Refugee Appeal No. 2226/94 Re LRR

AT AUCKLAND

Before: R P G Haines (Chairperson) T E Gutnick (UNHCR)

Counsel for the Appellant: C M Treadwell

Counsel for the NZIS: S Scott

Date of Hearing: 2 September 1994, 15 November 1994, 15 December 1994; 30 & 31 March 1995; 3 & 4 April 1995

Date of Decision: 16 October 1996

DECISION

This is an appeal against the decision of the Refugee Status Branch of the New Zealand Immigration Service declining the grant of refugee status to the appellant, a citizen of the People's Republic of China.

The Authority regrets very much the delay in the delivery of this decision.

COURSE OF THE HEARING

The appellant claims to have left the People's Republic of China (PRC) in December 1989. Almost four and a half years later, on 15 April 1994 he arrived in New Zealand. In anticipation of a refugee application he then intended to lodge, the appellant claims that on 19 April 1994 he visited the Chinese Consulate at Auckland and there delivered a letter critical of the PRC government. He was also photographed holding slogans advocating freedom and democracy. Two days later, on 21 April 1994 he lodged his application for refugee status. At the time he carried out these actions, the appellant was receiving advice from an immigration consultant called Mr Adam Williams who at one time had been employed by the New Zealand Immigration Service. When the appeal first came on for hearing on 2 September 1994, Mr Williams appeared with the appellant. The appellant was advised to obtain legal advice as his actions at the Chinese Consulate directly raised the issue of good faith discussed in Refugee Appeal No. 2254/94 Re HB (21 September 1994).

The appellant then instructed his present solicitors, Haigh Lyon & Co, and the hearing was further postponed at their request. Eventually, the appeal proceeded on 15 November 1994. For the reasons given in the Authority's Memorandum dated 15 November 1994, the appeal was adjourned part-heard to enable counsel for the appellant to properly investigate and prepare the case. The Authority's Memorandum was in the following terms:

This case has a difficult history.

The appellant arrived in New Zealand on 15 April 1994. His application for refugee status was filed with the New Zealand Immigration Service on 21 April 1994. He was at that time represented by Mr Adam Williams, an immigration consultant trading as A.T.C. Immigration.

Three days prior to lodging the refugee application, the appellant, apparently acting on the advice of Mr Williams, visited the Chinese Consulate at Auckland and there delivered a letter critical of the PRC government. He also unfurled a banner or banners (it is not clear which) bearing slogans, the purport of which has not yet been translated into English. The Authority's understanding is that Mr Williams advised the appellant to take these extraordinary steps in order to strengthen the refugee application which was then about to be filed.

The Refugee Status Branch interview took place on 31 May 1994. By letter dated 24 June 1994, the appellant was advised that his refugee application had been declined.

This appeal was first set down for hearing on 2 September 1994 at which time Mr Williams appeared with the appellant. In view of the circumstances just outlined, the Authority suggested to the appellant that he obtain legal counsel, the question of good faith arising directly on the facts. See Refugee Appeal No. 2254/94 Re HB (21 September 1994).

The fixture having been vacated, the appellant promptly instructed his present solicitors, Haigh Lyon & Co. In a letter dated 7 September 1994, a request was made by them that no further fixture be allocated for some two to three months so that the appellant's case could be fully prepared. While the file is not entirely clear, it would appear that a fixture for 28 September 1994 was nevertheless made. This resulted in a formal adjournment application by way of a letter from Haigh Lyon & Co dated 21 September 1994. They outlined various difficulties anticipated in the preparation of the appellant's case. The application was granted and a fixture made for the hearing of the appeal today, 15 November 1994.

In opening the appellant's case, Mr Treadwell referred to difficulties he had encountered in briefing the appellant's evidence and in preparing the case. No-one was then aware that even more difficulties would emerge during the hearing of the case, namely:

1.   There was an application by Mr Treadwell for leave to submit at a later time an affidavit by the appellant's cousin who resides in Hong Kong confirming:

(a) The appellant's two year residence in the colony.

(b) The circumstances in which the appellant's PRC passport was obtained.

2.   At the commencement of the hearing the Authority granted a request by the appellant for a friend, [OYL], to be present during the hearing to provide support. Following the morning adjournment, Mr Treadwell reported that he had just learnt that Ms [O] was in fact a material witness. As a result she retired from the hearing room. Following the luncheon adjournment Mr Treadwell tendered a short brief of evidence for her.

3.   The appellant relies on several letters from the youngest sister in his family. Two of the letters were received while he was in Fiji. It emerged during the Authority's questioning of the appellant that he had in fact received several other letters from her. Only two had been produced as Mr Williams had expressly stipulated that only two be tendered at the Refugee Status Branch interview. It emerged that the appellant keeps most, if not all of the letters received from his family. Mr Treadwell accordingly sought leave to explore these documents and to tender such further of them as might assist the appellant's case, particularly those letters reporting a continuing interest in the appellant by the authorities.

4.   When the Authority questioned the appellant on the contents of the two letters from his sister and one further letter received in the last week, it emerged that none of the English translations were accurate. Indeed, the interpreter assisting at the hearing was able to point out that the translations of the letters dated 22 March 1993 and 14 August 1993 are grossly inaccurate.

5.   When attention focused on the document written by the appellant to the Chinese Consulate, a similar problem was encountered in that the English translation is not only inaccurate, it creates an entirely erroneous impression of what is said by the appellant in the original document.

6.   Mr Treadwell has not been able to obtain a full brief of evidence from Mr Williams. He was able to produce only a very brief letter from Mr Williams which does not address essential issues.

The foregoing does not represent an exhaustive catalogue of the difficulties encountered during the hearing. It is sufficient to note that an inordinate amount of time has been spent trying to establish basic facts and checking the translations of the various documents. By 4.00 p.m. it was clear that it would not be possible to complete the appellant's evidence in the remaining time, just as it was clear that it would be impossible to also hear the evidence of the appellant's two other witnesses.

In these circumstances the Authority has decided to adjourn the proceedings part-heard to enable Mr Treadwell to properly investigate and prepare the case in the hope that at the resumed hearing the Authority will be able to focus more meaningfully on the merits of the case. Unfortunately, a firm date of hearing cannot now be allocated as it is not yet known when Ms Gutnick will next be in New Zealand. If a fixture cannot be made for the week of 5 December 1994, a hearing in 1995 is inevitable.

A copy of this memorandum is to be made available to Mr Treadwell.

The case was next set down for hearing on 15 December 1994. On that date Miss Scott appeared for the Immigration Service to seek an adjournment to enable the Immigration Service to answer the signed brief of evidence filed by Mr Williams on the morning of 14 December 1994. In this brief Mr Williams made a number of allegations concerning the Refugee Status Branch alleging, inter alia, that lipservice only was paid there to the Refugee Convention and that within the Branch there was a deliberate policy to frustrate the application of the Convention in New Zealand. For the reasons given by the Authority in its Memorandum No 2 dated 15 December 1994, the application was granted. The Authority's Memorandum was in the following terms:

The background to this case is set out in Memorandum No. 1 dated 15 November 1994. A full day fixture was to have commenced today at 10.00am.

On the morning of 14 December 1994, the Authority received from the solicitors for the appellant:

(a) A bundle of translated letters.

(b) A signed brief of evidence by Mr Adam Williams who, it will be recalled, is an immigration consultant trading as A.T.C. Immigration. The relevant point is that Mr Williams was formerly in the employ of the Immigration Service and in that capacity worked in the Refugee Status Branch for five months.

According to his brief, Mr Williams will say that when his immigration consultancy was first instructed by the appellant, Mr Williams concluded that the appellant was sincere in his claim to be in fear of persecution at the hands of the authorities in the People's Republic of China. Being aware that the then decline rate in the Refugee Status Branch "was approximately 95%", Mr Williams was of the opinion that the appellant would have to prove his claim beyond doubt. He therefore advised the appellant to deliver a letter to the Chinese Consulate in Auckland opposing "the Chinese regime" and then to "protest openly" outside the Consulate. This, Mr Williams believed, would prove that the appellant's claim was genuine. The appellant acted on the advice thus received and now stands in jeopardy of an allegation that a significant part of his refugee application has been contrived.

In justifying the advice given by him to the appellant, and drawing on his personal experiences, Mr Williams' brief makes observations about the Refugee Status Branch. There is no need to detail the claims made. It is sufficient to note that Mr Williams will say that lip service only was paid to the Refugee Convention and there was a deliberate policy to frustrate its application.

The allegations made by Mr Williams are, as may be expected, controversial.

The Authority accordingly caused a copy of Mr Williams' brief to be served on the Immigration Service and Miss Scott has appeared today for the Service. She says that the allegations in Mr Williams' brief are rejected. She seeks an opportunity for the Immigration Service to be heard by way of questioning Mr Williams, by way of calling evidence in rebuttal and by way of making submissions. She points out that as notice of the allegations was received by the Immigration Service only yesterday, there has been inadequate opportunity to prepare. An adjournment has accordingly been sought.

Appreciating the inconvenience that would be caused by a further adjournment of an already part-heard matter, Miss Scott has submitted that it is open to the Authority to rule that the only relevant issue in relation to Mr Williams is whether he gave to the appellant the advice in question. His reasons for giving the advice, on her submission, are irrelevant. On that basis no weight need be attached to the balance of his evidence and the Immigration Service would then seek to take no further part in the hearing. She has stressed that the appellant should not be penalized for the poor advice he has received.

Mr Treadwell's submission is that all of Mr Williams' evidence is relevant as good faith on the part of the appellant and also Mr Williams could have a material bearing on the application of the principles recently discussed in Refugee Appeal No. 2254/94 Re HB (21 September 1994). He observes that if the enquiry is limited to the question whether the advice was given, and excludes the reasons or the bona fides of the advice, then the system would be opened to abuse by unscrupulous consultants.

The next issue addressed in counsels' submissions was whether the loss of time which would attend an adjournment of the hearing could be minimized by completing the evidence of the appellant today. Miss Scott was content for this course to be followed with the proviso that the appellant's evidence not address his actions subsequent to his arrival in New Zealand on 15 April 1994. This aspect of his evidence would have to be covered at the adjourned hearing along with Mr Williams' evidence.

After taking into account the submissions for the Immigration Service and the submissions for the appellant, the Authority has reached the following conclusions:

1.   Until it has heard all the evidence and submissions, the Authority cannot rule, in advance, whether the presence or absence of good faith on Mr Williams' part has a bearing on the outcome of this case.

2.   Once an enquiry commences as to whether Mr Williams honestly held the opinions detailed in his brief of evidence, it is inevitable that the truth of those opinions also comes into issue.

3.   Given the controversial, if not sensitive, claims made by Mr Williams, the interests of fairness require that the Immigration Service be afforded an opportunity to be heard. For that opportunity to be a meaningful one, adequate time for preparation must be afforded.

4.   It is inevitable, therefore, that the hearing must be adjourned.

5.   With regard to the suggestion that the appellant's evidence be completed today with the exception of his actions in New Zealand, the Authority is of the view that it is neither practical nor fair for the appellant's evidence to be divided in the way proposed. The part-heard nature of the case is already unsatisfactory. To resume the examination of the appellant today in relation to some, but not all issues, will compound the problem. He will be at a significant disadvantage by being questioned at the next hearing out of context of the rest of his evidence on what could be an important part of the case.

In the result, this appeal is adjourned to a date to be fixed. It is presently estimated that two days will be required. If either Mr Treadwell or Miss Scott subsequently concludes that further time will be required, they are asked to notify the Secretariat at the earliest opportunity so that appropriate arrangements can be made. It is better that a conservative estimate of time be given so that once the hearing resumes it will proceed to a conclusion. Any further adjournment is likely to cause considerable hardship to the appellant.

The Authority further directs that the briefs of evidence to be relied on by the appellant and by the Immigration Service are to be filed and exchanged one week before the resumed hearing.

A copy of this Memorandum is to be sent to Mr Treadwell and to Miss Scott.

The Secretariat subsequently set the appeal down for hearing on 14 and 15 February 1995. Regrettably, the Secretariat failed to notify the Immigration Service of the fixture and on the application of Miss Scott, a further adjournment was granted to 5 and 6 April 1995, which dates were subsequently amended to 30 and 31 March 1995, in order to accommodate the wishes of the Immigration Service. The Authority on 14 February 1995 issued Memorandum No 3 which is in the following terms:

In December 1994, this case was set down for hearing on 14 and 15 February 1995.

Regrettably, the Secretariat failed to notify the New Zealand Immigration Service of the fixture, an oversight which was only discovered by the Authority and the Immigration Service on Thursday, 9 February 1995.

The Authority has been advised that because of the late notice received by the Immigration Service:

(a) None of the solicitors in the Auckland Regional Office of the Department of Labour are available today.

(b) It has not been possible for the Immigration Service to comply with the following direction made by the Authority in Memorandum No. 2:

"The Authority further directs that the briefs of evidence to be relied on by the appellant and by the Immigration Service are to be filed and exchanged one week before the resumed hearing."

Mr Treadwell has advised that the appellant does not oppose the adjournment requested by the Immigration Service.

In the circumstances, the adjournment application is granted.

The Authority directs that the appeal be heard on 5 and 6 April 1995, being the earliest available date taking into account Ms Gutnick's other commitments in the Canberra office of the UNHCR.

The direction in Memorandum No. 2 that the parties file and exchange all briefs of evidence one week before the resumed hearing stands.

In anticipation of the resumption of the hearing on those dates, the Authority wishes counsel to give consideration to whether the hearing of the disputed evidence should be conducted in an adversarial as distinct from an inquisitorial fashion. See Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 113 ALR 737 (FC:Keely J). In this context useful reference might also be made to Badger v Whangarei Refinery Expansion Commission of Inquiry [1985] 2 NZLR 688 (Barker J).

A copy of this memorandum is to be sent to Mr Treadwell and to Miss Scott.

Notwithstanding the Authority's direction that the parties file and exchange all briefs of evidence one week before the resumed hearing, Mr Treadwell was not served with the Immigration Service briefs until 3.00pm on 29 March 1995, the day before the hearing was to have resumed. Accordingly, at the commencement of the hearing on 30 March 1995 Mr Treadwell sought an adjournment of one day. That application was granted.

For these reasons, the hearing of the appeal did not resume until the morning of 31 March 1995. The entire day was occupied with the hearing of the evidence of Mr Williams and the two Immigration Service witnesses, namely Mr R W Heesterman who from February 1993 to May 1994 was the Branch Manager of the Refugee Status Branch, and Ms JM Tims who at the relevant time was also employed in the Refugee Status Branch as an immigration officer. Although the Authority conducts its hearings in an inquisitorial manner it was decided, with the consent of counsel, that given the controversial nature of the allegations made by Mr Williams, the Authority would be assisted were the evidence of Mr Williams, Mr Heesterman and Ms Tims to be given by way of examination in chief, cross-examination and re-examination as in an adversarial setting. The jurisdiction of the Authority to conduct the proceedings in a part-inquisitorial and part-adversarial manner is supported generally by Badger v Whangarei Refinery Expansion Commission of Inquiry [1985] 2 NZLR 688, 705 (Barker J) and more particularly by Minister for Immigration, Local Government and Ethnic Affairs v Immigration Review Tribunal (1993) 113 ALR 737, 744 (FC:Keely J). It was accepted by all parties that the appellant himself would not be subjected to the adversarial process given the generally inappropriateness of such approach in the refugee determination inquiry.

When the hearing resumed on 3 April 1995 the Authority had before it a more accurate translation of the exhibits discussed with the appellant on 15 November 1994. The Authority was also presented with further documentary evidence. The Authority accordingly resumed its questioning of the appellant but because the hearing could not be completed that day it continued into 4 April 1995.

At the conclusion of the hearing on 4 April 1995 Mr Treadwell sought and obtained leave to make further investigations in both China and Fiji. A direction was made that all further evidence and submissions were to be filed by 2 May 1995. In this regard it should be recorded that for her part, Miss Scott did not seek to be heard beyond the submissions she made at the conclusion of the hearing of the evidence of Messrs Williams and Heesterman and Ms Tims. Indeed, on her application, she was excused from further attendance after 31 March 1995, she being content that the Authority continue with the hearing of the appellant's evidence and of Mr Treadwell's submissions in her absence. We are of the view that the limited involvement of the Immigration Service in this case has been a proper one.

In a Memorandum dated 16 June 1995 but not received by the Authority until 20 June 1995, Mr Treadwell made closing submissions in which he specifically advised that the appellant did not wish to adduce any further evidence on the issues which arose during the course of the hearing. Those submissions have been taken into account by the Authority in the preparation of this decision.

As mentioned, the Authority regrets the delay in the delivery of this decision. However, for the reasons given, the course of the hearing has been both complex and difficult. In addition, Ms Gutnick is based in Canberra and this has led to delay in the discussion of the issues raised by the case and in the finalizing of this decision.

THE APPELLANT'S CASE

Given the protracted nature of the hearing, it would be impracticable to set out at length the appellant's evidence. We intend to provide a short summary only of the more significant aspects of his case. Our credibility finding in relation to his claims will follow in a separate section.

The appellant is a 35 year old single man who has lived most of his life in Guangzhou City, situated in the southern province of Guangdong. His father died in 1979. The appellant's mother is still alive and lives in the family home situated in Guangzhou City. The appellant has three sisters and two brothers. All of the sisters are married and have set up their own households. The two brothers continue to live in the family home. One of the brothers is married, the other is not.

During the Cultural Revolution it is said that the family suffered considerably because the appellant's father was accused of being a capitalist. He was sent to a re-education camp for several years and the three sisters were sent to different parts of China to work on farms. During these years the appellant was disadvantaged at school in different ways because of his family background. When he left school he was not allocated to a work unit and was not allowed to attend university. Using his own initiative, the appellant "apprenticed" himself to a family friend who did carpentry work in his spare time. Eventually, in 1982 the appellant was permitted to join a work unit working first as a carpenter but subsequently rising to the position of draughtsman in 1986. By 1989 he had been promoted to the position of supervisor, specializing in interior decoration. He described his work as the installation of ceilings, floors, window frames and the like and then painting them. From time to time he would be required to travel to other cities and other provinces to supervise work being done in these different places by his work unit. In Guangzhou City itself, he said that as a supervisor he spent little time in the office as he would need to make site visits to oversee the other artisans. His mode of transport was a bicycle. He said that there were a few hundred persons employed by the work unit. He himself was at a management level three steps from the top. That is, there were only two levels more senior than his.

The appellant accepts that although the family suffered great hardship during the Cultural Revolution no further problems with the authorities were encountered after the death of the father in late 1979.

The appellant's application for refugee status is based on his claim to have been involved in the pro-democracy demonstrations which took place in Guangzhou City between May 1989 and 5 June 1989.

The appellant claims to have been involved in some 10 to 20 of such demonstrations, the first occurring in early May 1989 and the last on 5 June 1989. He said that initially his involvement was simply that of an ordinary demonstrator. However, he later began to encourage members of his work unit to attend. Initially only a few responded to his suggestions but as the movement grew, approximately 100 to 200 took part in the protest marches. He said that he was also able to persuade two other supervisors in the work unit to become involved and they, in turn, encouraged people under their supervision to become active participants too. The appellant says that he knew the two other supervisors well and they often visited each other's homes. They felt encouraged by the growing nature of the pro-democracy movement and the three of them became actively involved in the printing of pamphlets or flyers which they would then distribute at demonstrations.

The appellant said that from approximately mid-May 1989 he stopped attending the work unit office although he did continue to travel to various work sites to supervise the work being done there. However, much of his time was involved with protest activity. His absences from work were not noticed because if he was not at one place, it was assumed that he was at another, or travelling in between. His last day at work was at the end of May 1989.

After the demonstration on 5 June 1989, the appellant was warned by a friend called Mr M that as the police and army were patrolling the demonstration routes and sites, the appellant should leave Guangzhou City. He told the Refugee Status Branch that this friend had "inside information" that the authorities were ready to arrest anyone who had participated in the movement. The appellant passed this message on to the other two supervisors and on 6 June 1989 he travelled to a village in Shen Zhen where he stayed for the next six months. He says that he encountered no problems during this time as he had once supervised a project there for one month and his face was therefore familiar. He told people that he was there on holiday. In addition, in the locality of the village in which he was staying there were a lot of foreign people and it was for these reasons that the neighbourhood committee did not ask any questions about him or report his arrival to the authorities. During his time in Shen Zhen, the appellant remained in telephone contact with his family as there is a telephone situated in the family home. Contact was weekly. He learnt that in late June or early July 1989 two officers from the Public Security Bureau (PSB) visited the family home in search of the appellant. They were told by the appellant's mother that she did not know where he was. She was told that she was to report the appellant's return. He also learnt that in July 1989 he had been dismissed from his work unit for reason of his participation in the protest marches. The two other supervisors were likewise dismissed. The appellant says that there were only three dismissals notwithstanding that a large number of other employees had participated in the demonstrations. He believes that only the three supervisors were dismissed because they were seen to have had a "leadership" role. From the information given to the appellant by his family and by his friends, he understood that no member of the work unit had been interviewed or arrested by the PSB. His two supervisor friends had escaped. One was believed to be living under an assumed name in another province. The whereabouts of the other was not known.

Because the appellant feared that he would eventually be located by the authorities, he arranged to be smuggled into Hong Kong at night in a fishing boat. He says that his arrival in Hong Kong was in December 1989. There he stayed for the next three years until he left for Fiji on 18 November 1992. During this three year period he stayed in accommodation provided by a relative. He hardly ever ventured out as he had no identity papers and feared apprehension by the Hong Kong authorities and repatriation to China. During this time he continued to be in telephone contact with his family every one to two months, as well as with other friends. He also received letters from his family. The appellant attributes the Fiji connection to a friend who was living in Fiji and who offered to assist the appellant's entry into that country. After some delay this friend was able to arrange an entry visa to Fiji. Apparently three such entry visas were arranged. The first two expired before the appellant was able to obtain a PRC passport. The first entry visa was issued in November 1991. The second was issued on 14 April 1992 and was current for a period of three months. The last entry visa was issued in late 1992. The appellant was scheduled to leave Hong Kong by air for Fiji on 18 November 1992.

The appellant says that in September or October 1991 he had asked his family to obtain for him a PRC passport. All he did was to supply a set of passport photographs. He signed no form or any other document. On 16 November 1992, two days before the appellant's scheduled departure date, his Hong Kong relative crossed into China, uplifted from the appellant's family the passport and returned with it to Hong Kong on the same day. According to the brief and rather vague statement from this person, when he arrived at the Hong Kong-China border he met a person who went into "the custom" for about one hour with the new passport. When he returned, the previously unused passport now contained a Hong Kong transit visa good for a double journey "valid for presentation on or before 16 February 1993". In addition there was a Hong Kong immigration arrival stamp dated 16 November 1992. The appellant says that the cost of obtaining the passport and the allegedly false Hong Kong immigration stamps was RMB 40,000.

As mentioned, the appellant departed Hong Kong on 18 November 1992 and arrived in Fiji the following day, 19 November 1992. The appellant remained in Fiji until he left for New Zealand on 15 April 1994. During this time he initially held a visitor's permit. However, on 16 August 1993 he was issued with a work permit. The appellant says that in Fiji he worked for two different people doing either knitting or carpentry work. He says that he was not aware that in his New Zealand visa application he was described as a production supervisor for a knitting mill situated in the Vatuwaqa Industrial Sub-Division in Suva. The application asserted that the appellant was intending to spend the Easter holidays with a director of the company said to be a resident of Auckland. A visitor's visa permitting entry for one week was sought. The visa application was submitted to the New Zealand Embassy on 18 March 1994 and granted on 11 April 1994.

Following his arrival in New Zealand on 15 April 1994, the appellant instructed the immigration consultant Mr Williams. It is said that acting on the advice given by Mr Williams, the appellant attended at the PRC Consulate in Auckland and there delivered a letter which identified the appellant by name, confessed to his involvement in the pro-democracy demonstrations in Guangzhou, detailed the appellant's family background and in particular the misfortunes which had befallen his father, brother and sisters during the Cultural Revolution and made a point of noting that the appellant has applied for refugee status in New Zealand. The appellant complained about having being sent into exile by political repression in China. The letter concluded with an expression of concern about his relatives at home. The last paragraph of the English translation is in the following terms:

"I beg the Ambassador of the Chinese Embassy, to order the Public Security Bureau in Guangzhou to cease to bothering my mother anymore so that she can live out her remaining years peacefully and give her a chance to enjoy the vest few last years of her life [sic]"

The document ends with the appellant's signature and the date.

On the same occasion the appellant arranged for himself to be photographed outside the Consulate building. With his back to the building, he unfurled three rather modestly proportioned placards bearing the inscriptions (in Chinese characters):

·        "Return my freedom"

·        "Stive for democracy and freedom"

·        "Down with the bureaucrats"

Two days later, on 21 April 1994 the appellant's refugee application was filed. The application and accompanying documentation makes no mention whatever of the appellant's visit to the Consulate.

On 31 May 1994 the appellant attended the Refugee Status Branch for an interview. He was accompanied by Mr Williams. At no time during this interview did either the appellant or Mr Williams make mention of the visit to the Consulate nor were the photographs and related documentation produced.

As is standard procedure, an interview report summarizing the interviewing officer's understanding of the appellant's case was sent to Mr Williams on 2 June 1994 for comment or amendment.

Subsequently, an undated letter from Mr Williams was received by the Immigration Service detailing the appellant's visit to the Chinese Consulate and annexing a copy of the letter allegedly delivered on that occasion together with other related evidence.

By letter dated 24 June 1994 the refugee application was declined on the grounds that the appellant's fear of persecution was not well-founded. From this decision the appellant appealed.

In support of the appeal to this Authority, the appellant has produced additional documentation comprising further letters received from family and friends together with letters addressed to Mr Treadwell who, subsequent to receiving instructions, had asked the appellant to obtain confirmatory evidence. We do not intend to go through this correspondence in detail. We will note only the following points:

(a) In a letter dated 13 February 1993 from the appellant's former girlfriend addressed to him in Fiji she remarks (according to the English translation) that as at that date "it has been two years since you left".

(b) In a letter dated 22 March 1993 from the appellant's elder sister to the appellant in Fiji she states (according to the English translation):

"Out there, no matter how difficult circumstances become you must not to return here. Because after you have left, the Neighbourhood Committee and local PSB had often come looking for you, asking mother whereabouts you were and forced mother to study. Mother therefore insisted that we tell you that despite everything you are not to come back, so as to avoid the possibility of being caught and put in jail."

(c)  In a letter dated 9 April 1993 to the appellant in Fiji from one of his friends, reference is made to the fact that the friend had learnt that the PSB still called at the family home from time to time looking for the appellant. The letter also notes that the author is working with a mutual acquaintance who worked in the same work unit as the appellant. Mention is made that the author and the mutual acquaintance were working on various projects together.

(d) In a letter dated 14 August 1993 from the appellant's eldest sister, sent to the appellant in Fiji, it is stated (according to the English translation) that:

"About the question you mentioned in your letter as to whether the PSB Comrades still come to our house looking for you and make mother study, after you left, until today, they kept on coming, more than a few times a month. Mother can now understand what they were asking, but unlike before is frightened all day for your safety. That's because they can no longer catch you."

(e) There is a further letter from the appellant's eldest sister to the appellant in Fiji. It is dated 29 September 1993. It states (according to the translation):

"People working in street neighbourhood committee came and asked Mum about you. They do that every year."

(f)   In a letter from the eldest sister dated 9 June 1994 addressed to the appellant in New Zealand no reference is made to continuing visits by the PSB.

(g) In a letter dated 16 October 1994 from the eldest sister to Mr Treadwell there is mention, for the first time, of an arrest warrant for the appellant. According to the English translation, the relevant passage of the letter is in the following terms:

"My brother participated in the 4th of June pro-democracy movement in 1989. Every government department is dissatisfied with him. After the failure of the pro-democracy movement soon after he left the government started to arrest people everywhere. My brother was one of those who was wanted. The local police station came with an arrest warrant. They could not find my brother and were very angry. They come to my house frequently to intimidate my family, especially my mother, who was badly treated and cried. My mother is old and has had a life under political persecution. She is deeply concerned about the safety of my brother. Even though quite a few years have passed since the June 4th incident, they still send out local police station officers to search for my brother, interrogate the whereabouts of my brother, especially around June 4th and National Day period, they come to search more frequently and also ask to tell my brother to return home for interview."

(h)  There is then a letter dated 8 December 1994 from the relative in Hong Kong confirming that the appellant was hiding in Hong Kong from December 1989 to November 1992.

(i)   In a separate letter the relative confirms (in brief and somewhat vague terms) that he went to China to uplift the passport and returned with it the same day. It is this letter which refers to a person going to "the custom" for about one hour.

(j)   Finally, there is a statement by a witness who was a neighbour of the appellant in Guangzhou City and who attended the same primary and secondary schools as he. The witness states that she herself met the appellant in Hong Kong in 1991 on her way to New Zealand to attend a language course. She subsequently returned to China. Later she made a further trip to New Zealand and on her way to this country in November 1992 visited the appellant once more in Hong Kong.

On this evidence the appellant claims that were he to return to China he faces a real chance of persecution for reason of his participation in the pro-democracy demonstrations detailed earlier. He further claims that his actions at the Chinese Consulate at Auckland on 19 April 1994 increase that risk.

THE ISSUES

The Inclusion Clause in Article 1A(2) of the Refugee Convention relevantly provides that a refugee is a person who:

"... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."

In terms of Refugee Appeal No. 70074/96 Re ELLM (17 September 1996) the principal issues are:

1.   Objectively, on the factrs as found, is there a real chance of the appellant being persecuted if returned to the country of nationality?

2.   If the answer is Yes, is there a Convention reason for that persecution?

ASSESSMENT OF THE APPELLANT'S CASE

To a very large degree the resolution of this case turns on the credibility of the appellant. After close examination of the case we have come to the conclusion that the appellant is not a credible witness. In arriving at this finding the Authority has taken into account the following:

1.   Central to the appellant's case is the claim that as a result of his involvement in the demonstrations he is wanted by the PSB. He says he knew of the PSB interest while he was in hiding in Shen Zhen as his family reported their visits to him over the telephone. It was allegedly because of the possibility of arrest that he went to Hong Kong. While in Hong Kong he maintained telephone contact with his family and the alleged continuing visits by the PSB were reported to him. But the supporting evidence has difficulties. In particular, when one turns to the sister's letter dated 22 March 1993, written nearly four years after the PSB first came looking for the appellant, its terms do not ring true. Rather than reading as a note from a sister to a brother who has been on the run for four years, it reads as if the sister was communicating fresh evidence to her brother:

"As you are now alone in the outside world, everything you do, you must think carefully first. Now that you managed to escape from China, consider yourself lucky. Out there, no matter how difficult circumstances become you must not return here. Because after you have left, the Neighbourhood Committee and local PSB had often come looking for you, asking mother whereabouts you were and forced mother to study. Mother therefore insisted that we tell you that despite everything you are not to come back so as to avoid the possibility of being caught and put in jail."

We do not find this letter convincing.

Furthermore, in none of the evidence or correspondence tendered prior to 15 November 1994 was there ever a suggestion that there existed a warrant for the appellant's arrest or that he believed that a warrant existed. Yet in her letter to Mr Treadwell dated 16 October 1994 the sister states:

"The local police station came with an arrest warrant. They could not find my brother and were very angry. They come to my house frequently to intimidate my family, especially my mother, who was badly treated and cried."

It is strange, to say the least, that this same sister has never mentioned an arrest warrant to the appellant either in her letters to him or in discussion during the frequent telephone calls. When this was put to the appellant at the hearing on 15 November 1994, he insisted that until the sister's communication dated 16 October 1994 arrived in New Zealand, he had never been told that a warrant for his arrest existed. Asked how it was possible that this information had been concealed from him for over five years, the appellant said that his family did not want to make him worried. It was put to the appellant that there was little credibility to this assertion as his family had disclosed on numerous occasions that the PSB visited the home frequently, had forced his mother "to study" and had frightened his mother considerably. In the circumstances it was difficult to believe the claim that the existence of the warrant had been concealed in deference to the appellant's feelings. To this the appellant said that his exile had been difficult enough and that if he had known about the warrant his burden would have increased substantially. He said that his family had given him only enough information to persuade him not to return to China. Asked what difference news of the warrant would have made, he said that he would have been more frightened. We found the appellant's protestations unpersuasive and insincere. He was asked whether, subsequent to the receipt of the sister's letter dated 16 October 1994, he had questioned her or other members of his family about the warrant and the circumstances in which they had come to learn of its existence. The appellant said that he had not, because it was "too expensive to discuss politics" over the telephone. He confined contact to matters concerning health and welfare. The Authority found a distinct lack of sincerity in the appellant's response and the implicit assertion that the telephone calls were kept as short as possible at the expense of ascertaining important information which could have a considerable bearing on his refugee application. The appellant's case is characterized by his studied avoidance of eliciting relevant information which could assist his case.

2.   In this regard, it is to be recalled that the two supervisors dismissed at the same time as the appellant were claimed by the appellant to be persons he knew well and to be trustworthy. They had visited each other frequently at their respective homes.  The Authority was therefore interested to learn what had happened to these two men, as well as to other members of the work unit. The appellant said that at the time he left for Hong Kong no member of the work unit had been arrested and no member had been interviewed by the PSB. All he knew was that the two supervisors had gone into hiding. He has subsequently learnt that one is now living in a different province in China, has married and changed his name. He has no information about the second man. Asked whether he had made any inquiries as to what had happened to the two men, the appellant said that he had not, even though he knew their families well. He had not asked any member of his family to go to the relevant addresses to make inquiries. Nor while in Shen Zhen and Hong Kong had he made telephone contact with the families or tried to communicate with them in some other way. Asked why he had not made telephone contact with the two men or their families in the two years that he spent in Hong Kong, the appellant replied that he had "had no reason to". He also admitted that at no time up to and including 1995 had he made any attempt to find out what had happened to them. The Authority finds that the appellant has at all times had it within his power to make inquiries with persons who could reasonably be supposed to have information concerning the fate of the two men, yet the appellant has deliberately refrained from making such inquiry. We are of the view that this situation has come about because the appellant has made up his story and there is no factual substratum to his claims. We are fortified in this view by reason of the fact that the appellant has been in correspondence over the years with a friend of his who, in a letter dated 9 April 1993, reported that he (the friend) was now working with a named individual whom the appellant said was a member of his (the appellant's) work unit. The friend's letter reports that the friend and the work unit member are working on many projects (which the appellant said he understood to mean projects connected with the construction industry). The appellant therefore had direct access to a member of his former work unit of whom further inquiries could be made as to the fate of the two supervisors and indeed, the fate of other members of the work unit who had taken part in the demonstrations.

3.   We have great difficulty in accepting the appellant's claims concerning his passport.  He says that having provided only two passport photographs, a relative crossed the border, uplifted a passport and returned with it to Hong Kong. The passport was "authentic" in every respect, bearing a transit visa for Hong Kong and a Hong Kong mmigration arrival stamp for the relevant day, namely 16 November 1992.  Inherent in the appellant's claim are a number of implausibilities. First, that the supplier of the passport could obtain false Hong Kong immigration endorsements. Second, that the passport should miraculously materialize just two days before the appellant's scheduled departure for Fiji on 18 November 1992, the appellant having first asked his family to arrange the passport for him in September or October 1991. Third, there is the remarkably fortuitous circumstance that the passport surfaced at exactly the point in time when the appellant was holding a valid visa for Fiji. The appellant claims that at the relevant time a lot of officers in the Hong Kong immigration department wanted money. The inference is that they were prone to corruption. We have received no evidence from the appellant as to the level of corruption, if any, in the Hong Kong immigration department and we are not prepared to assume, without more, that stamps which are ex facie authentic, have been obtained in the manner claimed, particularly bearing in mind our overall concerns as to the appellant's credibility.

In this regard, the appellant seems to have enjoyed, at every turn, remarkably benign circumstances. For example, he attributes his escape to the fact that his friend Mr M warned him on 5 June 1989 to leave. He said that Mr M had inside information that arrests were about to begin. Fortuitous indeed. Secondly, it was fortuitous that the appellant had recently worked in a village in Shen Zhen and he was therefore able to hide there with relative ease because his was a familiar face and because there were a lot of foreigners in that area. The surfacing of a PRC passport two days prior to his departure for Fiji, complete with the requisite Hong Kong immigration stamps, is said to be serendipitous. This accumulation of unlikely events gives the Authority very real cause for concern.

4.   Likewise the appellant's departure from Fiji was accompanied by somewhat odd circumstances. In support of the New Zealand visa application there was tendered to the New Zealand Embassy in Suva bank documents from the Bank of Hawaii in the appellant's name except that his middle name "[R]" had been misspelt "Yong". We note in this regard that the appellant's name as written in his passport uses the letter "R" indistinctly and it can be read as a "Y". The relevant page from the bank book shows that as at 13 January 1994 the balance in the appellant's account at Suva was then FJD$2,000. The document shows a withdrawal of $100 on 13 January 1994 followed by a cash deposit on 7 March 1994 in the sum of $6,000. The balance as at the date of the deposit became F$7,900.

The appellant denies all knowledge of this account. He says that his employer in Fiji told him that in order for the appellant to obtain a visitor's visa to travel to New Zealand for one week, he would need to show "a healthy balance" in a bank account. The appellant says that it is his belief that his employer (or someone on his behalf) opened the account in the appellant's name and deposited the money into it, but without the knowledge of the appellant.

The Authority finds this claim difficult to believe. The appellant said that he did not think of coming to New Zealand until the end of February 1994 following a telephone discussion with the lady who had attended primary and secondary school with him in Guangzhou City. His employer's statement that the appellant would need to show a healthy bank account was not made until a fortnight before the appellant's departure for New Zealand. Given that the appellant arrived in New Zealand on 15 April 1994, the statement would have been made in early April 1994 or at the earliest, in late March 1994.

The appellant's claims are entirely inconsistent with the document. Given that we have not been provided with a full copy of the savings book, it is not known when the account was opened. What is known is that as at 13 January 1994 the balance in the account stood at $2,000 and, apart from the withdrawal on 13 January 1994 in the sum of $100, this was the balance of the account until 7 March 1994. The Authority finds the appellant's account wholly unlikely. It is characterized by implausibility. It is a claim that some unknown person in Fiji anticipated by some months the appellant's need to "show a healthy bank balance" and took steps to ensure that by the beginning of 1994 $2,000 was in the account. This person subsequently paid out, some 11 days prior to the visa application, the not inconsiderable sum of FJD$6,000 in an act of selfless sacrifice to assist the appellant to come to New Zealand. We simply don't believe the appellant.

5.   We turn now to the matter of the claim that the appellant delivered a letter of protest to the PRC Consulate in Auckland and posed there for photographs while holding up the rather modest-sized protest placards. It is to be remembered that it is asserted that the appellant took these steps on the advice of Mr Williams in order to strengthen his refugee claim as this was the only way that Mr Williams could find to overcome the alleged "culture of decline" which he had detected in the Refugee Status Branch. It is also to be remembered that the date of the alleged protest at the Consulate was 19 April 1994. The refugee application was not submitted until 21 April 1994.

The visit to the Consulate and alleged protest are not referred to at all in the refugee application submitted on 21 April 1994. This itself is remarkable.

Then, on 31 May 1994, when both the appellant and Mr Williams attended at the Refugee Status Branch for the interview, no mention whatever was made of the protest letter or of the visit to the Consulate. We find this astonishing, to say the least given the purported justification for the appellant being advised to take these extraordinary steps.

As counsel in his submissions acknowledged, it was not until the appellant and Mr Williams were offered an opportunity to comment on the interview report that the Refugee Status Branch were told about the visit to the Consulate and provided with a copy of the letter of protest and the photographs.

In this regard it is clear that the appellant did attend at the Consulate on some undetermined date and was there photographed (with his back to the building) holding three small placards which are little wider than his shoulders. Observers from the Consulate would have had great difficulty in discerning what the appellant was doing. He is shown in poses either just on the footpath, or one or two steps within the Consulate driveway. We take the view that the photographs do not show the appellant doing anything more than simply posing for the purpose of lending spurious credibility to his refugee claim. In the circumstances, we do not accept that the letter to the Consul was in fact delivered. Nor do we accept that the appellant's visit to the Consulate took place on 19 April 1994.

6.   The situation is compounded by the explanation proferred by the appellant for making a visit in the first place.  The Authority confronted him with the fact that were he a genuine asylum seeker, his visit to the Consulate was foolhardy in the extreme.  Not only would it increase the danger to the appellant personally, but the terms of the letter were very likely to create a danger in China for the appellant's mother and for other members of his family.  Asked why he had been prepared to jeopardize the safety of family members, the appellant initially said that when he first arrived in New Zealand he did not know what to do and his mind was a complete blank. He was just doing what Mr Williams suggested.  However, he later added that prior to visiting the Consulate he in fact telephoned his family in China and asked them for their opinion as to whether the letter should be delivered.  He claims that his family encouraged him to go ahead with the planned protest.  It was put to the appellant that his consultation with his family was hardly the hallmark of a person who was confused and whose mind was completely blank.  The appellant insisted that his family approved of his actions at the Consulate.

The appellant was asked whether he had at any time subsequent to April 1994 inquired of his family whether there had been visits by the PSB arising out of the Auckland protest or any other form of official retribution. The appellant's somewhat astonishing response was that since the visit he and his family have not discussed the matter. They speak only of "family matters". He had not asked whether they had had any problems as a result of his actions in Auckland.

7.   Our list of credibility concerns should be lengthened.  We mention briefly only two further matters.  The appellant told the Refugee Status Branch that he had been dismissed from his work unit because of his involvement in the protest marches. This information had been given by the work unit to his mother over the telephone on the day they rang her in July 1989 to request that the appellant attend the work unit to pick up his letter of termination. However, at the appeal hearing the appellant said that no reason for his dismissal had been given. Reminded of his answer at the Refugee Status Branch interview, the appellant changed his evidence to adopt what he had said at first instance. We do not take the view that this was a memory lapse on his part. The reason for his dismissal from the work unit goes to the heart of the appellant's case. It would seem that the appellant temporarily forgot a script that he had previously learnt.

We mention also that a letter from the appellant's former girlfriend dated 13 February 1993 commences with the words:

"It has been two years since you left."

Given that the appellant claims to have left China in December 1989, his former girlfriend is at least one year and two months out in her calculations. The appellant said that she was mistaken. We are of the view that we have not been told the truth by the appellant as to the actual date of his departure from China and as to the circumstances in which he left.

Overall our conclusion is that we do not accept any of the appellant's claims on the grounds that we have not been told the truth by him.

The only part of his case that we accept is that he is a citizen of the PRC and that on an unspecified date at Auckland he posed at the gate of the PRC Consulate for the purpose of having his photograph taken while his back was turned to the Consulate building.

In view of our findings, this appeal must be dismissed.

However, given that at least one day was devoted to the issue of good faith we intend to make brief observations concerning this aspect of the case.

THE GOOD FAITH ISSUE

Mr Williams was formerly an immigration officer with the New Zealand Immigration Service. In late October 1993 he was transferred to the Refugee Status Branch of the Service. He tendered his resignation on 18 January 1994 and his employment formally terminated on 25 February 1994. He alleges that officers in the Refugee Status Branch were trained to decline refugee applications and were specifically told that they had to keep the decline rate as high as possible in order to discourage other people from seeking refugee status in New Zealand and to prevent the circumvention of New Zealand's immigration laws. There is no need to go into the balance of his allegations. It is sufficient to say that he believes that his claims are borne out by the fact that the decline rate of refugee applications at the time he was approached by the appellant was approximately 95%.

The claims made by Mr Williams were vigorously challenged by Mr Heesterman who was the branch manager of the Refugee Status Branch at the time Mr Williams worked there. In this he is joined by Ms Tims who has been employed in the Branch since 1991 and who has been responsible for organising the training of officers rotated into the Branch from the Immigration Service. Having seen and heard the witnesses we do not accept the allegations made by Mr Williams, though it is possible that certain officers, notwithstanding their training, developed a "decline mentality" which was concealed from their superiors.

It is clear that the statistics show an unacceptably high decline rate over the relevant period and the Authority is aware that in the first years which followed the setting up of the current refugee status determination procedures in 1991, the Refugee Status Branch entered a steep learning curve as there was little prior experience within the Service of making refugee status determinations within a two tiered system as now contained in the Terms of Reference. Publicly available statistics show a pattern of uneven and ever increasing decline rates. Margot Staunton in "Figures Show Asylum Given Rarely" NZ Herald, Thursday, June 3 1993 reports a decline rate in 1991 of 48.3%. In information released by the Refugee Status Branch to the appellant's solicitors by letter dated 12 October 1994, the decline rate in 1992 was admitted to be 84% and for 1993 it was 94%. The decline rate in 1993 was consistent throughout the year. The article by Margot Staunton reports that as at mid-1993 the decline rate was 95.8%. The figures produced by Mr Heesterman show that in the period from October 1993 to June 1994 the decline rate (when adjusted to exclude humanitarian cases) varied between 84% and 90%.

The argument advanced by Mr Treadwell was that Mr Williams was genuinely concerned for the appellant's situation following his own personal perceptions of the working of the Refugee Status Branch. He held a genuine concern (whether warranted or not) as to the way in which refugee applications were being handled by the Branch. It was said that whether Mr Williams' allegations were accepted or not, the Authority could find that Mr Williams' views were genuinely held. In other words, it was the views, not the truth of them, that prompted him to advise the appellant to deliver the letter to the Consulate.

The significance of this submission lies in the fact that in Refugee Appeal No. 2254/94 Re HB (21 September 1994) 36 the Authority was called on to rule:

"...whether a person may become a refugee sur place as a result of his or her own actions and whether there is any requirement that those actions be carried out in good faith; or is it possible for refugee status to be granted to an individual who, having no well-founded fear of persecution, deliberately creates circumstances exclusively for the purpose of subsequently justifying a claim for refugee status. Put another way, are issues of good and bad faith relevant to determining whether a refugee claimant in a sur place situation is eligible for refugee status. It is an important issue given the limitless potential for non-refugees to manipulate circumstances to their advantage in order to secure a status to which they would not otherwise be entitled."

The Authority concluded that there is a good faith requirement. At page 59 it ruled:

"We intend adopting and applying the three-part classification devised by Grahl-Madsen, namely:

(1) Actions undertaken out of genuine political motives.

(2) Actions committed unwittingly, or unwillingly (e.g. as a result of provocation), but which nevertheless may lead to persecution "for reasons of" (alleged or implied) political opinion.

(3) Actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution.

Our decision to interpret the Refugee Convention as requiring, implicitly, good faith on the part of the asylum seeker turns on a value judgment that the Refugee Convention was intended to protect only those in genuine need of surrogate international protection and that the system must be protected from those who would seek, in a sur place situation, to deliberately manipulate circumstances merely to achieve the advantages which recognition as a refugee confers. The sooner abuses of this kind are detected and eliminated, the longer the integrity of the refugee status determination procedures and the protection afforded by the Convention will enable the bona fide asylum seeker to escape persecution. Clearly this is the underlying assumption of the Convention.

However, the good faith principle must be applied with caution, not zeal. The precise application of Grahl-Madsen's third category must be determined on a case-by-case basis. It may be that a balancing exercise is called for and a careful assessment made of all the circumstances, including the degree of bad faith, the nature of the harm feared and the degree of risk. See, for example, the earlier discussion of Bastanipour and the passage cited from Hathaway, The Law of Refugee Status 39. We anticipate that only in clear cases (and the present case is undoubtedly one) will an asylum seeker fall outside of the Refugee Convention by reason of an absence of good faith."

Mr Treadwell submitted that while the Authority might find that the actions of Mr Williams were foolish and misguided, they were not cynically manipulative and that his actions should been seen as falling short of conduct which would bring the good faith principle into play. In this respect it was argued that the appellant was an otherwise genuine refugee and the so called boot-strapping incident formed only one part of his claim; that having been in the country for just a few days he was vulnerable to the suggestions of and indeed manipulation by Mr Williams.

Our credibility findings preclude such an approach and we therefore do not have to consider the validity of the argument. We have found the appellant not to be a credible witness and we do not accept any part of his claims with the exception that he is a citizen of the PRC and that on an unspecified date at Auckland he posed at the gate of the PRC Consulate for the purpose of having his photograph taken. It is not possible on these findings to realistically suggest that the appellant's actions will place him at risk of persecution were he to return to China.

Even if we had found that in addition to posing for the photographs the appellant had also delivered the letter to the Consul, our conclusions would be no different. As there never was a basis for the appellant to claim refugee status in New Zealand, he could not create a pretext for advancing such a claim by adopting the ruse of visiting the Consulate, delivering the letter in question and posing for the photographs. The case is on all fours with Refugee Appeal No. 2254/94 Re HB (21 September 1994) and we find that the appellant's actions fall within Grahl-Madsen's third category, namely actions undertaken for the sole purpose of creating a pretext for invoking fear of persecution. There has been no truth to the appellant's claims concerning events within the PRC prior to his departure from that country, he is not at risk of fundamental marginalisation or disfranchisement there and he cannot willfully create a set of circumstances simply as a means of accessing the benefits of the Refugee Convention.

Our conclusion is that the actions taken by the appellant in Auckland not only do not create a real chance of persecution in the PRC, they are actions which, in any event, cannot bring the appellant within the Refugee Convention.

CONCLUSION

We find that the appellant is not a refugee within the meaning of Article 1(A)(2) of the Refugee Convention for the following two reasons:

1.   He does not have a well-founded fear of persecution for any of the reasons recognised by the Refugee Convention.

2.   In any event, as to the appellant's actions at the PRD Consulate at Auckland, as the appellant did not act in good faith in relation to those actions, they are excluded from consideration in assessing whether he is a person to whom the Refugee Convention applies.

Refugee status is declined. The appeal is dismissed.

"R P G Haines" ( Chairperson )