Wang, Yi Min v Minister for Immigration and Multicultural Affairs
[1998] FCA 854
•22 JULY 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – application for review of decision of Refugee Review Tribunal – well-founded fear of persecution by reason of religion - whether Refugee Review Tribunal incorrectly applied the test for determining whether applicant had a well-founded fear of persecution.
Migration Act 1958 (Cth), ss 36, 476(1)(e).
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 (H Ct), cited.
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited.
Minister for Immigration and Multicultural Affairs v Ye Hu (1997) 149 ALR 318 (FCA/FC), considered.
YI MIN WANG V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 166 OF 1998
SACKVILLE J
SYDNEY
22 JULY 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 166 of 1998
BETWEEN:
YI MIN WANG
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
SACKVILLE J
DATE OF ORDER:
22 JULY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal dated 4 February 1998 be affirmed.
The applicant pay the respondent’s costs.
NOTE:SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.
IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY
NG 166 OF 1998
BETWEEN:
YI MIN WANG
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
SACKVILLE J.
DATE:
22 JULY, 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Proceedings
The applicant seeks review of a decision made by the Refugee Review Tribunal (“RRT”) made on 4 February 1998, affirming a decision of the Minister’s delegate not to grant a protection visa. The applicant says that the RRT’s decision involved an error of law, being an incorrect application of the law to the facts as found by the decision-maker: Migration Act 1958 (Cth) (“Migration Act”), s 476(1)(e). In substance, the applicant claims that the RRT failed to apply correctly the test for determining whether an applicant has a well-founded fear of persecution in his country of nationality, the People’s Republic of China (“PRC”).
The applicant is aged 39. He was born and studied in Shanghai. He is a fitter by occupation, and is married with one child. He arrived in Australia on 30 July 1995. On 14 August 1995 the applicant lodged an application for a protection visa. A criterion for a protection visa is that the applicant “is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention [1951] as amended by the Refugees Protocol [1967]”: Migration Act, s 36(2). On 8 March 1996, a delegate of the Minister refused to grant a protection visa, and on 10 April 1996 the applicant sought review of that decision by the RRT. On 4 February 1998, the RRT affirmed the delegate’s decision.
The applicant claimed before the delegate and the RRT to have a well-founded fear of being persecuted for reasons of both religion and political opinion. His claims based on political opinion were rejected on each occasion. Mr Atkin, who appeared on behalf of the applicant, accepted that there was no basis for review of the RRT’s rejection of the applicant’s claim founded on political opinion. The applicant challenges only the finding that he did not have a well-founded fear of being persecuted for reasons of religion.
The Applicant’s Claim
The following account of the applicant’s claim that he had a well-founded fear of being persecuted for reasons of religion is based on the detailed reasons given by the RRT.
In 1989, after a long period working at a Labour Reform farm, the applicant secured employment in an equipment factory. He continued to work there until 1995, when he left the PRC for Australia. While working in the factory, he was introduced to the Roman Catholic religion by a fellow worker, Ms Wang Jue. He attended his first religious gathering in early 1992 and subsequently participated in Masses.
In October 1992, Ms Wang and the applicant were arrested. He was interrogated, but not mistreated. He told the authorities that his religious activity had no political purpose. He was released after one week and permitted to return to his employment; Ms Wang was released after three months. After that episode, the applicant participated in religious activities on a few occasions. He went to the home of another person, to whom he had been introduced by Ms Wang, on two occasions. On those occasions he discussed the Bible with that person, Xiao Li.
In Australia, the applicant pursued his interest in Catholicism. He was baptised at the Asian Centre in Ashfield, on 6 April 1996. He also participated in church activities. According to a letter written by Fr Huang OFM in support of the applicant’s application, Mr Wang wants to “spread his religious beliefs wherever and whenever he wishes”.
The applicant claimed that in December 1996 he sent photographs of himself and a priest he met in Australia to his friend Li Guang Xi. The applicant sent the photographs together with a religious book, through another friend. The applicant had been informed that in the same month Li Guang Xi, Xiao Li and the friend carrying the photographs and book were all arrested. The applicant said he had been informed of this by Wang Jue. The applicant also said that his home had been visited by the People’s Security Bureau (“PSB”).
The applicant claimed that, if he were to return to the PRC, he would be persecuted by reason of his Roman Catholic beliefs, and by his desire to “spread the word”. He claimed that Roman Catholics in China were subject to arrest and imprisonment if they pursued religious activities.
The RRT’s Reasons
The RRT commenced by stating the principles applicable to a claim that an applicant has a well-founded fear of persecution for a Convention reason. On the requirement that the fear be well-founded, the RRT said this:
“Fourth, the applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason. A person can have a well-founded fear of persecution even though the possibility of the prosecution occurring is well below 50 per cent. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.”
The RRT accepted that the PRC “is an authoritarian state in which the Chinese Communist Party…is the paramount source of power”. In 1996, according to the RRT, the Government continued to commit widespread human rights abuses, in violation of internationally accepted norms. The Government continued severe restrictions on freedom of speech, assembly and association, religion, privacy, the press and worker rights.
The RRT accepted that the “[PRC] Government restricts religious practice outside officially recognised and government-controlled religious organisations”. The RRT considered a variety of official and news reports concerning the numbers and position of Christians in the PRC. It referred to a United States report indicating that the authorities had taken steps in some areas in 1993 to rein in the activities of unapproved Catholic and Protestant movements. However, that harassment had varied from province to province. Several provinces had hard-line anti-unofficial church, anti-foreign missionary policies. On the other hand, there were relatively tolerant provinces where action taken against the unofficial churches generally seemed to be less common. These included Shanghai.
The RRT then addressed the question of the applicant’s credibility. Although it considered the applicant to be a “credible witness on the whole”, it was not satisfied with the credibility of his claims concerning the claimed arrest of friends in December 1996. The RRT said that the applicant’s evidence on this issue was vague and that he had not obtained or provided details of the kind that might have been expected had the event actually taken place. Since the RRT was not able to accept the applicant’s account of the events of December 1996, it could not be satisfied that the applicant’s home had been raided (as he had claimed) in January 1997 as a result of the arrest of his friends.
The RRT accepted that the applicant was a Roman Catholic who had been attending Masses since 1992. However, it gave a number of reasons for not being satisfied that the applicant had a well-founded fear of being persecuted for reasons of his religious upon his return to the PRC.
First, although the applicant had been detained and interrogated in October 1992, he had been released after one week because the authorities were satisfied that his religious activities did not have a political purpose. Since 1992, he had neither been detained nor questioned regarding his religious activities, which he pursued until his departure from the PRC in 1995.
Secondly, the independent evidence suggested that in the relatively tolerant provinces of the PRC, action taken against the unofficial churches was less common than in other provinces. Shanghai was one of the tolerant provinces.
Thirdly, the independent evidence confirmed that the authorities were generally only interested in arresting or detaining prominent church leaders and those who actively participated in proselytising. The RRT said this:
“The applicant has never been an organiser of religious activities in China, but rather a participant. Likewise in Australia, although a participant in Masses, the applicant has not become a leader in the Catholic Church. The Tribunal is satisfied that the applicant cannot be characterised as a ‘prominent church leader’, and the Tribunal is satisfied that he would not face arrest upon return to China for this reason. Since arriving in Australia in 1995, according to his own evidence (and in spite of being in favour of ‘spreading the word of God’), the applicant has been responsible for attracting only two people to the church. There is no evidence that the applicant has proselytised in China. Although the applicant has stated that he would be encouraged to spread the word of God upon return to China, the evidence concerning his past activities [supports] a finding that his activities with regard to proselytising [have] been limited and that he cannot be characterised as an ‘active proselytiser’. The Tribunal is satisfied that the applicant would not be detained upon return to China for this reason.”
Fourthly, the RRT recognised that detention is not the only means of persecuting religious followers and that a range of other restrictions on the right to practise religion might also amount to persecution. However, the RRT was satisfied that, in the applicant’s particular circumstances, he did not have a well-founded fear of being persecuted for reasons of his religion. The RRT noted that
“the applicant was not precluded from practising his religious from 1992 until he departed the country in 1995. The applicant was able to participate in religious gatherings and Masses. The applicant’s home was never visited by the PSB…apart from the incident in 1992, after which he was never detained or even questioned by the PSB.”
The RRT said that the information available to it indicated that, although the PRC Government restricted religious practice outside officially recognised and Government controlled religious organisations, there were some one hundred million Buddhists and nine million Christians who followed their religion without undue interference or serious harm. Moreover, despite the PRC Government’s regulation of religious activities in China, since the end of the Cultural Revolution opportunities had increased for Chinese citizens to express their religious beliefs. Religious activists who were opposed to Government regulation of religious activities and those who persisted in active proselytising sometimes did encounter difficulties with the authorities. However, the applicant was neither an activist nor a religious proselytiser.
The RRT concluded as follows:
“There is no evidence that the applicant has been subject to persecution in the past because of his religion nor that he would face such treatment in the foreseeable future. As noted in the independent information, the Chinese authorities are interested in church leaders, proselytising religious activists, or those who are seen as a political threat. The Tribunal has found above, that the applicant does not fall into any of these categories. Further, the applicant comes from Shanghai which is considered to be one of the liberal and tolerant areas in relation to Christians.
The Tribunal therefore finds that there is not a real chance of the applicant being persecuted in China in the foreseeable future for reasons of his religion. The Tribunal is therefore satisfied that the applicant does not have a well-founded fear of being persecuted in China, in the foreseeable future for reasons of his religion.”
The Applicant’s Argument
Mr Atkin accepted that the RRT had correctly formulated the test for determining whether the applicant’s fear of persecution for a Convention reason was well-founded. His short point was that the RRT had concentrated on events in the past, notably the applicant’s experiences as a Roman Catholic in China and his limited proselytising in Australia, and had failed to consider what might happen on the applicant’s return to China. Mr Atkin contended that the applicant’s proselytising activities were necessarily confined in Australia, because this is a country which enjoys religious freedom. The position might well be different once the applicant returned to China, having regard to the restrictions on religious freedom in that country. To apply the “real chance” test correctly, the RRT was obliged to consider how the applicant’s religious conduct would or might be perceived by the Chinese authorities. The mere fact that he was not a church leader or active proselytiser in Australia did not mean that the would not be so regarded in China.
Reasoning
In Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 (H Ct), the joint judgment addressed (at 578-579) the approach to determining whether there is a real chance that an applicant will be persecuted for a Convention reason:
“In determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, the tribunal had no choice but to form an opinion as to what was likely to occur if Mr Guo was returned to the PRC. In the course of determining whether there was a real chance of persecution for such a reason, the Tribunal made findings about past events and the motivation of the Chinese authorities in penalising Mr Guo, as it was entitled and, indeed, bound to do. It then used those findings as the basis for its conclusion that there was no chance of future persecution. But that does not mean that it decided the well-founded fear of persecution issue on the balance of probabilities.
The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.
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.”
See also Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 281.
It is clear from the passage in Minister v Guo that the RTT was obliged in the present case to form an opinion as to what was likely to occur “in relation to the relevant field of inquiry” if the applicant were returned to the PRC. Doubtless, as Mr Reilly (who appeared for the Minister) conceded, if the RRT had made findings as to past events, but had not directed attention to what was likely to occur in the future, it would have failed to apply the correct legal principle.
But in this case, the RRT did not merely make findings about the applicant’s past religious activities in the PRC and in Australia. The RRT, having made those findings, considered what would happen to him on his return to the PRC. It took into account that he was neither an active proselytiser nor a prominent Church leader, and that he would return to one of the more liberal and tolerant areas of the PRC. The RRT also took into account that the applicant had “stated that he would be encouraged to spread the word of God upon return to China”. It was satisfied that he would not be detained and that he would not face persecutory treatment. It therefore concluded that there was no real chance that the applicant would face persecution by reason of his religion.
Mr Atkin's specific criticism of the RRT was that it had made a “logical jump”, by assuming that the applicant would not become an active proselytiser upon his return to the PRC. This criticism, even if valid, does not amount to a failure by the RRT to consider what was likely to happen on the applicant’s return to the PRC. It might suggest that the RRT placed undue weight on the limited proselytising activities of the applicant in Australia, or too little weight on his claimed intention to “spread the word of God”. But this is not an error of law of the kind put forward by Mr Atkin. Nor is it an error of law of any kind. It was the RRT’s role to assess the likely course of future events in the PRC, having regard to the findings of fact it made. This it did. As the High Court said in Minister v Wu (at 272)
“any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
Mr Atkin cited observations made by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Ye Hu (1997) 149 ALR 318, at 333. However, I do not think that those remarks support the contention that there was an error of law in the present case.
Conclusion
The decision of the RRT is affirmed. The applicant must pay the Minister’s costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville
Associate:
Dated: 22 July, 1998
Counsel for the Applicant: Mr J Atkin
Solicitor for the Applicant Coroneos & Co, Solicitors
Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 July, 1998 Date of Judgment: 22 July, 1998
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