VUAC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 925

FEDERAL COURT OF AUSTRALIA

VUAC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 925 VUAC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS VID 30 OF 2005 NORTH J 29 JUNE 2005 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 30 OF 2005

BETWEEN: VUAC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 29 JUNE 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 VID 30 OF 2005

BETWEEN: VUAC

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 29 JUNE 2005

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 Before the Court is an appeal from a decision of Phipps FM delivered on 23 December 2004. The Federal Magistrate dismissed the appellant's application for review of a decision of the Refugee Review Tribunal made on 20 August 2003. The Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant the appellant a protection visa. On 16 June 2005 the Chief Justice determined that this appeal would be heard by a single judge pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 2 The appellant is a citizen of the People's Republic of China, who arrived in Australia on 9 February 1998. She lodged her application for a protection visa on 24 July 2002. At the time of application for the visa she was 52 years old. She was married in 1975 and her first husband died in 1991. From that marriage she has a married daughter, living in China. The appellant remarried in China in about 1994 and was divorced in late 1999. She married her present husband in Sydney on 27 April 2003. She travelled to Australia legally on a passport in her own name which had been issued in Shanghai on 1 July 1996. She was permitted to remain in Australia until 30 December 1998 by operation of a temporary business visa which was issued in 1998. 3 The appellant's case before the Tribunal was that she feared persecution in the People's Republic of China by reason of her practice of Falun Gong. Her practice of Falun Gong commenced after a serious knife attack on her in July 1998 in Australia, in the course of which she sustained wounds to both hands and needed microsurgery. As a result of the attack she was awarded $30,000 by the Victims Compensation Tribunal in April 2000. Whilst recovering from her injuries she was introduced to the practice of Falun Gong and initially practised in exercise groups. She said that she had heard many stories in Sydney from people in Chinatown about the mistreatment and persecution of Falun Gong practitioners in China. 4 The Tribunal set out the evidence which the appellant gave at the hearing in considerable detail. It appears to be almost a verbatim account of the hearing. Much of the material set out appears not to have been relevant to the determination of the case, and it might be thought desirable that such an account be reduced only to those matters that go centrally to the claims being made. Several extracts, however, do throw some light on the reasoning process adopted by the Tribunal. For instance, at [27], the Tribunal records: I asked the applicant why she did not want to go back to China. She said that she had been in Australia for six years. After her injuries in 1998, everyone treated heard [sic] very well. She now feels emotionally attached to Australia. Australia is far better than China. The Applicant said that she doesn't have any relatives in China. Her daughter is now married. She doesn't have many connections in China. Finally, the Applicant said that she practised Falun Gong for the benefit of her injuries. She has been told how that the situation is for Falun Gong practitioners in China. People are mistreated in China. She fears that on her return to China she, too, will be mistreated. 5 Also, at [42] and [44], the following exchange is recorded: 42. I put to the Applicant that she had no genuine commitment to Falun Gong and that she was using Falun Gong as a means of trying to prolong her stay in Australia. The Applicant said that this was true, but she also practised Falun Gong. She added that she had no reason to go back to China. … 44. I asked the Applicant why she had left it until July 2002 to apply for a protection visa. She said that she had first seen the migration agent in 2001. She said the fact was that she didn't have any visa and she did not want to be 'illegal' in Australia. 6 The essence of the reasoning of the Tribunal is contained at [55] – [63]: 55. There are some claims of the Applicant that I am prepared to accept. These are: - That the Applicant took up Falun Gong at about the end of 1998 in the hope that it would aid the recovery of the knife wounds she suffered in the course of a robbery; - That the Applicant has practised the exercise regimes of Falun Gong in Australia; and - That the Applicant continues to practice the Falun Gong exercise regimes in the privacy of the matrimonial home. 56. I am also satisfied that the Applicant has no profile in the Falun Gong movement in Australia such that she would have come to the attention of the Chinese authorities in Sydney. This is because she has only ever been an ordinary practitioner, has never taken part in demonstrations against the Chinese government and conceded at the hearing that she has not actively promoted Falun Gong in Australia. In reaching this conclusion I also rely on the fact that the Applicant had no hesitation in or fear of approaching the Chinese authorities at the Embassy to renew her passport and had no difficulty at all in obtaining a renewal from the Chinese authorities. 57. There is no evidence before me otherwise that the Applicant is a person who has ever come to the adverse attention of the authorities in China in the past and this leads me to conclude that the chances of her having any difficulty at all with the authorities upon her return to China are remote in the extreme. 58. I am satisfied that the Applicant is not a 'die hard' supporter of Falun Gong. This was apparent from her evidence that she would not go against the 'party' and her evidence that since October of 2002 she has only practiced Falun Gong in the privacy of her matrimonial home in Sydney. 59. I am satisfied that if the Applicant were to practice Falun Gong upon her return to China she would be able to practice Falun Gong successfully in secret or in the privacy of her own home and would be comfortable doing so. I am also satisfied that if the Applicant were concerned about discovery as a Falun Gong practitioner she is still sufficiently loyal to the Chinese Communist Party to be prepared to give up Falun Gong. 60. It was not until late July 1999 that Falun Gong became illegal in China. By then the Applicant had been a practitioner of Falun Gong for about 8 months. It was not until 24 July 2002 that the Applicant lodged her application for a protection visa and then it would seem only after the Applicant had exhausted all other migration options some three weeks earlier with the rejection of a request that the Minister intervene in her case. I do not accept the explanation offered by the Applicant at the hearing that she did not apply for a protection visa until she saw pictures in 'Chinatown' of what was happening to Falun Gong practitioners in China in August or September 2002, because this was after she had lodged her application for a protection visa. I am prepared to accept the evidence of the Applicant at the hearing that she consulted a migration agent in 2001 but I am satisfied from the whole of the evidence available from departmental files that this was in relation to other migration options or issues. 61. Justice Heerey commented in the Selvadurai's case [sic]: 'The applicant complained of the Tribunal taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa. In my opinionthiswas a legitimate factual argument and an obvious one to take into account in assessing the genuineness or at least the depth of the applicant's alleged fear of persecution.' 62. In the current case, I find the Applicant's delay of almost exactly 3 years after Falun Gong became illegal in China in lodging her application for protection in Australia in the circumstances outlined above is inconsistent with the actions reasonably expected of a person who fears for her life or safety upon her return to China and this also leads me to find that the Applicant does not have a genuine subjective fear of persecution in China for any Convention reason. 63. For all the above reasons, I cannot be satisfied that in the foreseeable future that Applicant faces a real chance of Convention related persecution in China either because of suspected involvement with the Falun Gong movement or for any other reason. The Applicant's fears of persecution are not well-founded. She is not a refugee. 7 The appellant sought review before the Federal Magistrate on the same grounds as are raised on this appeal. Those grounds were rejected by the Federal Magistrate. On the appeal the appellant relied on two submissions. The first was put in the following terms in the written outline of submissions filed on the appellant's behalf: 27. The Tribunal concluded that the appellant did not objectively have a well-founded fear of persecution because she could practise Falun Gong in the privacy of her own home in China, she could give it up out of loyalty to the party. [sic] This conclusion was reached without considering whether the reason the appellant would give up the public practice of Falun Gong was her fear of persecution of public practice. The Tribunal further failed to consider whether, if the appellant gave up Falun Gong altogether this would not be out of loyalty to the party but out of fear of the party. 8 The appellant relied on the joint judgment of McHugh and Kirby JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, and in particular on the following passages, at [40] and [43]: But persecution does not cease to be persecution for the purpose of the Convention because those persecuted can eliminate the harm by taking avoiding action within the country of nationality. The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps — reasonable or otherwise — to avoid offending the wishes of the persecutors. … The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many – perhaps the majority of – cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly. (emphasis in original) 9 In my view the present case is distinguishable from Appellant S395/2002. In the present case the Tribunal did give attention to the reasons why the appellant would practise Falun Gong in her own home, and her motivation for giving up the practice of Falun Gong if she were concerned about being discovered as a Falun Gong practitioner. 10 Firstly, the Tribunal made a finding that she would be comfortable practising in secret or in the privacy of her own home. That conclusion suggests that the option of private practice would not be the result of compulsion by the State, but rather would be a choice accepted for reasons other than fear. Then the Tribunal considered the motivation behind the appellant giving up the practice of Falun Gong, and determined that she would choose loyalty to the Chinese Communist Party over the continued practice. Again, in arriving at this conclusion, the Tribunal has considered whether the appellant would have been forced to give up Falun Gong as a result of fear of persecution. By determining that the appellant would be prepared to give up the practice of Falun Gong as a result of loyalty to the Chinese Communist Party, the Tribunal found that she would not have been forced to do so as a result of fear of persecution. Consequently, the appellant's first argument must fail. It follows that the appeal must be dismissed. 11 Whilst it is not strictly necessary for me to address the second argument in these circumstances, I will do so briefly. The appellant argued in the written outline: 25. The Tribunal determined that the delay in application for a protection visa indicated that the appellant did not have a subjective fear of persecution, i.e. at the time she lodged her application for a protection visa. Her evidence before the Tribunal, however, was that it was after she had lodged her application for a protection visa that she became aware of information concerning the torture and persecution of members of the Falun Gong movement in China. The Tribunal therefore ought to have considered as a relevant question raised on the material before it whether, although not having a genuine fear of persecution at the time she applied for the visa, her fear then became genuine when she saw information concerning persecution after she had applied for the visa. Had the Tribunal considered this question it may have concluded that although the application was initially made without the appellant having a subjective fear, she did have such a fear at the time the Tribunal made the decision. The question whether the appellant developed a subjective fear of persecution after she applied for the protection visa was accordingly a relevant consideration the Tribunal was required to take into account. By failing to deal with this question the Tribunal has fallen into jurisdictional error. 12 This argument focused on the sentence at [60] of the Tribunal's decision, which said: I do not accept the explanation offered by the Applicant at the hearing that she did not apply for a protection visa until she saw pictures in 'Chinatown' of what was happening to Falun Gong practitioners in China in August or September 2002, because this was after she had lodged her application for a protection visa. 13 In my view, properly read, [60] and [62] indicate that the Tribunal concluded that the appellant had no genuine subjective fear of persecution both at the time when the application for a visa was lodged and thereafter until the time of decision. This interpretation relies upon the sentence preceding the one relied upon by the appellant at [60], namely: It was not until 24 July 2002 that the Applicant lodged her application for a protection visa and then it would seem only after the Applicant had exhausted all other migration options some three weeks earlier with the rejection of a request that the Minister intervene in her case. 14 At [62] the Tribunal found: … the Applicant's delay of almost exactly 3 years after Falun Gong became illegal in China in lodging her application for protection in Australia in the circumstances outlined above is inconsistent with the actions reasonably expected of a person who fears for her life or safety upon her return to China and this also leads me to find that the Applicant does not have a genuine subjective fear of persecution in China for any Convention reason. 15 The ultimate conclusion is not limited to the time of lodgement of the visa application. Rather, the Tribunal concluded that the appellant's application was at all times a final attempt to stay in Australia when all other chances had failed. This becomes clear in light of the exchanges referred to earlier at [42] and [44] of the Tribunal's decision. The Tribunal was clearly of the view that the appellant was not a committed Falun Gong practitioner and that the protection visa application was designed as a means for achieving her aim of staying in Australia. 16 The appellant relied on her viewing pictures of mistreatment of Falun Gong practitioners as showing her subjective fear which led her to make the visa application. The Tribunal rejected that basis as demonstrative of her fear because on the Tribunal's analysis of all the evidence it post-dated her lodgement of the application for a protection visa. Again, the Tribunal addressed the appellant's state of mind generally and not just at the time of application.