Refugee Status Appeals Authority  




Before:                                 Judge B.O. Nicholson (Chairperson)
                                            R.P.G. Haines (Member) 
                                            G.W. Lombard (Member)
                                            J.M. Priestley (Member)

Appearing for the Appellant:    The appellant appeared on her own behalf

Counsel for the NZIS:              Mr R.J. Henshaw

Date of Hearing:                     11 June 1991

Date of Decision:                    11 July 1991



This is an appeal against a decision of the Refugee Status Section declining to grant refugee status to the appellant, a woman of Chinese nationality aged 46 years. The undisputed account of her past history shows that she is a divorced woman and has the legal custody of her only child.

The appellant arrived in New Zealand in 1989 to study English as a private student for three months. She explained both at her interview with the Refugee Status Section and at the hearing before the Authority, that her parents had a history of being members of the former National Party or KMT in China, and that as a result of her family’s political affiliations the family suffered severe difficulties at the hands of the Communist Government following the 1949 revolution.

Both of her parents were school teachers and under the Communist regime her father who had been the principal of a private secondary school lost his job, attempted unsuccessfully to escape to Hong Kong, but was caught and imprisoned for eight years and sent into internal exile for 20 years. Her mother who was also a school principal in a public primary school was dismissed from that position. She was permitted to take up a teaching appointment at another school in order to support her three young children. She was, however, classified as a counter revolutionary. In 1959 she was dismissed from this position by what the appellant described as the “counter rightist” movement, and she too was sent into internal exile for 20 years. At a later stage her mother’s term of exile was cancelled.

The appellant states that because of her parents’ political background, she suffered discrimination to a serious degree. She made three attempts to enter university without success, she was not permitted to undertake work of any kind from 1962 when she left school until 1973. At that stage in spite of having a good level of school education, she was only permitted to do manual and later somewhat menial statistical work. The younger brother and sister who were attending university before the counter rightist movement were allowed to finish their studies, but they have been not permitted to choose their own jobs or to live where they wished.

In 1983 she attended night classes to learn English. In 1984 she took up work in a souvenir shop in Shanghai, with the help of friends, and she retained that job until leaving for New Zealand. She came to New Zealand to improve her English and she said that at that time she was not expecting to leave China for good. She is presently supported by family members living in the United States of America.

As a result of the violence in Tiananmen Square in Beijing on 4 June 1989, the appellant took part in the demonstration at Auckland on 6 June 1989 after attending a memorial service to mourn the death of the students. She marched from Queen Street to Karangahape Road to Auckland University. At the hearing before the Authority she explained that she was not asked to give details at her interview of the part she played in the demonstration, but she does not claim to have played any high profile role in the demonstration. At her interview with the Refugee Status Section of the Immigration Service she expressed distress and anger at the reported massacre of students at Tiananmen Square and her strong preference for a democratic rather than the present communist form of government as reasons for taking part in the demonstration. She did say, however, that in the course of the march at one stage a person was beside her who chatted to her and asked her numerous questions, such as her name, where she came from, how long she had been in New Zealand, where she was studying and what job she had in China. She said that without thinking she answered all these questions quite normally. Then a friend of hers in the march warned her that she should not be telling strangers such details as there were spies of the Government of China in the crowd. At this point she feared that perhaps the person she had been talking to was such a spy and she now fears that the Government of China may have information about her joining in the demonstration.

She said that after the Tiananmen Square events she received no letters from her family for a long time, although she wrote to them many times. She then received a letter from them to the effect that she should not mention “big things for China” because some of her letters had been opened. She was unable to produce that letter to us as she said she has since destroyed it. That letter was written by her previous husband.

Her fear is that if she returns to China her family background, which has resulted in the types of discrimination she has described in the past, together with the fact of her participation in an anti-government demonstration here in New Zealand, will result in her being subjected to persecution because of her political opinions. She said that in China the political sins of the parents are visited on the children, and even the grandchildren, and that her parents’ political affiliations have in the past forced her to suffer as she has described and that the likelihood of her suffering further at the hands of the Government has been heightened by her participation in the demonstration.

The appellant has made it clear throughout her dealings with her application that she entertains very strong feelings against the present regime in China.

We have been provided by the Immigration Service with information emanating from the United States State Department, this information being as recent as February 1991, and with an article published in the Victoria University of Wellington China Bulletin of August 1990.

The report from the US State Department refers to a statement by the Chinese Government that it does not intend to take action against students involved in demonstrations overseas, and that it wishes to have its students to return to China. The Victoria University publication suggests, however, that the contrary is the case and that demonstrating students are likely to suffer penalties.

The Authority is required to determine, in terms of Article 1A(2) of the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees whether or not the appellant comes within the definition of a refugee. The appellant must show that owing to a well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, she is outside the country of her nationality and is unable or owing to such fear is unwilling to avail herself of the protection of that country. There is no dispute that the appellant is outside the country of her nationality and that she is unwilling to avail herself of the protection of that country. The issues before us are whether or not she has a well-founded fear of being persecuted for reasons mentioned in the Convention.

We refer to our decisions in Refugee Appeals Nos 1 and 2 of 1991 Re TLY and Re LAB where we have set out in detail the manner in which the issues are to be decided. It is necessary for the Authority to first reach a conclusion as to the credibility of the appellant in order to satisfy itself as to the genuineness of her claim of fear. We found the appellant to be an impressive witness who gave every sign of being completely candid with us. We perceive the appeal to be based on a fear that she will be subjected to persecution for a political opinion because of her past experiences of what she claims amounts to persecution at the hands of the Government of China, and because of her recent participation in the demonstration on 6 June 1989 in New Zealand. We accept that she is genuinely in fear and that her fear is of persecution.

We turn now to consider the issue of whether or not her fear is well-founded.

It is accepted that there was discrimination in several directions against the appellant as he has described to us, for a long period of up to 1983 or 1984. It appears from her account that from that point life appears to have been better in the sense that she was able to attend a night school, that she was able to obtain what she herself agrees was a good job in a souvenir shop which lasted for some five years prior to her departure for New Zealand and that she was permitted to leave China. We also accept the appellant’s account of what occurred at the demonstration and of her correspondence with her family and ex-husband.

We consider that the information we have received as to the likely attitude of the Government of China is conflicting and we have noted the appellant’s characterisation of the government statement as mere propaganda. She has cited to us examples of how the government has behaved in the past to support her view that it cannot be trusted to honour its statement in relation to its students.

We apply the “real chance” of persecution test approved by the High Court of Australia in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in reaching our conclusion that given her past experience of discrimination because of her family’s political background together with her participation in the demonstration in Auckland, there is a real chance that she will be subjected to persecution for her political opinions if she returns to China. There was widespread publicity in the New Zealand news media in 1989 of the fact that the Chinese Embassy undertook surveillance of student demonstrations relating to Tiananmen Square occurring in this country. When we add the appellant’s own evidence to that fact, we conclude that her fear is well-founded.

We turn now to consider whether the consequences feared by the appellant amount to persecution for a Convention reason. Clearly her parents suffered persecution for their political opinions in the form of prison and/or internal exile. We find that the discrimination suffered by the appellant herself in the past in relation to education opportunities and work opportunities in their cumulative effect constituted persecution for political opinions imputed to her because of her parents’ background, within the meaning of the Convention. Her fear now is of imprisonment or of internal exile to a remote region because of her expression of political opinion in joining the Auckland demonstrations. That would amount to persecution for a Convention reason and we are unable on the evidence to say that fear is unrealistic. But a mere resumption of the sort of discrimination she has suffered in the past, which we think would be likely, will in any event amount to persecution for a Convention reason in our view. In this respect we refer to para 54, page 15 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and to the dictum of McHugh J in Chan’s case at p.430 where after referring to the Canadian Federal Court of Appeal decision in Oyarzo v Minister of Employment and Immigration (1982) 2 FC 779, he observed:

“The Court rejected the proposition that persecution required deprivation of liberty. It was correct in doing so, for persecution on account of race, religion, and political opinion has historically taken many forms of social, political and economic discrimination. Hence the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedom traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason.”
We find the appellant to have a well-founded fear of persecution for a Convention reason.

We note that in its reasons for declining the appellant’s application the Refugee Status Section said:

“It is accepted that Miss S may find life in China difficult on her return and that she may be questioned on her activities in New Zealand and her opinions on the pro-democracy movement. However, because of her low profile in the student demonstrations, that of a mere participant in the memorial service and march, there is no reason to believe that she will be singled out on her return to China.”
We wish to make two observations about this decision.

First, the decision appears to accept that there will be a resumption of the type of persecution she has experienced in the past, on her return to China. If that is so, it is difficult to see why her application was declined.

Secondly, we draw attention to the decision of Chilwell J. in Benipal v Minister of Foreign Affairs (High Court Auckland, A.No. 878/83, 29 November 1985) at 222 to 223. The Refugee Status Section has laid emphasis on the appellant’s low profile in the demonstration. The comments of the learned Judge on the danger of attempting to decide the issue on the basis of the level of leadership in Benipal’s case are relevant here. While we accept a leading role in the demonstration would increase the likelihood of persecution, we do not think that one can reason that because the appellant had a low profile role, there is no reason to believe that she does not have a well-founded fear of persecution.

Moreover, the Refugee Status Section appears to have asked itself the wrong question viz “Will she be singled out on her return to China?” The proper question is “Does she have a well-founded fear of persecution?” The appellant does not have to show that she will be singled out for persecution or that she will be persecuted.

For the reasons given we find the appellant is a refugee within the terms of Article 1A(2) of the Convention and allow her appeal.

“B.O. Nicholson”