Xiong, Wu Guo v The Minister for Immigration & Ethnic Affairs
[1995] FCA 595
•9 AUGUST 1995
CATCHWORDS
ADMINISTRATIVE LAW - application to review decision of Refugee Review Tribunal - whether applicants entitled to protection as refugees under Migration Act 1958 (Cth) - whether protection visas should be granted - whether decision of Tribunal reasonably open to it on the material before it.
IMMIGRATION LAW - refugee status - whether well-founded fear of persecution as a result of illegal departure from China - effect of applicant being an organiser of departure - whether likely punishment for illegal departure constitutes persecution for reasons of political opinion - whether departure an expression of political opinion.
Migration Act 1958 (Cth)
Minister for Immigration and Ethnic Affairs v Respondent "A" and Respondent "B" and Janet Wood, The Refugee Review Tribunal (Full Federal Court, unreported, 16 June 1995)
C, LJ & Z v Minister for Immigration and Ethnic Affairs & Ors (unreported, O'Loughlin J, 30 March 1995)
The Law of Refugee Status, James Hathaway, Butterworths Canada Ltd, 1991
"The 1951 Convention Definition of Refugee : An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants", Patricia Hyndman, (1987) 9 Human Rights Quarterly 49.
DECISION OF REFUGEE REVIEW TRIBUNAL
DATED 12 APRIL 1995 TO BE REVIEWED
WU GUO XIONG AND JIAN XIU FENG v
THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
No WG 41 of 1995
Tamberlin J
Sydney
9 August 1995
IN THE FEDERAL COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY ) No WG 41 of 1995
GENERAL DIVISION )
DECISION OF REFUGEE REVIEW TRIBUNAL
DATED 12 APRIL 1995 TO BE REVIEWED
BETWEEN: WU GUO XIONG
First Applicant
JIAN XIU FENG
Second Applicant
AND THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
First Respondent
JILL TOOHEY
Second Respondent
CORAM: TAMBERLIN J
PLACE OF HEARING: PERTH
PLACE OF JUDGMENT: SYDNEY
DATED: 9 AUGUST 1995
MINUTE OF ORDERS
THE COURT ORDERS THAT:
The application be dismissed.
The applicants pay the respondent's costs of this 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. WG 41 of 1995 GENERAL DIVISION )
DECISION OF REFUGEE REVIEW TRIBUNAL
DATED 12 APRIL 1995 TO BE REVIEWED
BETWEEN: WU GUO XIONG
First Applicant
JIAN XIU FENG
Second Applicant
AND THE MINISTER FOR
IMMIGRATION & ETHNIC
AFFAIRS
First Respondent
JILL TOOHEY
Second Respondent
CORAM: TAMBERLIN J
PLACE OF HEARING: PERTH
PLACE OF JUDGMENT: SYDNEY
DATED: 9 AUGUST 1995
REASONS FOR JUDGMENT
Nature of Application
This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") dated 12 April 1995, that the applicants are not entitled to protection as refugees under the Migration Act 1958 (Cth) ("the Act") and refusing them protection visas. In the amended application ten grounds of review were raised but before me only two of those grounds were raised namely:
"4(i) The persecution feared by the First Applicant results from the Applicants' membership of the social group of persons persecuted by reason of being unwilling to comply with China's one-child family policy and therefore is persecution for reasons within the ambit of the Refugees Convention.
(j)In the alternative, the Applicants' departure from China was an expression of political opinion which arose from the Applicants' dislike and fear of the Chinese government and its officials, including the local Family Planning officials and the First Applicant has a well-founded fear that he will suffer persecution as a result of such departure." (Emphasis added)
In view of the recent decision in Minister for Immigration and Ethnic Affairs v Respondent "A" and Respondent "B" and Janet Wood, The Refugee Review Tribunal (Full Federal Court, unreported, 16 June 1995) ground (i) was the subject of formal submission made, but not argued, that the Full Court decision was wrong. Accordingly, the only ground pursued before me was that set out in (j) above.
The orders sought by the applicants are that the decision of the Tribunal be set aside and that the matter be referred back to the Tribunal to be decided according to law.
Claims and Background Facts
The applicants' claims to refugee status and claims made on behalf of their son, were based on China's population control policy, commonly referred to as the "one child policy" and their illegal departure from China. As can be seen from the above outline, the only matter argued was the question of illegal departure and whether the departure from China was an expression of "political" opinion such that punishment for such departure could be classified as persecution for a reason of holding a political opinion.
The statement of facts and claims set out below is taken from the decision of the Tribunal.
Mr Wu and Ms Jian were born in Di Jiao, a fishing village outside Beihai in Guangxi province. They were married in 1987. Their daughter, Wu Jia Qiong, was born in August 1987 and their son, Wu Jia Wei, in May 1994. Since before her marriage, Ms Jian worked in a division of a Beihai paint company. Mr Wu had worked as a fisherman and sailor since 1984.
After the birth of their daughter, Ms Jian was told she had to have an intra-uterine device ("IUD") fitted in accordance with local family planning regulations which require couples to take contraceptive measures after the birth of their first child. The couple claimed that they were both dismissed from
their jobs early in 1988 because of their refusal to allow an IUD to be inserted in Ms Jian.
Ms Jian and Mr Wu claimed that they decided to resist having an IUD inserted because of their fears that it would result in Ms Jian's sterilisation. They said they offered to give Ms Jian's work unit and the local family planning office a written undertaking that they would have an IUD fitted four years later, after they had a second child, but their offer was refused. They claimed they were both dismissed after their employers came under pressure from local family planning officials.
After her dismissal, Ms Jian set up a small business with her mother and sister, buying and selling cuttlefish. Depending on the weather, and whether or not they could dry cuttlefish, their income varied. Ms Jian's income averaged around one hundred yuan per month. In her previous employment, which was on a contract basis, she earned one to two hundred yuan per month, sometimes more, depending on the available work.
Prior to his dismissal, Mr Wu's income was around two to three hundred yuan per month. After his dismissal he was self-employed and worked casually, earning up to five hundred yuan per month and, on average, between three and four hundred yuan. Mr Wu conceded in oral evidence that his income was in fact better after his dismissal but claimed that, in effect,
with inflation, there was no significant increase in his income.
After their dismissals, Ms Jian and Mr Wu had no trouble from family planning officials for some years. In that time, their contraception consisted of a combination of condoms and monthly injections which Ms Jian obtained from the family planning section of a local hospital for two to three yuan and which she administered to herself. She was given a note by the hospital each time she received the injection; she would present the note to her local family planning office every two or three months as proof of her ongoing use of contraception. In oral evidence Ms Jian stated that she wanted to be law-abiding and to comply with the population control policy as best she could; she tried to work within the government's policy so that she would not become pregnant before the four year interval required between births in her area. According to Ms Jian, the matter of the IUD was not discussed again by family planning officials after her dismissal. Although she stated that her method of contraception did not satisfy her local family planning office, there was nothing in her evidence, or that of her husband, to suggest that, during the time they were using the condoms and injections, family planning officers were dissatisfied with their form of contraception. If they were, they did not express their dissatisfaction or take any action against the couple.
In 1991 Ms Jian made inquiries about obtaining permission to have a second child. The local family planning office told her that permission was needed from a higher office. This appeared to the Tribunal to accord with the local regulations (Guangxi Zhuang Autonomous Region Family Planning Regulations, Article 10). In February 1992 Ms Jian was visited at home by family planning officials and told that permission had been granted; she could use her quota to have a second child as long as she went to their office and made application. Ms Jian told the Tribunal that, because her work was too busy at the time, she did not go to the office to apply for the permit until March or April 1993.
When she went to the family planning office in 1993, Ms Jian was told that she had to pay a fee of 1000 yuan for the permit. She argued that she should not have to pay the fee as it had not previously applied. She was told by an official that the fee was in accordance with a new national policy. Ms Jian argued strongly with the official, abusing him and calling him a robber. At the same time, Ms Jian claimed, a neighbour who was a relative of the official and who already had two children, was at the office. Ms Jian claimed that, as she went into the office, her neighbour was just coming out. In her hand she had a birth permit on which Ms Jian's name had been crossed out and the neighbour's inserted. She was going to use Ms Jian's permit to have a third child.
It was apparent to the Tribunal, from her oral evidence, that Ms Jian was strongly opposed to the principle of having to pay the fee for the birth permit: she considered it to be an abuse of power. She told the Tribunal that she did not know whether the fee was something everyone had to pay but she was insistent that the permit was hers, that it should be available to her at any time she wished without charge. In addition, both she and Mr Wu also claimed that they could not afford the fee, which was the equivalent of two to three months' living expenses. They maintained that, in any event, they should not be required to pay it. They claimed they were effectively denied the right to have a second child because of the illegal imposition of the fee.
In 1990 Mr Wu and his brother each bought shares in a boat owned by his brother-in-law. For his share, Mr Wu paid 20,000 yuan which he borrowed from relatives and friends. In 1991 the boat was involved in an accident and sank. After that, Mr Wu assigned his share to his brother who paid for the boat's salvage and repair. The 20,000 yuan loan was repaid gradually over several years and was finally paid off in 1994. According to Ms Jian, their relatives did not press for the money so they repaid them when they were able.
Ms Jian was asked by the Tribunal whether she and her husband considered paying the 1000 yuan fee for the birth permit instead of paying their relatives. She maintained that they could not afford it, but in any case, they felt they should not have had to pay for the permit. When he was asked the same question, Mr Wu said that they did not have time to pick up the permit.
In May 1993 Ms Jian heard through a relative who worked in the family planning office that her name was on a list of women to be detained by family planning officers. She went into hiding at an aunt's house. Her husband went into hiding somewhere else, she did not know where. She remained in hiding for several months, both she and her husband returning home for brief visits from time to time. Her mother-in-law told her that, several days after she went into hiding, more than twenty family planning officials came to the home looking for her. They said they had come to arrest Ms Jian but did not say why.
A written submission by Ms Jian stated that in May 1993 she "was advised by a relative that she was on a list of people to be detained by [family planning officers] to have an IUD fitted during an upcoming campaign." In oral evidence, however, Ms Jian stated that she did not know why the officials planned to arrest her; her relative asked whether she had offended a family planning official; Ms Jian told him that she had abused an official. In his evidence, Mr Wu claimed that the officials came in May 1993 because he and his wife did not have a permit for their second child. It was put to him that his wife was not pregnant until September 1993. Mr Wu claimed that, after such a long time, the officials would have known the couple was planning to have a second child. He added that his wife's argument with the official may have provided an excuse to arrest her.
From May, Ms Jian claimed that she returned home only occasionally and stayed only two or three days each time. During the time she was at her aunt's, she was unable to obtain her regular contraceptive injections. In September 1993 she found she was pregnant. Her son was born in May 1994. When her waters broke she went to a local hospital which demanded to see her birth permit before delivering her child. She pleaded with doctors to deliver her child. She had to pay 400 yuan for the delivery and to stay in hospital for several days after the birth. Ms Jian told the Tribunal that the hospital fees for the delivery of her first child, for whom she had a permit, were also approximately 400 yuan.
Ms Jian returned to her home in June 1994. Mr Wu returned at about the same time. About a week later, family planning officials came to Ms Jian's home and demanded she pay a fine of 3000 yuan for having her second child without a permit. She was told she would be locked up or her property confiscated if she did not pay. She found 300 yuan at home and borrowed 200 yuan from relatives and said she would pay the rest later. She was told she had until February 1995 to pay a further 2000 yuan at which time consideration would be given to providing household registration for her son. She made no further payments. The couple claimed that, even if they make full payment, corrupt officials will simply continue to demand payments from them.
Ms Jian claimed that, in July 1994, family planning officials came to her home and forced her to go with them to be sterilised. Her husband was not at home at the time and she pleaded with the officers to be allowed to wait until he returned. She claimed that they refused and took her to a local hospital. The doctor there was against performing the operation because Ms Jian had flu at the time but the official signed a consent form on her behalf, stating that they would be responsible for any consequences. Since the sterilisation Ms Jian has suffered from back pain and she feels generally weak.
Ms Jian claimed that, at the time the sterilisation was performed, she asked the head family planning official to ensure household registration for her son was arranged. He told her he would discuss it with her later, after she returned home. In oral evidence, Ms Jian claimed that she also asked Public Security Bureau ("PSB") officers about household registration for her son and was told that permission of the family planning officials was needed first. Ms Jian later discussed the registration again with the family planning official. It did not appear, from her evidence, that the matter of household registration was discussed with the official after July 1994.
Ms Jian claimed in oral evidence that, when she inquired again of the family planning official, she was told that a decision had been made by a higher authority that, as she had no permit, no household registration would be granted. This contrasted with her earlier statement to the Department of Immigration and Ethnic Affairs ("the Department") and written submission to the Tribunal that she was told that the matter would be considered further after February 1995. Ms Jian conceded that she had stated at her interview with the Department that she had until February 1995 to pay the fine and that the family planning official was waiting for a reply from a higher authority about household registration. She advanced several reasons for not stating at the interview that household registration had actually been refused: that she was poorly educated, that she did not think it important to mention that household registration for her son had actually been refused, and that she had forgotten to mention it.
It was submitted by Ms Jian's representative that he believed that she may have in fact stated at the interview that a higher authority had actually decided her son could not be registered. It was agreed at the hearing that the representative and the Tribunal would listen to the tape recording of the interview to see whether in fact the claim had been made.
The interview was tape recorded onto two tapes. The first tape ended with a long discussion as to what Ms Jian was told about household registration. The tape ended with the Departmental officer saying: "Look - I've got to change the tape - we'll finish talking about this then we'll have a break." Ms Jian's evidence to that point had been consistent with her written submissions and did not refer to her being told that a higher authority had refused the household registration. The second tape was blank for reasons that were not known: presumably there was some mechanical failure in the recording equipment. In any event, there was no record of the rest of the interview.
The Tribunal stated that it was impossible to know whether Ms Jian made the statement at the interview that she was actually told that household registration had been refused. On balance, the Tribunal did not think that she did: it was noted that in the conversation as recorded on tape she made no reference to that claim; given the questions she was asked to that point, she had several opportunities to do so and it was reasonable to expect that she would have. Moreover, when the apparent discrepancy in her statements was put to Ms Jian at the hearing, she did not initially claim to have previously made the statement, but rather, claimed that there were several reasons for failure to mention it earlier. She only claimed that she had mentioned it after it was put to her by the Tribunal that it was a significant matter to have forgotten.
Ms Jian's written submission, which was prepared with he assistance of a lawyer, stated: "The applicant's second child did not, and still does not, have household registration (hukou). The applicant requested that the child be granted hukou when she paid the 500 yuan and the [family planning official] stated that they would have a meeting and discuss it. The child has not subsequently been granted hukou. The applicant was given a deadline of February 1995 to pay a further 2000 yuan of the fine. The applicant is certain her son would not be granted hukou even if she were in a financial position to pay the fine ... even if she could pay the fine, the corrupt [family planning officials] would merely fine her again." This was consistent with Ms Jian's statements - as far as they were recorded - to the Departmental officer. A written submission prepared on behalf of Wu Jia Wei stated that his mother "has been told by [family planning officials] that it is difficult to register her son without a birth permit". Even if Ms Jian did make the claim at the interview that she was actually told that household registration was denied to her son, for the reasons set out below, the Tribunal did not accept that her claim was truthful.
Ms Jian and Mr Wu claimed that, as a result of the sterilisation of Ms Jian their fundamental human rights have been breached. Their written submissions described those rights as, alternatively, the right to determine freely and responsibly the number and spacing of their children, and the right to control their fertility by the contraceptive method of their choice. Each stated that they wished to have more children, although Mr Wu only claimed to want a third child after pressing by the Tribunal as to what effect his wife's sterilisation had on him: the principal effect he claimed was that, since the operation, she had been weak and suffers from back pain and he now has to look after her.
Further, Ms Jian claimed that her sterilisation, which was by way of a tubal ligation, is reversible. She stated that she was prepared to undergo a medical examination to determine the reversibility of her sterilisation and that she would like to have it reversed so that she can have two more children as playmates for her present children. She stated that she knows a woman whose two children died and who was given permission for a reversal. She claimed that the possibility therefore arises that, in those circumstances, she would again face sterilisation.
Mr Wu and Ms Jian started making plans to leave China in August 1994. Mr Wu told the Tribunal that the purchase of a boat was a co-operative effort. Each adult paid 5000 yuan for the passage. Ms Jian and Mr Wu raised 8000 yuan by selling everything they owned of any value and relatives helped them with the rest. The money was pooled for the purchase and repair of the boat, with what was left over being returned to the passengers in equal shares. Mr Wu told the Tribunal that everyone involved helped in organising and that passengers were recruited by word of mouth. He claimed that, with four others, he was a principal organiser and that he was appointed captain because of his skills and experience and because only he knew the route to be taken. Mr Wu told the Tribunal that, at one point in the voyage, the boat was chased by PSB officers and that it was he who steered the boat way from them.
Mr Wu and Ms Jian claimed that they face treatment amounting to persecution because of their illegal departure from China. In particular, Mr Wu claimed that his role as organiser and captain of the boat means that he faces additional penalties amounting to persecution.
In his written submissions, Mr Wu claimed that his harassment by the authorities dated back to late 1989 when PSB officers came to his home looking for a cousin of his who had been involved in the protests in Tiananmen Square. Mr Wu was questioned about his cousin's whereabouts and was accused of harbouring him. In oral evidence Mr Wu stated that he was warned by the officers but they did not visit him again about this matter and he had no further contact with he authorities after the end of 1989 in relation to his cousin. There was nothing to suggest that the visit in late 1989 was linked in any way to problems the couple claimed to have had with family planning officials. The Tribunal found that this incident had no connection to Mr Wu's dealings with family planning officials and that it was for the purposes of the claims before it, irrelevant. It was not in itself persecutory; nor did it form part of a course of conduct directed against Mr
Wu. It could not be the basis for a finding of cumulative persecution as submitted by him.
It was submitted by Ms Jian and Mr Wu that, despite their "utmost endeavours" they have been unable to obtain household registration for their son. Without household registration, their son will be denied access to a range of benefits, the cumulative effect of which will amount to persecution. Without it, his parents will have to meet the costs of his education, something they cannot afford; he will not receive medical care from the State, or State-subsidised food or allocation of housing or land. As a "black" child, he faces a life of gross discrimination amounting to persecution. Both Ms Jian and Mr Wu stated in their written submissions and in oral evidence that their son's inability to obtain household registration was one of their primary motivations for leaving China.
Tribunal Findings
The relevant finding of the Tribunal in relation to the illegal departure claim was as follows:
"Countries have a legitimate right to enact laws to regulate the flow of nationals and non-nationals across their borders and to impose penalties for any breach of those laws. In my opinion the punishment which would be imposed upon Ms Jian as a consequence of her illegal departure from China would not be unduly harsh or excessive and would not in itself be of such severity as to constitute persecution. In Mr Wu's case, the punishment may be harsh and excessive by our standards. However, even if such
punishment could be said to amount to persecution, it must be directed against him for a Convention reason in order for the claim to succeed.
It is apparent from the information quoted above that the Chinese government does not regard illegal movement of people by boat to Australia as having a political motivation and it does not ascribe any political views to such people. This is particularly the case with persons from the Applicants' province of Guangxi. Moreover, nothing in the evidence before me suggests that the imposition of any punishment would serve an underlying political purpose. Taking that evidence into account, and in the circumstances of this case, in which no element of political opinion is associated with the Applicants' departure from China or the punishment they may face, I find that any punishment by reason of their illegal departure is not a matter within the ambit of the Convention."
The Tribunal went on to find that none of the applicants was a refugee within the meaning of the Convention. Accordingly, they were not entitled to protection as refugees under the Act. The decision of the delegate of the Minister to refuse them protection visas was affirmed.
The Convention
For the purposes of s 36(2) of the Act, "Refugees Convention" means the 1951 Convention relating to the Status of Refugees ("the Convention") as amended by the 1967 Protocol relating to the Status of Refugees ("the Protocol"): clause 866.111 of Schedule 2 to the Regulations. As a party to both instruments Australia has protection obligations to persons who are
refugees as defined therein. Under Article 1 of the Convention, a refugee is any person who:
"... owing to 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 ..."
Applicants' Submissions
On behalf of the applicants it was submitted that the decision of the applicants to leave China was an expression of political opinion and was the ultimate form of protest to be made by the applicants against the Chinese government and its policy. By departing China it is submitted that the applicants have manifested their dislike and fear of the government. It is said that the applicants' treatment by the Chinese authorities and in particular by the family planning officials caused the applicants to dislike and fear the Chinese government and accordingly to leave China. This treatment, it is said, involved harassment by the Chinese PSB over a cousin's involvement at Tiananmen Square; a fine as a result of the birth of their second child; forcible sterilisation; dismissal from their employment following refusal to have an IUD fitted and denial of household registration for their son. It is pointed out that in order to escape, the first applicant
became an organiser of the illegal departure of the "Cockatoo", a refugee boat, and was appointed captain.
Reference is made on behalf of the applicants to paragraph 83 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status which provides:
"An applicant claiming fear of persecution because of political opinion need not show that the authorities of his country of origin knew of his opinions before he left the country. He may have concealed his political opinion and never have suffered any discrimination or persecution. However, the mere fact of refusing to avail himself of the protection of his government, or a refusal to return, may disclose the applicant's true state of mind and give rise to fear of persecution. (Emphasis added)"
A further submission is that the question of "persecution" is not to be assessed with reference to the motivation or intent of the persecutor and that a persecutory effect suffices. Reference is made to the decision in C, L J & Z v Minister for Immigration and Ethnic Affairs & Ors (Unreported, O'Loughlin J, 30 March 1995, at pp 30-33).
It is also said that the Tribunal accepted that the first applicant would be likely to face persecution as captain and as a suspected organiser of the boat and that the persecution he would suffer is the result of his expression of political opinion, namely his decision to leave China because of his fear and hatred of the Chinese government and officials. It is said that he will be persecuted for the action of leaving China as a result of holding views which are critical of the governments's policies and methods.
Tribunal Reasons
In its reasons for decision the Tribunal referred to The Law of Refugee Status, James C Hathaway, Butterworths Canada Ltd, 1991 at 40-41 where it is stated:
"The mere fact that an individual either departs her country or stays abroad without authorisation does not always entitle her to refugee status. However, if two conditions are met, a genuine refugee claim may be established.
First, the country of origin must punish unauthorised 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 effectively 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 or stay abroad must either be explicitly politically motivated, or the state of origin must view the unauthorised departure or stay abroad as an implied political statement of disloyalty or defiance." (Emphasis added)
Neither of the two conditions referred to above were considered by the Tribunal to exist in the present case.
The Tribunal agreed with the above approach and went on to consider the nature and severity of the penalties imposed on those who have departed China illegally and the view which the Chinese authorities take of illegal departure. There then follows a careful, detailed examination of a body of information and intelligence relating to the policies of the Peoples Republic of China dating from 1992 through to present times. This material includes the Supplementary Regulations issued by the Standing Committee of the National People's Congress regarding the enforcement of severe penalty in Organising and Sending Others Away From the Country (border) Illegally. These provisions came into effect on 5 March 1994.
There is reference in the decision to the opinions provided by a number of legal and other experts in relation to previous Chinese controls relating to illegal departure and the application of laws relating to such departures and in particular as they are applied to boat people. The relevant regulations are set out. In addition there is reference to a number of Department of Foreign Affairs and Trade cables, from 23 June 1992 up to the present time. There is reference to the fact that a number of persons who have departed China illegally for Western countries have been repatriated to China and some examples are given as to their treatment. In addition to references to these cables, there is reference to the South China Morning Post with respect to the fate of passengers from a refugee boat which had returned to China from the United
States. The persons on this boat were held in prison pending the payment of substantial fines.
The most recent material available to the Tribunal was in a Departmental cable of 23 January 1995. The Department reported that they "are not sure how much is currently actually levied in fines and/or administrative charges in Guangxi". It goes on to say:
"... no-one we have spoken to has heard of prison sentences being part of the punishment or deterrent policy in Guangxi. In addition, our US contacts said that they had never been given any indication by official or unofficial contacts that education-through-labour camps are used as a deterrent in Guangxi the way they are in Fujian."
The finding of the Tribunal was that if the applicants were considered by the Chinese authorities to be merely passengers, it would seem most likely their cases would come within Article 5 of the Regulations and the period of detention would be less than 15 days and a fine would be of relatively modest proportions and be consistent with penalties reported by the Department and others as having actually been imposed on returning nationals. In the case of Ms Jian there was nothing to support the suggestion that she would be regarded as anything more than an ordinary passenger.
On the other hand, if the Chinese authorities decided, as claimed by Mr Wu, that he was involved in organising and
piloting of the "Cockatoo", he may well receive more serious punishment including imprisonment. The decision goes on to say that this will not in itself bring the punishment within the scope of the Convention unless it can be said to be imposed for reasons of a Convention character. The decision regards as "purely speculation" a submission that the group of people on the "Cockatoo" faced harsher treatment than those previously returned, although it considered that it may not be entirely unreasonable to speculate that in order to deter future illegal departures, the Chinese authorities may impose harsher penalties than previously. However, this is essentially a matter of immigration control and to some extent of speculation.
The reasons for decision then go on to express the detailed conclusions quoted in full earlier in this decision.
Conclusions on this Application
The only question ventilated before me was the issue whether, in the present circumstances, the likely punishment for illegal departure can be said to constitute persecution for reasons of political opinion.
Obviously, in leaving one's country of origin there may be an indefinite number of possible operative reasons. These may include, for example, economic betterment; health; better educational opportunities for the persons leaving or their present or future families; better social conditions; a healthier or safer environment; and many other causes. The act of leaving the country of origin is politically neutral conduct. It may indicate dissatisfaction or dislike of social or political conditions in the country of origin but not necessarily so. At most, it may indicate a preference for another country in which to live and work.
Likewise, the fact that a national leaves in an illegal manner and therefore becomes liable to punishment, in the nature of a fine or imprisonment is again, of itself, neutral from a political viewpoint. Moreover, the fact that a person leaving may have been the organiser of the illegal departure is in itself not necessarily relevant to the holding of political opinion.
In my view, the act of leaving, taken alone, cannot be said to carry with it either a necessary or probable finding that the departure is an expression of political opinion. There may equally be perceived social, economic, cultural or other subjective benefits leading to departure.
Accordingly, liability to punishment in the nature of a fine or imprisonment for breaching migration laws or controls, does not mean that there is any persecution at all or any persecution for a political reason.
However, if the history of the matter is such that a person has been expressing political opinion against the controlling regime or has aligned with particular political groups, or is liable to be persecuted for political views, then these factors could well colour the act of departure so as to make it in effect part of the manifestation of political opinion in opposition to the government. An illegal departure in such circumstances may confirm that a person has a subjective fear of persecution. To "vote with one's feet" may be an eloquent expression of deep-rooted fear. It all depends on the particular context and circumstances. However a decision to leave because of fear of the government or officials, unless that fear is founded on a Convention ground, does not so colour the act of departure so as to make the person so departing a refugee.
Countries are, as pointed out by the Tribunal in its reasons for decision, entitled, consistently with the Convention, to control immigration and emigration from their country provided, as Hathaway notes, that such control is not arbitrary or oppressive.
Although not decisive it is significant, in this case, that the Chinese government's migration controls are of general not selective application. On their face they affect all persons who breach the departure laws. The Tribunal did not make any finding that although of general application on their face, the migration controls against illegal departure were discriminatory or were in reality directed to persons who expressed any particular political opinion. Compare "The 1951 Convention Definition of Refugee: An Appraisal with Particular Reference to the Case of Sri Lankan Tamil Applicants," Patricia Hyndman, (1987) 9 Human Rights Quarterly 49 at 71.
In the instant case the Tribunal has found, as a fact, that the treatment faced by the applicants does not give rise to a well-founded fear of persecution.
Given the findings of fact made by the Tribunal and the material before it in the present case, I do not consider that the act of illegal departure even when considered against the background that Mr Wu made the arrangements; organised the departure; and assumed the role of "captain" of the vessel can be said to amount to an expression of political opinion notwithstanding that the illegal departure may expose him to fines, imprisonment or both. What is sought to be punished here is breach of migration controls and not expression of political opinion or views orally, in writing or by conduct. Sanctions imposed on a person by a government for breach of its migration laws does not make the person a "refugee" for Convention purposes.
Conclusion
In the present case my conclusion is that it was reasonably open to the Tribunal to reach the conclusion which it did on the material before it and to which it referred in its reasons.
I therefore dismiss the application with costs.
I certify that this and
the preceding twenty-six (26)
pages are a true copy of the
Reasons for Judgment herein of
his Honour Justice Tamberlin.
Associate:
Date: 9 August 1995
Counsel for Applicants: Mrs V Moss
Solicitor for Applicants: Legal Aid Commission, WA
Counsel for First Respondent: Mr P Macliver
Solicitor for First Respondent: Australian Government Solicitor
Date of Hearing: 18 July 1995 (Perth)
Date Judgment Delivered: 9 August 1995 (Sydney)
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