VAAW v Minister for Immigration & Multicultural Affairs

The tribunal's reasoning 14 So far as is relevant to the application for review, the Tribunal's findings and reasons were as follows: "The applicant knew quite a bit about Falun Gong, had apparently read the teachings and knew how to do the exercises so he has obviously learned and performed them. But the Tribunal does not accept that the applicant is a genuine or committed practitioner of Falun Gong. Of course, the Convention does not require that a victim of persecution be genuine and committed to their religion (or political opinion) for the Convention nexus to be established. But the Tribunal must assess whether there is a real chance of the applicant being persecuted. It does not accept that a real chance exists that the applicant will in the reasonably foreseeable future be identified by the Chinese authorities as a Falun Gong practitioner. … 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 has 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. The applicant submitted a document called a 'notice', which he described as a summons but which does not fit the format used in Chinese summonses (according to the country information). Such a document could have been obtained by fraud or corruption, or it could have been forged (the stamps could be manufactured to anyone's specifications, as could the stationery). The Tribunal does not accept that it is genuine, and is not required to do so by the inconclusive document examination report. The applicant's counsel referred to an alternative summoning procedure described in the country information (part of CX42649 not quoted); this does not apply, as the applicant was not a cadre and was not, according to his own evidence, being summoned by his work unit. The Tribunal is not prepared to give the document before it any weight as evidence that the Chinese authorities have identified the applicant as a Falun Gong practitioner. (It is not, however, drawing adverse conclusions about his credibility, or his claims, from this document.) The applicant did not satisfactorily explain why he applied for protection almost a year after Falun Gong was banned and more than a year after, he claims, becoming aware that trouble was brewing between the authorities and Falun Gong (i.e. the 25 April 1999 demonstration). Carr J observed in Subramaniam v MIMA (unreported, Federal Court, 10 March 1998) that the period of time elapsing between an applicant's arrival in Australia and the making of the application for refugee status is a legitimate matter to take into account when assessing the genuineness, or at least the depth, of the applicant's fear of persecution. The Tribunal would have thought that the applicant, as a person without a visa, would seek to regularise his status and avoid being sent back to China to face persecution, when he learned that Falun Gong was banned. The applicant said he did not think the situation was so serious, until he received the summons. The Tribunal does not find this explanation persuasive. The reporting of the crackdown on Falun Gong was widespread and was to the effect that many thousands of people were being detained. The Tribunal concludes that the applicant began to learn about Falun Gong after he was detained. The Tribunal considers that the applicant's study of Falun Gong was contrived to provide the foundation for a protection visa application. It has no reason to believe that his attachment to Falun Gong goes any deeper than that. It considers him to be a pragmatic person. The likelihood of him sustaining his practice and study of Falun Gong beyond the conclusion of the protection visa process, in China where the movement is banned, is remote. The Tribunal does not accept that the applicant is passionate enough to practise Falun Gong outdoors in China, or join protests in China." [emphasis added]

the grounds of review 15 The grounds of review went through a number of changes. The final form is most concisely expressed in the outline of submissions handed up by Mr Kaufman QC who appeared with Ms Kennedy, as counsel for the applicant. Several grounds expressed in the outline were not pressed at the hearing. Those which were pursued were as follows: "(1) That the decision involved an error of law in that: (a) the Tribunal erred in determining the fact that the applicant could practise his beliefs in Falun Gong in the privacy of his own home meant that he did not have a well founded fear of persecution; and / or (b) the Tribunal erred in law in not holding and determining that a curtailment or imposition of restriction on the freedom of speech assembly worship or movement by reason of being a believer in or member of Falun Gong may constitute a well founded fear of persecution …; [the persecution ground] (2) The Tribunal failed to comply with the requirements of section 476(1)(b), (c) and (e) in that the Tribunal did not consider: (a) the applicant's practise of Falun Gong since he entered Australia; … [the relevant material ground] (3) There was no evidence or other material to justify the making of the decision in that the Tribunal based its decision on the existence of a particular fact which did not exist: the fact was that the Falun Gong group which practised at Jiaotong Park did not have an office at some time after the applicant left China … ." [the no evidence ground] 16 It is convenient to address the no evidence ground initially.

the No Evidence ground 17 This ground relied upon s 476(1)(g) and s 476(4)(b) of the Migration Act 1958 (Cth) (the Act) which provide: "476 (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." 18 In Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744the Full Court said at par 35: "The application of s 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." 19 The parties accepted that this was a proper approach to the sections. 20 The Tribunal held that the applicant was not a Falun Gong practitioner in China. It said at 20: "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." 21 The applicant identified the particular fact which he alleged did not exist as the fact that the Falun Gong group which practised at Jiaotong Park did not have an office at some time after the applicant departed from China. 22 In order to succeed under s 476(1)(g) of the Act the applicant has to establish three elements, namely: (a) that there was no evidence before the Tribunal of this fact; (b) that, by admissible evidence led before this Court, the fact does not exist; and (c) that the Tribunal based its decision on the particular fact. 23 The applicant was not in a position to satisfy (b) at the time of the hearing. As the case had been substantially argued when this became evident, the parties accepted the suggestion made by the Court that the Court would determine whether the applicant had satisfied elements (a) and (c). If the Court held that the applicant had satisfied both of those elements, the applicant would be given an opportunity to lead evidence to satisfy (b). If the Court held that the applicant had failed to satisfy either of those elements, the applicant was bound to fail on the s 476(1)(g) ground, and, hence, no further opportunity to satisfy (b) would be required. It is convenient first to address element (c).

Was the decision of the Tribunal based on the fact that the Falun Gong group in China did not have an office? 24 In Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 (Rajamanikkam), Gleeson CJ explained the meaning of the concept of a decision being based on the evidence of a particular fact at par 33 as follows: "It has been necessary for courts to consider whether a particular decision was based on the existence of a particular (non-existent) fact, within the meaning of s 5(3)(b) of the ADJR Act (or s 476(4)(b) of the Act). In Curragh Queensland Mining Ltd v Daniel, Black CJ (with whom Spender J and Gummow J agreed) said: 'Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. 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 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] [footnotes omitted] 25 McHugh and Gaudron JJ said at pars 55-58: "55 …Clearly, the word 'critical' is appropriate to a finding of the kind referred to in s 5(3)(a) and replicated in s 476(4)(a), namely, a finding as to a matter which is required to be established before the decision in issue can be reached. The question whether it is also appropriately applied to a finding of the kind referred to in s 476(4)(b) depends upon the meaning of the words 'based … on … a particular fact'. 56. The word 'particular' in s 476(4)(b) is of significance. Had that paragraph been expressed in terms of a decision 'based on the existence of a fact', it might have been apt to refer to any fact taken into account in the reasoning process leading to the decision in question. The word 'particular' indicates that the paragraph is intended to have a more limited operation. 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'. 57. 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 pars (a) and (b) of s 476(4) although, of course, par (a) imposed a less stringent test. 58. 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 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 In the passage taken from the reasoning of the Tribunal and extracted in par 14 of these reasons the Tribunal concluded that the applicant was not a genuine Falun Gong practitioner at the time of the decision by reference to a number of considerations. 27 The first consideration related to the letter from the purported practitioners in China. The applicant relied on the letter to demonstrate that he was a Falun Gong practitioner in China. The Tribunal concluded from the country information that the group would not have had an office. It followed that the Tribunal did not accept the letter as evidence that the applicant was a Falun Gong practitioner in China. 28 However, the Tribunal took the matter further. It suggested to the applicant in the hearing that the group would not have had an office. The applicant responded that the group may have obtained an office after he left China. This response was taken by the Tribunal as evidence that the applicant was not a Falun Gong practitioner at anytime because it showed, so the Tribunal reasoned, that the applicant did not know that such a group would not have had an office. 29 The Tribunal then considered the genuineness of the alleged summons from the Chinese authorities. It concluded that the summons did not provide evidence that the applicant was identified by the authorities as a Falun Gong practitioner. The Tribunal stated that this conclusion did not play any part in its assessment of the credibility of the applicant or his claims. 30 Then, the Tribunal referred to the fact that the applicant did not apply for a protection visa until 5 July 2000, being one year after he learned of the crackdown in China against the practice of Falun Gong. 31 The Tribunal expressed the view that the applicant's interest in Falun Gong was contrived for the purpose of the protection visa application. The Tribunal did not, at that point, elaborate on the basis for the conclusion. However, that conclusion should be seen against the background of the evidence set out earlier in the Tribunal's reasons concerning the circumstances in which the applicant came to make the application for a protection visa. The Tribunal recorded at 4-5: "The applicant was detained as an unlawful immigrant on 25 May 2000. In his compliance interview dated 26 May 2000 (conducted with interpretation), the applicant said his wife was retired from the work force. His daughter was attending university. He responded in the negative when asked if he had a current visa. He overstayed his visa because he could get work and wanted to earn money to support his family. When asked 'can you return to that country' (i.e. China) the applicant said 'Yes I want to go, I miss my family'. Asked whether he thought he should be allowed to stay in Australia the applicant replied in the affirmative, because of his trade and his contribution to the country. Asked whether he wanted to depart Australia voluntarily by using his own ticket and passport the applicant said yes. Asked whether he had, or could buy, his own ticket, the applicant said yes he could buy his own ticket. A friend of the applicant's brought his passport in on 29 May. One page of it is copied on to the file. The applicant's profession is listed as manager. A file note dated 8 June indicates that the applicant was still expressing the wish to buy his own ticket to depart. Another note on 13 June indicates the applicant still had no substantive visa application in train. By 19 June the applicant had indicated his refusal to return to China but still not made any visa application. Arrangements proceeded, including in consultation with the Chinese authorities, for the applicant to be returned to China escorted by an Australian official. The date of departure was to be 7 July. On 4 July it is noted that the applicant would not sign the notice of his removal and wanted to apply for a protection visa." [emphasis added] 32 The question then arises whether the Tribunal's conclusion that a Falun Gong group would not have had an office was the basis for its decision. 33 The Tribunal relied on several considerations to reach its decision. It did not rank the considerations in any order of importance. It did not say that its consideration of the letter from China was determinative. 34 The way in which the decision is expressed, and the fact that the consideration of the letter from China was the first matter considered by the Tribunal, suggests that the conclusion that the group would not have had an office was an important consideration for the Tribunal. Further, it was one of perhaps three main considerations addressed by the Tribunal. In that respect the case can be contrasted with Rajamanikkam in which the Tribunal relied on eight factors, of which only two were based on the alleged non-existent fact. 35 On the other hand, the factors relied upon by the Tribunal in this case seem to have been treated as independent reasons for rejecting the claim. Thus, the conclusion concerning the letter was not used to impugn the credit of the applicant in relation to the assessment of the other factors considered by the Tribunal. On balance, I have come to the view that the decision of the Tribunal was not based on the fact that the Falun Gong in China would not have had an office. To use the approach of McHugh and Gaudron JJ in Rajamanikkam, the Tribunal would have come to the same conclusion even if it had been satisfied that the Falun Gong did not have an office. The Tribunal certainly could have done so, because there was other evidence to support the conclusion. To use the approach of Gleeson CJ in Rajamanikkam, the Tribunal did not rely critically on the absence of an office to take it on one path of reasoning rather than another. 36 While I have come to a clear view that the Tribunal's decision was not based on the fact that the Falun Gong would not have had an office, the case is close to the borderline. Consequently, it is useful to consider element (a), namely, whether there was any evidence before the Tribunal of the fact that the Falun Gong group did not have an office.

Was there any evidence before the Tribunal that the Falun Gong group in China did not have an office? 37 The evidence relied upon by the Tribunal is extracted in par 12 of these reasons. In particular the Tribunal found that the letter from Holly Wei who was a Falun Gong contact person in Australia was evidence that the Falun Gong group in China would not have had an office. 38 In response the applicant submitted that the letter from Holly Wei said nothing about the situation in China, but only referred to the situation in Australia. 39 There is force in the applicant's submission. The reference by the Tribunal to the letter from Holly Wei is brief, and it is not clear to what the letter is responding. However, this is not a merits review. It is immaterial whether the Court would have come to a different conclusion about the meaning of the letter. It can not be said that the assertion by Holly Wei could not be taken by the Tribunal as a reference to the existence of an office of a Falun Gong group in China. It is possible to read the letter as referring to a general practice among Falun Gong groups worldwide. The Tribunal could have explained better how it came to the conclusion that the letter from Holly Wei was seen as evidence of the situation in China. However, I have reached the conclusion that the letter was capable of being viewed as evidence from which the Tribunal could reach the conclusion that the Falun Gong group in China would not have had an office. 40 In view of these conclusions it is unnecessary to give the applicant the opportunity to lead evidence in this Court to prove that the fact did not exist.

The relevant material ground 41 The applicant contended that the Tribunal had committed an error of law by ignoring the evidence that the applicant practised Falun Gong each Sunday in the Flagstaff Gardens and discussed the Chinese situation and the Communist Party. 42 The Tribunal expressly referred to this evidence on page 6 in the 'Claims and Evidence' section of its reasons. There is, therefore, no basis for the alleged error of law, and, indeed, the matter was but faintly pressed at the hearing.

The persecution ground 43 This ground was developed in the written outline and in oral submission as follows. It was contended in the written outline that while the Tribunal 'did not accept that the applicant was passionate enough to practise Falun Gong "outdoors" in China',it 'appeared to totally ignore any consideration of persecution by reason of him practising "indoors".' The restriction which would lead the applicant to practise Falun Gong indoors only, it was submitted, amounted to persecution. In failing to so hold the Tribunal, it was suggested, fell into an error of law. 44 This argument proceeds on the basis that the Tribunal found that the applicant would practise Falun Gong in China indoors. I do not accept this reading of the Tribunal's decision. The Tribunal found that the applicant's study of Falun Gong was contrived to provide a foundation for the protection visa application. The Tribunal meant that the applicant's practice of Falun Gong was not genuine. Consequently, it found that the applicant was highly unlikely to continue to practise Falun Gong after the protection visa process was concluded. This finding applied to the applicant's practice of Falun Gong in China whether outdoors or indoors. The final sentence of the passage extracted in par 14 of these reasons relates only to the practice of Falun Gong outdoors, but it does not limit or qualify the broader conclusion expressed earlier in the paragraph that the applicant would not be likely to practise Falun Gong in China at all. 45 Once it is appreciated that the Tribunal found that the applicant would not be likely to practise Falun Gong in China, it becomes clear that the Tribunal did not need to determine whether the restriction placed on the practice in China amounted to persecution. 46 In a related submission made orally, the applicant contended that even if the Tribunal correctly found that his study of Falun Gong was contrived, it failed to address what would happen if he returned to China. The fact that the practice of Falun Gong was contrived did not, it was submitted, disqualify the applicant from successfully arguing that he would suffer persecution on return to China. The Tribunal was bound to address whether the applicant would be persecuted in China, even if his adherence to Falun Gong was contrived for the purposes of the visa application. The finding of the Tribunal that the applicant was a pragmatic person, and was not passionate enough to practise Falun Gong outdoors in China was said to indicate that the Tribunal regarded the banning of Falun Gong as the reason why the applicant would not pursue his adherence to Falun Gong. To be deterred from such a practice amounted to persecution. The Tribunal, it was contended, erred in law in failing to find the existence of such persecution. 47 Again, in my view, this submission is based on a misconstruction of the Tribunal's findings. When the Tribunal found that the applicant's adherence to Falun Gong was contrived, it meant, as shown by the full context of the decision, that the applicant did not genuinely follow Falun Gong and would not do so after the visa application was completed. The reference to the applicant's pragmatism was an explanation why he had contrived his interest in Falun Gong. His interest in Falun Gong was designed to further his visa application. It was not a reason why he would refrain from practising Falun Gong in China. The reference to his lack of passion for Falun Gong is less clear. But, as explained earlier, it must be viewed in the light of the broader finding that the applicant's interest in Falun Gong was contrived. That broader finding was not limited to the practice of Falun Gong outdoors. The context suggests that this last reference was not intended to provide any such limitation. Consequently, the Tribunal did not err in law in its approach to the question of persecution. 48 For these reasons the application must be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate: Dated: 10 October 2002 Counsel for the Applicant: Mr J Kaufman QC, with Ms M Kennedy

Solicitor for the Respondent: Australian Government Solicitor