VAAW of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-08-27|Before: Kenny JJ

THE COURT: 1 This is an appeal from a Judge of the Court in which the primary issue addressed in the appellant's submissions is whether the trial Judge erred in rejecting a submission that there was no evidence or material to justify the making of a decision by the Refugee Review Tribunal ("the RRT") within the meaning of s 476(1)(g) of the Migration Act 1958 (Cth) ("the Act"). Prior to the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), that subsection provided that an application may be made for review by the Federal Court of a RRT decision on this ground. 2 The ground which may be referred to as the "no evidence" ground is elaborated in subs 476(1) and (4) in these terms: "(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 3 It is important at the outset to identify with precision the particular fact in respect of which there is claimed to be no evidence. The particular finding of fact within par (4)(b) which has been identified by the appellant in this case is "that the Falun Gong group which practised at Jiaotong Park in Shanghai did not have an office at some time after the appellant departed from China." 4 The determination of the RRT, the subject of review by the primary Judge, was made on 14 September 2001. The RRT affirmed the decision of the Ministerial delegate not to grant a protection visa to the appellant.

RRT decision 7 The RRT accepted that Falun Gong was a religion although it considered the movement did not characterise itself that way. It also accepted that some practitioners of Falun Gong have been persecuted in China for reasons of their religion and their political opinion. The RRT found that the appellant knew "quite a bit about Falun Gong", apparently had read the teachings and knew how to do the exercises and that he had performed them. However, the RRT did not accept that the appellant was ever a genuine or committed practitioner of Falun Gong. It saw its task as being to assess whether there was a real chance of the appellant being persecuted by reason of his association or membership of that body of practitioners. It did not accept that there is a real chance that the appellant would, within the reasonably foreseeable future, be identified by the Chinese authorities as a Falun Gong practitioner and be persecuted by reason of such association. 8 In finding that the appellant was not a Falun Gong practitioner in China, the RRT said: "The Tribunal does not accept that the applicant was a Falun Gong practitioner in China. His claims are founded on association with the group that practised at Jiaotong Park. But the people who wrote to the applicant, purporting to describe the fate of the practising group, are not in fact practitioners. It is clear from the country information cited above in relation to Falun Gong that a practising group would not have an office and stationery, etc. The applicant's first response to this issue was to argue that perhaps the group got its office after he left. This diminished the impression of his knowledge about Falun Gong, and led the Tribunal to conclude that the applicant had not participated in social practice of Falun Gong i.e. has not been a member of a practising group. If he had been, he would know that it was contrary to Falun Gong organisational principles and practices, to have an office. The applicant said that the Tribunal might be misinterpreting the letter. The Tribunal does not accept this is the case. The natural reading of the text is that it intends to convey that the group had an office, which is what a Falun Gong group does not have and does not require. Since the authors of that letter are not Falun Gong practitioners, the letter not only fails to support the applicant's claim to have been a practitioner in China, but positively undermines it. If he was a real practitioner in China, there is no sensible reason why he would have this untruthful letter. If he needed evidence of his involvement he would have known real practitioners who could vouch for him. The Tribunal does not accept that the applicant was a Falun Gong practitioner at any time before being detained. It does not accept that he signed a petition in support of Falun Gong." (Emphasis added) 9 The reference in the above extract to "the letter" is to a letter placed before the RRT by the appellant which on its face was signed by some members of the Falun Dafa Instruction Station, Jiaotong Park, Zhabei district, dated 2 September 2000 and addressed to the appellant. That letter reads as follows: "Your Worship the Judge, lawyer, Greetings to you! First of all, under the principle of not breaking the teaching of Falun Dafa, we would like to describe to you the situation when …[the appellant] worked at our station and the current situation regarding the attacks on Falun Gong in China. [The appellant] started his practice of Falun Dafa in the summer of 1994. Because of his active participation in the practice, his enthusiasm and strong organising ability, he took the position of a vice director for our station from October 1995, responsible for the work of organising and external liaison for the station. In one role, he was leading in practice, at the same time, he was making arrangements regarding activities with other stations. He was also responsible for meeting arrangements and for venues to hold activities. Sometimes, he had to make contacts and gain an undertaking of what was happening in other cities regarding the practice. If there were good experiences and effects from practising, he would actively invite those people to our station to demonstrate in person. The venue where our station practised Falun Gong was inside Jiaotong Park, Zhabei District, in the City of Shanghai, with more than 300 people in attendance, of whom there were workers, teachers, retirees, and some were university professors. It was wonderful that every one of us was practising together. Because the work we did in our station was very good, in the last couple of years over 30 people went to Beijing, Dalian and other cities to exchange their experiences. We often said: 'How wonderful it would have been if … [the appellant] were still here.' However the situation changed. The Chinese Government claimed that Falun Gong was heresy. Newspapers are publishing articles vilifying Falun Dafa. Many people have been secretly arrested. Many of them have been tortured illegally in prisons and there is no food for them to eat. The office of our station has long been closed down and possessions confiscated. All of the stationery, utensils, tapes and books were taken away. Some practitioners have left and some have surrendered to the government. But most of us have infinite faith in our beliefs, and practise [sic] privately. Two persons-in-charge (director and a vice director) of the station have mysteriously disappeared (secretly arrested), and their wives were forced by their work units to leave their jobs. Their children are discriminated against by their peers and teachers at school. The CIB division of the Public Security Bureau went to …[the appellant's] home to check whether he was in. A court has also subpoenaed him to defend himself against accusations. It seems that …[the appellant] is in great danger. We should say that he will be arrested as soon as he returns to China now, because there was someone else whose situation was similar to his, who was acting as a vice director in the District of Huangpu, who was arrested at the customs office when he was trying to leave the country. We believe that Australia is a country of freedom and freedom of religious beliefs, so we urge him definitely not to return to China because the Chinese Government is blindly carrying out arrests and suppression. We, as Falun Gong practitioners, also believe that the Australian Government will help someone whose religious belief has been deprived and who has been persecuted. Signatures of some members Falun Dafa Instruction Station Jiaotong Park Zhabei District 2nd September 2000 (signatures attached hereto)." (Emphasis added) 10 It is to be noted that this letter states that the venue where the group's Station practised Falun Gong was inside Jiaotong Park with more than 300 people in attendance. It goes on to say that the situation has changed and that the Chinese Government has claimed that Falun Gong was heresy. It states that the office of the station has long been closed and possessions confiscated. 11 The reference to the existence of an "office" in the letter was considered by the RRT to indicate that the letter was fabricated and false. In reaching the conclusion that the letter was false, the RRT had before it country information, evidence given by the appellant himself and a letter from a Falun Gong contact person in Australia named Holly Wei, dated 19 January 2000 in these terms: "We are a very loose organisation, with no office, no bank account, no membership or membership fees, and we do not accept donations, either." (Emphasis added) 12 There was some dispute as to whether this letter only referred to the position in Australia or whether it was open to read it as referring to the Falun Gong movement in the world at large. In our view it was open to read it as referring to the movement generally. 13 Country information before the RRT was considered consistent with an answer given to the United Kingdom Immigration and Nationality Directorate by the United Kingdom Falun Gong Association in relation to the inquiry whether Falun Gong inside China was organised differently from outside and whether, for example, there were membership cards. The answer from the United Kingdom Falun Gong Association was: "I would say that the practice outside China is modelled on that in China, as practitioner[s]who learned Falun Gong in China travelled to other countries to study, work or live and brought it with them. I am not aware of any membership card, register or hierarchy structure." (Emphasis added) 14 The RRT reasons proceeded to address a document which the appellant described as a summons. The RRT considered that this document could have been obtained by fraud or corruption or that it could have been forged. The RRT did not accept it as genuine and was not prepared to give it any weight as evidence that the Chinese authorities have identified the appellant as a Falun Gong practitioner. It stated, however, that it would not draw any adverse conclusions about his credibility or his claims from this document. 15 The RRT considered that the appellant did not satisfactorily explain why he applied for protection almost a year after the Falun Gong was banned and more than a year after he made claims of becoming aware that trouble was brewing between the authorities and Falun Gong. The RRT considered that the time lapse between the appellant's arrival in Australia and his making of the application was a matter to take into account when assessing the genuineness or at least the depth of the appellant's fear of persecution. The RRT considered that the appellant, if he had a genuine fear, would have sought to regularise his status and avoid being sent back to China as soon as he learned that Falun Gong was banned. It perceived the failure to do this as important and concluded that the appellant began to learn about Falun Gong only after he was detained in Australia. 16 The RRT considered that the appellant's study of Falun Gong was contrived to provide the foundation for a protection visa application. It considered there was no reason to believe that the attachment to Falun Gong went any deeper than that. It considered the appellant to be a pragmatic person and did not consider that he was passionate enough to practise Falun Gong outdoors in China or join in protests in China. It did not consider there was any real risk of the Chinese authorities finding out that the appellant had even studied Falun Gong. 17 The RRT accepted that the appellant and his family had suffered due to political movements in the past, that the appellant's father was persecuted in the 1950s and that the family suffered during the Cultural Revolution. However, it found that the appellant had not claimed, and there was no evidence to support a finding, that he had any political profile with the authorities of his own. It referred to his ability to obtain a passport and to travel in support of that conclusion, that the appellant's relationship with the authorities was "benign". It therefore considered that the appellant was at no current risk of persecution due to his family background nor at any risk in the reasonably foreseeable future. Such expressed fear was no more than speculative. Based on country information it did not accept that he was at risk of persecution in China for having made a protection visa application or for any other reason relating to his immigration status. The RRT noted that he had not pressed his claim concerning Christianity and found that he was at no risk of persecution in relation to Christianity. The RRT therefore found overall that the appellant did not have a well-founded fear of persecution in China for a Convention reason.

The decision of the primary Judge 18 The primary Judge found that the question whether the Falun Gong group in China did not have an office was not a particular fact on which the decision was based within the meaning of s 476(4)(b) of the Act. This was because his Honour considered that the factors relied on by the RRT were treated as independent reasons for rejecting the claim. His Honour did consider that the way the decision was expressed, or the fact that the consideration of the letter from China was the first matter addressed by the RRT, leading it to conclude that the group would not have had an office, was an important consideration for the RRT. The primary Judge was of the view that it may have been one of three main considerations addressed by the RRT. Nevertheless, on balance, his Honour came to the view that the decision of the RRT was not based on the fact that the Falun Gong in China would not have had an office. His Honour considered that the RRT would have come to the same conclusion even if it had been satisfied that the Falun Gong did not have an office. 19 Because his Honour considered the case was "close to the borderline" on the question whether the decision was based on the fact that Falun Gong would not have an office, he proceeded to consider whether there was any evidence before the RRT of the fact that Falun Gong did not have an office. 20 On this question his Honour found in favour of the respondent. He considered that the letter from Holly Wei, who was a Falun Gong contact person in Australia, was some evidence that the Falun Gong group in China would not have had an office. He rejected a submission that the letter from Holly Wei only referred to the situation in Australia and had no bearing on the situation in China. While his Honour considered that there was force in the appellant's submission, he considered that it was possible to read the letter as referring to a general practice among Falun Gong groups worldwide. He therefore rejected this second submission by the appellant. 21 Other alleged errors of law apart from the no-evidence ground were relied on but his Honour rejected these matters and no submissions were made on appeal in relation to them.

The submissions on appeal 22 In substance three matters were raised on appeal in relation to the no evidence ground. The first was that his Honour erred in not finding that the decision of the RRT was based on the fact that the group did not have an office at some time after the appellant departed from China. The second was that there was no evidence that the group did not have an office in Shanghai after he left. The third matter was that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 190 ALR 402 ("Rajamanikkam") makes it unnecessary for an appellant to demonstrate that there was no evidence on which the critical fact could be found to have existed.

Was the finding that the group did not have an office a fact on which the decision was based 23 As noted above, the primary Judge found that the fact raised was not a particular fact on which the decision was based. 24 There is reference in the reasons for decision of the primary Judge to Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 and in particular, to the observations of Black CJ (with whom Spender and Gummow JJ agreed), at 220-221, as follows: " … A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious and immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion." (Emphasis added) 25 In Rajamanikkam Gleeson CJ at [33] applied this approach: see also [43]. In that decision Gaudron and McHugh JJ made the following observations at [56]-[58] "… And when regard is had to the requirement that the decision be 'based … on … a particular fact', the paragraph, in our view, is to be understood as referring to a finding of fact without which the decision in question either could not or would not have been reached. In this sense, it is, in our view, appropriate to speak of a 'fact critical to the making of the decision'. Whether a decision could or could not have been reached without a particular factual finding may depend either on logic or on the law to be applied. To the extent that a decision could not have been reached without a particular factual finding because of the law to be applied, there may have been some overlap between paras (a) and (b) of s 476(4) although, of course, para (a) imposed a less stringent test. Whether a decision would or would not have been made without a particular factual finding depends on indications to that effect in the decision, the reasons for decision or the decision making process. And unless it is possible to say on a proper analysis of the decision, the reasons for the decision or the decision making process that, had a particular finding not been made, the decision in question would not have been reached, it is, in our view, impossible to say that the decision was based on that finding." (Emphasis added) (footnotes omitted) 26 Applying those principles to the present case, it is our view that the decision whether the Falun Gong group had an office at some point in time after the appellant departed from China was a particular and critical fact having regard to the reasoning of the RRT. The fundamental nature of the false statement in the letter referred to in the reasoning of the RRT is shown in the extract quoted above where the RRT states that because the authors of the letter are not Falun Gong practitioners, the letter not only fails to support the appellant's claim but positively undermines it. This is said to be because if he were a practitioner in China there would be no sensible reason why he would have an untruthful letter and he would have known real practitioners who could have vouched for him. 27 It is true that there are references to another matter, namely, the "summons" document which was not accepted as genuine. But this in itself was not treated as conclusive and the RRT reasons expressly state that it did not draw any adverse conclusions about his credibility or claims from this document. 28 The RRT also emphasised the delay of almost one year after Falun Gong was banned before a claim for protection was made. It reached the conclusion that the appellant began to learn about Falun Gong after he was detained. It considered that the appellant's study of Falun Gong was contrived to provide the foundation for a protection visa application. 29 In our view, the reasoning of the RRT cannot be split into discrete and independent reasons divorced from the findings made with respect to the non-existence of an office. That finding played a central role in the conclusion on a proper construction of the RRT reasoning. Accordingly, we consider that the primary Judge was in error and that the fact relied on by the appellant is properly characterised as a particular fact on which the decision was based.

Is it necessary for the appellant to establish that there was no evidence 30 The Full Court in Minister for Immigration and Multicultural Affairs v Indatissa (2001) 64 ALD 1 said at [31]-[32]: "In order to satisfy the ground contained in s 476(1)(g) it is necessary, but not sufficient, to satisfy the requirements of s 476(4). Section 476(1)(g) requires that there be no evidence or other material to justify the decision. That, however, does not involve a qualitative assessment, in an application to the court for review, of the evidence and material before the tribunal. If it did justify such an approach, review by the court would entail a reconsideration of the weight that should be given to the evidence and other material before the tribunal. It is not permissible, in order to establish the ground in s 476(1)(g) to adduce evidence to contradict evidence or other material that was before the tribunal. The weight to be attached to such evidence and material is a matter entirely for the tribunal. If it were permissible to adduce further evidence before the court whenever the evidence and material before the tribunal did not point strongly to the conclusion that the decision was justified, the court would be called upon to reassess the weight afforded to evidence or other material by the tribunal. That was clearly not parliament's intention." 31 In Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [35] the Full Court said: "The application of s [sic] 476(1)(g) and 476(4)(b) in any particular case requires the following steps: · A relevant particular fact first must be identified. · Then it is necessary to determine whether there was any evidence before the tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out. · If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out. · If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the tribunal's reasoning to determine whether its decision was based on that fact. (Emphasis added) 32 As a consequence of extracts from the judgments in Rajamanikkam, counsel forthe appellant submits that there is no necessity to establish that there was no evidence on which the decision could have been reached. In Rajamanikkam, Gleeson CJ said at [41]: "But the language of subs (4) is plain. Subsection (4) qualifies subs (1)(g). It does not add to it. It limits it. It does not advance the argument to speak of subs (4) as elaborating subs (1)(g). That merely distracts attention from the language of the statute, which involves no ambiguity." 33 In our view this statement reaffirms the position that it is necessary for a challenger to a decision on the ground in par (1)(g) to establish that there was no evidence on which the fact could be found to exist. 34 In their joint judgment in that case, Gaudron and McHugh JJ said at [53]-[54]: "The better approach, in our view, is to treat the words of s 476(1)(g) as having introduced a new and discrete ground of review, with its precise content identified in s 476(4) of the Act. We should add that, notwithstanding the difference between the terms of s 5(1)(f) of the AD(JR) Act and those of s 476(1)(e) of the Migration Act, we see no reason why the 'no evidence' ground should not be approached in the same way in both Acts, namely, on the basis that it is a discrete ground of review, the precise content of which is identified by the succeeding paragraphs of subs (4). That is not to say that the 'error of law' ground in s 5(1)(f) of the AD(JR) Act does not include the traditional 'no evidence' ground applied before the enactment of that Act. Rather, it is simply to say that under the AD(JR) Act, a single finding might involve a reviewable error that falls within both the 'error of law' and the 'no evidence' ground of that Act." 35 In our view, these statements do not warrant the drawing of any inference that the traditional requirement that a challenger must demonstrate there is no evidence on which the fact could have been found as a basis for review on the no evidence ground, has been altered. That necessity remains. 36 Kirby J in Rajamanikkam at [120], speaking of s 476(1)(g) said that an applicant would still have to surmount the two hurdles established by the terms of s 476 of the Act, namely: "- The decision-maker must have 'based' the decision in the existence of the particular fact rendering it, as it is sometimes described, 'critical' in the circumstances; and - The applicant must be able to show that the fact did not exist, that is, that there was no evidence or other material concerning the fact before the decision-maker 'to justify the making of the decision'." (Emphasis added) 37 Having regard to these observations it is apparent that the High Court in Rajamanikkam did not intend to eliminate the requirement for a finding that there was no evidence to support the critical fact.

WAS THERE EVIDENCE TO SUPPORT THE PARTICULAR FACT 38 The appellant contends that there was no evidence to support the finding made because the letter from Holly Wei on its proper construction only went to the position of the Falun Gong in Australia and not in China. Furthermore, the answer given by the United Kingdom Falun Gong Association was vague and generalised in saying the practice outside China is modelled on that in China and the writer was not aware of any membership card, register or hierarchy structure, such that it should not be considered to amount to any evidence on which the finding could be made. 39 In our view this information does amount to evidence sufficient to indicate that there was material on which the RRT relied in making its finding. Moreover, there was evidence from the appellant that there was not a formal office at the time he left China. His answer to a question by the RRT member was: "There wasn't really a formal office. If there's anything, the head of the group would just contact people. In China when we practise Falun Gong, it's just like exercise for health. It's a simple thing. It's mainly for the exercises, fitness. … MS HAMILTON: So you said that there was no formal office and some of the equipment was kept at a person's house. Was there anything that the group owned or used collectively? INTERPRETER: Yes, they use for example a flag, a banner. MS HAMILTON: Is that all? INTERPRETER: Yes, we had some books actually kept by the head of the group and also some videotapes - for example when the new practitioner started, normally they need to watch the video. That is what happened in China in 1994." 40 It is true that the latter evidence of the appellant only takes the matter up to the time when he departed China. However, there is no evidence to indicate that the position changed in any way as to the existence of an office after he left. 41 Accordingly, there was, on the basis of the above material, some evidence on which it was open to the RRT to form the view that there was no office in China at the relevant time.

conclusion 42 For the above reasons we consider that no reviewable error has been made out by the appellant and the appeal must be dismissed. Although we have a different view from the primary Judge on the question of whether the particular fact was a fact on which the decision was based, the end result is that the respondent has succeeded on two of the substantive propositions advanced. Accordingly, the appellant should pay the respondent's costs of this appeal. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Tamberlin and Kenny.

Solicitor for the Respondent: Australian Government Solicitor

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

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