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austlii:cth/RRTA/1999/222
appellant. The Tribunal affirms the decision not to grant a protection visa.
The Refugee Review Tribunal rejected a Chinese national's claim for refugee protection. The applicant claimed he had been imprisoned for possessing film of the 1989 Tienanmen Square massacre and that he would face persecution if returned to China. The Tribunal found his story lacked credibility—he failed to participate in pro-democracy demonstrations in his home province despite claiming strong support for the movement, and his account of a 'mysterious friend' with police connections who would help him escape in exchange for film was implausible. The applicant also failed to attend his hearing to explain these inconsistencies. Even if his story were true, the Tribunal found his lack of political profile meant there was no 'real chance' of current persecution, especially as high-profile protesters were being released from jail. The Tribunal affirmed the decision to refuse a protection visa.
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The applicant's claimed enthusiasm for the 1989 pro-democracy demonstrations does not accord with the fact that on his own evidence he did not take part in any demonstrations. His explanation seems to be that the action was in Tienanmen Square, not in the backwater he lived in, in Jilin province. I do not accept this. There is ample independent evidence that tens of thousands of people in Jilin demonstrated in the months leading to the Tienanmen Square demonstrations in June 1989 and afterwards, and that the demonstrators were drawn from all walks of life and from different municipalities (see: Jilin Students Support Hunger Strike, FBIS, 18/5/89, CX1152; Jilin Students, Teachers Protest, FBIS, 19/5/89, CX1153; China Overturns Counter-Revolution Verdict, Releases Dissidents, by Lorien Holland, Agence France-Presse of 30/5/97, CX23416). The applicant does not say that there was any particular obstacle to attending any demonstration. I consider that if, as the applicant claims, he had more than a passing interest in the democracy movement, he would have attended such demonstrations. His lack of participation in any form of protest calls into question his claimed interest in the protest movement.
Given this, I am not satisfied with the credibility of the claim that he had been so committed to the democracy movement that he had hidden film of the Tienanmen killings. Even if he had been persuaded into doing so, I am not satisfied that the authorities, in questioning him over the film, would have treated him as any more than a bit-part player in the pro-democracy movement. The authorities would have been aware that there was no record of the applicant having any kind of political profile. I am of the opinion that even if the applicant had been given some film to secrete, and the authorities had found the film on him, that the consequences of that discovery have been exaggerated by the applicant. I would have wished to question him to be certain that he had been sentenced to three years in a prison camp. Without being given the opportunity to do so, I am not satisfied with the credibility of his claim to have been so punished or to have had any subsequent difficulty with the security agencies, for example in the matter of obtaining a passport to leave China.
Neither am I satisfied that his evidence regarding his friend is plausible. If this friend was on close terms with the head of the Chinese PSB, I would regard it as extremely unlikely that he would choose to jeopardise this relationship by helping a claimed dissident to get a passport. I would also regard it as unlikely that he would accept in lieu of many thousands of dollars, two rolls of film on the Tienanmen Square killings as payment for obtaining a passport. Film of the killings has been broadcast far and wide for years, and there have been numerous accounts of the extent of the casualties. The applicant's nebulous description of the casualties does not in any way indicate that the film showed something new or extraordinary. I would have wished to ask him why his friend agreed to this bargain because on the face of it I am not satisfied that this claim is plausible. Neither am I satisfied that a person whose political or business inclinations and principles were such that he was on good terms with the head of the Chinese PSB would have wanted to smuggle film of Tienanmen Square out of China to expose the atrocities of the PSB and the army. Without being able to question the applicant about this claim, I am not disposed to accept it. Therefore I consider that on the face of the matter the applicant's consequent claims of the man being apprehended with the film and dobbing the applicant in, lack credibility.
In short, I find that the applicant's evidence lacks credibility on many points and am of the opinion that significant parts of his story, or all of it, have been fabricated in order to support an application for a protection visa. Even if he had been questioned in 1989 over being in possession of material from Tienanmen Square I would consider that he would have been treated sternly and let off with a warning given his lack of political profile. Given that high-profile protesters from Jilin are now being freed from jail (see: CX23416, above) I consider that the authorities' interest in the applicant over such film would be insignificant. Without being able to clarify the matters raised above with the applicant, I do not accept his evidence regarding the missing two rolls of film, the mysterious friend and the threat of future arrest.
The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of his claims despite ample opportunity to do so. Nor has he given the Tribunal the opportunity to explore aspects of his claims with him. A number of relevant questions are therefore left unanswered. I am not satisfied, on the evidence before me, that he has a well-founded fear of persecution within the meaning of the Convention.
Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.
The Tribunal affirms the decision not to grant a protection visa.
This definition has been considered by the High Court in Chan Yee Kin v MIEA [1989] HCA 62; (1989) 169 CLR 379, Applicant A & Anor v MIEA and Anor (1997) 142 ALR 331 at 354 and MIEA v Guo & Anor (1997) 144 ALR 567 at 575-6, and by the Federal Court in a number of cases, notably Ram v MIEA & Anor [1995] FCA 1333; (1995) 57 FCR 565. These cases have established the following general principles.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 144 ALR 567 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA [1997] FCA 289; (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant' case for him or her: Prasad v MIEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA
(1989) 169 CLR 379
(1997) 142 ALR 331
(1997) 144 ALR 567
(1995) 57 FCR 565
(1997) 74 FCR 275
(1985) 6 FCR 155
(1989) 91 ALR 39
The Tribunal affirms the decision not to grant a protection visa.