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 Appellants:    Mr L.K. Baker (Immigration Consultant)

Counsel for the NZIS:               Mr R.J. Henshaw

Date of Hearing:                      10 June 1991

Date of Decision:                     11 July 1991



These are two appeals against the decisions of the Refugee Status Section of the New Zealand Immigration Service to decline the appellants the status of refugees in terms of Article 1A(2) of the 1951 Convention as supplemented by the 1967 Protocol Relating to the Status of Refugees, which two instruments have been adopted within the framework of the United Nations. The New Zealand Government acceded to the 1951 Convention on 30 June 1960 (New Zealand Treaty Series 1961 No. 2) and to the 1967 Protocol on 6 August 1973 (New Zealand Treaty Series 1973 No. 21). These two cases are the first to be considered by this Authority which has been set up by a decision of Government to make final determinations on appeal as to refugee status within the terms of the Convention and Protocol. These documents require a determination as to whether each of the appellants “owing to a 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.”

These two cases were heard separately on the same day, but their facts are intertwined and it is convenient to deliver their decisions together. Both appellants are nationals of the People’s Republic of China.

Miss L arrived in New Zealand from China in 1988 as an English Language Student and subsequently obtained a work permit on 2 February 1989 to expire in November 1989. In 1989 her friend Miss T from the same area in southern China joined her here, being granted a Student Permit. Both appellants have subsequently obtained extensions of permits to remain in New Zealand until 30 June 1991. Both applied for refugee status shortly before their then current permits expired in December 1990.

At their interviews with the Refugee Status Section both appellants gave similar accounts of their activities in New Zealand, which prompted their refugee status applications.

The news of the events and deaths of demonstrators in Tiananmen Square in Beijing on 4 June 1989 caused both appellants to join in a memorial service for students and others who died in the violence at the McLaurin Chapel at Auckland University on 6 June 1989 and further to join in a protest march against the actions of the Government of the People’s Republic of China which followed the memorial service. They stated they wished to identify themselves with the aspirations of the students for freedom and democracy. Both took up positions in the middle of the first half of the body of demonstrators and to one side. Both wore white headbands with red spots on their foreheads as symbols of mourning. Miss T stated that a flashbulb of a camera went off very close to her and she believes she was photographed. She has not seen any developed photographs of herself and fears that any photograph of her is in the hands of the Chinese authorities. Miss L also saw flashbulbs fairly close to her, but did not see who took the photographs and does not know whether she was photographed or not. Miss T chanted slogans during the march of an anti-Government nature. Miss L watched the burning of photographs by other demonstrators.

Miss L was interviewed by the Refugee Status Section on 3 April 1991 and Miss T on 5 April 1991. At interview both stated they had received warnings from their families in China not to return for fear of punishment for taking part in the Auckland demonstration. Miss L produced a letter written by her grandmother dated 14 September 1990 warning her not to return because “some of those students who took part in the June the 4th movement received brutal and inhuman persecution and their future is all ruined”. It is clear from Miss T’s statements to the Immigration Service that she was aware of the contents of that letter sent to Miss L. Both appellants expressed the fear that they would be imprisoned if they returned to China.

Subsequent to their interviews, but prior to the decisions being advised to them on 8 May 1991 by the Refugee Status Section, both appellants were written letters by family members advising them that the police had been making enquiries about the appellants’ activities in New Zealand. These letters arrived after the decisions were advised and constitute fresh evidence not available to the Refugee Status Section. In Miss T’s case, the letter dated 17 April 1991 is from her sister and describes a police interview in which the interviewing officer claimed to have proof that Miss T had joined in the student movement in New Zealand. In Miss L’s case, the letter dated 9 April 1991 was from her father in which he described two visits from the police, in the second of which the interviewing officer claimed to have evidence of the appellant having taken part in anti- Government activity connected with the 4 June 1989 incident in New Zealand.

These two letters were presented in evidence before the Authority in the course of the appeals which were conducted by way of re-hearing de novo. Miss T generally adopted her statements to the Refugee Status Section before the Authority but added that telephone conversations she had had with her family had led her to believe that returning students were being imprisoned for anti-Government demonstration activity. She reiterated her fear of imprisonment and said that she would have no future in China. She and her family would lose education and job opportunities and access to free medical facilities. She said she had found out from the New Zealand news media that the Chinese Embassy here had maintained spies who had photographed the demonstrations. She denied having asked her family to write the letter of 17 April 1991.

Miss L adopted her previous statements to the Refugee Status Section, but added that she feared not only imprisonment, but discrimination in job opportunities and restrictions on travel within China or overseas. Her family would be affected by her problems and even now she fears that her father may lose his job because of her activity in New Zealand. She said that the timing of the arrival of her father’s letter was coincidental and it was related to her birthday, which is 22 April. There was a birthday greeting card enclosed with the letter.

The Immigration Service, at our invitation, offered some information on its perception of the fate of students in the appellants’ situation returning to China. Mr Jenkins, on behalf of the Service, indicated that it was very difficult to get information on the subject. The Chinese Government had stated that comparatively few students involved in the demonstrations in Tiananmen Square had been imprisoned, but reports from the United States State Department and from Amnesty International tended to contradict that.

The Authority also heard legal submissions from Mr Henshaw on behalf of the Immigration Service. He remarked on the humanitarian purpose of the Convention and Protocol.

The Office of the United Nations High Commissioner for Refugees has published a Handbook on Procedures and Criteria for Determining Refugee Status (1988) which the Authority has found helpful. Paragraph 37 at page 11 states:

“Determination of refugee status will therefore primarily require an evaluation of the applicant’s statements rather than a judgment of the situation prevailing in his country of origin.”
Further, paragraph 38 on page 12 states:
“The term “well-founded fear” therefore contains a subjective and an objective element. In determining whether well-founded fear exists both elements must be taken into consideration.”
In Benipal v Minister of Foreign Affairs (High Court Auckland, A. No. 878/83, 29 November 1985) Chilwell J at p 228 of his decision observed:
 “Clearly there are subjective and objective considerations in the application of the definition to the facts. While as a matter of convenience it is useful to distinguish between the two ingredients, it can lead to error to regard them as separate and independent elements which can be considered in isolation. If fear exists, the issue whether fear is well-founded cannot be divorced from the fear itself; it is in relation to the fear that the issue of “well-founded” must be decided ...”.
Later he said:
““Well-founded” is an adjectival clause of the noun “fear”. Hence it is necessary to decide the fear issue first. Only then can the basis for the fear be ascertained. When ascertained the question can be asked whether the basis is well-founded.”
This approach has found favour in the jurisprudence of other English speaking countries, notably in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, a decision of the High Court of Australia, in Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 434, a decision of the United States Supreme Court and in R v. Secretary of State for the Home Department, Ex parte Sivakumaran and Others [1988] AC 958, a decision of the House of Lords in the United Kingdom. The approved approach appears to be to consider the state of mind of the applicant to determine whether genuine fear exists, a subjective test, and then to proceed objectively to determine upon the evidence whether such fear is well-founded. We accept that approach as the correct one.

The same three leading overseas cases considered the test to be met in deciding whether a well-founded fear of persecution exists. In the Cardoza-Fonseca case, the Court held that it was sufficient that the evidence showed persecution as a reasonable possibility and approved of other expressions such as “a real chance of persecution”, “a reasonable chance”, “substantial grounds for thinking” and “serious possibility”. The House of Lords in Sivakumaran held that the appropriate test was the demonstration of a reasonable degree of likelihood that persecution would occur. In Chan the majority of the High Court approved the expression “a real chance of persecution” as the appropriate test, that Court having had the advantage of considering both the Cardoza-Fonseca and Sivakumaran cases. The authorities make it clear that there is little to choose between these various tests. We conclude that the real chance approach adopted in Chan is the appropriate test to apply in New Zealand.

Returning to the Convention definition of a refugee, there appears to be no dispute that the two appellants are outside their country of nationality and are unwilling to avail themselves of the protection of that country. The issues before us then relate to the question of whether or not the appellants have a well-founded fear of persecution for a Convention reason.

We therefore formulate the issues before us as follows:

1.    Are the appellants genuinely in fear?

2.    If so, is it a fear of persecution?

3.    If so, is that fear well-founded?

4.    If so, is the persecution they fear persecution for a Convention reason?

The first issue involves examining the credibility of the two appellants and their accounts generally which they say justify their fears. We approached the evidence of the two letters with considerable caution in view of the timing of their arrival. We sighted the original letters and envelopes and the birthday card and we observed the demeanour of the two appellants. We were concerned about the possibility that these letters were fabrications produced to bolster up the appellants’ respective cases. We found that both appellants appeared to us to be candid and not attempting to exaggerate the parts they played in the student demonstration in Auckland. We understand that both appellants’ homes are in the same general area of Canton Province so that the fact of the police making enquiries about both of them at approximately the same time need not be considered unusual.

Further support for the genuineness of Miss L’s letter comes from its timing to coincide with her birthday. We considered that the tone of both letters is genuine and conclude that both letters should be accepted at face value. That being so the case of the appellants before us takes on a stronger appearance than that presented to the Immigration Service. While we are satisfied that the two appellants were mere rank and file members of the student march and not prominent leaders of it, we are satisfied from having seen and heard them that they both have genuine fear.

As to the second issue, we find that their fear is of persecution in the form of imprisonment, and discrimination in the areas they have mentioned.

As to the third issue, we find from (a) the fact that they took part in the student demonstration; (b) the possibility that they may have been photographed in the course of it; (c) the apparently genuine reports from their families in China that the police have been enquiring about them and accusing them of being involved in student demonstrations; and (d) from the conflicting information before us of the attitude of the Chinese Government toward students in the appellants’ situation, that there is a real chance that they will suffer persecution. We consider that the US State Department’s view and that of Amnesty International suggest that punishment by way of detention and other measures of large numbers of students involved in protests within China has occurred. We find that the appellants’ fears are well-founded.

As to the fourth issue, clearly if punishment by way of imprisonment or other form of detention were exacted upon these appellants, it would amount to persecution for reasons of expressed political opinion. Even if detention did not occur, we accept that there is a real chance that discrimination in the matters of freedom of movement, access to appropriate work, access to normal free medical services and access to further education will occur. Our view is that the cumulative result of such forms of discrimination would amount to persecution within the meaning of the Convention. In this respect we draw support from the UNHCR Handbook, referred to earlier at paras 54 and 55 on p.15 and the remarks of McHugh J in Chan’s case at pages 430 and 431.

Before leaving these cases the Authority would wish to comment on the reasons provided by the Refugee Status Section for declining the original applications. The reasons given were identical in both cases and were expressed as follows:

“However your client’s fear of persecution on her return to China is not regarded as well- founded. Your client had no involvement in demonstrating her opposition to the Chinese Government prior to her participation in the Auckland march of 6 June 1989. Your client kept a low profile during the Auckland street march of 6 June 1989 and has no other political profile. Therefore it is considered that your client’s claim to have a well-founded fear of persecution should she return to China lacks credibility in the absence of evidence to the contrary.”
We think the reasons offered are difficult to follow. It has never been part of the appellants’ cases that they were politically active, apart from the demonstration of 6 June 1989. As for the “low profile” observation, the dangers inherent in this type of reasoning were touched upon in Benipal at pages 222 to 223 and 231 to 233. In essence the extent of political involvement or activity is not determinative of the claim but, rather most important is the treatment that the claimant has received or may receive for the political activities. Minimal political activity can give rise to a well-founded fear of persecution under certain circumstances. In Re Inzunza and the Minister of Employment and Immigration (1979) 103 DLR (3d) 105 (Federal Court of Appeal) Mr Justice Kelly stated that the crucial test in this regard should not be whether the Board considers that the applicant engaged in political activities, but whether the ruling government of the country from which he claims to be a refugee considers his conduct to have been styled as political activity. In Jerez v Immigration Appeal Board & Anor (1981) 2 FC 527 at p 528 Pratte J in the Canadian Federal Court of Appeal appeared to approve the proposition that we should “not forget that an activity which might have no political significance to us, if it had taken place in Canada, may be seen by a foreign government as having such significance”. We think it important to bear in mind that the test is what the ruling government’s view is of the appellants’ conduct. The information supplied by the Immigration Service in this case certainly does not exclude the real chance that rank and file members of demonstrations will be subjected to persecution. Finally, we are unclear from the use of the word “credibility” whether the reasons advanced were that the appellants were not believed in their accounts or whether the interviewer had merely accepted that they told the truth but that, applying the objective test, the evidence showed their fears were not well-founded. The addition of the words “in the absence of evidence to the contrary” seems extraordinary since the accounts given by the two appellants to the interviewer amounted to “evidence to the contrary”. We suggest that the reasons given for granting or refusing applications should follow the issues we have formulated in this case, to avoid confusion.

For the reasons we have given we find that the appellants are refugees within the meaning of Article 1A(2) of the Convention. The appeals are allowed.

“B.O. Nicholson”