CATCHWORDS

 

IMMIGRATION - refusal of refugee status by Refugee Review Tribunal - judicial review - applicants from China - whether they had a well founded fear of persecution on Convention grounds if returned to China - 'real chance' of persecution - whether balance of probabilities consistent with real chance test - effect of prior illegal departures - political protest - two breaches of one child policy - proper approach to future possible punishment - likely imputation of political opinion from cumulative effect of prior illegalities

 

ADMINISTRATIVE LAW - Judicial Review - determination of status of refugee - whether Court should substitute its discretion for that of decision maker - no unresolved issues of fact - declaratory relief

 

Administrative Decisions (Judicial Review) Act 1977 (ADJR Act)

Migration Act 1958 (Cth)

Judiciary Act 1903

Migration Legislation Act 1958 (Cth)

 

Sinclair v Maryborough Mining Warden [1975] 132 CLR 473

R v Wilson; Ex parte Witness T [1976] 135 CLR 179

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24

Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379

Cunliffe v The Commonwealth [1994] 182 CLR 272

Prevato v Governor, Metropolitan Remand Centre [1986] 8 FCR 358

Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy [1994] 127 ALR 223

Minister for Immigration and Ethnic Affairs v Respondent A & Ors [1994] 127 ALR 383; on appeal [1995] 130 ALR 48

Wu Shan Liang v Minister for Immigration & Ethnic Affairs [1995] 130 ALR 367

Chen Ru Mei v Minister for Immigration and Ethnic Affairs [1995] 130 ALR 405

Li Shi Ping v Minister for Immigration and Ethnic Affairs [1995] 35 ALD 225

T v Home Department State Secretary [1995] 1 WLR 545

R v Brixton Prison Governor; Ex parte Schtraks [1964] AC 556

R v Governor of Pentonville Prison; Ex parte Cheng [1973] AC 931

Bolanos-Hernandez v INS 767 F2d 1277

Cruz v Canada (Minister of Employment and Immigration) [1988] 10 Imm.L.R. (2d) 47

Ins v Elias-Zacarias [1992] 117 L Ed 2d 38

Canada (Attorney-General) v Ward [1993] 103 DLR (4th) 1

Wu Guo Xiong & Anor v Minister for Immigration and Ethnic Affairs (Tamberlin J unreported, 9 August 1995)

Chheng Phea Rith v The Minister for Immigration Local Government and Ethnic Affairs (Sundberg J, unreported, 31 August 1995)

 

GUO WEI RONG v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOR NG 370 of 1995

 

PAN RUN JUAN v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS & ANOR NG 390 of 1995

BEAUMONT, EINFELD, FOSTER JJ

SYDNEY

26 FEBRUARY 1996

IN THE FEDERAL COURT OF AUSTRALIA  )

NEW SOUTH WALES DISTRICT REGISTRY  )    

GENERAL DIVISION                   )

 

         ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

                        OF AUSTRALIA

 

No. NG370 of 1995

                        BETWEEN:  GUO WEI RONG

 

                                  Appellant

 

                            AND:  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                 First respondent

 

                                 MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                 Second respondent

No. NG390 of 1995

                        BETWEEN:  PAN RUN JUAN

 

                            Appellant

 

                            AND:  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                 First respondent

 

                                 MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                 Second respondent

 

              MINUTES OF ORDERS AND DECLARATION

 

The Court:

 

1.   allows the appeal

 

2.   sets aside the orders made at first instance

 

3.   declares that both appellants are refugees and are entitled to the appropriate entry visas

 

4.   orders the immediate release of appellants from custody

 

5.   orders the respondents to pay the appellants' costs

 

Note:    Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules.

 

BEAUMONT, EINFELD AND FOSTER JJ.

26 FEBRUARY 1996

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA  )

                                   )

NEW SOUTH WALES DISTRICT REGISTRY  )     

                                   )

GENERAL DIVISION                   )

 

         ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

                        OF AUSTRALIA

 

No. G370 of 1995

 

                        BETWEEN:  GUO WEI RONG

 

                                  Appellant

 

                            AND:  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                 First respondent

 

                                 MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                 Second respondent

No. G390 of 1995

 

                        BETWEEN:  PAN RUN JUAN

 

                                  Appellant

 

                            AND:  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                 First respondent

 

                                 MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                 Second respondent

 

CORAM:   BEAUMONT, EINFELD AND FOSTER JJ.

 

DATE:    26 FEBRUARY 1996

                    REASONS FOR JUDGMENT

 

BEAUMONT J.

INTRODUCTION AND BACKGROUND TO THE APPEALS

         These are appeals from orders made by a Judge of the Court (see Guo v Minister for Immigration and Ethnic Affairs

 (1996) 11 FCD 4) dismissing applications which, in substance, sought declaratory relief to the effect that the appellants, who are Chinese nationals, were "refugees" for the purposes of the Convention Relating to the Status of Refugees signed at Geneva on 28 July 1951 ("the 1951 Geneva Convention") as amended by the Protocol Relating to the Status of Refugees signed at New York on 31 January 1967 ("the New York Protocol");  and, accordingly, entitled to the grant of "Domestic Protection (Temporary) Entry Permits" ("the permits") and "Domestic Protection (Temporary) Visas" ("the visas").  In this connection, the appellants sought, pursuant to the Administrative Decisions (Judicial Review) Act 1977 and s.39B of the Judiciary Act 1903, orders setting aside decisions of the Refugee Review Tribunal ("the Tribunal") which had affirmed decisions made by or on behalf of the Minister for Immigration and Ethnic Affairs ("the Minister"), determining that neither of the appellants was entitled to "refugee" status, and refusing the permits and visas sought.

 

         The legislative background, procedurally, is that s.22AA of the Migration Legislation Amendment Act 1994 provides that if the Minister is satisfied that a person is a refugee, the Minister may determine, in writing, that the person is a "refugee" as defined in the 1951 Geneva Convention.  By reg.2A.5 of the Migration (1993) Regulations, it is provided that an application for determination of refugee status has effect also as an application for a Domestic Protection
(Temporary) Entry Permit and Domestic Protection (Temporary) Visa.   

 

(a)  The claims pleaded by Guo Wei Rong (Mr. Guo)

         In order to understand the context of the appeals, it will be necessary first to describe the case sought to be made by Mr. Guo in his application to this Court for judicial review.

 

         In his points of claim, filed in this Court at first instance, Mr. Guo made the following claims (some of which were not in contention, although others were disputed):

 

  .  Mr. Guo was born in Vietnam on 28 March 1960.  When he was a child, he and his family moved to Bei Hai, Guangxi Province, China.

 

  .  In about 1985, Mr. Guo was fined between 3,000 and 4,000 yuan by the Chinese authorities for towing a boat of Vietnamese people to Hong Kong, for which he received a payment.  This payment was confiscated by the Chinese authorities.  He was then dismissed from his employment.  As he was unable to pay the fine and feared imprisonment in a labour camp if he did not pay it, he, with others, "departed" China for Hong Kong in 1986.  He was subsequently returned to China, where he was charged with having organised the "departure".  He was sentenced to two
years' detention in a labour camp.  He spent six months in custody at a labour camp, the Bei Hai Detention Centre, but "effected a temporary release from the ... Centre by means of bribes paid by his family and due to his ill health".  He then, with money borrowed from his mother, purchased a fishing boat and commenced work as a fisherman.

 

  .  In 1987, Mr. Guo married Pan Run Juan (Ms. Pan), the other appellant.  Their first child, Guo Jin Yi, was born in July 1988.

 

  .  In 1989, with funds borrowed from his family and elsewhere, Mr. Guo purchased a larger fishing boat.

 

  .  In November 1990, a second child, Guo Jin Qin, was born, in contravention (it was said) of the Chinese Government's "one child" policy.  From February 1991, the appellants were threatened with forcible sterilisation on this account.

 

  .  During 1991 and 1992, the authorities "conducted regular searches" for the appellants and confiscated some of their goods, for instance, their television set.

 

  .  In April 1992, the appellants, together with Mr. Guo's brother, sailed from China to Australia on a boat 
designated "Jeremiah".  They were placed in custody by Australian immigration officials at the Port Hedland Centre.  They sought refugee status but, in May 1992, this was refused.

 

  .  In August 1992, Mr. Guo and others, while in custody at Port Hedland, staged a public protest in which they wore headbands bearing, in Chinese characters, the words "hunger strike".  They climbed onto the roof of a two-storey building at Port Hedland;  they carried banners bearing, in Chinese characters, messages protesting against unfair treatment by the Australian Department of Immigration ("the Department") and against the Department's decision to deport them;  on one banner it was stated that they (the protesters) would rather die in Australia than be returned to face persecution in China;  some of the protesters commenced a hunger strike;  Mr. Guo and four other protesters jumped from the roof of the building, some sustaining injuries.  The protest received wide publicity in Australia and overseas.  In some media, Mr. Guo was identified as the leader, or one of the leaders, of the protest.

 

  .  In September 1992, the Minister's decisions to deport the appellants were affirmed.  They were deported in October 1992.  At that time, officers of the Department provided assurances that the appellants would not face any threat
from the Chinese authorities.

 

  .  Upon their arrival in China in October 1992, the appellants were detained in custody for five days and interrogated about details of their departure from China.  They were then taken to the Bei Hai Detention Centre where they were held for a further 23 days.  They were beaten and interrogated about their protest activities in Australia and accused of spying for the Australian authorities.

 

  .  In June 1993, Mr. Guo was arrested, and he was detained at the Bei Hai Detention Centre for three months and 24 days.  He was beaten, accused of organising departures from China and interrogated about his protest activities at Port Hedland.

 

  .  In October 1993, the appellants' third child, Guo Jin Jie, was born.

 

  .  In November 1993, the appellants left China by boat (later designated "Quokka" by Departmental officers).  They were accompanied by two of their children, and other relatives and friends.  The boat berthed at Broome, Western Australia in December 1993.  The appellants then again sought refugee status.

 

  .  On 31 January 1994, the Minister refused Mr. Guo's and his family's applications.

 

(b)  The Tribunal's decision on Mr. Guo's application

         On 19 May 1994, the Tribunal affirmed the Minister's decision refusing Mr. Guo refugee status.  Its process of reasoning will be discussed further below, but, after reviewing the circumstances of the case, the Tribunal  concluded that -

 

     "... although the Applicant may suffer personal hardship by return[ing] to the country of his nationality, he does not have a well founded fear of persecution for Convention reasons ... ."

 

 

(c)  The 1951 Geneva Convention test

         The 1951 Geneva Convention, as amendedby the New York Protocol, is central to the resolution of this matter.  It defines a refugee as any person who -

 

     "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country ... ."

     (emphasis added)

 

 

         The relevant question for the Minister, and on review for the Tribunal, was whether the appellants fell within the definition stated in the emphasised passage.

 

(d)  The dismissal of the application for judicial review

         As has been noted, the primary Judge dismissed this application.  Some of the grounds then pressed are no longer relied on by Mr. Guo.  In essence, his Honour did not think that the Tribunal's decision was unreasonable in the Wednesbury sense or that it applied the wrong test in determining whether Mr. Guo's fear of persecution was "well-founded" for the purposes of the 1951 Geneva Convention.

 

         The central question for the primary Judge was whether there was an error of law in the Tribunal's decision.  On the issue whether there was evidence to support a finding that Mr. Guo's detention in China was not by reason of any political activities, his Honour held that the failure by the Tribunal to mention all of this evidence did not necessarily indicate "Wednesbury" unreasonableness or a failure to take into account relevant considerations.  The Tribunal's assessment of the credit of Mr. Guo was not "unreasonable", in his Honour's opinion, and the Court could not substitute its view of the credibility of a witness for that expressed by the Tribunal.

 

(e)  Mr. Guo's grounds of appeal to this Full Court

         In essence, Mr. Guo now contends that the appeal should be allowed because the primary Judge should have held that the Tribunal erred in law in the following respects:

 

  .  By applying the wrong test.

 

  .  By failing to consider whether his punishment and
interrogation in China in 1992, with respect to his protest activities in Australia, indicated that there was a real chance of his persecution.

 

  .  By failing to find that he had a well-founded fear of persecution.

 

  .  By making findings which were unreasonable, or not supported by the evidence.

 

  .  By failing to have regard to and explain material before it which, in law, it could not ignore.

 

         It is then contended on behalf of Mr. Guo that the primary Judge should have ordered that the application for a declaration of refugee status should have been made.

 

THE TRIBUNAL'S REASONS

         It will be necessary, as has been indicated, to describe the Tribunal's process of reasoning in some further detail.  Before the Tribunal, Mr. Guo claimed that, by reason of his activities in Australia, taken in the context of his illegal departure from China, the Chinese authorities had attributed a "political profile" to him and that he feared persecution as a result.  But the Tribunal rejected these claims for the following reasons:

 

  .  Difficulties encountered by Mr. Guo in his dealings with Chinese officials in connection with the loss of his household registration, the restriction of his fishing licence, and the confiscation of his boat were not attributable to a "Convention reason".  The real explanation for these problems from Mr. Guo's point of view was either his fear of being required to serve the unexpired portion of the sentence imposed in 1986;  or his failure to pay for the boat;  or steps taken, or likely to be taken, by Chinese authorities with a view to preventing his future illegal departure.  Moreover, Mr. Guo's overall credit was in many respects unsatisfactory,  in particular, his accounts of his concerns about lack of household registration were "evasive and unconvincing".

 

  .  For this and other reasons, Mr. Guo's claim that in January 1993 he was arrested by the Chinese Public Security Bureau ("the PSB") and imprisoned for three months should not be accepted.

 

  .  However, it should be accepted that Mr. Guo was arrested and imprisoned on his return to China from Australia in October 1992;  moreover, he may have been questioned by Chinese officials about his activities in Australia, including the rooftop protest.  But his treatment on return was not related to those activities:  if the Chinese authorities had been concerned about his
activities or application for refugee status in Australia, he would have been detained for longer.  "The period of imprisonment and fines [he] received is within the range and consistent with the independent evidence ... in relation to the penalties for illegal departure".  That is, although a refugee is a victim, or potential victim, of injustice, not a fugitive from justice, it should be accepted that excessive punishment can indicate persecution;  but this is not so where, as here, it was within the usual range. 

 

  .  His punishment for assisting the Vietnamese by towing them to Hong Kong in 1985 was commensurate with the degree of criminality, given the size of the amount received by Mr. Guo in proportion to his wages.  His sentence was "not imposed because of [his] political profile".  (By Article 177 of the PRC Criminal Law it is, as translated, provided:

 

         "177.  Whoever, for the purpose of reaping profits, organises or transports other persons secretly to cross the national boundary (or borderline) is to be sentenced to not more than five years of fixed term imprisonment, criminal detention or control, and may in addition be sentenced to [a] fine".)

 

 

  .  The punishment he received on his return to China in 1992 was "within the range" of penalties for illegal departure provided by Art.176 of the PRC Criminal Law which, as translated, is as follows:

 

         "176.  Whoever violates the laws and regulations that control leaving and entering the country, secretly crossing the national boundary (or borderline), when the circumstances are serious, is to be sentenced to not more than one year of fixed term of imprisonment, criminal detention or control."

 

 

  .  If now returned to China, Mr. Guo may receive a "severe penalty" because he is a "repeat offender" and an organiser of the boat journey, but such punishment would not be for a "Convention reason".

 

         The Tribunal also rejected Mr. Guo's contention that he would be persecuted as a result of evidence he gave to the Tribunal in 1994.  His personal history and activities in 1986 would be known to the Chinese authorities, so that his position would not be aggravated;  and whether the other applicants for refugee status would reveal such matters if returned to China was "purely speculative".

 

CONCLUSIONS ON MR. GUO'S APPEAL

         I turn now to this appeal and will return to Ms. Pan's appeal later.

 

(a)  The meaning of "well founded fear of being persecuted for reasons of ... political opinion ... ."

 

         The meaning of this phrase was considered by the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where it was held that the definition of "refugee" involved a mixed subjective and objective test;  and that an applicant for refugee status satisfied the definition upon showing a genuine fear founded on a real chance of persecution for a stipulated reason upon return to the country of nationality.  So much is accepted by the parties here as authoritative.  But in the course of their reasoning, the members of the Court expressed their opinions on other aspects of the definition also, as follows:

 

(i)  The meaning of "being persecuted"

         On the meaning of "persecution" in the present context, Mason C.J. said in Chan (at 390):

 

     "Discrimination which involves interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment for escape or for return to one's place of residence amounts prima facie to persecution unless the actions are so explained that they bear another character."

 

 

Dawson J. said (at 399):

 

     "`Persecution' is not defined in the Convention, although Arts 31 and 33 refer to those whose life or freedom may be threatened.  Indeed, there is general acceptance that a threat to life or freedom for a Convention reason amounts to persecution ... .  Some would confine persecution to a threat to life or freedom, whereas others would extend it to other measures in disregard of human dignity."

 

 

Gaudron J. said (at 416):

 

     "Whatever else may lie within the meaning of `persecution', significant deprivation of liberty certainly falls to be so characterized."

 

 

McHugh J. said (at 429):

 

     "The term `persecuted' is not defined by the Convention or the Protocol.  But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes `being persecuted'.  The notion of persecution involves selective harassment.  It is not necessary, however, that the conduct complained of should be directed against a person as an individual.  He or she may be `persecuted' because he or she is a member of a group which is the subject of systematic harassment ... ."

 

 

Having noted (at 430) that a "single act of oppression may suffice", McHugh J. went on to say (at 430):

 

     "The threat need not be the product of any policy of the government of the person's country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution ... .   Moreover, to constitute `persecution' the harm threatened need not be that of loss of life or liberty.  Other forms of harm short of interference with life or liberty may constitute `persecution' for the purposes of the Convention and Protocol.  Measures `in disregard' of human dignity may, in appropriate cases, constitute persecution ... ."

 

 

         The parties before us did not seek to dispute these general principles.

 

(ii)The meaning of "political opinion"

         This is, in my view, as Foster J. pointed out in the course of argument, the real issue in the present proceedings.

 

         On the meaning of "political opinion" in this connection, Mason C.J. said in Chan (at 390):

 

     "The essence of the matter was that Mr. Chan was
subjected to discrimination because unacceptable political opinions were ascribed to the family of which he was a member.  So much is necessarily implicit in the delegate's finding.

 

     In any event the delegate was in error in treating Mr. Chan's political activities and opinions in isolation.  Although the delegate professed not to be persuaded that his internal exile and detention were related to political activities on his part, it stands to reason that the authorities would be inclined to regard with suspicion and distrust a member of an anti-revolutionary family who was associated with a faction opposed to the government, even if his political opinions were not clearly defined or so clearly defined as to throw up an identifiable conflict with the political philosophy of the government.  The authorities' treatment of Mr. Chan was eloquent testimony to their belief that he was viewed unfavourably because he was identified with anti-revolutionary political opinions."

     (emphasis added)

 

 

Gaudron J. said (at 416):

 

     "... the only reasonable inference open to the delegate was that Mr. Chan was the victim of discrimination because he was perceived to share his family's anti-revolutionary political opinion.  It matters not whether Mr. Chan did or did not share his family's political opinion, for persecution may as equally be constituted by the infliction of harm on the basis of perceived political belief as of actual belief."

 

 

McHugh J. said (at 433):

     "The local authorities identified the family with the political opinions held by the Kuomintang or, at all events, with political opinions opposed to those held by the ruling party in the People's Republic of China.  The appellant was exiled, therefore, because he was identified with political opinions opposed to those held by the authorities in that country.  It is irrelevant that the appellant may not have held the opinions attributed to him.  What matters is that the authorities identified him with those opinions and, in consequence, restricted his liberty for a long and indeterminate period.  That constituted `persecution within the terms of the Convention'."

         In Xie, Guo Zhong v The Minister for Immigration and Ethnic Affairs, Tamberlin J., 21 December 1995, unreported, his Honour said, in this connection (at 24-5):

 

     "A second matter raised by the applicant is that departure by a member of a State cadre would be perceived by the PRC to be an act of disloyalty and therefore punishment for such departure was persecution by reason of the applicant's political opinion.  This was rejected by the Tribunal.  Again, in my view it cannot be said that there was no evidence on which the Tribunal could come to this conclusion or that it was not reasonably open to the Tribunal.

 

     Mere departure, of itself, as Hathaway points out, does not entitle a person to refugee status without more.  Departure in itself is a politically neutral act."

 

        

(iii) The U.N. Handbook

         The United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) ("the U.N. Handbook") defines "political opinion" broadly:  A person may, it states, fear persecution because of a political opinion, even if that opinion has not yet been expressed.  According to the U.N. Handbook, a mere act or refusal to act can constitute the expression of a political opinion;  the actor does not have to express this opinion in writing or in words, since the applicant's actions can disclose true opinions, giving rise to a legitimate fear of persecution. 

 

         With reference to this, J. Hathaway, The Law of Refugee Status, writes (at 152):

 

     "Politican Opinion Implicit in Conduct

 

     An alternative to grounding a claim on adherence to a political opinion per se is to rely on evidence of engagement in activities which imply an adverse political opinion, and which would elicit a negative governmental response tantamount to persecution."

 

 

Hathaway adds (at 153):

 

     "The excessive formalism of earlier judgments on actions which imply a political opinion has thus given way to a new jurisprudence which focuses on the attitudes and proclivities of the government in the applicant's state of origin:

 

         Nowhere in the Convention does it say that to be considered a refugee an applicant must hve been prominent in the political life of his country of origin.  The crucial test is that certain behaviour or actions on the part of the applicant are or have been perceived by the authorities in power as political opposition. ...

 

     (See Raul Rodolfo Lira Pastene, Immigration Appeal Board Decision M79-1132, March 28, 1980, at 4, per J.-P. Houle.)"

 

 

I agree with this explanation (see also the discussion by C.A. Fielden, "Persecution on Account of Political Opinion:  `Refugee' Status after Ins v Elias-Zacarias, 112 S. Ct. 812 (1992)", 67 Washington Law Rev. 959 at 977).  

 

(iv)Consideration of the notion of "political opinion" in other jurisdictions

 

         The meaning of persecution on account of "political opinion" for the purpose of determining "refugee" status has been considered in other jurisdictions.

 

 

         As Fielden points out (at 961), the issue of refugee status, one of mixed fact and law, has engendered an abundance of litigation in the United States. In Elias-Zacarias, above, the Supreme Court of the United States held, by a majority, that harm from refusing to join a Guatemalan guerrilla group was not such persecution. Writing for the majority in the special circumstances of that case, Scalia J. said (1992) 117 L Ed. 2d 38 at 45:

 

     "The ordinary meaning of the phrase `persecution on account of ... political opinion' in §101(a)(42) is persecution on account of the victim's political opinion, not the persecutor's.  If a Nazi regime persecutes Jews, it is not, within the ordinary meaning of language, engaging in persecution on account of political opinion;  and if a fundamentalist Moslem regime persecutes democrats, it is not engaging in persecution on account of religion.  Thus, the mere existence of a generalized `political' motive underlying the guerrillas' forced recruitment is inadequate to establish (and, indeed, goes far to refute) the proposition that Elias-Zacarias fears persecution on account of political opinion, as §191(a)(42) requires."

 

 

For the minority, Stevens J. said (at 47):

 

     "A political opinion can be expressed negatively as well as affirmatively.  A refusal to support a cause - by staying home on election day, by refusing to take an oath of allegiance, or by refusing to step forward at an induction center - can express a political opinion as effectively as an affirmative statement or affirmative conduct.  Even if the refusal is motivated by nothing more than a simple desire to continue living an ordinary life with one's family, it is the kind of political expression that the asylum provisions of the statute were intended to protect.

 

 

         Stevens J. cited a statement of the Federal Court of Appeals in Bolanos-Hernandez v INS, 767 F2d 1277 (at 1286) as follows:

     "Choosing to remain neutral is no less a political decision than is choosing to affiliate with a particular political faction.  Just as a nation's decision to remain neutral is a political one ... so is an individual's.  When a person is aware of contending political forces and affirmatively chooses not to join any faction, that choice is a political one.  A rule that one must identify with one of two dominant warring political factions in order to possess a political opinion, when many persons may, in fact, be opposed to the views and policies of both, would frustrate one of the basic objectives of the Refugee Act of 1980 - to provide protection to all victims of persecution regardless of ideology.  Moreover, construing `political opinion' in so short-sighted and grudging a manner could result in limiting the benefits under the ameliorative provisions of our immigration laws to those who join one political extreme or another;  moderates who choose to sit out a battle would not qualify."

 

 

         The majority reasoning in Elias-Zacarias was recently distinguished by the Supreme Court of Canada in Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1, where a former member of an Irish terrorist organization sought refugee status for fear of persecution by the organization, and it was held that he did qualify on account of  his political opinion. La Forest J., delivering the judgment of the Court, said (at 38-9):

 

     "Political opinion as a basis for a well-founded fear of persecution has been defined quite simply as persecution of persons on the ground `that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party';  see Grahl-Madsen, op. cit., at p.220.  The persecution stems from the desire to put down any dissent viewed as a threat to the persecutors.  Grahl-Madsen's definition assumes that the persecutor from whom the claimant is fleeing is always the government or ruling party, or at least some party having parallel interests to those of the government. 
As noted earlier, however, international refugee protection extends to situations where the state is not an accomplice to the persecution, but is unable to protect the claimant.  In such cases, it is possible that a claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political viewpoint, perceived or real.  The more general interpretation of political opinion suggested by Goodwin-Gill, op. cit., at p.31, i.e. `any opinion on any matter in which the machinery of state, government, and policy may be engaged', reflects more care in embracing situations of this kind."

 

 

La Forest J. added these refinements:

 

 

     "Two refinements must be added to the definition of this category.  First, the political opinion at issue need not have been expressed outright.  In many cases, the claimant is not even given the opportunity to articulate his or her beliefs, but these can be perceived from his or her actions.  In such situations, the political opinion that constitutes the basis for the claimant's well-founded fear of persecution is said to be imputed to the claimant.  The absence of expression in words may make it more difficult for the claimant to establish the relationship between that opinion and the feared persecution, but it does not preclude protection of the claimant.  (emphasis added)

 

     Second, the political opinion ascribed to the claimant and for which he or she fears persecution need not necessarily conform to the claimant's true beliefs.  The examination of the circumstances should be approached from the perspective of the persecutor, since that is the perspective that is determinative in inciting the persecution.  The political opinion that lies at the root of the persecution, therefore, need not necessarily be correctly attributed to the claimant."

 

La Forest J. continued (at 40):

     "To Ward, who believes that the killing of innocent people to achieve political change is unacceptable, setting the hostages free was the only option that accorded with his conscience.  The fact that he did or did not renounce his sympathies for the more general goals of the INLA does not affect this.  This
act, on the other hand, made Ward a political traitor in the eyes of a militant paramilitary organization, such as the INLA, which supports the use of terrorist tactics to achieve its ends.  The act was not merely an isolated incident devoid of greater implications.  Whether viewed from Ward's or the INLA's perspective, the act is politically significant.  The persecution Ward fears stems from his political opinion as manifested by this act."

     (emphasis added)

 

 

         Distinguishing the majority reasoning in Elias-Zacarias, La Forest J. said (at 41):

 

     "In Ward's case, a contrario, his act was inconsistent with any other possible motive.  He was already a member of the INLA;  any fear of retaliation could have been dispelled simply by executing the order.  The rationale underlying his decision was unequivocal, both in his eyes and in those of the INLA.

 

     A positive labelling of Ward as a `Convention refugee' because of his well-founded fear of persecution for reasons of political opinion meets the concerns of Urie J.A., in the Court of Appeal, who remarked, at p.9, that it would be absurd to allow Ward into Canada owing to the fact that he had acted contrary to the interests of the INLA, because `[i]f such a view were to be taken anyone who dissents on anything could be said to be a member of a particular social group'.  Permitting Ward entry on the basis of feared persecution because of political opinion provides the focus needed in this inquiry.  Not just any dissent to any organization will unlock the gates to Canadian asylum;  the disagreement has to be rooted in a political conviction.  This approach to Ward's case would preclude a former Mafia member, for example, from invoking it as precedent."

 

 

(See also Cruz v Canada (Minister of Employment and Immigration) (1988) 10 Imm.L.R. (2d) 47, where a claim of refugee status for political opinion was upheld when the applicant had deserted the Mexican Army, telling the world of
the atrocities committed by officers of the Government of Mexico, becoming a traitor in the eyes of some Mexican authorities because of his strong political disagreement with them, so that his fear of death was well-founded.  In the circumstances, it was held that the fact that the applicant had committed serious crimes should not be taken into account in determining whether he was a refugee within the meaning of the 1951 Geneva Convention.)

 

         In this country (see R v Wilson; Ex parte Witness T (1976) 135 CLR 179;  Prevato v Governor, Metropolitan Remand Centre (1986) 8 FCR 358) and in England (see R v Brixton Prison Governor; Ex parte Schtraks [1964] AC 556;  R v Governor of Pentonville Prison; Ex parte Cheng [1973] AC 931) consideration has been given to the meaning of the similar concept of a "political offence" as a reason for denying extradition (see the discussion by E.P. Aughterson, Extradition - Australian Law and Procedure at pp.89-108).  The approach there taken may provide a useful analogy here. 

 

         The English extradition cases were recently considered in T v Home Department State Secretary [1995] 1 WLR 545, where the applicant, an Algerian citizen who had entered the United Kingdom in 1993 as an illegal entrant, claimed political asylum on the ground that he was a member of a political organization prepared to use violence.  The applicant stated that he had been involved in a bomb attack on Algiers
airport and thus feared persecution.

 

         Glidewell LJ, delivering the judgment of the Court of Appeal, after referring to the reasoning in Schtraks and to Lord Diplock's judgment in Cheng, said (at 558-9):

 

     "To adopt Lord Diplock's words, a crime committed with the object of overthrowing or changing the government of a state or inducing it to change its policy is to be regarded as a political crime, provided that the commission of the crime is not too remote from the objective.  (emphasis added)

 

     Those then are the essential principles established by English case law to apply in the closely analogous field of extradition law."

 

 

Referring to the U.N. Handbook, Glidewell LJ said:

 

     "Less authoritative in one sense although more specifically directed to the concept of political asylum as such is the assistance to be found in paragraph 152 of the handbook ... . In quoting this paragraph, we have inserted letters to divide it into sub-paragraphs for ease of reference:

 

         `152(a)  In determining whether an offence is `non-political' or is, on the contrary, a `political' crime, regard should be given in the first place to its nature and purpose i.e. whether it has been committed out of genuine political motives and not merely for personal reasons or gain.  (b)  There should be a close and direct causal link between the crime committed and its alleged political purpose and object.  (c) The political element of the offence should also outweigh its common law character.  This would not be the case if the acts committed are grossly out of proportion to the alleged objective.  (d) The political nature of the offence is also more difficult to accept if it involves acts of an atrocious character.'

 

     Sub-paragraph (a) of this paragraph is clearly in
accordance with the English authorities to which we have referred.  Sub-paragraph (b) equally clearly accords with Lord Diplock's view.

 

     Sub-paragraphs (c) and (d), although at first blush less obviously expressive of any approach discernible in the English authorities, are we believe consistent with them."

 

 

Glidewell LJ continued:

 

 

     "We consider first sub-paragraph (d).  This does not, be it noted, state that an atrocious act cannot be a political offence.  Clearly it can.  Suppose for instance that in another state members of a political party seeking to overthrow the government of the state, and prepared to use force to do so, planted a bomb on an aircraft in which the president was to travel, with the expressed intention of murdering him.  The fact that the bomb not merely killed the president but also a substantial number of people travelling with him, many of whom may have had no involvement in politics, would not of itself in our view mean that the crime committed by those who planted the bomb, albeit an atrocity, would not be a political crime.

 

     What, however, sub-paragraph (d) does say is that an atrocious act is less likely to be a political offence and that seems to us clearly right.  The reason is surely this:  that atrocious acts are inherently less likely to serve political ends.  It is difficult to suppose that those committing atrocities can genuinely believe that they will thereby achieve political ends - unless, as in the example of the presidential assassination, the atrocity is designed to produce a direct, immediate and fundamental political result.

 

     That in our view is substantially the thinking behind sub-paragraph (c) also.  The less proportionate is the criminal offence to the political objective sought to be achieved, the more it savours of ordinary common law criminality, and the less of political crime.

 

     Indeed, there is in our judgment a common thread running through each of these four sub-paragraphs:  before any crime can be said to have a genuinely political purpose it must in some coherent sense be calculated to promote that purpose.  That will simply not be so if the crime is wholly disproportionate to
the purpose to be served.  The more atrocious it is, the more gratuitous violence it involves, the more likely it is to be disproportionate.  The more disproportionate it is, the more difficult will it be to establish the close and direct causal link that must exist between the crime and its suggested political object."

    

 

 

         As has been seen, the 1951 Geneva Convention provides no definition of "political opinion", but, in my view, the phrase was intended to have its ordinary dictionary meaning.

 

         The Macquarie Dictionary (2nd ed) offers the following definitions of the adjective "political":

 

     "1. pertaining to or dealing with the science or art of politics:  political writers.  2. pertaining to or connected with a political party, or its principles, aims, activities, etc.:  a political campaign.  3. exercising or seeking power in the governmental or public affairs of a state, municipality, or the like:  a political party.  4.  of or pertaining to the state or its government:  political measures.  5. affecting or involving the state of government:  a political offence.  6. engaged in or connected with civil administration; political office.  7. having a definite policy or system of government: a political community.  8. of or pertaining to citizens: political rights ... ."

 

 

Each of these meanings would be capable of application in the present context; that is to say, the term is not, in the present connection, limited to party politics (cf. the implied constitutional freedom of communication on "political" matters discussed in, e.g., Cunliffe v The Commonwealth (1994) 182 CLR 272). 

 

         The Macquarie Dictionary's definitions of the noun
"opinion" include the following:

 

     "1. judgment or belief resting on grounds insufficient to produce certainty. 2. a personal view attitude or estimation: public opinion.  3. the expression of a personal view, estimation, or judgment: to give an opinion on tariffs ... ."

 

 

Again, it appears that this word was intended to have its ordinary meaning in the present connection, with definition 2 perhaps the closest for our purposes.

 

(b)  Did the Tribunal really address the correct legal question?

 

         Although, as has been noted, the appeal has been argued on several grounds, the first issue for resolution is whether the Tribunal really addressed the correct legal question committed to it under the 1951 Geneva Convention, in the sense explained in Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 per Barwick CJ at 480;  per Gibbs J at 483.  Specifically, did the Tribunal really address the question whether the conduct of Mr. Guo, looked at as a whole, was capable of being perceived by the Chinese authorities as politically neutral, on the one hand, or as politically significant, on the other, in the sense described in the authorities mentioned?

 

         The issue is a difficult one.  But, in my opinion, to adopt the language used in Sinclair, although the Tribunal may have purported to address this question, it did not really do so, with the consequence, I think, that there was a
constructive failure by the Tribunal to exercise its jurisdiction. 

 

         It is true that the Tribunal refers to the possibility that some of Mr. Guo's conduct could be described as "political acts".  It may be accepted that reference is also made by the Tribunal to the possibility that Mr. Guo may have a "political profile".  But it does not appear that the Tribunal really attempted to address the question whether there was a real chance that Mr. Guo would be persecuted (in the sense explained in the authorities) because of the perception of the Chinese authorities that, when regard was had to the whole of his activities, a political opinion in opposition to the system of administration could be discerned. That is to say, the Tribunal did not, in truth, consider whether, even if not explicit, a political opinion could be inferred by the authorities from what Mr. Guo had done when account was taken of all of his conduct.        

 

         Put differently, the Tribunal appears to have approached the matter by attempting to measure the degree of punishment likely to be meted out for the subject offence as the essential issue, and concluding from this that there was no political element involved here because the punishment was, in fact, proportionate to the offence.  It may be accepted that it is appropriate to infer the existence of a political

 

 

factor when punishment is excessive.  But it does  not necessarily follow from the fact that a sentence appears to be within the usual range that there is no political character to be attributed to the conduct of the accused.  For one thing, the nature of that conduct may itself be politically significant.  Participation in a scheme to move Chinese nationals out of the PRC into Hong Kong, or overseas, would ordinarily be viewed as action inimical to the existing system of administration and thus implicitly political.  Secondly, it would be wrong to confine attention to the sentence alone.  In order to consider whether a political opinion is implicit in Mr. Guo's conduct, regard should be had to all of his activities including, but not limited to, his actions at Port Hedland in 1992. 

 

         Moreover, the present case is not one, as in T's case, where the conduct in question is so atrocious as to lack any "political" element. 

 

         In my opinion, by focussing unduly on the size of the sentence, the Tribunal impermissibly confined its inquiry and thus failed, really, to address the correct question committed to it for decision.  Accordingly, I would allow the appeal and order that the Tribunal's decision be set aside.

 

 

RELIEF IN THE CASE OF MR. GUO

         It follows, in my view, that the matter should be remitted to the Tribunal for reconsideration in accordance with these reasons.  Although we were urged to make a final determination of the matter by making a declaration of refugee status, ordinarily, this is not appropriate (see, e.g., Li Shi Ping v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 225 at 239-240).  Where, as here, the proper factual inferences to be drawn from the present circumstances are very much in contention, the ordinary rule should apply for reasons of principle and of a practical kind, and the matter should be dealt with by the specialist tribunal established by the Parliament for this purpose.

 

THE APPEAL BY MS. PAN

         Mr. Guo's wife, Ms. Pan should, as was observed in Chan, be treated as in the same position as Mr. Guo.  Accordingly, I would allow her appeal also.

 

COSTS

         At first instance, the application was dismissed with costs.  Since the proceedings at first instance were unusually lengthy for a judicial review application (i.e. six hearing days), and because a number of issues were agitated then and before us that I did not need to consider, I propose that costs at first instance and before us be reserved.

 

ORDERS PROPOSED

         I propose the following orders in each appeal:

 

     1.   Appeal allowed.

     2.   Set aside the orders made at first instance.

     3.   Remit the matter to the Refugee Review Tribunal for reconsideration in accordance with these reasons.

     4.   Reserve liberty to any party to apply for costs at first instance, or on the appeal, by written submission filed and served within 28 days.

                   I certify that this and the preceding twenty-nine (29) pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont.

 

                   Associate

 

                   Dated:       26 February 1996

IN THE FEDERAL COURT OF AUSTRALIA     )

NEW SOUTH WALES DISTRICT REGISTRY     )    

GENERAL DIVISION                      )

 

         ON APPEAL FROM A JUDGE OF THE FEDERAL COURT

                        OF AUSTRALIA

 

No.NG370 of 1995

                        BETWEEN:  GUO WEI RONG

 

                                  Appellant

 

                            AND:  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                 First respondent

 

                                 MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                 Second respondent

No. NG390 of 1995

                        BETWEEN:  PAN RUN JUAN

 

                                  Appellant

 

                            AND:  MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                 First respondent

 

                                 MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                 Second respondent

 

BEAUMONT, EINFELD AND FOSTER JJ.

 

26 FEBRUARY 1996

 

SYDNEY

           REASONS FOR JUDGMENT OF JUSTICE EINFELD

 

1.   INTRODUCTION

The appellants appeal from orders made by a Judge of the Court dismissing applications which, in substance, sought declaratory relief under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) to the effect that each of the appellants was a

"refugee" for the purposes of the Convention Relating to the Status of Refugees 1951 (the Convention) and was accordingly entitled to the grant of a domestic protection (temporary) visa.  The Convention, as amendedby the New York Protocol of 31 January 1967 defines a refugee as any person who -

 

     owing to a 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. ...

 

In this Court the appellants sought to set aside decisions of the Refugee Review Tribunal (the Tribunal) in May 1994 affirming decisions of the Minister's delegate determining that neither of the appellants was entitled to refugee status.  The Tribunal constituted by the second respondent entered a submitting appearance in the appeal.

 

2.   THE FACTS

 

In points of claim and evidence, the following facts were alleged:

 

2.1  Guo Wei Rong (Mr. Guo) was born in Vietnam on 28 March 1960.  When he was a child, he and his family moved to Bei Hai, Guangxi Province, China.  He became and is now a Chinese national.

 

2.2  In about 1985, Mr. Guo assisted a number of Vietnamese refugees to leave China by towing them to Hong Kong for payment.  On his return to China Mr Guo was identified as one of the instigators of this activity and was questioned as to his involvement.  The payment he received was confiscated, and he was dismissed from his employment and fined between 3,000 and 4,000 yuan.

 

2.3  Fearing that he would be detained because he could not pay the fine, Mr Guo fled to Hong Kong in 1986 where he was detected and repatriated, held in custody for three months and sentenced to two years imprisonment in a labour camp.  His household registration was transferred to the labour camp.  Members of Mr Guo's family were also fined for failing to report his illegal departure.  The penalty Mr Guo received was severe because the incident had occurred in the course of his employment and he sought to evade the fine.

 

2.4  However, Mr Guo did not complete his sentence.  In 1986, after six months in the Bei Hai Detention Centre, he or his family bribed an officer to be released from the camp to receive medical treatment and he did not return.  Mr Guo did not try to regain his original household registration for fear of being imprisoned for the unexpired portion of his sentence.

 

2.5  With money borrowed from his mother, he then purchased a fishing boat and commenced work as a fisherman.  In 1987, Mr. Guo married Pan Run Juan (Ms Pan), the other appellant. Their first child, Guo Jin Yi, was born in July 1988.

 

2.6  In 1989, with funds borrowed from his family and elsewhere, Mr. Guo purchased a larger fishing boat to provide him with a capacity to fish in deeper waters and thereby to increase his earnings.

 

2.7  In November 1990, a second child, Guo Jin Qin, was born, in contravention of the Chinese Government's "one child" policy.  From February 1991, the appellants were threatened with forcible sterilisation on this account.

 

2.8  During 1991 and 1992, the authorities "conducted regular searches" of the appellants and confiscated some of their goods including their television set.

 

2.9  In April 1992, the appellants and one of their children, together with Mr. Guo's brother, sailed from China to Australia on a boat later designated the "Jeremiah" by Australian immigration officials.  They were placed in custody at the Immigration Department's Detention Centre at Port Hedland where they sought refugee status, but in May 1992 this application was refused.  The appellant did not mention the 1985/1986 incident on his application for refugee status in 1992 because he thought that it would reflect badly on his character. 

 

2.10  In August 1992, while in custody at the Port Hedland custodial facility, Mr. Guo and some other Chinese nationals climbed onto the roof of a two-storey building wearing headbands bearing the words "hunger strike" in Chinese characters and carrying banners bearing messages, in Chinese characters, protesting against unfair treatment by the Australian Immigration Department and its decision to deport them.  One of the banners stated that the protesters would rather die in Australia than be returned to face persecution in China.  Some of the protesters commenced a hunger strike, while Mr. Guo and four other protesters jumped from the roof of the building, some sustaining injuries.  The protest received significant publicity in Australia and overseas, some of it identifying Mr. Guo as the leader, or one of the leaders, of the protest.

 

2.11  In September 1992, the Minister's decisions to deport the appellants were affirmed by the Refugee Status Review Committee and they were deported in October 1992, with assurances from officers of the Minister's department that they would not face any undue threat from the Chinese authorities upon their return.

 

2.12  In fact, when they arrived in China, the appellants were first detained for five days and interrogated about details of their departure from China.

 

2.13  They were then held at the Bei Hai Detention Centre for a further 23 days during which they were beaten and interrogated about their protest activities in Australia.  When the business card of an Australian government official was found in Mr Guo's possession, they were accused of spying for the Australian authorities.  They were also fined 3,000 yuan and required to pay the costs of their detention and transferral to prison.

 

2.14  After his release from custody Mr Guo returned to work on his boat, but the authorities placed restrictions on him so that he could not take the boat into deep water, limiting his earning capacity.  The boat was eventually confiscated in April 1993 by the credit union and the Chinese Public Security Bureau (PSB).

 

2.15  In June 1993, Mr. Guo was re-arrested and thereafter spent three months and 24 days at the Bei Hai Detention Centre where he was beaten and accused of organising illegal departures from China.  He was again interrogated about his protest activities at Port Hedland, including what contact he had had with the person whose business card had been found in his possession.  A bribe again effected his early release but Mr Guo was informed that he would be rearrested and sentenced to imprisonment in a labour camp.

 

2.16  A court order dated 20 September 1993 required the applicant to repay the overdue loan to the credit union, and in
October 1993, the appellants' third child, Guo Jin Jie, was born.

 

2.17  In November 1993, the appellants departed China in a boat later called the "Quokka" by Australian departmental officers.  They were accompanied by two of their children, then 3 years old and 5 weeks old and other relatives and friends.  The boat berthed at Broome, Western Australia on 5 December 1993 whereupon the appellants were detained under section 548 of the Migration Act 1958 (Cth), and placed at Port Hedland where they remain in custody to this day.

 

2.18  The appellants again sought refugee status on the grounds of feared political persecution, but did not mention in their application Mr Guo's second detention in June 1993.  The corroborating witnesses also failed to include it in their supporting testimony.

 

2.19  On 31 January 1994, the Minister refused the appellants' application.

 

2.20  On 19 May 1994, the Tribunal affirmed those decisions for reasons which will be discussed in detail later.  After reviewing the circumstances of Mr Guo's case, the Tribunal finally concluded that -

 

         ... although the applicant may suffer personal hardship by returning to the country of his nationality, he does not have a well founded fear of persecution for Convention reasons ... .

     A similar finding was made in respect of Ms Pan.

 

2.21  The Tribunal's decisions were appealed to a single Judge of this Court on a number of grounds under the ADJR Act.  The learned primary Judge did not think that the Tribunal's decisions were unreasonable or that it wrongly applied the test for determining whether the appellants' fear of persecution was well founded for the purposes of the Convention.  The applications for review of the Tribunal's decision were therefore dismissed.

 

3.   GROUNDS OF APPEAL

 

The appellants now contend that the learned primary Judge should have held that the Tribunal erred in law in the following respects:

 

3.1  by applying the wrong test to the question of their entitlement to refugee status

 

3.2  by failing to consider whether Mr Guo's punishment and interrogation in China in 1992/1993 with respect to his protest activities in Australia indicated that there was a real chance of their persecution if returned to China now

 

3.3  by failing to find that they had a well founded fear of persecution

 

3.4  by making findings which were unreasonable or not supported by the evidence

 

3.5  by failing to have regard to material before it which, in law, it may not ignore

 

4.   THE TRIBUNAL'S REASONS

 

In order to understand the questions that arise on the appeal, it is necessary to describe the Tribunal's process of reasoning in further detail.

 

Before the Tribunal, the appellants claimed that, by reason of Mr Guo's activities in Australia taken in the context of his 1985/1986 escapade, the family's two illegal departures from China, as well as what happened to him in China during the last several years including the birth of his second and third children, the Chinese authorities had fixed the appellants with a "political profile" and that they feared persecution as a consequence.  The Tribunal's reasons for rejecting these claims can be summarised as follows:

 

4.1  Mr Guo's loss of his household registration, the restriction of his fishing licence, and the confiscation of his boat were not Convention-related in that they arose from his failure to serve the unexpired portion of the 1986 sentence or his failure to pay for the boat.  Alternatively he had a fear of the steps that might be taken by the Chinese authorities with a view to preventing his future illegal departure.

 

4.2  Mr. Guo's credit was fairly unsatisfactory,  his concerns about lack of household registration being described as "evasive and unconvincing".  Moreover, because of the fact that he had not brought it up at the earliest opportunity and for other reasons, Mr. Guo's claim that in June 1993 he was arrested by the PSB and imprisoned for three months should not be accepted.

 

4.3  His arrest and imprisonment in October/November 1992, and his general treatment by Chinese officials including their interrogation about the rooftop protest and his other activities in Australia, including his and his family's applications for refugee status, were not related to those activities.  Otherwise he would have been fined more heavily and detained for a much longer period than 28 days:

 

         The period of imprisonment and fines [he] received is within the range and consistent with the independent evidence ... in relation to the penalties for illegal departure.

 

     In other words, whereas excessive punishment can indicate persecution, such a conclusion is not appropriate where the punishment is within the expected range.

 

4.4  The punishment received by Mr Guo for towing the Vietnamese people to Hong Kong in 1985 was appropriate to the degree of criminality and proportionate to his then wages.  His sentence was "not imposed because of [his] political profile".

 

4.5  Because the circumstances were serious, Mr Guo's 1992 punishment was "within the range" of penalties provided for illegal departure by Article 176 of the Criminal Code.

 

4.6  If now returned to China, Mr. Guo may receive a heavy penalty because he has again been the organiser of an illegal departure but such punishment would be for that reason rather than for a Convention reason.

 

Mr. Guo also contended that he would be persecuted as a result of evidence he gave to the Tribunal in 1994, but the Tribunal found that because all his personal history and activities would be known to the Chinese authorities, he would not be worse off.  The Tribunal was of the view that any suffering of Ms Pan, if returned to China, was unproved and speculative.

 

5.   ASSESSMENT OF REFUGEE STATUS

 

(a)  The test

 

The appellants submitted that the Tribunal applied the wrong test in assessing their entitlement to refugee status and that the learned primary Judge erred in not so holding.  The oft quoted

passage of Chief Justice Mason in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] 169 CLR 379 at 389 encapsulates the test:

 

     I agree with the conclusion reached by McHugh J that a fear of persecution is 'well founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.  This interpretation accords with the decision in the House of Lords in Reg v Home Secretary: Ex parte Sivakumaran.  There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate "a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country" and Lord Goff of Chieveley spoke of a "real and substantial risk of persecution".  Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff.  A similar expression was expressed by the Supreme Court of the United States in Immigration and Naturalisation Service v Cardoza-Fonseca where Stevens J, with reference to a statutory provision (which reflected the language of Art. (1)(A)(2) of the Convention), in delivering the minority opinion, and citing Immigration and Naturalisation Service v Stevic, observed that the interpretation favoured by the majority would indicate that "it is enough that persecution is a reasonable possibility".  I do not detect any significant difference in the various expressions to which I have referred.  But I prefer the expression "a real chance" because it clearly conveys the notion of substantial, as distinct from a remote, chance of persecution occurring and because it is an expression which has been explained and applied in Australia: see the discussion in Boughey v The Queen, per Mason, Wilson and Deane JJ.  If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well founded, notwithstanding that there is less than a 50 percent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.

This test has been applied on numerous occasions: for example, in Chen Ru Mei v Minister for Immigration and Ethnic Affairs
[1995] 130 ALR 405, a Full Court of this Court (Northrop, Spender and Lee JJ) said at 410:

 

     As stated by Sheppard J, with whom Black CJ and Lockhart J agreed, in Minister for Immigration, Local Government and Ethnic Affairs v Mok Gek Bouy (1994) 127 ALR 223 at 250-2 the judgments in Chan illustrate that a fear of persecution is well-founded notwithstanding that it is less than probable than persecution will occur (per Mason CJ at CLR 389 and Dawson J at CLR 397), or that it is unlikely to occur - unless the possibility of persecution is far-fetched (per McHugh J at CLR 429) or is remote or insubstantial (per Toohey J at CLR 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 tribunal, is not to weigh the prospect or 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.

 

See also Minister for Immigration, Local Government & Ethnic Affairs v Mok Gek Bouy [1994] 127 ALR 223 and Wu Shan Liang v Minister for Immigration & Ethnic Affairs [1995] 130 ALR 367, from the latter of which judgments special leave to appeal to the High Court has been granted.

 

(b)  What not to do

The difficulty for the Tribunal is not especially the identification of the correct test, it is its application.  Examples of misapplication can be found in the reports.  In Mok and Wu this Court held that the Tribunal had applied a balance of probabilities test, rather than a test of possibility, basing such a conclusion on the language employed by the Tribunal such as 'giving greater weight to' and 'prefer'.  The Tribunal had also shunned speculation.  In Chan it was held that equating 'unlikely' with the lack of a real chance of persecution was also a misapplication of the test.

 

In arriving at its determination or 'finding' of what may happen in the future, the Tribunal may feel a need to choose between one potential outcome and several others, preferring one scenario or hypothesis to another.  This is not a correct approach.  The question for the Tribunal is not whether there is an alternative explanation that fits the evidence and is inconsistent with a real chance of persecution on Convention grounds.  It is whether there is a real chance of persecution on a Convention ground.  Competing hypotheses, however well they fit the evidence, will not of themselves eliminate a real chance of persecution on Convention grounds.  The 'real chance' test may be satisfied notwithstanding that other plausible or even likely scenarios exist.  No matter how many competing theories abound, the task of the Tribunal is to assess the genuine possibility of persecution on Convention grounds.  If the Tribunal prefers a competing version of future events and therefore discounts this possibility, the test is wrongly applied.

 

This is not to say that issues of credibility and the existence of plausible inconsistent hypotheses will not be relevant.  In a particular case considerations of this kind may negate any real chance of persecution for Convention reasons.  But the Tribunal's task is to decide whether or not a real chance of persecution for Convention reasons exists.

 

(c)  What to do - speculation and future possibilities

 

Whether or not there is a real chance of persecution on Convention grounds includes speculation about the occurrence of future events and their possible effects on the situation.  Whereas a Tribunal must not weigh up competing scenarios, it must engage in speculation of the future and consider foreseeable eventualities, and it must include them in its analysis: see in general Mok, Wu, and Chheng Phea Rith v The Minister for Immigration Local Government and Ethnic Affairs (Sundberg J, unreported, 31 August 1995).

 

What has happened in the past in similar circumstances will often be instructive of what may or may not happen in the future.  Chief Justice Mason said in Chan at 387:

     ..... a logical starting point in the examination of an application for refugee status would generally be the reasons which the applicant gave for leaving his country of nationality.  Those reasons will necessarily relate to an earlier time, since when circumstances may have changed.  But that does not deny the relevance of the facts as they existed at the time of departure to the determination of the question whether an applicant has a "fear of persecution" and whether that fear is "well founded".

 

The appellants submitted that the Tribunal erred by making findings on the balance of probabilities of the character of and reason for prior adverse treatment of the appellants.  The Tribunal had not considered whether there was a real chance that the past adverse treatment had been persecution for a Convention reason.  The respondent argued that to the extent that the appellants' submission could be interpreted as meaning that past events attract the 'real chance' test, it is not supported by Chan and is wrong.

 

In Chan the delegate accepted that the appellant had been subjected to discrimination because he belonged to a family which the authorities viewed as 'anti-revolutionary'.  However, the delegate concluded that the appellant did not have a well founded fear of persecution for Convention reasons.  Of this approach Chief Justice Mason said at 388:

 

     The delegate appears to have accepted Mr Chan's account of the measures taken and threatened against him by the authorities and to have regarded as the critical issue the question whether those measures amounted to persecution or persecution for reasons of political opinion or gave rise to a well founded fear of persecution.  Accordingly, the Federal Court was not confronted with the problem of reviewing a finding of the delegate concerning the state of affairs prevailing in China at the time of Mr Chan's application for refugee status.

 

Thus the facts in Chan did not warrant an analysis of whether or not there was a real chance that the adverse consequences that had previously befallen Mr Chan amounted to persecution on Convention grounds.  It was ultimately held that the conclusion the delegate had come to was unreasonable: Mason CJ at 389, Toohey J at 400, Gaudron J at 416, McHugh J at 433.

 

The inference of persecution for Convention reasons in Chan was said to be 'implicit' (Mason CJ at 390).  It is impossible to know what the High Court would have done if the inference was not so easily drawn.  Therefore it cannot be said that Chan decided whether the real chance test should or should not be applied to past events.  The Court simply did not have reason to consider the point.

 

In this case the learned first instance Judge found that the decision of the Tribunal that past adverse circumstances were the result of illegal departure, was not 'unreasonable' in that it was not so unreasonable that no reasonable person could have come to it: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 at 41.  This may well be the case, but with respect it is not necessarily the answer to the question before the Tribunal.  The 'real chance in the future' test will be compromised if it is heavily influenced by findings about the past made on the balance of probabilities.  In other words, the substance of the real chance test will be circumvented if the deciding factor is a finding on the balance of probabilities in relation to a past event and there was no analysis of the possibility that it was inaccurate.  It is simply not correct to define this conundrum in terms that if something happened in the past there is a real chance that it will happen again, and if it did not there is no real chance that it will happen in the future.

 

One approach to this problem can be gleaned from the comments of Justice Sheppard in Mok.  In that case his Honour was speaking of the inappropriateness of the decision-maker adopting an approach that weighs up evidence and makes a determination on the balance of probabilities.  His Honour said at 253:

 

     So often, for example, in cases involving personal injury, a court or tribunal has to make up its mind whether a particular medical condition is likely to continue indefinitely or to clear up.  Eventually the court or tribunal expresses a preference for the evidence of one doctor to that of another.  In some cases it will thereafter exclude that one and proceed upon the basis of the preferred one.  In other cases it may say that, although the probabilities are that the position will be as predicted by one doctor, it cannot be denied that there is a possibility that the view of the other doctor will after all be the correct one.  The court will then proceed to assess damages, not on the basis that the condition is likely to recur, but on the basis that it is possible that it will.

 

This approach could be appropriate for the circumstances of a case such as the one at hand.  The Tribunal could assess past events on a balance of probabilities test to make its findings, and then engage in the speculation of 'what if I am wrong'.  Proceeding on the basis that it was probable that events had transpired as it had found and were not Convention related, but that it was nonetheless possible that they were Convention related, the question of any real chance of persecution on Convention grounds on the appellants' return to China could be addressed.

 

(d)  A practical approach

 

Both the decision maker and the Tribunal are under a positive duty to assess future potentialities, engage in speculation, and refrain from weighing and comparing scenarios.  The essence of the 'real chance' test is to determine if there is a real chance that the appellants would be persecuted on a Convention ground, "real" firstly in the sense that the chance is not fanciful or too remote or extreme.  The 'real chance' test is not concerned with proof of or preference for alternate theses on the balance of probabilities.  Rather, once the facts indicate that the possibility of persecution is not remote, there will be a real chance for the purposes of the test unless it is disproved.

 

In my opinion, the test can be conducted as if testing the hypothesis that there is a real chance of persecution on a Convention ground.  In terms familiar to entitlement to war veterans' and war widows' pensions, the first step is to assess if the hypothesis is reasonable, in the sense that it is not fanciful or too tenuous.  The hypothesis will be reasonable, that is, the appellants' fear of persecution will be well founded, if the factual matrix or context points to or is suggestive of a conclusion that there is a real chance that they will be persecuted on Convention grounds.

 

The next step is to test whether or not the hypothesis is disproved, so that it could no longer be said that there was a real chance of persecution on Convention grounds.  Issues of credibility and competing scenarios are relevant to this second half of the test.  If for instance a competing and mutually exclusive hypothesis was proved beyond doubt, that would negate the 'real chance' hypothesis.  Similarly, if a fact crucial to the support of the real chance hypothesis is disproved beyond doubt, that too would negate the hypothesis.  Thus the 'real chance' test is in essence a test of possibilities.

 

In summary, therefore, there will in the present and most other cases be a five stage process:

 

     1.   Identify the hypothesis.  In most cases this will simply be whether there is a real chance of persecution on a Convention ground.

 

     2.   Note the relevant evidence.

 

     3.   Engage in foreseeable future speculation and note the potentialities.

 

     4.   Address the question of whether or not the evidenced facts point to the hypothesis.

 

     5.   If so, examine whether it is negated by other compelling facts.

 

The advantage of this practical approach is that it would turn the Tribunal's mind first to speculation and a consideration of all the evidence, and reduce the risk that the Tribunal will weigh up alternatives and adopt a balance of probabilities test. 

(e)  Expressions of political opinion

 

(i)  Illegal departure

 

Contrary to international law and treaties ratified by Australia: see for example International Covenant on Civil and Political Rights, Article 12(2), Chinese citizens have no right to leave China even temporarily, and any person wishing to do so must have an exit permit.  Unauthorised departure is clearly a breach of Articles 176 and 177 of China's Criminal Code which provide for the punishment of individuals who illegally cross China's borders.  The existence of such laws, however, do not of themselves exclude the possibility that illegal departure will be viewed by the authorities as an expression of political opinion opposed to the current policies of the incumbent Chinese Government.

 

This issue was canvassed by Justice Tamberlin in Wu Guo Xiong & Anor v Minister for Immigration and Ethnic Affairs (unreported, 9 August 1995).  Mr Wu had organised the departure from China of himself and others by boat and had acted as captain of the vessel.  The applicants in that case submitted that their illegal departure was (at page 18):

 

     an expression of political opinion and was the ultimate form of protest to be made by the applicants against the Chinese Government and its policy.  By departing China it is submitted that the applicants have manifested their dislike and fear of the government.

 

His Honour concluded that the departure could not be said to be an expression of political opinion,  explaining (at page 24):

 

     In my view, the act of leaving, taken alone, cannot be said to carry with it either a necessary or probable finding that the departure is an expression of political opinion.  There may equally be perceived social, economic, cultural or other subjective benefits leading to departure...

 

     However, if the history of the matter is such that a person has been expressing political opinion against the controlling regime or has aligned with particular political groups, or is liable to be persecuted for political views, then these factors could well colour the act of departure so as to make it in effect part of the manifestation of political opinion in opposition to the government.

 

Thus the question of whether any particular illegal departure, such as that of the present appellants, would carry with it an imputed political opinion will depend on its unique circumstances including the compounding factors of the case.

 

(ii)  Disregard of China's one child policy

The appellants criticised the decision of the Tribunal for not having regard to the effect the birth of the appellants' third child may have on their real chance of persecution on Convention grounds.  They couched this criticism in terms of a relevant consideration the Tribunal failed to take into account and also of a failure by the Tribunal to consider the appellant's real
chance of forcible sterilisation, using their third child both as a separate trigger and as a supplement to the appellants' particular history of resistance to legal requirements.

 

In my view there was another factor the Tribunal should have considered, viz. whether the birth of the third child carried with it an imputed political opinion, such that their disregard of the policy could be viewed as an expression of the appellants' political opposition to the Chinese regime or its laws.  In other words, the Chinese authorities might or would consider the flagrant disregard of the one child policy as the expression of a political view.

 

China's family planning program is known to be accompanied by coercive measures.  It is also generally accepted that it is the local authorities rather than the central government who are responsible for some of the harsher measures.  That forcible sterilisation would be 'persecution' is not in issue: Minister for Immigration and Ethnic Affairs v Respondent A & Ors [1995] 130 ALR 48.  The relevant question is whether the persecution would be on a Convention ground.  Special leave to appeal to the High Court has been granted in Respondent A on the issue of whether or not a person breaching the one child policy is a 'member of a particular social group' as referred to in the Convention.  However, it seems to me in this particular case that the question of the appellants' third child would also be relevant to whether the appellants might be said to hold a political opinion.

People have children for a host of reasons but in most countries it would rarely be considered a politically motivated act.  Nonetheless, viewed in concert with the appellants' history of activities that show their active and painful disagreement with some of their Government's most basic policies, the fact that they now have three children must fall to be considered in terms of its political implications.  It is part of a pattern of behaviour that may establish that they have in all likelihood been ascribed a political opinion.  In my view, it is something to which the Tribunal should have turned its mind.

 

6.   WHAT THE TRIBUNAL DID IN RELATION TO GUO WEI RONG

 

The Tribunal correctly dealt with the case primarily as that of Mr Guo and correctly identified that whether or not his fear is well founded must be assessed on the basis of the 'real chance' test (AB788-789).  The Tribunal then recorded his pertinent background history and claims, principally under the headings of the 1985/86 departure, the 1992 departure, the changes of household registration, the boat confiscation and restriction of fishing licence, the one child policy, his brother, and finally his wife Ms Pan.  These matters in effect are the factual matrix of Mr Guo's case.

 

In order to ascertain whether or not the Tribunal actually applied the correct test, it is necessary to go to its reasons for decision in each of these cases in some detail.  In my opinion the Tribunal's words warrant a beneficial construction, unless it is apparent from their face that the test has been misapplied.

 

The following extracts from the Tribunal's determination provide some insight into the Tribunal's approach (emphases added):

 

6.1  ..... any harm he faces is not as a result of his civil or political status

 

-- apparently on the balance of probabilities

 

6.2  The Tribunalfinds that the Applicant does not have household registration because he has been reluctant to bring himself to the attention of the authorities for fear of being required to serve the unexpired position of his sentence imposed in 1986.  The applicant is not denied household registration by the appropriate authorities for a Convention reason.

 

-- again, it seems, more probably than not

 

6.3  There is no evidence before the Tribunal that the Applicant would be prevented from obtaining employment for a Convention reason.

 

-- no assessment of the possibilities

 

6.4  The only issue that remains to be determined is whether the treatment the Applicant fears from the authorities on return because of his contravention of the one child policy and his illegal departure brings him within the Convention.  This requires a determination as to whether the treatment he fears is directed at him for a Convention reason...

 

-- again, refraining from speculation

6.5  The overall credibility of the Applicant's evidence before the Tribunal was in many respects unsatisfactory.

 

     The evidence before the Tribunal from the Applicant's wife was also unsatisfactory.  The Tribunal found her evidence vague, hesitant and inconsistent.

 

     For these reasons the Tribunal attaches little weight to her evidence.

 

-- suggesting a weighing up process on the balance of probabilities.  The Tribunal made several references to Mr Guo's evidence being 'inconsistent' with independent reports, thus suggesting a further weighing up process.

 

6.6  The Applicant's evidence concerning the one child policy is difficult to assess in the absence of any independent evidence other than the evidence of his wife and brother.

 

     In the circumstances the Tribunal finds his account on these matters implausible.

 

Corroboration is a classical component of a weighing up process.  What evidence would have been "independent", and how and from where it could have been obtained by Mr Guo, were not identified.  The 'implausibility' conclusion is not equivalent to a lack of real chance.

 

6.7  For these reasons the Tribunal finds that the Applicant does not face a real chance of forcible sterilisation on return to China.

 

     ... the Tribunal does not accept that the Applicant's treatment on return was related to these activities.  In the Tribunal's view if the authorities had been concerned about his activities or application for refugee status in Australia he would have been detained for a longer period.

Deductive reasoning may well support an alternate theory but does not address the 'real chance' question.

 

6.8  The Tribunal finds the treatment the Applicant received on return to China in October 1992 to be reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials.

 

     An assessment should be made as to whether the charge is or would be directed at the applicant for a Convention reason.

 

These statements appear to reflect a repudiation of the 'real chance' test in favour of a balance of probabilities.

 

6.9  Given the evidence before it the Tribunal does not accept that the Applicant faces persecution because of illegal departure.  If the Applicant were charged for illegal departure and or as an organiser of illegal departure by the authorities this is not related to a Convention ground.

 

Once again these findings appear to be on the balance of probabilities without any consideration of the 'real chance' test.  The Tribunal's conclusion may well provide a plausible hypothesis as to what will occur, but it does not address the correct question.

 

6.10  The Tribunal finds that he was punished by the authorities because of the degree of criminality surrounding the offence and not because of an imputed political opinion.  The Tribunal finds that the fines imposed on his family in 1986 were related to the offence of illegal departure and not imposed because of the Applicant's political profile.

 

These findings were also apparently made on the balance of probabilities.

 

6.11  The Applicant's punishment was unrelated to any political profile ascribed to him by the authorities as a result of illegal departure.  In these circumstances the Tribunal finds that the Applicant's illegal departure in 1993 will not result in an imputed political profile.

 

This passage again highlights that the Tribunal made findings concerning events in the past on the balance of probabilities, and that as a direct result of those findings, the Tribunal answered in the negative the question of whether or not Mr Guo would be persecuted in the future.  This is a clear example of how the findings in relation to earlier events have circumvented the substance of the 'real chance' test.

 

6.12  On the credible evidence before the Tribunal there is no connection between the Convention grounds and the punishment the Applicant fears for illegal departure and or as an organiser.  As the Tribunal found that the Applicant's refugee application and political activities in Australia in 1992 were not connected to the penalty he received on return to China in October 1992, the Tribunal finds that these matters will not result in persecution to the Applicant for Convention reasons if returned to China.

 

The problems with this paragraph are the same as the immediately previous passage.  It has the additional error that it does not speculate on the compound effects of Mr Guo's earlier with his subsequent illegal departure and whether or not the totality would carry with it any imputed political opinion.

 

6.13  If returned to China the Applicant may receive a severe penalty because he is a repeat offender and an organiser of the boat journey, but such punishment is not for a Convention reason.

 

Once again the Tribunal has not turned its mind to whether or not Mr Guo's subsequent illegal departure and application for refugee status may carry with it an imputed political opinion and if so, the effect it might have on his punishment.  The Tribunal has shunned speculation, weighed the probabilities and therefore avoided the 'real chance' test.

 

6.14  The claim of persecution as a result of evidence the Applicant gave before the Tribunal on 15 April 1994 is not well founded.  The Tribunal finds that matters related to Applicant's personal history and activities in 1986 would be known to the Chinese authorities.  In this context the Tribunal finds that the Applicant's position would not be aggravated.  Further, whether other applicants could reveal such matters if returned to China is purely speculative.

 

The Tribunal has again made findings rather than addressed the true question.  The Tribunal did not consider the real chance of the cumulative effect, but made a finding that Mr Guo's position will probably not be aggravated.

 

All of these parts of the Tribunal's reasoning suggest that the Tribunal was looking for independent corroboration of Mr Guo's assertions, so redolent of a balance of probabilities test.  Additionally it evidences the Tribunal's reluctance, even refusal, to speculate, preferring the search for proof by corroboration.  As it appears to me, the Tribunal has thus been concerned to make findings and determinations in relation to each piece of evidence.  It evaluated the credibility of Mr Guo and employed a continuous weighing up process.  It also engaged in a deductive reasoning process to justify some of its balance of probabilities findings.  Clearly great weight was placed upon these findings when considering the ultimate question.  Only after it had weighed the evidence and made its findings did the Tribunal engage in any consideration of whether or not Mr Guo's fear of persecution on a Convention ground was well founded.  However, no consideration was given by the Tribunal to the possibility that any of its findings were inaccurate, and that there was in fact a possibility that the prior punishment had been Convention-related.

 

Even if, contrary to my earlier views, the 'real chance' test or some facsimile of it is not appropriate for assessing past events, and that a balance of probabilities approach is acceptable, it was incumbent on the Tribunal to consider the possibility that on Mr Guo's third return to China now, there would be a real chance of persecution on a Convention ground.  This consideration would have entailed speculation on the cumulative effect of his several transgressions of Chinese Government's policies and laws.

 

Yet speculation whether illegally departing the country three times, participating in open protests, and evincing a flagrant disregard of China's one child policy were tantamount to an adverse political opinion was not undertaken.  To the contrary, the Tribunal made a series of findings, determined on the balance of probabilities, to deduce that no real chance existed.  It
appears to have been satisfied that because persecution on any Convention ground, in its view, had not occurred in the past, it would not occur in the future.  The express findings to that effect rejected the need for speculation.

 

The consequence of this approach was that the question of whether there was a real chance of persecution on Convention grounds was not answered.  The principle behind the 'real chance' test was therefore compromised.

 

7.   WHAT THE TRIBUNAL DID IN RELATION TO PAN RUN JUAN

 

The Tribunal correctly identified the test as that of a 'real chance' of persecution if Ms Pan were returned to her country.  However, despite adverting to the inappropriateness of weighing the prospects of persecution, the Tribunal erroneously proceeded to make findings and determinations on such a basis.  The following extracts highlight the errors (emphases added):

 

7.1  The only issues to be determined by the Tribunal are whether the treatment the Applicant fears from the authorities on return because of contravention of the one child policy and illegal departure brings her within the Convention.  (AB 170)

 

The Tribunal should have had regard to whether or not there is a real chance that the treatment Ms Pan fears is because of Convention reasons.

 

7.2  Notwithstanding the Applicant's evidence that forcible sterilisation occurs in Bei Hai, the Tribunal must make an assessment as to whether her contention that she faces forcible sterilisation is plausible and credible.

 

"Plausible" and "credible" do not equate to a 'real chance'.

 

7.3  In view of this the Tribunal attaches no weight to her claims that she has been personally threatened with sterilisation by the local officials.

 

The Tribunal has weighed the evidence.

 

7.4  The circumstances of the Applicant's return to China in 1992 were such that the Tribunal is satisfied that the authorities would have conducted inquiries into the Applicant's background at a local level.  If the local planning authorities were interested in the Applicant at the level she has described, in the Tribunal's view she would have been questioned about the one child policy upon her return to China in 1992.  The Tribunal finds that the authorities had the opportunity to inform the local planning authorities of the Applicant's return.  The authorities could have held her in detention to facilitate her transfer into the custody of the local planning authorities for the purpose of sterilisation at either the point of re-entry into China or on her escorted return to Bei Hai by the PSB.  This lack of interest in the Applicant on her return to China by the PSB and the family planning authorities is not consistent with the level of interest and profile she has portrayed to the Tribunal.  The Tribunal has already referred to the evasiveness of the Applicant concerning her contact with the family planning officials and the threat of sterilisation; as well as her credibility generally.  In the circumstances the Tribunal finds her account on these matters implausible.

 

The findings and conclusions were apparently arrived at on the balance of probabilities.  Moreover, 'implausibility' is not the same as a lack of a 'real chance'.

7.5  For these reasons the Tribunal finds that the Applicant does not face a real chance of forcible sterilisation on return to China.

 

The Tribunal has made a 'finding' concerning Ms Pan's 'real chance' of persecution.  To my mind these terms are contradictory, indicating that the Tribunal has misconstrued its duty.

 

7.6  An assessment should be made as to whether the charge is or would be directed at the applicant for a Convention reason.

 

These words evince a factfinding or balance of probabilities approach, rather than an assessment of possibilities.  The test is whether there is a 'real chance' that any charge is or would be directed at the applicant on Convention grounds.

 

7.7  If the applicant were charged for illegal departure by the authorities, there is no evidence before the Tribunal that prosecution would be directed at her for a Convention reason.

 

This sentence suggests that the Tribunal was loath to speculate, preferring to rely on corroborated evidence.

 

7.8  The punishment the Applicant received for illegal departure in 1992 was nominal and there is no evidence that her illegal departure or visit to Australia resulted in the authorities ascribing a political opinion to her.  In these circumstances, the Tribunal finds that the Applicant's 1993 illegal departure will not result in an imputed political profile.

 

This finding was based upon past events without speculating on the cumulative impact of Ms Pan's second departure.  The real chance has not been considered.  Moreover, the Tribunal considered Ms Pan's contentions regarding her husband (AB174-5).  In my view these expressions also evidence a misapplication of the test as earlier canvassed.

 

7.9  On the credible evidence before the Tribunal there is no connection between the Convention grounds and the punishment the Applicant may face for illegal departure.  The Applicant may receive a more severe penalty than in 1992 because she is a repeat offender, but such punishment is not for a Convention reason.  In view of this finding it is not necessary to make a determination as to whether the treatment the Applicant fears amounts to persecution or is well founded.

 

In my view this passage succinctly evidences the Tribunal's misapplication of the 'real chance' test.  The Tribunal has determined Ms Pan's case on the balance of probabilities.  It has made a 'finding' that in its view obviates the need to consider whether or not Ms Pan's fear of persecution on Convention grounds is well founded.  Rather than asking whether there is a real chance of persecution on Convention grounds, the Tribunal has found on the balance of probabilities that her version is not to be preferred to its own deductive reasoning.  The Tribunal has thus clearly rejected the real chance test in favour of a balance of probabilities test.

 

Moreover, notwithstanding its view that Ms Pan has not previously been persecuted on Convention grounds, the Tribunal has not considered the possibility that her cumulative circumstances, including her being the wife of Mr Guo, may give rise to an imputed political opinion and therefore a risk or real chance of persecution on Convention grounds.  In particular, the Tribunal has not considered the impact her third child may have on the authorities and her risk of persecution in the future.  The Tribunal's answer to these matters is that there is no evidence to support a claim that she is now at risk.  This is not an appropriate answer.  Whether or not there is evidence to support that claim, the duty of the Tribunal is to consider whether there is a real chance of persecution.  The answer to what may happen in the future will not always be, and in the case of China is unlikely to be, based on hard evidence.  The Tribunal should not ask if there is evidence to prove Ms Pan's claim on a balance of probabilities.  Rather, it should ask whether the whole of the evidence and her particular circumstances suggest a real chance, or point to a real possibility, of persecution in the future.  The test may be satisfied, and the Tribunal is not absolved of its duty, notwithstanding a paucity of evidence.

 

Moreover, regardless of the dispute raised by Minister for Immigration & Ethnic Affairs v Respondent A & Ors [1994] 127 ALR 383, reversed on appeal by a Full Court of this Court and now on appeal to the High Court, as to whether fear of forcible sterilisation for contravention of the one child policy could be persecution of a person because he/she was 'a member of a particular social group', I consider that it is incumbent on the Tribunal to consider whether or not breach of the one child policy could carry with it an imputed political opinion adverse to that of the Government of China.  In this case, where this possibility must be considered in the light of Ms Pan's other actions such as two illegal departures and her marriage to a three time departee who is an admitted organizer of the departures of others and a notorious protester, it seems to me virtually inescapable that there is a real risk of her pattern of continuing behaviour and associations being considered by the Chinese authorities to evince a deliberate renunciation of China's laws and policies such that they will impute to her an adverse political opinion.  As such she must be in real danger of severe persecution if now returned.

 

8.   OTHER CLAIMS BY THE APPELLANTS

 

The appellants submitted on this appeal that the Tribunal's conclusions were tainted, in the sense that they manifested errors of law, on the grounds of no evidence and unreasonableness.  The preceding analysis highlights why the question of whether or not the Tribunal's findings are reasonable or open on the facts does little to facilitate matters.  Each and every one of the Tribunal's findings may well be 'reasonable' and 'reasonably open', but the critical question for these appeals is whether the Tribunal applied the correct test.  In my respectful view it did not.  Although it was not the focus of the judgment of the learned primary Judge, in that his Honour found that the Tribunal had not misapplied the test, he too with respect fell into error.

 

In the light of this conclusion, it is strictly unnecessary to decide whether the evidence before the Tribunal disclosed that the appellants had a real chance of persecution upon their return to China.  However, it is important that the test, once correctly defined, be correctly applied to the facts.  The learned primary Judge thought that the Tribunal had performed this task without error.  I respectfully differ.

 

9.   THE EVIDENCE

 

The appellants asserted that it was the threat of Mr Guo's rearrest, and of further interrogation and long detention in a labour camp, that prompted them to leave China a third time.  They said that on their return in 1992 Mr Guo was treated more severely than the Chinese Government was prepared to acknowledge, and more severely than official forecasts and undertakings concerning the treatment he might expect.  They argued that much worse can be expected if they are sent back again.  There seems no doubt that the appellants entertain a fear of persecution if they are returned to China.  In the circumstances it is not difficult to accept that their fears are genuine.

 

In its 'China Country Profile'of November 1993 at page 38 (AB67), the Department of Foreign Affairs and Trade stated in relation to illegal departure:

     ... returnees are normally given counselling by their work unit or if independently employed by their local  district committee office.  The above is consistent with Article 14 of the PRC Law on the Control of the Exit and Entry of Citizens adopted in 1965.  Persons whose offence was compounded by what that Article describes as 'serious circumstances' would be subject to more serious penalties...under Article 176 of the Criminal Law Code, the maximum penalty for such cases is one year of imprisonment, detention or control.

 

Article 14 provides for a maximum of ten days detention for illegal departures.  In addition, according to Amnesty International (AB67), attempts to leave China illegally are punishable under Article 176 of the Criminal Law Code of the People's Republic of China which states:

     Whoever violates the laws and regulations that control leaving and entering the country, secretly crossing the national boundary (or border-line), when the circumstances are serious, is to be sentenced to not more than one year of fixed term imprisonment, criminal detention or control.

 

'Serious circumstances', as found by the Minister's delegate here, includes the stealing of a boat, and causing death to or using force on someone in an attempt to procure an illegal departure, none of which was present in Mr Guo's case.  Yet in its review of the Minister's refusal of the appellants' claim for refugee status, the Tribunal held that Article 176 may well apply to Mr Guo as serious circumstances were present.  It concluded that Mr Guo might suffer severe punishment because he was a repeat offender and an organiser and thus not for a Convention-related reason.  The learned primary Judge held that it was open to the Tribunal to find that Mr Guo's case was 'serious' for the purposes of Article 176 because he was a repeat offender and, according to departmental correspondence with the Tribunal on 11
February 1994, it was likely that the Chinese Government would treat repeat offenders more harshly.  The main concern of the Chinese officials was said to be the apprehension of the organisers who may be found guilty of an offence against Article 177 which states:

 

     Whoever, for the purpose of reaping profits, organises or transports other persons secretly to cross the national boundary (or border-line) is to be sentenced to not more than five years of fixed term imprisonment, criminal detention or control and may in addition be sentenced to a fine ...

 

The correspondence included advice received from the Australian Consulate General in Shanghai that by recent amendments to the applicable laws, serious and repeat offenders who were organisers may face the death penalty (AB 275).  On the facts accepted or found by the Tribunal, this may well include Mr Guo.

 

In contemplating what might happen to the appellants if now returned to China, it is instructive to understand what occurred in relation to their deportation in October 1992.

 

On 6 December 1992 the Chinese Vice Foreign Minister gave the Secretary of the Minister's department an assurance to the effect that the Jeremiah returnees would not be persecuted or mistreated.  On 23 December 1992 the Chinese Foreign Minister assured the Australian Ambassador in Beijing that if the appellants' only action had been illegal departure, the financial loss already suffered was "more than sufficient punishment".  The Embassy was also informed that the seven Jeremiah returnees, of
which the appellants and Mr Guo's brother were three, had been given only 6 days detention and some questioning designed to learn more about the organisation which had arranged their departure.

 

This advice was confirmed by telex dated 4 January 1993 from the Embassy which also stated that the Chinese Foreign Minister had repeated that there would be no persecution of returnees if their only action had been illegal departure.  A further telex from the Embassy of 9 February 1993 stated that illegal departees who had applied for refugee status in Australia would in the absence of more serious factors be unlikely to attract more than the Article 14 ten day detention period.  A Minute from the Embassy on 17 June 1993 noted that fines were payable for illegal departures and referred to administrative penalties of 1 - 15 days.

 

Thus Mr Guo was treated much more severely than should have been expected.  Moreover, Mr Guo's brother who was not a repeat offender was accorded the same punishment as Mr Guo.  The appellants asserted that their especially harsh treatment in comparison to other returnees was because the authorities imputed to them a political opinion arising from Mr Guo's protest activities at Port Hedland.

 

10.  THE FACTS AND CONVENTION-RELATED PERSECUTION

In my opinion, these facts point to a real chance that Mr Guo will be persecuted on one or more Convention grounds if returned
to China.  The appellants' 1992 illegal departure and Mr Guo's protest activities in Australia have already attracted the attention of the Chinese authorities, and he and his brother have received disproportionate or discriminatory punishments which were substantially harsher than the Chinese Government had assured the Australian authorities that returnees could expect.  This treatment cannot be explained by Mr Guo's recidivism as his brother, who received the same punishment, was not a repeat offender.  The evidence suggests that the Chinese Government treated the appellants' emigration in 1992 as having political significance, and as not merely economically motivated.

 

In my view, the evidence establishes that if the appellants are returned now, there is a real chance that political opinion will be imputed to them from their serial illegal departures culminating in the 1993 departure, as well as their flagrant disregard of the one child policy.  The evidence also supports a conclusion that any future punishment would, at least in part, be based on that political opinion, and would take the form of lengthy detention, and vigorous even brutal interrogation.  Such punishment would therefore be compounded by Convention grounds.  As Chief Justice Mason said in Chan at 390:

 

     Discrimination which involves interrogation, detention or exile... amounts prima facie to persecution unless the actions are so explained that they bear another character.

 

A fortiori, the possibility of the death penalty for Mr Guo, which in my opinion is not remote because of the political element, would clearly qualify as Convention-based persecution. The evidence thus strongly supports a conclusion that the appellants' fear of persecution is well founded in that they face a real chance of persecution on Convention grounds.

 

11.  EVIDENCE IN NEGATION OF CONVENTION-BASED PERSECUTION

 

The alternative viewpoint is that any punishment the appellants received and could expect to receive on their return now, however severe, will be related to Mr Guo's organising activities, the illegal departures and the non-payment of fines, and therefore not for a Convention reason.  There is insufficient evidence to establish any likelihood or even possibility that the appellants would be charged under Article 176 and the appellants have not in fact been charged under that Article.  Moreover, the 1993 punishment and their repeated attempts to desert the country may not be viewed as politically motivated, and the births of three children may not be viewed as an additional rejection of the political visions of the Chinese authorities.

 

The appellants' credibility, especially Mr Guo's, is also in issue.  It must at once be acknowledged that Mr Guo's protest activities at Port Hedland may have been an insincere if blatant attempt to politicise his and his family's departure from China.  It is important that both the Tribunal and the Court be alive to the possibility that asylum seekers may try to create circumstances leading to harsh treatment in the hope of forming a basis of an undeserving claim for refugee status.

But the Tribunal did not make this finding of fact in this extraordinary case, and in fact appeared to accept most of the appellants' assertions.  Its rejection of Mr Guo's assertion that he had received a second prison term is in my opinion not sufficient to negate or displace the evidence establishing a real chance that the appellants will be persecuted on Convention grounds on their return to China.  A comparison between their apparent desperation to leave and live out of China including their willingness to undertake dangerous activities and undergo harsh penal treatment for their beliefs and activities to this end on the one hand, and the possibility that they have undertaken all this pain for some economic or other non-Convention reason on the other, strongly emphasises this conclusion.

 

12.  DECLARATORY RELIEF

 

The appellants seek an end to the litigation and their tribulations, and have thus applied for declaratory relief under section 16(1)(d) of the ADJR Act 1977 that they are refugees and entitled to entry visas.  The Minister argued that in order for this to be possible, the Court must first find that the primary decision is attended by a fatal error of law, and secondly that there is no unresolved question of fact.  Moreover, he submitted, if the decision is vitiated by an error of law, the appellants are not entitled to the factual conclusions the Tribunal made in their favour.  The Minister submitted that the proper course for this Court, if it is minded to accept the appellants' arguments
on the legal errors of the Tribunal, is to remit the matters to the decision-maker for consideration according to law.

 

It is clear that the Court has the power under section 16 of the ADJR Act to decide the ultimate issue rather than remit the two cases to the decision-maker.  The issue of whether it should do so has been considered on many occasions, most recently by a Full Court of this Court in Li Shi Ping v Minister for Immigration and Ethnic Affairs [1995] 35 ALD 225 at 240.  There Justice Carr, with whom Justices Sheppard and Gummow agreed, noted that in Sordini v Wilcox [1983] 70 FLR 326 the Court elected to substitute its discretion for that of the decision-maker on the grounds that

 

     it would be awkward, somewhat invidious, and a waste of time and money, to refer the matter back to the Review Committee for further consideration (at 347).

 

His Honour also noted that that case was explained in Minister for Immigration and Ethnic Affairs v Conyngham [1986] 11 FCR 528 at 541, on the basis that it was

 

     implicitly, an appropriate case where the order accompanying the order setting aside a decision might be one compelling a decision of a particular kind.

 

Justice Carr said of the issue in relation to Li Shi Ping (at 240):

 

     In these matters, the ultimate question is not so much the exercise of a residual discretion but a finding whether the status of refugee exists.  That depends on the resolution of as yet unresolved factual matters.  Those matters bear upon the question of whether the applicants' (admitted) subjective fear of persecution is objectively well-founded.  In turn, the determination of that question will involve questions of credibility on such issues as the degree to which the applicants were involved in political activity which would give rise to a real chance of persecution if returned to China.  For the court to take a role of deciding these issues as part of judicial review of administrative action would, in my opinion, be to usurp the function of the decision-maker.

 

As I see the position, there do not remain any unresolved factual issues in the present case.  The Tribunal had all the evidence, stated it in some detail, and considered issues such as credibility before coming to its conclusions.  Its decision was considered by the learned primary Judge not to have been unreasonable, and I do not seek to disturb that conclusion.  The Tribunal, however, applied the wrong test as to whether the appellants were refugees, and his Honour's error was, with respect, in finding that the Tribunal had applied the correct test.

 

Moreover, the evidence established that there is a real chance, in that it is substantial and not too remote, and is not conclusively negated by other evidence, that the appellants will be persecuted on Convention grounds if they are returned to China.  Thus any decision to remit the case to the decision-maker would have to carry with it an order compelling the decision-maker to make a decision in favour of the appellants.  Moreover, the Tribunal would be directed to recognise that any findings that past adverse treatment was not Convention-related do not of
themselves preclude a real chance of persecution on a Convention ground in the future.  That question must be answered with regard to all the circumstances of the case.  As to these circumstances, the Tribunal would be told that it must have regard to the effect of the cumulative actions of the appellants on the question of whether or not there is a real chance of persecution.  Because there can be little doubt about what conclusion must then be drawn, it would in my opinion be a "waste of time and resources" to follow such a course.

 

In my opinion the appellants are entitled to the declaratory relief sought.  Both appeals should be allowed with costs.

IN THE FEDERAL COURT OF AUSTRALIA)

                                  )

NEW SOUTH WALES DISTRICT REGISTRY)   

                                  )

GENERAL DIVISION                  )

 

 

  ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

 

 

No. NG 370 of 1995

                      BETWEEN:   GUO WEI RONG

 

                                                   Appellant

 

 

                          AND:   MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                            First Respondent

 

                                  MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                           Second Respondent

 

 

No. NG 390 of 1995

                      BETWEEN:   PAN RUN JUAN

 

                                                   Appellant

 

 

                          AND:   MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

 

                                            First Respondent

 

                                  MS S McILLHATTON, Member constituting the Refugee Review Tribunal

 

                                           Second Respondent

 

CORAM:    BEAUMONT, EINFELD & FOSTER JJ

 

DATE:     26 FEBRUARY 1996

 

PLACE:    SYDNEY

 

 

                    REASONS FOR JUDGMENT

 

 

FOSTER J:   The background of these appeals has been fully set

out by Beaumont J in his reasons.  I shall not repeat it here.  I agree that these appeals should be upheld and that the decisions and orders of the Refugee Review Tribunal ("the Tribunal") in each case be set aside.  I am also in general agreement with the reasons given both by Beaumont J and Einfeld J for the upholding of the appeal.  I wish, however, to add some observations of my own both as to the approach which, in my opinion, should be taken in the ascertainment of refugee status and also as to the manner in which the Tribunal, in my respectful view, fell into error in the present appeals.  I should also indicate, at the outset, that I agree with Einfeld J that in these particular cases the appropriate course for this Court to take is to make the declarations sought.  I shall consider this matter and provide reasons for my view in these observations.

THE DETERMINATION OF REFUGEE STATUS

 

          The relevant definition of a "refugee" provided by the Geneva Convention, as amended by the New York Protocol, has been set out by the other judges in their reasons.  However, for clarity of exposition, I set it out again.  A refugee is defined as any person who:

 

          "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.  ..."

          The present case is concerned only with fear of persecution for reasons of political opinion. 

 

          As previous decisions have indicated and commonsense would require, this definition has both a subjective and objective aspect.  Subjectively, the applicant for refugee status must have the necessary fear.  Objectively, that fear must be "well-founded".  It follows that in any analysis of the material advanced for decision, it is necessary for the decision-maker to keep these aspects distinct.  Otherwise confusion and error are likely to result.  I shall briefly consider each aspect separately.

 

THE SUBJECTIVE ASPECT

 

          In order to succeed the applicant must demonstrate to the satisfaction of the decision-maker that he or she is in fact afraid that upon return to the country of nationality he or she will be subjected to persecution for reasons of political opinion.  There is, in my view, clearly enough, an onus imposed upon the applicant to satisfy the decision-maker as to the existence of this subjective element.  There being no indication to the contrary, I am satisfied that the onus is the ordinary civil onus of proof on the balance of probabilities.  The applicant must establish that it is more likely than not that the relevant fear is being experienced. 

 

          Generally speaking, it may be expected that an applicant will assert the fear and its subject matter in a fairly precise way.  He or she will be able to inform the decision-maker in some detail of the nature of the treatment which is feared and of the political opinion held by or
attributed to the applicant in respect of which it will be meted out.  In some circumstances, however, such as where the question is whether a particular political opinion may be ascribed or imputed to the applicant by the authorities of his or her country, the determination of the subjective element will depend upon whether appropriate inferences can reasonably be drawn from the factual material placed before the decision-maker.  As the applicant must necessarily establish that his or her fear is not merely of ill-treatment upon return to the native country but of ill-treatment amounting to persecution which must also be for reasons of political opinion, it follows that the decision-maker must be persuaded that the subject matter of the fear falls into those categories.  The concepts of both "persecution" and "political opinion" have been the subject of judicial decision, authoritative and persuasive.  These have been discussed in the other judgments in this case and I shall make only brief reference to the principles which have emerged.

 

PERSECUTION

          Clearly not all unwelcome treatment either inflicted or permitted by a country's authorities amounts to persecution. Punishment, even if harsh by our standards, imposed for breaches of the law of the country of nationality, where that law applies generally to all citizens, will not, generally speaking, amount to persecution.  This fact is recognised by the United Nations Handbook on Procedure and Criteria for Determining Refugee Status ("the Handbook") where
it is pointed out that "a refugee is a victim - or potential victim - of injustice, not a fugitive from justice".  Accordingly, an applicant who is afraid to return to his or her country because of facing punishment for breach of its laws of general application will not be in fear of persecution.  There may be an exception where the degree or nature of punishment for such a breach grossly exceeds punishment norms acceptable to civilised countries.  This is not a claim made in the present case and, accordingly, I do not enter upon any detailed consideration of it.

 

          Assistance as to what treatment can amount to "persecution" is provided by the High Court in Chan Yee Kin & Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.  Mason CJ (at 388) said, in relation to the words "being persecuted" in the Convention definition:

 

          "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.  The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason."

 

          His Honour also said (at 390):-

 

          "Discrimination which involves interrogation, detention or exile to a place remote from one's place of residence under penalty of imprisonment for escape or for return to one's place of residence
amounts prima facie to persecution unless the actions are so explained that they bear another character."

 

          In the same case McHugh J said (at 429):-

 

          "The term `persecuted' is not defined by the Convention or the Protocol.  But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes `being persecuted'.  The notion of persecution involves selective harassment.  It is not necessary, however, that the conduct complained of should be directed against a person as an individual.  He or she may be `persecuted' because he or she is a member of a group which is the subject of systematic harassment."

 

          His Honour, after citation of authority, continued (at 430):-

 

          "Nor is it a necessary element of `persecution' that the individual should be the victim of a series of acts.  A single act of oppression may suffice.  As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is `being persecuted' for the purposes of the Convention.  The threat need not be the product of any policy of the government of the person's country of nationality.  It may be enough, depending on the circumstances, that the government has failed or is unable to protect the person in question from persecution."

 

          His Honour also went on to say that:-

 

          "To constitute `persecution' the harm threatened need not be that of loss of life or liberty.  Other forms of harm short of interference with life or liberty may constitute `persecution' for the purposes of the Convention and Protocol.  Measures `in disregard' of human dignity may, in appropriate cases, constitute persecution."

          His Honour further said that:-

 

          "Persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination.  Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason."

 

          Expressions to like effect are to be found in the other judgments of the Court.  These are set out by Beaumont J in his reasons in the present case.  It is necessary for an applicant to establish, on the balance of probabilities, that he fears treatment falling within these broad descriptions if he returns to his country of nationality.

 

FOR REASONS OF POLITICAL OPINION

 

          Finally, applicants must establish not only that they fear they will be the subject of persecutory ill-treatment but that they fear this will be meted out to them because of political opinion.  In other words it is not sufficient that they fear persecution.  They must fear it for a Convention reason, in this case "political opinion".  Obviously, in some cases, the reason advanced by an applicant for fear may clearly be categorised as one related to political opinion.  Membership of a political group or party which has been outlawed or proscribed by the government of the country of nationality is an obvious example.  So too would be the authorship of publications advocating the revolutionary overthrow of the existing government.  If the applicants asserted that they were avowed anti-communists or counter-revolutionaries then they would clearly be making a claim as to political opinion.  The situation is obviously more difficult when an applicant has made no express statement of his or her political opinions.  The question then, is whether other statements or behaviour on his or her part could reasonably in all the circumstances lead to a particular political opinion being ascribed or imputed to him or her.

 

          This whole topic has been extensively considered by Beaumont J in his reasons, together with the citation of many relevant authorities.  I am completely satisfied to adopt what his Honour has written without attempting what would be, in the circumstances, needless repetition.  It is quite clear that the term "political opinion" in the Convention definition embraces the concept of imputed or ascribed political opinion, with the result that the decision-maker when considering the subjective aspect of the definition must take into account in assessing whether the applicant has the relevant fear that he or she may well be afraid that a particular political opinion may be imputed or inferred because of activities engaged in.

 

          To summarise, then, the first task of the decision-maker when considering refugee status is to determine whether he or she is satisfied on the balance of probabilities that the applicant entertains a genuine fear of persecutory treatment on return to country of nationality because of political opinion held by, or likely to be attributed to, him or her.  If the answer is in the affirmative then the decision-maker moves to the objective question posed by the words "well-founded".

 

THE OBJECTIVE ASPECT

 

          The test of whether a fear of persecution is "well-founded" has been authoritatively laid down by the decision of the High Court in Chan.  Mason CJ (at 389) enunciated the test in the following passage:-

 

          "I agree with the conclusion reached by McHugh J. that a fear of persecution is `well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality.  This interpretation accords with the decision of the House of Lords in Reg. v. Home Secretary; Ex parte Sivakumaran [1988] A.C. 958.  There Lord Keith of Kinkel spoke of the need for an applicant to demonstrate `a reasonable degree of likelihood that he will be persecuted for a Convention reason if returned to his own country' [1988] A.C., at p. 994 and Lord Goff of Chieveley spoke of `a real and substantial risk of persecution' [1988] A.C., at p. 1000.  Lord Bridge of Harwich, Lord Templeman and Lord Griffiths agreed with Lord Keith and Lord Goff.  A similar opinion was expressed by the Supreme Court of the United States in Immigration and Naturalization Service v. Cardoza-Fonseca (1987) 480 U.S. 421 where Stevens J., with reference to a statutory provision (which reflected the language of Art. 1(a)(2) of the Convention), in delivering the majority opinion, and citing Immigration and Naturalization Service v. Stevic (1984) 467 U.S. 407 at p. 425, observed that the interpretation favoured by the majority would indicate that `it is enough that persecution is a reasonable possibility' (1987) 480 U.S., at p. 440.  I do not detect any significant difference in the various expressions to which I have referred.  But I prefer the expression `a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring and because it is an expression which has been explained and applied in Australia: see the
discussion in Boughey v. The Queen (1986) 161 C.L.R. 10, at p. 21, per Mason, Wilson and Deane JJ.  If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring.  This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin."

(See also per Dawson J at 398; per Toohey J at 406-7)

 

          McHugh J (at 429) dealt with the matter as follows:-

 

     "Courts, writers and the U.N.H.C.R. Handbook agree, however, that a `well-founded fear' requires an objective examination of the facts to determine whether the fear is justified.  But are the facts which are to be examined confined to those which formed the basis of the applicant's fear?  In Sivakumaran the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant's fear.  The contrary conclusion would mean that a person could have a `well-founded fear' of persecution even though everyone else was aware of facts which destroyed the basis of his or her fear.

 

          The decisions in Sivakumaran and Cardoza-Fonseca also establish that a fear may be well-founded for the purpose of the Convention and Protocol even though persecution is unlikely to occur.  As the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched possibility of persecution must be excluded.  But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as `well-founded' for the purpose of the Convention and Protocol."

 

          It must be stressed that the onus lying upon the applicant as a result of the application of this test, so
defined, is considerably different from the ordinary civil onus based upon the balance of probabilities.  The onus on the applicant is one of establishing a possibility rather than a probability; furthermore, a relatively slight possibility will suffice provided that it cannot be characterised as merely far-fetched or fanciful.  It follows that very little in the way of objective support is required to establish refugee status for a person genuinely in fear of relevant political persecution if returned to his own country.  The term "real chance" does not mean significant or substantial chance, a meaning which the phrase sometimes bears in colloquial parlance.  It means a chance or possibility which is real by reason of its not being baseless, far-fetched or fanciful.

 

          The decision-maker must assess, on the whole of the material available, whether such a chance has been objectively established.  The question of how such an assessment should be approached is of fundamental importance.  I turn to it now.

 

ASSESSMENT OF A REAL CHANCE

          The assessment of a claim for refugee status has been described as an "unique task" (Goodwin-Gill, the Refugee in International Law, 1983 at p 24 cited by McHugh J in Chan at 427).  It requires a particular mind-set on the part of the decision-maker, different in kind from that required in determining whether a civil onus is satisfied.  There is necessarily a basic question of principle to be answered: namely, whether the "real chance" test is to be applied only in the determination of the ultimate question posed by the definition, or whether it should also form the basis of the assessment of the salient facts relied upon by the applicant in establishing the objective aspects of refugee status.  No doubt in the majority of cases, and the present is no exception, applicants will seek to base their claim of fear of persecution upon events which they allege occurred in their own country and which occasioned their departure for the purpose of seeking asylum elsewhere.  What standard of proof should be applied in respect of these events?  Is it necessary for the applicant to establish their occurrence on the balance of probabilities or is it sufficient for the decision-maker to accept the mere possibility of their occurrence as providing the required objective support for the applicant's fear of persecution on return?

 

          Questions of the applicant's credibility as a witness are, also, obviously involved in the process.  Serious concerns about the creditworthiness of an applicant's testimony can, of course, be fatal to a favourable finding on the balance of probabilities.  However, a finding that he or she has failed to establish fact A on the balance of probabilities because, in all the circumstances, including matters of demeanour, the decision-maker is not prepared to accept the applicant as a credible witness does not, as a matter of logic, necessarily mean that the possibility of the applicant's correctly asserting the existence of fact A has been entirely excluded.  Mere doubts or concerns as to the applicant's credibility would not be sufficient to exclude the possibility.  For this result, a positive state of disbelief would be required on the part of the decision-maker. 

 

          The questions involved in these considerations have been approached in decisions of this Court.  In Minister for Local Government and Ethnic Affairs & Anor v Mok Gek Bouy (1994) 127 ALR 223, Sheppard J at 252-3, after discussing passages in the reasons of a decision-maker, Mr Paterson, in which he used phrases such as "I gave greater weight to ...", said:-

 

     "I find it difficult to accommodate the use of the expression `I gave greater weight to ...' to the assessment of a real chance that a person may be persecuted on return to another country.  The chance spoken of is a chance that is less than 50% and one which may be as low as 10%.  That is the purport of the decision in Chan's case.  The language Mr Paterson has used is the language of a decision-maker deciding something upon the balance of probabilities.  So often, for example, in cases involving personal injury, a court or tribunal has to make up its mind whether a particular medical condition is likely to continue indefinitely or to clear up.  Eventually the court or tribunal expresses a preference for the evidence of one doctor to that of another.  In some cases it will thereafter exclude that one and proceed upon the basis of the preferred one.  In other cases it may say that, although the probabilities are that the position will be as predicted by one doctor, it cannot be denied that there is a possibility that the view of the other doctor will after all be the correct one.  The court will then proceed to assess damages, not on the basis that the condition is likely to recur, but on the basis that it is possible that it will.

 

     The phrase `gave greater weight to' is not infrequently found in the reasons for decision of administrative decision-makers.  It seems likely that its use has stemmed from remarks made by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; 66 ALR 299.  His
Honour said (at CLR 41) that it was generally for the decision-maker and not for the court to determine the appropriate weight to be given to the matters required to be taken into account in exercising the statutory power.  But Mason J was not there speaking of a case which required the assessment of `a real chance'.  He was dealing with the more usual situation where the decision-maker was required to decide or reach conclusions on particular facts or matters.  In those cases the use of the phrase is apt.  But this is not such a case.

          In the present case, it seems to me that either there was nothing to be said for Dr Shoesmith's view or, although there was something to be said for it, the predictions of the Department of Foreign Affairs were more likely to be correct.  But that did not mean that Dr Shoesmith's report should have been dismissed out of hand.  It was a factor still to be taken into account not as a probability but as a possibility and thus as providing, perhaps, a basis for saying that there was a real chance of persecution in the sense in which that expression has been explained by the judges in Chan.  In my opinion this is enough to infect Mr Paterson's reasons with error."

          The assessment of a real chance was again considered in Wu Shan Liang v Minister for Local Government and Ethnic Affairs (1995) 130 ALR 367.  The court (at 378) said:-

     "... the whole exercise, involving as it does the assessment of a real chance, must be a speculative one.  One can do little else except engage in speculation.  In some cases the correct decision will be that there is a real chance of persecution because the speculation will suggest strongly that that is the view which should be taken; other cases will be on the borderline; and still others will be in the category of speculation which is fanciful.

          Here the delegate has put speculation aside so one does not know what view she would have had if she had been prepared to engage in it.  Then there is the use of the expressions `give more weight to' and `give greater weight to' in paras (4) and (7).  As was the case in Mok, the delegate appears to have been engaged in an exercise which involved acceptance or rejection of the available material.  It is true that the language she has used, expressed as it is in comparative terms, may be capable of a
meaning whereby the two opposing pieces of evidence are left in play, but one was thought to have more weight than the other.  However, even if that be so, the problem is to know the place in the decision given the material which had the lesser weight.  Paragraph (8) contained a positive finding about the position of those who had been on board the Jeremiah and para (9) is the paragraph in which the delegate eschews speculation.  Notwithstanding what is said in para (12), we think that it must be concluded that the delegate did not in fact apply the correct test.  She did not turn her mind to what it involved.  As in Mok the reality of what she did seems to have been to approach the matter as if it involved the establishment of a state of affairs as being more probable than not.  That is contrary to the test propounded in Chan."

(See also at 383; see also Chen Ru Mei v Minister for Immigration and Ethnic Affairs & Anor (1995) 130 ALR 405 at 412-13)

          In his reasons in the present case Einfeld J, after consideration and discussion of these cases, has set out the steps which, in his opinion, should be taken by the decision-maker in the determination of the question whether a real chance of persecution has been shown to exist in any particular case.  I am in general agreement that the Full Court decisions indicate that these steps or some process substantially similar needs to be undertaken in order to prevent a decision-maker falling into the error of applying the wrong standard of proof in assessing the existence of a "real chance".  Of course, it may well be that it is unnecessary in the individual case to follow such a precise procedure, providing that the decision-maker bears in mind that non-preferred material should not be discarded from the decision-making process, when estimating the existence of a real chance, unless that material has been so discredited as to render it valueless for that purpose.

          In my opinion, it is most necessary that a decision-maker in this area also bear in mind what is said in the Handbook on the topic of "Establishing Facts".  That section of the Handbook speaks of difficulties that may be experienced by applicants fleeing persecution.  It says (paragraph 196):-

          "Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner.  Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application.  Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof.  In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt."

          It is well, also, that the admonitions contained in paragraphs 198, 199 and 202 be particularly borne in mind.  They appear clearly to be based upon a commonsense approach to, and understanding of, the problems with which an applicant refugee may be confronted.  They read as follows:-

     "198.  A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-á-vis any authority.  He may therefore be afraid to speak freely and give a full and accurate account of his case.

     199.   While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or
concealment of material facts.  Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case.

          202.   Since the examiner's conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an `undeserving case'."

          I would also make the observation that even the most experienced decision-maker can encounter considerable difficulty in assessing the credibility of a witness, especially where that witness is disadvantaged by problems of language and lack of familiarity with the situation in which he or she is placed.  It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected.  Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony.  Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence.  However, in cases where only a real possibility need be shown, care must be taken that an over stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

          With these considerations in mind, I come to the present appeals.

THE APPEAL OF GUO WEI RONG

          Einfeld J, in his reasons, has identified a number of instances in which the Tribunal has, clearly enough, applied the balance of probabilities test to the determination of significant facts in Guo Wei Rong's application.  I agree with his Honour that these provide a sufficient basis for the setting aside of her decision as vitiated by error of law.  I wish, however, to add a few remarks of my own.

          It is apparent that in the course of the hearing before the Tribunal and also before the learned trial judge considerable oral evidence was given by the applicant, his brother Guo Wei Zhi, and others.  The proceedings before the learned primary judge, which, we were told, occupied six hearing days also included evidence from the Tribunal herself.  None of this material has been placed before us.  We have, however, been assured that we have before us all material necessary for the decision of the questions in the appeal.  Accordingly, I accept that the Tribunal's decisions in relation to all significant questions may be taken as based upon the material before us. 

          In Guo Wei Rong's case critical matters for consideration were obviously the significance of the protest on the roof at Port Hedland, his treatment upon his return to China, and the potential effect of his next escape from China upon treatment that he might receive should he be returned again.  In relation to the protest there has been no suggestion that it was other than genuine, not being undertaken for the purpose of his subsequently claiming a resultant political profile.  The question of whether such incidents are contrived shams for ulterior purposes will, no doubt, often be a relevant consideration.  However, it does not arise here.

          I was concerned during the hearing as to whether there was sufficient indication of any relevant political opinion on the part of the appellant.  There is, for instance, no evidence that he expressed to the departmental officer or to the Tribunal or to the learned primary judge any formulated political views such as that he was anti-communist or pro-democracy or belonged to some dissident organisation in China.  Reflection and consideration of decided cases has quite satisfied me that this aspect of the definition does not require a demonstration of adherence to any political philosophy or membership of any political group.  I am, indeed, satisfied that his participation and possible leadership role in the rooftop protest in which he exhibited a banner proclaiming that he would rather die in Australia than return to be persecuted in China, coupled with his jumping off the roof, all events which received worldwide media coverage, could well lead to his being given a dissident political profile in his country of nationality. 

          His participation in the protest in the way that he did, in my opinion, points to two matters both critical in relation to his claim to be a "refugee".  In the first place, even in the absence of an express avowal in his evidence, these events point to the holding by him of a political opinion for the purposes of the subjective aspect of the definition.  That opinion could be expressed as being an abhorrence of a political regime which permitted, encouraged, or actively performed persecutory activities.  Secondly, it provided evidence of his participation in politically dissident activity which would necessarily come to the notice of the Chinese authorities, therefore providing material of critical importance to considerations involved in the objective aspect of the definition.  On his deportation to China in October 1992 the appellant would have been aware that the Chinese authorities would have learnt of his protest activities, a fact which no doubt occasioned him some fear; moreover, the evidence clearly indicates that the Chinese authorities were so aware.

          Considerations as to the treatment he received upon his return to China and up to his second departure to Australia are, of course, critical to the determination of whether he has a well-founded fear of persecution for political opinion should he now be returned again to China.  I leave aside his allegations relating to the confiscation of his fishing boat and substantial interference with his ability to earn a living; and his assertions of oppressive activity towards him and his wife in relation to breaches of the One Child Policy.  It is sufficient, for present purposes, to concentrate upon his allegations of mistreatment in relation to his unlawful departure to Australia and his dissident activities at Port Hedland.

          Put compendiously, it is the appellant's case that, despite assurances by the Chinese Government to the Australian Government that the "Jeremiah" returnees would be detained for only a short time and questioned only for the purpose of obtaining information about the persons responsible for organising the departure, he was, in fact, detained in custody on three occasions.  The first was for a period of five days at a detention centre near the airport of return.  No complaint is made as to this period which would seem to coincide with the period of detention referred to by the Chinese authorities.  However, he asserts that thereafter he was detained for a period of 23 days in a prison near his home city of Bei Hai.  This was a period of detention imposed by the Public Security Bureau ("PSB"), an organisation which is primarily a police force and responsible for internal security in China.  After release from this detention he was re-arrested in June of 1993 and detained for a further period of about three months.  He secured his release from this detention by bribery but was later advised by an official of the PSB that he was to be re-arrested.  In light of this information he organised the second departure to Australia.  He relies upon both periods of detention as indicative that his fear of persecution for political opinion should he be once again returned to China is "well-founded".

          The Tribunal did not accept that there was any period of detention in June 1993 nor that the appellant received information from an official as to his impending re-arrest.  These decisions were based largely upon her views as to the general credibility of the appellant.  She also regarded the second event as inherently unlikely.  In considering the first period of detention at Bei Hai, the Tribunal was obviously impressed by the fact that the appellant was a recidivist, in the sense that he had previously been punished for illegal departures from China to Hong Kong, and had also had had an organisational role in those departures.  These factors could have been productive of a longer period of detention than that referred to in the assurances provided by the Chinese authorities.  In other words, the period of 28 days detention at Bei Hai was explicable on the basis that it was an appropriate non-persecutory punishment having regard to these additional factors.  As has been pointed out in counsel's submissions this analysis does not account for the fact that his brother, who was not a recidivist but who was also a Port Hedland protester, received the same period of detention at Bei Hai.

          In relation to the first period it is important to consider what the appellant said in evidence as to the treatment he received from the PSB and also the Tribunal's findings in relation to these matters. In the absence of a full transcript of the evidence I accept that the appellant's version appears in the document described as the DORS statement in the appeal book and also in his affidavit provided for the hearing before the learned primary judge.  The DORS statement reads as follows:-

     "When we landed in the airport in China there were Military Police and other uniformed people everywhere.  We were met by some people from the Australian Embassy in Beijing and some Senior Chinese officials as we came down from the plane.

     We were very frightened.

     One of the Australians who had come to meet us quietly handed both LIANG TIAN HUA and myself a name card and told us, through the interpreter, that if we ever had any problems then we should contact him.  From my memory the name on the card was of the Second Secretary/Second Consul, or Second Level official.  The card was written in English on one side and on the other in Chinese.

     After we had completed some health tests or immunisations we were taken from the building and place[d] in a small bus in which there were already several members of the Public Security Police (PSB) and other such people.  We were taken directly to gaol.

     We remained in Gaol in Guangzhou for five days until the PSB from BEIHAI came to collect us.  The journey back to Beihai took two days.

     We were taken directly to the gaol at Ping Yang, about 20 km from Beihai.  The five men, including myself, remained in jail there for 23 days.  My wife and my child were released on the street in Beihai.

          While I was in jail this time, I was severely beaten and questioned about my time in Australia, the roof-top demonstration, the card given to me by the Australian Embassy officials, the boat people in the
Camp in Port Hedland and I was accused of doing things to harm the reputation of the Chinese Government."

          A further version is given by the appellant in his affidavit.  He states as follows:-

     "After we were deported we arrived in China at an airport in Guangzhou and we were met by Chinese officials and some staff whom I believe were from the Australian Embassy in Beijing.  I was given a card by an Australian Embassy official and told that if I had any problems I should contact him.

     We were then all taken from a building at the airport in Guangzhou to a jail nearby.  We remained in the jail for five days, after which we were taken to Bei Hai in a prison van.  That journey took two days.  The prisoners, other than my wife and daughter were handcuffed to the inside of the van for the greater part of the journey.

     My wife and daughter were released on the street in Bei Hai.  My brother Guo Wei Zhi and I remained in jail for another twenty-three days, after which we were released.  My family had to pay 10,000 RMB to a prison official to have my brother and I released, which is a large sum of money.

     During my time in jail I was severely beaten during interrogations on about five or six occasions.  I suffered headaches from being beaten on the head and severe bruising, especially around my lower back, from being kicked.  On some occasions in that jail we were beaten by the military police for no reason.  We were confined with criminal prisoners and they would also beat us.  The other prisoners made us fetch water for them.

     I was repeatedly questioned about my involvement in the protest on the roof top of the detention centre at Port Hedland; about the other Chinese in the detention centre at Port Hedland; about the card given to me by the Australian Embassy Official.  I was accused of being a spy for the Australian Government.  According to the prison officers I was supposed to give information about China to the Australian Embassy.  I was accused of attempting to harm, by my actions in Australia, the reputation of the Chinese Government.

     During my interrogations I was told by the officers interrogating me that they knew that I and others demonstrated on the roof of a building in a detention centre in Australia, that we had worn headbands with the words `hunger strike' written on them, and that during the demonstration we had banners with us including one saying that we would rather die in Australia than return to China to be persecuted.  I was beaten until I admitted that we had done all those things while we were in Australia.

          I was repeatedly questioned about our departure from China; about whether, and to what extent I and the other people from the Jeremiah boat had engaged in political activities in Australia; and about individual Chinese people in the detention centre in Port Hedland."

          He also alleges in the affidavit that he was subsequently accused of having "brought shame on China" by his actions in Australia.

          Having regard to what has been said by Mason CJ as to persecution by way of interrogation in the passage cited above, there can be no doubt that in this material the appellant is asserting that during the period of 23 days detention he was persecuted for reasons of political opinion.  Moreover, the ill-treatment was received from the PSB, a police organisation with political involvement.

          In relation to this aspect of the appellant's case the Tribunal made the following findings:-

          "The Tribunal accepts that the Applicant was arrested and imprisoned on his return to China from Australia in October 1992.  The Tribunal also accepts that the Applicant may have been questioned by the authorities about his activities in Australia including his refugee application, the rooftop
protest and the card from an Australian official.  However, the Tribunal does not accept that the Applicant's treatment on return was related to these activities.  In the Tribunal's view if the authorities had been concerned about his activities or application for refugee status in Australia he would have been detained for a longer period.  The period of imprisonment and fines the Applicant received is within the range and consistent with the independent evidence before the Tribunal in relation to the penalties for illegal departure.  The Applicant's claims concerning adverse treatment because of these matters is not supported by the evidence.  The Tribunal prefers the independent evidence to the Applicant's unsupported assertions.  The Tribunal finds the treatment the Applicant received on return to China in October 1992 to be reflective of punishment for illegal departure and not because of his political activities, application for refugee status or contact with Australian officials."

          The Tribunal accepted that the appellant suffered imprisonment in October 1992.  I interpret the second sentence as a finding that the questioning referred to took place.  Consequently, there was an acceptance that the PSB was displaying interest in the appellant's political activities in Australia and was questioning him in gaol in relation thereto.  There is no finding, however, as to the nature of the questioning.  Reference is made to the applicant's "treatment" but there is no finding as to what that treatment consisted of.  It appears that the Tribunal in using the term was referring only to the period of imprisonment and the amount of the fines, these being, it was said, consistent with penalties for illegal departure which might be imposed in the appellant's case having regard to his prior offences.  I do not find, however, in these reasons, any rejection, on the ground of credibility or otherwise, of the very specific assertions of brutal ill-treatment made by the appellant to force admissions from him as to his political activity in Australia.  If these were rejected, I would have expected the rejection to be explicit.  In these circumstances, I consider that those allegations of the appellant can be accepted as strongly supportive of his claim that if he is returned to China again, following upon a second illegal flight to this country and a second claim that he is seeking to escape persecution, there exists a real chance of his suffering persecution for political opinion.

          As already indicated, the appellant claimed that he was re-arrested in June 1993 and subjected to further ill-treatment.  He deals with these allegations in his DORS statement in the following paragraphs:-

     "In June 1993, I was re-arrested by officials of the PSB together with my younger brother Guo Wei-Zhi and held in jail for 3 months and 24 days in Beihai.

     During this time, we were both severely beaten and kicked and questioned about our political activities in Australia as well as about our illegal departure and other matters.  I was questioned by them again about various other Chinese people in Port Hedland who were identified by their nicknames.

     I was released on bail for the Moon Festival on 29 September 1993 and immediately went into hiding.

     I hid myself because Mr Bai Fu Xiang, an officer of the PSB, warned me that I would be re-arrested and charged after the 30 September.

     I then escaped to Australia on the boat designated QUOKKA on 6 November 1993.  We arrived in Australia on 5 December 1993.

          I left China at this time because I was subjected to severe political persecution by officials of the Chinese Government."

          In his affidavit he deals with the same matters in some detail as follows:-

     "In June 1993 I was arrested together with my brother Guo Wei Zhi and imprisoned for three months and twenty-four days in Bei Hai.  During that time I was again severely beaten and kicked during the course of several interrogations.

     During those interrogations I was questioned about the same sort of things I had been questioned about during my first period of imprisonment.  I was questioned about the two Applicants in this Application and the reason why they had not returned to China.  I said they had stayed behind because they were sick.  One of the prison officers who was interrogating me said he knew the Applicants had stayed behind because they had jumped off the roof of a building and injured themselves.

     During both my periods of imprisonment the prison officers stated on several occasions that I had brought shame on China by my actions in protesting on the roof in Australia.

     On 29th September 1993 my brother and I were released for two days for the Moon Festival, upon payment by our family of 1000 RMB bail for each of us.

     After our release I went to the house of Mr Bai Fu Xiang, a senior PSB officer, to offer him a bribe to obtain a longer period of release from jail.  Mr Bai told me that we would be rearrested after the Moon Festival, and that there was enough evidence for us to be charged and sentenced.

     I went into hiding with my brother Guo Wei Zhi after Mr Bai told me this information.

          On the 6th November 1993 I left China for Australia on a boat, together with my brother, my wife, two of my children, my two nieces and some other people."

          These paragraphs of course provide an explanation as to why the appellant and others undertook a second boat journey to Australia, which in itself would necessarily have involved hardship, privations and danger.  It needs to be remembered that the appellant brought with him three young children, one of whom was a baby born to himself and his wife only eleven days before departure.

          The Tribunal rejected the claim as to the re-arrest and detention in June 1993.

          The Tribunal dealt with this aspect of the appellant's claim as follows:-

     "In relation to the Applicant's claims of the adverse treatment he received for his 1992 illegal departure, the Tribunal finds that his failure to mention his arrest and imprisonment in June 1993 in the compliance interview undermines his credibility.  The Tribunal does not accept his explanation that he was not given an opportunity and was reluctant to put detailed information because of his fears for a number of reasons.

     Firstly, whilst applicants for refugee status do not always fully amplify their claims to refugee status in compliance interviews and care must be taken not to attribute too much significance to their contents when assessing refugee claims, the Applicant was familiar with the refugee processing system in Australia from his previous experience in 1992.  The Applicant was represented in his application for refugee status in 1992 including the application for internal review.  He was aware of the importance to his credibility of disclosure of relevant information.  This is demonstrated by his evidence before the Tribunal as to why he neglected to mention his illegal departure from China in 1986 to the Department in his first application for refugee status in 1992.  He was warned at the beginning of the compliance interview on 7 December 1993 about the importance of the information he was being asked to provide in relation to future interviews and his credibility.

     Secondly, the Tribunal has had the opportunity of listening to the first compliance interview on 7 December 1993.  After listening to this tape the Tribunal has formed the view that sufficient opportunity was given to the Applicant to provide details concerning the reasons for his departure
from China and the adverse treatment directed to him by the authorities in June 1993.  Although the only material in relation to the second compliance interview on 9 December 1993 contained in the Departmental file are handwritten notes, this interview would have given the Applicant a further opportunity to provide greater detail.

     Thirdly, he provided substantial detail about the first arrest and imprisonment in October 1993.  The Tribunal does not accept that he would have neglected to mention the more significant arrest and imprisonment in June 1993 if the arrest and imprisonment had occurred.  According to the Applicant's own evidence this period of imprisonment was longer and the last instance of adverse treatment toward the Applicant by the authorities before his departure from China.  It is a significant part of the reasons he departed China at that particular time.

     Fourthly, none of the Applicant's witnesses mentioned the June 1993 arrest and imprisonment of the Applicant in their compliance interviews.

          Taking into account all the evidence the Tribunal does not accept the Applicant's claim that he was arrested and imprisoned in June 1993 despite the later corroborating evidence of his witnesses."

          The effect of this finding is the entire rejection of the appellant's claim to further ill-treatment by the PSB after release from detention in 1992.  It is rejected on the basis that the appellant's credibility was "undermined" by his failure to mention the June 1993 episode in his first compliance interviews.  It appears that the evidence of his brother, who is alleged to have suffered the same detention and interrogation in June 1993 and whose later evidence to that effect was corroborative of the appellant's, was also not accepted.  There were additional reasons such as the alleged occurrence of events in the three months period which would
have been inconsistent with the then detention and custody of the appellant and his brother.

          The appellant's case on both the objective and subjective aspects of the definition does not, of course, depend upon the acceptance of his claims in relation to the June 1993 detention.  However, an acceptance would greatly strengthen his case as it would militate strongly against the argument that the previous detention was no more than the imposition of an appropriate sentence for illegal departure having regard to his past history of offences.  I am concerned that, in circumstances where the legislation calls for the assessment of a chance, this claim may have been rejected in its entirety in a rather too summary fashion.  Also, has it in fact been entirely rejected?  Has the Tribunal found that there was no re-arrest and interrogation at all or has it found that the alleged period has not been established?  Does the failure to accept the claim mean that the Tribunal regards it as a fabrication or that, consistently with the approach shown in respect of other aspects of the claim as indicated by Einfeld J, the Tribunal regards the appellant as not having weighed down the scales in his favour in respect of this allegation? 

          If, for instance, the facts were that the appellant was exaggerating what occurred, but that, nevertheless, he had been taken into custody for a short time and further interrogated in relation to the previous illegal departure and had later received the warning that he was to be re-arrested and dealt with again in respect of the same offence, this would provide a cogent indication that the earlier detention and interrogation was not simply a recognised punishment for an ascertained breach of the law but was persecutory in nature.  These considerations do not appear to have been dealt with by the Tribunal, with the result that no findings have been made as to whether or not any discriminatory harassment of the appellant, in relation to his previous departure to Australia and his activities at Port Hedland, occurred subsequent to the detention in October 1992.

          A portion of the appellant's evidence given in an interview on 7 December 1993 is set out in the judgment of the learned primary judge.  His Honour commented that the evidence revealed an occasion "where an observer could reasonably conclude that Mr Guo had an opportunity to refer to his lengthy imprisonment from June 1993" but had failed to do so.  The extract reads as follows:-

     "Q.  Right.  Whose idea was it to get another boat to come to Australia?

     A.   My idea.

     Q.   Sorry?

     A.   It was my idea.

     Q.   Why?

     A.   I have to go.  I could not give boat any more.  I have to - they find me and everything.  I don't have anything with me now.

     Q.   Do you mean with you now in Australia or you didn't have anything when you were in Beihai?

     A.   I was under the investigate for the illegal departure.  The PSB accuse me of illegally departure and I was under investigation and that's why I have to leave China.

     Q.   Was that from his first trip to Australia, was it, that he was under investigation?

     A.   Right after I return to China they did accuse me anything, so but later on there was a movement and the meeting - after the meeting they want to beat all the illegal departure.

     Q.   So, does that mean that they were going to fight him, does it?  What happened at the meeting?  Tell me that.

     A.   At the later stage the newspaper advertisement and according to order from the superior, then every city, every town have to try against those who had political departure record before, or have to clean up to prevent illegal departure.  So because he has a record, then they were - the employee was accused.

     ...

     Q.   Well, what do you think is going to happen to you this time?

     A.   If I'm sent back to China I will be in prison.

     Q.   That doesn't answer my question.  What do you think is going to happen?

     A.   He'll be sentenced.

     Q.   What, is that for leaving the country illegally again, is it?

     A.   As they advertise in newspapers saying that they will punish all the - seriously punish those who left the country illegally, and because I have left the country, so they will punish me seriously.  I myself have left the country illegally many times.

     Q.   But you had already been punished for those times.

          A.   Then fine me and then ask me to burn all the papers.  I borrow money to pay the fine."

          This passage is indicative of the communication problems which can obviously be involved in interviews of this kind.  A recognition of these problems, no doubt, underlies the admonitions which appear in the Handbook to which I have already made reference.  Whilst this passage undoubtedly makes no reference, in circumstances where such a reference might have been made, to the June 1993 detention, it does, nevertheless, provide an allegation of continued harassment in respect of the previous illegal departure, with a strong suggestion that there was to be the implementation of an official policy directed against the illegal departees in respect of departures for which they had already been punished.  This is, at least, consistent with the appellant's claim that he was liable to be re-arrested, that information having been given to him by an official and inducing his decision to depart again.

          In my view, a proper application of the definition does not require that applicants be, as it were, pinned irrevocably to the establishment in toto of all allegations made in support of their claims.  Although resort to exaggeration or even fabrication is distinctly unwise, the finding of either should not necessarily mean that the claim is doomed.  There must always remain the possibility that, notwithstanding such blemishes, there is nevertheless a significant basis of truth in the material which can establish a real chance of persecution.  The procedure is inquisitorial not adversarial.  It is not a matter of the applicant making out a case; rather, the interrogator should seek to ascertain the truth.

          The question is ultimately whether, if the appellant be now returned to China after a second illegal departure to Australia, he would face a real chance of persecution for political opinions held by or imputed to him. 

          For the reasons given in the other judgments and the additional considerations which I have adverted to, I am of the opinion that the appeal should be upheld and the Tribunal's decision set aside.  The applicant has now been held in custody for over two years.  I have considered whether the order of this Court should be that the matter be remitted for further consideration by the Departmental decision-maker with the possible result that such a decision will again become subject to all the appellate processes through which the first decision in this case has passed with a concomitant further period of delay.  I consider this should, if possible, be avoided.  I also consider that the findings made by the Tribunal, in relation to the interrogation of the appellant on his first return to China in 1992, sufficiently indicate that he was then the subject of persecution for political opinion.  I can detect no reason for holding that he is not genuine in his fear of persecution if he returns.  His prior treatment is enough to satisfy the "real chance" objective test.  In all these circumstances I am in agreement with the orders proposed by Einfeld J in this case and support the making of the declaration sought.

THE APPEAL OF PAN RUN JUAN

          It appears to be accepted that this appellant was opposed to the One Child Policy of the Chinese Government.  She alleged that she had been threatened with forcible sterilisation after the birth of her second child.  This claim was not accepted by the Tribunal.  However, the Tribunal did accept that forcible sterilisation was imposed upon mothers of children who were in breach of the policy even if this was not an officially prescribed requirement.  It could occur as a result of a decision at the local level by local birth management committees.

          The Tribunal went on to make other findings leading to the decision that the appellant had not established refugee status.  I set out the relevant parts of the Tribunal's decision as follows:-

     "The Tribunal accepts the independent evidence that forcible sterilisations occur in China.  The Applicant's evidence about the threat of sterilisation is consistent with the independent evidence before the Tribunal concerning the coercive measures adopted by some family planning officers to pressure nationals to be sterilised.

     The Tribunal accepts the independent evidence that the PSB utilises information obtained from a wide range of informers including local authorities.  The circumstances of the Applicant's return to China in 1992 were such that the Tribunal is satisfied that the authorities would have conducted inquiries into the Applicant's background at a local level.  If the local planning authorities were interested in the Applicant at the level she has described, in the Tribunal's view she would have been questioned about the one-child policy upon her return to China in 1992.  The Tribunal finds that the authorities had the opportunity to inform the local family planning authorities of the Applicant's return.  The authorities could have held her in detention to facilitate her transfer into the custody of the local family planning authorities for the purpose of sterilisation at either the point of re-entry into China or on her escorted return to Bei Hai by the PSB.  This lack of interest in the Applicant on her return to China by the PSB and the family planning authorities is not consistent with the level of interest and profile she has portrayed to the Tribunal.  The Tribunal has already referred to the evasiveness of the Applicant concerning her contact with the family planning officials and the threat of sterilisation; as well as her credibility generally.  In the circumstances the Tribunal finds her account on these matters implausible.

          For these reasons the Tribunal finds that the Applicant does not face a real chance of forcible sterilisation on return to China.  Taking into account all the evidence the Tribunal finds that the Applicant's fears of harm are not well-founded.  In view of this finding it is not necessary to make a determination as to whether the treatment the Applicant fears amounts to persecution or is for a Convention reason."

          In my view, this decision cannot stand.  The Tribunal accepts that forcible sterilisations occur in China.  The appellant is considerably in breach of the One Child political philosophy.  It is accepted that she is in political disagreement with it.  She left China within eleven days of the birth of her third child and undertook what would have to be regarded as a perilous journey in a small boat to Australia.  This, in itself, provides eloquent testimony of her desire to escape from the danger perceived by her to threaten herself and her child as a result of the imposition of the provisions of the Policy.  There can scarcely be any doubt that she was in fear of persecutory treatment on account of her political views as to that policy.  Indeed, the Tribunal's finding accepts that she was in fear of harm.  However, the Tribunal finds that that fear was not well-founded because she did not "face a real chance of forcible sterilisation on return to China". 

          This finding appears to have been based simply on the fact that on the occasion of her first return she was not detained or investigated in relation to her then having borne two children.  Whatever may be the reason for that occurrence, it cannot, in my view, lead to the finding made by the Tribunal.  The fact that she escaped detection, punishment and sterilisation on the last occasion cannot logically lead to the conclusion that she would be similarly immune if now returned to China.  If she be now returned she will return in circumstances where it will quite obviously be known that she fled China shortly after the birth of her third child and is now being forcibly repatriated, bringing her child with her.  In my view, it simply cannot be said that in those circumstances she does not face a real, as opposed to a fanciful, chance of being detained and forcibly sterilised.  It seems quite clear that the Tribunal did not direct her mind to the situation that would obtain if the appellant was now returned a second time.

          I find it unnecessary to say any more on this subject.  The facts as found by the Tribunal are sufficient in themselves to warrant the granting of her application.  In my view, the course proposed by Einfeld J is the appropriate one.
In my opinion the declaration sought and consequential orders should be made.

            I certify that the preceding thirty-eight (38) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster.

            Associate:

            Date:   26 FEBRUARY 1996

For the appellant                 Steven Rares SC with Rena Sofroniou and Michael Lawler instructed by Walsh James

For the first respondent          John Basten QC with Neil J. Williams instructed by Australian Government Solicitor

The second respondent made a submitting appearance

Date of hearing                   14 September 1995

Date of judgment                  26 February 1996