Chen Ru Mei v. Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal

CHEN RU MEI v. MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS AND REFUGEE REVIEW TRIBUNAL No. WAG1 OF 1995 FED No. 454/95

Immigration (1995) 130 ALR 405 COURT

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION

NORTHROP, SPENDER AND LEE JJ

HRNG

PERTH, 22 March 1995

#DATE 30:6:1995

#ADD 20:7:1995

Counsel for the Appellant: G.M. McIntyre

Solicitors for the Appellant: Dwyer Durack

Counsel for the First and Second Respondents: S. Owen-Conway, QC and P.J. Corbould

Solicitors for the First and Second Respondents: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:

1.   The appeal be allowed and the orders appealed from be set aside and in lieu thereof it be ordered that the application for review be granted and the matter returned to the Tribunal to be dealt with according to law.

2.   The first respondent pay the appellant's costs of the application to the Court and the costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the

Federal Court Rules.

JUDGE1

THE COURT:

NORTHROP, SPENDER AND LEE JJ

1.   This is an appeal from a judgment of the Court (Heerey J) dismissing an application under the Administrative Decisions (Judicial Review) Act 1977 ("ADJR Act") for an order to review a decision of the Refugee Review Tribunal ("the Tribunal") which determined that the appellant ("Chen") was not a refugee within the meaning of that term as used in the Migration Act 1958 ("the Act").

2.   The Tribunal delivered its decision on 20 April 1994. The application for review came on for hearing before his Honour on 18 November 1994. It was not submitted to his Honour that the Court's jurisdiction to deal with an application under the ADJR Act had been removed by s.485 of the Migration Act 1958 which came into effect on 1 September 1994.

3.   The Tribunal reviewed a decision of the first respondent ("the Minister"), made by a delegate of the Minister on 21 April 1992, that Chen was not, or did not have the status of, a refugee under the Act. Although the relevant provisions of the Act, and of the regulations made thereunder, have been amended on several occasions in the course of this matter, at material times, for the purpose of the Act, the term refugee had the meaning it has in the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 ("the Convention") as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol"). Pursuant to the Convention and the Protocol a refugee is defined as 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;..."

4.   Chen, although born in Malaysia, is a citizen of the People's Republic of China ("the PRC"). He is now 59 years of age. His wife and two children remain in the PRC.

5.   Chen entered Australia on a business visa on 3 November 1989. On 8 June 1990 he applied for a permanent entry permit on the ground that he was a refugee.

6.   The relevant facts as extracted and recited by his Honour in his reasons were as follows.

"The applicant's parents owned land on Hainan Island. In 1952 the family was dispossessed as part of a land reform program. The family was designated as 'landowner class'. The applicant's stepmother was arrested, criticised, beaten to the extent that she lost the sight of one eye, and publicly paraded through the streets. The applicant, who was then 17, fled to Beijing. He stayed in Beijing for nine years. In August 1961 he graduated from the China People's University. In October of that year he commenced work as a lecturer at the East China Institute of Chemical Technology. However before taking up this position his 'landowner' background was discovered. In 1963 he applied for permission to travel overseas to visit relatives but was accused by his superiors of 'betraying the motherland and admiring the capitalist life'. He was ordered to undergo self-criticism. A similar incident occurred in December 1970 when he was criticised because of his relationship with foreigners and accused of being a secret agent. He was required to hang wall posters, attend meetings and talks and undergo overnight interrogations. He became isolated and shunned by his friends. The campaign against him lasted for some time but eventually lapsed for lack of evidence. In the meantime, his employment duties were drastically changed. Up until October 1969 he had been a lecturer. From then until February 1974, although he remained in the employ of the Institute, he was required to work as a labourer. For part of that period, from November 1969 to 1971, he was engaged in forced labour in the countryside and at remote beaches. The applicant encountered severe obstacles in marrying and establishing a family. In 1968 his work leader told his fiancee about his background and advised her not to marry him. When she refused this advice she was required to move from Beijing to Nanking. In 1970 she was permitted to return to Beijing for three days to marry the applicant, but was then forced to return to Nanking. She and the applicant were separated for nine years and allowed only one reunion each year. The applicant's mother-in-law had to give up work to look after their child, in the process forfeiting her own right to a pension. Eventually the applicant was forced to look after the child himself at a men's dormitory and was forced out because of the inconvenience to other residents. He could not get household registration because the child, according to the authorities, should have been living with the mother, even though she was not in a condition to look after it. Food and other vouchers were dependent upon household registration. Life was very hard. Finally, in 1979, the applicant's wife was allowed to return to Beijing but it was not until 1982 that they were able to get a flat together and start a normal family life. The applicant believes that they only obtained the flat because the work unit leader did not want to create a bad impression for visiting overseas Chinese, the applicant's mother being on a visit at the time. In 1985 the applicant attended a Party meeting at which participants were encouraged to criticise colleagues. The applicant took the opportunity to criticise a teacher for revealing questions to certain students prior to the examination. However, those who initiated the meeting lost favour and participants such as the applicant were attacked and accused of using the meeting to attack the Party. The applicant was forced to make self-criticism which was placed on his file. In 1989 the applicant drafted a petition, which was signed by about 20 other people as well as himself, for the reopening of a newspaper which had been closed down by the local Party secretary. His work unit leader later spoke to him about the matter and he was transferred from teaching his speciality to subjects of which he had little knowledge. He was not granted promotion or salary increments.

Since his arrival in Australia the applicant has been involved with the Western Australian branches of two organisations, the Party for Freedom and Democracy in China (PFDC) and the Alliance for a Democratic China (ADC). In the PFDC the applicant has been deputy head of the propaganda department of the branch. He has written articles in the branch's magazines and advised its committee. He has been an active member of the ADC, made public speeches and participated in rallies and in particular annual commemorations of the Tiananmen Square massacre."

7.   The Tribunal described its task under the Act in the following terms:

"It is clear that the People's Republic of China is not a liberal and open society such as Australia and its citizens exist under a government which seeks intrusively to control the attitudes and behaviour of the general populace and does not shrink from fundamental breaches of human rights where its interests will be advanced. See, for example, the Amnesty International Report referred to above. The observation must be made, however, that the Convention does not offer protection against governmental behaviour of this type unless there is a real chance of persecution for a particular Convention reason. The further observation must be made that the duty of the Tribunal is to evaluate the circumstances of the individual applicant before it and assess the chances of this particular applicant being persecuted upon return at this time or within the reasonably foreseeable future.

The applicant's account of his life in the PRC and of his activities since his arrival in Australia is cohesive and consistent with the authoritative source materials detailing life in China over the relevant period. With some minor reservations which do not affect the ultimate determination, I have no difficulty in accepting his history. It makes very depressing reading and graphically illustrates the PRC system's capacity to unleash the forces of bureaucratic malice and persecution against those deemed not to conform. I have great sympathy for the applicant and for his long suffering family. Having made this point, the fact remains that the Migration Act 1958 spells out the duty of Members of the Refugee Review Tribunal in very much 'black and white' terms. The only issues which Members are able to consider are those relevant to an application of the definition of a 'refugee' set out in the Convention and Protocol.

The applicant's 'landowner class' background made him a prime target for persecution during the Cultural Revolution and his experiences prior to the time he and his wife were reunited in the late 1970s are very much explainable in terms of that period and its aftermath."

8.   Although it was not found formally by the Tribunal that Chen feared persecution if he returned to the PRC, it was implicit in the Tribunal's reasons that the Tribunal accepted that Chen had a genuine fear in that regard. The Tribunal found that if the fear was grounded upon Chen's membership of a particular social group, to wit "the landowner class", on the material before the Tribunal there was "no reason to expect" the resumption of the persecution on that ground directed against Chen until 1982. His Honour found that the Tribunal had concluded that fear of persecution on that ground could not be a well-founded fear. That finding was not challenged on the hearing of the appeal.

9.   The issue raised on the appeal was whether the Tribunal erred in finding that Chen did not have a well-founded fear of being persecuted for reasons of political opinion.

10. On that issue the Tribunal expressed the following conclusions:

"Whilst the applicant may well be the subject of unwelcome attention and discrimination, I find that there is no real risk that he would be persecuted because of his pro-democracy activities in Australia upon return at this time or within the reasonably foreseeable future.

The point was made by the applicant's adviser that the applicant was a teacher of 28 years experience who enjoyed particular standing at the East China Institute of Chemical Technology, was influential with the student body and had incurred Party displeasure as a result of his expression of dissent over the treatment of the editor and certain staff of the World Economic Herald. It was suggested that, as a result, he was a person who, if he chose to be critical of the Government upon return, was of such standing as to be able to embarrass the Government internationally or threaten its legitimacy in the domestic arena. Accordingly, he was likely to be the subject of persecution upon return. I do not accept his standing to be of such a nature. He is one of a great many teachers and lecturers with some localised degree of influence. That degree falls well short of the standard suggested. Because the applicant intends, if he returns to the PRC, to 'continue to express the same views concerning pro-democracy activities and to rail against corruption and the abuse of human rights' (see submission of 7 April 1994), it is suggested that it is unlikely he will be permitted to resume teaching. It is also suggested that he will have difficulty obtaining work in the public sector. The sum total of discrimination against the applicant for past pro-democracy activities in the PRC was enforced changes to the subjects he was permitted to teach and the absence of promotion or salary increments. These acts and omissions, which may well have been discriminatory, fall well short of persecution. The earlier period of forced manual labour in the late 1960s and early 1970s had nothing to do with pro-democracy activities. It is unlikely, in my view, that he would be disbarred from teaching or that he would be refused public sector work by reason of his past pro-democracy activities. Given past experience, it is equally unlikely that a continuation of the past level of dissent would engender consequences amounting to persecution as distinct from further acts of discrimination. Looking at the applicant's claims overall, I am unable to find that there is a real chance that he would be persecuted for a Convention reason were he to return at this time or within the reasonably foreseeable future."

11. In forming its conclusions the Tribunal had regard to several cables prepared by the Department of Foreign Affairs and Trade ("DFAT") in June 1993 based upon conversations DFAT officers had conducted with a former senior editor of a national daily newspaper in the PRC and with a prominent dissident released from detention in 1992. One of the cables included the following statements:

"The Chinese authorities would be unlikely to permit the return of those they judge would have the potential of using their former influence and positions at home to oppose the government in an effective and organised way through, for instance, large scale demonstrations, the formation of opposition groups, and the wide circulation of dissident periodicals. Our contacts noted that persons with such a potential are few in number: they would be those with an established high profile in China as protest leaders. The Chinese Government was not unduly perturbed by those who claimed to be leaders of pro-democracy organisations overseas but had not had a leadership role and a high public profile before they left China.

12. Even relatively well-known dissidents have been able to return to China without too much difficulty as long as they do not publicly advocate opposition to the Government. We have been informed by a reliable contact who knows them personally that two dissidents,.., and...returned in late 1992. Both...and...were active in the pro-democracy movement in June 1989 and reported to be key members of pro-democracy organisations overseas. Both were questioned when they returned by the Public Security Bureau but were not detained. We were told that both...and...are now engaged in commercial activities.

13. We also note that a number of high profile dissidents like...(a journalist who has been overseas twice) and...(a writer and arts critic who visited Australia and the U.S. recently) have been able to leave and return to China.

14. The cases in paragraphs 2 and 3 above, together with our contacts' assessment in para 1, indicated that the Chinese authorities are prepared to be flexible and tolerant, even in the cases of high profile dissidents, as to their departure and returning to the country provided they are not going to be critical of the Government to an extent that embarrasses the Government internationally or threatens its legitimacy in the domestic arena.

15. The Chinese Government statement of 20 August 1992 on returning students (ref K. McKinnon letter 7 April 1993) was specifically targeting government sponsored students and privately funded students and others who have become highly qualified in areas of their studies to return to help with China's modernisation. The statement reflects the Government's concern about the loss of skills caused by those who remained overseas after the 1989 Tiananmen incident, and the political movement the Chinese Government has been prepared to make to attract their return. Government spokesmen have on a number of occasions referred to the non-return of overseas students as a serious brake on national economic development.

16. It is clear from the foregoing that the Chinese authorities are not so much concerned about the issue of political activities overseas, but rather the question whether returnees have an intention to oppose the Government in an effective and organised way after their return to China. Students and others who did not have a high dissident profile and a significant influence in China at the time of the Tiananmen incident, even if they are now office bearers of overseas pro-democracy organisations, would have only a remote chance of facing administrative or criminal sanctions by the Chinese authorities unless, after their return, they initiated organised activities opposing the Government in an effective way...

17. The Tribunal stated that it gave "weight" to the DFAT cables, and it is clear from the Tribunal's reasons that the Tribunal treated the opinions expressed in the cables as authoritative material against which Chen's fears had to be balanced.

18. His Honour found that in determining that Chen did not have a well-founded fear of persecution by reason of his membership of the "landowner class", the Tribunal "engaged in an exercise of analysis and weighing of evidence". It may also be said that the Tribunal engaged in the same exercise in determining whether Chen had a well-founded fear of being persecuted for reasons of political opinion.

19. In Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court explained the meaning of the Convention definition of a refugee. In the separate reasons for decision of Mason CJ, Dawson, Toohey and McHugh JJ it was accepted that a person is able to satisfy the Convention definition if he or she has a genuine fear of persecution and that fear is founded on a real chance of being persecuted for a reason stated in the Convention, if returned to the country of nationality.

20. As stated by Sheppard J, with whom Black CJ and Lockhart J agreed, in Minister for Immigration, Local Government and Ethnic Affairs v. Mok Gek Buoy (1994) 127 ALR 223 at 250-252 the judgments in Chan illustrate that a fear of persecution is well-founded notwithstanding that it is less than probable that persecution will occur (per Mason CJ at 389 and Dawson J at 397), or that it is unlikely to occur - unless the possibility of persecution is far-fetched (per McHugh J at 429) or is remote or insubstantial (per Toohey J at 407).

21. It follows from the foregoing that if it is accepted that an applicant for the determination of refugee status has a genuine fear of being persecuted, the task of the Minister, or the Tribunal, is not to weigh the prospect of occurrence of the persecution as a matter of likelihood, or probability, but to assess whether the fear of persecution is well-founded in the sense that there is a real chance of the occurrence of persecution, not being a chance that is so remote as to be fanciful or far-fetched.

22. It was Chen's case that he feared that if he challenged the restriction, or denial, by the PRC authorities of a right to express political opinions opposed to those of the PRC government, he would be removed and barred from employment in his profession and, perhaps, arrested and dealt with on charges of anti-government activity. The questions to be determined by the Tribunal therefore, were whether the events feared by Chen amounted to persecution for a Convention reason and whether the fear was well-founded.

23. The term "persecution" is not defined in the Convention. What amounts to persecution will be a matter of degree as perceived by the signatory state called upon to consider it. Certainly, threat to life or freedom for a Convention reason is persecution. (Chan per Dawson J at 399; Gaudron J at 416.) Whether it may have a broader meaning to include, where such actions are undertaken for a Convention reason, measures in disregard of human dignity, the imposition of serious economic disadvantage, denial of access to employment or education, denial of rights enjoyed by compatriots and, perhaps, denial of freedoms fundamental to the existence of a democratic society, is undecided. (Chan per Mason CJ at 388; Dawson J at 399-400; Gaudron J at 416; McHugh at 430-431.  See also:  Goodwin-Gill, The Refugee in International Law, (Oxford, Clarendon, 1983), pp.38-39.)

24. In the United States in the case of Desir v. Ilchert 840 F 2d 723 (9th Cir. 1988) the Ninth Circuit Court of Appeals at 726-727 gave the following explanation of the term persecution as used in the Refugee Act 1980 (U.S.) which essentially incorporated the Convention definition of refugee: "The statutory term 'persecution' or 'well-founded fear of persecution' has been defined in this Circuit as encompassing more than just restrictions or threats to life and liberty. Corodozo-Fonseca, 767 F.2d at 1452. Most simply, we have stated that persecution involves 'the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive'. Kovac v INS, 407 F.2d 102, 107 (9th Cir. 1969). Persecution is found 'only when there is a difference between the persecutor's views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate.' Hernandez-Ortiz, 777 F. 2d at 516."

25. Perhaps, it may be said that in the expression "well-founded fear of being persecuted" it is contemplated that there is a real chance that a person will suffer some serious punishment or penalty, or some significant, and not transitory, detriment or disadvantage for a Convention reason if that person returns to the country of nationality. (Chan per Mason CJ at 388.)

26. In the judgment the subject of this appeal, his Honour dealt with that aspect as follows:

"...the Tribunal reasoned, it was unlikely that 'a continuation of the past level of dissent' would engender consequences amounting to persecution as distinct from further acts of discrimination. This was a finding clearly open on the evidence. It does not seem to me valid to argue that the Tribunal should have found, as a matter of fact, that the applicant would upon return to the PRC engage in a significantly higher level of dissent and that, when he did, he would be subject to persecution on Convention grounds. I do not think it is possible to import notionally into the PRC the standards of political freedom enjoyed in Australia and argue that anyone who suffered penalties from activities permitted by such standards would be persecuted within the meaning of the Convention."

27. With respect to his Honour, we do not agree that the Tribunal would have applied properly the terms of the Convention if it reached its finding in that way. The Convention is the formulation of an international standard for determining the status of refugees and a signatory to the Convention undertakes to apply that standard in determining whether a person who seeks the refuge of that state has the status of a refugee under the Convention entitling that person not to be returned to the country of nationality.

28. If a person has a well-founded fear of being persecuted for reasons of political opinion the Convention applies.  Although signatory states may apply differing views as to the degree of penalty, discrimination, or punishment that will constitute persecution, in all cases the connection between the feared persecution and reasons of political opinion will be a straightforward question of fact.

29.      Application of the terms of the Convention to a person in this country who claims to have the status of a refugee does not involve importing, notionally or otherwise, standards of political freedom enjoyed in Australia into the country of nationality of the claimant. What must be determined is first, whether the acts feared by the claimant if returned to his country of nationality, would amount to persecution, within the ordinary meaning of that word, for reasons of political opinion, and second, whether the fear is well-founded in the sense of not being a remote or fanciful fear.

30. Having regard to the guidance provided by the judgments in Chan, it should be concluded that the denial of access to employment, if that denial is arbitrary and indefinite and part of a process of harassment by authorities for the purpose of suppressing political dissent, may involve detriment or disadvantage of such a magnitude as to constitute harm amounting to persecution for a Convention reason.  (Chan per Mason CJ at 388, McHugh J. at 430. See also: Xie v. Minister of Employment and Immigration (1994) 75 FTR 125 at 128 points 10-11.)

31. The Tribunal found that before he left the PRC in 1989 Chen had been denied promotion or salary increments in the practise of his profession because of "past pro-democracy activities" but held that such actions, although discriminatory, fell "well short of persecution". The words "past pro-democracy activities" described relatively minor acts by Chen in early 1989 and before the Tiananmen Square incident, that were viewed by the authorities as serious enough to warrant transferring Chen from his usual duties and to deny him promotion and salary advances.

32. The Tribunal referred to the meaning of "well-founded fear of being persecuted" expounded in Chan and  stated that a "'real chance' is one that is not remote and it is immaterial whether it is more or less than 50 per cent". The Tribunal then approached the task of determining whether Chen had a well-founded fear of persecution by isolating some of the grounds for Chen's belief and determining whether any one of those grounds was capable of demonstrating that the fear held by Chen was well-founded.  The Tribunal found that Chen "may well be the subject of unwelcome attention and discrimination" but "that there is no real risk that he would be persecuted because of his pro-democracy activities in Australia". (emphasis added) The Tribunal then went on to state that it was unlikely that Chen "would be disbarred (sic) from teaching or that he would be refused public sector work by reason of his past pro-democracy activities" (emphasis added) and that it was "equally unlikely that a continuation of the past level of dissent would engender consequences amounting to persecution as distinct from further acts of discrimination" (emphasis added).  Having made those findings the Tribunal concluded that "looking at (Chen's) claims overall" it was "unable to find that there is a real chance" that Chen would be persecuted for a Convention reason upon return "or within the reasonably foreseeable future". The Tribunal did not deal directly with the principal ground underlying Chen's fear of persecution, namely, that he feared harassment for, or suppression of, his political opinions by the threat, or imposition, of punishment or of substantial disadvantages, or denial of access to employment, if he expressed such opinions on return to the PRC.

33. .The fact that disadvantage had been suffered by Chen because of his "pro-democracy" activities before he left the PRC made it plain that Chen's previous conduct had not gone unnoticed. The question to be considered by the Tribunal was whether as a result of the accumulation of the Tiananmen Square incident, which occurred several months before Chen left the PRC, the conduct of PRC authorities thereafter, and Chen's participation in the activities of pro-democracy groups in Australia, there was a risk that Chen may suffer substantial disadvantages and deprivations at the direction of those authorities, namely, detention, restriction of liberty, or denial of employment, if he opposed the Government upon return to the PRC by declaring his support for the establishment of a democratic system in the PRC. Whether the declaration of such political opinions by a lecturer may be viewed by the PRC authorities as conduct capable of inspiring others to support, or follow, his example and constitute the organisation of dissent would have to be considered in determining whether the acts feared by Chen would amount to persecution for a Convention reason and whether there was a real chance that such persecution would occur.

34. In determining whether Chen had a well-founded fear of being persecuted for reasons of political opinion the Tribunal weighed the material put before it and concluded from that balancing exercise that it was unlikely that the events feared by Chen would occur.  The Tribunal did not find that the penalties and deprivations feared by Chen would not constitute persecution under the terms of the Convention nor did it find that, if such persecution occurred, it would not be for reasons of political opinion.  The Tribunal found that it was unlikely that events feared by Chen would occur and, therefore, there was not a real chance that Chen would be persecuted.

35. The Tribunal erred by equating the finding it did make, namely, that the occurrence of the events feared by Chen was unlikely, with a finding that a real chance of the occurrence of persecution did not exist.  The Tribunal did not assess whether the chance of persecution occurring was so remote as to be far-fetched or fanciful, obliging the Tribunal to disregard Chen's genuinely held fear of such persecution.

36. For the foregoing reasons we find that the review function of the Tribunal miscarried and that the appeal should be allowed. Leave will be given to Chen to amend the application, and the notice of appeal, to incorporate the amendments for which leave was sought at the hearing of the appeal set out in the minute filed on 24 March 1995. The amendments particularize, rather than introduce, a ground of review already relied upon by Chen.

37. Leave to amend the application and notice of appeal in other respects was also sought. Having found that the appeal should succeed on the ground set out above it is unnecessary to consider whether leave should be given to further amend to raise grounds and arguments not put to his Honour and we decline to do so.

38. The orders appealed from will be set aside and an order made that the decision of the Tribunal be reviewed and the matter returned to the Tribunal for determination according to law. The Minister will be ordered to pay the costs of the hearing of the application and the costs of the appeal.

Comments:
No. WAG1 OF 1995 FED No. 454/95; Immigration (1995) 130 ALR 405 Court
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