Absence of Persecution Before Departure Not Conclusive on Determining Refugee Status

Although there was systematic discrimination against of people of Uigher ethnicity in what was East Turkestan (now the Chinese province of Xinjiang), the RRT found the applicant was not specifically subject of persecution before she left China. But in SBZF v MIAC [2008] FCA 1486 (8.10.08) Federal Court found the absence of past persecution did not conclusively answer the question of whether there was a real chance of persecution in the future. Here’s why the RRT erred:

49. First…, the Tribunal did not address the appropriate question in considering the appellant’s claims. The question that the Tribunal needed to consider was whether the appellant had a well-founded fear of persecution. This required the Tribunal to consider whether if the appellant were to return to her country of origin, in this case China, there would be a real chance she would be persecuted for a Convention reason.

50. It is, of course, relevant in determining whether there is a real chance that an event will occur for a particular reason in the future to consider whether similar events have or have not occurred in the past for the same or similar reasons. It was appropriate, therefore, for the Tribunal to determine whether or not the appellant herself had been subject to persecutory conduct for a Convention reason: Guo 191 CLR 559.

51. However, a finding that she has not previously been subject to persecution for a Convention reason does not necessarily answer the question as to whether there is a real chance that she will be subject to persecutory conduct in the future if she were to return to China for a Convention reason: Appellant S395/2002 216 CLR 473 per Gummow and Hayne JJ at 499.

52. In this case, the Tribunal addressed the question of past conduct but did not consider the question of future conduct. That specific question had to be addressed and answered. In that sense, it did not exercise the jurisdiction which is bestowed upon it under the Act.

53. The second reason why, in my opinion, the Tribunal fell into error is that the Tribunal did not address one integer of the appellant’s claim. She claimed that, by reason of her husband’s conduct, her son-in-law’s conduct and, more relevantly, her son’s conduct, their political opinions would be imputed to her which would give rise to persecutory conduct on the part of the authorities. The Tribunal did not consider whether her son’s conduct and the granting of a protection visa to him as a result of the decision of the Tribunal would be likely to give rise to persecution for their political opinions. The Tribunal misunderstood the relevance of the appellant’s son being granted a protection visa.

54. Thirdly, in my opinion, the Tribunal fell into error by failing to deal properly with the appellant’s claims of feared persecution because of her religious beliefs. There was significant evidence put before the Tribunal as to the manner in which the appellant was restricted by the Chinese State in the practice of her religion, and also as to the manner in which she wished to practice her religion, namely in public with other members of the Muslim community. Despite this, the Tribunal held that “[t]he applicant has not claimed … that she was effectively prevented from practising her religion in private. She made no claim that she suffered persecution or came to the attention of the authorities on the basis of her religion.”

55. I agree with the appellant’s submission that that finding fails to recognise the appellant’s case that she feared persecution from the Chinese authorities by reason of her intention to practice her religion in public. In Wang 105 FCR 548, Merkel J said at 565:

When regard is had to those matters it is clear that there are two elements to the concept of religion for the purposes of Art 1A(2): the first is as a manifestation or practice of personal faith or doctrine, and the second is the manifestation or practice of that faith or doctrine in a like-minded community. I would add that that interpretation is consistent with the commonly understood meaning of religion as including its practice in or with a like-minded community.

56. For the Tribunal to simply state that the appellant was not prevented from practising her religion in private in my opinion was an error. The Tribunal failed to properly address the appellant’s claimed restrictions on her ability to practice her religion openly with others, and whether those restrictions amounted to persecution under the Convention.

57. Fourthly, the Tribunal’s conclusion contradicted its own finding. The appellant is a Uigher from the Xinjiang province. At [8] of these reasons I have quoted what, in my opinion, was an unambiguous finding of the Tribunal that the Uigher population is being deliberately persecuted for practising and preserving its culture and religion. As I have said, the first respondent contended that the Tribunal did not make such a finding but was merely recounting the account given by Amnesty International. I reject that contention.

58. Earlier in its reasons, the Tribunal set out three different reports: US Department of State Country Report on Human Rights Practices for 2005; Amnesty International Report of 11.10.06; and DFAT Country Information Report China of 26.5.06.

59. In relation to the Amnesty International Report of 2006, it recorded:

“It is clear that the Uighur population in China’s Xinjiang province continues to be at an economic and social disadvantage largely due to China’s Develop the West Program and her subsequent influx of Han Chinese to the region. However, the repression of the Uighers stems deeper than mere disadvantage, as they are being deliberately persecuted for practising and preserving their culture and religion.”

60. At that part of its reasons the Tribunal made no findings. The next part of its reasons is headed “Findings and Reasons”. It is within that part of the Tribunal’s decision that the Tribunal said what I have quoted at [8] of these reasons.

61. There would be no point in reciting that information twice unless on the second occasion under the heading of “Findings and Reasons” the Tribunal was thereby accepting the evidence contained in the report.

62. .., the passage quoted at [8] of these reasons is a finding and conclusion of the Tribunal. My conclusion is reinforced by the last two sentences of the passage quoted. First, the Tribunal observes that the Amnesty International account is consistent with the appellant’s account of her grandfather’s and husband’s experiences. There would be no point in making that observation unless the Tribunal was accepting the Amnesty International report. Secondly, the Tribunal has introduced the last sentence of that passage with the word “[h]owever” which, again, suggests that it has accepted the previous account in the Amnesty International report.

63. In my opinion, the Tribunal made a finding that people of Uigher ethnicity are deliberately persecuted for practising and preserving their culture and religion.

64. The Tribunal then fell into error by confining its examination to whether the appellant herself had been subject to persecutory conduct in the past and thereby overlooked the finding that she would be deliberately persecuted for practising and preserving her culture and religion.