SZAQY v Minister for Immigration and Multicultural and Indigenous Affairs

Decision below 5 The Magistrate concluded that there was no jurisdictional error and that the Tribunal had asked the correct questions. The Magistrate also rejected submissions based on allegations of bias.

the appeal 6 When the appeal came on for hearing before me, counsel for the appellant filed an Amended Notice of Appeal. This was objected to by counsel for the Minister on the basis that it raised a new ground of appeal which had not been raised below. This new ground related to the wrongful rejection by the Tribunal of documentary evidence, which allegedly corroborated the appellant's claims as to being a group leader of Falun Gong, to have protested against the ban and to have been beaten, detained and raped in detention. As this point was fully argued before me and there was no apparent prejudice to the Minister, I decided to allow the Amended Notice of Appeal to be filed and I grant leave to the appellant to rely on the new ground that was not before the Magistrate. In my view, this ground goes to jurisdictional error. 7 I now turn to the grounds raised in the Amended Notice of Appeal.

THE DECISION IN S395 8 In S395, decided seven months after the Tribunal's decision in this matter, the High Court split four to three. I am bound by the majority reasoning. In the view of the majority, it is an error to approach an appellant's claim on the basis that the appellant has not suffered harm in the past because he or she acted discreetly to conceal their conduct. In S395, the particular conduct was homosexuality and the situation was that the parties could practise without harm in private, but that such conduct, if practised in public, would attract persecution. 9 At [50], McHugh and Kirby JJ said: "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." 10 To similar effect, Gummow and Hayne JJ said at [80]: "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." 11 At [90], their Honours said: "Further, as the reasons of McHugh and Kirby JJ demonstrate, the Tribunal can also be seen as falling into error by dividing the genus of homosexual males in Bangladesh into two groups - discreet and non-discreet homosexual males in Bangladesh. That false dichotomy …" 12 The appellant in this case claimed that if she returned to China she would tell people about the virtues of Falun Gong. The Tribunal member did not accept this claim because he concluded that the appellant had stopped practising Falun Gong in July 1999 as a result of the ban. The member did not accept that the appellant would risk arrest by propagating the virtues of Falun Gong if she returned to China. The member did not consider that the fact that the appellant would feel constrained from propagating Falun Gong would amount to persecution, as the information provided by the Falun Gong Association of Australia indicated that the essential elements for a Falun Gong practitioner are adherence to certain philosophical-ethical principles and doing the five exercises. In the view of the Tribunal, propagation is not a requirement of the practice of the Falun Gong. 13 In my view, the conclusion that the appellant's feeling "constrained" from propagating Falun Gong would not amount to persecution is contrary to the approach required by S395. A reasonable feeling of constraint arising from a fear of persecution is sufficient to constitute persecution. Just as, in S395, the homosexuals' feeling of constraint from practising in public could be a reasonable ground for the fear of persecution, so the appellant in this case, by feeling constrained from openly practising Falun Gong, under fear of persecution, is practically in an analogous situation. 14 I also consider that the bald assertion that the appellant stopped practising Falun Gong in July 1999 because of the ban is clearly wrong. This is a central finding because it is basic to the reasoning of the Tribunal and infects the rest of the reasons for decision. Importantly, it bears directly on the question of whether the appellant would seek to openly express her beliefs and practices in public if she was returned to China. 15 It is therefore necessary to briefly consider the evidentiary position on this aspect to see whether it has been clearly misinterpreted. 16 In her initial statement dated 5 February 2002, the appellant said: "Probably we were taking part in this organisation early, so that at the beginning of the 1999, we became the leaders of our district. We were always together, not only for Falun Gong, but also for friends. But in July 1999, Falun Gong has been announced as unlawful in China. … So we wrote to the Chinese government expressing our opinions … … Some government officers put me in a small room, who forced me to stop practising Falun Gong and ask I write the statement, which announcing give up practicing Falun Gong. I wouldn't do this. So they didn't give me thing to eat and thing to drink for three days …" 17 In her second statement dated 18 November 2002, the appellant said: "… I refused to write any regret letter. Being not willing to give up my Falun Gong belief on … made me being further beaten and tortured. … I did not give up Falun Gong." 18 She then continued: "I will never give up my belief of Falun Gong. Never ever. No matter if I am Australia or in China. I will not stop practicing and studying Falun Dafa." 19 Before the Tribunal, the appellant said that she started practising Falun Gong in about April 1997 in the park in Fu Shun city. This was obviously a reference to her public practice of Falun Gong. She said she practised every day and studied once a week. She was then asked when she stopped her Falun Gong activities in China and she said on 20 July 1999. She was asked where she practised in Australia and she said that, from the time of her arrival in Australia in February 2002, she has practised in Darling Harbour. She said that she practised in Australia once a week and on the other days she practised at home. 20 On a fair reading of this evidence, the appellant is saying that she stopped practising Falun Gong in public in China in July 1999 when the ban came into effect. She is not saying that she ceased to practise Falun Gong but simply that she ceased to practise in public. This evidence has clearly, in my view, been misinterpreted by the Tribunal to mean that she admitted giving up all Falun Gong practices after July 1999. 21 In my view, there are two jurisdictional errors in the decision of the Tribunal. The first is that, perhaps understandably, before the law was clarified by the High Court seven months later, the Tribunal took the erroneous view that the ability to practise Falun Gong privately and discreetly without persecution meant there was no Convention persecution. The second error is that the Tribunal, in reaching this conclusion, clearly misinterpreted and misapplied the evidence which, properly understood, was that the appellant ceased to practise in public in July 1999 but that she remained a devout follower and practitioner of Falun Gong in private. Therefore, on the first ground of appeal, there was jurisdictional error. I am not persuaded by the reasons of the Magistrate to the conclusion that the principles in S395 were not misapplied in the present circumstances. For these reasons, the appeal must be allowed.

rejection of evidence 22 The Tribunal rejected several documents. The most important document, on its face, appears to be a certificate entitled "Release Notice", which purports to bear the seal of a prison authority and is dated 1 June 2000. The content of this notice is that the appellant was "imprisoned, on 15th April 2000, for disturbing public order (join Fa Lun Gong activities) and was sentenced to two months in prison by the Fushun People Court and suspension of political right from 30th March 2000 to 1st June 2002." 23 The reason given by the Tribunal for its rejection of this document is that, based on the appellant's extremely limited knowledge of Falun Gong philosophy and faulty knowledge and execution of some of the principal exercises, the Tribunal member was unable to accept that she was a group leader and reached the conclusion that she ceased her Falun Gong activities after the July 1999 ban. The Tribunal said that its rejection of the appellant's claims that she wrote letters of protest to the authorities and was a group leader of her station meant that it was unable to accept that she had ever been detained. 24 For the reasons given above, the finding that the appellant ceased her Falun Gong activities after the ban was clearly without foundation in the evidence. This finding is important because it permeates the subsequent reasoning of the Tribunal. 25 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49], McHugh and Gummow JJ referred to the circumstance where a party's credibility may be so weakened in cross examination that a Tribunal may treat what is proffered by way of corroborative evidence as of no weight "because the well has been poisoned beyond redemption". The Full Court took a similar approach in WAIJ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 74 at [27] per Lee and Moore JJ. Referring to the rejection of documentary evidence, their Honours said: "Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material…. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant's claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility." (Emphasis added). 26 In the present case, it cannot be said that there were such clear and strong findings on credibility. The release document was rejected out of hand on a wrong finding that the appellant had ceased all her Falun Gong activities in response to the ban. 27 In my view, there was no sound basis for rejecting this material, which bears directly on the appellant's credibility and is central to the reasoning of the Tribunal. Accordingly, there was jurisdictional error in the decision of the Tribunal.

GENERAL 28 The Tribunal accepted that the appellant was a practitioner of Falun Gong. However, it reached the conclusion that she was not a group leader on the basis of what was seen by the Tribunal to be her extremely limited knowledge of the Falun Gong philosophy and inadequate execution of some of the principal Falun Gong exercises. The member noted that the appellant briefly answered questions about the Falun Gong philosophy and identified the three underlying principles of the Falun Gong philosophy but said that she did not elaborate on two other matters, namely, the significance of the universe theme and of the falun, which the member considered to be important and central to the Falun Gong philosophy. In addition, the appellant correctly demonstrated four of the five exercises and demonstrated all the constituent movements of two of them and about two thirds of the movements of the other three. When this was put to the appellant, she said that she did the exercises quickly because she was used to them and that the member may have missed some of the movements. 29 I have some concern, from a procedural fairness point of view, about the subjection of an appellant to a close examination of her philosophic understanding, combined with a fine critique of the component movements of exercises, without warning and without giving the appellant the chance to consider the sources of information relied on by the member to justify the importance of such scrutiny. This may amount to procedural unfairness. It is clear that the appellant appears to have had a substantial knowledge of Falun Gong. In this particular case, the appellant has not raised the ground that there was unfairness in the approach taken by the member. Nevertheless, in my view, great care must be taken when weighing the degree of understanding of what may be fine points of exercise choreography, especially where the assessment is made by somebody who, on the evidence, does not appear to have any expert knowledge of, or familiarity with, Falun Gong principles or exercises. Indeed, without giving the appellant an opportunity to make submissions about the reliability of the material on which such an examination is made so as to enable an appellant to challenge the rules and principles applied by the member in evaluating his or her familiarity with Falun Gong philosophy and practice, such an approach could amount to procedural unfairness: NAXW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 644 per Tamberlin J.

CONCLUSION 30 For these reasons, I allow the appeal. I set aside the decision of the Magistrate and of the Tribunal and I remit the matter to the Tribunal for determination and accordance with law. The Minister is to pay the costs of the appeal and at first instance. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin J.

Associate: Dated: 27 September 2005 Counsel for the Applicant: I Archibald