Meng v Minister for Immigration & Multicultural Affairs

background 3 The applicant is a citizen of China. He was born on 21 April 1959 in Fushun, in the Liaoning province. After completing his schooling, in July 1978, he commenced working in a tarpaulin factory. He maintained that employment until July 1997, shortly before his arrival in Australia. He married in 1982, and lived at the same address in Fushun at that time again until his departure for Australia. 4 The applicant arrived in Australia on 2 August 1997, apparently on a business visa. According to the Tribunal, it expired only after twenty months in Australia, and about that time on 20 May 1999 the applicant first applied for the visa. A delegate of the respondent rejected that application on 15 June 1999. No explanation for the delay in applying for a protection visa was presented to the delegate of the respondent or to the Tribunal. 5 The applicant had been issued with a passport in China on 13 June 1997, and had left China lawfully and in the normal manner. At that time, as the Tribunal found, there was in place a system designed to identify and prevent from leaving those of interest to the Chinese authorities for their involvement in political activities. The Tribunal also was satisfied, on the basis of independent evidence, that the applicant's proposed departure from China would have come to the attention of Chinese authorities before he left China, so that the fact that he was able to leave China legally, using a passport with his photograph and particulars, indicated that he was not a person of adverse interest to the authorities at that time. That conclusion was supported by the applicant having lived at the same address and worked at the same job for many years until he left to come to Australia.

The applicant's claims 6 As identified by counsel, the applicant made two claims upon which he contended that he should be treated as a refugee. 7 The first was that he was an opponent of Chinese government corruption, and spoke out against corruption frequently. He had been involved in the pro-democratic movement in 1989, following which he was obliged to attend "study class" in which he had to confess his "political error". Despite that experience, he continued to criticise the Chinese government and its policies particularly in relation to corruption. He claimed that, as a result, the communist party branch secretary at his factory had repudiated him and caused unfavourable remarks to be entered on his personal file at his employers. He was unfairly criticised for his work performance. His political opinion, he claimed, led to him not receiving a house allocation and pay rises to which his length of service would otherwise have entitled him. He lost his housing entitlement, and his pay rise entitlement. He claimed that he was receiving only the basic salary of $187 a month, about half the normal pay received by his colleagues with his length of service and experience, and that he thereby suffered great financial hardship and mental distress so that he was unable to maintain a harmonious relationship with his wife, and his daughter was disadvantaged in her school education. 8 The second claim arose from him pursuing his complaints and activities on behalf of disadvantaged persons more vigorously in the months of January to March 1997. In January 1997, he participated in a demonstration in Fushun on behalf of disadvantaged persons, particularly retired pensioners, due to scarcity of heating facilities. In February 1997, he again participated in the rally held in Fushun on behalf of pensioners who were not receiving their pension and redundant workers who had not been paid out. He did not claim to have been involved in organising those two rallies or demonstrations, but learned that national security bureau police were investigating those who had organised those rallies and demonstrations. 9 In March 1997, the applicant participated in a sit in demonstration blockading a railway between Fushun and Shenyang City again in support of pensioners and retrenched workers. The police intervened to remove demonstrators and made a number of arrests. Those arrested were placed under strict investigation for some fifteen days. The applicant alleges that two of those arrested were organisers of the demonstration, who had met with the applicant at his home. They were charged with the crime of harming public safety and were detained for many days and were tortured. The national security police, according to the applicant, photographed those participating in the demonstrations with a view to ascertaining the identity of the organisers. The applicant feared that he would be identified by that process. He accordingly used his savings to bribe certain officials to procure a passport and a business visitor's visa to Australia, and left China. He feared that he would be identified as a demonstration organiser and arrested and tortured.

the tribunal's decision 10 Although the applicant indicated to the Tribunal that he wished to attend the hearing before the Tribunal, he did not in fact do so. Evidence admitted by consent on this application indicates that he feared that he would be arrested and removed from Australia straight away to China if he attended the hearing. That was the same reason that he gave for not having attended the hearing of this matter when it was first listed on 9 June 2000. It was then dismissed, but an order was made deferring the entry of that dismissal order whilst the applicant was given an opportunity to apply to set aside the dismissal order. On 23 June 2000 the dismissal order was set aside. On this hearing the applicant was represented by counsel. 11 The Tribunal recorded that the applicant's claims are set out in written submissions to the Department, in written submissions to the Tribunal, and oral evidence given to the Tribunal. That is obviously in error. Later in its reasons the Tribunal noted that the applicant had not attended to give evidence on 16 December 1999 when it was planned that he would do so. Moreover, his statement to the Tribunal in his application did no more than refer to his statement to the respondent. There is an element of rote in the reasons of the Tribunal. 12 Having referred to the applicant's claims at some length as they were presented to the respondent, and were before the Tribunal, the Tribunal referred to independent country information concerning the attitude of Chinese authorities to those involved in demonstrations, and to the facility or otherwise with which those wanted by the authorities would be able to leave China on a passport in their own names. It will be necessary to refer to that material a little further. It is, however, noteworthy in my view that the Tribunal did not refer to information which necessarily must have been before it: see s 418 of the Act. This particular item of independent country information is quoted in the reasons for decision of the delegate, and it is the most recent of the country information in the material presented as relevant on this application. That material is from the US Department of State, Country Reports on Human Rights Practises for 1998, published in 1999. Concerning China, it includes the following:

"Citizens lack both the freedom peacefully to express opposition to the party-led political system and the right to change their national leaders or form of government … The Government's human rights record deteriorated sharply beginning in the final months of the year with a crack down against organised political dissent. The loosening of restrictions on political debate and activism by authorities for much of 1997 and 1998, including toward public calls for political reform and expressions of opposition to government policies, abruptly ended in the fall. The Government continued to commit widespread and well-documented human rights abuses, in violation of internationally accepted norms. These abuses stemmed from the authorities' very limited tolerance of public dissent aimed at the Government, fear of unrest, and the limited scope or inadequate implementation of laws protecting basic freedoms. The Constitution and laws provide for fundamental human rights, for these protections often are ignored in practice. Abuses include instances of (extrajudicial) killings, torture and mistreatment of prisoners, forced confessions, arbitrary arrest and detention, lengthy incommunicado detention and denial of due process." 13 The Tribunal rightly expressed its concern that it had not had the opportunity of exploring aspects of the applicant's claims and circumstances with him. It noted that his statement lacked in important details, including an explanation as to why the applicant had applied for a protection visa only after his business visa had expired, and any information as to his family or marital background or circumstances, as to the extent of his involvement in 1989 and any persecution he then suffered, "the difficulties he experienced at the tarpaulin factory after 1989", and how he left China. It added:

"There was also no explanation as to how the applicant managed to get a passport on 13 June 1997 if, as he claimed, he was a person of adverse interest to the PSB from the [sic] early 1997. In view of the independent evidence on passports and exit procedures in China, above, the fact that the applicant departed from China legally, using a passport with his photograph and particulars, suggests that he was not a person of adverse interest to the authorities, as he claimed. This conclusion is supported by the information in the applicant's protection visa application, which indicates that he continued to live at the same address and work in the same job up until July 1997 when he left to come to Australia." [My emphasis]

14 Its brief conclusions, having made those observations were as follows:

"I am not satisfied that the Applicants suffered such significant harm as to amount to persecution as a result of his political activity. I note the information above. I am not satisfied that there is any risk that he will suffer such persecution in the foreseeable future. I am satisfied that the Applicant supported the pro-democracy movement. He was issued with a passport and allowed to leave China despite the introduction of a system designed to identify and prevent from leaving those of interest to the Chinese authorities for their involvement in the movement. I note the comments in the above material as to present attitude of the Chinese authorities to those involved in 1989 pro-democracy activities. I am not satisfied that the Applicant has been subject to persecution in the past, neither his claimed political self-confession in 1989 nor loss of employment entitlements amount to persecution. I am not satisfied that he is at any risk of persecution in the foreseeable future, as a result of his pro-democracy activities. I am not satisfied that there is a real chance that the Applicant will suffer persecution should he return to China. Any such fear of persecution that he has is not well-founded."

the grounds for review 15 It is first claimed by the applicant that, with respect to his first claim, the Tribunal erred in law in concluding that it was not satisfied that the loss of employment benefits amounted to persecution. It is submitted that the Tribunal failed to make findings as to whether the applicant suffered the loss of employment benefits (loss of income and loss of housing entitlements) as he claimed, or (if he did so) whether they were of sufficient gravity as to constitute persecution within the meaning of Article 1A(2) of the Convention, or further whether that consequence was by reason of his political opinion. 16 In construing the Tribunal's reasons, it is wrong to approach them with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. Having recited the applicant's complaints, in the absence of the opportunity to explore them in any further detail, the Tribunal had to make a decision about the first claim upon those matters. In my view, the Tribunal can be seen to have accepted (or assumed) that the applicant has suffered the wage detriment in his employment and the loss of housing opportunities which he claimed. It was satisfied that he supported the pro-democracy movement, and therefore by implication at least I think it can be seen that the Tribunal accepted that he suffered those detriments by reason of his political beliefs. The Tribunal's finding, in my view, amounted to a conclusion that the detriments which he suffered were not of such significance as to amount to persecution. The sentence "I am not satisfied that the Applicants (sic) suffered such significant harm as to amount to persecution as a result of his political activity" in my view reflects the acceptance of the suffering of those detriments as a result of his political beliefs, and involves a measure of their significance. Having reached that view, the Tribunal then said that it did not think that the applicant would suffer "such persecution", that is detriment sufficient to amount to persecution, as a result of his political activities in the future. It specifically expressed the view that the loss of his employment entitlements did not satisfy the Tribunal that they amounted to persecution. Furthermore, I accept the submission of counsel for the respondent that the expression "employment entitlements" is intended by the Tribunal to encompass the detriments relating to loss of housing opportunity and loss of bonus or other emoluments. 17 In my judgment the Tribunal is not shown to have been in error in reaching that conclusion. The nature of conduct or detriment which may be sufficient to amount to persecution, provided it is of course for a Convention reason, was discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per Mason CJ at 388 where his Honour said:

"The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason." 18 Clearly, certain adverse conduct will fall within the description of persecution. Mason CJ at 390 referred to interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment as so qualifying. Not every detriment need do so. The question was also discussed by Dawson J at 399-400, by Gaudron J at 416, and by McHugh J at 429-430. McHugh J said at 430-431:

"Moreover, to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution: Weis, "The Concept of the Refugee in International Law", Journal du Droit International, (1960), 928, at p. 970. Thus the U.N.H.C.R. Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par. 151. In Oyarzo v. Minister of Employment and Immigration the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of "Convention refugee" in the Immigration Act 1976 (Can.), s. 2(1). The Court rejected the proposition that persecution required deprivation of liberty. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason:" 19 McHugh J returned to that topic in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258-259. His Honour there made the point that persecution for a Convention reason may take an infinite variety of forms from death or torture to the deprivation of opportunities to compete on equal terms with other members of the relevant society. In Chen v Minister for Immigration and Multicultural Affairs (2000) 170 ALR 553 ("Chen"), in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ, their Honours said at 559 [25] that the question whether conduct is undertaken for a Convention reason cannot be entirely isolated from the question whether the conduct itself amounts to persecution. In the present case, as I have understood the Tribunal's reasons, it accepted that the conduct involving employment discrimination was undertaken by reason of the applicant's political activities. In Chen, the majority found that the likelihood that the appellant would be denied access to food, education and health care beyond a very basic level and, effectively, would be unable to have an education entitled the Tribunal to find that the treatment the appellant was likely to receive if returned to China amounted to persecution: [32]. 20 Most recently, in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 175 ALR 585, McHugh J after referring to the passage referred to above said at 599-560 [61-62]:

"Given the objects of the Convention, the harm or threat of harm will ordinarily be persecution only when it is done for a Convention reason and when it is so oppressive or recurrent that a person cannot be expected to tolerate it. This accords with the discussion of what constitutes a "well-founded fear of persecution" in para 42 of the Handbook On Procedures And Criteria For Determining Refugee Status issued by the Office of the United Nations High Commissioner for Refugees: In general, the applicant's fear should be considered well-founded if he can establish, to a reasonable degree, that his continued stay in his country of origin has become intolerable to him for the reasons stated in the definition, or would for the same reasons be intolerable if he returned there. Dr Hathaway in his book The Law of Refugee Status thought that the Canadian Immigration Appeal Board had "succinctly stated the core of the test" of persecution when it said that "[t]he criteri[on] to establish persecution is harassment, harassment that is so constant and unrelenting that the victims feel deprived of all hope of recourse, short of flight, from government by oppression"."

"Framing an exhaustive definition of persecution for the purpose of the Convention is probably impossible. Ordinarily, however, given the rationale of the Convention, persecution for that purpose is: · unjustifiable and discriminatory conduct directed at an individual or group for a Convention reason · which constitutes an interference with the basic human rights or dignity of that person or the persons in the group · which the country of nationality authorises or does not stop, and · which is so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned." 22 As I have noted, the Tribunal appears to have been satisfied that the applicant had experienced unjustified and discriminatory conduct for reasons of his political beliefs by the employment discrimination he complained of. However, in my view, it has also found on the material which was then before it that that conduct, even though it was likely to be maintained, was not so oppressive that the applicant could not be expected to tolerate it, or to tolerate it no longer, or to tolerate it if he were to return to China. Given the nature of the evidence before the Tribunal, including the fact that, apparently, the applicant had tolerated that level of oppression for a number of years, perhaps as early as from the late 1980s, and the absence of any evidence that the discriminatory conduct had significantly worsened in the period preceding the applicant's departure for Australia, I do not think it is shown that the Tribunal erred in law in making the finding a fact that the discriminatory conduct directed at the applicant by reason of his political beliefs did not amount to persecution. 23 The second claim involved the question whether the applicant has a well-founded fear that he will suffer detriment sufficient to amount to persecution in the future if he were to return to China by reason of his continued expression of his political beliefs, or by the imputation to him of political beliefs, involving the role or imputed role of organising demonstrations or rallies of the kind which took place in January-March 1997. The Tribunal was not satisfied that he would. In this instance, it appears to have encapsulated both the first claim and the second claim in the description "pro-democracy activities" in its brief reasons. It has not separately dealt with his role, or his imputed role, in the rallies and demonstrations in the period January to March 1997. 24 The second claim of the applicant was one which, he contended, had not been decided by the Tribunal at all, and alternatively if it had been decided by the Tribunal the Tribunal had failed to comply with s 430(1)(c) of the Act by setting out its findings on material questions of fact. Such a failure, if established, amounts to a failure to comply with a procedure required by the Act to be complied within the making of the decision: s 476(1)(a): Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 ("Singh"). 25 It is clear that the Tribunal found that the applicant was not a person of adverse interest to the authorities at the time he left China. That is because the country information indicated that, were he a person of character, he would not have been permitted to leave China in the circumstances and in the manner in which he did so. As appears in the passage quoted with my emphasis in par 13 above, the Tribunal ascribed to the applicant the claim that he was in fact a person of adverse interest to the "PSB" (presumably Public Security Bureau) or the authorities at the time he left China. The Tribunal's recital of the applicant's claim records that he did not claim that he was a person of adverse interest to the authorities (other than by his employment detriments) at the time he left China. He did not claim to be a person whom the authorities wished to investigate further in relation to the protest marches, particularly that of March 1997. The Tribunal at that point in its reasons correctly identified his fear as a fear that, by their investigations, he may be identified as such a person and would then be arrested and mistreated for reasons of his political beliefs. 26 In my judgment, that claim has not been determined by the Tribunal. The fact that the applicant was able to leave China lawfully, and in the manner he did, is consistent with him fearing identification as a ring leader, or fearing being imputed with the political belief or activity as a ring leader, of the March 1997 demonstration and fearing being persecuted by reason of that political belief, and yet not having been so identified at the time he left China. The tenor of the substantive, but brief, reasons of the Tribunal has no focus on that claim. Those reasons are set out in par 14 above. The Tribunal has first addressed the harm of which the applicant complains, which must refer to the detriments in his employment. It did not think that those detriments amounted to persecution, or would do so in the future. It then referred to the applicant's support of the pro-democracy movement, but as appears its conclusion about the significance of that support is reached by reference to his ability to have left China unimpeded in 1997 and by the attitude of the authorities to those involved in the 1989 pro-democracy activities. It does not refer to the more recent country information referred to in par 12 above, or to its potential significance to the applicant's claim that he fears being imputed with the role as an organiser of the March 1997 demonstration when the railway line was blocked. Nor does the next paragraph indicate that the Tribunal had any such focus; again it refers to what the applicant has experienced. The concluding sentence, although general, appears to be a step in reasoning flowing from that reference to what the applicant has experienced. 27 There is, in my view, therefore an apparent misstatement of the nature of the applicant's second claim, and no reasoning of the Tribunal directed to it. It is only the general conclusions to the effect that the Tribunal is not satisfied that there is a real chance that the applicant will suffer persecution should he return to China which could encompass consideration of that claim. 28 Having regard to the applicant's claim, it was necessary for the Tribunal to consider whether he had the fear at the time he left China, and at the time of the hearing, that he would be arrested and tortured for his imputed political beliefs and activities in relation in particular to the March 1997 demonstration, and whether that fear was and is well-founded. In reaching its findings on those questions, the Tribunal may well consider the elapse of time between March 1997 and June 1997 when he procured his passport and July 1997 (he arrived in Australia on 2 August 1997) when he left China. It might also have regard to his ability to have left China as and when he did, and to the delay in the applicant applying for a protection visa after he arrived in Australia. On those matters, it did not have the benefit of oral evidence. As indicated in the cases referred to above, the existence of a well-founded fear of persecution for a Convention reason is a complex question as to the nature of the conduct which might be visited upon the applicant and the reasons why that might occur. It is apparent from the applicant's own evidence that the consequences to the community at large by the blockade of the railway line in March 1997 were not insignificant. One question which might arise is whether any action taken against the ringleaders (or perceived ringleaders) of that blockade was because of their political beliefs or to enforce some law of the State unrelated to any Convention reason. 29 However, for the reasons given, in my judgment the Tribunal did not really address that claim as it proceeded on the basis that he claimed that by July 1997 he was already wanted by the authorities. As those questions were raised by the applicant, and not addressed by the Tribunal, in my view the Tribunal has erred in law: see Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J; Hindi v Minister for Immigration and Ethnic Affairs (1988) 20 FCR 1 at 12-15 per Sheppard J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 483 per Gummow J; Surinakova v Minister for Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87 at 96 per Hill J; Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 245 per Merkel J; and Anthonypillai v Minister for Immigration and Multicultural Affairs [2000] FCA 1368 at [17] per Merkel J. 30 If, contrary to my conclusion, the Tribunal did determine the applicant's second claim as he expressed it, in my view the Tribunal failed to comply with s 430(1)(c) and (d) of the Act. Consequently, I consider that the decision should be reviewed also under s 476(1)(a) of the Act. In Singh, at 482 [54-55], the majority (Black CJ, Sundberg, Katz and Hely JJ) said:

"We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided. Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision. The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them." 31 As their Honours later pointed out at 482 [56], if the decision of the Tribunal turns upon the existence of a particular fact, having regard to its process of reasoning, then the fact is a material one. That does not mean that all pieces of conflicting evidence relating to a material fact must be dealt with. 32 I have had regard to the Tribunal's reasons to identify what fact or facts it has found, and what material it has referred to, in relation to the second claim of the applicant. I do not think that they extend beyond the conclusion, in effect, that the applicant is not a refugee. Its process of reasoning does not involve rejection of the applicant as a person of truth. Rather, the Tribunal appears to have assumed that his complaints were truthful. On that basis, in my judgment, it was material to determine whether the applicant feared persecution by virtue of being imputed with the role of a ringleader in the March 1997 railway blockade. If he did so, it would then be material to determine whether the identified ringleaders of that blockade had been mistreated as the applicant claimed and if so whether that was for their political beliefs. In the light of that finding, if affirmatively made, the Tribunal would need to determine whether the fear of the applicant that soon after he left China there was a real chance that he might be the subject of similar mistreatment because he might be identified as one of the ringleaders of that activity, and of course whether that fear was well-founded both at the time of the application and at the time of the hearing. The finding of the Tribunal that the applicant left China using a passport in his own name, and that at that time he was not a person of adverse interest to the authorities is not the only material finding its process of reasoning called on it to make. It is only speculation to think that that finding was to reflect a finding of fact by the Tribunal (for example) that by July 1997 the authorities were no longer seeking the ringleaders of that blockade, or that (for another example) there was no real risk that the applicant might be identified as one of those ringleaders. In my view that finding is not intended to present a conclusion from any such unexpressed finding, because the Tribunal ascribed to the applicant (at that point in its reasons) the claim that at that time he was being sought by the authorities. There are other matters to which the Tribunal may have, but need not necessarily have, referred in its reasons; they are referred to in par 26 above. Depending upon its findings, it may also have regard to the independent country information referred to in par 12 of these reasons. 33 For those reasons in my judgment the application should be allowed. I order that the respondent pay to the applicant his costs of the application to be taxed. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 14 February 2001 Counsel for the Applicant: D D Knoll

Solicitors for the Respondent: Australian Government Solicitor