VUAC v Minister for Immigration - [2004] FMCA 997

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VUAC v MINISTER FOR IMMIGRATION

[2004] FMCA 997

MIGRATION – Refugee Visa – whether Tribunal failed to consider relevant matters.

Judiciary Act 1903 (Cth) s.39B

SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28

Applicant:

VUAC

Respondent:

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

MZ 1325 of 2003

Delivered on:

23 December 2004

Delivered at:

Melbourne

Hearing date:

10 June 2004

Judgment of:

Phipps FM

REPRESENTATION

Counsel for the Applicant:

Mr Krohn

Solicitors for the Applicant:

MSC Legal Services

Counsel for the Respondent:

Ms MacDonnell

Solicitors for the Respondent:

Clayton Utz

ORDERS

The application is dismissed.
The Applicant pay the Respondent’s costs fixed in the sum of $6,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MZ 1325 of 2003

APPLICANT VUAC

Applicant

And

THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Introduction

The applicant applies under s.39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal.
The applicant is a national of the People’s Republic of China. From 1993, she lived and worked in the United Arab Emirates. In 1998, she arrived in Australia on a temporary business visa which permitted her to stay until 30 December 1998. On 24 July 2002, she lodged an application for a protection Visa.
On 29 August 2000, a delegate of the respondent refused to grant the protection Visa. On 24 September 2000, the applicant applied to the Tribunal to review the delegates decision. On 20 August 2003, the Tribunal handed down its decision to affirm the delegates decision not to grant a visa.
On 13 October 2003, the applicant applied to the Federal Court of Australia. The proceedings were transferred to the Federal Magistrates Court of Australia on 31 November 2003.

The applicant’s claims

The applicant claimed that in July 1998, she was attacked during an attempted robbery in the entrance to the apartment building where she was living. She sustained a serious knife wound to both hands. She was admitted to hospital and underwent microsurgery.
While recovering from her injuries, the applicant was introduced to the practice of Falun Gong. She met a lot of people from China who were adherents of Falun Gong when she attended group exercises. They told her of their experiences. Until she moved to the home of her present husband in October 2002, she attended group activities early in the morning and on weekends. Since she married and moved, she practices at home.
The Tribunal said in its reasons, that in her original claims the applicant said she joined a team of people in Sydney who opposed the Chinese government policy with respect to Falun Gong. At the hearing, she stressed that she had always been loyal to the Chinese government.
The Tribunal said in its reasons that in her original statement the applicant said that she used to distribute pro Falun Gong booklets in Sydney. At the hearing she said this was untrue. She had never distributed pro Falun Gong literature. She said this had been included in her statement by her adviser.
The applicant said she had heard many stories in Sydney from people in Chinatown about the mistreatment and persecution of Falun Gong practitioners in China. She said that she did not wish to give up practising Falun Gong. She feared that she would not have the right to practise Falun Gong if she returned to China. She said she was concerned that she may be mistreated and persecuted by the Chinese authorities.

The Tribunal’s findings

The Tribunal said that there were some claims of the applicant that it was prepared to accept. These were:
·The applicant took up Falun Gong at about the end of 1998 in the hope that it would aid the recovery of the knife wounds she suffered in the course of a robbery;
·That the applicant has practised the exercise regimes of Falun Gong in Australia; and
·That the applicant continues to practice the Falun Gong exercise regimes in the privacy of the matrimonial home.
The Tribunal said that it was satisfied that the applicant had no profile in the Falun Gong movement in Australia such that she would have come to the attention of the Chinese authorities in Sydney. She had only ever been an ordinary practitioner, had never taken part in demonstrations against the Chinese government and conceded at the hearing that she had not actively promoted Falun Gong in Australia. The Tribunal said that in reaching this conclusion, it relied on the fact that the applicant had no hesitation in or fear of approaching the Chinese authorities at the embassy to renew her passport and had no difficulty in obtaining a renewal.
The Tribunal said that there was no evidence otherwise to suggest that the applicant was a person who has ever come to the adverse attention of the authorities in China in the past and this led the Tribunal to the conclusion that the chances of the applicant having any difficulty with the authorities upon her return to China were remote in the extreme.
The Tribunal said that it was satisfied that the applicant was not a “diehard” supporter of Falun Gong. It said this was apparent from her evidence that she would not go against the “party” and that since October of 2002 she had only practiced Falun Gong in the privacy of her home.
The Tribunal said it was satisfied that if the applicant were to practise Falun Gong upon her return to China she would be able to practise successfully in secret in the privacy of her own home and would be comfortable doing so. The Tribunal was satisfied that if the applicant were concerned about discovery as a Falun Gong practitioner she was still sufficiently loyal to the Chinese Communist Party to be prepared to give up Falun Gong.
The Tribunal took into account the applicant’s delay of almost exactly three years, after Falun Gong became illegal in China in March, in her application for protection in Australia. It considered that in the circumstances, the delay was inconsistent with the actions reasonably expected of a person who feared for her life or safety upon her return to China. The Tribunal found that the applicant did not have a genuine fear of persecution in China for a the convention reason.
The Tribunal was not satisfied that in the foreseeable future the applicant faced a real chance of convention related persecution in China, either because of suspected involvement with the Falun Gong movement or for any other reason. It found that her fears of persecution were not well founded.
The Tribunal, therefore, found that the applicant did not have a fear of persecution and objectively that there was not a real chance that she faced persecution.

The applicant’s grounds

The applicant alleges jurisdictional error. The first particular of error is that the Tribunal had not considered whether the applicant had a subjective fear at the time of the Tribunal’s decision. It was submitted that the Tribunal had considered whether the applicant had a subjective fear at the time of application for the visa but had not considered whether the applicant had developed a fear of persecution after lodging the application before the time of the hearing. Mr Krohn, who appeared for the applicant, made extensive analysis of the evidence to show that a finding that the applicant’s fear had developed after lodging the application was available on the evidence.
Mr Krohn referred to SCAT v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 80 and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 as authorities for the propositions that a Tribunal may be obliged to consider a basis for the applicant's case not specifically put forward by the applicant's and failure to consider such a matter if relevant may be jurisdictional error. Both propositions may be accepted in this case.
The submission for the applicant focused in particular on two aspects of the Tribunal's reasons. The Tribunal said that it did not accept the explanation offered by the applicant at the hearing that she did not apply for a protection Visa until she saw pictures in "Chinatown" of what was happening to Falun Gong practitioners in China in August or September 2002, because this was after she had lodged her application for a protection Visa. The Tribunal found, as well, that the applicant's delay of almost exactly three years after Falun Gong became the leader in China in lodging her application for protection was inconsistent with the actions reasonably expected of a person whose fears for her life or safety upon return to China and that this also better Tribunal to find that the applicant did not have a genuine subject of fear of persecution in China for any convention reason.
The paragraphs which contain these findings cannot be taken in isolation. It is correct that the Tribunal does not specifically address the question whether the applicant may have developed a subjective fear after the application and before the decision by the Tribunal. The does not mean that it has not dealt with the possibility. I consider that it has.
The Tribunal sets out on its reasons several matters that it put to the applicant in the course of the hearing. One was that she had no genuine commitment to Falun Gong and that she was using Falun Gong as a means of trying to prolong her stay in Australia. The applicant’s reply was that this was true but she also practiced Falun Gong and added that she had no reason to go back to China. Central to the applicant's claim of fear of persecution was her commitment to Falun Gong. The Tribunal has specifically put to the applicant at the time of the hearing that she did not have a genuine commitment to Falun Gong.
The Tribunal put to the applicant the issue about “China Town” referred to above. The Tribunal sets out in its reasons that it asked the applicant when she had first become worried that she may suffer mistreatment in China because she is a practitioner of Falun Gong. She said this was after she saw some pictures in Chinatown. The Tribunal said that in the past when she first saw the pictures, the applicant said that they were "nasty". She then remembered that it was in August. The Tribunal pointed out that that was after she had lodged her application (July 2002).
The Tribunal, therefore, had asked questions of the applicant which specifically went to a genuine fear of persecution. It refers to these matters in its reasons. Therefore, quite apart from the specific statement early in the reasons that whether the applicant is a person to whom in Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made, the Tribunal has made specific reference in its reasons to questions asked of the applicant which went to the applicant believe at the time of the hearing.
The applicant has addressed the correct question, that is, whether at the time of the decision the applicant had a well founded fear of persecution. The essence of the Tribunal's decision is that it has not accepted the applicant's evidence. The Tribunal said that although it was generally the case that applicants who are otherwise credible and plausible should, unless there are good reasons otherwise, be given the benefit of the doubt, it was not the case that the evidence of an applicant should be believed unless specifically disapproved by objective evidence before the Tribunal. The Tribunal then sets out why it did not accept the applicant's claim that she had a fear of persecution.
The Tribunal's finding is that neither at the time of application or at the time of decision did the applicant have a fear of persecution. In those circumstances, it was not necessary for the Tribunal to consider the possibility of change between one date and the other.
The next three particulars of error can be dealt with together. They allege that the Tribunal failed to consider whether the applicant could live and practice Falun Gong openly in China in accordance with her beliefs, that the Tribunal failed to consider whether, if the applicant were to return to China, practiced Falun Gong privately, this would be because of her fear of persecution were she too practiced Falun Gong openly and that the Tribunal failed to consider whether, if the applicant were to return to China and the practiced Falun Gong, privately, this would be because the authorities in dealing with adherents of Falun Gong acted in breach of fundamental rights and freedoms protected by the refugees convention.
Mr. Krohn referred to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112. That that was a decision of the High Court in dealing with the position of homosexuals in Bangladesh. The issue was whether the Tribunal should have considered the situation of the applicants in that case if they wanted to live less discreetly than they did.
The Tribunal has not failed to consider relevant matters. The applicant's case was that she practiced Falun Gong exercises. Originally she did so with a group in a public park but since October 2002 she had only practiced in the privacy of her matrimonial home. She did not promote Falun Gong. The only connection with Falun Gong was that she practiced exercises in her home because of the benefit she obtained from doing exercises.
Therefore, the applicant's case was that she feared persecution if she returned to China because she practiced Falun Gong exercises in the privacy of her own home. There was no reason for the Tribunal to consider any of the matters raised in the particulars of grounds of the application. The Tribunal was required to assess the likelihood of what might occur if the applicant returns to China. The only thing which was likely to occur, on the evidence and on the findings of fact the Tribunal made, was that the applicant would practice Falun Gong exercises in the privacy of her own home. Since October 2002 she had not practiced publicly in Australia and there was no reason why the Tribunal should consider a potential change in she went to China.
The other ground of review alleged jurisdictional error in interpreting the relevant law. The particulars allege that the Tribunal erred in interpreting the meaning of the term "well founded fear of persecution" the definition of refugee under the Refugees Convention, shown by the Tribunal's view that the applicant could return to China and "would be able to practice Falun Gong successfully in secret or in the privacy of her own home and would be comfortable doing so. She is still sufficiently loyal to the Chinese Communist Party to be prepared to give up Falun Gong", without finding why the applicant would or should practiced privately, and by the failure of the Tribunal to find whether the applicant could practice Falun Gong openly, in the court with her beliefs.
The reasons I have already given deal with this ground. The applicant's case was that she practiced Falun Gong exercises in the privacy of her own home. There was no suggestion that she would do otherwise in China. There was no need for the Tribunal to consider this issue.
No ground for review is shown. The application is dismissed.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Phipps FM

Associate:

Date: