CATCHWORDS

MIGRATION - decision not to grant refugee status - affirmed by Refugee Review Tribunal - whether Tribunal's findings manifest reviewable error - limit on Court's role in reviewing Tribunal's findings of fact.

Administrative Decisions (Judicial Review) Act 1977 (Cth), s5

Judiciary Act 1901 (Cth), s39B

Chen Ru Mei v Minister for Immigration and Ethnic Affairs, unreported, Full Court 30 June 1995

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

No. NG 786 of 1994

YI DE YAN -v- MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

MOORE J

SYDNEY

5 September 1995

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)        No. NG 786 of 1994

                                  )

GENERAL DIVISION                  )

                   BETWEEN:                        YI DE YAN

                                                   Applicant

                   AND:         MINISTER FOR IMMIGRATION AND

                                              ETHNIC AFFAIRS

                                                  Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     5 September 1995

                     ORDER OF THE COURT

     THE COURT ORDERS THAT:

     1.   The application is dismissed.

     2.   The aplicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)        No. NG 786 of 1994

                                  )

GENERAL DIVISION                 )

                   BETWEEN:                        YI DE YAN

                                                   Applicant

                   AND:         MINISTER FOR IMMIGRATION AND

                                              ETHNIC AFFAIRS

                                                  Respondent

JUDGE:    Moore J

PLACE:    Sydney

DATE:     5 September 1995

                    REASONS FOR JUDGMENT

     This is an application under s5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and s39B of the Judiciary Act 1901 (Cth) seeking the review of a decision of the Refugee Review Tribunal ("the Tribunal").  The decision of the Tribunal was to affirm a decision of a delegate for the Minister for Immigration and Ethnic Affairs made on 7 August 1992 that Yi De Yan (the applicant) is not a refugee and that the applicant be refused a domestic protection (temporary) entry permit.  The delegate's decision had been reviewed on an earlier occasion by the Tribunal and the Tribunal's decision has been set aside by consent on 19
January 1994 in proceedings in this Court.  The decision of the Tribunal to which these proceedings relate was made on 17 October 1994.

Background

     The general background leading to the application for the entry permit is not, for the purposes of these proceedings, contentious.  It is recounted by the Tribunal in its reasons for decision and I have drawn on that decision in summarising it.

     In January 1990 the applicant entered Australia as a student on an entry permit for nine months.  He remained in Australia at the expiry of that permit.  The applicant was born on 27 March 1963 in Shanghai.  He came from a family that had experienced harsh treatment at the hands of the authorities in China at least during the period of the Cultural Revolution.  He attended primary and secondary school in China.  From August 1982 to October 1989 he worked in a watch and clock factory in Shanghai.  He participated in the civil unrest in China as part of the pro-democracy movement in 1989.  Shortly after arriving in Australia the applicant joined the Federation for a Democratic China and has been involved in its activities or the activities of like organisations since then.  The significance of his involvement in these organisations was an issue in the proceedings before the Tribunal and is a matter I return to later.

Legislation

     There was no issue in these proceedings that the statutory provisions considered by the Tribunal were the relevant law and it is summarised by the Tribunal in that part of its decision entitled Legislative  Framework.  Schedule 2 of the Migration Regulations sets out the criteria for a number of visas.  The provisions concerning the domestic protection (residence) visa relevantly read:

      "866.1      Interpretation

                  In this Part:

                  "Refugees Convention" means the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees.

      866.21      Criteria to be satisfied at time of application

                  The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and:

                  (a)   makes specific claims under the Refugees Convention; or

                  (b)   ...

      866.22     Criteria to be satisfied at time of definition

                  The Minister is satisfied the applicant is a person to whom Australia has protection obligations under the Refugees Convention.

                  ......

                  The applicant satisfies public interest criteria 4001 to 4004.

                  The Minister is satisfied that the grant of the visa is in the national interest.

     It can be seen from these provisions that it is necessary for the applicant to have satisfied the Minister that he is a
person to whom Australia has protection obligations, that is for relevant purposes, he is a refugee within the meaning of the Convention.

     Article 1 of the Convention provides that a refugee is 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; 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 Issues

     The case as developed by counsel for the applicant at the hearing bore limited resemblance to the case formulated in the application for an order for review.  The contentions of the applicant were, in essence, threefold.  The first was that the Tribunal had failed to determine whether the applicant was a refugee in the way discussed by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  The second was that the Tribunal made findings of fact that were not open to it or failed to make findings of fact that should have been made.  This principally involved the rejection by the Tribunal of evidence of the applicant given orally to the Tribunal.  The third issue, though it is related to the first, is that the Tribunal failed to give sufficient weight to certain matters and, in particular, failed to give
sufficient weight to the applicant's involvement in pro-democracy organisations since his arrival in Australia in 1990. 

What is a Refugee

     It is convenient to discuss at the outset what has come to be an accepted understanding of what is a refugee.  That matter has most recently been considered by a Full Court in Chen Ru Mei v Minister for Immigration and Ethnic Affairs 30 June 1995 unreported.

     The Full Court conveniently set out, in summary form, the approach adopted by the High Court in Chan (supra) and more recently by a Full Court of this Court in Minister for Immigration, Local Government and Ethnic Affairs & Anor v Mok Gek Buoy (1994) 127 ALR 223.  The Full Court in Mei (supra) said:

            "In Chan v. Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 the High Court explained the meaning of the Convention definition of a refugee.  In the separate reasons for decision of Mason C.J., Dawson, Toohey and McHugh JJ. it was accepted that a person is able to satisfy the Convention definition if he or she has a genuine fear of persecution and that fear is founded on a real chance of being persecuted for a reason stated in the Convention, if returned to the country of nationality.

            As stated by Sheppard J., with whom Black C.J. and Lockhart J. agreed, in Minister for Immigration, Local Government and Ethnic Affairs v. Mok Gek Buoy (1994) 127 A.L.R. 223 at 250-252 the judgments in Chan illustrate that a fear of persecution is well-founded notwithstanding that it is less than probable that persecution will occur (per Mason C.J. at 389 and Dawson J. at 397), or that it is unlikely to occur - unless the possibility of persecution is far-fetched (per McHugh J. at 429) or is remote or insubstantial (per Toohey J. at 407).

            It follows from the foregoing that if it is accepted that an applicant for the determination of refugee status has a genuine fear of being persecuted, the task of the Minister, or the Tribunal, is not to weight the prospect of occurrence of the persecution as a matter of likelihood, or probability, but to assess whether the fear of persecution is well-founded in the sense that there is a real chance of the occurrence of persecution, not being a chance that is so remote as to be fanciful or far-fetched."

     I will return to the application of these principles to this matter shortly.

Challenge to Findings of Fact

     The Tribunal made several findings of fact adverse to the applicant and those findings were challenged in these proceedings.  It is to be remembered that the role of this Court in reviewing decisions under the ADJR Act is limited as it relates to findings of fact.  In developing his submissions, no attempt was made by counsel for the applicant to identify, by reference to the grounds in s5 of the  ADJR Act, why these findings manifest reviewable error.  The scope of review as it relates to findings of fact was discussed in a well known passage of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357-359.  It has been the subject of recent consideration, in the context of what is an error of law, by a Full Court of this Court in Minister for Immigration and Ethnic Affairs v Teo, 13 April 1995, unreported.

     Unless a finding of fact is itself a decision, a finding of fact by the Tribunal is reviewable if it falls within the limited scope of s5(1)(h) and (3) or the erroneous finding was of a character that it discloses an error of law:  see 5(1)(f) as discussed by Mason CJ in Bond (supra) and the remarks of Black CJ in Teoh v Minister for Immigration and Ethnic Affairs (1994) 121 ALR 436 at 442.  Erroneous findings could sustain a conclusion that the decision was unreasonable:  see s5(1)(e) and 5(2)(g).  As to the last matter, I refer to the observations of Gummow J in Bienke & Ors v Minister for Primary Industries and Energy & Ors (1994) 125 ALR 151 at 165:

      "In Broadbridge v Stammers (1987) 16 F.C.R. 296 at 301, the Full Court, when considering a challenge to decision making involving evaluation of factual matters, relied upon the following passage from the speech of Lord Brightman in Pulhofer v Hillingdon London Borough Council (1986) A.C. 484 at 518:

            'Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.'

      What is there said is consistent with the approach taken in Australian Broadcasting Tribunal v Bond (1990) 170 C.L.R. 321; see also Re MacMillan Bloedel Ltd and Appeal Board Under the Forest Act (1984) 8 D.L.R. (4th) 33 at 40, 44-45."

     The Tribunal made two findings that have the appearance of findings of fact which may have had a material bearing on whether the applicant was a refugee.  The first concerned whether, between the time of the civil unrest in China in mid 1989 and the departure of the applicant for Australia in January 1990, he was visited by officials from the Public Security Bureau (PSB).  The Tribunal rejected evidence that was given orally by the applicant at the hearing that he had been.  The Tribunal did so on the basis that in written
submissions made by the applicant prior to the hearing no mention was made of those visits.  The submission of counsel for the applicant was that this finding involved a rejection of the oral testimony of the applicant and there was no basis upon which it should have been rejected.  I do not accept this submission.  In assessing the veracity of his oral evidence, it was open to the Tribunal to have regard to information provided by the applicant in furtherance of his application for a visa.  It was open to the Tribunal to draw inferences from the failure to earlier assert the existence of a material fact.  This is particularly so in the present case where the initial application for refugee status contained a question, question 75, which was in the following terms and was answered in the following way:

      "75.  Have the security forces of your country (army, police etc) ever come to your home?

            No          Yes         If yes, give following details using box provided below

            •     what happened

            •     when did it happen (give details)

            •     where did it happen

            •     who came to your home

            •     what did they want

            •     were you at home at the time

            •     was anything illegal found

                  - if yes, what was it and why was it considered illegal

            •     did anything happen to you as a result of the incident(s)

      During the period of time in the Chinese cultural revolution.  the army and police often came to my hose [sic] to put my father to torture.  They wanted my father to admit he was a spy.  I was at home at the time.  I remembered they couldn't find any illegal."

     The answer is a reference to events well before the civil unrest in 1989.  The applicant had an opportunity to record
the visits of the PSB alleged to have occurred in late 1989 and did not do so.  The Tribunal was not obliged to accept the oral testimony of the applicant including his explanation that the deficiency in the answer to Q75 was the result of an error made by those completing the form on his behalf in English.   Evidence existed which permitted the Tribunal to make the finding it did.  No reviewable error is apparent in its rejection of that testimony.

     Different considerations arise in relation to another matter.  In 1990 the applicant received a letter dated 11 July 1990 from his father in China.  A translation of the letter contained the following paragraph:

      "I am really worrying about your future.  The Shanghai Government investigate the person who took part in the student movement more carefully and seriously.  God bless you.  You could finally get to the beautiful country Australia.  Otherwise you must have got into trouble.  Either you were put into jail or put through the torture.  A few friends of yours who joined the "6.4 event" with you have been put into prison.  It was really unreasonable.  They didn't explain the reason why your friends were charged.  They did what they wanted to do.  They paid no attention to the people.  They are really ruthless and autocratic."

     That letter was considered by the Tribunal and dealt with in the following way:

            "I accept that some people with whom Mr Yan had some association may have been jailed.  However, as he cannot recall their names and does not know what they were jailed for I place no weight on this claim.  No conclusion about reasons for their jailing and what connection it bears to Mr Yan can be drawn from it.

            I do not accept that Mr Yan had a conversation with his family in which the line was cut just as he was about to mention his friends who had been gaoled.  Again, I am not prepared to accept, given Mr Yan's unsatisfactory evidence in general, that he forgot to mention, until such a late stage in the proceedings, something which indicated that the Chinese
authorities were interested in him."

     That conclusion had been preceded by a discussion by the Tribunal of this letter in which it said:

      "In support of his claims, Mr Yan submitted a letter dated July 1990 from his father which states "most of your friends are in jail".  Mr Yan could not identify who the friends were and told the Tribunal that he had forgotten their names.  He added that the people referred to in his father's letter were not close friends and comrades but people who engaged in the same activities as he.  He stated that they must be in jail for expressing their political opinion.

      The Tribunal asked Mr Yan whether he had asked his family, with whom he maintains contact, for any information about the friends who had been jailed.  Mr Yan claims that, when he received the letter from his father, it had a hole in it; he believed it had been opened before it left China.  He did not want to cause trouble for his family by mentioning his friends so he did not enquire about them when writing to his family.  After that, he kept in contact with his family by telephone.  He claimed that, one time as he was leading up to asking about his friends, the line went dead.  He believes the family's telephone is being monitored.  This claim was not raised in Mr Yan's written submissions.  When asked by the Tribunal why it had not Mr Yan stated that he wanted an interview so that he could put his claims in detail and that it was not practical to state every small detail in written submissions."

     It is not entirely clear what was meant by the Tribunal when it said "I place no weight on this claim".  However, it is to be remembered that the reasons of administrative tribunals should not be scrutinised finely in search for error and that they should be read as a whole in a fair and balanced way:  see Collector of Customs v Pressure Tankers Pty Ltd (1993) 43 FCR 280 at 286-287 and the cases referred to.

     That statement of the Tribunal followed a finding that some people with whom the applicant had been associated may have been jailed.  That is probably meant to be a finding that they had been jailed.  That fact would be of relevance in determining whether Mr Yan had a genuine fear of being persecuted upon return to China and whether that fear is founded on a real chance of being persecuted in the way discussed in Mei (supra).  After indicating that no weight would be placed on the claim, the Tribunal went on to reject in the following paragraph, as it was entitled to, the evidence of the applicant that on one occasion he was about to discuss in a telephone conversation with his family the names of his friends or associates who had been jailed.  In so doing the Tribunal was also refusing to draw the inference that the applicant's family phone was being monitored or that the applicant had a reasonable basis for concluding that it was.

     In refusing to accept this evidence, the Tribunal was apparently concluding that while the applicant had been informed of the jailing of friends or associates, his interest in them or concern about their jailing was not sufficient to motivate him to ascertain who they were and more details about why they were jailed.  That being so, the finding that they had been jailed before July 1990, was viewed by the Tribunal as of minimal significance in establishing both the existence of a genuine fear in the applicant of being persecuted and the existence of a real chance of his being persecuted were he to return to China.  Understood this way, the statement "I place no weight on this claim" constitutes the expression of a view that was open to the Tribunal to reach on the findings of fact it made.  It does not evidence reviewable error.

The weight to be placed on relevant considerations

     Part of the case of the applicant before the Tribunal concerned his involvement in pro-democracy organisations in Australia since his arrival.  There is no issue in these proceedings about the primary findings of fact made by the Tribunal concerning his involvement.  Rather it is contended that the Tribunal failed to appreciate the true nature of his involvement and thus failed to give it sufficient weight.  Its relevance is linked to two matters.  The first is the prospect that the Chinese authorities are aware of his involvement, potentially leading to persecution upon his return because of it.  The second is the prospect that he will continue his criticism of the authorities upon his return and, for that reason, may be persecuted.  As to the first matter, the Tribunal referred to both the evidence of two witnesses, Mr Wang and Mr Zhang, and information provided by the Department of Foreign Affairs and Trade (DFAT) and said:

      "... the Chinese government is not unduly perturbed by those who claim to be leaders of pro-democracy organisations overseas but who had not had a leadership role and a high public profile before they left China.  It is an intention to oppose the government in an effective and organised way which causes the authorities concern..."

     Later in its decision in a part headed "Reasons for Decision" the Tribunal recounts the evidence about the involvement of the applicant in pro-democracy organisations in Australia.  It then says:

      "Consistent with the evidence from DFAT, referred to above, and
Mr. Yan's witnesses, the chance of persecution for his political opinion hinges on the extent to which Mr. Yan will express his opinion on return to China.

      I am not satisfied that Mr. Yan will express his political opinion on return to China as he claims.  I find that he has exaggerated the interest his actions attracted before, and since he left China.  He was not in any sense a leader, or even a significant participant, in the 1989 demonstrations.  He did not have any influence or recognition before he left China.  He had no involvement, other than in those demonstrations, in any form of organised opposition to the government.  I do not accept that Mr. Yan had the kind of influence or recognition before leaving China which might of itself attract attention on his return or which indicates the kind of commitment which would lead to organised opposition in the future.

      I accept that Mr Yan has been involved in various pro-democracy activities in Australia but I find that he has exaggerated his participation and his role.  I find that, to a large degree, his participation in pro-democracy organisations has been contrived for the purposes of his application for refugee status.  Photographs of Mr Yan at various meetings and the like do not in themselves indicate anything in particular.  Nor can weight be placed on a letter of support which suggests a level of involvement in ADC which Mr. Yan himself concedes he has not had.  In particular, against the background of his generally vague and evasive oral evidence about his involvement in those organisations and his failure to raise significant claims prior to hearing, I find that Mr. Yan's repetition throughout the hearing of "those three things" he would not do on return was rehearsed.  It was not a measure of the depth of his genuine convictions or his true intentions on return to China.  I am not satisfied by the evidence before the Tribunal that Mr. Yan's commitment is such that he will engage in the sorts of activities which he claims he will do on return to China.

      I accept that some dissidents with high political profiles in China may have a degree of protection because they are well-known and particularly if they have attracted some international attention.  However, it is by no means the case that all high profile dissidents in China are protected:  most of the leading dissidents like Wei Jingsheng, Xu Wengli and Chen Zimin are still confined under house arrest:  DFAT Cable BJ7550, 29 September 1994.  Moreover, the corollary is not, as Mr. Yan claims, that those without any political profile are persecuted."

     There appears to be several threads running through these passages.  One concerns the effect of the applicant's activities in Australia on the view that would be taken of him upon his return to China.  The opening words in the lengthy passage I have just set out appear to be a reference to the information provided by DFAT which resulted in the observation of the Tribunal I earlier quoted.  Thus the Tribunal appears to eliminate in those opening words the possibility of
persecution as a direct result of the applicant's involvement in pro-democracy organisations in Australia.  Accordingly the residual question was seen by the Tribunal to be whether the views of the applicant which led to that involvement would be manifest in China in the form of continued criticism of the authorities.  This matter is then dealt with at length by the Tribunal.

     The approach taken by the Tribunal does not disclose reviewable error.  It took both matters into account and reached certain conclusions though it may be accepted that the conclusion reached as to the possibility of persecution as a direct result of the applicant's conduct in Australia is expressed somewhat cryptically.  Nonetheless, having regard to the decision as whole, that conclusion was open to the Tribunal on the primary findings of fact it made, as was the conclusion about the likelihood of the applicant expressing critical views upon his return.  It was a matter for the Tribunal to assess the veracity of the applicant's evidence as to what he would do upon his return and the rejection of that evidence is not itself attended with error.

The appropriate test

     The Tribunal discussed in the section of its decision headed Legislative Framework, the decision of the High Court in Chan (supra).  It was not suggested by counsel for the applicant that the Tribunal misstated the effect of that
decision.  The Tribunal's ultimate findings was that "there is not a real chance that (the applicant) will be persecuted on account of his political opinion".  This was said after identifying the likelihood of the expression of those opinions upon return to China as the only basis of substance that might sustain a conclusion that there was a real chance of persecution.  In my opinion the Tribunal has neither misstated the appropriate test nor failed to apply it.  It did apply it and the conclusion it reached was one that was open to it on the material before it and the findings of fact it made.

     I dismiss the application and order the applicant to pay the respondent's costs.

Associate:                            ....................

Dated:                                5 September 1995

                         APPEARANCES

Counsel for the Applicant:            Mr C Sandrasegara

Solicitor for the Applicant:          Watson Stafford Wilmot Klimt

Counsel for the Respondent:           Miss R M Henderson

Solicitor for the Respondent:              Australian Government Solicitor

Dates of Hearing:                     1 August 1995

Written Submissions Complete: