VWSR v Minister for Immigration
[2005] FMCA 977
•15 July 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VWSR v MINISTER FOR IMMIGRATION | [2005] FMCA 977 |
| MIGRATION – Review of Refugee Review Tribunal decision. |
| Migration Act 1958 (Cth) |
| NABD of 2002 v Minister for Immigration [2005] HCA 29 NADN v Minister for Immigration [2004] FCA 15 NAEB v The Minister for Immigration [2004] FCAFC 79, Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 S395/2002 v The Ministerfor Immigration [2003] HCA 71 SZACV v The Minister for Immigration [2004] FCA 469 U v Minister for Immigration and Multicultural Affairs [2001] FCA 364. VWBA v Minister for Immigration [2005] FCA 71 |
| Applicant: | VWSR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | MLG 1579 of 2004 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 6 June 2005 |
| Date of Last Submission: | 6 June 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 15 July 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pizer |
| Solicitors for the Applicant: | Allens Arthur Robinson |
| Counsel for the Respondent: | Mr Horan |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 30 September 2004 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
The respondent do pay the applicant’s costs fixed in the sum of $6,500.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG1579 of 2004
| VWSR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Burma. He arrived in Australia on 19 November 2002. On 10 Decision 2002 he lodged an application for a protection visa. On 17 November 2003 a delegate of the Minister refused to grant a protection visa. On 26 November 2003 the applicant applied to the Refugee Review Tribunal (the ‘Tribunal’) for a review of that decision. The Tribunal refused the review application on 30 September 2004.
In the decision of the Tribunal it set out the relevant law at pages 1 to 4.
The Tribunal member then sets out in some detail the activities of the applicant in Burma and Thailand, and then his political activities in Australia. The applicant summarises the findings of the Tribunal with respect to factual matters as follows:
(a)the Applicant was outside his country of nationality (namely, Burma);
(b)the Applicant had a subjective concern of returning to Burma;
(c)the sort of treatment the Applicant described and claimed to fear if he returned to Burma would amount to persecution;
(d)the Applicant’s fear of persecution is grounded in at least one of the reasons set out in the Refugees Convention;
(e)when he was in Burma, the Applicant was involved in some underground activities supportive of the ABSDF between 1990 and 1996;
(f)the Applicant’s support for the ABSDF in Burma was “low key” and that the Applicant did not have a profile that was of interest to the Burmese authorities;
(g)the Applicant had engaged in the activities in Australia as outlined in his statements, including his attendance at conferences and demonstrations;
(h)the Applicant is an active member of Burma Information Centre, Australia Burma Society and coordinator of the support group for the ABSDF (fundraising);
(i)the Applicant was not on the black list of the Burmese military regime for his overseas and Australian political activities;
(j)the Applicant was not of such profile since leaving Burma despite his activities in Australia “as the independent country information does not support this view unless he is also an active and high profile member of the ABSDF or ringleader or the more violent attack on the embassy in Canberra in 1999”;
(k)the Applicant would continue in the same activities he was previously involved in on return to Burma;
(l)as in the past, these activities would be of no interest to the authorities now or in the reasonably foreseeable future.
The Tribunal ultimately determined that it was not satisfied that the applicant faced a real chance of persecution if he returned to Burma.
As a result of the manner in which the argument unfolded before me, it is appropriate that I first set out a number of passages from the Tribunal member's decision which are relevant to the argument.
When considering the country information the Tribunal member set out a quote from the Australia Department of Foreign Affairs in the following terms:
Burmese involved in demonstrations in Australia, whilst often known to the authorities are generally of little concern, even if they return to Burma. There would be a couple of exceptions: those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB and those ringleaders of the more violent attack on the embassy in Canberra in September 1999. Other than these exceptions, any Burmese returning to Burma after a lengthy period in Australia (or elsewhere for that matter) would come to the attention of their local township authorities and their movements may be monitored for an initial period. (DIMIA Country Information Service, Country Information Report No. 55/00 - Human Rights Update (sourced from DFAT advice of 28 January 2000), 7 February 2000 (CISNET Burma CX39784))
…it would depend on the nature of the organisation to which an individual belonged, the nature of the individual’s activities and the prominence they have assumed within those organisations. For example, those involved in peaceful demonstrations may be subjected to some questioning upon return but not long term harassment. However, those prominently involved in organisations which have actively pursed (sic) violent methods of demonstration and who would then be likely to be known to the Burmese authorities may face more serious interrogation and harassment, if indeed they had a valid means to return to Burma. (DIMIA Country Information Service, Country Information Report No. 194/02 – Information on the current situation of groups actively opposing the government of Burma, (sourced from DFAT advice of 19 June 2002), 19 June 2002 (CISNET Burma CX65492). [emphasis added]
At page 28 the Tribunal accepted that the applicant was involved in some underground activities supportive of the ABSDF between 1990 and 1996. However the Tribunal did not find that the applicant had been a high profile activist of any interest to the authorities whilst in Burma because of his activities or in connection with his brother's activities (see page 29 of the decision).
At page 31 the Tribunal said:
Further, the independent country information would indicate that whilst the Burmese authorities monitor opposition activities outside Burma, they only have an interest in repetitive demonstrators that are high profile members of the ASDF.
…
The Tribunal noted the information contained in the letter from New Ni Tun dated 7 January 2004 and the letter from Mr Henry Soe-Win dated 1 December 2003 but does not accept that the applicant is on the blacklist of the Burmese military regime for his overseas and Australian political activities, the Tribunal already having found that he was not of such profile prior to leaving Burma nor since despite his activities in Australia as the independent country information does not support this view unless he is also an active and high profile member of the ABSDF or ringleader of the more violent attack on the embassy in Canberra in 1999…
The Tribunal had accepted that the applicant had participated in demonstrations in Australia and in other activities, stating:
The Tribunal considered the applicant's activities in Australia including the cartoons he draws using a false name, and accepts his activities in Australia as outlined in his statements, including his attendance at conferences and demonstrations. The Tribunal accepts that the applicant is an active member of the Burma Information Centre, Australia Burma Society and coordinator of the support group for the ABSDF (fundraising).
Ultimately the Tribunal found that:
… the applicant would continue in the same activities he was previously involved in upon return to Burma and finds that as in the past those would be of no interest to the authorities now or in the reasonably foreseeable future.
The Tribunal concluded that the fear of persecution on the part of the applicant was not well founded.
The applicant's counsel referred to a number of passages from the applicant's statutory declaration filed with the Tribunal which do not appear to have been rejected by the Tribunal member. These passages set out the following:
18. I continued activities in support of the ABSDF secretly. I had secret contact with my elder brother Myo Thaw, who continued his pro-democracy activities with the ABSDF in Thailand. I was in contact with some members of the ABSDR in Rangoon, but we had to have very limited contact because of the danger of being caught. I distributed information of the ABSDF movement in Yangon and I reported feedback of what was happening in Rangoon university from other students. I also distributed letters which contained information about the ABSDF and the National League for Democracy (“NLD”) which was supported by the ABSDF. I distributed them at Yangon University and surrounding areas at night. We would usually distribute letters around special dates commemorating events of the student uprising and pro-democracy movement such as 7 July and 18 September. I had contact with my brother through messengers who used to work illegally in Thailand. Occasionally I would write by regular mail and would use a false name. The military intelligence came a few times to my aunt’s house and asked about my brother Myo Thaw’s whereabouts.
…
25.After that I felt I was being watched, so I was very limited in the activities I could do. I did fundraising, selling postcards and books and sending the money for the ABSDF to my brother in Thailand. I did fundraising for ABSDF until December 1996, after I was warned by the military intelligence following the demonstration described below. I lost contact with my brother in December 1996. It was very difficult to keep in contact with him because he moved around a lot and it was dangerous for me as well.
…
37. After these events, I knew that I was under constant surveillance by the authorities. I was very afraid that I would be arrested at any time, even if I did something inadvertently. I was afraid that because of my past political activities and those of my brother and my friendship with a leader of the Pa-O, and what the officer told me, I was at risk of being arrested. I was very afraid of what would happen to me if I was arrested. I was also very worried I would not be able to find a job. I telephoned my brother in Thailand from a phone I paid to use, and my brother said that I should get out of Burma for my own safety. I felt that I was not safe in the country and decided to leave Burma.
Counsel for the applicant points to the fact that the Tribunal member has not made a determination of whether or not she accepts that the applicant was a "repetitive" demonstrator within the meaning of the country information upon which she relies.
In response counsel for the Minister says that as a result of the interpretation that the Tribunal took of the country information there was no need to separately consider whether or not the applicant was a repetitive demonstrator as the Tribunal concluded that he had not fulfilled the other part of the categories referred to in the country information. As a result, the Minister argues that the applicant is simply seeking a merits review. In this regard counsel for the Minister says in his outline:
22. Thus, for example, in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2), the Tribunal had misconstrued or misunderstood certain evidence given by the applicant — the Tribunal proceeded on the basis that the applicant had been detained by the authorities, whereas the applicant had claimed that he had been detained by a pro-government organisation called PLOTE. The Full Court held that this amounted to factual error, and did not involve a failure to consider the applicant’s claims. The Full Court stated:
“It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs: Ex parte Cohen (2001) 177 ALR 473 at 481[35] per McHugh J.”
23. The Court concluded in NABE (No.2):
“Although such a claim [i.e. an implied claim of want of State protection from persecution by PLOTE] might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTB, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.
It appears that this issue has been specifically considered, with respect to the very same piece of country information, in the Federal Court by North J in the matter of U v Minister for Immigration and Multicultural Affairs [2001] FCA 364. In that case his Honour said:
8Arising out of this reasoning, the applicant puts only one ground of review before the Court. He relies upon the second limb of s 476(1)(e) of the Migration Act 1958 (Cth) (the Act) which provides that a Tribunal decision may be reviewed where:
"s.476(1)
...
that the decision involves an error of law, being an error involving ... an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;"
9Mr Gibson of counsel, who appeared on behalf of the applicant, put a concise argument which focused on two particular parts of the Tribunal's decision. First, he referred to the January 2000 DFAT cable (the DFAT cable) set out in par 6 above, in which it is said that:
"Burmese involved in demonstrations in Australia, whilst often known to the authorities are generally of little concern even if they return to Burma. There would be a couple of exceptions: those who are repetitive demonstrators; active and high profile members of the ABSDF or the NCGUB; and those ringleaders of the more violent attack on the embassy in Canberra in September 1999."
10 He then referred to the sentence in the Tribunal's decision which stated:
"The independent evidence before me, which I accept, indicates that whilst the Burmese authorities monitor opposition activities outside Burma, their only really [sic] interest is in active opposition leaders."
11 Mr Gibson argued that the Tribunal committed an error of law by misapprehending the evidence contained in the DFAT cable. On his construction, the DFAT cable meant that there was a separate category of persons who would be of concern to the Burmese authorities, namely, persons who were repetitive demonstrators. He therefore read the reference to repetitive demonstrators in the DFAT cable as separate from the reference to active and high profile members of the two named opposition groups. Contrary to this construction, in the conclusion expressed in the sentence referred to in par 10, the Tribunal found that the Burmese Government only had a real interest in active opposition leaders.
12The central issue is therefore a narrow one. Ms Kennedy, of counsel, who appeared on behalf of the respondent, contended that the conclusion of the Tribunal indicated no error at all. She put this submission on two bases.
13 First, she contended that the conclusion of the Tribunal that the government of Burma only had a real interest in active opposition leaders was the result of the Tribunal assessing all the evidence before it, including all of the country information, and the Tribunal forming an opinion as to the real interest of the Burmese Government. She contended that the Tribunal had a selection of evidence before it and that its conclusion was a fair assessment of the general purport of that material. It was thus open to the Tribunal to form the view which it did.
14I accept Ms Kennedy's argument on this aspect of the case. The DFAT country information allowed the Tribunal to come to a conclusion about who was of real interest to the Burmese authorities, and there are certainly statements in the country information which support the view reached by the Tribunal.
15 Ms Kennedy put an alternative argument in relation to the absence of error in the Tribunal's reasoning. She contended that, in any event, the conclusion reached by the Tribunal was the correct conclusion on the information which it set out.
16 She argued that the DFAT cables relied upon by the Tribunal and set out in pars 6 and 9 above could be read so that the "repetitive demonstrators" referred to were repetitive demonstrators who also had the characteristic of being active and high-profile members of the two named opposition groups.
17 There is much to be said for this approach to the DFAT cable. The DFAT cable refers to "a couple of" exceptions, and reading the semi-colon as indicating some link between repetitive demonstrators and high-profile members of the two named opposition groups would give the sentence a structure which provided for two exceptions. To read it in the way suggested by Mr Gibson creates three categories of exception. Such a reading is therefore inconsistent with the opening words in which the DFAT cable's author intends to state "a couple of" exceptions.
18 Furthermore, the other information relied upon by the Tribunal supports the view that the Burmese authorities' real interest is in people who are both repetitive demonstrators and active opposition leaders. This is expressly stated in the 1996 Country Profile, set out in par 6 above, and is consistent with each of the other DFAT cables.
19In the result I am not persuaded that the Tribunal fell into error. I therefore do not need to deal with the further arguments put by Ms Kennedy namely, that if there was an error, it was not an error of law, or that if there was an error of law that is was not, in any event, material.
In the circumstances, I therefore find that the applicant is not able to succeed on this point for the same reasons as set out by North J in U's case.
The second point argued by the applicant was that the Tribunal member had failed to provide a procedurally fair hearing in that she did not give the applicant an opportunity to be heard about whether or not he would continue in the same activities as he was previously involved in if he returned to Burma. This bears directly upon one of the findings made by the Tribunal member.
Counsel for the applicant argued that all of the applicant's evidence suggested that he had become much more politically aware and active since he had left Burma, leading to the obvious inference that he would engage in higher level of activity and consequently a higher profile on his return. In this regard the applicant relied upon the comments of Merkel J in Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113 when his Honour said:
70 While the general rule is that a decision-maker is not obliged to comment on his or her preliminary views before making a final decision or to enable a party that is likely to be adversely affected by those views to address them prior to a decision being made, on some occasions the line between the views and conclusions of a decision maker and the material on which they are based may be a fine one. The overriding principle is that the decision-maker must bring to the applicant's attention the critical issue or factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa at 587 per Mason J; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481. It is sufficient that the gravamen or substance of the issue or factor is brought to the applicant's attention, or that the applicant is on notice of its "essential features": see Mocan v Refugee Review Tribunal (1996) 42 ALD 241 at 247; Ozmanian v Minister for Immigration, Local Government and Ethnic Affairs (1996) 137 ALR 103 at 123; Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 at 230; McVeigh v Willarra Pty Ltd (1984) 6 FCR 587 at 600-601; Chu v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 540 at 548.
71 However, where the decision-maker intends only to rely on material provided by the applicant in making his or her decision, there is no analogous requirement to bring matters to the applicant's attention. As Fox J stated in Sinnathamby at 506:
"As a general rule, when some consideration personal to the applicant is to be taken into account against him or her the rules of natural justice require that the applicant be given a chance to comment or contradict: see Kioa, per Mason J at p 348. The guideline is fairness; in general the party should have an opportunity of dealing in an appropriate way with matters with which he can reasonably be expected to be able to deal, and which might assist his or her case.
In Kioa's case, the material held to require that a chance be given to comment had come from a source other than the applicant. In the present case ... the material which was prejudicial to the appellant had been provided by the appellant herself."
72 In some situations where the adverse conclusion is not an obviously natural response or evaluation of the material the party affected by the decision may be entitled to respond to the adverse conclusions: see Kioa at 573, 588 and 634; Somaghi at 108 per Jenkinson J; Alphaone at 591. However, the rationale for that opportunity must be that the response raised a new matter in respect of which, in fairness, the party ought to be afforded an opportunity to respond or deal with.
Counsel for the Minister, in response, argued:
26. Section 424A does not require the Tribunal to give particulars of its reasoning processes or its evaluation of the evidence.[15] In Tin v Minister for Immigration & Multicultural Affairs,[16] Sackville J concluded that s.424A was concerned with knowledge of relevant facts or circumstances communicated to or received by the Tribunal, and was “not concerned with the subjective though processes of a Tribunal member”. Accordingly, the Tribunal was not required to give the applicant notice of its proposed finding.
[15] See Tin v Minister for Immigration & Multicultural Affairs[2000] FCA 1109 at [49]-[54]; Carlos v Minister for Immigration and Multicultural Affairs [2001] FCA 301 at [21] per Merkel J; Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196 at [95] per Allsop J; Mohammed v Minister for Immigration and Multicultural Affairs [2000] FCA 277 at [16]-[20] per Emmett J.
[16] [2000] FCA 1109 at [53]; see also Win v Minister for Immigration and Multicultural Affairs [2001] FCA 56 at [18] per Whitlam, Tamberline and Sackville JJ.
I do not have the transcript of the proceedings before the Refugee Review Tribunal member before me in order to consider precisely what was put to the applicant on this issue.
However, it appears that the applicant was alive to this issue when making submissions to the Tribunal as he made the following written submission:
We submit further that the risk is heightened because, given the applicant’s strong political convictions, it is likely that the applicant would engage in further pro-democratic political activity in the future, increasing the risk that he will suffer persecution. It is submitted that it would be wrong to deny a claimant asylum on the basis that he should repress his legitimate political activities in the future in order to avoid persecution, and in this regard, we refer to the following comment by Hathaway;
“Since political expression is a core human right, the claimant must enjoy a reasonable expectation of tolerance of peacefully articulated views. It is therefore inappropriate simply to discount the risk of harm on the ground that the claimant could avoid detection by keeping quiet”16 (emphasis added).
The real issue that arises with respect to this part of the decision flows, in my view, from the final point argued by the applicant which was that the Tribunal had assumed that the applicant would modify his behaviour so as to avoid coming to the attention of the authorities, a reasoning process which it is argued was not permissible in light of the statements of the High Court in S395/2002 v The Ministerfor Immigration [2003] HCA 71. In that case the High Court said:
78.The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.
79.The dangers of arguing from classifications are particularly acute in matters in which the applicant's sexuality is said to be relevant. Those dangers lie within the notions of "discretion" and "being discreet": terms often applied in connection with some aspects of sexual expression. To explain why use of those terms may obscure more than they illuminate, it is useful to begin by considering Convention reasons other than membership of a social group defined in terms of sexual identity.
80.If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
It is clearly inappropriate to require an applicant to modify their behaviour so as to avoid persecution by avoiding drawing attention to themselves.
The respondent referred to NABD of 2002 v Minister for Immigration [2005] HCA 29. In NABD the High Court held that the Tribunal had not asked itself a wrong question as:
155.The Tribunal concluded that "the available evidence indicates that if [the appellant] were to practise as a Christian in Iran he would be able to do so in ways he has practised his faith in Australia without facing a real chance of persecution". It went on to say that, although the appellant claimed that he felt it his duty to tell others about his faith, "the evidence is that he is able to do so without facing any serious repercussions providing he does not proselytize".
156.The Tribunal found that the appellant "would not choose to generally broadcast his practice of Christianity or conspicuously proselytize in Iran". Standing alone, that finding would be consistent with the appellant choosing the course described in order to avoid adverse consequences befalling him. But the Tribunal found that the appellant's likely conduct in Iran was not motivated by fear of adverse consequences. It said:
"In weighing all the evidence, including [the appellant's] practice of his faith to date and the tenets of that faith, the Tribunal finds that any decision to avoid proselytizing in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices. It finds that [the appellant] is not constrained in the practice of his avowed faith, nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution."
The issues raised in S395 have been considered by the Full Court of the Federal Court in NAEB v The Ministerfor Immigration [2004] FCAFC 79, however the decision was distinguished on the facts of that case, the Full Court saying:
26 … the Tribunal incorporated all its previous reasoning to support the conclusion that the requirement of the authorities of the PRC of the appellant to renounce Falun Gong would not constitute persecution. The previous reasons explained why the Tribunal did not regard this requirement as persecution of the particular appellant. The substance of these reasons were that he so lacked commitment to Falun Gong that it would not trouble him to renounce his belief. Similarly, his limited commitment to Falun Gong meant that if he were confined to the practice of Falun Gong in private, his beliefs and practices would not be compromised in a significant way. Viewed in this way, the Tribunal did ask why the appellant would renounce Falun Gong, or practice Falun Gong in private if returned to the PRC. Whilst he may not have done so if the authorities in the PRC did not impose the requirements, the Tribunal found that his compliance with those requirements resulted from his lack of commitment to Falun Gong, not from a fear of the consequences threatened by the authorities. Thus understood, the reasoning in this case does not exhibit the error identified in the majority judgment in S395/2002.
A very similar issue arose in SZACV v The Minister for Immigration [2004] FCA 469 where Gyles J said:
20 The Tribunal found that the appellant was probably a Falun Gong practitioner, and may have been picked up by the police, but that he was of no adverse interest to the Public Security Bureau. It then relied on independent country information to conclude that ‘there is nothing prohibiting the applicant from returning to China and practising his beliefs on a private basis’. That, of course, is the answer to the question: ‘could the applicant live in that country without attracting adverse consequences?’, which is identified as the wrong question by Gummow and Hayne JJ in S395 at 131 [80].
Similar conclusions were reached by Grey J in VWBA v Minister for Immigration [2005] FCA 71 where his Honour said:
39 The Tribunal did not make a specific finding as to whether the private practise of Falun Gong would lead to avoidance of an adverse reaction from the authorities because it was unlikely to come to the notice of the authorities, or because the authorities were not concerned about private practice. Its finding that ‘lower level Falun Gong practitioners or followers, are likely to attract relatively little adverse attention’ [emphasis added] suggests the former. So does its specific finding that ‘a decision not to practice [sic] Falun Gong in public may be related to subjective fear of the likely consequences of such practice’. These findings suggest that, if for some reason private practice of Falun Gong were to become publicly known, it might lead to adverse consequences.
40 In my view, the Tribunal could not determine either of these cases properly without pursuing that question. It was required to ask whether each applicant had a well-founded fear of being persecuted for reasons of political opinion (on the basis that Chinese authorities treat Falun Gong practitioners as dissenters), religion (if Falun Gong can be regarded as a religion), or membership of a particular social group (Falun Gong practitioners), if her or his Falun Gong activities came to the attention of the authorities. The Tribunal was required to ask whether the fear was well-founded in the sense that it was a substantial motivation for each applicant to keep her or his Falun Gong practice secret. If it answered these questions favourably to the applicants, the Tribunal was then required to consider whether there was a chance of adverse consequences to either applicant if her or his practice of Falun Gong were detected, and if those adverse consequences might be sufficiently serious to amount to persecution within the meaning of the Convention, as modified by s 91R of the Migration Act.
An example of contrary findings, based upon differing facts, can be seen in NADN v Minister for Immigration [2004] FCA 15 by Carr J:
35 But several pages later, in the section headed "Findings and Reasons", the Tribunal made a very clear finding which rejected the appellant’s assertion that he would publicly acknowledge a conversion to Christianity when it said:
‘The Tribunal is so strongly struck by the Applicant’s lack of good faith that it is extremely confident he would abandon his so-called newfound Christianity back in Iran and lose no sleep over it at all, denying it as he has denied many facts in the present application, to suit the occasion.’
36 The present case is very different, in my view, from the circumstances in Wang where there was an "implicit finding" (see Wilcox J at [21] and [27]) that Mr Wang would, if returned to China, continue (in accordance with his expressed intention) to practise his religion as a member of the congregation of an unregistered church.
37 If the Tribunal in this matter had found the facts differently, then its observations about the appellant flaunting his alleged conversion to the Iranian authorities being "his own business" would most probably have been in error. But it did not so find the facts. Its decision was based on a completely opposite finding of fact, i.e. that he would quite happily abandon his pretence of having converted to Christianity. That factual finding also clearly distinguishes the circumstances of this matter from those considered by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[2003] HCA 71.
In this case there are no specific findings by the Tribunal member as to whether she has concluded that the applicant would continue in the same reduced activities as he was previously involved in in Burma on his return through fear of persecution, or as a result of his natural lifestyle choice. In one sense this case is a little more stark than the facts in NABD as there were specific findings that if the applicant in NABD continued to practise his Christianity (the source of alleged persecution) in the same way that he had practised it in Australia, he would not be likely to be persecuted.
Clearly, in this case, the Tribunal member has assumed that the applicant will reduce his political activities upon a return to Burma from the public and participatory nature of his activities whilst in Australia. It is implicit in the finding that the Tribunal member expects that the applicant will modify his behaviour or conduct if he returns to Burma. What she does not go on to determine is the reasons for that modification.
If the reason for such modification was his fear of persecution then the case has not been properly approached in the sense discussed by the High Court in S395. If it is that the Tribunal considered that he would modify his behaviour for some other reason unconnected with a fear of persecution then it may be that the case would fall into a similar category as that discussed in NABD.
As there has been no specific consideration of the matters relevant to this question, nor any specific discussion of the principles or issues raised in S357 or NABD it appears to me that the Tribunal member has failed to make findings on critical issues and thereby failed to exercise jurisdiction.
Alternatively, it may be categorised as a situation where the Tribunal member has misdirected herself as to the test to be applied, and therefore not thought it necessary to make specific findings as to the reasons that she believes the applicant would return to similar activities in this case.
In the circumstances, I therefore order that constitutional writs of certiorari and mandamus issue to quash the decision and require it to be heard according to law, by a different Tribunal member.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
[16] Prof. J Hathaway, The Law of Refugee Status, p.150.
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