FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multiculutral Affairs [2000] FCA 505

Applicant A v Minister for Immigration and Ethnic Affairs  (1997) 142 ALR 331 applied

chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 applied

HAI YAN WANG v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO. VG 622 OF 1998

HEEREY J

19 APRIL 2000

MELBOURNE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs, including reserved costs.

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

REASONS FOR JUDGMENT

1                     The applicant seeks review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of a delegate of the Minister not to grant her a protection visa.

2                     The applicant is a citizen of the People’s Republic of China (“PRC”) having been born in that country in 1961.  She arrived in Australia on 6 July 1997 on a false Indonesian passport with an Australian visitor visa.  She lodged an application for a protection visa on 15 August 1997.

3                     In her application form she asserted a fear of persecution on the following grounds:

·          Her family were members of the landlord class and were persecuted by the Chinese Communist Party.

·          She was discriminated against, tortured and criticised by the authorities because of her speech and action against the Chinese Communist Party.

·          Her religion was “the Orthodox Eastern Church” and she was regarded as an anti-revolutionary religious person because she kept a close connection with Western people and was deprived of further education and employment.

·          She was married to a man who already had a child and she was not allowed to have her own child.  She was forced to undergo an abortion.

·          She left the country illegally. 

·          She believed that if she returned to China she would be persecuted “because of my strong provocative political opinions, my religious and rebellious activities”.

4                     On 29 August 1997 a delegate refused the application.  The applicant sought review by the RRT which on 8 October 1998 affirmed the primary decision.

The RRT’s decision

5                     The RRT accepted that the applicant’s relatives were adversely classified and mistreated prior to and during the Cultural Revolution.  But the RRT considered that the issue had become irrelevant.  Relying on the Department of Foreign Affairs and Trade (“DFAT”) Country Profile – China (June 1994) and Professor Merle Goldman’s “Sowing the Seeds of Democracy – Political Reform in the Deng Xaoping Era” (1994) the RRT concluded that policies applicable in theperiod before and during the Cultural Revolution had been repudiated by the PRC government in 1977-8.  A Canadian Immigration and Refugee Board Documentation Centre Report (1989) was to the same effect.  The RRT noted that the applicant’s employment history, together with the lack of any ongoing harassment of her, particularly in subsequent campaigns and crackdowns, led to the conclusion that there was not a real chance that she faced persecution on account of her family background if she returned, either for that reason alone or in combination with other reasons.

6                     Turning to her religion claim, the RRT noted that she said she was “a Protestant in a branch of the Catholic Church”.  She did not know who the Pope was, or his significance.  She had given inconsistent versions.  In written submissions she claimed she was detained for two months for pursuing her religion.  At the hearing she said she was only interrogated for two hours some time before 1987.  She variously stated she practised in secret and was a missionary.  The RRT found that she was not a Christian and concluded that her claims regarding Christianity had been a fabrication.  The claims in this regard were not genuine.

7                     The RRT noted the applicant’s claim that she was punished on account of her participation in the 1989 pro-democracy demonstrations during which she stated the supported students, collected donation and signed petitions.  She claims she was interrogated and detained after 4 June 1989 and kept at hard labour for six months.  The RRT accepted that she participated in demonstrations and was interrogated and criticised.  But the RRT noted DFAT advice that many people caught in the security sweep were released when it was determined by the authorities that they were not key players.  The RRT thought that the fact that the applicant worked in the same manner after 1989, albeit at a low level, and lived at the same address between 1989 and 1991, and her departure in 1996 led to the conclusion that she was not of any adverse interest to the authorities after their initial response to question her.  The lack of any action against her in those years, in the RRT’s view, led to the conclusion that the authorities did not perceive her to be a key player or a high profile activist in the 1989 demonstrations and that they had no further interest in her after she was initially punished.  The RRT thought this was consistent with the conclusions drawn by Peter Coyne in “Dissent in China – 1993” a Departmental research paper published in April 1994.

8                     As to the one child policy, the RRT found it not plausible that she was forced to have an abortion in 1993.  PRC government statements as to population policy cited by the RRT indicated that remarried couples who only have one child may have another after their marriage.  If the applicant did undergo an abortion, the RRT concluded that it was voluntary and not at the direction of the population policy and regulations.  The RRT was satisfied that the applicant had concocted her claim about threats from family planning officials.  In any event the RRT referred to Applicant A v Minister for Immigration and Ethnic Affairs  (1997) 190 CLR 225 where the High Court held that fear of harm for not complying with the one child policy is not fear of harm for a Convention reason.

9                     As to her departure from the PRC, the RRT accepted that she paid an agent to secure her departure.  If she obtained false documents it was plausible that she might be punished for breaching the regulations of the PRC.  However that would be a consequence of the law of common application imposed, regardless of any Convention reason.

10                  I turn now to the arguments advanced on the application for review.

“Real chance” test

11                  Counsel argued that the RRT erred by requiring that there be a “much stricter test” than that of a “real chance” of persecution.  The RRT, it was said, did not apply the test expounded by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs  (1989) 169 CLR 379.  Counsel argued that the RRT did not address the actual circumstances of the applicant but rather the social and political affairs of the country in question.  Reports of conditions in PRC generally were given “far greater credence”.  Also the RRT did not make sufficient allowance for the possibility of a change in the policy of the country.

12                  I do not accept this argument.  The RRT correctly enunciated the law as contained in the High Court authorities and applied that law to the facts it found.  Plainly in the course of its fact finding the RRT was entitled to have regard to reports about political and social conditions in the country in question.  But it is simply not correct to say that the RRT did not have regard to the actual circumstances of the applicant.  It considered the account she gave of her life in the PRC, accepted some parts and rejected others, and gave rational reasons for so doing.  It did not use the term “balance of probabilities” and none of its reasoning suggests that it was deciding the issue of well-founded fear of persecution for a Convention reason on the balance of probabilities.

Cumulative effect

13                  Counsel argued that the RRT erred in that it failed to assess the application with regard to the cumulative effect of the experiences of the applicant in the PRC.  In the circumstances of the present case however there is little logic in erecting a separate criterion of cumulativeness which the RRT is required to satisfy.  The applicant’s Convention claims in themselves were quite discrete and called for individual treatment.  Thus the hardships suffered by the applicant’s family in the Cultural Revolution and her involvement in the 1989 demonstrations were accepted as genuine but in each case the RRT was satisfied that the subsequent history of the PRC led to a conclusion that these past events were unlikely to have any practical adverse consequences for the applicant.  On the other hand, her claims based on religion and the one child policy were found to be fabricated.  In the latter case, there was also the legal answer that in the light of Applicant A’s case there could be no persecution on a Convention ground in any event.  Thus different claims were dealt with in different ways.

Future events

14                  Counsel argued that the RRT erred by referring only to past events.  It did not have regard to the future behaviour of the PRC authorities in relation to the past actions and experience of the applicant.  It did not address the possibility that “a spark may ignite”. 

15                  The way the RRT should use past events as a guide to the future was discussed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 as follows:

   “In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the Tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC.  In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do (s 166E(1) of the Act).  It then used those findings as the basis for its conclusion that there was no chance of future persecution.  But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities.

  The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable.  Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.  The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.  In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty.  In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.  In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.  But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”

16                  In my opinion the RRT’s approach was consistent with the law in the passage just cited.  The RRT said (at 13) that the applicant

“… has never been persecuted on account of any Convention reason and she was mildly punished after the 1989 demonstrations but had not been further harassed for Convention reasons.  The Tribunal concludes that she was not motivated to leave the country for any of the Convention reasons.  Even if it is wrong in that respect, the available information leads to a conclusion that any fears of persecution for Convention reasons she harboured at the time she left were not well-founded, as there was not a real chance they might be realised.  Nor has there been any change in circumstances since that time to found a conclusion that her chances of being persecuted in the foreseeable future have increased.”

Too narrow a reading of “persecution”

17                  Counsel contended that the RRT gave too narrow and restrictive meaning to “persecution” with regard to the actions that the PRC authorities would be likely to take if the applicant were returned to China.  Counsel advanced this argument in attacking the RRT’s finding that punishment of the applicant for obtaining false documents, if it occurred, would not be persecution for any Convention reason.  Suffice it to say that the RRT’s conclusion in this regard was plainly correct.

Failure to consider applicant’s position at time of decision

18                  Counsel argued that the RRT wrongly applied the law at the time when the applicant was still in PRC rather than at the time of its decision.  I can only say that a fair reading of the RRT’s decision is that it did, as it was required to do, assess whether the fears asserted by the applicant were well-founded with regard to what might happen in the event of her being returned to PRC.

Low profile

19                  Counsel argued that the RRT erred in finding or assuming that the applicant did not face a real chance of persecution for a Convention reason because her profile as an activist was not high.  It was said that the RRT “talked down” the prospects of persecution of some low profile persons who had actually suffered.  This was however simply a question of fact.

Orders

20                  The application will be dismissed with costs, including reserved costs.

Associate:

Dated:              19 April 2000