SZJTN v Minister for Immigration - [2007] FMCA 999

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZJTN v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 999

MIGRATION – RRT decision – Chinese applicant fearing persecution for political opinion – incidents of past assault and detention accepted by Tribunal – finding that not Convention related – affected by jurisdictional error – error not immaterial – matter remitted.

Migration Act 1958 (Cth), ss.36(2), 474(1), 476(1)

Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473
Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225
Attorney‑General (Canada) v Ward (1993) 103 DLR (4th) 1
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 550
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SZBYR v Minister for Immigration & Citizenship [2007] HCA 26
Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670

Applicant:

SZJTN

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG3510 of 2006

Judgment of:

Smith FM

Hearing date:

21 June 2007

Delivered at:

Sydney

Delivered on:

6 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr T Ower

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Clayton Utz

ORDERS

A writ of certiorari issue directed to the second respondent, quashing the decision of the second respondent dated 9 October 2006 and handed down on 31 October 2006 in matter 060676868.
A writ of mandamus issue directed to the second respondent, requiring the second respondent to determine according to law the application for review of the decision of the delegate of the first respondent dated 31 December 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3510 of 2006

SZJTN

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed on 27 November 2006 under s.476(1) of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 9 October 2006 and handed down on 31 October 2006. The Tribunal affirmed a decision of a delegate made on 31 December 2004, which refused to grant a protection visa to the applicant. An earlier decision of the Tribunal was set aside by consent order of this Court, for reasons which do not appear in the material before me.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) if the Tribunal’s decision is a “privative clause decision”. It is such a decision unless I am satisfied that it was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476). I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa.
The applicant arrived in Australia in November 2004, and lodged his application for a protection visa on 15 December 2004. It contained a brief typed statement, explaining reasons for seeking protection against return to the People’s Republic of China. The statement claimed that the applicant had been “a target for investigation by the Chinese authorities” by reason of his engaging in Falun Gong activities. It is unnecessary for me to set out the particular claims which were made, since their truth was disclaimed by the applicant when he attended a hearing held on 14 September 2006 by the Tribunal as reconstituted. The applicant then gave the Tribunal a different history of persecution, which explained his fears of returning to China.
In its statement of reasons, the Tribunal considered whether it should discount the truth of the applicant’s newly claimed history by reason of its inconsistency with his original statement. However, it accepted that he had been assisted by an “unscrupulous agent”, and that he had not attempted deliberately to mislead the Department or Tribunal. The Tribunal said: “I consider that the applicant has effectively resiled from the claims put forward in the protection visa application, and I will proceed to consider this application on the basis of the evidence presented by the applicant at the hearing”.
A transcript of the hearing is in evidence before me. The applicant’s claimed history emerged in response to questions from the Tribunal, which first directed him to his claim to fear persecution because he was a Falun Gong practitioner. The applicant told the Tribunal that he had started practicing Falun Gong after it was banned in 1999. He then tied his Falun Gong history, and his subsequent fears of the Chinese authorities, to previous events where he had been “prosecuted seriously by the Chinese Government”. He first referred to events following the death of his first child in 1999: (transcript p.2)
… And when did you start practising Falun Gong after it was banned by the Chinese government?
I was depressed and I lost the balance of my mind.
Can you tell me what you mean by that?
Before that I was prosecuted seriously by the Chinese Government.
You mean you were prosecuted before you became a Falun Gong practitioner.
Yes.
And why was that? What was the reason for the prosecution?
In 1999 my first child were born.
Your first child?
And because he was sick and trapped in the hospital, and he was diagnosed as malnutrition and stayed in the hospital to receive treatment.
And he had to stay in the hospital, during the time he was in the hospital he’s sickness worse and worse but after treatment he got a little bit better.
I asked the hospital to discharge him, but my request was refused, because of this I have some conflicts with the hospital, the reason the hospital didn’t discharge my child is because they have some vacancies in the hospital and they don’t have many patients it was the holidays so they were no primary doctors in the hospital, they were some student doctors, my wife happened to catch a cold and my son also got the cold but the student doctors diagnosed my son in turn and gave medicine to my son, before that my son has recovered completely, because of this my minor problem of the cold he’s caused my son, because of this little problem it lasted for couple of days, there weren’t any primarily doctors and the condition deteriorated to serious weakness of the kidney and heart and to death.
This is all because of the cold. Before that if he had recovered.
He was in the emergency room for one week, after my son died; the hospital destroyed all the history of my son.
I argued for this matter with the hospital many times, but the head of the hospital is also the director of the communist party commission.
A lot of friends came and talked to the hospital for me, and we asked for the history record of my son, because I had great doubt of his death, but they didn’t give me, a lot of my friends and relative went to the hospital with me and they called the PSB and they arrested me in the name of “disturbance of the social order”.
I just wanted to have a look at the record of the disease history of my son, and find out whose fault that caused my son’s death but they arrested me.
What happened when they arrested me [sic]?
The cemetery had my son’s body and they use the fire to burn the body, without my permission and I didn’t get the ash back.
Can you tell me what happened to you when you were arrested?
They beat me, and they beat on my face I need to stich on my face.
Were you detained by the police?
For one day.
What happened after that?
After that I went back to the hospital to find out my son’s body had been burnt and I couldn’t get the ash back and we couldn’t do anything about that, and also any family, friends and relative of mine if they dare to dig in the matter they would be arrested too.
A important issue in this case, is whether jurisdictional error is revealed in the Tribunal’s opinion that this mistreatment of the applicant, as described by him, was not persecution “for reasons of … political opinion” within the Convention definition of “refugee” as adopted by s.36(2) of the Migration Act. I shall below set out and consider its reasoning on this issue.
The applicant then referred to an earlier, 1996, incident where he had received attention from the PSB, and which the Tribunal also characterised as unrelated to a Convention reason: (transcript p.3)
Did you have any other problems with the authorities as you were resolving things?
With the authorities, yes before this matter I had conflicts in ’96.
What was this about?
Well it is because I fight for justice, I had a friend who opened a restaurant and the PSB broke the furniture of the restaurant and as a friend I argued with them for justice.
Then what happened?
Because I argued with them, 5‑6 PSB they beat me on the spot, and they said I was not a good citizen. After they beat me they put me in to the back of the car and detained me for 3 days, I spent a lot of money.
Did you have ongoing difficulties in between these incidents?
Yes since 1996 I started to have conflicts with the government, I was very innocent I just speak something for the justice.
In his further evidence, the applicant clearly related his commencing to practice Falun Gong in 2000 with his political opinions hostile to the Chinese government and its authorities. Thus:
Why did you take up Falun Gong in 2000?
I lose the balance in my mind; I wanted to be opposite to the government. (transcript p.3)
…
Because I practised Falun Gong to protesting the Government, I just read the book and help them to organise, that was very risky. (transcript p.7)
…
You said you took up Falun Gong as a way of protesting against the government.
Yes.
Why did you choose this method and not some other way of protesting?
It was a coincidence because my father was a Falun Gong practitioner and during that time the Government was arresting those people.
Did you ever protest against the arrest of Falun Gong practitioner?
Yes I did.
Where did you do that?
You mean protest? No I didn’t, I only just practised.
Well if your purpose was to show your opposition to the Government, wouldn’t it be more effective to do that by protesting against the treatment of Falun Gong practitioners, rather than just practising Falun Gong?
Well it was not my purpose to let the government know it was just I lost the balance in my mind was not comfortable about the Government so I practise Falun Gong as a behaviour of against protesting behaviour. (transcript p.8)
The applicant explained to the Tribunal that his involvement with Falun Gong was relatively brief, as a result of incurring a third episode of attention from Chinese government authorities. He said: (transcript p.4)
When was the last time you practise Falun Gong?
2000.
You only just said you started practising Falun Gong in 2000.
Yes, but after I started not after a long time the event happened.
What event?
I was arrested; my father and myself were arrested at the same time.
And why were you and your father arrested?
Because practising Falun Gong.
And what happened when you were arrested?
That is what the Chinese government is, it was so called “study class” but it was even worse than jail.
How long did you have to attend “study class” for?
For one month.
And why were you released?
One month and my colleague and my leader of my company sponsored me.
And what about your father?
For two months.
How long did you actually practised Falun Gong?
2 to 3 months? 1 to 3 months? 2 months.
How long did you practise during this 2 months?
We had a assemble for a few times.
Where about?
In the homes of those who practised Falun Gong.
And did you practise after you were detained?
No.
What months were this in 2000 you were sent to “study class”.
October 2000.
So you haven’t done Falun Gong after October 2000.
I dare not to, because I was sponsored by the leaders and colleagues of my company, if I practise it again they will be involved into the trouble.
The applicant claimed that, after this detention, the members of the “study section” were monitored regularly, and that between 2002 and 2004 his house was searched. He claimed that in one search in 2002 a Falun Gong book was found.
He said that he had travelled to Korea in 2002 “to seek the opportunity to go to a further place … which … respects the human rights, such as United States”, and returned without incurring difficulties. It then took him another two years to arrange his travel to Australia via Thailand.
He explained why he had not attempted to become involved in Falun Gong while in Australia, and his fears of returning to China: (transcript pp.4, 7, 8)
Why, what do you think would happen if you went back to China now?
Would be very bad, it is possible that some rumour had spread through in my local place saying I had conducted an even bigger Falun Gong overseas.
You say it is possible some rumours had spread, why do you think that would be so?
In the past, I was under supervision because I was prosecuted before, the rumour if I return I would face with something worse.
Why do you think this rumour has spread around your town?
Because I have contacts with my family and relatives, and the local PSB also ask them where I have gone to, and they said I was anti‑government activist.
Do you practise Falun Gong here in Australia?
No I didn’t.
Why not?
I dare not to.
Why?
I heard from my friend, many people who practise Falun Gong here, their families in their home country would face worse prosecution.
Never less, many people do practice Falun Gong here in Australia that has families in China.
Because I was frightened by the experience in my country.
…
I don’t believe that the Chinese authorities would of [sic] let you leave the country twice and come back without bothering you if you were really an interest to them.
This I don’t know why.
This had suggested that the Chinese government monitor the Falun Gong practitioner overseas very closely, seems to me that the Chinese authorities would be aware if you were practising Falun Gong here.
That’s the reason I dare not to practise here, because I heard from my friend.
Well it seems to me given the close monitoring of Falun Gong practitioner that goes on here authorities would know that you weren’t practising here.
But I was afraid.
You see the experience of the two incidents happened in China that had to cost me lots of trouble and that government can do anything, how dare I go back.
Well I have difficulty understanding why you would have any problems if you went back.
There was rumour from my friends we, I was prosecuted before I was scared to go back.
Is there anything else you want to tell me about the reason why you think you’re a refugee?
No.
…
Well it seems to me that [sic: if] you left China because you were afraid that you would be prosecuted, you would do everything you could to make sure you could stay here, and it seems to me that would include taking great care over the preparation of your protection of these [sic] application to make sure that the information here are correct.
As a new comer I didn’t know anything; for a few times after I came to Australia, I wanted to join the Falun Gong to practise Falun Gong but I dare not cause I was afraid my family would get harmed otherwise I would be practising Falun Gong here freely.
I would say there a [sic] hundreds of Falun Gong practitioner here in Sydney who freely practise Falun Gong despite the fact they have been prosecuted in China, despite the fact they still have families in China.
Yes, they practise, but from my case I personally experience the prosecution in China, I think some of them here practise Falun Gong they actually didn’t experience the prosecution personally.
The Chinese government can do anything, and just look at the example of my son’s incident, what else do the government do, they are not to do.
In my opinion, the applicant’s refugee claims made to the Tribunal clearly raised a claim which included the elements:
i)that the applicant for some years past, and currently, held political opinions generally hostile to the Chinese government,
ii)that he had in the past been harmed when perceived by authorities to have engaged in “anti‑government” activities in the varied circumstances of his actions in 1996, 1999, and 2000,
iii)that as a result of his encounters with the Chinese authorities, he had ceased to practise Falun Gong and had avoided doing anything else in China and in Australia, which might attract the further attention of the Chinese authorities, and
iv)that he continued to be at risk of further persecution as a reputed “anti‑government activist” if he returned to China.
Faced with the above refugee claim, the Tribunal was required to make findings as to the occurrence of the incidents of past persecution by the Chinese authorities, and whether they occurred for a Convention reason, so as to assess whether in the future “there was a real chance of persecution for such a reason” (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574).
Moreover, if the Tribunal accepted the applicant’s claim of past persecution for his perceived political opinions, the Tribunal was obliged to consider whether his experiences had, as he claimed, led him to repress his opinions, to cease practising Falun Gong, and to avoid any further actions in China or Australia which might risk a repetition of his persecution as a perceived political dissident. As McHugh and Kirby JJ said in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473 at [43]:
In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well‑founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.
(emphasis in original)
In the present case, the Tribunal made an unequivocal finding which accepted that “the applicant was briefly detained in 1996‑7 and 1999 in the circumstances he claims”. It was therefore obliged to consider whether this amounted to persecution for a Convention reason, before addressing the applicant’s subsequent history of commencing Falun Gong practice as a further “protest”. Its reasoning on this was:
I accept that the applicant was briefly detained in 1996‑7 and 1999 in the circumstances he claims. However, I am not satisfied, based on the applicant’s evidence, that these incidents separately or cumulatively constitute Convention persecution. I am satisfied that in both cases the applicant came to the adverse attention of the security authorities because he was either being, or perceived as being a trouble maker in the sense that he was creating a public nuisance. I am not satisfied that there was any political dimension to the treatment of the applicant, taking into account that China is an authoritarian state where actions perceived as inimical to the interests of the authorities may be perceived or treated as political dissent. When the applicant’s conduct as he described it, and the reaction of the authorities, is considered as a whole and with common sense, I am satisfied that he simply rubbed the individual agencies up the wrong way and the various PSB officers involved overreacted in a heavy handed manner. I do not consider it relevant that, in the second case, the hospital director was a Communist Party official; I am satisfied based on the applicant’s evidence that the problem was that he was making a scene. I am satisfied that each of these incidents was random and unrelated; that the action was taken against the applicant because he was perceived simply as a troublemaker, not for any Convention reason, including his political opinion or a political opinion imputed to him; and that these incidents did not result in the applicant being attributed with the profile of a political dissident or an opponent of the government. Indeed, the applicant did not claim that he had any ongoing difficulties as a result of these incidents. He continued to reside at the same address, to work in the same job and to enjoy the support of his employer. He was never arrested again during the subsequent five years that he remained in the PRC. Nor has the applicant claimed that he would face persecution on return in connection with these incidents. His sole claim about future persecution was that there might be a rumour that he had been involved in Falun Gong activities while overseas.

Counsel for the applicant argued that the above reasoning revealed jurisdictional error when the Tribunal characterised the applicant’s mistreatment by Chinese authorities in 1996 and 1999 as being inflicted “not for any Convention reason, including his political opinion or a political opinion imputed to him”. The error was submitted to be that the Tribunal made a finding which was not open on the applicant’s evidence which the Tribunal totally accepted (cf. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355‑357 applied in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 at [19] and [28]), or that it exhibited such a degree of irrationality as to suggest that the Tribunal did not make a genuine assessment of the applicant’s evidence, or that the deficiencies of the Tribunal’s reasoning pointed to an inference that it misunderstood the issues required to be addressed under the Convention definition (cf. Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, [2003] HCA 30 at [9], [34]‑[37], [81], [129]).
It is certainly difficult, in my opinion, to understand how the Tribunal characterised the two actions of the Chinese law enforcement officials, which undoubtedly inflicted harms amounting to “persecution”, as not being the result of a perception on their part that the applicant had expressed opinions or otherwise acted in a manner hostile to the government. Their response in the 1996 incident occurred because “I argued with them for justice”. Their response in 1999 was because “I just wanted to have a look at the record of the disease history of my son, and find out whose fault that caused my son’s death”. In both situations, the authorities were concerned that the applicant acted in company with other people when criticising actions of government agents, and in 1999 the applicant’s family and friends were also threatened “if they dare to dig in the matter”. There is no suggestion in the applicant’s evidence that he did anything “criminal”, other than to express opinions hostile to the policies and practices of an authoritarian government system and its official agencies.
In this situation, the applicant’s account of the first two episodes of persecution seems clearly to fall into the accepted understanding of persecution for actual or perceived political opinion: “defined quite simply as persecution of persons on the ground ‘that they are alleged or known to hold opinions contrary to or critical of the policies of the government or ruling party’” (cf. Attorney‑General (Canada) v Ward (1993) 103 DLR (4th) 1, cited by Beaumont J in Guo v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151 at 162).
The Tribunal’s reasons appear to rely upon a distinction between actions of a “trouble maker in the sense that he was creating a public nuisance”, and actions perceived in “an authoritarian state … as political dissent”. However, in my opinion, this distinction has no support in authority in relation to any situation comparable with the present, nor in the language of the Convention definition. It suggests that the Tribunal erroneously thought that it did not need to examine why the applicant was thought to be making “trouble”, and that it overlooked that “exposure of corruption or ‘whistleblowing’ can result in persecution by reason of an actual or imputed political opinion” (cf. Merkel J in Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670 at [19], cited by Madgwick J in NACM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 134 FCR 550 at [37]).
Moreover, if the Tribunal’s characterisation of the treatment of the applicant as a “troublemaker”, indicates that it considered that the Chinese authorities were engaged in general law enforcement activities unrelated to the Convention, albeit “heavy handed”, then in my opinion the Tribunal failed to appreciate an important further issue which it was required to address before excluding a Convention nexus. This was whether the laws or government policies which were being enforced could be characterised as “appropriate and adapted to achieving some legitimate object of the country of the refugee” (see McHugh J in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1997) 190 CLR 225 at 258, cited in Appellant S395/2002 (supra) at [45]). I find it most difficult to conceive how the violent repression of a parent and his family for seeking to discover the causes of his infant’s death in a public hospital could be found to meet that requirement, and in the absence of discussion by the Tribunal I would find that it was not addressed (cf. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]).
In my opinion, the Tribunal’s reasons indicate that it failed to address according to law the applicant’s claims that his mistreatment by Chinese authorities in 1996 and 1999 was “for reasons of” his actual or perceived political opinions. I therefore consider that he has made out a jurisdictional error, warranting the quashing of the Tribunal’s decision.
Counsel for the Minister submitted that, even if the Tribunal’s characterisation of the 1996 and 1999 events revealed error, its decision could be supported upon its further findings, so that relief should be refused (citing SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [29], [59], and [91]).
Counsel submitted that the Tribunal had also found that the 1996 and 1999 events were “random and unrelated”, and had characterised the applicant’s “sole claim about future persecution” as being “that there might be a rumour that he had been involved in Falun Gong activities while overseas”. The Tribunal had then rejected this concern upon findings that “the applicant would not seek to practise Falun Gong if he returned to the PRC, and that this would similarly be because he chooses not to”. The Tribunal had also found: “even accepting that the applicant did practise Falun Gong for two months in 2000 and was discovered and required to attend study sessions for one month, I am not satisfied that he suffered any ongoing mistreatment amounting to persecution during the following four years prior to his departure”.
In short, counsel for the Minister argued that the Tribunal correctly identified the applicant’s claim for refugee protection as being entirely that of a Falun Gong practitioner for a brief past period, with no commitment to continue that practice, and only a “remote and speculative” chance of future persecution for his past involvement. She argued that any legal error in the Tribunal’s assessment of the applicant’s earlier history was, therefore, immaterial to the Tribunal’s decision.
However, it is unclear whether the Tribunal actually did characterise the applicant’s refugee claims as being confined to his brief history as a Falun Gong practitioner. Moreover, if it had done so, this would have amounted to jurisdictional error by “misunderstanding or misconstruing” the applicant’s actual claims (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63]). The applicant’s claims made to the hearing, as I have extracted and explained above, clearly encompassed a much broader “political” claim than to have feared persecution only as a Falun Gong practitioner. The applicant claimed that he was generally regarded as “anti‑government” because of all three of the events in which he had come to the adverse attention of the Chinese police. The Tribunal was obliged to address this claim in its full ambit, including by properly considering whether the 1996 and 1999 events had a Convention nexus, and then considering how they influenced the applicant’s subsequent behaviour.
At the end of its reasoning, the Tribunal might appear to show some awareness that there was a broader “political” claim requiring its attention. It said:
I am satisfied that the applicant’s fear of persecution as a Falun Gong practitioner in the PRC is not well founded; and while he has not claimed to fear persecution on any other basis, I am satisfied that there is in fact, no other basis arising from the evidence upon which he could be said to have a well founded fear of persecution. In my view, there is no basis, arising from the applicant’s evidence, upon which to conclude that there is a real chance that he may in the future engage in “protesting behaviour” that could cause him to be persecuted. His own evidence suggests that his brief engagement with Falun Gong was the result of a temporary loss of the balance of his mind; he did not suggest that he remains unbalanced. Moreover, the fact that the applicant has not engaged in protesting activity of any kind while in Australia, or indeed at any time since 2000, leads me to conclude that any prospect of him engaging in such behaviour in future, which might lead to the imputation of a political profile and to persecution, is remote and speculative, and that it does not give rise to a well founded fear.
However, I am unable to read this reasoning as being unaffected by the Tribunal’s earlier characterisation of the persecution suffered by the applicant in 1996 and 1999 as not being related to the Convention. Indeed, I am inclined to find a direct reference back to these findings in its reference to “there is in fact, no other basis arising from the evidence upon which he could be said to have a well founded fear of persecution”. I also note that this concluding paragraph is introduced with a general adoption of its previous reasoning: “in the light of the findings set out above”.
In my opinion, if the Tribunal had properly addressed the political character of the applicant’s experiences in 1996 and 1999, it may have assessed his subsequent behaviour differently, or might have been more ready to form a higher assessment of the risk that he might be generally regarded as “anti‑government” by the Chinese authorities, as he claimed.
I am therefore not satisfied that the Tribunal’s errors were immaterial, nor that there is any proper ground for me to refuse to order the relief sought in this application.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 6 August 2007