SBCC v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: Introduction 1 The appellant who is a citizen of the Peoples Republic of China came to Australia in 1999 on a short stay tourist visa. He overstayed and was not apprehended until 2004. In February 2005, while in immigration detention, he applied for a protection visa. He claimed he had become a practitioner of the Falun Gong religion in 2002 at his wife's instigation following her arrival in Australia. She had visited Australia in 2002 and stayed with him until her return to China in 2004. He claimed that after her return she had been detained on account of her Falun Gong activities. 2 The appellant asserted that if he returned to China he, like his wife, would be persecuted on account of his Falun Gong beliefs. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused his application for a protection visa. The Refugee Review Tribunal (the Tribunal) affirmed the Minister's decision. It found that he had fabricated the claim that he had become a Falun Gong practitioner in 2002. It rejected his contention that his wife had been detained upon her return to China. It was not satisfied that his involvement in Falun Gong activities after being taken into detention in 2004 was otherwise than for the purpose of strengthening his refugee claims. 3 The appellant sought judicial review of the Tribunal's decision in the Federal Court. Mansfield J dismissed his application. He now appeals from that decision. 4 For the reasons that follow, we are of the opinion that there was no jurisdictional error exposed in the reasoning of the Tribunal and no error in the approach taken by Mansfield J. There were comprehensive findings of fact adverse to the appellant and the refusal of his protection visa turned upon those findings which were open on the materials before the Tribunal. The appeal will therefore be dismissed with costs. Procedural background 5 The appellant is a Chinese national born on 25 February 1962. He arrived in Australia on 25 April 1999 on a direct flight from China. He entered on a Class 676 Short Stay Tourist Visa which permitted him to remain for three months. He overstayed that visa and was eventually detained on 24 May 2004 pursuant to s 189 of the Migration Act 1958 (Cth) (the Act). Following his detention which was initially at Villawood Detention Centre, he was taken to the Baxter Immigration Detention Facility. On 18 February 2005 the appellant lodged an application with the Department of Immigration and Multicultural and Indigenous Affairs (the Department) for a protection visa. 6 The appellant is married and has one child. His wife did not accompany him on his trip to Australia. In a statutory declaration which accompanied his application for a protection visa, he said that she had become a follower of the Falun Gong religion in about February 1999. She visited Australia in April 2002. The appellant then noticed that she practiced Falun Gong strictly. She taught him about the religion while she was in Australia. 7 The appellant said in his statement that the Chinese authorities had branded Falun Gong as a counter-revolutionist religion. His wife returned to China in June 2004. According to the appellant this was because her visa had expired. He said she was arrested in Shanghai in or about November 2004. He contacted other family members to find out where she was. They told him that she had been taken away and that they did not know what had happened to her. He said that in China once a person is arrested for being a follower of Falun Gong they are interrogated and then imprisoned or killed. 8 The appellant claimed to practice the Falun Gong religion daily. He feared that if he were returned to China he would be imprisoned or killed because of his religion. Even if he were to practice it secretly his wife had already been identified as an adherent and for that reason the authorities were likely to target him also. 9 The application for a protection visa was refused by a delegate of the Minister on 8 March 2005. On 13 March 2005 the appellant lodged an application for review of the delegate's decision with the Tribunal. The application was heard on 22 April 2005 and on 27 April 2005 the Tribunal affirmed the decision of the delegate not to grant a protection visa. The appellant then filed an application for judicial review of the Tribunal decision. That application was heard by Mansfield J and dismissed on 22 March 2006. On 6 April 2006 the appellant filed a notice of appeal from the judgment of Mansfield J. The Tribunal's reasons for decision 10 The Tribunal reviewed the written claims made in support of the application for a protection visa and in support of the application to the Tribunal. It also reviewed the oral evidence given by the appellant at the hearing on 22 April 2005. 11 In his oral evidence the appellant said that the Chinese passport on which he had travelled to Australia had been lost when a friend with whom he was staying moved house. He had made no application for a new passport as he did not speak English and did not know how to get another passport in a foreign country. He had obtained employment through his friend at a fish and chip shop in Ashfield and had used somebody else's tax file number. 12 The appellant was asked about his wife's practice of Falun Gong in China in 1999. He said that before he left he did not take much notice of that. She practiced with a friend in the mornings and evenings and usually they did so inside their home or at her friend's home. He did not know whether there was any other aspect of his wife's belief and practice of Falun Gong in addition to the exercises. He would speak with her on the phone from Australia after he arrived here in 1999. She did not make any mention of Falun Gong in their conversations. 13 According to the appellant, his wife came to Australia on 25 April 2002. He could not recall whether her visit was private or work related. He thought it was an official trip. His wife worked for the Science and Technology Company in Shenzhen. However she stayed in Australia for more than two years and then returned to China. There appears to have been no evidence from the Department about her entry into, or departure from, Australia. 14 The appellant told the Tribunal that two months after his wife arrived in Australia he discovered that she hadchanged. She attributed her change to Falun Gong and suggested that he practice with her. He observed her practicing Falun Gong in Australia at this time. She would do Falun Gong exercises in the morning and in the evening. He began doing them with her. He said that he noticed a change in himself. He said that Falun Gong helps the health and helps people to speak the truth. His wife taught him how to practice. She taught him the exercises. His wife and another person bought Falun Gong tapes and he asked her questions. He claimed to know the exercises well. He did not know much about the books. 15 The appellant was asked by the Tribunal what he knew of the teachings of Falun Gong's spiritual leader, Master Li Hongzhi. He replied that Master Li had written the principles of Falun Gong and how it should be practiced. He had one of the Master's books known as the Zhuan Falun, but did not have it with him. Asked if he knew the name of any of the Master's other books, he gave the response, 'Basic knowledge of practicing Falun Gong'. He had two tapes and a record of the Master's lectures. The Tribunal asked how often he read the Master's book. He said he read it when he practiced at night. He tried to memorise key phrases about the practice of the exercises. 16 The appellant told the Tribunal that he and his wife had continued to practice Falun Gong when they moved from Auburn to Ashfield. They practiced indoors or in the courtyard of their house. Asked if he went to meetings or discussion groups at that time the appellant said he sometimes spoke to work colleagues during work breaks. He went to an organised site at Campsie once or twice. He knew of one senior person there but none of the organisers. He could not practice regularly because he was working a ten hour day. 17 The appellant said his wife had returned to China on about 31 May 2004. Her visa had expired. He contacted her a few times after her return. In November 2004, by which time he was in immigration detention, he learned from his parents in China that she had been arrested. The appellant told the Tribunal that his wife had been held in detention in China for five or six months at the Quing Pu Correctional Centre. She had not been charged with any offence but had been told not to continue practising Falun Gong. He could not corroborate this claim. He said his wife had been given no paperwork in relation to her arrest, detention or cautioning. 18 The appellant said he continued practising Falun Gong after his wife left Australia. He continued while in the Villawood Detention Centre. He did not take part in any other Falun Gong related activities. 19 The Tribunal explored with the appellant his understanding of Falun Gong. He told the Tribunal it was based on principles of truthfulness, benevolence and compassion. The Tribunal observed in its reasons that the appellant '… gave vague and complicated explanations of the significance of the Falun and after careful guidance and direction was able finally to state that it is a wheel of law rotating in the lower abdomen'. 20 The Tribunal asked the appellant about the attributes of a Falun Gong practitioner who cultivates at a high level. The appellant said such a person could fly from Australia to the USA. The Tribunal noted that this was not what the Master described for such a person. The appellant was asked to name one of the set of five Falun Gong exercises and was able to do so. He described its purpose as to 'purify a being'. He did not know how, according to Master Li's instructions, the exercise had that effect. Asked what the Master instructed a practitioner to do, think and imagine in preparing for the exercise, the appellant responded that he called on one to forget all other thoughts and to forget self. Asked whether he wanted to say anything else about his practice and cultivation, the appellant did not add anything. 21 Challenged by the Tribunal about the depth of his knowledge of Falun Gong, the appellant said that because he had not been an adherent for very long he did not have a deep level of knowledge. He claimed, however, that he was a genuine practitioner. Asked how he would practice Falun Gong if returned to China he said he would continue to practice at his home. He added that he would sometimes go and practice with friends in a park. There is less chance of detection in parks. Asked why he would seek to practice in a park in China given that he had not done that regularly in Australia, he said he had worked long hours in Australia and could only practice at home. 22 The Tribunal apparently put to the appellant that he had been in Australia since 1999 and claimed to have practised Falun Gong since 2002. However he did not make any application for a protection visa until February 2005 even though he had been detained in May 2004. The appellant said that if he had become a Falun Gong practitioner in order simply to enhance his claim for refugee status he would have made an application for a protection visa much earlier. He did not do that. He only applied for the protection visa when he learned that his wife had been detained in China. It was put to him that he had not applied for the protection visa until February 2005 even though his wife had been detained in November 2004. He said he did not have any way initially of knowing the reasons for her detention. 23 The Tribunal referred to independent country information which included an overview of Falun Gong belief and practices contained in the UK Home Office China Country Assessment of October 2002. In that overview it was said that there are five main exercises within the exercise regime element of the movement. These are broken down to 20 specific physical movements. The key figure in Falun Gong is Li Hongzhi. As the rediscoverer of the Way, he has unique status as the principal teacher and final arbiter of doctrine. His pronouncements are taken as guiding principles. He is said to live in exile in the United States. According to the UK Home Office report, the development of Li Hongzhi as a hate figure is a key element of the Chinese propaganda campaign against him. Chinese authorities have formally branded Falun Gong as an 'evil cult'. 24 In the section of its reasons dealing with its findings, the Tribunal said (at 15): 'Having had the opportunity to take oral evidence from the applicant the Tribunal has concluded for the reasons that follow that he is not a credible witness and has fabricated the claim that he has been a Falun Gong practitioner since mid 2002.' 25 The Tribunal then stated that it found the appellantto have been vague and evasive in his evidence concerning the circumstances of his travel to Australia, the loss of his passport and his failure to obtain a new one. He was also vague about the circumstances of his wife's travel to, and stay in, Australia for a period of more than two years. 26 The Tribunal accepted that the appellant knew the five sets of Falun Gong exercises and could do them fluidly. In terms of his knowledge of Falun Gong at another level he was able, with some assistance, to speak generally of the Falun and demonstrate where it is located and how it rotates. He was not able to recall for the Tribunal how it is described in the words of the Master. He knew nothing of the concept of Celestial Eye or the term for the highest level of cultivation described in Master Li's teaching as 'the cultivation of the Budha's body' (sic) saying only that when cultivated at a very high level one could fly from Australia to the United States. The Tribunal found that the appellant was able to name the particular exercise which it asked him about, but was unable to explain its significance or purpose and could not tell the Tribunal what instructions the Master gave the practitioner preparing to do the exercise. 27 The Tribunal accepted that the appellant knew some of the basic principles of Falun Gong. However, the problems with his evidence cumulatively led the Tribunal to have serious doubts about his credibility and the truthfulness of the claim that he had been a Falun Gong practitioner since 2002. The Tribunal said (at 16): 'In addition to the applicant's limited knowledge about the teachings of Master Li, the nature of his practise and the depth of his study in 2002 up until the time of his detention in 2004 could only be described as off-hand and casual. This does not suggest a serious and dedicated practitioner and cultivator.' 28 The Tribunal found the appellant had not been truthful and had invented the claim that he had been a Falun Gong practitioner since 2002. It accepted that he had more recently commenced the practice of Falun Gong exercises while in detention in Villawood and Baxter. The Tribunal then said (at 16): 'However, because he fabricated his claims about being a Falun Gong practitioner from 2002 and given that his knowledge of Falun Gong is even at this stage quite superficial the Tribunal is not satisfied that the applicant engaged in those activities otherwise than for the purpose of strengthening his refugee claim. It must thus disregard those activities pursuant to s 91R(3) of the Act.' 29 The Tribunal found that the alleged circumstances through which the appellant's wife's Falun Gong practice was discovered by a neighbour were implausible. It did not accept that she was detained in China because she practised Falun Gong. This claim had been fabricated to support aspects of the appellant's claims that he was a Falun Gong practitioner and feared that he would be harmed in China for that reason. Having regard to the delay in his application for a protection visa and his explanations for it, the Tribunal said (at 16): 'The Tribunal has not accepted that his wife was detained as he has claimed and finds that the actions of the applicant since his own detention and his wife's departure from Australia further evidence his efforts to create a profile for himself that would assist the application for refugee status which was eventually made in February 2005.' The Tribunal continued (at 17): 'As the applicant is not a genuine Falun Gong practitioner and has engaged in Falun Gong activities in Australia solely to strengthen his refugee claim the Tribunal finds that he will not seek to practise Falun Gong if he returns to China.' The Tribunal found that the appellant did not have a well-founded fear of persecution in China for a Convention reason and affirmed the decision not to grant a protection visa. The reasons for decision of the Primary Judge 30 In reviewing the Tribunal's reasons his Honour said (at [4]): 'There appears to be little doubt that the Tribunal accepted that active and public participation in the Falun Gong movement in China would render the applicant vulnerable to persecution by the Chinese authorities. The applicant's claim failed before the Tribunal simply because it did not accept that he has been a Falun Gong practitioner since mid-2002.' 31 There were three grounds of asserted jurisdictional error before his Honour. The first was constructive failure by the Tribunal to exercise jurisdiction. The second was a breach of the rules of natural justice by reason of apprehended bias. The third was that its adverse finding on credibility was not based on logical grounds. His Honour rejected each of these grounds. In his view the Tribunal's finding of fact that the appellant had been untruthful, in particular about his claim to have been a Falun Gong practitioner since mid 2002, was within jurisdiction. It was based upon the way the appellant had responded to the Tribunal's questions on a number of matters and upon his own evidence as to the nature of what he claimed to have done as a Falun Gong practitioner until mid 2004. It was also based on his 'quite superficial' knowledge of Falun Gong. The foundations for the Tribunal's findings of fact were reasonably open. 32 The fact of the fabrication of the appellant's early involvement with Falun Gong, together with his limited knowledge of it, led the Tribunal to not be satisfied that his involvement more recently was otherwise than for the purpose of strengthening his claim to be a refugee. In those circumstances s 91R(3) of the Act directed the Tribunal to disregard the more recent Falun Gong involvement. 33 On the question of apprehended bias, his Honour reviewed the Tribunal's questioning of the appellant and concluded that neither at the hearing before the Tribunal nor in its reasons for decision was there any indication that the Tribunal had addressed the issues in a way which might be understood as indicating a mind not open to persuasion or a mind not prepared fairly to evaluate the claims. Counsel for the appellant had contended before his Honour that the Tribunal had focused on whether the appellant '[came] up to scratch on whatever scale of religious zealotry the Tribunal sees fit'. This was said to show the Tribunal's purpose was apparently to reject the appellant's claimed commitment as a practitioner of Falun Gong. 34 His Honour did not consider the Tribunal's questioning of the appellant on his knowledge of the exercises and cultivation of Falun Gong was capable of indicating a closed mind on its part. It had to address his claim to have been a Falun Gong practitioner since mid 2002. It had reason to doubt the accuracy of the claim based on other aspects of the appellant's evidence. Its questions were directed to testing his knowledge of Falun Gong exercises and practice. It did so by using material which it identified and of which the appellant said he was aware. The questioning was neither unreasoned nor unreasonable. The conclusions about the appellant's level of knowledge were not based on selective material. Nor did they lack a foundation in the material referred to. 35 In relation to the contention of illogicality, his Honour said it was based in large measure upon the same material addressed in relation to the contention of bias. His Honour was not persuaded that the Tribunal's reasoning was flawed in any of the ways which would support a conclusion of jurisdictional error. It identified the materials it relied upon. Save for its consideration of the material about the appellant's level of knowledge of Falun Gong exercises and cultivation, no particular criticism was made of its reasoning. The material referred to was capable of supporting its assessment of the appellant's reliability generally. The appellant also failed on that ground. For the preceding reasons his Honour dismissed the application. The grounds of appeal 36 The grounds of appeal are as follows: '1. The learned primary judge erred in: 1.1 holding that, as the Second Respondent's state of satisfaction in relation to subs 91R(3) of the Migration Act 1958 (Cth) ("the Act") was based on a number of findings, that state would not be affected by there being no evidence or other material before it to support one of those findings; and 1.2 not holding that, if there was no evidence or other material before the Second Respondent in relation to one of those findings, the Second Respondent could not have formed the required state of satisfaction in relation to subs 91R(3) of the Act. 2. The learned primary judge erred in not finding: 2.1 there was no evidence of other material before the Second Respondent to support a finding by it that every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion; and 2.2 the member constituting the Second Respondent was not an expert in relation to the Falun Gong religion. 3. The learned primary judge erred in not holding that, in light of the findings set out in paragraphs 2.1 and 2.2 above, the Second Respondent: 3.1 did not form the required state of satisfaction in relation to subs 91R(3) of the Act; and 3.2 therefore exceeded its jurisdiction or constructively failed to exercise its jurisdiction.' Statutory framework 37 It is only necessary for present purposes to make specific reference to s 91R(3) of the Act. Section 91R was introduced into the Act by the Migration Legislation Amendment Act (No 6) 2001 (Cth). Section 91R(3) provides: 'For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.' 38 In the Explanatory Memorandum for the Bill the new subsection was explained thus: '25. New subsection 91R(3) applies to sur place claims. It is generally accepted that a person can acquire refugee status sur place where, as a consequence of events that have happened since he or she left his or her country of origin, he or she has a well-founded fear of persecution upon return to that country. Difficulties have arisen in cases where Australian courts have found that a person may act while in Australia with the specific intention of establishing or strengthening their protection claims and this intention cannot be taken into account in assessing the existence of protection obligations under the Refugees Convention. 26. Actions undertaken intentionally to raise the risk of persecution or create the pretext of such a risk, raise also serious questions about the presence of subjective fear in the mind of the protection visa applicant. In order for a fear of persecution to be well founded, it must be both objectively and subjectively based. Under new section 91R, for the purposes of the application of the Act and the regulations to a particular person, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention.' 39 The background to the enactment of s 91R(3) and its characterisation for constitutional purposes and connection with various heads of power under the Constitution were discussed by Mansfield J in SAAS v Minister for Immigration and Multicultural Affairs [2002] FCA 726. Wilcox J said of it in NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1536 (at [26]): 'The effect of s 91R(3) is that an applicant has an onus of proof in relation to activities in Australia. The person must satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in "otherwise than for the purpose of strengthening the person's claim to be a refugee". The onus of proof is, no doubt, to the civil standard; but it is an onus borne by the applicant. It is a change from the usual position faced by the Tribunal, where the benefit of doubtful facts must be given to an applicant for refugee status.' The first ground of appeal 40 The first ground of appeal was opaque in its formulation. As explained in the written submissions it appears to have been directed to what was needed for the Tribunal to be satisfied, for the purposes of s 91R(3), that the appellant had engaged in Falun Gong activity otherwise than for the purpose of strengthening his claim to be a refugee. 41 Counsel for the appellant referred to the observations of the learned primary judge that the Tribunal had found the appellant to have fabricated his early involvement with Falun Gong and that this together with his limited knowledge of the religion, led the Tribunal not to be satisfied that his recent undertaking of Falun Gong activities was other than for the purpose of strengthening his claim to be a refugee. The learned primary judge's reasons were said to be in error in that he combined the Tribunal's finding of fabrication about early involvement with its finding about the appellant's limited knowledge of Falun Gong. The later finding of limited knowledge was said to be affected by jurisdictional error because the Tribunal applied its own knowledge of Falun Gong as setting the standard for determining that the appellant did not have an adequate knowledge of his claimed religion. 42 The appellant cited Wang v Minister for Immigration and Multicultural Affairs (2000) 105 FCR 548 at 551-52, in which Gray J doubted the correctness of a Tribunal approach to a finding of religious adherence based upon its judgment of the sufficiency of the applicant's practice and religious knowledge. The appellant submitted that there was no evidence before the Tribunal that every member of Falun Gong must know in detail the matters upon which the Tribunal questioned the appellant. 43 It is sufficient to say that the Tribunal's findings of fact were clear and open on the evidence and were fatal to the appellant's claims. The Tribunal found that the appellant had fabricated his claim to be a Falun Gong practitioner since 2002. It accepted that he had done Falun Gong exercises while in detention but because of his fabrication of earlier involvement and what it regarded as his superficial knowledge, the Tribunal was not satisfied that he had engaged in the more recent activities other than for the purpose of strengthening his refugee claim. 44 The Tribunal rejected the appellant's claim that his wife had been detained in China. That claim having been rejected, the appellant's claimed motivation for applying for a protection visa in February 2005 fell away. It will be remembered that he claimed, in effect, that it was not until his wife was detained in China and that he became aware that she was detained because of her Falun Gong activities, that he feared for his own safety if returned to China and applied for a protection visa. The Tribunal found, in effect, that not only was the appellant not a genuine Falun Gong practitioner in 2002, he was not a genuine practitioner at the time of his hearing before it. 45 Whatever reservations might properly be held about the exploration of a person's religious knowledge in determining whether he or she is an adherent to a particular religion, it does provide a rational foundation for determining whether a person's claim to profess a particular religion is genuine. Such an inquiry is necessary in a case in which a person claims that his or her continued adherence to a religion upon return to the home country will attract persecution on that ground. Here, there was ample ground for the Tribunal to find that the appellant's case was fabricated and, a fortiori, that it could not be satisfied as required by s 91R(3) that his engagement in Falun Gong activities was otherwise than for the purpose of strengthening his claim to be a refugee. The second ground of appeal 46 The second ground of appeal was said to go to the 'apparent imposition by the Tribunal of a standard that it imposed as to the requisite level of knowledge of Falun Gong doctrine that might attract Falun Gong status'. There was, it was said, no evidence before the Tribunal to indicate any 'cut off' point for an acceptable minimum level of knowledge for a Falun Gong practitioner. 47 The short answer to this contention is that where a person makes a claim to be an adherent to a particular religious movement or set of beliefs, the Tribunal can quite legitimately explore what that person knows about the religion in order to assess the genuineness of the claim. That is what happened in this case. 48 Any criticism of the process of the Tribunal's reasoning to a finding on credit does not expose jurisdictional error. It is also to be borne in mind that the Tribunal's assessment of credit in this case was based upon more than just the appellant's level of knowledge of his professed religion. 49 The second ground of appeal as formulated is also based upon the assumption that the Tribunal held that 'every believer or follower of the Falun Gong religion must have certain knowledge or provide certain answers concerning aspects of that religion'. This was not a proposition enunciated or implied in the Tribunal's reasons. 50 Ground 2 therefore fails. The third ground of appeal 51 In support of the third ground of appeal, the appellant contended that the Tribunal had failed to make findings of fact in respect of his claim to have been a Falun Gong adherent on the basis of his wife's encouragement quite irrespective of any refugee claim and, in particular, in respect of the period after his wife was detained in China in 2004. Such a failure was said to go to jurisdictional error. 52 The Tribunal, however, was not satisfied that the appellant's wife was detained and found that the claim of pre 2004 involvement in Falun Gong activities was fabricated. The foundation upon which this ground of appeal rests is not made out and the ground fails. Conclusion 53 For the preceding reasons the appeal will be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.