MZXGJ v Minister for Immigration
[2006] FMCA 1035
•27 July 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXGJ v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1035 |
| MIGRATION – Refugee Review Tribunal – protection visa – whether jurisdictional error – Falun Gong – s.351 of Migration Act – relevance of failure to mention activities in Falun Gong in application pursuant to s.351 – whether public interest considerations in application under s.351 relevant for purposes of protection visa application – failure to take into account irrelevant consideration – jurisdictional error. |
| Migration Act 1958, ss.65, 351, 417 |
| Ejueyitsi v the Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 328 Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 W396/01 v Minister for Immigration & Multicultural Affairs [2002] 68 ALD 69 |
| Applicant: | MZXGJ |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | MLG 44 of 2006 |
| Judgment of: | McInnis FM |
| Hearing date: | 4 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 27 July 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. J. Gibson |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr. R. Knowles |
| Solicitors for the Respondents: | Clayton Utz Lawyers |
ORDERS
A writ of certiorari issue directed to the Second Respondent quashing the decision of the Second Respondent dated 24 November 2005.
A writ of mandamus issue directed to the Second Respondent requiring the Second Respondent to determine the matter according to law.
The First Respondent shall pay the Applicant’s costs.
Liberty to apply shall be granted to the parties in relation to any matters arising out of these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 44 of 2006
| MZXGJ |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant relies upon an amended application filed on 27 June 2006 seeking judicial review of a decision by the Refugee Review Tribunal (“the Tribunal”) dated 24 November 2005. In its decision the Tribunal affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The Applicant is a citizen of the People's Republic of China. He first arrived in Australia in 1990 as the holder of student visa. The chronology of events thereafter has been accurately set out in the contentions of the First Respondent. After he first arrived in Australia, the Applicant has entered and departed Australia on a number of occasions. He last entered Australia on 23 August 1997 as the holder of a temporary business visa in 1998.
The Applicant lodged with the Department of the First Respondent an application for resolution of status visa. The First Respondent's delegate refused to grant that visa application. The Applicant then applied to the Tribunal for review of the delegate's decision. That application was unsuccessful with the Tribunal affirming the delegate's decision in 2000. The Applicant then applied significantly for the present purposes for a more favourable decision pursuant to s.351 of the Migration Act 1958 (Cth) (“the Act”) which provides as follows:-
“(1)If the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal under section 349 another decision, being a decision that is more favourable to the applicant, whether or not the Tribunal had the power to make that other decision.
(2)In exercising the power under subsection (1), the Minister is not bound by Subdivision AA or AC of Division 3 of Part 2 or by the regulations, but is bound by all other provisions of this Act.
(3)The power under subsection (1) may only be exercised by the Minister personally.
(4)If the Minister substitutes a decision under subsection (1), he or she is to cause to be laid before each House of the Parliament a statement that:
(a) sets out the decision of the Tribunal; and
(b) sets out the decision substituted by the Minister; and
(c) sets out the reasons for the Minister’s decision, referring in particular to the Minister’s reasons for thinking that his or her actions are in the public interest.
(5)A statement made under subsection (4) is not to include:
(a) the name of the applicant; or
(b) if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the matter concerned—the name of that other person.
(6)A statement under subsection (4) is to be laid before each House of the Parliament within 15 sitting days of that House after:
(a) if the decision is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or
(b) if a decision is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.
(7)The Minister does not have a duty to consider whether to exercise the power under subsection (1) in respect of any decision, whether he or she is requested to do so by the applicant or by any other person, or in any other circumstances.”
It is noted in passing that s.351 is identical to s.417 of the Act.
In May 2004 the First Respondent refused to exercise the discretion to grant the Applicant a visa. On 8 June 2004 the Applicant lodged with the First Respondent's Department an application for a protection visa. The application was supported by a number of documents (Court Book pages 1-72).
In his application for a protection visa the Applicant claimed that if he returned to the People's Republic of China in the foreseeable future he faced a real chance of persecution by the authorities on account of his practice of Falun Gong or Falun Dafa. The delegate of the First Respondent in a decision dated 17 February 2005 refused to grant the Applicant a protection visa. The Applicant then lodged an application before the Tribunal on 15 March 2005. As indicated earlier the Tribunal decided to affirm the delegate's decision and it did so after conducting a hearing on 25 October 2005 at which the Applicant and two witnesses gave oral evidence.
Further it is noted that by correspondence dated 28 October 2005 the Tribunal invited the Applicant to comment on information which it considered would be the reason or a part of the reason for its decision. That letter which appears in Court Book (pages 177-179) included what is described as "draft only" "selected extracts from preliminary findings and reasons". Part of that material included observations by the Tribunal summarised by the First Respondent in the following terms:
“(a)despite adverse treatment of Falun Gong adherents by the Chinese authorities from 1999 onwards, the applicant did not apply for a protection visa until 2004, and
(b)throughout the period of time between 2000 and 2004 when the application pursuant to s.351 of the Act was before the first respondent, neither the applicant nor his then representative mentioned to the First Respondent that the applicant had practised and continued to practise Falun Gong.”
In response to the Tribunal's invitation, the Applicant by letter dated 10 November 2004 provided further submissions. Those submissions (Court Book pages 180-190) included correspondence from the Falun Dafa Association of Victoria Inc dated 10 November 2005, a letter dated 25 October 2005 from Amnesty International Canada and a letter from the Applicant to the Tribunal dated 11 November 2005.
The material relied upon by the Applicant in response to the invitation from the Tribunal deals with the activities of Falun Gong and treatment of it in China together with the Applicant's reference in further detail to his activities in relation to Falun Gong and setting out some history of those activities together with reference to the Applicant's earlier application to the Tribunal and his appeal to the Minister. Specifically, the Applicant dealt with the issue concerning the reason why he only applied for refugee protection after the application to the Minister had been refused. In any event, as indicated, the Tribunal in its decision affirmed the delegate's decision to refuse to grant the Applicant a protection visa.
The tribunal's decision
In its decision, the Tribunal under the heading "Claims and Evidence" referred to the claims made by the Applicant and the background history. The Tribunal further referred to the oral evidence of the Applicant given on 25 October. The Tribunal specifically asked questions in relation to the application to the Minister pursuant to s.351 of the Act. It appears that the Applicant confirmed that that request was made at the "end of 2000 (October 2000)" (Court Book page 203).
It was noted no response was forthcoming from the Minister until May 2004. Further questions were apparently asked of the Applicant by the Tribunal. It should be noted that the Court has not received transcript of the proceedings and nor has either party requested the Court to consider transcript.
It is relevant, however, to set out the following extract from the Tribunal's decision where it recites the exchange which occurred between the Tribunal and the Applicant concerning the s.351 application as follows:-
“When asked why he had requested the Minister exercise their discretion in 2000, the applicant claimed he had made the request as he believed the decision to refuse to grant him a visa was incorrect. When he asked repeatedly, the applicant repeated it was because he believed the decision to refuse to grant him the visa to remain in Australia was incorrect. I then read the part of s351 of the Migration Act which indicates that the Minister is to consider the ‘public interest’ when exercising their discretion under s351. The applicant claimed not to know anything about this and that he just did what [his then] migration agent advised’. When asked, the applicant claimed to have commenced to practice Falun Gong in 1996. After he returned to Australia in August 1997 (being the last time he entered Australia), he claimed to continue to practice Falun Gong up till the present day. In fact, when asked, the applicant agreed that the had practiced Falun Gong ‘virtually every day since 1996’. I believe it to be uncontroversial to note here the practice of Falun Gong in the PRC became illegal in mid 1999 and the PRC authorities have brutally oppressed its practice from that time. I then asked the applicant why he had not mentioned his alleged practice from that time. I then asked the applicant why he had not mentioned his alleged practice of Falun Gong in the late 2000 request to the Minister to exercise their discretion under s351 Migration Act (particularly given the request was made with the assistance of his then migration agent).”
Further discussions occurred in relation to the s.351 application which also appears in the Court Book as follows:-
“… confirming that his practice of Falun gong had never been brought to the Ministers attention (with respect to the s351 request), the applicant claimed that he just did what [his] migration agent advised’ and that is why no mention of his practice of Falun Gong was made to the Minister in the ‘s351’ request of late 2000. The applicant also claimed that his practice of Falun Gong ‘had nothing to do with’ his migration agent; and that the had ‘no obligation’ to tell his migration agent about his practice of Falun gong. The applicant then claimed that ‘after he [ie the migration agent] had lodged the [s351 request] he [ie migration agent], had refused to have anything more to do’ with the applicant. Notwithstanding I asked, I was not able to ascertain why this ad occurred. Be that as it may, I note the applicant had been able to successfully secure the services of another migration agent to assist him to lodge his Protection Visa application in June 2004. I then put to the applicant words to the effect that his migration agent [in 2000] could be expected to have understood the importance of putting the applicant’s practice of Falun Gong to the Minister with a request for the Minister to exercise their discretion under s351. The applicant repeated that his migration agent did not know that he practiced Falun Gong. When asked why, the applicant claimed it was his (ie the applicant’s) ‘business’ and he did not believe it necessary to tell his migration agent about his practice of Falun Gong. The applicant then claimed his previous via application had nothing to do with seeking refugee protection and that is why he had not told his migration agent about his Falun Gong practice. I again pointed out that his migration agent should have been expected to have understood the importance of including the applicant’s practice of Falun Gong with the s351 request. The applicant again claimed he (ie the applicant), did not believe it was relevant.
I then put to the applicant that we had already established that he did not know anything about the Migration Act etc, and he would therefore have enlisted the services of a migration agent to assist him with his application to obtain a visa to remain in Australia. I then put words to the effect that even if his migration agent had initially focussed on the acquisition of the Subclass 850 visa, as his migration agent should have understood the importance of the ‘public interest’ criteria within s351 of the Migration Act, I may not accept is was plausible the migration agent did not at least take instructions prior to lodging the request for the Minister to exercise his discretion under s351 of the Migration Act. Therefore, I may find it implausible the migration agent would not have questioned the applicant in such a way as to establish whether he (ie the applicant), feared harm in the PRC for any reason (note the s351 request was issued in late 2000 and the PRC authorities commenced the suppression of Falun Gong in mid 1999). The applicant repeated inter alia that he did not understand his practice of Falun Gong was ‘relevant’.
Later in the Tribunal hearing, the applicant (who claimed to practice Falun Gong ‘virtually every day since 1996’ and at least weekly in the ‘company of other’ practitioners), repeatedly confirmed he did not know that ‘Falun Gong practitioners were entitled to apply for refugee protection until immediately before be lodged his Protection Visa application in June 2004 (ie until one month after he was notified the Minister had refused to exercise their discretion under s351 of the Migration Act). I put to the applicant that I may not accept it was plausible that he would not have access to the accumulated knowledge of the Chinese community in general, as well as fellow Falun Gong practitioners, and thus I may not accept he was not aware that Falun Gong practitioners could apply for refugee protection in Australia until June 2004. After further repeated questioning, the applicant eventually claimed that ‘Master Li asked overseas Falun Gong practitioners to seek asylum’. The applicant then claimed not to understand my questions. I put to him that I believed he was being evasive. In direct response to this, the applicant claimed he had in fact heard that some Falun Gong practitioners had sought refugee protection in Australia but did not know anything else about this. Later again in the Tribunal hearing a witness for the applicant, who claimed to have met the applicant in 1997 (and was described by the applicant as his Falun Gong student), expressed the view inter alia that may persons alleged to be practitioners of Falun Gong in order to falsely claim refugee protection in Australia.”
I have deliberately set out in some detail that extract in order to understand the exchange which occurred between the Applicant and the Tribunal concerning the application pursuant to s.351 of the Act as this has become a significant and relevant issue in this application.
The Tribunal then pursued the Applicant with his role in Falun Gong and the extent and nature of his involvement with that organisation. After providing an outline of the material supplied to the Tribunal and after dealing with the witnesses called on behalf of the Applicant, the Tribunal still under the heading of "Claims and Evidence" makes the following observation (Court Book page 207):-
“During the course of the Tribunal hearing I had, on occasion, found it difficult to secure responses from the applicant to questions that I had put to him. I acknowledge that some, if not all, problems may have arisen as either the applicant or the interpreter may not have understood questions I had put. Be that as it may, on at least 5 occasions at the end of the hearing I asked the applicant if he had anything more to add in support of his claims. The applicant initially repeated claims and submissions that he had put previously. On a number of occasions I had brought this to the applicant’s attention. Eventually the applicant agreed that he had nothing more to add and I proceeded to arrange for the cessation of the Tribunal hearing”.
In its "Findings and Reasons" the Tribunal ultimately reached a significant adverse conclusion in relation to the Applicant's claim. It specifically found that it was satisfied the Applicant "does not invoke protection obligations in Australia" (Court Book page 217). During the course of its reasoning process the Tribunal on a number of occasions asserted that it was sufficiently satisfied that the present Applicant "is not a witness of truth, such that I am satisfied there are reasonable grounds to reject all his material claims" (Court Book page 215).
It then found after indicating it was not satisfied the Applicant is a witness of truth that, "None of the Applicant's material claims to invoke protection obligations in Australia are true". The Tribunal in its findings had specifically considered certain aspects of the claim made by the Applicant which included the following topics:
(a) imputed or actual Falun Gong belief/practice in Australia,
(a) strength of the Applicant's convictions,
(a) the published newspaper article and volunteer work,
(a) the Applicant's witnesses,
(a) credibility,
(a)Applicant's responses to section 424A letter.
The Tribunal considered country information and otherwise in its detailed reasoning considered the claims made by the Applicant. Despite the significant adverse credibility findings and the more general adverse findings referred to earlier in this judgment, the Tribunal appeared to accept some parts of the claim, namely the extent of the Applicant's knowledge of Falun Gong and its practices. For example, it specifically made the following finding (Court Book page 208):-
“Based on his responses to my questions at the Tribunal hearing, I am satisfied the applicant was able to demonstrate a reasonably detailed knowledge of Falun Gong and its practice. However, with out more, this would not necessarily satisfy me eg, that the strength of the applicant's convictions with respect to his claimed wish to continue to practise Falun Gong, invoke protection obligations in Australia. Furthermore, irrespective of the sincerity of the applicant's claimed practice of Falun Gong, I would need to consider whether the PRC authorities may target him on return for reasons of his, eg 'imputed Falun Gong belief/practice' while in Australia.”
Thereafter the Tribunal then considers the specific topics set out above. Ultimately, the Tribunal made a finding that the Applicant's participation in Falun Gong was not sufficient for the Tribunal to determine a well founded fear of persecution. It did not accept the Applicant's conviction with respect to his practise of Falun Gong "as sufficiently strong such that they invoke protection obligations in Australia" (Court Book page 209).
It formed that view cognisant of the issue that if the Applicant was obliged to reject or remain silent about any strongly held beliefs then that might of itself constitute harm sufficiently serious to amount to persecution within the meaning of the Convention (Court Book page 209). Further, it correctly referred to the concept that if the Applicant held strong views about Falun Gong there was a real chance that upon his return he would publicly voice those views and as a result come to the adverse attention of the authorities (Court Book page 209).
However, it did not accept the Applicant had views which were sufficiently strong to invoke protection obligations as indicated earlier and made that assessment based upon the evidence and claims of the Applicant which had been raised before the Tribunal. In considering the country information, the Tribunal noted that although Chinese authorities' oppression of Falun Gong commenced in 1999, the Applicant did not lodge his application for a protection visa until 2004.
Of significance in the present case was a specific finding by the Tribunal in relation to the failure of the Applicant to refer to his involvement with Falun Gong when he made the application to the Minister pursuant to s.351 of the Act. It is relevant to set out the following passage at Court Book pages 210 - 211 as follows:
“1 then again put to the applicant words to the effect that his then migration agent should have been expected to have understood the importance of putting the applicant’s practice of Falun Gong to the Minister with a request for the Minister to exercise their discretion under s351. The applicant repeated his claim his migration agent did not know that he practiced Falun Gong. When asked why, the applicant repeated it was his (ie the applicant’s) ‘business’ and he did not believe it necessary to tell his migration agent about his practice of Falun Gong. The applicant then claimed his previous visa application had nothing to do with seeking refugee protection and that is why he had not told his migration agent about his Falun Gong practice. I again pointed out that his migration agent should have understood the importance of including the applicant’s practice of Falun Gong with the s351 request. The applicant again claimed he (ie the applicant), did not believe it was relevant.
I then put to the applicant that we had already established that he did not know anything about the Migration Act etc, and he would therefore have enlisted the services of a migration agent to assist him with his application to obtain a visa to remain in Australia. I then put words to the effect that even if his migration agent had initially focussed on the acquisition of the Subclass 850 visa, as his migration agent should have understood the importance of the ‘public interest’ criteria within s351 of the Migration Act, I may not accept it was plausible the migration agent did not at least take instructions prior to lodging the request for the Minister to exercise his discretion under s351 of the Migration Act. Therefore, I may not accept the migration agent would not have questioned the applicant in such a way as to establish whether he (ie the applicant), feared harm in the PRC for any reason (note the s351 request was issued in late 2000 and the PRC authorities commenced the suppression of Falun Gong in mid 1999). The applicant repeated inter alia that he did not understand his practice of Falun Gong was ‘relevant’.
Be that as it may, 1 do not accept it plausible, the applicant’s alleged committed practice of Falun Gong would not have came to the attention of his then migration agent (ie in late 2000), prior to issuing the request for the Minister to exercise his discretion pursuant to s351 of the Migration Act. The practice of Falun Gong was exactly the kind of matter that would be understood to possibly encourage the Minister to exercise his discretion to allow an applicant to remain in Australia. I am therefore satisfied the reason the applicant did not mention his practice of Falun Gong at that time (ie in late 2000), was because he was at best, nothing more than a mere occasional participant in Falun Gong activities at that time. Thus I am not satisfied the applicant was a sincere Falun Gong practitioner in late 2000, as he has sought to claim; at least to the extent that his practice may have warranted refugee protection. I believe the applicant has fabricated this part of his case in order to enhance his claim to invoke protection obligations in Australia. Further, this is the first reason which has ultimately satisfied me the present applicant is not a witness of truth.”
It is clear from that extract that a key factor in forming an adverse view of the Applicant's credibility and in reaching a conclusion that the Applicant is not a witness of truth was the finding by the Tribunal that it did not accept as plausible that the Applicant's alleged committed practise of Falun Gong would not have come to the attention of his Migration Agent prior to issuing the request for the Minister to exercise the discretion pursuant to s.351 of the Act.
Clearly the Tribunal in the extracts set out above formed the strong view that that was the kind of matter which would be understood to possibly encourage the Minister to exercise his discretion, to allow the Applicant to remain in Australia and then led the Tribunal to be satisfied that the reason why it was not mentioned was because the Applicant at best was nothing more than a "mere occasional participant in Falun Gong activities at the time".
The significance of that finding will become evident when considering the grounds raised in the amended application and the submissions for and on behalf of the Applicant.
The amended application
The amended application filed 28 June 2006 raises a number of grounds sought to be relied upon in support of the submission that there has been a jurisdictional error. Those grounds recite in the particulars subjoined to ground 1, a number of general propositions. Rather than simply include the particulars subjoined to ground 1, I am satisfied that the grounds have been summarised by the parties, both in written submissions and in oral submissions before the Court, as falling within four major headings as follows:
(a)Taking into account irrelevant consideration, namely reference to the failure of the Applicant to refer to membership of Falun Gong in the section 351 application,
(b)Applying the wrong test or imposing onus of proof upon the Applicant in relation to well-founded fear of persecution,
(c)Failing to apply the correct test when making findings about the Applicant's knowledge and practice of Falun Gong,
(d)Making illogical and irrational findings
Submissions and reasoning
Taking into account irrelevant consideration, namely reference to the failure of the Applicant to refer to membership of Falun Gong in the s.351 application,
The Applicant submitted that the extracts from the Tribunal decision referred to earlier in this judgment demonstrate that it had relied upon what is submitted to be an irrelevant consideration, namely the failure of the Applicant to refer to his membership in Falun Gong when making the application to the Minister pursuant to s.351 of the Act.
It was submitted that the mere fact that an Applicant may have a claim to protection within the Refugee Convention founded upon his practice in Falun Gong has no relationship to the criterion or any other criteria of the Migration visa claims in question, or any aspect of the s.351 application.
It was submitted that the "public interest" and individuals having the capacity to make bona fide onshore claims for protection is met by the ability of respective refugees to make applications for protection visas as an exception to the rule preventing onshore change of status applications. It was argued that it is not met in seeking to invoke the Minister's discretion on precisely the same basis within the onshore Migration stream. It was further argued there can be no expectation on any of the basis posited by the Tribunal that such a claim should have been or would have been made in a s.351 process.
The First Respondent has submitted that what constitutes an irrelevant consideration must be determined by reference to the Migration Act and the Regulations. It was submitted the Tribunal has not fallen into error in the manner in which it has applied the relevant statutory criteria. The Tribunal, it was argued, was required to assess the Applicant's claims to be a refugee. It was entitled to consider whether or not those claims were credible. As part of the assessment of credibility, the Tribunal, it was submitted was entitled to consider the fact that on previous occasions when the Applicant might have been expected to refer to the basis for his refugee claims, he had not done so.
The First Respondent in submissions noted that before the Tribunal, the Applicant had claimed to have practised Falun Gong, "Virtually every day since 1996." He claimed the oppression of Falun Gong by the Chinese authorities had commenced in 1999. In 2000 the Applicant sought to remain in Australia by reason of an application pursuant to s.351 of the Act. In preparing that application the Applicant was assisted by a Migration Agent. Accordingly, it was submitted that it should reasonably be expected that the s.351 application would refer to the Applicant's Falun Gong practice and how it might affect him if he returned to China.
It was argued that a proper interpretation of the matters which might attract the Minister's intervention pursuant to s.351 is "largely unconfined." It was argued that it was open to the Tribunal to consider the failure of the Applicant to mention his membership and/or activities with the Falun Gong at the time of his application to the Minister pursuant to s.351 of the Act. It was argued the Tribunal did not take into account any matter which it was bound by the Act or Regulations not to take into account.
During the course of submissions, counsel for the First Respondent drew the Court's attention to the wording of s.351 of the Act compared to the wording of s.417 of that Act. As noted earlier in this judgment, the wordings of the provisions appear to be identical. It was argued that there is no reason why an Applicant upon making an application pursuant to s.351 would not in the course of that application, when assisted by a Migration Agent, make specific reference to his membership of Falun Gong and the extent and nature of his activities.
Accordingly, that failure to mention the fact which one would reasonably expect the Applicant to mention, was a matter which the Tribunal was entitled to take into account in making an assessment as it did adverse to the Applicant concerning his credibility.
Reasoning
It is clear that ss.351 and 417 appear to be in identical terms however, it is also clear that s.351 appears under Division 3 of Part 5 of the Migration Act. Part 5 of the Migration Act is entitled, "Review of Decisions." Division 3 is entitled, "Review of Decisions by Migration Review Tribunal."
Section 417 appears under Part 7 of the Act entitled "Review of Protection Visa Decisions." Section 417 appears under Division 2, which is entitled "Review of Decisions by Refugee Review Tribunal." The structure of the legislation providing, as it does, two identical sections within two separate parts and two distinct divisions demonstrates, a clear intention to provide a separate and discreet procedure in relation to each part and specifically in relation to each division.
Part 5 Division 3, clearly provides for review decisions by the Migration Review Tribunal. Those decisions do not include any reference to applications for refugee status, that is, for protection visas, rather the decisions which are the subject of review under that part cover a wide range of applications for visas other than protection visa. The discretion provided to the Minister under Part 5 Division 3 is discretion to substitute more favourable decision than that which the Migration Review Tribunal would provide, and clearly is a discretion which the Minister has to make a more favourable decision, "Whether or not the Tribunal had the power to make that other decision." The reference in s.351 to "the Tribunal" must in that context mean and be taken to mean the "Migration Review Tribunal".
Part 7 of the Migration Act deals with review of "protection visa decisions". Division 2, as indicated earlier, which includes s.417 provides for review of decisions "by Refugee Review Tribunal." In my view, s.417 whilst providing a discretion in identical terms to the discretion of the Minister under s.351 when referring to "Tribunal", means or should be taken to mean the Refugee Review Tribunal. Hence, where an Applicant has made application for a visa other than a protection visa, it is clear that in seeking to encourage the Minister to make a more favourable decision pursuant to s.351, and that the factors to be taken into account by the Minister in the exercise of that discretion are factors which would normally be raised in relation to an application to the Migration Review Tribunal.
The fact that the Minister under s.351 has power to make a more favourable decision "whether or not the Tribunal had the power to make that other decision" does not, extend to the point where the Minister on that application in the public interest would make a decision of a kind inconsistent with the power the Minister has relating to the wide range of visa applications considered by the Migration Review Tribunal.
I accept the submissions for the Applicant that any suggestion of grounds upon which a protection visa could be granted would of necessity generate the response that there is provisions for the Applicant to make application for a protection visa, and that those grounds are not relevant to the exercise of the Minister's discretion under s.351 considering, as a Minister must, those matters relevant to visa applications within the jurisdiction of the Migration Review Tribunal.
Accordingly, any failure by the Applicant to mention membership of Falun Gong which clearly relate to matters in support of a protection visa at the time he made an application pursuant to s.351 of the Act, should not be regarded as relevant in the subsequent review of the Applicant's application for a protection visa undertaken by the Refugee Review Tribunal.
The issues that may or may not have been raised by an Applicant seeking to persuade the Minister to make a more favourable decision pursuant to s.351 of the Act would not be reasonably expected to include factors relevant to an application for a protection visa which in a separate part of the Act is dealt with, and more particularly, in a separate division provides for a separate power which the Minister may exercise pursuant to s.417 of the Act.
Hence, by referring to and placing clear emphasis upon the Applicant's failure to mention membership of Falun Gong when making his application pursuant to s.351 of the Act, the Tribunal has taken into account an irrelevant factor sufficient to constitute jurisdictional error. Accordingly, on this ground, the Applicant should succeed and the orders sought in the amended application be granted.
If Parliament intended that the power of the Minister under s.351 extended to the same power set out in s.417, albeit under a different part and a different division, then clearly Parliament could have inserted a general discretionary provision covering all applications. By providing two separate sections within two separate parts dealing with different visa applications, it is my view, that it is an error for a Tribunal to take into account omissions of an Applicant made when making application under that part of the Act which clearly does not relate to protection visas.
Applying the wrong test or imposing onus of proof upon the Applicant in relation to well-founded fear of persecution
In support of this ground, the Applicant submitted that the Tribunal used inappropriate terminology and on a fair reading of its decision appears to have cast an onus upon the Applicant. In doing so, it was submitted that whilst the Tribunal correctly referred to its powers and the powers and discretions of the First Respondent under s.65 of the Act, and correctly set out the convention definition of "refugee" and how Courts and the legislature have interpreted that definition, it had in its reasoning expressed itself in a manner which would appear to indicate that it asked itself the wrong question or applied the wrong test to establish whether the Applicant held a well‑founded fear of persecution and/or applied the wrong standard of proof and/or imposed an impermissible burden of proof upon the Applicant.
A number of instances were referred to by counsel for the Applicant when analysing the Tribunal's reasoning. Examples are set out in the amended application which include the following:-
“a)“… would lead me to conclude that he did not invoke protection obligations in Australia” (p9 line 6)
b)”… whether I was satisfied the strength of his alleged convictions invoked (p 11 line 3) or invoke (p 11 line 11) protection obligations’
c)“I do not accept applicant’s convictions with respect to his practice of FG are sufficiently strong that they invoke protection obligations in Australia” (p 12 line 28 f)
d)“I am not satisfied the applicant as a sincere FG practitioner in late 2000..... at least to the extent that his practice may have warranted refugee protection” ( p 14 line 22)
e)“I am not satisfied that it is reasonable to give the applicant the benefit of the doubt. Thus I am not satisfied that the applicant was a FFG practitioner between late 2000 and May 2004 such that he invoked protection obligations in Australia” (p 15 line 28)
f)“…it may form part of my reasons to doubt the strength of is alleged convictions with respect to FG and therefore it may form part of the reasons that may lead me to conclude that he did not invoke protection obligations in Australia… (p 16 line 11)
g)“….I am not satisfied the strength of the applicant’s alleged convictions with respect to his practice of FG invokes protection obligations in Australia” ( p18 top)
h)“I am not satisfied that the applicant’s level of (mere) participation in FG events in Australia give rise to protection obligations in Australia” (p16 bottom)
i)“I am sufficiently satisfied that the applicant is a not a witness of truth such that I am satisfied that there are reasonable grounds to reject all his material claims (p 18 line 20-30)
j)“…I was satisfied that the applicant was not owed protection obligations” (p19 top)
k)“..I remain satisfied that the applicant does not invoke protection obligations. Accordingly I am not satisfied he has a well-founded fear of persecution in the PRC” (p 20)”
It was submitted that it is clear from the approach of the Tribunal that it interposed what was described as, "A gloss and/or impermissible intermediate test to be satisfied throughout its reasons which has no place in the scheme of evaluation." It was submitted that the Tribunal appeared confused as to whether the protection obligations are "present tense" or were “past tense” invoked with no consideration of any prospective or predictive test. It was submitted that that approach, "Reached its nadir when the Tribunal made an interior and principle finding that it was satisfied the Applicant does not invoke protection obligations before finding that he did not have a well-founded fear."
It was submitted the absence of a clear statement of the correct test in the section "the definition of refugee", was a further indication that in applying the well-founded fear test, the Tribunal did not understand the "future and forward looking assessment it was required to make." It was submitted the Tribunal was wrong to impose a persuasive burden on an Applicant in this situation (see Ejueyitsi v the Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 328).
It was further submitted that it was wrong for the Tribunal to impose a further "gloss on the test of well-founded fear which must be satisfied". Further it was submitted that it was wrong for the Tribunal and a misunderstanding of the test which the Tribunal must apply for it to ask "whether past acts of conduct may have warranted refugee protection". It was submitted that it is the significance of the past for the future risk of harm that is important (see Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 at 574-575).
The First Respondent submitted that the Tribunal had set out the relevant provisions in the legislation and further, that the Tribunal properly understood its review function. In its decision, it was submitted, the Tribunal correctly referred to the powers and discretion of the First Respondent under s.65 of the Act which upon review the Tribunal was empowered to exercise.
It was submitted that the Tribunal "correctly set out a convention definition of 'refugee' and how Courts and the legislature have interpreted the definition". Reference was made to the Tribunal decision at Court Book page 201 where it states relevantly:-
“Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.”
It was submitted that on a fair reading of the Tribunal's reasons, they do not demonstrate any departure from the applicable test. It was submitted that the criticism of the Tribunal in this instance involves the impermissible task of construing minutely and finely with an eye keenly attuned to the perception of error (see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] 185 CLR 259 at 272). It was further submitted that there is no confusion in the Tribunal's decision.
The exchanges referred to and relied upon by the Applicant, whilst dealing with matters in the past, clearly involve use of the past tense. That does not mean the Tribunal failed to be aware and/or apply the proper test, as ultimately it was satisfied in its conclusion that the Applicant did not have a well-founded fear of persecution for a convention related reason in China.
It was submitted by the First Respondent, the Tribunal's reasons demonstrate that it was cognisant of the "real chance" test and applied it without error. Ultimately, it was submitted the Tribunal's decision was made based upon adverse credibility assessment of the Applicant's claims and evidence, and those credibility findings were open to it on the material. Credibility, it was submitted, is a matter for the Tribunal par excellence (see Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] 168 ALR 407 at [64]-[67]).
Reasoning
In my view, the First Respondent's submissions in relation to this ground are correct. The Tribunal, on my reading of its decision, has correctly set out the relevant principles and law. Its reference to past activities and the other matters referred to in the list of items relied upon by the Applicant do not detract from the ultimate reasoning process of the Tribunal where, as submitted by the First Respondent, the Tribunal appears to have been aware of and applied correctly the proper test. It is clear it has done so when reaching its conclusion that it was not satisfied the Applicant had a well-founded fear of persecution for a convention reason.
It is also clear throughout its reasoning process that the Tribunal was aware and took into account the proper test to be applied in relation to determining "the real chance" test. It is not appropriate to analyse in fine detail the extracts sought to be relied upon by the Applicant to then seek to detract from specific and correct statements the Tribunal has made concerning the applicable law. The mere absence of an express provision or statement by the Tribunal as to one part of the test does not of itself demonstrate an error on the part of the Tribunal in reaching its conclusion. It did not need to proceed to make a clear statement of the correct test in the section "the definition of refugee".
It is clear from what the Tribunal stated, that it was under no misapprehension as to the correct test and proceeded to make findings in relation to the Applicant's credibility which were reasonably open to it and free of error. Hence this ground should fail.
As I understood the Applicant's submissions in relation to this ground, it was sought to be argued that the reasoning of the Tribunal demonstrated a failure to consider the claims made or the failure to apply the correct test and/or be satisfied the correct test was bound to apply.
I am not satisfied that a proper reading of the language used by the Tribunal would persuade the Court to draw a conclusion that it has imposed an onus of proof or otherwise introduced an inappropriate standard of proof.
In applying the conclusions in relation to previous ground, I can see no error in the manner in which the Tribunal has approached its task.
Illogical or irrational findings
The Applicant submitted that in this instance the findings of the Tribunal in relation to the religious convictions of the Applicant were illogical and/or irrational and/or unreasonable, so that "in making them the Tribunal applied the wrong test or was satisfied in respect of the correct test that it was bound to apply." It was submitted that illogicality or unreasonableness of this degree constitutes jurisdictional error (see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165 at 1169-1170 [20] 1177-1178 [67]-[69] 1194 [174] 198 ALR 59 at 64, 75-76, 97-98)
In the alternative, it was submitted that the error in question could be characterised in the same manner as held by the Full Court of the Federal Court in W396/01 v Minister for Immigration and Multicultural Affairs [2002] 68 ALD 69 at [33] where the Court states:-
“[33] An apparent illogicality in the tribunal’s reasoning is not in itself a reviewable error. However, to the extent that it demonstrates a failure by the tribunal to ask itself the right question or a failure to consider a relevant consideration that it was bound to consider, illogicality may manifest reviewable error: see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411; 53 ALD 1; 160 ALR 543 especially at [25]. That is the case here. What is revealed by the tribunal equating the appellant’s earlier trip to Syria and Turkey with his journey to Australia and its failure to take its inquiry any further, is that the tribunal asked itself a separate and distinct question, namely, would the fact that he had left the country arouse suspicion from the Iranian authorities and lead to persecution having regard to his earlier employment? The tribunal failed to ask itself, as it was obliged to do in assessing the appellant’s sur place claim, whether in all the circumstances the appellant had a well-founded fear of persecution for a Convention reason arising from events occurring after the appellant’s departure from Iran? If it had asked itself this question, it would have progressed from considering the appellant’s claims individually to considering whether the interplay of circumstances, including the interview with ASIO to which no reference was made, placed the appellant in a position of risk. In failing to ask the right question, the tribunal fell into error. This error may be characterised in a number of ways as is illustrated by the judgment of Wilcox and Madgwick JJ in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 292–3; 58 ALD 30 at 35–6:
“. . . [B]ecause the tribunal did not apply itself to all the substantial matters which might bear on whether the applicant met the Convention requirements of a refugee, the tribunal did not consider the “real question which it was its duty to consider” and this was a constructive failure by the tribunal to exercise its jurisdiction: Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 577; 48 ALD 481 at 493; 144 ALR 567 at 581, per Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, implicitly endorsing the legal analysis (though not the factual conclusions) of Beaumont J at first instance Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151 at 165; 40 ALD 445 at 456; 135 ALR 421 at 433: see also Sinclair v Maryborough Mining Warden (1975) 132 CLR 473 at 480, 483; 5 ALR 513 at 518, 521. A decision based on the tribunal’s constructive failure to exercise its jurisdiction is one “not authorised by the Act” within the meaning of s 476(1)(c). It also involves an “error of law, being an error involving an incorrect interpretation of the applicable law” within s 476(1)(e). Further, it may involve an “error of law, being an error involving . . . an incorrect application of the law to the facts as found” within s 476(1)(e) because, although the facts as found were that the appellant was not credible, the Act was incorrectly applied to that fact so as to result in the application being dismissed. The correct application of the law (in the circumstances of this case) required a determination, despite the appellant’s lack of credit-worthiness, as to whether, on all of the relevant information obtained (including any which reasonably could and should have been obtained), he was a refugee, albeit an untruthful one.”
(See also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 62 ALD 225; 180 ALR 1 particularly at [82]–[85].)”
The First Respondent submitted that the Tribunal made findings in relation to the strength of the Applicant's convictions in respect of Falun Gong. It did not accept that "the Applicant's convictions with respect to his practice of Falun Gong are sufficiently strong such that they invoke protection obligations in Australia" (Court Book page 209). In relation to that finding it was submitted the Tribunal found the Applicant had embellished or even fabricated his claims. Reference was made to passages set out earlier in this judgment.
It was noted the Tribunal also made a general finding about the Applicant's credibility. It was submitted that the general rejection of the Applicant's material claims should be read subject to the Tribunal's specific findings. Whilst the Tribunal accepted the Applicant had participated in the practice of Falun Gong, it did not accept that those activities gave rise to a well-founded fear of persecution in China. The Tribunal's general statement, it was submitted, "simply affirms its view that the material claims of the Applicant should be rejected as untrue."
It was submitted that the findings and the reasons of the Tribunal do not demonstrate any error in applying the correct test, nor could it be claimed that in the circumstances the reasons were irrational or illogical and that such irrationality or illogicality would give rise to any ground of judicial review in the present case.
Reasoning
In my view, this ground should also fail. It fails, subject of course, to my finding in relation to the first ground to the extent that by taking into account an irrelevant consideration, it may be argued that the Tribunal then has demonstrated a failure to reach a decision free of jurisdictional error in the same way that a Tribunal may be found to have acted in a manner attracting reviewable error by failing to consider a relevant consideration. It may well be that illogicality can manifest reviewable error by taking into account an irrelevant consideration.
For the present purposes, however, I do not need to decide that as a factor in relation to this ground, having already decided the matter in relation to the manner in which the Tribunal, in my view, incorrectly relied upon the matters arising out of the s.351 application. Otherwise, the analysis undertaken by the Tribunal of the Applicant's role in Falun Gong and the extent and nature of his commitment leading to an analysis of the strength of that commitment has been undertaken free of error.
I do not see any illogicality of a kind which would attract judicial review in the reasoning process. The Tribunal has simply analysed the material both in terms of the extent and nature of the Applicant's activities and then reached a decision reasonably open to it which, of course, included significant adverse credibility finding. As I have indicated earlier, that adverse credibility finding, however, unfortunately in the present case appears to be inextricably tied to the error which I have found arising out of the way in which the Tribunal dealt with the matters arising out of the Applicant's s.351 application.
Conclusion
For the reasons given, it follows that appropriate orders should be made of the kind sought by the Applicant namely:-
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 24 November 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent shall pay the Applicant’s costs.
Liberty to apply is granted to the parties in relation to any matters arising out of these orders.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 27 July 2006
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