Xie, Guo Zhong v The Minister for Immigration & Ethnic Affairs
[1995] FCA 1044
•21 DECEMBER 1995
CATCHWORDS
IMMIGRATION - Refugee status - whether well-founded fear of persecution for reasons of political opinion - Convention Relating to the Status of Refugees - Protocol Relating to the Status of Refugees - applicant is a State cadre - whether "well-founded fear" - genuine subjective fear with factual or objective basis for that fear - whether "real chance" of persecution - whether persecution "harsh or oppressive" - whether persecution for Convention reason - whether mere illegal departure gives rise to refugee status - whether illegal departure of State cadre is implicit display of political opinion.
ADMINISTRATIVE LAW - application to review decision of Refugees Review Tribunal (Tribunal) that applicant not be granted a protection visa - whether the Tribunal asked the correct question - whether finding so unreasonable, no Tribunal could have reached that conclusion - whether no evidence on which Tribunal could reach conclusion - whether Tribunal failed to take material into account - whether Tribunal justified in reaching its decision.
Migration Act 1958 (Cth)
Convention Relating to the Status of Refugees (1951)
Protocol Relating to the Status of Refugees (1967)
Hathaway, JC; The Law of Refugee Status (1991)
Chan v Minister for Immigration and Ethnic Affairs (1989)
169 CLR 379
Wu & Feng v Minister for Immigration and Ethnic Affairs,
9 August 1995, Tamberlin J, unreported.
XIE, GUO ZHONG v
THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
No WAG 40 of 1995
Tamberlin J
Sydney (Heard in Perth)
21 December 1995
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 40 of 1995
GENERAL DIVISION )
BETWEEN: XIE, GUO ZHONG
Applicant
AND: THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
First Respondent
PAUL FERGUS
Second Respondent
CORAM: TAMBERLIN J
PLACE OF HEARING: PERTH
JUDGMENT DELIVERED: SYDNEY
DATED: 21 DECEMBER 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondents' costs of the application.
NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY ) No. WAG 40 of 1995
GENERAL DIVISION )
BETWEEN: XIE, GUO ZHONG
Applicant
AND: THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
First Respondent
PAUL FERGUS
Second Respondent
CORAM: TAMBERLIN J
PLACE OF HEARING: PERTH
JUDGMENT DELIVERED: SYDNEY
DATED: 21 DECEMBER 1995
REASONS FOR JUDGMENT
This is an amended application to review a decision of the Refugee Review Tribunal ("the Tribunal"), dated 13 April 1995, that the applicant is not entitled to protection as a refugee under the Migration Act 1958 and to refuse a protection visa.
The ground of the application is:
" ... that the decision contained an error of law namely that as a State cadre the Applicant must expect sterner treatment for the offence of illegal departure and that imprisonment for a period of 3 to 5 years would not be disproportionate to the Applicant's offence and would not be harsh or oppressive and accordingly such punishment was not persecution."
It is said that the Tribunal should have found that the punishment feared by the applicant on his return to China by reason of his illegal departure was persecution, for "reasons within the ambit of the Refugees' Convention" on the following grounds:
"(a)For many years the Applicant had been a senior officer of a Government Public Utility and as such held a privileged position of a government official or a State cadre.
(b)Disputes arose between the Applicant and the Director of the Applicant's work unit. As a result in 1992 the Applicant was required to stay at home and his salary was stopped. He was not formally dismissed.
(c)Notwithstanding he was no longer actively employed by his unit, the Applicant remained a State cadre and would be regarded as such by the Chinese authorities.
(d)The illegal departure of a high government official or a State cadre, would be viewed as an act of betrayal by the Chinese authorities and as a result punishment was likely to be imposed, which was significantly greater than the punishment imposed on ordinary Chinese nationals for illegal departure.
(e)There is a real chance that such increased punishment could amount to imprisonment of 3 to 5 years.
(f)The Applicant, in leaving China, was exercising his ordinary right to leave his country of nationality.
(g)Punishment by way of 3 to 5 years imprisonment for exercising the right of departure, is harsh and oppressive and is imposed because the Chinse authorities regard such departure implies disloyalty and therefore the punishment amounts to persecution for a reason within the ambit of the Refugees Convention."
The order sought is that the matter be referred to the Tribunal to be decided according to law.
Background
The applicant arrived in Australia from the People's Republic of China ("PRC") on a boat code-named "Cockatoo" on 22 November 1994. The Applicant is detained in the Immigration Reception and Processing Centre (IPRC) at Port Hedland. He has remained continuously in this country since he arrived here.
The applicant was born in the People's Republic of China in February 1952 and he had lived in that country until he left on 1 November 1994 to travel to Australia on the "Cockatoo". He is a national of the People's Republic of China. Consequently, his claims to refugee status are to be assessed against his experience and the conditions in that country.
The applicant had been a senior officer of a government public utility ("the work unit") in Southern China for many years before he came to Australia. He testified that he and the other cadres (high government officials) in the work unit voted in an election of its Director in late 1989. He said that he and some other cadres, especially the applicant's immediate supervisor, opposed the election of one particular man who they considered lacked the necessary skills for this important position. The applicant testified that he had said, during a large meeting of cadres, that this man should be a "bandit chief". Notwithstanding the force with which he expressed his objections to the election of this man, the applicant emphasised that his objections were based on his view that the man was not competent for the position. Despite the objections of the Applicant and other cadres, this man was elected as Director.
The applicant testified that about 4 months later, in April 1990, he and his immediate supervisor were accused of corruption by the Director. In addition to the corruption charge, the applicant was also accused of supporting the student movement in 1989. Four days later the applicant was arrested by police from the relevant district court in Beihei City and held in a detention centre run by the Public Security Bureau (PSB) in Beihei. The applicant testified that he was held in this centre for one month during an investigation into the charges against him. He said that he had been questioned on 4 occasions during his detention for about one hour each time.
The applicant claimed that he had received preferential treatment because he was a government official. He said that he had not been badly treated.
The applicant testified that the accountant in the work unit had been responsible for some deficiencies in the official accounts and that the applicant's supervisor and the accountant had been convicted of offences relating to these deficiencies. The applicant testified that his immediate supervisor and the accountant had each been sentenced to 14 months imprisonment and both were dismissed from the cadre ranks.
The applicant said that the court dismissed the corruption charges against him but found him guilty of supporting the student movement in 1989. However, the applicant said that, despite the formal finding of 'guilty' on the charges of supporting the student movement in 1989, he was not punished for those actions by the court but was released to return to work. The applicant said, however, that he was left without any duties to perform.
The applicant said that he had been persecuted in a political sense because he had not voted for the Director of the work unit.
The applicant said that he had supported the student movement in 1989. He said he had an authority from the work unit to borrow its money. He used this authority to borrow 3000 yuan. He said he donated this money to the student movement. He also said he had repaid this money to the work unit.
The applicant said that notwithstanding the decision of the court in 1990 not to punish him for his making a donation to the student movement, the matter was raised by the Director in mid 1992 at a meeting of staff of the work unit. At this meeting, the Director accused him of supporting the student movement in 1989 and interfering in the running of the work unit by obstructing the Director in the performance of his duties.
The applicant said the dispute with the Director in 1992 arose some months after the release of his former supervisor from prison, when the applicant and his former supervisor approached the Director to try to obtain rectification of their grievances. The Applicant testified that, after this an approach to the Director, he and his supervisor were instructed to remain at home while awaiting a decision. The applicant also said payment of their salaries stopped. The applicant said he has never since received a salary from the work unit but that he has never received any notice of dismissal.
The applicant said that China's system was different from 1989. It would have been better if he had been sent to prison for 1 or 2 years. They did not pass sentence on him. If they had, the work unit would have taken him back under supervision.
In May 1990, he was found not guilty of accounting crimes but guilty of counter revolutionary crimes but was released to go back to work. He said once he was a cadre, he could participate in such activities without it being regarded as an
offence and the Director could only use his support of the student movement as a basis for attacking him.
In an interview with the Department on 19 January 1995, the applicant mentioned another incident in 1990 when his Director decided to recruit his own nephew into the work unit. The applicant considered the nephew to be incompetent, like his uncle, to perform the work required. The applicant's opposition to the appointment of the young man led to a dispute between the applicant and the Director. The applicant said that the Director's nephew was no longer employed in the work unit.
The applicant said that he had begun a small business supplying building materials in 1992. He initially said he begun this business in April 1992 but he then changed the month to May. In the interview with the Departmental Officer, the applicant said he began this business in February 1992. At item 34, Part C, of the application for refugee status, the Applicant had stated that he began this business in April 1992 and his annual income from the business was approximately 20,000 yuan. At the same item in the application, the applicant indicated that the highest salary he had received while working for his work unit had been 145 yuan a month.
The applicant also stated that he had closed his building materials business in November 1993 and began work as a restaurateur. At the same time he said he had entered into an arrangement with a sailor, who was able to travel to Hong Kong, to import colour television sets into China. From the applicant's testimony, it appears he was essentially the silent partner in this endeavour. The applicant said he raised the amount of 100,000 yuan which he needed to begin this business from savings and by taking a loan from a person he described as a "sharp loan organiser who belongs to a criminal organisation". The applicant said he borrowed 40,000 yuan from this man and the balance came from his savings.
The applicant said that the first shipment of televisions was seized by Chinese customs officers in December 1993 when they arrived in China. The applicant acknowledges that the import permits had not been obtained by his partner in this import business so that the action by Custom officers in seizing the televisions was lawful. In his interview with the Departmental officer, the applicant said that his partner had actually been smuggling the televisions into China. However, the applicant gave no evidence to the Departmental officer or to the Tribunal which suggests that the authorities suspected him of criminal actions or that he suffered harm as a consequence of his partnership with the sailor.
When this business endeavour failed after the seizure of the televisions, the applicant still owed money to the lender. He said he made a payment of 58,000 yuan, being capital plus interest, in mid July 1994, after selling his restaurant. However, he said the money lender demanded 200,000 yuan from him as a result of charging 10 per cent interest every 5 days. The applicant said he reported his dispute with this money lender twice to the PSB. However, they refused to help him. He said that only the Law Enforcement group within the PSB could help him and they required him to pay 40,000 yuan for their assistance. The applicant said that the Law Enforcement group was anxious to stop the activities of the money lender and suggested that the applicant assist them with a plan to kill this man during an alleged attempt to escape arrest by the PSB. The applicant said he refused to become involved in such criminal actions by the PSB.
When the Tribunal asked the applicant if he thought this information established a chance he would be persecuted for reasons of his political opinion, he replied "I don't think it does". When the Tribunal asked whether the applicant thought it related to any of the other 5 Convention reasons, the applicant said "I was forced to leave for the two reasons of government persecution and fear of the money lender." The applicant added that he believed the relevant Convention reason would relate to his support for the student movement in 1989.
Departure
The Tribunal asked the applicant about his departure from China. The applicant said he first heard about the departure of the "Cockatoo" on 31 October 1994 when his wife met a friend of hers who came to Australia on the same boat. The Applicant said he made arrangements during the day to go to the port from which the "Cockatoo" was leaving China. He said he boarded the boat on 1 November 1994 and it sailed that evening. The applicant informed the Tribunal that he played no part in organising the trip or in sailing the boat to Australia. The applicant said he did not have permission from the authorities to leave China.
He said he believed he might be sentenced to imprisonment for 3 to 5 years under government regulations for his illegal departure from China. The applicant asserted that as a cadre he would suffer more severe punishment but he was not sure how long he might be gaoled. He said his disputes with the Director of his work unit would lead to it seeking more material against him to lay charges.
The applicant said that he could not find further employment in China and that he, "could only await imprisonment". He asserted that his situation would be hopeless because the authorities had not completed handling his case and he left China illegally. He said "since I am a cadre and regarded as a part of the working personnel of the state... if I return, I'll definitely be dismissed."
Tribunal's Reasons
The Tribunal was not satisfied that the applicant faced a "real chance" of harm from the Director of the work unit if he should return to China. It considered that there was no evidence which showed that the Director had sought to harm the applicant after mid 1992. On the contrary, it found the applicant had been free of any harassment from the Director since 1992. The Tribunal concluded that when the responses of the Director, to the attacks by the applicant, were considered, they did not suggest misuse or abuse of authority, but rather that the Director was responding appropriately to serious management problems within the work unit.
The Tribunal considered that there were deficiencies in the accounts of the work unit and that the Director acted properly in bringing those deficiencies to the attention of the authorities who arrested possible offenders and investigated the deficiencies. There was no evidence to show that the Director played any part in the investigation after he had informed the investigative authorities and there was no basis for thinking that the director improperly influenced the outcome of the investigation into the applicant's activities or his trial.
The Tribunal did not accept the claim by the applicant that his salary had been stopped without explanation and that this led to an inference that the Director was motivated to harm him in mid 1992. The Tribunal pointed to the applicant's own evidence that the building supply business had been established before the salary was stopped. It found inconsistencies in the applicant's evidence and took the view that it could not be sure when the applicant began business for himself. Whichever view was taken, as to the date on which the applicant began business, he had already been in business for about one month before the salary was stopped. It was not considered that the Director was responsible for harming the applicant nor were there considered to be facts to ground a belief that the applicant was improperly dismissed. It was of the opinion that the applicant was open to criticism for drawing a salary from his work unit while in business for himself. The finding on this point was that there was no evidence that the Director sought to harm the applicant at any time or would harm the applicant in the future.
The Tribunal did not accept that the investigation of the applicant or the laying of charges were persecutory. The Tribunal considered that such a submission amounted to a claim that the applicant should have been free of any investigation regardless of evidence that might suggest he had committed a criminal offence.
The Tribunal did not accept that the applicant was mistreated during the investigation before his trial, nor did it find that the court was in any prejudiced against the applicant. The Tribunal was of the opinion that the position was that the applicant had acknowledged criminal offences had been committed by the accountant and therefore it would be likely that there would be suspicions raised with respect to his involvement. It drew a distinction between prosecution and persecution. Once the evidence showed the applicant to be innocent of corruption he was acquitted.
The applicant was suspended without pay with no explanation in 1992. However, the Tribunal did not accept that this amounted to persecution and considered that it was not consistent with the applicant's testimony in relation to when he set up his building supply business. The Tribunal believed that it could not be argued that denial of government employment is persecutory in itself.
The Tribunal considered that the applicant was able to run his business successfully until he chose to begin work as a restaurateur and that this shows that he was not deprived of an opportunity to earn his livelihood. The Tribunal was of the view that the substantial difference between the highest annual salary of the applicant and the takings from the business suggested that he was considerably better off financially, in private business than he had been in government employment. The conclusion was that the applicant did not suffer significant harm as a result of being dismissed form government employment. There was in the mind of the Tribunal a doubt as to whether the applicant was dismissed at all or whether he resigned.
The Tribunal found no evidence of a real chance that the Director would harm the applicant on his return China based on the dispute about the appointment of the Director's nephew.
The Tribunal found that the actions of the Director were connected with his responsibility for the management of the work unit and its staff and that they were not based on any actual or imputed political opinion of the applicant. It did not accept that the dispute should be characterised as political. The dispute related to a management problem within the work unit. The Tribunal did not accept that the charges against the applicant came about as a result of his donation to the student movement.
There was a seizure of television sets but the Tribunal concluded that the seizure was solely connected with the unlawful importation of the sets into China and that there was no connection between that seizure and a Convention reason for persecution.
The threat of harm from a money lender in relation to the private dispute to which the applicant referred, was considered not to be Convention related. It was accepted that the conduct of the money lender was oppressive but nothing in the evidence shows that it was actuated by any of the Convention reasons in the view of the Tribunal.
The final matter to which is referred, is whether the applicant would face a real chance of persecution, if the applicant returned to China, on account of his illegal departure and as a result of the fact that he was a State cadre.
On 30 March 1995 the applicant's solicitor wrote to the Tribunal and stated:
"(a)the Supplementary Provisions stipulate that cadres or functionaries of state organs who assist people to leave the PRC illegally will be imprisoned for a period of 3 to 5 years and that, as a cadre who participated in an illegal departure, the Applicant believes he will suffer such punishment;
(b)local officials implement the Supplementary Provisions and use their position to extract money from illegal departers who, if they cannot pay bribes, face even stiffer penalties; and
(c)cadres who participate in illegal departures are seen as traders and unit leaders and the PSB will persecute them on their return to China in a political manner."
The Tribunal dealt with each of these matters in turn. It did not accept the first assertion that the applicant would be liable to imprisonment for a period of 3 to 5 years. The Tribunal pointed out that even if it were accepted that more severe punishment was imposed on cadres and even if the applicant should be regarded as a State cadre at relevant times, the applicant had stated that such punishment only applied to cadres who "assist people to leave the PRC illegally." When asked during the hearing whether he had assisted in any way with the departure of the boat from China or its passage to Australia, the applicant denied any part in that endeavour. The finding of the Tribunal was that the applicant would not be considered an organiser of the departure and therefore would not be liable to the harsher penalty.
Further, the Tribunal was not satisfied that the applicant's act of departure was politically motivated or that it would be regarded as an implied political statement by the Chinese authorities.
The second matter raised, concerning prospective bribery, was considered to be related to corruption within the Chinese system and not a Convention reason.
The third matter raised, was that the applicant remained a State cadre and as a result would be subject to heavier penalties of 3 to 5 years imprisonment for illegal departure. The Tribunal found that the evidence showed that the applicant had severed his relationship with his work unit before his effective dismissal in June 1992. The finding was that the State employment relationship was ended in 1992. Since that time the applicant had worked independently of the work unit and the Chinese government. The applicant on the other hand submitted that he had been "suspended" and should be regarded as still a State cadre. The Tribunal expressed "serious doubts" as to whether the applicant should still be considered a State cadre, especially when his claim depended solely on his own uncorroborated testimony, in circumstances where other parts of his testimony were found to be false or exaggerated. The Tribunal took the view that even if the applicant was still a cadre he must expect sterner treatment for his offence against the Chinese system, than other members of the community. Even assuming that the applicant might be in prison for a period of 3 to 5 years, the Tribunal was not satisfied that such punishment should be treated as disproportionate to his offence, having regard to the benefits he enjoyed as a member of the elite group of cadres of the Communist Party of China. The Tribunal therefore did not consider that the 3 to 5 year penalty was "harsh or oppressive" to the applicant.
The conclusion of the Tribunal was that the applicant was not a refugee.
Submissions for the Applicant
The specific error of law alleged is that the Tribunal was wrong in deciding that as a State cadre the applicant must expect sterner treatment for the offence of illegal departure and that imprisonment for 3 to 5 years would not be disproportionate to the offence and was not harsh or oppressive and therefore not persecution.
It was submitted that the departure of such a high official would be seen by the PRC as an act of disloyalty and therefore punishment in respect of the departure was for a reason of "political" opinion. It was then said that imprisonment of 3 to 5 years was sufficiently severe to amount to persecution. Accordingly, it was submitted the applicant came within the description of a person who had a well-founded fear of being persecuted for reasons of political opinion within the meaning of Article 1 of the Convention.
The first point to note is that the Tribunal made a positive finding of fact that the applicant would not be considered as an organiser of the departure and would not be liable for the harsher penalty of 3 to 5 years.
It has not been shown, in my view, that there was no evidence on which the Tribunal could have reached that conclusion or that such a conclusion was not otherwise open. There was evidence that, in some circumstances, officials charged with duties related to passport or border control, who organised or assisted illegal departures would be subject to more severe penalties than other persons, but that evidence did not extend to all officials regardless of their duties.
The principal error of law relied on by the applicant is said to be disclosed in the passage of the reasons of the Tribunal which reads as follows:
"Nevertheless, if he is still a cadre, he must expect sterner treatment for his offences against the Chinese system. The Applicant has not chosen to suggest how harsh his punishment as a cadre might be but, even if I assume that he might be imprisoned for a period of 3 to 5 years, I am not satisfied that such punishment would be disproportionate to his offence. Having regard to the benefits he has enjoyed as a member of the elite group of cadres of the Communist Party of China, I do not consider the maximum penalties are "harsh or oppressive" of the applicant." (Emphasis added).
Two complaints are made in relation to this statement. The first is that imprisonment for 3 to 5 years, would be disproportionate to the offence and would amount to persecution. The second is that the Tribunal was not entitled to carry out the balancing exercise referred to in the last sentence which involves weighing the benefits enjoyed by the applicant as a member of an elite cadre of the Communist Party against the severity of the penalties in determining whether the punishment was harsh or oppressive.
Principles
The term "refugee" is relevantly defined in the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol, as a person who:
"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it."
The definition was considered by the High Court in Chan v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
That decision sets out the following considerations relevant for the present case.
The reference to a "well-founded fear" involves a genuine subjective fear coupled with some factual or objective basis for that fear.
The standard to be applied to determine whether the fear is well-founded is not whether a probability or likelihood of persecution exists but whether there is "real chance" of persecution for a Convention reason.
Persecution can exist as a the result of a single act.
Persecution is a wide term. It does not necessarily require loss of life or liberty or the infliction of physical or mental harm. Measures in disregard of human dignity may suffice. Denial of access to employment, to the professions, or to education or deprivation of rights to speech, assembly worship or freedom of movement may also constitute persecution if for a Convention reason.
The well-founded fear of persecution must be on the ground of race, religion, nationality, membership of a particular social group or political opinion.
J C Hathaway in the Law of Refugee Status, 1991, at 41-43, dealing with Illegal Departure from State of Origin considers that, if two conditions are met, the fact that a person departs without authorisation may give rise to a legitimate claim to refugee status. The conditions are:
"First, the country of origin must punish unauthorized exit or stay abroad in a harsh or oppressive manner. The prospect of reasonable penalties for breach of a fairly administered passport law, for example, is not a harm of sufficient gravity to warrant protection as a refugee. On the other hand, where the sanctions for illicit travel abroad are so severe that they affectively negate the fundamental human right to leave and return to one's country, there is the basis for a claim to refugee status.
Second, the illegal departure ... must either be explicitly politically motivated, or the state of origin must view the unauthorised departure ... as an implied political statement of disloyalty or defiance. ... it must be clear that the home country disapproves of illicit emigration, and views those who breach its rules on exit or travel abroad as non-conforming dissidents."
These passages are referred to in the decision of the Tribunal.
The Present Case
It is clear from the Tribunal's reasons that it formulated the correct question when it asked whether there was a "real chance" that the applicant would be persecuted for a Convention reason, if he returned to China.
The Tribunal found that the penalty of imprisonment for 3 to 5 years would not be applied to the applicant.
This finding should not be set aside unless it is shown that it was so unreasonable that no reasonable tribunal could have reached that conclusion. Alternatively, there would be an error of law if there was no evidence on which the Tribunal could reach such a conclusion.
It is apparent from the reasons given by the Tribunal, that extensive reference was made to intelligence gathered from the Department of Foreign Affairs and the Beijing Embassy. Furthermore, reference was made to the Standing Committee National People's Congress (NPC) on Severely Punishing Crimes of Making Arrangements and Providing Transportation for Other People to Secretly Cross National Territories (Borders) of 5 March 1994. It has not been shown that the Tribunal failed to
take this material into account along with the evidence given by the applicant and other material furnished on his behalf.
The material relating to the Supplementary Provisions issued by the above Congress on Severely Punishing Crimes of Making Arrangements (supra) provides that those who transport other people to secretly cross national boundaries are to be punished under Chinse Law by a term of substantially less than 5 years detention or surveillance, and in addition are to be fined. The 5 March 1994 Supplementary Provisions relevantly include a provision that:
"5. Those who secretly cross national territories (borders) shall be either detained by public security organs for less than 15 days, or fined from 1000 to 5000 yuan, or punished with a combination of both. When the circumstances are odious, they shall be punished by a fixed term imprisonment or detention of less than 2 years. In addition, they shall be fined."
There is a reference to more severe punishment for certain state officials, but this applies to those persons in charge of passports, visas and other exit entry documents who knowingly approve secret departures. It also includes customs officials and persons in charge of border-defence who are aware of an attempt to secretly cross. Offences by such officials are punishable by a fixed term of imprisonment, detention or surveillance of less than 3 years.
It appears from this material that the primary concern of the Chinese Government is directed to those who organise and profit from illegal departures.
There is evidence in the present case from the applicant himself that he was not involved in assisting or organising an illegal departure.
In my opinion, in the instant case, there was evidence which would enable the Tribunal to find that there was no real chance the applicant would be subjected to imprisonment for a period of 3 to 5 years.
Nor can it be said that the decision was so unreasonable that no reasonable Tribunal could have made it.
A second matter raised by the applicant is that departure by a member of a State cadre would be perceived by the PRC to be an act of disloyalty and therefore punishment for such departure was persecution by reason of the applicant's political opinion. This was rejected by the Tribunal. Again, in my view it cannot be said that there was no evidence on which the Tribunal could come to this conclusion or that it was not reasonably open to the Tribunal.
Mere departure, of itself, as Hathaway points out, does not entitle a person to refugee status without more. Departure in
itself is a politically neutral act. See also Wu and Feng v Minister for Immigration and Ethnic Affairs, (9 August 1995, unreported, Tamberlin J). In my opinion, having regard to the material from the Department of Foreign Affairs and the evidence before it, the Tribunal was entitled to reach the conclusion that the action which the PRC might take against the applicant on account of the illegal departure would not amount to punishment of such a harsh or oppressive nature as to amount to persecution.
It has not been shown by the applicant that there was a real chance that the PRC would treat those who breached its emigration laws as non-conforming dissidents. Nor is there any objective evidence, that there was a real chance that cadres would be treated any differently. There is no evidence that the act of departure taken alone is treated as disloyalty or dissent from the government political opinion. There was evidence that returnees from Australia would be treated by the PRC as "misguided" rather than as having associated with any criminal elements. See Department of Foreign Affairs Cable Document CX 1985 dated 8 June 1994 entitled "Request for Information: Illegal PRC Emigrants - Level of Fines and Punishment" annexed at page 84 of the Affidavit of Suzanne Varey filed 6 July 1995.
As to the submission that the Tribunal was not entitled to weigh the benefits enjoyed by cadres when considering whether the penalty was "harsh or oppressive", all that the Tribunal was saying, on my reading, is that in its opinion members of a cadre hold a certain status in China which attracts additional social or other benefits above those conferred on other members of Chinese society. Accordingly, this consideration may be seen to afford a proper basis for imposing a greater penalty on members of such a privileged group if they leave their positions or leave their country illegally and elect to live in another country. Indeed, the applicant stated to the Tribunal that he had received preferential treatment during his Beihei detention by the PSB in 1992 because he was a government official. There may be many legitimate, "non-political" reasons for imposing a more stringent deterrent to the exodus of State cadres. For example, a government may want to discourage a "brain drain" or the loss of experienced and talented administrators. It might also be feared that the departure of a significant number of high officials might induce other nationals to depart. Their departure may be properly perceived as more reprehensible and to call for more stringent sanctions. Accordingly, a consideration of the proportionality of the punishment adverted to by the Tribunal was not an extraneous consideration in deciding whether the punishment was harsh or oppressive.
Moreover, there is no indication that the Tribunal gave any undue or controlling weight to the view that cadres receive greater benefits from the State and therefore might reasonably be subjected to harsher penalties than others who depart illegally.
There are two further submissions to which reference needs to be made.
The first is that no positive finding was made as to whether the applicant should be treated as a State cadre. The Tribunal did express doubt on this question but made no finding on it. This doubt was based on the fact that the applicant had taken private employment before his departure. However, nothing turns on this. The Tribunal found that "nevertheless, if he is still a cadre, he must expect sterner treatment for his offences against the Chinese system." Accordingly, this part of the Tribunal's reasoning is based on the assumption that he is a State cadre.
The second matter relates to the solicitor's letter of 30 March 1994. The submission is that there was an error of law disclosed because the Tribunal did not consider the letter as a whole, but rather as raising three separate matters which were considered as discrete considerations. In response to this submissions suffice it to say that there is no evidence, as opposed to speculation, that the Tribunal so acted.
Furthermore, paragraphs (a) and (c) of the letter, which were the only relevant paragraphs, clearly inter-relate on their face. Both paragraphs refer in substance, for example, to cadres who "participate" or assist in "illegal departures". I am not persuaded that in considering and expressing its views
on the assertions made in this letter, the Tribunal segregated the paragraphs, and did not read the letter as a whole.
Moreover, the reasoning of the Tribunal in relation to this letter supports this reading, For instance, when dealing with paragraph (a) express reference is made by the Tribunal to the question whether illegal departure by the applicant would be regarded as an implied political statement.
Finally, it is clear that the Tribunal has directed its mind to the correct questions in reaching its ultimate conclusion that there was no real chance that the applicant would suffer persecution for a Convention reason on account of his illegal departure from China.
In the light of the above reasons, it is my view that there was no relevant error of law in the Tribunal's decision and therefore the application should be dismissed with costs.
I certify that this and
the preceding twenty-seven (27)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 21 December 1995
Counsel for Applicant: Mr H Christie
Solicitor for Applicant: Legal Aid
Counsel for Respondent: Mr P MacLiver
Solicitor for Respondent: Australian Government Solictor
Date of Hearing (Perth): 21 November 1995
Date Judgment Delivered (Sydney): 21 December 1995
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