SZGTS v Minister for Immigration and Citizenship

BACKGROUND 2 The appellant is a citizen of the People's Republic of China who arrived in Australia on 8 August 2004. On 15 November 2004, she lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, as it was then known. A delegate of the Minister refused the application for a protection visa on 10 February 2005. On 15 March 2005, the appellant applied to the Tribunal for a review of that decision. On 24 May 2005, the Tribunal affirmed the decision of the delegate. On 17 July 2006, the Federal Magistrates Court affirmed that decision. On 19 October 2006, this Court made orders by consent that the matter be remitted to the Tribunal to be determined according to law. On 16 March 2007, the Tribunal, differently constituted, affirmed the delegate's decision not to grant the appellant a protection visa. It is this decision that is the subject of the present appeal. 3 In her application for a protection visa, the appellant claimed to have a well-founded fear of persecution due to her practice of Falun Gong. The appellant claimed that she started practising Falun Gong when she was a high school student in China. When Falun Gong was banned she was spoken to and forbidden from practising Falun Gong. She later recommenced her practice and received an "administrative punishment" from her senior high school when her practice was detected. Although she received very good results in the university entrance test, no university would accept her because of her record. She obtained employment teaching English in a kindergarten but, as the police continued to monitor her, her employer dismissed her to avoid trouble. The appellant considered that it was impossible for her to be granted a passport. She left China via Hong Kong and entered Australia on a false passport. 4 By letter dated 17 January 2007, the Tribunal invited the appellant to attend a hearing on 21 February 2007 to give oral evidence and present arguments in support of her claims. 5 In written submissions prepared for the second Tribunal hearing, the appellant claimed, for the first time, that she was required to sign a written undertaking by the principal of her high school never to practise Falun Gong again and was publicly humiliated at a school assembly; that, in May 2003, she was arrested, detained for a week and beaten; that, in December 2003, she was beaten by police; and that, after her departure from China, her family was harassed by police and placed under house arrest. 6 On 26 February 2007, the Tribunal wrote to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act") and invited her to comment on the delay in providing the information referred to in paragraph 5 above. The Tribunal also invited the appellant to comment on her conflicting accounts of the circumstances in which she was dismissed from the kindergarten, and her claim that when a police officer observed her teaching Falun Gong to the kindergarten class, he reported this only to her employer, when information before the Tribunal indicated that authorities took highly repressive and harsh measures against individual Falun Gong practitioners. The appellant's advisor responded to the Tribunal's letter on 12 March 2007. The appellant claimed that she had not known what was in her application for protection and that her unscrupulous and incompetent migration agent omitted important details. Further, she was unable to communicate everything she wished to communicate at her first Tribunal hearing because she was very nervous.

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.

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