MZXEL v Minister for Immigration
[2007] FMCA 13
•19 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXEL v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 13 |
| MIGRATION – Critical finding without evidence – need to set out evidence and its source for critical finding – jurisdictional error – Tribunal’s decision set aside. |
| Migration Act 1958 |
| SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402 |
| Applicant: | MZXEL |
First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1466 of 2005 |
| Judgment of: | O’Dwyer FM |
| Hearing date: | 4 April 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 19 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Riley |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the First Respondent: | Ms Latif |
| Solicitors for the First Respondent: | Australian Government Solicitor |
ORDERS
The decision of the Refugee Review Tribunal made on
27 October 2005is set aside.
The matter is remitted to the Refugee Review Tribunal for determination according to law.
The first respondent pay the applicant’s costs to be agreed between the parties and in default of agreement liberty to apply.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1466 of 2005
| MZXEL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
And
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
In an amended application filed on 21 March 2006 the applicant sought a review of the decision of the Refugee Review Tribunal (the Tribunal) made on 27 October 2005, which decision affirmed an earlier decision by the first respondent’s delegate not to grant a protection visa to the applicant.
The applicant has set out three grounds for review, they are:
i)in deciding the applicant was not a Falun Gong practitioner because he had made a particular “error”, the Tribunal made a decision for which there was no evidence;
ii)in deciding that the applicant was not a Falun Gong practitioner because had made a particular “error”, the Tribunal made a decision that was Wednesbury unreasonable; and
iii)in deciding that “therefore…neither the applicant nor his family members have been harmed in any way in connection with Falun Gong”, the Tribunal made a decision that was arbitrary and capricious.
The grounds are narrow for the reasons. The first ground, in my view, is made out and the applicant is entitled to the relief sought in his amended application. As the applicant is successful in respect to the first ground, there is no need to consider the other two grounds.
Background
The applicant is a 42 year old citizen of the People’s Republic of China. He claimed to be a Falun Gong practitioner and because of such he ran a real prospect of persecution should he have to return to China.
In a detailed statement accompanying his protection visa application, the applicant set out the history of his family, his introduction, and later commitment to Falun Gong practices and more particularly the risks he would run at the hands of Chinese authorities if he was required to return back to China. The applicant practised the rituals of Falun Gong in Australia but in the privacy of his own room, as he is very cautious about practising publicly, even in Australia.
In support of his application The Refugee and Immigration Legal Centre lodged a submission on his behalf. That submission contained an extract from a US State Department Report which reported that 100,000 people have been detained in China for practising Falun Gong, and that members have been subjected to excessive force, abuse, detention and torture and that some members have died in custody.
It went on further to say that foreign observers have estimated that half of China’s 250,000 inmates of the country’s re–education program through labour camps – are Falun Gong practitioners. It also reported that hundreds had been confined to psychiatric institutions and forced to take medications or undertake electric shock treatment.
At the Tribunal hearing the applicant was able to describe, in the words of the Tribunal, “with precise detail” the role and functioning of the Falun and how it was obtained. The applicant gave evidence that there were five sets of exercises; one was done whilst seated and the four others were done whilst standing. The seated exercise, he said, was done first. It was noted that the applicant at the hearing was able to exhibit considerable knowledge about the Falun Gong and its teachings.
The Tribunal’s decision
The Tribunal’s reasons for decision set out the claims and evidence of the applicant, describe the hearing that took place, summarise pertinent country information and finally under the heading “Findings and Reasons” the Tribunal:
a)found the applicant is a Chinese national;
b)did not accept the applicant is a Falun Gong practitioner;
c)found that the applicant and his family have not been harmed in any way in connection with Falun Gong;
d)was not satisfied the applicant faced a real chance of persecution in China in connection with Falun Gong;
e)did not accept that the applicant posted material critical of Chinese authorities to his wife in China;
f)found that the applicant had not been formally sanctioned for breaching China’s one child policy; and
g)found implicitly that the applicant had breached the one child policy and explicitly that the applicant and his family had been harmed as a result of this breach, but the harm was not inflicted for a Convention reason.
Significantly, for the purposes of this decision, the Tribunal referred to a website ( and set out a summary of its understanding of Falun Gong. The Tribunal found that Falun Gong involves the performance of five simple exercises, four standing followed by one sitting. The Tribunal recited various aspects of the Falun Gong practices and beliefs such as the study of universal principals of truthfulness, benevolence and tolerance. The Tribunal noted that one of Falun Dafa's important distinguishing beliefs is that 10,000 mechanisms are placed into the bodies of practitioners which purify their bodies and speed up the cultivation or process of enlightenment. The main mechanism is the Falun which rotates clockwise to absorb energy and anti–clockwise to emit energy which can benefit other people.
Significantly, the Tribunal accepted that some Falun Gong practitioners in China had been persecuted in China for reasons of their religion and political opinion. The Tribunal also accepted that the applicant was familiar with important aspects of Falun Gong philosophy and practice.
However, the Tribunal placed great emphasis on the fact that the applicant gave evidence that the first exercise to be done was one to be done seated. The Tribunal found this to be contrary to information that indicated that the last of the five exercises was to be done seated, whereas the first four were to be done standing. He concluded from this observation that, “if he really was a practitioner he would not have made this error.” A pivotal finding that touched upon the credibility of the applicant. The Tribunal then made a number of significant findings consequential upon this particular finding. Having found first that the applicant was not a Falun Gong practitioner because of “the error” it found that it could not be said therefore that either he or his family members had been harmed in any way in connection with Falun Gong.
Contentions
It was contended by the applicant that to conclude that the applicant could not have been a practitioner of Falun Gong because he did the exercises in a particular way required evidence that the practice of Falun Gong was so regimented and the order of the exercise was so fundamental and essential, that all genuine practitioners would do it that way or not be genuine practitioners at all.
The applicant contended that the Tribunal did not cite any evidence in support of the position adopted by it. The Tribunal at page 100 of the Court Book (CB) referred to a website and then gave a summary of the parts of the website that the Tribunal considered significant.
That summary did not include any evidence to the effect that all genuine practitioners would do the exercises in a particular order.
The question of what the website disclosed at the time of the Tribunal’s decision became a contentious issue during this hearing. The applicant sought to lead evidence, through affidavit, of the present website’s content on the issue of the exercises and the relevance of the sequence in which they were to be practised. I rejected the affidavit and did not take it into evidence as it was obvious that it was not of any probative value so far as informing of the contents of the website at the time of the Tribunal’s decision. The best the affidavit could have done would have been to inform me of the content of the website at the time of the review application before me and websites, being as they are subject to change. What appears today on the website is not necessarily what appeared at the relevant time.
Be that as it may, the issue for me is one whether there was evidence to support the critical conclusion reached by the Tribunal and what obligation is imposed upon a Tribunal to articulate that evidence on such a crucial issue.
The first respondent in reply referred to page 100 of the CB as a full answer to the contention of the applicant. Without repeating that page verbatim, it is fair to say that in reciting parts of the content of the website that the Tribunal considered relevant, it did not recite anything from the website that could be considered evidence supporting the critical conclusion reached that genuine Falun Gong practitioners were required to partake in the five exercises in strict compliance with a routine that required that the first four to be standing and the last to be seated. For the first respondent’s contention to carry the day I would need to infer, as indeed I believe the first respondent was asking me to do, that the evidence required to support the critical finding was found on the website even though it was not expressly stated or quoted by the Tribunal. Because the Tribunal’s finding in this regard was so pivotal, was so critical, it is incumbent, in my view, for the Tribunal to have spelt out the evidence that was presumably contained on the website that caused the Tribunal to make its critical finding. A failure to refer to and repeat that evidence in the context of such a critical finding, in my view, was a failure by the Tribunal to fully articulate its reasoning in such a manner that an observer, and indeed this Court, can trace the probative logic of the conclusion reached.
Where a Tribunal makes a finding that is a critical step in its ultimate conclusion, which finding is not supported by evidence, there may very well be jurisdictional error (see SFGB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALD 402.)
Conclusion
The Tribunal has made a jurisdictional error in that it has made a critical finding without evidence to support that finding. That finding itself was pivotal to other findings made that were adverse to the applicant. It is incumbent, in my view, for a Tribunal to articulate the evidence upon which such critical findings are to be made.
Should there have been evidence supportive of the ultimate conclusion reached by the Tribunal on the question of the sequence of exercises to be conducted by Falun Gong practitioners then it was incumbent upon the Tribunal to refer to that evidence in sufficient detail as to identify its source. Not to have done so, even should it ultimately prove that there is evidence in support of the critical conclusion reached by the Tribunal, is to fail the legislative imperative placed on the Tribunal in respect of giving reasons for decisions that can then be followed that exhibit probative logic.
The applicant is entitled to the relief he seeks and there shall be an order setting aside the decision of the Tribunal and a further order remitting the matter to the Tribunal for determination according to law.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of O’Dwyer FM
Associate:
Date: 19 January 2007
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