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Han v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION - whether Refugee Review Tribunal bound to follow United Nations Handbook - whether Tribunal made findings on material questions of fact as required by s 430(1)(c) of the Migration Act 1958 (Cth) in view of the need for a beneficial construction of Tribunal's reasons.

Migration Act 1958 (Cth), ss 420(2)(b), 430(1)(b), 430(1)(c), 476(1)

Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300, considered.

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, discussed.

Premalal v Minister for Immigration, Local Government & Ethnic Affairs (1993) 41 FCR 117, discussed.

Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24, followed.

Sellamuthu v Minister for Immigration & Ethnic Affairs, [1999] FCA 247, cited.

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, cited.

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559, considered.

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, considered.

Borsa v Minister for Immigration & Multicultural Affairs [1999] FCR 348, cited.

CHUAN MING HAN V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 20 OF 1999

JUDGE: SACKVILLE J

DATE: 14 APRIL 1999

PLACE: SYDNEY

THE COURT ORDERS THAT:

1.   The decision of the Refugee Review Tribunal made on 10 December 1998 be set aside.

2.   The matter be remitted to the Refugee Review Tribunal, differently constituted, for determination according to law.

3.   The respondent pay fifty per cent of the applicant's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The Proceedings

1 The applicant is a citizen of the People's Republic of China ("PRC"). He arrived in Australia on 7 August 1996. On 4 September 1996, the applicant lodged an application for a protection visa on the ground that he had fled political persecution in the PRC and feared that he would be persecuted by reason of his political opinion were he to be returned to that country.

2 On 6 June 1997, a delegate of the respondent ("the Minister") refused to grant a protection visa to the applicant. The applicant sought review of that decision by the Refugee Review Tribunal ("RRT"). On 10 December 1998, the RRT affirmed the delegate's decision.

3 The applicant now seeks review of the RRT's decision. The applicant, in the particulars accompanying his application, relies on the grounds of review specified in s 476(1)(a) and (e) of the Migration Act 1958 (Cth) ("Migration Act"). These provisions are as follows:

"476(1) ...application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;

...

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."

The Applicant's Claims

4 The applicant's claims were set out in written submissions to the Department, written submissions to the RRT (which repeated the substance of the earlier submissions, but added further arguments) and oral evidence given to the RRT on 21 October 1998.

5 On 23 October 1998, the applicant wrote to the President of the RRT complaining that he had not been given a fair chance to put his case at the hearing held on 21 October 1998. Whether because of this request or for other reasons, the RRT held a further hearing on 4 December 1998, at which the applicant gave additional evidence.

6 The applicant's claims, in summary, were as follows:

* The applicant had lived in Shanghai all his life, apart from some time spent in Jiangxi. He was married and had one fifteen year old daughter.

* In 1976, he was sent to Jiangxi for three years to undergo reform through labour. This came about because he had set up an organisation called the "New Youth Association". The members of the association protested against unequal treatment and sought improvements in education. Whilst in the labour camp, the applicant was reunited with his father, after some thirteen years of separation.

* In May 1979, the applicant was released from the labour camp in Jiangxi and returned to his previous employment at the Shanghai Petrochemical General Company ("the Company"). In July 1988, he was appointed manager of the Production Management Department of the Company.

* In 1989, when the pro-democracy movement commenced, the applicant could no longer hide his political opinions. Together with other staff members of the Company, he participated in a number of demonstrations. He also organised a rally at the Company.

* In May 1989, he established the first pro-democracy organisation at the Company under the name "United Workers Union". He participated in the large Shanghai demonstration which took place on 4 May 1989. He took with him over two hundred staff members from the Company to join in this and other demonstrations.

* The applicant supported Shanghai students who were engaging in a hunger strike. According to the applicant, this support was very influential with the students.

* After Martial Law was declared in Beijing, the applicant accepted a suggestion that the United Workers Union should be merged with the Shanghai Workers Autonomous Union ("WAU"). During this period he gave many public speeches.

* In early June 1989, the situation became more dangerous in consequence of the massacres in Tian'anmen Square. The applicant was informed that the authorities were arresting political dissidents.

* At the end of June 1989, officers within the Company questioned the applicant, because he had been classified as a key leader of the United Workers Union and the WAU. One week later he was publicly dismissed by the Company.

* The applicant was sent by the authorities to the Shanghai Security Bureau ("PSB"), where he refused to answer questions. In October 1989, he was sentenced to a term of imprisonment for three years by a tribunal which included a member of the PSB. He was then returned to the reform camp at Jiangxi, which he had left ten years before.

* At this camp, the applicant was confined in a small room, subjected to interrogation and deprived of food and drink. The applicant said he had been "cruelly mistreated and tortured by the authorities", but did not provide particulars. In addition, he had to do hard manual work every day.

* At the end of 1992, the authorities closed the reform camp because of a new construction project. The applicant was permitted to return to Shanghai.

* From that time, the applicant was unable to secure any normal employment, doing only "some odd jobs at a friend's furniture company".

* According to the applicant, he was often taken away by policemen. His livelihood and freedom were "seriously restricted". On one occasion, he was detained for three days without food and was insulted by the police.

* In January 1994, the applicant set up a political organisation which he referred to as "the Shanghai Democratic Saloon". In June 1994, the applicant became the Secretary-General of this organisation. At this time, the "Saloon" had several departments and its activities included gathering information from overseas sources and disseminating it in the Chinese language.

* In June 1995, the members of the "Saloon" decided to form a well-organised political party. The applicant was responsible for drafting the plans for establishing an organisation to be known as the "People's Party".

* At the end of 1995, the authorities discovered the activities of the "Saloon". This led to the abandonment of the plan. Some members were arrested.

* Two members of the "Saloon" were jailed for fifteen and eleven years, respectively.

* The applicant considered himself to be in great danger, and escaped to Jiangxi. It was from Jiangxi that he planned to leave the country.

* The applicant contacted a friend who had been jailed with him at Jiangxi in the late 1970's. This friend assisted him to leave the country.

* The PSB visited the applicant's home twice a week and sometimes harassed his wife.

The Tribunal's Reasons

7 The RRT noted that the applicant had obtained a visa from the Australian Embassy in Shanghai and that he had travelled to Australia on his own passport, issued on 12 July 1996. The visa application form completed by the applicant revealed that he was the manager of the International Department of the Shanghai Astral Equipment Installation Engineering Company.

8 The RRT recorded that, at the hearing held on 4 December 1998, the applicant admitted that he worked for the engineering company, but claimed that he worked there only temporarily. He also claimed that he worked part-time and that the engineering company belonged to a friend. When queried about his claim that the PSB visited his home twice a week, the applicant stated that the visits were sometimes from the neighbourhood committee checking on hygiene and other matters.

9 Under the heading "Findings and Reasons", the RRT assessed the applicant's claims. The RRT expressed considerable doubts about the applicant's claimed period of reform through labour in 1976. However, it found that, in light of the applicant's ability to return to his employment and to rise to a senior position, there was no real chance that he would "face problems as a result of this period should he now return to China".

10 The RRT said this about the applicant's claim that he had been detained between 1989 and 1992:

"On the basis of the country information set out below the Tribunal again has considerable doubts about the applicant's further period of reform through labour in Jiangxi.

The following information which the applicant was given the opportunity to comment on, indicates the attitude of the authorities to involvement in the 1989 pro-democracy movement:

`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 fairly soon after 4 June, but investigations 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.)' (Country Information, China DFAT 1992).

Further DFAT cable O.BJ51854 of 21/9/92 states as follows:

`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.'

Peter Coyne in his paper Dissent in China - 1993 has the following to say:

`...the US Country Report for China reported that most persons held in connection with the events of 1989 were no longer in detention by 1992. Reports have provided no indication that 1989 activists are still being pursued by the police' (Department of Immigration and Ethnic Affairs, April 1994, at p 7).

The applicant's role seems to be assisting in the organisation of groups protesting in support of the students. Whilst he may have experienced reform through labour the Tribunal considers that his claim that he spent a further three years undergoing reform through labour must, in light of the available country information, be exaggerated. The Tribunal concludes that, even if the applicant were sent for further reform through labour, it was not for a three year period. However even if the Tribunal is wrong about this the applicant's story is that his reform through labour ended in 1992. There is no suggestion in the applicant's story that he faces further problems solely because of his involvement in the events of 1989. Indeed, although he does state at one stage that he was under constant surveillance and supervision, he makes no claims that he has been further harassed about his 1989 involvement since 1992, around four years before his departure from China. Accordingly the Tribunal concludes that even if he did undergo reform through labour there is no real chance anything further will happen to him should he now return to China."

11 The RRT then addressed the applicant's claim to have been a major player in the "Saloon".

"He claims that his group became known as the People's Party and that it was discovered by the police. He initially stated that this discovery occurred at the end of 1995 but at the hearings he claimed it was 1996. The applicant claims he then fled to Jiangxi, this time to hide. He also claims, at one point, not to have worked since 1992 and to have lived on handouts from friends. However this does not seem consistent with his later admissions that he worked on a part time basis for an engineering company up until his departure from China and that he was living in Shanghai when he applied for his visa. His visa application was lodged in Shanghai in July 1996 and granted on 12 July 1996. His passport is in his own name and was issued in Shanghai on 13 June 1996. He left on 6 August 1996. Given this history the Tribunal does not accept that he went into hiding in Jiangxi in late 1995. The Tribunal also does not accept he was wanted by the Public Security Bureau or any other authority. His departure appears to the Tribunal to have been conducted in a normal manner without haste.

In DFAT Cable BJ15671 of 12 February 1998 the following is stated:

`We are unaware of any wanted dissidents leaving China over the last two years. Nevertheless, given the prevalence of corruption in China, to which the authorities readily admit, we consider it plausible that individuals could leave China on passports they have obtained through corrupt officials although, given the usual stringency of border checking in China, it is improbable dissidents on wanted lists would be able to exit on passports issued in their own names. We would also note that many dissidents have left China legally over the last three to four years, although many have served all, or part, of a prison or reform through labour term.'

The applicant states that it was because he had a friend who had saved his life that he was able to exit. Whilst he may have been assisted by a friend the Tribunal does not accept that this was because he was wanted by the authorities. The applicant departed on a passport in his own name. He had obtained a visa in the normal fashion. In the Tribunal's view when the manner of his departure is considered the Tribunal does not accept that he was wanted by the authorities for involvement in a political group.

The applicant's visa application states that he was a manager of an international department of the Shanghai Astral Equipment Installation Engineering Co Ltd. The applicant agrees with this but states that he only worked there part-time or temporarily. He also states that he worked there for one or two years before his departure. This is not consistent with his claims in the first hearing that he relied on the support of friends following his release in 1992. His ability to travel to Australia is also not consistent with his claim in the initial hearing to be impecunious living off friends. His departure as stated above appears to be calculated and planned. He left his family behind. He obtained a visa on 12 July 1996 and departed on 8 August 1996. He changed the date of the arrest of his colleague from the end of 1995 in his initial statement to 1996 at the hearing. The Tribunal would have thought he would have been able to accurately pinpoint the discovery of his group. Taking these matters into account, the Tribunal is not satisfied that he went into hiding or fled. His claim of being in hiding is not consistent with his claim of working at the engineering company referred to above. He claimed in the first hearing that he went into hiding in Jiangxi. However his evidence also is that he had friends in Jiangxi and sometimes went there for work. His initial statement made no mention of going into hiding. The Tribunal does not accept that the applicant went into hiding or fled in the manner claimed.

Having listened to the applicant's evidence about the Democratic Salon and its planned transformation into a political party the Tribunal does not accept that the applicant was involved in such a group. The Tribunal is not satisfied he was involved in a political group from 1994 to 1996 or that members of this group were arrested. The applicant now asserts that those arrested have been sentenced to 15 years and 12 years imprisonment. However the applicant has not produced any evidence of this. Reports of sentences of this magnitude on account of political opinion generally lead to action by Amnesty International or others in the international community. The Tribunal is not prepared to accept without more that the applicant has associates who have received such sentences.

The applicant's statement that his wife is constantly harassed by the PSB is farfetched. When it was suggested to the applicant that there was no possible reason for the PSB to visit his wife so often in relation to the applicant, he stated that sometimes it was the neighbourhood committee. The Tribunal is satisfied that such statements indicate that the applicant is prepared to concoct any story that he thinks might assist him in his protection visa application.

The Tribunal is not satisfied that he left China because he was wanted. The Tribunal finds he is of no interest to the authorities and that he does not face a real chance of persecution on account of his political opinion should he now return to China. The Tribunal is satisfied that the applicant does not have a well founded fear of persecution for a Convention reason."

The Handbook

12 Ms Bateman, who appeared for the applicant, submitted that the RRT had failed to comply with standards laid down in the Handbook on Procedures and Criteria for Determining Refugee Status, (1992 ed) ("the Handbook") published by the Office of the United Nations High Commissioner for Refugees. This, she said, constituted a failure by the RRT to "act according to substantial justice and the merits of the case", as required by s 420(2)(b) of the Migration Act. It followed from Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC), that a failure by the RRT to comply with s 420(2)(b) constituted a ground of review under s 476(1)(a) of the Migration Act. This was so because a failure to comply with s 420(2)(b) would mean that the RRT had failed to observe procedures required by the Migration Act to be observed.

13 As I followed her argument, Ms Bateman did not suggest that a failure to comply with any of the guidelines in the Handbook would necessarily contravene s 420(2)(b) of the Migration Act. She submitted, however, that a failure to comply with certain guidelines, including those in pars 196, 197 and 203, would constitute such a contravention, although she did not explain why the guidelines in those paragraphs were particularly significant. Paragraphs 196, 197 and 203 of the Handbook read as follows:

"196 ... cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule...independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself...

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to `prove' every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt."

Although Ms Bateman did not refer to it, par 204 of the Handbook should also be borne in mind:

"204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts."

14 Assuming that the paragraphs of the Handbook relied on by Ms Bateman can be regarded as laying down guidelines, it is by no means obvious that the RRT in the present case contravened them. In any event, the flaw in the applicant's argument, in my opinion, is that s 420(2)(b) of the Migration Act cannot be read as requiring the RRT to comply with the guidelines laid down in the Handbook.

15 Neither the Migration Act, nor the Migration Regulations, expressly requires the RRT to follow, or even to have regard to, the Handbook. The Handbook was, however, referred to by the members of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, as a possible aid to the construction of the expression "well-founded fear of being persecuted". No member of the Court said anything that would support the contention that the expression "acting according to substantial justice" requires adherence to standards laid down in the Handbook. On the contrary, Mason J in Chan said this about the Handbook (at 392):

"I note in conclusion that I have not found the Handbook... especially useful in the interpretation of the definition of `refugee'. Without wishing to deny the usefulness or the admissibility of extrinsic materials of this kind in deciding questions as to the content of concepts of customary international law and as to the meaning of treaties..., I regard the Handbook more as a practical guide for the use of those who are required to determine whether or not a person is a refugee than as a document purporting to interpret the meaning of the relevant parts of the Convention."

16 Neither in her written submissions, nor in her oral argument, did Ms Bateman cite any authority that supported the proposition that s 420(2)(b) should be construed as incorporating guidelines laid down in the Handbook. After the hearing, she provided a reference to Premalal v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117. In that case Einfeld J, in the context of considering whether a decision was liable to be set aside as unreasonable, took into account a warning given in the Handbook, that a refugee's reaction upon arrival in the country of asylum may be affected by fear or embarrassment (at 145). There is nothing in his Honour's reasoning which supports the applicant's contention that s 420(2)(b) of the Migration Act requires the RRT to follow the guidelines set down in the Handbook.

17 It follows that, even it were shown that the RRT had failed to comply with the standard laid down in the Handbook, that would not, of itself, constitute a contravention of s 420(2)(b) of the Migration Act. Of course, the fact that the RRT has acted in a manner that contravenes guidelines laid down in the Handbook may provide a basis for review of its decision, but not simply on the ground that those guidelines have been breached. Accordingly, the applicant's first argument must fail.

Well-Founded Fear

18 The applicant's second submission was not easy to follow. However, as I understood Ms Bateman, she argued that the RRT had erred in two respects in determining that the applicant did not have a well-founded fear of persecution:

* the RRT had not made any finding as to the reason why the applicant had left the PRC; and

* the RRT had failed to emphasise sufficiently the circumstances as they existed at the time of the applicant's departure from the PRC.

19 The first aspect of the submission appears to rest on a misreading of observations of Davies J in Eshetu, at 313. Davies J criticised the reasons of the RRT in that case on the basis that the RRT had failed to deal with critical issues which the expression "well-founded fear of being persecuted" required to be addressed. He illustrated this criticism by pointing out that the RRT had made no finding as to why Mr Eshetu had left Ethiopia; whether (as he had claimed) he had been a student at the University of Addis Abbiba; whether he had been a member of the Student Council "and so on". Doubtless, in many cases such as Eshetu itself, it will be appropriate to consider why the applicant left his or country of nationality. But Davies J was not deciding that, as a matter of law, the RRT must make a specific finding in every case as to the applicant's reasons for departure from his or her country of nationality.

20 In any event, in the present case, the RRT specifically stated that it was not satisfied that the applicant had left the PRC because he was wanted by the authorities. It thus addressed the question identified by Ms Bateman as important and rejected the applicant's claim.

21 In support of the second aspect of the submission, Ms Bateman relied on observations in Chan, at 387, 399, 406, 415 and 433. Davies J in Eshetu (at 312) read those observations as indicating that, in determining whether a fear of persecution is well-founded:

"emphasis should be placed upon the circumstances as they existed at the time of departure which grounded the applicant's fear of persecution".

The observations in Chan, as Davies J recognised, were directed to the case where it is said that a fear of being persecuted is not well-founded because of changes that have occurred after the applicant left his or her country of nationality. This is not the present case. In any event, as I have said, the RRT did direct attention to the circumstances at the time the applicant left the PRC.

Did the RRT Set Out Findings on Material Questions of Fact?

22 A third contention, that the RRT failed to set out its findings on material questions of fact, although not raised by Ms Bateman in her original written submissions, was embraced by her in the course of oral argument. The issue arose because I raised some questions with Mr Smith, counsel for the Minister, about certain aspects of the RRT's reasoning. Ms Bateman adopted the concerns I had expressed and submitted at the hearing, without any elaboration, that the RRT had failed to comply with s 430(1)(c) of the Migration Act. This provision requires the RRT to prepare a written statement which "sets out the findings on material questions of fact".

23 Although Ms Bateman did not develop the submission in oral argument, it was identified clearly enough. Mr Smith was given the opportunity to file further written submissions to address the question and he took advantage of the opportunity. Ms Bateman filed a reply to Mr Smith's submissions, in which she explained the argument in a little more detail.

24 The starting point is that it has been established that s 430(1)(c) of the Migration Act implicitly requires the RRT to make findings on material questions of fact: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 (FC), at 37, per Lindgren J; Sellamuthu v Minister for Immigration & Ethnic Affairs [1999] FCA 247 (FC), at par 22-24, per Wilcox and Madgwick JJ, at par 51, per Hill J. Those authorities also establish that a breach of the requirement imposed by s 430(1)(c) is a failure to observe a procedure laid down by the Migration Act and therefore constitutes a ground of review under s 476(1)(a) of the Migration Act.

25 Ms Bateman also argued that a failure to make findings on matters critical to a proper application of the term "well-founded fear of persecution" indicates that the RRT has incorrectly applied the law to the facts, thereby providing a ground of review pursuant to s 476(1)(e) of the Migration Act: Paramananthan v Minister, at 57, 62, per Merkel J. Although Ms Bateman contended that this principle applied to the present case, she did not suggest that this alternative method of putting the argument added anything to the submissions founded on s 430(1)(c) of the Migration Act.

26 As has been explained, the applicant claimed that he had spent three years in a reform camp, where he said that he was "cruelly mistreated and tortured by the authorities". The RRT expressed "considerable doubts" about the applicant's claim, on the basis of the country information it quoted, although it accepted that "he may have experienced reform through labour". The RRT also expressed the view that, in the light of the country information, the applicant's claim must "be exaggerated". It found that, even if the applicant were sent for reform through labour, it was not for a three year period.

27 While it is clear that the RRT did not accept the whole of the applicant's account, it did not make explicit findings on the following matters:

* Why was the applicant sent to a reform camp in 1989 (as the RRT apparently accepted)? Was it because, as he claimed, he was sentenced to imprisonment after a trial involving the PSB? If so, what was the conduct for which he was imprisoned?

* For precisely what period did he remain in the reform camp?

* Did he endure, as he claimed, torture and cruel mistreatment while in prison? If so, what kind of mistreatment?

* After the applicant's release from the reform camp was he often taken away by policemen, and was his freedom severely restricted? In particular, was he detained for three days and insulted by the police? If so, why?

28 The major reason for the RRT not making specific findings on these matters appears to have been that it concluded that, even if it were wrong (that is, even if the applicant had spent three years in a labour camp, as he claimed), there was still no real chance that "anything further" would happen to him if he were to return to the PRC. The RRT reached this conclusion on the basis that the applicant had not claimed that he had been further harassed about his pro-democracy activities since 1992 and that he had never claimed that he would suffer further because of his involvement in the events of 1989.

29 It is far from clear why the RRT considered that the applicant had not claimed to have been harassed after 1992 because of his pro-democracy activities. The applicant's written submissions, although brief, asserted (at par B11) that the reform camp was closed at the end of 1992 and that after that time he was often taken away by policemen and his livelihood and freedom had been seriously restricted. These allegations of harassment appear to relate to the period after his release from custody and are not expressed to be confined to his claimed association (rejected by the RRT) with the "Saloon". In the absence of findings concerning these events, or some further explanation of the case put by the applicant, it is difficult to understand why the RRT considered that the applicant was not relying on post-1992 events to support his claims that he faced persecution by reason of his involvement in the pro-democracy movement.

30 If the claims made by the applicant were to be accepted at face value (as the RRT apparently did for the purposes of this portion of its reasons), it is very difficult to understand how the RRT could have concluded that there was no real chance that he would suffer persecution should he now return to the PRC. On the applicant's account, he played a prominent role in establishing the pro-democracy movement at the Company. He gave public speeches and undertook other public activities in support of the movement and of students involved in the movement. Moreover, the applicant (as he claimed) was sentenced to a term of three years' imprisonment by a body including a member of the PSB and he was cruelly mistreated in reform camp. The applicant also claimed that his livelihood and freedom had been subsequently severely restricted, presumably by reason of his political activities.

31 The country reports quoted by the RRT suggest that the authorities took "strong punitive action only against high profile activists and leaders of organisations that the PRC government regards as illegal". If the applicant's account were to be accepted in full, it strongly suggests that he was regarded by the authorities as falling within these categories, and was therefore presumably at greater risk of further persecution than demonstrators playing a less active role in the movement.

32 I did not understand Mr Smith to contend that this aspect of the RRT's reasoning made it unnecessary to consider whether the failure to make findings on the issues I have identified constituted a failure to comply with s 430(1)(c) of the Migration Act. If he did so contend, I would not accept the submission. The RRT has not set out its reasons for concluding that, even if it accepted the totality of the applicant's factual case, he did not have a well-founded fear of persecution. To adopt the language in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, at 415, it is impossible to ascertain what process of reasoning was followed by the RRT. It therefore failed to comply with the obligation imposed by s 430(1)(b) of the Migration Act to set out the reasons for its decision.

33 An alternative way of looking at this aspect of the case is that the RRT could not have correctly applied the requirement that the applicant have a well-founded fear of persecution for a Convention reason. As the joint judgment said in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, at 572:

"A fear is `well-founded' when there is a real substantial basis for it".

Their Honours also endorsed (at 572) the observations of McHugh J in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, at 429, that as little as a ten per cent chance of persecution may constitute a well-founded fear of persecution. If the applicant's account were to be accepted at face value, it is very difficult to see, without a further explanation, why the test laid down in Chan and Guo was not met.

34 As the High Court has explained, it is ordinarily an integral part of deciding whether there is a real chance that the applicant will be persecuted for a Convention reason to make determinations as to past events. In Minister v Guo, the joint judgment said this (at 574-575):

"The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events."

In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, Kirby J explained the decision-making process as follows (at 294):

"There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood. The process of determination involves the delegate's making findings as to material facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the `real chances' affecting the treatment of the applicant if he or she were to be returned to China."

35 Nonetheless, in deciding whether the RRT complied with the obligation imposed by s 430(1)(c) of the Migration Act, it is necessary to remember the admonition that a court exercising powers of judicial review of administrative decisions must not be concerned with looseness of language nor with unhappy phrasing of the reasons of an administrative decision-maker. The reasons of the administrative decision-maker are not to be scrutinised over-zealously to discern whether some inadequacy can be gleaned from the mode of expression: Minister v Wu, per Brennan CJ, Toohey, McHugh and Gummow JJ, at 272. The RRT's reasons are to be given a beneficial construction.

36 Mr Smith submitted that, in the light of these principles, the RRT's reasons, read as a whole, should be taken as finding that the applicant was detained in the reform camp for a relatively short period (certainly less than three years) and that he was regarded by the authorities not as a high profile activist, but as a lesser participant in the pro-democracy movement who was of no further interest to the authorities. Mr Smith also pointed out that the RRT had found that the applicant was prepared to concoct stories to support his application and that he had not left the PRC because he was wanted by the authorities.

37 The principles applicable to s 430(1)(c) of the Migration Act were stated by Wilcox J in Paramananthan v Minister for Immigration & Ethnic Affairs (1998) 160 ALR 24 (FC), at 27:

"I accept the submissions of counsel for the minister that this section does not impose on the tribunal an obligation to make findings about every factual matter mentioned in an applicant's claim. Paragraph (c) of subs (1) refers to "findings of any material questions of fact". Findings need be stated only in relation to questions that are material to the ultimate decision. I also accept that such findings as the tribunal does make should not be construed in an over-critical way, `with an eye keenly attuned to the perception of error': see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; adopted in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2. On the other hand it is important that a reader be able to discern what conclusions the tribunal reached about the issues relevant to the ultimate decision. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based."

The latter part of this passage was cited with approval by the Full Court in Borsa v Minister for Immigration & Multicultural Affairs [1999] FCA 348, par 26.

38 As I have noted, it is clear enough that the RRT did not accept the entirety of the applicant's claims concerning the period spent in a reform camp. The RRT said that his claim to have spent a further three years undergoing reform through labour must have been "exaggerated". The RRT concluded that, even if the applicant had been sent for further reform through labour, it was not for a three year period.

39 Even so, the matters which the RRT did not address were (as the Full Court stated in Borsa) at the "very core of materiality". The RRT did not make any finding as to the period of time the applicant spent at the reform camp, beyond saying that it was for less than three years. The RRT simply did not consider whether or not the applicant had been sentenced to a term of imprisonment by a tribunal. Nor did the RRT address the applicant's claim to have been "cruelly mistreated and tortured" in the prison camp. Similarly, the RRT did not address the applicant's claims that he suffered serious restrictions on his livelihood and freedom after his release, beyond asserting (apparently incorrectly) that the applicant had made no claims that he was harassed after 1992 by reason of his pro-democracy activities. Even if this assertion was intended to be a finding, it did not deal with the issues I have identified.

40 The RRT stated that the applicant's "role seems to [have been] assisting in the organisation of groups protesting in support of the students". I have considered whether this language, although tentative, was intended to be a finding that the applicant had not played the prominent part he claimed in the pro-democracy movement, but played a lesser role. I do not think that is what the RRT intended to do. Not only is the language used by the RRT tentative, but the passage does not identify any particular aspect of the applicant's claims that it intended to reject. The more natural construction is that the RRT was simply summarising (albeit incompletely and, in certain respects, inaccurately) the part the applicant claimed to have played in the pro-democracy movement.

41 Mr Smith submitted that, in substance, the RRT was prepared to accept that the applicant had experienced some reform through labour, but in the same way and to the same extent as a very large number of participants in the pro-democracy movement who were not at risk of persecution. The RRT also must have been of the view that the applicant's general claim of "cruel mistreatment" was exaggerated. In substance, so it was argued, the RRT found that the applicant's experience of reform through labour, having regard to his relatively minor role in the pro-democracy movement and the absence of any harassment for some years prior to his departure from the PRC, did not suggest that there was any real chance that he would be subjected to persecutory treatment if he were to return to that country.

42 In my opinion, this submission goes beyond giving the RRT's reasons a beneficial construction and amounts to a rewriting of the reasons on important questions. The issues not addressed by the RRT were critical to the applicant's claim that he had a well-founded fear of persecution. For example, if the applicant had been sentenced to a term of imprisonment by a tribunal including a member of the PSB because of his pro-democracy activities, albeit for a term less than three years, this would suggest that he was or might have been regarded as a "high profile activist" and therefore (according to country information) at risk of further detention by the authorities. If he had experienced cruel mistreatment and torture while in reform camp that might, at the least, suggest he was at risk of further such treatment, particularly if he had been harassed after his release in 1992.

43 It may be, having regard to the RRT's view of the applicant's credibility, that it would have rejected his claim to have been sentenced to a term of imprisonment by a body including a member of the PSB and that he was cruelly mistreated while in reform camp. But I think that there is a difference between expressing "considerable doubts" about a story and characterising a claim as "exaggerated" and making findings on material questions of fact. It is true that the applicant was disbelieved on many aspects of his case. But that does not mean that his claims concerning the consequences of his pro-democracy activities would inevitably have been rejected (as indeed the RRT itself recognised). This is not, in my view, simply a case of loose phrasing or unhappy terminology. It is a case where the RRT did not make findings on significant factual claims made by the applicant.

Conclusion

44 The decision of the RRT should be set aside and the matter remitted to the RRT, differently constituted, for determination according to law. As to costs, it is relevant that the applicant did not address in any depth what I have found to be the important issue in this case until supplementary written submissions. The hearing was mostly taken up with issues on which the applicant has failed and it became necessary to require further written submissions from the parties. In these circumstances, I think that the respondent should pay only fifty per cent of the applicant's costs.