MZXNA v Minister for Immigration - [2007] FMCA 405

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZXNA v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 405

MIGRATION – Alleged jurisdictional error arising out of Refugee Review Tribunal’s approach to material relating to Falun Gong – no such error established – application dismissed.

Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548 at 16
WALT v Minister for Immigration & Multicultural & Indigenous Affairs (2007) FCAFC 2
SZFNP v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCA 1527
SBCC v Minister for Immigration & Multicultural Affairs (2006) FCAFC 129

Applicant:

MZXNA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 1396 of 2006

Judgment of:

Burchardt FM

Hearing date:

15 March 2007

Date of last submission:

15 March 2007

Delivered at:

Melbourne

Delivered on:

19 April 2007

REPRESENTATION

Counsel for the Applicant:

Mr Y. Hardjadibrata

Solicitors for the Applicant:

Pro bono

Counsel for the Respondents:

Mr Horan

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the Applicant pay the First Respondent's costs, fixed at $5,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLG 1395 of 2006

MZXNA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review filed by the Applicant on 3 November 2006 by which the Applicant seeks to have the decision of the Refugee Review Tribunal (“the Tribunal”) given on 2 October 2006 set aside.
The grounds set out in support of that application are so generalised as to be of no real assistance to the Court. Nonetheless, the Court has had the very considerable assistance provided by the Asylum Seeker Resource Centre, which has assisted the Applicant in providing an amended application filed on 2 March 2007 together with contentions of fact and law prepared by Mr Hardjadibrata, who appeared pro bono as Counsel for the Applicant.
At the hearing Counsel for the Applicant, as foreshadowed in the contentions of fact and law, sought to amend paragraph 3 by substituting in the amended application a further ground 3 as follows:
“The Tribunal failed to accord the applicant natural justice in that it failed to notify the applicant of the sources of information it relied upon to determine the applicant's understanding and knowledge of the practice of Falun Gong.”
That application was not opposed by Counsel for the First Respondent and was accordingly permitted.
Counsel for the Applicant expressly abandoned ground 4 on the amended application.
Counsel for the Applicant addressed in respect of grounds 1 and 2 together.
The primary emphasis of Counsel's submission was that the finding made by the Tribunal that the Applicant was never a Falun Gong practitioner was one that was not supported by any evidence whatsoever.
Counsel for the Applicant set out at paragraph 4 of his written submissions the following assumptions that it was submitted the Tribunal appeared to have made:
a)genuine Falun Gong practitioners would have more than a basic and limited understanding of Falun Gong;
b)genuine Falun Gong practitioners of 10 years would have more than a basic and limited understanding of Falun Gong;
c)genuine Falun Gong practitioners who have read Zhaun Falun would know how the book was set out or how many chapters were contained in the book;
d)genuine Falun Gong practitioners would be aware of most of the reasons for practising the Falun Gong exercises and the effect the exercise is supposed to have made on the body;
e)genuine Falun Gong practitioners would be able to explain the reasons the Falun moved in the middle of the body and the reason Falun Gong was branded as a sect in China.
It was submitted that these assumptions, conjectures or speculations showed that the Tribunal was impermissibly prescribing a specific level of doctrinal knowledge or minimum standard of practice as a pre‑condition to the Applicant being accepted as a Falun Gong practitioner. Reference was made to the observations of Gray J in Wang v MIMA (2000) 105 FCR 548 (“Wang”) at [16].
Wang was, however, considered further by the Full Court of the Federal Court in WALT v MIMIA (2007) FCAFC 2. In that decision at [27]-[33] the Full Court considered Wang and stated at [28]-[29]:
“In Wang at 552 [16] Gray J pointed out that it is not appropriate for the Tribunal to take on the role of arbiter of doctrine with respect to any religion. So much may be accepted. Degrees of understanding and commitment of those practising any particular faith will vary. To ascribe to all who are or claim to be adherents to a particular religion a required minimum standard of practice or a required and consistent minimum understanding of its tenets may be erroneous.
But it does not follow that the questioning of a person, even a person as young as 11, who claims to have in effect given up his family and community connections for having espoused a particular religion, about that person's beliefs on matters which that particular person teaches or its tenets, means that the Tribunal is necessarily becoming the arbiter of the doctrine of that religion.”
The Applicant's Counsel next turned to amended ground 3, the natural justice point. What was put here was that the Tribunal should have provided to the Applicant details of the source of the apparent knowledge professed by the Tribunal about Falun Gong. Counsel referred to SZFNP v MIMA (2006) FCA 1527 (“SZFNP”) in this regard. What Tamberlin J said in paragraph [8] in that decision was:
“In this case, the information relied on concerned a class - namely Falun Gong practitioners - and therefore it did not have to be disclosed to the appellant. However, I do consider that in this type of case it is appropriate to inform an applicant, where such questions can be used or might be used to reject the witness as a credible witness, of the source of the teaching so that the applicant may have a chance to challenge the information. I note that in this case the member squarely put the contention to the applicant that there were five movements and not eight and did raise the question of the colours of the Falun Gong symbol, thereby giving the appellant the opportunity to answer.”
It should be noted that in that case and on those facts Tamberlin J found there was no jurisdictional error.
Ground 5 was not the subject of extensive submissions and was conceded to be essentially taken up in the other grounds already advanced.
Counsel for the First Respondent laid particular emphasis on the decision of the Full Court of the Federal Court in SBCC v MIMA (2006) FCAFC 129 (“SBCC”). This was another claim involving a person who claimed to be a member of the Falun Gong. The Court relevantly said:
“45. Whatever reservations might properly be held about the exploration of a person's religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person's claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground. Here there was ample ground for the Tribunal to find that the appellant's case was fabricated and, a fortiori that it could not be satisfied as required by s.91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be refugee.
46.    The second ground of appeal was said to go to the ‘apparent imposition by the Tribunal of a standard that it imposed as to the requisite level of Falun Gong doctrine that might attract Falun Gong status’. There was, it was said, no evidence before the Tribunal to indicate any cut‑off point for an acceptable minimum level of knowledge for a Falun Gong practitioner.
47.    The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case.
48.    Any criticism of the process of the Tribunal's reasoning to a finding on credit does not expose jurisdictional error. It is also to be borne in mind that the Tribunal's assessment of credit in this case was based on more than just the appellant's level of knowledge of his professed religion.
49.    The second ground of appeal as formulated is also based upon the assumption that the Tribunal held that ‘every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion’. This was not a proposition enunciated or implied in the Tribunal's reasons.”
Counsel in effect submitted that the Tribunal had done no more than inquire into the issue that it was required to determine, namely whether the Applicant was a Falun Gong practitioner, and had not in fact imposed any arbitrary doctrinal standard on him.
Insofar as the natural justice point was raised, Counsel for the First Respondent submitted that the observations of Tamberlin J in SZFNP were obiter, and pointed to the fact that even in that case Tamberlin J did not uphold the Applicant's submissions.
It should be noted that the Tribunal's decision contains a number of factual matters which are not controversial.
The Applicant was born on 14 February 1968 in Fujian province of China. He had eight years' education in China and worked in China as a self‑employed manager of a petrol station from 1986 to 1994 and in a factory as a manager from October 1994 to October 1996. From July 1997 to July 1998 he was trading in Burma.
The Applicant stated that he left China legally and had no problems leaving the country. In July 1998 he came to Australia for the first time and left on 30 July 1998. He returned to Australia on 7 October 1998 and left on 9 November 1998. He arrived back in Australia again on 26 December 1998. He arrived in Australia on a business visa. He lodged his application for a protection visa on 30 November 2000.
The Applicant's position was that he had been a Falun Gong practitioner in China prior to departing for Burma. At that time the Chinese government had not banned the Falun Gong organisation. He asserted he became involved with Falun Gong in 1996 while operating his own business. He began to practice Falun Gong in public parks about once a week.
The Applicant also stated that on 26 December 1998 he travelled to Australia on a visitor visa and decided to apply for refugee status in July 1999 when China began its crackdown on Falun Gong members.
The Applicant stated that after 2001 he had begun to increase his practice of Falun Gong to once every two to three days in the morning. He had since 2001 participated in a number of protests against the Chinese government's treatment of Falun Gong, the biggest being in Canberra in June 2006.
At CB 305 to 307 the Tribunal recorded matters put by the Tribunal to the Applicant about the extent of his Falun Gong beliefs, understanding and practice. The Tribunal was not satisfied with the Applicant's responses and on 1 September 2006 the Tribunal sent the Applicant, via his adviser, a section 424A letter. The terms of that letter and the response thereto are at CB pages 308 to 310.
In respect to some detailed inquiries by the Tribunal in the s.424A letter about matters going to the Applicant's knowledge of Falun Gong the Applicant relevantly replied:
“The applicant states that he believed he gave a satisfactory explanation of his understanding of Falun Gong at the hearing. The applicant states that he thought he had given a more than adequate response to the Tribunal's questions. Any apparent gaps in his academic knowledge of Falun Gong can be attributed to his low literacy.”
It is plain that the Tribunal had before it a substantial amount of country information and a certain amount of background knowledge of its own about Falun Gong. This was, as Tamberlin J pointed out in SZFNP, material about the class of persons to whom the Applicant belonged and to which it was not necessary therefore for the Tribunal to give the Applicant specific notice. Nonetheless, as was apparent with the case in SZFNP, the Tribunal did so.
In the ultimate, the Tribunal formed an adverse credit view of the Applicant. It did not accept his evidence about the incident to do with taking bibles into Burma (which I have not traversed in these reasons, but in respect of which the Tribunal's reasoning seems to me to be cogent) and considered the Applicant's "very basic and limited understanding of Falun Gong practices".
While the Tribunal did refer at CB 326 to "His understanding and limited knowledge of Falun Gong was not what would have been expected of a practitioner who claims he has been practising this for 10 years and has been active in it in Australia", I do not think that, taking the reasons as a whole, it can be fairly said that the Tribunal had erected some immutable criteria of its own as to being a true Falun Gong believer against which it judged the Applicant. Rather it judged the Applicant on what he said against what the Tribunal's knowledge and understanding of Falun Gong is.
As explained by the Federal Court in SBCC, this process does not reveal any jurisdictional error. The Tribunal was well seized of the issue it was required to address, and did so.
It should further be noted that at CB 326 the Tribunal refers to inconsistencies in the Applicant's materials as to his religion (originally claimed to be Christian) and his education (his original application having asserted that he attended secondary school, when he claimed not to have done so).
This was a case in which the Tribunal was required to decide whether or not it believed the Applicant. In my view, the Tribunal conducted a proper assessment of the Applicant's credit and did not impose some preconceived, inappropriate, arbitrary criteria of its own, in the manner suggested by Gray J to be improper in Wang.
It accordingly follows that the application must be dismissed and the Applicant must pay the First Respondent's costs.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate: Brooke Evans

Date: 19 April 2007