MZWQU v Minister for Immigration and Multicultural

[2006] FCA 194

FEDERAL COURT OF AUSTRALIA

MZWQU v Minister for Immigration and Multicultural
and Indigenous Affairs [2006] FCA 194

MZWQU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

VID 1013 OF 2006

NORTH J
13 FEBRUARY 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1013 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWQU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

NORTH J

DATE OF ORDER:

13 FEBRUARY 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

(1)       The appeal is dismissed;

(2)       The appellant pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 1013 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZWQU
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	NORTH J
DATE:	13 FEBRUARY 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate McInnis delivered 19 July 2005. McInnis FM dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 10 August 2004. The Tribunal affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the first respondent, not to grant the appellant a protection visa. The appeal is heard by a single judge, pursuant to a direction given by the Chief Justice, under s 25(1) (a) of the Federal Court of Australia Act 1976 (Cth), on 10 February 2006.

2. The decision of the Tribunal sets out the detailed facts so they need not be repeated at length.  The essential facts necessary to understand the appeal are as follows. The appellant is a Chinese national who claimed a fear of persecution on two grounds, first, by reason of his father’s political background, which involved criticism of the Chinese Government and, second, his belief in Falun Gong which began in 2001, when he was already in Australia.

3. The appellant came to Australia as a student in October 2000, and returned to China on visits in December 2000 and June 2001.  On 11 July 2002 the appellant’s student visa was cancelled and he unsuccessfully appealed to the Migration Review Tribunal against the cancellation. The appellant then launched an appeal in the Federal Court against the unsuccessful appeal to the Migration Review Tribunal, which he later withdrew in April 2003.  In its decision, the Tribunal recorded in detail what occurred at the hearing before it.  Relevantly for the appeal, the Tribunal said at p 10-11:

   The Tribunal asked the applicant about his student visa.  He said it was cancelled by the department and he had unsuccessfully appealed to the Migration Review Tribunal, (“MRT”) and then to the Federal Court.  The Tribunal said it was aware of those applications, and had read the decision of the MRT after his hearing on 10 December 2002.  The applicant, in response to a Tribunal question, indicated he had withdrawn his appeal to the Federal Court because he wanted to follow up a protection visa, because of his Falun Gong association.

   The Tribunal observed that the MRT decision did not reveal any mention at all of Falun Gong association or fear of persecution, and noted his MRT hearing was about two weeks before the time he says he formally set up the YGFD.  It also observed the MRT decision recorded him as saying that if his student visa was not re instated, "his parents will have wasted his course fees, his career plans would be destroyed, and he would not be able to get a good job in China".  The Tribunal observed this would have been an opportunity for him to have raised any concerns about returning to PRC because of Falun Gong, if he had such fears.  In response, he indicated he did not raise his fears at that time because he was only interested in getting his student visa re instated, and if he got it he would be able to continue studies and his practice of Falun Gong.

   In the next section of its decision, the Tribunal went on to survey in detail the country information concerning Falun Gong, and the treatment of its followers, and a number of other issues.

4. The Tribunal’s findings and reasons were recorded in the final section of its decision. First, it rejected the appellant’s claim based on his father’s political involvement.  There is no contention on the appeal about this part of the reasons.  Then the Tribunal turned to the appellant’s activities in Australia, and recorded the following conclusions at p 21-22:

   This leaves the issue of the applicant’s activities in Australia.  Whilst the Tribunal does not accept the applicant’s evidence on a number of issues, there is material which shows the applicant has engaged in activities in Australia, which could have drawn him to the attention of PRC authorities present in this country.  These consist of his involvement in a group called YGFD, and activities associated with that group and Falun Dafa generally, and his activities in publicly protesting outside the PRC consulate.  Whilst the Tribunal accepts such activities may have occurred, it considers the motivation of the applicant in establishing and publicising that group and his involvement was contrived entirely for the purposes of creating an adverse profile, and for the sole purpose of strengthening his claim to need refugee status. 

   Similarly whilst the Tribunal accepts that the applicant may have an understanding of the concepts and beliefs of Falun Gong, it is not satisfied he is in fact a genuine believer or follower of that practice.       In reaching this conclusion, the Tribunal does not accept the applicant's evidence as to his own practice of Falun Gong or the reasons for the formation and involvement in a group said to be related to Falun Gong, to be credible.  Having reached this conclusion, the Tribunal is also satisfied he would not practice Falun Gong if returned to PRC now or in the reasonably foreseeable future, and that the reason he would not do so is because he is not a genuine Falun Gong believer.

   The Tribunal continued as follows:

   The material available suggests the YGFD was a creation of the applicant in about December 2002, (immediately after the MRT hearing into the cancellation of his student visa) for the specific purpose of demonstrating risk to him if he returned to PRC.  Whilst the timing of the formation of the group alone is not conclusive, the Tribunal considers the highly public manner in which the applicant seeks to promote his association with that group is consistent with a scheme to bolster his refugee claims, rather than any genuine belief in Falun Gong as a religion or ideology.  In this respect the Tribunal notes the group purports to have highly visible and detailed membership cards, which appear to serve no purpose other than to publicly identify the carrier of the card as a Falun Gong participant.  The existence of the group itself also appears to serve little purpose beyond exposing members (such as the applicant) to scrutiny by the very elements he says he fears (PRC authorities and their “spies”) as does his activity in putting his own photograph in group documents he says he distributes, which are openly critical of PRC policy on Falun Gong.

   The existence of a group such as the YGFD itself is inconsistent with the mainstream practice of Falun Gong, which is said to have no formal organisation or hierarchy and does not keep records of membership (see the Asia Week and UK Home Office reports above).  The YGFD described by the applicant appears quite formal.  It is said to have membership and identification cards, charges membership fees of $200 a year, which he manages, and which meets formally with minutes of the meetings.  Despite these formalities however the group lacks some attributes associated with a formal association or organisation.  It [is] not registered, maintains no bank accounts in its name, and has no official status.  These factors, along with the timing of its formation lead the Tribunal to the conclusion the true purpose of YGFD is to focus attention on the applicant and his claim to be linked to Falun Gong, in order to establish and strengthen his claim to be a refugee and to fear persecution if returned to PRC.

5. The Tribunal next considered the question of the appellant’s delay in seeking the protection visa and concluded that the timing and delay in making the application reflected a lack of genuine subjective fear of persecution.  In the course of this discussion, the Tribunal said at p 24:

   The Tribunal considers that had the applicant legitimately feared persecution by PRC authorities for reasons associated with Falun Gong, he would have sought protection far sooner.  It considers if he genuinely held such fear he would most certainly have sought protection at the latest, immediately after he abandoned his Federal Court appeal against the cancellation of his student visa in about April 2003.  He did not do so, nor did he raise concerns about return to PRC in his MRT hearing, the decision of which records he referred to impact on his career, job opportunity and loss of funds to his parents if he did not complete his studies.  Whilst the MRT does not deal with refugee issues, the Tribunal considers, if the applicant genuinely held fears for his safety on return to PRC at the time of his hearing, he would have referred to them at that time.  In the Tribunals view, his failure to do so indicates lack of genuine subjective fear of Convention persecution at that time.

   The Tribunal then concluded at p 25:

   The Tribunal has already found the activities engaged in by the applicant in connection with Falun Dafa generally, the creation of a group called the “Youth Group of Falun Dafa”, his publications and his protests outside the PRC Consulate in particular, were engaged in for the sole purpose of creating and strengthening his claim to be a refugee, and not because of any genuine belief in the practice of Falun Gong.  As such, whilst such activities could give rise to adverse attention from PRC authorities, and potentially expose him to consequences if returned to PRC now or in the reasonably foreseeable future, the Tribunal is, under section 91R(3) of the Act, required to disregard such conduct when determining whether he has a well founded fear of persecution.

6. The appellant filed a notice of appeal on 26 September 2005. An order was made by consent on that day, extending the time within which the appellant could file a notice of appeal. The notice of appeal asserts a ground of appeal not raised before McInnis FM. The first respondent objected to the appellant raising a new argument at this late stage of the process. However the appellant is entitled to rely on the new argument, if it is in the interests of justice that he be permitted to do so. One of the considerations in applying this test is an assessment of the likelihood that the argument would succeed if permission were granted. The appellant asserts that the Tribunal’s decision was affected by jurisdictional error, because the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) (the Act).

   Relevantly section 424A provides:

   
   
                424A  Applicant must be given certain information

   (1)Subject to subsection (3), the Tribunal must:

   a.give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

   b.ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

   c.invite the applicant to comment on it.

   (3)     This section does not apply to information:

   a.that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

   b.that the applicant gave for the purpose of the application; or

   c.that is non-disclosable information.

   The Notice of Appeal alleges non-compliance with s424A as follows

   In the Tribunal’s (that is, the Refugee Review Tribunal’s) decision, the Tribunal stated that, at the hearing before the Migration Review Tribunal, the appellant did not claim to fear persecution by the authorities if he returned to the People’s Republic of China (“adverse information”).

   The Tribunal relied on the adverse information to make adverse credibility findings in respect of the appellant’s claims and evidence.

   The adverse information was information that the Tribunal considered would be a part of the reason for its decision.

   The Tribunal failed to invite the appellant to comment on the adverse information in accordance with subsection 424A (2) of the Act.

   Section 424A (1) (a) requires that the information in question be the reason or part of the reason for affirming the decision under review. The Tribunal made a clear and reasoned finding, that the appellant engaged in the conduct in Australia in support of Falun Gong, for the sole purpose of strengthening his claim to be a refugee. Under s91R (3) of the Act the Tribunal was obliged to and did disregard that conduct in determining whether the appellant had a well-founded fear of persecution. The section states:

   (3)      For the purposes of the application of this Act and the regulations to a 
   particular person:

   
   

   a.  in determining whether the person has a well-founded fear of being  
   persecuted for one or more of the reasons mentioned in Article
   1A(2) of the Refugees Convention as amended by the Refugees
   Protocol;

   
   
   
   

   disregard any conduct engaged in by the person in Australia unless:

   b. the person satisfies the Minister that the person engaged in the
      conduct otherwise than for the purpose of strengthening the person’s
      claim to be a refugee within the meaning of the Refugees Convention
      as amended by the Refugees Protocol.

   Once that finding was made, the application, insofar as it was based on conduct in Australia was bound to fail. The Tribunal also relied on the appellant’s delay in bringing the application as a reason for finding that the appellant did not have a genuine subjective fear of persecution, this was an alternative basis for the decision. The information which was said to have been withheld related only to this alternative ground.  In other words, there was an independent basis for the Tribunal’s decision which did not involve consideration of the information which is the subject of the appeal.  It follows the sole ground of appeal relied upon could not succeed, and it is therefore inappropriate to permit the new argument to be raised on the appeal. 

7. Prior to the hearing the appellant filed two written documents, one dated 20 December 2005, and one dated 23 December 2005. In these documents, he takes issue with the fact finding of the Tribunal, and denies that he manufactured the situation just for the purposes of obtaining a visa.  He asserts that his Falun Gong beliefs were genuine.  He refers to recent newspaper reports of the dangers faced by followers of Falun Gong in China, and also refers to a number of humanitarian considerations. 

1. At the hearing of the appeal the appellant was self-represented so the Court explained that its role was limited to consideration of whether the Federal Magistrate was correct in determining that the Tribunal had not made any jurisdictional error. The appellant nonetheless sought to re-agitate a number of factual issues before the Court.  He sought to explain why he did not mention his Falun Gong beliefs before the Tribunal, and sought to also explain some of the other factual issues determined by the Tribunal.  In reply, he repeated that he thought it was dangerous for him to go back to China. Whatever the strengths of these statements might be, they are not matters which bear upon the question before the Court, namely whether the Federal Magistrate wrongly failed to detect jurisdictional error by the Tribunal. 

2. The appellant was assisted in the hearing by Mr Matthews, who came specially from Phillip Island for the purpose of the hearing.  He told me that he was previously the Mayor of Phillip Island, and that he had come to know the appellant well over the last approximately five years, and was familiar with the circumstances which the appellant faced.  He understood the limited role of the Court, and tailored what he had to say accordingly. He said that from his knowledge of the background of the case, it seems that the appellant was probably not represented at the Tribunal in an advantageous way.  It should be said that the appellant was represented by a solicitor at the Tribunal hearing.  The matters raised by Mr Matthews are not relevant to the consideration of the appeal. The appeal must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:            13 February 2006

Counsel for the Applicant:	Appeared in Person
Counsel for the Respondent:	Mr E Heerey
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 February 2006
Date of Judgment:	13 February 2006