Ji Kil Soon v Minister for Immigration and Ethnic Affairs

Federal Court of Australia|1998-10-02|Before: Tamberlin J

Background The question on this application is whether the applicant was a refugee as at 8 May 1997, as defined by the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"). Article 1 of the Convention defines as a refugee any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country …" The application before me is for review of a decision of the Refugee Review Tribunal ("RRT") given on 8 May 1997. The Tribunal was not satisfied that the applicant was a refugee within the meaning of the Convention and affirmed a decision made on behalf of the Minister not to grant a Protection Visa. I will not repeat the general principles, which are well-settled. They are set out in the RRT reasons. The applicant is a thirty-two year old medical practitioner, who graduated in 1989. From August 1989 she worked in a small hospital in a major provincial city. She claims that she has skills in both western and traditional Chinese medicine. These claims are not contested. She first left China in June 1996 when she came to Australia to marry. Shortly thereafter, due to her father's serious illness, she returned to China for one month in November 1996 and then returned to Australia in December 1996. By that time her relationship with her Australian fiancé had ended. The applicant claims that she has a "well-founded fear of persecution" if returned to China, arising from her political opinion. In 1989 she claims that while she was still at University she attended a student demonstration in the town square and advised the students, who were participating in a fast, to continue drinking fluids. She remained at the demonstration for one hour approximately and returned to the University. She was questioned as to her presence at the demonstration because she had been recorded on a video tape taken by the authorities. Questioning took place for one hour and she was then released but she was required to return to the Public Service Bureau ("PSB") many times for questioning over the next month. The questioning and reporting stopped after one month as the PSB found no evidence of any additional activities. The applicant states that although she was able to graduate from her course without difficulty, the investigations were recorded in her personal file. She claims that, because of this adverse record, she was not allocated a medical position as soon as she should have been and that she was required to wait an extra month for an allocation. She also claims that she was assigned to a small to medium hospital because of her background, which limited her opportunities for experience and career advancement. She said she was not allowed to work in the area she wanted to specialise in and that she was prevented from publishing medical papers and had to work excessive overtime. Further, she says she was denied salary increases and promotion and was prevented from conducting a full range of surgery procedures. She attributes this treatment to her presence at the demonstration and the ensuing investigation together with a perception by the authorities that she required surveillance. Before the RRT, she claimed that during her seven years employment at the hospital she was suspended, once for two weeks, after she complained to the hospital authority that she was being limited or restricted in her work. She also claimed she made written complaints about the coercive nature of the one-child policy of the government in letters to the Womens' Association of China, the Red Cross, and the Vice-Health Minister in her provincial city. These letters, written in October 1992, resulted in her being detained by the PSB for two months. In this time she was questioned and was required to write self-criticisms. She was released because the PSB could not find any evidence of any other activity but she was required to report to it for a period of one year. After her release, the applicant continued to work in the same hospital. She said that there would have been a record of her "good confession" kept on her personal file. She experienced no difficulty in leaving China in June 1996. She agreed that, despite her background, she was given approval from her work unit to go overseas and was given a certificate saying that she was not married and had not committed criminal acts or had never been to prison. She agreed that if she was politically suspect, she would not be given permission to leave the country. However, she claimed that because of her background, she was investigated and it took more than the usual time to issue the passport. Because of this delay, her father found a contact and paid some money and her passport was issued in November 1995. She conceded she was not a high profile student leader but claimed she had been persecuted. The applicant said that after coming to Australia, she sent a written article back to China in July 1996, which was critical of the Chinese Government. This article was discovered by Customs authorities and caused her "difficulties" when she returned to China in November 1996. She also claimed that she then realised all of her mail had been checked but conceded that, apart from the article, no other letters had contained matters of a political nature. She said that after the authorities found the article, her mail was checked more frequently. After her return to China in November 1996, she was visited by the PSB and required to submit to questioning as to why she had returned when she had left the country to marry and why she had sent the article. She was informed that she was under surveillance by the neighbourhood Committee and was told not to send any anti-government material about China. She was told that she was not performing properly and was threatened that if she conducted any further wrongful activity she would be gaoled. Her explanations as to the sending of the article were not accepted by the PSB. She told the RRT that she was not claiming that if she returned to China she would be immediately gaoled but that if she returned and if she was allowed to return to work in the hospital she would face the same difficulties she had experienced in the past because she had maintained the same attitude in relation to the authorities. She stated that she had difficulty in finding work after she was suspended from the hospital. She looked for alternative work without success. She applied for approximately ten jobs between 1990 to 1995 in other hospitals and was rejected after her file was checked. She also claimed that she looked for clerical and other unskilled work. Given her earlier difficulties in finding a job, she was afraid she could not get alternative employment due to the record of her political activities and complaints in her personal file and she would be reduced to selling on the street. In relation to the operation of private hospitals in China as an alternative form of work, she stated that such hospitals and private doctors practiced only Chinese herbal medicine whereas she had mainly concentrated on western medicine. The applicant claims, due to her deep-seated objections to the one-child policy, she would be likely to repeat her protests to the authorities and that this would subject her to persecution in the future. She had complained in 1992 but, thereafter, she had been able to refrain from taking any other action or activity to publicise or put her views into effect. However, she said that she had a limited tolerance because of her strong revulsion to the policy and if she were put back in the same position, although she may suppress her need to speak out for a certain period, in the end, she believed she would stand up and openly protest against the policy. She said that if returned to China she would have to be careful and alert all the time to avoid saying anything which might be regarded as anti-government. She also said that independent information relating to the decreasing use of personal files, particularly in relation to the private sector, was superficial and possibly only propaganda from the government. She believed the personal file on her was still important. She referred to her previous mistreatment and stated that she now feared persecution, particularly as the Chinese political environment had not changed.

RRT decision The RRT found that there were contradictions in her statement and it had reservations as to her credibility. It considered that she exaggerated and it did not accept the full extent of her claims made in the statutory declaration that she could not fully practise as a medical practitioner and that she was forced to do overtime because of her background or that she had almost no opportunity to perform surgery. The RRT found that, excepting some instances where other doctors chose to do the more interesting cases, she was fully practising as a medical practitioner and that she performed surgery regularly, albeit only in more simple cases. Moreover, the RRT found that she was asked to do overtime primarily because of the volume of work faced by the surgical department in which she worked not because of her political opinions. The RRT was, however, prepared to accept that she was discriminated against in terms of her employment and that each time she complained she was suspended for a period of two weeks. The RRT also accepted that the applicant wrote letters concerning the coercive nature of the one-child policy which resulted in her detention for two months in 1982 and a year of reporting. The RRT noted that she was released when the authorities were satisfied that she was not involved in any political activities and after she made a "good confession" and also after a period of reporting came to an end in 1993. The RRT accepted that the applicant was detained for questioning for two months in 1992 and that this was a serious violation of her human rights, but notes that she was released and although she had to report for a year, she was able to continue with her employment and did not suffer ongoing significant harm. The RRT considered that despite her history, including the two months detention, the reporting and other employment related discrimination, she was able to maintain her employment. The RRT was satisfied that she was of no significant adverse interest to the Chinese authorities when she left China in June 1996. The RRT did not find as credible the claim that the authorities did not accept her explanation for sending the anti-government article and pointed out that she was able to leave the country again without any further imposition of any additional difficulty. This was considered to be an indication that by 1996 she was of no significant interest to the authorities.

Findings Two important findings were made by the RRT, which are the subject of this application. The first finding was that the RRT was not satisfied that the difficulties experienced by the applicant, assessed alone or cumulatively, were of sufficient magnitude to constitute "persecution" within the meaning of the Convention. Nor were they considered to give rise to any well-founded fear of persecution in the event that she now return to China. The RRT referred to the difficulties in her employment, which included a restriction on her career opportunities; lack of promotion; the bearing of additional work-related burdens, and periods of suspension when she complained. Against this evidence the RRT weighed the consideration that she was able to keep her state-based employment continuously from the time she commenced until when she left the country. It considered that the difficulties, although discriminatory, were not a serious punishment or penalty. The RRT concluded that the applicant's treatment did not amount to a significant detriment or disadvantage or a serious violation of human rights in disregard of human dignity sufficient to constitute persecution. The second important finding is that the applicant's claim, that she would continue to protest against the one-child policy if returned, did not give rise to any well-founded fear of persecution. The RRT accepted that a person who protested against that policy may be perceived as having an adverse political opinion by Chinese authorities. It also accepted that, in the applicant's case, she was imputed with an adverse political opinion at the time she wrote the letters in 1992, which led to her two months of detention and twelve months of reporting. However, it pointed out that the incident occurred only once, four years earlier, and that she has taken no further action to put her opinions into effect. The RRT pointed out that she was not working in the field of obstetrics or gynaecology and has not been directly affected by the policy. It observed that although she is in an age group where she may consider having children, given the earlier exaggerations in her evidence and the lack of any action giving effect to her claimed opinions, the chances of her acting in a similar manner in the future were remote and insubstantial. Having regard to the above, the RRT was not satisfied that the applicant was a refugee.

Essentially, the submissions on appeal made on behalf of the applicant are two-fold. The first is that the RRT had erred in law in that it ought to have held that its findings amounted to "persecution" within the meaning of the Convention. Second, it is submitted for the applicant that the RRT erred in law when it concluded that the applicant would not repeat her conduct in expressing strong views against the one-child policy. It is said that because the applicant held a profound objection to that policy, particularly with respect to the manner of its implementation, the RRT ought necessarily to have found that there was a real chance that she would express those deep seated views, particularly in relation to the way in which the policy was implemented, both from the point of view of a qualified medical practitioner and as a woman who may wish to bear children.

Counsel for the applicant directed attention to parts of the transcript before the RRT in support of a submission that the nature of the discrimination in employment she had experienced was more extreme than that stated in the reasons of the RRT and that, when given full and proper weight, the AAT ought to have concluded that the discriminatory disadvantages which she suffered were of sufficient substance to amount to persecution.

The applicant does not contend that if returned to China she would be unable to obtain any work in the medical area or resume work in the hospital. Rather, her claim is that she would face less favourable treatment in employment as compared to other qualified medical practitioners who had not expressed views in respect of the policy or been under surveillance. Although the RRT accepted that she underwent a serious violation of her human rights as a result of her detention in 1992, it did not consider that the matters raised suggested she would unable to find employment.

I have previously considered the principles which apply in relation to discrimination in employment as a result of an employee's action or opinion. They are set out in Ji Kil Soon v Minister for Immigration and Ethnic Affairs (1995) 37 ALD 609. The judgment in that case referred to the well-known text by James Hathaway, "The Law of Refugee Status", Butterworths, Canada 1991, particularly at pp 120-121. The learned author there refers to a Canadian decision in Helena Olearczyk v Minister of Employment and Immigration (1990), 8 Imm. L R. (2d) 18 at 19 where Hugessen J said:

"… indeed she has been the victim of some harassment. Her superiors exercised some control over her union activities and it is probable that she was denied promotions and employment benefits. However, this harassment cannot be considered persecution in the sense of the Convention." In that case, the claimant had been a member of the Solidarity movement in Poland and had refused to join the ruling Communist party. The case is cited in the context of a consideration of the question whether persecution may result from breach of a core social, political, economic or human right. The claim of discriminatory treatment in employment, in this context, was considered to fall under the characterisation of a socio-economic human right. The author points out that because socio-economic rights are defined in international law in terms of minimally acceptable standards, not every instance of unfairness, broadly related to an enumerated right, will support a finding of persecution. In contrast to the finding in the Helena Olearczyk case, Hathaway (at 121), discusses instances and circumstances where there is a sustained or systemic denial of a right to earn a living at all. Such an extreme denial is considered to amount to persecution. An example is given of a Chilean socialist who was subjected to constant surveillance at work following a military coup. He was ultimately fired from his job and blocked by a system of official clearances from obtaining other employment. In those circumstances, the Court found the claimant to be a Convention refugee because, over a period of years, he had suffered persecution from various sources at his place of work prior to migrating to Canada. That is quite a different order of harassment or discrimination to that claimed in the present case. The question of discrimination in employment in relation to the claim for refugee status was considered by Hill J in Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260. As his Honour pointed out, in that case the question whether discrimination amounts to persecution in the relevant sense depends on all the circumstances of the particular case. This is another way of saying that the decision is essentially one of fact and degree for the RRT as final arbiter. At one end of the spectrum there may be a situation where a person is denied any right to work or is given work of a demeaning nature or of a type which ignores any academic or special experience or qualification to work in a highly skilled area for which the person has been specially trained. At the other extreme, is a situation where the discrimination is merely in the nature of unpleasantness or a conflict of personalities. The present case is within this factual range and, in my view, it was open to the RRT to conclude that the employment history of the applicant, in this case, was not, as a matter of fact and degree, sufficient to constitute persecution. It is important to bear in mind the findings as to exaggeration were not contested. This consideration was an appropriate matter for the RRT to take into account in reaching its conclusion, particularly in relation to a matter which is essentially one of fact and degree where a tendency to exaggerate is clearly a relevant and important consideration. Accordingly, I do not accept the submissions made on behalf of the applicant in relation to persecution.

Suppression of opinion If the applicant is returned to China she claims there is at least a real chance that she may not be able to continue suppress her deep-seated hostility to the one-child policy, in particular as to the way in which it is implemented, both from a medical and a personal viewpoint. The approach taken in the RRT reasons with respect to this matter was to find that there was not a well-founded fear of persecution because the evidence indicated that she had in fact taken no further action or conducted any activity in relation to putting into effect her opinions since 1992 and that she was not working in the field of obstetrics or gynaecology and was not, therefore, directly affected by the policy. The RRT referred to her exaggerations in the evidence. It came to the view that any chance of acting in a similar manner in the future was remote and insubstantial. There is dearth of authority on the question whether an inability to express a view without fear of punishment can be said to amount to persecution. My attention was directed to two authorities. The first was the English decision of Nolan J in R v Immigration Appeal Tribunal ex parte Daniel Boahin Jonah [1985] Imm AR 7. That case was concerned with an application for review of an adjudication. The adjudicator dismissed an appeal because he concluded that the applicant's fears were exaggerated but recognised that the applicant may be in jeopardy if he resumed trade union activities. However, the adjudicator concluded that he would not be endangered if he lived quietly in retirement and that such an option was open to the applicant. On appeal it was argued that where a person, if returned to a country, would be obliged to refrain from political expression or activity to avoid persecution, the person would qualify for political asylum as a "refugee". In his judgment, Nolan J said: "Mr Blake, in my judgment, was right not to embrace the submission made by Mr Drabu before the Immigration Appeal Tribunal to the effect that if a person has to refrain from political activity in order to avoid persecution he should qualify for political asylum. That is going much too far. It appears to be said here however, is that there was no material risk to the applicant if he was to live in the remote village which I have described where he would be, it seems separated from his wife and unable to pursue the employment as a trade union official which he has carried on for 30 years." (Emphasis added) It is evident from this statement that the case turned on what has come to be described as "internal protection" and it was for this reason that the decision was cited by Beaumont J in Randhawa v The Minister for Immigration (1994) 52 FCR 437 at 449-450. While the observations of Nolan J in Jonah' s case do not carry the matter much further, they do indicate a view, which I share, that it is too broad a proposition to suggest that inability to engage in overt political activity under pain of punishment necessarily requires a conclusion that a person returned to live under such a constraint can properly be described as exposed to persecution within the meaning of the Convention. In the present case, there is evidence that the applicant had, in fact, been able to restrain herself from expressing her opinions on the question of the one-child policy between 1992 and 1996. In addition, there was the finding that she had made some exaggerations in her evidence and that she would not be working in the field of obstetrics or gynaecology. The determination of the question whether there was a real chance that the applicant might be unable to control her views and feelings in relation to the one-child policy is properly characterised as a question of fact. On the material before the RRT in the present case, in my view, its conclusion was open. It cannot properly be said that the RRT was bound to find that there was a real chance that she might express her views and thereby attract punitive measures if returned to China. In the present case, I have considerable doubt as to whether expressions of strong objection to the one-child policy can be properly described as an expression of "a political opinion". It is not an expression of a political view or position in the sense of an opinion promoted by a political group or party wishing to displace or oppose the present government. The objection in the present case has the character of a personal viewpoint on what is essentially a matter of conscience as to the controversial way in which the government seeks to implement its birth control program. While the strongly held objection on the part of the applicant is, in a sense, in opposition to "a policy" of the government, the opposition is really based on personal, humanitarian and compassionate grounds. It is essentially a disagreement on the means adopted by the government to achieve what is considered by the government to be a desirable end to alleviate problems such as starvation, illiteracy and illness arising from over-population; cf Mary Crock Immigration & Refugee Law in Australia, Federation Press 1998 (at 151-152). Conclusion Accordingly, for the above reasons the present appeal should be dismissed. I do not consider that this is an appropriate case in which costs should be awarded I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate: Dated: 2 October 1998 Counsel for the Applicant: Mr R B Wilson

Solicitor for the Applicant: Kessels & Associates

Solicitor for the Respondent: Australian Government Solicitor

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