Liu v MIMA

Case [2001] FCA 257

FEDERAL COURT OF AUSTRALIA

Liu v Minister for Immigration & Multicultural Affairs [2001] FCA 257

MIGRATION - Application for review of decision by Refugee Review Tribunal affirming decision not to grant protection visa - whether the decision was based upon a fact which did not exist - freedom of religion - consideration of exercising and manifesting religious beliefs and whether that leads to persecution.

Migration Act 1958 (Cth) s 476(4)(b)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 Cons
Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 Appl
Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599 Foll
Lek v Minister for Immigration, Local Government and Ethnic Affairs (No 2) (1993) 45 FCR 418 Appl
Mohammed v Minister for Immigration & Multicultural Affairs [1999] FCA 868 Appl
Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405 Appl
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513 Appl

JIAN GUO LIU v MINISTER FOR IMMIGRATION AND MULTICULTURAL
AFFAIRS
Q299 OF 1999

COOPER J
BRISBANE
16 MARCH 2001


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q299 OF 1999

BETWEEN:

JIAN GUO LIU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

COOPER J

DATE OF ORDER:

16 MARCH 2001

WHERE MADE:

BRISBANE

THE COURT ORDERS THAT:

1.The decision of the Refugee Review Tribunal given on 19 November 1999 affirming the decision not to grant to the applicant a protection visa be set aside.

2.The matter be remitted for determination by a differently constituted tribunal according to law.

3.The respondent pay the applicant’s costs of and incidental to the proceedings to be taxed, if not agreed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q299 OF 1999

BETWEEN:

JIAN GUO LIU
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

COOPER J

DATE:

16 MARCH 2001

PLACE:

BRISBANE

REASONS FOR JUDGMENT

BACKGROUND

  1. The applicant is a citizen of the Peoples Republic of China (“the PRC”).  He entered Australia on 8 December 1995 as a member of a Chinese acrobatic troupe.  He left the troupe in February 1996, shortly before its return to China.  He was detained by the Department of Immigration and Multicultural Affairs (“the Department”) in September 1998.  On 4 September 1998, while in detention, he made application for a protection visa.

  2. The applicant’s application was refused by the delegate of the Minister for Immigration and Multicultural Affairs on 18 December 1998.  On 19 January 1999 the applicant applied for review of the decision to refuse him a protection visa.  On 19 November 1999 the Refugee Review Tribunal (“the RRT”) affirmed the decision not to grant a protection visa.

  3. The applicant seeks judicial review of the decision of the RRT pursuant to s 481 of the Migration Act 1958 (Cth) (“the Act”).

    THE DECISION OF THE RRT

  4. The applicant claimed before the RRT…

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AGLC
Liu v MIMA [2001] FCA 257
Case
[2001] FCA 257
Decision Date

CaseChat Overview and Summary

In the case of Liu v MIMA, the applicant sought judicial review of the decision of the Refugee Review Tribunal (RRT) under the Migration Act 1958 (Cth). The applicant claimed to be a refugee under the Refugees Convention and Refugees Protocol, asserting that he had a well-founded fear of persecution in the People's Republic of China (PRC) due to his religion and membership in a particular social group. Specifically, he argued that his Christian faith and imputed political opinion as a former government employee would result in persecution if he returned to the PRC.

The primary legal issue before the court was whether the RRT erred in its assessment of the applicant's credibility regarding his religious beliefs and activities both before and after his detention in Australia. The court needed to determine if the RRT properly considered the applicant's claims about his Christian practices and whether it was reasonable to conclude that his interest in Christianity was developed after his detention in Australia. Additionally, the court had to evaluate the RRT's findings on the applicant's imputed political opinion based on his former employment status and subsequent defection from the acrobatic troupe.

The court found that the RRT did not adequately consider the applicant's claims about his Christian activities prior to his detention. The RRT's conclusion that the applicant was not a Christian before being detained lacked sufficient reasoning and evidentiary support. The applicant's claims about praying at home and limited church attendance were not thoroughly examined or dismissed without adequate justification. The court held that the RRT failed to properly address the applicant's evidence and witness testimonies, which suggested that he had been involved in Christian practices before his detention. Consequently, the RRT's decision was set aside, and the matter was remitted to a differently constituted tribunal for re-determination. Additionally, the respondent was ordered to pay the applicant's costs of the proceedings.

Orders

Orders of the court

1. The decision of the Refugee Review Tribunal given on 19 November 1999 affirming the decision not to grant to the applicant a protection visa be set aside.

2. The matter be remitted for determination by a differently constituted tribunal according to law.

3. The respondent pay the applicant’s costs of and incidental to the proceedings to be taxed, if not agreed.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

COOPER J
The applicant seeks judicial review of the decision of the RRT pursuant to s 481 of the Migration Act 1958 (Cth) (“the Act”).THE DECISION OF THE RRT The applicant claimed before the RRT that he was a person to whom Australia has protection obligations under the Refugees Convention and Refugees Protocol as defined in s 5 of the Act. He claimed that owing to a well-founded fear of being persecuted for reasons of religion and membership of a particular social group, he was unable or unwilling, owing to such fear, to avail himself of the protection of the PRC. He claimed that because of his Christian religion he would be persecuted if he returned to the PRC. He also claimed that as a government employee or celebrity when he came to Australia he was a representative of the government of the PRC, and would be imputed with a political opinion of criticism of the government of the PRC because he left the acrobatic troupe while performing overseas. The RRT did not accept that the applicant was ever a Christian before being taken into custody by officers of the Department. The Tribunal member said :“I do not accept that the applicant was ever a Christian before he was taken into custody by Immigration officers. His claims about his Christianity in China were vague and unconvincing. He said he had never done anything apart from praying at home, and he had done nothing in public. He did not go to any registered church, and his activities were confined to praying with his grandmother. Further, had he indeed been a Christian in China, I consider he would have done what he said he wanted to do - ie practice his religion openly - from the time he made a decision to stay in Australia, which was from February 1996. His written statements and witnesses indicate he did not start practising Christianity in Australia until October 1998, after his detention. It was only when I put the matter directly to him that he claimed he had visited some churches in Australia before this time, when he said he made occasional visits to churches but was constrained by lack of English language. I do not accept that explanation, given that once he was released from detention he was quickly able to find a Chinese speaking church and to attend there regularly. Nor do I accept the explanation that he wished to avoid the Chinese community in Australia, given that he also admitted at hearing that he had worked in this community before he was detained. For these reasons I do not accept that the applicant was a Christian or interested in Christianity before he was detained in Australia.” However, the RRT was satisfied that the applicant had become a member of the Pentecostal Church since he was released from detention in about September/October 1998 and since that time he has studied Christianity and been involved in various Christian activities. The RRT also accepted the evidence of a number of witnesses before it that there has been harassment of Christians in the PRC. The RRT found in respect of the applicant’s interest and participation in Christianity, as follows :“... I find, in the light of all of the evidence, that the applicant’s interest and participation in Christianity has been excited by his detention in Australia and the subsequent threat of deportation to China. This is further confirmed by my finding that the applicant was not a Christian as claimed, prior to leaving the PRC, or practicing any religion in Australia prior to being detained in Australia in September/October 1998.”

Ratio Decidendi

Legal Principle Established

Established by: COOPER J

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