Zhang v Minister for Immigration & Multicultural Affairs [2001] FCA 1048

FEDERAL COURT OF AUSTRALIA

Zhang v Minister for Immigration & Multicultural Affairs [2001] FCA 1048

ZHENG ZHENG ZHANG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 294 of 2001

RYAN J

25 JULY 2001

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 294 of 2001

BETWEEN: ZHENG ZHENG ZHANG

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 25 JULY 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs, such costs to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 294 of 2001

BETWEEN: ZHENG ZHENG ZHANG

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 25 JULY 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 The applicant is a citizen of the People's Republic of China (the "PRC"). He arrived in Australia on 30 August 1999. On 14 October 1999 he applied for a protection visa but apparently provided no information in support of that application. After the delegate of the respondent Minister made a decision refusing the protection visa, the applicant applied to the Refugee Review Tribunal ("the Tribunal"), for a review of that refusal. On 26 May 2000 the decision of the Minister's delegate was set aside on the ground that the application for a protection visa was invalid. On 21 June 2000 the applicant made a second, valid, application for a protection visa which in turn was also refused. The applicant then applied to the Tribunal for a review of that refusal. There was no issue that the second refusal was an RRT reviewable decision which the Tribunal had jurisdiction to entertain. 2 After noting that the applicant had arrived in Australia under a false name, claiming to be a Singaporean citizen, and had claimed to have travelled on a Chinese passport which had been lost, the Tribunal summarised the applicant's claims in these terms; "He claimed that he was born in the city of Fu Qing, Fujian Province, People's Republic of China. He had attended schools from September 1982 to July 1994. He then worked on renovating buildings from October 1994 until July 1999. In his second application for a protection visa, the Applicant claimed that his troubles stemmed from his allegiance to the practice of Falun Gong. He was a teacher of it and had a following so he would be persecuted if he returned to China as the government targeted the teachers in particular. He said that when he talked to his parents they have told him that the Communist authorities were still looking for him. He stated that he could not expect any protection from his government. The Applicant claimed that in July 1994 after he finished secondary education, he was unemployed and stayed at home for a few weeks. He then became an interior decorator and followed a construction team to Beijing. In early 1995 his arm was injured in a work related accident and it did not get any better. He claimed that he went to the Heaven Temple Park for a walk and saw people doing health exercises. He became interested and spoke to a leader, Li Da Wei, who told him about the practices and ideology of Falun Dafa. He claimed that from then on, every day, he went to the park and practised the exercises. His health improved a lot. Because of this success he told other members of the construction team and some of them became interested also. Eventually Li Da Wei suggested that they should form a 'tutoring group' of about seven or eight members. He was designated the group leader. Later he trained an assistant who acted as the deputy tutor. The Applicant claimed that he kept in close touch with Mr Li even though he was only a labourer and Mr Li was a high school teacher. He stated that some practitioners were arrested in Tianjin City on 23 April 1999. He and some others went to an office of the government of the city on 24 April 1999 to protest. They did not get a just reply but were condemned. The Public Security Bureau (PSB) sent anti-riot police to surround them and they were assaulted. Nearly 40 Falun Gong practitioners were arrested. He claimed that he attended the very large demonstration in Beijing when 10,000 people gathered to protest for their rights. He stated that in June he lost contact with Li Da Wei. On 22 July 1999, the government announced the banning of Falun Gong. Books, tapes and videos were confiscated and destroyed. He claimed that on 23 July he was detained and questioned by the Hai Dian District PSB and was ordered to leave Beijing. He left the next day under the surveillance of PSB officers. The Applicant claimed that not long afterwards the whole Construction Team was forced to withdraw from Beijing. His teacher, Mr Li was arrested on 22 July 1999 and nothing had been heard of him since that time. The Applicant claimed that on 27 July officers from the Jiang Jing PSB came to his house with an Order to Summon and Detain. He was allowed to dress and then asked to sign the Order. He claimed he tried to find out what offence he had committed but he was rudely shouted down. He decided he would try to escape because he heard that people were tortured at the detention centres. He said that as his father was arguing with the police officer, he escaped out of the door. He ran through several lanes and then hid at a friend's house. The Applicant claimed that he decided that he was probably going to be arrested for reasons of his participation in Falun Gong practices. He claimed that his father was taken away by the police and was threatened that he had to present the Applicant there or there would be more trouble. The Applicant claimed that the police continued to go to the house looking for him. The Applicant claimed that he began to plan how he could leave China. It was fortunate that his cousin Zheng Li, was about to travel to Singapore. He was close to him in age and in appearance. He used his cousin's passport and arrived in Singapore on 8 August 1999. In Singapore he got to know another Falun Gong practitioner named Wu Wen Qiang. He gave him assistance to buy a passport and he used this to enter Australia on 31 August 1999." 3 The Tribunal then referred to a report by the document examination unit on a PRC Order to Summons and Detain which had been submitted by the applicant. The examination unit concluded that "It is difficult to place any reliance on this document". 4 In its reasons, the Tribunal then noted this finding by the Minister's delegate about the extent of the applicant's knowledge of Falun Gong; "The Minister's delegate interviewed the Applicant and was dissatisfied with the level of knowledge of Falun Gong which he displayed. It was noted that he was unable to draw the symbol of Falun Gong; he knew nothing of the Falun's function and he was unable to perform the Third Falun Gong exercise, the Guantong Liangji Fa. The Minister's delegate drew the conclusion that had he been a teacher as he had claimed, he would have been conversant with these aspects of Falun Gong. Therefore, he found him not to be a person who faced a real chance of persecution for reasons of his participation in the Falun Gong movement." 5 The Tribunal also canvassed for itself the applicant's understanding of Falun Gong principles and recorded, as follows, the effect of the applicant's evidence before it; "He told the Tribunal that he had no religious background at all. He had never been to a Buddhist temple and had no involvement with any other Qigong group. The Tribunal questioned the Applicant about his own introduction to Falun Gong and the classes he held to teach others. He was able to describe the wanzifu symbol and said it was placed in a circle. He did not know where the symbol came from. He did not know what other symbols were included on the falun. He was asked about the significance of the clockwise and anticlockwise turning of the falun. He responded that it was impossible for it to go anticlockwise. The Applicant stated that he knew Master Li Hongzhi was the creator of Falun Gong which he formed in 1992 but he did not know why he did it. He thought it was banned on 23 April 1999 after there was a big silent protest in Beijing. The Applicant brought copies of Master Li's writings to the hearing. He said he had access to these books in China but he had to leave them behind when he escaped. He did not belong to any Falun Gong group in Australia because his English was not good. He had seen some people in Melbourne handing out Falun Gong pamphlets which criticised the Chinese government's suppression of the movement. He practised the exercises privately in Australia and had not joined any group. He was asked why he would not join to tutor a group in Australia where he was free to do so but had taught a group in China when he was not supposed to do it. He said the real issue was that there was a warrant out for his arrest. On the matter of his role as a tutor, the Applicant said that he taught his class not to be selfish and he taught them sets of exercises. He demonstrated the first set. He was asked how he would introduce people to Falun Gong. What would he teach them about cultivation? Were the exercises he taught different from other forms of Qigong? He responded that after work everyone was tired so it was necessary to teach things simply." 6 After describing the applicant's account of his escape from the PRC and his explanation that he had changed the date on the Order to Summons and Detain when he signed it, the Tribunal noted the applicant's claim that if he were to return to the PRC he would continue to tutor in Falun Gong and that he needed temporary protection until the suppression of Falun Gong had ended. The Tribunal also recounted the results of its own researches into Falun Gong which it had used in assessing the applicant's claim to be a practitioner and tutor in Falun Gong. 7 Under the heading "Findings and Reasons" the Tribunal accepted that the applicant is a national of the PRC and has no claim to protection from Singapore. It identified as "the crucial issue" the applicant's alleged involvement in Falun Gong and the Chinese authorities' knowledge of this. 8 Reference was then made to information from the Research Directorate, Immigration and Refugee Board in Ottawa, which had drawn on a variety of sources to describe the practice and philosophy of Falun Gong, or Falun Dafa, as its adherents prefer to call it. The Tribunal made these findings about the applicant's knowledge as revealed in the course of the hearing; The Tribunal asked the Applicant a series of questions on the nature of Falun Dafa and Falun Gong and the agenda he had when he taught the practice. The Tribunal was aware that it was important not to set too high a standard in testing the Applicant's knowledge of Falun Gong. However, he had claimed to be a teacher and so it could be expected that he would know how to teach the basic essentials. The Applicant was able to answer a question about one aspect of the central symbol of Falun, one he was not able to answer at this department interview. However, he knew nothing about the rest of the Falun symbol. He could not describe its tao image and rejected the notion that the circle had an anti-clockwise motion as well as a clockwise one. The Tribunal regards these as significant facts which should be known to a tutor in Falun Gong. In particular the symbol is used in almost all the publications of Falun Gong. He claimed he had access to and read these books in China. This was not borne out by his level of knowledge. However, it is possible that a person will miss on learning about one aspect of a belief system so the Tribunal asked him a range of other questions. It was not satisfied that his answers supported his claim to have been a tutor in this discipline. The applicant knew very little about Master Li Hongzhi. He did not know that the book Zhuan Falun was banned well before April 1999. He knew nothing of Master Li having failed to acquiesce in the requirement of government registration. The Tribunal does not regard his evidence of the Beijing protest and crackdown in April 1999 as evidence that he was a participant. This protest was very large and it was widely reported. It was not something known only to practitioners of Falun Gong. If he was introduced to it as he has described, became adept in it, then it could be expected that he would know something more of its history and its relationships with the government. The Applicant was given an opportunity to explain how he would introduce a class to Falun Gong. He was unable to give a coherent account of what an introductory lecture for a training session would include. The Tribunal does not accept the fact that he was able to demonstrate one set of exercises indicates that he was a follower or tutor in Falun Gong. He was not able at any time to indicate what marked Falun Gong off from other forms of Qigong nor was he able to demonstrate anything other than the most superficial knowledge of it. The Tribunal also has considered the fact that the Applicant has not joined any of the Falun Dafa organisations or groups in Australia. This is an odd omission if he is, as he has claimed, a teacher of the system. While it is a practice which can be done alone and does not require participation in a group, a person claiming to have been a leader and teacher could be presumed to participate in the more organised aspects of the movement." 9 The Tribunal also rehearsed information which it had obtained about the structure and membership of the group adhering to Falun Gong in Australia. It then repeated its remark on the apparently curious fact that the applicant had not participated in organised Falun Gong activities in Australia, noting; "The Tribunal put to the Applicant the irony that he alleged he had tutored a Falun Gong group in China when it was banned but he had not done so in Australia where he was free to do this. The fact that he has taken no active part in organised Falun Gong activities in Australia is a factor the Tribunal has taken into account when assessing that he is at most a private doer of the exercises but he is not and has not been a tutor in this movement." 10 On the basis of country information available to it the Tribunal made this finding about the attitude of authorities in the PRC to Falun Gong; "There is ample country information coming out of China to indicate that Falun Gong is a movement banned by the Chinese authorities and one about which they are anxious. Leaders are arrested as are some of those who demonstrate and publicly advance Falun Gong's beliefs. The Tribunal accepts that within China, members of Falun Gong have been ordered by the government to cease their practice of this form of Qigong. It accepts also that leaders are at a particular level of risk as the authorities try to inhibit its growing influence. According to an article in the 15 February 2001 edition of the Far Eastern Economic Review "Since banning it on July 22, 1999, the Communist party has relied on a loud and often brutal campaign to crush the quasi-Buddhist exercise movement, with some success. "The government has succeeded in breaking up the key organisers, the people at the top," says a Beijing-based analyst, "but that leaves an amorphous movement that the rigid structure of the Communist party is ill-equipped to deal with." Falun Gong retains the strength for a non-violent guerilla-style campaign. Followers protest on Tiananmen Square almost daily, stuff the mailboxes of Beijings citizens with pamphlets denouncing the government and send out mass emails for support. Bound together by an ideal but not burdened by an orthodox structure, Falun Gong is eerily familiar for some communists with long memories. "They are like the underground Communist Party before the revolution. That's why they're hard to control." (David Murphy 'Losing Battle') The Tribunal accepts that independent information from many sources, including reports submitted by the Applicant, indicate that the Chinese government is determined to suppress the Falun Gong movement or at least to diminish its public influence. The Tribunal accepts that it does this in persecutory ways, in ways which override citizens' rights and in which the human rights of those detained are often seriously infringed. According to the DFAT Update of 17 July 2000 (CX43498) there has been no evidence of any softening of attitudes by the government towards Falun Gong followers. The government continues to describe it as an evil cult." 11 However, the Tribunal rejected the authenticity of the PSB Order to Summons and Detain after observing that this rejection was not fatal to all the applicant's claims or even to his claim to have been arrested. The Tribunal concluded; "The Tribunal is not satisfied that he has given a true account of the way in which he escaped arrest and left China. While there are genuine stories of derring do, the Applicant's account of the early morning raid, his escape out the back door, finding sanctuary in a friend's house, a bus trip to his aunt's and her son just happening to have his passport and visa ready for a trip to Singapore stretched credulity. Had the Tribunal been able to accept that he was a Falun Gong follower who had been pursued by the authorities, then the story, even if far-fetched, would not have meant that his original claim was not genuine. However, it is not satisfied that he was ever at risk of prosecution or persecution in China for the reason he has given. Consequently it does not accept that he had to flee from China for this reason. He advanced no other claim to explain his exit from China so the Tribunal is left with a story it is unable to accept. The Tribunal accepts that it is likely the Chinese government attempts to monitor the activities of Falun Gong in Australia. However, the Applicant is not a known practitioner of Falun Gong in Australia. He does not have the profile of those Australian-based practitioners who returned to China, participated in demonstrations and were arrested. The most he has done in Australia is to privately practise qigong exercises. The Tribunal does not find that the Applicant is a leader and practitioner of Falun Gong who is at risk of persecution if he returns to China. As this is his core claim and he has given evidence that he has no other problem with the Chinese authorities, the Tribunal is satisfied that the authorities are not still seeking him out for this reason. It is satisfied that he does not face a real chance of persecution for the reasons he has claimed. He is not a Convention refugee." 12 In support of the application to this Court for review of the Tribunal's decision, Mr Krohn of Counsel for the applicant claimed that the Tribunal had failed to consider whether, as an ordinary member or practitioner of Falun Gong, the applicant would be at risk of persecution if he were to return to the PRC. That was said to be an error of law of one or other of the kinds recently identified by the High Court in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. In particular, it was said that, in noting that part of the crucial issue was "the Chinese authorities' knowledge" of the applicant's involvement in Falun Gong, the Tribunal had failed to assess the prospective or future chance of that involvement coming to the attention of the Chinese authorities. 13 It was also contended that the Tribunal had concentrated on the applicant's claim to have been a teacher or tutor of Falun Gong and had ignored the attention which he might attract in the PRC as an ordinary Falun Gong member or "private doer of the exercises". Consideration of that matter was said to have been required by the Tribunal's finding, quoted above, that "there has been no evidence of any softening of attitudes by the government towards Falun Gong followers". 14 The Court was referred to a large body of evidence suggesting that ordinary Falun Gong members had been subjected to torture and other forms of persecution after doing nothing more public or evangelical than practising Falun Gong exercises in a park. It was pointed out in this context that the delegate of the Minister had expressly asked and answered the question which it was claimed the Tribunal had overlooked. The delegate said; "Finally, from the country information I assess that it would be possible for individuals, including the Applicant, to practise Falun Gong in the privacy of their homes by exercising discretion." 15 By failing expressly to ask, and to answer, the same question, it was submitted, the Tribunal had fallen into an error of the kind identified by McHugh, Gummow and Hayne JJ in Yusuf, when their Honours said, at [82]; "It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from the decision-maker making such an error. As was said in Craig v South Australia [(1995) 184 CLR 163 at 179; 131 ALR 595 at 602], if an administrative tribunal (like the tribunal): … falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or at least in some circumstances to make an erroneous finding or to reach an mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it." 16 Then their Honours in Yusuf went on: ""Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive.[cf Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219; 75 ALJR 52] Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying the wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. [Craig (1995) 184 CLR 163 at 179; 131 ALR 595 at 602]" 17 For the respondent it was submitted that a distinction is to be drawn between "a private doer of the exercises" derived from Qigong, and a practitioner of Falun Gong. The Tribunal, it was said, recognised this distinction when it referred to this description of Falun Gong by the Ottawa Immigration and Refugee Board as; "…an advanced system of cultivation and practice introduced by Master Li Hongzhi. Since its introduction in 1992, Falun Dafa has attracted more than 100 million people all over the world. In addition to being a powerful mechanism for healing, stress relief and health improvements, Falun Dafa is different from other qigong techniques in having a higher objective of cultivation and practice towards enlightenment. It is complete with its own system of principles and empirical techniques." 18 Reference was then made to other parts of the evidence before the Tribunal, that mere practitioners of Qigong exercises, as distinct from Falun Gong party members or adherents, are not at risk of persecution in the PRC. 19 In my view, if its reasons are read with the benevolence that authorities such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 indicate is to be accorded to the decisions of administrative tribunals, the Tribunal is to be taken, at least by implication, to have considered whether, if he were to return to the PRC, the applicant would be at risk of persecutory attention as a mere follower or adherent of Falun Gong. That implication arises from the express finding that the applicant had no more than the most superficial knowledge of Falun Gong and of what differentiated it from other forms of Qigong. The same implication is supported by the Tribunal's reference to the applicant's abstention from association with Falun Gong practitioners in Australia, despite the absence of any risk of persecution in this country and by the Tribunal's express finding that the applicant "is at most a private doer of the exercises". 20 Accordingly, I am not persuaded that the Tribunal in this case asked itself a wrong question or ignored relevant material. In the present case, the Tribunal understandably concentrated on the applicant's claims to be a leader and tutor in the Falun Gong movement. Merkel J, as a member of a Full Court of this Court in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, acknowledged that the inquisitorial nature of the function reposed in the Tribunal by the Migration Act 1958 obliges it to consider all relevant considerations and not merely those expressly articulated by the applicant. His Honour said, at 63: "Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or inquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own inquiries and, in some instances, may be obliged to do so: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 per Wilcox J; Luu v Renevier (1989) 91 ALR 39 at 49-50 per Davies, Wilcox and Pincus JJ; and Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 118-119; 151 ALR 505 at 547-548 per Wilcox J. Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject, raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented; cf Bouianov v Minister for Immigration and Multicultural Affairs (unreported, Federal Court [of Australia], Branson J, No NG 134 of 1998, 26 October 1998) at p 2 and Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38 at 49-50. Representations can be relevant to the content of a duty to act according to "substantial justice" or fairly in a particular case, but cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it according to the "merits of the case". In my view the inquisitorial function of the RRT and the combined effect of the provisions to which I have referred, is such that the RRT is required to determine the substantive issues raised by the material and evidence before it." That duty, which was recognised by Brennan J in Bushell [v Repatriation Commission (1992) 175 CLR 408], is a fundamental incident of the inquisitorial function of an administrative tribunal such as the RRT." [original emphasis] 21 On the reading of its reasons, which I have been persuaded to adopt, the Tribunal did not disregard the possibility that the applicant might be at risk as a mere Falun Gong practitioner or follower. Mr Krohn, in the course of his reply, referred to Hathaway, The Law of Refugee Status, p 86, where the learned author said: "Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant's need for protection:" He then reproduces this extract from a decision of the Immigration Appeal Board: "Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. "Lies do not prove the converse." Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility." 22 That extract makes it clear that the Tribunal's recognition that the possibility that the applicant might be persecuted as a mere Falun Gong practitioner did not relieve it of the need to consider that as a basis on which the applicant might be at risk of persecution for a Convention reason. However, in the present case, the Tribunal, after rejecting the authenticity of the Public Security Bureau document, recognised that: "This does not of itself rule out all the Applicant's claims, or even that he was ever arrested." It went on in the next paragraph to say: "Had the Tribunal been able to accept that he was a Falun Gong follower who had been pursued by the authorities, then the story, even if far-fetched, would not have meant that his original claim was not genuine. However, it is not satisfied that he was ever at risk of prosecution or persecution in China for the reason he has given." 23 That extract, I consider, embodies a finding that the applicant had not previously been a Falun Gong follower to a degree which would attract persecutory attention. Accordingly, I consider that the Tribunal has discharged the obligation which Merkel J distilled in the passage from Paramananthan which I have just quoted. 24 For these reasons the application must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.