SZACV v Minister for Immigration and Multicultural and Indigenous Affairs

Submissions 5 In relation to the first ground, counsel for the appellant submitted that failure by the Tribunal to refer to the 4 May document was an omission to advert to evidence that was crucial to the determination of the question before the Tribunal. The 4 May document was said to be a notice from the relevant Public Security Bureau (PSB) requiring the appellant to attend the Bureau to report and to declare his intention of 'drawing a clear line' between himself and Falun Gong. The notice warned that failure to comply would result in the recipient being regarded as refusing to repent and 'subject to punishment'. According to the appellant's evidence, this notice followed an earlier notice of 2 March 2001 which required the appellant to attend 'brain wash'. A similar submission to the learned Federal Magistrate was addressed as follows: 'The applicant goes on to state that the [Tribunal] made no reference to the [4 May] document . It is true that that document is not referred to in the reasons but it was discussed with the applicant. At [T12] the Tribunal says: "I don't think that it is genuine, it is just on an A4 size piece of paper so I am not going to take that as being genuine."' 6 Counsel for the appellant submitted that the 4 May document was not the same document that the Tribunal referred to during the hearing as 'just on an A4 size piece of paper'. This was accepted by counsel for the Minister. It appears that the document referred to by the Tribunal during the hearing purported to be a third notice to the appellant dated 3 June 2001, after the appellant's arrival in Australia (the '3 June document'). Counsel for the appellant submitted that the 4 May document was referred to by the Tribunal at the hearing without disbelief being expressed by the Tribunal, and that the import of the document was 'plainly accepted by the Tribunal in the course of the hearing'. The appellant submits that this document was later overlooked, and that in light of the 4 May document, the Tribunal was incorrect when it stated: '[The appellant] also claimed he was picked up by PSB because of his activities involving his [Falun Gong] contact with other people. No further details were provided'. 7 Counsel for the appellant accepted that it was not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons, but cited Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs ('WAEE') (2003) 75 ALD 630, [2003] FCAFC 184 at 641 [46]-[47] for the proposition that the failure to refer to a document of such critical relevance goes to jurisdictional error. The Court in WAEE stated (at 641 [47]): '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' 8 Having accepted that the Federal Magistrate had confused the 4 May and 3 June documents in his reasons, counsel for the Minister submitted that the Federal Magistrate's error was immaterial. Counsel for the Minster submitted that the 4 May document was discussed with the appellant, and referred to in the Tribunal's reasons. The Tribunal identified in its decision, under the heading 'Claims and Evidence', the appellant's claim that he was forced to attend 'brain wash' in March 2001, and the claim that he had been called to attend the Public Security Bureau in 2001. Counsel for the Minister submitted the second of those claims was a reference to the 4 May document. Further, counsel submitted that the Tribunal made findings in relation to these claims, namely that the appellant was not submitted to brain wash but that it was probable that he 'may have been arrested briefly'. Counsel for the Minister pointed to the following passage from the Tribunal's reasons: 'He claims he was submitted to 'brain wash' but provided no details apart from saying he was required to study the regulations of the PSB. Despite the general lack of detail the Tribunal is, nevertheless, prepared to accept that it is probable, given information provided by independent country research, that the applicant may well have been arrested briefly. However, given the applicant's evidence that he did not offer opposition to the authorities' questioning of him the Tribunal does not accept he was subject to 're-education' such as learning the PSB regulations….'(emphasis added) 9 That passage preceded the statement relied upon by counsel for the appellant (see para [6] above). Counsel for the Minister suggested that this statement was 'not a claim related to the documents'. 10 The second ground of appeal is based upon the following passage from the decision below: 'Since WABR v Minister for Immigration [2002] FCAFC 124 the question is no longer what will the applicant do if he goes back but what could he reasonably be expected to do bearing in mind the nature of the proscribed activity and his previous involvement in it. …The Tribunal came to the view, based upon the country information, that an ordinary member of Falun Gong (as it found the applicant to be) could maintain his adherence to that organisation's philosophy in private without risking persecution. That conclusion cannot be attacked as a jurisdictional error.' 11 Counsel for the appellant submitted that the Federal Magistrate had incorrectly relied on WABR v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 196 at 205 [27] ('WABR'). He submitted that there is a distinction to be drawn between homosexual lifestyle (considered in WABR) which may be practised covertly, and religious belief, which requires the ability to proclaim one's beliefs publicly. Counsel for the respondent accepted, for the purposes of this case, that Falun Gong is a religion. 12 In WABR, the Full Court of the Federal Court said: '[I]t was open to the Tribunal to conclude, on the material that was before it, that there was no active program for the prosecution of homosexuals in Iran, so long as they were discreet and conducted their affairs privately. It was also open to the Tribunal to conclude that it was reasonable to expect that the appellant would accept the constraints that were a consequence of the exercise of that discretion.' (at 205 [ 27]) 13 It was submitted by counsel for the appellant that the relevant authority to apply was the Full Court decision in Wang v Minister for Immigration & Multicultural Affairs (2000) 105 FCR 548, [2000] FCA 1599 ('Wang'). In that case, an applicant for a protection visa claimed that he had a well founded fear of being persecuted by reason of the practice of his religion as a Protestant Christian at a church that was not registered in accordance with the requirements of the law of China. The Tribunal found that the applicant could practise as a Protestant Christian in China at an officially registered church, and that he would not be deprived of his right to worship by acceding to the government regulations. In Wang, the Full Court found that the Tribunal had failed to answer the question whether there was a real chance that, if he were returned to the People's Republic of China, the appellant would suffer persecution as a result of carrying out his intention to continue practising his religion in the way that he had, as a member of the congregation of an unregistered church, and remitted the matter to the Tribunal. In the leading judgment,Merkel J (with whom Wilcox and Gray JJ agreed in this respect) explained at 569 [99]: '[T]he question which the RRT posed, but did not answer, must always be whether the claimant has a well-founded fear of persecution for a Convention reason. If that question is answered in the affirmative the protection of the Convention is not forfeited or lost by a determination that the fear has arisen as a result of unnecessary, or even unreasonable, conduct by the claimant.' 14 Counsel for the respondent submitted that the Tribunal made a finding of fact that was open to it, namely that the appellant could continue to practise Falun Gong on a private basis without difficulty. Counsel for the respondent submitted that the appellant never claimed 'to have a burning need to practise with others' and 'there has never been any claim by the appellant in this case that he needed to practise Falun Gong in any particularly extroverted way'. Counsel for the Minister adopted the reasoning of the learned Federal Magistrate, distinguishing the instant case from that of other religions that might have a 'congregational aspect' as follows: 'The Tribunal has found in its reasons that private practice is consistent with Falun Gong teaching and therefore there would be no retreat from any of the identifying features of the group. To that extent there is no relevance in the findings of Merkel J in Wang v Minister for Immigration (2000) 205 FCR 548 at [97 and 98] which the applicant relied on in his original submissions.' 15 Subsequent to the hearing before me, the High Court handed down its decision in the case of S395/2002 v Minister for Immigration and Multicultural Affairs; S396/2002 v Minister for Immigration and Multicultural Affairs (2003) 203 ALR 112, [2003] HCA 71 ('S395'). In S395 the High Court considered a Tribunal decision in which the applicants were found to be homosexual men from Bangladesh. By majority, the matter was remitted to the Tribunal which was found to have asked itself the wrong question. In that case, the Tribunal set out, by way of background information, 'the situation of homosexual men in Bangladesh' and stated: '[H]omosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh….However, Bangladeshi men can have homosexual affairs or relationships, provided they are discreet.' The Tribunal rejected many of the applicants' claims, but found that they were homosexuals and said, consistent with statements from the Full Court in WABR, that the appellants:

'did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. [The appellants] lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.' 16 In the High Court, the majority was made up by the joint judgments of McHugh and Kirby JJ, and Gummow and Hayne JJ. McHugh and Kirby JJ cited the above passage from WABR (see para [12] above),and stated that 'this statement of the Full Court should have played no part in the Court's reasoning process' (at 124 [49]). McHugh and Kirby JJ explained (at 125 [50]): 'In so far as decisions in the tribunal and the Federal Court contain statements that asylum seekers are required, or can be expected, to take reasonable steps to avoid persecutory harm, they are wrong in principle and should not be followed.' Similarly, Gummow and Hayne JJ stated (at 131 [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.'

'The tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection…No less importantly, if the tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well founded fear of persecution. It has asked the wrong question. ' Gummow and Hayne JJ found that the primary judge and the Full Court both read the Tribunal's reasons as finding that the appellants were likely to live in a way that would not cause Bangladeshi society to confront their homosexuality, but that the Tribunal 'did not ask why the appellants would live "discreetly"' (at [88]). 18 I note that the minority judgment of Callinan and Heydon JJ, who together with Gleeson CJ would have dismissed the appeals in S395, places some reliance (at 139 [107]) on the fact that the appellants 'did not seek to make a case that they wished to express their homosexuality in other than a discreet, indeed personal, way'. Their Honours found that: 'On the tribunal's findings, no fear of such harm as could fairly be characterised as persecution imposed a need for any particular discretion on the part of the appellants: such "discretion" as they exercised, was exercised as a matter of free choice. The outcome of these proceedings might have been different - it is unnecessary in this case to decide whether that is so - if that position were different.' (at 141 [110])

19 That is not the position in the instant case. In his written submission to the Tribunal, the appellant wrote:

'Since Falun Gong was banned in July 1999, our activities have become "illegal". We could not practice [sic] Falun Gong publicly. Most of the practitioners have not renounced their beliefs in Falun Gong. However we had to change our ways of gathering. For example, to practice [sic] in someone's sitting room, or courtyard. These brought up more challenges to organizers. The group of people practicing [sic] together has to be divided into multiple smaller groups. The organizers have to manage and coordinate information sharing among them. My activities had been similar to those done before the crackdown, although in different and more restricted ways.' … The Delegate suggests that I, on return to China, act in a particular way so as to avoid persecution in the future. In fact, acting in a particular way has been what I and my other practitioners have tried to do since July 1999. For example, I helped organizing groups secretly to avoid the awareness of police. Unfortunately, the police authority always has counter-measures. The only way to avoid persecution is never to organize, promote, and practice Falun Gong any more, which is simply not acceptable to me…' 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]. 21 I conclude accordingly that the Tribunal has asked itself the wrong question which in recent authority is taken to be jurisdictional error. It has not been argued that the decision of the Tribunal is protected by any privative provision. The appeal is allowed with costs. The orders of the Federal Magistrates Court dated 8 August 2003 will be set aside, and in lieu thereof, the appeal to that Court is allowed with costs, the decision of the Tribunal is set aside, and the matter remitted to the Tribunal for determination in accordance with law. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate: Dated: 22 April 2004 Counsel for the Appellant: Dr SC Churches

Solicitor for the Respondent: Blake Dawson Waldron