SZGVQ v Minister for Immigration

Case •

[2006] FMCA 1005

•

27 July 2006

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGVQ v MINISTER FOR IMMIGRATION & ANOR [2006] FMCA 1005
MIGRATION – RRT decision – Chinese person claiming persecution for political opinions – Tribunal accepted past incident of persecution – found that police were no longer interested in applicant – failed to address risk of future similar incidents – matter remitted.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.36(2), 483A, Pt.8

Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Minister for Immigration & Multicultural Affairs v Respondents S152/2003(2004) 205 ALR 487
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30
Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392

Applicant: SZGVQ
First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Second Respondent: REFUGEE REVIEW TRIBUNAL
File Number: SYG1978 of 2005
Judgment of: Smith FM
Hearing date: 6 July 2006
Delivered at: Sydney
Delivered on: 27 July 2006

REPRESENTATION

Counsel for the Applicant: Applicant in person
Counsel for the First Respondent: Mr T Reilly
Solicitors for the Respondents: Phillips Fox

ORDERS

  1. Order that a writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 23 June 2005 in matter N05/50570. 

  2. Order that a writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 6 January 2005. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1978 of 2005

SZGVQ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

  1. This is an application filed on 26 July 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 2 June 2005 and handed down on 23 June 2005.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant. 

  2. The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but this does not affect the continuance of this proceeding (see Sch.1 cl.41, and Acts Interpretation Act 1901 (Cth), s.8).

  3. Section 483A gives the Court the jurisdiction of the Federal Court under s.39B of the Judiciary Act 1903 (Cth) in relation to migration decisions. This is subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.

  4. In its statement of reasons, the Tribunal accepted that the applicant, a national of the People’s Republic of China, had in April 2004 been detained by the Chinese PSB for 30 days, interrogated, “beaten, blindfolded and kicked and prodded in a painful way”, and then released upon reporting conditions.  It accepted that this was a result of his public activities seeking to organise an unofficial farmers’ association, and that he had also previously been detained for supporting the complaints of local farmers.  It accepted medical evidence confirming scarring on his body as a result of the mistreatment.  It accepted that he left China with a fear of further harm in July 2004 using a passport showing a false name, and (implicitly) that he still had a genuine fear of persecution on the ground of his actual and perceived political opinions if he returned to China. 

  5. However, the Tribunal concluded that he did not have a well‑founded fear of such persecution, by finding “the chance remote that, if he returns, the police will again ill treat him to the extent that that treatment would amount to persecution”.  It also found that “such problems as he may have with the police are confined to [his town] area”, and that “he could move away from that area to another town or village” and that this “would be a reasonable option”. 

  6. As I shall explain below, the reasoning followed by the Tribunal leading to these findings causes me a concern whether its significant findings were reasonably open to any decision‑maker properly applying the “real chance test” to the evidence accepted by the Tribunal.  It might also be argued for the applicant that its reasoning might cause a reasonable apprehension that the Tribunal considered that evidence with a mind “not open to persuasion and unable or unwilling to evaluate all the material fairly” (c.f. NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs(2004) 214 ALR 264 at [115], and NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 77 at [37] and [171], also [9], [56], [106], [168] and [172]).

  7. However, I have not found it necessary to reach conclusions on these issues, since I have decided that the Tribunal confined its consideration of the applicant’s history by addressing a legally insufficient question. It asked itself whether the applicant might suffer further mistreatment arising from the 2004 events which caused the applicant to flee China, but failed to address the real issue posed by s.36(2) of the Migration Act and the Convention definition of “refugee”. This was whether, in the light of those events, there was a real chance that the applicant might in the future suffer further persecution anywhere in China as a result of his continuing to demonstrate political opinions inimical to the current government of China. If it had asked itself that question, in my opinion, there must be real doubt whether it would have been open to the Tribunal to be satisfied that there was no real chance that the applicant would not be persecuted if he returned to China, or to find that he could avoid persecution by relocation within China. The Tribunal therefore failed to perform its task of reviewing the delegate’s decision according to law, and its decision is affected by jurisdictional error.

  8. Before explaining this conclusion further, it is necessary for me to identify the terms in which the applicant presented his refugee claims to the Tribunal.  This is because the respondent Minister contends that the applicant made no claim to be generally at risk of persecution in all parts of China by reason of his political opinions, and that the Tribunal therefore did not need to address that question.  As I shall explain, this submission fails because it is factually incorrect – the applicant did claim to fear persecution in all parts of China by reason of his political opinions.  

  9. The applicant’s application for protection visa was supported by a statutory declaration narrating the events leading to his departure from China.  He said he had worked in an agricultural machinery factory run by “my friend” Z, whose regular customers and friends were the local farmers.  In October 2003, he had “decided to call on those farmers and their relatives, as many as possible, to have a public demonstration in front of local government” in his town in protest at the unfair treatment of a local farmer.  Nearly 200 people attended, and numbers increased as the demonstration continued for three days.  He and Z “were elected as the representatives to have negotiation with relevant officials of the local government” to redress this grievance, and also to demand punishment of corrupt officials and “to respect and protect basic human rights of those ordinary farmers in the future”.  The government officials agreed to “terminate the unfair proposal” in relation to the farmer, but “refused to clearly response” to their broader demands. 

  10. Arising from this event, the applicant “won very good reputation among local people, especially among those ordinary farmers, even if it was very limited”.  It was decided to set up “our own farmer’s union”, and “naturally, Z and I became major organizers”.  They visited several government authorities, “even the PSB”, to seek legal status.  His declaration continued:  

    h)However, through totally three month hard‑working from January 2004 to March 2004, Z and I, as well as many local farmers who shared the similar political opinions with us, have eventually realized that it is definitely impossible for us to establish our own farmer’s union, even if we should have such a right according to the constitution in the country.  Without any choices, Z and I had to organize another demonstration, solely for the purpose to have a legal permit for establishment of our own farmer’s union, because it was the common right given by the Chinese constitution.  The demonstration was started from 5th April 2004, and it has unexpectedly obtained wide support from local farmers and their relatives.  During the following one week, nearly a thousand people, not only from my village but also from other nearby villages, came to join in our demonstration in front of local government in [town]. 

    i)In the midnight of 6th April 2004, my home was suddenly surrounded by many policemen.  My home was thoroughly searched first and then I was taken to the detention centre of the PSB in [town], where I saw that Z was also there.  From then on, both Z and I have been subjected to interrogation many times, and the PSB forced to us to admit that we had organized anti‑government demonstration in order to set up anti‑government organization.  However, it was firmly refused by us, because we believe, even today, that we have the legal right given by the Chinese constitution to set up our own farmer’s union.  Although we were subjected to physical torture and mistreatment, we never gave up. 

    j)In order to save me out of the detention, my families spent a lot of money and tried to find some guanxi (“contacts”).  However, it did not work for a long period.  From the later part of April 2004, I began to suffer from serious illness in the detention centre, and even lost consciousness sometimes.  I was eventually released on bail for medical treatment on 11th May 2004, after my families spent RMB 100,000 yuan.  However, I was required to report to the PSB once a week, and prepared to accept investigation by the PSB at any time. 

    k)My families and I realized that it would be the only chance for me to escape from persecution.  Only two weeks after I was temporarily released, I secretly left my home through a kind train driver L, and went to [city], where was far away from my hometown.  In [city], L introduced me to know a person W who was able to assist people to leave country.  I really did not know exactly how W organized my trip to the overseas, but he did successfully assist me to leave the country the end of July 2004 with different personal materials. 

    l)I have been put on the black list of the PSB since I have been found not to report to the PSB on time.  My wife, my parents and even some friends have been subjected to investigation by the PSB.  The PSB has clearly notified my families during the investigation that I have been regarded as the most important leader in organization of the anti‑government demonstration for the purpose to establish anti‑government organization.  Z has been sentenced to 3‑year labor reform even if he has put all of responsibilities on my shoulder. 

  11. A delegate refused the application on 6 January 2005, stating: 

    Although the applicant has had the assistance of a migration agent in preparing his application, his statement is uncorroborated and much of the information he has provided is broad, lacking in relevant detail and credibility.  Balanced against this is credible country information which indicates that nationals who depart the PRC legally, have been thoroughly vetted by security officials. 

  12. In his application for review lodged on 8 February 2005, the applicant pointed out that he had claimed to have a different name to that shown in his passport, and said:  

    The reason why I was able to leave the country is because that my personal details have been changed, including my name.  In other words, it would have definitely been impossible for me to leave the country if I had used my genuine name, because I have been on the black list of the PSB. 

    To corroborate this, he presented various identity documents in his true name. 

  13. The applicant attended a hearing by the Tribunal on 19 April 2005, where he presented documents to corroborate his being held in detention in May 2004.  A description of his oral evidence is given by the Tribunal, but a transcript is not in evidence.  He gave more details concerning the events described in his statutory declaration.  This included a description of his mistreatment by the PSB: 

    I asked him how he had been treated while detained last year. He responded that they had twisted his arm, held a gun to his head, stepped on his back when they first entered his home and searched his house. They had taken him to [town] PSB. He was there for over 30 days. He was questioned often, and told he was an organiser of an anti‑government demonstration. They questioned him as to who had asked him to do it, and he had told them that the Constitution allowed people to organise like that. They did not accept that was so. He stated that he was beaten, blindfolded and kicked and prodded in a painful way. He had had medical treatment after his release. His health was not good and his back was still painful now. He had scars on the front of his right thigh and on his chest.

  14. He also told the Tribunal that he had been told by his wife that Z had been released from detention after being told by his own wife that the applicant was in Australia.  The applicant said that his wife told him that “he had passed the blame on to the applicant”, and he thought that this was the reason why Z was released.  

  15. Subsequent to the hearing, the Tribunal requested, and was given, medical evidence corroborative of the injuries claimed to have been suffered by the applicant. 

  16. The Tribunal also sent the applicant a letter inviting him to comment on the following: 

    From the evidence you gave at the Tribunal hearing, and recent independent evidence that how the law is applied in China depends very much on the locality and the whims of local officials, the Member infers that your problems with the local police were (and would remain) confined to the [town] area.  The Member must consider whether it would be reasonable for you to move to live somewhere else within China.  She assumes that in any case, because of the passage of time, you have lost your job as a salesman and will have to find alternative employment.  The Tribunal has evidence that it is not difficult to move to a new town in China, so long as the town is relatively small. 

    Also, there is independent evidence that demonstrations against negative effects on agricultural communities are regarded as acceptable by the authorities. 

    (The source of the independent evidence is an expert on China, Dr. David Goodman, of the Institute for International Studies at the University of Technology, Sydney). 

  17. In response, the applicant sent a nine‑page letter with extracts from a December 2004 report from Human Rights Watch.  This referred to a “widening crackdown on both intellectuals and rights advocates in China”.  It illustrated a conclusion that “the government appears to be expanding its crackdown on those defending the interest of farmers”, and referred to action taken against labour activists.  It included this passage: 

    Chinese law prohibits workers from organizing independently.  Only one organization, the All China Federation of Trade Unions (ACFTU), can legally represent workers, and it is under the control of state authorities.  It has never spoken out against the laws and regulations routinely used to justify putting independent labor activists in prison. 

    Human Rights Watch found that the Chinese government’s response to all three protests was relatively restrained, in part perhaps because labor unrest threatens the legitimacy of the Chinese Communist Party, and authorities fear an even broader backlash if they crack down too hard.  In their handling of the protests, however, Chinese officials violated fundamental rights to free association, expression and assembly.  Authorities refused to issue permits for demonstrations, threatened employed workers with loss of pay if family members took part in rallies, and placed restrictions on media access to the affected areas.  Security forces physically assaulted protesters, seizing many for short periods of time and refusing to release them until they promised to forego further protests. 

  18. The applicant’s letter concluded: 

    Again I have to respect the information from Dr. David Goodman, an expert on China, at the University of Technology, Sydney.  However, the above‑mentioned independent information has provided one fact – No matter where I stay in China, I must be subjected to persecution, because the Chinese government has never ever tolerated any political dissidents or anyone like me who dare to protest against it. 

    Apart from above‑mentioned independent country information, my fear of persecution on return have strongly supported by following facts-: 

    -Especially, I have been put on the black list of the PSB. 

    -My wife, my parents and even some friends have been subjected to investigation by the PSB. 

    -The PSB has clearly notified my families during the investigation that I have been regarded as the most important leader in organization of the anti‑government demonstration for the purpose to establish anti‑government organization. 

    -Mr. Z has been sentenced to 3‑year labor reform even if he has put all of responsibilities on my shoulder. 

    In summary, it is definitely impossible for me to move to any new town in China, no matter how big it is, because I have been on the black list of the PSB system, which widely spread every corner in the country, and regarded as the most important leader in organization of the anti‑government demonstration. 

    ·Moreover, based on the independent information provided by Human Rights Watch – China: Crackdown on Activists Widening Another Farmers’ Rights Advocate, Intellectuals Detained.  I never accept that “… the demonstrations against negative effects on agricultural communities are regarded as acceptable by the PRC authorities …”

    The key issue is that I have not simply been regarded as a person to get involved in “… the demonstrations against negative effects on agricultural communities …” instead, I have been regarded as the most important leader in organization of the anti‑government demonstration for the purpose to establish anti‑government organization, which is the main reason why my political activities have not been acceptable by the PRC authorities and particularly come to special attention of the government. 

  1. The Tribunal’s own researches confirmed the Chinese government’s repression of illegal union activity, “including the detention and arrest of labour activists”, and treating “worker protests as illegal demonstrations”.  It referred to the absence of a union or any other similar organization for the “enormous rural labour force”, and to demonstrations held in urban and rural areas.  It said: “Ministry of Public Security publications indicated that the number of demonstrations continued to grow and that protesters were becoming more organized.  Demonstrations with political or social themes were often broken up quickly and violently”. 

  2. In relation to the use of arbitrary arrest and detention, the Tribunal’s discussion included: 

    According to the U.S. State Department report (2005) arbitrary arrest and detention remained serious problems during 2004.  The law permitted authorities, in some circumstances, to detain people without arresting or charging them, and they could be sentenced administratively to up to 3 years in re-education-through-labour camps and other administrative detention facilities without a trial.  According to 2003 official government statistics, more than 250,000 persons were in re-education-through-labour camps.  The Government also confined some petitioners, labour activists and others to high security psychiatric hospitals. 

    … 

    The Criminal Procedure Law did not address the re-education-through-labour system, which allowed non‑judicial panels of police and local authorities, called Labour Re‑education Committees, to sentence people to up to 3 years in prison‑like facilities.  Administrative detention was frequently used as a vehicle to intimidate political activists and prevent public demonstrations.  Arrests on charges of revealing state secrets, subversion and common crimes were used during the year by authorities to suppress political dissent and social advocacy. Police also sometimes harassed and detained relatives of dissidents. 

  3. In relation to relocation within China, the Tribunal described Professor Goodman’s opinions given to a seminar of members of the Refugee Review Tribunal: 

    Goodman (2005) said that there was now a relatively new small town migration policy which basically was that, outside the big metropolitan areas, people could move in and get household registration.  This was not so for the big cities or provincial capitals, but was so for smaller towns (p.12).  If one wanted to go to a small town or a smaller town one might have to find “people who knew people”, but it was not difficult and there were numerous informal social networks.  In any Chinese town there were readily visible advertisements offering the chance to change houses, change jobs or “get new papers” (the latter being possible “all over the place”) (p13). 

  4. In its findings and reasons, the Tribunal said it was “more likely” that the applicant’s identity was that which he claimed, and not the name in his passport.  However, it declined to treat his use of a false passport as corroborative of his refugee claims, saying: “the Tribunal must consider the possibility that he obtained that passport for the purposes of entering Australia rather than being able to leave China unhindered”. 

  5. It considered his claim to have become a leader for local farmers, and commented: “it is also not apparent why they wanted … the applicant to represent their views to local government officials”.  However, it said: 

    Despite these reservations, a number of factors lead me to conclude that the applicant’s claims are plausible in relation to his employment history, his role in trying to set up a local association for farmers, and his detention and ill‑treatment.  In brief, these are that he has made these claims consistently, both in writing and at the hearing, that there are no serious internal inconsistencies between them, that (apart from some minor discrepancies) his presentation at hearing was generally credible, and that his account of his treatment was broadly consistent with the independent evidence about police treatment of people who participate in the activities he described.  Further, it was only on being questioned during the Tribunal hearing that he mentioned (in response to my questions) specific injuries he had sustained while detained by police, and that he had scars as a result.  He readily agreed to obtain confirmation from a doctor that he had such scars, and has submitted evidence from a doctor on the basis of which I am satisfied that he sustained some injuries, consistent with his account, early in 2004. 

  6. In relation to his detention in April 2004, the Tribunal said: 

    He claimed to have been detained by local police the day after that protest and beaten.  I consider reliable the observation by the U.S. State Department (2005) that police officers take individuals into custody without due cause and that they mentally and physically abuse both victims and perpetrators.  The applicant has provided a certificate from a medical doctor, confirming that he has scars on his chest and leg.  That is consistent with his claim to have been beaten by police while detained.  The applicant’s ill treatment while detained was clearly harsh, and I find that it amounted to persecution for the reason of a political opinion imputed to him, in that he was suspected of being an organiser of a protest in support of a farmers’ association. 

  7. However, the Tribunal drew an inference from the fact of his release without being charged or being held for the maximum period legally provided for unilateral detention, that “by that stage, the PSB officers involved did not, in fact, consider him to be a labour activist or anti‑government activist … I am of the view that he had satisfied them that he did not fall into this category”.  Counsel for the Minister identified this conclusion its “key” finding, explaining its ultimate conclusion that there was only a remote chance that the applicant would face persecution if he returned to his home town.  

  8. The Tribunal gave reasons for drawing its conclusion, but they are highly speculative and might appear inconsistent with the fact, which the Tribunal appears to accept, that the applicant was put under continuing reporting obligations.  Its reasoning was: 

    The U.S. State Department (2005) states that, according to the Criminal Procedure Law, police may unilaterally detain a person for up to 37 days before releasing him or formally placing him under arrest.  The applicant was released without charge before that period had expired.  He stated that he was released at that point because he needed medical treatment.  Given the evidence that people suspected of anti‑government activity in China are readily and routinely sentenced to imprisonment or lengthy sentences in labour camps I infer from the fact that he was released that, by that stage, the PSB officers involved did not, in fact, consider him to be a labour activist or anti‑government activist.  While they told him to report to them regularly, and said he could be questioned again, he does not claim that they expressed any intention to take any more serious action against him.  In other words, possibly because it became clear to the PSB that he had no history of anti‑government activity, held no coherent anti‑government views and had become involved in the call for a farmers’ association somewhat naively and opportunistically, I am of the view that he had satisfied them that he did not fall into this category. 

    That inference is not inconsistent with his claim, which I accept, that a police officer took money from his family to release him.  In writing he claimed this payment was “bail”, but he clarified at the hearing that he was not told what the money was for and the police had simply said they would release him in return for it.  Clearly no paperwork was involved which might reflect that the payment was intended for official purposes.  In my view it has the hallmarks of an opportunistic step to elicit a bribe.  That is consistent with the evidence (U.S. State Department 2005) that police corruption at the local level is widespread in China, and that police arbitrarily collect fees from detainees. I am satisfied that this was the reason the money was demanded and was paid. 

    I do not accept that by the time of his release he was regarded as “the most important leader in organization of the anti‑government demonstration for the purpose to establish anti‑government organization” (submission of 27 May 2005). 

  9. In the above discussion, the Tribunal gave no consideration whether the alternative inference favouring the applicant’s claim of continuing interest in him by the PSB in relation to the 2004 events was, at least, a “real chance” although less than probable.  It was obliged to do this, under principles established by the authorities which I considered in SZDTZ v Minister for Immigration & Anor [2005] FMCA 1392 at [19]‑[21], including Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296, and Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”).  These authorities suggest that an erroneous appreciation of the “real chance” test might be inferred from the absence from a Tribunal’s reasoning of consideration of uncertainties in relation to factual findings adverse to an applicant, unless “the Tribunal is of the view that a claimed event did not occur and that it is unlikely to be wrong in that view” (c.f. Kenny J in Rajalingam (supra) at [137]).

  10. Counsel for the Minister argued that the present Tribunal’s language suggests that it had no doubts that the applicant had ceased to be of interest to the PSB, so that no inference could be drawn that the Tribunal failed to appreciate that it should consider whether there was a “real chance” that the applicant’s claim of the contrary situation was correct.  

  11. I accept that the Tribunal’s finding is expressed in firm language.  However, I have difficulty understanding how, as a matter of law, it was open to the Tribunal to draw an inference with certainty that the applicant had ceased to be a person suspected by the PSB to be an anti‑government activist, in the face of its earlier findings which accepted the applicant’s history of political activism, detention, mistreatment and conditional release.  I am inclined to conclude that the Tribunal must have failed to apply the “real chance test” according to law.  An alternative way of identifying the error is that its conclusion based on this key finding was “unreasonable” in the sense of lacking evidentiary foundation (c.f. Minister for Immigration & Multicultural Affairs v Eschetu (1999) 197 CLR 611 at [145]‑[147], Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [36]‑[37], and Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]), or was based on a finding of fact which was “not open” to it as a matter of law (c.f. SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] and [28], applying Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑357).

  12. However, due to my conclusion that the Tribunal ultimately failed to address the applicant’s claim that he would be at risk of persecution generally because of his political opinions, and not just because of the interest shown in him by the PSB in 2004, it is unnecessary for me to reach firm conclusions on whether the Tribunal made a jurisdictional error at this point of its reasoning. 

  13. A further concern arises at the next stage of the Tribunal’s reasoning, which addressed the applicant’s claim that his “boss” Z was also detained by police.  The Tribunal accepted that this happened, and also that the applicant had learned that he had been released after the applicant came to Australia. 

  14. The Tribunal said: “the Tribunal has insufficient evidence to make a finding on what the circumstances were, but accepts that Z was freed and remains free”.  However, it did proceed to engage in speculations about the reasons for Z’s release.  These led it not only to refuse to accept the applicant’s evidence of what he had been told by his wife, but also to draw an inference adverse to the applicant’s claims by finding that Z also had ceased to be of interest to the PSB.  It said: 

    The applicant has expressed a belief that Z must have given information to the authorities that “blamed” him, and that that was the reason Z was released from detention.  These events would have occurred after the applicant left the country, and he conceded that he did not know this was the reason his employer had been released.  I note that he has claimed that he and his employer openly visited various government offices and spoke with officials about the farmers’ association, acts in which it is highly unlikely his employer could subsequently deny having engaged.  For that reason in my view Z could not have shifted the blame to the applicant to gain his release, and must have been released for some other reason.  It is no more than speculation that Z has given damaging information to the police about the applicant.  In my view the most likely explanation for his employer’s release is that Z had satisfied the police that he was not involved in any anti‑government activities and held no anti‑government opinions. 

  15. The Tribunal then repeated its finding that the Chinese authorities had become “confident by the time of his release that he was not a political activist or a person who held “anti‑government” views”, and applied this finding as its reason for affirming the delegate’s decision.  It said: 

    Having considered the independent evidence, I am satisfied that the Chinese authorities at local level are often inconsistent and erratic in their treatment of ordinary citizens who express grievances of the type expressed by the applicant – often, after an initially heavy‑handed response, conceding to their demands or making some compromise, so long as those grievances are not expressed, or cannot be interpreted, in more conventional “anti‑government” terms.  In my view, this is reflected in the applicant’s own treatment.  Understandably, he feared further harm when he left his village.  However, given that he had been released without charge by the police and that his boss was about to be released without charge, I am satisfied that, despite their oral warning to the applicant, the police were confident by the time of his release that he was not a political activist or a person who held “anti‑government” views.  I am satisfied that they did not intend to seriously harm him or re‑detain him.  Therefore I do not accept that his fear was well‑founded at the time he left China for Australia. 

    The applicant does not claim that Z is facing any continuing difficulties with the police as a result of these events.  I accept that the applicant may be required to report to local police if he returns to his village.  However, so far as they know he has remained in China and has not participated in any other activities relating to the establishment of a farmers’ association.  He may be questioned by police if he returns to his town, but I find the chance remote that, if he returns, the police will again ill treat him to the extent that that treatment would amount to persecution. 

    For these reasons I find the chance remote that he would face treatment amounting to persecution for a Convention reason if he returned to the [town] area.  I am also satisfied, and find, that such problems as he may have with the police are confined to the [town] area.  For the reasons I have given I do not accept that he is of sufficient significance to be on a countrywide police “blacklist”.  I find that he could move away from that area to another town or village.  I am satisfied that would be a reasonable option both because of the evidence from Goodman (2005) and because the applicant has illustrated his own ability to adapt to a new environment by coming to Australia. 

    I find that the applicant does not have a well‑founded fear of being persecuted in China for the reason of a political opinion imputed to him or any other Convention‑related reason. 

  16. In my opinion, it is clear from this reasoning that the Tribunal’s reason for finding “the chance remote that he would face treatment amounting to persecution for a Convention reason if he returned to the [town] area”, was its finding that the police would not “again ill treat him” “as a result of these events”, i.e. the 2004 events.  The Tribunal’s finding therefore addressed only the risks of further persecution arising from the applicant’s episode of persecution in 2004.  It did not at all address the applicant’s future as a person who still claimed to hold the strong political opinions he demonstrated in 2004.  It did not at all consider the chance that the persecution which occurred in 2004 might be repeated as a result of the applicant expressing his opinions in a similar way. 

  17. The Tribunal therefore failed to appreciate that, while it was relevant to make findings as to the events of the past and whether they would themselves have continuing repercussions, the essential question for the Tribunal was whether the applicant was likely in the future to express his political opinions through political activism, and whether the applicant would again be mistreated on the ground of perceived anti‑government opinions and activities.  It failed to appreciate that its findings as to the applicant’s history were only evidentiary, and not conclusive in relation to this question. 

  18. The subordinate and inconclusive role of findings about a claimed past history of persecution, as well as the need to address them upon a “real chance test”, is referred to in the majority judgment in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574‑576. Their Honours’ discussion contains the following description of the relevance of findings as to the past, when considering whether past events might be repeated:

    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. 

    … 

    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. 

    Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. 

    … 

    It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well‑founded fear of future persecution. 

  1. The significance of a past episode of persecution as being only an evidentiary “starting point” for the consideration of the “well‑foundedness” of an applicant’s fears about the future was a theme in the judgments in the High Court’s first refugee case: see Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 387, 390‑391, 399, 408, 415 and 431. However, the “real question” in every case is whether the applicant has a well‑founded fear of persecution in the future for a Convention reason, and not whether he has a well‑founded fear of the continuation of past persecution (c.f. Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 (“Appellant S395/2002”) at [39], [51], [73], [83]). As Gummow and Hayne JJ said in Appellant S395/2002 at [74]:

    Because the question requires prediction of what may happen, it is often instructive to examine what has happened to an applicant when living in the country of nationality.  If an applicant has been persecuted for a Convention reason, there will be cases in which it will be possible, even easy, to conclude that there is a real chance of repetition of that persecution if the applicant returns to that country.  Yet absence of past persecution does not deny that there is a real chance of future persecution. 

  2. McHugh J made a similar point in Minister for Immigration & Multicultural Affairs v Respondents S152/2003(2004) 205 ALR 487 at [79]:

    In order to establish that fear is well‑founded in cases of private persecution, an asylum seeker will no doubt have to show more than that persons holding the same beliefs, opinions or membership of races, nationality or particular social groups are being persecuted.  The asylum seeker will have to show that there is a real chance that he or she will be one of the victims of that persecution.  That person will have to show some fact or circumstance that indicates that there is a real chance that he or she will be among the victims.  Thus, it may be enough to show that, by reason of the conduct of the asylum seeker, he or she stands a greater chance of harm than other persons who hold the same beliefs or opinions, or membership of the particular group.  Or it may be enough to show that a very high percentage of such persons are persecuted for a Convention reason and the circumstances of the applicant are similar to those who have been persecuted. 

  3. In the present case, the applicant claimed to be a person of strong political convictions in favour, in particular, of freedom of association as a means of redressing labour grievances.  He presented a history of public activism in that area, and a history of personal harassment amounting to “persecution” inflicted by Chinese government agencies as a result of his involvement.  There is no suggestion in the Tribunal’s reasons that it did not accept that he was a person who at all times had held and expressed political opinions unacceptable to the Chinese government, and that he had suffered for his opinions in the past.  There is no suggestion in its reasons that it considered that he had abandoned his opinions or would abandon them voluntarily if he returned to China.  In those circumstances, the Tribunal’s finding that the police had lost interest in pursuing the applicant for his 2004 activism did not at all answer the question of whether he would in the future suffer persecution in similar circumstances.  In my opinion, the Tribunal failed to appreciate this, and as a result it failed to address the “real question” which its jurisdiction required it to exercise. 

  4. The Tribunal’s finding about relocation confirms its error.  It thought that it was enough to find against the applicant that he was not “on a countrywide police “blacklist”” as a result of the 2004 events.  However, this finding – even if it had any evidentiary foundation – did not address the question of whether the applicant, wherever he lived in China, would continue to have and demonstrate the political opinions he had shown in the past, and whether as a result he would be at risk of again suffering persecution by reason of those opinions. 

  5. I reject the contention made by counsel for the Minister that the Tribunal was not obliged to address these questions.  First, because – as my above extracts from authorities show – they were fundamental and unavoidable issues to be addressed by any Tribunal considering a refugee claim to protection as a “political” refugee.  Secondly, because there is nothing in the evidence to suggest that the applicant did not claim to be a person generally at risk in China as a person with opinions which would cause him to be regarded as a “political dissident” who “dared to protest” against the government.  In my opinion, his response to the suggestion that he could relocate, which I have extracted above at [17]‑[18], “advanced” such a claim (c.f. NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]).

  6. For the above reasons, I consider that the Tribunal’s decision was affected by jurisdictional error, and the applicant is entitled to relief by way of writs of certiorari and mandamus.  Since he has received no legal assistance, he is not entitled to a costs award. 

I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  27 July 2006

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Cases Citing This Decision

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SZHBP v Minister for Immigration [2007] FMCA 511