SZJBX v Minister for Immigration

[2007] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJBX v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 193

MIGRATION – Application to review decision of Refugee Review Tribunal – whether Tribunal ignored or overlooked evidence – whether Tribunal misconstrued s.91R(3) of the Migration Act.

Migration Act 1958, ss.91R, 430
Migration Legislation Amendment Bill (No.6) 2001

Addo v Minister for Immigration & Multicultural Affairs [1999] FCA 940
Kalala v Minister for Immigration & Multicultural Affairs (2001) 114 FCR 212
Rajaratnam v Minister for Immigration & Multicultural Affairs (2000) 62 ALD 73
Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407
SAAS v Minister for Immigration & Multicultural Affairs [2002] FCA 726
SAAS of 2001 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 340

Applicant: SZJBX

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG1999 of 2006

Judgment of: Barnes FM

Hearing date: 6 February 2007

Date of Last Submission: 6 February 2007

Delivered at: Sydney

Delivered on: 8 March 2007

REPRESENTATION

Counsel for the Applicant: Mr B. Zipser

Counsel for the Respondents: Mr J. Smith

Solicitors for the Respondents: Blake Dawson Waldron

ORDERS

1. That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1999 of 2006

SZJBX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal handed down on 6 July 2006 affirming a decision of a delegate of the first respondent not to grant the applicant a protection visa. 

2. The background to this application is that the applicant, a citizen of the People’s Republic of China, arrived in Australia in June 2001 and lodged an application for a protection visa.  He claimed to fear persecution based on his activities as a practitioner and organiser of Falun Dafa in the People’s Republic of China.  His application was refused and he sought review by the Tribunal by application lodged on 13 August 2001.  On 5 August 2002 the applicant attended a Tribunal hearing (the first Tribunal hearing).  On 25 August 2002 the Tribunal made a decision affirming the delegate’s decision not to grant the applicant a protection visa (referred to for convenience as the first Tribunal decision). 

3. In October 2002 the applicant commenced proceedings in this Court seeking judicial review of the Tribunal decision.  His application was dismissed in June 2003.  In January 2006 he made a further application to this Court and in March 2006 consent orders were made by the Court remitting the matter for reconsideration. 

4. The reconstituted Tribunal invited the applicant to attend a second Tribunal hearing.  He did so on 13 June 2006.  In addition, in May and June 2006 the applicant provided a number of documents to the Tribunal in support of his claims, including statutory declarations, a personal statement, details of his participation in Falun Gong activities in Australia, comments on the decision of the first Tribunal, a number of statutory declarations from others in relation to his Falun Gong activities in Australia, information in relation to the treatment of Falun Gong practitioners in China as well as a letter of support from the Falun Dafa Association of New South Wales.

5. On 6 July 2006 the Tribunal handed down a decision affirming the delegate’s decision not to grant the applicant a protection visa.  It is this decision that is the subject of these proceedings. 

6. In its reasons for decision the Tribunal referred to the earlier Tribunal and judicial review proceedings.  The Tribunal stated that it had before it the Department’s file relating to the applicant, had had regard to the material referred to in the delegate’s decision and also that it had before it the applicant’s application to the Tribunal for review and the documents and materials submitted in support of that application.  The Tribunal summarised the claims made by the applicant in his application for a protection visa and accompanying statement, in a letter to the Minister dated 4 July 2005, in submissions made to the first Tribunal “prior to his first Tribunal hearing” and information provided at that time.  It listed the information provided to the second Tribunal from the applicant and the claims made therein.  It also described the oral evidence given at the second hearing. 

7. In the findings and reasons part of its decision the Tribunal summarised the applicant’s claims as in essence a claim that he left China and feared to return there because he was persecuted.  He claimed to fear further persecution because of his Falun Gong practices and activities in both China and Australia. 

8. The Tribunal agreed that independent country information supported in a general way the applicant’s claims about persecution of Falun Gong practitioners by PRC authorities (including sometimes, practise at home where that was brought to the attention of police or party officials).  The Tribunal accepted that the applicant was a citizen of China and had been involved in Falun Gong practice, study and activities in Australia from about mid-2004 onwards as claimed.  However it did not accept as true his claims that he was a Falun Gong practitioner and organiser and was involved in Falun Gong practice/activities in China as claimed or that he had engaged in any such activities in Australia prior to mid-2004. 

9. The Tribunal dealt with specific aspects of the applicant’s claims in relation to his activities in China.  It rejected his claim that he had arranged for the printing and distribution of propaganda pamphlets, that he put up posters in September 2000 or at any time, that he was reported to authorities for Falun Gong or anti-government activities, that his house was searched by authorities in China after he left and his wife questioned and held by the authorities.  It did not accept that the applicant went into hiding at any time in China to avoid harm from authorities for Falun Gong or anti-government activities.  Thus, the Tribunal did not accept that the applicant left China for the reasons he claimed.  Further, it did not accept that he could not or would not return to China because he feared persecution there for the reasons he claimed. 

10. The Tribunal stated that the reason it did not accept the applicant’s claims and found against him in relation to such claims was that it did not accept that he was a witness of truth.  The Tribunal referred to a number of factors.  In particular it stated:

    Even allowing for the fact that the applicant may have been nervous/apprehensive at the hearing, which is understandable, in the Tribunal’s view the way that the applicant gave his evidence, in particular his mistakes and confusion about when events that were very important to his claims occurred, indicates that he was having difficulty remembering what he had included in the prepared statement/documents that he gave to the Tribunal rather than that he was trying to give a truthful account of events as he recalled them.

11. The Tribunal gave examples of its concerns about the manner in which the applicant gave evidence at the (second) Tribunal hearing, it referred to particular inconsistencies between his oral evidence and written evidence he had provided to the Tribunal in 2006 and gave examples of confusion in his evidence at the hearing.  Thus, in relation to the applicant’s claims at the second hearing about the time at which he went to Beijing to protest about Falun Gong, the Tribunal recorded that the applicant had initially said that he led a group to Beijing in June 2001.  When the Tribunal reminded the applicant that he was in Australia in June 2001 he had stated that this occurred in June 1999.  When the Tribunal contrasted this claims with the applicant’s written statement dated 16 May 2006 (which referred to April 1999) the applicant said that he went to Beijing in April and that he was confused.  The Tribunal also referred to the applicant’s confusion about when he obtained his passport.  In that context the Tribunal accepted that:

    details including dates, can become blurred over time but these events were very important to the applicant – he claims in his statement that the protest that started the political persecution of Falun Gong practitioners and that “this persecution is still going on today

12. The Tribunal considered that given the importance of these events to the applicant and the fact that he had only recently prepared statements about them, if such events had occurred as the applicant had claimed, he would not have been confused at the hearing about the details in the way that he was.

13. The Tribunal also found that the applicant’s claims about involvement with printing/distribution of pamphlets and putting up posters about Falun Gong in China in 2000 was not plausible, given his evidence earlier in the second hearing that after July 1999 he practised Falun Gong “sometimes, occasionally, secretly at home because public Falun Gong activities were forbidden.”  It had regard to the applicant’s explanation for what he meant by “occasionally” but did not accept that this was a reasonable explanation for “why he would go from practising secretly because public activities were forbidden to putting up posters and printing/distributing propaganda pamphlets about Falun Gong.” 

14. The Tribunal also found the fact that the applicant lived with his family at his usual address (where he had lived for about twenty years) until he left China to come to Australia inconsistent with his claims that he was of interest to and feared the authorities.  It continued: 

    Despite his statement at paragraph 7 of his personal statement made 16 May 2006 that he was in hiding from December 2000, the applicant’s oral evidence to the Tribunal when it asked him at the hearing, on more than one occasion, where he was living in China just prior to coming to Australia, was that he was living at his usual address in Harbin with his family.  The Tribunal notes that the applicant’s oral evidence to the Tribunal is that his wife and daughter are still living in China, his wife is running a business and his daughter is studying.  The Tribunal does not accept as true that the applicant was in hiding in China from December 2000 until a few days before he came to Australia because he feared harm from Chinese authorities due to Falun Gong/anti government activities; in the Tribunal’s view the applicant invented this claim to assist his claims for protection.  It was only when the Tribunal asked the applicant at the hearing how he managed to live at his usual address with his family if he was persecuted in China that he stated that he hid.  The Tribunal does not consider that, in the circumstances of this hearing which was about the applicant’s claims that he was persecuted in China, the applicant’s explanation reasonably explains the inconsistency in his evidence about where he was living just prior to coming to Australian –  by way of explanation he said that in China when you are asked for your address you are being asked if you have moved and he had not done so, this was still his home address.

15. Further, the Tribunal found that the applicant’s claims as to persecution and feared persecution were inconsistent with his oral evidence that just prior to coming to Australia he had been working at his usual job where he had worked for the last seven years.  It had regard to the fact that when questioned about this the applicant claimed that he went on leave and that the company sent him on a business trip.  However the Tribunal found that this indicated that the applicant was working for the company just prior to his journey to Australia and that this explanation was not consistent with his claims of persecution in China. 

16. The Tribunal then addressed the applicant’s claims to have been involved in Falun Gong activities in Australia as follows:

    The Tribunal accepts that the applicant has been involved in the Falun Gong activities and practise in Australia that he claims to have been involved in after about mid 2004.  The Tribunal accepts the evidence of the applicant’s witness and the evidence contained in the various statutory declarations given to the Tribunal about this issue.  The Tribunal does not accept that the applicant practised Falun Gong in Australia before his public practice and activities began in Australia in about June/July 2004.  Apart from the applicant’s assertions which the Tribunal does not find credible, there is no evidence that he did so.  The Tribunal does not accept as true or plausible the applicant’s evidence that he practised in Australia at home only before that time, for about three years from June 2001 until July 2004, because he was afraid for his family as he did not know whether there were spies in Australia and because he was injured in an accident in 2003.  In the Tribunal’s view the applicant also did not provide a plausible explanation as to why he had such a change of heart about practising in public after mid 2004; after that time not only did he practise in public places but he practised on many occasions outside the Chinese Consulate.  The evidence before the Tribunal indicates that the applicant only practised Falun Gong in Australia after he knew that his applications for protection and review and had been refused and he was told by his agent that he could appeal to the Federal Court.  It is clear from the applicant’s statutory declaration made 16 May 2006 sent to this Tribunal on 22 May 2006 that he knew about the Department’s decision and the Tribunal’s decision and that he could appeal to the Federal Court from his agent before mid 2004.

    Subsection 91R(3) of the Act provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.  The Tribunal is not so satisfied on the evidence before it and disregards the applicant’s Falun Gong practise and other Falun Gong activities in Australia under subsection 91R(3). 

17. The Tribunal found that having regard to all the evidence before it: “the applicant will not practise Falun Gong if he returns to China” and that “In the Tribunal’s view there is no plausible evidence before it that the applicant was/is a genuine Falun Gong practitioner and will suffer persecution from authorities in China either now or in the reasonably foreseeable future for Falun Gong practice/activities if he returns to his country”.  The Tribunal was not satisfied on the evidence before it that the applicant had a well-founded fear of persecution in China within the meaning of the Refugees Convention. 

18. The applicant sought review of the second Tribunal decision by application filed in this Court on 20 July 2006.  He relies on an amended application filed in Court on 6 February 2007.  There are two grounds in the amended application. 

Overlooked evidence issue

1. The first ground is that the Tribunal erred in ignoring or overlooking oral evidence the applicant gave to the first Tribunal hearing on 5 August 2002. 

2. It was submitted that the Tribunal fell into error because it had no regard to the evidence given by the applicant to the first Tribunal hearing in 2002.  It was pointed out that in the claims and evidence part of the reasons for decision the Tribunal had listed the material to which it had regard but made no mention of the oral evidence the applicant gave to the 2002 Tribunal hearing.  Nor did it refer to such evidence in the findings and reasons part of its decision.  It was submitted that the fact that the Tribunal referred to having the Department’s file, the application to the Tribunal for review and the documents and material submitted in support of that application before it, did not indicate that the Tribunal had had regard to the oral evidence given by the applicant at the first Tribunal hearing. 

3. It was noted that in describing the evidence before it the Tribunal had listed all the documentary evidence provided prior to and at the time of the first Tribunal consideration of the matter, but pointed out that after the Tribunal described a submission provided by the applicant “prior to his first Tribunal hearing” it went on to refer to information provided to the second Tribunal from May 2006 onwards.  On this basis it was said to be apparent from the way the Tribunal set out the material to which it had regard, that it had not had regard (whether intentionally or carelessly) to the evidence the applicant gave to the 2002 Tribunal hearing. 

4. Counsel for the applicant acknowledged that the mere fact that the Tribunal had no regard to the evidence given by the applicant at the first Tribunal hearing did not of itself give rise to jurisdictional error, but submitted that where the second Tribunal’s disregard of the evidence may have affected findings made by that Tribunal against the applicant then there may be jurisdictional error. 

5. The reasons for decision of the first Tribunal are before the Court.  It was pointed out that in the first Tribunal hearing the applicant was said to have made a claim that he had been “asked to hide away for a while” in China after organising the distribution of leaflets and to have elaborated on these claims in response to Tribunal questions.  It was suggested that the applicant also told the first Tribunal that he had printed/distributed pamphlets and posters about Falun Gong in 2000 (although the first Tribunal reasons for decision record that he claimed “before he came to Australia he organised the distribution of leaflets” and that he had been “accused of printing leaflets”). 

6. On the basis of this material it was contended that there were two specific ways in which the Tribunal’s disregard of the applicant’s earlier oral evidence gave rise to jurisdictional error.  The first related to the fact that the Tribunal stated in the findings and reasons part of its decision “It was only when the Tribunal asked the applicant at the hearing how he managed to live at his usual address with his family if he was persecuted in China that he stated that he hid”. 

7. It was said that the way in which the Tribunal expressed itself suggested that in the Tribunal’s mind this was the first occasion on which the applicant had stated that he hid and hence that the applicant’s evidence suggested recent invention.  The Tribunal was said to have expressed the view that the claim that the applicant was in hiding in China from December 2000 until a few days before he came to Australia (in June 2001) because he feared harm from the Chinese authorities due to Falun Gong/anti-government activities had been invented to assist his claims for protection.  The Tribunal reasoning in this respect was said to be part of the reason why the Tribunal had made the adverse credibility finding in relation to the applicant. 

8. However it was submitted that as it was relevant and clearly probative that the applicant had given similar evidence to the Tribunal in 2002 (according to the first Tribunal account of what had occurred in that Tribunal hearing) before reaching its conclusion in relation to such evidence the Tribunal was obliged to have regard to the earlier evidence and that its failure to do so amounted to jurisdictional error.  It was suggested that if the Tribunal had been aware of or taken into account the earlier evidence in this regard it may have believed the applicant’s account of events. 

9. The second complaint relates to the fact that the applicant gave evidence to the 2006 Tribunal that he printed/distributed pamphlets and posters about Falun Gong in 2000, but the Tribunal rejected this claim.  It was acknowledged that it did so on the basis of inconsistency in evidence rather than recent invention, but contended that the fact that the applicant gave the same evidence to the 2002 Tribunal was relevant to whether the claim was true. 

1. Counsel for the applicant conceded in oral submissions that if the Court rejected his contentions in relation to the first complaint, then the Court would also reject the contention in relation to the second complaint which had a weaker foundation.

2. It was submitted for the first respondent that the construction of the second Tribunal decision contended for by the applicant failed to take into account the entirety of its statement of reasons for decision.  

3. First, it was said that insofar as this ground rested on a contention that the Tribunal had made no express reference to the first hearing in its reasons for decision, this was not the case.  It was pointed out that although the Tribunal did not describe the evidence at the hearing, the Tribunal referred to a submission made “prior to [the] first Tribunal hearing”.   

4. It was submitted in relation to the Tribunal statement: “It was only when the Tribunal asked the applicant at the hearing how he managed to live at the usual address with his family if he was persecuted in China that he stated that he hid” that the Tribunal did not make a finding of recent invention, but rather had regard to internal inconsistencies in the applicant’s evidence at the second Tribunal hearing. 

5. It was said to be clear, when the decision was read as a whole, that the Tribunal was aware of the entirety of the proceedings before the first Tribunal, including the fact (to which it specifically referred) that there had been a prior Tribunal hearing.  It was also pointed out that the Tribunal had stated that it had before it “the applicant’s application to this Tribunal for review and the documents and materials submitted in support of that application” and submitted that it was clear that the Tribunal had before it the first Tribunal’s file which contained the first Tribunal’s decision summarising the evidence given at the first hearing. 

6. In light of this it was contended that the only conclusion that could properly be drawn from the absence of reference to the evidence given at the first hearing was that it did not form the basis for a material finding of fact by the Tribunal. This was said to be consistent with the fact that there is no obligation on a Tribunal to mention any evidence or other material in its statement of reasons, unless it forms the basis for a material finding of fact made by it (see s.430(1)(d) of the Migration Act 1958 (Cth) and Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407).

Reasoning

1. First, as contended for the first respondent, it is clear when the Tribunal reasons are read as a whole that in considering the applicant’s claim that he hid in China, the Tribunal did not make a finding of recent invention in the sense of a claim that could have been, but was not, raised at an earlier time.  It is relevant to note that, according to the Tribunal, at the second hearing the applicant claimed that just before he came to Australia (in June 2001) he was working for a state-owned company as a manager, that he had worked there for seven years and that he was still employed there when he came to Australia.  The applicant went on to tell the Tribunal that: “just before he came to Australia he was living at an address in [a particular place in China] which he gave to the Tribunal.  He said that the address was the family home and he had lived there for about 20 years”. 

2. The Tribunal recorded that later in the hearing it asked the applicant how he managed to live at his usual address and work at his usual job if he was persecuted in China and that he said that he hid from December 2000.  The Tribunal continued: “The Tribunal told the applicant that this was contrary to the evidence that he had given earlier in the hearing – and the Tribunal had asked him twice about it – that he was living at his usual home address and working at his usual job before he left to come to Australia.”  The applicant was given and took the opportunity to provide an explanation for this inconsistency in his evidence at the second hearing (that he had told the company that he needed time off and that it was “difficult because he had a different way of saying things; in China if you say you live at an address it means that you have not moved.  In relation to the job it is the same; he had asked for leave from his job”).  The Tribunal recorded that the applicant claimed that he had hidden at a relative’s house about 300 kilometres away and that he was there for half a year, returning home three to four days before he left for Australia.  The Tribunal then raised with the applicant its concern about his credibility.  It also raised with him his failure to recall details included in his “recently” prepared May 2006 documents. 

3. With this background it is relevant to have regard to the actual findings of the Tribunal on this issue.  The Tribunal did not simply make the statement about when the applicant claimed he had hidden.  First, it found that it did not accept that the applicant was a witness of truth.  It gave reasons for that finding, referring to the way the applicant gave his evidence in the second Tribunal hearing.  It found that even allowing for the understandable fact that the applicant may have been nervous/apprehensive at the (second) hearing:

   the way the applicant gave his evidence, in particular his mistakes and confusion about when events that were very important to his claims occurred, indicates that he was having difficulty remembering what he had included in the prepared statements/documents that he gave to the Tribunal rather than that he was trying to give a truthful account of events as he recalled them.

4. The Tribunal then rejected the applicant’s claims about his involvement with the printing and distribution of pamphlets and putting up of posters in 2000 as implausible.  Again it referred to a lack of plausibility in his evidence at the second hearing.

5. The Tribunal next found that it was not consistent with the applicant’s claims that he was of interest to the authorities and feared persecution that he was living with his family at his usual address where he had lived for about 20 years up until he left China to come to Australia.  Importantly, the Tribunal acknowledged the fact that the applicant had made a claim prior to the second Tribunal hearing that he was in hiding from December 2000.  It referred to his statement to that effect in his personal statement made 16 May 2006. 

6. In that context the Tribunal considered the applicant’s oral evidence in the second Tribunal hearing and the fact that when the Tribunal asked the applicant on more than one occasion where he was living in China just prior to coming to Australia his evidence was that he was living at his usual address in the town in China in which he lived with his family.  The Tribunal also noted that the applicant’s oral evidence was that his wife and daughter were still living in China, that his wife was running a business and his daughter was studying.  The Tribunal stated that it did not accept “as true” that the applicant was in hiding in China from December 2000 until a few days before he came to Australia because he feared harm from the authorities due to his activities stating “in the Tribunal’s view the applicant invented this claim to assist his claim for protection”.  It then made the statement with which the applicant takes issue, that it was “only” when the Tribunal asked the applicant at the hearing how he managed to live at his usual address with his family if he was persecuted in China that he stated that he hid.  However the Tribunal went on to state:

   The Tribunal does not consider that, in the circumstances of this hearing which was about the applicant’s claims that he was persecuted in China, the applicant’s explanation reasonably explains the inconsistency in his evidence about where he was living just prior to coming to Australia – by way of explanation he said that in China when you are asked for your address you are being asked if you have moved and he had not done so, this was still his home address. 

7. As contended for the first respondent, when the sentence in issue is read with the preceding material and the subsequent sentence it is clear that this gives context to the words “it was only”.  The Tribunal did not suggest that the applicant had not claimed to have hidden in China.  Rather it found that he had given internally inconsistent evidence at the second hearing that was also inconsistent with his “recent” written evidence of 16 May 2006.  In other words the Tribunal did not reject this evidence because it was a recent invention, but rather regarded it as another instance of the inconsistent evidence in the second Tribunal hearing that led the Tribunal to find the applicant to be untruthful.  In these circumstances the premise that the first Tribunal finding in issue was predicated on recent invention is not established. 

8. Moreover, the Tribunal was not in these circumstances under an obligation to describe or refer to other evidence given at the first Tribunal hearing.  It was clearly aware that there had been such a hearing.  It referred to a written submission and information provided by the applicant “[p]rior to his first Tribunal hearing.”  It is clear that it can be inferred from the absence of reference to the evidence at the first hearing in the Tribunal reasons for decision that such material did not form the basis for a material finding of fact.  This is also consistent with the fact that the Tribunal gave reasons based on matters other than what occurred in the first hearing.   

9. Nor is the complaint made by the applicant in relation to his evidence that he printed/distributed pamphlets and posters about Falun Gong in 2000 made out.  The Tribunal did not make a finding of recent invention in relation to the claims about printing and distribution of pamphlets and posters: Addo v MIMA [1999] FCA 940 at [24] and [31]; Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at 416. It did not have to refer to evidence that supported a finding that the Tribunal did not make.

10. It is clear that the Tribunal rejected the oral evidence in relation to the claims about the printing and distribution of pamphlets and posters about Falun Gong in 2000, not on the basis that it was a recent invention, but rather because it was not plausible, given the applicant’s earlier evidence in the same Tribunal hearing that after 1999 he practised Falun Gong secretly and because he was not able to provide a reasonable explanation for why he would go from such secret practice (because public activities were forbidden) to putting up posters and distributing propaganda pamphlets about Falun Gong.  In these circumstances the Tribunal was under no obligation to refer to the oral evidence at the first hearing.  No jurisdictional error is established on the basis contended for in ground 1. 

Section 91R(3) issue

1. The second ground relied on in the amended application is that the Tribunal fell into jurisdictional error in its construction and application of s.91R(3) of the Migration Act 1958 (Cth). Section 91R(3) provides:

   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.

2. It was contended for the applicant that the Tribunal erred in its consideration of the applicant’s activities in Australia.  It was noted that the applicant had provided a substantial amount of documentary evidence in support of his claims about his practice of and participation in Falun Gong activities in Australia and that his claim extended to involvement at least two nights a week and in protests in Sydney and Canberra.  However the Tribunal found that it did not accept that the applicant had practised Falun Gong in Australia before his public practice and activities began in about June/July 2004, although it accepted that he had practised Falun Gong as claimed after that time. 

3. It was acknowledged that the Tribunal correctly set out the test in s.91R(3) in stating:

   Subsection 91R(3) of the Act provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister (or the Tribunal on review) that he or she engaged in the conduct otherwise than for the purpose of strengthening his or her claim to be a refugee.

4. However, it was contended that given that it is recognised in s.91R(1) that a person can do an act or engage in conduct for more than one reason or purpose, and that s.91R(3)(b) contains the term “the” purpose, rather than “a” purpose, the proper construction of s.91R(3)(b) is as follows:

   (a) where a person engages in conduct for a single purpose and the purpose is to “strength(en) the person’s claim to be a refugee” the preconditions for the operation of s 91R(3) are satisfied and the Minister must disregard the conduct engaged in by the person

   (b) where a person engages in conduct for more than one purpose, even if one of the purposes is to “strength(en) the person’s claim to be a refugee”, the preconditions for the operation of s 91R(3) are not satisfied and the Minister is not permitted to disregard the conduct engaged in by the person. 

5. In essence the applicant submitted that for the person to satisfy the Minister that the person engaged in conduct otherwise than for the purpose of strengthening that person’s claim to be a refugee, it was only necessary for the person to establish that there was more than one purpose for the conduct, one of which was other than for the purpose of strengthening his or her claim to be a refugee. 

6. It was suggested that in addressing this issue in the following statement “The Tribunal is not so satisfied on the evidence before it and disregards the applicant’s Falun Gong practice and other Falun Gong activities in Australia under subsection 91R(3)” the Tribunal did not apply the correct construction of s.91R(3) and that if the Tribunal had understood the construction of s.91R(3) one would have expected a more detailed consideration of the considerable evidence put before the Tribunal by the applicant as to his involvement in Falun Gong practice and activities since mid-2004. It was said that a real question would arise as to whether, even if the applicant was motivated in part by the purpose of strengthening his claim to be a refugee, he was also motivated in part by an interest or belief in Falun Gong or the Falun Gong cause.

7. Hence, according to the applicant, in circumstances where there was evidence supporting the proposition that the applicant was motivated by multiple purposes, the Tribunal’s failure to address this matter suggested that it had overlooked the matter and fallen into jurisdictional error (see Kalala v MIMA (2001) 114 FCR 212 at [23] and Rajaratnam v MIMA (2000) 62 ALD 73 at [45]). It was suggested that the brevity of the Tribunal’s reasoning process (in what was said to be a mere “ten words or so” which addressed this issue) indicated that it had overlooked the issue of multiple purposes and misconstrued or did not understand the construction of s.91R(3) and its task.

8. It was also submitted for the applicant that the decision in SAAS v MIMA [2002] FCA 720 (in which Mansfield J was said to have suggested that the applicant must satisfy the Tribunal that strengthening a claim for protection played no part in actions undertaken by the applicant in Australia) was distinguishable because in that case the Tribunal had found that the applicant engaged in the conduct in issue for a sole purpose and was satisfied that his sole motivation was to create a sur place claim. 

9. Counsel for the first respondent took issue with the applicant’s suggested construction of s.91R(3), suggesting (consistent with what was said to be the approach taken by Mansfield J in SAAS at [55] which was upheld on appeal in SAAS of 2001 v MIMA [2002] FCAFC 340 at [15]) that in order to come within s.91R(3) the applicant must satisfy the Tribunal that strengthening a claim for protection played no part in actions undertaken by the applicant in Australia. It was said that this interpretation also accorded with the plain English meaning of the provision and met its purpose, which was to address the situation where applicants intentionally raised a risk of persecution (as discussed in the explanatory memorandum to the Migration Legislation Amendment Bill (No 6) 2001 which introduced s.91R(3)).

10. In any event, it was submitted for the respondent that even if the construction of s.91R(3) put forward by the applicant was correct, the issue did not arise in the present case as the Tribunal’s findings made it clear that it was not satisfied that the applicant’s conduct in Australia was not engaged in wholly for the purpose of advancing the applicant’s claim for protection.

Reasoning

1. For the reasons set out below I agree that, as contended for by the first respondent, the Tribunal findings do make it clear that it was not satisfied that the conduct of the applicant in Australia was not engaged in wholly for the purpose of advancing his claim for protection. Hence it is not necessary in these proceedings to determine whether either suggested construction of s.91R(3) is correct, as on either view no jurisdictional error is established.

2. The Tribunal conclusion in relation to s.91R(3) should not be taken to be the full event of its consideration of that issue. Its conclusion must be seen in light of the whole of the Tribunal reasons for decision. It is notable that the Tribunal found that the applicant was not a credible witness. Thus the Tribunal rejected the applicant’s claims that he was a Falun Gong practitioner or an organiser or that he had been involved in Falun Gong practice and activities in China and also his claims about harm that he claimed to have suffered in China or that he left China for the reasons that he claimed.

3. It then had regard to what had occurred in Australia.  It accepted that the applicant had been involved in Falun Gong activities and practise in Australia after about mid-2004 and the evidence of his witness and the statutory declarations provided to the Tribunal about such practise and activities.  However the Tribunal rejected the applicant’s claim that he had practised Falun Gong in Australia before his public practice and activities began in about June or July 2004 (that is from his arrival in mid-2001 to mid-2004).  It found that apart from the applicant’s assertions (which the Tribunal did not find credible), there was no evidence that he did so.  The Tribunal addressed its concerns about the plausibility of the applicant’s assertions in this regard and with his explanation for why he claimed he had engaged in private practice in Australia before mid-2004.  It also had regard to the lack of a plausible explanation as to why the applicant had a change of heart about practising in public (including outside the Chinese Consulate) after mid-2004.  It referred to the fact that the evidence indicated that the applicant only did so after he knew that his applications for protection and review had been refused, but had also been told that he could appeal to the Federal Court. 

4. These factors led the Tribunal not to be satisfied as required under s.91R(3)(b). It is clear, not only from the Tribunal’s view of the applicant’s credibility, but also from its subsequent findings relating to the future (that the applicant “will not practice Falun Gong if he returns to China” and that there was “no plausible evidence before it that the applicant was or is a genuine Falun Gong practitioner”) that the applicant did not establish to the satisfaction of the Tribunal that he had engaged in Falun Gong activities for any purpose other than for the purpose of advancing his claim for protection.  The Tribunal findings make it clear that it was not satisfied that the conduct was not engaged in wholly for the purpose of advancing the applicant’s claim for protection. 

1. I do note that in SAAS Mansfield J recognised that an applicant may develop a genuine affinity with a religion or organisation through conduct but that nonetheless the s.91R(3) reservation might not be satisfied. In particular, Mansfield J addressed an argument that s.91R(3) did not justify the Tribunal disregarding “any genuine Christian affinity the applicant developed” in the applicant’s study of Christianity, conversion and contact with clergy in Australia. 

2. In that case the Tribunal had found that an applicant had sought conversion to Christianity in Australia for the “sole purpose” of creating a sur place claim, that he had not satisfied it that he engaged in “the conduct of conversion” otherwise than for the purpose of strengthening his claim to be a refugee and that his “sole motivation” in seeking out two members of the clergy and studying Christianity with a view to converting was to create a sur place claim (see SAAS at [52]).  The Tribunal had then stated that it disregarded “all of the applicant’s claims in relation to this matter in assessing [his] claim and thus disregards any genuine affinity which the applicant may have subsequently developed for the Catholic faith as a result of his continued study and contact with [the clergy]” (SAAS at [52]).

3. It was in light of these findings that that Mansfield J found that the Tribunal had not misapplied s.91R(3), stating (at [54]) that the reservation in s.91R(3) required the applicant to have satisfied the Tribunal:

   firstly that at some point he did develop a genuine affinity with Christianity as a result of his conduct in continuing to study it and in continuing is contact with Sister Higgins and Father Monaghan, and secondly that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

4. In that context that his Honour continued at [55]:

   In my judgment, the Tribunal reasons show clearly enough that it was not satisfied that the applicant at any time studied Christianity or maintained contact with Sister Higgins and Father Monaghan for a purpose which was not, or did not include, the purpose of strengthening his claim to be a refugee sur place  (emphasis added)

5. His Honour did recognise that notwithstanding the “purpose of that conduct” as found by the Tribunal, it was possible that an applicant may develop a genuine affinity with an organisation or its beliefs (in that case, with the Christian religion).  However Mansfield J stated at [55] that the Tribunal reference to “the conduct of conversion” was not limited in time and that

   the [Tribunal] reference to ‘continued study and contact’ was not a recognition that, at some point, it was satisfied that the applicant’s conduct was not for the purpose of strengthening his claim to be a refugee.  It is to admit of the possibility that, notwithstanding the purpose of that conduct as found by the Tribunal, the applicant may nevertheless have developed genuine affinity with the Christian religion.  It is not inconsistent with that occurring that the Tribunal should not be satisfied that the applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

6. The Full Court of the Federal Court agreed that, for the reasons given by Mansfield J, it had not been established that the Tribunal had misapplied s.91R(3) (see SAAS of 2001 v MIMIA at [15]).  I am, of course, bound to follow such authority. 

7. Counsel for the applicant submitted that SAAS could be distinguished because the Tribunal in that case had found that the applicant’s “sole purpose” (of engaging in a course of conduct) was to create a sur place claim.  However it is clear that the Tribunal was of the same view in this case.  Nonetheless, it is apparent, reading the Tribunal reasons as a whole, in particular from the fact that it did not accept that the applicant “was/is” a genuine Falun Gong practitioner or that he would practise Falun Gong in China (notwithstanding his involvement in Falun Gong activities and practise in Australia after mid 2004) that the Tribunal was not of the view that the applicant had developed a genuine affinity for Falun Gong such that he became a genuine practitioner.  The issue that arose for consideration in SAAS did not arise in this case because the Tribunal was not satisfied that that applicant had developed a genuine affinity for Falun Gong. Nor was it necessary in this case for the Tribunal to address the possibility that the applicant was motivated by multiple purposes, even if that is required under s.91R(3). Hence, I am not persuaded that the Tribunal misunderstood or misapplied s.91R(3) as contended.

8. As no jurisdictional error has been established on either of the bases contended for by the applicant the application must be dismissed.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  8 March 2007