FEDERAL COURT OF AUSTRALIA

Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670

MIGRATION – application for a protection visa – review of decision of Refugee Review Tribunal – consideration of circumstances in which exposure of corruption or “whistleblowing” can give rise to a well founded fear of political persecution – whether the material and evidence before the Tribunal raised a case of political persecution

Migration Act 1958 (Cth) Pt 8

Convention Relating to the Status of Refugees 1951 as amended by Protocol Relating to the Status of Refugees 1967 Art 1A(2)

Ramirez v Minister for Immigration & Multicultural Affairs [2000] FCA 1000 - considered

Minister for Immigration and Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) - cited

V v Minister for Immigration and Ethnic Affairs (1994) 92 FCR 355 - cited

Canada (Attorney-General) v Ward (1993) 103 DLR (4^th) 1 – considered

C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366 - cited

Balbin v Minister for Immigration & Multicultural Affairs (Lindgren J, 7 December 1998, unreported) - cited

Vassiliev v Minister for Citizenship & Immigration (1997) 131 F.T.R. 128 - cited

Klinko v Canada (Minister for Citizenship & Immigration) (2000) 184 DLR (4^th) 14 - considered

Guzman v Minister of Citizenship & Immigration (1999) 93 ACWS (3d) 733 - cited

Reynoso v Minister of Citizenship & Immigration (1996) 107 F.T.R. 220 - cited

Berrueta v Minister for Citizenship & Immigration (1996) 109 F.T.R. 159 - cited

Becerra v Minister of Citizenship & Immigration (1998) 153 F.T.R. 275 - cited

Grava v Immigration & Naturalization Service 205 F.3d 1177 (2000) - cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 - cited

Addo v Minister for Immigration and Multicultural Affairs (1999) FCA 940 - cited

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 - cited

Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 - cited

Satheeseumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 – cited

Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 - cited

Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 1022 – cited

ZHENG & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 161 of 2000

JUDGE:          MERKEL J

DATE:            23 AUGUST 2000

PLACE:          MELBOURNE

THE COURT ORDERS THAT the application be dismissed with costs

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

REASONS FOR JUDGMENT

1                     The applicants, citizens of the People’s Republic of China, applied for protection visas after their arrival in Australia.  After their applications were refused by a delegate of the Minister and differently constituted Refugee Review Tribunals they applied to the Court under Pt 8 of the Migration Act 1958 (Cth) to review the most recent decision of the Refugee Review Tribunal (“RRT”), which affirmed the decision of the delegate of the Minister.

2                     The applicants claim to be entitled to the grant of protection visas on the ground that they are refugees as defined in Art 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  Their claim to refugee status was based essentially on the claim by the first applicant (“the applicant”) that he had a well founded fear of being persecuted for reasons of membership of a particular social group or political opinion if he returned to China.  The second applicant, who is the wife of the applicant, relied on the applicant’s claim of persecution for her entitlement to a protection visa.

3                     The applicant’s claim arose from the exposure by him of the corruption of his superior, Mr He, who was the Deputy President and Manager of the Loans Department of the Heping District Branch of the government owned Construction Bank of China.  Although a number of grounds were relied upon by the applicants in their review of the decision of the the RRT, it became clear in the course of the hearing that the only ground of substance related to whether the RRT’s conclusion that the applicant’s exposure of corruption was a criminal, rather than a political, matter involved an error of law on its part.

4                     The applicant also relied upon the ground that, as a “whistleblower”, he is a member of a social group.  The RRT, however, was plainly correct in regarding the applicant’s problems, should he return to China, as being personal to him rather than arising because he is a member of any social group.

The decision of the RRT

5                     The applicant’s claims before the RRT were as follows.  As from August 1986 he worked in the Bank and, as a result of proficiency in his work, he was promoted to the position of deputy manager of the Loans Department in 1995.  A number of companies, without assets, bribed Mr He in order to obtain loans from the Bank.  That practice, which had continued for some time, had led to the applicant’s immediate predecessor being jailed for ten years.  Mr He had been able to escape unscathed as his parents were senior members of the Communist Party.  As the applicant refused to be bribed or to co-operate when corrupt loans were being sought he was bypassed in respect of those loans, which were authorised directly by Mr He.  After the loans had become bad debts Mr He reported that the loans had been arranged by the applicant with the consequence that the applicant was dismissed from his position at the Bank.

6                     In October 1997 the applicant reported Mr He’s corruption to the authorities.  Notwithstanding his report, and a further letter of complaint, the applicant was unable to get any response and no investigation of Mr He was carried out.  However, after Mr He ascertained that the applicant had reported him for corruption Mr He instigated threats against the applicant’s life and that of his family members.  Mr He also fabricated a case of corruption against the applicant who then fled to Australia.  Since his arrival in Australia the applicant has been told that fabricated charges had been brought against him.

7                     The applicant claimed that he feared that his actions would be considered by the authorities as exposing the Communist Party’s crimes and therefore a challenge to government authority.  The RRT did not accept that claim and concluded that the applicant’s case was to be looked at “in the context of his employment problems”.  In that context the RRT made the following findings:

·        the applicant had strong ethical objections to being required to act corruptly and it was such objections, rather than any political opinion, which launched him into making an official complaint against his superior;

·        in the light of the evidence of ongoing government attempts to control official corruption in China the RRT was not prepared to find that there was official sanctioning of such corruption.  Consequently, the mere reporting of corruption by persons such as the applicant would not result in such persons becoming “victims of the state”;

·        the RRT accepted that the first applicant not only did not get a proper response to his complaint but, upon his superior ascertaining that the applicant was the source of the complaint, the applicant, rather than his superior, became the subject of a corruption investigation;

·        the RRT accepted that Mr He’s response of counter-accusing the applicant led the Public Service Bureau to undertake an investigation of the applicant;

·        the unsatisfactory response to the applicant’s complaint and the fact that Mr He had instigated a corruption investigation against the applicant did not mean that the “system” was corrupt or that the government did not offer “whistleblowers” any protection.

8                     The RRT then made the following findings in respect of the applicant’s claim of having a well founded fear of political persecution:

“The Tribunal is not satisfied that the subsequent action taken against [the Applicant] by his corrupt superior and the failure of the appropriate organ of discipline within the municipal government structure to act constitute persecution for reasons of political opinion.  It is not satisfied that the motive behind the instigation of an investigation into [the Applicant] was political.  It was the act of a corrupt man who decided that attack was his best form of defence.

The Tribunal is not satisfied that there was a political ground to the problems faced by the Applicant in his employment.  It is not satisfied that a political ground has been established for alleged subsequent events.”

9                     The RRT then turned to explain why it was not satisfied that the applicant belongs to any particular social group by virtue of having informed on his corrupt superior and concluded:

“Consequently the Tribunal is not satisfied that any Convention ground has been made out in this matter.  [The Applicant’s] problems at work were not political.  They were about banking practices.  The reaction of his corrupt boss was not political but was an attempt to deflect investigation of himself to investigation of the Applicant.  The PSB is the body obligated to carry out investigations and it did so.  The Tribunal is not satisfied that this was for any political reason.  Neither has the Tribunal been satisfied that the Applicant belongs to a particular social group and for that reason faces persecution if he returns to China.

The Tribunal accepts that it is possible that his former boss has attempted to fabricate evidence against the Applicant and that all suspicions of him have not yet been eliminated.  However, it is satisfied that such attempts at fabrication are criminal in nature and not political.  It is not satisfied that he has no recourse available to him and is simply at the mercy of a corrupt system.  It is satisfied that the government, while like most countries, finding it difficult to control corruption, has in place a structure which encourages and permits the investigation of corruption.”

10                  It is plain that in the above findings the RRT rejected the contention put by the applicant that the persecution of which he complained had any political aspect to it.  It is significant that the RRT, when discussing the law in relation to the operation of Art 1A(2) of the Convention earlier in its reasons, discussed the Article in general terms without giving any particular consideration as to what constitutes “political opinion” and whether the exposure of corruption per se can give rise to a well founded fear of persecution on grounds of an actual or imputed political opinion.  As that issue is one of some complexity, and was raised by the applicant, it is surprising that it did not receive some consideration by the RRT.

11                  Ultimately, counsel for the applicant submitted that the failure of the RRT to consider the political aspects of the applicant’s exposure of corruption demonstrated that the RRT erred in law in arriving at its decision.  In particular, it was contended that the RRT failed to deal with the applicant’s case that his exposure of Mr He’s corruption has resulted in him being persecuted by agents of the state because he was perceived to have resisted or not co-operated with those authorities and was therefore seen as a threat to them.  It was argued that the RRT assumed, without determining, that exposure of corruption is a criminal matter that is entirely outside of the Convention.

Exposure of Corruption

12                  The issue of whether the exposure of corrupt activities of officials of the state, or resistance to participating in such activities, can lead to a well founded fear of political persecution has been considered in a number of cases both in Australia and overseas.

13                  The most recent Full Federal Court case to consider the circumstances in which resistance to extortion and exposure of corruption can manifest a political opinion so as to attract the protection of the Convention if persecution follows was Ramirez v Minister for Immigration & Multicultural Affairs [2000] FCA 1000 (“Ramirez”) at [39]-[42].  The Full Court cited, with approval, Minister for Immigration and Multicultural Affairs v Y (Davies J, 15 May 1998, unreported) (“Y”) and another decision of a Full Court in V v Minister for Immigration and Ethnic Affairs (1999) 92 FCR 355 (“V”).  The Court cited the following passage of Hill J (at 367) in V:

“The exposure of corruption itself is an act, not a belief.  However it can be the outward manifestation of a belief.  That belief can be political, that is to say a person who is opposed to corruption may be prepared to expose it, even if so to do may bring consequences, although the act may be in disregard of those consequences.  If the corruption is itself directed from the highest levels of society or endemic in the political fabric of society such that it either enjoys political protection, or the government of that society is unable to afford protection to those who campaign against it, the risk of persecution can be said to be for reasons of political opinion….

It is not necessary in this case to attempt a comprehensive definition of what constitutes ‘political opinion’ within the meaning of the Convention.  It clearly is not limited to party politics in the sense that expression is understood in a parliamentary democracy.  It is probably narrower that the usage of the word in connection with the science of politics, where it may extend to almost every aspect of society.  It suffices here to say that the holding of an opinion inconsistent with that held by the government of a country explicitly by reference to views contained in a political platform or implicitly by reference to acts (which where corruption is involved, either demonstrate that the government itself is corrupt or condones corruption) reflective of an unstated political agenda, will be the holding of a political opinion.  With respect, I agree with the view expressed by Davies J in Minister for Immigration and Ethnic Affairs v Y (unreported, 15 May 1998)) that views antithetical to instrumentalities of government such as the Armed Forces, security institutions and the police can constitute political opinions for the purposes of the Convention.  Whether they do so will depend upon the facts of the particular case.”

14                  In Ramirez at [42] the Full Court also referred, with approval, to Canada (Attorney-General) v Ward (1993) 103 DLR (4^th) 1 (“Ward”) in which La Forest J (at 39), in delivering the judgment of the Court, adopted the interpretation of ‘political opinion’ suggested by Goodwin-Gill, in The Refugee in International Law 1983 at 31 namely, “any opinion on any matter in which the machinery of state, government, and policy may be engaged”.

15                  La Forest J observed in Ward (at 38-39) that international refugee protection may extend not only to where the state is an accomplice to the persecution but also to where the state is not an accomplice to the persecution, but is unable to protect the claimant.  In such cases international refugee protection may arise even though the claimant may be seen as a threat by a group unrelated, and perhaps even opposed, to the government because of his or her political view point, real or perceived.

16                  In C v Minister for Immigration & Multicultural Affairs (1999) 94 FCR 366 the applicant workedin a Colombian nightclub and witnessed parties at the nightclub attended by Mafia leaders and heard conversations between those people and government officials, including police, about such matters as the transportation of drugs and the provision of financial support for the political campaigns of particular people.  The applicant reported these activities to the police through anonymous phone calls.  The RRT concluded that the fact that the applicant was aware of, and reported on, illegal activities engaged in by the police, officials and politicians did not assist his case, as it did not demonstrate that the harm he feared was by reason of political opinion.  The RRT found that:

“…the applicant husband is being targeted as an individual because of what he knows, what he has exposed and what he might expose, and not for the reasons of his actual or imputed political opinion.”

17                  Wilcox J discussed the decisions in V and Y and concluded (at 375):

“Judgment was given in [V] only one month before the Tribunal’s decision in the present case. Perhaps that explains the Tribunal member’s failure to refer to the decision in her reasons. It is more difficult to understand the omission of a reference to Y, which had been decided twelve months earlier and concerned a case with considerable factual similarity to the case of C. Of course, it is not essential for a Tribunal member to refer by name to any particular case; what is essential is that the member act in accordance with the principles enunciated in the relevant cases. However, the failure of the Tribunal member to cite any of Saliba, Ranwalage or Y, when she cited many less relevant authorities, leads naturally to the suspicion that she was unaware of those cases. That suspicion tends to support the belief that, in her reasons, the Tribunal member used the term ‘political opinion’ to refer only to the type of political opinion commonly manifested in Australian society; that is, adherence to a political party or support for its policies. Had she been alive to the point that resistance to systemic corruption of, or criminality by, government officers might be regarded as a manifestation of political opinion, depending upon the circumstances, the Tribunal member would surely have gone on to consider whether C’s conduct should be so characterised. It would have been an inadequate response for her to say, as she did, that C’s fear ‘arises from circumstances personal to him ... unrelated to any Convention ground’. Of course, the fear arose from his own activities but whether those activities were related to a Convention ground was the matter requiring determination.

If, contrary to my impression, the Tribunal member did understand that resistance to systemic corruption and illegality might be a manifestation of political opinion, she failed to indicate why C’s activities did not answer that description. If that failure occurred, it was a contravention of s430(1)(b) of the Act whereby the Tribunal is required to ‘prepare a written statement that ... sets out the reasons for the decision’.”

18                  Wilcox J remitted the matter for re-determination by the RRT.

19                  While exposure of corruption or “whistleblowing” can result in persecution by reason of an actual or imputed political opinion the question of whether the fear of such persecution is well founded depends upon the nexus between the exposure or “whistleblowing” and the political persecution feared.  In Balbin v Minister for Immigration & Multicultural Affairs (Lindgren J, 7 December 1998, unreported) the applicant argued, inter alia, that she was unwilling to return to the Philippines because of a well founded fear of being persecuted for reasons of her actual or imputed political opinion or membership of particular social group, namely, “whistleblowers”.  The applicant was a public service officer and had worked for the Metropolitan Water Works and Sewerage Services in Manila.  She collected evidence against four officers who were notorious for accepting bribes and reported them.  The officers were investigated and three of them were sacked in June 1997. The officers then subjected the applicant to severe harassment. The applicant complained to the authorities but nothing was done to stop the harassment.  The RRT considered that while the applicant's conduct may have been motivated by political opinion, there was no evidence to suggest that the men had any interest in her political opinions.  Rather, they were unhappy with her for having exposed their corrupt practices. For the same reason, the RRT did not accept that the applicant feared harm by reason of her membership of a particular social group consisting of “whistleblowers”.

20                  Lindgren J concluded that the RRT had not erred in not treating the case as one in which the men directed the acts against “whistleblowers” in general, but rather, as one where the men concerned harassed the applicant because of her particular individual acts against them.

21                  It has also been recognised in Canada that exposing corruption can, in some circumstances, amount to an expression of political opinion.  The general position is that opposition to criminal activity per se is not political expression.  However, if criminal activity permeates state action, opposition to criminal acts can become opposition to state authorities: see Vassiliev v Minister for Citizenship & Immigration (1997) 131 F.T.R. 128 (“Vassiliev”) at 133.

22                  More recently, in Klinko v Canada (Minister for Citizenship & Immigration) (2000) 184 DLR (4^th) 14 (“Klinko”) (at 15) the trial judge certified the following question for determination by the Federal Court of Appeal:

“Does the making of a public complaint about widespread corrupt conduct by customs and police officials to a regional governing authority, and thereafter, the complainant suffering persecution on this account, when the corrupt conduct is not officially sanctioned, condoned or supported by the state, constitute an expression of political opinion as that term is understood in the definition of ‘Convention refugee’ in subsection 2(1) of the Immigration Act?”

23                  The applicant and five other businessmen filed a formal complaint with the regional governing authority about widespread corruption among government officials.  The evidence was that the government was taking action against widespread corruption at that time in the Ukraine.  In the year after the complaint was made, 9000 officials were convicted of economic crimes.

24                  The trial judge had found that the Refugee Board had evidence before it that the Ukraine government did not sanction, condone or support corrupt officials and had procured a substantial number of convictions of corrupt officials.  Based on this evidence, the trial judge concluded that it was reasonable for the Refugee Board to find that the State was therefore not “engaged” in the criminal conduct of corrupt police and customs officials.

25                 The Canadian Federal Court of Appeal noted that, in Ward, the Supreme Court accepted that an opinion could be “political” for the purposes of the Act whether that opinion did or did not accord with the official government position.  The definition given in Ward to the words “political opinion” was broad enough to cover all instances of political opinion, express or imputed, attracting persecution, including those where the government officially agreed with the opinion.  The Court noted that the opinion expressed by the applicant in Klinko took the form of denunciation of state officials’ corruption and that led to reprisals against him.  The Court stated that it had no doubt that the widespread government corruption raised by the claimant's opinion is a “matter in which the machinery of state, government, and policy may be engaged” and concluded (at 23) that:

“Where, as in this case, the corrupt elements so permeate the government as to be part of its very fabric, a denunciation of the existing corruption is an expression of ‘political opinion’.”

26                  The Court also noted that just because the government agrees with the “political opinion”, does not mean that it ceases to be a “political opinion” (at 22).

27                  A similar conclusion had been arrived at in Vassiliev.  The applicant had refused to launder money through his business.  The Court noted that refusing to participate in criminal activity, while laudable, has often been found not to be an expression of political opinion.  However, it found that as the criminal activity permeated state action, opposition to those criminal acts became opposition to the state authorities.  The Court concluded (at 133):

“On these facts it is clear that there is no distinction between the anti-criminal and ideological/political aspects of the claimant’s fear of persecution.  One would never deny that refusing to vote because an election is rigged is a political opinion.  Why should Mr Vassiliev's refusal to participate in a corrupt system be any different?”

28                  In Guzman v Minister of Citizenship & Immigration (1999) 93 ACWS (3d) 733 the applicant's claim was based on the likelihood that she would suffer physical harm if she returned to Mexico because of her knowledge of corruption in the Tax Department of the Mexican government.  The Refugee Board held that witnesses to crime, who were perceived to be a threat to criminals, cannot establish the nexus between the reason they fear harm and the definition of a Convention refugee.  This is because as victims of crime, corruption and misuse of official position they cannot establish a link between their fear of persecution and one of the five grounds in the Convention definition.  The Court rejected that holding and applied Reynoso v Minister of Citizenship & Immigration (1996) 107 F.T.R. 220, stating that when state corruption was so endemic that the State was unable to protect those who expose it, such persons can become refugees under the Convention.  Where the State has taken strong action to combat corruption, the actions of an applicant, in exposing corruption, may be less likely to be found to constitute a challenge to State authority.  The Court, however, concluded that the Refugee Board did not undertake the correct analysis, as Mexico may only have been paying lipservice to fighting corruption.

29                  In Berrueta v Minister for Citizenship & Immigration (1996) 109 F.T.R. 159 the decision was returned to the Refugee Board because it had failed to analyse the facts as to whether a challenge to corrupt individuals who had political connections was in fact a challenge to the authority of the government, and whether denunciation of corruption amounted to an expression of political opinion.  The Court said (at 160):

“Corruption is prevalent in some countries.  To decry corruption, in some cases, is to strike at the core of such governments’ authority.”

30                  It has been held that exposing corruption in private companies or by private individuals does not constitute a “political opinion”.  In Becerra v Minister of Citizenship & Immigration (1998) 153 F.T.R. 275 the Board found that the necessary nexus between fear of persecution and one of the Convention grounds was absent.  The Board pointed out that the claim was based on allegations of fraud and corruption only involving the private company of a man holding political office. By refusing to cover a fraudulent activity, the principal applicant did not express political opinion, and there was no evidence that one was imputed to her.  The Court, in upholding the Board’s decision, acknowledged the findings of the Board that the fear of personal vengeance was not a fear of persecution for a Convention reason.

31                  United States’ case law also recognises that exposure of corruption may constitute “political opinion” for the purposes of the Convention.  In Grava v Immigration & Naturalization Service 205 F.3d 1177 (2000) the applicant claimed that he was subject to persecution as a “whistleblower” for his efforts in uncovering entrenched government corruption by his supervisors.  The Board found the “whistleblowing” did not constitute an expression of political opinion. The Court disagreed, stating at 1181:

“Whistleblowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion. However, where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution on account of political opinion.  See Reyes-Guerrero v. INS, 129 F.3d 1241, 1245 (9^th Cir. 1999); cf Marquez v. INS 105 F.3d 374, 381 (7^th Cir. 1997) (writing that political agitation against state corruption might well be a ground for asylum). Refusal to accede to government corruption can constitute political opinion for purposes of refugee status. See Desir v. Ilchert, 840 F.2d 723, 729 (9^th Cir. 1988).  Thus, official retaliation against those who expose and prosecute government corruption may, in appropriate circumstances, amount to persecution on account of political opinion….

The Board erred in concluding that [the applicant’s] whistleblowing could not constitute an expression of political opinion because he did not concomitantly espouse political theory. When the alleged corruption is inextricably intertwined with governmental operation, the exposure and prosecution of such an abuse of public trust is necessarily political.  See Reyes-Guerrero 192 F.3d at 1245. Thus, in this case, the salient question is whether [the applicant’s] actions were directed toward a governing institution, or only against individuals whose corruption was aberrational.

Purely personal retribution is, of course, not persecution on account of political opinion.  Thus, retaliation completely untethered to a governmental system does not afforded a basis for asylum. However, many persecutors have mixed motives. In such instances, personal retaliation against a vocal political opponent does not render the opposition any less political or the opponent any less deserving of asylum.  See Gomez-Saballos v. INS, 79 F. 3d 912, 917 (9^th Circ, 1996).”

32                  The case law to which I have referred demonstrates that exposure of corruption can, in a wide range of circumstances, lead to political persecution.  Thus, exposure of corruption in circumstances where it so permeates government as to become part of its very fabric can quite easily lead to a fear that the exposure, of itself, may be imputed to be an act of opposition to the machinery, authority or governance of the state.  Likewise, refusal to participate in a corrupt state system can also be seen as an expression or manifestation of political opinion as the refusal to participate may be imputed by the authorities to be a challenge to the machinery, authority or governance of the state.  Also, as the recent Canadian decision in Klinko demonstrates, exposure of systemic corruption may be an expression of “political opinion” even if the state is against corruption but is unable to protect the applicant from persecution on this account.  In such a case, however, it may be difficult to establish that the exposure of corruption is a manifestation of a political act such as defiance of, or opposition to, the machinery, authority or governance of the state.

33                  It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested.  This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than as any form of opposition to, or defiance of, state authority or governance.

34                  A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution: see Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 240, 268 and 284.  In each case the question of whether the nexus has been established is a question of fact for the RRT.

Error of law

35                  The applicant’s primary contention to the Court in substance was that, as the RRT assumed that exposure of corruption was not Convention related, it failed to address the case put by the applicant that his exposure of corruption had been perceived to be a political act that threatened or defied the state authorities.  However, for that submission to succeed it is necessary to determine whether the material and evidence before the RRT raised a case of political persecution.  As has been pointed out by Full Courts in Addo v Minister for Immigration and Multicultural Affairs (1999) FCA 940 at [19] and Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at [52]:

“The Tribunal is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.”

36                  It is not sufficient that an applicant or the legal representative of an applicant contend before the RRT that such a case has been raised by the material or evidence; rather the duty of the RRT is to deal with the case actually raised by the material or evidence.  In Paramanathan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 I observed that:

“…the RRT is not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant.”

See also Satheeseumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 at [15] and Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247 at [23].

37                  Thus, the critical question in the present matter became whether the material and evidence before the RRT raised a case that the applicant had a well founded fear of political persecution by reason of his exposure of the corruption activities of Mr He.

38                  The material provided by the applicant in support of his initial claim for refugee status was that his superior, Mr He, enjoyed a privileged position within the Bank because his parents were high ranking officials of the Communist Party in Beijing.  The applicant claimed that the fabricated charges he faces, and for which Mr He was responsible, reflected the manner in which officials of the Chinese Communist Party “and their kinsfolk take advantage of their power to corrupt, to bully and oppress common people”.  Later, in amplifying his claim the applicant was critical of the role of the Communist Party in China claiming that what he has opposed and exposed was part of the Party’s corrupt ruling circle rather than simple “white collar crime”.  Accordingly, he contended that his present fear of persecution could only be produced under the dictatorship of the Communist Party and, as a consequence, he was unable to secure protection of the government and seek justice in a court.  These results were said to flow to him as a sufferer of the Communist Party’s corrupt and degenerate political system.  He expressed a vehement dislike of the Party and its officials, saying that they constitute “a circle with common interests and protect each other”.  The applicant then contended that “exposing their crime has exposed the whole CCP’s crime”.  On that basis the applicant claimed his conduct in exposing Mr He’s corruption was a “political” act resulting from his “political” opinion.

39                  The difficulty with the applicant’s claims is that although he might have viewed his acts as “political” there was no material that suggested that the authorities had viewed, or might view, his acts in exposing Mr He as having any political aspect.  In particular, the material and evidence provided by the applicant was bereft of any basis upon which the authorities might perceive his exposure of his superior’s corruption as a political act in any of the senses described in the cases to which I have referred.  Thus, there was no material or evidence before the RRT that suggested that the Chinese authorities or for that matter, anyone else, perceived the conduct of the applicant to be resistance to, defiance of, or any threat to the authorities or the State or to have any other political aspect to it.

40                  The RRT’s acceptance that the applicant’s complaints to the authorities concerning his superior’s corruption had not been investigated or responded to offered some support for the applicant’s fear that Mr He had instigated the investigation of the applicant.  However, that suggests that Mr He’s influence was such that he was able to divert the corruption investigation requested by the applicant to a corruption investigation of the applicant.  While these matters might constitute corrupt activities by the individuals concerned, the issues raised by them remain personal rather than political in the sense that they relate to Mr He’s personal influence and conduct in relation to the specific events rather than to any systemic corruption being exposed by the applicant.  The fact that the Bank was government owned or that Mr He’s parents were senior Communist Party Officials does not, per se, give the investigation of the applicant a political aspect: cf Chen v Minister for Immigration and Multicultural Affairs [1999] FCA 1022.

41                  Surprisingly, the transcript of the hearing before the RRT did not form part of the Court Book.  Although leave was granted to the applicant and the Minister to rely on extracts from the transcript, the extracts upon which they relied did not appear to take the above matters any further.  The extracts relied upon by the applicant suggested that one of his predecessors at the Bank had been dismissed for exposing corruption on the basis that “he didn’t co-operate with the authority”.  The extract does not disclose who was being referred to by the applicant as “the authority” although the extracts relied upon by the Minister reveal that the applicant had referred to Mr He, who was second in charge of the Bank, as his “authority”.  Thus, the extract relied upon by the applicant appears to relate to his claim that he did not co-operate with his superior in relation to the corruption being promoted by him.

42                  In summary, the material and evidence provided by the applicant in support of his application failed to reveal a causal nexus between his exposure of his superior’s corruption and the political persecution he claims to fear.  Put another way, there is no material or evidence that raises a case that an actual or perceived political opinion has been attributed to the applicant by the authorities as a result of his exposure of Mr He’s corruption or by reason of his refusal to co-operate with Mr He in relation to his corrupt activities.  Accordingly, the material relied upon by the applicant does not suggest that the authorities, Mr He or the officials in the Public Security Bureau responsible for the investigation of the applicant are doing so for any political reason or on the basis that they believe that there is any political aspect to the applicant’s conduct.

43                  Thus far I have only referred to the material presented by the applicant.  However, other material, which the RRT accepted, was to the effect that the Chinese authorities were actively campaigning against corruption and were prosecuting corrupt officials thereby further negating any basis for the applicant’s conduct being perceived by the authorities to be an attack on the State, the Communist Party, or the municipal authorities.  In those circumstances I have concluded that the evidence and material before the RRT did not raise a case that the applicant had a well founded fear of political persecution.

44                  In these circumstances I am not satisfied that the RRT erred in law in arriving at its conclusions that the failure of the authorities to act on the applicant’s complaint and their corruption investigation of him:

·        were not politically motivated;

·        did not arise from any political ground and were not for any political reason; and

·        did not constitute persecution for reasons of political opinion.

Other grounds

45                  Although the applicants contended that there was a breach of s 430(1) and that the RRT had failed to determine certain substantial issues raised by the material I am not satisfied that there was any substance in the matters of which he complained.  In my view the reasons plainly comply with s 430(1) and dealt with the substantial issues raised by the material and evidence before the RRT.

Conclusion

46                  For the above reasons the application must be dismissed with costs.

Associate:

Dated:              23 August 2000