Wang v MIMA

Case [2000] FCA 1599


FEDERAL COURT OF AUSTRALIA

Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599

MIGRATION – protection visa – refugee – law prohibiting religious practice other than at registered religious institutions – whether a law of general application – whether punishment for religious practice at an unregistered institution is prosecution or persecution – whether, for the purposes of the Convention, religion includes its practice in a like-minded community – role of international human rights Conventions in interpretation of the Refugees’ Convention – whether fear of persecution based on an intention to practice religion at an unregistered institution in the future can constitute a well-founded fear of persecution.

WORDS AND PHRASES - “Religion”

Migration Act1958 (Cth) s476(1)

Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823 – cited
Minister for Immigration and Multicultural Affairs v Zheng [2000] FCA 50 – not followed
Tang v Minister for Immigration and Multicultural Affairs [2000] FCA 985 – not followed
Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225 – considered
Chen Shi Hai v Minister for Immigration and Multicultural Affairs  (2000) 170 ALR 553
Zolfagharkani v Canada (Minister of Employment and Immigration (1993) 3 F.C 540 - cited
Chang v INS 119 F3d 1055 (3d circuit, 1997) – cited
Namitabar v Canada (Minister of Employment & Immigration) (1994) 2 F.C. 42 – cited
Fathi-Rad v Canada (1994) 77 F.T.R 41 – cited
Bastanipour v INS 980 F.2d 1129 (7th circuit, 1992) – cited
Okere v Minister for Immigration and Multicultural Affairs (1998), 157 ALR 678 – considered
Fosu v Canada(Minister of Employment and Immigration)(1994) 90 FTR 182 – cited
Irripugge v Canada (Minister of Citizenship and Immigration)(2000) 94 A.C.W.S. 3d 733 - cited
Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 – applied
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 – cited
Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 – applied
Danian v Secretary of State for the Home Department [2000] Imm AR 96 - considered
Secretary of State for the Home Department v Ahmed [2000] 1 NLR 1 – considered
The Little Company of St Mary (SA) Incorporated v The Commonwealth (1942) 66 CLR 368 – cited
Nguyen v Nguyen (1990) 169 CLR 245 – cited

WANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N490 of 2000

JUDGES:      WILCOX, GRAY and MERKEL JJ
DATE:          10 NOVEMBER 2000

PLACE:         SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY

N 490 OF 2000

BETWEEN:

JI DONG WANG
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

WILCOX, GRAY AND MERKEL JJ

DATE OF ORDER:

10 NOVEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.The orders of the trial judge and the decision of the Refugee Review Tribunal be set aside.

3.The matter be remitted to the Refugee Review Tribunal to be determined in accordance with law.

4.In the event there is a dispute…

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AGLC
Wang v MIMA [2000] FCA 1599
Case
[2000] FCA 1599
Decision Date

CaseChat Overview and Summary

The case of Wang v MIMA involved the appellant, a Chinese national, appealing a decision of the Refugee Review Tribunal (RRT) and the Federal Court that denied his application for a protection visa. The appellant, a Christian, claimed persecution in China for his religious activities, which were conducted in unregistered churches and included attending religious meetings and distributing Bibles. The RRT found that the appellant's fear of persecution was due to his unlawful conduct rather than his religion. The appellant challenged this decision in the Federal Court, which was subsequently appealed to the High Court.

The central legal issue before the court was whether the appellant's fear of practising his religion in a manner that was unlawful under Chinese law constituted a fear of persecution based on his religion or his illegal activities. The court had to determine if the appellant's fear qualified as persecution under the Convention definition, considering that persecution for illegal activities is generally not covered. If the fear stemmed from both religious and legal grounds, the presence of a Convention reason was sufficient for protection, as established in previous cases such as Chokov v Minister for Immigration and Multicultural Affairs.

The court examined the facts of the appellant's detention, interrogation, and threats by Chinese authorities due to his religious activities. Despite the appellant's warnings and the illegal nature of his activities, the court recognised that his primary motivation was religious. The court concluded that the appellant's fear of persecution was indeed due to his religion, not his unlawful actions. Therefore, the appeal was allowed, and the decision of the RRT and the Federal Court was set aside. The case was remitted to the RRT for reconsideration, with provisions for addressing any disputes over its constitution. Additionally, the respondent was ordered to pay the appellant's costs.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the trial judge and the decision of the Refugee Review Tribunal be set aside.

3. The matter be remitted to the Refugee Review Tribunal to be determined in accordance with law.

4. In the event there is a dispute over the constitution of the Refugee Review Tribunal that is to determine the matter the parties have liberty to apply on that issue.

5. The respondent pay the appellant’s taxed costs of the proceeding and of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The appeal raises the question of whether a person’s fear of practising religion in a manner rendered unlawful by the laws of that person’s country of nationality is a fear of persecution by reason of the person’s religion or by reason of the person having broken the law. Of course, if the fear is for both reasons then the fact that only one of the reasons is a Convention reason is sufficient to attract the protection of the Convention: see for example Chokov v Minister for Immigration and Multicultural Affairs [1999] FCA 823 at [29]-[30] and the cases referred to therein.The RRT’s decision The appellant’s claims were as follows. He and members of his family were practising Christians and in 1988 they began to attend a church in Jiangsu that was not registered with the Government. The appellant attended church regularly and joined in prayer with fellow members and would sometimes read the Bible to them. The appellant also attended meetings of a religious association once a month in Jiangsu. Shortly before Christmas 1995 the appellant was detained by the Public Service Bureau (“PSB”) when he was attending a religious meeting. He was held in a cell for four days and was “constantly questioned and…was beaten”. At the end of the four days he was released. Over the next six months on a number of occasions the appellant’s shop was broken into and items in it were damaged. He reported the incidents to the police but was told that he was “under investigation” and that the police did not want to assist him in connection with the break-ins. On 20 October 1996, after attending a religious meeting at a fellow member’s home, the appellant was again arrested and interrogated. He was attacked by two officers and, as a result, woke up in the No 2 People’s Hospital of Changzhou City. Three fellow members were imprisoned and were still in jail at the date of the decision of the RRT. Between December 1995 and October 1996 the appellant was twice detained by the PSB, for several days each time, and questioned about his religious beliefs. In November 1996 the PSB closed the church the appellant attended, although it was later opened as a registered church. In spite of warnings that if he persisted in his religious practices he would be detained again, the appellant met secretly with fellow members for prayer. In 1996 officers of the Religious Affairs Bureau came to the appellant’s shop and told him that his church was not approved and if he continued to attend it he would be imprisoned. The first break-in at his shop had occurred the day after he was given this warning. In May 1997 the appellant decided to leave China because the PSB threatened to arrest him if he continued to print and distribute Bibles which he had been distributing from his shop. His stock of Bibles had been confiscated. The appellant was able to leave China after a passport had been arranged for him for “a large fee”. Since arriving in Australia the appellant has been regularly attending the Chinese Presbyterian Church every Sunday and he was baptised on 22 February 1998.

Ratio Decidendi

Legal Principle Established

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