The Smidt Tribunal decision: findings
The section of Ms Smidt's reasons headed "Assessments of Mr Sun's claims and matters to be determined" commenced with a short summary of his case. Ms Smidt then commented:
"There is no doubt that human rights abuses occur in China and that some Chinese citizens have been detained or faced other serious problems as a result of their opposition to the government.
I must now assess whether Mr Sun faces real chance of such treatment on his return to China as an individual or as part of a class of individuals. In order to do this, I will begin by make [sic] findings of fact regarding Mr Sun's past activities."
Ms Smidt's first finding of fact dealt with Mr Sun's identity. I will set it out in full:
"I do not accept that Mr Sun never possessed a visa for Australia or that he destroyed his passport and boarding pass immediately before his departure from New Guinea because he intended to apply for refugee status and did not want to mislead Australian officials by entering the country with false documents.
Under the Migration Act, airlines face large fines, plus any costs relating to detention and removal of people who travel to Australia without proper documentation. I have no doubt that agents responsible for boarding passengers are aware of this and that they risk serious disciplinary actions if they boarded people in these circumstances. Mr Sun claims that the check-in agent allowed him to board the plane in PNG without documents because he was sympathetic to his plight. Yet Mr Sun was not fleeing persecution in New Guinea. He was in possession of a passport which had been accepted as genuine by the migration officials in both Hong Kong and PNG and could easily have applied for a visitor visa for Australia in PNG. In these circumstances, I consider there is no more than remote possibility that even the most compassionate booking agent would have allowed him to board the plane without a visa. Furthermore, the agent who boarded Mr Sun in Port Moresby has provided a statutory declaration stating that Mr Sun's passport contained visas for both Australia and New Zealand. The agent's supervisor has stated that the agent in question had refused to board passengers on this and other flights, even when there appeared to be compassionate reasons for doing so. In these circumstance, I do not believe that Mr Sun boarded his Air Nuigini flight in PNG without a visa for Australia.
In reaching this conclusion I have noted Ms Le's suggestion that her client may have been able to board the plane in PNG because the airline official was careless. However, Mr Sun himself has never suggested this to be the case. He has always claimed that the official was aware than [sic] he had no visa, but still allowed him to board his flight.
The departure card completed by Mr Sun and checked by PNG migration officials prior to his departure contains information which contradicts Mr Sun's claims regarding the details contained in the passport he used to enter and leave PNG and the period he remained in the country. Mr Sun claims that these details have nothing to do with the identification he was carrying and he wrote them on the card so it would appear full. I do not accept that, rather than complete the card in accordance with the information contained in his passport, Mr Sun would have provided an almost completely different set of information. Furthermore, while I acknowledge that migrations officials may overlook some differences between the information contained on a departure card and that contained on a passport when checking a departing visitor, I do not believe they would have failed to notice such significant differences as those contained in the documents provided to them by Mr Sun. I believe the details on Mr Sun's departure card are substantially the same as those on his passport.
Mr Sun claimed that he destroyed his passport because he did not want to mislead Australia [sic] officials by entering Australia using false documents as he intended to apply for refugee status. Mr Sun had no such scruples about using this passport when entering or leaving Hong Kong and New Guinea and I find this explanation far-fetched and implausible. Furthermore, as noted above, I believe that the passport Mr Sun held when he boarded his flight from Port Moresby to Australia contained an Australian visa and contained different personal details (age, occupation, martial [sic] status and possibility [sic] even name) from those which Mr Sun claims it contained. Mr Sun is clearly concealing information about his passport and I do not accept that he destroyed it because he did not want to deceive the Australian authorities.
I have also noted Ms Le's suggestions that Mr Sun may have destroyed the passport he held in New Guinea to avoid deportation or to protect those who helped him to leave China. As Ms Le herself stated, these suggestions are mere speculation on her part. While it has been noted that decision makers must speculate to some extent when determining applications for refugee status, this surely cannot mean that speculations of this kind need be given serious consideration. Mr Sun must know why he destroyed his passport and it is his explanation, rather than Ms Le's speculation, that is relevant to the Tribunal. Mr Sun has never claimed that he destroyed his passport for the reasons suggested by Ms Le and I have no reason to suppose that either of the explanations is true. Had Mr Sun destroyed his passport to avoid deportation or to protect those who provided him with the document, he would have lost nothing by saying so.
I find the destruction of Mr Sun's passport and boarding pass immediately prior to his entry a clear indication that he wished to conceal information about his identity and/or the manner in which he left China.
In a statement dated 18 February 1996, Ms Le submits that neither she nor her client had the power or the capacity to obtain evidence which would corroborate his claims regarding his identity and the manner in which he travelled to Australia. Mr Sun claims that he spent some six months living and working for a Chinese man in PNG before coming to Australia. However, he refused to name this man to Mr Fordham and even after it was pointed out that this Tribunal had difficulty accepting his claims regarding the identity he used in PNG and the length of [sic] he spent in that country, made no attempt to obtain corroborating evidence from his friend. Mr Sun told Mr Fordham he did not wish to name his PNG friend because he did not wish to 'implicate' him in his case. According to Mr Sun's evidence this man did no more than offer him friendship and assistance while he was in PNG, actions which could cause him no serious harm. Furthermore, all information passed to the Tribunal is held in confidence, a fact explained to Mr Sun by both the Department and the Tribunal. I find Mr Sun's failure to even attempt to seek evidence from his friend a further indication that he is concealing information about his identity and his time in PNG."
Reflecting things put in argument, a number of comments may be made about this finding. First, it is not clear what Ms Smidt was saying about identity. In the last sentence of the passage she referred to him "concealing information about his identity". So she apparently doubted he was the person he said he was - Sun Zhan Qui, the son of Sun Hai and Li Nai of 159 Hai Zhu Road South, Guangzhou. That was a matter that could easily have been checked with the assistance of the Australian Consulate in Guangzhou and, perhaps, a photograph of the person applying for refugee status. But Ms Smidt had cancelled the request even to verify the address.
Second, Ms Smidt did not accept that Mr Sun never possessed a visa for Australia. She thought he had a visa when he departed Port Moresby, that it was contained within the passport he then held and the details on his Papua New Guinea departure card were "substantially the same as those on his passport". It follows that the passport must have been in the name of "Jegu Sun" (or perhaps "Sun Jegu") and the visa likewise. Yet Ms Smidt had no evidence to suggest that the Australian authorities ever issued a visa to anyone named "Jegu Sun" (or "Sun Jegu"). Had a search of the computer base of the 88 page list been made, it would have established they had not. But Ms Smidt had withdrawn her request for information about visas. Instead, she chose to reach a conclusion by reference to the position of the check-in agent. If she was minded to put weight on that factor, it would at least have been desirable to call for his statutory declaration; but she did not do so. If she had, it seems, she would have discovered that - contrary to a statement made earlier in her reasons and quoted above - the statutory declaration had not been provided to the Department. There is no evidence that such a declaration ever reached Australia. It may not have existed at all.
The true identity of the applicant for refugee status was, of course, a matter of cardinal importance. Apart from that, the only relevance of Mr Sun's manner of travel to Australia was in relation to his general credibility. As Mr Fordham had pointed out, a lack of credibility in relation to one aspect of a refugee claim does not necessarily mean the claimant is to be disbelieved in relation to others. Nonetheless, any loss of faith in a witness' integrity will almost inevitably affect the decision maker's willingness to accept uncorroborated claims in relation to other matters, and in refugee cases there will always be claims incapable of corroboration. So it is important for a Tribunal member to make adequate inquiries before reaching a conclusion that an applicant is "concealing information" even on a peripheral matter.
The next finding of fact made by Ms Smidt concerned Mr Sun's participation in the 1989 pro-democracy movement. Here she parted company with Mr Fordham, who had found that Mr Sun was a university student in Beijing at the time and a participant in the movement, albeit a relatively minor one. Ms Smidt did "not accept that Mr Sun played a leading or an active part in the 1989 pro-democracy movement in Beijing". Indeed, she thought he was not even there, "he did not enter the People's University of China in Beijing in 1988". Ms Smidt reached this conclusion by reference to the university entry mark. She said:
"Mr Sun claims that he obtained an entry mark of 819 in his university entrance examinations in 1988 and that the total score possible in the national university examination in that year was 900. According to the Chinese Consulate in Sydney, the total mark obtainable in 1988 was 710 in science subjects and 640 in liberal arts. When this was pointed out to Ms Le in a letter dated 13 March 1996, she asked Mr Sun what the total score possible had been in 1988. According to her letter dated 24 March 1996, he stated that the highest score possible was 900, but added that the score had previously been 640. Ms Le submitted that the information obtained by the Tribunal may be incorrect and asked that it be verified.
The Tribunal first sought information on the entry requirements for the People's University of China in October 1995. Faxes requesting this information was sent to the People's University in Beijing, but no reply was ever received. On 17 January 1996, Song Shen, Consul, Education Section of the Consulate General of China in Sydney advised that the highest possible tertiary entry mark for 1995 was 750 for all students. Mr Song was then asked if he could advise the highest score possible in the university entrance examinations for the academic year beginning in 1988. He replied that the total mark obtainable in 1988 was 710 in science subjects and 640 in liberal arts.
The Tribunal sought information from other sources, including the National Office of Overseas Skills Recognition. In a letter dated 11 January 1996 a [sic] officer from NOOSR replied that while the examinations are national, the methods of calculating scores can vary from province to province. The most common method of calculating scores involves a maximum of 710-720 in the science stream and a maximum of 610-620 in humanities. The letter notes that those seeking entrance to university in Guangdong recently have been graded out of 900. However, there is nothing to suggest that those seeking entry into the People's University of China in 1988 were assessed out of a total score of 900 points.
I see no reason to [sic] I see no reason to doubt its veracity or its accuracy of the information received from the Chinese Consulate Education Section regarding the 1988 entry mark, which was in response to a specific inquiry regarding that particular year.
I consider the inconsistency between the information given by Mr Sun regarding his entry mark and that provided by the Consulate a strong indication that he did not enter the People's University of China in Beijing in 1988."
It is correct, as Ms Smidt said, that the Tribunal specifically asked the Chinese Consulate Education Section (but not NOOSR) about the 1988 entry mark; see the faxes mentioned above. On 1 February 1996 information was given about that matter (710 for science and engineering and 640 for the liberal arts). If she had had no other information, Ms Smidt could not be criticised for assuming these figures applied to Guangdong Province and concluding Mr Sun was lying, or at least mistaken, when he claimed to have scored 819 marks. But there was additional information. On 11 January 1995 NOOSR had advised that '"recently" other methods had been used "such as a percentile ranking on a scale of 900 in Guangdong Province". Ms Smidt did not follow this up. Had she contacted the Guangdong authorities, or even the Australian Consulate in Guangzhou, she would have found the 900 scale applied in Guangdong Province in 1988.
Lest it be thought I am being unduly critical of Ms Smidt in noting she did not inquire what NOOSR meant by "recently", I point out it was her decision to rely heavily on this point. Until she took charge of the case, it seems not to have been doubted that Mr Sun was a student at the People's University of China in Beijing in 1989 and participated in the pro-democracy movement. What was in issue was the extent of his participation and the likely consequences for him of that participation if he was returned to China. Ms Smidt was entitled to decide the application on a different basis, by questioning something everyone previously had accepted. However, if she was to approach the matter in that way, it was critical for her carefully to check her facts.
The next finding of fact made by Ms Smidt concerned the 19 April 1989 demonstration at Zhongnanhai. She said Mr Sun's account of this demonstration "differs significantly from other accounts before the Tribunal and I do not believe that he participated in this event". Ms Smidt noted Ms Le had pointed out there were two rallies at the Xinhuamen Gate, Zhongnanhai, one commencing on the evening of 18 April, the other the following evening. Ms Smidt referred to a description of these rallies in "Quelling the People", by Timothy Brooks. She quoted that description. It includes an explanation that Zhongnanhai (Middle and South Lakes) is the former imperial pleasure park, west of the Forbidden City, where top government leaders live and work. Brooks said, on the evening of 18 April, students "gathered in front of Xinhaumen, the ornate entrance at the south end of Zhongnanhai, and asked to speak directly to Premier Li Peng". He then described attempts by the students to push their way through the gate and other disorder that lasted until 5am when the demonstrators dispersed. On the following day, there was a gathering at Tiananmen Square. By early evening the crowd had grown to over a hundred thousand:
"Later, several hundred students, followed by about eight thousand onlookers, proceeded once again to Party headquarters at Zhongnanhai. They reached the entrance gate of Xinhaumen at 11:30PM. Guards again prevented them from entering. The standoff continued until 3:40PM when the government broadcast another warning to disperse. Some were persuaded to leave an hour later, but the remaining few refused to go. A squad of unarmed PAP came to remove them. The students were hustled roughly onto a bus and driven back to their campuses. A few were kicked and beaten."
Ms Smidt went on to refer to other published accounts of the events of 19 April. They all included references to the students chanting and shouting insults and demands for the Premier, Li Peng, to come out for a dialogue. Ms Smidt thought these accounts inconsistent with Mr Sun's version of events. She said:
"Despite the differences between these accounts, one thing is abundantly clear; neither the demonstration which occurred at Xinhuamen on 18 April nor the demonstration which occurred there the following evening could be described as 'a silent sit down protest'. They were both noisy, physical demonstrations which at their height involved thousands of participants.
I acknowledge that Mr Sun provided his account of this rally to Mr Fordham nearly five years after the event. However, I do not accept that a young man of Mr Sun's intelligence would not remember in greater and more accurate detail the events of these momentous days. I do not believe that anyone who had attended this event would have described it as a 'silent sit down protest', and I do not believe that Mr Sun took part in this demonstration.
In reaching this conclusion I have considered Mr Sun's claim of 18 December 1995 that, while he was involved in a silent sit-down protest, other students were more vocal and actively engaged in attempting to gain entry to Zhongnanhai. The 19 April 1989 rally was discussed at some length during the hearing with Mr Fordham, but Mr Sun made no mention of more vocal students attempting to gain entry to Zhongnanhai; on the contrary he maintained that he had been involved in a silent sit down protest of several hundred students and no other demonstrators were involved. Mr Sun's claim that some students were more vocal than he was only made after it was pointed out that his account of events was at odds with the independent evidence before the Tribunal and I do not accept this explanation for the discrepancy between his evidence and that contained in the eye witness accounts before the Tribunal."
Mr Sun's evidence to Mr Fordham regarding this incident extends over several pages of transcript. Mr Fordham had some spelling and geography problems but Mr Sun's description clearly establishes it was the place described by Brooks. Mr Sun did not say what time he went to Xinhuamen gate but he said "a few hundred" students went there; they "sat down in silent protest" and "held up slogans". The slogans read "requesting for dialogue". He said the students stayed for a "very long time until 20 April am. The police came and chased them and arrested and then to back to school". Mr Sun said he stayed until he was "arrested and brought back to school". His evidence proceeded:
"MR FORDHAM: Can you describe how the police arrested you?
THE INTERPRETER: With the police rod and also the leather stuff and dragged them into the vehicle.
MR FORDHAM: When you say leather stuff what do you mean by leather stuff?
THE INTERPRETER: The leather belt.
MR FORDHAM: Were you put into a police vehicle?
THE INTERPRETER: It's not police vehicle, it is the prepared public vehicle.
MR FORDHAM: Did the police touch you when they put you on to the vehicle or did you just go on by yourself?
THE INTERPRETER: Grabbed. Dragged and grabbed. Dragged and grabbed.
MR FORDHAM: Threatened?
THE INTERPRETER: No, dragged.
MR FORDHAM: Oh, dragged?
THE INTERPRETER: And grabbed.
MR FORDHAM: And grabbed. So they physically held you?
THE INTERPRETER: Two, one on each side.
MR FORDHAM: And then when they put you into this public vehicle it brought you back to the university, is that what you are telling me?
THE INTERPRETER: Yes.
MR FORDHAM: How many other students were on this vehicle with you?
THE INTERPRETER: Full - the vehicle was full.
MR FORDHAM: And what sort of vehicle was it, was it a bus or was it a truck?
THE INTERPRETER: Bus."
This account does not refer to shouting, but otherwise it has much in common with that of Brooks. A lot depends on when Mr Sun reached the gate, a matter about which he was not questioned. On Brooks' account there was a "stand off" for about four hours, during which the students may well have sat down in silent protest holding placards. In this regard, it is interesting to compare another account, quoted by Ms Smidt, from "Mandate of Heaven" by Orville Schell:
"Late that night, some 20,000 demonstrators again flocked to Xinhaumen demanding that Li Peng come out for a dialogue. They chanted 'Let Cixi retire!' - an unflattering equation between Deng and the autocratic Empress Dowager Cixi who ruled during the last years of the Qing Dynasty. Just as their pushing and shoving against the beefed up phalanxes of police threatened to get out of hand ... Wu'er Kaixi .. began calling for the mob to sit down on the pavement. Almost miraculously, he succeeded in transforming the dangerous shoving match between the demonstrators and the police into a free form teach-in...
Despite Wu'er charismatic efforts to defuse the situation, events took a turn for the worse later that night. Around 3 am, when only a few hundred demonstrators remained in front of Xinhuamen ... policemen waded into the remaining demonstrators with clubs flying ..."
Ms Smidt then referred to Mr Sun's account of a demonstration on 27 April. She conceded that "(m)any of the details which he has given about this event accord with those in published accounts of the day". "However", she said, "there are some discrepancies between his account and that contained in other accounts". Ms Smidt then quoted five published accounts of the day and concluded:
"From the above it is clear that the students marched from their campuses to Tiananmen Square. Police barricades put up to prevent them reaching the Square were broken and the students marched on to the Square. However, they did not occupy the Square. They marched on along Changan Boulevard, which runs along the northern side of the Square. Some appears [sic] to have then returned to their campuses by bus, others continued on and marched around the city before marching back to their campuses. From these descriptions I do not believe that anyone who was present would have described the event as a three hour march beginning and ending in Tiananmen Square. Such a description could only be made by someone who was not present.
I also note that Mr Sun told Mr Fordham that there was no military presence during the time of the march. From the accounts quoted above, it is clear that, for the first time, there was a military presence during this march.
In light of these problems, I don't believe that Mr Sun participated in this event."
The first thing that will strike any reader of the five published accounts is the differences between them. The first account (in "Tell the World" by Liu Binyan) has the demonstration starting during the day at Liubukou, near Zhongnanhai, and then breaking through a police cordon. According to this account, in the evening of 27 April, about 7pm, "the demonstrators gathered in Tiananmen Square and marched east back to the universities". Schell says, in the morning, "students from forty different universities surged out of their campus gates and, with banners flying, poured onto the streets". They pushed through cordons of police near their campuses and ultimately formed a long column of marchers comprising about 150,000 people. They passed by Xinhaumen before entering Tiananmen Square, from which they dispersed in different directions. Brooks put the crowd at "over a hundred thousand" but said that, when the students "converged at the Square, they found fifteen trucks and a tight cordon of hundreds of men in uniform awaiting their arrival. Rather than try to occupy the Square by force, the students simply walked by it along Changan."
Fathers and Higgins, in "Tiananmen: The Rape of Peking", spoke about a "14 hour parade" that was "150,000 strong and covered nearly 25 miles". These writers agree the students did not enter Tiananmen Square, but this was not because they were blocked by trucks and men in uniform but because they chose not to. However, Fathers and Higgins also said the students "seize(d) virtual control of the centre of Peking". They described the students surrounding a convoy of 20 military vehicles filled with soldiers that was parked outside the Great Hall of the People:
"Anger quickly turned to farce, as it became clear that the troops wanted to [do] nothing more than escape ... officials looked on helplessly as the parade flowed by. Then, the students had one more surprise in store for them; rather than halting to occupy Tiananmen Square, they marched straight on past, chanting and singing as they entered on the homeward leg of their journey. They had conquered Tiananmen. They knew it. The officials knew it. There would be no need for further ado..."
Terril ("China in Our Time") wrote of "a tumultuous rally of one million people that made of Tiananmen Square a district of dissent" and "a display of popular will that lasted eighteen hours". He quoted a student's account of police blocking the marchers' road at Liubukou.
To take only one point, it will be noted two of these writers (Liu and Schell) have the students entering Tiananmen Square, two of them have the students failing to do so (Brooks because this would have needed force and Fathers and Day because they chose not to do so, despite the absence of resistance) and one leaves the matter unclear.
Mr Sun told Mr Fordham that 27 April was the date of the "establishment of the students' autonomous federation in Beijing" when "they held a big march for the first time". He said he was involved in the march. Asked to estimate the number of participants, he replied "Many students - hard to estimate". Mr Fordham sought "a rough figure" and Mr Sun replied "a few tens of thousands". He was asked "where did you start the march?"; and replied "from Tiananmen Square". He said the march went "around in circles" - not "around Tiananmen Square" but "in wider circles than Tiananmen Square". He named several streets and said "we returned to Tiananmen Square". Asked how long the march lasted, he responded "very long time"; pressed, "about three hours". Later he talked about "a few hours". Mr Sun said the march "caused a lot of the big crowds to watch in support" and spoke of crippling of traffic and the students carrying banners with slogans.
After referring to the various published accounts of the events of 27 April, Ms Smidt said she "did not believe that anyone who was present would have described the event as a three hour march beginning and ending in Tiananmen Square". With respect, however, the question Mr Fordham asked Mr Sun was "where did you start the march". The march was clearly an amorphous thing, gathering and losing participants over a long period and sometimes breaking into fractions.
I do not think it can fairly be said Mr Sun's account conflicts with any of the accounts quoted by Ms Smidt, only that it is less comprehensive. That is not surprising. Unlike the writers of the five works, Mr Sun was not pretending to give a global description of the events of that day; he was simply describing his participation and observations. On a day of tumult, there would have been much he did not see. It was a bold step for a person who was not herself in Beijing on 27 April 1989, and did not hear and see Mr Sun give his account, to conclude his description "could only be made by someone who was not present".
Ms Smidt then dealt with the period between 27 April and 4 June. I agree that Mr Sun's account of this period was sparse. It is not clear why it was, but Mr Fordham and Mr Sun were at cross-purposes for several pages of transcript between the end of Mr Sun's description of 27 April and the beginning of his description of 4 June. This was not Mr Fordham's fault; he did his best but many answers were confused or non-responsive. Perhaps Mr Sun was prevaricating; perhaps the interpretation was poor, as Ms Le suggested. However, three comments should be made. First, Ms Smidt said Mr Sun claimed he remained at Tiananmen Square for most of the period between 27 April 1989 and 4 June 1989, returning only for brief periods to collect things or perform other tasks. She disbelieved this because the "independent evidence before the Tribunal indicates that, at least for several weeks after this date (presumably 27 April) the majority of the student demonstrators marched, or cycled between their campuses and the Square". This statement accepts that a minority did not do so; Mr Sun could have been among the minority. Anyway, Mr Sun's account did involve a deal of shuttling between the Square and his university. The evidence is vague; "brief periods" is Ms Smidt's interpretation. In fact, Mr Sun gave evidence about a hunger strike during which many students fainted, so he took them to hospital or got them food, and visits back to the university to help with the organisation of rallies and the recruitment of his classmates. On the transcript, it is really impossible to say what proportion of time he spent away from Tiananmen Square during these five weeks. Second, despite the limitations in the account of this period that Mr Sun gave to him, Mr Fordham accepted it. Ms Smidt had no new information that might suggest he erred in doing so. Third, Mr Sun gave Mr Fordham a detailed (and graphic) account of the events of 4 June. Mr Fordham accepted that account and Ms Smidt offered no comment.
Under the heading "Conclusions about Mr Sun's involvement in the pro-democracy movement of 1989", Ms Smidt wrote:
"I find that Mr Sun has fabricated the claim that he was an active participant in the 1989 pro-democracy movement and that he organised and led his 30 classmates throughout the period to be lacking in credibility. From the evidence, it appears that he did not enter the People's University of China in 1988. More importantly his account [sic - of] the major events in which he claims to have participated prior to 3 June 1989 is significantly at odds with the eye witness accounts before the Tribunal. The evidence he gave regarding his participation in the period from 27 April 1989 to 3 June 1989 was lacking in the kind of details generally remembered by participants in events of such significance and inconsistent with other accounts of the period. I do not believe that Mr Sun was an active participant in the 1989 pro-democracy movement in Beijing."
Ms Smidt went on to discuss various submissions of Ms Le that she said she had taken into account in reaching these conclusions. She then referred to the photographs:
"Ms Le has argued that Mr Sun's possession of the photographs and, more particularly, the negatives he carried to Australia proves that he was involved in the demonstrations, was in Tiananmen Square on the night of 3 June 1989 and took these photographs himself. The fact that Mr Sun carried these photographs with him when he came to Australia does not necessarily mean that he took them or that he was present when they were taken. There is nothing in the photographs themselves which proves that Mr Sun was an active participant in the 1989 demonstrations, nor that he took them or that he was present when they were taken."
This passage cannot be criticised, as far as it goes. It is true Mr Sun's possession of the photographs does not necessarily mean he took them. But Ms Smidt seems to have thought this meant the photographs should be discarded from consideration; she made no subsequent reference to them. She seems not to have appreciated that, although Mr Sun's possession of the photographs did not conclusively prove he took them, possession of the photographs, especially with negatives, was a circumstance supporting that view of the facts; and, therefore, to be taken into account. Weight was a matter for Ms Smidt, but it could not be contended the fact of possession was a circumstance of no weight. Ms Smidt had been advised the photographs were not reproductions from a newspaper, magazine or video-tape. They were so politically sensitive they were unlikely to have been sold or given away by the photographer; anyway, how did Mr Sun get them (especially the negatives) if he was not in Beijing on 4 June?
Mr Sun had told Ms Smidt the photographs were taken with a Chinese-made Hong Mei camera. Presumably this information could have been checked; Ms Moss had advised Ms Smidt to ask Mr Sun to describe the camera equipment used. If it had been established these photographs were taken with a Hong Mei camera, that would have strengthened the inference, although not conclusively proven the fact, that Mr Sun was the photographer; if it had been established they were not, that would have seriously undermined Mr Sun's credibility. Inexplicably, it seems Ms Smidt made no attempt to obtain advice as to whether these photographs were, or could have been, taken with a Hong Mei camera.
Similarly, Ms Smidt failed to consider the significance of Dr Stevens' opinion that Mr Sun was suffering from post traumatic stress disorder, a condition that characteristically follows exposure to an extreme traumatic stressor such as experiencing or witnessing military combat or violent personal assault. Dr Stevens' opinion had not been challenged and was expressly accepted by Ms Smidt. That Mr Sun suffered post traumatic stress disorder in 1995 did not necessarily prove he participated in the horror of Tiananmen Square on 4 June 1989, but it was consistent with that fact. Especially in the absence of any other suggested traumatic event, it was a circumstance that tended to support Mr Sun's claim. Once again, weight was for Ms Smidt to decide, but it was erroneous for her totally to disregard this matter.
After completing her findings about events in Beijing, Ms Smidt turned to the period between 4 June 1989 and Mr Sun's departure from China. She commenced with this robust finding:
"Even if I accept that Mr Sun was a class organiser in the pro-democracy demonstrations of 1989, I find the claim that he was forced to remain in hiding in Foshan because he was actively sought by the Chinese authorities who frequently visited his parents until his departure from China in April 1993 to be totally implausible."
In justification of that finding, Ms Smidt referred to published accounts and country reports about post-June 1989 repression. She noted that reports published "soon after the events of 1989" made it "clear that at the time many people feared that the reprisals would be extremely harsh and widespread, seriously affecting most participants". Ms Smidt went into much detail about this, speaking of "widespread investigations ... to identify and punish those involved", encouragement of citizens to confess their own participation in demonstrations and to inform on others and the use of Neighbourhood Committees to find dissidents. She said the consequences faced by participants varied considerably. Some faced no more than additional political education sessions but many people were detained "... the national total appears to have been between 10,000 and 30,000. Some earlier reports suggested figures as high as 100,000, but the estimates were not repeated in later reports". Ms Smidt made the point that detainees "represented only a very small percentage of those who participated in demonstrations as more than a million people demonstrated in Beijing alone and tens, if not hundreds, of thousands ... in demonstrations elsewhere in China". But she did not consider what proportion of students - or, even more relevantly, organisers of students - were detained. Those proportions would have been much greater. Ms Smidt also made the point that "the government's interest (in) investigations or pursuing participants lessened with passage of time", as one might expect. She referred to a work "Between Freedom and Subsistence" in which the author, Ann Kent:
"divides the post-Tiananmen into three periods ... The first six months or so saw 'continuing coercion in the form of arbitrary arrests, summary executions, forced interrogations and the maintenance of martial law in Beijing accompanied by emotionally charged propaganda.'
The second phase, which lasted throughout 1990 and into early 1991, saw a move away from overt coercion and some easing of control with the ending of martial law and release of a large number of prisoners. The government announced a number of reforms to the political structure and the economy. Political reforms were to take the form of perfecting the existing system and strengthening links between the party and the people through communication downwards. Increased attention was paid to social policies in areas such as health, education and employment.
The third phase began in the first quarter of 1991 with the release of proposals for the drawing up of a ten year program and the announcement that trials of those involved in the 'anti-government riots' of 1989 were basically complete. While reforms in social and cultural rights were announced and economic reform continued to transform aspects of Chinese society, civil and political freedoms were still heavily circumscribed, although efforts to enforce control in these areas were increasingly arbitrary and piecemeal. Intellectual debate continued, although it was more restricted than before 1989. Human rights were again debated in scholarly journalism. The bottom line appeared to be that Chinese citizens could not openly question Marxism or the Chinese Communist Party."
After referring to other works and submissions put to her Ms Smidt said:
"There is no doubt that many students who participated in the demonstrations in 1989 fled Beijing in the period immediately following the military crackdown in June 1989 as they feared arrest or even worse treatment by the authorities. Nor is there any doubt that prominent leaders of the student movement who fled the capital were sought by the authorities throughout China at the time. It may well be that the local authorities sought to question, and perhaps even detain, less prominent students who had been studying in Beijing during the time of the demonstrations and this may have involved questioning of their families. However, the evidence before the Tribunal suggest[s] that someone who participated in the 1989 pro-democracy movement in the manner claimed by Mr Sun would not have been actively pursued by the police for nearly four years after the military crackdown which ended the pro-democracy demonstrations. Thus, even if I accept Mr Sun's claims regarding 1989 in their entirety, I would find the possibility that he was still of serious interest to the authorities in early 1993 to be remote. However, as noted above, I find that Mr Sun has greatly exaggerated, and possibly fabricated, his claims regarding his participation in 1989. In these circumstances, I do not accept that the Chinese authorities continued to seek him from 1989 until 1993 or that they visited his parents from 1989 to 1993 because of his participation in the 1989 pro-democracy movement in Beijing.
In reaching this conclusion, I have noted Mr Sun's claim that he continued to be involved in political activities after 1989. However, even if I accepted that Mr Sun formed a pro-democracy group in Foshan, it is clear from his own evidence that authorities were not aware of this until at least immediately prior to his departure from China. If [sic] follows that these alleged activities cannot not have had any influence on the authorities' attitude towards him prior to early 1993".
After referring to other matters, Ms Smidt concluded:
"As discussed above, I do not accept that Mr Sun was an active participant in pro-democracy movement in 1989 who would have been of continuing interest to the police. In these circumstances, I do not accept that he was forced to live in hiding under an assumed identity in Foshan for nearly four years.
Furthermore, I find Mr Sun's evidence regarding the pro-democracy group he claims to have formed unconvincing.
Mr Sun claims that he was motivated to form this group because of his active involvement in 1989. However, I do not accept that Mr Sun was actively involved in pro-democracy movement in 1989.
Mr Sun claims that membership of this group placed him at risk of persecution. However, according to his evidence the members were observed meeting in a park, after which their activities were investigated and that some members were interrogated and warned to cease their activities. Despite this, none of the members of the group were not detained [sic] or experienced other problems. I do not believe that members of a pro-democracy group of serious interest to the authorities would have escaped with nothing more than a warning.
As noted above, I have considerable difficulty accepting that someone fleeing China because their participation in an anti-government organisation had been discovered, or appeared likely to be discovered shortly, would obtain a false passport in the false name they had used will [sic] participating in the group.
It is possible that Mr Sun lived and worked in Foshan prior to his arrival in Australia. Had the rest of his evidence been truthful and plausible, I might have accepted that he had some involvement in a small informal group which discussed politics while in that city. However, as the discussion above indicates, I did not find Mr Sun's evidence truthful or plausible. Indeed, after considering Mr Sun's evidence regarding Mr Sun's past activities in its entirely [sic], I found the overall pattern of fabrication, exaggeration and conceal such that I am unable to accept any of it. I do not believe that he founded and led a pro-democracy group in Foshan."
Three comments may be made about those conclusions. First, they were heavily influenced by Ms Smidt's rejection of Mr Sun's claim to have been a participant in the pro-democracy movement in Beijing in 1989. Second, whether or not the activities of the Foshan group became a matter of "serious interest to the authorities" might depend on whether they were pursued after a warning. If a person is a member of a group that persists with activities despite a warning from the authorities (as Mr Sun claimed), that person may be at a greater risk of persecution than other people. Third, Mr Sun did not claim his participation in the Foshan group had been discovered or the authorities knew his false name. So it is difficult to see why it should be thought unlikely he would use that name for his false passport.
Ms Smidt turned to the matter of the passport application. She concluded with some observations that Mr Lawler contends to be indicative of actual bias:
"I do not believe that the Chinese authorities refused to issue Mr Sun. Furthermore, I find his insistence that he had provided the officials with complete details and the statement that Hai Zhou St numbered consecutively from start to finish when in fact there are three separate sets of numbers for Hai Zhou North St, Hai Zhou Middle St and Hai Zhou South St a clear indication that he is prepared to distort or fabricate evidence given to the Tribunal to advance his claim for refugee status."
Ms Smidt's final "Conclusions on Mr Sun's evidence regarding his past activities" were in these terms:
"I did not find Mr Sun's account of his past activities or problems to be credible or truthful. The overall pattern of his evidence leads me to the conclusion that he has exaggerated, distorted or fabricated the claims he has provided to the Department and the Tribunal.
As discussed above, I do not [sic] believe that Mr Sun has fabricated the claim that he was an active participant in the 1989 pro-democracy movement and that he organised his classmates participation throughout the period. Nor do I believe that he was forced to remain in hiding in Foshan for nearly four years, during which time he formed a pro-democracy group which was discovered shortly before his departure from China.
I believe that Mr Sun had a visa for Australia when he checked in to board his flight to Australia in Port Moresby. This falsehood together with the substantially different personal details he provided on his departure card from the PNG and his failure to provide a reasonable explanation for the destruction of his passport and boarding pass in Port Moresby raises serious questions about his identity and the manner in he [sic] which he left China. And despite his claims to the contrary it is clear he did not provide the Chinese Embassy in Australia with sufficient evidence to identify him and supply him with a passport, and he gave false evidence to disguise this fact."
After dealing with the question whether Mr Sun's refugee application and Federal Court appeal would of themselves put him at risk of persecution if he were returned to China, Ms Smidt stated her "Overall conclusions":
"From the evidence provided by Mr Sun I am unable to determine his identity, how and why he left China and why he does not wish to return there. He is clearly determined not to return to China and it may be that his determination is motivated by fear. However, from the evidence his has provided, I conclude that he does not have a well-founded fear of persecution in China for any of the reasons contained in the Convention. He is therefore not someone to whom Australia has protection obligations and not entitled to a protection visa."
The primary Judge's reasoning
As mentioned, Mr Sun sought review of Ms Smidt's decision pursuant to s 476 of the Migration Act. That section is in these terms:
"476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds.
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.
(2) The following are not grounds upon which an application may be made under subsection (1):
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.
(3) The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a) an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b) an exercise of a personal discretionary power at the direction or behest of another person; and
(c) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d) taking an irrelevant consideration into account in the exercise of a power; or
(e) failing to take a relevant consideration into account in the exercise of a power; or
(f) an exercise of a discretionary power in bad faith; or
(g) any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).
(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b ) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."
On 6 May 1997, Lindgren J delivered a judgment dismissing that application. His Honour's reasons are lengthy. I will merely summarise his principal conclusions:
(i) Section 420(1) of the Migration Act does not set out "procedures that were required by this Act ... to be observed in connection with the making of the decision", within the meaning of s 476(1)(a).
(ii) The word "decision" in s 416(d) of the Act refers only to the ultimate decision made by the Tribunal on an earlier application "and perhaps any finding or findings of fact essential or indispensable to that decision, (but) does not extend or refer to other findings of fact made in the course of the determination of the earlier application"; in any event, "the Smidt Tribunal had a discretion whether to exercise the power given by s 416 and was entitled not to exercise it".
(iii) The principles of issue estoppel did not apply to the Refugee Review Tribunal. Anyway, they could not be applied to a particular finding of Mr Fordham, ignoring his ultimate determination.
(iv) There was no validity in submissions that Ms Smidt was disentitled to proceed de novo because of considerations of delay and expense and Mr Sun's mental condition.
(v) Ms Smidt's decision did not exhibit any error of law.
(vi) Ms Smidt's decision was not "induced or affected by ... actual bias", within the meaning of s 476(1)(f) of the Act.
(vii) This was not a "no evidence" case, within the meaning of s 476(1)(g) and s 476(4).
The submissions on appeal
In arguing Mr Sun's appeal, Mr Lawler did not press all the grounds argued before Lindgren J. He raised four major issues which he described in written submissions as follows:
"(a) Whether a breach of s.420 of the Migration Act comes within the ground of review in s.476(1)(a) of the Act?
(b) Whether there was a breach of s.420 by the Smidt Tribunal constituted by a failure to act with fairness and in accordance with substantial justice.
(c) Whether there was an error of law within the meaning of s.476(1)(e)?
(d) Whether the decision of the Tribunal was induced or affected by actual bias (s.476(1)(f)?"
Depending on the resolution of those questions, it may be necessary for me also to consider the relief appropriate to be granted to the appellant.
I will deal separately with each of these issues.