Case: Zheng v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 670
Outcome: cited
It has been held in several cases that the exposure of corruption can lead to the imputation of a political opinion: C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430 ; (1999) 94 FCR 366; Klinko v Canada (2000) 184 DLR (4 th ) 14; Guzman v Minister of Citizenship &amp; Immigration (1999) 93 ACWS (3d) 733; Berrueta v Minister for Citizenship &amp; Immigration (1996) 109 FTR 159; Grava v Immigration &amp; Naturalization Service 205 F 3d 1177 (2000). In Zheng v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 670 , Merkel J reviewed these authorities and said (at [33] [34]): "It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than any form of opposition to, or defiance of, state authority or governance. A critical issue will always be whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution...In each case the question of whether the nexus has been established is a question of fact for the RRT." 11 The Tribunal, in deciding that no perception of the appellant having a political opinion within the meaning of the Convention would have arisen as a result of his actions, was making a finding of fact. The Tribunal made clear that it considered whether the appellant's activities would have given rise to such an imputation and concluded that they would not. This conclusion was open to the Tribunal and there is no reason to disturb it. The fact that the activities were undertaken as part of the appellant's employment was clearly an important factor in the Tribunal's reasoning but there is no indication, nor any reason to infer, that the Tribunal considered that this precluded an imputation of political opinion. The use of the words "in this instance" in the final sentence of the passage quoted above confirms this view. 12 For these reasons, the appeal on the ground of "imputed political opinion" fails. 20 The distinction between fears based on membership of a particular social group and fears based on revenge for individual actions is conceptually simple but difficult in practice. Many social groups are defined by the actions of their members: whistleblowers ( Zheng v Minister for Immigration &amp; Multicultural Affairs [2000] FCA 670) , informers ( Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 111 ALR 417), trade unionists, Muslim women who do not wear traditional dress, parents in China ( Chan v Canada [1995] 3 SCR 593; Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225). If a person from such a group fears persecution, it may be difficult to say whether the essential and significant reason for that fear is their membership of the collective or the individual action which causes them to be identified as a member of the collective. The distinction, according to Dawson J in Applicant A (at 243), "may sometimes be an unreal one."