SZGTS v Minister for Immigration and Citizenship

REFUGEE REVIEW TRIBUNAL 7 The Tribunal did not consider that the appellant had explained satisfactorily the delay in revealing the information and found the belated and progressive appearance in her account of additional claims raised strong doubt as to their truth. The Tribunal rejected the appellant's claim that she was denied an opportunity to present her claims and was not satisfied that the appellant was a Falun Gong practitioner in China or that she or members of her family ever suffered any harm for this reason. It also expressed misgivings about the genuineness of her commitment to the movement whilst in Australia. 8 The appellant also sought to rely on the fact that she had used a false passport as a separate ground for fearing persecution. The Tribunal was not satisfied that this was more than "simple speculation." 9 The Tribunal was not satisfied that there was a real chance that the appellant would suffer harm in China because of involvement with Falun Gong, either in China or Australia, or because she left China on a falsified passport. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason should she return to China, and affirmed the delegate's decision not to grant the appellant a protection visa. 10 It will be necessary to return later in greater detail to some of the Tribunal's reasons.

FEDERAL MAGISTRATES COURT 11 On 17 April 2007, the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal's decision. 12 The Federal Magistrate dismissed the appellant's application with costs. It is unnecessary to record the Federal Magistrate's reasons for his decision because the appellant, in this Court, has not sought to rely on any of the grounds which she pressed before him.

APPEAL TO THIS COURT 13 On 3 October 2008, the appellant filed an amended notice of appeal which effectively abandoned all of the grounds originally relied on by her and substituted two new grounds. 14 These grounds were that the Federal Magistrate had erred by failing to find that the Tribunal: · Had contravened s 91R(3) of the Act because it had had regard to the nature of the appellant's Falun Gong activities in Australia even though it was not satisfied that those activities had been engaged in otherwise than to strengthen her claim to be a refugee; and · Misconstrued the criterion for the grant of a protection visa in s 36(2)(a) of the Act and thereby constructively failed to exercise its discretion. The appellant had not argued these grounds before the Federal Magistrate. 15 The Minister did not oppose the appellant's application to rely on the amended notice of appeal. Leave to amend was granted. 16 As a result of the High Court's decision in SZJGV, which was handed down on 30 September 2009, the appellant abandoned the first of the two new grounds. The appeal proceeded on the one remaining ground. 17 Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant is a person to whom the Minister is satisfied Australia has protection obligations under the United Nations Convention relating to the Status of Refugees. A person is a refugee if, amongst other things, the person has a "well-founded fear" of persecution in his or her home country. 18 The Tribunal directed itself that: "… an applicant's fear of persecution for a Convention reason must be a "well-founded" fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a "well-founded fear" of persecution under the Convention if they have genuine fear founded upon a "real chance" of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A "real chance" is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent". 19 The appellant does not contend that the Tribunal misdirected itself in this passage. What the Tribunal said is consistent with authority: see Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, 575-6. 20 The appellant's case is that, despite these correct statements of principle, the Tribunal applied a balance of probabilities test when it rejected her claim to have a well-founded fear of persecution. This error, she submitted, can be discerned from a passage which appears under the heading "Future harm" on the last page of the Tribunal's reasons for decision. The Tribunal there said: "As noted, I am not satisfied that the Applicant was a Falun Gong practitioner in China or that she or that members of her family ever suffered any harm for this reason. There is no reason to believe that she would face harm if she were to return to China because of anything that occurred prior to her departure. I accept that since arriving in Australia she has involved herself to some degree with Falun Gong practitioners and activities but I am not satisfied that her reason for doing so was other than to strengthen her claim to be a refugee. I am not satisfied that she would seek to practise Falun Gong or involve herself in Falun Gong activities if she returned to China and I am not satisfied that this would flow from any fear on her part of the consequences of doing so. Having regard to the nature of her Falun Gong activities in Australia I am not satisfied she would be targeted by the Chinese authorities for anything that she has done here". 21 The appellant directs attention to the Tribunal's statements that it was "not satisfied" that particular future events "would" occur. Such phrasing, she contends, can only be understood as an application of a balance of probabilities test for the purpose of predicting future events. 22 The Minister impliedly accepted that the passage in the Tribunal's reasons, which was impugned by the appellant, was open to the construction which the appellant placed on it. He submitted, however, that the Tribunal's reasons were to be construed beneficially and not with an eye keenly attuned to the perception of error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 290-3. The impugned passage had to be read in the context of the reasons as a whole. Those reasons had commenced with a correct statement of legal principle. Thereafter the Tribunal had provided lengthy and carefully expressed reasons which concluded with the statement that it was "not satisfied there is a real chance that the Applicant would suffer harm in China because of involvement with Falun Gong, either in China or Australia …": cf WADE of 2001 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 214 at [17]-[18]. 23 When exercising its review function, the Court must have regard to the Tribunal's reasons as a whole and must not scrutinise them over-zealously in pursuit of error. On the other hand, a finding of error will not be avoided simply because the Tribunal has commenced and concluded its reasons with correct statements of the law, but has, in the substantive part of its reasons, betrayed a reasoning process which is indicative of error: see SRBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1387 at [28]-[30] (per Mansfield J). 24 When forming a view as to whether the appellant faced a real chance of persecution should she return to China, the Tribunal was entitled to have regard to past events which might assist in making the relevant prediction: see Guo at 573-6. The Tribunal had rejected the appellant's claim to have been a Falun Gong practitioner before she left China. It therefore concluded that there was "no reason to believe that she would face harm if she were to return to China because of anything that occurred prior to her departure". It next turned its attention to the appellant's Falun Gong activities during her time in Australia. It accepted that she had engaged in some Falun Gong activities in Australia, but only for the purpose of strengthening her claim to be a refugee. It then made the findings which the appellant claims are indicative of error. It held that: · It was "not satisfied that she would seek to practise Falun Gong or involve herself in Falun Gong activities if she returned to China"; · It was "not satisfied that this would flow from any fear on her part of the consequences of doing so"; and · It was "not satisfied she would be targeted by the Chinese authorities for anything she has done here". 25 When read in context, these findings amount to predictions which flow logically from the conclusion that she was not a dedicated and committed Falun Gong practitioner while in Australia: she had embraced the movement only for the purpose of assisting her application for a protection visa. The first two predictions relate only, indirectly, to the question of whether the appellant had an objectively well-founded fear of persecution should she return to China. In substance, the Tribunal reasoned that, because the appellant was not a committed Falun Gong practitioner, she would not practise in China and that her failure to do so would be the result of that lack of commitment, not any fear of the consequences. For these reasons, it was not satisfied that there was a "real chance" that the appellant "would suffer harm in China because of involvement with Falun Gong … in … Australia …". 26 The third finding deals directly with the question of whether the appellant had a "well-founded fear" of persecution by reason of her activities in Australia. In this context, the use of the word "would" is open to the criticism that it is suggestive of the application of a "balance of probabilities" test. It is, however, possible to reconcile the use of the word with the application of the "real chance" test. Having regard to the reasons as a whole and, in particular, to the ultimate findings which follow a few lines later, I am not persuaded that the Tribunal applied the wrong test.

DISPOSITION 27 The appeal should be dismissed with costs. 28 Before parting with the matter I would express my gratitude for the considerable assistance provided to the Court by counsel who acted pro bono for the appellant. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Counsel for the Respondents: Ms L Clegg Solicitor for the Respondents: Clayton Utz