Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs

BC 9502828

(Judgment by: Beaumont J)

Qui
v Minister for Immigration & Ethnic Affairs & Another

Court:
Federal Court of Australia

Judge:
Beaumont J

Judgment date: 29 August 1995

Judgment by:
Beaumont J

REASONS FOR JUDGMENT

INTRODUCTION

The applicant, a citizen of the Peoples Republic of China, arrived in Australia on 16 December 1993 without a passport or other travel documents. On arrival at Cairns International Airport, he sought political asylum in Australia. His application for refugee status for Convention purposes has been refused by the Minister's delegate and, on two occasions, by the Refugee Review Tribunal ("the Tribunal").

By his second further amended application for review filed on 17 August 1995, the applicant seeks judicial review of the two decisions of the Tribunal. The application is made under the Administrative Decisions (Judicial Review) Act 1977 ("the AD(JR) Act") and under s.39B of the Judiciary Act 1903. The Court's accrued jurisdiction is also invoked. The application is also made under ss.476 and 478 of the Migration Act 1958, ("the Act"). By those provisions of the AD(JR) Act, jurisdiction is conferred upon the Court to review, on legal grounds, certain decisions of the Tribunal (there referred to as "RRT-Reviewable Decisions").

In the first decision of the Tribunal ("the first decision"), made on 14 May 1994, Mr R.A. Fordham, a member of the Tribunal, affirmed, inter alia, the decision of the Minister's delegate that the applicant was not a refugee within the meaning of the Convention relating to the Status of Refugees as amended by the Protocol relating to the Status of Refugees. Under Article 1, s.A(2) 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

In the second decision of the Tribunal ("the second decision") made on 24 May 1995, Ms Kay Ransome, decided, inter alia, that the applicant was not a "refugee" as aforesaid. Upon the present application coming on for an expedited hearing (the expedition having been granted for reasons related to the health of the applicant), the Court was informed that, by consent, orders could be made that the second decision be set aside and that the matter be remitted to the Tribunal for a fresh hearing in accordance with law. I raised with the parties the question whether the application to set aside the first decision should be stood over pending the outcome of a fresh hearing of the second matter by the Tribunal. Both parties opposed this, relying on s.416 of the Act. Section 416 provides that if a non-citizen, as the applicant is, has made application for reviews of RRT- reviewable decisions, the Tribunal, in considering the further application, is not required to consider any of the information that was considered in the earlier application; the Tribunal may have regard to, and take to be correct, any decision which it has made because of that information. For this reason, although not without misgivings on my part, the hearing of the application to review the first decision proceeded.

THE NATURE OF THE PRESENT APPLICATION

Although there were many objections to evidence made by the Minister on the ground that the material was not relevant, and this material was admitted subject to that objection, there was no real dispute about the material that was before the Tribunal. The real factual dispute was as to the scope of the information available to the Tribunal from other sources which was not, it appears, sought after by the Tribunal. This question considering the issue of constructive notice developed into a major issue, and it appears that when this issue comes to be resolved, if this is necessary, it will be neither straightforward factually nor legally.

Nonetheless, in terms of the primary facts, there was no real dispute about the nature of the material that was actually before the Tribunal in making its decision; but at the same time, there was a major contest between the parties before the Tribunal and before this Court as to the proper inferences that should be drawn from that material. As the present application proceeded, it quickly became apparent that because the hearing had been expedited, the parties had not been able properly to prepare for the determination of the apparently complicated factual aspects involved in the issue of the constructive notice.

I, therefore, suggested to the parties, again with some misgivings, that a limited preliminary question only should be dealt with at this stage. That question was:

"Whether having regard to the material before the Tribunal the first decision of the Tribunal is so unreasonable that no reasonable person could have made it?"

With the consent of both parties, an order for the determination of the separate question was made, although the subsequent development of the arguments advanced by the parties indicated some possible complication in attempting to separate out one issue in a case of this complexity.

The preliminary question is limited to material actually, rather than constructively, before the Tribunal. It was noted that the parties agreed that the material before the Tribunal consisted of the information in the bundles of documents marked as exhibits "A" and "H" respectively. That material may, for present purposes, be summarised thus:

THE MATERIAL IN EXHIBIT "A"

This material consisted of several hundred pages of information. I will refer to what appears to be the more pertinent material.

(a) Immigration Inspectors Report dated 16 December 1993. Senior Inspector David Yeomans reported:

"PAX APPROACHED PO WITH HAND WRITTEN NOTE (SAID NOTHING INITIALLY). NOTE READ, 'I AM FROM CHINA. I HAVE TO SEEK POLITICAL ASYLUM IN AUSTRALIA. HELP ME, PLEASE.' PAX IMMEDIATELY REFERRED TO SEN INSP, DIEA.
PAX INTERVIEWED. PAX CLAIMS TO HAVE DESTROYED AND DISPOSED OF HIS TRAVEL DOC (CHINESE PASSPORT) IN THE TRANSIT LOUNGE, PORT MORESBY A/P PRIOR TO BOARDING HIS FLIGHT - FLUSHED DOWN TOILET. CLAIMS PASSPORT DID NOT CONTAIN VISA FOR A/A. DESTROYED AND FLUSHED BOARDING PASS AFTER BOARDING AIRCRAFT. CLAIMS LACK OF VISA DETECTED BY AIRLINE CHECK-IN OFFICER, HOWEVER, AFTER LISTENING TO PAX'S STORY, THE OFFICER WAS 'SYMPATHETIC TO HIS PLIGHT' AND ASSISTED IN HIS BOARDING THE AIRCRAFT. THIS CLAIM IS BEING INVESTIGATED BY LOCAL AIR NUIGINI MANAGER.
PAX CLAIMS HIS CORRECT NAME TO BE SUN ZHAN-QIU AND CORRECT DOB TO BE 23.08.1971. FOR THE PAST FOUR YEARS PAX HAS BEEN USING THE NAME SUN JIANG (DOB 23.08.71) TO AVOID DETECTION. CLAIMS PASSPORT WAS IN NAME SUN JIANG. AIRLINE BOOKING (AIR NUIGINI) IN NAME SUN MR J.
BACKGROUND.
PAX FEARS REPRISAL FOR HIS PARTICIPATION IN THE 1989 'STUDENT DEMOCRACY MOVEMENT'. CLAIMS TO HAVE BEEN A STUDENT OF ECONOMICS AT THE UNI OF CHINA IN BEIJING IN 1989 AND ON THE DAY OF THE 04 JUNE MASSACRE AT TIANANMEN SQUARE MARCHED WITH HIS CLASS - CLAIMS TO HAVE BEEN THE CLASS MARCH ORGANISER. CLAIMS 2 DAYS AFTER THE MASSACRE HE ESCAPED BEIJING AND TRAVELLED BY TRAIN TO SOUTHERN CHINA WHERE HE LIVED AND WORKED FOR THREE YEARS. HE ASSUMED THE NAME OF SUN JIANG TO AVOID DETECTION. HE WORKED IN A TOY FACTORY IN FOSHANG, QUANGTONG PROV. HIS ONLY FAMILY (PARENTS) LIVE IN QUANGCHOU CITY, SOME TWO HOURS DRIVE FROM FOSHANG. CLAIMS DID NOT RETURN TO LIVE WITH PARENTS FOR FEAR OF BEING TRACED. KEPT IN CONTACT WITH THEM THROUGH A FRIEND.
IN EARLY 1993 PAX CLAIMS HE ILLEGALLY SECURED A CHINESE PASSPORT THROUGH A VISITING HONG KONG MAN (NAME NOT KNOWN) IN NAME OF SUN JIANG - $HK20,000. PASSPORT CONTAINED A 3 MTH PNG VISIT VISA. IN APRIL 93 PAX TRAVELLED TO HONG KONG THEN FLEW (AIR NUIGINI) TO PORT MORESBY, PNG. BEFRIENDED A CHINESE BUSINESSMAN IN PM WHOM HE STAYED WITH UNTIL HIS JOURNEY TO AUSTRALIA. PAX CLAIMS DECIDED TO CONTINUE ON TO A/A AFTER HEARING OF THE A/A GOVERNMENT'S RECENT DECISION TO GRANT PRE- JUN 1989 CHINESE PEPAE. BELIEVED THIS SHOWED THE A/A GOVT TO BE COMPASSIONATE.
PAX HAS LIMITED BAGGAGE - TWO CARRY BAGS (MAINLY CLOTHES AND BOOKS). BAGGAGE SEARCH CONDUCTED BY CUSTOMS. NOTHING FOUND WHICH IDENTIFIED PAX. IN POSSESS OF A NUMBER OF PHOTOGRAPHS (APPROX 20) OF CROWDS OF CHINESE, ARMY TANKS, AND GRAPHIC PHOTOS OF DEAD AND BLEEDING BODIES. PAX CLAIMS THE PHOTOS WERE TAKEN BY HIMSELF AT TIANANMEN SQUARE."

(b) Record of interview of Applicant on 21 December 1993.

This interview was conducted by Case Officer Ali Erem in the presence of an interpreter. During the interview, the applicant was asked:

"Is there any reason why you cannot return to that address [in Canton]?"

The applicant, through the interpreter, answered:

"Yes. Because I will be arrested for my activities during and after the 4th of June 1989, the student movement in Tiananmen Square."

(c) The applicant's application for refugee status dated 23 December 1993.

In his application, the applicant stated that the basis for his fear of persecution was because, inter alia, of his social group and his political opinion. He also described himself as an "organiser of pro democracy activities".

(d) Summary of further interview with the applicant on 24 January 1994.

In the course of this interview conducted by Mr Leo Rosenberg, the delegate of the Minister, the following exchanges occurred:

"Q10 You said you were involved in the student pro- democracy movement in 1989 in Beijing, can you give me a run down of what exactly you did in 1989.
A I organised my class to participate in the processions regarding Hu Ya Bang' demise. We collected contributions and then we marched to the Zhong Nan Hai Xiang Hia arch which is the administration centre of the PRC. At that place we stood in silence in respect of his death.
Q When was that?
A Approx. 18/4/89
Q How many people did you organize?
A More than 30 students.
Q What else did you do?
A On 19/4/89 we stood in silence at the same arch as mentioned earlier.
Q Please continue.
A I marched on 27/4/89 in a procession to Tiananmen Square together with the Beijing Tertiary Self- Organisation Alliance which was formed on that day. Then on 10/5/89 we went to Princess Tomb and put up barricades against military trucks.
On 4/6/89 I was at Tiananmen Square with approx. 1000 students we retreated 6 blocks way along Chang An street as tanks rolled along and threatened us. When the smoke bombs cleared up we went back to the scene and some of my colleagues were killed. I was a witness and took many photos.
Q Other than being a witness to the incident I am interested in focusing on your role.
A I organised my class mates to participate in these activities. I took some photos.
Q11 What ideas or reform did you advocate?
A There was a lot of corruption. We wanted that people be given more personal rights and freedom.
Q12 What were the main issues with the students in 1989.
Not asked
Q13 Were you ever questioned/detained/arrested by the authorities from June 1989 up until your departure?
A No.
Q14 How did you know the authorities were interested in you, what evidence did they have against you, how did they get the evidence, was your name published in a wanted list, what would you have been charged or tried for if caught?
A After the massacre the PSB questioned all the people who may have participated in the processions or demonstrations, participated in barricading military vehicles and burnt military vehicles. If caught they were investigated, either sent to firing squad or put in jail. Being a witness to these events I fear for my life .
Q You have not really answered the question?
A Because I am organiser of the class there are some quite obvious reasons, they can easily find out I participate in these activities.
Q Was your name published in a wanted list?
A No. These are only leaders and organisers who end up on the wanted list but it is not only those who are punished. Even the low ones suffer the same fate.
Q What would you have been charged for if caught?
A For rebelling against the Government. This is a crime
Q The gist of what I am trying to get from you is the degree and nature of your involvement.
A The essential part of my activities is that I was the class march organiser three times.
Q15 If the PSB/authorities had evidence or were after you, I find it difficult to accept they would not pass the information to security organs everywhere in China or make efforts to apprehend you. The first thing they would do is to visit your parents. There were at least several thousands activists who were detained since June 1989, what makes you so exceptional that you were able to avoid detection while still remaining in China for nearly four years.
A I escaped south and I did not involve my family. I knew they were going to approach my family for personal details. Through the connection of a friend I was able to obtain employment and at the same time my friend advised me to change my name.
Q16 A personal file is kept on every PRC national and is passed from work unit to work unit; people in China also carry a residence identity card. You need to register with the local authorities for food stamps, meat rations oil, rice rations etc. You need to register with the police for residence. How could you have managed these things if you were hiding under an assumed name?
A I was in the New Economic Zone. I worked for a private enterprise company. If you perform you are accepted. They would not inquire about your identification papers.
Q17 You can't go through border checkpoints in China without a passport and second exit permit, so how did you obtain your passport? What was the date?
A I obtained a faked passport with a 3 month PNG visa in my assumed name of Sun Jiang. I obtained the passport in late March/early April 1989 - about 3/4 weeks before my departure."

Later in the interview, the following exchange took place:

"Q25 Information on the current situation in China indicates that the authorities are not interested in pursuing people with a low level of past political involvement. They are only concerned with those students and others who had a leadership role and a high public profile before they left China and return with the intention of publicly advocating opposition to the Government (DFAT Cable OBJ1879 of 1/6/93; DFAT Country Profile: China, November 1993). Even if I accepted that you played a role of class organiser three times in the pro-democracy events, I do not consider that your activities place you in the category of major key players the authorities were seeking.
A If they had no special interest in me they would not have investigated my parents continuously. When I was in the factory in Foshgang there I informed my work mates about the 4/6/89 massacre and also showed them some photos of the military involvement. In the meantime I formed a small group to agitate for democracy and to criticise the government.
Q When was that?
A January 1990.
Q What is the point of this last matter.
A I organised this group secretly. This is not allowed in the PSB.
Q Are you saying that you had a wider profile?
A If you do not believe what I have said then whatever I say further there is no point.
Q The gist of what you have claimed is that you were hiding under an assumed name, the PSB could not find you and on top of that you were involved in secret activities. I have difficulties accepting all this. Even if I accepted some of the pro-democracy activities you have claimed, it does not put you in the category of those people who had a leadership role and high profile in the PRC.
A Everyone is in a different situation. It is not possible to find anyone in an identical situation in the whole world. I am telling you what concerns me and I hope you can help me.
Q26 What do you think will happen to you if you return to the PRC?
A I will be incarcerated and detained. I will be charged for rebelling against the Government charged for organising the activities of the rebellion. I will be charged for promoting and disseminating actions against the Gov. I will be sentenced to death by firing squad. This will be done secretly."

(e) Department of Foreign Affairs and Trade ("DFAT") Cable O.BJ1879 dated 1 June 1993

This cable addressed to DFAT in Canberra from the Australian Diplomatic Mission in Beijing was mentioned by Mr Leo Rosenberg. Entitled "PRC Application For Refugee Status Office - Office-Bearers of Pro-Democracy Organisations", it reads:

"WE SPOKE RECENTLY TO A FORMER SENIOR EDITOR OF A NATIONAL DAILY NEWSPAPER AND A PROMINENT DISSIDENT RELEASED FROM DETENTION LAST YEAR WHO ARE WELL INFORMED ON DISSIDENT ISSUES. ON THE QUESTION OF LIKELY TREATMENT OF OFFICE-BEARERS OF OVERSEAS PRO-DEMOCRACY ORGANISATIONS RETURNING TO CHINA, THEY MADE THE FOLLOWING COMMENTS:
THE CHINSE GOVERNMENT WAS PARTICULARLY CONCERNED ABOUT THOSE MEMBERS OF PRO-DEMOCRACY ORGANISATION WHO ALREADY HAD SOME DEGREE OF PUBLIC INFLUENCE AND RECOGNITION BEFORE THEY LEFT FOR OVERSEAS DURING THE TIME OF THE TIANANMEN INCIDENT IN 1989.
THE CHINESE AUTHORITIES WOULD BE UNLIKELY TO PERMIT THE RETURN OF THOSE THEY JUDGE WOULD HAVE THE POTENTIAL OF USING THEIR FORMER INFLUENCE AND POSITIONS AT HOME TO OPPOSE THE GOVERNMENT IN AN EFFECTIVE AND ORGANISED WAY THROUGH, FOR INSTANCE, LARGE SCALE DEMONSTRATIONS, THE FORMATION OF OPPOSITION GROUPS, AND THE WIDE CIRCULATION OF DISSIDENT PERIODICALS. OUR CONTACTS NOTED THAT PERSONS WITH SUCH A POTENTIAL ARE FEW IN NUMBER: THEY WOULD BE THOSE WITH AN ESTABLISHED HIGH PROFILE IN CHINA AS PROTEST LEADERS.
THE CHINESE GOVERNMENT WAS NOT UNDULY PERTURBED BY THOSE WHO CLAIMED TO BE LEADERS OF PRO-DEMOCRACY ORGANISATIONS OVERSEAS BUT HAD NOT HAD A LEADERSHIP ROLE AND A HIGH PUBLIC PROFILE BEFORE THEY LEFT CHINA.
2. EVEN RELATIVELY WELL-KNOWN DISSIDENTS HAVE BEEN ABLE TO RETURN TO CHINA WITHOUT TOO MUCH DIFFICULTY AS LONG AS THEY DO NOT PUBLICLY ADVOCATE OPPOSITION TO THE GOVERNMENT. WE HAVE BEEN INFORMED BY A RELIABLE CONTACT WHO KNOWS THEM PERSONALLY THAT TWO DISSIDENTS, LI SANYUAN (U.S.) AND XU GANG (FRANCE), RETURNED IN LATE 1992. BOTH LI AND XU WERE ACTIVE IN THE PRO- DEMOCRACY MOVEMENT IN JUNE 1989 AND REPORTED TO BE KEY MEMBERS OF PRO DEMOCRACY ORGANISATIONS OVERSEAS. BOTH WERE QUESTIONED WHEN THEY RETURNED BY THE PUBLIC SECURITY BUREAU BUT WERE NOT DETAINED. WE WERE TOLD THAT BOTH LI AND XU ARE NOW ENGAGED IN COMMERCIAL ACTIVITIES.
3. WE ALSO NOTE THAT A NUMBER OF HIGH PROFILE DISSIDENTS LIKE DAI QING (A JOURNALIST WHO HAS BEEN OVERSEAS TWICE) AND LIU XIAOBO (A WRITER AND ARTS CRITIC WHO VISITED AUSTRALIA AND THE U.S. RECENTLY) HAVE BEEN ABLE TO LEAVE AND RETURN TO CHINA.
4. THE CASES IN PARAGRAPHS 2 AND 3 ABOVE, TOGETHER WITH OUR CONTACTS' ASSESSMENT IN PARA 1, INDICATED THAT THE CHINESE AUTHORITIES ARE PREPARED TO BE FLEXIBLE AND TOLERANT, EVEN IN THE CASES OF HIGH PROFILE DISSIDENTS, AS TO THEIR DEPARTURE AND RETURNING TO THE COUNTRY PROVIDED THEY ARE NOT GOING TO BE CRITICAL OF THE GOVERNMENT TO AN EXTENT THAT EMBARRASSES THE GOVERNMENT INTERNATIONALLY OR THREATENS ITS LEGITIMACY IN THE DOMESTIC ARENA.
5. THE CHINESE GOVERNMENT STATEMENT OF 20 AUGUST 1992 ON RETURNING STUDENTS (REF K. MCKINNON LETTER 7 APRIL 1993) WAS SPECIFICALLY TARGETING GOVERNMENT SPONSORED STUDENTS AND PRIVATELY FUNDED STUDENTS AND OTHERS WHO HAVE BECOME HIGHLY QUALIFIED IN AREAS OF THEIR STUDIES TO RETURN TO HELP WITH CHINA'S MODERNISATION. THE STATEMENT REFLECTS THE GOVERNMENT'S CONCERN ABOUT THE LOSS OF SKILLS CAUSED BY THOSE WHO REMAINED OVERSEAS AFTER THE 1989 TIANANMEN INCIDENT, AND THE POLITICAL MOVEMENT THE CHINESE GOVERNMENT HAS BEEN PREPARED TO MAKE TO ATTRACT THEIR RETURN. GOVERNMENT SPOKESMEN HAVE ON A NUMBER OF OCCASIONS REFERRED TO THE NON- RETURN OF OVERSEAS STUDENTS AS A SERIOUS BRAKE ON NATIONAL ECONOMIC DEVELOPMENT.
6. IT IS CLEAR FROM THE FOREGOING THAT THE CHINESE AUTHORITIES ARE NOT SO MUCH CONCERNED ABOUT THE ISSUE OF POLITICAL ACTIVITIES OVERSEAS, BUT RATHER THE QUESTION WHETHER RETURNEES HAVE AN INTENTION TO OPPOSE THE GOVERNMENT IN AN EFFECTIVE AND ORGANISED WAY AFTER THEIR RETURN TO CHINA. STUDENTS AND OTHERS WHO DID NOT HAVE A HIGH DISSIDENT PROFILE AND SIGNIFICANT INFLUENCE IN CHINA AT THE TIME OF THE TIANANMEN INCIDENT, EVEN IF THEY ARE NOW OFFICE BEARERS OF OVERSEAS PRO-DEMOCRACY ORGANISATIONS, WOULD HAVE ONLY A REMOTE CHANCE OF FACING ADMINISTRATIVE OR CRIMINAL SANCTIONS BY THE CHINESE AUTHORITIES UNLESS, AFTER THEIR RETURN, THEY INITIATED ORGANISED ACTIVITIES OPPOSING THE GOVERNMENT IN AN EFFECTIVE WAY AS OUTLINED IN PARA 1 ABOVE."

(f) DFAT Country Profile - China, November 1993

This document, prepared by the Refugee, Immigration and Asylum Section of DFAT, is intended to provide a profile of China for the purposes of refugee determination. Reference should be made to the following extracts from the Profile:

"1.12 PRC RETURNEES: DOCUMENTED CASES
1.12.1 Apart from information our Department receives from other reliable sources, the Embassy in Beijing and Consulate in Shanghai, as resources permit, monitor the returnee situation, pursuing enquiries where specific allegations of mistreatment have been made. Until now, we are not aware of any instance in which a returnee who has been determined not to be a refugee under the DORS process in Australia has returned to China and suffered persecution in terms of the 1951 UN Convention and the 1967 Protocol relating to the Status of Refugees. Our information gives similar advice about returnees from other countries.
1.12.2 Students - Australia

•
Applicant was a student in Australia from 5.5.90 to 29.12.90. He applied for refugee status and returned to China before it was determined he would not be granted refugee status. It had been claimed by another person seeking refugee status that, on his return, this applicant had been placed in three-year detention with labour because of his involvement in pro-democracy activities before he left China.

The Beijing Embassy on 8.4.93 reported after a personal interview with applicant that he had returned home and resumed work at his previous work place. Asked if he had had any problems finding work after his return, applicant said that on the contrary, Chinese companies had sought him out because of his reputation as one of China's top professionals in his field in the entertainment industry. He was doing lucrative freelance work in addition to his regular employment.

•
Applicant for refugee status had an apparently high political profile which would very likely have entitled her to refugee status. She started studying in Australia in 1988 as a post graduate private student and returned to China once in 1988. She returned to China again in 1991 to tend to personal affairs before a decision had been made on her application. On her return to China in 1991, she was called in for interviews by the PRC authorities on three separate occasions and otherwise was not detained. She resolved her personal affairs and departed China with a daughter from her previous marriage and new husband. During her stay in China she worked with foreign companies through an employment agency.
•
Applicant was deported from Australia in 1992 after rejection of his application for refugee status. Representatives of the Chinese community claimed that on return applicant was arrested and held in detention for two weeks before being placed under house arrest. In response to a request from DFAT and DIEA, the Principal Migration Officer from the Australian Consulate General in Shanghai met with applicant one month after his return. Applicant advised that he had been detained for nine days at an airport before he 'entered' China, but he had had no contact with the PSB or other authorities since his return to his home city. He had only been questioned while in detention and did not complain of any physical or other maltreatment during his detention. Applicant's passport had been confiscated because of the expiration of his visa and deportation from Australia. (This appears to be standard practice.) His family had paid 450 RMB ($A125) for food and custody costs prior to his release. It was learned later than the PRC authorities had detained applicant on his arrival in China because they suspected he was being extradited as a criminal.

This applicant, on his return, demonstrated several times outside the Shanghai Consulate General, and Shanghai authorities took the necessary action on these occasions to ensure no disruption to normal functioning of the Consulate. This included short periods of detention. It has been confirmed that since September, the returnee has been held in a psychiatric hospital run by the Public Security Bureau.
This case has been taken up by the Human Rights Section of the Department of Foreign Affairs and Trade, who continue to seek advice about his situation and health.

•
Applicant arrived in Australia in February 1990 as a student, applied for refugee status in August 1990 and was refused status in January 1993. Claims had centred on involvement in events of May/June 1989 and in demonstrations in Sydney. Australian migration officers in Beijing had the opportunity to ask her about her experiences when she returned home in May 1993.

Applicant said she had not been referred off-line but the primary line immigration officer asked why she had stayed so long in Australia. She had not been approached by any PRC authorities since arrival. She mentioned that two friends returned recently intending to live in Beijing and had also encountered no difficulties. They had not sought employment in a state-controlled work unit as with the money earned in Australia they intended to go into business. (OBJ2072 of 16.6.93)

•
A PRC citizen holding a class 437 TEP issued on 19.2.91 returned to China in June 1993. In November he approached the Australian Embassy to apply for a class 100 spouse visa and his activities in Australia were discussed. He said he had been an active participant in democracy demonstrations and other activities in Sydney and a prominent member of the Chinese community. He produced photographs and newspaper reports supporting this.

He was asked if he had encountered any difficulties with PRC authorities since he returned to China in June. He stated that he was not questioned at the airport on arrival and had not been approached or questioned by PRC officials since. He said he had been worried that Public Security officials would seek to contact him to question him about his activities in Australia but this had not occurred. He stated that he was no longer interested in student/democracy/political activity and intended to settle in Adelaide. He was granted the visa he was seeking.
...
1.12.9 PRC Embassy Comments on Returnees [On being asked if the Embassy were aware of the upsurge in the number of PRC illegal entrants returning to China from Australia, an Embassy spokesman said they were aware of this and attributed it to three factors:

-
There is a feeling in the Chinese community that the Australian Government is taking a hard line with the illegals and it is better to leave voluntarily so as not to jeopardise a return at a future date
-
the PRC economy has improved and many are returning to take advantage of this with skills and money gained during their stay in Australia
-
the human rights situation in China has been reported to have improved and people feel either they can return safely or they can no longer use this as an excuse to prolong their stay.

At the same meeting, the Embassy official said he could officially advise that there were no VIP dissidents present in Australia. He also confirmed that the PRC Government had no interest in the leaders of the Australian democracy movements. He added that the VIP dissents of interest to the PRC Government were all in America. RIA note, 18.8.93]
There appears to be an increasing number of PRC nationals returning to China after the receipt of their tax return. NSW Ethnic Affairs Report, September 1993."

Under the heading "Treatment of High Profile Dissidents", the following appears:

"[During the past year the PRC authorities have released a number of prominent dissidents before their terms were fully served. One of those released, Wie Jingsheng, a 'democracy wall' veteran, was released on parole on 14.9.93 after having served almost 14 years of his 15-year prison term for passing military secrets and committing the crime of counter revolutionary propaganda.
The release of Wei does not necessarily foreshadow a more tolerant approach to non-violent dissidents by the Chinese Government. Other dissidents in China continue to be detained and sentenced for the same reason as Wei: namely, their non-violent expression of personal opinions and beliefs. BJ3004 of 14.9.93 and WHI58168 of 15.9.93]. See also 1.12.9 above."

In discussing Criteria for the Refugee Convention, the Profile discussed "Political Opinion" as follows:

"The PRC Government is not particularly concerned about those who only took part in demonstrations in China and did not play a leading role. The same principle applies to those residing outside China during 1988-1989.
[The more time passes, the more the events of June 6 1989 fade and other issues take priority. We have not heard any reports of persecution of the 11,000 Australian PRC students, or others who have returned from other countries. In 1992 China implemented policies designed to encourage overseas students to return to China. The Chinese Academy of Sciences has recently added to these calls, which include scholarship support, guarantees of future travel abroad and better living conditions for scientists and technologists. The calls are seen as an attempt to halt the brain drain facing China over the next few years as large numbers of scientists and technologists are nearing retirement with few capable of taking their places. Much anecdotal evidence indicates that students in general can fare very well on return.
The PRC nationals are not necessarily a student problem, but can be rather an immigration problem in the widest sense. Many wish to leave China permanently for economic, social and political reasons. There is evidence that PRC students currently in Australia are strategically positioning themselves to get residence status. Prior to June 1989 there was evidence to suggest that many PRC nationals were not going to return to China unless found out and ordered to return. This is demonstrated by the high overstayer rate (Australian Chinese Magazine, September 1991) and published student statements about their reasons for staying in Australia. Country Information China, RIA Section, DFAT, 31.3.92]
See also 3.5.6 Political opposition to the PRC regime - General Comments and parts 2, 3, 4 & 9 of sub- section 1.12 PRC Returnees: Documented Cases and sub- section 1.13 Treatment of High Profile Dissidents."

Section 3 of the Profile deals with "Major Claims". Under the title "Political Opinion", the following, inter alia, is stated:

"3.5.4 May/June activities associated with 4 June 1989 Pro democracy demonstrations at Tiananmen Square, Beijing, at Shanghai and in other parts of China This was a turbulent period with mass suspicions of huge proportion. Many people were caught in the Government's broad sweep of suspects, only to be released after interrogation when it became clear the people being released were not the major key players they sought. The following are not likely to be key players: [sic]

•
given the extensive security network and vetting procedures, ability to obtain a second exit permit (except possibly June- August in Shanghai, cf 1.3)
•
legal departure more than six months after the June 89 events
•
no imprisonment for other than short spells for interrogation
•
retaining employment up to about the time of departure

More than one million people were involved in pro-democracy activities in Beijing, hundreds of thousands in Shanghai and thousands more in other cities and towns in China. Most applicants from Beijing claim to have participated in organised marches in the Square. These participants were mostly drawn from the applicant's workplace, college or University. They claim to have organised fellow students or workers, shouted slogans, carried banners, given speeches or, placed pro-democracy posters on walls or buildings. Others claim to have responded more spontaneously to the marches and gathering of people in the Square, providing food and money in support of the student movement. Applicants from other cities and provinces have lodged similar claims.
The result of liberalisation of employment means that people may move around the country looking for work without teeing up either work or accommodation in advance. Accommodation does not necessarily come with employment as it used to, as the work permit is provided by the Work Unit and the Residential Permit by the police. It is not uncommon for a person to be given work but then to have to find his own accommodation.
If authorities find out a person has applied for refugee status, the person may face self-criticism, but not severe punishment. The authorities, unless the person had a high anti-Government political profile, would conclude that person was seeking better economic life, which in itself is not punishable and is not Convention related. Retaining employment, lack of imprisonment and departing the country legally more than six months after June 4 are indications that the person was not a target of the authorities."

Later, this is stated:

"3.5.6 Political opposition to the PRC regime - General comments [The Shanghai Government Personnel Bureau announced on 27 March 1992 measures to encourage the return of students and skilled personnel from overseas. These included a guarantee of freedom in their choice of employment and the freedom to go abroad again. Special Government 'service stations' would provide relocation and employment assistance and help to handle returning students' applications for further travel. Although the announcement did not deal explicitly with the question of past political activity, its tone and content were relatively positive and conciliatory. SH7259 of 17.4.92]
[The Chinese Government made a formal announcement on 20 August 1992 in a bid to further encourage overseas students and skilled personnel to return to China. The new policy announced by the State Council and published in all major newspapers welcomed students back home undertaking not to conduct political investigation of returnees who expressed dissent while overseas. The Government promised to provide the students with attractive working and living conditions. BJ51658 of 2.9.92]
[The Chinese Government is particularly concerned about members of pro-democracy organisations who already had some degree of public influence and recognition before they left for overseas during the time of the Tiananmen incident in 1989. The authorities would be unlikely to permit the return of those they judge would have the potential of using their former influence and positions at home to oppose the Government in an effective and organised way through, for instance, large-scale demonstrations, the formation of opposition groups and the wide circulation of dissident periodicals. Persons with such a potential are few - they would be those with an established high profile in China as protest leaders.
The Government is not unduly perturbed by those who claimed to be leaders of pro-democracy organisations overseas but who did not have a leadership role and a high public profile before they left China. Even relatively well-known dissidents have been able to return to China without too much difficulty as long as they do not publicly advocate opposition to the Government.
Chinese authorities are not so much concerned about the issue of political activities overseas, but rather the question of the returnee's likely future behaviour. That judgement would be based principally on the returnee's dissident profile and influence before he or she left China for Australia rather than the returnee's subjective state of mind. Students and others who did not have a high dissident profile and significant influence in China at the time of the Tiananmen incident, even if they are now office bearers of overseas pro-democracy organisations, would have only a remote chance of facing administrative or criminal sanctions by the Chinese authorities unless, after their return, they initiated organised activities opposing the government in an effective way as outlined. OBJ1879 of 1.6.93; OBJ2041 of 14.6.93"

(g) The decision of the delegate on 11 February 1994.

In his assessment, the delegate dealt with the applicant's reliance on "pro democracy activities in the PRC" as follows:

"5.1.1 Pro-Democracy activities in the PRC (1,3-6, 18-23)
5.1.1.1 The applicant claims he fears persecution if he were now to return to the PRC on account of his involvement in the pro-democracy movement in 1989.
5.1.1.2 I accept that the applicant may have taken part in pro democracy protest activities including being a class march organiser who with his classmates participated in various street marches, protests, and demonstrations as well as other activities in the Spring of 1989. I accept that he had principally a minor organising role but I find that he was not a student leader or a leader of any of the organisations or groups set up during this period. I do not accept that he had a high profile or played a significant role in the pro-democracy events of 1989 or that he was in the category of those being sought by the authorities. Accordingly, I do not accept that his activities, even if known to the authorities, would lead to adverse consequences amounting to persecution.
5.1.1.3 In making this assessment, I give weight to him information received by this Department (The Hunt for Dissidents in China by the IRB Documentation Centre, Ottowa, Canada, October 1990) which indicates that extensive investigations were conducted throughout China soon after the Tiananmen Square incident. This entailed the denunciation, investigation, arrest and execution of many pro democracy supporters and as well a large part of the population was subjected to self-criticism, political education and tighter social control. Many individuals were detained and questioned but released when it was clear the person was not a major or key player (DFAT advice of 31 March 1992).
5.1.1.4 In these circumstances, I consider that if the applicant was not questioned, detained or arrested in relation to any of his activities in the pro-democracy movement (and was not even required to undergo ideological study sessions and self criticism) then it is clear he was of no interest to the authorities and was not assessed adversely by them. If this had been otherwise, he would have faced some adverse consequences in the almost four year period between his activities and his departure from the PRC in April 1993.
5.1.1.5 In this context, I also give weight to DFAT information that the PRC authorities have not treated harshly people who merely participated in demonstrations and rallies, signed petitions or collected money in support of protest activities. The authorities have taken punitive action only against high profile activists and leaders of organisations that the PRC government regards as illegal (DFAT cable: O.BJ51854 21/9/92 Beijing)
5.1.1.6 I further give weight to information on the current situation in China indicating that the authorities are not interested in pursuing people with a low level of past political involvement. They are only concerned with those students and others who had a leadership role and a high public profile before they left China and return with the intention of publicly advocating opposition to the Government. (DFAT Cable OBJ1879 of 1/6/93; DFAT Country Profile: China, November 1993).

Under the heading "Escaping to the South of China and living under an assumed identity/being investigated by the authorities", the delegate stated:

"5.1.2 Escaping to the south of China and living under an assumed identity/Being investigated by the authorities (2,7,8)
5.1.2.1 I have considered the applicant's claim that he escaped from Beijing to Foshan in Guangdong province to escape the attention of the authorities and lived and worked under an assumed identity.
5.1.2.2 In considering this claim, I have taken into account that the clampdown in Guangdong after the Tiananmen killings of June 1989 was far less severe than [that] imposed elsewhere in China and that there is a flow of surplus workers being attracted to employment in the special economic zones who may possibly live and work without proper authorisation. Even so I consider that in the period particularly after June 1989, it would have been very difficult to manage to change one's identity given that a personal file, passed on from work unit to work unit, is kept on every PRC national and that people are also required to carry a residence identity card issued and controlled by the security organs of the State. Moreover, a person arriving in a new area would be required to register with the local authorities for food stamps, meat, oil and rice rations and as well as with the police for residence.
5.1.2.3 At interview the applicant stated that the authorities had investigated him through his parents in the four years prior to his departure but they had not known his whereabouts. Even if the applicant had been able to manage his affairs and to live under irregular or clandestine circumstances, I consider it most unlikely that he would have suffered no consequences at all, particularly in the light of his claim that the authorities had identified his family and had investigated him through them. I consider that if the authorities were interested in the applicant they would have easily pressured the applicant's family to reveal sufficient information to enable them to quickly locate and apprehend him."

(h) Background Paper: "The hunt for dissidents in China" published by the Immigration and Refugee Board Documentation Centre Ottawa, Canada, October 1990.

The delegate referred to this background paper. The paper is expressed in general terms; its conclusion is stated thus:

"4. CONCLUSION
The hunt for dissidents which followed the military operation on 4 June 1989 belongs to an older current of Chinese history: since 1949, various campaigns of relative ideological openness have served to stifle dissidents. The concept of a 'counter-revolutionary' in China encompasses many elements considered potentially dangerous to socialist order and the dictatorship of the proletariat (Lau Yee-Fui 1977, 328), whose 'crimes' are liable to penalties ranging from a year in prison to the death sentence (The Criminal Code 1982. 49 52). Today's hunt for dissidents has made 'counter-revolutionary crime' current once again. In order to understand Chinese society, this concept is thus more relevant than ever.
In view of the tense situation which prevails in China, the repression of democratic ideas remains a priority for the Chinese Communist Party. The institutions of social control implemented by the Party are now more than ever omnipresent in Chinese social and political life. In post-Tiananmen China, where conformity with Party ideas remains imperative, dissidents continue to be tracked down."

(i) The DFAT dated 31 March 1992

In this advice, also mentioned by the delegate, the following, inter alia, is stated:

"1989 - Pro-democracy Protests
Inside China
After June 6 1989 there were mass suspicions of huge proportions. In the broad sweep crackdown, many individuals were detained and questioned but released when it was clear the person was not a major or key player. Prominent activists were rounded up fairly soon after 4 June, but investigation of activists in Shanghai really only began in mid-late August 1989, so 4 June to 31 August gave opportunity for them to leave.
China is concerned mainly with those who led or participated actively in the protest movement in China itself, particularly in Beijing. Unless they had come to particular attention of the Chinese authorities through playing a leadership role, making public statements or having otherwise emerged with a high profile, it is unlikely that they would encounter any serious difficulties. Vast numbers of students and workers were given 'reform through education', which could include 'self criticism' and compulsory attendance of courses, but this kind of 'brainwashing' has been a way of life for the Chinese for centuries. Other punishment could include labour, but the grass roots education carried out today is not as severe as that of the Cultural Revolution. (The authorities are concerned about the 'workers' as part of a looking- down-on non intellectuals in China, but also for fear of any solidarity type unions forming.)
...
China's attitudes to students
There was an original MOU on education cooperation between Australia and China in which it was stated that 'Australia would take all possible steps to ensure that students return to the PRC'. China reminded Australia of this (March 1990) and gave assurances of a lenient attitude towards students who had participated in protests - ie they would not be persecuted on their return. While there has been evidence to the contrary, the more time that passes, the more the events of June 6 1989 fade and other issues take priority. While there is no hard evidence for this, it is reinforced by events. Why have we not heard any stories of persecution of the 11,000 Australian PRC students (or others who have returned from other countries)? The invitation to PRC students to return has recently been renewed with calls by the Chinese Academy of Sciences for students to return home. These calls have been supported by offers of funding for scholarships, guarantees that the students will be allowed to travel abroad again and better living conditions for scientists and technologists. The calls are seen as an attempt to halt the brain drain which faces China over the next few years as large numbers of scientists and technologists are nearing retirement with few capable of taking their places.
The Chinese Government would expect an account of some students' activities on their return home, but could allow that they were acting in good faith and had been misled by a biased western media. In many instances a term of 'self-criticism' would be the only punishment administered.
Beijing, Shanghai and other areas have established 'returned overseas students service centres' to help privately and government sponsored students returning from overseas to get jobs. Participation in protest activity (as distinct from 'leader') would make little difference to the prospects in non-state sectors. State sector employment is declining and it would be difficult for anyone to find jobs there."

(j) DFAT cable O.BJ51854 dated 21 September 1992

The delegate cited the information contained in this cable which deals with "on-shore asylum applications from PRC Nationals". The cable states:

"WE CONFIRM THAT WE REGARD OUR REPORT ON ILLEGAL DEPARTEES, O.BJ50931 OF 23 JUNE 1992, AS CONTAINING THE BEST AND MOST COMPREHENSIVE INFORMATION AVAILABLE TO US RELATING TO THE CURRENT SITUATION FACING BOAT PEOPLE WHO ARE RETURNED TO CHINA AFTER HAVING MADE A CLAIM OF REFUGEE STATUS OVERSEAS. WE REGARD O.BJ50931 AS SUPERSEDING PREVIOUS CABLES ON THE SAME TOPICS.
2. WE WOULD NOTE THAT, AS REPORTED IN O.BJ50931, WE HAVE ENCOUNTERED NO EVIDENCE THAT THE FACT OF AN ILLEGAL DEPARTEE'S HAVING APPLIED FOR REFUGEE STATUS WOULD LEAD OF ITSELF TO HARSH TREATMENT. ILLEGAL DEPARTURE IS REGARDED AS BEING IN AN ENTIRELY DIFFERENT CATEGORY FROM THE VERY HIGH-PROFILE OPPOSITION ACTIVITIES OR BREACHES OF PUBLIC TRUST THAT WOULD BE CLASSIFIED BY THE CHINESE AUTHORITIES AS COUNTER REVOLUTIONARY ACTIVITIES OR BETRAYAL OF THE MOTHERLAND.
3. WE CONFIRM THAT THE PRC AUTHORITIES HAVE NOT TREATED HARSHLY PEOPLE WHO MERELY PARTICIPATED IN DEMONSTRATIONS AND RALLIES, SIGNED PETITIONS, OR COLLECTED MONEY IN SUPPORT OF PROTEST ACTIVITY. THERE WERE AT LEAST ONE MILLION PEOPLE INVOLVED IN SUCH ACTIVITIES IN BEIJING ALONE IN MAY/JUNE 1989. THE AUTHORITIES HAVE TAKEN STRONG PUNITIVE ACTION ONLY AGAINST HIGH PROFILE ACTIVISTS AND LEADERS OF ORGANISATIONS THAT THE PRC GOVERNMENT REGARDS AS ILLEGAL.
4. WE ASSESS THAT THERE WOULD BE SOME RISK THAT PEOPLE WHO SENT POST-CARDS FROM AUSTRALIA TO CHINA WOULD, AS A RESULT OF RANDOM MAIL-CHECKING AND POSSIBLE POST-OFFICE LIAISON WITH PRC EXIT/ENTRY AUTHORITIES, BECOME KNOWN TO THE PRC AUTHORITIES AS HAVING LEFT THE COUNTRY ILLEGALLY. ON THE BASIS OF EXTENSIVE ENQUIRIES MADE IN RELATION TO THE PREPARATION OF O.BJ50931, WE HAVE FOUND NO EVIDENCE THAT THE FACT OF BECOMING KNOWN AS SUCH TO THE AUTHORITIES WOULD ITSELF LEAD TO HARSH TREATMENT FOLLOWING THE RETURN OF SUCH PEOPLE TO CHINA.
5. THE SEVERE BEATING WHICH IT IS CLAIMED WAS ADMINISTERED TO ONE OR MORE OF THE ORGANISERS OF THE FAILED FEBRUARY DEPARTURE IS INCONSISTENT WITH THE INFORMATION WE HAVE ON THE GENERAL PATTERN OF POLICE TREATMENT OF PERSONS WHO HAVE COMMITTED OFFENCES OF THIS LEVEL OF SERIOUSNESS. CASUAL POLICE VIOLENCE DOES EXIST IN CHINA, AS IN OTHER SOCIETIES. THERE IS, HOWEVER, ONLY A REMOTE CHANCE THAT AN ORGANISER OF AN ILLEGAL DEPARTURE WOULD BE SUBJECTED TO A SEVERE BEATING, WHETHER AS A RESULT OF CASUAL MALICE OR ON THE GROUNDS OF HAVING COMMITTED THAT OFFENCE.
6. WE CONFIRM THAT THE TREATMENT OF ILLEGAL DEPARTURE ORGANISERS IN THE SOUTHERN COASTAL PROVINCES, INCLUDING GUANGXI, IS LIKELY TO BE LESS HARSH IN BEIJING AND THE NORTH GIVEN THE TRADITION OF OVERSEAS EMIGRATION AND CONSTANT INTERACTION WITH RELATED OVERSEAS CHINESE COMMUNITIES."

(k) The application for review of the delegate's decision by The Tribunal dated 16 February 1994

The applicant stated the substantive reasons for his application as:

"I AM AN ORGANISER OF DEMOCRACY MOVEMENT IN 1989 IN BEIJING, CHINA. I ORGANISED MY CLASSMATES TO TAKE PART IN VARIOUS PROCESSION MARCHES, DEMONSTRATION ETC. AFTER 'JUNE FOUR' MASSACRE GOVERNMENT HAS BEEN HUNTING ME FOR AN OBJECTIVE TO PERSECUTE ALL FIGURES OF DEMOCRACY. FOR A GREAT FEAR, I HAVE NOT GONE BACK HOME SINCE THE MASSACRE HIDING IN A SMALL CITY FAR WAY. AFTER MANY SUFFERINGS, I ESCAPED FROM THE COUNTRY WHICH IS DARK IN REGIME NO DEMOCRACY NO LIBERTY AND ARRIVED IN AUSTRALIA. I SINCERELY APPLY FOR POLITICAL ASYLUM FROM THE AUSTRALIA GOVERNMENT WHICH IS HUMAN RIGHT REPECT [sic]."

(l) The material provided by the applicant in his responses through an interpreter at the hearing before The Tribunal on 17 March 1994.

In his evidence at this hearing, the applicant described, in some detail, his participation in several events in April, May and June 1989. He went on to give this evidence:

"THE INTERPRETER: ... What happened is during this time I participate in all kinds of protest rally no matter how much - how big the rally is and how big or serious you usually get people to help organise doing the background thing and so I was helping to organise and to do the propagating work. I also helped with ... inaudible ... and organise my classmates - I was the class leader - I was a class leader. Do you have any questions?
MR FORDHAM: Yes, just a couple of questions. You said that you were a classroom leader. How many people were in your actual class?
THE INTERPRETER: 30 odd.
MR FORDHAM: And when you say you were their leader what did you actually do?
THE INTERPRETER: What happened is when I knew from the above that there was a meeting - a rally and so what I need to do is I organised a protest so I led the class into participation and we held - we had flags - we held up the flags and on the flags was the school - the name of the school and the faculty and we held this flag together we went to this movement.
...
MR FORDHAM: When you say you knew from the above you mean that when you had heard there was going to be a rally from the other students?
THE INTERPRETER: There would be - there was just a messenger boy, you call it, who would go to every school and broadcast the news.
MR FORDHAM: So, when you got that message, when you heard it from the messenger you then spoke to your classmates. Is that correct?
THE INTERPRETER: Yes. I organised them - this activity.
MR FORDHAM: Can you tell me approximately how many times you led your class to a demonstration or to a rally?
THE INTERPRETER: I already mentioned a few times I was the one who led and my friend.
MR FORDHAM: the last specific time that you mentioned to me was the occasion on 27 April 1989 when you participated in a march. Did you have the students from your class go with you to that March?
THE INTERPRETER: Of course.
MR FORDHAM: And you also mentioned earlier that you had attended a ceremony for laying wreaths for Hoo Ya Ban around about 18 April. Did you also have your students go with you that day?
THE INTERPRETER: So what happened is that because we saw with our own eyes what happened with Mao Ling my classmates where shocked and some were crushed by the tank and we know that the communism will not stop ... inaudible ... and the classmates were scared and they escaped from - many of them escaped from school.
MR FORDHAM: Why did you decide to go to Foshan specifically?
THE INTERPRETER: What happened is when I escaped I returned to Kwangchow but I did not return home because I felt it was very dangerous in Kwangchow. I was very scared that they might come and do house search then I came to leave Kwangchow.
MR FORDHAM: When you went to Kwangchow where did you stay?
THE INTERPRETER: Friends
THE INTERPRETER: Yes
MR FORDHAM: And then the next occasion that you mentioned specifically was 19 April and that you stayed until 20 April when you were taken away by the police or you were put in a public vehicle by the police and sent back to your university. Were you [sic] fellow students with you that time?
THE INTERPRETER: Yes.
MR FORDHAM: Okay, so that is three occasions. Were there any other occasions?
THE INTERPRETER: During the whole movement we did the march but not just this time but there were other non- specific times where we went to other places and not on such big scale and when the messenger informed us about these we would organise and went to the march - can't quite remember so well now because this is not so important.
MR FORDHAM: You have mentioned to me that on 20 April the police, or two police, grabbed you and put you on to the bus to go back to the university. Was there any other time that the police physically took hold of you?
THE INTERPRETER: You mean threaten me and beat me up.
MR FORDHAM: I mean grabbed you or beat you up?
THE INTERPRETER: No.
MR FORDHAM: Were you ever arrested and taken away for questioning?
THE INTERPRETER: No.
MR FORDHAM: Okay, so what you are telling me then is that when a messenger came to your university and told you and other students that there was going to be a demonstration or a rally you carried that message back to your classmates who were about 30 in number?
THE INTERPRETER: Can you repeat once more?
MR FORDHAM: Yes. That - what I am trying to do here is find out what your role was quite clearly and from what you have told me you said that you would know about a rally or a demonstration because a messenger would come around to the universities and tell the students that there was going to be one. Is that part correct?
THE INTERPRETER: Yes, a specific messenger carried.
TAPE MALFUNCTION
MR. FORDHAM: You reported it to your classmates, is that correct?
THE INTERPRETER: Yes.
MR FORDHAM: And that your classmates were about 30 altogether?
THE INTERPRETER: Yes.
MR FORDHAM: And that you would then encourage them to go with you to the demonstration or to the rally or to the march?
THE INTERPRETER: Yes."

Subsequently, the applicant said that he was a lower not a higher level organiser who incited the students. This statement was made in the following context:

"THE INTERPRETER: During this period of the pro- democracy movement I have tried my best to help to - in pursuit of the pro-democracy and freedom and I already tried my best in pursuit of this democracy but however this Chinese government have most unsympathetic and had used cruel methods of dealing with the students. The police be from my school had easily got in control of my materials. They trying to arrest me or look for me everywhere from Beijing to Kwangchow. These few years have been frequently going to my house to look for me and to inquire about my whereabout. Because of the pursuit of me I could not return so I was - because I had a home I could not return and hide everywhere and have been living a life like a wanderer, a sad wanderer's life. Because I was an organiser of students movement it is not a higher position of organiser but a lower level of organiser inciting students and the crowds. I was in together with the bottom rank of those crowds and the top parts I was save.
I also had the inciting - also had fight the wrong of inciting and also in contact to the - making collections for the bottom and the top. The Chinese government hate this leaders and they hated them. Because of the pressure from the society and community also in order to fit in with the political need at that time. They dare not over punish those because dissidents do not kill them in a big way because of the international pressure ... (indistinct) ... had been released recently because of the international interest - because of the 2000 year olympic and also the community - society pressure. They just use this to - it's a kind of trick to blind the eyes of the people - deceive the world regarding the true situation of the human right in China and - this is to like - Chinese communist in order to deceive the world - to release ... (indistinct) ... is a kind of a example of the - regarding all those broad spectrum the people who went to observe and also the - and the Chinese communist would not be able to approach them or deal with them one by one but they will only deal with those who are basic leaders and organisers of the pro-democracy movement, the students. Because they did not have the protection of the international comment of these people the Chinese communists would have nothing to worry about and they will let off steam by opening fire.
They would use the method of killing as a method - as an example - as a warning to kill one to one others and what they would do - is scissors cut into the wounds kill and persecute the press. If I would be arrested by the Chinese communist I would definitely be put into prison and receive severe beating up and finally would be secretly put to death. Second point after 4 June massacre I continued in pursuit of the pro-democracy anti-government activities and also organised group that's anti-government and I show the photographs of the 4 June the true picture of the massacre propagating to show what was the truth of the Chinese communist. The Chinese all along deny it - the truth of the massacre.
MR FORDHAM: We have actually covered this material. You have shown me the photographs, you have told me about the group of six that then turned into ten people in Foshan and you have told me that you set out to show the public what really happened. Is there anything further that you are adding here?
THE INTERPRETER: Also I have escaped out of China. If I was sent back I would draw the attention of the notice of the Chinese government easily they will find out about my true identity. I would be - it would be very dangerous - I would be put to death."

(m) Written submissions to the Tribunal made by the applicant's solicitors dated 2 May 1994

In their detailed arguments going to both the facts and the law, the solicitors contended, inter alia, that there was objective evidence indicating that it was not true to say that "low-level" dissidents have no real chance of being persecuted. They referred, for instance, to a publication by Amnesty International in April 1991, "The Peoples' Republic of China: Trial and Punishments since 1989". They claim that this "shows in detail that low-level non-organising mere participants in the protest were imprisoned throughout China."

The publication was tendered in evidence before me (part of exhibit H) and will be mentioned later. In their submission, the solicitors continued:

"This view we contend for has already been accepted by the Refugee Review Tribunal (RRT): '...it is reasonable to assume that a person detained for expression of ... [political] views has a real chance of being punished beyond limits tolerable from a perspective of human rights': per Janet Wood N93/00771 at p.11. Even if it is said that the applicant was 'low-profile' (which it is submitted the evidence shows is not maintainable), the RRT has found that an applicant may have had a low profile in China, and is not a refugee sur place, but is still a refugee under the Convention: Re V93/00004 per A. Borsody."

Later, the solicitors said:

"DFAT cable 0.Bj51854 has been used to conclude that the authorities have taken punitive action only against high profile activists. As shown above, that assertion is clearly and simply incorrect, and appears to have been taken uncritically from official Chinese sources, in defiance of better evidence."

Of cable O.BJ1879 the solicitor said:

"O.BJ1879 has been used to conclude that 'low-profile' activists have no real chance of persecution. This cable is ambivalent, euphemistic and problematic. The statement that the authorities were not 'unduly perturbed by' low-profile activists, must be taken as a euphemism for 'persecuting' if it is to have any cogency. Yet as shown above, it is not enough to show that the authorities were 'not unduly perturbed by', nor even that they did not normally persecute, low- profile activists. As shown above, it is perfectly feasible for a person to have a real chance of being persecuted even if it is not government policy. And it is submitted that the evidence shows that that is the case here. Having established a real chance on the presumptions and the balance of the evidence, it is submitted that material more cogent is required to reject the claim. The material cited is simply inadequate to support the conclusion contended for." [Emphasis in original]

In their summary, the solicitors said, inter alia:

"The evidence on China shows that the following activities, which are the same as activities the applicant has engaged in, have been the cause of sentences of imprisonment in China -

-
'gathering a crowd' - organising demonstrations of illegal political dissent;
-
distributing dissident leaflets;
-
posting dissident slogans;
-
'involvement in the pro-democracy movement'; 'fomenting a counter revolutionary plot'; 'organising a counter-revolutionary party' and the like; that is, organising political I groups whose thought is inconsistent with 'Marxist- Leninist-Mao Zedong' thought, which the evidence shows is counterrevolutionary as a matter of Chinese law."

THE MATERIAL IN EXHIBIT "H"

This material consisted of two Amnesty reports and a commentary on cable BJ50931.

(a) Amnesty International Report April 1991: "The People's Republic of China: Trial and Punishment since 1989"

The summary of this report states:

"Amnesty International has documented over 300 cases of political prisoners who have been tried since 1989. The organization believes hundreds more have been tried secretly during the same period. This document describes the measures taken against political prisoners, including prisoners of conscience, who have been tried and sentenced since 1989 throughout China.
Since 1989 hundreds of dissident workers, students, intellectuals, Catholics, Protestants and Tibetans have been subjected to criminal or administrative sanctions. Many have been sentenced to prison terms ranging from two years to life imprisonment. Some have been 'sentenced' without trial to terms of 're- education through labour'. Of those tried some have not had their sentences announced. Trials in China do not meet internationally-agreed standards of fairness.
Official statistics of those tried and sentenced on political grounds throughout China since 1989 have not been made public. Amnesty International's information shows that workers and those tried in provincial cities for their involvement in the 1989 pro democracy protests have generally received particularly harsh sentences.
Arbitrary arrest and long-term detention without trial continue today to be a feature of repression in China."

The report uses the term "prisoner of conscience" as referring to:

"Persons who are imprisoned, detained or otherwise physically restricted by reason of their political, religious or other conscientiously held beliefs, or by reason of their ethnic origin, sex, colour or language, provided that they have not used or advocated violence."

(b) Amnesty International Report May 1992: People's Republic of China continued patterns of human rights violations in China.

In the summary the following is stated:

"Human rights violations reported in the People's Republic of China during the past three years include the large-scale arbitrary arrests of thousands of pro- democracy protesters, Tibetan nationalists, religious dissidents and others involved in peaceful political activities; long-term arbitrary detention of dissidents under administrative regulations; unfair trials of political prisoners; numerous summary executions; persistent reports of torture; and killings of unarmed demonstrators.
Hundreds of prisoners of conscience remain in detention, imprisoned solely for the non-violent expression of their opinions or for exercising peacefully their rights to freedom of religion, association or assembly. Some have been sentenced to long terms of imprisonment after trials which fell far short of international standards for fair trial. Others are detained without charge or trial. Torture and ill-treatment of detainees continue to be reported. A dramatic increase in the use of the death penalty was recorded since the beginning of 1990 in the context of successive anti-crime campaigns resulting in a large number of executions. No official enquiry was held into the killings of demonstrators by government troops in Beijing in 1989 and in the Tibetan capital, Lhasa, between 1987 and 1989.
The Chinese authorities continue to regard appeals about human rights violations in China made by international organisations as interference in China's internal affairs, though during 1991 a number of official delegations from other countries were admitted to China to discuss human rights issues with the authorities. However, the Chinese authorities have not replied to Amnesty International's appeals and enquiries about human rights violations in China, nor to its requests to visit the country or observe political trials."

(c) Michael Dutton's comments on DFAT paper O.BJ50931 dated 23 June 1992.

It will be recalled that the DFAT paper was mentioned in cable O.BJ51854 dated 21 September 1992 referred to earlier. In his comments made in October 1992, Mr Dutton said that although he -

"... found quite a lot to agree with in the ... cable ... [f]or the sake of brevity ... I have restricted my comments to the points of disagreement. If I have one overriding complaint about this document it would be that it makes too many general statements about things we either do not or cannot know."

THE TRIBUNAL'S DECISION

After describing the applicant's claims, the evidence, and referring to the applicant's testimony that he organised his class to attend the April 1989 rally, the Tribunal stated:

"On the 27th April 1989 the Applicant said the Student Autonomous Federation was established and there was a huge crowd of marchers who formed a procession to Tiananmen Square. He said that he organised his class and that they carried the school banner which bore the name of the school and the faculty. The Applicant said the total number of people who attended was huge but again he could not estimate how many. The Tribunal is aware that on 27 April 1989 the numbers in Tiananmen Square were one hundred and fifty thousand students from over forty institutions of higher learning see: Department's DORS C.I.S. file CX271 p.3.
The Applicant went on to say that he continued to be involved in activities as a participant and the only organisation that he was involved in was carrying messages concerning rallies and demonstrations to his thirty classmates. He said he could not remember dates or specific details of his movements but that he spent most of his time in Tiananmen Square from then until June 4th. He claimed that his involvement was purely supportive and not as an organiser. He said that he and other students gave support to students who embarked on a hunger strike. He said that when they collapsed he provided them with food or took them to the hospital and cared for them."

After recounting the applicant's description of the events leading up to the incident in Tiananmen Square on 5 June 1989, the Tribunal said:

"He said on the morning of June 5th at 5.00 a.m. the lights were turned off and tanks and soldiers came into the square. He said the tanks crushed the student tents, some students and the statue of the Goddess of Democracy. The Applicant claimed that he retreated to the South East side of Tiananmen Square and left. He said he saw many civilians at blockades and he could see pools of blood on the streets. At one time he said he and the others with him heard the sound of two tanks behind him. He said grenades and tear gas canisters were thrown. After about ten minutes, he said, he went back into the streets and saw about eleven people crushed by the tanks.
It was put to the Applicant that advice from the Australian Embassy in Beijing was that '...the PRC authorities have not treated harshly people who merely participated in demonstrations and rallies, signed petitions, or collected money in support of protest activity. There were at least one million people involved in such activities in Beijing alone in May/June 1989. The authorities have taken strong punitive action only against high profile activists and leaders of organisations that the PRC government regards as illegal.' DFAT cable BJ51854.
The Applicant stated that those cases who were known internationally had some form of protection through the likely international reaction to any human rights abuses against them and China's concern to show improvement in the human rights area but that lesser known or internationally unknown individuals would not have this.
The Applicant produced a set of photographs which he claimed to have taken. These included photographs of demonstrations and rallies and the massacre in Tiananmen square. They were a variety of sizes and some were coloured whilst others were black and white."

The Tribunal went on to say:

"Following the massacre the Applicant said he left by train for Guangzhou and went to a town called Foshan where he worked for a private enterprise packing toys. He said that while he was there he and some of his friends met to discuss the political situation and they pasted articles from Hong Kong magazines in public places.
The Applicant claimed that Chinese PSB authorities had gone to the home of his parents in search of him and had investigated him through his family.
The Tribunal put it to him that since Hong Kong is very close to Foshan and many visitors from Hong Kong come there each day that the news from these articles would be easily obtained. It was also put to him that Hong Kong television broadcasts could be received in Foshan. He replied that not everything that is in a magazine is covered on television and also not all of the articles that he pasted up were readily available."

In its reasons for decision, the Tribunal first dealt with the applicant's credibility saying:

"There are many aspects of the Applicant's account of his departure from the PRC, his transit through Hong Kong and New Guinea that are implausible."

The Tribunal concluded:

"...this part of the Applicant's statement is either fabricated or given in such a way as to deliberately conceal details. The Tribunal does not attempt to determine why the Applicant's account of his journey from Hong Kong, through Port Moresby to Australia was fabricated. At one point the Applicant openly stated that he did not want to provide the name of his benefactor in Boroko, New Guinea because he did not wish to implicate him. The Tribunal accepts this and equally accepts that the Applicant may have reasons to have fabricated parts of this account which are equally well-intentioned.
However, this aside, none of the material in this part of his account is Convention-related nor does it have any relevance to his claim to a well-founded fear of persecution for a Convention reason."

On the question whether the applicant has a relevant fear, the Tribunal said:

"The Tribunal has accepted that the Applicant was a student in Beijing at the time of the Tiananmen Square massacre and also accepts that he was involved as a participant together with the many thousands of other students in rallies and demonstrations at that time. The Applicant has provided an eyewitness account of the massacre on June 4th and 5th in Tiananmen Square. He has also stated that he fled Beijing immediately afterwards and went into hiding in Foshan.
The Applicant saw for himself the ruthless quashing of the demonstrations by armed soldiers and tanks but did not have the opportunity to experience at first hand the actions of the authorities in Beijing after the event or the level of involvement in the demonstrations that gave people cause to fear persecution. This being the case, the Tribunal accepts that the Applicant has fear. That fear was further demonstrated, as his representative pointed out in his submission, when he terminated his studies and fled to Guangdong province. However, this all occurred immediately after the Beijing massacre of June 5th 1989 in a state of panic and uncertainty."

Turning to the question whether the fear is "well- founded", the Tribunal said:

"The Applicant stated that he had been in Beijing only a matter of nine months before he fled. He has also stated that he was in a class of some thirty students and that when he left he travelled back to Guangzhou in Guangdong province and then to Foshan where he went into hiding, over 2,000 kilometres from Beijing. This being the case, while he may have heard indirectly or heard generally what happened, he was distanced from direct and detailed knowledge of what happened to people who participated at his level of involvement.
From the Applicant's account his involvement was merely that of participation in demonstrations and rallies involving up to 150,000 people at a time. At no time has he claimed to have been involved in any violence or any direct confrontation with authorities. On the one occasion when police forced him and fellow students on to a bus it is clear from his description that it was only for the purposes of dispersing the crowd and no interrogation was claimed.
It is accepted that the Applicant carried news of proposed rallies and demonstrations to his class of thirty students and that he encouraged and went together with them on two or three occasions. However, it is clear from his account that he was in no way involved with the organisation of the actual demonstrations and, in fact, when questioned on the organisers on one occasion he stated he did not know who they were.
In regard to the march on the 27th of April he claimed to have marched with his 30 fellow students under their school banner. He advised the Tribunal that this was with students from other schools and in numbers that he was unable to estimate but which the Tribunal is informed was 150,000. The Tribunal finds that his presence under these circumstances was of no particular political significance. He was so removed from the organisers that, at the hearing, he said he could not remember who the speakers were nor did he know who the organisers were.
In the larger rallies in Tiananmen Square in June he had no role whatsoever, other than being a student who was a participant. These were of no significant importance in relationship to his involvement and he could not remember any particular dates or incidents when asked.
From his evidence at the hearing the Applicant assisted student hunger strikers and performed other supportive tasks but, again had no organisational role."

The Tribunal said that it was put to the applicant that the DFAT information (presumably cable BJ51854) stated that the "Chinese authorities were not concerned with people whose roles were simply participation or support."

The Tribunal then referred to the information in cable O.BJ1879 (dated 1 June 1993, above) and said:

"The Applicant responded that people who are known internationally have some protection since action taken against them would be monitored by the international community and the fact that China is cognisant that for public relations purposes there is a need to indicate some improvement in the human rights area. However, he said people who were not known for their involvement or before the international community would not have this protection.
The Tribunal accepts that these are valid points but concludes that the lesser known or unknown person would have to have done something of concern to have the authorities react in the first place. This Applicant has not claimed any incident in which his activities were of any significant political concern beyond being a supporter and participant in Beijing at a time when a number of acts of considerable significance were committed. The Applicant claims his political involvement during a time of great political expression and hope but the only political acts the Applicant was involved in were those he has described. The Tribunal concludes that the Applicant chose to express his political opinion only through support and general participation, not as a leader or organiser."

After referring to the applicant's photographs, the Tribunal said:

"He has not suggested that any of these photographs have been used by the media nor that he has been connected to any incident concerning them. Since there were millions of people involved altogether and the media coverage was so wide the Tribunal finds that the fact that the Applicant has these particular photographs provides him with no basis for a well- founded fear."

The Tribunal next quoted from the United States State Department 1993 Report for China on Human Rights Practices as follows:

"The Government (PRC) took some positive steps on human rights issues during 1993. It released some prominent political prisoners early or on medical parole; many had served long terms in prison. The government still has not provided a full or public accounting of the thousands of persons detained during the suppression of the 1989 democracy movement, when millions of students, workers, and intellectuals defied the Government and participated in public demonstrations. Most of these detainees appear to have been released, however, some after serving periods of detention without charges having been brought and some after having completed their prison sentences." (Tribunal's emphasis)

The Tribunal then stated:

"This report, together with the DAFT cables cited above acknowledges that the overall human rights situation is far from acceptable but would indicate that the focus is no longer on those involved in the prodemocracy demonstrations of May and June 1989 if that was their only political involvement."

With respect to the applicant's subsequent activities, the Tribunal said:

"The applicant's activities following Tiananmen Square were committed in Guangdong province in an area near to Hong Kong with a regular flow of visitors from Hong Kong and within range of Hong Kong television broadcasting. He claims that he and friends met to discuss political matters and that he pasted articles of a political nature from magazines for the public to see. He makes no claim to having been discovered doing this nor does he claim he was ever investigated for having done so. The Tribunal concludes these articles could be readily obtained in his area in the same way he obtained them and thus the general information in them already known this action would not give him any real significance. Further there is no evidence to suggest that the authorities were aware of his involvement in this activity. The Tribunal finds that the risk of persecution from this action is indeed remote and insubstantial."

Turning to the applicant's claims that his parents had been questioned about him in Beijing, the Tribunal cited from the 1993 Report of the State Department as follows:

"f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The authorities extensively monitor and regulate personal and family life, particularly in China's cities. Most persons in urban areas still depend on their government-linked work unit for housing, permission to marry or have a child, approval to apply for a passport, and other aspects of ordinary life.
...
The 1982 Constitution states that 'freedom and privacy of correspondence of citizens ... are protected by law,' but, according to a Western expert on Chinese law, legislation for this purpose does not exist. In practice, some telephone conversations are recorded, and mail is frequently opened and censored. ..."

The Tribunal then said:

"The Tribunal finds that the fact that the Applicant's parents have been questioned about his whereabouts does not, of itself, indicate a chance of persecution. It does indicate an infringement of the family's right to privacy but the Tribunal concludes this is an example of the general monitoring activities of the Chinese authorities rather than that he faces persecution for his involvement in the prodemocracy activities of 1989. It is a fact that he has been absent and unable to be located for some considerable period. It is accepted that the authorities may wish to question him concerning his departure from Beijing but, as has already been stated the Tribunal does not accept that his actions at that time provide him with grounds for a well-founded fear of persecution even if the authorities were aware of them."

The Tribunal concluded:

"Conclusion
The Tribunal finds that the Applicant has a fear and that fear is of persecution for Convention reasons. However, having carefully considered the Applicant's claims and particular circumstances and measured them against the independent evidence before it the Tribunal finds that the fear is not well-founded as there is no real chance of persecution and the consequences the Applicant fears are both remote and insubstantial."

INFORMATION OR MATERIAL REFERRED TO BY THE TRIBUNAL.

The Tribunal, in its decision, referred to some additional material which has not yet been cited.

(a) "Document CX271-Chronology of the 1989 Student Demonstration" by Stefan Landsberger

This detailed chronology is too long to be summarised here. However, it confirms the Tribunal's reference to 150,000 students being involved in the demonstration on 27 April 1989 (see p.297 of exhibit A). The final item for 1 July 1989 reads:

"July 1
In meeting with Daniel K. Wong, the Chinse-American former mayor of Cerritos, California, Li Peng defends the use of armed force against the student demonstrators, the lack of tear gas, rubber bullets, and other riot control gear compelled soldiers to use force. He states that during the crackdown, thirty- six students, 'criminals' in his words, were killed, but they were not from Beijing universities.
More than 20,000 soldiers and citizens from Beijing gather on Tiananmen to celebrate sixty-eighth anniversary of the founding of the CCP."

(b) The US State Department, 1993, Report.

In this report's introductory remarks, the following is stated:

"The authorities also allowed a number of prominent political dissidents to leave China in 1993. In November the Government announced it would give positive consideration to a request from the International Committee of the Red Cross (ICRC) to visit China.
Nevertheless, the Government's overall human rights record in 1993 fell far short of internationally accepted norms as it continued to repress domestic critics and failed to control abuses by its own security forces. The Government detained, sentenced to prison, or sent to labour camps, and in a few cases expelled from the country, persons who sought to exercise their rights of freedom of assembly and speech. The number of persons in Chinese penal institutions considered political prisoners by international standards is impossible to estimate accurately. In 1993 hundreds, perhaps thousands, of political prisoners remained under detention or in prison. Physical abuse, including torture by police and prison officials persisted, especially in politically restive regions with minority populations like Tibet. Criminal defendants continue to be denied legal safeguards such as due process or adequate defense."

On the topic "Arbitrary Arrest and/or Detention", the report stated, inter alia:

"d. Arbitrary Arrest, Detention, or Exile - China's Criminal Procedure Law proscribes arbitrary arrest or detention, limits the time a person may be held in custody without being charged, and requires officials to notify the detainee's family and work unit of the detention within 24 hours. These provisions are subject to several important exceptions, including the sweeping provision that notification may be withheld if it would 'hinder the investigation' of a case. Senior judicial officials acknowledged in 1993 that limits on detention are frequently ignored in practice or circumvented by various informal mechanisms. In numerous cases, the precise legal status or location of detainees is unclear. Public security authorities often detain people for long periods of time under mechanisms not covered by the Criminal Procedure Law. These include unpublished regulations on 'taking in for shelter and investigation' and 'supervised residence' as well as other methods not requiring procuratorial approval. According to the Chinese media, close to 1 million detentions under 'shelter for investigation' have been carried out annually in recent years. No statistics were available to indicate the usual length of these detentions, but at least some lasted several months. Links between local officials and business leaders have resulted in scattered detentions as a means of exerting pressure in economic disputes. The legality of detentions may be judicially challenged under the Administrative Procedures Law, but such challenges are rare and there is little evidence that this is an adequate or timely remedy for improper actions. There is no judicially supervised system of bail, but at the discretion of public security officials some detainees are released pending further investigation.
Political dissidents are often detained or charged for having committed 'crimes of counterrevolution' under Articles 90 through 104 of the Criminal Law. Counterrevolutionary offences range from treason and espionage to spreading counter-revolutionary propaganda. These articles have also been used to punish persons who organized demonstrations, disrupted traffic, disclosed official information to foreigners, or formed associations outside state control. Detention and trial of dissidents on other charges is also possible. People participating in unauthorized religious organizations may be charged with criminal offences such as receiving funds from abroad without authorization or changing such funds on the black market. Legal provisions requiring family notification and limiting length of detention are often ignored in political cases. Liao Jia'an, a university student in Beijing detained in 1992 for peaceful expression of his political views, was held for a year before being formally arrested in mid-1993 for counterrevolutionary crimes.
A well-documented estimate of the total number of those subjected to new or continued arbitrary arrest or detention for political reasons is not possible due to the Government's tight control of information. Individuals reported detained are sometimes released without charge after several days or weeks of interrogation."

On the subject "Arbitrary interference with privacy, family home, or correspondence", the report stated, inter alia:

"The work unit, along with the neighbourhood watch committee, is charged with monitoring activities and attitudes. However, changes in the economic structure, including the growing diversity of employment opportunities and the increasing market orientation of many work units, are undermining the effectiveness of this system. Search warrants are required by law before security forces can search premises, but this provision is often ignored. In addition, both the Public Security Bureau and procuracy apparently can issue search warrants on their own authority."

CONCLUSIONS ON THE PRESENT APPLICATIONS

(a) The convention principles

It is settled law (see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ) that the delegate was obliged to consider whether the applicant demonstrated a genuine fear founded on a real chance that he would be persecuted for a convention reason if he returned to his own country (see Wu v The Minister for Immigration & Ethnic Affairs (1995) 130 ALR 367 at 378). Reference was made in argument to the recent decision in Chen Ru Mei v The Minister (1995) 130 ALR 405 on this question. On behalf of the Minister, it was suggested that Chen departed from Chan in some respects, but I am not convinced that this is so once the reasons in Chen are read as a whole. In any event, I will follow Chan and the summary of its test in Wu.

It is important to bear in mind for present purposes the nature of the test to be applied by the Minister. As the Full Court observed in Wu it is necessarily speculative. Their Honours there said (at 378):

"..... the whole exercise, involving as it does the assessment of a real chance, must be a speculative one. One can do little else except engage in speculation. In some cases the correct decision will be that there is a real chance of persecution because the speculation will suggest strongly that that is the view which should be taken; other cases will be on the borderline; and still others will be in the category of speculation which is fanciful."

(b) The test for intervention by way of judicial review

In a frequently cited passage from the Minister for Aboriginal Affairs v Peko Wallsend Limited (1986) 162 CLR 24 , Mason J said (at 41-2):

"... in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... . I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is 'manifestly unreasonable'. This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation ... in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the A.D.(J.R.) Act in these terms. The test has been embraced in both Australia and England ... . But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice: Lovell v Lovell ...; Gronow v Gronow ...; Mallet v Mallet ... . So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits."

It is convenient to note here that, as was pointed out by the Full Federal Court (Black CJ, Gummow and Beazley JJ in Minister for Immigration and Ethnic Affairs v Teo, 13 April 1995, unreported, at p.8), the term "perversely" which has sometimes been used to describe a "manifestly unreasonable" decision signifies that the fact-finding administrative decision maker acted "without any probative material, so that a finding of fact will be reviewable for error of law at common law on the ground that there was no probative material to support it" (see also Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 360).

(c) The Application of the Test for Judicial Review in the Light of the Convention Principles.

By its nature, it is usually difficult to make out a case of "manifest unreasonableness" on the part of an administrative decision-maker. But, in my opinion, whilst it is not appropriate that I now express a final view on the question, the applicant has nonetheless demonstrated at least that it is arguable that the Tribunal's decision was manifestly unreasonable. This follows, I think, from these considerations:

(1) The decision-maker was entitled and perhaps bound to give considerable weight to the DFAT advice dated 31 March 1992. In that advice, the Department expressed the view (see exhibit A page 347.5) that China, "Is concerned mainly with those who led or participated actively in the protest movement in China itself, particularly in Beijing", that is to say, the present question was by no means confined, on the Departmental view, to the position of leaders. Those who, "participated actively in the protest movement" were at risk particularly if, as was the applicant's situation, they were involved in Beijing.

It does not appear that the Tribunal gave this consideration any real weight.

(2) As has been noted in its reasons, the Tribunal said that it accepted that high profile persons may have had some measure of protection by reason of the public relations implications of their detention. However, this protection was not available, as the Tribunal accepted, to those who, like the applicant, were not internationally known. The Tribunal accepted this as a valid statement but concluded:

"The lesser known or unknown person would have to have done something of concern to have the authorities react in the first place. This applicant has not claimed any incident in which his activities were of any significant political concern beyond being a supporter and participant in Beijing... ."

This reasoning is difficult to follow. Once it is accepted that a person, not internationally known, participated actively in the incident in Beijing, it apparently follows that some risk of persecution would be involved, but the Tribunal does not seem to address this difficulty in its approach.

(3) The Tribunal by selecting to quote an extract from the US State Department Report on Human Rights Practices for 1993, emphasised those parts of the report which may suggest an improvement in human rights practices on the part of the Chinese administration. However, the remaining parts in the extract which were not emphasised are pessimistic, as indeed the Tribunal itself acknowledged when it stated that "the overall human rights situation is far from acceptable".

However, the Tribunal eventually concluded, without giving any real reason for doing so, that "the focus is no longer on those involved in the pro-Democracy demonstrations of May and June 1989 if that was their only political involvement."

(4) The applicant's case rested not only on the individual aspects of the three matters he relied upon, i.e. (a) his participation in the pro-Democracy movement up to 5 June 1989; (b) his subsequent political activity in Pho Shan; and (c) the visits by the police to his parents, but he also relied on these matters collectively. He contended that these three matters should be taken together and not looked at separately and apart from each other.

However, the Tribunal does not appear to have considered the possibility that, even if one or other of these matters taken alone may not have been sufficient to lay the requisite foundation for present purposes, when these three strands are drawn together, then taken collectively in that sense, they do provide the platform that is necessary to bring one's self within the definition.

(5) As a matter of general approach, the Tribunal does not appear to have undertaken any weighing of the respective views, pro and con, of a particular position. Although I have quoted at length from the material before the Tribunal, I have by no means reproduced a substantial proportion of it, but it is apparent from what I have cited, and other examples could be found in the further material available, that more than one point of view was reasonably open on most aspects of the questions that were debated before the Tribunal. It is clear that this was not a case where the evidence was all one way. Yet, it does not appear that the Tribunal embarked upon the necessary exercise of weighing the respective views and forming a conclusion on a rational basis for a preference for one view or the other.

(6) It appears from the submissions made by the applicant's solicitors to the Tribunal that there were other decisions of the Tribunal in this area. Whilst of course each application for refugee status must depend upon its own circumstances, one would have expected to find a line of approach within the Tribunal, in some general areas at least, which could usefully be applied in other instances.

However, on the face of the Tribunal's reasons there appears to be no reference to these decisions.

(7) As the Full Federal Court pointed out in Wu, the present exercise is necessarily speculative. Usually, this would mean that it is a difficult exercise. In the present case, for instance, questions of fact and degree of the extent of the involvement of the applicant in the Tiananmen Square incident could be important, and it may be accepted that, logically, one would expect that the lower the level of participation, the less the risk of persecution. But in the end, speculative though the exercise may be, it is necessarily one of judgment and assessment on material that could not reasonably be expected to be specific to the subject or individual concerned, on its face. This may be expected to be a difficult undertaking.

Yet when the reasons of the Tribunal are read as a whole, one is left with an impression of simplicity to the point, perhaps, of over simplification of an extremely complex problem.

(d) The appropriateness of answering the separate question finally at this stage

Were it not for the presence of s.416 of the Act, I would have no doubt that it was not appropriate for the court to have embarked upon the present hearing.

Leaving that provision aside for the moment, every consideration points to the matter being dealt with by the Tribunal rather than by the Court. At the risk of stating the obvious, it should be noted that the Tribunal is an expert administrative tribunal set up to deal with the very question in hand. The role of the Court is quite different. In the exercise of federal judicial power, the Court has no more than a general supervisory function. Considerations of expertise and convenience dictate strongly that resolution of the present type of question which is, essentially, one of fact, should be undertaken by the specialist Tribunal.

However, as I have previously noted, both parties believed that s.416 provided a real obstacle to the matter resting with the Tribunal at this stage. I hasten to add, of course, that if the matter had gone back to the Tribunal, the jurisdiction of the Court to supervise the exercise of administrative power in that connection would remain unaffected, if it were necessary to invoke that jurisdiction, but that, of course, is to anticipate future events which may not occur. Section 416 is a useful provision, reflecting the common law doctrine of abuse of process in the administrative context (see, for instance, Walton v Gardiner (1993) 177 CLR 378 ; Repatriation Commission v Nation, Full Federal Court, 2 June 1995, unreported). That is to say, it reflects the common law rule that an administrative decision properly arrived at, should not be challenged except for good reason which includes, of course, a failure to observe the rules of natural justice. In the present context, a Court has already ordered that the matter be remitted to the Tribunal for fresh consideration. It will now do so in the knowledge that, for the reasons I have given, the Court is of the view that the first decision was arguably bad for the grounds stated.

Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).