V96/04750 [1996] RRTA 2667 (16 September 1996)

This is an application for review of the decision made by a delegate of the Minister for Immigration and Ethnic Affairs on 12 August 1992 that the Applicant is not a refugee and therefore not entitled to a domestic protection (temporary) entry permit (DPTEP) or a protection (permanent) entry permit (PPEP). The delegate's decision was made in relation to an application for recognition as a refugee under the United Nations Convention relating to the Status of Refugees 1951 ("the Convention") as amended by the 1967 Protocol relating to the Status of Refugees ("the Protocol") made under the provisions of the Migration Act 1958 (as amended) ("the Act") prior to amendments which came into operation on 1 September 1994. Subsequent to that date, s. 39 of the Migration Reform Act 1992 ("MRA") provided for such applications to be regarded as applications for a protection visa (see "Legislative Framework" below). Accordingly, the Tribunal treats the current application as an application for review of the refusal of a protection visa.

This decision is made under s. 414 of the Act, which requires the Refugee Review Tribunal ("the Tribunal") to review RRT-reviewable decisions as defined in s. 411 where a valid application for review is taken to be lodged pursuant to ss.412 and 413.

The Applicant is a female citizen from Guangdong province in the People's Republic of China ("PRC / China") who arrived in Australia in 1990 and was granted a visitor's entry permit which expired after three months. She lodged an application for Refugee Status and a DPTEP with the Department of Immigration, Local Government and Ethnic Affairs (since renamed the Department of Immigration and Multicultural Affairs and called hereafter "the Department") on 23 September 1991. The applications were refused on 12 August 1992 and a valid application for review of those decisions was received on 11 September 1992.

The Applicant's case was presented in written and oral submissions to the Department and to the Tribunal. She has been assisted by a migration agent and was accompanied by her adviser at the Tribunal hearing.

Her claims focus on mistreatment as a consequence of her family background and her political opinions as expressed in her involvement in pro-democracy demonstrations in the PRC in mid-1989, her illegal departure from China and her fears that she will be punished for making a refugee application.

The Applicant claimed her father was detained for several months during the anti-Rightist campaign in 1957 and he passed away in the first year of the Cultural Revolution (1966 - 1978) because he was detained and mistreated after he expressed opinions in opposition to the views of the Chinese Communist Party (CCP). During the years of the Cultural Revolution, the Applicant's mother was denounced at meetings and had to work in the country. The Applicant finished junior high school in 1981 but she stated she was denied entry to senior high school because of her family background. For the same reason, she was denied employment so she worked on her mother's small farm until she found a job in 1984. However, she did not get welfare benefits with that job and was not given overtime. She was also careful of what she said and was always obedient as she feared she would be mistreated because of her family history.

When the 1989 pro-democracy protests swept across China in mid-1989 the Applicant claims she and her husband joined in some demonstrations in Guangzhou and donated money to students. She told the Tribunal that they were investigated in September / October 1989 by a member of the Public Security Bureau (PSB) so they moved to a relative's house. She stated that they told the PSB investigator they had attended some demonstrations, but they paid a bribe and the investigation was called off.

She paid bribes to obtain her passport and exit documentation and was able to leave the country. However, she fears that she left illegally on account of the bribes, and will be punished for this reason if she returns.

She told the Tribunal that her work unit had told her that they would keep her job open, but she got a letter from a friend after she arrived in Australia, telling her she had been dismissed. She also told the Tribunal that her husband had been investigated in 1994 about his activities during the 1989 movement and, as a result of further investigations, he was dismissed from his job in 1995 on account of his participation in 1989.

She believes that an Australian visa in her passport will alert the Chinese authorities to the fact that she has applied for refugee status and she will also be punished for that reason.

The Applicant states that China is ruled by a dictatorship that has no respect for human rights and is unpredictable in the way it acts and can never be relied upon to keep its promises. She believes that she will be gaoled as a counter-revolutionary and / or denied employment because of her family background and participation in the 1989 demonstrations, and that her punishment will be exacerbated because she has made a refugee application and left the country illegally. Further, her mother is a resident of Australia and needs the Applicant to stay and support her.

On 1 September 1994 the 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 applications and refusals as applications for and refusals of a protection visa.

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. One of the criteria is 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.

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. For the purposes of this application, Australia has protection obligations to the Applicant if he demonstrates that he is a person who is a refugee:

"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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

The definition, and the issues arising from it, were addressed by the High Court in the case of Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. (Chan's case). It found that the relevant time for assessing whether or not a person has refugee status is at the time of determination, although it is logical and relevant to take into account circumstances prior to this time, commencing at the time the applicant left his country of nationality (at 387,391, per Mason C.J.; at 399, per Dawson J.; at 405-406, per Toohey J.; at 414, 415, per Gaudron 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; (1993) 117 ALR 455, who, after examining the judgements in Chan's case, held that the date of determination is the relevant date for assessment (at 463). Shepherd J., with whom Black CJ and Lockhart J agreed, elaborated this issue in The Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy, No. VG 508 of 1994, Federal Court, unreported 22 December 1994, where he stated in reference to assessing "the time point" that:

"... the decision in Chan makes it clear that there is no two-stage process. The circumstances to be considered are those which exist at the time the decision is made. Of course it is relevant to take into account the circumstances which existed at the time the applicant for refugee status left the country of his or her nationality. But what needs to be done is to take into account the whole of the circumstances and make a decision as to what the position is at the date that the matter is decided." (at 67).

Where "well-founded fear of persecution" exists, it must be for one of the reasons set out in the definition - race, religion, nationality, membership of a particular social group or political opinion. If it arises solely for any other reason, the applicant does not fall within the definition regardless of the suffering he or he may endure.

The Court in Chan's case observed that the term "well-founded fear of persecution" required that the applicant have a subjective fear and that there must be an objective justification or foundation for this fear. (at 396, per Dawson J.; at 406, per Toohey J.; at 413,415, per Gaudron J.; at 429, per McHugh J.). It held that fear of persecution is well-founded if there is a "real chance" of being persecuted on return to the country of nationality (at 389, per Mason C.J.; at 398, per Dawson J.; at 407, per Toohey J.; at 429, per McHugh J.). A "real chance" is one that is "substantial" as distinct from "remote", "insubstantial" or "far-fetched" (at 389 per Mason C.J.; at 398, per Dawson J.; at 407, per Toohey J.; at 429, per McHugh J.). The prospectivity involved in the assessment of whether or not an applicant has a well-founded fear of persecution is reflected in Mok Gek Bouy v. The Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 545; (1993) 47 FCR 1, where Keely J. made the following observation with regard to the impact which future events may have on the issue of refugee status:

"In my opinion, the question of whether there was a real chance of persecution necessarily required the delegate to look at the future in so far as it was reasonably foreseeable at the time when he was making his decision. On the one hand the delegate was not required to look at the possibility of something occurring in 50 years time ... On the other hand a delegate errs in law, in my opinion, if he confines his attention to whether there is a real chance of persecution on the day after the applicant's return."

Sheppard J., with whom Black C.J. and Lockhart J. agreed, elaborated this issue in the subsequent appeal to the Full Court of the Federal Court (The Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy, No. VG 508 of 1994, unreported 22 December 1994) where he stated in reference to assessing "well-founded fear" that it is:

"... a matter to be considered in relation to the immediately foreseeable future." (at 53).

In his book The Law of Refugee Status, J.C. Hathaway, at pp.104-105, defines persecution as "... the sustained or systemic violation of basic human rights demonstrative of a failure of state protection." This is consistent with comments about the term "persecution" made in Chan's case. Mason C.J., at 388 refers to:

"some serious punishment or penalty or some significant detriment or disadvantage if he returns. Obviously harm or the threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason."

However, harm amounting to persecution need not be inflicted over a period of time. Mc Hugh J., in Chan's case, makes this clear at 430, in stating:

"Nor is it a necessary element of 'persecution' that the individual 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 the 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 he is "being persecuted" for the purposes of the Convention."

In addition to the evidence provided by the Applicant and that contained on his Departmental file and referred to in the primary decision, the Tribunal had before it the further evidence referred to in this section of the decision.

The Tribunal accepts that the Applicant's father was mistreated during and before the Cultural Revolution because he was adversely classified. The Applicant claimed that, as a consequence of her bad family background, she was looked down on in school and then was denied a place in senior high school and denied employment after the Cultural Revolution. She told the Tribunal that she worked on her mother's farm in the country, where she had her household registration. After three years she obtained work in a factory, where she remained until she came to Australia. She gave no evidence that she was harassed in any of the campaigns conducted by the CCP between 1978 and 1989, and in the latter year she was questioned about her involvement and, after paying a bribe, was not further investigated.

The evidence available to the Tribunal demonstrates that the policies applicable to the period before and during the Cultural Revolution had been repudiated in 1977-8 (see DFAT publication Country Profile - China, June 1994 ("DFAT Profile") at p 28), and efforts were made to rehabilitate those who were the victims of those policies. The Applicant's history since 1978 is consistent with the analysis in Professor Merle Goldman's book Sowing the Seeds of Democracy - Political Reform in the Deng Xiaoping Era (Harvard University Press, Cambridge, Mass. 1994). At pp. 27-28 it refers to the rehabilitation by CCP leader Hu Yaobang of vast numbers of victims of the Cultural Revolution and their children, and states that :

"In the spring of 1977, even before Deng [Xiaoping]'s reappearance in July, Hu [Yaobang] returned to power as a vice president of the Central Party School, the training centre for high officials. At the Eleventh Party Congress that August he was elected to the Central Committee, and in December he became head of the Organisation Department, the office of the party apparatus. Hu's arrival at the Organisation Department was greeted enthusiastically. As his subordinates hoped, he immediately took out the long-ignored appeals for justice from those who had been purged and began the process of rehabilitation. One observer recalls that Hu convened a meeting at which he talked emotionally about the injustices committed during the Mao era, moving many to tears.

Against very strong opposition, he rehabilitated virtually all those purged not only during the Cultural Revolution but also during the anti-rightist campaign. Mao's designated successor, Hua Guofeng, and the remaining Maoist's in the top leadership had wanted just a few people rehabilitated; Deng himself thought that about 60 percent should be rehabilitated. But Hu insisted that it was necessary to rehabilitate almost all victims of the campaigns, not only out of fairness, but also to heal the wounds of the past and to gain their co-operation in carrying out reforms.

Over three million officials, scientists, intellectuals, and skilled workers who had been imprisoned, detained, or suffered persecution returned to public life. ... In addition, at Hu's behest, the designation of landlords, rich peasants, and their children as reactionaries, in place since the beginning of the Mao era, was removed. The political atmosphere was suddenly infused with elation and expectation."

If the Applicant's family background was of ongoing relevance after the Cultural Revolution, it is reasonable to assume that she would have been a target of the political campaigns conducted after the Cultural Revolution, including the post-Tiannanmen crackdown. Yet this was not the case. Her family continued to operate their farm, the Applicant was allocated work in a State-owned factory, she was not victimised in any of the campaigns after the Cultural Revolution and both she and her mother obtained permission to leave the country. The evidence leads to the conclusion that the Applicant's family background has not been a reason for discrimination since 1978, at the latest. Even if her lack of employment in a State-owned enterprise after she finished junior high school was related to her family background, the adverse classification was of no relevance after she was allocated work at a factory. In light of the information regarding the end of the Cultural Revolution and the Applicant's circumstances, the Tribunal concludes that there is not a real chance that she faces persecution on account of her family background, either for that reason alone or in combination with other reasons.

An overall consideration of the Applicant's claims in regard to her participation in the 1989 pro-democracy movement and the consequences of that participation, demonstrates that she was willing to fabricate, amend or exaggerate her evidence in pursuit of her claims to be a refugee. Of course, this does not mean that none of her claims are genuine or that she cannot be a refugee. The Tribunal is mindful of the comments of Foster J. in the recent case of Guo Wei Rong v Minister for Immigration and Ethnic Affairs (unreported, Full Federal Court, 26 February 1996) that exaggeration or fabrication of claims does not necessarily exclude the possibility that there is a hard core of credible evidence that indicates that an applicant is a refugee (at p. 34) and that mere doubts about credibility do not exclude a real chance of persecution. To exclude a real chance of persecution on the basis of an applicant's credibility, his Honour stated that "a positive state of disbelief would be required on the part of the decision-maker" (at p. 12).

The response of the authorities to the demonstrators after the 4 June Tiananmen Square massacre in Beijing, is described in an article produced by the Immigration and Refugee Board Documentation Centre Ottawa, Canada in October 1990, "The Hunt for Dissidents in China", (IRBDC, 1990). That article indicates that security measures were comprehensively tightened after Tiannanmen through the use of the household registration scheme, the work unit and its close relationship with the PSB, and the system of neighbourhood committees. At pp. 2-4 it refers to the pressure on workers to denounce their colleagues and the requirement that workers undertake self-criticism and political education. It continues by relating how participants were caught up by the authorities. To quote from the article at pp.4-5:

"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, August 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)."

The Tribunal accepts that the Applicant participated in some demonstrations in Guangzhou 1989 and donated some money to students. She told the Departmental interviewer that she and her husband only participated in demonstrations at night and therefore their work units did not know. Subsequently she wrote that her work units were aware of their participation. She told the Tribunal that she and her husband had confessed their involvement to a PSB official but he had not made any further investigations after they paid him a bribe. On the other hand, she told the Departmental interviewer that the police were unaware of their involvement, while in a subsequent written statement she said they were aware of their participation. Her initial application states that she was interrogated after the demonstrations and a lot of money was paid to get her out of the police station. At the Departmental interview, she said she had never been detained nor had any money been paid for her release. Later she wrote that she had been interrogated and money was paid for her release, although she initially indicated to the Tribunal that she was not home when the PSB officials came and she arranged to pay a bribe so they would cease their investigation.

She agreed that if the PSB was aware of her involvement, it was likely that her work unit was also aware of it. She also told the Tribunal that she went to live at another location after she was questioned. When the Tribunal pointed out that her application form indicates she lived at the same address until her departure for Australia, she stated she only returned there at night. The Tribunal also pointed out that she had worked at the same place until she left the country and that if the authorities wanted to locate her, they could have done so at her workplace. She stated that the PSB did not know where she worked. Given the oppressive, security conscious nature of the CCP regime, the Tribunal does not believe that she could not have been located at work, if the authorities had wanted to question her again in the five or so months she remained after she was questioned in September / October 1989. The Tribunal accepts that the Applicant was questioned in 1989, but, given the ferocity and pervasiveness of the crackdown, concludes that it was nothing more than a routine check. The Tribunal does not believe that the Applicant or her husband were detained and that they had to pay a large bribe to be released, although it is plausible that a bribe was paid to have the investigator terminate any inquiries. She remained living and working at the same places until she left after complying with stringent administrative requirements related to departure from the country (see below). The Applicant had confessed her participation and the authorities had ample opportunity to further investigate and sanction her prior to her departure for Australia. Their failure to do so is indicative of a lack of adverse interest in her.

These conclusions conform with information about departure procedures. At the hearing, the Applicant told the Tribunal that prior to her departure, she completed the usual bureaucratic requirements: she obtained a certificate from he work unit to annex to her passport application; she took her household registration book to the PSB; she made foreign exchange transactions which were recorded in her passport; she made an arrangement with her work unit to keep her job open; and she went back to the PSB to obtain a second exit permit. These are certainly not the actions of somebody whose motivation for leaving is to escape persecution, notwithstanding that the Applicant does not like the regime of the CCP.

The Tribunal concludes that the Applicant was issued her exit documentation and left the PRC through the usual channels, even though she may have resorted to paying bribes to obtain some of the requisite documents. Such a conclusion is supported by information regarding the implementation of stringent departure procedures in the aftermath of Tiannanmen. The DFAT Profile states at p.7 that:

"... Up to June 1989 one exit permit was required... However from 20 June 1989, two exit permits were required to provide for a second check. PSB passports [as obtained by the Applicant] were generally issued with the first exit permit included. The passport was then taken to the relative foreign Embassy for visa issue, after which the applicant would apply to the PSB for the second exit permit. The issue of the second exit permit could take up to four months or longer and could be refused if the authorities had an "interest" in the applicant."

Another advice (28 April 1993) from the Senior Migration Officer at the Australian Embassy in Beijing considers the rationale of exit permits:

"The first exit permit establishes that the citizen has a legitimate reason for pursuing overseas travel. The second exit permit was introduced to check involvement in the events of May-June 1989.."

A later advice "Re: PRC security checking procedures" (13 May 1993) indicates that copies of applications for exit permits are distributed to relevant agencies of the Ministry of State Security as well as the Ministry for Public Security. Given the tight links between government, employment and neighbourhood organisations and the Applicant's conformity with their requirements, the Tribunal does not accept that there was any adverse interest in the Applicant when she left the country. The PRC authorities had implemented procedures specifically to identify those opposition figures who may be of interest to them. Notwithstanding these measures to check pro-democracy activists, the Applicant was able to leave through the usual channels without being intercepted.

The Applicant has suggested that her bribery of officials is evidence that she feared harassment for a Convention reason. There is much evidence available to the Tribunal to suggest that it is common for Chinese citizens to resort to bribery to obtain permission to leave, as officials in charge of such permission are renowned for being corrupt. An article in Newsweek, 29 March 1994, "Hands in every pocket" by George Wehrfritz states that "Corruption in China has now reached epidemic proportions" and reports of:

"Red packets: In the cities, residents contend daily with officials on the take. To book sleeper berths on trains travellers try to find someone inside the state rail service who will reserve tickets in exchange for gifts or cash. At state hospitals, patients complain that treatment is often slow or shoddy unless a hongbao, or red packet of money is paid to the staff. On campus, college administrators routinely inflate fees for students who have applied to study overseas - and extract payment by withholding documents needed for a passport."

The articles refer to recent corruption, although there is no doubt that it has been endemic in China over a long period (see, for example, "Corruption and Administrative Supervision", E.J.Epstein, Senior Lecturer in Law, University of Hong Kong, China News Analysis, 1 April 1992, No. 1457, pp. 1-8). DFAT Cable O.BJ48534 of 19 November 1991 states that bribery in relation to passports is widespread. (See also, for instance, D. Kwan Beijing steps up bid to tackle 'extravagance', South China Morning Post 11-12 June, 1994 p.1, which reports that in 1993 more than 60,000 officials - mostly cadres of the Communist Party - were indicted on bribery, graft and embezzlement charges). The Applicant had previously agreed with the Departmental interviewer that it was common practice to pay for exit documentation. The Tribunal accepts that she paid bribes and / or resorted to friends to help her meet some of the departure requirements. However, it does not accept that there is even a remote possibility that the resort to bribery was related to her political opinions or any other Convention reason, but concludes that it was for the sole purpose of having exit procedures expedited without undue bureaucratic hindrance by corrupt officials, regardless of any such Convention reason.

Even if she is punished for illegally obtaining documents, the Applicant did not depart the country illegally, but was in possession of valid documents and left through normal channels. The punishment provided in Article 25 of the Detailed Rules for the Implementation of the Law of the PRC for the Control of Chinese Citizens Entering and Leaving the Country (1986) is for a warning or detention of not more than 5 days. On the other hand, Article 26 provides for corrupt officials to be dealt with by administrative sanctions or, in serious cases, under the Criminal Law, suggesting a potential for imposing much more serious sanctions. The penalty faced by the Applicant, apart from being only a remote possibility, is neither persecutory nor is it related to the Convention as it is a law of common application regardless of Convention reasons.

In the circumstances, the Tribunal concludes that the Applicant was not a refugee when she departed China, as there was no more than a remote chance that any of the fears she harboured may have been realised. Indeed, her failure to apply for refugee status soon after she arrived, or at least when she stated she had heard she had been sacked or when her visa later expired, suggests that she did not have any genuine or profound fear of persecution. She stated that she did not know she was able to apply for refugee status for more than a year, but the Tribunal does not believe her, as there were literally thousands of Chinese refugee applicants at that stage and the issue of being a refugee was well-documented in local English and Chinese media. If she had fled China to seek asylum, the Tribunal concludes that her application would have been made in a much more timely fashion.

Since she left the PRC, action against 1989 pro-democracy participants has receded. DFAT cable 0.BJ1879 of 1 June 1993 comments that:

"The Chinese authorities are not so much concerned about the issue of political activities overseas, but rather the question whether returnees have an intention to oppose the government in an effective and organised way after their return to China. Even relatively well-known dissidents have been able to return to China without too much difficulty as long as they do not publicly advocate opposition to the government.

"...Students and others who did not have a high dissident profile and significant influence in China at the time of the Tiananmen incident, even if they are now office-bearers of overseas pro-democracy organisations, would have only a remote chance of facing administrative or criminal sanctions by the Chinese authorities unless, after their return, they initiated organised activities opposing the government in an effective way."

(Cable O.BJ 2041 1540 of 14 June, 1993 makes clear that the expression "whether returnees have an intention to oppose the government" in the above cable is intended to refer to the Chinese authorities' "judgment" of the person's likely future behaviour. "That judgment would be based principally on the returnee's dissident profile and influence before he or she left China for Australia").

This view was confirmed by a later DFAT cable BJ4761, 9 February 1994 and is further developed in a report by Peter Coyne entitled Dissent in China - 1993 (CIS Research Paper, Department of Immigration and Ethnic Affairs, April 1994). After canvassing a broad range of sources of information, Coyne states "By mid 1992 no continuing arrests of those involved with the events of June 1989 were reported." and "Reports have provided no indication that 1989 activists are still being pursued by the police" (at pp.6-7).

In this respect, the Tribunal does not believe that Applicant's late claim that her husband was investigated in 1994 and dismissed in 1995 because he participated in demonstrations in 1989. This is not only at odds with the information from other sources, but is at odds with the lack of action in relation to the Applicant and her husband when they confessed their activities in 1989, at a time when the crackdown was at its most intense. Nor was there any claim that the Applicant's husband was harassed in the following five years. In the circumstances, the Tribunal concludes that this aspect of the claim is contrived, although it is plausible that the Applicant's husband has lost his job for reasons that are not connected with the activities he shared with the Applicant. The conclusion that the Applicant has fabricated her husband's late investigation and dismissal, or at least the reason for his loss of employment, is consistent with her failure to pass on that information to the Department or the Tribunal in a timely manner.

The Applicant's contention that 1989 pro-democracy activists continued to be investigated and dismissed from employment or otherwise harassed after mid-1992 is at odds with the evidence available to the Tribunal, although there is no doubt that people who continued to be active and had also participated in 1989 continued to be at risk of mistreatment (see below). There is no cogent information before the Tribunal that supports the argument that minor participants in 1989, who did not otherwise become involved in political activities, were pursued by the authorities after mid-1992.

"The undertakings given to activists overseas appear to have been honoured and have resulted in the return of dozens of exiles. There have been no reports of reprisals or action taken against those who have returned irrespective of their dissident profiles overseas. For individuals of particular interest to the authorities, exclusion from the PRC appears to be the preferred policy instead of punishment on return."

The report goes on at pp.24-25 to give specific information about returnees who appear, in the Tribunal's view, to have taken far more active dissenting roles and have a much higher public profile than the Applicant, yet have been able to return without significant sanctions being imposed on them. A recent report referring to a ban on the re-entry of dissidents, supports the view that exclusion is a preferred option: the Human Rights Watch report "China: Enforced Exile of Dissidents" (Vol.7 No.1, January 1995) names 49 dissidents barred from returning to the PRC. The Applicant is not listed among the dissidents who are described as:

"Almost 50 percent of those listed were placed on the police "most wanted" notices after June 4, 1989, all in connection with alleged offences arising from their exercise of internationally recognized rights to free speech and association ...

"Prominent among those listed are a number of former political prisoners who, in response to sustained diplomatic pressure from the United States government over the question of China's Most Favoured Nation (MFN) status, were finally granted passports or exit permits and allowed to leave China .... Prior to August 1991...China, for the most part, had prevented such people or their relatives from leaving the country..." [p.1]

"Included in the re-entry blacklist are all of the principal student leaders of the Tiananmen Square pro-democracy movement who subsequently escaped to the West, together with numerous leading intellectuals, writers and former government officials who likewise played leading roles in the movement and later arrived in the West under similar circumstances." [p.3]

The Tribunal has also considered reports of actions taken against dissidents within the PRC in more recent times. These actions have been clearly directed at a handful of high profile dissidents such as Wei Jiangsheng. The Australian newspaper on 8 March 1994 carried a report by David Lague which referred to the current "campaign of arrests and harassment of leading activists". Further on, that report states:

"Senior US officials told The Australian that the US Secretary of State for Human Rights, Mr. John Shattuck, had been "disconcerted" at the arrests of high profile dissidents while he was in China last week trying to persuade Beijing to improve its human rights record".

Amnesty International reports of 2 August 1994 "People's Republic of China: Update on dissidents detained in Beijing and Shanghai since March 1994" and 13 September 1994 "China: Further News on Dissidents Detained in Beijing Since March 1994" further indicate that leading figures in pro-democracy, human rights or labour rights groups are at risk of suffering serious sanctions at the hands of the authorities, as they are perceived to be a threat to stability and unity. Those reports indicate that approximately 16 activists had been detained in the two cities since March 1994, among them being original signatories to the October 1993 Peace Charter, "founders" and "principal sponsors" of the League for the Protection of the Rights of the Working People (LPRWP), and the assistant of Wei Jingsheng, described as "one of China's best known dissidents". These observations are repeated in a February 1995 report "China: Dissidents detained without charge or trial since 1994". The Age reported on 28 June 1995 ("Chinese dissident goes back under arrest in Beijing", p.13) that Chen Ziming had been re-arrested because he had been on a 24-hour fast on the anniversary of Tiananmen. The article traces a long history of public dissidence and leadership of anti-government activities conducted by Chen since 1975. It also states that:

"two dozen activists were detained before the anniversary of the crackdown. Most have been released. Among the most prominent still being held are Wang Dan, a student leader during the 1989 protests, and the labour activist Liu Nianchun."

The June 1995 Amnesty International report "Six years after Tiananmen: Human rights violations continue" refers to the continuing mistreatment of pro-democracy participants arrested soon after June 1989, as well as the cases of political prisoners who were previously unknown. It reiterates previous reports of mistreatment of dissidents associated with the LPRWP and members of the Association for Human Rights and documents a broader crackdown on religious dissidence. The Amnesty reports reinforce the conclusion that those political activists who were arrested generally have a significant history of dissidence in China, are involved in the establishment of local mainland opposition groups which present a threat to the CCP, and often have influential positions and are outspoken and willing to confront the authorities with their views. The Applicant shares none of those traits with those activists. More recently, there have been reports of the trial and sentencing of Wei Jingsheng. The Australian reported on 12 December 1995 ("Lawyers race to defend Wei" at p.11) that:

"China currently feels vulnerable to pressure about human rights and considers Mr. Wei very dangerous. There is no sacred cow of the CCP that he has not attacked, nor is there any grandee spared his contempt. He is a focus for China's disparate dissidents - intellectuals, peasants and industrial workers - who regard him as an inspirational icon..."

Wei's activities have been highly public, both in China and in the international arena, where he is the focus of intense scrutiny. His profile is reflected by the fact that two former USA attorneys-general, a former French justice minister, a former solicitor-general from Singapore and other leading legal figures were seeking to assist Wei at his trial (ibid). There is no correlation between the Applicant and Wei Jingsheng and other activists reported to be severely mistreated in the PRC and the Tribunal concludes that the recent punishment of such activists is not, in any way, an indicator of what may happen to the Applicant. The materials available to the Tribunal also demonstrate that the vast majority of people targeted by the Chinese authorities are those associated with Tibetan and Muslim separatist movements, or religious groups which may undermine the authority of the CCP. The Applicant is not associated with any such group, nor is there a real chance she might be so associated. Indeed, the Applicant told the Departmental interviewer she had not become involved in politics in Australia because she was too scared.

The available materials demonstrate that some people arrested around the time of the 1989 demonstrations continue to be severely punished, although active pursuit of 1989 activists has largely ceased since 1992. The Applicant was a low profile participant and was not sanctioned in 1989. Her activities were not suggestive of any organising role, this being reflected in the subsequent lack of interest in her when she continued to work until she left the country and her comments that she feared joining in political activities in Australia. While low-key political participation in 1989 may have resulted in severe treatment at that time, the Applicant escaped any such treatment and this is not now the case for those low key participants who were not apprehended in the crackdown. More recent information points to a conclusion that dissidents with a history of anti-government activities or who have a "high profile" or are seen to be "leading activists" may come to the adverse attention of the Chinese authorities.

The Applicant fears, among other things, that she may be imprisoned if she returns to the PRC. While the provisions in the Criminal Code have been used to punish low profile pro-democracy activists, particularly in the period immediately after Tiananmen and as noted in the two reports of the Human Rights Delegations to China, (14-26 July 1991 and 8-20 November 1992, AGPS Canberra), there has been a dearth of such reports in recent times, indicating that the incidence of such punishment has diminished. Nevertheless, the June 1995 Amnesty International report (op. cit.) noted that fourteen dissidents were convicted as counter revolutionaries in 1994, after being arrested in 1992 for establishing and participating in the activities of three underground dissident groups. However, there are no such reports to support a claim that people in the same situation as the Applicant face a real chance of being imprisoned under the Criminal Code should she now return, and her past history and attitude lead to the conclusion she will not become involved in dissident groups.

The Applicant claimed that her refugee application indicates opposition to the Chinese authorities and that she will be punished for having such a dissident view. This issue has arisen in respect of other asylum-seekers for some time, particularly those who left illegally by boat, and has been the subject of enquiries made by DFAT.

The DFAT Profile refers at p. 32 to Cable O.BJ50931 of 23 June 1992.

"A claim of refugee status does not appear to amount to a "serious circumstance". The Chinese authorities would not regard the act of applying for refugee status as itself a "betrayal of the mother-land" in a formal sense...While it is possible that an official might use the term as a criticism in the course of post-return questioning of boat people, that would not indicate that a formal decision had been made to categorise them as traitors."

Notwithstanding the payment of bribes, the Applicant departed China with legal departure documents issued by the PSB after satisfying all of the usual administrative requirements. It is reasonable to infer that the consequences for applicants for refugee status who, like this Applicant, were not illegal emigrants would be less serious than for those who were also illegal emigrants.

Subsequently, the Beijing Embassy again investigated this claim and, in particular, whether making a claim for refugee status is "counter-revolutionary behaviour betraying one's country". It reported having spoken to several sources, not associated with the security authorities, including two who were detained for dissident activities after June 1989. The contacts indicated that they had not heard of any such provision regarding applicants for refugee status. One did comment that such an act, "..would since the early 1980's be viewed by the authorities as an act of dishonouring one's country rather than a counter-revolutionary act. As such, applicants would be subjected to short-term questioning and criticism at most." (See DFAT Cable O.BJ1133 23 March 1993).

At p.43 of the DFAT Profile it is further reported that:

"The information available to us indicates that former DORS applicants who return to China voluntarily (not including those who departed illegally) are not detained on their return. When such people approach us in relation to migration or other visa applications, immigration officers in Beijing and Shanghai usually take the opportunity to ask them about their treatment on return to the PRC. We have received no indications of mistreatment. While some have indicated they were questioned by immigration primary officers about the length of time they had been away from China, the questioning does not seem to have been serious and none was taken off the primary line for questioning." (see cable BJ4761 dated 9 February 1994).

A later advice from Australian Immigration officials in Beijing (Cable BJ10088 of 25 May 1995) confirms previous observations in stating:

"Information received by Immigration offices in Beijing and Shanghai appears to indicate that the Chinese Government does not persecute Chinese who lodge refugee claims while overseas. Counsellor (Immigration) has indicated that in 1993/94, Immigration offices in China regularly asked visa applicants who had been in Australia if they applied for refugee status and if they had experienced any discrimination or mistreatment on return to China. In no case was there an indication that in so doing claimants were being subject on return to China."

Although many students from the PRC have stayed in Australia, many have apparently returned (see "Australia's Refugee and Humanitarian System: Achieving a Balance Between Refuge and Control", Joint Standing Committee on Migration Regulations, Parliament of the Commonwealth of Australia, August 1992, para. 8.31 at p.190, which states that 20,582 of 52,519 PRC arrivals between 1 July 1989 and 30 September 1991 had departed). Notwithstanding this, there have been no reports that returning students have been punished merely because they applied for refugee status (see DFAT Profile, passim). In addition, while there has been a statistically high number of refugee applications among Chinese students, such applications are confidential and could only come to the certain knowledge of the authorities if disclosed by the Applicant. The Applicant stated that she believed her application could be detected by the bridging visa in her passport although previously she stated that many of her acquaintances knew she had applied and may disclose it.

The Applicant's bridging visa does not appear to disclose that the Applicant has applied for refugee status and it is far-fetched to conclude that her friends might disclose her application. The Tribunal finds that there is not a real chance that the act of applying for refugee status will be discovered. Even if it is, the chances that it will lead to any persecutory consequences are no more than remote. Former refugee applicants (or suspected applicants) may be questioned on return, particularly if they have been away for a long period. In the circumstances, however, there is no more than a remote chance that the authorities would have any adverse interest in the Applicant because they suspected she had applied for asylum in Australia. Even if she were to be questioned about making a refugee application on her return to the PRC, the Applicant could expect the matter to be concluded at that stage. Such questioning does not, in the Tribunal's view, amount to the type of harm contemplated to be persecutory by the Judges in Chan's case.

In considering all of the circumstances, the Tribunal finds that the Applicant has not been involved in activities in the PRC or in Australia that will result in her facing a real chance of being persecuted for her political opinions should she return. The possibility of an increased chance of persecution as a result of her family background is groundless and has not been relevant since the period of the Cultural Revolution. Examining the totality of the evidence, the Tribunal concludes that the Applicant does not face a real chance of persecution for Convention reasons should she return to China.

The Tribunal arrives at such a conclusion having taken into account the record the Chinese authorities have in breaching the fundamental human rights of some of its citizens. While there is no doubt that such breaches continue, the Tribunal is not satisfied that there is a real chance any such treatment will be visited on the Applicant for a Convention reason. In arriving at such a conclusion the Tribunal has considered whether or not knowledge of the Applicant's political opinions and family background may be contained on her personal dossier and will be used against her in some future political campaign conducted by the authorities. It is apparent that the Applicant was not subject to punishment on account of information on her personal dossier after the Cultural Revolution and it is clear that there was no evidence of information on her file that led to further Convention-based enquiries or an investigation of her prior to her departure for Australia or in the following six years or so. The Tribunal appreciates that Applicant's concern about human rights breaches in China and the untrustworthiness of the CCP. However, those concerns do not alter the Tribunal's conclusion that the Applicant does not face a real chance of persecution for a Convention reason in the foreseeable future.

As the Applicant does not face a real chance of persecution, she is not a refugee and the Tribunal finds that she is not a person to whom Australia has protection obligations. It follows that she is not entitled to be granted a protection visa.

The Tribunal affirms the decision of the Minister's delegate that the Applicant is not entitled to a protection visa.