MZXMG v Minister for Immigration & Citizenship

FEDERAL MAGISTRATES COURT 4 In relation to the Tribunal's rejection of his claim to have suffered persecution as a result of his practice of Falun Gong, the Federal Magistrate rejected the appellant's contention that the Tribunal erred in not considering his claim to have been mistreated, on the ground that it had rejected his core contention that he had been a Falun Gong practitioner in China, which was the only basis put forward for the alleged mistreatment. 5 In relation to the appellant's claim that the reasoning process behind the Tribunal's decision was illogical, unreasonable or irrational, his Honour said at [22]: Whilst matters raised by the applicant are important considerations in many cases, it is ultimately for the decision-maker to determine whether or not an applicant or witness is accepted. The matters specifically referred to by the decision-maker in this case logically lead to the conclusion the tribunal reached. It could not be said that these findings are irrational or so unreasonable that jurisdictional error has been established. Nor could it be said that the conclusions could have only beenreasonably reached if one overlooked evidence before the Tribunal. Whilst others may have come to a different conclusion on the evidence, that is not, of itself, a basis for showing jurisdictional error. 6 His Honour was unable to discern any jurisdictional error on the part of the Tribunal, and dismissed the application for review.

APPEAL TO THIS COURT 7 The appellant claims that the Magistrate erred in failing to find jurisdictional error on the part of the Tribunal on the following bases: (a) failing to make findings in relation to one of the appellant's claims or a claim raised on the material before the Tribunal. (b) a fact‑finding and reasoning process that was illogical, unreasonable or irrational.

Failure to make findings 8 The contention here is that the Magistrate erred in rejecting the appellant's contention that the Tribunal did not consider or determine whether he had a well‑founded fear of persecution by reason of his imputed practice or membership of Falun Gong (the imputation question). It was said that the Tribunal concluded that he had not been persecuted by reason of actual practice or membership of Falun Gong, which was a finding on the appellant's "explicit claim". 9 In his application in the Magistrates Court the appellant contended that the Tribunal had made a jurisdictional error by failing to determine the imputation question. Before the Magistrate the appellant submitted that: assuming the Court accepts that the claim of imputed Falun Gong practice was raised on the material before the Tribunal (which the applicant submits should be accepted), the applicant will succeed … if he can establish that … there was no finding on [that claim]. 10 The Magistrate appears to have misunderstood the submission, as appears from the following passage from his reasons at [8] and [9]: The argument for the applicant was that the Tribunal must first determine whether the applicant had suffered detention and torture as he claimed, before deciding whether the detention and torture were due to a Convention reason. Once the Tribunal has determined that one element cannot be fulfilled, it does not appear to me to be necessary for the Tribunal to then consider the other elements of the claim as the applicant cannot succeed from this point onwards. 11 It thus appears that the Magistrate did not deal with the imputation question. It is clear from the Tribunal's reasons that the appellant's only propounded case was based on his actual practice of Falun Gong in China. The person who made submissions on his behalf before the Tribunal did not put an alternative case of imputed membership of Falun Gong. Nevertheless the relevant ground of appeal the appellant wished to air before the Magistrate was that the Tribunal was obliged to consider the imputation question because it was available on the material before the Tribunal. 12 The appellant's counsel accepted, in my view correctly, that it was not sufficient for him to establish this error on the Magistrate's part. In order to secure effective relief if this ground of appeal were made out, he also needed to show the same error on the Tribunal's part. 13 In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 219 ALR 27 ('NABE') a Full Court said at [61] and [68]: the tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The tribunal's obligation is not limited to procedural fairness in responding to expressly articulated claims but … extends to reviewing the delegate's decision on the basis of all the materials before it. A judgment that the tribunal has failed to consider a claim not expressly advanced is … not lightly to be made. The claim must emerge clearly from the materials before the tribunal. 14 Conformably with NABE, the appellant accepts that in order for this contention to succeed, the imputation question must emerge clearly from the material before the Tribunal. In my view it does not so emerge. The matter must be explored at two points in time. What was raised by the raw material before the Tribunal as it began its consideration of the case was an express claim of actual practice of Falun Gong by the appellant and actual persecution by the authorities because they knew of his practice. No question of imputation arose. It was not put, doubtless because it would have been inconsistent with the express claim. Once the primary case failed on the basis of presently unchallenged credibility findings, it was said before the Magistrate and in this Court that the Tribunal ought to have gone on to consider the imputation question, even though no claim had been made on that basis. At this stage however the "material before the Tribunal" consisted of what was left of the material initially before it after the excision of those parts of the appellant's claims that had been rejected: in particular his claims that he had practised Falun Gong and had been mistreated by the authorities because of that. 15 In support of the contention that the material before the Tribunal clearly raised the imputation question the appellant relied on three matters. The first was a sentence from the appellant's visa application: I was, and am severely oppressed by the Chinese government both physically and mentally. However, in context, this passage is tied to his membership and practice of Falun Gong. In the preceding sentence he speaks of his membership of Falun Gong, his receipt of the faith and truth of the Falun Gong belief, and his joy derived from his religious and physical practice. In the succeeding sentence he says he can't give up his belief. Reliance on this sentence thus fails because the Tribunal rejected the claim that the appellant was a Falun Gong member and practitioner. 16 The second matter relied on is a letter from Foundation House stating that the appellant is suffering from anxiety and depression. This must be put aside because it does not relate the appellant's condition to any Convention reason. 17 Reliance is then placed on a passage from the appellant's statutory declaration that was before the Tribunal. First he says that when he was detained in November 1999, one of the officers involved asked if he was "still practising Falun Gong". Later when the appellant asked why he had been detained, the officer said it was because he was "practising Falun Gong". This does not assist the appellant, because the Tribunal rejected his claim to Falun Gong membership and the ensuing consequential arrests on unchallenged credibility findings. 18 The material that survived the Tribunal's rejection of the appellant's express claim does not raise clearly, or at all, a case of imputed membership of Falun Gong. Three of the particular items relied on by the appellant in this connection did not so survive. The Foundation House letter may have survived, but is valueless in this connection. 19 The factual basis for the imputation question is the same as that for the express claim. There is no suggestion in the material that there is any basis for the imputation of a Falun Gong connection other than the appellant's practice of Falun Gong. There was no foundation upon which the Chinese authorities could impute to him a Falun Gong connection other than this practice. Accordingly, I do not accept that the imputation question was clearly, or at all, raised on the material before the Tribunal as it stood after the primary claim had been rejected. 20 The matter may be approached in a slightly different way. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 ('WAEE') at [47] a Full Court said: The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. (Emphasis added) 21 Here the appellant's claimed practice of Falun Gong in China was the factual premise upon which his explicit claim to fear persecution, and the imputation question, rested. Once the premise was rejected, it was unnecessary to make findings on the alleged consequences of that premise, including his mistreatment. The Tribunal recorded the allegation of mistreatment in detail at pages 5 and 6 of its reasons. It did not then forget about it. In announcing its conclusion at page 15 it said: Based on the evidence before me, including my findings that the applicant's evidence in relation to his practice of Falun Gong in China and his employment history in China lacked credibility, I am not satisfied that the applicant was ever a Falun Gong practitioner in China as claimed …. Accordingly I also find that he was not ever arrested, detained, jailed or tortured by the Chinese government because of his Falun Gong practice as claimed …. What the Tribunal was saying, in my view in plain enough words, was that in light of its finding that the appellant was not a Falun Gong practitioner in China, any mistreatment he may have suffered there was not by reason of the alleged practice. It assumed, without deciding, that he had been mistreated. It did not need to decide whether he had, because his only claim was that he had been mistreated because of his actual Falun Gong practice. That is so whether his concern was that the authorities would be interested in him because of his Falun Gong connections or because they imputed to him such connections. As I have said, there is nothing other than his Falun Gong practice that could have led the authorities to impute to him a Falun Gong connection. Expressing the matter in WAEE language, it was unnecessary for the Tribunal to make an express finding on the imputation question because that was disposed of by its rejection of the express claim. Absent any Falun Gong connection, there was no basis for the imputation. Alternatively, as indicated earlier, the factual basis upon which the imputation rested had been rejected.

Illogical, unreasonable or irrational fact finding 22 The parties were in agreement that if the appellant failed on the imputation question, the second ground could not succeed.

CONCLUSION 23 The first ground of appeal has not been made out, and the second falls with it. The appeal must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Solicitors for the Appellant: Lander & Rogers

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 2 November 2007

Date of Judgment: 30 November 2007