of the protection of that country) and in so doing, we submit,
increased Mr Chen's
fears that he would be refouled. The depth of this fear is evidenced by the
fact that on 4 June he wrote to the USA Embassy in Australia
outlining his predicament and expressing his fear that the Australia
government would probably refuse to offer him protection.
told the committee:
Then I was forced to choose to apply for an onshore protection
visa. The protocol officer actually persuaded me to consider it just a little
bit. She repeatedly asked me to return to the Chinese Consulate and she told me
that the Consul-General and Mr Zhou, who is known as the protocol officer in
the Chinese consulate in Sydney, were very worried about my family and wanted
to contact me and asked me to contact them. I said, 'No, I don't want to
Even when the interview finished the senior protocol officer
said, 'Please contact them'. She said they were worried about me and asked if
she could transfer a message to the Chinese consulate in Sydney.
I said, 'No'. At first I said, 'as you like,' but then she asked again and I said
I would prefer it if she did not. She asked how many days I had left at the
Chinese consulate and said it was quite normal for a consul who was not working
to just return to the consulate, indicating it seemed that nothing had happened
and that it was just as if I has gone for a holiday. She said: 'you have a
successful career and you have been promoted to first secretary. At the end of
your term you should return to your home country'. I said, 'No, you cannot
further told the committee:
In the middle of that interview I told the senior protocol
officer: 'Madam, you have repeatedly talked about your view and it seems that
you are not helping me. It seems that you are repeatedly asking me to return to
summarised his concerns regarding the meeting:
At that meeting, the senior protocol officer from DFAT attempted
to persuade Mr Chen
to return to the Consulate-General of the People's Republic of China.
By that action, we would submit, the officer did two things: (1) increased Mr
Chen's fears that he was in danger of being
refouled; (2) indicated to him that members of the consulate-general's staff
were aware and concerned for him. That raises questions for us as to whether on
31 May 2005 communications had already taken place between the government of
Australia and the government of the People's Republic of China as to Mr Chen's
request for territorial asylum.
DFAT provided a different interpretation of the
An officer from DFAT Protocol Branch attended this meeting to
outline to Mr Chen
the normal processes on the completion of an officer's posting. As I noted
earlier, Mr Chen
was advised of the various options available to him and to consider them
carefully – these are the visa options. He was told that there was no guarantee
that he would receive a protection visa. Mr
Chen was adamant that he would seek a
protection visa and was not interested in any other option. So relevant forms
were provided to him at that meeting.
Chen was subsequently granted a protection
visa on 8 July 2005.
DFAT, told the committee that:
If a foreign mission has a concern about one of their officials
– for example, if he has not turned up for work – they are in fact expected to
advise the protocol area of the department. That is usual practice. This had
happened in this case. There had been two phone calls about him. She passed
this on to Mr Chen
and said 'It would be better if you could contact your consulate and tell them
that things are all right; you are not having a problem'.
In response to further questions regarding whether it
was appropriate to ask Mr Chen
to contact the Chinese consulate Ms Morton
It is perfectly explicable that he would contact his embassy and
say: 'I am not in any trouble. I am going through some process to stay in Australia.'
I do not find that at all reprehensible. I find it absolutely normal that this
is what we would encourage a Chinese consular official to do: to stay in touch
with his government and advise them that he and his family were fine.
The committee once again is unable to reconcile the
differing accounts of the meeting on 31
May 2005. The committee is not convinced by Ms
Morton's claim that it was absolutely normal
for DFAT to encourage a Chinese official attempting to defect to stay in touch
with his Government. In light of the fact that Mr Chen had made clear his
concerns for his safety, the sensitive nature of his request for political
asylum and the fact that in his letter he had indicated that he had access to
top confidential information about the Chinese Government, DFAT's efforts to
encourage Mr Chen
to return to the consulate in the circumstances demonstrated an extraordinary
failure to comprehend the seriousness of Mr
Chen's predicament or a lack of concern
about his welfare.
Further contact with Chinese
DIMIA and DFAT told the committee of further contact
with the Chinese consulate.
told the committee that the NSW office received two follow-up calls from the
Chinese consulate on 27 May 2005,
one in the morning to Mr O'Callaghan's
executive assistant. This was the same person that she had called the day
before and the executive assistant provided no information. The second call was
early evening of 27 May 2005
from a different person in the Chinese consulate to Ms
manager of the detention and removals function in NSW which is someone with
whom they have regular contact. Ms Lee
then called Mr O'Callaghan
who consulted Canberra and passed a
message back to Ms Lee
which she passed on to the inquirer that they should speak to DFAT.
told the committee that during the meeting on 31 May 2005, the DFAT officer:
...gave a kind offer that, because under my current status my visa
might be cancelled if requested by the Chinese consulate, she would suggest to
the Chinese consulate not to cease my function as consul and maybe give me more
time to consider the option of returning of the consulate...She said she would
ask the Chinese consulate to consider not to give the note to the Australian
government so that the consul status would not be cancelled, because she said
that, if my visa status changed, according to Australian law I would be
detained in the detention centre because I had no visa status.
committee was not advised whether this occurred but at no time does it appear
that Mr Chen was ever declared an unlawful non-citizen.
further stated that the DFAT officer told him that she had received a call from
from the Chinese consulate who was worried about him and she asked him to
contact the consulate to allay their concerns.
outlined the DFAT contact with the Chinese consulate:
...on the evening of Friday 27 May, the Chinese consulate general
in Sydney, Mr Zhou Yujiang, telephoned the DFAT office in Sydney to advise of
their concern that Mr Chen and his family had disappeared and had not been seen
or heard from since the day before and to express concern for Mr Chen and his
family's welfare. Our Sydney
officer advised Mr Zhou
on that Friday evening that if he was concerned for Mr
Chen's safety he should phone the police or
local hospitals. Mr Zhou
asked our officer if she would call the police and hospitals for him, to which
she replied that the consulate-general should do this in the first instance.
This is normal procedure in such cases. Mr
Zhou was advised that, if he had any further
concerns he should telephone the officer again over the weekend. If not, she
suggested that they speak again the following Monday.
On Monday, 30 May at about 10:30am,
telephoned the office in our Sydney
office again. He advised that Mr Chen
was not in hospital and had not reported for work and asked for advice about
what to do next. Our officer in Sydney
declined to provide any further information and suggested he call DFAT's
protocol branch in Canberra. Our
protocol branch had earlier told the Sydney
office that any matters relating to Mr Chen
should be referred to protocol and that no information concerning him was to be
discussed with anybody else.
DFAT's Protocol Branch later the same day returned a call from
the Chinese consulate-general. The consulate advised that they had subsequently
found a letter left by Mr Chen
in his apartment. According to Mr Zhou,
had written that he was not very satisfied with his job and was not going back
to China. Mr
Zhou said that, on the basis of Mr
Chen's letter, it was clear to the consulate
that Mr Chen
did not intend to return to his job at the consulate, but the consulate no
longer held concerns for the physical welfare of Mr
Chen and his family. Protocol noted the
information provided by the consulate but declined to provide any further
information about Mr Chen.
also told the committee:
In the normal course of Protocol's work, there was further
contact between Protocol Branch and the Chinese consulate-general on Wednesday
1 June. Protocol reassured the consulate-general about Mr
Chen's physical welfare, but no other
information concerning him was provided to the consulate-general, including his
intentions regarding applying for any visa to stay in Australia.
Later that same day – 1 June – an officer from the Chinese embassy in Canberra
called on Protocol to inquire about Mr Chen's
case. Protocol confirmed that there had been contact with Mr
Chen but declined to provide any information
about him, including in regard to his intentions or whereabouts.
The next day – Thursday 2 June – Chinese
Ambassador Fu Ying
approached Mr Downer
following a formal meeting in his office with a senior Chinese visitor and
asked to speak to Mr Downer
about Mr Chen.
is already on the public record concerning this meeting. He said that at no
time did he or any other DFAT official improperly convey information about Mr
On 14 June the department received a formal note from the
Chinese consulate-general advising it of the cancellation of the diplomatic
passports of Mr Chen
and his family. DFAT Protocol advised DIMIA that the Chen
family diplomatic visas should be cancelled subject to the granting of bridging
visas coming into effect at the same time.
expressed the following concerns regarding further contact with the Chinese
Given that on 27 May, in a conversation with Ms Louise Lindsay,
Mr Chen indicated that he wanted to make an application for protection and
given that on 31 May in conversations with a deputy state director of that
department, Louise Lindsay and the DFAT official, Mr Chen again clearly
indicated that he was seeking asylum, I find the fact that there has been contact
between Australian government officials and Chinese government officials
Did a DFAT officer provide DIMIA
told the committee that in the meeting which took place on 31 May 2005:
the senior DFAT protocol officer put to Mr
Chen that a protection visa was 'extremely
impossible', or that an application would be 'very unlikely' to succeed. We
would submit that it is not the role of protocol officers from DFAT to be
giving immigration advice.
confirmed to the committee that it was the DFAT officer who had told him that
the protection visa was extremely impossible.
from DFAT told the committee that she had spoken with the DFAT Protocol
officer, Ms Anne
Plunkett, about the meeting on 31 May 2005 and explained to the
committee that she attended the meeting because 'part of Protocol's role is
managing the operational aspects associated with diplomatic and consular corps
officials arriving in and departing Australia.
That is part of her usual job'.
It is not something that happens every day. We and Protocol were
very concerned that Mr Chen understood what he was seeking and the fact that
there were other avenues for him to apply to stay in Australia should that be
his wish. There is a lot of use of the word 'asylum' in a lot of contexts. He
had applied in his letter to be given an instrument to allow him to apply for
territorial asylum. Ms Plunkett explained to him that this was not going to be
given to him and at that interview there was a range of options presented to
him in relation to staying in Australia should he wish to do so.
clarified that the visa options were put to Mr
Chen by a DIMIA officer and told the
I do know and I can say that Ms
Plunkett has said that during the interview
she certainly did not make any statement that a protection visa was extremely
impossible. She pointed out to Mr Chen
that she could not guarantee that an application for a visa – for a protection
visa or for any other visa – would be successful. She also pointed out, which
we felt was the right thing to do, that under the legislation a protection visa
can be refused on foreign policy grounds. That was pointed out to Mr
Chen as a relevant matter that he should
take into consideration.
...I think Ms Plunkett's
advice to Mr Chen
was very sensible advice. The advice was: the Australian government expect
diplomats and consular officials to return to their country at the end of their
posting; that is our expectation.
...It was explained to Mr Chen
that this was unusual, that normally at the end of a posting a diplomatic or
consular official would return to their country. If they wish to stay in Australia
there were various options that they could pursue and these options were open
to Mr Chen.
Those options were explained to him by a DIMIA official who is conversant with
the Migration Act and the various categories of visa available onshore in Australia
or offshore. It was explained to him also by Ms
Plunkett that his consulate had rung to
inquire whether we had any information about him because he had not turned up
for work. This is something that happens in the course of Protocol's work.
summed up for the committee that the 'information was provided to him by the
DIMIA officers there at the time and not by the DFAT officers – we are not
experts in that'.
The committee is unable to make a judgement on the
discrepancies in the accounts of the 31
May 2005 meeting. However, the committee was concerned that Mr
Chen's safety concerns appear to have been
disregarded by DIMIA and DFAT and that their responses did not display an
appreciation of his situation and environment.
Government response to protection visa application
On 3 June 2005,
presented a Protection Visa application to Ms
On 8 July 2005, Mr
Chen and his family were granted Class XA
Subclass 866 protection visas.
Further possible breaches - Foreign
Minister and DFAT
The press suggested that Mr
Downer may have breached the Migration Act 1958 when he discussed Mr
Chen's case with the Chinese Ambassador.
Shadow Foreign Affairs Minister, Mr Rudd
said that Mr Downer
needed to provide the public with the assurance there had been no breach of the
On 15 June
2005, the press reported that the Foreign Affairs Minister, Mr
Downer had spoken to Madam Fu
Ying about the Chen case
during a meeting on 2 June 2005.
It asserted that 'His department has also spoken to Chinese officials in Sydney
about the matter, but he denied any improper information was exchanged – saying
the Chinese had initiated all the contact on the Chen issue'.
Further, it was reported that Mr
Downer said that he could provide 'an
absolute assurance that he had not breached the section of the Migration Act
that prohibits the unauthorised disclosure of information identifying an
applicant for a protection visa to the government from which protection is
sought. Mr Downer
said the ambassador raised Mr Chen's
case with him briefly after a meeting in his office as she was walking to the
The committee notes that in explaining his meeting with
Madam Fu, the Minister stated
that 'as the Chinese Ambassador left my office, she raised the Chen
case, so we had a brief discussion about that'. Some members of the committee
are in no doubt that such a discussion, no matter how brief, was highly
inappropriate. The minister should have immediately indicated to the Ambassador
that he could not discuss the matter. In answer to the question about his
meeting with the Chinese Ambassador, he could then have unequivocally assured
the Australian people that he had no discussion with the Ambassador about Mr
Chen and his actions in declining to talk about Mr Chen were proper and beyond
reproach. He could not do so.
Another possible breach was raised in the press by Mr
Rudd who said protocols may also have been
breached if Chinese Ambassador Fu
Ying was correct when she said in the week
starting 6 June 2005 that
the embassy was contacted to inquire what would happen to Mr
Chen if he was returned to China. In an interview with Lateline, Madame
Fu said she had been asked by the Australian
government about whether Mr Chen
would face prosecution if he returns to China. When asked about this contact, DFAT
said they could not explain the press reports but they certainly did not make
In the committee's view, Madam Fu Ying's comments on
the Lateline program, when read together with DFAT's evidence that it had not
made such a request of the Chinese Embassy and the fact that the Minister has
declined to provide any details of his discussion with the Ambassador, leave
open the question of whether this was a matter that was discussed between the Minister
and the Ambassador at their meeting on 2
June 2005. If this were in fact the case, such discussions on the
part of the Minister would amount to a clear breach of Section 336E of the
has refused to provide any details of his discussion with Madam
Fu Ying on 2 June 2005 other than to assert that
neither he nor his department disclosed improper or sensitive information to
Chinese officials in Australia
about Mr Chen
The Committee is not satisfied with the lack
of information provided by the Minister about his discussions with Madam
Fu Ying and
is therefore unable to assess his claim that he did not disclose any improper
The committee notes, however, that the Minister does
not deny that he may have disclosed information to the Chinese Ambassador about
Mr Chen Yonglin.
In the committee's view, a discussion which disclosed any information about Mr
Chen, including his name or the fact that he
was a Chinese consular official, would amount to an offence under the Migration
Act. In the committee's view, such a discussion would also be a breach of the
Privacy Act and the Australian Government's obligations under the Refugee
At the very least the decision to discuss Mr
Chen's case with the Chinese Ambassador was
a gross error of judgement on the part of the Minister.
This chapter covers events which occurred on 27 May to 3 June 2005 when Mr
Chen lodged an application for a protection
visa. The discrepancies in accounts of the meeting on 31 May have been outlined
but, as in previous chapters, the committee is unable to make a judgement on
which account is correct.
This chapter provided examples of Mr
Chen expressing concerns for his safety –
claims not denied by DIMIA or DFAT. There can be no doubt that they were made
aware of Mr Chen's
concerns on more than one occasion. However, there is certainly no evidence to
suggest that DIMIA or DFAT officials offered any advice or assistance on how
his concerns could be allayed.
At the meeting on 31 May 2005, government officials also appear to show a
lack of appreciation of Mr Chen's
situation, urging him to return to the Chinese consulate when this was clearly
no longer a viable option.
The committee is disappointed that both DIMIA and DFAT,
in focussing on the wider political implications of Mr
Chen's actions, failed to give adequate
consideration to his and his family's personal situation.
The further contact with the Chinese consulate by both
DIMIA and DFAT has been outlined and addressed by both departments and their
Chapter five will address Mr
Chen's claims involving the treatment of
Falun Gong practitioners, kidnapping allegations, an extensive spy network
operating in Australia
and the harassment and monitoring of Australian citizens, and detail the
support for them provided by witnesses.
Navigation: Previous Page | Contents | Next Page