SZLTF v Minister for Immigration

[2008] FMCA 1177

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLTF v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1177

MIGRATION – RRT decision – Chinese teacher claiming persecution by reason of political opinion –failure to apply ‘real chance’ test to risk of future persecution – failure to address integer in claims – jurisdictional error established – matter remitted.

Migration Act 1958 (Cth), s.36

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296
Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 298
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 719
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NBKT v Minister for Immigration (2006) 156 FCR 419; [2006] FCAFC 195
SZCOS v Minister for Immigration & Citizenship [2008] FCA 570

Applicant: SZLTF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3799 of 2007

Judgment of: Smith FM

Hearing date: 8 August 2008

Delivered at: Sydney

Delivered on: 1 September 2008

REPRESENTATION

Counsel for the Applicant: In Person

Counsel for the First Respondent: Mr M Cleary

Solicitors for the Respondents: Clayton Utz

ORDERS

1. A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent handed down on 15 November 2007 in matter 071596694.

2. 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

   
   23 June 2007

   .

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3799 of 2007

SZLTF

Applicant

And

MINISTER FOR IMMIGRATION & CITZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant came to Australia in March 2007, and applied for a protection visa on 27 April 2007.  A statement attached to his application explained why he feared persecution if he returned to the Peoples Republic of China.

2. The applicant said that he had become a mathematics teacher in a junior high school in 1985.  Conditions in his employment became “worse and worse, especially for the teachers like me who are not official employee of school”.  Wages were not paid on time, and did not provide his family with “basic living standard. … Living situation of our teachers in remote area is much worse than farmers.”  Teachers in his situation were required to work more than 10 hours every day. 

3. In July 2006 one of his colleagues fainted in her classroom, but the school “did not give any support to her and even wanted to fire her.”  He said: “we were very angry and requested school to give her some helps.”  After the school authorities refused to discuss “our wages and welfare”, the applicant “and other teachers formed a teacher union to enhance our strength against school and protect our own rights.”  A five day strike was held in September 2006, and “the School was very angry about our strike and fired me and some other teachers.” 

4. The applicant said:

   We decided to fight back for these unfair treatments.  We went to the education department of (his town’s) government to appeal.  The people there asked us to go back to school and promised government will investigate into and take appropriate action.  However, after one month waiting, we did not get any response.  In December 2006 we went to the higher authority, the education department of (nearby) City, for appeal again.  Government in (that city) said it is not their responsibility and we should go to Government of (applicant’s) town.  We wanted things to be solved and stayed in government.  Then they called security to drive us away.  After back to school, we decided to appeal directly to Fujian Province and wrote letter to them.  The strange thing is our appeal letter returned to education department of (nearby city) and they threatened us if we kept appealing, they will have us arrested.  We would not give up and tried to appeal to authority in Beijing secretly.  While before we got to Beijing, we have been arrested by police and were put into jail for three months.  During the three month in jail, I could not bear the mentally torture and cruel physical labor.  So I asked my family to spend RMB 200,000 to bail me out and got me Australia visa.  After I arrived in Australia my family in China kept being harassed by Chinese government.  I am scared to go back to China and decided to apply for protection from Australia government to get freedom.

5. A delegate refused the visa application on 23 June 2007.  The delegate did not accept that the applicant had been a teacher in a middle school for 20 years, because he did not claim to hold any teaching qualification.  The delegate also did not consider that the applicant was regarded “as an anti-government person”, because he had left China legally and within a short period after his claimed imprisonment.

6. The applicant appealed to the Tribunal.  He gave the Tribunal a statement in Chinese, with a translation, purporting to be signed by three other teachers who had participated in the 2006 strike.  They said:

   We are teachers working at the school run by local people not by the government in China.  It is a sacred occupation cultivating talented persons and should be respected and cherished.  However, we have suffered from harassment and order to arrest from the Government and Police Station of (city), just because we are willing to ask for the increase of income to safeguard our legitimate rights and interests”. 

   They referred to the September 2006 strike, as being “organised by (the applicant).  Therefore, he became a target of (city) Police Station’s order for arrest as well”.  They also referred to his being “beaten up cruelly by prison policemen”, and “his family members are still suffering from government’s harassment and scared of going home”.

7. The applicant attended a hearing held by the Tribunal on 5 September 2007.  I have no reason not to accept the Tribunal’s description of his evidence as set out in its statement of reasons. 

8. The Tribunal explored the applicant’s claim to have been a teacher of algebra at a large junior high school, notwithstanding his lack of formal teaching qualifications.  His responses appear to have been clear and compelling.  He passed the Tribunal’s test in algebra with no hesitation, and his evidence about his employment was corroborated by independent country information held by the Tribunal.  This confirmed that untrained teachers had been recruited during a shortage of teachers which occurred before a system of credentials was introduced in China after the mid 1980s, and that “mingban teachers (civil teachers employed at community or locally run schools)” were an exploited group of teachers.  It confirmed that “traditionally in China … the mathematics curriculum consisted of two distinct mandatory series, a series in algebra and a series in geometry”.

9. The country information also confirmed that government action had been undertaken against workers who organised campaigns or acted independently of the official trade union, and that “in some cases teachers have been dismissed from their posts for involvement in labour activities”.  There were two recent reports of incidents in which “individuals were detained for involvement in teacher labour activity”.

10. The applicant gave evidence in an apparently confident manner, and gave consistent details about his involvement in the teacher’s strike, and in delegations to the education department, and provincial government.  He told the Tribunal that “they wanted to appeal further to Beijing but before they went there several people were arrested by police”.  He gave details of being one of the persons arrested, detained and mistreated. 

11. The Tribunal later gave significance to a statement by the applicant that he no longer wanted to be a teacher.  The applicant was not asked to elaborate on this statement, which is recorded by the Tribunal in the following passage:

    The Tribunal asked the applicant how many people were involved in organising the teachers’ union, the applicant replied five, including himself. Asked if he had ever been involved in union activities before, the applicant replied that he had not. The Tribunal asked why the applicant and the organisers striked for five days from 5 September 2006 and asked if that was Teachers’ Day, the applicant replied that Teachers’ Day was actually on 10 September 2006. Asked why in that case they chose 5 September to strike, the applicant replied that Teachers’ Day is a holiday for everyone in China, so no one would be at school. The Tribunal noted the applicant’s evidence that some organisers were sacked and asked whether he was also sacked. The applicant replied that he was and therefore he had not been working since September 2006. When Tribunal asked the applicant whether the activities he undertook after the strike was because he wanted his job as a teacher back, the applicant replied that the main aim of his activities was to get better treatment for teachers. Asked whether he wanted to be a teacher again, the applicant replied that he did not. Asked what the point of fighting for better conditions was if he would not get the benefit of better conditions, the applicant replied that he was fighting for social justice. Asked what sort of work he wanted to do, the applicant replied that he had not decided. Asked whether he knew it was dangerous to undertake these activities and pursue the issue to Beijing, the applicant replied that to continue appealing was certainly dangerous. Asked whether he suspected that they might arrest him, the applicant replied that he did. (emphasis added)

12. The applicant’s claim that in the future he would be motivated to fight for social justice, was repeated at the end of the hearing.  The Tribunal described his evidence under the heading “Future conduct”:

    The Tribunal noted the applicant’s previous evidence that he did not want to be a teacher and that he is yet to decide what he wanted to do. The applicant confirmed that this was the case. The Tribunal asked the applicant why, if he returned to China, he would continue to strike for teachers if he is not a teacher and he did not want to be, the applicant replied that he just wanted to uphold justice. Asked if he would strike on his return the applicant replied that he dare not return and that he would be arrested and his movements would be restricted. Asked if he would still be involved in union activities if he was not arrested, the applicant replied that he would. The Tribunal indicated that it found it difficult to believe that the applicant would put his life in danger to fight for the conditions of teachers when he is not a teacher any more and did not want to be one. The applicant said that he did it for himself as well as for others. Asked how he was doing this for himself if he was not going to benefit from the increase in wages, the applicant replied that he started to strike for better conditions of teachers. He said that before he was sacked he striked for the better conditions of teachers, and that after he was sacked he was striking for justice and that in China you cannot find a place to vent grievances.

13. The Tribunal handed down a decision on 15 November 2007, which affirmed the delegate’s decision.  I am now asked to consider whether its decision was affected by jurisdictional error.  I do not have power to decide for myself whether the applicant qualifies for a protection visa or for any other permission to stay in Australia.

14. In its brief “findings and reasons”, the Tribunal said that it was “prepared to accept that the applicant worked as a teacher from 1985”. 

15. The Tribunal did not discuss the applicant’s evidence of the events leading up to the 2006 teachers’ strike, nor his involvement in it as an organiser of a teachers’ ‘union’, nor his claim to have been dismissed as a result, nor his claim to have participated in subsequent protests to government agencies.  The Tribunal made no findings that these events did not occur, and did not discuss the corroborative statement of the three other teachers.  The Tribunal expressly rejected only that he had been arrested and detained before being released on bail, and that his family continued to be harassed after he left China.  In these circumstances, I consider that the Tribunal should be understood as having accepted, or at least assumed, that the other elements in the applicant’s claimed history were all true.  Counsel for the Minister did not invite me to find to the contrary.

16. In view of its implicit acceptance of the applicant’s history of organising a teachers’ strike, the Tribunal’s stated reason for not being satisfied that the applicant had been arrested and sentenced to three months re-education through labour does not appear compelling.  It said only that “the applicant’s evidence about these crucial parts of his claim were vague and lacking in detail”.  These defects are not apparent from the Tribunal’s description of the hearing, and any absence of more details might seem to have been the result of the Tribunal limiting the extent to which it explored these experiences in its questioning.  Moreover, the Tribunal did not consider the implications for the applicant’s general veracity, which arose from the corroboration given to his teaching and ‘union’ history by the general country information found by the Tribunal and by the statement from the three teachers.  However, it is unnecessary for me to examine whether a finding of jurisdictional error arises from this part of its reasoning.

17. The Tribunal then made a finding that “the applicant was able to exit China lawfully using a passport in his own name” and, therefore, that “the applicant was not on bail with a case still pending against him as claimed”.  This was based upon its conclusion that the applicant had “invented the claim that he bribed officials after he understood that his previous responses did not advance his claims”.  It is similarly not necessary for me to examine the legitimacy of this conclusion.

18. My principal concerns about the Tribunal’s reasoning arise from its conclusions about the future risk of the applicant facing persecution for his actual or perceived anti-government political opinions if he returned to China.  The Tribunal said:

    The applicant told the Tribunal that he knew that continuing to appeal being sacked was dangerous and he suspected he would be arrested. He said that the main aim of his activities was to get better treatment for teachers. Asked what the point of fighting for better conditions was if he would not get the benefit of better conditions, the applicant replied that he was fighting for social justice. The applicant claimed that if he returned to China he would continue to strike on behalf of teachers and be involved in union activity. Asked why he would do this if he is not a teacher and he did not want to be, the applicant replied that he just wanted to uphold justice. The Tribunal indicated that it found it difficult to believe that the applicant would put his life in danger to fight for the conditions of teachers when he is not a teacher any more and did not want to be one. The applicant said that he did it for himself as well as for others. Asked how he was doing this for himself if he was not going to benefit from the increase in wages, the applicant said that before he was sacked he striked for the better conditions of teachers, and that after he was sacked he was striking for justice and that in China you cannot find a place to vent grievances. The applicant told the Tribunal that he has never been involved in union activities before July 2006. The Tribunal does not find it plausible that the applicant would continue to engage in union activities on behalf of teachers when he does not have a history of union or political involvement and he no longer wants to work as a teacher. The Tribunal therefore does not accept the applicant’s evidence about his future conduct should he return to China.

    The Tribunal therefore finds there is not a real chance the applicant will suffer serious harm from the Chinese authorities as a result of his union activities. As such the Tribunal is not satisfied the applicant has a well founded fear of persecution if he returns to China for reasons of his political opinion, membership of a particular social group, or for any other Convention reason now or in the foreseeable future. (emphasis added)

19. The applicant has not been represented in this proceeding, and his application does not adequately identify any ground of jurisdictional error.  However, I raised possible concerns about the above reasoning with the representatives of the Minister at a show cause hearing, and these were addressed in the written and oral submissions of his counsel.

20. One of my concerns was that it is not apparent from its reasons how the Tribunal dealt with the corroborative statement signed by the three Chinese teachers.  However, I am now inclined to conclude that the Tribunal considered that it did not need to make findings about this evidence, since it assumed the truth of the applicant’s involvement in a teacher’s union and strike in 2006, and also the truth of his claim to have lost his employment as a result.

21. However, the Tribunal’s reasoning, based upon its acceptance of this history, raises two jurisdictional concerns:

    i)whether the Tribunal applied the correct legal test when considering whether the applicant might be at risk in the future of persecution for his perceived anti-government opinions if he returned to China; and

    ii)whether the Tribunal erred when assessing the applicant’s future risk of political persecution by confining its consideration to the possibility of his continuing involvement in the 2006 events.

22. The first issue requires a consideration of whether the Tribunal properly understood and applied the “real chance” test when considering whether the applicant’s fear of future persecution was “well founded”.  The High Court in Chan v Minister for Immigration & Ethnic Affairs (1990) 169 CLR 379 gave this description to the predictive assessment which is required to be applied when assessing the future risk of a refugee claimant facing persecution if he or she returns to their country of nationality. It is well established that a prediction of significantly less than a probable risk of persecution can be sufficient under that test. As was said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 572:

    Chan is an important decision of this Court because it establishes that a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.

23. In Guo, the High Court explained the role of findings as to past events when making an assessment of future risks of persecution. The Court said at 575:

    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.

1. Guo, and Federal Court authorities which have explained its effects, allow the Tribunal to be satisfied that there is no ‘real chance’ of future persecution, if it is left in no doubt that the claimant has failed to satisfy it as to any relevant history which might give rise to a risk of persecution (cf. Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 719 at 239 – 241, Applicants A233 of 2003 v Refugee Review Tribunal [2004] FCAFC 296 at [11]–[14], and SZCOS v Minister for Immigration & Citizenship [2008] FCA 570 at [42]-[53]). However, it is important for the Tribunal not to confuse its fact-finding about the probable occurrence of the applicant’s claimed past history, with its predictions about future risks once it has performed that fact-finding.

2. In particular, the required assessment of future risks by reference to an accepted history is not performed by deciding whether the applicant has “satisfied” the Tribunal in a positive sense that he or she will repeat that conduct in the future so as to incur persecution.  Nor is it performed by placing a persuasive onus of proof on an applicant as to the probability of future persecution arising from past conduct which has been accepted (cf Ejueyitsi v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 151 FCR 298, and cases cited). The real chance test requires the Tribunal itself to consider the strength of all possibilities of future persecution which are less than probable, if they are raised by its findings on past conduct.

3. In a case such as the present, these possibilities must include the possibility of persecution arising directly as the repercussions of past conduct, the possibility of persecution arising from future repetition of past conduct considered broadly, and the possibility that threats of future persecution might adversely affect the applicant’s freedom to repeat his past conduct in relation to a matter protected by the Convention (cf. Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [11], [39-40], [43], [50], [80], and NBKT v Minister for Immigration (2006) 156 FCR 419, [2006] FCAFC 195 at [65]-[69]) .

4. The present Tribunal’s reasoning is terse in its explanation for concluding: “the Tribunal therefore finds there is not a real chance the applicant will suffer serious harm from the Chinese authorities as a result of his union activities”.  Giving it as much latitude as is possible, I would accept that the Tribunal found there to be no possibility of further repercussions to the applicant from his past actions in 2006.  This may be implicit in its rejection of his claimed history of detention and mistreatment.

5. However, the Tribunal was required also to consider whether the applicant might repeat actions which might incur persecution for actual or perceived ‘anti-government’ political opinions.  The Tribunal appears to have acknowledged that this issue was firmly before it, due to the applicant’s claim that he would continue to be involved in activities demanding social justice for teachers.  However, in my opinion, the Tribunal asked itself the wrong questions when addressing that issue.

6. The Tribunal asked itself whether it was “plausible that the applicant would continue to engage in union activities on behalf of teachers”, and whether it “accepted” “the applicant’s evidence about his future conduct should he return to China”.  By confining itself to answering these questions, as I think it did, the Tribunal applied incorrect and too demanding tests for its predictions about this aspect of the future.  It did not ask itself whether there was a real chance that the applicant would engage in the future conduct which he claimed.  Instead, it asked itself whether it was persuaded “to accept” the applicant’s own predictions about his future conduct.  In my opinion, the Tribunal, in effect, placed an onus of persuasion on the applicant as to his probable future conduct, and thereby misapplied the ‘real chance’ test as explained in the above authorities.

7. This error was an error of law going to an important aspect of jurisdiction, which required the Tribunal to apply the provisions of the Refugees Convention, as adopted by s.36 of the Migration Act, according to its interpretation by the High Court.

8. I also consider that the Tribunal made jurisdictional errors by confining its consideration of the applicant’s fears of future persecution, and failing to address elements in his claimed fears which, if not “expressly articulated”, “clearly arose from the materials before the Tribunal” (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [60]).

9. The Tribunal confined its consideration of the possible future reasons for the applicant being actively persecuted if he returned to China, to reasons resulting from a continuance of his past “union activities on behalf of teachers”.  In my opinion, this is clear from the reasoning which I have extracted above.  It is an interpretation of the Tribunal’s reasons which was not contested by counsel for the Minister.  Counsel submitted that the Tribunal was entitled to confine itself to that question, since the applicant did not claim to be at future risk for any other reason.  His submission was, therefore, that the Tribunal was not obliged to address a broader risk of persecution which was not raised on the material before it.

10. However, in my opinion, the applicant’s evidence to the Tribunal about his 2006 conduct squarely raised for the Tribunal the question whether the applicant was a person who had demonstrated a concern for ‘social justice’ in the past, and a disposition to take actions which in China might be perceived as anti-government, and which might manifest itself in conduct going beyond the particular teachers’ issues which had ‘politicised’ the applicant in 2006.  In my opinion, it was not open, in law, for the Tribunal to confine its assessment of the risk of future persecution to the applicant for his actual or perceived political opinions, by considering only the risks associated with a continuation by the applicant in the particular ‘union’ activity in which it accepted he had engaged in the past.  By doing so, the Tribunal “misconstrued” the applicant’s refugee claims, by failing to address a broader, underlying, claim by the applicant to be at risk in China as a person known in the past to have been involved in a perceived anti-government activity, and as a person with broad political opinions whose expression is not tolerated in China, but who might be prompted to express them in the future in a variety of situations.  An ‘integer’ in the applicant’s refugee claims was therefore not addressed by the Tribunal.

11. Moreover, arising from this analysis, and from the Tribunal’s own findings, there was a further issue which was also not addressed by the Tribunal.  This was whether the applicant, if he returned to China, might suppress or modify his future expression of his political opinions in the face of his past persecution which, on the Tribunal’s own findings, had in the past caused him at least to lose a significant employment which he had held for 20 years.  I can find no suggestion in the Tribunal’s reasons that it thought about this issue in the manner discussed in Appellant S395/2002 and subsequent cases.  In the absence of any discussion, I would infer that it failed to appreciate that it was an issue requiring its attention (cf. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]). In this way, therefore, the Tribunal’s decision was also affected by jurisdictional error.

12. For the above reasons, I am satisfied that the applicant is entitled to the relief he seeks.  I can identify no reason for withholding that relief.

I certify that the preceding thirty five (35) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Michael Abood

Date:  1 September 2008