Minister for Immigration & Multicultural Affairs v Zheng [2000] FCA 50
ADMINISTRATIVE LAW – refugee – whether Tribunal erred in finding applicant had well-founded fear of persecution – whether failure to make finding of material facts.
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v
MING XIONG ZHENG
N 607 OF 1999
HILL, WHITLAM AND CARR JJ 10 FEBRUARY 2000 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 607 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND:
MING XIONG ZHENG RESPONDENT
JUDGE:
HILL, WHITLAM AND CARR JJ
DATE OF ORDER:
10 FEBRUARY 2000
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The decision of the primary judge be set aside and in lieu thereof the decision of the Refugee Review Tribunal be affirmed.
3.The respondent pay the appellant’s costs of the appeal and at first instance.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 607 OF 1999
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT
BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS APPELLANT
AND:
MING XIONG ZHENG RESPONDENT
JUDGE:
HILL, WHITLAM AND CARR JJ
DATE:
10 FEBRUARY 2000
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HILL J:
The appellant, the Minister for Immigration and Multicultural Affairs (“the Minister”), appeals against the judgment of a judge of this Court which set aside, pursuant to an application for review, a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant the respondent, Ming Xiong Zheng, a protection visa.
The decision of the Tribunal
The case for Mr Zheng in the Tribunal was essentially that he had a well-founded fear of persecution for reasons of religion or perhaps membership of a social group.
Mr Zheng is a citizen of the Peoples Republic of China. He is a Roman Catholic and a member of the underground Catholic Church in China, devoted to his religion and its proselytisation.
Mr Zheng provided two statements which set out his claim to be entitled to be considered a refugee. That expression is defined in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (herein called “the Convention”). Article 1A(2) of the Convention defines a…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
MIMA v Zheng [2000] FCA 50
Case
[2000] FCA 50
Decision Date
CaseChat Overview and Summary
The Minister for Immigration and Multicultural Affairs appeals against the decision of a judge of this Court which set aside a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant the respondent, Ming Xiong Zheng, a protection visa. Mr Zheng, a citizen of the Peoples Republic of China and a Roman Catholic member of the underground Catholic Church in China, claims to have a well-founded fear of persecution for reasons of religion or membership of a social group. He provided statements and evidence detailing his family's persecution due to their faith, including imprisonment and torture. Despite his efforts to spread his religion and resist government efforts to control religious practices, Mr Zheng's applications for a protection visa were denied.
The legal issues the court needed to address involved the interpretation of the definition of a refugee under the Convention and the assessment of Mr Zheng's fear of persecution. The court had to determine whether Mr Zheng's experiences and family history established a well-founded fear of persecution that met the criteria under Article 1A(2) of the Convention. Additionally, the court had to evaluate the evidence presented and the reasoning of the Refugee Review Tribunal in affirming the delegate's decision.
The court found that the Tribunal had correctly interpreted the Convention and properly assessed the evidence. The Minister's appeal was allowed, setting aside the decision of the primary judge and affirming the decision of the Refugee Review Tribunal. The court concluded that Mr Zheng's claims did not meet the criteria for a refugee under the Convention. The respondent was ordered to pay the appellant's costs of the appeal and at first instance.
Orders
Orders of the court
1. The appeal be allowed.
2. The decision of the primary judge be set aside and in lieu thereof the decision of the Refugee Review Tribunal be affirmed.
3. The respondent pay the appellant’s costs of the appeal and at first instance.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
HILL, WHITLAM AND CARR JJ
The appellant, the Minister for Immigration and Multicultural Affairs (“the Minister”), appeals against the judgment of a judge of this Court which set aside, pursuant to an application for review, a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister refusing to grant the respondent, Ming Xiong Zheng, a protection visa.The decision of the Tribunal The case for Mr Zheng in the Tribunal was essentially that he had a well-founded fear of persecution for reasons of religion or perhaps membership of a social group. Mr Zheng is a citizen of the Peoples Republic of China. He is a Roman Catholic and a member of the underground Catholic Church in China, devoted to his religion and its proselytisation. Mr Zheng provided two statements which set out his claim to be entitled to be considered a refugee. That expression is defined in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (herein called “the Convention”). Article 1A(2) of the Convention defines a refugee as a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” According to the statements and evidence given by Mr Zheng his grandfather had been a Catholic; had been imprisoned for his faith and was killed in jail. His father was also an active Catholic and during the Cultural Revolution Mr Zheng was deprived of an education and made to undertake hard labour. From around 1980 Mr Zheng’s father began an underground bible study group. The group grew until in 1984 the father attempted to hold a bible class. This led to Mr Zheng and his father being arrested. Mr Zheng’s arrest lasted only 15 days; his father remained in prison for one year. In the next two years the family kept its religious practices within the home. In 1986 Mr Zheng reorganised the church group; began to spread the gospel through the exchange of religious publications and came to the attention of the Government. In January 1987 he encouraged Catholics to resist efforts made by the Government to register them in one of the recognised churches and was sent to a labour reform camp for most of the year. After his release and at the time of the pro-democracy movement in 1989 Mr Zheng continued to spread the gospel. He spoke at a university meeting, was arrested shortly thereafter, tortured and sent to a labour farm for three years. On his release he set up the church group again in August 1994. It grew for some time and was discovered by the authorities. Mr Zheng escaped to stay with a friend in Hubei province but was again arrested. His efforts to leave the country then commenced.