V94/01695 [1995] RRTA 1979 (31 August 1995)

1 This is an application for review of decisions made by a delegate of the Minister for Immigration Local Government and Ethnic Affairs, that the applicant is not a refugee under Article 1 Section A of the Convention relating to the Status of Refugees 1951 (the Convention) as amended by Article 1 Paragraph 2 of the Protocol relating to the Status of Refugees 1967 (the Protocol); and

refusing to grant a domestic protection (temporary) entry permit (DPTEP), a criterion for which is that the applicant has been determined to be a refugee under the Convention as amended by the Protocol.

2 The effect of s 39 of the Migration Reform Act 1992, is to deem these to be decisions to refuse to grant a protection visa.

3 The applicant is a 26 year old woman, a citizen of the People's Republic of China (the PRC). She arrived in Australia in February 1991, travelling on a valid PRC passport. Her application for refugee status was lodged with the Department of Immigration, Local Government and Ethnic Affairs (the Department) on 23 September 1991. On 17 December 1992 the application was rejected by a delegate of the Minister.

4 The applicant applied for review of the rejection to the Refugee Status Review Committee (RSRC) on 19 January 1993. The RSRC ceased to exist from 1 July 1993, and the application was referred to the Refugee Review Tribunal (the Tribunal).

5 The jurisdiction of the Tribunal arises by virtue of -

(i) sub-s 414 (1) of the Act which requires the Tribunal to review an "RRT-reviewable decision" where a valid application is made under s 412;

(ii) sub-s 411 (1) which defines an "RRT-reviewable decision" to include, subject to certain exceptions which are irrelevant for present purposes, decisions made before 1 September 1994 respectively -

that a non-citizen is not a refugee under the Convention and Protocol (para (a)); and

that an application for a visa or entry permit, a criterion for which is that the applicant for it be a non-citizen who has been determined to be a refugee under the Convention as amended by the Protocol, be refused (para (b));

(iii) s 412, which prescribes the criteria for a valid application; and

(iv) s 413 which validates an application for the purposes of s 412 if it complies with certain criteria.

6 I am satisfied that the jurisdictional requirements listed under paras. (i) to (iv) supra exist in this matter. I note that, by virtue of s 39 of the Migration Reform Act 1992, the primary decisions in this matter have effect as a refusal to grant a protection visa.

7 The applicant's case is set out in her application for refugee status, as found on her Departmental file, as well as evidence and submissions to the Tribunal.

8 The applicant attended a hearing of the Tribunal on 24 August 1995; the Tribunal was assisted by an interpreter in the Chinese (Mandarin) language.

9 The applicant told the Tribunal that she enrolled at the xxxx University in 1987. It was a six year course to become a doctor, however after completing three years a student became eligible for a diploma. The applicant completed three years, from 1987 to 1990, however she was refused the diploma due to her involvement in the 1989 pro-democracy movement.

10 xxxxxx The applicant wrote and organised for the printing of leaflets about this incident, and what it showed about the lack of freedom of speech and democracy in the PRC. xxxxxxxx.

11 Due to these leaflets, there were big demonstrations organised by the Shanghai Universities. xxxxx the underlying cause was the lack of democracy and freedom, xxxx was a symptom.

12 As a result of causing this major upsurge of unrest the applicant was prohibited from attending classes for three days at the end of April 1989. She was also given a verbal warning by the University officials.

13 After the end of April nothing much happened in Shanghai until 18 and 19 May. The applicant organised the demonstration of 18 May xxxxx there were plainclothes policemen present who vide-taped her and tape-recorded her. However the applicant ignored the danger that this presented for the cause of democracy. The students then started to march towards the City Government buildings. The applicant was always at the front of the march, leading the marchers, and shouting slogans.

14 This was a very big demonstration, though the applicant could not be sure how large. She thinks there may have been as many as 50,000 people there. The applicant also organised a separate 'petition group' which sat in front of the government buildings for about three hours. During this time the police started beating up students and pushing them back. The applicant still has scars on her face from this incident.

15 This demonstration so shocked the city government that Zhu Rong Zhi delivered a speech on TV calling on the students to stop. This speech so aroused everyone, including both workers and students that the next day, (that is on 19 May 1989) an even bigger demonstration took place. xxxxx Again, the applicant lead the demonstration and carried a donation box. The slogans and cartoons created much support, which was demonstrated by the willingness of the onlookers to give money. The applicant is sure that she was again photographed and video-taped.

16 It was a very hot day, and some of the students who had had to march a long way started to faint. As the applicant was a medical student she xxxx This continued until 6pm or 7pm. Later, the applicant and others started distributing pamphlets and putting them up in and around the Square. The applicant had organised for the printing of the leaflets.

17 In the following days there were a few small demonstrations around the tertiary institutions, but the demonstrations of 18 and 19 May were the big ones. The applicant was asked what happened in Shanghai between 19 May and 4 June. She said that she had been prohibited from attending classes for a month from 25 May. While she was suspended from class she was threatened that if she took any further part in the pro-democracy movement she would assigned work in a remote area where there were few medical facilities.

18 She said that the demonstrations had an enormous influence and effect. She was asked what she meant by this, and said that she received very many telephone calls from people xxxxx.

19 She said that after 4 June there were a few small scale demonstrations, nothing more. The pro-democracy movement did not want to do anything that would harm the citizens and the workers.

20 During the time that she was suspended from class she was extensively questioned by the University authorities. She was detained late every night and forced to write self-criticism. She said that she returned to her University course after a month, but was psychologically affected, in that she was very depressed. She was allowed to sit for her exams. She had no specific further problems, but she felt she was being followed by the police. She was frightened and depressed. Because she had been warned that she would be assigned to a remote area, and because of her psychological state, she was unable to continue her degree course. She should have been awarded a diploma, but she was not.

21 Between July 1990, when she stopped attending university and February 1991 when she arrived in Australia, she organised to come here to study. The CCP pursues those who are anti-government, so she was worried that her role in the pro-democracy movement would lead to her arrest. She had been warned before she left that the PSB was interested in her, she was told that they already had the information about her.

22 She had to stop studying because if a student applies for a passport she has to stop. This is somewhat different from the earlier reasons given. She had to repay the University some 7,500 RMB for the time she had studied. Even after that the authorities refused to give her the letter of recommendation she needed for her passport. However the mother of a friend who worked in the administration section of the University was able to organise the necessary letter, in return for some presents.

23 She was able to get her second exit permit officially. xxxxxx she had not been officially identified either. She was asked how this could be, when she had been so active, and the University certainly knew of her activities. This was not satisfactorily answered.

24 The applicant was then asked about various aspects of the pro-democracy movement. She was specifically asked about the death of Hu Yao Bang. She answered that he died before 4 June 1989. She said his death was one of the causes of the pro-democracy movement, but xxxxx.

25 She was asked about the proclamation of martial law, but could not remember exactly when it was, except that it was before 4 June. It was all so long ago she could not really remember, and anyway it was mainly in Beijing. She was asked about the hunger strikers, but said as far as she knew there were virtually no hunger strikers in Shanghai. She was asked about the barricades in Shanghai, but said there were only a few.

26 Her grandmother was a buddhist who suffered during the Cultural Revolution. The applicant attends a Buddhist temple in Melbourne and fears she will be treated the way her grandmother was.

27 Her letters home have been intercepted. She was told by her sister in April 1991 that letters were being opened. However she sent photographs of herself in demonstrations in front of the Chinese consulate to her parents after that time. She also sent a letter in xxx 1992 telling them that her application for refugee status had been rejected. Her parents did not get the letters with the photographs nor with the news of the rejection of her application for refugee status. The applicant was asked why she sent such incriminating evidence in letters when she had been warned that they were being opened. She said that she really needed to be in touch with her family and did not think of the consequences.

28 Her parents came to Australia for the xxxxr. Their passports were not issued as quickly as could have been expected. Also, they were warned before they left that they should urge the applicant to return and face trial. In 1995 xxxx returned to the PRC for a visit, carrying letters from the applicant to friends. These letters were found by Customs as xxx was searched on arrival. They were found to contain counter-revolutionary material, and xxxx was warned that the applicant was already on a black-list. xxxx later found out that xxx parents house had been searched after the parents returned from Australia, and photographs of the pro-democracy movement taken away by the PSB.

29 She fears she will be arrested and tried if she returns to the PRC.

30 On 1 September 1994 the Migration Reform Act 1992 (MRA), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s.36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose. Section 39 of the MRA provides, in effect, that refugee related applications not finally determined before that date are to be dealt with as if they were applications for a protection visa. Accordingly, for the purposes of this review the Tribunal regards the Applicant's primary application as an application for a protection visa.

31 The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (the Regulations): see s.31(3) of the Act and r.2.03 of the Regulations.

32 It is a criterion for the grant of a protection visa that at the time of application the applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the family unit of a person who is also an applicant and has made such claims: cl. 866.211 of Schedule 2 of the Regulations.

33 It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations.

34 The remaining criteria for the grant of a protection visa are, generally speaking, that the applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl. 866.22 of Schedule 2 of the Regulations.

35 "Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.

36 Insofar as relevant to the present matter, Article 1A(2) of the Convention as amended defines a refugee as 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; . . "

37 Date for determination of refugee status. Whether or not a person is a refugee for the purposes of the legislation is to be determined upon the facts existing at the time the decision is to be made although the circumstances existing at the time the applicant fled his country will ordinarily be the starting point in ascertaining his present status. (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (at 387, 391, per Mason C.J.; at 399, per Dawson J.; at 405-406, per Toohey J.; at 414, 415, per Gaudron J.; at 432 per McHugh J). The issue of the relevant time for assessment was addressed by Wilcox J. in Lek Kim Sroun v The Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 493; (117 ALR 455) who, after examining the judgements in Chan's case, held that the date of determination is the relevant date for assessment.

38 "Well-founded fear". The test for a well-founded fear of persecution contains both a subjective and an objective component (Chan's case, at 396). Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality. There must be a "real chance" that the applicant will be persecuted for a Convention reason if he or she is returned to the country of nationality. A "real chance" is one that is substantial as distinct from remote (Chan's case, at 389, 398, 406-407); 'Obviously, a far-fetched possibility of persecution must be excluded' (per McHugh J at 429).

39 The Full Federal court in MILGEA v Che Guang Xiang, (unreported No. WAG 61 of 1994), reiterated the Chan test for well-founded fear (at pp15, 16, 17). That is

[a] "real chance" that persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly, may be ignored. It is not necessary to show that it is probable that persecution will occur. a well-founded fear of persecution may be grounded upon the possibility of such an occurrence. Indeed the fear that such harm may be suffered may be well-founded even though such persecution is unlikely to occur. . . The delegate may have thought it was unlikely that Che's fear would be realised but the question to be answered was whether the prospect of persecution was so remote as to demonstrate the fear to be groundless.'

40 Persecution. The word "persecuted" is not defined in the Convention.

Not all forms of selective or discriminatory treatment by a State of its citizens, will amount to persecution. 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." (per Mason CJ Chan's case at 388)

Not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes "being persecuted". The notion of persecution involves selective harassment. It is not necessary, however, that the conduct complained of should be directed against a person as an individual. He or she may be "persecuted" because he or she is a member of a group which is the subject of systematic harassment. Nor is it a necessary element of "persecution" that the individual should be the victim of a series of acts. A single act of oppression may suffice. As long as the person is threatened with harm, and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is "being persecuted" for the purposes of the Convention. The threat need not be the product of any policy of the government of the person's country of nationality. It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution. . . 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. . . [P]ersecution 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. (Chan's case, per McHugh J at 430 - 431).

42 The meaning to be given the words 'being persecuted' was further elucidated by the Full Federal court in Che, (unreported No. WAG 61 of 1994), at p15, where the Court said

Denial of fundamental rights or freedoms, or imposition of disadvantage by executive act, interrogation or detention for the purpose of intimidating the expression of political opinion will constitute persecution. Even if such actions are solely motivated by reason of a person's membership of an "anti-revolutionary family", they may amount to persecution for reasons of political opinion.'

43 Refugee sur place - A refugee sur place is a person who was not a refugee when he or she left his or her country but who becomes one at a later date.

44 The applicant's version of events in Shanghai in April, May and June of 1989 are so far removed from that of all other evidence available to the Tribunal that the Tribunal cannot help but wonder if she were present in that city at all (see for example The Pro-Democracy Protests in China, Reports from the Provinces Jonathan Unger (ed)) . The declaration of martial law in Beijing on 20 May led to a major change in the tenor of the demonstrations, in Shanghai as in the rest of the country. It is hard to believe that any resident of Shanghai was not aware of the barricades in most of the major intersections, leading to total chaos in the city after 4 June.

45 The Tribunal cannot accept that the applicant was a major contributor to the pro-democracy movement as she has claimed. The causes of the pro-democracy movement have been reasonably well-documented (see for example Black hands of Beijing G Black and R Munro, China in our Time R Terrill), and the applicant's version simply does not conform with 'generally known facts' about these events.

46 The applicant probably participated to some limited degree in the pro-democracy demonstrations in Shanghai - there were 400,000 people demonstration in Shanghai on 19 May, and on Sunday 20 May 'student leaders estimated that 90 per cent of Shanghai's student population had turned out' (The Pro-Democracy Protests in China op cit).

47 The Immigration and Refugee Board Documentation Centre, Ottowa, Canada in The Hunt for Dissidents in China., pp4- 5, states

According to an independent source, Chinese police laid charges of antigovernment activism against "anyone who could be identified" on videotape (even from traffic control cameras) or photographs taken by security forces or published by international press and television (China Review Aug, 1989, 5). One source reported that even people who were passing in the street during demonstrations and appeared in such pictures were arrested, interrogated and, in some cases, sent for re-education (Asia Watch 1990, 7-29). (p5).

48 The applicant claims to have been a leading, almost the leading, pro-democracy activist in Shanghai. xxxxxx it is simply not credible that she would have been at liberty until she left the PRC in February 1991, some 20 months after the crackdown on the pro-democracy movement.

49 On the evidence available I accept that the Chinese authorities still arrest and detain those who are or were active in the pro-democracy movement. It appears however, given that there were over one million demonstrators in Beijing alone, that something more is needed than mere participation (see DFAT cable 51854). Activists, or those with high political profiles, and the ability to affect some change in the government of the PRC are the people most at risk. The Tribunal does not accept that the applicant had any greater role than that of a mere participant.

50 The Tribunal refers to Department of Foreign Affairs and Trade (DFAT) cable O.BJ51854 dated September 1992 stating

We confirm that the PRC authorities have not treated harshly people who merely participated in demonstrations and rallies, signed petitions, or collected money in support of protest activity. there were at least one million people involved in such activities in Beijing alone in May/June 1989. The authorities have taken strong punitive action only against high profile activists and leaders of organisations that the PRC government regards as illegal.

51 The advice to the Tribunal (given at a seminar in November 1994) by Dr Michael Dutton and Linda Jaivin, academics who specialise in China, is that the Chinese Government is no longer interested in those who were active in the 1989 movement, unless they become, or are perceived as liable to become, active in dissident movements in the PRC on their return.

52 The Tribunal has been unable to locate any evidence to indicate that the Chinese Government is still interested in punishing those who were involved in the 1989 pro-democracy movement, but who are not perceived as posing a threat now or in the future.

53 On the applicant's evidence, she was able to leave the PRC on a legal passport. She obtained her passport by using bribery and connections. Information available to the Tribunal indicates that the use of bribery or connections to facilitate the transaction of business is part of life in the PRC; see for example DFAT cable O.SH 6805, dated 5 August 1991

Use of loopholes is rampant firstly, because so much of China operates on the basis of personal relationships than on the rule of law, or in accordance with regulations, and secondly, because Chinese bureaucratic organisations are jealous of each other and reluctant to share information."

54 See also "Corruption and Administrative Supervision" Edward J Epstein, China News Analysis 1 April 1992, No.1457, pp 1-8

It has been argued that, like the former Soviet Union, bureaucratic corruption in China is an inevitable consequence of the institutional framework and pattern of relationships which exist in a one-party socialistic State. This is not a new problem in China, but has been exacerbated over the last decade by the intensity of economic growth, rapid expansion of foreign trade and investment, and periods of tightening bureaucratic regulation.

55 Its use does not of itself, necessarily indicate that the applicant would not have been able to pass the usual political vetting that is a prerequisite for obtaining travel documents. This is especially the case for the applicant, who did not leave the PRC for about 20 months after June 1989. The Tribunal accepts that the applicant used connections to obtain her travel documents. However it does not accept the inferences sought to be drawn from this.

56 Even if it were the case that the applicant's tertiary education was interrupted as a result of her participation in the pro-democracy movement, this would not necessarily amount to persecution. Not all discrimination amounts to persecution ( Chan's case, at 388, Hathaway, op.cit at 120 -121 "Not every instance of unfairness broadly related to an enumerated right will support a finding of persecution."). It may have been discriminatory, and unfair, that the applicant was not able to finish her medical degree. Denying an applicant access to a scarce commodity, one that can be described as a luxury, such as tertiary education, is not persecution.

57 The applicant claimed that her family was visited by the police and PSB. This may be true, however it does not indicate that he is of any interest to the PSB for his behaviour during May and June 1989. The United States State Department document, Country Reports on Human Rights Practices, 1992 notes that the authorities extensively monitor personal and family life. A DFAT cable, BJ47067, dated 23 July 1991 states:

Families in the PRC would be visited by the police from time to time and told to do something about the relative overseas. Families in the PRC would be forced to write letters to advise the relative that it would not be in his/her interest to continue with the activities.

58 The Applicant has sent photographs and letters to the PRC that could be described as anti-government. She was warned not to do so, as the mail was being opened, as early as April 1991, but she continued to send such material for a number of years. The Tribunal does not accept that she did this for emotional comfort, and not thinking of the consequences on more that one occasion. However, the Tribunal does not accept that the Chinese authorities would in any event take any action that could be described as persecutory as a result of this material being sent to the PRC. The Tribunal notes DFAT cable O.BJ1879, dated 1 June 1993, which reads as follows with regard to anti-government activity outside China:

The Chinese authorities would be unlikely to permit the return of those they judge to have the potential of using their former influence and positions at home to oppose the government in an effective and organised way, through, for instance, large-scale demonstrations, the formation of opposition groups, and the wide circulation of dissident periodicals. Our contacts noted that persons with such a potential are few in number: they would be those with an established high profile in China as protest leaders.

The Chinese government was not unduly perturbed by those who claimed to be leaders of pro-democracy organisations overseas but had not had a leadership role and a high public profile before they left China.

59 The applicant does not come within the category of those who have a leadership role in a pro-democracy movement overseas, nor did she have a leadership role and/or high profile before leaving China.

60 The applicant claimed a fear of persecution on the grounds of her religion, that is Buddhism. The applicant bases her fear on what happened to her grandmother during the Cultural Revolution. The situation for Buddhists has changed a great deal since that time. The U.S. State Department Country Reports 1994 states:

Buddhists are by far the largest body of religious believers in China. The Government estimates that there are 100 million Chinese Buddhists, most of whom are from the dominant Han ethnic group. Other Buddhists belong to Tibetan, Mongolian, and other ethnic groups. Han Buddhist leaders generally cooperate with the Government, and there have been few complaints of government restrictions.

61 DFAT cable SH9810, dated 4 August 1994, which comments specifically on the situation of Buddhists in Shanghai, indicates that significant progress has been made in restoring monasteries and temples, and that there are no restraints on the practice of Buddhism (in China itself that is, as distinct from the situation in Tibet). The Tribunal therefore does not accept that the applicant faces a real chance of persecution due to her Buddhism on her return to the PRC.

62 Based on all the evidence available, and in the light of the discussion above the Tribunal makes the following findings:

63 The applicant is a 26 year old woman, a citizen of the PRC from Shanghai. The Tribunal does not accept her version of her activities during the 1989 pro-democracy movement, as it is not consistent with generally known facts about those events. Specifically, the Tribunal does not accept that her activities were a major catalyst of the pro-democracy movement in Shanghai and beyond.

64 The Tribunal finds that, like many millions of other Chinese students, she participated in some pro-democracy activities. The Tribunal accepts that as a result of these activities she was forced to write self-criticism. This does not amount to persecution.

65 The applicant was able to continue her University course until July 1990. She was able to leave the country on valid PRC passport with a valid second exit permit. This shows that she was of no further interest to the authorities.

66 As the Tribunal has not accepted her version of her activities during April/May/June of 1989, it does not accept her reasons for saying that the authorities have become more interested in her since her departure. The Tribunal finds that there is no real chance that the authorities would persecute the applicant for her activities during that period should she return to the PRC.

67 The Tribunal does not accept that the authorities would persecute the applicant in relation to her activities in Australia, nor for sending news of such activities back to relatives in the PRC.

68 The Tribunal finds that Buddhists in the PRC are not persecuted, and there is not a real chance that the applicant would face persecution for her Buddhist beliefs or practices should she return to China.

69 The Tribunal has considered all the applicant's's claims separately and cumulatively, and finds there is not a real chance she would face persecution on her return to China.

70 Based on the evidence available, and the findings made on that evidence, the applicant does not satisfy the definition of refugee in that:

Although she is outside her country of nationality, and is unwilling to avail herself of the protection of that country, she does not have a well-founded fear of persecution, in the sense that there is no real chance that she will be persecuted.

71 The Tribunal decides that the applicant is not a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees 1951 as required by sub-section 36(2) of the Migration Act 1958. Therefore the decision of the primary decision-maker, which has the effect of refusing the deemed application for a protection visa is affirmed.

[1]In accordance with s.431 of the Migration Act 1958 (C'th), (as amended),the published version of this decision does not contain any statement which may identify the applicant or any relative or other dependant of the applicant.