Chan v Minister of Immigration and Ethnic Affairs

Evidence before Tribunal In the written material submitted by the applicant he stated that China is a one-party dictatorship. There is no freedom of religion, speech or political opinion, and the Chinese Communist Party is always pursuing "obscurantist policies". He said that in 1988 he obtained a passport because he wanted to study in Japan. However, as a result of an investigation by the Public Security Bureau ("PSB") of a gathering at a friend's home at which the applicant was present, he was not permitted to go abroad because he was considered "politically unreliable". No charges were laid against him. The applicant said he was brought up during the "period of Marxist-Leninist and Mao Zedong thought education". His life was changed with the shooting of students in 1989. This made him realise that the Party had become extremely corrupt, and that the only way to change China was through national political reform and by replacing socialism with capitalism. He said that in May 1989 he supported the students by participating in demonstrations, distributing leaflets, making public speeches and shouting slogans. After the authorities started checking on people he stopped these activities. Because of the gathering he attended at his friend's place in 1988 the applicant knew he would not be issued with an exit permit. With the assistance of a friend in the PSB he obtained a permit and thus was able to leave China without difficulty. Since coming to Australia he has participated in a number of rallies which accuse the Chinese Government of corruption. He says he would be persecuted for these activities were he to return to China.

He said that letters to this family had been intercepted and opened because of his political activities in China and Australia. His family was visited by the authorities after his departure. A friend who participated in the demonstrations in China was imprisoned in May 1990 and has not been released. The friend who helped him with the exit visa was dismissed from the PSB and has received a suspended gaol sentence. Tribunal's reasoning The Tribunal set out the definition of "refugee" in the Convention relating to the Status of Refugees, quoted passages from Chan v Minister of Immigration and Ethnic Affairs (1989) 169 CLR 379 espousing the "real chance" of persecution test and explaining the meaning of "persecution", and noted that whether a person is a refugee is to be determined upon the facts existing at the time of the determination. The Tribunal accepted that the applicant had a subjective fear of persecution should he be returned to China. However it did not accept his claim that he was prohibited from leaving China after the PSB's investigation of the gathering at his friend's place. The PSB could not find any evidence that the gathering was for an impermissible purpose, and no charges were laid. Further, he was permitted to retain his passport, at a time when no second exit permit was required in order to leave the country. The Tribunal accepted that in May 1989 the applicant participated in demonstrations, distributed leaflets and shouted slogans. However it noted advice from the Australian Embassy in Beijing that the authorities drew a clear distinction between those who played leadership roles and mere participants. Strong punitive action has been taken only against high profile activists and leaders of illegal organisations. The applicant fitted neither of these descriptions. His participation was of a very low order and no different from that of hundreds of thousands of other demonstrators in Shanghai, where he lived, and millions of demonstrators around China. The Tribunal also referred to evidence that except in the case of a few high profile activists, the Chinese authorities are no longer concerned with those who participated in the events of 1989. This material indicated that while some people arrested around the time of the 1989 demonstrations are still punished, pursuit of activists has, since 1992, largely ceased. While activists who are perceived to be capable of organizing opposition to the Government or threatening stability within China may be at risk, the applicant was clearly not such a person. In the light of the foregoing matters, the Tribunal was of the view that there was only a remote chance that the applicant would be punished now for his very low level activities. The Tribunal accepted that the applicant did indeed participate in those activities in which he claimed to have been involved in Australia, but considered them "low level". The Tribunal referred to DFAT cables and to a US Department of State report China - Profile of Asylum Claims and Country Conditions (1993) which showed that the Chinese Government sees its overseas students as a valuable resource whom it is keen to welcome back even where they have been involved in pro-democracy activities. The Tribunal accepted that the applicant's family had been questioned by the authorities about his involvement in anti-government activities in Australia, but did not accept that this meant that he and his family had attracted the adverse attention of the authorities and that he would face a real chance of persecution upon return. The Tribunal referred to advice from the Australian Embassy in Beijing, and other information, that it was the PSB's standard practice to visit families with a member overseas to tell them that while overseas the member should remember that he was an ambassador for China. On the basis of evidence that a visit by the PSB "doesn't really mean anything special nor that the family or the relative overseas has been targeted by the police", the Tribunal said it was satisfied that the visits did not suggest there was a real chance that the applicant would be persecuted upon return. The Tribunal dealt with the applicant's claim that if he were returned to China he would insist on expressing his own democratic thoughts, which would put him at risk, by noting that he had a low level of political activity during a particularly turbulent period in Chinese history, that in Australia his activities were of a similarly low level, and that the concern of the authorities was with those capable of organizing opposition to the government and not those who merely held and expressed dissenting views. On this basis the Tribunal concluded that on the evidence it was satisfied that there was only a remote chance that the continuation of the level of dissent the applicant had shown over the years would result in consequences amounting to persecution. The Tribunal noted the existence of human rights abuses in China, but observed that the existence of generalised abuses does not, of itself, establish an entitlement to refugee status unless it can be demonstrated that the applicant is differentially affected, which was not the case here.

Having regard to all the evidence, considered separately and cumulatively, the Tribunal was not satisfied that there was a real chance the applicant would suffer persecution for a Convention reason were he to return to China. Grounds of review Acting in accordance with rule or policy The complaint here is that the Tribunal acted in accordance with a rule or policy without regard to the merits of the case. This is the ground provided for by s476(1)(d) and (3)(c) of the Migration Act 1958. Sub-section (3)(c) reflects the common law prohibition on a tribunal acting in accordance with arbitrary rules rather than examining the circumstances of the particular case. The "policies" identified by the applicant are not rules or policies within the meaning of par(c). Rather they are pieces of evidence, adverse to the applicant's case, which the Tribunal acted upon in coming to its decision. For example, one "policy" which it is said "did not concern the applicant's case or circumstances" is that the Chinese authorities distinguish between those who played a leadership role and those who merely participated in demonstrations. Another "policy is that the authorities welcome back overseas students including those who have been involved in pro-democracy activities. Neither of these "policies", nor any of the others complained of, is a rule or policy of the kind contemplated by s476(3)(c). All are simply items of evidence which the Tribunal was entitled to accept, but which the applicant finds unpalatable and says the Tribunal should not have accepted. The truth is that in complaining about rules and policies, the applicant seeks a review of the Tribunal's decision on the merits, and that is not available to him: Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 at 271-272, 291-292.

Failure to observe procedures It is said that the Tribunal failed to observe procedures required by the Act to be observed in connection with the making of the decision: cf s476(1)(a). The claim here is that the Tribunal failed to act according to substantial justice and the merits of the case as required by s420(2)(b), and failed to pursue the objective of providing a fair mechanism of review as required by s420(1). There are eleven grievances particularised. None of them fits the description in either s420(1) or s420(2)(b). The first is that the Tribunal "treated in an irrational and unfair manner and placed undue importance and reliance" on the applicant's delay in applying for refugee status. In fact the Tribunal noted the delay, expressed reservations about the applicant's explanation for it, but nevertheless assumed that he had a subjective fear of persecution. The remaining grievances are with findings the Tribunal made. They are dressed up as "wrong", "arbitrary", "irrational" and "unfair" conclusions or findings, but are no more than complaints that the Tribunal should not have come to particular conclusions that were available to it on the evidence. For example, it is said that the Tribunal should not have concluded that the applicant's participation in the pro-democracy demonstrations was of a very low order. This, together with the other claims apart from the first, is simply a complaint that the Tribunal should not have come to a conclusion that was open to it. It is an invitation for the Court to make its own assessment of the evidence, and to conclude that the Tribunal's decision on the merits was wrong. Error of law It is a ground of review under s476(1)(e) that the Tribunal incorrectly interpreted the applicable law. The applicant claims the Tribunal "misunderstood the law relating to the definition of refugee". Four errors are specified. The first is that the Tribunal wrongly said it was not required to speculate as to whether there was a real chance of persecution. That would be an error of law. But the Tribunal did not make such an error. It twice referred to the need, in determining whether there was a real chance that the applicant would suffer persecution, to consider the immediately foreseeable future. See Minister for Immigration and Ethnic Affairs v Mok (1995) 55 FCR 375 at 403, to which the Tribunal referred. The second alleged error is that the Tribunal failed to consider whether there was a real chance of persecution in the light of all the evidence, but looked only at particular elements of the evidence separately. In doing this it "foreclosed reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material". This claim of error is not made out. The Tribunal said that it had had regard to all the evidence, separately and cumulatively, in coming to its conclusion that there was no real chance of persecution, and there is nothing to suggest that it did not in fact do so. The third alleged error is that the Tribunal interpreted the definition of "refugee" as requiring the applicant to substantiate or corroborate the details of his claims by independent evidence. Counsel did not address this claim or refer me to anything in the Tribunal's decision which supported it, and I have found nothing to suggest that the Tribunal did what has been attributed to it. The final error complained of is that the Tribunal made various findings which were not reasonably open and for which no evidence existed. Five "findings" are attacked. One of them, that the Tribunal drew a negative inference from the applicant's delay in making his application, I have dealt with in a different context. No such inference was drawn. Another is that the applicant would not express his own opinion and participate in pro-democracy political activity were he to return to China. No such finding was made. Rather the Tribunal said that even if he did engage in such activity, there was no real chance of persecution as a result thereof. Two of the remaining findings (that the applicant's political activity was of a low level, and that he could have obtained his second exit permit through normal channels) were clearly open to the Tribunal on the material before it. The remaining finding that the PSB's visits to his family did not indicate that the applicant or his family had attracted adverse attention, was expressly supported by the evidence of Dr Adrian Chan, which the Tribunal set out in its reasons. Incorrect application of law to facts It is claimed that the Tribunal misapplied the law relating to the definition of "refugee" by failing to determine whether the applicant faced a real chance of persecution and by failing to speculate on that question. There is no substance in the first complaint, and as I have held in another connection, no substance in the second. The remaining claim is that the Tribunal failed to consider whether the possibility, which it acknowledged, of persons known by the PSB to be linked with the pro-democracy movement would attract the attention of the authorities, was real or remote. There is no substance in this complaint. No evidence The final claim is that the Tribunal based its decision on five facts which did not exist. Two of the "facts" (delay in making the application, and that the applicant would not engage in relevant activities in China) were, as I have said elsewhere, not findings made by the Tribunal. The Tribunal's decision was not based on these alleged "facts". Cf s476(4)(b) and Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224. The remainder (the low level of the applicant's pro-democracy activities, that the questioning of the family did not mean that the applicant or the family had attracted adverse attention, and that the applicant may have obtained an exit permit through normal channels) were findings that were open on the evidence. Conclusion None of the grounds relied on has been made out, and the application must be dismissed with costs. I certify that this and the preceding nine pages are a true copy of the reasons for judgment of the Honourable Justice Sundberg ................................................. Associate 2 May 1997

Counsel for the Applicant: J W Bailey Solicitors for the Applicant: Law Partners Melbourne Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 April 1997 Place of Hearing: Melbourne Date of Judgment: 2 May 1997