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V05/18276 [2006] RRTA 66 (12May 2006)
DECISION RECORD
RRT Reference: V05/18276
Country of Reference: People’s Republic of China
Tribunal Member: Mr Peter Harris
Date decision signed: 12 May 2006
Place: Melbourne
Decision: The Tribunal affirms the decision not to grant a protection visa.
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In accordance with section 431 of the Migration Act 1958 the Tribunal will not publish any statement which may identify the applicant or any relative or dependant of the applicant. BACKGROUND
1. The applicant, who is a citizen of the People’s Republic of China, arrived in Australia last year and, after several weeks, lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (the Act). A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant a protection visa and the applicant applied for review of that decision.
THE LEGISLATION
2. Under s.65(1) of the Act a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
3. Subsection 36(2) of the Act relevantly provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. “Refugees Convention” and “Refugees Protocol” are defined to mean the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees respectively: s.5(1) of the Act. Further criteria for the grant of a protection (class XA) visa are set out in Parts 785 and 866 of Schedule 2 to the Migration Regulations 1994.
DEFINITION OF “REFUGEE”
4. Australia is a party to the Refugees Convention and the Refugees Protocol and, generally speaking, has protection obligations to people who are refugees as defined in them. Article 1A(2) of the Convention relevantly defines a refugee as any person who:
owing to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
5. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225, Minister for Immigration & Ethnic Affairs v Guo & Anor (1997) 191 CLR 559, Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293,
Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1, Minister for Immigration & Multicultural Affairs v Khawar (2002) 210 CLR 1, Minister for Immigration and Multicultural Affairs vs Respondents S152/2003 (2004) 205 ALR 487 and Applicant S v Minister for Immigration & Multicultural Affairs (2004) 217 CLR 387.
6. Sections 91R and 91S of the Act now qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
7. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
8. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
9. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. However the motivation need not be one of enmity, malignity or other antipathy towards the victim on the part of the persecutor.
10. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
11. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well- founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
12. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or (countries) of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence.
13. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
CLAIMS AND EVIDENCE
14. The Tribunal has before it the Department’s file, which includes the protection visa application and the Delegate’s decision record. The Tribunal also has had regard to the material referred to in the Delegate's decision, and other material available to it from a range of sources.
The Claims
15. The applicant’s claims are set out in a statutory declaration declared by the applicant. In summary, his claims are as follows:
• He was born at City A, in the PRC in the 1980s. He is of Uigher ethnicity and Muslim religion. He was educated to university level in City A.
• In the experience of the applicant, Uigher people are discriminated against and oppressed by the Chinese government because of their ethnicity and religion and also because they are regarded as separatists.
• He had problems learning his religion. At school he was taught communism and that there was not God. He had to learn about his religion secretly, in small groups of children, in a storage area underneath the mosque, knowing that there
would be trouble if he were found. Oppression of Uighers became so bad that his parents withdrew him from these classes after several years. Two of his friends, Mr B and Mr C continued with the classes, and became professionals. Several years ago Mr C was caught and detained for several months; Mr B had his passport taken and remains in prison.
• The official Imam and the secret police told parents that if they taught their children about Islam they would be fined. The children could not disagree with what their school teachers taught, they could not say their prayers at school or fast. If the school found out that they were learning about religion they would be expelled.
• At school, posters of Uighers, asserted to be persons wanted as separatists were displayed; Turkistani scholars and their work were dismissed as backward, and no Turskistan history was taught.
• Although he was taught at school in the Uigher language, instruction in that language has now been banned. Mandarin must be used. Most Uigher teachers have been kicked out because they cannot speak Mandarin and have been replaced by Han Chinese teachers. This is a means of forcing the assimilation of minority groups.
• Previously Uighers attended different schools from the Chinese – the latter’s schools being better resourced. Now, although Uighers attend the same schools as the Chinese, the two groups are segregated.
• Although he knew that the government was against Mashraps, during his teenage years he attended some in City D.
• A relative, Ms J, secretly helped Uighers who had been injured in the demonstrations at City D in the 1990s. The secret police came to his house, searching for her. When she returned home, his father told her that she had to find somewhere safe. She fled to Country K, then to Australia, where she obtained refugee status. After the demonstrations, Ms J’s sibling was arrested and imprisoned for a year. Her sibling now lives in Europe.
• At the time of the demonstrations in City D, the applicant was in his teens. Several months after the demonstration, some of his relatives came to his home and told his family about the way the Chinese authorities had treated the demonstrators and those who had been imprisoned.
• At the time he was to start university several years ago, the law had been changed and all courses were in Mandarin. He had to spend one year studying Mandarin before commencing his studies. Uigher students were separated from Chinese students. They were taught in Uigher because their teachers had insufficient Mandarin, but textbooks and examinations were in Mandarin. Han Chinese had better facilities than Uigher students.
• At university, he was not permitted to practice his religion. Chinese authorities would check whether students carried water bottles to perform ablutions before prayers and whether students were fasting during Ramadan. He was once forced to take a drink during Ramadan. Such things happened from primary school to university. Children under age 18 are not allowed to attend the mosque. As a university student, if he attended the mosque he would have been expelled. Muslim men are not allowed to have a moustache or beard and women may not wear the hijab.
• Several years ago there was a big soccer match between Turkey and China. Because the Uigher students cheered for the Turkish team, the Chinese students threw bottles at them and started fighting them. The applicant fought back, demanding the right to freedom of speech. Following this incident he was kept under surveillance. He was too scared to pray in his room, but was caught going to a mosque and expelled from university.
• He then began to study English, and took a course leading to work in an occupation, but was told that he would not get a job as Uigher people are not hired. His relative in Australia paid for the course and a large sum in bribes to get employment for the applicant.
• His sibling was falsely accused of placing graffiti at his school and told that, because he did not smoke or drink, there must be something wrong with him.
• Most Uighers who graduate from university find it hard to get jobs that match their qualifications. Han Chinese who migrate to his area get jobs before Uighers. A number of Uigher students, who had almost completed their courses, were expelled because they were caught praying.
• Uigher peasants are set production targets which are unreasonable and, if they are not met, are displaced from their land in favour of Han Chinese settlers.
• Many Uighers have been arrested and imprisoned, charged as separatists. A
relative of his father was imprisoned for a number of years. After he was released, he opened a “food place”. Secret police drank alcohol in his premises, called him a separatist abused him and his religion, and claimed that he was backward. He was not able to respond.
• Whilst he was at university, and wanting to escape oppression, the applicant was able, though his father’s contacts and on payment of bribes,to obtain a passport.
• The applicant has a relative in Australia. In recent years his father came to Australia on a visitor visa and stayed for several months. When he returned to the PRC he was interrogated and asked who he had met in Australia, whether he met Uighers, whether he attended Mashraps. He was shown pictures of people and asked if he had seen them in Australia. He was questioned several times, for an hour each time.
• Last year a visitor visa was granted to the applicant. Some weeks after the visa grant he was taken from home by two secret agents and asked about Uighers in Australia, why he was going there and who he would visit. He was told that there were secret agents in Australia and was told that if he worked for them, and found out about Imams and Mashraps in Australia, he would be paid really well. They offered to pay him double the level of wages in Australia. He was shown photographs, asked if he knew any of the people depicted, and told that if he saw any of those people they would pay him a lot of money.
• Last year there was a celebration connected with the anniversary of the autonomous region and the army and police moved into the Uigher area of City A but had no presence in the Chinese area. Many people were arrested because they were not carrying an identity card.
• At the airport, when departing the PRC for Australia, he was detained for some time and thought that he might miss the plane. He was questioned as to why he had a one-way ticket to Australia, why he wanted to go there and who he was going to visit. His luggage was checked thoroughly. He thought he might be arrested. After the applicant left the PRC his Australian relative spoke to his father by telephone. He told her that the police had been to the house and taken documents relating to the applicant including a copy of his visa, identity card, driver’s licence and some passport-size photographs. These were documents he had left with his father in case he lost any documents whilst travelling. His Australian relative did not tell him about the telephone call for a few days, and
told his Migration Agent before she told him.
• He does not want to return to China because he has no freedom there. He cannot practice his religion and had no future. He does not want to get married and bring up his children in the same oppressive environment. If he went back he would be sentenced and arrested. He has attended Mashraps here, and goes to the mosque most days to pray. He was already being watched in China and his family has a number of relatives who have been blacklisted by the government.
Pre-hearing evidence of the Applicant
16. The applicant submitted a statutory declaration declared earlier this year in which he responded to certain findings of the Delegate. In summary, the matters he raised are the following:
• After being caught at the mosque, he was called to the Principal’s office, told he had been disobeying regulations and that he had to leave that day. He was not given anything in writing.
• The process of obtaining a passport was commenced a long time before he was expelled from university and involved the payment of bribes. Every Uigher pays a bribe. How much you pay depends upon your contacts. The fact that he was allowed to leave the PRC does not mean that he was not a person of interest to the authorities. He was searched, and feared that he would be arrested at his point of departure from the PRC.
• His work in one occupation during university was just like “work experience”. He had to pay big bribes to get the job and was paid only a small amount a month whereas full time employes in the same occupation get 10 times as much. It would have been extremely difficult for him, as a Uigher, to get full time work in his chosen occupation. He did this work to avoid getting bored and wrote on his application for a visitor visa that he was employed in his chosen occupation because, if he had not, he would not have been granted the visa. He was not aware of the difference between “work experience” and “employment” when he made his refugee application.
• He does not have the right in the PRC to practice his religion privately – he has to practice it secretly because he will be punished if caught praying or fasting in their homes. It was his religious practice that caused him to be expelled from university.
• Although the problems with Ms J and her sibling occurred a number of years ago, the Chinese authorities can use any past situation to accuse a person of something and can raise the past when they please. The authorities knew that Ms J hid in his house for some time. It is possible that the problems he had at university had to do with his relationship with his Ms J.
• In Australia he does go to the mosque most days, but this is because he is not working. There he can meet people and socialize. If he did this in China he would be imprisoned. He did not go to the mosque to try to make his refugee claims stronger, and did not even think about this. He goes to the Mashraps and the East Turkistan Association because he is free to do so and can socialize with his community.
Other materials submitted on behalf of the Applicant
17. The applicant’s Migration Agent submitted, prior to the hearing, the following materials in support of the applicant’s case:
• Written submissions and attached country information;
• Statutory Declaration of Mr E (without particulars of jurat) referring to his experiences during a visit to China in 2002;
• Letter dated earlier this year addressed “To whom it may concern” from Mr E on letterhead of an Australian Islamic Society in which he states that the applicant is a member of the congregation at a particular Mosque, and has been very active in the programmes held by the Islamic Society. He states his Society’s belief that the applicant’s activities with the Society will make him face persecution if he is sent back to China.
• Letter dated earlier this year from Mr F, headed “Mashrap”, stating that the applicant has been attending Mashrap actively, that the Chinese authorities have spies in Australia and are aware “of all the activities in Australia”. He states that if the applicant returns to China he will face prosecution or even death.
• Letter dated earlier this year from Mr G, office bearer of an East Turkistan Australian Association, stating that the applicant has been participating actively in the programmes organized by the Association, including picnics and Mashrap, and that if the applicant is sent back he will be persecuted because the Chinese authorities “are aware of all the activities in Australia”.
The submission of the applicant’s Migration Agent
18. The applicant’s Migration Agent (“the Agent”) made submissions to the effect that the applicant was liable to be persecuted in the PRC by reason of his ethnicity, political opinion, religion and “membership of family group”. Other matters, relating to the issue of passports to Uighers in the applicant’s region and the arrest and torture of Uighers returning to China, were also discussed in the submissions. Country information is set out and discussed in respect of the various submissions made, including an extract from a letter by Mr H, written in support of an applicant for a protection visa other than the present applicant. Although the observations of Mr H which are set out in the Agent’s submissions appear to be at a level of generality, the circumstance that they were made in the context of the facts of another application do not allow the Tribunal to give them great weight in respect of the present application.
Ethnicity
19. The Agent asserted that there had been mass migration of Han Chinese to the applicant’s home region, giving them economic benefits to the detriment of the Uighers; there are restrictions on the use of Uigher language in schools, the use of their Turkic names, the right to wear traditional clothing, the right to celebrate cultural and religious events, to refer to their land as “East Turkistan” and in the holding of real estate.
Political opinion
20. The Agent submits that the PRC authorities are interested in the activities of Uighers in Australia. They are spied upon, and those who return to the PRC may be mistreated – particularly those who have been involved in activities that could be regarded as subversive, including activities with the East Turkistan Association.
Religion
21. Reference is made to the proposition that, if a person is obliged to conceal their religious faith to avoid mistreatment, then they may be taken to have a well-founded fear of persecution.
Family Membership
22. The Agent submits that, as Ms J was “blacklisted” in the 1990s and allowed to hide in the applicant’s house and her brother imprisoned, his family history will increase his chance of persecution if he returns to the PRC, particularly in view of his association
with the East Turkistan Association.
Passport
23. The Agent submits that Uighers have difficulty obtaining passports from the region’s authorities.
Treatment of returning Uighers
24. It is submitted that returning Uighers may be subject to severe interrogation, especially where the authorities are aware of their activities in Australia.
The Applicant’s Evidence at the Hearing
25. The applicant gave oral evidence to the Tribunal.
26. As to his study at university, the applicant said that he attended for less than a third of the duration of the course in which he had enrolled. He had obtained good results, but his study was terminated because he had prayed and fasted. He was told that he had not obeyed the University’s rules.
27. Whilst at university, he used to pray in the dormitory which he shared with several other students. Half of the students in the dormitory prayed and the applicant continued to do so for about the first half of his first year at university. However, he found it inconvenient to pray there because it was too risky. He did not trust the other students – he suspected that one of them had been appointed to spy on other students. So, secretly, and separately from the other students, he went to the mosque to pray. The mosque he attended was a short walk from the university. He walked there independently of the other students because he did not want the university to be suspicious of him. It was feasible to go separately to the mosque as the other students’ subject allocations were different. On days when he had no formal classes, the applicant would go to the mosque once and would definitely go for Friday prayers. Not all of his fellow students would go to the mosque on Fridays.
28. During Ramadan, the applicant would fast. He would go home on Fridays and there was able to read the Koran. He would sometimes be able to pray in the dormitory when no-one else was there. He thought that he may have been detected fasting during Ramadan.
29. Describing the circumstances in which he was sent down from university, the applicant said that he had been caught coming back from the mosque. Shortly after
he had come out of the mosque, he was approached by people who told him that he had to go back to the school office. These people accompanied him back to the university where he was taken to the Principal’s office. There he was told that he had not been observing the rules, not fulfilling its requirements. He was told that they knew that he had fasted during Ramadan, prayed and visited the mosque. He was then expelled.
30. The applicant said that, once a week there was a political meeting in class where the students were told that they were not allowed to pray or fast during Ramadan. He thought that the school authorities might have realized that he had been fasting because, after classes, he did not go to the school canteen but instead went to his room, but also because he had refused the class co-ordinator’s request to him to drink during Ramadan.
31. After he left university, the applicant remained at home for several weeks. He then went to do an English language course. His reason for choosing English was because it was described by him to be a “world language”. His relative was in Australia, he knew how the Chinese abuse Uighers, and though that being able to speak English might help him to settle somewhere else, to escape from China.
32. The applicant’s study of English lasted only several months because he then took lessons and obtained a job in his chosen occupation, a position that is not normally available to Uighers. It is difficult for Uighers to get jobs in competition with Han Chinese as employers almost always try not to employ Uighers. It was a government- owned company, and his employment was as a trainee, as a casual worker – he could be sacked at any time.
33. The applicant continued to work in his occupation for a little over a year. He worked one shift each day – a morning shift one week and an afternoon shift the next week. He worked several hour days, the same hours as experienced employees. He claimed his pay was about one-tenth the pay of Chinese employees, The applicant said that the income he was on was not sufficient income to live on in City A – six to seven times his wage was required.
34. Having obtained a visa to come to Australia, the applicant left his job. The applicant had had a Chinese passport for several years. Asked why he had not left the PRC until 2005 he said that several years ago his father had also got a passport and they were planning on staying in Australia with his relative. An immigration lawyer suggested that it might be easier to get a visa if only one of the two were travelling.
35. Asked whether, had he come to Australia several years ago, he would have sought to remain in Australia, the applicant said that he had not been thinking that way at the time, but then said that, had he left China several years ago it would not have been his intention to return. He wanted to escape – he wished for freedom to practice his religion and nationality as well as freedom to speak and to live without fear.
36. Asked about his religious experience as a child, the applicant said that when he was at school, there was a very restrictive religious environment, though he fasted during Ramadan, prayed, read the Koran at home and went to the mosque very secretly. He had done so despite his being under the age of 18 years, leaving school during the 1 to 1 ½ hour lunch break. He had been able to observe the requirements of his religion to fast because he had been able to go home at lunch time. Further, from his early teens, he was able to study religion, secretly, at the back of the mosque, where the coal was kept. He ceased after a few years because the government became too harsh on religious study. The applicant believed that, if he had been detected, he would have been expelled from school and his parents would have been given a harsh warning or been punished.
37. Asked about the 1990s incident at City D, the applicant said that he had heard his relatives talk about it. He had been told that a demonstration by City D youth had been suppressed – the demonstrators had been hosed down with cold water in freezing conditions, dogs set upon them, and people left to freeze to death. He recalled having been told about these things by his father’s sister, Ms I, who lived in City D, on a visit to the applicant’s house. Ms I is a retired lady who had seen it with her own eyes. She had come to the applicant’s house to visit his father. Such visits were a tradition, and when she came she would stay for about a half month.
38. The applicant said that his father’s cousin also came from City D to visit. He said that because she treated people from the City D demonstration, she had come under watch from the authorities. Following this, she had come to stay at the applicant’s home, and remained there for several months.
39. In the time that Ms J was staying there, two police officers had come. They asked questions about her and talked with the applicant’s father about her. Beyond that, the applicant did not know what was discussed between his father and the police. After the visit from the police, the applicant’s father told Ms J that it was too dangerous for her to continue to stay there and that she had to leave. The applicant understood that his father believed the police would visit again and that his father thought there would be a risk to the family if she stayed there. He believed that the police had visited
because they were suspicious and would do something bad. The police had not, however, returned to the house before the applicant departed for Australia. They had not come back to ask his father where she had gone, but his father had not told them everything.
40. Before the police came, people had come to the home about a census. This was a regular check in which people come to residential buildings and ask who is living there. This normally happens every three or four months. Sometimes it is people purporting to be tradespeople who come to check, though this had not happened to the applicant’s family, it had happened to another family because the authorities were suspicious about them.
41. Following the hearing the applicant submitted a further statutory declaration in which he explained one aspect of his evidence which he believed had not been truly interpreted at the hearing. He states that there were some visits to his house by officials at the time Ms J was staying with his family. The first occasion was a census, a process carried out every few months throughout the block of apartments. At that time, his father disclosed that there were a certain number of people living in the house. Soon after, there was one visit, carried out by the secret police who asked specifically about Ms J. He does not know if this visit was related to the census or its timing was coincidental. Ms J was not in the house at the time. When she returned, his father told her that she had to find somewhere safe to go. Some months later the applicant was told by his father that Ms J was in Country K. He stated that he had not mentioned the census at the hearing because he had not thought it important.
42. At the hearing I asked the applicant why Ms J had gone to Country K. His response was that it was because of “pressure”, that is, because there was no freedom of speech and because she believed that she was in danger. After she had escaped to Country K, there were talks around the dinner table about such things.
43. Asked whether any members of his family had been involved in political activities, the applicant said that Ms J had looked after the injured, and that a relative of his father’s in City L, a distant relative, who used to come to the family home, had spent several years in gaol. However, the applicant did not know why he had been in gaol, except that he had been a political prisoner. The applicant said that he did know some people who were politically active, not people to whom he was very close, but who he met once a month at the mosque. This was during the time that he worked in chosen occupation – he would go to the mosque secretly in the afternoon on those days when he worked the morning shift. Because, when working the afternoon shift, he was on
duty until midnight, he was too tired to go to the mosque, but prayed at home and fasted during Ramadan.
44. The applicant claimed that, whilst working he went secretly to the mosque because he would be sacked if discovered. Even whilst in the trainee’s job he would be liable to be sacked. He also claimed that if the company found out that he was praying at home, he would also be sacked. Similarly, if they found out that he had fasted, he would lose his job.
45. The applicant claimed that he had gone to work for the company because there was no choice of jobs. Though he had looked for others, he had not been able to find anything. Asked about his father’s source of income, the applicant said that both his parents are retired but both get pensions from their previous employment. His father, too, had been in the same field of work.
46. As to his family remaining in the PRC, the applicant said that his father’s sister and his mother’s brother, and some other more distant relatives, were still there.
47. Asked about his religious practice whilst living in Australia, the applicant said that he goes to the mosque regularly after work, almost every day. He reads the Koran at home, but believes that there are more rewards from God if one prays in the mosque. There, too, he is able to meet other people. This was also something that he did in the PRC, but he had to be cautious.
48. Asked about the nature of his religious practice if he returned to the PRC, the applicant said that he would practice secretly, but that he did not think that he would have to go back. As to his employment, he said that he would not be able to get another job with the company he was previously employed by. He claimed that, as he would be arrested if he went back to the PRC, there was no issue about his being able to get a job and said he would have no chance for a life. As soon as he crossed the border he would be arrested. He had heard that this happened to Uighers who went back. Asked why he believed he would be arrested, the applicant said that since he had been in Australia he had joined the Eastern Turkistan Association Mashrap and had carried the flag at the national day celebration. Even had he not done these things, he would have a problem if he returned because the Chinese officials would be suspicious about him. They were suspicious of any Uigher who went overseas. His father had been questioned when he returned to China from Australia. The reason that his father had not been harmed was because he was old. However, he had been questioned over several days and put under pressure – the first time, he was questioned at home; later he was taken somewhere for questioning and asked if he
had attended Mashrap and other activities of the East Turkistan people. In his opinion the PRC authorities did not generally differentiate between younger and older people but believed that younger people are given harsher and more oppressive treatment.
49. With respect to his involvement in the Eastern Turkistan Association, the applicant said that he had attended various Uigher activities and had carried the national flag because, as a Uigher, he wanted to introduce his culture to other people. He wanted to introduce their culture to the Australian people and show his people to be a nation facing oppression with no religious freedom, freedom of speech, being forced to assimilate to Chinese culture, losing their language and destroying their religion. Such activities cannot be undertaken in the PRC.
50. He had joined the Eastern Turkistan Association because he is a Uigher and because it represents East Turkistan. There are, he said, many Chinese spies in Australia, and he thought that if he joined the Eastern Turkistan Association it would cause him trouble in China, but he nevertheless joined because he is a Uigher. He had heard reports that a Chinese defector had said that there were 1000 spies in Australia and that their duty was to report on Uighers. As long as he was out of China he would join such an association. His activities in Australia are likely to cause him harm if he returned to the PRC because all the things he has done are against the Chinese authorities. The least punishment for what he has done is unlimited imprisonment, but the worst is death.
51. Asked about the contact the applicant had had with his family since his arrival in Australia, he said that those contacts had involved “just normal talking”. He had been told that, soon after he came to Australian the police had come to his home and taken photocopies of his identity card and passport and other things. He said that if the police had given a reason to his family for taking these things, he had not been told about it – his family may have been too scared to tell him, but had not said that they were unable to tell him the reason these items had been taken. The applicant recalled that he had been checked for an hour at the border before he left the PRC.
INDEPENDENT COUNTRY INFORMATION
52. The following information is extracted from the United Kingdom Home Office China Country Report, April 2005, at: http://immbeli1/NXT/gateway.dll?f=templates&fn=default.htm$vid=cisnet:Main
Uighur(s) (Uygur, Uyghur)
6.81 As noted by Europa Regional Surveys of the World: The Far East and Australasia (2005) there are approximately 8.4 million Uighur(s) in China. As noted by Europa publications Regional Studies: Eastern Europe, Russia and Central Asia (2005) there are 210,400 Uighur(s) in neighbouring Kazakhstan and 46,944 in Kyrgyzstan. [1b] (p 232, 263)
6.82 According to the Encyclopaedia of the Peoples of the World (1993): “The ethnonym “Uighur” had been traced back to the eighth century, although it fell into disuse in the fifteenth century. The closely cognate Turkic groups dwelling in Xinjiang called themselves by the name of their locality… “Uighur” was revived in Tashkent [Uzbekistan] in 1921. It steadily became accepted as the general denomination of all of the abovementioned cognate groups in China too, as evidenced by the name given to their region.”[20e] (p 628)
6.83 As noted by the same source, “The Uighur are Sunni Muslims of the Hanafi school.”[20e] (p 627)
6.84 According to the World Directory of Minorities (1997), “Uighur are a fair complexioned Turkic people, living mainly in Sinkiang [Xinjiang] Province, with some living in Tsinghai [Qinghai] and parts of Hunan Province… They speak and write the Uighur language and follow Islam.”[20g] (p 607) [18f is a map of Xinjiang]
6.85 As reported by the Washington Post on 15 September 2000, “Since the early 1950s, the Xinjiang Production and Construction Corps, a paramilitary organization that operates farms and factories, has moved 2.4 million people, 90 percent Han, into Xinjiang and opened up millions of acres of desert for farming. In 1948, 75 percent of Xinjiang’s population was Uighur and 15 percent was Han. Today, 40 percent of Xinjiang’s 16 million people are Han.”[10aa] (See also Annex C/Chronology of Events – Xinjiang)
Treatment of Uighurs in Xinjiang (Sinkiang)
6.86 According to a report by HRW dated October 2001, “Much like Tibetans, the
Uighurs in Xinjiang, have struggled for cultural survival in the face of a government supported influx by Chinese migrants, as well as harsh repression of political dissent and any expression, however lawful or peaceful, of their distinct identity. Some have also resorted to violence in a struggle for independence.”[7b] (p 1)
6.87 According to a report from late 2001 by the American journalist Ron Gluckman, who has spent over a decade in reporting from China: “While there is little evidence so far that repression has actually worsened in Xinjiang, Beijing’s tough posturing can only add to the resentment felt by an already disgruntled Uighur populace. The stepping up of Beijing’s propaganda efforts [post9/11] reflects its deep seated sense of insecurity in Xinjiang, and no wonder. The province today exists in an apartheid like state, with its Uighur and Han Chinese residents leading separate – and, grumble locals, unequal – lives. Few of the province’s estimated 8 million Uighurs speak the national language of Mandarin. They are educated in their own tongue in Uighur schools. They are treated in Uighur hospitals that they claim are subpar. They live in crowded neighborhoods of medieval mudbrick houses, which contrast with the modern white tile blocks catering to Chinese immigrants. The newcomers dine almost exclusively in Chinese restaurants; Uighurs patronize their own eateries, which are devoid of Chinese clientele. The two people rarely work together, intermarry even less. That’s how it has been ever since the Chinese liberated – locals say conquered – Xinjiang (meaning “new frontier” in Mandarin) soon after World War II, ending the short lived independent Uighur state of East Turkestan.”[20r]
6.88 As reported by The Times on 21 August 2003: “History shows the Uighurs to be pacific, and lax in their religious observance. No doubt there are today some religious fundamentalists inside Xinjiang. No doubt inflammatory literature, not to mention weapons, is being smuggled in. Certainly there are militants (especially among the young urban unemployed) both inside and outside who would like to overthrow Chinese rule. But Islam should be seen as the vehicle, not the cause, of Uighur grievances, and separatism as a mark of their despair at the lack of citizens’ rights or a share of their own future.”[16ea]
6.89 The same source continued: “Party Bureaucrats have been told – and may even believe – that Xinjiang has been part of China since 60BC. In fact China’s control has been sporadic and usually shortlived. What we are seeing now is better described as the latest, and most thorough, of the centre’s attempts to consolidate a conquest and Sinicise the wild west. China will never give up Xinjiang voluntarily because of its mineral wealth.” [16ea]
6.90 As reported in Volume 4, Issue 8 (April 15, 2004) of China Brief – available via the Jamestown Foundation’s website – the main points of friction between the Uighurs and Chinese are:
High levels of Han migration and unequal distribution of wealth.
Restrictions on birth control, which many Uighurs regard as incompatible with Islam.
Ban of wearing the hijab (Muslim headscarf) in schools.
Restrictions on visiting mosques for government employees. [8ha]
Uighur Terrorist Groups
6.91 As reported by the BBC on 15 December 2003, “China has issued its first “terrorist” wanted list, blaming four Muslim separatist groups and 11 individuals for a string of bombings and assassinations [carried out in the 1990s] and calling for international assistance to track them down.” The groups identified were the Eastern Turkestan Islamic Movement (ETIM), the Eastern Turkestan Liberation Organization (ETLO), the World Uighur Youth Congress (WUYC) and the East Turkestan Information Centre (ETIC). [9ao]
6.92 This report noted, “Chinese authorities have blamed ETIM for many of the 200 or more attacks reported in Xinjiang since 1990 and have banned the group for more than a decade. Beijing accuses ETIM of having links to the Taleban in neighbouring Afghanistan and Osama bin Laden’s alQaeda network, but has produced no supporting evidence.”[9ao]
6.93 According to Justin Rudelson and William Jankowiak writing in Xinjiang China’s Muslim Borderland; a collection of academic articles on Xinjiang published in 2004, the Chinese government named eight Uighur terrorist forces it says were operating within Xinjiang in August 2002. The groups it named were:
Islamic
1. The Eastern Turkestan Islamic Movement (ETIM)
2. The Eastern Turkestan Islamic Party
3. The Eastern Turkestan Islamic Party of Allah
4. The Islamic Reform Party “Shock Brigade”
5. The Islamic Holy Warriors
Secular
6. The Eastern Turkestan International Movement
7. The Eastern Turkestan Liberation Organization
8. The Uyghur Liberation Organisation [19e] (p 317318)
6.94 As reported by the same source, “On August 26, 2002, the US State Department, China and the United Nations announced that one of the eight Uyghur militant groups, the ETIM, would be placed on the list of international terrorist oraganizations. Slowly more information about this militant group organization came out. The ETIM Uyghur resistance began after the 1990 Baren uprising. Seeing the government’s readiness to use force against apparently peaceful students, Uyghur activists from the south of Xinjiang fled to a base at a religious school (madrassah) in Pakistan and there they founded the ETIM. ETIM fighters dedicated themselves to fighting a “holy war” in Central Asia and to fighting against Chinese invaders. The ETIM’s leadership is purported to have had close links to Osama bin Laden and to have sent agents and weapons into Xinjiang beginning in 1998. At least two of the AlQuaeda fighters captured in Afghanistan and sent to Guantanamo [Bay], Cuba were Uyghurs from the ETIM.” [19e] (p 317318)
6.95 As reported by the Asia news site Muzi news on 13 September 2004, “China has sentenced more than 50 people to death this year in the western region of Xinjiang in what the government depicts as a protracted battle against foreign backed separatists.” According to this report the government claimed to have cracked 22 groups in the first eight months of 2004. The report also quoted an official as saying that none of those sentenced to death has been executed yet. [15ah]
6.96 As reported by the official China Daily newspaper on 22 January 2005, “Thirteen people died and 18 [were] injured in two separate explosions in Northwest China’s Xinjiang Uygur Autonomous Region as Muslims celebrated the EidalAdha religious festival.”[14q] 14q] As reported by the official People’s Daily newspaper on 24 January 2004, police arrested a disgruntled ex minernin connection with the blast. [14r]
53. The following passage is extracted from the Country Reports on Human Rights Practices 2004: China, published by the United States Department of State, Bureau of Democracy, Human Rights and Labor (28 February 2005):
The campaign against separatism in Xinjiang specifically targeted the "three evils" of extremism, splittism, and terrorism as the major threats to Xinjiang's social stability. Because authorities in Xinjiang regularly failed to distinguish carefully among those involved in peaceful activities in support of independence, "illegal" religious activities, and violent terrorism, it was often difficult to determine whether particular
raids, detentions, arrests, or judicial punishments targeted those seeking to worship, those peacefully seeking political goals, or those engaged in violence (see Section 5). Among books banned during the year were "China Peasant Survey," and "The Past Does Not Go Up In Smoke," a collection of essays dealing with the effect of political tumult in the 1950s and 1960s on the lives of prominent Chinese intellectuals. In January, authorities issued regulations restricting publication of books on constitutional reform to three official publishing houses. In 2002, the Department of Cultural Affairs in Urumqi, Xinjiang, ordered the destruction of thousands of books on Uighur history and culture. The books detailing and documenting Uighur history originally had been published with the approval of the authorities. Regulations restricting Muslims' religious activity, teaching, and places of worship continued to be implemented forcefully in Xinjiang. In some areas of Xinjiang where ethnic unrest has occurred, officials restricted the building of mosques and the training of clergy. Authorities reportedly continued to prohibit the teaching of Islam to children under the age of 18 in some areas where ethnic unrest has occurred, although children studied Arabic and the Koran without restriction in many other areas. For example, local officials have stated that persons younger than 18 are forbidden from entering mosques in Xinjiang, but this policy was enforced unevenly. Authorities also reserved the right to censor imams' sermons. In particular, imams were urged to emphasize the damage caused to Islam by terrorist acts in the name of the religion.
Fundamentalist Muslim leaders received particularly harsh treatment. In 2000, the authorities began conducting monthly political study sessions for religious personnel; the program reportedly continued during the year. In August, eight Uighur Muslims in Hotan District were reportedly charged with endangering state security, and scores were detained on charges of engaging in "illegal religious activities." Because of government control of information coming from Xinjiang, such reports were difficult to confirm.
There were numerous official media reports that the authorities confiscated illegal religious publications in Xinjiang. The Xinjiang People's Publication House was the only publisher allowed to print Muslim literature, and stores reported that those selling literature not included on Government lists of permitted items risked closure. In addition to the restrictions on practicing religion placed on party members and government officials throughout the country, teachers, professors, and university students in Xinjiang were not allowed to practice religion openly. Officials also reportedly restricted mosque building in some areas of Xinjiang, especially where unrest had occurred. However, in other areas, particularly in areas traditionally populated by the non-Central Asian Hui ethnic group, there was substantial religious building construction and renovation. Mosque destruction, which sometimes occurred in Xinjiang, occasionally resulted from intra-religious conflict.
The Government permitted Muslim citizens to make the Hajj to Mecca and in some cases subsidized the journey. A record number of nearly 10,000 Muslims made the Hajj during the year, nearly half of whom went with government-organized delegations. Other Muslims made the trip to Mecca via third countries. According to international Uighur groups, Uighur Muslims had greater difficulty getting permission to make the Hajj than other Muslim groups, such as Hui Muslims, and some Uighurs elected not to attempt to go for fear of repercussions.
Tensions between ethnic Han citizens and Uighurs in Xinjiang continued, and the authorities continued to restrict political, civil, and religious freedoms (see Section 2.c.) in the region. A campaign that began in 1997 to stress unity and to condemn "splittism" and religious extremism showed no signs of abating. During the year, authorities continued to prohibit activities they deemed separatist in nature, announced tightened security measures, and mounted campaigns to crack down on opposition.
Many observers raised concerns that the Government's war on terror was being used as a pretext for cracking down harshly on Uighurs expressing peaceful political dissent and on independent Muslim religious leaders. In December 2003, the Government published an "East Turkestan Terrorist List," which labelled organizations such as the World Uighur Youth Congress and the East Turkestan Information Center as terrorist entities. These groups openly advocated East Turkestan independence, but with the exception of one group, the East Turkestan Islamic Movement (ETIM), there was no available evidence that they advocated violence to achieve this goal. The U.N. has designated ETIM a terrorist organization.
Uighurs were sentenced to long prison terms and sometimes executed during the year on charges of separatism. During the strike-hard campaign, which officially concluded in 2003, authorities stated they prosecuted more than 3,000 cases in Xinjiang and held mass sentencing rallies attended by more than 300,000 persons. By its own account, the Government broke up 22 groups engaged in what it claimed were separatist and terrorist activities and meted out 50 death sentences to those charged with separatist acts from January to August. In July, two Muslim Uighurs reportedly were executed after being convicted in Aksu City, Xinjiang, of illegally organizing the East Turkestan People's Party and using armed tactics to split the country. Approximately 15 others were convicted of separatism and sentenced to long prison
terms in the same case. In October 2003, Uighur Shaheer Ali was executed after being convicted of terrorism. He had been repatriated forcibly from Nepal in 2002, where he had been interviewed by the UNHCR and granted refugee status.
For many Uighurs, the ongoing imprisonment of Uighur businesswoman Rebiya Kadeer symbolized the Government's mistreatment of Uighurs. In 2000, a Xinjiang court sentenced Kadeer, a former member of the provincial-level Chinese People's Political Consultative Conference, to 8 years in prison on charges of "passing state intelligence" to foreigners; according to an official press report, the intelligence she was accused of passing included newspaper articles and a list of names of persons whose cases had been handled by the courts. Kadeer, her son, and her secretary were arrested in 1999 while on their way to meet a visiting foreign delegation. Kadeer reportedly suffered various health problems in prison. Some foreign observers believed Kadeer was singled out for her activism on behalf of Uighurs and for her husband's involvement with Uighur causes and Radio Free Asia. In March, Kadeer received a 1-year sentence reduction for good behavior. The Government claimed she had recognized that she was a victim of "splittism" and remained "on the side of the Party and the people." She was due for release in August 2006. On October 18, Uighur Dilkex Tilivaldi was detained after meeting a foreign journalist, and his whereabouts continued to be unknown.
Other Uighurs whose work emphasized pride in cultural identity have also been harassed and detained by the Government. Writer and translator Abdulghani Memetemin was convicted in June 2003 on charges of sending state secrets abroad and sentenced to 9 years in prison for translating news articles into Chinese from the Uighur language and forwarding official speeches to the East Turkestan Information Center. In late 2001, the U.N. Working Group on Arbitary Detention ruled that Uighur scholar and researcher of Xinjiang's ethnic minorities Tohti Tunyaz had been arbitrarily detained. He was sentenced in 1999 to an 11-year prison term for "inciting separatism" and "illegally acquiring state secrets" and remained in prison at year’s end.
Possession of publications or audiovisual materials discussing independence or other sensitive subjects was not permitted, and, according to reports, possession of such materials resulted in lengthy prison sentences.
Officials in the region claimed that the campaign against separatism was necessary to maintain public order. In March, Xinjiang's chairman Ismail Tiliwaldi said the campaign had improved security, noting in published reports that, since the start of
2003, there were no explosions or assassinations in the region and no tourists were killed in Xinjiang.
Han control of the region's political and economic institutions also contributed to heightened tension. Although government policies brought tangible economic improvements to Xinjiang, Han residents have received a disproportionate share of the benefits. The majority of Uighurs were poor farmers, and 25 percent were illiterate. Regulations require Uighurs to use Mandarin Chinese characters for their names on identification documents.
54. The International Religious Freedom Report, 2004: China, released by the Bureau of Democracy, Human Rights contains the following discussion:
There are large Muslim populations in many areas, but government sensitivity to these communities varied widely. Generally speaking, the country's Hui Muslims, who often live in Han Chinese communities throughout the country, have greater religious freedom than Turkic Muslims such as the Uighurs, who are concentrated in the western part of the country. In areas where ethnic unrest has occurred, especially among the Uighurs in Xinjiang, officials continued to restrict the building of mosques and the training of clergy and prohibited the teaching of Islam to children. In addition to the restrictions on practicing religion placed on party members and government officials throughout the country, in Xinjiang teachers, professors, and university students are not allowed to practice religion openly. However, in other areas, particularly in areas populated by the Hui ethnic group, there was substantial mosque construction and renovation, and also apparent freedom to worship. After a series of violent incidents, including bombings attributed to Uighur separatists, beginning in 1997, police cracked down on Muslim religious activity and places of worship accused of supporting separatism in Xinjiang. Because the Xinjiang government regularly fails to distinguish carefully among those involved in peaceful activities in support of independence, "illegal" religious activities, and violent terrorism, it is often difficult to determine whether particular raids, detentions, arrests, or judicial punishments targeted those seeking to worship, those peacefully seeking political goals, or those engaged in violence. Xinjiang provincial-level Communist party and government officials repeatedly called for stronger management of religious affairs and for the separation of religion from administrative matters.
For example, in 2002 State Councilor Ismail Amat (an ethnic Uighur) told a delegation of National People's Congress delegates that, "while enjoying the rights of religious freedom, the citizens who have religious beliefs must place the basic
interests of the State and the people before everything else," and that "we must not use the freedom of religious belief as an excuse to abandon or to dodge the management of religious affairs by the State."
Xinjiang officials told foreign observers that children under 18 are not permitted to attend religious services in mosques in Xinjiang. However, children were observed attending prayer services at mosques in Beijing and other parts of the country.
55. The situation of ethnic minorities in the Xinjiang Uighur Autonomous Region of China was the subject of a comprehensive Report by Amnesty International on 1 April 1999, “Gross violations of human rights in the Xinjiang Uighur Autonomous Region”, part of which is available at CX48723, CX 48723, CX48725 and CX 48726 - the full text being downloadable from: http://web.amnesty.org/library/index/ENGASA170181999.
INTRODUCTION
Gross violations of human rights are being perpetrated in the Uighur Autonomous Region of Xinjiang, in the west of China, with little about it being known to the international community. The main victims of these violations are the Uighurs, the majority ethnic group among the predominantly Muslim local population.
Thousands of people have been arbitrarily detained in the region over the past few years and arbitrary arrests continue. Thousands of political prisoners, arrested at various times during the 1990s, are reported to remain imprisoned, some having been sentenced to long prison terms after unfair trials, others still detained without charge or trial after months or years in jail.
Many of those detained are reported to have been tortured, some with particularly cruel methods which, to Amnesty International's knowledge, are not being used elsewhere in the People's Republic of China. Political prisoners held in prisons or labour camps are reported to be frequently subjected to cruel, inhuman and degrading treatment or punishment. Some have reportedly died of ill-treatment or neglect in detention.
Scores of Uighurs, many of them political prisoners, have been sentenced to death and executed in the past two years. Others, including women, are alleged to have been killed by the security forces in circumstances which appear to constitute extra-judicial executions.
These gross violations of human rights are occurring amidst growing ethnic unrest
fuelled by unemployment, discrimination and curbs on fundamental freedoms. Over the past ten years the local ethnic population has witnessed a steady erosion of its social, economic and cultural rights. Economic development in the region has largely bypassed the local ethnic population and they have faced increased restrictions. This trend has exacerbated long-standing ethnic tensions between Uighurs and Han Chinese in the region, and contributed to the escalation of violence.
A growing number of violent incidents have been reported in the region. They include violent clashes between small groups of Uighurs and the security forces, as well as attacks against government officials and bombings by underground opposition groups.
The government has blamed the unrest and violence on a "small number" of "separatists", "terrorists" and "religious extremists" who are accused of having links with "foreign hostile forces" whose aim is to "split the motherland". The government's response has been harsh repression. Since 1996, the government has launched an extensive campaign against "ethnic separatists", imposing new restrictions on religious and cultural rights and resorting increasingly to executions, show trials and arbitrary detention to silence real and suspected opponents.
The official reports about "separatists and terrorists" obscure a more complex reality in which many people who are not involved in violence have become the victims of human rights violations. Over the years, attempts by Uighurs to air their views or grievances and peacefully exercise their most fundamental human rights have been met with repression. The denial of legitimate channels for expressing grievances and discontent has led to outbursts of violence, including by people who are not involved in political opposition activities.
......
Discrimination
Despite the economic development in the XUAR since the 1980s, unemployment is high among Uighurs. Many Uighurs complain that racial abuse and discrimination against ethnic minorities is common, and that they have no equal opportunity in education, health care and employment. Unlike their Chinese counterparts, for example, many Uighur schools and hospitals are poorly equipped, and some Uighur village schools are reported to be so poor and totally deprived of equipment that the pupils have to sit and write on the earthen floor. Many hospitals reportedly have discriminatory practices, giving preferential treatment to Han Chinese patients and top jobs to Chinese doctors at the expense of their Uighur counterparts.
......
Religion
With the "open door" policy launched in the late 1970s and the subsequent economic reforms, there was a religious revival in the XUAR as in the rest of the PRC. The authorities allowed the reopening of mosques and the use of funds contributed from some Islamic countries to build new mosques, found Koranic schools and import religious materials. Many Muslims were allowed again to travel to Islamic countries, and contacts with Muslims abroad were encouraged.
[See Lillian Craig Harris, op.cit., p. 121, and Gaye Christoflersen, "Xinjiang and the Great Islamic Circle: The Impact of Transnational Forces on Chinese Regional Planning", The China Quarterly, No.133, March 1993, pp.130-151.]. This liberalisation however stopped during the late 1980s. The government reverted to restrictive policies, amidst fears that Islam might provide a rallying point for ethnic nationalism and that Islamist movements abroad might inspire young Uighurs who had gone to study in foreign Islamic schools. These fears were apparently reinforced by an incident in Baren, near Kashgar, in April 1990, when protests and rioting, reportedly led by members of an Islamic nationalist group, resulted in many deaths (see below page 65)
Since then, many mosques and Koranic schools have been closed down, the use of the Arabic script has been stopped, tight controls have been imposed on the Islamic clergy, and religious leaders who are deemed to be too independent or "subversive" have been dismissed or arrested. Muslims working in government offices and other official institutions are prohibited from practising their religion, failing which they lose their jobs. Since 1996, the government has intensified its campaign against "national separatists", "religious extremists" and "illegal religious activities", launching at the same time an "in-depth atheist education" campaign to purge grassroots communist party committees and other institutions of Muslim believers.
......
Social and cultural rights
Social and cultural rights have also been curtailed. In Urumqi, the regional capital, some Uighur entrepreneurs who manufactured traditional ethnic clothes or who became involved in social issues have suffered harassment - some had to close down their businesses as a result. In cities in the north, some people are also reported to have been harassed or detained simply for displaying signs of their ethnic or religious identity, such
as headscarves for Muslim women. In Ili and other areas, a social and cultural forum known as the "meshreps", which was revived in 1994 by Uighurs in Gulja (Yining) city, was banned by the authorities in 1995 (see below, page 18).
56. Reference may also be made to an Amnesty International Report, “Peoples’ Republic of China’s Anti-Terrorism Legislation and Repression in the Xinjiang Uighur Autonomous Region’, 17 January 2002, downloaded on 10 February 2004 from: http://web.amnesty.org/library/print/ENGASA170102002 from which the following extracts are drawn.
The crackdown on suspected government opponents was intensified in the XUAR soon after 11 September 2001. It further intensified in December 2001, following a national conference on 'political and legal work' held in Beijing on 4 December 2001, which made the crackdown on ''ethnic separatist forces, religious extremist forces and violent terrorist forces'', as well as the Falun Gong spiritual movement, the first of four main priorities in ''political and legal work'' for the year 2002.(18)
The authorities also imposed new restrictions on freedom of religion, closed down mosques which were deemed to have a ''bad influence'' on young people, and subjected the Islamic clergy to intensive scrutiny and ''political education''. Such ''political education'' campaigns, which are reminiscent of those held during the Cultural Revolution, aim both to force participants to follow closely the party's dictates and to identify potential opponents and dissenters.
The authorities in the XUAR announced in October 2001 that they were intensifying the ''strike hard'' campaign against ''ethnic separatist and terrorist forces'' and would step up measures to ''deal with the cause''.(22) The ''strike hard'' anti-crime campaign, which was launched across China in April 2001 and led to a massive escalation in executions, was targetting both crime and ''separatism'' in the region.(23) ...... In Urumqi, the regional capital of the XUAR, the new crackdown started in early October 2001. The China News Service reported that police in the city had begun a ''campaign to clear up cases''. Du Jianxi, Urumqi's Public Security Bureau Chief, was cited as saying: ''this action is aimed at maintaining public order and stability during the winter and next spring by smashing the bloated pride of violent terrorists.''(24) According to the report, since the beginning of the year, 10 ''violent terrorist groups'' had been ''wiped out'' and around 210 ''hardened minority splittists, suspected violent criminal terrorists or religious extremists'' had been arrested in Urumqi.
Official sources subsequently reported that 166 ''violent terrorists'' and ''other criminals'' had been arrested in Urumqi between 20 September and 30 November 2001.(25) They did not indicate how many among them had been arrested as alleged ''terrorists''. Uighur exile sources later cited a report published in the Urumqi Evening News on 27 October 2001, according to which 150 people had been arrested for involvement in ''illegal religious activities'' and ''separatism'',(26) but it was not clear to which period this referred. These sources have also reported political arrests mentioned in other local newspapers, such as the arrest of 30 people within a month in Aksu reported by the Aksu Daily on 6 December 2001.(27)
Although official media reports, such as those cited above, have occasionally mentioned the number of people arrested in particular cities or areas, so far the authorities have not published comprehensive figures about the number of arrests resulting from the crackdown in the whole region.
However, official reports show that the crackdown has been carried out across the region and that hundreds of armed police units have been mobilized to carry it out.
57. More recently, Amnesty International reported as follows:
Xinjiang Uighur Autonomous Region (XUAR)
The authorities continued to use the “global war on terror” to justify harsh repression in Xinjiang, resulting in serious human rights violations against the ethnic Uighur community. The authorities continued to make little distinction between acts of violence and acts of passive resistance. Repression resulted in the closure of unofficial mosques, arrests of imams, restrictions on the use of the Uighur language and the banning of certain Uighur books and journals.
Arrests of so-called “separatists, terrorists and religious extremists” continued and thousands of political prisoners, including prisoners of conscience, remained in prison. Many of those charged with “separatist” or “terrorist” offences were reportedly sentenced to death and executed. Uighur activists attempting to pass information abroad about the extent of the crackdown were at risk of arbitrary detention and imprisonment.
China continued to use “counter-terrorism” as a means to strengthen its political and economic ties with neighbouring states. Uighurs who had fled to Central Asia, Pakistan, Nepal and other states, including asylum-seekers and refugees, remained at
serious risk of forcible return to China. China continued to put pressure on the USA to return 22 Uighurs held in the US detention camp in Guantánamo Bay, Cuba. In June, the US authorities stated that the Uighurs would not be returned to China due to fears that they would be tortured or executed.
(Amnesty International: China – Report covering the period January to December 2004 downloaded on 5 August 2005 from: http://web.amnesty.org/web/web.nsf/print/C581C897D28151ED80256FE1005BF772 )
58. The Human Rights Watch: World Report 2005, 15 January 2005 states:
Xinjiang and the “War on Terror” China used its support for the U.S.-led "war against terrorism" to leverage international support for, or at least acquiescence in, its own crackdown on Uighurs, a Turkic-speaking Muslim population in China’s northwestern Xinjiang Uighur Autonomous Region. Some Uighur groups press peacefully for genuine political autonomy or for independence; others resort to violence. Chinese authorities do not distinguish between peaceful and violent dissent, or between separatism and international terrorism.
The crackdown in Xinjiang has been characterized by systematic human rights violations including arbitrary arrests, closed trials, and extensive use of the death penalty. In September 2004, the region’s Communist Party leader reported that during the first eight months of the year fifty people were sentenced to death and twenty-two groups targeted for separatist and terrorist activities. Official sources subsequently clarified that none of the fifty were executed, but have provided no additional information on their fate.
Cultural survival for Uighurs, along with other ethnic groups on China's borders, is a constant struggle. Officials have curbed observation of traditional holidays and use of the Uighur language, and closely control religious education and expression. Controls include a prohibition against those under eighteen entering mosques or receiving religious instruction at home; political vetting and mandatory patriotic education for all imams; restrictions on public calls to prayer; and instructions aimed at making Koranic interpretation consistent with Communist ideology. (Downloaded on 5 August 2005 from: http://hrw.org/english/docs/2005/01/13/china9809.htm
59. On 5 February 1997, it is reported that dozens of people were killed or seriously
injured when Chinese security forces broke up a peaceful demonstration in that city. The following is an extract from an assessment by the International Secretariat of Amnesty International, 4 February 2005: “China: Remembering the victims of police brutality in Gulja, Xinjiang on 5 – 6 February 1997 (CX113631):
Eight years ago on 5 February 1997, dozens of people were killed or seriously injured when the Chinese security forces brutally broke up a peaceful demonstration in the city of Gulja (Yining) in the Xinjiang Uighur Autonomous Region (XUAR) of China. Hundreds, possibly thousands, more lost their lives or were seriously injured in the unrest that occurred the following day. Large numbers of people were arrested during the demonstration and its aftermath. Many detainees were beaten or otherwise tortured and at least two have since died in custody. An unknown number of people remain in prison in connection with these events. To date, there has been no investigation into the actions of the security forces and no one has been brought to justice for these abuses. The Chinese authorities’ failure to address the impunity surrounding this incident facilitates the repetition of similar abuses in future and raises serious questions about China’s commitment to "respect and protect human rights" as incorporated into the Constitution last year. The victims of this crackdown were members of China’s mainly Muslim Uighur community living in the XUAR. Over the last eight years, Amnesty International has obtained numerous eye-witness testimonies of the demonstration and its aftermath, building a picture which conflicts with official interpretations of the incident. According to local sources, the demonstration was sparked by growing levels of repression of Uighur culture and religion in and around Gulja. This included the banning of traditional Uighur social gatherings, called meshreps, which were organised from 1994 in an attempt to revive cultural and Islamic traditions and to counter social ills such as drinking, smoking and drug-taking. Uighur community leaders in and around Gulja also organised local Uighur football teams in an unofficial league, but these were also closed down by the authorities and sports facilities were destroyed. Large numbers of Uighurs were arrested on suspicion of being so-called "separatists, terrorists or religious extremists", particularly during a "Strike Hard" campaign against crime in 1996, including alleged meshrep leaders as well as religious students and imams. The report goes on to describe the further demonstration that occurred on the afternoon of the 5th February, the confrontations that occurred the following day, and the treatment of those detained by the authorities. It is reported that the authorities described the incident as an act of “terrorism” attributed to the East Turkistan Islamic Party of Allah. 60. There is evidence that returnees are likely to be subject to harm. See the following documents emanating from Amnesty International: “China: Protect Uigher Refugees from Forcible Return”, 20 September 2004 (CX104180), “China: fleeing uighurs forced back to ‘anti-terror’ torture and execution”, 7 July 2004 (CX99187); United
Nations (IRIN-Asia) document “Uighurs deported to China face persecution”, 8 July 2004 (CX98294); Amnesty International “People’s Republic of China – China wages its ‘war on terror’” AI Index ASI 17/021/2004, esp. p. 17ff; Human Rights Watch asserts (CX119578 above, at page 5) that:
No country should cooperate in the return to China of Uighurs, including those accused of terrorist acts or other crimes, so long as they are likely to be at risk of being tortured upon return.
61. The Tribunal has also considered the paper “Islamic Unrest in the Xinjiang Uighur Autonomous Region”, Canadian Security Intelligence Service, Commentary No. 73, Spring 1998, (CX69453), accessed at: http://www.csisscrs.gc.ca/eng/comment/com73_e.html
62. An article by Hamish McDonald, “China tightens the screws as it battles to convince terror sceptics”, The Age 12 November 2005 addresses reports of activities by the PRC authorities aimed at the suppression of dissent or “separatism” by Uighers in Xinjiang. In part, that article states:
What has happened since 1997, say human rights monitors, has been a tightening of controls on the Uighers, with the September 11, 2001, attacks by al-Qaeda in the United States providing Beijing with an opening to put a terrorist label on even the most peaceful types of Uighur dissent and separatist epression.
Nicolas Becquelin, Hong Kong-based research director for the respected Human rights in China group, said that soon after 9/11, Beijing abruptly switched from playing down the extent of Uigher unrest to exaggerating it.
“The Government has now made pretty explicit what was previously covert: that the separate identity and culture of indigenous people, particularly uighurs, is the basis, they fear, of ethno-national aspirations”, Dr Becquelin said. “What is targeted through Islam is really the basis tenets of Uighur identity”.
The repression of Islam is pervasive, with anyone in state or Communist Party employment or studying at colleges banned from overt displays of religious identity, such as beards, head scarves, fasting during Ramadan, or prayer during working hours. Possession of Islamic texts not printed by Government approved presses is grounds for arrest and detention.
Religious instruction of children has disappeared. Even parents are scared to teach
their own children. “As young as six or seven, they have drills at school where they have to give responses to ideological questions and tell teachers if members of family are practising Islam”, Dr Becquelin said.
Police and militias recruited from Han military settlements sweep Uighur suburbs and villages, picking up people with identity card discrepancies and taking them off for questioning. The province’s “re-education-through-labour” camps are full beyond capacity, prison officials recently complained. Regular prisons have and extraordinarily high proportion of their Uighur convicts, about one in 11, serving time for crimes against state security.
About 200 Uighurs have been executed since 1997 for political crimes.
63. As to the suggestion made by the applicant that there are “spies” or informers in Australia who report the activities of persons associated with the Eastern Turkistan Association in Australia, the following recent report is notable:
CHINA: Defections reveal extent of China's espionage operations John Hill Key Points Recent defections suggest that China operates substantial intelligence networks in the West, but there is limited evidence regarding the scale of such activities. This fits with China's approach to intelligence gathering: a large-scale trawling for information rather than bespoke missions. Insecurity about an emergent China tends to lead to exaggerations about the intelligence threat. New intelligence has raised concerns in some states that the People's Republic's international spying network may be larger and more penetrative than previously believed. John Hill reports. "China is the biggest [espionage] threat to the US today," David Szady, the US Federal Bureau of Investigation's (FBI) head of counterintelligence, told The Wall Street Journal on 10 August. It is a concern fuelled by a number of Chinese defectors in recent months who claim Beijing is engaged in large-scale intelligence-gathering operations overseas. Chen Yonglin, the first secretary of the Chinese Consulate General in Sydney, Australia, defected on 4 June. Chen told Australian authorities that Beijing had been overseeing a network of more than 1,000 spies and informers in Australia. These claims were mirrored in Canada in July when Han Guansheng, a former Public Security Bureau official in Shenyang who defected to Canada in 2001, stated publicly that Beijing manages informants in Canada's Chinese community and gathers intelligence on key economic areas. A second defector in Australia, believed to be a low-level intelligence official named Hao Fengjing, who came over to the Australians shortly after Chen, confirmed that China has more spies in Canada than in any other country. The Canadian Security and Intelligence Service (CSIS) will not comment on individual nations' intelligence activities, but CSIS officials told JIR: "Foreign countries who send students and visiting scientists often use them to obtain proprietary or classified information in Canada." Europe is also said to be subject to China's scrutiny. The UK's Daily Telegraph reported in July that a Chinese intelligence defector in Belgium who had worked in European universities and companies for more than a decade, has given the Belgian security service (Sûreté de l'Etat) detailed information on hundreds of Chinese spies working at various levels of European industry. A British intelligence source told JIR that the two countries with the biggest intelligence operations in the UK were Russia and China. Whether this anecdotal evidence represents an increase in Chinese intelligence activity or just business as usual is a moot point. June Teufel Dreyer, a member of the US Congress's US-China Economic and Security Review Commission, told JIR: "My guess is that the Chinese do not spy any more now than they did, say, 20 years ago. But they are getting better at it. Unfortunately, we are not getting better at counterspy activities." Trawling for information The Chinese are credited with running what may be the largest human intelligence (HUMINT) operation in the world. They use very limited numbers of professional intelligence officers, depending instead on huge numbers of students, business people, journalists, diplomatic staff, academics and visiting scientists. Chinese intelligence has access to large numbers of loyal citizens living, working and studying abroad. At least some will have been recruited beforehand, if only informally, or debriefed during or after their stay in the West. Larry Wortzel, also a member of the US-China Economic and Security Review Commission, said: "The main feature of Chinese intelligence that the Australia case shows is just how many people [China] can devote to a collection task. "Because of the nature of the state in China, intelligence organisations can put pressure on almost any citizen to gather information when overseas, or to inform on fellow citizens at home. The Chinese services cast a wide net, gathering large amounts of information and hoping it will be sorted out at home." Given this HUMINT network, unsurprisingly the Chinese approach is typically aimed at trawling in a relatively untargeted way for masses of data, or "a thousand grains of sand" in the expectation that when analysed, such information will eventually add up to something useful. Gentle patriotic pressure is put on Chinese nationals to assist in this task, and many are willing to contribute to their nation's continued economic and
technological advances in this way. There is also, of course, the potential for coercive pressure to be applied by targeting family members who remain in China. Western nationals, such as journalists and academics, may also be flattered into being 'recruited' as friends of China to help manage the perception of China overseas. The liaison department of the Chinese Communist Party runs operations to shape foreign opinion on Taiwan. The Liaison Department of the General Political Department of the People's Liberation Army (PLA) has the same targets. Wortzel said: "Both also work to identify networks of foreigners sympathetic to China and to communism". Chinese students abroad David Szady said in an interview published on the FBI website that foreign governments use "students, visiting delegations, scientists and false front companies to get at our secrets". He added: "And the threat is just as great in places such as Alabama, Kentucky, Maine and Iowa as it is in New York or Washington, because the classified projects, the universities and the corporations being targeted exist throughout the US." The question of Chinese students acquiring technical information that they would not otherwise have had access to is a problematic one. There is a difference between espionage and education, and while the skills that China's best students acquire at top Western scientific or engineering departments may further China's technical development, that is overtly part of the reason they are there. Among the tens of thousands of students in the US at any one time, actual cases of espionage are few, and successful prosecutions even fewer. Most cases to date have involved employees and scientists rather than students. Dreyer said: "The issue of Chinese students or visiting research fellows is quite contentious within the academic community. Scientists are fond of repeating that science knows no national boundaries; therefore they do not like the idea of restricting the information available to students or fellows, or of monitoring their research activities." She added: "Universities resist efforts by the US government to scrutinise foreign student visa applications. This means that students or research fellows can easily obtain information they want to send back to their home countries." Denise Brehm, an official at the Massachusetts Institute of Technology (MIT), told JIR that as an institution recognised as being in the technological vanguard: "MIT does not treat Chinese students any differently from any other students. Students at MIT do not need security clearance to perform thesis research, and their work is not carried out in areas needing access to classified materials." Intelligence structures China's main overseas intelligence operations are located mainly within the Ministry of State Security and the PLA. Chinese institutions, such as government technical bodies, may also run their own clandestine intelligence operations. For example, according to Larry Wortzel, the Commission of Science, Technology and Industry for National Defense (COSTIND) "ran a number of technical collection operations for China".
The PLA mainly operates overseas through a military intelligence section known as the Second Department of the General Staff Department, which runs its HUMINT operations, and it also has a signals intelligence collection department called the Third Department of the General Staff Department. The Ministry of State Security runs a network of domestic and overseas bureaux aimed at foreign intelligence-gathering, as well as perception management operations and counterintelligence. The organisation is divided into 14 bureaux, with the second bureau responsible for sending agents abroad, often under journalistic cover, although also posing as business people and diplomats. An article in The Washington Times concerning China's theft of US technology claimed that the Chinese embassy in Washington has expanded a special section, including 26 political officers, to run influence operations, primarily targeting Congress. A Chinese diplomatic source told JIR that this is a misrepresentation of the department, that the number is wrong, and that the department, which quite openly operates as the Governmental Affairs and Congressional Liaison Office, simply runs the usual day-to-day business between the US government and Beijing's representative staff in Washington. Lacking evidence There is a good deal of suspicion surrounding the large numbers of Chinese citizens studying and working overseas, who may be going about their legitimate business, but who may share information with Chinese intelligence that could be considered inimical to Western interests. However, there is still a lack of conclusive evidence regarding Chinese penetration of high-value Western targets. Given the highly politicised nature of debate concerning the China 'threat', as well as the traditional dangers inherent in relying upon the testimony of defectors and double agents, it would seem wise to treat the latest bout of Chinese spy revelations with some caution. The Cox Report Much of the open-source information available about China's intelligence operations derives from the 1999 Cox Report, a Congressional investigation into Chinese attempts to obtain classified information relating to US nuclear warhead design from various US national laboratories. The report claimed: "In 1995 the US received a classified [Chinese] document that demonstrated that [China] had obtained US design information on the W-88 warhead and technical information concerning approximately half a dozen other US thermonuclear warheads and associated re-entry vehicles." The report concluded that "with the stolen US technology, [China] has leaped, in a handful of years, from 1950s-era strategic nuclear capabilities to the more modern thermonuclear weapons designs." Critics of the Cox Report claimed the findings had been compromised by the bipartisan climate at the time, with Republican hardliners seeking to discredit the Clinton administration and to draw attention to their view of the burgeoning 'China threat'. Joseph Cirincione, director of the Carnegie Non-Proliferation Project, who served for nine years on the professional staff of the House Armed Services
Committee and Government Operations Committee, described the Cox report as having "taken a real problem and hyper-inflated it for political purposes". The report itself admitted that the US Central Intelligence Agency (CIA) had determined that the source of the information concerning the theft of warhead technology was himself under the direction of Chinese intelligence. (Jane’s Intelligence Review, 7 October 2005, CX137773, at: http://www4.janes.com/subscribe/jir/doc_vie w.jsp?K2DocKey=/content1/janesdata/mags/ jir/history/jir2005/jir01350.htm@current &Prod_Name=JIR&QueryText)
FINDINGS AND REASONS
64. I would identify the applicant’s claims as follows:
(1) He has been persecuted in the PRC by reason of his Uigher ethnicity and Muslim religion in that he was not permitted to practice his religion at university whether by praying, fasting during Ramadan or attending at the mosque. Despite these prohibitions, and knowing the penalty for disobedience, he prayed, fasted and frequently attended the mosque. In his early years at university he was detected attending the mosque and expelled for that reason and at the time of his expulsion the university authorities asserted that they also knew he had fasted during Ramadan.
(2) After being expelled from university, because of his Uigher ethnicity, the applicant found great difficulty in obtaining employment. Certain types of jobs are not open to Uighers and preference in all cases is given to Han Chinese. He was able to obtain work only after payment of a bribe – work as a ‘trainee’ in a chosen occupation which was remunerated at a substantially lower rate than applied to other workers and at a rate less than that at which he could comfortably support himself.
(3) The applicant’s employment was with a government agency. That being so, he was not permitted to practice his religion. Though he did so, secretly, had he been detected he would have been dismissed.
(4) Members of the applicant’s family are or have been persons of interest to the PRC authorities.
• An un-named relative of his father from City L had been imprisoned some time ago for some years for political crimes.
• His father’s relative, Ms J, had provided assistance to persons injured in a demonstration in City D in the 1990s. For this reason she was sought by the authorities and sought refuge with the applicant’s family until the secret police visited and questioned the applicant’s father. She then fled to Country K.
• His father visited the applicant’s relative in Australia several years ago. When he returned to the PRC he was questioned about his activities in Australia and about Uighers in Australia who were persons of interest to the PRC authorities.
• After he obtained a visa to visit Australia, he was interviewed by PRC officials who offered him an opportunity to provide information about Uighers and Uigher organizations in Australia in return for payment. Immediately prior to his departure for Australia, the applicant was interviewed at the airport and his belongings searched by officials.
• Following his departure from the PRC, officials visited his home and removed copies of identity and travel documents belonging to the applicant.
(5) Whilst in Australia he has been active in the Eastern Turkistan Australian Association, has attended Mashraps and taken part in national day celebrations. He has actively practised his religion and frequently attended at the mosque. This conduct is likely to have been reported to the PRC authorities. If he returned to the PRC the least punishment he will suffer by reason of his expression of political opinion and religious activity is imprisonment.
(6) There is a history of political, economic and religious repression of Uighers in the applicant’s region which I apprehend that the applicant advances as a separate claim but also for the purpose of giving context to the specific and personal claims made by the applicant.
65. The applicant’s evidence with respect to several of these matters was vague. In particular I refer to the applicant’s evidence about his relative who was imprisoned for some years and about his father’s relative, Ms J. Whilst I do accept that the applicant’s relative was imprisoned for some years, I am not satisfied on the evidence before me that it was for any ‘political’ crime or because of any political activity. I do accept that Ms J was sought by officials referred to by the applicant as ‘secret
police’ and that she later moved to Country K, and I do accept that she claimed to have assisted persons who were injured in City D in the 1990s. I am not satisfied that she engaged in any other ‘political’ activity that might have brought her to the adverse notice of the PRC authorities.
66. In making these findings, I do not intend any criticism of the applicant. He was a child when his distant relative was imprisoned and an adolescent at the time of the City D demonstration. I do not accept that the activities of either this un-named relative from City L or of Ms J in the 1990s would be visited upon the applicant now, both because of the remoteness in time of their activities (to the extent that there is evidence of them) and the distant familial connection between those persons and the applicant. Although I accept that Ms J stayed for a time with the applicant’s family, that was some years ago. Further, there was only one visit to the applicant’s home by the persons described by the applicant as ‘secret police’ and there is no evidence of any allegation – such as harbouring a person of interest – made against the applicant’s family by reason of Ms J’s residence there.
67. I accept the applicant’s evidence that he is a practising Muslim and that he maintained that practice throughout his schooling and at university. I accept that, whilst at university, the applicant prayed regularly, initially in his dormitory, but later at a mosque, that he fasted during Ramadan and attended Friday prayers at the mosque. I accept that the university authorities did not permit students to practise Islam and that a student who was found to have practised that faith was liable to be expelled. I accept that the applicant passed his early studies when his practice of attending at a mosque was discovered. I accept he was expelled from university and that the university authorities had suspicions that he had engaged in other religious observances, in particular that he had fasted during Ramadan.
68. I accept that, following his departure from university, the applicant planned to leave the PRC and undertook the study of English for that purpose. I accept that it was then his intention to travel to Australia, as it also was his father’s intention, and that several years ago both had obtained PRC passports. I accept that, on the advice of an Australian immigration practitioner, it was decided that, initially, only the applicant’s father should visit Australia and that he did so for several months.
69. The applicant then worked in the capacity of a trainee in his chosen occupation. Although at the hearing he suggested that his employment with the company was “work experience”, the duration and nature of his employment is not suggestive of “work experience”. It is more likely, having regard to the length of the applicant’s
employment and the duration of the shifts that he worked, that the applicant had been engaged as a trainee than as a person on “work experience”, and I find that he was engaged as a trainee. I accept that he was able to secure this employment following the payment of bribes and that it was otherwise difficult for him, as a Uigher, to obtain employment. I accept that the rate of pay allowed to the applicant was, as he claimed, and was significantly less than that of employees who were not trainees and rather less than the amount which was required to permit him to live comfortably in City A.
70. I accept that during his employment as a trainee the applicant worked the shifts that he claims and that he attended to the practice of his religion. I accept that, in practising his faith, the applicant ran the risk of dismissal from his employment, that employment being with a government agency. The applicant’s religious practice was not, however, detected and he ceased his employment with the bus service voluntarily in order to come to Australia. When he did so, as he clearly expressed in his evidence, he had no intention of returning to the PRC.
71. I accept that the applicant was interviewed by certain PRC officials before his departure for Australia. Initially, at some time following the grant of his Australian visa, when he was offered financial inducements to report upon the activities of Uighers in Australia, and then immediately prior to his departure from the airport when he was questioned about the fact that he held a one-way ticket and had his luggage searched.
72. With respect to the applicant’s evidence about his activities in Australia, I accept that he joined the Eastern Turkistan Australian Association, engaged in East Turkistan national day celebrations, participated in Mashraps and regularly attended at the mosque. I am satisfied that the applicant was not organisationally involved in the Association and that the level of his participation in its activities was that of an ordinary member. I accept that the applicant joined the association and participated in activities with other Uighers because he sought contact with persons with the same cultural, social and religious experiences as himself, and because he had opinions to the effect that Uighers in his region were oppressed by the PRC authorities. I accept that he believed that these activities would become known the PRC authorities, but in considering the effect of s.91R(3) of the Migration Act 1958 I am satisfied that the applicant did not engage in the conduct described for the purposes of strengthening his claim to be a refugee.
73. The issue that the Tribunal must address is whether or not there is a real chance that,
should the applicant return to the PRC in the reasonably foreseeable future he will suffer serious harm amounting to persecution by reason of his religion, nationality (which I take to include his Uigher ethnicity) or political opinion.
74. The applicant has provided evidence of opinion about what might occur to him should he return to the PRC, this evidence being contained in letters from Mr G, Mr F and Mr E. They all state that the applicant will face persecution, should he return to the PRC, because of his activities in Australia. I have noted elsewhere in this Decision Statement the observations of Mr H quoted by the applicant’s Migration Agent in her submission. There is also the document in the form of an unexecuted statutory declaration of Mr E.
75. The observations and opinions of Mr H, extracted and referred to in the submissions of the applicant’s Migration Agent, were clearly given in the context of a different application to the Tribunal, an application dependent upon its own facts. For that reason the Tribunal is unwilling to act upon the observations and opinions expressed. The documentary evidence, noted above, and submitted to the Tribunal in respect of the present application, is evidence of persons who have an association with the applicant and, in view of the positions they hold, may be thought to have an opinion antipathetic to the government of the PRC. Those statements express conclusions without a background of supporting facts or argument and, for that reason, and because of my finding as to the applicant’s participation in their organizations, noted below, this evidence is not persuasive.
76. In his unexecuted statutory declaration, Mr E recounts at length experiences that he says occurred to him and to others whilst visiting the applicant’s region. There is material in that document that describes the imposition of privations upon Mr E of the utmost seriousness. I will assume for present purposes that the events that are described by Mr E indeed occurred. However, the reason or reasons for the alleged conduct of the PRC authorities is essentially unexplained in the document, and Mr E does not distinctly assert any facts or circumstances that prompted the conduct by the authorities. For that reason, Mr E’s evidence, contained in the document, does not assist the Tribunal to conclude that similar conduct awaits the applicant should he return to the PRC, in light of what I have found to be the low level of the applicant’s involvement in Australia with the associations or bodies referred to by the authors of the letters and by the applicant in his evidence. Whilst the Tribunal does accept that there is a real chance that the applicant would be interviewed should he return to the PRC, the Tribunal is not able to conclude from the documentary materials just discussed, and from the country information, that by reason of his participation in the
activities of the East Turkistan Association, the Mashrap or his attendance at the local mosque he would be subjected to interrogation such as would constitute persecution for a Convention reason.
77. I also do not accept that, if he returned to the PRC, the applicant will be marked for special attention by reason of what I have found to be his remote family connection with dissident political activity. I accept that the applicant’s father was interviewed when he returned from his visit to Australia about the activities of Uighers in Australia. I accept that the applicant is likely to be interviewed to the same effect, particularly because an attempt was made to recruit him before he departed Australia. I do accept that some unidentified officials obtained copy documents relating to the applicant from the applicant’s home following his departure from the PRC. However I do not accept that an interview for this purpose constitutes or may constitute persecution. On the evidence before the Tribunal, I am not satisfied that the manner in which such interviews are conducted should reasonably be regarded as involving serious harm amounting to persecution for a Convention reason.
78. The applicant asserts that younger Uighers who return to the PRC from abroad are treated more harshly at interview that others. I have considered whether this assertion raises a claim that there exists is a particular social group which may be defined broadly as “younger Uighers returning to the PRC from overseas” or, more narrowly, as “younger Uighers returning to the PRC after having been involved with overseas Uigher groups”. There are obvious difficulties with the description – what, for instance, is a “younger” Uigher? What is encompassed by “harsher” treatment? What are the appropriate comparators with respect to each characteristic?
79. The only evidence of the existence of such a group, however defined, is the assertion of the applicant. Based on the country information before me, and in especially the information set out at paragraphs 52 and 55, I cannot be satisfied that there is or are any cultural, social, religious or legal norms within the PRC generally, or the applicant’s region in particular, that supports an inference that there exists such a particular social group. The Tribunal has considered the relevant principles explained in the authorities, in particular in Applicant A & Anor v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 and in Applicant S v. Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387. I do not accept that such a group is capable of being distinguished “from the society at large” (per Gleeson CJ, Gummow and Kirby JJ in Applicant S at [36] or as having a “social presence in a country set apart from other members of that society” (per McHugh, J. at [69]. (See also per McHugh, J. in Applicant A at pp.264-265.)
80. The Tribunal is not satisfied that there is any such identifiable group within the PRC. However if that conclusion were wrong, I am nevertheless not satisfied that there is a real chance that the applicant would be persecuted by reason of his membership of the postulated social group. The evidence does not satisfy me that, should the applicant return to the PRC, any interview to which he may be exposed by reason of his membership of such a particular social group would constitute serious harm amounting to persecution.
81. I have found that the applicant’s activities in Australia with the Association or with other Uigher organisations have been at a low level. I do accept, as the applicant’s own evidence of an interview in which an attempt was made to recruit him to inform on persons in Australia shows, and as is strongly suggested in the country information noted above, that the activities of Uighers in Australia are reported to the PRC. However, I do not accept that the limited range of activity – cultural, political and religious – in which the applicant engaged would be sufficient to attract the adverse interest of the PRC authorities leading to a real chance that he would be persecuted by reason of his activities in Australia.
82. The applicant relies upon the suppression by the PRC authorities of his religion in the context of his claims about the general oppression of Uighers in his home region. The country information set out above substantiates the applicant’s general claims insofar as it demonstrates that the open practice of Islam is not permitted amongst students in educational institutions and amongst persons employed within government agencies. However, the country information also shows that there are mosques and Imams sponsored or approved by the PRC authorities and that there are other mosques and Imams who are not. The latter continue to function without apparent interference by the authorities. I accept that the applicant desires to practice his religion openly and to attend mosques that are not sponsored or approved by the authorities. I am not satisfied on the evidence before me that the applicant is impeded in this activity as such and do not accept that he is unable to practice his religion openly.
83. However, I do accept that the open practice by the applicant of his religion may impose disabilities upon him. One such disability is access to educational institutions, as his expulsion from university demonstrates. Further, the open practice of Islam will most likely prevent him obtaining or retaining employment in a government agency. The applicant says, and I accept, that Uighers have a general difficulty in obtaining employment. That, I apprehend, is because of their ethnicity, rather than their religion, although I accept that adherence to Islam is one of the concomitants of Uigher ethnicity. The applicant is no longer a student, and expressed
no desire at the hearing to return to study. I accept that his Uigher ethnicity and his Muslim religion will inevitably limit the range of employment that may be available to the applicant should he return to the PRC. Having had regard to subsection 91R(2) of the Migration Act 1958 I am not satisfied that, should the applicant return to the PRC, his capacity to subsist would be threatened because of the difficulties he would face in obtaining employment by reason of his religion or ethnicity.
84. I have also considered, cumulatively, the harm (if any) to which the applicant may be exposed by reason of his activities in Australia, the constraints imposed upon his ability to practice his religion, and his limited opportunity for work because of his Uigher ethnicity and Muslim religion. Having done so, I am not satisfied that together they presage a risk of serious harm to the applicant should he return to the PRC.
85. In the circumstances, I am not satisfied that, should the applicant return to the PRC now or in the reasonably foreseeable future there is a real chance that he will suffer serious harm amounting to persecution by reason of his religion, nationality or political opinion.
CONCLUSION
86. Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa..
DECISION
The Tribunal affirms the decision not to grant a protection visa.
Peter Harris
Member constituting the Tribunal
12 May 2006