FEDERAL COURT OF AUSTRALIA VAB v Minister for Immigration & Multicultural Affairs [2003] FCA 649 VAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 1061 of 2001 GRAY ACJ 27 JUNE 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1061 of 2001 BETWEEN: VAB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GRAY ACJ DATE OF ORDER: 27 JUNE 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the proceeding. 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 1061 of 2001 BETWEEN: VAB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GRAY ACJ DATE: 27 JUNE 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT The nature of the proceeding 1 In this proceeding, the applicant seeks to have the Court set aside a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs) (in both cases, "the Minister"), refusing to grant to the applicant and her son protection visas, pursuant to the Migration Act 1958 (Cth) ("the Migration Act"). 2 The applicant invokes the jurisdiction conferred on the Court by s 39B of the Judiciary Act 1903 (Cth) and the Migration Act. 3 The applicant is a citizen of the People's Republic of China. She arrived in Australia with her son on 31 July 2000. On 14 August 2000, the applicant lodged an application for a protection visa, on behalf of herself and her son. On 3 May 2001, a delegate of the Minister refused to grant protection visas. The applicant applied to the Tribunal for review of that decision. On 10 August 2001, the Tribunal conducted an oral hearing at which the applicant and her son gave evidence. On 29 August 2001, the Tribunal published its written decision and reasons for decision. It affirmed the decision not to grant protection visas. It is that decision of the Tribunal that the applicant asks the Court to set aside. 4 By s 36 of the Migration Act, there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, or a non-citizen in Australia who is the spouse or a dependent of such a person. The term "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the term Refugees Protocol is defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to these two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who is a "refugee". The Convention defines a "refugee" in part as a person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country". 5 The application was originally filed in this Court on 3 October 2001. Accordingly, it is to be decided by reference to the provisions of the Migration Act, as amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth); see item 8(2)(b) of Sch 1 to that Act. The applicant's claims 6 The applicant claimed to have a well-founded fear of persecution, if she should return to the People's Republic of China, for reasons of her political opinion and her membership of a particular social group or groups, especially spouses of persons of the Uighur ethnic group. 7 The principal basis of the applicant's claim relating to political opinion was that she feared persecution in China because of her involvement with the Falun Gong movement in the few months before she left China. Her story was that she lived with her Uighur husband in Guangzhou. She became interested in Falun Gong as a consequence of the government's attempt to stamp it out. She was not a practitioner of Falun Gong, in that she did not perform the meditation and exercises that are central to its activities. She claimed to have collected a lot of materials about Falun Gong and compiled a book, although she did not print many copies of the book. She said she arranged to meet some friends outside the municipal building under a banyan tree. Only four people including the applicant turned up, although she was expecting 12. They were sitting and talking and she intended to distribute, or was actually distributing, the book. The police arrived. She and her friends were interrogated for five hours and signed confessions. The three women were released but one man was detained longer and told the police everything. 8 The applicant submitted a certified translation of a document purporting to be a Public Security Bureau ("PSB") investigation report into the incident. According to the report, the male participant made a statement implicating the applicant as the ringleader and accusing her of publicising an impending Falun Gong broadcast and finding a good practising site. The investigation report also referred to the applicant's history of political activity. The applicant claimed that she left home after she was released and went to stay with several different friends before leaving China. Her house was searched. She left China legally, through Hong Kong, travelling on her own passport. 9 The applicant said that, in 1988, her husband had been accused of smuggling and the PSB had confiscated some goods from him. When the applicant went to the office of the PSB to complain, she was driven out of the office by force and organised a protest. The PSB accused her of inciting ethnic hatred and also of organising a hunger strike, because the protestors did not take a lunchbreak, for religious reasons. She resisted pressure to confess, threatened to sue the government and to report to the media. She was beaten for her stubbornness. 10 The applicant claimed that, in 1989, she joined the protest movement. She stood on top of a monument and helped a young male student compose a speech, because the students were only calling out slogans without any real content. Her contribution was a criticism of Deng Xiaoping. She was among people who blocked a bridge with a roll of black fabric and she made a donation to the workers' representatives. She went on a private hunger strike to mourn the dead and kept tapes of the radio broadcasts. 11 The applicant said that she was subjected to a forced hysterectomy in 1993, because she had borne a second child. She was told by officials that, although her husband was from an ethnic minority, she was not and she had to abide by Han Chinese law. 12 The applicant claimed that her father-in-law was detained in 1997 for violating martial law and died as a result of the harsh conditions of his detention. Her husband had also endured restrictions in Guangzhou because of being an Uighur. Uighurs are discriminated against in China and she suffered discrimination because of her marriage to one, and because one of her children (not the one applying for a visa) was registered as an Uighur. The discrimination involved restrictions on accommodation and business location, and inferior education opportunities. All of the family were called names, such as "Xinjiang wife" or "Xinjiang boy". 13 The applicant also submitted a certified translation of a letter purporting to come from the PSB to the applicant's mother. The letter told the mother that the applicant's name had been placed on file for investigation and arrest. It advised the mother to tell the applicant to stop any behaviour harmful to the State and to the future of the applicant and her husband. It alleged that, while in Australia, the applicant had posted two counter-revolutionary books for her husband to pass on to friends, but the PSB had intercepted them. The letter concluded with the words "this is served as a warning". The Tribunal's reasons 14 The Tribunal relied on a considerable amount of information from sources other than the applicant and her adviser in relation to the Falun Gong movement, the 1989 pro-democracy movement, exit procedures from China and the one-child policy. It referred to this information as "country information". 15 The Tribunal did not accept the applicant's account of having compiled and distributed a book containing anti-government or Falun Gong material. It did not accept that the applicant was wanted by the police in relation to such an incident. It was not satisfied that her account was coherent or plausible. It described the applicant as intelligent, mature and politically knowledgeable. The Tribunal said that, if she wanted to encourage debate among her friends about issues that reflected badly on the government, it was conceivable that she would share with them items she had found about Falun Gong or government corruption. It was implausible that she would bind those materials into a book, which would not add anything. She could not seriously have thought that binding the materials would disguise them effectively and if disguise was her aim, she would not have distributed them in a public place. The Tribunal took the view that dissidents in China do what they are expected to do, namely write articles in underground journals, act as informants for human rights organisations abroad, establish web-sites, form or join political parties, student associations or autonomous workers associations, or express their views in artistic forms. Sometimes they demonstrate Falun Gong exercises. 16 The Tribunal was not satisfied with the applicant's responses concerning her choice of the venue for distribution of the book. Unless she was protesting or courting arrest, she would not distribute an anti-government book near the outside of a municipal building. The applicant's account did not lend itself to the explanation that she was courting arrest. 17 The Tribunal found an inconsistency between the applicant's evidence at the hearing and that of her son, as to whether she had moved out of home and stayed with relatives. Her son thought that she was living at home in the period after her detention. It found that she was at home and was not on the run from the authorities in the month or so leading up to her departure. 18 The Tribunal did not accept that the applicant selected a Falun Gong practice site for her friends and did not accept that she was wanted for doing so. It said: "The applicant said she was not a practitioner of Falun Gong and could not answer questions about Falun Gong practice or doctrine, and that she did not share many Falun Gong beliefs. It is not plausible that she would organise a Falun Gong practice site." 19 The Tribunal regarded these concerns "as fatal to the plausibility of the applicant's claim". It dismissed the investigation report, finding it contrived. It also found that, although the applicant already had a passport and an exit visa, and although this reduced the opportunities for the authorities to prevent her departure, the passage of a five-week period between the alleged investigation report and the applicant's departure was evidence that the authorities had no adverse interest in her. 20 The Tribunal accepted that the applicant was detained in 1988 for protesting a government decision in relation to her husband's business. It did not accept that she was detained for inciting ethnic rebellion or a hunger strike. It accepted that she argued with the authorities and was detained and that her challenge to the authorities at that time was characterised as an expression of a political opinion. It did not accept that the extortion suffered by her husband was due to his ethnicity, finding no evidence to support any claim that corruption in China is targeted at particular ethnic or other groups. 21 The Tribunal accepted that the applicant was caught up in events in 1989 as she claimed. Since then, she had not had any overtly political conflict with the authorities. She was able to obtain a passport and travel abroad prior to her departure for Australia. This indicated that the authorities had no adverse interest in her. If they still intended to persecute her for what happened in 1988, they would have taken some action in the intervening period. She was able to marry, run a business, own property and register two children. The Tribunal found that country information supported the conclusion that the authorities no longer pursue people involved in the 1989 pro-democracy movement. 22 The Tribunal also accepted that the applicant's mother was politically active and was persecuted, that the applicant witnessed atrocities during the Cultural Revolution, and that she had a dispute with her authorities at the end of her school years. It did not accept that the applicant faced a real chance of persecution as a result of any of those events. It accepted that the applicant had anti-communist views, but did not accept that she faced a real chance of persecution for those views. It did not accept that she would, in the reasonably foreseeable future, confront the authorities with her political opinions. 23 The Tribunal found that there was considerable material about the persecution of separatist, or perceived separatist, Uighurs in Xinjiang, but there was no information which would support a finding that Uighurs are persecuted in Guangzhou, where they now primarily live. The Tribunal accepted that discrimination occurs against Uighurs in Guangzhou. It did not accept that they are confined to a certain residential area by legislation or an explicit policy, but found that there may be officials who discriminate against Uighurs and this has effects on where they can live, set up business and go to school. It accepted that there is name-calling. It did not accept that any of this constitutes significant enough harm to amount to persecution. It repeated that the applicant and her family have been able to set up business, find accommodation and attend schools. While their income has varied, it was not clear that this had anything to do with the ethnic origins of the husband. 24 The Tribunal did not accept that mixed marriages or mixed race families were a particular social group in China or that the applicant's family was persecuted for that reason. 25 The Tribunal was prepared to accept the applicant's account of forced sterilisation, but did not accept that this was done for any Convention reason. On the basis of country information, it found that there is a policy of general application, which is sometimes abused through over-zealousness. There was no evidence that the abuse of the policy was directed at people with a Convention-related profile. The applicant's own evidence was that the officials told her she had to endure the rules of the Han majority. 26 The Tribunal accepted that there was a remote danger in Xinjiang of being caught up in separatist violence and the authorities' response. It did not accept that this danger constituted a risk of persecution of the applicant. Separatists, or perceived separatists, are persecuted for their political opinion in Xinjiang, but there was no evidence that ordinary Uighurs who are visiting from other provinces are targeted, even if they have relatives who violated martial law in the past. There was no satisfactory basis on which to find that the applicant or her family members would be regarded as Uighur separatists. 27 The Tribunal did not accept that the applicant had a well-founded fear of persecution based on events "sur place". The Tribunal did not accept that the letter to the applicant's mother was genuine. It felt that the style of the letter was informal and discursive and that even an uneducated official would use a more official style. 28 The Tribunal was not satisfied that the applicant and her son had a well-founded fear of persecution in China for a Convention reason. The applicant was therefore not a person to whom Australia had protection obligations under the Convention. She did not satisfy the criterion in s 36 of the Migration Act for a protection visa. The Tribunal rejected the application of her son, because it depended on the outcome of the applicant's application. The applicant's case on review 29 The applicant's amended application, filed on 9 August 2002, raised the ground of error of law, suggesting that the Tribunal had misinterpreted the law relating to the definition of "refugee" for the purposes of the Migration Act. This ground was particularised in three ways. The first way was that the Tribunal failed to apply the correct test for determining whether the applicant had a well-founded fear of persecution on the ground of her membership of a particular social group, namely Falun Gong. Having found that it is not the practice of the Falun Gong exercises, but political involvement, which attracts the attention of the Chinese government, the Tribunal then refused the applicant's claim on the basis that she was not a member of Falun Gong because she did not practice the exercises. The second way in which the Tribunal misinterpreted the definition of "refugee" was in failing to apply the correct test for determining whether the applicant had a well-founded fear of persecution on the ground of her membership of a particular social group, being mixed race families. The Tribunal failed to take into account a relevant factor, namely that discrimination on the basis of ethnic origin does exist, and that it took into account an irrelevant consideration, namely that such discrimination is not expressly embodied in legislation or official government policy. The Tribunal's third way of misinterpreting the law relating to the meaning of "refugee" was that the Tribunal failed to interpret correctly, or to apply, the test for determining whether the applicant had a well-founded fear of persecution on the ground of her membership of a particular social group, because it misstated the effect and application of the principles regarding laws of general application in the circumstances of the case. 30 On the hearing of the application, counsel for the applicant, who appeared as a result of a referral pursuant to O 80 of the Federal Court Rules, abandoned the third ground. She argued that the Tribunal's rejection of the applicant's account of binding and distributing a book containing subversive materials, including materials relating to Falun Gong, was the result of the Tribunal's wrong approach. All of the country information considered by the Tribunal in relation to Falun Gong related to practitioners of Falun Gong, but the applicant was not a practitioner. The Tribunal did not consider any information about the Chinese government's position with respect to people who were politically involved with Falun Gong but were not practitioners. The Tribunal did not consider whether, in China, there is persecution of persons who are politically affiliated with but not members or practitioners of Falun Gong, whether a person who had done what the applicant claimed to have done in relation to the compilation and distribution of the book would have been likely to suffer persecution for a Convention reason at the hands of the authorities, and whether the applicant was actually wanted for that activity and for facilitating an illegal meeting and as a consequence was likely to suffer persecution for a Convention reason. Instead, the Tribunal considered that it was unlikely that the applicant would have collated and published a book or to have selected a location for practising Falun Gong for her friends, when she was not a member of Falun Gong. In essence, the Tribunal did not consider the case put by the applicant. 31 Counsel for the applicant also argued that the Tribunal considered only the question of discrimination against Uighurs that was sanctioned officially, or sanctioned by law. It did not consider whether the discrimination that it found to exist amounted to persecution, either generally or in the applicant's particular case. It should have considered whether the discrimination it recognised was significant enough to constitute persecution for a Convention reason. Non-membership of Falun Gong 32 The first submission on behalf of the applicant characterised the Tribunal's reasoning incorrectly. In its reasons for decision, the Tribunal expressly recognised that the applicant was not a Falun Gong practitioner. It referred to a written submission by the applicant's adviser, in which the adviser "noted that the applicant wished to emphasise that her involvement with Falun Gong was political and that she is not a practitioner." It is true that the material summarised by the Tribunal as country information tended to relate to the treatment by the Chinese government of Falun Gong practitioners, involving detention, loss of employment, periods of re-education through labour, imprisonment, deaths in custody probably resulting from police brutality, and numerous instances of torture. It is incorrect, however, to say that the Tribunal rejected the applicant's account of her compilation and distribution of the book, and her arrangement of a meeting in public for the purpose of doing so, on the basis that she was not a Falun Gong practitioner. In fact, the rejection of the applicant's story was for a number of reasons. I have summarised them above. Having found that the applicant was intelligent, mature and politically knowledgeable, the Tribunal said that it was conceivable that she would share with her friends items she had found out about Falun Gong or about government corruption. It was implausible that she would do so by binding the materials into a book. The Tribunal thought that to do so would not add anything to the materials. It found that she could not seriously have thought that binding the materials would disguise them effectively and if she had wished to disguise them she would not have distributed them in a public place. Further, the Tribunal did not consider that the applicant had behaved the way in which dissidents acted in China. It was not satisfied with the applicant's reasons for choosing a public place to distribute the book, given that she was not courting arrest. The Tribunal also relied on the inconsistency between the evidence of the applicant, and that of her son, as to whether she was on the run after the alleged occasion. Only after discussing all of these matters did the Tribunal say that it was not plausible that the applicant would organise a Falun Gong practice site, because she was not a practitioner. It did not say that she would not have compiled and distributed a book because she was not a practitioner. The Tribunal reached that conclusion for all of the other reasons that I have summarised. It bolstered its findings by its rejection of the investigation report as not genuine, and by its reliance on the applicant's ability to leave the country without hindrance, five weeks after the alleged incident. 33 All of these reasons involved findings by the Tribunal on questions of fact. A differently constituted Tribunal might have made findings of fact more favourable to the applicant on the evidence before it. It is no part of the Court's function, however, to substitute for the Tribunal's findings of fact findings which the Court might consider more appropriate. This is not to say that I would necessarily be critical of the findings of fact that the Tribunal made on the evidence before it. It is just to say that the facts were a matter for the Tribunal. The attempt to suggest that the Tribunal had rejected the applicant's story solely because it ignored the fact that she was not claiming to be a practitioner, but only a supporter, of Falun Gong is to attempt to retry the facts. Discrimination against Uighurs 34 In a similar way, the submission on behalf of the applicant about ethnic discrimination misrepresents the Tribunal's reasoning. The Tribunal obviously had found material suggesting that there was persecution of separatist Uighurs in Xinjiang. The Tribunal dealt with this material and, towards the end of its reasons for decision, found the material inapplicable to the applicant and her family, on the basis that they would not be perceived to be Uighur separatists. 35 In addition, the Tribunal made reference to the absence of information about persecution of Uighurs in Guangzhou. Although it did not accept that there was legislation or explicit policy restricting residential or business locations, or educational opportunities, for Uighurs, it did accept that there might be officials discriminating against Uighurs, and that this would have effects on where they can live, set up business and go to school. It accepted that there was name-calling. In other words, the Tribunal addressed expressly all of the elements of discrimination of an unofficial kind raised by the applicant. It rejected the applicant's case on the ground that it did not accept that any of the restrictions, or the name-calling, was significant enough harm to amount to persecution. The Tribunal pointed to the fact that the applicant and her family had been able to set up business, to find accommodation and to attend schools. Insofar as their income had varied, it was not clear that this had anything to do with the fact that the husband and father was an Uighur. It is clear that the Tribunal dealt with the case precisely as the applicant had put it. Conclusion 36 The applicant has therefore failed to make out the grounds on which she sought to set aside the Tribunal's decision. It is unnecessary to consider whether, if those grounds had been established, they would have entitled the applicant to have the decision set aside despite the privative clause in s 474 of the Migration Act. The application must be dismissed. Following the usual rule that costs follow the event, the applicant must be ordered to pay the Minister's costs of the proceeding. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Peter R A Gray, Acting Chief Justice. Associate: Dated: 27 June 2003 Counsel for the Applicant: D Rasheva (appeared pursuant to O 80 of the Federal Court Rules) Counsel for the Respondent: W Mosley Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 February 2003 Date of Judgment: 27 June 2003