V00/11364 [2000] RRTA 1148 (13 December 2000)

After the applicant father's father left, the applicant father states that life was difficult and the authorities suspected them. He told me at the hearing that he had been spat at, had stones thrown at him and been hit as a child. He was not sure why this happened but thought that it might have been because his father had some money and so was regarded as a warlord or landlord. Eventually, they were able to go to Hong Kong and the applicant father left China for the last time when he was still a child. He claims to have later learned that if they 'had left one day later the authorities would have ceased and recollected exit passes to capture us'.

The applicant father states that the family learned that Hong Kong was to be handed back to China and feared that their previous background would be discovered and lead to persecution. In a submission which accompanied the application, the applicant's adviser drew attention to the persecution of opponents of the communist regime which had occurred over an extended period in China. I said to the applicant father at the hearing that it was difficult to see that the Chinese authorities would today have a current interest in whether his father had been a warlord or landlord or had committed an offence after 1949. He said that the Chinese communists are very sensitive about certain activities and that this could be an excuse for a Chinese official to extort money from the applicant, and that officials might not give him papers to live in Hong Kong. He said that he thought that there was a real chance that he could be harmed and that Chinese security officials can come to Hong Kong whenever they choose. The applicant told me of a news article he had read about people being arrested and their houses searched and property confiscated but he was not aware of why these things had happened. He said that there was no guarantee that he would be safe.

The applicant's adviser raised the issue of the applicant's entitlement to reside in Hong Kong given that he has been away for so long. In a statement which accompanied the application to the Tribunal and at the hearing, the applicant father states that he does not believe that the CCP will continue to allow Hong Kong to enjoy the privileges and autonomy it has now and that these have been allowed to continue after the hand-over only to obtain the trust of the international community and so enable action to take control of Taiwan. When China is reunited, communism will have to be embraced and past autonomy and basic rights will be eliminated. People who oppose or who have opposed the government, such as the applicants, will be persecuted and punished. I advised the applicant that I understood that Hong Kong had continued much as it had been after China took over in 1997 and he said that things are not reported and that there is censorship.

The applicant father gave details of his family and where they had settled. The applicants' submissions indicate that there had been a fire in Hong Kong at the applicant father's place of residence and he has no family or assets there. I asked the applicant father about his experience in Hong Kong and he said that nothing had happened to him but that it was different when it was under the control of the British to how it would be now that China was in control. He said that he had sometimes been against communists in the unions but was not involved in political activity because he feared that he would be persecuted. He states that there is nothing left for him in his home town, he has no familiarity with China and it would be difficult to adjust to life there and where he considers his employment opportunities would be limited. He said at the hearing that he has worked here and paid tax and has never claimed a social security benefit and is used to his life here. The applicant father claims to fear that if he were to return, Chinese officials may learn that he has family living successfully in Australia and may blackmail them for money.

The form of the application indicated that the applicant daughter did not have claims of her own. I asked her about whether this was so at the hearing and she said that she was afraid to return to Hong Kong. She said that when she was little she heard of her grandfather's actions. She said that she had been treated in an unfriendly manner and that communists were very conscious of class issues. She then said that it was what might happen in the future that she feared. The applicant daughter explained that she had seen news items of what happened in China on 4 June 1989 which was cruel and scary. I note here that I consider that there is some doubt as to whether the applicant daughter could be regarded as a member of the applicant father's family unit : she is an adult, has lived near him only since arrival, does not work here but was employed in Hong Kong.

I asked the applicant father about why he did not apply for a protection visa until he had been in Australia for many years. He said that he had not known how to go about such things because he had lived in a small town and had been afraid about what to do in case he had to return to Hong Kong.

The applicant's adviser submitted that the applicant father had a subjective fear of persecution but that the relevant test was whether his fear was well-founded.

Following the return of sovereignty over Hong Kong from Britain to China on 1 July 1997, the Nationality Law of the People's Republic of China provided for Hong Kong residents and former residents who are of Chinese descent and born in the mainland of China or Hong Kong to be Chinese citizens. Chinese citizens who have at any time resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region have right of abode in Hong Kong. People entitled to live in Hong Kong continue to have right of abode in Hong Kong as long as they remain a Chinese citizen. They do not lose their right of abode even if absent from Hong Kong for long periods (Hong Kong Immigration Department Right of abode in the Hong Kong Special Administrative Region April 1997). The applicant father satisfies these criteria. There is no doubt that the applicant daughter is a Chinese national with right of abode in the Hong Kong Special Administrative Region. I find that the applicants are Chinese nationals with right of abode in the Hong Kong Special Administrative Region.

I accept the applicant father's account of what happened to him as a child and that his father had been regarded as against the CCP, including because of his illegal action. I accept that the applicant daughter has experienced people being unfriendly, something which I am not able to conclude was harm of a kind to constitute persecution or connected to any of the reasons in the Refugees Convention. I am, however, unable to conclude that the applicants' fear of persecution in the Hong Kong Special Administrative Region of China is well-founded for the following reasons.

First, the reason why the applicants claim to fear persecution relates to events of long ago: it was the applicant father's father's circumstances at the time of the communist revolution. The applicant father left China at the age of ten, many years before China resumed sovereignty over Hong Kong. His father (the person who was thought to be a warlord or landlord) died in the 1980s, several years before Hong Kong was returned to China. There is no evidence that the applicant father was involved in any activities in Hong Kong of a kind which might have come to the attention of the Chinese authorities. The Tribunal understands that particular groups of people have been targeted in successive political campaigns since the establishment of the People's Republic of China in 1949. The United States Department of State has reported that the political environment in China today is significantly different from that of the 1950s and 1960s and that it is not aware of any citizen in the last ten years who has suffered official discrimination because of 'bad class' background. Similarly, the cultural revolution affected, often brutally and arbitrarily, millions of Chinese citizens during the decade from 1966 to 1976 but that phase of China's history ended when the cultural revolution was officially repudiated in 1978 (United States Department of State China: profile of asylum claims and country conditions Washington DC, April 1998 Section 3 (d) 2). It is possible that knowledge of such matters is what has led the applicants to fear life under Chinese rule but the kind of persecution they claim to fear, because of 'bad background', stopped nearly twenty years before Hong Kong was returned to China in 1997. It is in my view implausible that the circumstances of the applicant father's father in the late 1940s and the early 1950s and the suspicion with which he might have been regarded at that time could lead to the persecution of his son and granddaughter (the applicants) today. I am unable to accept that the applicant father's father's actions and their consequences could lead the applicant father to be a victim of extortion by Chinese officials if he were to return to live in Hong Kong.

Second, despite forecasts that there would be considerable political suppression in post-handover Hong Kong, fears that the Chinese authorities would impose strict controls on freedom of speech and the expression of political opinions in Hong Kong have not been realised. Nor have outspoken advocates of democracy been restrained in their activities. 'The media has been outspoken in defending civil liberties' and 'newspapers publish a wide variety of opinions'. Political debate is vigorous and numerous viewpoints, including stories and opinions critical of the Hong Kong and Chinese governments are provided in the mass media, in public forums and by political groups' (United States Department of State 1999 country report on human rights practices: Hong Kong Washington DC, February 2000, Section 2(a)). Demonstrations have taken place and there has been no significant actions taken to restrict political activity (Section 2(b)). Against this background, it is apparent that the censorship suggested by the applicant father is not present and it is implausible that the Chinese authorities would seek to act adversely towards people such as the applicants. They have done nothing which could lead them to face persecution and I do not accept that they would be perceived as having done anything which could lead to their persecution. I do not accept that their relationship with their father and grandfather would lead them to come to the adverse attention of the authorities. There is also nothing to indicate that the applicant father's claim to fear extortion because his children have been successful in Australia, even if it were to occur which seems to me to be unlikely given the high number of rich Hong Kong people living there and abroad, would be because of any of the reasons in the Refugees Convention.

I note the applicant father's submission that China's good behaviour in Hong Kong is just for show and that the communist government will revert to true and more repressive form once it has won back control over Taiwan. I understand that the circumstances of the applicant's family and of their departure to Hong Kong in the 1950s and the loss of assets which probably occurred at that time would leave a legacy of bitterness which can last for generations. However, there is nothing before me to indicate that China's approach to the government of Hong Kong will change in the reasonably foreseeable future.

I am not satisfied that the applicants fear of persecution in the Hong Kong Special Administrative Region of China is well-founded.

It was apparent in written materials before me and at the hearing that the applicant father has settled in Australia and is happy here. I understand that the prospect of having to leave and return to a country he left behind many years ago must be very daunting. The circumstances of the applicant daughter are rather different: she has only been here for a few years and has lived as an adult in Hong Kong. As I explained to the applicants at the hearing, the Tribunal's role is only to consider whether applicants are refugees and so entitled to a protection visa. The Tribunal has no power to do anything else. Consideration of other reasons for their continued residence in Australia is a matter for the Minister.

Having considered the evidence as a whole, the Tribunal is not satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants do 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 protection visas.