FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v Jang [2000] FCA 1075 ADMINISTRATIVE LAW – Migration – Application for review of decision of Refugee Review Tribunal – Chinese national claimed to fear persecution on account of religion – Applicant is committed Christian who engaged in "house-church" worship and proselytising in Jilin Province, China – Under Chinese national law, religious activities are unlawful except for worship in a registered church – Country evidence indicated the degree of enforcement of this law varies from region to region, depending on attitude of local officials – Law strictly enforced in Jilin – Tribunal accepted applicant had suffered persecution on account of her religious activities and reasonably feared persecution if returned to China – Refugee status acknowledged – Appeal by Minister contending Tribunal erred in law in failing to consider whether applicant could relocate elsewhere in China – Consideration of the relocation principle in respect of feared persecution arising from enforcement of a national law. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 discussed Migration Act 1958, Part 8 Division 2 MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS v KEUM E JANG N1370 of 1999 WILCOX J SYDNEY 4 AUGUST 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1370 of 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: KEUM E JANG Respondent JUDGE: WILCOX J DATE OF ORDER: 4 AUGUST 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant, Minister for Immigration and Multicultural Affairs, pay the costs of the respondent, Keum E Jang. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1370 of 1999 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: KEUM E JANG Respondent JUDGE: WILCOX J DATE: 4 AUGUST 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 WILCOX J: The Minister for Immigration and Multicultural Affairs has applied to the Court for review, under Division 2 of Part 8 of the Migration Act 1958, of a decision of the Refugee Review Tribunal. The Tribunal upheld a claim by "Keum E Jang" for recognition as a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. 2 The name "Keum E Jang" apparently derives from a false Korean passport upon which the present respondent travelled to Australia. The respondent gave evidence to the Tribunal that her true name is Cui Chun Hua and she was born in Hunchun City, Jilin Province in the People's Republic of China. Despite its apparent acceptance of this evidence, the Tribunal issued its decision in favour of "Keum E Jang". As the Minister used that name in identifying the respondent to this proceeding, I will refer to the respondent as "Ms Jang". 3 The Tribunal was satisfied Ms Jang had a well-founded fear of being persecuted for reasons of religion, if returned to China. 4 The Minister does not challenge the Tribunal's finding that Ms Jang reasonably fears persecution on religious grounds, but he contends the Tribunal's findings of fact only dealt with the position in Jilin Province. He says the Tribunal erred in law in failing to consider whether Ms Jang could relocate elsewhere in China. 5 The Minister's contention raises the question whether it is appropriate to apply the relocation principle to feared persecution arising from enforcement of a national law. The Tribunal's reasoning 6 In its reasons for decision the Tribunal set out the following summary of Ms Jang's claims: "The applicant claimed that she had come from a Chinese family which originated in Korea. Her parents were born in China but her grandparents in Korea. They had spoken Korean at home in China but she had been educated in Mandarin. She had worked as a teacher in China. In 1993 the applicant met a Christian preacher on a train on the way to Beijing. This man explained to her the teachings of Christ. She became very interested and when she arrived in the city decided to pursue it further. She remained in the city for two weeks during which time she received further teachings from the preacher, who was visiting from Korea. She pursued the Christian teachings further and began to pass some of this information on to her students when teaching at school. In 1993-94 she received warnings against this and in 1994 was dismissed from her position as a teacher for giving unauthorised religious teachings. The applicant then returned to her home province and continued to study the bible. She began to hold and attend prayer meetings in her house and the houses of others. On three occasions police came to warn her not to continue with these prayer meetings. At the end of 1994 the applicant was arrested by the authorities for practising an unauthorised religion and was taken into custody, along with two others from her prayer group. She was kept in custody for ten days, during which time she was mistreated and ordered that she must not continue to practice an unauthorised religion. The applicant was pregnant at the time and as a result of her mistreatment she miscarried the child. The applicant was released through work by her family contacts. She continued to hold prayer meetings and the numbers who attended these meetings grew. The applicant continued to be warned that if she continued to practice this religion she would be arrested again. In 1997 the applicant was at a prayer meeting and a policeman who was at the meeting told her that she would be arrested at the next meeting and taken into custody. She was instructed not to go home as the police would pursue her there. The applicant then went to the house of a friend and eventually made her way to Beijing. There she found an agent who arranged her to travel by foot, train and boat into Thailand. There he arranged for her to obtain a false Korean passport with a visa to Australia. She travelled to Australia. Since her arrival in Australia the applicant has been attending the Korean-Chinese Christian church an average of three times per week, although she stated at the last hearing that in more recent times this has dropped to twice a week. The applicant claims that she is unable to practice her chosen religion in China. She has made a deep commitment to this religion and feels she must live her life in accordance with Christian teachings and worship in churches, as well as teaching other [sic] the word of Christ. She fears that if she returns to China she will again be taken into custody for her religious practices." 7 The Tribunal then referred to a number of "country reports" containing information about religious practice in China. It quoted a Department of Foreign Affairs ("DFAT") cable of June 1991 as saying: "The Constitution of the People's Republic of China provides for freedom of religious belief but in practice the Chinese Government imposes restrictions on religious practice outside the officially recognised and government controlled religious institutions. The Government recognises five major faiths – Catholicism, Protestantism, Buddhism, Taoism and Islam – and each of these faiths has an official controlling body." 8 A later DFAT report (June 1994) included the statement: "The effect of the registration requirements is that proselytising or evangelism is confined to the officially registered churches or the homes of people who come under officially registered institutions." 9 A United States Department of State report of April 1998 said: "All religious observances were forcibly suppressed during the Cultural Revolution between 1966 and 1976 but since the reforms that began in 1979 the Government has gradually begun to restore many of the churches, temples, mosques and monasteries confiscated during the Cultural Revolution. Since 1994 the police have stepped up a campaign to require all religious groups to register with the State Council's Religious Affairs Bureau and to come under the supervision of official religious organisations. In the period 1994-97 police closed dozens of 'underground' mosques, temples and seminaries and hundreds of Protestant 'house church' groups. Leaders of these groups were targets of harassment and some have been detained. In some cases church property has been destroyed and some congregations have received heavy fines. The Government generally permits small groups (10 to 20 persons) to gather and worship privately in their homes but large religious meetings are required to be held at an officially designated place of worship. Public prayer and open religious services are not tolerated and are severely restricted and sermons must not address political matters. The level of surveillance and harassment of religious groups varies from region to region and is largely dependent on the local cadre in charge of religious affairs." 10 A report of Human Rights Watch/Asia dated October 1997 noted that, since 1992, the frequency of long term imprisonment of religious activists, and violence towards and physical abuse of them by the security forces, had decreased, but these things still occurred. The report also said "although there were isolated cases of harsher measures being adopted, these were denounced by central government officials as examples of the excesses of local officials and their failure to implement policy directives correctly". The same document reported that: "the conditions required for registration and the legal restrictions on the education and training of religious practitioners have the practical effect of prohibiting evangelical activities and facilitating repression of evangelical pastors and lay instructors." 11 The Tribunal set out only brief findings and reasons: "At the hearings before the Tribunal the applicant appeared to be honest and forthright. Her evidence was accepted by the Tribunal to be truthful. The Tribunal accepts that the applicant is a citizen of China and that the original written application was not completed on her instructions. It further accepts that she has been repeatedly warned against practicing her Christian religion. The applicant is accepted to be a devout Christian who has made a strong commitment to her religion. She has been arrested and taken into custody for a ten day period because of her religious practices, as well as losing the job of a teacher which she had held for a number of years. The tribunal finds that the applicant left China motivated by a fear that she was about to be arrested again because she continued to carry out her religious practices and that these were against the policy of the government officials in her region. The Tribunal finds, on the basis of the applicant's evidence and the country information, that there is a real chance that the applicant will again be arrested and taken into custody if she returns to China and continues to practice her religion. The applicant's fears of being persecuted by government officials and police in China are well founded. The Tribunal finds that the applicant holds a well-founded fear of persecution for reasons of her religion and that there is a real chance that she will be persecuted if she is returned to China." Submissions for the Minister 12 In his Outline of Submissions, Mr Stephen Lloyd, counsel for the Minister, said: "10. It is well established that, in order for an application to succeed, the Tribunal must be satisfied either: that protection visa applicants have a well-founded fear of persecution throughout their country; or that they have a well-founded fear in some part of their country and it is not reasonable to expect them to return to the part or parts where their fears of harm are not well-founded: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 11. It follows that the Tribunal is required, where it finds that an applicant has a well-founded fear at all, to determine whether the fear is well-founded throughout the applicant's country of nationality. 12. In the present case, the Tribunal identified the Respondent's fears as arising from 'government officials in her region'[Mr Lloyd's emphasis]. 13. The finding that the Respondent's fears are linked to regions is consistent with the independent evidence cited by the Tribunal: … - 'The level of surveillance and harassment of religious groups varies from region to region and is largely dependent on the local cadre in charge of religious affairs.' 14. The finding is also consistent with other independent evidence before the Tribunal … [Mr Lloyd referred to other reports in which reference is made to regional variations in the attitude of local officials to unregistered churches.] … 15. Notwithstanding its own finding that the Respondent's fears derived from local officials and the independent evidence (apparently accepted) that the level of harassment of those in unofficial churches varies from region to region, the Tribunal completely failed to consider whether re-location within China would be reasonably available. 16. That is, the Tribunal asked the wrong questions of itself and this constitutes an error under s476(1)(e) of the Migration Act." 13 Section 476(1)(e) makes it a ground of review of a Tribunal decision: "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." As I understand Mr Lloyd, he contends the Tribunal member misapplied the law to the facts he had found. In oral argument, Mr Lloyd said the error of the Tribunal was its failure to ask itself whether there is a place in China where Ms Jang would not be arrested or persecuted. 14 Mr Lloyd orally elaborated his reference to Randhawa. That was a decision of a Full Court of this Court (Black CJ, Beaumont and Whitlam JJ) dismissing an appeal from a decision of Davies J. Davies J had dismissed an application under the Administrative Decisions (Judicial Review) Act 1977 in which Randhawa sought review of a decision of a delegate of the Minister rejecting his application for recognition as a refugee. Randhawa was a Sikh from the Punjab region of India. The delegate accepted that Randhawa's father and brother had been murdered, possibly because of their religious beliefs and political activities, and that he himself faced a prospect of adverse treatment if he returned to the Punjab. But the delegate found Randhawa could safely relocate elsewhere in India. Davies J held this conclusion did not involve any error of law. The Full Court agreed. 15 At 440-441 Black CJ said: "Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders." 16 The Chief Justice referred to a decision of the Supreme Court of Canada, Attorney General of Canada v Ward (1993) 103 DLR (4th) 1, in which La Forest J said: "International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. For this reason James C Hathaway refers to the refugee scheme as 'surrogate or substitute protection', activated only upon failure of national protection:" 17 Black CJ also referred to Professor Hathaway's work: The Law of Refugee Status (Toronto: Butterworths, 1991). At 133 Professor Hathaway said: "A person cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin. Because refugee law is intended to meet the needs of only those who have no alternative to seeking international protection, primary recourse should always be at one's own state. The surrogate nature of international protection is clear from the text of the Convention definition itself, which limits refugee status to a person who can demonstrate inability or legitimate unwillingness 'to avail himself of the protection of [the home] state'. That is, the focus of analysis is the relationship between the claimant and her national government. Where there is no de facto freedom from infringement of core human rights in a particular region (for example, due to the actions of an errant regional government or forces which make the exercise of national protection unviable), but the national government provides a secure alternative home to those at risk, the state's duty is met and refugee status is not warranted." [Professor Hathaway's emphasis] 18 The Chief Justice noted some English, New Zealand and Canadian decisions applying the relocation principle. In referring to one English decision, at 442, he endorsed the opinion: "that if, in all the circumstances, it would be reasonable to expect someone to return to another part of the country of nationality then that is a matter that can properly found an adverse decision on a claim for refugee status." 19 Beaumont J also saw the issue as one of reasonableness. At 451, he said: "… if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution." 20 Whitlam J agreed with the other members of the Court. 21 Mr Lloyd says Randhawa should be applied to this case. He accepts that the relocation principle would not apply where all that could be said was that the applicant for refugee status might successfully hide in another part of that person's country of nationality. However, Mr Lloyd maintains the relocation principle does not depend on there being active protection, in the "safe area", by the national government; absence of persecution in that area is enough. Mr Lloyd cited, by way of analogy, MMM v Minister for Immigration and Multicultural Affairs (22 December 1998, not reported), in which Madgwick J held it could not properly be said the applicant, a Bangladeshi homosexual, faced a risk of persecution because of the existence of a Bangladeshi law criminalising homosexual intercourse that, the Tribunal found, was not in fact enforced. Submissions for Ms Jang 22 Ms Rhonda Henderson, counsel for Ms Jang, argues the relocation principle has no application to this case. In her written submissions she said: "11. The PRC (People's Republic of China) does not offer protection to the applicant which it could more readily provide in one region rather than another. The PRC has a national – not regional – policy of requiring religious organisations to register with the government and submit themselves to close supervision. That national policy is the source of the persecution which the respondent has endured and continues to fear. The respondent and her fellow believers are strongly opposed to government interference with their worship, and she belongs to an 'underground', that is to say, an unregistered, church. … The Tribunal had before it details of the official PRC view on religion, in the form of a lengthy article from the Beijing Review dated 3-9 November 1997. That article discusses the requirement that religious organisations register with the government." 23 Ms Henderson referred to several other country reports that were before the Tribunal and pointed out (rightly, I think) that none of them suggests participation in unregistered religious organisations, or engaging in proselytising activities, is officially sanctioned anywhere in China; all that can be said is that the zealousness of local officials, in enforcing the national law about religion, and in taking action against members of unregistered organisations, varies from region to region and from time to time. For example, the 1991 DFAT cable mentioned by the Tribunal included Shanghai amongst "the relatively tolerant provinces where action taken against the unofficial churches generally seems to be less common". Yet a United States Department of State Report of 30 January 1998 says that, in March 1997, Shanghai's public security authorities broke into the home of a Shanghai underground church bishop, Joseph Fan Zhongliang and seized religious materials and currency. Since that time he had been under surveillance and, according to the report: "Police also harassed and detained several underground church lay people in the Shanghai area". 24 In oral submissions, Ms Henderson emphasised that the repression experienced by Ms Jang, which led to her fear of returning to China, was something that occurred under Chinese national law. She said that, even if there are places in China where the law is not rigorously enforced at this time, that situation could alter overnight with a change in the identity of local officials or in local policy. She argued the concept of protection lay at the heart of the doctrine of relocation; and it was nonsensical to talk about a national government protecting citizens against enforcement of its own laws. Discussion 25 The relocation principle is an important aspect of refugee law. As Black CJ observed in Randhawa, it would be an anomalous situation if the international community were to be "under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders". In many countries, there are local areas in which people of a particular racial group, or religion, or political opinion, suffer persecution because of that characteristic; yet those people suffer no real risk of persecution elsewhere in the country. Where that situation occurs, it may be reasonable to expect such people to relocate in a safe area, rather than to seek sanctuary in a foreign country. 26 However, in considering the reasonableness of such an expectation, it is critical to consider why the safe area exists. This may be because the conflict that gives rise to the persecution is localised; the persecutors do not have the means, or the will, to extend their operations to the remainder of the country. Or it may be that the safe area is under the control of a force stronger than the persecutors, and willing to protect members of the persecuted group. Typically, I suppose, the superior force will be associated with government; whether the government of the country itself or of a province or region. In cases like these, the military and political situation may be so clear, and stable, as to enable an Australian decision maker to determine there are places within the country of nationality to which the applicant for refugee status may return without real risk of persecution. If it is reasonable, under the whole of the circumstances, to expect this to be done, it would be natural and appropriate to refuse a protection visa. 27 However, where the feared persecution arises out of action taken by government officials to enforce the law of the country of nationality, or to implement a policy adopted by the government of that country, it will be much more difficult for an Australian decision maker to reach satisfaction that there is no real risk of the refugee applicant being persecuted if returned to that country. In such a case, if there is a safe area, this must be because the responsible officials have failed to discharge their duty to enforce the relevant law or policy. As Ms Henderson pointed out, that situation might change overnight; either because of the appointment of one or more new officials or insistence on enforcement by superior officers. There will often (perhaps usually) be a "real risk" of that happening. 28 I do not say it is impossible, as a matter of law, for an Australian decision maker to find that a person would be under no real risk of persecution under a national law, if returned to a particular part of a country. There may be cases where enforcement of a particular law would raise such practical, cultural or other obstacles that a decision maker might become satisfied it was highly unlikely the law would ever be enforced. MMM seems to be an example of that situation. In that case Madgwick J considered whether the existence of a law criminalising particular homosexual acts could be said to pose a real risk of persecution to the applicant, as a member of a particular social group consisting of male homosexuals. His Honour referred to "powerful religious and social factors (discussed in the literature referred to by the Tribunal) apparently tending to keep homosexual behaviour, along with many other sexual behaviours, quite unmentioned in a way that would appear to inhibit the publicity attending criminal prosecutions". However, such cases are likely to be rare. 29 The facts of the present case are well removed from the possibility just mentioned. The Tribunal was satisfied Ms Jang had suffered persecution, on account of her religion, in Jilin Province. The Minister concedes this conclusion was open to the Tribunal, on the evidence. The Minister also accepts the Tribunal's finding that Ms Jang has a subjective fear that, if she returns to China, "she will again be taken into custody for her religious practices". The question is whether the Tribunal erred in law in finding this fear is a reasonable fear, without giving consideration to the specific question whether there is some part of China in which Ms Jang would be safe from any real risk of persecution on religious grounds. I say "specific question" because the Tribunal did deal with this matter, in a general way. 30 The submission made by Mr Lloyd emphasises the last sentence in the second paragraph of the Tribunal's statement of findings and reasons, quoted in para 11 above; in particular, the reference to Ms Jang's practices being "against the policy of the government officials in her region". However, as the Tribunal demonstrated by its citation of country information, the policy stance, and persecutory activities, of Jilin government officials were not a Jilin aberration; they were based upon Chinese national law. In this part of his reasons, the Tribunal member was speaking of Ms Jang's subjective fear. So it was natural he would refer to her attitude towards her persecutors, the local officials,. 31 It was equally natural that, when the Tribunal member turned to the issue of reasonable basis for the fear, he would not confine his attention to Jilin province. The member found – importantly, not only on the basis of Ms Jang's evidence, but also on the basis of the country information - "that there is a real chance that the applicant will again be arrested and taken into custody if she returns to China and continues her religion". He went on: "The applicant's fears of being persecuted by government officials and police in China are well founded". 32 It will have been noted the Tribunal member did not speak of return to Jilin, or persecution in that province; he spoke of China as a whole. These two sentences contain clear findings that Ms Jang faces a risk of persecution anywhere in China, not only in Jilin Province. 33 As findings of fact are a matter for the Tribunal, not the Court, the only other question is whether it was open to the Tribunal to make a finding that embraced the whole country. It seems to me there can be no doubt about the answer to that question. The law requiring registration of religious institutions, and proscribing religious activities outside registered institutions, is a national law, applicable throughout the whole country. The practices followed by Ms Jang in Jilin Province contravened that law. She feels committed, by conscience and religious conviction, to resuming those practices if she is returned to China. It follows she is committed to resuming the contravention of Chinese national law. The country information considered by the Tribunal indicates that, although the degree of risk of punishment for such contravention varies from province to province and from time to time, nowhere in China are such practices permissible. Accordingly, it must have been open to the Tribunal to hold that, anywhere in China, there would be real risk of punishment. 34 In my opinion, the Tribunal did not fall into error of law. Disposition 35 The Application must be dismissed. The Minister should be ordered to pay the costs incurred by Ms Jang in relation to the proceeding. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 4 August 2000 Counsel for the Applicant: S Lloyd Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: R M Henderson Date of Judgment: 4 August 2000