Chan Yee Kin v Minister for Immigration and Ethnic Affairs

FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) GENERAL DIVISION ) No 270 of 1996 B E T W E E N: ZHANG SU RONG Applicant and REFUGEE REVIEW TRIBUNAL First Respondent and MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Second Respondent CORAM: GOLDBERG J PLACE: MELBOURNE DATE: 16 MAY 1997

REASONS FOR JUDGMENT Introduction and background The applicant applies to the Court pursuant to Pt 8 of the Migration Act 1958 ("the Act") for an order of review in respect of the decision of the Refugee Review Tribunal ("the Tribunal") on 3 April 1996 whereby the Tribunal affirmed the decision of the delegate of the Minister that the applicant was not a refugee and was not entitled to a protection visa. The applicant, who was born in the People's Republic of China on 3 October 1956, arrived in Australia on 23 December 1989 on a student visa. On 15 November 1993 the applicant lodged an application for refugee status in Australia with the Department of Immigration Local Government and Ethnic Affairs. In that application in response to questions relating to the applicant's fear of persecution and whether the applicant or a member of her close family ever suffered as a result of membership or association with a political party, group, movement or association and similar questions the applicant answered "see attachment". The applicant gave the same answer to a number of other questions. No attachment was attached to the application. However the applicant marked the box which indicated that she feared persecution because of her political opinion. On 1 December 1993 the applicant made a written submission to the Department in which she responded to a number of the questions asked in the application form. The applicant was interviewed by a delegate of the Minister on 14 December 1993 and on 23 December 1993 the Department notified the applicant that her application for refugee status had been refused as she was assessed as not meeting the terms of the United Nations Convention Relating to the Status of Refugees. On 7 January 1994 the applicant applied to the Tribunal to review the decision of the delegate. The Tribunal held a hearing on 11 September and 20 October 1995 at which the applicant gave sworn evidence through an interpreter and other witnesses presented evidence. The Tribunal published its decision on 3 April 1996. On 1 September 1994 the Migration Reform Act 1992 came into operation. Section 36 of the Act as amended introduced a class of visas to be known as protection visas which replaced visas and entry permits previously granted to persons who sought protection as refugees. By reason of the operation of s 39 of the Migration Reform Act 1992 any application for refugee status not finally determined by 1 September 1994 was to be dealt with as if it was an application for a protection visa. Accordingly, the decision of the delegate of the Minister on 23 December 1993 had the effect of a refusal to grant the applicant a protection visa. A criterion for a protection visa is that the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). On 10 May 1996 the applicant filed an application with the Court for an order of review in respect of the decision of the Tribunal and on 16 July 1996 filed an amended application. The issue before the Tribunal was whether the applicant had a well‑founded fear of persecution in the People's Republic of China by reason of her family background and involvement in the pro‑democracy movement. The grounds of review relied on at the hearing were as follows: "1. The decision involved an error of law involving an incorrect interpretation of the applicable law. Particulars The Tribunal misinterpreted the law relating to the definition of refugee for the purposes of the Migration Act 1958 ("the Act"), including by: (a) interpreting the law as allowing findings on matters of credit adverse to the Applicant to be made as if in any civil proceeding without making any or any adequate allowance for the fact that the Applicant was: (i) a person seeking refugee status, in relation to whom allowances must be made and the benefit of the doubt must be given; (ii)attempting to give evidence in a foreign language; (iii)recounting episodes of traumatic sexual abuse; and (iv)reluctant and embarrassed to discuss that abuse, both before the Tribunal and previously; (b) ... (c) interpreting the definition as not requiring the Tribunal to speculate as to whether there was a real chance that the Applicant may be persecuted upon returning to China, including by speculating as to her possible fate if its findings of fact were incorrect or if the future does not conform to what the Tribunal found had previously occurred; (d) ... (e) interpreting the definition as allowing the Applicant's claims to be examined in isolation from each other rather than requiring the Tribunal to consider the cumulative effect of those claims; and (f) ... The Applicant further refers to and repeats the particulars to paragraphs 3, 4, 5, 6, 10, 11 and 12 below. 2. The decision involved an error of law involving an incorrect application of the law to the facts as found by the Tribunal.

Particulars The Tribunal misapplied the law relating to the definition of refugee for the purposes of the Act, including by: (a) making findings on matters of credit adverse to the Applicant as if in any civil proceeding without making any or any adequate allowance for the fact that the Applicant was: (i) a person seeking refugee status, in relation to whom allowances must be made and the benefit of the doubt must be given; (ii)attempting to give evidence in a foreign language; (iii)recounting episodes of traumatic sexual abuse; and (iv)reluctant and embarrassed to discuss that abuse, both before the Tribunal and previously; (b) ... (c) failing or refusing to speculate as to whether there was a real chance that the Applicant may be persecuted upon returning to China, including by speculating as to her possible fate if its findings of fact were incorrect or if the future does not conform to what the Tribunal found had previously occurred; (d) ... (e) isolating the Applicant's claims from each other and thereby failing to consider the cumulative effect of those claims; and (f) ... The Applicant further refers to and repeats the particulars to paragraphs 3, 4, 5, 6, 10, 11 and 12 below. 3. ... 4. The Tribunal did not observe procedures required by the Act to be observed in connection with the making of the decision. Particulars (a) The Tribunal failed to act according to substantial justice and the merits of the case as required by section 420(2)(b) of the Act, and failed to pursue the objective of providing a fair mechanism of review as required by section 420(1) of the Act, in that: (i) the Tribunal engaged in a process of reasoning that was prejudicial, unfair and circular, and which ascribed to the Applicant dishonest actions extending to the giving of false evidence, based upon minor discrepancies, typographical errors and the fact that her claims had become more detailed through closer questioning during the assessment process. The Applicant refers in particular to pages 20 to 23 of the Tribunal's reasons; and (ii)the Tribunal made findings highly adverse to the Applicant's credit without giving her the opportunity of answering the assertions made against her, including findings that: (A) a single and clearly mistaken reference to the Applicant's husband being alive in 1989 indicated her willingness to fabricate claims; (B) the Applicant had concocted claims as to her husband having been tortured to death as a counter‑revolutionary; (C) the Applicant had fabricated claims of traumatic sexual abuse; (D) the Applicant had invented claims as to the way in which she obtained her exit documents; and (E) the Applicant engaged in pro‑democracy activities in a cynical exercise for the sole purpose of enhancing her claim for refugee status.

... The Applicant further refers to the particulars to paragraphs 11 and 12 below. 5. ... 6. There was no evidence or other material to justify the making of the decision. Particulars (a) The Tribunal based the decision on the alleged facts that: (i) ... (ii)the Applicant had fabricated her claims, when those facts did not exist. (b) The Tribunal was required to reach the decision only if it was established that the Applicant had fabricated her claims and there was no evidence or other material from which it could reasonably be satisfied that this was the case. 7 - 12 ..." A number of the grounds and particulars set out in the amended application were not pressed or relied upon at the hearing and were not the subject of submissions. Tribunal's reasons and findings In order to put these grounds in context it is necessary to identify how the Tribunal reached its decision. The Tribunal noted that the applicant had lodged her application for refugee status with the Department after she had been placed into custody as a consequence of breaching her visa conditions; that she was assisted by migration agents in making her initial application and was advised by a solicitor in applying for review. The Tribunal referred to the applicant's claims of the persecution suffered by her parents during the cultural revolution (1966-1978) and her claims in respect of her husband's political activities and subsequent death in 1987. The applicant's husband had been arrested on 17 December 1986 on a charge of being a counter‑revolutionary. He became ill while in prison, was hospitalised and subsequently died on 16 March 1987. The applicant gave evidence of what she said was her involvement in the 1989 pro‑democracy movement. She said that she was unable to obtain exit documentation through normal channels and had to bribe an official and grant sexual favours to officials to obtain an exit permit. She referred to a number of incidents which she said involved persecution or harassment because of her political activities. She said that as a result of being involved in pro‑democracy activities in May and June 1989, her duties at the school where she worked as a teacher were changed to kitchen and cleaning duties. Evidence was led from other witnesses as to the position and pro-democracy activities of the applicant in the People's Republic of China and in Australia. The applicant gave evidence of pro‑democracy activities in which she had been involved in Australia, although these had not been referred to in her initial Departmental interview in December 1993. Having set out in some considerable detail the evidence given by the applicant and her witnesses in both documentary and oral form, the Tribunal correctly stated that the prescribed criteria for the grant of a protection visa was set out in Part 866 of Schedule 2 of the Migration Regulations and that for the purposes of the application the applicant had to demonstrate that she was a person who was a refugee: "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; ..." The Tribunal correctly addressed the relevant test to be applied by reference to the High Court's analysis in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and correctly noted the two element test involved in the concept of a "well‑founded fear of persecution," namely that the applicant have a subjective fear and that there be an objective justification or foundation for it. It noted that a fear of persecution was well‑founded if there was a "real chance" of a person being persecuted on return to the country of nationality and that a "real chance" was one that was substantial as distinct from remote, substantial or far‑fetched. The Tribunal then made findings on the evidence before it. The Tribunal accepted that the applicant's father had been persecuted for political reasons during the cultural revolution but concluded that the applicant had not suffered such persecution. It noted that she had married a person before the end of the cultural revolution who did not have a bad family background and noted that she had been allocated a teaching position in 1979 which she had retained until she left for Australia. The Tribunal concluded that there was not a real chance that the applicant faced persecution on account of her family background. The Tribunal then turned its attention to the applicant's evidence in respect of the period after her husband's death in March 1987. The Tribunal accepted that the applicant's husband had passed away early in 1987 and then said: "However, in view of the trials and tribulations the Applicant claimed she and her children endured in the aftermath of that death, the Tribunal is incredulous that she failed to make a timely refugee application after her arrival in Australia, particularly as she submitted that her 'husband's political activities and his miserable death is the direct reason that I decided to quit China.' The Applicant claimed that her reference in her initial submissions to her husband's activities in 1989 was a typographical error and that it was really a reference to 1987. While she has consistently stated that her husband passed away in 1987, her response to questions 60, 61, 62, 64 and 65 of the application form make it clear that she was also claiming that her husband was active in 1989, finishing with '[b]y that time, I was really worried about another persecution to him.' As mentioned above, the evidence leads to the conclusion that her husband passed away in 1987. In view of that conclusion, the Tribunal finds that her claims regarding his 1989 activities are indicative of her willingness to fabricate claims that she believes may help her case." The reference to the initial submissions in this passage is a reference to the applicant's written statement of 1 December 1993 in which her response to questions 60, 61, 62, 64 and 65 of the application form was: "My husband's suffering in China convinces me that China was not a country ruled by law, it was a dictatorial country.

In 1989, when the Chinese student's movement happened in Beijing, my husband was not only a participant, but also an organiser, he organised the people to go against the bureaucracy of the CCP and I actively called on people to support students movement. All his activities were open and known to the public. His deep involvement in anti‑government activities has aggravated my fear of persecution. He thought democracy would be successful this time, he released all my thoughts and feelings. However he was wrong again. After the student movement was cracked down, the government was pursuing a repressive policies which were more cruel than those in the Cultural Revolution. By that time, I was really worried about another persecution to him. THE PENAL LAWS OF THE PEOPLE'S REPUBLIC OF CHINA STATES THAT THOSE WHO HAVE COMMITTED, ON COUNTER-REVOLUTIONARY PURPOSES, ONE OF THE FOLLOWING CRIMES, SHALL BE SENTENCED TO 5 OR LESS THAN 5 YEARS OR BE DEPRIVED OF POLITICAL RIGHTS. THE CHIEF CRIMINAL OR THOSE GUILTY OF THE FOLLOWING MOST HEINOUS CRIMES, SHALL BE SENTENCED TO MORE THAN 5 YEARS IMPRISONMENT: A) INCITE PEOPLE TO DEFY OR TO INTERFERE WITH THE ENFORCEMENT OF LAW AND DECREES. B) DO PROPAGANDA OR INCITE PEOPLE BY USING SLOGANS, OR LEAFLETS BEARING COUNTER-REVOLUTIONARY CONTENTS, OR BY OTHER MEANS, TO OVERTHROW STATE POWER BASED ON THE PROLETARIAN DICTATORSHIP AND THE SOCIALIST SYSTEM. What he did during 1986 student movement clearly breached the Penal Laws of the P R China. He was charged of inciting people to overthrow the Communist Party. He was regarded by the Chinese authorities as a person had profiled in political activities to such a degree that he suffered persecution after student movement in 1986, he was put into jail, and he could not bear such persecution, he was persecuted into death in 1987. The above experience proved that all my family suffered much mental and physical persecution".

The Tribunal then proceeded to consider a number of aspects of the applicant's evidence and inconsistencies in it. The Tribunal prefaced this examination by the following statement: "An overall consideration of the Applicant's claims demonstrates that she was willing to fabricate, amend or exaggerate her evidence in pursuit of her claims to be a refugee. Of course, this does not mean that none of her claims are genuine or that she cannot be a refugee. In saying this, the Tribunal is mindful of the comments of Foster J in the recent case of Guo Wei Rong v Minister for Immigration and Ethnic Affairs (unreported, Full Federal Court, 26 February 1996) that exaggeration or fabrication of claims does not necessarily exclude the possibility that there is a hard core of credible evidence that indicates that an applicant is a refugee (at p 460) and that mere doubts about credibility do not exclude a real chance of persecution. To exclude a real chance of persecution on the basis of an applicant's credibility, his Honour stated that 'a positive state of disbelief would be required on the part of the decision‑maker' (at p 458)." (Guo Wei Rong is now reported (1996) 64 FCR 151.) The Tribunal examined the applicant's claims that her husband's activities were open and known to the public and noted that this was at odds with other statements she had made, such as that she was unaware of her husband's political activities until much later. The Tribunal analysed in some detail the applicant's claims that she had been subjected to difficulties because of her husband and noted various inconsistencies in her evidence. The Tribunal then said: "The Applicant stated that her husband's treatment and death were the principal motivating factors in her departure for Australia, yet she left her children in China and she was still not motivated to seek protection soon after her arrival in Australia and thus be re‑united with her children. Her failure to lodge a timely application and the fact that she remained at work in charge of primary school children, support a conclusion that she was not systematically harassed because of her husband's alleged activities. In the circumstances, and in view of her willingness to contrive evidence, the Tribunal finds that she has concocted the story that her husband was a dissident counter‑revolutionary. It follows that the alleged consequences - surveillance and reduced salary - are also concocted. The Tribunal finds that the Applicant's husband passed away in 1987, but rejects as far‑fetched the claim that he was charged with being a counter‑revolutionary and that, as a result, the Applicant was deprived of salary and benefits to which she was otherwise entitled. It is possible that she lost some marriage and/or work‑related financial and welfare benefits as a consequence of her spouse's death, but the chances that such losses were Convention‑related are, in the circumstances, very remote." The Tribunal then analysed the applicant's claims of participation in the 1989 demonstrations and identified inconsistencies in those claims. The Tribunal noted that the applicant's application form was silent as to these activities and that she had later said that she had led her students in demonstrations. The Tribunal said it was unaware of any information which suggested that primary school students were involved in the demonstrations of 1989. The Tribunal then examined the applicant's claims relating to how she obtained her exit documents which claims the Tribunal said had changed and had expanded over the period of her submissions. The Tribunal found that there was not a real chance that the applicant had been denied permission to leave on account of her political opinions or family background. The Tribunal then turned to the applicant's claims that in order to obtain her exit documentation the applicant had been compelled to resort to bribery and had been forced to submit to sexual demands which was evidence that she was subject to harassment for a Convention reason. This gave rise to the applicant's claims of sexual abuse. These claims were rejected by the Tribunal in the following passage: "These claims of being sexually abused were not made until after the refusal of the initial application. In some cases there will be cogent reasons for an Applicant not disclosing some relevant information. However, in this case, given the amount of time the Applicant was in Australia before she made any claims, that she initially had a female legal adviser and was interviewed by a female Departmental employee who gave her every opportunity to fully disclose her evidence, and in the absence of any medical or psychiatric report that she was suffering from psychological disorder that operated to suppress her past history, the Tribunal finds that the Applicant contrived the claims about sexual abuse in order to enhance her claims to be a refugee. She had many previous opportunities to make claims of sexual abuse but did not do so and even after the claims were first made they were amended. For instance, in the statement of March 1994 she stated that she rejected advances by the school Principal in relation to the issue of her passport, while later she told the Tribunal that she was subjected to sexual abuse by that person in order to obtain that document. In all of the circumstances, the Tribunal rejects as contrived, the claims regarding sexual abuse."

The Tribunal examined in some detail evidence available to it as to how exit documentation could be obtained and it also took into account evidence of other witnesses who gave evidence for the applicant. The Tribunal's conclusion was that there was not a real chance that the applicant was denied permission to depart or was subjected to abusive behaviour in order to obtain permission to leave on account of her political opinions or family background. The Tribunal noted that the applicant had suggested that her bribery of officials or forced submission to sexual demands was evidence that she was subject to harassment for a Convention reason and the Tribunal noted it was common for Chinese citizens to resort to bribery to obtain permission to leave. The Tribunal found that the true position was that the applicant had to pay a bribe to obtain the relevant documentation rather than be subjected to sexual abuse but concluded that there was not even a remote possibility that the payment of a bribe was related to the applicant's political opinions or any other Convention reason. The Tribunal then assessed the applicant's claims and evidence that her children had been denied a secondary education and concluded that any problems with schooling were not Convention related and did not indicate in any way that the applicant faced persecution or lesser harm should she return to the People's Republic of China. The Tribunal examined the applicant's claims about her 1989 activities and found that the applicant's claims of participation in and leadership of anti‑government activities were marked by "escalation, exaggeration, fabrication" (page 26). It is important to note that the Tribunal, in assessing the applicant's claims considered the evidence of her defacto spouse Cai Wen Ping. There were a number of inconsistencies in the evidence of the applicant and Mr Cai as to the nature and extent of their relationship and the extent to which the applicant had been involved in pro‑democracy activities in Australia. One of the issues facing the Tribunal was the delay of the applicant in applying for refugee status and her evidence in this respect was inconsistent. At one point of time the applicant had said that in June 1993 she had not considered applying for refugee status since she did not understand that option was available to her. The Tribunal noted that this evidence was subsequently contradicted. The Tribunal said that it had "no doubt that the applicant had some interest in the refugee application process" and was aware of her right to apply for refugee status long before mid‑1993. The Tribunal did not regard as credible the claim that the applicant would have been unaware of "the possibility of pro‑democracy dissidence in Australia being a basis for a refugee claim" having regard to her claims of involvement in the movement and friendship with office‑holders. The Tribunal's conclusion was that there was: "Not even a remote chance that the applicant was unaware of the right to make the refugee application well before she did, in fact, lodge her application. Nor is there a remote possibility that she was unaware of the relevance and significance of pro‑democracy activities in Australia when making such an application" (page 29). The Tribunal said that the applicant's pro‑democracy activities in Australia were contrived to support her claim for refugee status and that her evidence in relation to her pro‑democracy activities in Australia was self serving. The Tribunal stated specifically: "While the possibility that the Applicant engaged in these activities for bona fide political reasons or reasons of conscience cannot be absolutely ruled out, it remains remote and far‑fetched in the circumstances of this case". The Tribunal relied upon the decision of the Full Court of the Federal Court in Somaghi v Minister for Immigration Local Government and Ethnic Affairs (1991) 31 FCR 100, 117-118 for the proposition that a person could acquire refugee status in the country of residence as a result of events occurring after the person left his or her country of origin which events could arise solely from the person's own actions. However, the Tribunal found in accordance with the principles set out by Gummow J in that case that the applicant did not have a well‑founded fear of persecution on the basis of her activities in Australia "as they have been undertaken for the sole purpose of creating a pretext of invoking such a claim". The Tribunal went on to find that even if it was wrong in this respect the available evidence was that the applicant did not face a real chance of persecution should she return to the People's Republic of China because of that country's attitude to people involved in pro‑democracy activities overseas. The Tribunal found that: "... it is not activists who have developed a profile of leaders and organisers through their association with overseas pro‑democracy groups who represent a threat to the Chinese authorities, but those with a history of dissidence and leadership on the mainland."

The Tribunal also noted that the applicant was a "low profile participant" and that her minor role was such that she met no significant difficulties in 1989 before leaving with legal documents. The Tribunal concluded that the applicant's activities in the People's Republic of China and Australia would not result in her facing a real chance of being persecuted for her political opinions should she return and that there was not a real chance that applying for refugee status would lead to any consequences of persecution. Was the "real chance" test applied correctly? Mr Niall, who appeared for the applicant, submitted that the Tribunal's error of law involving an incorrect interpretation of the applicable law and an incorrect application of the law to the facts as found by the Tribunal was that the Tribunal had failed to interpret or apply properly the "real chance" test. He submitted that the power to receive sworn evidence which the Tribunal had used (s 427(1)(a)) carried with it legal principles which the Tribunal was obliged to observe. He submitted that the Tribunal had drawn an inference of fact namely that the applicant was willing to fabricate claims that she believed may help her case, which inference was not open on the evidence. The Tribunal's initial finding that the applicant had a willingness to fabricate claims that she believed may help her case was based upon the fact that in her initial written submission of 1 December 1993 she had referred to her husband's activities in "1989" which she said was a typographical error for "1987". (According to the evidence narrated by the Tribunal, the applicant's husband had been arrested in December 1986). The Tribunal found that the response to the questions in the statement made it clear that the applicant was saying that her husband was involved in student activities in 1989 when in fact he had passed away in 1987. Mr Niall accepted that the Tribunal's finding on this point was a strong finding on credibility but said that the Tribunal concluded from the start of its examination of the evidence that the applicant had a willingness to fabricate her claims. He submitted that the finding of fabrication of the husband's activities in 1989 (which he said was not open) infected the Tribunal's other findings on credibility as it was carried through the reasons. Is this submission a complaint that there was a misinterpretation or a misapplication of the real chance test, or is it rather a complaint that the Tribunal made a finding on the applicant's credibility which was not open to it. There is nothing in the Tribunal's reasons which gives rise to any warrant for the proposition that it misinterpreted or misapplied the real chance test. Rather the submission appears to be that in finding that the applicant was prepared to fabricate her claims the Tribunal put itself in a position where it could not apply the "real chance" test to the relevant facts as they were not accepted by the Tribunal. Mr Niall submitted, consistently with the observations of Foster J in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 191, that to exclude a real chance of persecution on the basis of an applicant's credibility "a positive state of disbelief would be required on the part of the decision‑maker". The Tribunal correctly identified this principle and on a fair reading of the Tribunal's reasons it possessed the relevant positive state of disbelief. Mr Niall referred extensively to the reasoning of Foster J in Guo Wei Rong (supra, 191-194) in support of his submission that the Tribunal's initial finding of fabrication in relation to the applicant's claims as to her husband's activities so affected its consideration of other evidence that it had not approached the evidence as Foster J had said a Tribunal should in Guo Wei Rong. He relied in particular on the following passage from Foster J's reasons (194): "I would also make the observation that even the most experienced decision‑maker can encounter considerable difficulty in assessing the credibility of a witness, especially where that witness is disadvantaged by problems of language and lack of familiarity with the situation in which he or she is placed. It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self‑contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted." Mr Niall said that the majority of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 had not taken issue with these observations and that Kirby J (293) had supported them. In essence the submission was that by making an initial finding of fabrication in relation to the husband's activities the Tribunal did not in fact apply the "real chance" test or make the required speculation in relation to the other claims and evidence of the applicant. On one view it can be said that the reference to "1989" in the first part of the answer to questions 60, 61, 62, 64 and 65 was clearly a typographical error as there was a reference to the death of her husband "in 1987" at the end of the answer. However, as Mr Gunst, who appeared for the respondent, pointed out, if the answer, with the claimed typographical error corrected, meant that the applicant's husband was a participant or organiser of the Chinese students movement in Beijing in 1987 (or in 1986), then that was an incorrect statement as in a later statement submitted to the Tribunal dated 20 March 1994 the applicant had stated that in December 1986 the applicant and her husband had been living in the city of Fu Zhou, not Beijing. In essence Mr Niall submitted that by concluding at an early stage that the applicant had a willingness to fabricate or exaggerate her evidence, the Tribunal was not then in a position to apply the real chance test to the relevant facts. There is a fundamental problem with this submission in the context of a failure to interpret properly, or properly apply, the relevant chance test. If the effect of the Tribunal's finding that the applicant had a willingness to fabricate or concoct her evidence on a particular point or issue has the result that the applicant's evidence on that point or issue is disbelieved, does it follow that the real chance test has either been misinterpreted or misapplied? That depends on how the Tribunal approaches the rest of the claims and the evidence led in relation to them. If the Tribunal said - because I regard the claim in relation to the husband's activities as fabricated, I reject the applicant's claims and evidence in relation to her participation in the 1989 demonstrations and how she obtained her exit documentation and her pro‑democracy activities in Australia without evaluating whether the evidence in relation to those matters disclosed a real chance of persecution - then there would be an error in the application of the "real chance" test and it would not be in accordance with the observations of Foster J in Guo Wei Rong (supra). In such circumstances the Tribunal would not be engaging in reasonable speculation on a real chance of persecution arising from the whole of the evidence. But that is not how the Tribunal went about its task. As I have set out earlier the Tribunal analysed the evidence in relation to each claim upon which the well‑founded fear of persecution was said to be based, engaged in the required speculation in respect of that evidence and reached a conclusion in relation to each claim. Although the Tribunal made findings adverse to the applicant's credibility in respect of these claims it did so for stated reasons in relation to each claim. To that extent the Tribunal did not disregard the approach adopted by Foster J in Guo Wei Rong (supra) and did not take on "over-stringent approach" which resulted in an "unjust exclusion" of any of the evidence. The Tribunal gave relevant consideration to all the evidence available in relation to each claim. In Guo Wei Rong (supra), in analysing the process of determining whether the facts put before a decision‑maker are sufficient to satisfy the real chance test Foster J said: "Questions of the applicant's credibility as a witness are, also, obviously involved in the process. Serious concerns about the creditworthiness of an applicant's testimony can, of course, be fatal to a favourable finding on the balance of probabilities. However, a finding that he or she has failed to establish fact A on the balance of probabilities because, in all the circumstances, including matters of demeanour, the decision‑maker is not prepared to accept the applicant as a credible witness does not, as a matter of logic, necessarily mean that the possibility of the applicant's correctly asserting the existence of fact A has been entirely excluded. Mere doubts or concerns as to the applicant's credibility would not be sufficient to exclude the possibility. For this result, a positive state of disbelief would be required on the part of the decision‑maker" (191). The Tribunal reached a positive state of disbelief in relation to the claim based on the husband's activities. That positive state of disbelief may not have been justified if the applicant's explanation of a typographical error had been accepted. There is certainly a confusion in relation to the applicant's answer to questions 60, 61, 62, 64 and 65 in the application form. The applicant said that the reference to "1989" was a typographical error for "1987". If this had been the only statement of the applicant used by the Tribunal to conclude that the applicant fabricated her claims I would doubt that it would provide a sufficient basis for forming a judgment on the credibility of the applicant in relation to other aspects of her evidence. It would not in my view be consistent with the approach adopted by Foster J in Guo Wei Rong (supra). Nevertheless the Tribunal's assessment of the credibility of the applicant was not based solely on its finding on the claim based on the husband's activities. On each occasion on which the Tribunal did not accept the applicant's claims or evidence in respect of a particular issue it explained its reasons for not accepting the claim or the evidence. In each case there was evidence before the Tribunal which entitled it to reach the conclusions it reached. For example, the Tribunal did not accept that there had been any adverse consequences to the applicant for a Convention reason as a result of her claim that her husband was a dissident counter‑revolutionary. The Tribunal noted that the applicant had said that her husband's treatment and death were the principal motivating factors in her departure for Australia yet, as the Tribunal pointed out, she left her children in the People's Republic of China and was still not motivated to seek protection soon after her arrival in Australia. The Tribunal concluded that the applicant was not systematically harassed because of her husband's alleged activities and took into account the fact that she remained at work as a primary school teacher as well as her failure to lodge a timely application for refugee status, a matter which the Tribunal was entitled to take into account: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. In this context it is important to remember the observations of the majority of the High Court in Wu Shan Liang (supra) at 272: "... the reasons of an administrative decision‑maker are meant to inform and not to be scrutinised upon over‑zealous judicial review by seeking to discern whether some inadequacy may be gleamed from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision‑maker upon proper principles into a reconsideration of the merits of the decision." Kirby J also set out a number of principles which he said should guide courts in supervising decisions of the type under consideration. He said at 291: "1. The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision‑maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law. ... 3. Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision‑maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law. ..." In my view, when one reads the Tribunal's findings individually and then overall it is not possible to discern any error of law in the interpretation or application of the "real chance" test to the underlying evidence placed before the Tribunal bearing in mind it was for the Tribunal and not for the Court to determine whether the applicant should be believed: cf Eshetu v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 474, 480. To accede to the applicant's submissions would, in effect, be to conduct a merits review. I recognise that in Wu Shan Liang (supra) Kirby J went on to say at 293: "Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance, as required by Chan cannot be reduced to scientific precision. That is why it is necessary, notwithstanding particular findings, for the decision‑maker in the end to return to the question: 'What if I am wrong'? Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems 'likely' or 'entitled to greater weight', the decision‑maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, in so far as they are said to give rise to a 'real chance' of persecution."

In my view the Tribunal did not disregard this approach and, indeed, it re-visited the issues. Having examined the evidence in relation to each claim and made findings on each claim the Tribunal considered all the circumstances, re‑visited the issue of whether there was a real chance of persecution (pages 37-39) and concluded that there was not a real chance that the applicant faced persecution for a Convention reason if she returned to China.

It follows that grounds of review 1 and 2, that the decision involved an error of law involving an incorrect interpretation of the real chance test or an incorrect application of the real chance test to the facts as found by the Tribunal, are not made out. The particulars relied on also encompassed claims that the Tribunal failed to caution or direct itself properly on the level of satisfaction required in coming to a conclusion on the applicant's credit or on the fact that evidence was given through an interpreter, that the evidence had an alternative explanation to that of concoction or fabrication and that in recounting episodes of traumatic sexual abuse a failure to make a reasoned complaint does not indicate the fabrication of claims. The Tribunal expressly referred to the comments of Foster J in Guo Wei Rong (supra) and gave detailed consideration to the applicant's claims and evidence. In my opinion the Tribunal recognised the need to be careful in forming an adverse view of the applicant's credit and did not misdirect itself in the terms particularised. I do not consider that there was any error of law by the Tribunal in the manner in which it approached the sworn evidence of the applicant and her witnesses. The fact that the Tribunal was empowered to have the evidence before it given on oath does not, in my view, mean that the Tribunal needs specifically to direct itself, for example, as to the significance of the distinction between an honest mistake and a deliberate falsehood. Mr Niall relied upon Mackenzie v The Queen (1996) 141 ALR 70, 88-89 for the proposition that such a distinction should have been adverted to by the Tribunal. However, in that case the issue arose in the context of a trial before a jury where it was necessary for the jury to be directed properly as the determiner of fact and, in any event, the relevant offence was perjury, an element of which required that distinction to be drawn. There is nothing in that authority which suggests that the Tribunal erred in the present case. Mr Niall also submitted that the finding that the applicant's claims as to sexual abuse were contrived also involved the Tribunal misdirecting itself on a question of law. He submitted that the Tribunal failed to consider the reasons which might exist for not disclosing the issues of sexual abuse. Even if this was a correct interpretation of what the Tribunal did, it would not give rise to a reviewable ground. To make that complaint is to do no more than invite the Court to reach a different conclusion on the merits. In any event, I consider that the Tribunal had in mind the difficulties which a woman might have in disclosing matters of an intensely personal nature in relation to sexual abuse when it referred to the fact that the applicant initially had a female legal adviser and was interviewed by a female departmental employee who gave her every opportunity to disclose her evidence fully. The Tribunal was entitled to take these matters into account, as well as the period of time the applicant was in Australia before she made any claims (Selvadurai v Minister (supra)) and when the Tribunal found that in the absence of any medical or psychiatric report that she was suffering from psychological disorder that operated to suppress her past history the claims about sexual abuse were contrived, it was doing no more than weighing all the evidence together. Is the "no evidence" ground of review established? It was submitted as an alternative ground that the Tribunal was required to reach its decision only if it was established that the applicant had fabricated her claims and that there was no evidence on which it could be reasonably satisfied that this was the case. For the reasons I have given, this ground is not made out as, apart from the first finding, there was evidence on which the Tribunal could be satisfied that the applicant's claims had been fabricated or exaggerated. In any event the ground relied on is circumscribed by s 476(4) of the Act and as Olney J pointed out in Tho Xuan Doan v Minister for Immigration Local Government and Ethnic Affairs (9 April 1997, unreported) the ground under s 476(1)(g) is rarely available because it is difficult, if not impossible, to identify any particular matter required by law to be established to justify a decision that an applicant is not a refugee. The facts which the Tribunal found, after making findings based upon the credibility of the applicant and her witnesses, did not satisfy the Tribunal that the applicant was a refugee. There was no legal requirement that the Tribunal reach the decision that the applicant was not a refugee only if a particular matter was established. In my opinion the submissions based upon s 476(1)(g) are misconceived. Was there a failure to observe procedures? The applicant also relied upon the ground of review contained in s 476(1)(a) of the Act that procedures required by the Act to be observed were not observed. However, no specific procedure laid down by the Act or Regulations was identified by the applicant other than the fact that the Tribunal was bound pursuant to s 425(1)(a) to give the applicant an opportunity to appear before it to give evidence. It was submitted that the Tribunal misapplied the law relating to the giving of evidence by the applicant by: (a) failing to warn the applicant that her evidence was likely to be found to be the subject of recent invention; (b) failing to warn or direct itself about the dangers of using a delay in the reporting of sexual abuse as evidence of fabrication or concoction; (c) failing to warn or direct itself about the dangers inherent in deciding questions of credit when a witness is giving evidence through an interpreter. None of these matters are to be found in the Act or the Regulations as required by the Tribunal to be observed. In the final analysis the applicant's principal contention, which underlay all the grounds of review relied upon, was that the Tribunal should not have found that the applicant had a willingness to fabricate her evidence. That submission says no more than that the Tribunal should not have reached the conclusions of fact it did. The authorities are clear that a review by the Court should not reach conclusions of fact different from the Tribunal under review, particularly where the credibility of witnesses was an issue, unless the Court is satisfied that the Tribunal's advantage of seeing and hearing the witnesses does not explain the decision or that the advantage had not been used or had been misused or that the conclusions reached by the Tribunal were inconsistent with an overwhelming body of evidence or were glaringly improbable: Abalos v Australian Postal Commission (1990) 171 CLR 176, 178‑179; Devries v Australian National Railways Commission (1993) 177 ALR 472, 479; Warren v Coombes (1979) 142 CLR 531, 537, 552-553. Although I have a feeling of unease about the Tribunal's finding (decision p 20) that her answer to questions 61, 62, 63, 64 and 65 showed a willingness to fabricate claims about her husband's activities, there was significant evidence before the Tribunal which entitled it to find that there was not a real chance of persecution of the applicant for the reasons which she had advanced if she returned to the People's Republic of China. In those circumstances the Tribunal therefore did not misinterpret or misapply the real chance of persecution test, did not fail to observe any procedures required by the Act or the Regulations to be observed by it, and was not required to reach its decision that the applicant was not a refugee only if a particular matter was established. The application will be dismissed.

Counsel for the applicant: Mr R Niall Solicitors for the applicant: Baker & Armstrong Counsel for the respondent: Mr C Gunst Solicitors for the respondent: Australian Government Solicitor Date of Hearing: 23 April 1997 Date of Judgment: 16 May 1997 I certify that this and the preceding thirty-one (31) pages are a true copy of the Reasons for Judgment of the Honourable Justice Goldberg Associate: Date: 16 May 1997