Yan Xu & Mrs Yan Lin Zhang v Minister for Immigration & Anor [1997] FCA 276 (18 April 1997)

CATCHWORDS

MIGRATION - refugee status - review of decision of the Refugee Review Tribunal - whether well-founded fear of persecution - whether error of law - whether failure to observe statutory procedures - whether failure to observe s 420 Migration Act 1958 - whether judicially reviewable - whether incorrect interpretation of the law - whether incorrect application of the law to the facts - meaning of persecution

Migration Act 1958 ss 36(2), 420(1), (2), 425, 426, 476(1)(a), (e), (2)(a), (b),

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Lek v Minister for Immigration, Local Government and Ethnic Affairs [1993] FCA 493; (1993) 117 ALR 455

Guo Wei Rong v Minister for Immigration and Ethnic Affairs 135 ALR 421

Thanh Phat Ma v Billings (1996) 142 ALR 158

YAN XU AND MRS YAN LIN ZHANG v MINISTER FOR IMMIGRATION AND ANOTHER

VG 263 of 1996

Olney J

Melbourne

18 April 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VG No. 263 of 1996

B E T W E E N:

YAN XU

First Applicant

- and -

MRS YAN LIN ZHANG

Second Applicant

- and -

MINISTER FOR IMMIGRATION

First Respondent

- and -

J. A. GLAROS

Constituting the Refugee Review Tribunal

Second Respondent

CORAM : OLNEY J

PLACE : MELBOURNE

JUDGMENT : 18 APRIL 1997

MINUTE OF ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicants pay the respondents' costs including any

reserved costs.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VG No. 263 of 1996

B E T W E E N:

YAN XU

First Applicant

- and -

MRS YAN LIN ZHANG

Second Applicant

- and -

MINISTER FOR IMMIGRATION

First Respondent

- and -

J. A. GLAROS

Constituting the Refugee Review Tribunal

Second Respondent

CORAM : OLNEY J

PLACE : MELBOURNE

JUDGMENT : 18 APRIL 1997

REASONS FOR JUDGMENT

BACKGROUND

The first applicant is a national of the People's Republic of China (PRC) who was born on 23 January 1957. The second applicant is his wife. The first applicant arrived in Australia in March 1990 on a student visa. His wife arrived some 2 years later. On 22 November 1993 the first applicant applied for refugee status in Australia but his application was refused by a delegate of the first respondent (the Minister) on 8 June 1995. The first applicant then made application for review of the delegate's decision to the Refugee Review Tribunal (the Tribunal) and on 1 April 1996 the Tribunal (constituted by the second respondent) found that the applicants are not refugees and accordingly the decision of the delegate to refuse to grant protection was affirmed.

The applicants seek judicial review of the Tribunal's decision by an application filed in the Court on 7 May 1996. The application was heard on 9 April 1997. It is common cause that it is only the status of the first applicant which is in issue. He is hereafter referred to as the applicant

THE APPLICATION

The grounds upon which judicial review is sought are expressed in the application (omitting some particulars which were not pressed) as follows:

1. Procedures that were required by the Migration Act 1958 (the Migration Act 1903 ) to be observed in connexion with the making of the decision were not observed within

s 476(1)(a) Migration Act in that:

(a) in making the decision the second respondent acted contrary to the requirement of s 420(1) Migration Act which required that the review conducted by the second respondent be fair and just; and, or alternatively

(b) the second respondent failed to act according to the substantial justice and merits of the firstnamed applicant's case as required by s 420(2)(b) of the Migration Act.

PARTICULARS

(i) The second respondent failed to act on the uncontroverted evidence that the first applicant, and his parents, had been subject to persecution by reason of the activities or conduct of the parents of the first applicant before the termination of the cultural revolution and after that termination.

(ii) having found the first applicant to be credible, and having found the first applicant to have been a leader of a dissident group at his work unit, and having found the first applicant to be involved in the democratic movement within Australia, and further having found that persons who had adopted a leadership role in the democracy movement were liable to persecution on return to the People's Republic of China, the second respondent failed to conclude that the fear of persecution expressed by the first applicant did not (sic, presumably, did) amount to a well-founded fear of persecution.

(ii) The second respondent failed to act upon the cumulative effect of the evidence provided by the applicants and on behalf of the first applicant.

2. The decision involved an error of law being an error involving an incorrect interpretation of the applicable law within s 476(1)(e) Migration Act.

PARTICULARS

(a) The second respondent decided that the first applicant did not have a well-founded fear of persecution after applying a view of the meaning of the definition of that term which required the first applicant to prove persecution on a specific specificity and degree of likelihood which exceeded the burden imposed by law on the first applicant of establishing a "well-founded fear" of persecution.

(b) The applicants refer to and repeat the matters particularised under paragraph 1 hereof.

3. The decision involved an error of law being the incorrect application of the law to the facts as found by the second respondent within s 476(1)(e) Migration Act.

PARTICULARS

(a) The first applicant refers to the particulars subjoined to paragraphs 1 and 2 hereof.

(b) The second respondent, in having found that the first applicant was involved in a leadership role before he left the PRC, while in Australia after leaving the PRC, that persons who held a leadership role were liable to persecution in not proceeding to form the view that the fear of persecution expressed by the first applicant was a well-founded fear within the Refugees Convention.

(c) The second respondent erred in requiring the applicant to establish persecution of a specificity and probability which exceeded the requirement imposed by the Refugees Convention that the first applicant established a "well-founded fear" of persecution, which the first applicant did.

In the application a claim for relief under s 39B of the Judiciary Act is also made but this was not pressed in view of s 485 of the Migration Act 9193 .

THE LAW APPLIED BY THE TRIBUNAL

The matter under review by the Tribunal was a decision by a delegate of the Minister that the applicant is not a refugee under the 1951 United Nations Convention relating to the Status of Refugees (the Convention) as amended by the 1967 Protocol relating to the status of Refugees (the Protocol) and is not entitled to the grant of a protection visa. It identified the central issue of determination as whether or not the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention and Protocol in Migration Act s 36(2)). This in turn required it to have regard to the definition of refugee as defined in these international instruments. For the purposes of its review the Tribunal set out the relevant definition as a 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.

Having stated the definition, the Tribunal then dealt with its various elements and in so doing said in relation to the requirement that the person's fear of persecution must be well-founded:

'well-founded fear' was the subject of comment in Chan Yee Kin v. The Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan's case). It was observed that the term contains both a subjective and an objective requirement. Subjectively, the applicant must actually be in fear and, objectively, the fear must be based in reality. The court held that a fear of persecution is well-founded if there is a 'real chance' that the applicant will be persecuted if he or she is returned to the country of nationality (at 389 and 398, 407 and 429). It was observed that a real chance is one that is substantial as distinct from remote and it may exist notwithstanding that there is les than a 50 per sent chance of persecution occurring.

Attention was then drawn to the recent decision of the Full Federal Court in Guo Wei Rong v Minister 135 ALR 421 which emphasised that the decision-maker must take into account the whole of the material available in assessing whether or not there is a real chance of persecution occurring and not employ the balance of probabilities test and in the context of its consideration of the period of time to be considered when assessing whether there is a real chance of persecution the Tribunal said:

Whether or not a person is a refugee in terms of Article 1, A(2) of the Convention is to be determined upon the facts existing at the time of the determination. However, the circumstances in which an applicant has left his or her country of nationality remain relevant and these are ordinarily the starting point in ascertaining the applicant's present status (see Chan at 386-387, 399, 405-406 and also Lek v. Minister for Immigration Local government and Ethnic Affairs) [1993] FCA 493; 117 ALR 455, at 458-463).

In addressing the meaning of the word "persecution" as used in the Convention the Tribunal observed that it is clear from the judgments in Chan's case that the concept of persecution involved selective or discriminatory treatment and that deprivation of life or liberty, the infliction of torture or the denial of fundamental human rights for a Convention reason may constitute persecution. Passages from the judgments of McHugh J in Chan's case (at pp 430-1) and of Mason CJ in the same case (at p 388) were then quoted.

Finally the Tribunal dealt with the requirement of the definition that the fear of persecution must be for a Convention reason.

It is fair to say that nothing in the Tribunal's analysis of the law is in any way contraversial.

THE FINDINGS OF FACT

Despite having some reservations about the matter the Tribunal found as a fact that being outside his country of origin, he had a subjective fear of persecution should he return.

The following summary of the Tribunal's findings (as distinct from its reasoning) is extracted from its reasons for decision.

The applicant was born into a pro-capitalist family and during the Cultural Revolution his Parents were the target of ruthless criticism and were tortured both physically and spiritually. The family's personal property was destroyed and the applicant's parents were required to write self- confessions and self-criticisms. The applicant also suffered in various ways and experienced difficulties while he was at school during this period.

The Cultural Revolution and the range of repressive measures associated with it came to an end in 1978 when policies prosecuted during the Cultural Revolution were formally repudiated. There is no real chance of the applicant being subjected to persecution because of his family background.

The applicant was unable to go to university after he finished middle school in 1975 but did so in 1983. His work unit did not pay his fees but did pay his salary while he studied. Despite having to pay his own fees he is still one of a privileged minority in China who has received a university education.

The applicant may have been prevented from setting up a student society and from being a candidate for chairman of a student's organisation while at university and may have been regarded as a dissident and not given any assistance in gaining employment but he was nevertheless working when he finished university and was never suspended from university or precluded from punishing his studies. The treatment he received was in no way persecutory.

In March and April 1989 the applicant went to Tiananmen Square to listen to speeches and on 27 April 1989 he joined a demonstration of around one million people. He organised around one hundred people from his work unit to march on 17 May 1989 and assisted students on hunger strike. On 4 June 1989 he assisted people injured in the demonstration to go to hospital.

A clear definition has been drawn by the PRC authorities between those who played major leadership roles and were participants in support of protest or actively in Beijing in May/June 1989. The authorities took strong punitive action only against high profile activists and leaders of organisations that the government regarded as illegal. The applicant played a leadership/organisational role in getting his colleagues at work to join a demonstration but did not join any pro-democracy organisation and his activities were not different from those of millions of other people in China at the time.

The applicant was visited by police on one and possibly more occasions as a result of his pro-democracy activities and was required to write self-criticisms at work, a punishment which was widely practised in the aftermath of Tiananmen Square. On May 1990 he was transferred in his work from the technical section to a cleaning job in the production section as a form of punishment. This was a fairly severe punishment given the relatively low level of his activities but it was not persecutory. The applicant was not permanently assigned to a cleaning career and it is open to him on his return to China to seek out work appropriate to his qualifications.

The applicant was not a major leader for the pro-democracy movement and whereas some demonstrators were harshly treated at the time for relatively low level activities, the applicant was not one of them. He was not imprisoned or detained. The punishment he was given was not of sufficient severity to constitute persecution. He was not further punished in the 18 months or so which followed before his departure which indicates that he had been fully punished and that the authorities had no further interest in him. Evidence from a variety of sources indicates that except for a few high profile activists, the Chinese authorities have put the events of 1989 behind them. The applicant's activities have been of a low order and the chance that he remains at risk because of them is remote.

The applicant was able to obtain travel documents and leave China legally. In order to study overseas it was necessary first to apply to the person's work unit for permission to travel and then to the Public Security Board (PSB) with an approval letter from the work unit. It was necessary for the applicant, after a passport had been issued, to re-submit it to the PSB which then checked his police and character clearances with his work unit, Neighbourhood Committee and with PSB's security section before issuing a second exit permit. The purpose of the second unit permit was to ensure that no person who was of any interest to the PRC authorities departed without official approval. The fact that he was able to leave China legally indicated that he was not of any further interest to the authorities for his 1989 activities.

The applicant's mail may have been interfered with and some telephone conversations tapped and whilst this is an intrusion of privacy it is not persecutory and given its well known prevalence the practice is not indicative of the applicant being of particular interest to the authorities.

The applicant joined the Chinese Liberal Democratic Party (CLDP) in Australia in 1993. He holds the position of liaison officer for the members from Beijing who he contacts about meetings. His duties do not throw him into public prominence. He gathers information about human rights abuses in China and may have written to various government departments in China protesting government policies although he did not produce any such letters to the Tribunal. A newspaper report from a Chinese-Australian newspaper states that he was one of those who spoke at a news conference and another newspaper article lists him as one of four CLDP contact persons for those from Beijing. Another article mentions him as one of 12 organisers of the June commemoration activities outside the Chinese Consulate in 1994. His name is also included as a liaison person in a CLDP "announcement". It is likely that the applicant is known to the Chinese Consulate at least by name.

There is considerable evidence to indicate that the Chinese government sees the overseas students as a valuable resource whom it is keen to welcome back, and such welcome includes those who have been involved in pro-democracy activities. The Chinese authorities are not interested in what students have done in Australia, including whether they were members or even office bearers of pro-democracy organisations, but in how they will behave on their return to China. The PRC government has at times not allowed some leading activists to return to China but the applicant's activities in Australia have not been such as to give him the profile of someone who would not be allowed to return. There is only a remote possibility of this occurring nor did the applicant have such a profile at the time he left China. There is no real risk of the applicant being persecuted because of his membership of the CLDP and his participation in the activities of that organisation.

In the event that the applicant returns to China he will obviously have to give up his CLDP activities in Australia. He has no significant history of political activity. There is only a remote chance that a continuation of the level of dissent he has shown over the years would engender consequences amounting to persecution. The concern of the authorities appears to be with those capable of organising against the government on threatening stability within the PRC rather than those who merely have different political views. Nothing in the applicant's evidence suggests he is such a person.

Citizens of China do not enjoy the same freedoms as are enjoyed by those of liberal democracies such as Australia and are not subject to the same rule of law. Human rights standards in China fall far short of those of the western democracies. However, the existence of an autocratic government and generalised human rights abuses do not in themselves establish a claim to refugee status unless it can be demonstrated that the applicant is differentially treated.

Having reached all of the foregoing conclusions on the evidence available to it, the Tribunal concluded:

The specific question which the Tribunal must address, therefore, is whether there is a real chance as defined by the High Court in Chan that the applicant would suffer persecution for a Convention reason if he returns to China. Having regard to all the evidence, separately and cumulatively, I am satisfied there is not. Accordingly, the criterion under s 36(20 of the Act for grant of a protection visa which requires an applicant to be anon-citizen in Australia to whom australia has protection obligations under the Convention as amended by the Protocol is not satisfied.

THE CASE FOR REVIEW

The provisions of the Migration Act relevant to the issue raised by the applicant's grounds for review are ss 420(1), 420(2)(b), 476(1)(a) and (e), 476(2) and are as follows:

420 (1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2) The Tribunal, in reviewing a decision:

(a) is not bound by technicalities, legal forms or rules of evidence; and

(b) must act according to substantial justice and the merits of the case.

476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law t the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

(2) The following are not grounds upon which an application may be made under subsection (1):

(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b) that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

I will now deal with each of the grounds pleaded in the application.

GROUND 1 - FAILURE TO OBSERVE PROCEDURES (s 476(1)(a))

The applicant says that the Tribunal's decision was not fair and just and/or the Tribunal failed to act according to substantial justice and the merits of the case.

To succeed on this ground the applicant must assert that s 420 sets out procedures which are required by the Act to be observed in connection with the making of the decision.

The particulars pleaded in the application in effect seek a review of the decision on its merits. The complaints made are that the Tribunal came to a conclusion on the evidence different from that advocated by the applicant. Quite apart from whether or not that amounts to a failure to observe statutory procedures, such a case could only succeed if the decision involved either a breach of the rules of natural justice or an exercise of power that was so unreasonable that no reasonable person could have so exercised the power. But such a ground is foreclosed by s 476(2).

I am, however, of the view that s 420 does not open the door to merit review of the Tribunal's decision. Section 420 does not lay down procedures as do for example ss 425 and 426 but rather decrees the standards that are required to be observed in Tribunal proceedings. If it be that the statute, having indicated to the Tribunal the desired standard of conduct nevertheless leaves a disappointed party without a remedy in the case that such standards are not met, then so be it. I adopt with respect, what Drummond J said in a slightly different, but nonetheless relevant context in Thanh Phat Ma v Billings 142 ALR 158 at p 166:

If I am correct in thinking that s 420 obliges the RRT, in reviewing a decision, to comply with the rules of natural justice, while s 476(2)(a) prevents correction of a failure by the tribunal to do that, it follows that the parliament has adopted a process in which an applicant for review is entitled to expect that his application will be dealt with by the RRT in accordance with the principles of natural justice, but, if that does not happen, he is left without any remedy. But I think this is what parliament must be taken to have intended.

In my opinion the applicant has not established the alleged ground of failure to observe statutory procedures.

GROUND 2 - INCORRECT INTERPRETATION OF LAW (s 476(1)(e))

It is said that the Tribunal incorrectly interpreted the law in requiring the applicant to prove persecution of a specific specificity and degree of likelihood which exceeded the burden imposed by law to establish a well founded fear of persecution.

This assertion is entirely without support. On any reading of the Tribunal's reasons it is patent that the case was determined on the basis that a well-founded fear of persecution was equated to a real chance of persecution as distinct from a remote chance.

GROUND 3 - INCORRECT APPLICATION OF THE LAW TO THE FACTS

(s 76(1)(e))

The relevant part of s 476(1)(e) on which this ground is based refers to an incorrect application of the law to the facts as found by the person who made the decision. The starting point of the applicant's case must therefore be to identify the facts found by the Tribunal.

The particulars pleaded in paragraphs (b) and (c) are selective and misleading. But the curious thing about them is the complaint that the Tribunal failed to make a finding that the applicant's fear was well founded.

If the Tribunal had found that the applicant's fear of persecution (assuming it to be for a Convention reason) was well founded then on a proper application of the law to the facts as found the Tribunal would have been bound to find that the applicant was a refugee. But the Tribunal did not make the critical finding of fact and in those circumstances the basis of this ground of review necessarily disappears.

COMMENT

It would appear that the real basis of the applicant's case as argued in Court was that the Tribunal applied an erroneous test in determining what amounts to persecution. On the facts as found it is clear that the Tribunal was of the view that, at the time the determination was made, if the applicant returned to China he would not be able to pursue the same level of activity in the pro-democracy movement as he has been able to pursue in Australia. The case really boiled down to deciding whether such a restraint is properly to be regarded as persecution.

In this context it is worth quoting the extracts from the judgment of Mason CJ in Chan of which mention is made above.

...some forms of selective or discriminatory treatment by a state of its citizens do not amount to persecution .... the Convention necessarily contemplates that there is a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns ... 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 depravation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason.

The findings of the Tribunal clearly state that there is only a remote chance that a continuation of the level of dissent the applicant has shown over the years would engender consequences amounting to persecution. Furthermore, it is not the case (according to the Tribunal findings) that Chinese nationals in China enjoy the rights and freedoms which the applicant would want to exercise but which he fears he would be prevented from doing if he returned to China. The finding was that the applicant could not be differentially affected. The reasons for decision quote the following passage from The Law of Refugee Status by Professor James Hathaway (Butterworths Canada 1991) at p 93:

Because ... refugee law is concerned only with protection from serious harm tied to a claimant's civil or political status, persons who fear harm as the result of a non-selective phenomenon are excluded. Those impacted by ... generalized failure to adhere to basic standards of human rights are not, therefore, entitled to refugee status on that basis alone.

This view is consistent with the views expressed by the High Court in Chan and was adopted and applied by the Tribunal. There can be no doubt that the Tribunal's understanding of the meaning of the concept of persecution as used in refugee law was sound and was properly applied to the facts as found.

CONCLUSION

As the applicant has failed to make out any ground for judicial review the application will be dismissed with costs.

I certify that this and the preceding 15 pages are a true copy of the Reasons for Judgment of the Honourable Justice Olney

Associate:

Dated:

Heard: 9 April 1997

Place: Melbourne

Judgment: 18 April 1997

Appearances:

Mr T. Hurley (instructed by Erskine Rodan & Associates) appeared for the applicants.

Mr N. Green (instructed by Australian Government Solicitor) appeared for the first respondent.

28 April 1997