The Tribunal's reasoning and its decision
32 The Tribunal in its reasons records the claims made by the appellant in his protection visa application and in the appellant's statement in support of the review application. The Tribunal notes the appellant's contention that the capacity to obtain a passport can not be relied upon as a basis for concluding that the appellant had not been persecuted and, inferentially, was not of interest to PRC authorities.
33 The Tribunal at AB117 to AB119 records the oral evidence given by the appellant and witnesses on his behalf. The Tribunal notes that the 'applicant's sister … opted to be a witness'. As to the two witnesses nominated by the appellant on the hearing form, the Tribunal said this at AB119:
The Tribunal reverted to the question of the other two witnesses mentioned on the reply to the hearing invitation form but they did not have their telephone numbers, and asked them whey [why] their [they] were not present and if they were expecting to receive a telephone call. The Applicant and his sister replied that they were not aware to expect a telephone call from the Tribunal. The Tribunal asked the Applicant if they were only going to say that the Applicant was involved in a demonstration in front of the Consulate, and they replied in the affirmative. Asked if they were going to say anything else, they replied in the negative.
The Tribunal further said:
In view of this, the Tribunal put to the Applicant that it accepted that he had demonstrated in front of the Consulate on 13 March 2006. However, it was going to write to the Applicant and given [give] him a letter after the hearing closed which would include a date when a response was required. It invited the Applicant to contact these two people and if there was anything else they wanted to add, then they should include this in his letter along with his response to the matters raised by the Tribunal.
34 In the course of the hearing, the Tribunal asked the appellant about his initial reason for visiting Australia. The Tribunal asked about the circumstances in which his sister came to Australia in 1991 or 1992. The Tribunal asked questions about the appellant's educational and employment background. The Tribunal asked the appellant about his political activities in China before he came to Australia and noted the appellant's response that 'basically he was not involved in any activities but he did support some people who had lost their jobs and took part in some small scale demonstrations'. The Tribunal took the appellant to each of the matters which were subsequently the subject of the Tribunal's letter of 16 August 2006.
35 Having considered the appellant's responses and the oral evidence given at the hearing, the Tribunal reached these conclusions.
36 The Tribunal accepted that the appellant's family had suffered identified difficulties in China since the assumption to power of the Chinese Communist Party. However, the Tribunal did not accept that on the basis of the appellant's family history in China that the appellant held a well‑founded fear of serious harm for a Convention reason should he return to China. The Tribunal noted that each appellant had obtained a passport from the PRC authorities in their home province of Fujian. The Tribunal concluded based on the identified independent country information and ease of departure to Australia that neither appellant would have been likely to have been granted passports or exit permits if either of them had been of any interest to the Chinese authorities. The Tribunal noted the questions it put to the appellant about anti‑government protests in China and observed:
And when the Tribunal repeated its question, and again asked the Applicant to tell it in detail about his political activities in China, the Applicant simply claimed that basically he was not involved in any activities, but did support some people who had lost their jobs and took part in some small scale demonstrations.
37 Thus, the Tribunal concluded that the appellant 'does not have a well‑founded fear of serious harm amounting to persecution for a Convention reason because of his political activities in China' [emphasis added]. The Tribunal noted that the appellant did not claim that he 'experienced any difficulties whatsoever because of his involvement in these activities [that is, some small scale demonstrations] let alone Convention related serious harm. This finding is consistent with the appellant not being the subject of particular interest to PRC authorities. The Tribunal also concluded that protest activity in China is now more common and that the appellant 'would be able to express his views freely in China'.
38 The Tribunal then considered the appellant's claim, described by the Tribunal as his 'main claim' that by reason of his participation in the sit‑in rally and hunger strike outside the Chinese Consulate in Sydney on 13 March 2006 and the incorporation of his name in a protest website, the appellant would be subject to 'constant harassment, detention and imprisonment'. The Tribunal noted the appellant's claim that should he return to China, the Longyan Municipal PSB (Public Security Bureau) would arrest him and he would be 'laid off by his employer'. The Tribunal reviewed the evidence concerning the appellant's participation in the protest in front of the Consulate including a number of photographs of the appellant sitting in front of the Consulate. The Tribunal asked the appellant questions about the duration of the protest, the precise time it began and ended, and what happened at the demonstration since only two individuals participated, that is, the appellant and W F Z. The Tribunal asked the appellant to tell it about other rallies and protests he had participated in during his five month period in Australia. The Tribunal noted that the appellant 'replied he didn't remember, but there was one in Central Park and he has some photographs'. The Tribunal 'again requested the details of what protests and rallies he ash [has] been involved in, and he claimed it was too long ago and he did not remember'. The Tribunal noted:
Asked if he ever again protested against the Consulate in Sydney or the Embassy in Canberra, the Applicant replied in the negative about the Embassy. Asked again if he had ever again protested against the Consulate in Sydney and whether he had only protested the once on 13 March 2006, the applicant replied in the affirmative.
39 The second appellant gave evidence that the primary appellant initially wanted to demonstrate outside the Chinese Embassy in Canberra but she dissuaded him from doing so as she was worried about her child and family.
40 The Tribunal concluded:
Based on the Applicant's claims, the photographs he has provided, and the testimony of the witness, the Tribunal accepts that the Applicant and [W F Z] sat outside the Chinese Consulate in Sydney for most of the day with a placard saying hunger strike. However, from the fact that this occurred only some five days after his arrival in Australia but in the following five months the applicant has not again protested there or outside the Chinese Embassy in Canberra, that there were only two people involved, and its earlier finding that the Applicant was not a political activist, the Tribunal has not been able to satisfy itself that he has a well‑founded fear of serious harm amounting to persecution for a Convention reason of persecution in China because of his involvement in this one demonstration outside the PRC Consulate in Sydney, his involvement in other activities in Australia which at the hearing he could not remember when he was involve[d] in them or the details of them, even though it must have been in the last five months.
41 The Tribunal further concluded:
'And while claiming that his name is on a website, the Applicant does not provided [provide] a copy of this site or any other information about [it] and the Tribunal has not been able to accept this claim.
42 The Tribunal relied upon the Department of Foreign Affairs and Trade cable of 12 December 1995 previously mentioned to conclude that protests of the kind described by the appellant are regarded by PRC authorities as of no particular significance. The Tribunal referred to the appellant's response of 22 August 2006 and his assertion of a genuine fear of persecution due to participation in the hunger strike outside the Consulate on 13 March 2006. The Tribunal noted the appellant's concern that his 'real name is on a protest website' and his genuine fear of persecution was due to his political beliefs. The Tribunal concluded:
However, again the Applicant provides no evidence that his name is on a protest website such as a copy of it or provided a reference to where it can be accessed and the Tribunal does not accept this claim. In short, given all the above and based on the claims made by the Applicant and the country information put to him and notwithstanding his response, the Tribunal is satisfied that the Applicant does not have a well‑founded fear of serious harm amounting to persecution for a Convention reason on this basis.
43 The Tribunal then considered the operation of s 91R(3)(b) of the Act in the circumstances contended for by the appellant. The Tribunal said this:
Based on his participating in only one protest outside the Chinese Consulate in Sydney along with one other person and engaging in a hunger strike of only six hours duration; his involvement in a few other activities elsewhere in Sydney; the lack of any evidence that his name is on a protest website; and his lack of any political activity when he lived in China; the Tribunal is satisfied that the Applicant undertook this token activity in Sydney for the sake of strengthening his claims for a protection visa, and so has disregarded this conduct [by reason of s 91R(3)].
44 As to the circumstances of the appellant's employment, the Tribunal accepted that although the appellant's failure to return to his job at the end of his leave of absence might well provide a reason why his employer would not re‑employ him (should he seek employment upon his return to China), the Tribunal was not satisfied that such a refusal would be for a Convention related reason, that is, related to the political opinions of the appellant. Nor was the Tribunal satisfied that the appellant's demotion whilst in employment was Convention related. The Tribunal concluded:
Nor from the claims made by the Applicant has the Tribunal been able to satisfy itself that the essential and significant reason why the applicant may have any difficulty in finding a job in China (if any) would be Convention related, and the Tribunal does not accept this claim.
45 The Tribunal concluded having regard to all the claims taken individually and collectively that it could not be satisfied there was a real chance that the appellant would be subjected to serious harm amounting to persecution for a Convention reason should he return to China.
46 It can be seen from the Tribunal's reasoning and its findings that the Tribunal could not be satisfied the appellant held a well‑founded fear of persecution by reason of any events in China because the appellant's evidence did not support such a finding. His evidence was 'basically' that he was not involved in any political activities in China. The appellant subsequently accepted that finding and sought to explain the reasons for his lack of political activity (AB132, para 1; affidavit, primary appellant filed 2 April 2007, paras 3 and 4). Nevertheless, the finding was plainly open on the evidence.
47 The appellant contends that the Tribunal reached its finding on this aspect of this claim in reliance upon old country information concerning the prevailing protocols and other checks made by PRC authorities before granting a passport to an applicant. The appellant says that the Tribunal inferred that there was no basis for any concern on the part of PRC authorities about the conduct and activities of the appellant as he and his wife were able to obtain passports with ease. The appellant says that more recent country information demonstrates that applicants in the PRC can obtain passports and exit documentation without the level of scrutiny by PRC authorities which previously prevailed and was the subject of the country information reports relied upon by the Tribunal. It is true that more recent country information suggests that in some provinces, since February 2002:
'… obtaining an ordinary passport is now a straightforward procedure. Applicants submit a form along with copies of their identification documents (ID cards or household registration papers/hukou) through their local post office, and are digitally photographed. Since February 2002, private individuals no longer need to provide an overseas invitation. After a fixed period (2‑3 days), applicants return, pay a fee and collect their passport. Provided the applicant does not fall into any of the categories of persons ineligible to leave China the passport would likely be issued. Authorities expect to extend this procedure to all large and medium sized cities by 2005'.
48 The appellant says a proper inference can not be drawn from the country information relied upon by the Tribunal that an applicant for a passport is of no interest to PRC authorities on grounds of prior protest conduct for reasons of political opinion, simply because the applicant obtains a passport and achieves an objective of lawfully leaving China. However, five things should be noted. First, the Tribunal was entitled to prefer the country information it obtained and rely upon it in discharging its fact‑finding role (NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 [11] and [41], relying upon VTAG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 291 and VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25]). Secondly, the finding is primarily supported by the Tribunal's assessment of the appellant's evidence. Thirdly, the appellant accepted that he had not engaged in protest activity and explained the conjunction of circumstances causing that to be so. Fourthly, even if no proper inference arises out of the older country information, the Tribunal did not act on 'no evidence' in reaching its finding as evidence (that is, the appellant's own evidence) supported the finding. Fifthly, the question of whether there is any evidence of a particular fact is a question of law just as whether a particular inference can be drawn from facts found or agreed is a question of law. Accordingly, in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law. On the other hand, clearly enough, there is no error of law in simply making a wrong finding of fact. In addition, even if the reasoning upon which the decision‑maker reached its conclusion of fact is demonstrated to be unsound, that would not amount to error of law (Minister for Immigration and Multicultural Affairs v Al‑Miahi (2002) 65 ALD 141 per Sundberg, Emmett and Finkelstein JJ at [34]). Even if it is accepted that the earlier country information did not support an inference drawn by the Tribunal, there was nevertheless evidence before the Tribunal supporting the findings of fact.
49 The Tribunal's reference to the country information upon which it relied is said to reflect a less rigorous standard for assessing prospective risk and reflects an approach on the part of the Tribunal of simply relying upon out of date and irrelevant information rather than an inquiring or analytical approach to the question before it. Two things should be noted about this contention. First, it is clear from the Tribunal's reasons that it comprehensively reviewed all of the evidence both in terms of the appellant's written evidence and the evidence of the witnesses at the hearing. Thus, the Tribunal did not simply rely upon 'old decision templates'. Rather, the Tribunal asked itself whether it could be satisfied on all the material that the appellant held a well‑founded fear of persecution for a Convention reason should he return to the PRC. Secondly, to the extent that the appellant's contention raises the notion of bias on the part of the Tribunal, there is no basis for such a ground of challenge. There is no evidence of pre‑judgment by the Tribunal (Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, per Gleeson CJ and Gummow J at [71] and [72]). If the contention is one of apprehended bias rather than actual bias, no fair‑minded lay observer examining the reasons of the Tribunal could reasonably apprehend bias (Re Refugee Review Tribunal & Anor; Ex parte H & Anor (2001) 179 ALR 425 per Gleeson CJ, Gaudron and Gummow JJ at [27] ‑ [32]; Ebner v Official Trustee (2000) 176 ALR 644 at 647 at [6] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Expectation Pty Ltd v PRD Realty Pty Ltd & Anor (No. 2) (2006) 151 FCR 160).
50 There is no ground of bias made out by the appellant.
51 By the third ground of appeal, the appellant contends that the Tribunal failed to consider the appellant's protest activities against the government of China during the period between his arrival in Australia and his application for a protection visa. Secondly, the Tribunal failed to consider protest activities undertaken by the appellant after the application for a visa. A consideration of the reasons demonstrates that the Tribunal comprehensively examined the written and oral evidence put to the Tribunal by the appellant. That evidence comprehended factual allegations concerning the appellant's participation in the protest in front of the Chinese Consulate in Sydney on 13 March 2006 and evidence of other discussion groups or protest events in which the appellant said he was a participant.
52 The Tribunal's reasoning demonstrates that it accepted that the appellant had demonstrated in front of the Consulate on 13 March 2006 ([33] and [40] of these reasons). The Tribunal pressed the appellant to identify other specific examples of protest activity apart from the events of 13 March 2006. The appellant could not recall other activities with any precision.
53 In evaluating the facts concerning the appellant's protest activity in Australia, the Tribunal gave weight to the consideration that the appellant engaged in the primary protest event on 13 March 2006 immediately after arriving in Australia on 8 March 2006. The Tribunal gave weight to the consideration that the protest event involved only two people consisting of the appellant and W F Z. The Tribunal gave weight to the consideration that the appellant had not engaged in other protests outside the Consulate in Sydney or the Chinese Embassy in Canberra. The Tribunal gave weight to its earlier finding that the applicant had not been a political activist in China. The Tribunal concluded that it could not be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason should he return to the PRC, due to his involvement in the demonstration on 13 March 2006 or other activities in Australia about which the appellant was, in evidence before the Tribunal, uncertain.
54 The Tribunal placed weight upon the failure of the appellant to provide evidence of the protest website upon which his name had been placed. The Tribunal noted that the appellant had not provided any copies or print‑outs of web pages corroborating his contention in that regard. The Tribunal observed that the appellant had provided no evidence of those matters and thus the Tribunal did not accept the appellant's claim of inclusion on the website. The appellant had provided a reference to the website in both the initial statement in support of the protection visa application and the statement supporting the application for review before the Tribunal. The Tribunal was in error in observing that no evidence had been provided by the applicant. The applicant gave the Tribunal written and oral evidence of the website details.
55 Although the Tribunal was in error in respect of this evidence, the error does not amount to an error of law. The error as to evidence of the website itself is an error of fact as to the state of the evidence. It was however, open to the Tribunal to conclude that the appellant's name had not been included on the website without evidence of web pages. That conclusion formed part of the fact finding role of the Tribunal. Moreover, the finding of the Tribunal that it could not be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason arising out of the appellant's activities in Australia, was supported by the Tribunal's analysis of the appellant's evidence, that is, the matters which, in the mind of the Tribunal, attracted weight and emphasis ([40] and [54]).
56 The consideration of the appellant's activities in Australia gave rise to the operation of s 91R(3) of the Act which is in these terms:
91R …
(3) For the purposes of the application of this Act and the regulations to a particular person:
(a) in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
57 Section 91R(3) requires the appellant to demonstrate to the satisfaction of the Tribunal that his protest activities in Australia were undertaken for reasons other than the purpose of strengthening his claim to be a refugee. The onus of proof to the civil standard is borne by the appellant (SBCC v Minister for Immigration and Multicultural Affairs [2006] FCAFC 129 per French, Lander and Besanko JJ at [39]; NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 per Wilcox J at [26]; NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195; 156 FCR 419 per Young J at [89] with whom Gyles J and Stone J agreed).
58 The Tribunal examined the written and oral evidence of the appellant's protest activity on 13 March 2006 and his evidence of other acts of engagement in protest meetings to the extent of the evidence put forward. The Tribunal reached a conclusion that the appellant had undertaken the protest activity about which he gave evidence for the sake of strengthening his claims for a protection visa. The Tribunal described the appellant's protest activity in Sydney as 'token activity' and that description contained within the finding was predicated upon these considerations. First, that the appellant had participated in only one protest outside the Chinese Consulate. Secondly, that protest occurred with only one other person, namely, W F Z. Thirdly, the appellant's participation in a hunger strike on the evening of 13 March 2006 and throughout the following early morning was, by definition, of limited duration. Fourthly, the appellant's evidence of other protest activities 'elsewhere in Sydney' was limited and uncertain. Fifthly, the appellant's evidence was that he had not engaged in political activity in China. Having regard to these identified factors drawn from the Tribunal's assessment of the evidence, the appellant had not satisfied the Tribunal that he engaged in the conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal did not simply find that the appellant had failed to discharge the onus. The Tribunal positively found that the activity undertaken by the appellant was merely token activity undertaken for the purpose of strengthening his claims. Accordingly, the Tribunal disregarded the appellant's conduct in Australia. The Tribunal's finding was open on the evidence and there is no error of law in reaching that finding.
59 The question of whether the appellant had engaged in the protest activity in Australia for the purpose of strengthening his claims to refugee status were expressly raised by the delegate at AB70 ‑ AB71. The delegate said this:
In view of the applicant's non participation in anti government protest activity in the PRC, his decision to involve himself in a demonstration only six days after his arrival in Australia, and the lack of any meaningful information, I am very doubtful that the applicant has acted out of a genuine commitment to any cause other than his own self interest. In regard to this matter I am obliged to consider the applicant's activities post arrival in Australia against the provisions of Section 91R(3) …
The delegate quoted s 91R(3) and then said:
On the basis of what has been presented to me, I am not satisfied that any involvement in anti PRC government activities by the applicant since his arrival in Australia has not been for the sole purpose of bolstering claims to a well founded fear of persecution. Therefore I have disregarded any such conduct under Section 91R(3) of the Migration Act.
60 Against the background of the delegate's contention that the sole purpose of the appellant's protest activity in Australia was to bolster claims to a well‑founded fear of persecution, the appellant responded to the Tribunal with his statement at AB79 - AB81 setting out the motivation for and content of the protest activity. Those matters were further addressed in detail at the hearing. The appellant was unable to persuade or satisfy the Tribunal that his protest activity was undertaken for any reason other than to strengthen his claim to be a refugee for the purposes of the Act.
61 In addition, the Tribunal considered whether the appellant might be able to seek and obtain employment in the PRC other than for his former employer, the State owned Long Yan Electric Power Administration authority and thus in the province where the appellant formerly lived. The Tribunal was not able to be satisfied that any Convention related reason would prevent the appellant from obtaining employment in any other part of the PRC. Thus, the Tribunal concluded that it would be practicable with no objective risk of persecution for a Convention reason for the appellant to relocate within China and obtain employment.
62 It is clear from the Tribunal's reasons that the sur place claim was considered entirely separately from the claim of a well‑founded fear of persecution by reference to the appellant's activities in China. The sur place claim was described as the 'main claim' supporting the appellant's contention of a well‑founded fear of serious harm by reason of his political opinion. Clearly, the Tribunal extensively examined the written and oral evidence going to the sur place claim.
63 The appellant raises two further grounds of appeal. The first goes to the Tribunal's approach to the notion of 'political opinion' for the purposes of the Act and the second goes to the appellant's contention of participation in a 'social group'.
64 As to the Tribunal's approach to the notion of a well‑founded fear of persecution by reason of a person's political opinion, the appellant says the Tribunal required the political opinion to be 'expressed' before a well‑founded fear of persecution might arise. In this case, the appellant did not assert that he had engaged in the expression of his political opinions through protest activity. Moreover, the Tribunal noted that the appellant simply claimed that 'basically he was not involved in any activities … in China' but did take part in some small scale demonstrations. The Tribunal noted that the appellant did not claim that he 'experienced any difficulties whatsoever because of his involvement in these [small scale demonstrations]' (paras [36] and [37] of these reasons). Moreover, the appellant sought to explain the reasons for his lack of protest expressed in China.
65 The Tribunal assessed the claim of the appellant to a well‑founded fear of persecution arising out of family and other events in China, on the footing that no express protest activity had occurred, because that was the evidence of the appellant. The Tribunal was not seeking to impose any particular constrained approach to the notion of 'political opinion'. It applied the correct approach. It simply assessed the evidence on the footing upon which it was put.
66 As to the ground relating to the appellant's contended participation in 'a number of particular social and political groups that are forbidden in his home country', two things should be said. First, the appellant has failed to identify the facts or circumstances going to the contended social or political groups to which he might belong. In other words, there is simply no content to the contention. Secondly, the basis upon which the appellant said before the Tribunal that he held a well‑founded fear of persecution for a Convention reason was his 'political opinion'. No other contention was made. The appellant sought to evidence conduct of repression by Chinese authorities by reference to the suppression of particular social groups. However, the appellant did not contend that he was a participant in any particular group or that he held a well‑founded fear of persecution by reason of his membership of any particular social group. Thus, the ground is not made out.
67 The appellant has framed the grounds of appeal to this Court on the footing that the Federal Magistrates Court erred by failing to find errors on the part of the Tribunal as contended by the appellant. There is no error on the part of the Federal Magistrates Court in its treatment and disposition of each of the grounds advanced before it in the appellant's application for review.
68 One further matter should be mentioned. The appellant in his affidavit filed on 2 April 2007 identified many typographical errors on the part of the Tribunal and errors in the description of each appellant's name. There are 26 typographical errors identified such as references to 'ash been' instead of 'has been' and 'form doing' instead of 'from doing' and 'whey there were' instead of 'why there were'. The reference to each appellant's name in one example inverts the first name with the second name and in the other case separates, it is said, the primary appellant's first name so as to read [Abcde Fghi] rather than [Abcdefghi]. These errors are said to be emblematic of a failure to discharge the review function. While the errors are unfortunate they are simply, in the main, typographical errors. The reference to each name of the appellant is simply a mis‑description. It should be noted that in the application form for a protection visa signed by the primary appellant, he describes his given names in a separated way. In his wife's application for a protection visa as a member of the primary appellant's family unit, she describes her given names in a similar separated way. If the Tribunal has erred in this method of description, these errors are in any event simply mis‑descriptions. Importantly, it is clear from the Tribunal's decision that it has comprehensively examined all the underlying facts going to the claims of the appellants.