MZXNF v Minister for Immigration - [2007] FMCA 1289

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNF v MINISTER FOR IMMIGRATION

[2007] FMCA 1289

MIGRATION – Refugee Review Tribunal – Conduct of Applicant – Whether the Tribunal considered the likely conduct of the Applicant if returned to China

MIGRATION – Refugee Review Tribunal –Whether the Tribunal failed to have regard to relevant considerations.

S395/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473; [2003] HCA 71

Applicant:

MZXNF

Respondent:

MINISTER FOR IMMIGRATION
& CITIZENSHIP

File number:

MLG 1455/2007

Judgment of:

Riethmuller FM

Hearing date:

24 May 2007

Date of last submission:

24 May 2007

Delivered at:

Melbourne

Delivered on:

21 September 2007

REPRESENTATION

Counsel for the Applicant:

Mr Fairfield

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Mr Mosley

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

There be orders in the nature of certiorari quashing the decision of the Refugee Review Tribunal of 10 October 2006.
There be orders in the nature of mandamus requiring the Refugee Review Tribunal to hear and determine the application of the applicant dated according to law.
The respondent pay the applicant’s costs fixed at $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG1455/2007

MZXNF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

Respondent

REASONS FOR JUDGMENT

The applicant applies for judicial review of a decision of the Refugee Review Tribunal of 10 October 2006. The applicant is a citizen of China who arrived in Australia on 18 July 2002. He applied to the department for a protection visa on 24 August 2002. His application for a protection visa was refused following which it was reviewed by the Refugee Review Tribunal who affirmed the Delegate's initial decision.
On 2 December 2005 McInnis FM ordered that constitutional writs be issued for the purpose of quashing the first decision of the Refugee Review Tribunal and directing that the matter return to the Refugee Review Tribunal to be heard according to law. The matter was returned to the Refugee Review Tribunal. Following hearings, the current decision was issued again refusing the applicant a protection visa.
Whilst the applicant was only 15 years of age when he sought a protection visa he is now 19 years of age and therefore he is not in need of a litigation guardian.
The current decision runs for 58 pages setting out the entirety of many of the statements made by the applicant. Errors within the documents created by the applicant (presumably as a result of language difficulties) were repeated without comment, such as a reference to Montesqui as ‘Mandersjus’. Whether this indicates that the Tribunal member did not understand the reference, or simply desired to repeat it accurately is not clear, although one may have expected some acknowledgement of the extent of his knowledge of political philosophy, as a teenager, given the nature of the applicant’s claims.
The Tribunal summarised the applicant's case as:
The applicant’s claims are essentially that he fled the PRC because of his fear of persecution for his political opinion given his previous history with the authorities; in addition he claims that he would be persecuted because the authorities are aware of the fact that he has applied for a Protection Visa. He makes these claims in the context of allegedly having a father who is/was an activist and who, along with his mother, is now in a re-education camp as punishment for their son’s application for asylum. A further overlay to these claims is that the alleged persecution of the applicant occurred when he was 13 and a half years old and he articulated the claims in Australia from the time he was 15 and a half years old.
As can be seen from the evidence above, different versions of the facts have been given at different iterations and there have been attempts to deal with some of the discrepancies in subsequent submissions or in responses to the Tribunal’s s424A letters.
With respect to the applicant's claims for persecution the Tribunal member summarises the applicant's claims:
The applicant, in August 2002, claimed that “last February” some supporters of Falun Gong set themselves alight in Tiananmen square. When the applicant heard that the official explanation for this event was that this was an example of the perverse teachings of Falun Gong and showed that it was a ‘cult’, he did not agree with it and stated at school that he thought it was the work of the Chinese Government. He claims that a few days later the Public Security Bureau (PSB) came to his home, took him to the police station where he was detained for one day without food or water. His parents bribed an officer and he was released. (It should be noted that the Tiananmen self-immolation incident occurred on 23 January 2001, it was shown on television; the applicant stated this and it is confirmed by a number of sources inter alia: “China increases propaganda effort against ‘evil cult’ of Falun Gong” The Irish Times, 1 February 2001;BBC News Tuesday, 30 January, 2001, 16:50 GMT China shows Falun Gong ‘suicide’). He stated that he was expelled from school as a result.
In the applicant’s statement of 14 March 2003 he stated that in July 2001, when he was 14 years old, he was held in a police station for a month until his parents bribed officials to secure his release, this bribe was 20,000 to 30,000 RMB which the applicant says is the equivalent of more than 30 months of his father’s income. He stated he was detained because he ‘published’ leaflets containing a catalogue of discrepancies between the official version of the self immolation of Falun Gong ‘students’ and the official Chinese government version of events. He and his classmates had received an email from Falun Gong which allowed the video of the incident to be watched in slow motion. It was shortly after that that he had been detained, tortured and beaten. He spent a month in custody without being charged. After his release and payment of the bribe the police confiscated his identity card to prevent his continuing his education. He was effectively expelled at the age of 14 from the education system. He was kept under constant police observation and had to report monthly to the police accompanied by his parents.
In the applicant’s 19 March 2003 statement he stated that the police came to his school and accompanied him home; they searched his house while they waited for his parents to return from work; they found Falun Gong documents in his bedroom; they took down all the phone numbers in his family’s address book; he was taken to the police station and kept there for a month; his parents used money to get him out; his ‘family identification’ was taken away at the time of his detention and never returned; he tried to go back to school and was turned away.
At the Tribunal hearing (14 March 2006) he stated that he had not been able to go to school since July 2001 and that he had been detained for one day in February 2001 and for one month in June 2001. He had to report to the police after the June 2001 detention; he stated that they did not keep any record of his reporting nor did they ask him to sign anything; he visited the police station between August and October 2001, after which the reporting conditions were relaxed and he did not go anymore. In January 2002 his home was raided by the police and they took away his parent’s documents and his own list of phone numbers and addresses.
The Tribunal was critical of the applicant's evidence on the basis that the Tribunal member concluded that he had added to his claims as time went on. Ultimately, however, the Tribunal concluded:
In weighing this evidence the Tribunal, having considered the discrepancies, additions and inconsistencies, gives the applicant the benefit of the doubt and accepts the first version of events in his statement to the Department dated 27 August 2002, that being that he, at some time around the self-immolation incident of 23 January 2001, discussed at school his views about the Chinese government involvement in this incident and the police detained him for a day, gave him a stern warning and he was released. The Tribunal does not accept that his parents paid a bribe to have him released nor that his transgression carried with it a two-year labour camp sentence. The applicant was thirteen and a half at the time and he has not claimed any prior transgressions. He was not and is not a Falun Gong practitioner, nor has he claimed that the police suspected him to be such. The Tribunal thus does not accept that he was ever detained for a month, that he had to report to police every month, that there was a police raid on his house in January 2002.
With respect to the applicant's sur place claim (the claim that arose as a result of events in Australia), the Tribunal accepted that he had told a fellow student about his intentions to claim a protection visa and that it would by this time have been clear to the authorities that he had not returned to China. The Tribunal accepted that the authorities in China would be aware that the applicant had not returned as he left with valid documents as a minor and has not returned with the study tour group with which he travelled. The Tribunal concluded that as ‘L--’ a fellow student returned to China prior to the formal application for a protection visa the applicant could only have told ‘L--’ of his intentions to apply.
The Tribunal then concluded that the proposition that ‘L--’ advised authorities in China that the applicant had remained and applied for a protection visa could only be speculation and rejected it. It is somewhat surprising that the Tribunal would not have thought that there was a real risk that ‘L--’ would have disclosed this information given that he was also a child, travelling with the applicant, and would no doubt have been questioned as to the applicant's whereabouts when the applicant did not return to China, even if the Tribunal didn’t accept with the applicant's claims that his parents have been detained following these events. It also seems surprising that the Tribunal would not have considered why the applicant’s parents would not be actively seeking his return to them (if they were not detained), given his age. Ultimately, however, it is a matter for the Tribunal as to what facts they accept or do not accept.
However, whilst the Tribunal concluded that this was speculation and did not accept it the Tribunal member does not appear to have turned his mind to whether or not this was a circumstance which could create a real risk.
The Tribunal decision examined the role of the travel organiser, [TY]. The course of events were somewhat unusual. When the applicant first applied for a protection visa inquiries were made of [TY]. [TY] advised DFAT that the applicant was in fact [WT], and provided a copy of a passport issued to [WT] which appeared to have the applicant's photograph upon it.
The copy of the passport produced by [TY], supposedly that of [WT], had two pages. The first page purported to be the personal information of [WT]. The second page, upon close inspection, is obviously a photocopy of the visa that the applicant obtained in his own passport to enter Australia. The first page of the alleged copy of the passport for [WT] showed that Tao was born on 21 October 1979.
In order to rebut this apparently damaging evidence, the applicant obtained a bone scan from a medical specialist to prove that his physiological age could not have been sufficient for him to be [WT] as alleged by [TY]. This scientific evidence was accepted by the Tribunal. Nonetheless the Tribunal were not satisfied that the applicant was in fact [MZXNF], as named in the passport upon which he travelled, ultimately making no findings as to the applicant's identity.
Significant criticism is made of the Tribunal’s findings with respect to [TY]. In order to explain the date of birth on the copy of the [WT] passport provided by [TY] the Tribunal member speculated that details of the [WT] passport could contain ‘Bogus data about the holder’. However, this is contrary to the specific evidence provided by [TY] that:
…
Their investigations confirmed that [WT] was a genuine identity based on family registration documents under the documents of [MZXNF] and other identities who had applied for passports (all using photos of [WT]) were not genuine.
If [TY] was to be accepted it appears clear that the applicant could not be [WT] who is ‘a genuine identity based on family registration documents’.
The applicant also claimed that he had not signed various documents to obtain the travel documents that he required and sought to have handwriting analysis undertaken. The Tribunal did not proceed with this course, reasoning that even if his claim that it was not his signature which appears on certain declarations were accepted that would not entail accepting that the company signed those documents on his behalf. This reasoning process appears to be directly contrary to the only other evidence on this issue. The Tribunal had obtained from the company evidence that:
The company called all the applicants together and guided them in completing the application forms but applicants completed and signed the forms for themselves. Miss Zhang advised she met [MZXNF] in person and had sighted him filling in the application forms.
It also is clear, from the material, that [TY] had previously been a subsidiary of the Tianjin Public Security Bureau and operated out of the Public Security Bureau building, until the year 2000. The Tribunal concluded:
The Tribunal has considered whether the applicant faces a real chance of persecution from [TY] (a non-state agent) due to the embarrassment and difficulties which he could potentially have caused them by overstaying, however it finds that the chance of this occurring is remote and insubstantial as the company would have no further interest in the applicant given the actions it has already taken to distance itself from the applicant’s actions.
The above discussion leads the Tribunal to conclude that the PRC authorities are aware that the applicant has not returned but it does not lead to the conclusion that they are aware that he has applied for a Protection Visa.
At pages 55 to 56 the Tribunal considered the possibility that ‘L--’ had informed the PRC authorities that the applicant had applied for asylum in Australia was speculative and concluded that the applicant's profile was not such as would attract adverse attention of the authorities should he return to the People's Republic of China for reasons of having applied for refugee status in Australia.
I note that in the judgment of FM McInnis his Honour said:
[37] In this case there is clear evidence arising from the examination of the documents referred to earlier in this judgment which would justify departure from reaching conclusions based solely on country information. Although the Tribunal does make findings in relation to the suggestion that the authorities are “keen to have the Applicant return to China”, the extract from the decision in my view reveals that in rejecting that as a factor to take into account the Tribunal refers to its “previous findings” and then concludes that although the Chinese authorities might be keen to see the Applicant returned this does “not mean he is at risk of serious harm by them”. It then goes on to find, “on the contrary it may be the case that they simply wish to see a Chinese National minor returned to the care of his parents in China”. That somewhat innocuous conclusion underlines the total failure in my view of the Tribunal to address as an integer of this claim, namely the use of the forged documents in order to undermine any asylum claim of the Applicant and further at least an attempt to assess those documents and the motive for the use of those documents. Further, the Tribunal does not appear to analyse the source of that material and to consider the link between the company and the government. All of those factual matters could and should have been explored as part of the Tribunal’s investigation into what I regard and find as an essential claim in this case and/or a component or integer of the claim. Hence I am satisfied applying the authorities referred to and relied upon by the Applicant that in this case that amounts to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction of the kind that would lead me to conclude that there is indeed jurisdictional error.
FM McInnis had identified many of the difficulties with the [TY] documents in paragraphs [10] and [11] of his decision where his Honour said:
[10] It is evident from the document set out above in full as it appears in the court book has certain errors. Nevertheless, it is clear from that document that a significant allegation had been made by that company which has connections with and/or approval from relevant government departments in China. The allegations against the applicant in effect claim that he was not who he said he was but rather another person, namely, a 24‑year‑old man named WT, and that the company's researchers had discovered this. It is clear and I accept that that assertion by the company is incorrect and at the very least misleading.
[11] One might be tempted to conclude it is also mischievous as a simple examination of the annexed passport with that statement reveals that the first page of the document appearing at court book page 96 depicts a name and date of birth which is not that of the applicant, but perhaps more importantly a different passport number to the second page also attached to the statement appearing at court book page 97 which has the correct passport number of the applicant and would appear to be a page which is accurately taken from the applicant's own passport.

A cross‑reference can be made of the two documents by comparing what is reproduced in the court book at pages 97 and 98 to what appears to be and has been conceded by the respondent to be the actual passport of the applicant appearing at pages 28 and 29.
The Tribunal went on to conclude that the applicant was 14 years of age when he made the remarks at school that were critical of the government of China. The applicant has not engaged in political activities since he arrived in Australia. The Tribunal noted that he is now 19 years of age. The Tribunal concluded that the applicant was not a politically active person, however it did not question his commitment to his beliefs in democracy and political freedoms. The Tribunal concluded, after reference to applicant S395/2002 v Minister for Immigration and Multicultural Affairs (2003), 216 CLR 473; [2003] HCA 71, that:
The extrapolation of this attitude into the reasonably foreseeable future does not lead the Tribunal to conclude that the applicant would, merely for holding these beliefs, face a real chance of persecution by the authorities for one of the reasons stipulated in the Convention.
It is interesting that despite a great deal of hypothesising and speculation in the proceedings before the Tribunal some fundamental features of the case were not explicitly explored. For example, why an intelligent and articulate 14 year old child who was sufficiently adept to obtain a place on a study tour to Australia would choose to apply for a protection visa, effectively abandoning his parents, family and all that he knew, if he did not hold genuine fears about his future in China. Similarly, there is no real discussion of the issues relating to memory and experience of children compared to adults: the events of this application have spanned nearly a quarter of this person’s life.
The grounds of the application are as follows:
1. Failure of the Tribunal to act judicially, in that the Tribunal failed to act rationally and reasonably in its fact-finding duty and in its duty to reach a conclusion as to its state of satisfaction on the applicant’s claims.
a.    A crucial issue before the Tribunal was the applicant’s claim to be [MZXNF], born 23 February 1987 in Tianjin, aged 15 years at the time he left the study group with which he had arrived in Australia and, very shortly after, made an application for a protection visa.
b.    An agency involved in the applicant’s process by which he arrived in Australia as a student (the agency Tianjin [TY] Exit Affairs Service Co Ltd, or, in short, [TY]) gave documents to a delegate of the first respondent (the Minister) which alleged that the applicant was not who he claimed to be, but [WT]. The agency [TY] also claimed that the applicant, with “true identity in the name of [WT]”, had as was shown in a copy of a passport also provided by [TY] to the delegate, an ID card of a given number and was born on 21 October 1979 in Shandong.
c.     The applicant claimed that he did no longer have the passport with which he entered Australia, because it had been retained by the people with whom he had travelled to Australia and in whose care he had been.
d.    The applicant had a copy of few pages of his passport, which he provided as part of his application for a protection visa. The passport is in the name [MZXNF], shows that he was born on 23 February 1987 in Tianjin, and shows no ID card number.
e.    The applicant’s claim to be a youth, of a given age, was confirmed by a bone scan test which the applicant voluntarily undertook when the issue of his identity (and, related, the issue of his age) was first raised with him by a delegate of the Minister.
f.     In China, ID cards are only given to people over the age of 16.
g.    The agency [TY] had been able to provide to the delegate of the Minister a copy of the passport of [WT], and also a copy of the visa pages of the passport of the applicant, the passport in the name of [MZXNF].
h.    The agency [TY] also undertook investigations “to check the documents for [WT]. Their investigations confirmed that [WT] was a genuine identity based on family registration documents…”
i.     There was no logical of probative basis for the Tribunal to accept (at least impliedly) that the applicant was [WT] and not who he claimed to be, further to impliedly accept the account of the agency [TY] that the applicant, being in reality [WT], “had made a number of applications for passports using various identities” (ie, the applicant had made fraudulent applications for passports), while at the same time concluding that the evidence of age could be disregarded because that evidence, disproving that the applicant was 24 years old (as [WT] was) “does not preclude the [WT] passport containing bogus data about the holder.”
j.     The Tribunal’s finding that the applicant was not who he claimed to be is vitiated by jurisdictional error.
2. Failure to deal with a sur place claim of the applicant.
a. The applicant’s claims included a claim of fear of persecution by the Chinese authorities, by reason of him having absconded while in Australia and then making an application for a protection visa.
b. The applicant’s claims also included a claim that his parents had been made to suffer as a result of him having absconded and making a claim for a protection visa.
c. There had been some enquiries, around November and/or December 2002, made by the diplomatic post in China, such enquiries at the request of a delegate of the Minister, when the issue of the applicant’s identity was first raised by the agency [TY] with the delegate of the Minister.
d. The applicant claimed, in his application for judicial review of the decision of the first Tribunal, that he had two sur place claims, one arising from his actions in absconding while in Australia with a study group and making an application for asylum, the second arising by the actions which the agency [TY] (on the applicant’s claim, part of the Chinese authority structures) had engaged in, including the provisions of a statement to the delegate of the Minister, in the attempt to have the applicant returned to China.
e. In VWHX v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1175, Federal Magistrate McInnis upheld the applicant’s contention that the first Tribunal had failed to deal with the second sur place claim.
f.   Notwithstanding the above context and claims of the applicant of fear of persecution and of fear for his parents, the (second) Tribunal indicated to the applicant that it intended to “proceed to inquiries with [the agency [TY]], both in China and/or through their representatives in Australia”.
g. The Tribunal was enjoined by the applicant from proceeding with those enquiries. The applicant re-iterated that he “strongly believe[d] that [TY] has association with the Chinese Authorities and I am worried that this will make my parent’s situation worse…”. The applicant, by his migration advisor, also referred the Tribunal to, inter alia, the fact of a disclosure not being deemed authorised under s.336F of the Migration Act 1958 (Cth) when it falls within the circumstances of sub.(3).
h. Notwithstanding all of the above, the Tribunal caused further enquiries to be made in China, including further direct enquiries with the agency [TY] regarding the applicant and his identity (true or alleged).
i.   In the circumstances, the Tribunal itself generated the conditions of a further, third sur place claim.
j.   This claim was not dealt with by the Tribunal. Nor, as a matter of law, could it be dealt by it, as a fair and impartial tribunal under a duty to act judicially, in the circumstances where it was the Tribunal’s actions that caused it to eventuate.
k. The Tribunal’s failure to deal with the applicant’s sur place claim constitutes jurisdictional error.
3. Misconstruction of the test in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, as requiring that an applicant for protection (especially one in the position of this applicant, being a youth attending school in Australia and under the care of a foster parent) engage while in Australia in conduct “which could be considered to be of a political nature against the [People’s Republic of China] or political activity in general” to show that he fears persecution by reason of the threat if he were not to remain silent on being returned to the country from which he fled.

Ground 1

It appears to me that Ground 1 is really a claim that the Tribunal failed to have regard to relevant material before it. In support of ground 1 the applicant attacks the findings of the Tribunal with respect to his identity. Identity was the first question that the Tribunal had to answer, at least for the purpose of identifying that the applicant was from the People's Republic of China.
Based upon the [TY] material the Tribunal found on a preliminary basis that the applicant was [WT]. This proposition simply could not be sustained in the light of the medical evidence of bone scans which established that the applicant was not old enough to be [WT]. The weaknesses of the [TY] documents were clearly identified by Federal Magistrate McInnis, but do not appear to have been referred to again by the Tribunal.
The Tribunal has not referred to the evidence of [TY] that [WT] is a genuine identity based on family registration documents, indeed to refer to that evidence would destroy the explanation that the Tribunal has relied upon to avoid the conclusion that the [TY] advice with respect to [WT] false. This is a significant failure to have regard to relevant material before the Tribunal.
Indeed, even an officer of the department, when considering an initial cancellation of the applicant’s visa, recorded in March 2003 that ‘cancelling [MZXNF]’s visa based solely on a photocopied PPT didn’t sit well with me, particularly when the allegations were coming from a company that had a lot to lose if members of their groups were not returning as planned’ (see Court Book 98).
Whilst not expressly stated by the Tribunal, the applicant suggests that the Tribunal has, in effect, never overcome an initial speculation appearing at Court Book 164 that:
… It seems what has happened is that [WT] presented with [MZXNF]’s papers and assumed his identity from the outset. As [MZXNF] was under 16 he is not required to have a national identity card. It seems that [WT] has obtained the family registration documents for [MZXNF] (presumably via a relative, if not the parents. With this he was able to obtain a PRC passport under the name of [MZXNF]. …
A central element of this claim was his evidence as to his identity as ‘[MZXNF]’, a frightened school boy, and not an opportunistic [WT]. The issues with respect to identity are central to the applicant’s case. The Tribunal has erred in its tasks in examining this issue. I therefore find this ground established.

Ground 2

The applicant categorises his sur place claim as being three separate sur place claims and as follows:

(1) the claim of fear of persecution based upon fears of the reaction of the Chinese authorities to his application for a protection visa and

(2) a claim based upon his claims that [TY] had engaged in misleading or false claims in order to have him returned to China; and

(3) that the Tribunal made further inquiries of [TY] as to his identity contrary to the applicant's wishes.

To my mind the sur place claim is in substance only one claim, and each of the above matters significant factual elements or circumstances relating to the sur place claim. The sur place claim is based upon his fear of persecution as a result of his absconding from the study tour and seeking a protection visa. In this regard he fears persecution from the Chinese authorities, and relies upon each of the above matters to establish the reasons for his belief that the authorities would be aware of his protection visa claim, and (at least with respect to any potential findings that [TY] has provided misleading or false documents to obtain his return) that there are circumstances that show that he is of real interest to the Chinese authorities and at real risk of persecution in the future.
Whether there be three sur place claims, or one arising from his conduct in attempting to leave China. Each of the matters referred to are important incidents of this claim. Failure to properly consider these matters is a failure to properly consider the claim as made.
The issues appear to me to have been considered by the Tribunal. Whilst many of the findings were the subject of forceful criticism on the merits, the Tribunal nonetheless considered the factors relating to the sur place claim. Most significantly, the tribunal found, that even if the claims with respect to the sur place issue were correct, the Tribunal did not accept that filed asylum seekers are not an issue of concern for China, in the absence of other reasons for people to be of interest.
Ultimately I am not satisfied that the applicant has established this ground.

Ground 3

The substance of the argument under ground 3 is the Tribunal have cast the case in terms of the applicant either being politically active, or simply holding beliefs, which presumably no one would be aware of. The specific conduct of the applicant is not referred to, nor is his likely conduct if returned to China, given the vastly different socio-political conditions.
This appears to overlook the whole basis of the claim: that the applicant did suffer in the past merely for holding these beliefs and speaking his mind. There is nothing in the Tribunal's findings to suggest that the applicant would not continue to behave in the manner that he did in the past if he were to return to China.
The Tribunal appears to have converted the requirement to consider whether or not the applicant would be at risk having regard to his own particular behaviour and proclivities into a question of whether or not he was a ‘politically active person’ or merely ‘held the beliefs internally’.
The Tribunal accepted the genuineness of the applicant’s political beliefs, but approached the case on the basis of deciding whether the applicant would be at risk of persecution ‘merely for holdings these beliefs’.
The proper application of this test requires more than simply determining whether or not a person is ‘politically active’ but rather, requires an analysis of what their behaviour is likely to entail in the future and whether or not that behaviour would leave them at risk. This is all the more difficult in a case involving a child of 14 at the time of the original behaviour who, on any view of the material, was a precocious child when it came to political issues (including references to Montesqui and discussions of the Doctrine of Separation of Powers), and who, on a psychological report before the Tribunal is clearly a very intelligent young man (he is now studying engineering at University, supported by foster parents).
In this case the Tribunal accepted that he had expressed his political opinions about the Chinese government and the events of January 2001 in a way that led him to be detained by the police, at a time when he was only 14. If the statements of a 14 year old are enough to lead to detention by the police they were surely more than schoolboy prattle. He is much older and better educated now, with genuine political beliefs supported by a level of knowledge which would surpass most adults in democratic societies. In the unusual facts of this case it is not sufficient to simply say that he is not ‘politically active’ here in Australia, particularly given his age and background.
The question that must be answered is whether he will express his political views openly, just as he did when he was 14, and if so whether they will have far greater impact coming from an intelligent and well educated young man now of an age where he could be considered capable of providing a leadership role. Persecution is not limited to those who are ‘politically active’, but can extend to those who are prepared to voice their dissent openly, cogently, and without fear of authority.
Indeed for many regimes, it is the preparedness of ordinary people to openly ‘stand and be counted’ that is a greater risk than extremists or activists, particularly if they have community respect as a result of high reputation or education. It is also trite to acknowledge that there is nothing so powerful as oppression or injustice to stir the hearts of decent people who would otherwise lead quiet lives.
In this case the Tribunal has failed to properly consider this question as a result of collapsing the test down to a test of whether the applicant was ‘politically active’ in Australia. The proper application of the test requires an exploration by the Tribunal of what may occur if the applicant must return to China. This is much more difficult when the past was when the applicant was only a child, and the future is the prime of his life. However, it is all the more important that this issue be carefully and thoughtfully explored.
I therefore find for the applicant on this ground.
In light of my findings on the above issues I need not explore the conduct of the respondent in making enquires as to the applicant with authorities in China. This is a matter concerning the administration of the department that is not appropriate for me to comment upon. Although clearly this must be a factor that the Tribunal would take into account in the future in assessing the applicant’s claims.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Deputy Associate: Robin Smith

Date: 21 September 2007