Australian Broadcasting Tribunal v Bond

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

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

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

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

The Applicant in Australia The applicant obtained a passport by a combination of contacts and bribery. He arrived in Australia at Perth on 3 November 1989

with a visitor's visa. On 8 June 1990 he applied for refugee

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

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

The Tribunal had before it material concerning present day conditions in the PRC and in particular the changes that have occurred since the end of the Cultural Revolution in the late 1970s and the present attitude of the authorities towards

returning overseas Chinese who have participated in pro-democracy

In a "Refugee Determination Country Profile" published by the Department of Foreign Affairs and Trade in November 1993 it was

.-. ended officially when the Cultural Revolution was repudiated at the Third Plenary Session on 22 December 1978. This turning point is regarded as the 'normalisation' of China ..."

In the 1987 edition of Encyclopaedia Britannica it was said:

"The reformers led by Deng Xiaping tried after 1978 to reduce the level of political coercion in Chinese society. Millions of victims of past political campaigns were released from labour camps (especially during 1978-80) and bad 'class labels' were removed from those stigmatised by them. This dramatically improved the career and social opportunities available to millions of former political pariahs."

In IRBDC Information Request CHN 1490 of 17 July 1989 it was

"In early 1979 the Central Committee of the Chinese Communist Party decreed the designations 'landlord', 'rich peasant', 'counter-revolutionary' and 'bad element' be removed from prosperous indaviduals, reclassifying them as commune members. It was also decreed that the descendants of landlords, rich peasants and members of the national bourgeoisie should not be subject to discrimination regarding education, work and admission to the Youth League or Communist Party."

As to the existence of corruption in the PRC, a cable of 17 December 1990 from the Australian Embassy in Beijing observed

"... corruption is a common problem in China. If he were found out, the person who provided the document may be punished, eg by dismissal from work. The applicant may also be punished, but this, if it occurred, would not be severe."

As to the PRC authorities' attitude to pro-democracy movements, a Department publication "Country Profile - China" in November

"If a person had been a participant in protest activity but not a leader then he or she might not be penalised at all. If there was a penalty, it would be unlikely to go beyond an adverse note on their personal file or a self-criticism session."

A Department cable of 1 June 1993 included the following

"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. 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 ... 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 ... "

In a later cable of 14 June 1993 the Department said that

"Our reference to 'whether returnees have an intention to oppose the Government' ... refers to a judgment made by the Chinese authorities as to a returnee's likely future behaviour. That judgment would be based principally on a returnee's dissident profile and influence before he or she left China for Australia. We did not intend to refer to the returnee's subjective state of mind on their return to China."

The applicant tendered a translation of an article from the Chinese Herald on 22 October 1993 which reported the arrest and prosecution of "some 16 important members of the Party for Freedom and Democracy in China and Chinese Progressive League"

"attempted to overthrow (the) Chinese Communist regime and its socialist system and to engage in large-scale counter revolutionary activities."

There was also in evidence a Sing Tao newspaper article of 10 September 1992 which spoke of a "directive instructing stern action against previous landowners and rich farmers" and reported that authorities were "directed to prosecute previous

'landowners' who attempted to reclaim their property".

The Tribunal's Decision The Tribunal's jurisdiction was conferred by ss. 166BA, 166BAA

and 166BB of the Migration Act 1958 (Cth). It had to determine

",... 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."

"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.

fhe 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 Tribunal commented on the evidence as to the applicant's

history in China as follows: "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."

The Tribunal noted however that, at least from 1982, there does not seem to have been any persecution of the applicant on the grounds of his "landowner" background and there was, in the Tribunal's view, "no reason to expect that there will be a resumption in the future". The incident in 1985 which resulted

in a self-criticism being recorded on the applicant's file was,

«+. an act of discrimination but not an act of a kind which would amount to persecution in terms of the observations of Mason CJ and McHugh J in Chan (supra); likewise the petty harassment of the applicant in 1989 by forcing him to teach subjects with which he had little familiarity and by neglecting to grant him promotion or salary increments."

The Tribunal considered that the grant of a passport to the

applicant was "some indication that he was of little interest to

the PRC authorities". The need to use bribery to get the passport had "little relevance as an indication that he could not obtain one because of his background"; it was explicable in terms of the endemic corrupt bureaucratic imposts applied in the PRC and did not indicate a fear of selective or discriminatory action

The Tribunal expressed its conclusion as to the prospects of the

applicant on return to the PRC in the following terms:

"While the applicant may well be the subject of unwelcome attention and discrimination, I find that there 1s 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 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 periods 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

The main attack made by counsel for the applicant on the Tribunal's decision was that its reasons disclosed a failure to consider the facts cumulatively. There was, so it was said, "an error of logic" in dismissing everything that happened to the applicant prior to 1982 when assessing subsequent events. The Tribunal failed to take into account the applicant's state of mind because of his history. The events after 1982 were, it was conceded, "small incidents", but cumulatively, when taken into account with the events prior to 1982 and the applicant's pro- democracy activity in Australia, they showed a well-founded fear

When assessing the case of an applicant for refugee status it is of course relevant to consider the applicant's past history. In

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 415 Gaudron J said:

"I do not think it correct to say that the question whether a fear is well-founded is to be answered by reference to the situation at the time of the determination and in isolation from the past experiences of the applicant.

The definition of 'refugee' looks to the mental and emotional state of the applicant as well as to the objective facts. It is a commonplace, encapsulated in the expression 'once bitten, twice shy', that circumstances which are insufficient to engender fear may also be insufficient to allay a fear grounded in past experience. Although the definition requires that there be 'well-founded fear' at the time of determination 1t would be to ignore the nature of fear and to ignore ordinary human experience to evaluate a fear as well-founded or otherwise without due regard being had to the applicant's own past experiences.

If an applicant relies on his past experiences it is, 1n my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well- founded unless it is at least possible to say that the fear of a

reasonable person in the position of the claimant would be allayed by knowledge of subsequent changes in the country of nationality."

In any given case, the question whether separate incidents have in fact cumulatively led to a well-founded fear of persecution (considered objectively as well as subjectively) is a question of fact. As her Honour points out, knowledge of present conditions in the country in question is an essential factor in

The Tribunal was not given a discretion to grant or withhold refugee status; it was required by statute to consider the evidence and arrive at a conclusion of fact, namely that the applicant did or did not have a well-founded fear of persecution for one or more of the particular reasons stated in the Convention. This Court can only set aside that conclusion if it finds that the Tribunal made an error of law in reaching the conclusion of fact that it did. The applicant has to show that there was no evidence on which a finding of fact could be made or, in the case of inferences from fact, that such inferences could not reasonably be drawn from the facts found or agreed: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at

But it is said that '(t]here is no error of law simply in making a wrong finding of fact': Waterford v The Commonwealth (1987) 163 CLR 54 at 57, per Brennan J. Similarly, Menzies J observed in Reg v District Court; Ex parte White (1966) 116 CLR 644 at 654:

'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record.

To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'

Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." (Emphasis in original)

In marked contrast to Chan (see 169 CLR at 390-391) there was evidence before the Tribunal on the question of changes in the PRC since the end of the Cultural Revolution - albeit evidence that did not all point the one way. In essence the Tribunal found that although the applicant had undoubtedly suffered up until 1982 because he was a member of the landowner class (and hence because of "membership of a particular social group" within the meaning of the Convention), there was now no longer a "real chance" (Chan at 389) that he would be persecuted for that reason if he now returned to the PRC. Because of changes in the PRC, the Tribunal concluded that what happened after 1982 has to be seen in a different light and not as part of continuing persecution of members of the landowner class. Objectively considered, there was no longer a well-founded fear of persecution on that ground. In so concluding, the Tribunal engaged in an exercise of analysis and weighing of evidence. The Tribunal said that it looked at "the applicant's claims overall".

My reading of its reasons satisfies me that this is what the

Future Political Activity in the PRC Counsel for the applicant argued that the Tribunal proceeded on the basis that if the applicant returned to the PRC he would not

be persecuted as long as he did not express pro-democracy views.

Counsel argued that it was not enough to avoid a finding of well- founded fear of persecution if the applicant could only avoid persecution by not "speaking out". The argument echoes the English case of R v Immigration Appeal Tribunal; Ex parte Jonah

{1985} Imm AR 7 referred to by McHugh J in Chan at 431.

But the Tribunal found as a fact (and in so doing was not challenged on this review) that the consequences that the applicant had suffered for his past pro-democracy activities in the PRC, namely changes to the subjects he taught and the absence of promotion or salary increments, might well have been discriminatory but fell "well short of persecution". Therefore, 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

Finally counsel for the applicant contended that the Tribunal

"misdirected itself at law by making findings of fact based on speculation concerning" (i) the likelihood of the applicant being subjected to persecution as a result of his membership of the landowner class, (ii) the manner in which the applicant obtained his passport, (iii) the finding that the applicant's participation in protest activities in Australia would not attract a penalty other than unwelcome attention and discrimination, (iv) the number of teachers at the Institute and the nature of the influence of the applicant compared with other teachers, and (v) the likelihood the applicant would be disbarred from teaching or refused public sector work by reason of past

All of these complaints except (ii) and (iv) (which related to findings clearly open on the evidence) are concerned with the assessment of the likelihood of future eventualities. Because the Tribunal had to consider whether the applicant's fear of persecution was well-founded objectively (Chan at 396) it had to make an assessment of whether there was a "real chance" of persecution if the applicant returned to his country of origin. An assessment of what is likely to happen in the future is not shown to be legally defective merely by the pejorative description "speculative". The test is whether it was open to the Tribunal to make findings as to what had happened in the past and whether in the light of those findings it was open rationally to infer that there was a "real chance" of the appellant suffering conduct amounting to persecution in the future. In my

opinion the Tribunal did not err in law in discharging that

Order The application will be dismissed with costs including reserved

This application was heard on 18 November 1994. By 6 December 1994 the above reasons had been prepared and were within 24 hours of being delivered when my Associate received a letter by fax

from counsel for the applicant. The letter commenced

"In the course of arguing this matter it came to my attention that my brief may not have contained the volume comprising Part B of Annexure RGRI to the affidavit of Russel Grant Rigby [an affidavit sworn on 19 October 1994 on behalf of the respondents]. I have since confirmed that, due to a clerical error, I was briefed with two copies of the first portion of the Annexure, but not Part B. Consequently, I would now seek the Court's indulgence in drawing to its attention the following from that volume in support of the applicant's argument as to the unreasonable failure to give proper weight to relevant matters".

There then follow references to fourteen passages in Part B of the annexure, being materials which were before the Tribunal. The passages include extracts from newspaper and magazine articles, Department of Foreign Affairs and Trade cables, a United States Department report on human rights and submissions as to the facts

"the only reasonable conclusion which could be reached from the overwhelming weight of evidence referred to above, understood in the context of other evidence previously referred to, is that the applicant, being a person who

(i) had some degree of 'significant influence in China at the time of the Tiananmen incident',

(ii) has had an organisational role in the Party for Freedom and Democracy 1n China while in Western Australia, which is regarded as an illegal counter~revolutionary organisation in China; and,

(iii) if, upon returning to China, he were to continue to express counter-revolutionary views or organise activities opposing the Government,

faces a rzsk which is difficult to quantify precisely, but nevertheless, is an objectively real risk, that he will be persecuted in the form of detention and interrogation, arrest and prosecution, imprisonment or the complete denial of his fundamental human right to freedom of speech because of his political views."

The letter concluded with advice that prior approval of counsel for the respondents had been obtained before the submission "subject to his right to forward any written submission in reply within ten days". Counsel for the respondents did in fact forward written submissions but, at my direction, within a

Most of the materials referred to in the letter were not referred to in the application for order of review filed on 19 May 1994. Apart from anything else, counsel's letter seems to amount to an assertion of a unilateral right to seek review on grounds

extending substantially beyond those disclosed in the application

While it is quite common upon the conclusion of a hearing for a judge to reserve judgment on the basis that written submissions on specified matters may be filed within a limited time frame, that is not what happened in the present case. What has been done is disruptive of the efficient disposal of cases which have been

reserved for judgment, unfair to the opposing parties and their

counsel and, most importantly, against the interests of the applicant who is entitled to expect that his case will be put in

I have read the materials referred to in counsel's letter. They are mostly concerned with experiences in recent times in the PRC of either particular persons or dissidents generally. To the extent that they deal with individual cases, the circumstances of such persons are, as the respondents' counsel points out in his submissions, distinguishable from those of the applicant. At best the materials constitute some evidence on the factual issue of present conditions in the PRC which might be helpful to the applicant's case. It has not been shown that the Tribunal erred in law in coming to the conclusion that it did on the whole

of the evidence having regard to the principles laid down in Bond

Since the hearing in the present case concluded a Full Court of this Court has delivered judgment in another refugee case Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (unreported, 28 November 1994). Carr J, with whom Sheppard and Gummow JJ agreed, said in relation to an argument that a decision-maker had failed to take into account certain

"[The trial judge] held that there was no obligation on the respondent to consider every document in the Department's possession. The decision of what material from the range of relevant material was to be taken into account was generally one for the decision-maker alone and it was only when material which must be taken into account is ignored that the decision was reviewable. His Honour held that Mr Barnsley was entitied to refer to the cable dated 23 June 1992 without being in any way

bound to refer to the four earlier cables and those cables were not matters which Mr Barnsley was required to take into account. His Honour relied upon the following passage in the reasons for judgment of Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at p 375:

'In a case such as the present, where relevant considerations are not specified, it 1s largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.'

Mr R O'Connor QC, senior counsel for the appellants, distinguished Sean Investments Pty Ltd v MacKellar on the basis that in that case relevant considerations were not specified whereas in the present matters there were specified relevant considerations to be taken into account which arose from the word 'refugee', its Convention definition and what was said by the Full High Court in Chan's case. In my view, the submission confuses taking into account relevant considerations with taking into account particular pieces of evidence. The relevant consideration which the respondent was obliged to take into account was - what might happen to the appellants if they are returned to China? It 18 quite clear that the respondent's delegate did take that consideration into account and in doing so relied on the abovementioned cable dated 23 June 1992. I cannot accept the proposition that in so doing there was an improper exercise of power. The appellants relied on Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, but in my view the four earlier cables cannot be regarded as being in or any way near the category of the information in that case which related to correction of the Aboriginal Land Commissioner's report. The status of the document which contained that information was derived from the Commissioner's report which the High Court held was, by necessary implication from the relevant

legislation, a document which the Minister was bound to take into account.

The appellant's submission boils down to the proposition that there was an obligation on the respondent's part to review all of the DFAT cables received, to select from them the four cables upon which the appellants rely and to prefer the contents of those cables to the cable upon which Mr Barnsley in fact relied. His Honour held that there was no such burden on Mr Barnsley to seek out this further information and that 1t was up to him to decide what other information might aid him in his task. I agree with his Honour's conclusion and his reasons for reaching that conclusion. To hold otherwise would be to conduct a review of the merits and usurp the administrator's function: Minister for Aboriginal Affairs v Peko Wallsend Ltd per Mason J at pp 40-41.

In my respectful opinion, his Honour's reasoning 1s directly

applicable to the applicant's contention in the present case.

I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of his Honour Justice Heerey.

Associaté arances Counsel for the applicant: Mr G M G McIntyre Solicitor for the applicant: Dwyer Durack Counsel for the first and second respondents: Mr S Bhojani Solicitor for the first and second respondents: Australian Government Solicitor

4 JUDGES' CHAMBERS FEDERAL COURT OF AUSRALIA 450 LITTLE BOURKE STREET

ini fo Immigration, Local vernment id Ethnic Affai No. WAG 62 of 1994

I enclose a copy of the judgment delivered by his Honour Mr Justice Heerey in the above matter on 14 December 1994

A diskette record of the catchwords, minutes and reasons for judgment is also enclosed.